<PAGE>
As filed with the Securities and Exchange Commission on June 3, 1999
Registration Statement No. 333-75397
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
AMENDMENT NO. 4
to
FORM S-1
REGISTRATION STATEMENT
Under
The Securities Act of 1933
----------------
ESPS, INC.
(Exact name of Registrant as specified in its charter)
----------------
Delaware 7373 24-2845135
(State or other (Primary Standard (IRS Employee
jurisdiction of Industrial Classification Identification Number)
incorporation or Code No.)
organization)
1300 Virginia Drive, Suite 125
Fort Washington, PA 19034
215/619-6000
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
----------------
TERRENCE P. BRENNAN
President and Chief Executive Officer
ESPS, Inc.
1300 Virginia Drive
Suite 125
Fort Washington, PA 19034
215/619-6000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
----------------
Copies to:
Stephen M. Goodman, Esq. Alexander D. Lynch, Esq.
James W. McKenzie, Jr., Esq. Luci Staller Altman, Esq.
Morgan, Lewis & Bockius LLP Brobeck, Phleger & Harrison LLP
1701 Market Street 1633 Broadway, 47th Floor
Philadelphia, PA 19103 New York, NY 10019
215/963-5000 212/581-1600
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date of this Registration Statement.
If the only 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 this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the Prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
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, as amended or until this
Registration Statement shall become effective on such date as the Commission,
acting pursuant to such Section 8(a), may determine.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+The information in this prospectus is not complete and may be changed. +
+Underwriters may not confirm sales of these securities until the registration +
+statement filed with the Securities and Exchange Commission becomes +
+effective. This prospectus is not an offer to sell these securities and it is +
+not soliciting offers to buy these securities in any state where the offer or +
+sale is not permitted. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED JUNE 3, 1999
PROSPECTUS
4,000,000 Shares
[LOGO OF ESPS]
Common Stock
This is an initial public offering of common stock by ESPS, Inc. Of the
4,000,000 shares of common stock being sold in this offering, 3,500,000 shares
are being sold by ESPS and 500,000 shares are being sold by the selling
stockholders identified on page 53. ESPS will not receive any of the proceeds
from the sale of shares by the selling stockholders. We estimate that the
initial public offering price will be between $9.00 and $11.00 per share.
---------
There is no public market for the common stock. We have applied for listing
of the shares of common stock on the Nasdaq National Market under the symbol
ESPS.
---------
<TABLE>
<CAPTION>
Per Share Total
--------- -----
<S> <C> <C>
Initial public offering price................................... $ $
Underwriting discounts and commissions.......................... $ $
Proceeds to ESPS, before expenses............................... $ $
Proceeds to selling stockholders, before expenses............... $ $
</TABLE>
ESPS has granted the underwriters an option for a period of 30 days to
purchase up to 308,308 additional shares of common stock. Several selling
stockholders have granted the underwriters an option for a period of 30 days to
purchase up to 291,692 additional shares of common stock.
---------
Investing in the common stock involves a high degree of risk. See "Risk
Factors" beginning on page 6.
---------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is
a criminal offense.
Hambrecht & Quist
BancBoston Robertson Stephens
U.S. Bancorp Piper Jaffray
Charles Schwab & Co., Inc.
, 1999
<PAGE>
[Graphic: The ESPS logo appears on a background depicting a spiral in a
rectangular box. Below the logo is the text "Software Solutions Enabling
e-Compliance." Below that text appear three connected pillars. In the top border
connecting the pillars appears the text "Electronic Compliance (e-Compliance)
Management(TM)" and in the bottom border of the pillars appears the text
"Corporate Intranet and Internet." Within each of the three pillars is the
following text, from left to right: "Advanced Technology," "Industry-Specific
Compliance Expertise," and "Comprehensive Services."]
<PAGE>
[Graphic: A flow chart depicting the compliance process appears in the center of
the Graphic. Six boxes appear in the center of the flow chart, containing the
following text: "Regulatory Affairs," "Research and Development," "Sales and
Marketing," "Human Resources," "Manufacturing," and "Finance." In the center of
the six boxes appears the text "CoreDossier." Around the perimeter of the
boxes appears a line with arrows leading clockwise and six numbered locations
around the boxes. Beside each number appears the following text: "Authoring the
Information," "Collecting and Compiling the information from multiple authors
and in various formats," "Publishing a comprehensive document," "Circulating
the document for review and revision," "Publication of the final compliance
document and delivery" and "Information reuse." Below the flow chart is a box
labeled "Regulatory Agency" with the following text beside it: "Submissions
using paper, CD-Rom and Internet." Below that appears the text "Providing
Software Solutions to Enable Electronic Compliance Management(TM)."
On the left border of the Graphic appears the following text, below the ESPS
logo: "What is e-Compliance? e-Compliance is the application of intranet and
Internet technologies to reduce the compliance burden for companies in highly-
regulated industries." In the right border appears the following text: "The
ESPS Solution: .CoreDossier family of software products, .Industry-Specific
compliance expertise, .Comprehensive Services." Below that text appears the
following text: "Current Markets; Pharmaceutical, Biotechnology, Chemical,
Utilities."]
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Prospectus Summary................................................... 3
Risk Factors......................................................... 6
Forward-Looking Statements........................................... 14
Use of Proceeds...................................................... 15
Dividend Policy...................................................... 15
Capitalization....................................................... 16
Dilution............................................................. 17
Selected Financial Data.............................................. 18
Management's Discussion and Analysis of Financial Condition
and Results of Operations.......................................... 20
Our Business......................................................... 31
Management........................................................... 44
Related Party Transactions........................................... 51
Principal and Selling Stockholders................................... 52
Description of Capital Stock......................................... 54
Shares Eligible for Future Sale...................................... 56
Underwriting......................................................... 57
Legal Matters........................................................ 59
Experts.............................................................. 59
Where You Can Find Additional Information............................ 59
Financial Statements................................................. F-1
</TABLE>
<PAGE>
PROSPECTUS SUMMARY
This prospectus summary highlights selected information contained elsewhere
in this prospectus.
ESPS
ESPS is a leading provider of electronic compliance management solutions to
businesses in highly regulated industries. We refer to electronic compliance as
e-compliance. Our electronic compliance management solution, which consists of
the CoreDossier family of software products and related services, enables users
across departments and throughout an enterprise to collaborate in the
authoring, compilation, distribution, publishing and reuse of compliance
information and regulatory submissions. We designed our CoreDossier software
products to utilize advanced technologies, such as corporate intranets and the
Internet, and to meet emerging e-compliance requirements and standards. We also
provide our customers with in-depth industry-specific compliance expertise that
allows us to better serve their compliance needs and requirements. We believe
our solution enables our customers to realize a return on their investment by
reducing the cost and burden of compliance while also reducing the time
required to bring new products and services to market.
Traditionally, businesses have used a manual process to create paper-based
compliance documentation and submissions. In an effort to address the growing
complexity of regulatory compliance and to reduce the costs associated with the
compliance process, businesses are increasingly adopting electronic compliance
processes. We believe the initial systems and approaches used for electronic
compliance have not adequately addressed the need for a flexible, enterprise-
wide solution that can effectively manage the complex compliance process.
The CoreDossier product family includes the CoreDossier platform, industry-
specific modules and the CoreDossier application programming interfaces, or
APIs. The CoreDossier platform provides the foundation for managing compliance
processes throughout an enterprise. For example, CoreDossier enables users to
input information stored throughout the enterprise in different formats,
including paper files, word processing files, spreadsheets, graphics programs
and proprietary software. In addition, CoreDossier enables users to output
information in numerous formats, including the electronic formats most commonly
used in the compliance submission process. The industry-specific modules work
with the CoreDossier platform to perform compliance functions designed to meet
the regulatory requirements of particular industries. The CoreDossier APIs
enable third parties to develop custom applications and extend access to
additional external information sources.
As of April 30, 1999 we have licensed versions of our CoreDossier products
to 46 customers in the pharmaceutical and biotechnology industry, the chemical
industry and the utilities industry. Our customers include Pfizer Inc., Glaxo-
Wellcome Inc., Rhone-Poulenc Rorer Pharmaceuticals Inc., Bayer Corporation, and
Baltimore Gas & Electric.
Our headquarters are located at 1300 Virginia Drive, Suite 125, Fort
Washington, PA 19034. Our telephone number is 215/619-6000. We were
incorporated in Delaware in April 1994 under the name Electronic Submission
Publishing Systems, Inc. We changed our name to ESPS, Inc. on March 30, 1999.
We maintain a world wide web site at www.ESPS.com. Information contained on our
web site does not constitute a part of this prospectus.
3
<PAGE>
The Offering
<TABLE>
<S> <C>
Common stock offered by ESPS........ 3,500,000 shares
Common stock offered by selling
stockholders....................... 500,000 shares
Common stock to be outstanding after
this offering...................... 15,362,182 shares
Use of proceeds..................... For working capital and general corporate
purposes, including increased domestic and
international sales and marketing
expenditures, product development
expenditures, professional services
organization expenditures and capital
expenditures.
Proposed Nasdaq National Market
symbol............................. ESPS
</TABLE>
------------
Unless otherwise noted, the information in this prospectus takes into
account the conversion of all outstanding shares of series A preferred stock
into shares of common stock upon the consummation of this offering. The
information in this prospectus also takes into account a 1.45 for 1 stock split
which will be effective immediately before the effectiveness of this
registration statement. In addition, unless otherwise indicated, the
information included in this prospectus does not take into account the possible
sale of additional shares of common stock to the underwriters under their over-
allotment option. All references to fiscal years refer to the twelve-month
period ended March 31 of that year.
CoreDossier(R) is a registered U.S. trademark of ESPS. ESPS(TM), CADDY
Compiler(TM), CDER Compiler(TM), DAMOS Compiler(TM), CoreDocket(TM), Electronic
Compliance Management(TM) and the ESPS logo are also trademarks of ESPS. This
prospectus also contains trademarks and tradenames of other companies.
4
<PAGE>
Summary Financial Data
(in thousands, except per share data)
This table summarizes our statement of operations data and our balance sheet
data. The pro forma balance sheet data and pro forma as adjusted balance sheet
data below reflect the conversion of all outstanding shares of preferred stock
into common stock at the consummation of the offering. The pro forma as
adjusted balance sheet data also reflect the sale of 3,500,000 shares of common
stock in the offering by ESPS and the receipt and application of the net
proceeds of the offering.
<TABLE>
<CAPTION>
Period from
April 29, 1994 Fiscal Years Ended March 31,
(inception) ---------------------------------
to March 31, 1995 1996 1997 1998 1999
----------------- ------ ------- ------- -------
<S> <C> <C> <C> <C> <C>
Statement of Operations
Data:
Total revenues........... $ 102 $ 753 $ 1,068 $ 8,646 $17,949
Income (loss) from
operations.............. (440) (772) (2,774) 2,309 2,282
Income tax provision
(benefit)............... -- -- -- (514) 936
Net income (loss)........ (435) (754) (2,813) 2,875 1,476
Earnings (loss) per
share:
Basic.................. $ (0.30) $(0.76) $ (3.51) $ 3.81 $ 0.57
Diluted................ (0.30) (0.76) (3.51) 0.25 0.10
Shares used in
computation of earnings
(loss) per share:
Basic.................. 1,450 989 801 754 2,575
Diluted................ 1,450 989 801 11,326 14,641
Pro forma earnings per
share:
Basic.................. $ 0.13
Diluted................ 0.10
Shares used in
computation of pro forma
earnings per share:
Basic.................. 11,275
Diluted................ 14,641
</TABLE>
<TABLE>
<CAPTION>
March 31, 1999
-----------------------------
Pro Forma
Actual Pro Forma As Adjusted
------- --------- -----------
<S> <C> <C> <C>
Balance Sheet Data:
Cash and cash equivalents....................... $ 1,812 $ 1,812 $32,722
Working capital................................. 4,366 4,366 35,193
Total assets.................................... 11,896 11,896 42,110
Preferred stock................................. 6 -- --
Stockholders' equity............................ 6,724 6,724 37,634
</TABLE>
5
<PAGE>
RISK FACTORS
You should carefully consider the following risk factors and all other
information contained in this prospectus before purchasing our common stock.
Investing in our common stock involves a high degree of risk. Any of the
following risks could adversely affect our business, financial condition and
results of operations and could result in a complete loss of your investment.
The risks and uncertainties described below are not the only ones we face.
Additional risks and uncertainties not presently known to us or that we
currently deem immaterial also may impair our business operations.
Risks Related to Our Business
Fluctuations in our operating results, particularly compared to the
expectations of market analysts and investors, could cause volatility in our
common stock price
Our operating results have varied greatly in the past, and we expect that
they will continue to vary in the future as a result of a number of factors,
many of which are beyond our control. Therefore, we do not believe that period-
to-period comparisons of our operating results are meaningful. However,
securities analysts and investors may set expectations about our business based
upon past operating results. Consequently, if our operating results do not
follow past trends, our stock price is likely to decline.
We base our decisions regarding operating expenses on anticipated revenue
trends. Because many of our expenses are fixed, a delay in recognizing revenues
from even a limited number of licensing transactions could cause our operating
results to vary significantly from quarter to quarter and could result in
reduced income from operations or operating losses. We anticipate that our
fixed expenses will progressively increase as we expand our operations. Because
we do not know when, or if, our potential customers will place orders and
finalize contracts, we cannot accurately predict our revenue for future
quarters. To the extent these expenses are not followed by increased revenues,
our operating results will suffer. For example, our net income for the quarter
ended December 31, 1998 decreased as a result of increased operating expenses.
Seasonal trends may harm our quarterly operating results. We experience
significant seasonality in software license revenues and expect seasonal trends
to continue in the future. In recent years, our revenues in the fourth quarter
of our fiscal year have generally been higher than our revenues in each of the
prior three quarters and higher than our revenues in the first quarter of the
following fiscal year. We believe that the efforts of our direct sales force to
meet or exceed fiscal year-end sales quotas as well as customer buying patterns
and budgeting cycles are the primary causes of these fluctuations.
As a result of these factors, our annual or quarterly results of operations
may not meet the expectations of securities analysts and investors, which would
likely cause the price of our common stock to decline.
We have a limited operating history and face significant risks often faced by
early stage companies, which could limit our ability to generate revenues
We commenced operations in April 1994 and commercially released the initial
version of CoreDossier in November 1995. As a result of our limited operating
history, we face significant risks and uncertainties related to the early stage
of ESPS. To address these risks and uncertainties, we must:
.Successfully implement our sales and marketing strategy;
.Respond to competitive developments in the marketplace;
.Expand into targeted industries;
.Attract, retain and motivate qualified personnel; and
.Develop and upgrade our products and technologies more rapidly than our
competitors.
6
<PAGE>
If we are unsuccessful in our efforts in any or all of these areas we may be
unable to obtain sufficient revenues.
A small number of our license agreements account for a large portion of our
total revenues and our inability to fulfill our obligations under any
significant license agreements could harm our operating results
We derive a significant portion of our software license revenues from a
small number of license agreements. For example, four customers accounted for
100% of total revenues for the fiscal year ended March 31, 1997, three
customers accounted for 46% of total revenues for the fiscal year ended March
31, 1998 and one customer accounted for 11% of total revenues for the year
ended March 31, 1999. We expect that a significant portion of our revenues will
continue to be derived from a limited number of customers which may vary from
year to year. Our operating results could be harmed if we are unable to
complete one or more substantial license sales in any future period.
Because we rely and will continue to rely on our CoreDossier product family for
substantially all of our revenues, difficulties relating to CoreDossier will
harm our results of operations
Factors that adversely affect the pricing of, or demand for, the CoreDossier
product family will result in a decrease in our revenues. As of March 31, 1999,
substantially all of our revenues were generated from the sale of CoreDossier
products and related maintenance, training and implementation services. We
expect revenues from the sale of CoreDossier products and services to continue
to account for substantially all of our revenues in the future. Our future
growth will depend upon broader market acceptance of the CoreDossier family of
products.
If we are unable to develop and introduce new and improved CoreDossier
products in a timely manner, our business, financial condition and results of
operations would be harmed. Our future financial performance will substantially
depend on our ability to successfully deploy current versions of our
CoreDossier products and to develop, introduce and gain market acceptance of
new and enhanced versions of our CoreDossier products. Competition or
technological change could decrease demand for, or market acceptance of,
CoreDossier. Any decrease in demand or market acceptance or increase in
competition will result in a decrease in revenues.
We may not be able to successfully market and sell our products and services in
our targeted industries and therefore may not generate revenues from these
industries
We have historically sold most of our products and services to businesses in
the pharmaceutical and biotechnology industry. We have recently begun selling
our products and services to businesses in the chemical industry and the
utilities industry. Our business strategy includes targeting industries in
which we do not currently sell products and services, such as the financial
services, insurance, and discrete manufacturing industries. We may not
experience the same level of sales in these industries as in the pharmaceutical
and biotechnology industry.
Our success in these industries will depend upon many factors, including:
.Our ability to obtain expertise in these industries;
.Our ability to develop industry-specific modules for these industries; and
.Market acceptance of our products and services in these industries.
If we are unable to adequately address these factors we may not successfully
market and sell our products and services in these targeted industries.
Consequently, we may not generate revenues. In addition, as we develop new
industry-specific products, we may begin competing with companies we have not
competed against in the past. These companies may have greater experience and
expertise in these
7
<PAGE>
industries. If we are unable to compete successfully against these new
competitors our business and results of operations would be harmed.
Because our products operate exclusively on the Windows NT platform, our
business would be harmed if the Windows NT platform fails to grow or fails to
meet the technical demands of our products
We designed our products to operate exclusively on the Windows NT platform.
Acceptance of the Windows NT platform may not continue to increase in the
future. If the market for Windows NT fails to grow or grows more slowly than we
currently expect, or if this market is affected by delays in the release of new
or enhanced products, we may not sell as many of our products as we anticipate,
which would harm our business. In addition, we must adapt our product to work
with new or enhanced Windows NT products.
In addition, the performance of our products partly depends on the technical
capabilities of the Windows NT platform. If the Windows NT platform does not
meet the technical demands of our products, the performance of our products may
be limited and, as a result, our business may be harmed.
We may be unable to expand our sales and professional services organizations,
which may hinder our ability to grow and meet customer demands
If we fail to expand our direct sales force or establish other distribution
channels, or if we fail to expand our professional services organization, our
business could be harmed. Our future revenue growth will depend, in large part,
on recruiting and training additional personnel for our sales and professional
services organizations. We have experienced, and may continue to experience,
difficulty in recruiting qualified sales and professional services personnel.
We may be unable to successfully expand our direct sales force or other
distribution channels. Even if we do expand, an increase in our revenues may
not result. If we are unable to hire a number of highly trained professional
services personnel, we may be unable to meet customer demands for services.
This may harm our business and limit our ability to sell our products.
We are growing rapidly and effectively managing our growth may be difficult
We have significantly increased our employee base to meet increasing demand
for our products and services. As we expand into targeted new industries, we
expect to continue increasing our employee base. Our management and operations
have been strained by this growth and will continue to be strained should rapid
growth continue. To compete effectively and to manage future growth, we must
continue to improve our financial and management controls, reporting systems
and procedures on a timely basis. We must also expand, train and manage our
employee base. If we are not successful managing our growth, our business may
be harmed.
We may be unable to attract and retain the personnel we need to market and sell
our products and service our customers' needs
Our future performance will depend largely on the efforts and abilities of
our senior executives, key technical, professional services, sales and
marketing and managerial personnel. Our success will depend on our ability to
attract and retain these key employees in the future. The market for qualified
personnel is extremely competitive. The loss of any of our key personnel may
harm our business and we may not find qualified replacements for key personnel
who leave us.
We rely on our relationships with service vendors, the loss or failure of which
may harm our ability to market and sell our products
We have established relationships with a number of service vendors that are
important to the worldwide implementation, integration, development and
promotion of our products. Our business may be harmed if:
8
<PAGE>
.We are unable to develop and retain effective, long-term relationships
with these service vendors;
.We are unable to adequately train a sufficient number of service vendors;
.Our service vendors do not have or do not devote the resources necessary
to facilitate implementation of our products; or
.Our service vendors endorse a product or technology other than ours.
If we are unable to successfully maintain our existing relationships, or
develop new relationships, our business may be harmed.
We rely on technology licensed from a third party, the loss of which may harm
our ability to sell our products
We incorporate software licensed from Versant Object Technology Corporation
into our products. The license agreement expires in December 1999, subject to
automatic yearly renewal if it is not terminated by either party. Our inability
to maintain this license on commercially favorable terms could impair our
ability to sell our products. We will need to replace the technology if we lose
this license, which may take time and may be costly. In addition, we depend on
Versant's ability to deliver and support reliable products. Versant must
enhance their current products, develop new products on a timely and cost-
effective basis, and respond to emerging industry standards and other
technological changes. We may need to replace this software if Versant fails to
update its product, or its product becomes obsolete or incompatible with future
versions of our products. Our sales may decline if we are unable to replace the
functionality provided by Versant's software.
We may be unable to adequately protect our proprietary rights, which could
result in their unauthorized use
Our ability to market and sell our products could be harmed if we do not
protect our proprietary rights. Despite our efforts to protect our proprietary
rights, unauthorized parties may copy aspects of our products and obtain and
use information we regard as proprietary. Other parties may breach
confidentiality agreements and other protective contracts. We may not become
aware of these breaches or have adequate remedies available. We may need to
litigate claims against third parties who infringe our intellectual property
rights, which could be costly.
We have not secured registration of all our marks in the United States and
have not pursued registration in any foreign country. The laws of some foreign
countries do not protect our proprietary rights to the same extent as do the
laws of the United States. Effective copyright, trademark and trade secret
protection may not be available in other jurisdictions. If we cannot adequately
protect our proprietary rights, our business may be harmed.
Our products may infringe proprietary rights of others, which may subject us to
costly claims and impair our ability to market and sell our products
In the computer software market, there is frequent and substantial
intellectual property litigation. In addition, many parties are actively
developing collection, publication and distribution technologies, and are
seeking protection for these technologies, including seeking patent protection.
As a result, we believe that disputes over the ownership of these technologies
are likely to arise in the future. Furthermore, former employers of our present
and future employees may assert claims that these employees improperly
disclosed confidential or proprietary information to us. We cannot assure you
that our products do not infringe valid patents, copyrights or other
proprietary rights of third parties. Therefore, we may be subject to legal
proceedings and claims, including claims of alleged infringement of the
proprietary rights of others.
9
<PAGE>
Any claims relating to our infringement of proprietary rights, even if not
meritorious, could result in costly litigation, diversion of management's
attention and resources, product redevelopment, or delays in product shipments.
If these claims are successful, we may be unable to market and sell our
products. In addition, we could be required to pay damages or enter into
license agreements. We may be unable to obtain any required licenses on
commercially favorable terms, if at all, or unable to avoid litigation or
settle without substantial expense and damage awards.
Potential year 2000 problems could harm our business
Many computer systems are not capable of distinguishing 21st century dates
from 20th century dates. As a result, beginning on January 1, 2000, computer
systems and software used by many companies and organizations in a wide variety
of industries will produce erroneous results or fail unless they have been
modified or upgraded to process date information correctly. Significant
uncertainty exists in the software industry and other industries concerning the
scope and magnitude of problems associated with the century change. Based on
our assessment to date, we believe the current versions of our software
products are year 2000 compliant, that is, they are capable of adequately
distinguishing 21st century dates from 20th century dates. However, our
products are generally integrated into enterprise systems involving
sophisticated hardware and complex software products that may not be year 2000
compliant.
We may face claims based on year 2000 problems in other companies' products,
or issues arising from the integration of multiple products within an overall
system. We also need to ensure year 2000 compliance of our own internal
computer systems. We do not expect the total cost of year 2000 compliance to be
material to our business. However, we and our customers and suppliers may not
identify and remediate all significant year 2000 problems on a timely basis.
Remediation efforts may involve significant time and expense and unremediated
problems could harm our business.
In addition, we may experience reduced sales of our products as potential
customers reduce their budgets for software due to increased expenditures on
their own year 2000 compliance efforts. See "Management's Discussion and
Analysis of Financial Condition and Results of Operations--Year 2000
Compliance."
Risks Related to the Electronic Compliance Management Market
We may be unable to compete successfully in the rapidly evolving electronic
compliance management market
The market for electronic compliance management solutions is rapidly
changing. As the market changes, new businesses and solutions will enter the
market, creating new competition. We may be unable to compete successfully in
this newly emerging market and, as a result, our business may be harmed. We
expect that competition will increase as emerging companies enter the e-
compliance management market and as new products and technologies are
introduced. Increased competition may result in price reductions, lower gross
margins and loss of our market share, any of which could harm our business.
If the relatively new electronic compliance management market does not develop
and grow as we anticipate, we will be unable to generate expected revenues
The market for electronic compliance management solutions is still emerging,
and continued growth in demand for and acceptance of compliance management
products in general and our products and services in particular remains
uncertain. If the electronic compliance management market does not grow or
grows more slowly than we currently anticipate, sales of our products and
services may suffer. Even if this market grows, businesses may purchase our
competitors' products or develop their own compliance management solutions. We
believe that many of our potential customers are not fully aware of the
availability or benefits of our electronic compliance management solution.
10
<PAGE>
In addition, the anticipated growth of the electronic compliance management
market may depend on the growth of the Internet. Increased use of the Internet
largely depends upon available Internet security, bandwidth and reliability. If
use of the Internet by businesses does not increase, the market for our
products and services may not grow as we expect and our business may be harmed.
If we are unable to respond to changes in the electronic compliance management
market, we may be unable to successfully market and sell our products
Our market is characterized by rapid technological change, frequent new
product introductions, changes in compliance regulation, changes in customer
demands and evolving industry standards. Existing products can become obsolete
and unmarketable as new technologies are introduced, compliance regulations
change and new industry standards emerge. As a result, we cannot estimate the
life cycles of our products. We may need to modify our products when third
parties modify the software that we integrate into our products. To be
successful, we must continue to enhance our current product line and develop
new products that successfully respond to these developments. Our business may
be harmed if we delay release of our products and product enhancements or if
these products and product enhancements fail to achieve market acceptance when
released. In addition, customers may defer or forego purchases of products if
we, our competitors or major hardware, systems or software vendors introduce or
announce new products or product enhancements. These events may interfere with
our ability to market and sell our products, which would harm our results of
operations.
Risks Related to this Offering
Our stock price may be volatile and you may be unable to resell your shares at
or above the initial public offering price
Before this offering, no public market existed for our common stock. The
initial public offering price of our common stock will be determined through
negotiations among us, the selling stockholders and the representatives of the
underwriters. The market price for our shares of common stock is likely to be
volatile and, if you decide to purchase our shares, you may be unable to resell
your shares at or above the initial public offering price due to a number of
factors, including:
.Actual or anticipated variations in quarterly operating results;
.The loss of significant orders;
.Changes in earnings estimates by analysts;
.Announcements of technological innovations or new products by our
competitors;
.Changes in the software and computer industries.
In addition, the stock market has experienced extreme price and volume
fluctuations that affected the market price of many companies in the software
industry and that have been unrelated to these companies' operating
performances. These broad market fluctuations could reduce the market price of
our common stock.
Our officers, directors and affiliates will be able to control matters
requiring stockholder approval and they may approve actions that you voted to
disapprove and disapprove actions that you voted to approve
Following the closing of this offering, our officers, directors and
affiliated entities together will beneficially own approximately 66% of the
outstanding shares of our common stock, 62% if the underwriters' over-allotment
option is exercised in full. As a result, these stockholders will be able to
control all matters requiring stockholder approval and our management and
affairs. These stockholders may have interests that
11
<PAGE>
differ from yours and they may approve actions that you voted to disapprove and
disapprove actions that you voted to approve. Matters that typically require
stockholder approval include:
.Election of directors;
.Approval of a merger or consolidation; and
.Approval of a sale of all or substantially all of our assets.
In addition, this concentration of ownership may delay, deter or prevent
acts that would result in a change of control, which in turn could reduce the
market price of our common stock.
Future sales of our common stock may depress our stock price
Sales of a substantial number of shares of common stock in the public market
following this offering could reduce the market price of our common stock. All
the shares sold in this offering will be freely tradable. The remaining shares
of common stock outstanding after this offering will be available for sale in
the public market as follows:
<TABLE>
<CAPTION>
Number of Shares Date of Availability for Sale
- ---------------- -----------------------------
<S> <C>
0 shares............................. Date of this prospectus
132,708 shares....................... 90 days after the date of this prospectus
11,229,475 shares.................... 180 days after the date of this prospectus
</TABLE>
We have granted options to purchase shares of our common stock under our
1995 stock incentive plan, and intend to register the shares of common stock
issuable or reserved for issuance under the plan upon the completion of this
offering.
New investors in our common stock will experience immediate and substantial
dilution
The initial public offering price is substantially higher than the book
value per share of our common stock. Investors purchasing our common stock in
this offering will, therefore, incur immediate dilution of $7.55 in net
tangible book value per share of our common stock. This dilution figure deducts
the estimated underwriting discounts and commissions and estimated offering
expenses payable by ESPS from the initial public offering price. Investors will
incur additional dilution upon the exercise of outstanding stock options. See
"Dilution."
12
<PAGE>
FORWARD-LOOKING STATEMENTS
This prospectus contains forward-looking statements that address market
acceptance of our products and services, expansion into new targeted
industries, product development, sales and marketing strategies, development
and maintenance of strategic alliances, technological advancement, global
expansion, use of proceeds, the costs and timing of our year 2000 compliance
program, projected capital expenditures, liquidity, and availability of
additional funding sources. These statements may be found in the sections of
this prospectus entitled "Prospectus Summary," "Risk Factors," "Use of
Proceeds," "Management's Discussion and Analysis of Financial Condition and
Results of Operations," "Our Business" and in this prospectus generally. Our
actual results could differ materially from those anticipated in these forward-
looking statements as a result of the factors discussed in "Risk Factors" and
elsewhere in this prospectus. We are not obligated to publicly update any
forward-looking statements for any reason, even if new information becomes
available or events occur in the future.
13
<PAGE>
USE OF PROCEEDS
We expect to receive approximately $30.9 million in net proceeds from the
sale of the 3,500,000 shares of common stock in this offering, assuming that
the initial public offering price is $10.00 per share, the underwriters'
discount is $2.5 million and our offering expenses are $1.6 million. We expect
to receive a total of approximately $33.8 million if the underwriters' over-
allotment option is exercised in full. We will not receive any proceeds from
the sale of common stock by the selling stockholders.
We intend to use the net proceeds of this offering for working capital and
general corporate purposes, including increased domestic and international
sales and marketing expenditures, product development expenditures,
expenditures related to the expansion of our professional services organization
and capital expenditures made in the ordinary course of business. We may also
use a portion of the net proceeds to acquire additional businesses, products
and technologies or to establish joint ventures that we believe will complement
our business. However, we have no specific plans, agreements or commitments,
oral or written, to do so. We are not engaged in any negotiations for any
acquisition or joint venture. The amounts that we actually expend for working
capital purposes will vary depending on a number of factors, including future
revenue growth, if any, the amount of cash we generate from operations and the
progress of our product development efforts. As a result, we will retain broad
discretion in the allocation of the net proceeds of this offering. Pending the
uses described above, we will invest the net proceeds in short-term, interest-
bearing, investment-grade securities.
DIVIDEND POLICY
We have never paid cash dividends on our common stock. We intend to retain
any future earnings to fund the development and growth of our business.
Therefore, we do not anticipate paying any cash dividends in the future.
14
<PAGE>
CAPITALIZATION
The following table describes our capitalization as of March 31, 1999. We
present capitalization:
.On an actual basis;
.On a pro forma basis to give effect to the automatic conversion of all
outstanding shares of preferred stock into common stock upon the
consummation of the offering; and
.On a pro forma as adjusted basis to give effect to the automatic
conversion of all outstanding shares of preferred stock into common
stock upon the consummation of the offering and to reflect the sale of
the shares in the offering and our receipt of the estimated net proceeds
from the sale of 3,500,000 shares of common stock offered in the
offering at an assumed initial public offering price of $10.00 per
share, after deducting underwriting discounts and commissions and
estimated offering expenses.
<TABLE>
<CAPTION>
March 31, 1999
--------------------------------
Pro Forma
Actual Pro Forma As Adjusted
-------- ----------- -----------
(in thousands)
<S> <C> <C> <C>
Stockholders' equity:
Preferred stock, 6,000,000 shares
authorized; 6,000,000 shares issued and
outstanding actual; no shares issued and
outstanding pro forma and pro forma as
adjusted................................... $ 6 $ -- $ --
Common stock, 50,000,000 shares authorized,
3,154,221 shares issued and outstanding
actual; 11,854,221 shares issued and
outstanding pro forma; and 15,354,221
issued and outstanding pro forma as
adjusted................................... 3 12 15
Additional paid-in capital.................. 6,570 6,567 37,474
Retained earnings........................... 349 349 349
Deferred stock compensation................. (204) (204) (204)
------ ------ -------
Total stockholders' equity................ 6,724 6,724 37,634
------ ------ -------
Total capitalization...................... $6,724 $6,724 $37,634
====== ====== =======
</TABLE>
This table is based on the number of outstanding shares as of March 31, 1999
and does not include the following:
. 221,464 shares available for issuance under our 1995 stock incentive plan;
. 3,874,317 shares of common stock issuable upon the exercise of outstanding
options at a weighted average exercise price of $1.77 per share, of which
options to purchase 767,572 shares of common stock were exercisable at a
weighted average exercise price of $0.07 per share; and
Please read the capitalization table together with the sections of this
prospectus entitled "Selected Financial Data," "Management's Discussion and
Analysis of Financial Condition and Results of Operations" and the financial
statements and related notes included in this prospectus.
15
<PAGE>
DILUTION
As of March 31, 1999, our net tangible book value on a pro forma basis
giving effect to the conversion of our preferred stock into common stock upon
consummation of this offering was approximately $6.7 million or $0.57 per share
of common stock. Net tangible book value per share represents the amount of our
total tangible assets reduced by the amount of our total liabilities, divided
by the number of shares of common stock outstanding. As of March 31, 1999, our
net tangible book value, on a pro forma basis as adjusted for the sale of
3,500,000 shares of common stock by ESPS, based on an assumed initial public
offering price of $10.00 per share and after deducting the underwriting
discounts and commissions and other estimated offering expenses, would have
been approximately $2.45 per share. This represents an immediate increase of
$1.88 per share to existing stockholders and an immediate dilution of $7.55 per
share to new investors. The following table illustrates this per share
dilution:
<TABLE>
<S> <C> <C>
Assumed initial public offering price per share................ $10.00
Pro forma net tangible book value per share at March 31,
1999........................................................ $0.57
Pro forma increase per share attributable to new investors... 1.88
Pro forma net tangible book value per share after the
offering.................................................... 2.45
------
Dilution per share to new investors............................ $7.55
======
</TABLE>
The following summarizes on a pro forma basis as of March 31, 1999, the
differences between the total consideration paid and the average price per
share paid by the existing stockholders and the new investors with respect to
the number of shares of common stock purchased from us based on an assumed
initial public offering price of $10.00 per share.
<TABLE>
<CAPTION>
Shares Purchased Total Consideration Average
------------------ ------------------- Price
Number Percent Amount Percent Per Share
---------- ------- ----------- ------- ---------
<S> <C> <C> <C> <C> <C>
Existing stockholders.......... 11,854,221 77% $ 6,189,000 15% $ 0.52
New investors.................. 3,500,000 23 35,000,000 85 10.00
---------- --- ----------- ---
Total........................ 15,354,221 100% $41,189,000 100%
========== === =========== ===
</TABLE>
16
<PAGE>
SELECTED FINANCIAL DATA
(in thousands, except per share data)
The tables that follow present portions of our financial statements and are
not complete. You should read the following selected financial data in
conjunction with our financial statements and related notes and "Management's
Discussion and Analysis of Financial Condition and Results of Operations"
included elsewhere in this prospectus. We derived the statement of operations
data for the fiscal years ended March 31, 1997, 1998 and 1999, and the balance
sheet data as of March 31, 1998 and 1999 from our financial statements that
have been audited by Ernst & Young LLP, independent auditors, which are
included elsewhere in this prospectus. We derived the statement of operations
data for the period from inception, April 24, 1994, to March 31, 1995 and the
fiscal year ended March 31, 1996 and the balance sheet data as of March 31,
1995, 1996 and 1997 from audited financial statements, that are not included in
this prospectus. Pro forma balance sheet data reflects the automatic conversion
of all outstanding shares of preferred stock into common stock upon
consummation of this offering. You should not rely on our historical results as
an indicator of our future results. See note 11 of the notes to financial
statements for an explanation of the method used to calculate pro forma basic
and diluted earnings per share.
<TABLE>
<CAPTION>
Period from
April 24, 1994 Fiscal Years Ended March 31,
(inception) --------------------------------
to March 31, 1995 1996 1997 1998 1999
----------------- ------ ------- ------ -------
<S> <C> <C> <C> <C> <C>
Statement of Operations
Data:
Revenues:
Software licenses....... $ 100 $ 721 $ 648 $6,814 $13,454
Services and
maintenance............ 2 32 420 1,832 4,495
----- ------ ------- ------ -------
Total revenues........ 102 753 1,068 8,646 17,949
Cost of revenues:
Software licenses....... -- -- 68 258 298
Services and
maintenance............ -- 72 506 1,589 3,193
----- ------ ------- ------ -------
Total cost of
revenues............. -- 72 574 1,847 3,491
----- ------ ------- ------ -------
Gross profit.............. 102 681 494 6,799 14,458
Operating expenses:
Research and
development............ 208 725 1,407 1,978 3,829
Sales and marketing..... 32 95 714 1,283 5,185
General and
administrative......... 302 633 1,147 1,229 3,162
----- ------ ------- ------ -------
Total operating
expenses............. 542 1,453 3,268 4,490 12,176
----- ------ ------- ------ -------
Income (loss) from
operations............... (440) (772) (2,774) 2,309 2,282
Interest, net............. 5 18 (39) 52 130
----- ------ ------- ------ -------
Income (loss) before
income taxes............. (435) (754) (2,813) 2,361 2,412
Income tax provision
(benefit)................ -- -- -- (514) 936
----- ------ ------- ------ -------
Net income (loss)......... $(435) $ (754) $(2,813) $2,875 $ 1,476
===== ====== ======= ====== =======
</TABLE>
17
<PAGE>
<TABLE>
<CAPTION>
Period from
April 24, 1994 Fiscal Years Ended March 31,
(inception) ---------------------------------
to March 31, 1995 1996 1997 1998 1999
----------------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C>
Earnings (loss) per share:
Basic................... $ (0.30) $(0.76) $(3.51) $ 3.81 $ 0.57
Diluted................. (0.30) (0.76) (3.51) 0.25 0.10
Shares used in computation
of earnings (loss) per
share:
Basic................... 1,450 989 801 754 2,575
Diluted................. 1,450 989 801 11,326 14,641
Pro forma earnings per
share:
Basic................... $ 0.13
Diluted................. 0.10
Shares used in computation
of pro forma earnings per
share:
Basic................... 11,275
Diluted................. 14,641
</TABLE>
<TABLE>
<CAPTION>
March 31, March 31, 1999
-------------------------- -----------------
1995 1996 1997 1998 Actual Pro Forma
---- ------ ------ ------- ------- ---------
<S> <C> <C> <C> <C> <C> <C>
Balance Sheet Data:
Cash and cash equivalents........ $435 $ 871 $2,311 $ 4,558 $ 1,812 $ 1,812
Working capital.................. 409 429 1,608 4,119 4,366 4,366
Total assets..................... 602 1,262 3,211 10,017 11,896 11,896
Preferred stock.................. 1 2 6 6 6 --
Stockholders' equity............. 547 786 1,962 4,896 6,724 6,724
</TABLE>
18
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
Overview
Our History of Operations
ESPS provides software solutions that enable businesses in highly regulated
industries to reduce the costs and overall burden associated with traditional
compliance processes. Our electronic compliance management solution utilizes
advanced technologies, such as corporate intranets and the Internet, and has
the ability to scale throughout an enterprise. The CoreDossier family of
software products and related services enables users to collaborate in the
authoring, compilation, distribution, publishing and reuse of compliance
information and regulatory submissions. In addition to advanced technology, we
provide our customers with in-depth industry-specific compliance expertise that
allows us to better understand their compliance needs and requirements.
ESPS was founded in April 1994. In our first fiscal year of operation, ended
March 31, 1995, we focused primarily on research and development activities.
From early in the fiscal year ended March 31, 1996 through the fiscal year
ended March 31, 1997, we began to recruit personnel, purchase operating assets,
market our products, build a direct sales force and expand our services
business. We commercially released CoreDossier in November 1995. Our revenues
totaled $753,000 in the fiscal year ended March 31, 1996 and $1.1 million in
the fiscal year ended March 31, 1997. We generated net losses of $754,000 in
the fiscal year ended March 31, 1996 and $2.8 million in the fiscal year ended
March 31, 1997.
In the fiscal year ended March 31, 1997, we substantially expanded our
operations to capitalize on our opportunity within the rapidly emerging
compliance management market. We decided to accelerate our investments in
marketing, sales, professional services, product development and our general
and administrative infrastructure. As a result, from March 31, 1996 to March
31, 1999, we have:
.Opened two domestic field sales offices;
.Entered the European market by opening a direct sales office in the United
Kingdom; and
.Released three major upgrades to CoreDossier and two industry-specific
modules.
We believe these investments have been critical to our growth to date. Our
revenues were $8.6 million for the fiscal year ended March 31, 1998,
representing an increase of 710% from the fiscal year ended March 31, 1997.
These revenues grew to $17.9 million for the fiscal year ended March 31, 1999
representing an increase of 108% over the prior fiscal year. These investments
increased our operating expenses by $1.2 million, or 37%, for the fiscal year
ended March 31, 1998 over fiscal year 1997 and $7.7 million, or 171% for the
fiscal year ended March 31, 1999 over fiscal year 1998. However, we remained
profitable with income from operations of $2.3 million for the fiscal year
ended March 31, 1999, which is the same amount that was reported for the prior
fiscal year ended March 31, 1998. We have been profitable for the last six
consecutive quarters and, as of March 31, 1999, had retained earnings of
$349,000. We anticipate that our operating expenses will increase substantially
in the future as we continue to expand our product development, sales and
marketing, professional services and administrative staffs.
Source of Revenues and Revenue Recognition Policy
We generate revenues through software licenses and services and maintenance.
Software licenses revenues are generated from licensing the rights to use our
products. Services and maintenance revenues are generated from sales of
customer support services contracts and consulting and training services
performed for customers that license our products.
19
<PAGE>
Revenues from the sale of software licenses are recognized upon shipment of
software when persuasive evidence of an agreement exists, collection is
probable, the fee is fixed or determinable, and vendor-specific objective
evidence exists to allocate the total fee to elements of the arrangement.
Vendor-specific objective evidence is typically based on the price charged when
an element is sold separately, or, in the case of an element not yet sold
separately, the price established by authorized management, if it is probable
that the price, once established by authorized management, will not change
before market introduction. Elements included in multiple element arrangements
could consist of software products, upgrades, enhancements, customer support
services, or consulting services. If an acceptance period is required, revenues
are recognized upon the earlier of customer acceptance or the expiration of the
acceptance period.
Revenues from maintenance are recognized ratably over the term of the
customer support contract, typically one year. Consulting revenues are
primarily related to implementation services performed on a time-and-materials
basis under separate service arrangements related to the installation of our
software products. Revenues from consulting and training services are
recognized as services are performed. If a transaction includes both license
and service elements, license fee revenues are recognized on shipment of the
software, provided services do not include significant customization or
modification of the base product, and the software is not subject to acceptance
criteria.
Our revenue recognition policy is in accordance with American Institute of
Certified Public Accountants' Statement of Position 97-2, "Software Revenue
Recognition."
Our Results of Operations
We believe that period-to-period comparisons of our operating results are
not meaningful. You should not rely on them to predict our future performance.
You should consider our prospects in light of the risks, expenses and
difficulties frequently encountered by companies in new and rapidly evolving
markets. However, we may not be able to successfully address such risks and
difficulties. In addition, although we have experienced significant revenue
growth recently, this revenue growth may not continue, and we may not maintain
profitability in the future. Our future operating results will depend on many
factors, including:
. Demand for our products and services;
. Product and price competition;
. Variability in the mix of our software licenses revenues and services and
maintenance revenues;
. Variability in the mix of services that we perform and those performed by
third-party service providers;
. Success in expanding our direct sales force and professional services
organization and implementing indirect distribution channels;
. Our ability to develop and market new and enhanced products on a timely
basis;
. Timing of our new product introductions and product enhancements or those
of our competitors;
. Continued purchases by our existing customers, including additional
software licenses and services and maintenance contracts;
. International sales;
. The loss of any key employees and timing of our new hires;
. Significant downturns in the software industry, particularly when general
economic conditions decline and spending on management information
systems decreases;
. The fiscal or quarterly budget cycles of our customers;
. The efforts of our direct sales force to meet or exceed quarterly or
fiscal year-end sales quotas; and
. The effects of year 2000 issues on customers' purchasing decisions.
20
<PAGE>
The following table presents statement of operations data as a percentage
of total revenues:
<TABLE>
<CAPTION>
Percentage of Revenues
---------------------------
Fiscal Years
Ended March 31,
---------------------------
1997 1998 1999
-------- ------- -------
<S> <C> <C> <C>
Statement of Operations Data:
Revenues:
Software licenses.............................. 60.7% 78.8% 75.0%
Services and maintenance....................... 39.3 21.2 25.0
-------- ------- -------
Total revenues............................... 100.0 100.0 100.0
Cost of revenues:
Software licenses.............................. 6.4 3.0 1.7
Services and maintenance....................... 47.4 18.4 17.8
-------- ------- -------
Total cost of revenues....................... 53.8 21.4 19.5
-------- ------- -------
Gross profit..................................... 46.2 78.6 80.5
Operating expenses:
Research and development....................... 131.7 22.9 21.3
Sales and marketing............................ 66.9 14.8 28.9
General and administrative..................... 107.4 14.2 17.6
-------- ------- -------
Total operating expenses..................... 306.0 51.9 67.8
-------- ------- -------
Income (loss) from operations.................... (259.8) 26.7 12.7
Interest, net.................................... (3.7) 0.6 0.7
-------- ------- -------
Income (loss) before income taxes................ (263.5) 27.3 13.4
Income tax provision (benefit)................... -- (6.0) 5.2
-------- ------- -------
Net income (loss)................................ (263.5)% 33.3% 8.2%
======== ======= =======
</TABLE>
Comparison of Fiscal Year Ended March 31, 1999 and Fiscal Year Ended March 31,
1998
Revenues
Total revenues consist of software licenses revenues and services and
maintenance revenues. Services and maintenance revenues include professional
consulting, training and customer support services. Total revenues increased
108% from $8.6 million for the fiscal year ended March 31, 1998 to $17.9
million for the fiscal year ended March 31, 1999. For fiscal 1999, one
customer accounted for 11% of revenues and for fiscal 1998, three customers
accounted for 46% of revenues.
Software licenses revenues increased 97% from $6.8 million for the fiscal
year ended March 31, 1998 to $13.5 million for the fiscal year ended March 31,
1999. We attribute this increase to both increased market acceptance of
CoreDossier and $1.8 million of license fees from Adobe Systems, Incorporated.
In November 1997, we first delivered release 3.0 of CoreDossier. In June 1998,
we first delivered release 3.1 of CoreDossier and the CDER compiler module
specific to the pharmaceutical industry. In October 1998, we first delivered
the CADDY compiler module specific to the chemical industry.
Services and maintenance revenues increased 145% from $1.8 million for the
fiscal year ended March 31, 1998 to $4.5 million for the fiscal year ended
March 31, 1999. This increase resulted primarily from an increase in customer
support revenues of $1.4 million and an increase in consulting and training
services revenues of $1.3 million, as our customer base grew from 20 at March
31, 1998 to 43 at March 31, 1999. We expect the proportion of services and
maintenance revenues to total revenues to fluctuate in the future, depending
in part on our customers' direct use of third-party consulting and
implementation service providers and the ongoing renewals of customer support
contracts.
Revenues outside of the United States were $1.2 million for the fiscal year
ended March 31, 1998, and increased to $3.3 million for the fiscal year ended
March 31, 1999. This increase resulted primarily from the sale of our products
and services to existing customers with operations outside the United States.
21
<PAGE>
We do not believe that we can sustain the historical percentage growth rates
of software licenses and services and maintenance revenues.
Cost of Revenues
Cost of software licenses revenues. Cost of software licenses revenues
consists primarily of royalties we pay to third parties for the use of their
technology incorporated into our CoreDossier products. Cost of software
licenses revenues increased from $258,000 for the fiscal year ended March 31,
1998 to $298,000 for the fiscal year ended March 31, 1999. This increase
resulted primarily from an increase in the sale of our CoreDossier products.
Cost of software licenses revenues as a percentage of software licenses
revenues was 4% for fiscal 1998 and 2% for fiscal 1999. This decrease was
caused primarily by the license fees from Adobe Systems, Incorporated, which
did not require the third-party technology.
Cost of services and maintenance revenues. Cost of services and maintenance
revenues consists primarily of personnel costs related to professional services
and customer support.
Cost of services and maintenance revenues increased 101% from $1.6 million
for the fiscal year ended March 31, 1998 to $3.2 million for the fiscal year
ended March 31, 1999. This increase resulted primarily from the hiring and
training of 23 professional services and customer support personnel to support
our increased customer base. The number of our professional services and
customer support personnel increased from 15 at March 31, 1998 to 38 at March
31, 1999. Cost of services and maintenance revenues as a percentage of services
and maintenance revenues was 87% for fiscal 1998 and 71% for fiscal 1999. The
cost of services and maintenance revenues as a percentage of services and
maintenance revenues may vary among periods because of the mix of services we
provide which have different cost structures. The decrease in cost of services
and maintenance revenues as a percentage of services and maintenance revenues
resulted primarily from increased customer support revenues, which have higher
margins than the other services.
Operating Expenses
Research and development. Research and development expenses consist
primarily of salaries, benefits and depreciation for equipment for:
.Software developers;
.Quality assurance personnel; and
.Program managers and technical writers.
Research and development expenses increased 94% from $2.0 million for the
fiscal year ended March 31, 1998 to $3.8 million for the fiscal year ended
March 31, 1999. This increase resulted from an increase in the number of
software developers and quality assurance personnel, from 26 to 49 employees,
to support our product development and testing activities. Research and
development expenses represented 23% of our total revenues for fiscal 1998 and
21% for the fiscal year ended March 31, 1999. The decrease in research and
development expenses as a percentage of total revenues primarily reflects the
more rapid growth of our revenues compared to the investment in our research
and development activities during this period. We believe that we need to
significantly increase our research and development investment to expand our
market position and continue to expand our product line and penetrate other
targeted industries. Accordingly, we anticipate that research and development
expenses will increase in future periods.
Sales and marketing. Sales and marketing expenses consist primarily of:
.Salaries, commissions and bonuses earned by sales and marketing personnel;
.Travel and promotional expenses; and
.Communication costs related to direct sales efforts.
Sales and marketing expenses increased 304% from $1.3 million for the fiscal
year ended March 31, 1998 to $5.2 million for the fiscal year ended March 31,
1999. This increase resulted primarily from our increased investment in sales
and marketing infrastructure, both domestically and internationally. The
investments included increases in personnel-related expenses of $2.2 million,
recruiting fees of
22
<PAGE>
$219,000, travel and entertainment expenses of $516,000, and related facility
and equipment costs of $391,000. In addition, we increased marketing
activities, including trade shows, public relations, direct mail campaigns and
other promotional activities by $591,000. Sales and marketing expenses
represented 15% of our total revenues for fiscal 1998 and 29% for fiscal 1999.
We believe that we will need to significantly increase our sales and marketing
expenses to expand our market position, and further increase our penetration
and acceptance of our products in other targeted industries. Accordingly, we
anticipate that sales and marketing expenses will increase in future periods.
General and administrative. General and administrative expenses consist
primarily of salaries, benefits and related costs for executive, finance,
administrative, and information services personnel. These expenses also include
fees for legal, accounting, and consulting services.
General and administrative expenses increased 157% from $1.2 million for the
fiscal year ended March 31, 1998 to $3.2 million for the fiscal year ended
March 31, 1999. This increase resulted from an increase of $948,000 in hiring,
training and payroll related costs associated with the addition of 13
executive, finance and administrative personnel to support the growth of our
business and the amortization of deferred stock compensation expense as
described below. In addition, rent and uitilities expense increased $489,000
due to the additional office space and travel and entertainment costs increased
$149,000 due to the increased personnel. The number of our executive, finance
and administrative personnel grew from five at March 31, 1998 to 18 at March
31, 1999. General and administrative expenses represented 14% of our total
revenues for fiscal 1998 and 18% for fiscal 1999. We believe our general and
administrative expenses will continue to increase as we expand our
administrative staff, domestically and internationally, and incur expenses
associated with becoming a public company. We expect these expenses to include
annual and other public reporting costs, directors' and officers' liability
insurance, investor relations programs and legal, accounting and consulting
fees.
Deferred stock compensation expense increased from $0 for the fiscal year
ended March 31, 1998 to approximately $218,000 for the fiscal year ended March
31, 1999. Total deferred stock compensation at March 31, 1999 of $204,000 will
be amortized over the vesting periods of the options.
Interest, net. Interest, net is derived from interest income earned on our
cash and cash equivalents. Interest income increased 150% from $52,000 for the
fiscal year ended March 31, 1998 to $130,000 for the fiscal year ended March
31, 1999. This increase resulted from an increase in average cash held during
fiscal 1999.
Income taxes. Income taxes increased from a benefit of $514,000 for the
fiscal year ended March 31, 1998 to a provision of $936,000 for the fiscal year
ended March 31, 1999. This increase resulted primarily from the reversal of a
valuation allowance for fiscal 1998 for income tax benefits related to our net
operating losses in prior periods. The income tax provision for fiscal 1999
yielded an effective rate of 39%.
Comparison of Fiscal Year Ended March 31, 1998 and March 31, 1997
Revenues
Total revenues increased 710% from $1.1 million for the fiscal year ended
March 31, 1997 to $8.6 million for the fiscal year ended March 31, 1998. During
fiscal 1997, four customers accounted for 100% of total revenues. During fiscal
1998, three customers accounted for 46% of total revenues.
Software licenses revenues increased 952% from $648,000 for the fiscal year
ended March 31, 1997 to $6.8 million for the fiscal year ended March 31, 1998.
The increase in software licenses revenues from fiscal 1997 to fiscal 1998
primarily resulted from increased market acceptance of CoreDossier and
increased sales activities.
Services and maintenance revenues increased from $420,000 for the fiscal
year ended March 31, 1997, to $1.8 million for the fiscal year ended March 31,
1998 an increase of 336%. The increase in services and
23
<PAGE>
maintenance revenues from fiscal 1997 to fiscal 1998 resulted primarily from
the increase in consulting and training services of $1.1 million and customer
support revenues of $266,000 associated with the increased sales of our
software applications and the overall growth of our installed base of customers
from four at March 31, 1997 to 20 at March 31, 1998.
Revenues outside of the United States were insignificant for fiscal 1997.
Revenues outside of the United States were $1.2 million for fiscal 1998.
Cost of Revenues
Cost of software licenses revenues. Cost of software licenses revenues
increased from $68,000 for the fiscal year ended March 31, 1997 to $258,000 for
the fiscal year ended March 31, 1998, an increase of 279%. Cost of software
licenses revenues as a percentage of software licenses revenues was 10% for
fiscal 1997 and 4% for fiscal 1998.
Cost of services and maintenance revenues. Cost of services and maintenance
revenues were $506,000 for the fiscal year ended March 31, 1997. Cost of
services and maintenance revenues increased 214% to $1.6 million for the fiscal
year ended March 31, 1998. The increase from fiscal 1997 to fiscal 1998
resulted primarily from an increase of $649,000 in payroll and related expenses
due to the hiring and training of 11 professional services and customer support
personnel to support our growing customer base. The number of our professional
services and customer support personnel increased from 6 at March 31, 1997 to
15 at March 31, 1998. In addition, travel and entertainment expenses increased
$256,000 due to the increase in personnel. Cost of services and maintenance
revenues as a percentage of services and maintenance revenues was 120% for
fiscal 1997 and 87% for fiscal 1998. The decrease in cost of services and
maintenance revenues as a percentage of services and maintenance revenues from
fiscal 1997 to fiscal 1998 primarily reflected increased revenues both in
maintenance and consulting services.
Operating Expenses
Research and development. Research and development expenses increased 41%
from $1.4 million for the fiscal year ended March 31, 1997 to $2.0 million for
the fiscal year ended March 31, 1998. The increases in research and development
expenses from fiscal 1997 to fiscal 1998 related primarily to the increase in
the number of software developers and quality assurance personnel needed to
support our product development and testing activities. Research and
development costs represented 132% of our total revenues for fiscal 1997 and
23% for fiscal 1998. The decrease in research and development expenses as a
percentage of total revenues from fiscal 1997 to fiscal 1998 primarily reflects
the growth of our revenues in this period, which increased from $1.1 million
for fiscal 1997 to $8.6 million for fiscal 1998.
Sales and marketing. Sales and marketing expenses increased 80% from
$714,000 for the fiscal year ended March 31, 1997 to $1.3 million for the
fiscal year ended March 31, 1998. The increases in sales and marketing expenses
from fiscal 1997 to fiscal 1998 resulted primarily from our investment in sales
and marketing infrastructure, which included increases in personnel-related
expenses of $263,000, recruiting fees of $95,000, travel and entertainment
expenses of $66,000, and related facility and equipment costs of $41,000, as
well as increased marketing activities, including trade shows, public
relations, direct mail campaigns and other promotional expenses, which
increased by $103,000. Sales and marketing expenses represented 67% of our
total revenues for fiscal 1997, and 15% for fiscal 1998. The decrease in sales
and marketing expenses as a percentage of total revenues from fiscal 1997 to
fiscal 1998, reflects the growth of our revenues in this period from $1.1
million for fiscal 1997 to $8.6 million for fiscal 1998.
General and administrative. General and administrative expenses increased 7%
from $1.1 million for the fiscal year ended March 31, 1997 to $1.2 million for
the fiscal year ended March 31, 1998. The $100,000 increase in general and
administrative expenses from fiscal 1997 to fiscal 1998 resulted primarily from
increased compensation and consulting expenses. General and administrative
costs represented 107% of our
24
<PAGE>
total revenues for fiscal 1997, and 14% for fiscal 1998. The decrease in
general and administrative expenses as a percentage of total revenues was due
to the growth of our revenues in this period from $1.1 million for fiscal 1997
to $8.6 million for fiscal 1998.
Interest, net. Interest, net, increased from $39,000 of interest expense for
the fiscal year ended March 31, 1997 incurred in connection with bridge loans
to $52,000 of interest income for the fiscal year ended March 31, 1998. The
increase in fiscal 1998 resulted primarily from increases in interest income
resulting from higher average cash and cash equivalents.
Income taxes. We had no provision for income taxes for the fiscal year ended
March 31, 1997. As a result of the reversal of a valuation allowance for income
tax benefits related to the use of our net operating losses in prior years, we
realized a tax benefit of $514,000 in the fiscal year ended March 31, 1998.
Quarterly Results of Operations
The following table presents our unaudited quarterly results of operations
for the last eight fiscal quarters ended March 31, 1999. You should read the
following table in conjunction with our financial statements and the related
notes included in this prospectus. We have prepared this unaudited information
on the same basis as the audited financial statements. This table includes all
adjustments, consisting only of normal recurring adjustments, that we consider
necessary for a fair presentation of our financial position and operating
results for the quarters presented. You should not draw any conclusions about
our future results from the results of operations for any quarter.
<TABLE>
<CAPTION>
Quarters Ended
--------------------------------------------------------------------------
June 30, Sept. 30, Dec. 31, Mar. 31, June 30, Sept. 30, Dec. 31, Mar. 31,
1997 1997 1997 1998 1998 1998 1998 1999
-------- --------- -------- -------- -------- --------- -------- --------
(in thousands)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Statement of Operations
Data:
Revenues:
Software licenses...... $ 900 $ 909 $2,205 $2,800 $2,040 $3,684 $3,737 $3,993
Services and
maintenance........... 286 296 499 751 915 865 1,098 1,617
------- ------ ------ ------ ------ ------ ------ ------
Total revenues........ 1,186 1,205 2,704 3,551 2,955 4,549 4,835 5,610
Cost of revenues:
Software licenses...... 28 44 70 116 70 92 110 26
Services and
maintenance........... 211 303 507 568 587 553 881 1,172
------- ------ ------ ------ ------ ------ ------ ------
Total cost of
revenues............. 239 347 577 684 657 645 991 1,198
------- ------ ------ ------ ------ ------ ------ ------
Gross profit........... 947 858 2,127 2,867 2,298 3,904 3,844 4,412
Operating expenses:
Research and
development........... 393 446 555 584 701 894 1,183 1,051
Sales and marketing.... 187 203 384 509 587 963 1,476 2,159
General and
administrative........ 220 275 299 435 549 686 979 948
------- ------ ------ ------ ------ ------ ------ ------
Total operating
expenses............. 800 924 1,238 1,528 1,837 2,543 3,638 4,158
------- ------ ------ ------ ------ ------ ------ ------
Income (loss) from
operations............ 147 (66) 889 1,339 461 1,361 206 254
Interest, net.......... 4 24 11 14 50 37 40 3
------- ------ ------ ------ ------ ------ ------ ------
Income (loss) before
income taxes.......... 151 (42) 900 1,353 511 1,398 246 257
Income tax provision
(benefit)............. (1,349) (16) 340 511 198 543 95 100
------- ------ ------ ------ ------ ------ ------ ------
Net income (loss)...... $ 1,500 $ (26) $ 560 $ 842 $ 313 $ 855 $ 151 $ 157
======= ====== ====== ====== ====== ====== ====== ======
</TABLE>
25
<PAGE>
The following table presents our unaudited quarterly results of operations
as a percentage of revenues:
<TABLE>
<CAPTION>
Quarters Ended
-------------------------------------------------------------------------
June 30, Sept. 30, Dec. 31, Mar. 31, June 30, Sept. 30, Dec. 31, Mar. 31,
1997 1997 1997 1998 1998 1998 1998 1999
-------- --------- -------- -------- -------- --------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Statement of Operations
Data:
Revenues:
Software licenses...... 75.9% 75.4% 81.5% 78.9% 69.0% 81.0% 77.3% 71.2%
Services and
maintenance........... 24.1 24.6 18.5 21.1 31.0 19.0 22.7 28.8
------ ----- ----- ----- ----- ----- ----- -----
Total revenues......... 100.0 100.0 100.0 100.0 100.0 100.0 100.0 100.0
Cost of revenues:
Software licenses...... 2.4 3.7 2.6 3.3 2.4 2.0 2.3 0.5
Services and
maintenance........... 17.8 25.1 18.8 16.0 19.9 12.2 18.2 20.9
------ ----- ----- ----- ----- ----- ----- -----
Total cost of revenue.. 20.2 28.8 21.4 19.3 22.3 14.2 20.5 21.4
------ ----- ----- ----- ----- ----- ----- -----
Gross profit............ 79.8 71.2 78.6 80.7 77.7 85.8 79.5 78.6
Operating expenses:
Research and
development........... 33.1 37.0 20.5 16.4 23.7 19.7 24.5 18.7
Sales and marketing.... 15.8 16.8 14.2 14.3 19.9 21.2 30.5 38.5
General and
administrative........ 18.5 22.8 11.1 12.3 18.6 15.1 20.2 16.9
------ ----- ----- ----- ----- ----- ----- -----
Total operating
expenses.............. 67.4 76.6 45.8 43.0 62.2 56.0 75.2 74.1
------ ----- ----- ----- ----- ----- ----- -----
Income (loss) from
operations............. 12.4 (5.4) 32.8 37.7 15.5 29.8 4.3 4.5
Interest, net........... 0.3 2.0 0.4 0.4 1.7 0.8 0.8 0.1
------ ----- ----- ----- ----- ----- ----- -----
Income (loss) before
income taxes........... 12.7 (3.4) 33.2 38.1 17.2 30.6 5.1 4.6
Income tax provision
(benefit).............. (113.7) (1.3) 12.6 14.4 6.7 11.9 2.0 1.8
------ ----- ----- ----- ----- ----- ----- -----
Net (loss) income....... 126.4% (2.1)% 20.6% 23.7% 10.5% 18.7% 3.1% 2.8%
====== ===== ===== ===== ===== ===== ===== =====
</TABLE>
The discussions relating to the fiscal year comparisons of the results of
operations generally apply to the comparison of results of operations for the
eight quarters ended March 31, 1999.
In recent years, there have been greater sales of our products in our
fourth fiscal quarter than in each of the first three quarters of our fiscal
year. For example, in the fiscal year ended March 31, 1998, 41% of total
revenues were recognized in the fourth quarter, compared to 31% in the third
quarter, 14% in the second quarter, and 14% in the first quarter. In the
fiscal year ended March 31, 1999, 31% of total revenues were recognized in the
fourth quarter, compared to 27% in the third quarter, 25% in the second
quarter, and 17% in the first quarter. In addition, we experienced lower total
revenues in the first quarter of fiscal 1999 as compared to the last quarter
of fiscal 1998. We expect that seasonal trends will continue.
The gross margin on services and maintenance fluctuates from quarter to
quarter based on the mix of services provided in any given quarter.
Sales and marketing expenses increased steadily throughout the fiscal year
ended March 31, 1999 due primarily to the expansion of the sales and marketing
departments in the United States and the United Kingdom.
Sales and marketing expenses increased to $1.5 million in the third quarter
of fiscal 1999 from $963,000 in the second quarter, an increase of $513,000,
or 53%. This increase is due primarily to the increase in sales and marketing
personnel from 22 persons at the end of the second quarter of fiscal 1999 to
28 persons at the end of the third quarter of fiscal 1999 and the related
payroll increase of $424,000.
26
<PAGE>
Sales and marketing expenses increased to $2.2 million in the fourth quarter
of fiscal 1999 from $1.5 million in the third quarter, an increase of $683,000,
or 46%. We formed focused sales and marketing teams to specifically address the
chemicals and utilities markets, which was a major contributor to the overall
increase in sales and marketing personnel from 28 persons at the end of the
third quarter to 43 persons at the end of the fourth quarter of fiscal 1999.
This contributed to the increases in payroll of $316,000, sales commissions of
$77,000, travel and entertainment of $204,000 and professional fees, trade
shows and training of $86,000.
We determined that it was more likely than not that we would earn enough
taxable income in future periods to realize our deferred tax asset. Therefore,
in the quarter ended June 30, 1997, we reversed a $1.3 million valuation
allowance for tax benefits relating to our operating losses in prior periods.
Liquidity and Capital Resources
We have primarily financed our operations through private placements of our
preferred stock and cash from operations. Through March 31, 1999, proceeds from
private placements of preferred stock totaled $6.0 million.
As of March 31, 1999, we had cash and cash equivalents of $1.8 million, a
decrease of $2.7 million from cash and cash equivalents held at March 31, 1998.
Our working capital at March 31, 1999 was $4.4 million, compared to $4.1
million at March 31, 1998.
Our operating activities resulted in net cash outflow of $2.3 million for
the fiscal year ended March 31, 1997 and $796,000 for the fiscal year ended
March 31, 1999. We had $2.7 million of net cash inflows for the fiscal year
ended March 31, 1998. The sources of cash in that fiscal year were primarily
income from operations, increases in accounts payable and accrued liabilities
and increases in deferred revenues, partially offset by increases in accounts
receivable, and other current assets. The operating cash outflows for fiscal
1997 resulted from significant investments in sales, marketing and product
development, which led to an operating loss. The cash outflows from the
operating loss, increases in accounts receivable, and other current assets were
partially offset by increases in accounts payable and accrued liabilities and
deferred revenues. The operating cash outflows for the fiscal year ended March
31, 1999 resulted primarily from increases in accounts receivable and other
current assets and decreases in deferred revenues partially offset by increases
in accounts payable and accrued expenses offset by net income.
Investing activities used cash of $224,000 for the fiscal year ended March
31, 1997, $547,000 for the fiscal year ended March 31, 1998 and $2.0 million
for the fiscal year ended March 31, 1999, for the purchase of property and
equipment.
Financing activities provided cash of $4.0 million for the fiscal year ended
March 31, 1997. The source of cash from financing activities for the fiscal
year ended March 31, 1997 was through the issuance of preferred stock and
financing from bridge loans. Financing activities provided cash of $59,000 for
the fiscal year ended March 31, 1998 and $51,000 for the fiscal year ended
March 31, 1999, which represents proceeds from the exercise of stock options
offset by offering costs paid in fiscal 1999.
We anticipate that we will continue to experience significant growth in our
operating expenses. Operating expenses will consume a material amount of our
cash resources, including a portion of the net proceeds of this offering. We
believe that the net proceeds of this offering, together with our existing cash
and cash equivalents, will be sufficient to meet our anticipated cash needs for
working capital and capital
27
<PAGE>
expenditures for at least the next twelve months. Thereafter, we may require
additional funds to support our working capital requirements or for other
purposes and may seek to raise such additional funds through public or private
equity financing, bank debt financing or from other sources.
Year 2000 Compliance
Year 2000 Issue
Many currently installed computer systems are not capable of distinguishing
21st century dates from 20th century dates. As a result, beginning on January
1, 2000, computer systems and software used by many companies and organizations
in a wide variety of industries including technology, transportation,
utilities, finance and telecommunications will produce erroneous results or
fail unless they have been modified or upgraded to process date information
correctly. There is significant uncertainty concerning the scope and magnitude
of problems associated with the century change. We recognize the need to ensure
that our operations will not be harmed by year 2000 software failures. We are
assessing the potential overall impact of the impending century change on our
business, financial condition and operating results.
State of Readiness
Software Products. Based on our assessment to date, we believe the current
versions of our software products are year 2000 compliant--that is, they are
capable of adequately distinguishing 21st century dates from 20th century
dates. We have substantially completed the testing of the current version of
our software. We are currently assessing the need to test the older versions of
our software which may still be used on a limited basis. This assessment is
expected to be complete by late 1999.
Internal Information Systems. We have preliminarily assessed our internal
management information and non-information technology systems to identify any
products, services or systems that are not year 2000 compliant and to plan for
corrective action. We have not encountered any material year 2000 problems with
our computer systems or any other equipment that might be subject to year 2000
problems. We believe that with modifications to existing software and
conversions to new software, the year 2000 problem will not pose a significant
operational problem for our computer systems. We expect to complete our testing
of the internal information systems by late 1999.
External Vendors. We plan to verify compliance by external vendors that
supply us with software and information systems and to communicate with
significant suppliers to determine the readiness of third parties' remediation
of their own year 2000 issues. As part of our assessment, we are evaluating the
level of validation we will require of third parties to ensure their year 2000
readiness. Our verification should be complete by late 1999.
Risk and Cost. Our products are generally integrated into enterprise systems
involving sophisticated hardware and complex software products that may not be
year 2000 compliant. We may face claims based on year 2000 problems in other
companies' products, or issues arising from the integration of multiple
products within an overall system. Although we have not been a party to any
litigation or arbitration proceeding to date involving our products or services
related to year 2000 compliance issues, we may be required to defend our
products or services, or to negotiate resolutions of claims based on year 2000
issues. The costs of defending and resolving year 2000-related disputes,
regardless of the merits, and any liability we may have for year 2000-related
damages, including consequential damages, could harm our business, financial
condition and results of operations. In addition, we believe that the
purchasing patterns of customers and potential customers may be affected by
year 2000 issues as companies expend significant resources to correct or
upgrade their current software systems for year 2000 compliance. These
expenditures may result in reduced funds available to purchase software
products such as those we offer. To the extent year 2000 issues cause a
significant delay in, or cancellation of, decisions to purchase our products or
services, our business, financial condition and results of operations would be
harmed.
28
<PAGE>
All costs to date relating to year 2000 compliance have been incurred in the
normal course of business. To date we have not incurred any material costs
directly associated with our year 2000 compliance efforts as they relate to
both our software products and our internal information systems. We do not
expect the total cost of these year 2000 compliance activities to be material
to our business, financial condition and results of operations. All future
costs are currently considered in our fiscal 2000 information technology
budget. These costs and the timing with which we plan to complete our year 2000
modifications and testing processes are based on our estimates.
Contingency Plan
We have not implemented a year 2000 contingency plan to date. It is our
intention to devote whatever resources are necessary to assure year 2000
compliance issues are resolved. However, we intend to develop and implement a
contingency plan by late 1999 if our year 2000 compliance initiatives fall
behind schedule.
29
<PAGE>
OUR BUSINESS
ESPS provides electronic compliance management solutions to businesses in
highly regulated industries. Our solution allows our customers to reduce the
costs and burden associated with the compliance process by enabling e-
compliance and also decreases the time required to bring new products and
services to market. Our CoreDossier family of software products enables users
throughout an enterprise to collaborate in the authoring, compilation,
distribution, publishing and reuse of complex compliance information and
submissions to regulatory agencies. In addition, we provide in-depth compliance
expertise that enables us to better serve the industry-specific compliance
needs and requirements of our customers. We also provide comprehensive
consulting, implementation and maintenance services. As of April 30, 1999, we
had licensed versions of our CoreDossier products to 46 customers in the
pharmaceutical and biotechnology industry, the chemical industry and the
utilities industry.
Industry Overview
Overview of Regulation and Compliance
Virtually every business in the world is subject to rules, regulations and
standards imposed by various regulatory agencies. As part of their oversight,
regulatory agencies typically require businesses to compile information to
document their compliance with specific regulations and to maintain compliance
records. In addition, regulatory agencies often require businesses to make
periodic or event-driven submissions. Periodic submissions demonstrate a
business's compliance with regulations relating to its ongoing operations.
Event-driven submissions are required in connection with a specific business
event, such as the introduction of a new product or service or a change in
customer rates.
In the United States, federal and state regulatory agencies are responsible
for ensuring that businesses comply with various regulations. The following
table provides examples of major federal regulatory agencies and each agency's
estimate of the number of hours required for mandated record keeping and
compliance reporting, or burden hours, as reported to the Office of Management
and Budget for 1997 under the Paperwork Reduction Act of 1995.
<TABLE>
<CAPTION>
Compliance
Agency Burden Hours
- ------ -------------
<S> <C>
Environmental Protection Agency, or EPA........................... 115.6 million
Federal Energy Regulatory Commission, or FERC..................... 5.2 million
Nuclear Regulatory Commission, or NRC............................. 10.3 million
Securities and Exchange Commission, or SEC........................ 148.9 million
</TABLE>
Significant state regulatory agencies in the United States include public
utility commissions and insurance commissions. Similar regulatory environments
exist throughout the world, requiring many businesses with international
operations to comply with regulations in most nations in which they operate.
Three examples of highly-regulated industries include the pharmaceutical and
biotechnology industry, the chemical industry and the utilities industry.
. Pharmaceutical and biotechnology industry. The pharmaceutical and
biotechnology industry includes over 4,000 companies worldwide, many of
which market their products in a number of different countries. Because
of the potential risks associated with newly-developed drugs and medical
devices, regulatory agencies typically require pharmaceutical and
biotechnology companies to extensively document their research,
development and manufacturing processes. In addition, pharmaceutical and
biotechnology companies generally must demonstrate the safety and
efficacy of a drug or medical device to a regulatory agency before its
commercialization. This process often requires the collection of data
that takes years to compile and the preparation of submissions that
consist of hundreds of thousands of pages.
. Chemical industry. The chemical industry includes over 4,000 companies
worldwide, many of which sell products around the world. Similar to
companies in the pharmaceutical and
30
<PAGE>
biotechnology industry, chemical companies are, in many cases, required
to receive regulatory approval before introducing new products. In
addition, the chemical industry faces more significant regulation than
most other industries relating to environmental protection and the
transportation of hazardous materials.
. Utilities industry. The utilities industry includes over 3,000 companies
worldwide, including electric utilities, gas transmission and
distribution companies and telecommunications companies. Utilities face
significant regulation with regard to expanding their infrastructure and
setting and changing customer rates. Additionally, the global trend
toward deregulation in the utilities industry is increasing the volume of
regulatory filings, since an increasing number of companies are entering
the market and existing utility companies are entering territories in
which they were previously not permitted to compete.
The Compliance Process
Companies must undertake a complex process to comply with regulations
imposed by the regulatory agencies that oversee their operations. The
compliance process requires significant time and effort from personnel in
various departments within a company. The major aspects of the compliance
process include:
. Authoring the information. Various persons within and outside a business
organization, including scientists, researchers, technical personnel,
consultants, financial analysts and regulatory affairs personnel, who are
often in different geographic locations, conduct studies and capture and
analyze data over a period of time. Individuals then author information
detailing their studies, analyses and conclusions.
. Collecting and compiling the information from multiple authors and in
various formats. Regulatory affairs personnel collect from various
authors information, which often exists in a variety of formats,
including paper files, faxes, phone messages, e-mails, word processing
files, spreadsheets, graphics programs, and the company's own proprietary
software. This information is then compiled by teams of regulatory
affairs and clerical personnel who are dedicated to the compliance
process.
. Publishing a comprehensive document. The compliance teams publish the
information in a form or document that complies with the specifications
of a regulatory agency. This often involves scanning and copying a large
number of voluminous files. The document must be formatted for
publication, which includes conforming the different numbering schemes,
footnotes and technical terms used in the various narratives.
. Circulating the document for review and revision. The initial document is
distributed to numerous scientists, researchers, technical personnel,
consultants, financial analysts, management and outside advisors for
their review and comments. The comments are integrated by the regulatory
affairs group into a revised compliance document. The revised document is
then distributed again for review. This process is repeated, often
multiple times, until all parties are satisfied with the document.
. Publication of the final compliance document. Once the compliance process
is complete, final versions of the document are published and archived
and, if required, submitted to a regulatory agency. These submissions can
be made in various ways, such as in paper format, on CD-ROM or over the
Internet.
. Reuse of information for additional submissions and ongoing compliance
purposes. Once archived, the information can be accessed and used
throughout the organization to prepare additional regulatory submissions
and for ongoing compliance purposes.
Many companies incur significant costs relating to compliance activities.
Direct costs include the cost of personnel, such as scientists, technical
personnel, accountants, lawyers and management, and other administrative costs
related to the compliance process. Indirect costs include lost revenues and
market share resulting from delays in introducing new products, fees and
expenses resulting from penalties imposed by
31
<PAGE>
regulatory agencies for non-compliance and monetary damages and legal fees
resulting from legal actions brought by agencies or other third parties. In
addition to delays relating to the company's compliance process, regulatory
agencies may experience difficulty in working with various electronic filing
formats and voluminous paper filings, resulting in lengthy review time for
compliance filings. As regulatory environments become more complex and the
number of companies subject to regulation increases, we expect compliance costs
to grow and the need for access to information to increase.
The Emergence of E-compliance
Historically, businesses have used a manual process to create paper-based
documentation and submissions that demonstrate compliance with regulatory
requirements. In recent years, the emergence of new technologies and the
increase in the complexity of regulatory compliance have caused businesses to
reevaluate how they assemble, compile, share, review and revise compliance
information.
At the same time, regulatory agencies around the world are analyzing the
benefits of electronic compliance and submissions and are moving toward
implementing e-compliance standards. In the United States, the federal
government has encouraged regulatory agencies to adopt e-compliance standards
and to use technology to improve productivity, efficiency and effectiveness by
reducing the burden of collecting, disseminating and reviewing information.
Recently, regulatory agencies have begun to implement electronic compliance and
reporting standards. Examples of the increasing adoption of e-compliance in the
United States and abroad include:
. The FDA has announced its intention to support all electronic filings by
2002;
. The EPA has announced its intention to support all electronic filings by
2000;
. FERC has announced an electronic filing initiative to improve processing
and distribution of filings;
. BfArM, the Bundesinstitut fur Arzneimittel und Medizinprodukte, a German
regulatory agency, has announced its intention to support electronic
submissions; and
. The European Union has adopted an electronic filing standard for
pesticide registrations, known as CADDY.
The Impact of Intranet and Internet Technology
Intranets and the Internet are quickly emerging as the medium of choice for
collecting, publishing and distributing information. These networks provide a
relatively low cost and widely dispersed communication, collaboration and data
transmission platform. We believe that businesses are seeking to use corporate
intranets and the Internet to manage complex business processes, such as
compliance management. As businesses attempt to reengineer their complex
business processes to utilize these networks, they are faced with the challenge
of accessing and integrating large amounts of data that are often in various
formats and stored in different locations throughout the enterprise.
The Need for Enterprise-wide Electronic Compliance Management Solutions
As businesses move toward implementing e-compliance processes, a variety of
approaches have emerged that attempt to address the requirements and to realize
the benefits of e-compliance. These approaches include:
. Internally-developed systems. Systems developed by internal information
technology departments tend to be highly customized and are designed to
meet the specific regulatory requirements at the time of development. As
regulations change and technology advances, these systems are
increasingly costly and difficult to maintain due to their lack of
flexibility. Furthermore, many of these systems were not specifically
designed to take advantage of intranet and Internet technologies.
. Document management systems. Document management systems are designed to
scan, store, secure and archive documents. These systems are not designed
to support the compliance management function and generally lack the
capability to support complex document publication, automatic cross-
referencing and different pre-defined forms and formats.
32
<PAGE>
. Point solutions. Point solutions are software tools designed to address a
very specific compliance requirement. These tools generally do not have
the breadth to address all of the compliance management needs of
businesses that are required to comply with the complex regulations of
multiple agencies.
. Desktop publishing tools. Desktop publishing tools are typically word
processing tools that are used to create individual pieces of a
compliance-related document. These tools often lack the features and
functions required to enable a business to create much larger and more
complex compliance documents.
. Outsourcing. Businesses sometimes hire third parties to prepare
regulatory submissions. This approach can be costly and time-consuming
and may limit the ability of businesses to reuse the information that has
been prepared.
We believe that businesses, in an effort to significantly improve their
compliance processes, are seeking an enterprise-wide electronic compliance
management solution that has the following characteristics:
. Enterprise scalability. The ability to access information and collaborate
on publications by an increasing number of users in multiple departments
throughout an enterprise.
. Industry-specific compliance expertise. Expertise in the complex and
rapidly changing compliance requirements of particular industries.
. Multiple-industry applicability. Ability to meet the compliance
requirements of customers operating in various industries.
. Leading technology foundation. Support for the most advanced technology
platforms, such as intranets and the Internet, as well as an architecture
that allows for changes in technology.
. Support multiple information formats. Ability to collect information
stored in various formats, including spreadsheets, desktop publishing and
database applications, as well as the ability to output to the various
formats supported by regulatory agencies in each industry.
. Rapid implementation. Ability to be rapidly implemented throughout the
enterprise.
We believe that an enterprise-wide application which exhibits these
characteristics will enable businesses to deploy effective compliance
management systems to reduce compliance costs and the time required to bring
new products and services to market.
Our Solution
Our solution, which consists of the CoreDossier family of software products
and related services, enables users throughout an enterprise to collaborate in
the authoring, compilation, distribution, publishing and reuse of compliance
information and regulatory submissions. We designed our CoreDossier software
products to utilize advanced technologies, such as corporate intranets and the
Internet, and to meet emerging electronic compliance requirements and
standards. We believe our solution reduces the risks associated with the
deployment of in-house and other customized compliance management solutions and
enables companies in highly regulated industries to realize a return on their
investment through direct cost savings. Furthermore, we believe our solution
enables companies to reduce the time required to bring new products and
services to market. We also offer our solution to regulatory agencies to
provide them with more effective and efficient access to compliance filings,
decreasing the time required for regulatory review and response.
Our solution provides our customers with the following key advantages:
Scalable enterprise-wide solution. Our solution extends throughout an
enterprise, providing multiple departments in various locations throughout the
world with the ability to collaborate electronically in the
33
<PAGE>
authoring, assembling, distributing and publishing of compliance information.
We also designed our solution to support the growth of our customers as they
add new users and process an increasing amount of compliance information.
Domain expertise. We designed our solution around our expertise in meeting
the specific compliance needs of each industry in which our customers compete.
Our professionals possess industry expertise and in-depth knowledge of specific
compliance requirements. This domain expertise enables us to provide an
electronic compliance management solution that effectively addresses the
requirements, changes and subtleties of regulations that are unique to each
specific industry.
Modular product architecture. Our solution addresses the compliance
requirements of customers in various industries through the use of industry-
specific modules to enhance the functionality of the CoreDossier platform.
Furthermore, our solution enables large diversified businesses that operate in
numerous industries to address various regulatory requirements with a single
compliance solution.
Intranet and Internet capabilities. We designed our systems architecture to
be adaptable to advancing intranet and Internet technologies. We believe that
corporate intranets and the Internet will become increasingly important in the
electronic compliance management process as companies continue to rapidly adopt
these communication platforms.
Multiple input and output capabilities. We designed our solution to enable
users to input information in different formats, including paper files, faxes,
phone messages, e-mails, word processing files, spreadsheets, graphics
programs, and the company's own proprietary software. In addition, CoreDossier
supports older formats such as WordStar and Wang Office. CoreDossier also
enables users to output information in numerous formats, including those most
commonly used in the electronic compliance submission process, such as
hypertext markup language, or HTML, portable document format, or PDF, and
tagged image file format, or TIFF, on CD-ROM and paper.
Rapid deployment. We designed our solution to be quickly implemented
throughout a customer's enterprise. Since our solution is tailored to meet the
specific compliance requirements of our targeted industries, it requires
minimal customization.
Our Strategy
Our goal is to be the leading provider of electronic compliance management
solutions that enable businesses to author, compile, distribute and publish
complex compliance documents. To achieve this objective we intend to:
Enhance our Technology Leadership and Product Functionality. We believe that
our products provide the most advanced solution to meet e-compliance
requirements in our targeted markets. Our solution incorporates leading
technologies, such as intranet and Internet technologies. We intend to maintain
and enhance our position as a technology leader by continuing to invest in
product development to:
.Expand the base functionality of the CoreDossier platform;
.Support emerging publishing standards and formats;
.Enhance existing industry-specific modules; and
.Develop industry-specific modules to target new industries.
In addition, we encourage third parties to develop industry-specific modules
that will enhance the functionality of CoreDossier through the use of
application programming interfaces.
34
<PAGE>
Target Other Industries. We have focused our product development,
consulting, sales and marketing efforts on specific industries, particularly
the pharmaceutical and biotechnology industry and, more recently, the chemical
and utilities industries. We believe that companies in other industries could
benefit from our solution and we intend to utilize our experience in compliance
management to rapidly penetrate these industries. We intend to:
. Leverage the comprehensive compliance technology contained in the
CoreDossier platform to quickly develop new modules that provide
industry-specific compliance functionality; and
. Utilize and expand our cross-functional sales and marketing teams, which
combine industry specific compliance expertise with knowledge of product
development, to quickly penetrate targeted industries.
The additional industries we are currently targeting include the financial
services, insurance and discrete manufacturing industries.
Enhance our Domain Expertise. We believe our industry expertise and
knowledge of specific compliance requirements enables us to effectively tailor
our solutions to the specific needs of businesses in the industries we target.
Furthermore, our domain expertise enables us to provide our customers with
access to critical and constantly changing compliance-related information. We
intend to continue to enhance our industry-specific domain expertise to
accelerate our entrance into other industries and to quickly establish a
leadership position in these industries.
Extend Use of Intranet and Internet Technologies for Compliance
Management. We intend to continue to actively promote the use of corporate
intranet and Internet technologies for compliance management by developing new
products to take advantage of these advanced technologies and demonstrating the
capabilities of our CoreDossier products. We have installed CoreDossier at
several regulatory agencies to promote the benefits of electronic compliance.
We have also participated in several of the first web-based regulatory
submissions. We are currently developing a new family of products that will
enable compliance information and submissions to be accessed through a standard
web browser.
Expand our Professional Services Organization. We have recently established
a professional services organization to enhance our customers' ability to
realize maximum return on their investment in CoreDossier. In addition to
helping customers realize this return, our professional services organization
is designed to assist them in addressing other requirements and functions
within their business such as record keeping and internal compliance.
Expand and Capitalize on our Strategic Alliances. We believe that our
strategic alliances with leading systems integration firms, information
technology consulting firms and technology companies enable us to promote
awareness of our products and services, expand territorial coverage and provide
implementation services to end-users. We intend to maintain and strengthen
these relationships, as well as establish new relationships with leaders in the
information technology industry.
Enhance our International Presence. We intend to increase our international
presence and enhance our solution to address the needs of companies operating
in various countries throughout the world. We believe that significant
opportunities exist for electronic compliance management software that is
designed for businesses subject to compliance requirements in various worldwide
regulatory environments. We currently maintain an office in London, England and
intend to add sales personnel, develop domain expertise and establish
additional offices to further address international markets.
We believe that because we intend to continue to implement each of the
components of our strategy as our business grows over time, we cannot estimate
a definitive schedule for the implementation of our strategy at this time.
Products
The CoreDossier product family includes the CoreDossier platform, industry-
specific modules and the CoreDossier application program interfaces, or APIs.
Our software products comprise a modular system
35
<PAGE>
that may be configured in a variety of ways to meet customers' industry-
specific requirements. The CoreDossier platform provides the foundation for
enabling our customers to collaborate in the authoring, compiling,
distributing, publishing and reuse of compliance information. Our industry-
specific modules are easy-to-install software products that perform compliance
functions designed to meet the regulatory requirements of a particular
industry. The CoreDossier APIs enable third parties to develop custom
applications and extend access to additional external information sources.
The CoreDossier family of products is priced on a per-server basis.
Depending upon the functionality and industry-specific modules chosen by a
customer, the license fee for the CoreDossier solution generally ranges from
$200,000 to $400,000 per-server, with multiple site licenses costing in excess
of $1.0 million. Customers can purchase additional industry-specific modules,
which range from $40,000 to $75,000 per module and are sold on a per-server
basis. The license fees for CoreDossier do not include fees for implementation,
technical support and training.
The CoreDossier Platform
The CoreDossier platform is the base product used by our customers. The
CoreDossier platform addresses the following aspects of compliance management:
Support for multiple file format inputs. Many documents and other
information required for a regulatory submission exist in both paper and
electronic formats. CoreDossier supports over 100 file formats, enabling
businesses to utilize information in its existing formats without the
complications generally associated with file conversion. Electronic formats
include:
. Current word processing formats, such as Microsoft Word, WordPerfect and
Interleaf, and older word processing formats such as Wang Office and
WordStar;
. Spreadsheet formats, such as Excel, Lotus 1-2-3 and SAS;
. Graphic formats, such as TIFF, Bitmap, and Illustrator;
. Desktop publishing tools, such as QuarkXPress, Photoshop and Pagemaker;
and
. Communication formats, such as e-mail and facsimile.
In addition, CoreDossier supports a variety of file and document management
systems, including Documentum, PC DOCS and FileNet. In our next product
release, we intend to support extensible markup language, or XML, which will
enable CoreDossier to better support other external information sources.
Publication design. CoreDossier allows customers to define, create and reuse
publication templates. These templates provide a standardized structure for
resulting publications, which contains documents, document templates, standards
for headers and footers, tables of contents and finishing options. As a result,
customers can quickly create new publications that meet predefined internal or
external compliance requirements using an old template. This also allows
companies to utilize information contained in previous publications to create
new publications.
Support for multiple file format outputs. CoreDossier supports output in
standardized formats and languages such as HTML, PDF and TIFF and on CD-ROM and
paper. In our next product release, we intend to support XML and additional
output formats to better address our customers' needs. The ability to support
multiple outputs is essential for many of our customers, as many regulatory
agencies require that companies publish both in electronic formats and in paper
format. In addition, the ability to publish in multiple output formats provides
companies with the ability to reuse compliance information for other purposes,
including quality assurance, record-keeping and internal compliance.
Server-to-server communications. CoreDossier servers installed in different
departments of a business can share compliance and publication information. As
a result, a CoreDossier user in one department, such
36
<PAGE>
as product development, can share information and collaborate with a user in
another department, such as regulatory affairs.
The CoreDossier platform is comprised of the:
. CoreDossier server, which manages publication information and maintains
data integrity in response to requests from the CoreDossier assemblers.
. CoreDossier generator, which is responsible for converting source
documents into PDF renditions and document data. The PDF renditions are
stored within the original source documents. The document data, such as
cross-references and table of contents information, are stored in the
CoreDossier server. The CoreDossier generator is also responsible for
servicing publishing requests from the CoreDossier assemblers.
. CoreDossier assembler, which is the main interface for the publication
manager. The CoreDossier assembler enables multiple users to create and
modify a publication simultaneously, allowing for a collaborative
publication creation process.
. CoreDossier web server, which enables access to publications on corporate
intranets and the Internet.
. CoreDossier document management interface, which enables CoreDossier to
communicate with a user's document management system. Through this
interface, CoreDossier can access documents in Documentum, FileNet, PC
DOCS and shared file systems. Interfaces are planned for Open Text and
Lotus Notes in the future.
CoreDossier is written in C++ and supports Windows 95, Windows 98 and
Windows NT operating systems. The CoreDossier server and the CoreDossier
generator run on Windows NT. The CoreDossier web server runs on Windows NT and
was created using HTML, XML, PDF and Java programming languages. We anticipate
that future versions of the CoreDossier web server will run on a variety of
UNIX platforms.
Industry-Specific Modules
We have developed customized modules for the CoreDossier platform to meet
the specific needs of our targeted industries. Because of the modular
architecture of the CoreDossier solution, we have been able to develop and
introduce these industry-specific modules quickly and efficiently. These
industry-specific modules extend the core capabilities of the CoreDossier
platform by providing additional user interfaces, processes and output formats
that are designed specifically for a particular industry's compliance
requirements.
Existing modules and modules currently under development include:
. CDER compiler module. This module enables our customers in the
pharmaceutical and biotechnology industry to produce electronic
submissions for new drug applications that comply with the FDA's
specifications. These electronic submissions enable our customers to
reduce time required for the assembly and review process for a new drug
application. Currently, we offer a CDER compiler module and a collection
of pharmaceutical templates.
. CADDY compiler module. This module enables our customers to produce
electronic submissions for global agrochemical product registrations. The
CADDY compiler module was used to prepare the first submission that
complied with the current specifications for agrochemical electronic
filings with the Canadian Pest Management Regulatory Agency. Currently,
we offer a CADDY compiler module and one agrochemical template.
. DAMOS compiler module. This module enables our customers to produce
electronic submissions for pharmaceutical product registrations. The
DAMOS compiler module has been used to prepare
37
<PAGE>
submissions to BfArM, a regulatory agency that oversees the
pharmaceutical industry in Germany. Currently, we offer a DAMOS compiler
module and three pharmaceutical templates.
. CoreDocket module. The first release of the CoreDocket module is targeted
for mid-1999. This module is designed to enable utilities companies to
collect and organize information from multiple sources quickly for
regulatory filings. One distinct feature of the CoreDocket module is that
utilities can use their existing e-mail and authoring systems in
automating the process of responding to compliance-related requests from
the regulatory agencies.
CoreDossier Application Programming Interfaces
The CoreDossier APIs are used to extend the functionality of the
CoreDossier platform. Using software development kits, customers can utilize
the APIs to link our solution to other business information systems, such as
imaging systems, authoring systems and other legacy systems. Customers can
also use the CoreDossier APIs to customize their CoreDossier software to meet
their specific needs and support additional input and output formats.
Professional Services
Our professional services organization provides customers with on-site
product implementation and consulting, technical support and training
services. Our services include:
Implementation and Consulting. Our service professionals implement the
CoreDossier software for our customers at a single site or multiple sites. As
part of our implementation services offering, we work with clients to
customize our solution to effectively meet their specific business needs. We
provide ongoing consulting services to assist our customers in optimizing the
use of our solution to realize a return on their investment as quickly as
possible. We price our implementation services on a time and materials basis.
Technical Support. We have implemented a comprehensive technical support
program to assist customers in using our products and to identify, analyze and
solve problems that may arise. The support program includes worldwide e-mail
support, which is available 24 hours a day, seven days a week, and telephone
support, which is globally available during the normal business hours of the
countries in which our products are used. We provide technical support to our
customers as part of our maintenance program, which is typically priced based
on a percentage of the then-current software license list price.
Training. We offer a number of educational classes in conjunction with our
products, including end-user training and in-depth technical training covering
the implementation and management of our solution. Training services are
priced on a per class basis, as well as incremental time and materials charges
for customized on-site training.
Strategic Alliances
We have established a number of relationships with service vendors for the
implementation of our software to our customers. We frequently participate in
joint sales and marketing efforts with our strategic partners. Our strategic
alliances are classified in three categories:
CorePartner Solution Integrators. Solution integrators provide services
ranging from project management to installation, systems integration and
application development. These solution integrators include Computer Sciences
Corporation, First Consulting Group-ISCG, PricewaterhouseCoopers LLP and
Science Applications International Corp.
CorePartner Technology Alliances. Through technology alliances, we work
with independent software vendors and service providers to create new products
and integrate product lines to be compatible with CoreDossier. These
technology alliance partners include Documentum, FileNet and Versant Object
Technology Corporation.
38
<PAGE>
CorePartner Strategic Alliances. Through strategic alliances, we seek to
promote awareness of our electronic compliance management solution and gain
strategic support for our overall marketing, sales and development programs. We
currently have a strategic alliance partnership with Adobe Systems
Incorporated.
Customers and Markets
Our targeted customers are mid- to large-sized businesses and divisions of
large companies that operate in highly regulated industries. We believe that
these enterprises have the greatest compliance burden and are likely to
implement new technology as a means of gaining a competitive advantage. We
initially focused on the pharmaceutical and biotechnology industry.
Consequently, the majority of our existing customers are pharmaceutical and
biotechnology companies. We recently introduced the CADDY compiler module for
the chemical industry and we intend to release the CoreDocket module for the
utilities industry in mid-1999.
As of April 30, 1999, we licensed versions of our CoreDossier products to 46
customers. For the fiscal year ended March 31, 1999, Adobe Systems,
Incorporated accounted for approximately $2.0 million of our total revenues.
For the fiscal year ended March 31, 1998, three of our customers accounted for
approximately $4.0 million of our total revenues. Our agreement with Glaxo-
Wellcome Inc. accounted for approximately $1.5 million of total revenues for
fiscal year 1998. Our agreement with Hoechst Marion Roussel accounted for
approximately $1.3 million of total revenues for fiscal year 1998 and our
agreement with Rhone-Poulenc Rorer Pharmaceuticals Inc. accounted for
approximately $1.2 million of total revenues for fiscal year 1998. For the
fiscal year ended March 31, 1997, four of our customers accounted for
$1.1 million of total revenues. Our agreement with Astra Merck, Inc. accounted
for approximately $473,000 of total revenues for fiscal year 1997. Our
agreement with Agouron Pharmaceuticals, Inc. accounted for approximately
$249,000 of total revenues for fiscal year 1997. Our agreement with Ligand
Pharmaceuticals Incorporated accounted for $200,000 of total revenues for
fiscal 1997, and our agreement with Janssen Pharmaceutica, Inc. accounted for
$146,000 of total revenues for fiscal year 1997.
Below is a representative list of customers who have licensed our software
as of April 30, 1999:
<TABLE>
<S> <C>
Pharmaceutical and Biotechnology Industry
Abbott Laboratories Ligand Pharmaceuticals Incorporated
Alcon Laboratories, Inc. Molecular Biosystems, Inc.
Allergan, Inc. NPS Pharmaceuticals, Inc.
Athena Neurosciences, Inc. Organon Laboratories, Ltd., a
Baxter Healthcare Corp., a subsidiary of subsidiary of Akzo Noble Pharma
Baxter International Inc. N.V.
Biogen, Inc. Otsuka America Pharmaceutical, Inc.
Coulter Pharmaceutical, Inc. Pfizer Inc.
DuPont Pharmaceuticals Company PharmaNet, Inc.
Dura Pharmaceuticals Inc. Quintiles, Inc.
G.D. Searle & Co. Rhone-Poulenc Rorer Pharmaceuticals
Glaxo-Wellcome Inc., a subsidiary of Inc., a subsidiary of Rhone-Poulenc
Glaxo Rorer Inc.
Wellcome PLC Schering AG
Health Decisions, Inc. Sequus Pharmaceuticals, Inc.
Immunex Corp. TAP Holdings, Inc.
Warner Lambert Company
Zeneca, Inc.
Chemical Industry Utilities Industry
Bayer Corporation, Agriculture Division Baltimore Gas & Electric
E.I. du Pont de Nemours and Company
Novartis Animal Health, Inc.
</TABLE>
39
<PAGE>
In addition, we intend to market our electronic compliance management
solution to regulatory agencies and industry groups. We currently have
installed test versions of our solution at several federal regulatory agencies
for use and review by these agencies. We believe that this increased exposure
will encourage the adoption of e-compliance standards and the use of our
solution.
Sales and Marketing
We market our products and services primarily through our direct sales
organization. We deploy teams comprised of sales, marketing, regulatory
compliance, professional services and software development professionals that
are focused on specific industries. These cross-functional sales and marketing
teams, referred to as tiger teams, are responsible for identifying and
quantifying new markets, identifying new applications for CoreDossier within
industries already served by our solution, generating new opportunities and
capitalizing on those opportunities. Sales efforts are typically targeted at
senior regulatory compliance officers. For larger projects, purchase approval
is often required from more senior company executives. While the sales cycle
varies substantially from customer to customer, the initial sales cycle
typically ranges from three to six months.
We have initiated a branding and marketing strategy designed to broaden
market awareness of the ESPS name and to solidify our position as a leading
provider of electronic compliance management solutions in the pharmaceutical
and biotechnology, chemical and utilities industries. We have also initiated
marketing strategies targeted at the financial services, insurance and discrete
manufacturing industries. We are also leveraging our expertise to sell our
products to additional departments of our current customers.
As of March 31, 1999, we employed 35 people in sales and marketing in the
United States, and eight people in sales and marketing in Europe.
Product Development
We have substantially invested in the development of our CoreDossier
platform and our industry-specific modules. Our product development department
is responsible for the design, development, testing and release of our software
products and is organized in four areas:
. Software development;
. Quality assurance;
. Product documentation; and
. Program management.
Along with a product manager from our marketing department, members from
each of these areas form product teams that work closely with other
organizations, customers and prospective customers to better understand their
compliance management needs.
The software development and quality assurance groups are further divided
into platform development and industry-specific module development groups. The
platform group extends and develops the CoreDossier platform by creating
additional functions and features that can be used by customers in various
industries. Each industry group works closely with the marketing managers from
each of the marketing teams to design and deliver industry-specific modules and
applications. As a result of this structure the industry-specific module
development groups are able to develop new modules independent of the
development cycles of the CoreDossier platform.
We released the next version of our CoreDossier platform, version 4.0, in
May 1999. CoreDossier 4.0 provides new features, including support for XML, the
ability to create publications using paragraphs of information in addition to
full documents, support for publishing documents based on forms and enhanced
tables of contents and cross references. In addition, we believe that
CoreDossier 4.0 will allow us to develop new industry-specific modules more
effectively. After the release of CoreDossier 4.0, we intend to introduce the
CoreDocket module, an industry-specific module designed to enable utilities
companies to more efficiently collect and organize information for their
regulatory filings.
40
<PAGE>
We are also currently developing CorePortal, a web-based product which will
enable compliance publications and information produced with CoreDossier to be
reviewed and shared on the web using a standard browser. CorePortal is based on
the advanced technology of CoreDossier. CorePortal will have applications for
CoreDossier corporate customers as well as regulatory authorities looking to
provide web-based access to compliance publications within the organizations
and to outside constituencies, such as the general public.
In addition to developing our own software, we incorporate technology owned
by third parties into our products. We believe this approach significantly
shortens our product development time without compromising our competitive
position or the quality of our products.
As of March 31, 1999, we employed 46 people in our product development
department. Our research and development expenses were $1.4 million in the
fiscal year ended March 31, 1997, $2.0 million in the fiscal year ended March
31, 1998 and $3.8 million in the fiscal year ended March 31, 1999.
Competition
The market for electronic compliance management solutions is new and rapidly
evolving. As the market develops, we expect competition to increase. We
primarily compete against the internal information technology departments of
our customers and potential customers. These information technology departments
may develop their own compliance management software. We also compete against
desktop publishing tools and service providers who compile submissions to
regulatory agencies manually, without the use of compliance software. In each
industry, we also face competition from software vendors who provide compliance
assistance to specific divisions of our current and potential customers and
point solutions, such as the Document Solutions Group of Xerox and Interleaf,
Inc. We believe that the principal competitive factors in the electronic
compliance management market are product flexibility, domain expertise,
customer support, scalability and price. We believe that our solution is
superior to the products and services offered by our competitors in product
flexibility, domain expertise, customer service and scalability. However, the
price of our solution may discourage smaller businesses from purchasing our
products and services.
Intellectual Property and Other Proprietary Rights
We rely on a combination of copyright, trade secret and trademark laws,
confidentiality agreements with employees and third parties, and protective
contractual provisions contained in license agreements with consultants,
vendors and customers to protect our proprietary rights.
We have registered the trademark CoreDossier in the United States. In
addition, we use a number of common law trademarks and service marks,
including:
. ESPS and the ESPS logo;
. CDER compiler;
. CADDY compiler;
. DAMOS compiler;
. CoreDocket; and
. Electronic compliance management.
We believe the strength of our trademarks and service marks benefits our
business and we intend to continue to protect our registered and common law
trademarks and service marks in the United States and abroad. We have not
secured registration of all of our marks in the United States and have not
pursued registration in any foreign country.
We also protect our proprietary rights by requiring employees to agree not
to reveal any sensitive information to our competitors and to sign a
confidentiality agreement. Employees are required to execute a
41
<PAGE>
non-competition agreement which may restrict them from working for a competitor
for one year after employment terminates. However, we may not obtain these
agreements in every case.
We incorporate technology from third parties into our software. We currently
have a material license agreement with Versant Object Technology Corporation
for the use of technology which is embedded in CoreDossier. Under the terms of
the license agreement, we have the right to use and copy Versant's software to
develop and combine Versant's technology with our software products to create
applications. Our license is non-exclusive, non-transferable and non-
assignable. We currently pay Versant royalty fees based on sales of our
products. The agreement, which is effective until December 31, 1999, will
automatically renew for additional one-year periods. Unless we negotiate
otherwise, at the end of the initial term, the royalty fees could substantially
increase.
Employees
As of March 31, 1999, we had a total of 125 employees in the United States,
including 46 people engaged in product development, 35 people in sales and
marketing, 28 people in professional services and 16 people in general and
administrative services. We also employed a total of 20 people in Europe,
including eight people in sales and marketing, 10 people in professional
services and two people in general and administrative services. Our employees
are not represented by any collective bargaining agreement, and we have never
experienced a work stoppage. We believe our relations with our employees are
good.
Facilities
Our principal administrative, sales, marketing, technical support and
product development facilities are located at our headquarters in Fort
Washington, Pennsylvania. We currently lease approximately 30,300 square feet
of office space in the Fort Washington facility under a lease which terminates
October 31, 2003.
We also lease office space for sales and marketing in La Jolla and San Jose,
California, Research Triangle Park, North Carolina and in the United Kingdom
and Germany.
Legal Proceedings
ESPS is not currently a party to any material legal proceedings.
42
<PAGE>
MANAGEMENT
The following table contains information about our executive officers and
directors as of April 30, 1999. Our audit committee consists of Charles O.
Heller, Christopher B. Hollenbeck and Michael J. Egan. Our compensation
committee consists of Charles O. Heller and Christopher B. Hollenbeck.
Executive Officers and Directors
<TABLE>
<CAPTION>
Name Age Position
- ---- --- --------
<S> <C> <C>
Terrence P. Brennan..... 48 President, Chief Executive Officer and Director
Leonard W. von Vital.... 48 Chief Financial Officer
Bradley R. Burget....... 37 Vice President, Professional Services
Michael T. Hoey......... 32 Vice President, Research and Development
Kevin E. Leininger...... 34 Vice President, Marketing
George B. Pearcy........ 53 Vice President, Finance and Administration
Jeffrey C. Sager........ 32 Vice President, Sales
Michael J. Egan......... 46 Director
Charles O. Heller ...... 63 Director
Christopher B.
Hollenbeck ............ 31 Director
</TABLE>
Terrence P. Brennan has served as the president, chief executive officer and
as a member of the board of directors of ESPS since October 1995. From February
1995 until October 1995, Mr. Brennan was an independent consultant to the
pharmaceutical industry. From January 1994 until February 1995, Mr. Brennan was
president and chief executive officer of Bio-Imaging Technologies, Inc., a
service organization providing image processing and management services to
pharmaceutical and biotechnology companies. From September 1986 until January
1994, Mr. Brennan served as president of Research Data Corporation, a
pharmaceutical information management company developing electronic submissions
to the FDA. From October 1982 until September 1986, Mr. Brennan held the
position of senior product manager with Carter-Wallace Pharmaceuticals. From
April 1976 until October 1982, Mr. Brennan was a product manager with Zeneca
Pharmaceuticals. Mr. Brennan holds a B.S. in business administration and an
M.B.A. from the University of Dayton.
Leonard W. von Vital has served as chief financial officer of ESPS since
October 1998. From May 1998 until October 1998, Mr. von Vital was vice
president of finance, vending operations for Real Time Data, Inc., a
consolidator of vending businesses and a provider of technology to the vending
industry. From May 1997 until May 1998, Mr. von Vital was senior vice president
of product management for Astea International Inc., a developer and vendor of
enterprise customer relationship management software, and from November 1993 to
May 1997, he was chief financial officer of that company. Mr. von Vital is a
certified public accountant and holds a B.S. in accounting from St. Francis
College.
Bradley R. Burget has served as vice president of professional services of
ESPS since October 1998. From November 1996 until October 1998, Mr. Burget was
regional manager of consulting for Baan Supply Chain Solutions, a software
company, developing enterprise resource planning software. From December 1995
until November 1996, Mr. Burget served as client project manager at SSI, Inc.,
a contract consulting and resources company. From December 1993 until December
1995, Mr. Burget was client service manager for Information Network Systems, a
developer of software used to process compliance of warranty claims in consumer
electronics manufacturing. Mr. Burget holds a B.S. in physics from Iowa State
University.
Michael T. Hoey has served as vice president of research and development of
ESPS since March 1996. From June 1990 until March 1996, Mr. Hoey was a
technology manager with Andersen Consulting, where he focused on the document
management and publishing industries. Mr. Hoey holds a B.S. and an M.S. in
electrical engineering from Syracuse University.
43
<PAGE>
Kevin E. Leininger has served as vice president of marketing of ESPS since
June 1998. From March 1997 until June 1998, Mr. Leininger was vice president of
business development and marketing for NeoMedia Technologies, Inc, formerly
DevTech Associates, Inc., a developer of document systems and intelligent
document software and products. From June 1994 to March 1997, Mr. Leininger was
managing director and head of marketing of DevTech, and was director of Open
Systems for DevTech from September 1991 to June 1994. Mr. Leininger holds a
B.S. in physics and mathematics from Iowa State University and an M.B.A. in
international business and finance from the University of Chicago.
George B. Pearcy joined ESPS in November 1995 and currently holds the
position of vice president of finance and administration. From October 1992
until November 1995, Mr. Pearcy was the vice president of finance for
Northeastern Analytical Corporation and TTI Environmental Services, an
environmental analytical laboratory and an underground storage tank company.
From September 1985 to October 1992, Mr. Pearcy was director of financial and
commercial operations for International Computaprint Corporation, a division of
Reed Elsevier which provides database management and pre-press services to the
publishing industry. Mr. Pearcy holds a B.S./B.A. in accounting and an M.B.A.
from the University of Missouri.
Jeffrey C. Sager has served as vice president of sales of ESPS since January
1996. From April 1994 to December 1995, Mr. Sager was Director of market
development for Etak Inc., a developer of computerized mapping software systems
and products. From January 1992 until April 1994, Mr. Sager was manager of
marketing and corporate development and western regional sales representative
for Geographic Data Technology, Inc., a developer of digital mapping databases.
Mr. Sager holds a B.S. in business from the University of Delaware.
Michael J. Egan was elected to the board of directors of ESPS in April 1999.
Since October 1997, Mr. Egan has served as senior vice president and chief
financial officer of PECO Energy Company. From April 1995 to October 1997, Mr.
Egan served as senior vice president and chief financial officer of Aristech
Chemical Company. From 1993 to 1995, Mr. Egan served as vice president,
planning and control, of ARCO Chemical Company, Americas, where he also served
as controller from 1991 to 1993. Since June 1998, Mr. Egan has also served as
the chairman of AmerGen, a joint venture between PECO Energy Company and
British Energy PLC involved in acquiring nuclear power plants.
Charles O. Heller has served as a member of the board of directors of ESPS
since May 1995. Since February 1990, Dr. Heller has served as director of the
Dingman Center for Entrepreneurship at the University of Maryland. Since
February 1994, he has served as chairman and president of the Baltimore-
Washington Venture Group, a private investor network. Since June 1986, he has
served as president of the Annapolis Consulting Group, a management consulting
firm. Since January 1998, Dr. Heller has served as president of the Bahamas
Venture Capital Fund. From 1983 until 1986, Dr. Heller was the chief executive
officer of InterCAD Corporation, an electronic publishing software company, and
from 1969 until 1979, Dr. Heller was the chief executive officer of CADCOM,
Inc., a computer-aided design software company. Dr. Heller currently is a
member of the board of directors of several privately held companies, including
Klein Technologies, Inc., Avatech Solutions, Inc., SYSCOM, Inc., the Baltimore-
Washington Venture Group, Annapolis Consulting Group, and the Bahamas Venture
Capital Fund. Dr. Heller holds a B.S. and an M.S. in civil engineering from
Oklahoma State University and a Ph.D. in engineering from The Catholic
University of America.
Christopher B. Hollenbeck has served as a member of the board of directors
of ESPS since July 1997. Mr. Hollenbeck is a principal of H&Q Venture
Associates LLC, a venture capital firm, where he has been an Investment Manager
for the Adobe Ventures Funds since July 1998. From June 1996 until June 1998,
Mr. Hollenbeck served as a vice president in the venture capital department of
Hambrecht & Quist LLC From April 1991 until September 1995, Mr. Hollenbeck held
various positions in the investment banking department of Hambrecht & Quist
LLC. Mr. Hollenbeck is a member of the board of directors of several privately
held companies, including AvantGo, Inc., Glyphica Corporation and HAHT
Software, Inc. Mr. Hollenbeck holds a B.A. in American Studies from Stanford
University.
44
<PAGE>
Board Committees
We have established an audit committee and a compensation committee. The
compensation committee:
. Reviews and approves the compensation and benefits for our executive
officers and grants stock options under our stock option plans; and
. Makes recommendations to the board of directors regarding compensation
and benefits for our executive officers and stock option grants.
The audit committee:
. Reviews the results and scope of the audit and other services provided by
our independent auditors; and
. Reviews and evaluates our audit and control functions.
Compensation Committee Interlocks and Insider Participation
The compensation committee is responsible for determining salaries,
incentives and other forms of compensation for directors, officers and other
employees of ESPS and administering the incentive compensation and benefit
plans. The compensation committee consists of Charles O. Heller and
Christopher B. Hollenbeck. Terrence P. Brennan, president, chief executive
officer and a director of ESPS, participates in all discussions and decisions
regarding salaries and incentive compensation for all employees and
consultants of ESPS, except that he is excluded from discussions regarding his
own salary, incentive compensation and option grants to officers and
directors. No interlocking relationship exists between any member of ESPS's
compensation committee and any member of any other company's board of
directors or compensation committee.
Director Compensation
We reimburse each member of our board of directors for out-of-pocket
expenses incurred in connection with attending board meetings. We intend to
pay each member of our board who is not an employee a director fee for
attending meetings of the board of directors and committee meetings.
In May 1995, we granted Dr. Heller an option to purchase 58,000 shares of
our common stock at an exercise price of $0.07 per share. In April 1996, we
granted Dr. Heller an option to purchase 29,000 shares of our common stock at
an exercise price of $0.07 per share. In December 1996, we granted Dr. Heller
an option to purchase 130,500 shares of common stock at an exercise price of
$0.07 per share. In November 1998, we granted Dr. Heller an option to purchase
29,000 shares of common stock at an exercise price of $4.14 per share. In
January 1999, we granted Dr. Heller an option to purchase 21,138 shares of
common stock at an exercise price of $8.28 per share. Under the terms of the
option agreements, 25% of the options are exercisable on the first anniversary
of the grant date and 6.25% become exercisable on the last day of each quarter
after the first anniversary of the grant date. We anticipate that we will
grant Mr. Egan an option to purchase 36,250 shares of our common stock at an
exercise price equal to the initial public offering price. Mr. Hollenbeck is
not currently compensated as a member of our board of directors.
Executive Compensation
The table below summarizes information concerning the compensation awarded
to, earned by, or paid for services rendered to ESPS in all capacities during
the fiscal year ended March 31, 1999 by:
. Our chief executive officer;
. Our four most highly compensated executive officers as of March 31, 1999
whose total salary and bonus for the fiscal year ended March 31, 1999
exceeded $100,000.
We did not pay any executive officer named in the summary compensation
table any fringe benefits, perquisites or other compensation in excess of 10%
of his salary and bonus during the fiscal year ended March 31, 1999.
45
<PAGE>
Summary Compensation Table
<TABLE>
<CAPTION>
Annual Long-Term Compensation
Compensation Awards
------------------ ----------------------
Securities
Name and Principal Position Year Salary($) Bonus($) Underlying Options (#)
- --------------------------- ---- --------- -------- ----------------------
<S> <C> <C> <C> <C>
Terrence P. Brennan............. 1999 $175,000 $65,625 --
President and Chief Executive
Officer 1998 150,000 38,000 --
Michael T. Hoey................. 1999 150,000 15,000 --
Vice President, Research and
Development 1998 119,166 30,000 217,500
Kevin Leininger................. 1999 113,950 18,250 145,000
Vice President, Marketing
Jeffrey C. Sager................ 1999 130,000 36,750 58,000
Vice President, Sales 1998 102,244 30,000 29,000
George B. Pearcy................ 1999 120,000 31,500 --
Vice President, Finance and
Administration 1998 117,499 30,000 72,500
</TABLE>
The amounts in the earned bonus column represent bonuses which were earned
in the fiscal year, but not paid until the subsequent fiscal year. Mr.
Leininger joined ESPS on June 8, 1998. Mr. Leininger's annual salary is
$140,000.
The following table contains information regarding options granted in the
fiscal year ended March 31, 1999 to the executive officers named in the summary
compensation table above. The potential realizable value over the terms of the
options is based on assumed rates of stock appreciation in compliance with the
rules of the SEC and do not represent our estimate of future stock price.
Actual gains, if any, on stock option exercises will be dependent on the future
performance of ESPS common stock. For the fiscal year ended March 31, 1999, we
granted options to acquire up to an aggregate of 1,394,005 shares to employees
and directors, all under the 1995 stock incentive plan and all at an exercise
price equal to not less than the fair market value of our common stock on the
date of grant as determined in good faith by the board of directors. We also
granted options to acquire 426,300 shares to employees at a price that was
lower than the estimated fair value of the common stock. Optionees may pay the
exercise price by cash, check, promissory note, delivery of already-owned
shares of our common stock or by a cashless exercise procedure. Options under
the 1995 stock incentive plan generally vest over four years with 25% of the
shares vesting on the first anniversary of the grant date, and the remaining
option shares vesting 6.25% in every calendar quarter after the first
anniversary of the grant date. We may modify the standard vesting schedule.
Option Grants in Last Fiscal Year
<TABLE>
<CAPTION>
Potential Realized
Individual Grants Value at Assumed
------------------------------------- Annual Rates of
Number of % of Stock Price
Securities Total Options Appreciation for
Underlying Granted to Option Term
Options Employees in Exercise Expiration -------------------
Name Granted(#) Fiscal Year Price ($/Sh) Date 5%($) 10%($)
- ---- ---------- ------------- ------------ ---------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
Terrence P. Brennan..... -- -- -- -- -- --
Michael T. Hoey......... -- -- -- -- -- --
Kevin Leininger......... 145,000 8.1% $0.07 6/8/03 1,770,109 2,134,174
Jeffrey C. Sager........ 58,000 3.2 10.34 3/25/04 140,243 334,098
George B. Pearcy........ -- -- -- -- -- --
</TABLE>
46
<PAGE>
The following table presents information regarding the value realized upon
exercise of options during the fiscal year ended March 31, 1999 and the number
and value of unexercised options held by the executive officers named in the
summary compensation table above. As of March 31, 1999, there was no public
market for the common stock. The value of unexercised in-the-money options at
fiscal year end is based upon a value of $10.00 per share, the assumed initial
public offering price, minus the per share exercise price, multiplied by the
number of shares underlying the option.
Aggregated Option Exercises in Last Fiscal Year
and FY-End Option Values
<TABLE>
<CAPTION>
Number of Securities Value of Unexercised
Shares Underlying Unexercised In-the-Money Options
Acquired Value Options at Fiscal Year End(#) at Fiscal Year End($)
On Exercise Realized -------------------------------- -------------------------
Name (#) ($) Exercisable Unexercisable Exercisable Unexercisable
- ---- ----------- -------- -------------- --------------- ----------- -------------
<S> <C> <C> <C> <C> <C> <C>
Terrence P. Brennan..... 1,096,563 $83,188 99,688 398,750 $ 988,900 $3,955,600
Michael T. Hoey......... 203,145 14,010 193,793 255,563 1,924,360 2,537,736
Kevin Leininger......... 18,125 1,250 -- 126,875 -- 1,259,869
Jeffrey C. Sager........ 59,813 4,125 43,500 114,188 431,955 1,133,882
George B. Pearcy........ 58,000 4,000 151,797 123,703 1,507,343 1,228,372
</TABLE>
Employee Benefit Plans
1995 Stock Incentive Plan. Our board of directors and stockholders adopted
and approved the 1995 stock incentive plan in April 1995. Since its adoption
the plan has been periodically amended. The 1995 plan provides for grants of
incentive stock options, non-qualified stock options and stock awards to
employees, directors, consultants and advisors. Members of the non-employee
director administrative committee are not eligible to receive options and
awards. We may issue options to purchase a maximum of 7,880,170 shares of
common stock under the 1995 plan, which includes 1,160,000 shares that were
authorized for issuance under the plan by our board of directors in May 1999,
subject to approval by our stockholders. The board of directors may not
increase the maximum number of shares without obtaining the approval of the
stockholders. No options or awards may be granted under the 1995 plan after
April 2005.
The 1995 plan may be administered by the board of directors or a committee
of non-employee directors. The plan administrator has the power to determine
the persons to whom, the times at which, and the price at which the options and
awards shall be granted, and to determine the type of option or award to be
granted and the number of shares subject to options and awards.
The plan administrator determines the price for options. For a non-qualified
stock option, the price shall be at least equal to 85% of the fair market value
of the shares on the date the option is granted. For an incentive stock option,
the price shall be at least 100% of the fair market value on the date the
option is granted. If a recipient of an incentive stock option owns shares
possessing more than 10% of the total voting power of all classes of stock, the
option price shall be at least 110% of the fair market value on the grant date.
Options expire no later than five years after the date of the grant. Options
expire thirty days from the date the recipient's employment or service with
ESPS terminates or twelve months after termination which is due to disability
or death, unless the grant agreement or plan administrator includes different
termination dates. Options are not transferable during the lifetime of the
recipient, except that a non-qualified stock option may be transferred under a
domestic relations order, or if the grant agreement permits a transfer of the
option.
The 1995 plan specifies that if there is a change of control of ESPS, the
plan administrator may take action with respect to options, including
terminating options with 15 days' notice, or causing options to become
immediately exercisable in full. If we merge into another company or sell all
or substantially all of
47
<PAGE>
our assets, options shall become immediately exercisable unless the successor
company agrees to assume the options or provide equivalent options.
Awards of stock granted under the 1995 plan are in the form of written award
agreements approved by the plan administrator. The plan administrator may
impose restrictions and forfeiture conditions on stock awards.
If the outstanding shares are modified by reason of a reorganization,
merger, consolidation, recapitalization, reclassification, stock split,
combination or exchange of shares, the plan administrator shall make
adjustments to the aggregate number of shares available under the 1995 plan and
the number of shares and price per share of outstanding options.
Employee Stock Purchase Plan. Our board of directors adopted and approved an
employee stock purchase plan in May 1999 to provide our employees with the
opportunity to purchase our common stock, subject to approval by our
stockholders. The plan is intended to qualify as an employee stock purchase
plan under section 423 of the Internal Revenue Code.
We have reserved 350,000 shares of our common stock which may be issued
under the plan. Employees are eligible if they are full or part-time employees
who work for us for over 20 hours per week and for more than five months per
year, and do not own stock possessing 5% or more of the voting power or value
of our stock.
The plan permits employees to purchase shares of common stock through
payroll deductions of up to 15% of their base compensation. The purchase
periods are six month periods, except for the first purchase period, which
begins with the completion of the public offering and ends on December 31,
1999. The maximum number of shares that an employee may purchase during a
purchase period is 2,000 shares. The plan administrator may also limit the
total number of shares that may be purchased by all employees in a purchase
period.
The price of the stock will be 85% of the fair market value of the common
stock on either the first day of the purchase period or on the day the stock is
purchased, whichever is lower. An employee may not purchase stock valued at
over $25,000 in any calendar year.
The plan will terminate in ten years; however, our board of directors has
the right to terminate the plan at any time.
401(k) Profit Sharing Plan. We have adopted a tax-qualified employee savings
and retirement plan, the 401(k) profit sharing plan, for eligible U.S.
employees. Eligible employees may elect to defer a portion of their eligible
compensation, subject to the statutorily prescribed annual limit. We may make
matching contributions on behalf of all participants who have elected to make
deferrals to the 401(k) profit sharing plan in an amount determined annually by
ESPS. Any contributions to the plan by us or the participants are paid to a
trustee. The contributions made by ESPS, if any, are subject to a vesting
schedule; all other contributions are fully vested at all times. The 401(k)
profit sharing plan, and the accompanying trust, is intended to qualify under
sections 401(k) and 501 of the Internal Revenue Code, so that contributions by
us or by employees and income earned if any on plan contributions are not
taxable to employees until withdrawn and contributions by us, if any, will be
deductible by us when made. At the direction of each participant, the trustee
invests the contributions made to the 401(k) profit sharing plan in any number
of investment options.
Limitations on Liability of Directors and Officers and Indemnification
Limitation of Liability
Our certificate of incorporation specifies that our directors will not be
personally liable to us or our stockholders for monetary damages resulting from
a breach of fiduciary duty, to the
48
<PAGE>
maximum extent permitted by Delaware law. Under Delaware law, directors of a
corporation will not be personally liable for monetary damages for breach of
their fiduciary duties as directors, except for:
. Any breach of the duty of loyalty to the corporation or its stockholders;
. Acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law;
. Unlawful payments of dividends or unlawful stock repurchases or
redemptions; or
. Any transaction from which the director derived an improper personal
benefit.
This limitation of liability does not apply to non-monetary remedies that
may be available, such as injunctive relief or rescission, nor does it relieve
our officers and directors from complying with federal or state securities
laws.
Indemnification
Our certificate of incorporation specifies that we will indemnify our
directors officers and employees, and may indemnify our other corporate agents,
to the fullest extent permitted by law. An officer or director shall not be
entitled to indemnification if:
. The officer or director did not act in good faith and in a manner
reasonably believed to be in, or not opposed to, our best interests; or
. The officer or director is subject to criminal action or proceedings and
had reasonable cause to believe the conduct was unlawful.
49
<PAGE>
RELATED PARTY TRANSACTIONS
Agreement with Adobe Systems Incorporated
In November 1997, we signed a license and marketing agreement with Adobe
Systems Incorporated. Adobe Systems Incorporated is a majority partner of a
limited partnership which is a limited partner in Adobe Ventures L.P., a
significant stockholder of ESPS. H&Q Adobe Ventures Management L.P., a
stockholder of ESPS, is a general partner in Adobe Ventures L.P. Under this
agreement, we customized software for Adobe Systems Incorporated and granted
Adobe an exclusive, non-transferable, world-wide license to use the customized
software.
We received license fees of $1.8 million for the use of the customized
software. We are also entitled to receive royalty fees based on sales of the
Adobe software product which incorporates our technology. As of the fiscal year
ended March 31, 1999 we have received royalties of approximately $158,000.
Issuance of Preferred Stock to Significant Stockholders
In March 1997, we issued additional shares of preferred stock to H&Q ESPS
Investors L.P., and to Adobe Ventures, L.P., two of our significant
stockholders. Under the terms of the stock purchase agreement, Adobe Ventures
L.P. purchased 2,500,000 shares of preferred stock, and H&Q ESPS Investors L.P.
purchased 1,500,000 shares of preferred stock, at a price of $1.00 per share.
These shares of preferred stock will convert into shares of common stock upon
consummation of the offering. Partial payment for the shares sold to Adobe
Ventures L.P. was in the form of cancellation of promissory notes. We have also
entered into a rights agreement with these two stockholders, which grants them
rights to require registration of their shares of preferred stock or the common
stock into which their preferred shares are convertible. See "Description of
Capital Stock--Registration Rights."
Promissory Notes Payable to Adobe Ventures L.P.
In July 1996, we issued a promissory note payable to Adobe Ventures L.P. in
the amount of $500,000 with interest at a rate of 6.04% per year. In September
1996, we issued a promissory note payable to Adobe Ventures L.P. in the amount
of $500,000 with interest at a rate of 6.02% per year. In November 1996, we
issued a promissory note payable to Adobe Ventures L.P. in the amount of
$500,000 with interest at a rate of 5.96%. The amount due was convertible into
shares of preferred stock, and the loans were fully paid by the issuance of
preferred stock to Adobe Ventures L.P. in March 1997.
Relationship Between a Director and Significant Stockholder
Christopher B. Hollenbeck, a member of our board of directors, is a limited
partner of H&Q Adobe Ventures Management LP, the general partner of Adobe
Ventures, L.P., a significant stockholder of ESPS. Mr. Hollenbeck was elected
to our board of directors by the holders of series A preferred stock exercising
their right to elect a director under our certificate of incorporation. The
right to elect a member of the board of directors terminates when the shares of
series A preferred stock convert into common stock.
50
<PAGE>
PRINCIPAL AND SELLING STOCKHOLDERS
The following table contains information regarding the beneficial ownership
of the common stock of ESPS as of April 30, 1999 by:
. Each person or entity who is known by us to own beneficially more than 5%
of our outstanding common stock;
. The executive officers named in the summary compensation table;
. Each director of ESPS;
. All directors and executive officers as a group; and
. All other selling stockholders.
The persons named in the table have sole voting and investment power over
all shares of common stock held by them subject to any state community property
laws. The percentage ownership in the following table is based on 11,862,182
shares of common stock outstanding as of April 30, 1999 and 15,362,182 shares
outstanding immediately following the completion of this offering. The number
of options represents stock options that are exercisable within 60 days of
April 30, 1999. When shares are issued upon exercise of options, warrants or
other rights to acquire our capital stock, there will be further dilution to
new public investors.
<TABLE>
<CAPTION>
Before Offering Number of After Offering
----------------------------------- Shares -----------------------------------
Name Shares Options Total Percent Being Offered Shares Options Total Percent
---- ------ ------- ----- ------- ------------- --------- ------- --------- -------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
5% Stockholders
Adobe Incentive
Partners L.P........... 4,930,000 -- 4,930,000 41.6% -- 4,930,000 -- 4,930,000 32.1%
345 Park Avenue
San Jose, CA 95110
H&Q ESPS
Investors LP........... 2,900,000 -- 2,900,000 24.4% -- 2,900,000 -- 2,900,000 18.9%
One Bush Street
San Francisco, CA 94104
Adobe Ventures L.P...... 820,201 -- 820,201 6.9% -- 820,201 -- 820,201 5.3%
One Bush Street
San Francisco, CA 94104
</TABLE>
51
<PAGE>
<TABLE>
<CAPTION>
Before Offering Number of After Offering
------------------------------------- Shares -------------------------------------
Name Shares Options Total Percent Being Offered Shares Options Total Percent
---- ------ ------- ----- ------- ------------- ---------- ------- ---------- -------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Executive Officers and
Directors
Terrence P. Brennan..... 1,096,563 99,688 1,196,251 10.0% 112,018 984,545 99,688 1,084,233 7.0%
Michael T. Hoey......... 203,145 193,793 396,938 3.3% 33,351 169,794 193,793 363,587 2.3%
Kevin Leininger......... 18,125 18,125 36,250 0.3% -- 18,125 18,125 36,250 0.2%
Jeffrey C. Sager........ 59,813 43,500 103,313 0.9% 9,674 50,139 43,500 93,639 0.6%
George B. Pearcy........ 58,000 151,798 209,798 1.7% 19,647 38,353 151,798 190,151 1.2%
Michael J. Egan......... -- -- -- -- -- -- -- -- --
Charles O. Heller....... 147,719 13,594 161,313 1.4% 50,000 97,719 13,594 111,313 0.7%
Christopher B.
Hollenbeck............. 8,700,000 -- 8,700,000 73.3% -- 8,700,000 -- 8,700,000 56.6%
All directors and
executive officers as a
group (10 persons)..... 10,283,365 520,498 10,803,863 90.9% 224,690 10,058,675 520,498 10,579,173 68.8%
Other Selling
Stockholders
Mark Gavin.............. 36,540 -- 36,540 0.3% 18,270 18,270 -- 18,270 0.1%
Ronald M. Swartz........ 328,860 -- 328,860 2.8% 128,860 200,000 -- 200,000 1.3%
Larry D. Tindell........ 164,430 -- 164,430 1.4% 128,180 36,250 -- 36,250 0.2%
</TABLE>
The shares listed for Mr. Hollenbeck include 4,930,000 shares of common
stock issuable upon conversion of shares of series A preferred stock owned and
held by Adobe Incentive Partners L.P., Adobe Ventures L.P. and H&Q Adobe
Ventures Management, L.P. and 2,900,000 shares of common stock issuable upon
conversion of shares of series A preferred stock owned and held by H&Q ESPS
Investors LP. Mr. Hollenbeck is a limited partner of H&Q Adobe Ventures
Management L.P., a general partner of Adobe Ventures L.P., and may be deemed to
share voting and investment power with respect to the shares held by Adobe
Ventures L.P. Mr. Hollenbeck has a financial interest in H&Q ESPS Investment
Management Co. LLC, a general partner of H&Q ESPS Investors LP. Mr. Hollenbeck
disclaims beneficial ownership of the shares held by Adobe Ventures L.P. and
the shares held by H&Q ESPS Investors, LP., except for his financial interest.
If the underwriters exercise their over-allotment option to purchase up to
291,692 shares of common stock, then the following stockholders named in the
table above will sell up to the following number of additional shares: Terrence
P. Brennan, 187,044 shares, Michael T. Hoey, 55,688 shares, George B. Pearcy,
32,806 shares, and Jeffrey C. Sager, 16,154 shares.
52
<PAGE>
DESCRIPTION OF CAPITAL STOCK
General
At the closing of the offering our authorized capital stock will consist of
50,000,000 shares of common stock and 6,000,000 shares of preferred stock.
Before the offering, there will be 6,000,000 shares of series A preferred stock
issued and outstanding. These shares of series A preferred stock will
automatically convert into an aggregate of 8,700,000 shares of common stock
upon consummation of this offering. After the offering there will be no
preferred stock issued and outstanding.
The following is a description of our capital stock. Our certificate of
incorporation, bylaws and Delaware law contain additional provisions which also
apply to our capital stock.
Common Stock
As of April 30, 1999 there were 3,162,182 shares of common stock outstanding
which were held of record by 54 stockholders.
Holders of common stock are entitled to one vote per share on all matters to
be voted upon. Holders of common stock do not have cumulative voting rights.
Holders of common stock are entitled to receive dividends declared by the board
of directors out of funds legally available for the payment of dividends,
limited by the preferences that apply to any outstanding preferred stock. See
"Dividend Policy." Upon a liquidation, dissolution or winding up of ESPS, the
holders of common stock are entitled to share proportionately in all assets
remaining after payment of liabilities, after we fulfill the distribution
rights of then outstanding preferred stock. The common stock has no preemptive
or conversion rights and no additional subscription rights. There are no
redemption or sinking fund provisions applicable to the common stock. All
outstanding shares of common stock are fully paid and nonassessable. The shares
issued in this offering will be fully paid and nonassessable.
Preferred Stock
Our certificate of incorporation authorizes the board of directors, without
stockholder action, to designate and issue preferred stock. The board may
designate the voting powers, preferences and rights of the preferred shares,
which may be greater than the rights of the common stock. It is not possible to
state the actual effect of the issuance of any shares of preferred stock upon
the rights of holders of common stock until the board determines the specific
rights of the preferred stock. However, possible effects of issuing preferred
stock with voting and conversion rights include:
. Restricting dividends on common stock;
. Diluting the voting power of common stock;
. Impairing the liquidation rights of the common stock;
. Delaying or preventing a change of control of ESPS without stockholder
action; and
. Harming the market price of common stock.
We have no plans to issue any shares of preferred stock.
Registration Rights
Shares of our series A preferred stock convert into shares of our common
stock. The common stock which these preferred shares convert into is
unregistered. In July 1994, we granted registration rights to holders of our
series A preferred stock. In addition, we granted registration rights to Larry
D. Tindell, Ronald M. Swartz and Mark Gavin, who hold unregistered shares of
our common stock. These registration rights are provided under the terms of an
agreement between us and the holders of the registrable securities. The
agreement grants three types of registration rights:
53
<PAGE>
. Requested Registration. The holders of the registrable securities may
require us to use our best efforts to prepare a registration statement
and other related documents which would permit the sale of the
registrable securities. We only need to prepare the registration
statement and related documents if at least 25% of the registrable
securities are to be registered, or if the aggregate offering price will
be least $5,000,000. We shall pay the expenses incurred in a requested
registration.
. ESPS Registration. If we elect to register any of our shares of common
stock in a public offering, the holders of the registrable securities are
entitled to include their shares in the registration. We have the right
to reduce the number of shares to be registered in view of market
conditions. We shall pay the expenses incurred in an ESPS registration.
. Registration on Form S-3. Holders of the registrable securities may
require that we register their shares for public resale on Form S-3, if
we are eligible to use Form S-3 and the value of the securities to be
registered is at least $500,000. We are only required to make one
requested S-3 registration in any six month period. The requesting
holders shall pay the expenses incurred in a registration on Form S-3.
Delaware Anti-Takeover Law and Provisions in Our Charter and Bylaws
Provisions of Delaware law, our certificate of incorporation and bylaws
could make the acquisition of ESPS and the removal of incumbent officers and
directors more difficult. These provisions are intended to discourage coercive
takeover practices and inadequate takeover bids and to encourage persons
seeking to control ESPS to first negotiate with us. We believe that the
benefits provided to ESPS by allowing us to negotiate with an unfriendly or
unsolicited acquiror outweigh the disadvantages of discouraging takeover
proposals since we will have the opportunity to negotiate improved terms. These
provisions deter transactions not approved by our board, and could have the
effect of discouraging offers to purchase your stock at a premium over market
price for shares of common stock. Consequently, the provisions may also inhibit
fluctuations in the market price of our shares resulting from actual or rumored
takeover attempts.
Delaware Law. We are subject to Section 203 of the Delaware General
Corporation Law, or the anti-takeover law, which regulates corporate
acquisitions. The anti-takeover law prohibits a publicly-held Delaware
corporation from engaging in a business combination with any interested
stockholder for three years following the date the person became an interested
stockholder, unless the transaction is approved in a prescribed manner.
. A business combination includes a merger, consolidation, asset or stock
sale, or any transaction resulting in a financial benefit to the
interested stockholder.
. An interested stockholder is a person or entity who, together with
affiliates and associates, owns, or within three years before the
determination of interested stockholder status, did own, 15% or more of
the corporation's voting stock.
Our Charter Documents. Our certificate of incorporation eliminates the right
of stockholders to act by written consent without an annual or special meeting.
Our certificate of incorporation and bylaws do not provide for cumulative
voting in the election of directors. The authorization of undesignated
preferred stock makes it possible for the board of directors to issue preferred
stock with voting or other rights or preferences that could impede the success
of any attempt to change control of ESPS. These provisions are intended to
enhance continuity and stability in the composition of the board of directors
and to reduce the vulnerability to unsolicited or hostile takeovers, and could
delay changes in the control or management of ESPS.
Transfer Agent
The transfer agent and registrar for the common stock is StockTrans, Inc.,
Ardmore, Pennsylvania.
54
<PAGE>
SHARES ELIGIBLE FOR FUTURE SALE
Of the 15,362,182 shares to be outstanding after the offering assuming that
the underwriters do not exercise their over-allotment option, 4,000,000 shares
of common stock will be freely tradeable. After the offering, 10,058,675 shares
will be held by affiliates, as that term is defined in Rule 144(a) under the
Securities Act of 1933. For purposes of Rule 144, an affiliate of ESPS is a
person that, directly or indirectly through one or more intermediaries,
controls, or is controlled by or is under common control with, ESPS. The shares
held by affiliates are restricted securities under the Securities Act of 1933,
which may only be sold in the public market upon the expiration of the holding
periods prescribed by Rule 144, and are subject to the volume and manner of
sale limitations of Rule 144.
In general, under Rule 144 as currently in effect, a person who has
beneficially owned shares for at least two years, including an affiliate, is
entitled to sell, within any three-month period, a number of shares that does
not exceed the greater of:
. one percent of the then outstanding shares of our common stock,
approximately 154,000 shares immediately following the offering, or
. the average weekly trading volume during the four calendar weeks
preceding filing of notice of the sale.
Sales under Rule 144 also must satisfy the manner of sale provisions, notice
requirements and the availability of current public information about us. A
shareholder who is deemed not to have been an affiliate of ours at any time
during the 90 days preceding a sale, and who has beneficially owned restricted
shares for at least two years, would be entitled to sell those shares under
Rule 144(k) without volume limitations, manner of sale provisions or public
information requirements.
Beginning 90 days after the offering, any employee, officer, director or
consultant of ESPS who purchased shares under a written benefit plan or
contract may rely on the resale provisions of Rule 701 to sell shares of our
stock, unless a lock-up agreement has been signed which applies to these
shares. Rule 701 permits affiliates to sell their shares without complying with
the holding period requirements of Rule 144. Rule 701 also permits non-
affiliates to sell shares without complying with the holding period, public
information, volume limitation or notice provisions of Rule 144.
All of our affiliates have agreed to further restrict their shares by
entering into lock-up arrangements discussed below.
We have granted options to purchase shares of our common stock under our
1995 stock incentive plan. As of April 30, 1999, options to purchase 791,860
shares of our common stock were fully vested and exercisable. An additional
221,464 shares were reserved for issuance under the 1995 stock incentive plan.
We intend to register the shares of common stock issuable or reserved for
issuance under the plan upon the completion of this offering.
Lock-up Arrangements
We have entered into lock-up arrangements with our officers and directors,
some employees and some stockholders, except for stockholders owning an
aggregate of 46,045 shares. Our officers and directors and some of our
stockholders have agreed not to sell their shares of our common stock for 180
days after the date of this prospectus without the written consent of Hambrecht
& Quist LLC. Our employees and former employees have agreed not to sell more
than five percent of the sum of the number of shares owned plus the number of
shares which could be issued under any options held for 180 days after the date
of this prospectus. When these lock-up agreements expire, 11,229,475 additional
shares will be available for sale in the public market, subject to the
limitations of Rule 144.
55
<PAGE>
UNDERWRITING
The underwriters named below, through their representatives, Hambrecht &
Quist LLC, BancBoston Robertson Stephens Inc., U.S. Bancorp Piper Jaffray Inc.
and Charles Schwab & Co., Inc. have agreed to purchase the following number of
shares of common stock from ESPS and the selling stockholders:
<TABLE>
<CAPTION>
Number of
Name Shares
---- ---------
<S> <C>
Hambrecht & Quist LLC............................................
BancBoston Robertson Stephens Inc. ..............................
U.S. Bancorp Piper Jaffray Inc...................................
Charles Schwab & Co., Inc........................................
---------
Total.......................................................... 4,000,000
=========
</TABLE>
The underwriters are obligated to purchase shares of common stock offered in
this prospectus if any of the shares are purchased. However, we and the selling
stockholders must satisfy conditions specified in the underwriting agreement,
including demonstrating that there has not been a material adverse change in
our business and providing certificates, opinions and letters from us, the
selling stockholders, counsel and the independent auditors.
The underwriters propose to offer the shares of common stock directly to the
public at the initial public offering price printed on the cover page of this
prospectus and to dealers at the initial public offering price less a maximum
concession of $ per share. The underwriters may allow and the dealers may
reallow a maximum concession of $ per share to brokers and dealers. After
the initial public offering of the shares, the underwriters may change the
offering price and other selling terms.
The following table shows the per share and total underwriting discounts and
commissions to be paid by us and the selling stockholders to the underwriters
in connection with this offering. These amounts assume both no exercise and
full exercise of the underwriters' option to purchase additional shares of
common stock.
<TABLE>
<CAPTION>
Total
-------------------
Without With
Per Over- Over-
Share allotment allotment
----- --------- ---------
<S> <C> <C> <C>
underwriting discounts and commissions paid by us....
underwriting discounts and commissions paid by
selling stockholders................................
</TABLE>
We will pay the offering expenses, estimated to be $1.6 million.
We have granted the underwriters an option exercisable no later than 30 days
after the date of this prospectus to purchase up to 308,308 additional shares
of common stock, and several of the selling stockholders have granted the
underwriters an option to purchase up to 291,692 additional shares of common
stock at the initial public offering price, less the underwriting discount
printed on the cover page of this prospectus. If the underwriters exercise this
option, each of the underwriters will be obligated to purchase a number of
shares that approximately reflects the same percentage of total shares the
underwriter purchased in the above table. We and the selling stockholders will
be obligated to sell the shares to the underwriters. The underwriters may
exercise the option only to cover over-allotments made in connection with the
sale of shares of common stock offered in this prospectus.
The offering of the shares is made for delivery when as and if accepted by
the underwriters. An offer for sale may be withdrawn, cancelled or modified
without notice. The underwriters reserve the right to reject all or part of an
order for the purchase of shares.
56
<PAGE>
We and the selling stockholders have agreed to indemnify the underwriters
against liabilities, including liabilities under the Securities Act, and to
contribute to payments the underwriters may be required to make in connection
with liabilities.
The selling stockholders and other stockholders, including executive
officers and directors, who will own in the aggregate 11,229,475 shares of our
common stock after the offering, have agreed that they will not, without the
written consent of Hambrecht & Quist LLC, offer or sell any shares of our
common stock, options or warrants to acquire shares of our common stock, or
securities exchangeable or convertible into shares of our common stock during
the 180-day period following the date of this prospectus. We have agreed that
we will not, without the written consent of Hambrecht & Quist LLC, offer or
sell any shares of our common stock, options or warrants to acquire shares of
our common stock or securities exchangeable for or convertible into shares of
our common stock during the 180-day period following the date of this
prospectus. We may issue shares upon the exercise of options granted before the
date of this prospectus, and may grant additional options under our stock
option plans, provided that, without the written consent of Hambrecht & Quist
LLC, the additional options shall not be exercisable during the 180-day period.
Persons participating in this offering may over-allot or effect transactions
which stabilize or maintain the market price of our common stock at levels
above those which might 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 our
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. These transactions may be effected on the Nasdaq National Market
or in the over-the-counter market. Stabilizing, if commenced, may be
discontinued at any time.
Before this offering, there has been no market for our common stock. The
initial public offering price for our common stock will be determined by
negotiation among us, the selling stockholders and the representatives. Among
the factors to be considered in determining the initial public offering price
are prevailing market and economic conditions, our revenues and earnings,
market valuations of other companies engaged in activities similar to ours,
estimates of our business potential and prospects, the present state of our
business operations and our management. The estimated initial public offering
price range on the cover of this preliminary prospectus is subject to change as
a result of market conditions.
We have applied for quotation of our common stock on the Nasdaq National
Market under the symbol ESPS.
Under the conduct rules of the National Association of Securities Dealers or
the NASD, due to the ownership interest in ESPS by affiliates of Hambrecht &
Quist LLC, ESPS may be deemed to be an affiliate of Hambrecht & Quist LLC and
because of that this offering is being made under Rule 2720 (d)(2).
Accordingly, the public offering price can be no higher than that recommended
by a qualified independent underwriter. BancBoston Robertson Stephens Inc. has
agreed to serve in this role and to recommend a price to fulfill the
requirements of the NASD conduct rules. BancBoston Robertson Stephens Inc., in
its role as a qualified independent underwriter, has performed a due diligence
investigation and has reviewed and participated in the preparation of this
prospectus and the registration statement which includes this prospectus. The
NASD conduct rules specify that no NASD member participating in the
distribution may confirm sales to those accounts over which it has
discretionary authority without prior specific written consent.
H&Q ESPS Investors, L.P. holds 2,000,000 shares of series A preferred stock,
which will automatically convert into 2,900,000 shares of common stock upon
consummation of this offering. H&Q ESPS Investors,
57
<PAGE>
L.P. is a Delaware limited partnership with two general partners. One of the
general partners is a wholly-owned subsidiary of Hambrecht & Quist California
and the other is a limited liability company whose members are unaffiliated
with the Hambrecht & Quist LLC. In addition, the limited partners of H&Q ESPS
Investors, L.P. include employees of Hambrecht & Quist LLC or directors of
Hambrecht & Quist Group, the parent corporation of Hambrecht & Quist
California. Hambrecht & Quist LLC, one of the underwriters in this offering, is
wholly owned by Hambrecht & Quist California.
Adobe Ventures L.P. holds 565,656 shares of series A preferred stock which
will automatically convert into 820,201 shares of common stock upon
consummation of this offering. H&Q Adobe Ventures Management L.P. is a general
partner of Adobe Ventures L.P. and holds 34,344 shares of series A preferred
stock which will convert into 49,799 shares of common stock upon consummation
of this offering. Adobe Ventures Management Inc., a limited partner of H&Q
Adobe Ventures Management L.P., is a wholly-owned subsidiary of Hambrecht &
Quist California. Hambrecht & Quist LLC, one of the underwriters in this
offering, is wholly owned by Hambrecht & Quist California.
Under the terms of the series A preferred stock, the holders of the series A
preferred stock have had the power to elect one member of our board of
directors which right terminates upon completion of the offering.
LEGAL MATTERS
Morgan, Lewis & Bockius LLP, Philadelphia, Pennsylvania will provide ESPS an
opinion relating to the validity of the common stock issued in this offering.
Brobeck, Phleger & Harrison LLP, New York, New York will provide the
underwriters an opinion related to other matters in this offering.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our financial
statements at March 31, 1999 and 1998, and for each of the three years in the
period ended March 31, 1999, as described in their report. We have included our
financial statements in the prospectus and elsewhere in the registration
statement in reliance on Ernst & Young LLP's report, given on their authority
as experts in accounting and auditing.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
We have filed with the SEC a registration statement on Form S-1 with respect
to the common stock. This prospectus, which constitutes a part of the
registration statement, does not contain all of the information described in
the registration statement or the exhibits and schedules which are part of the
registration statement. For further information with respect to ESPS and the
common stock, refer to the registration statement and the related exhibits and
schedules. You may read and copy any document we file at the SEC's public
reference rooms in Washington, D.C., New York, New York and Chicago, Illinois.
Please call the SEC at 1-800-SEC-0330 for further information about the public
reference rooms. Our SEC filings are also available to the public from the
SEC's web site at http://www.sec.gov. Upon completion of this offering, we must
comply with the information and periodic reporting requirements of the
Securities Exchange Act and will file periodic reports, proxy statements and
other information with the SEC. These periodic reports, proxy statements and
other information will be available for inspection and copying at the SEC's
public reference rooms and the web site of the SEC.
58
<PAGE>
ESPS, INC.
INDEX TO FINANCIAL STATEMENTS
For the years ended March 31, 1997, 1998 and 1999
Contents
<TABLE>
<S> <C>
Report of Independent Auditors.............................................. F-2
Audited Financial Statements
Balance Sheets.............................................................. F-3
Statements of Operations.................................................... F-4
Statements of Stockholders' Equity.......................................... F-5
Statements of Cash Flows.................................................... F-6
Notes to Financial Statements............................................... F-7
</TABLE>
F-1
<PAGE>
REPORT OF INDEPENDENT AUDITORS
The Board of Directors
ESPS, Inc.
We have audited the accompanying balance sheets of ESPS, Inc. as of March
31, 1999 and 1998, and the related statements of operations, stockholders'
equity, and cash flows for each of the three years in the period ended March
31, 1999. 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 that our audits provide a reasonable basis
for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the financial position of ESPS, Inc. at March 31,
1999 and 1998, and the results of its operations and its cash flows for each of
the three years in the period ended March 31, 1999, in conformity with
generally accepted accounting principles.
Ernst & Young LLP
Philadelphia, Pennsylvania
April 28, 1999, except as to Note 13, as to which the date is June , 1999
The foregoing report is in the form that will be signed upon the completion
of the stock split described in Note 13 to the financial statements.
/s/ Ernst & Young LLP
Philadelphia, Pennyslvania
May 18, 1999
F-2
<PAGE>
ESPS, INC.
BALANCE SHEETS
(In thousands)
<TABLE>
<CAPTION>
Proforma
Stockholders'
March 31, Equity at
---------------- March 31,
1998 1999 1999
------- ------- -------------
ASSETS
<S> <C> <C> <C>
Current assets:
Cash and cash equivalents.................... $ 4,558 $ 1,812
Accounts receivable, net of allowance of $50
and $127, respectively...................... 3,616 6,210
Accounts receivable--related party........... 323 158
Deferred income taxes........................ 650 322
Deferred offering costs...................... -- 696
Other current assets......................... 49 340
------- -------
Total current assets....................... 9,196 9,538
Property and equipment, net.................... 763 2,330
Other assets................................... 58 28
------- -------
Total assets............................... $10,017 $11,896
======= =======
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable............................. $ 30 $ 956
Accrued expenses............................. 1,045 2,311
Deferred revenues--current................... 2,802 1,905
Deferred revenues--related party............. 1,200 --
------- -------
Total current liabilities.................. 5,077 5,172
Deferred revenues, less current portion........ 44 --
Stockholders' equity:
Series A preferred stock, $0.001 par value:
Authorized shares--6,000
Issued and outstanding shares--6,000 at
March 31, 1998 and 1999 and 0 proforma
basis as of March 31, 1999 (liquidation
preference of $6,000) .................... 6 6 $ --
Common stock, $0.001 par value;
Authorized shares--50,000
Issued and outstanding shares--1,318 and
3,154 at March 31, 1998 and 1999,
respectively and 11,854 proforma basis as
of March 31, 1999......................... 1 3 12
Additional paid-in capital................... 6,186 6,570 6,567
Retained earnings (accumulated deficit)...... (1,127) 349 349
Deferred stock compensation.................. (170) (204) (204)
------- ------- ------
Total stockholders' equity................. 4,896 6,724 $6,724
------- ------- ======
Total liabilities and stockholders' equity. $10,017 $11,896
======= =======
</TABLE>
See accompanying notes.
F-3
<PAGE>
ESPS, INC.
STATEMENTS OF OPERATIONS
(In thousands, except per share data)
<TABLE>
<CAPTION>
Year ended March 31,
------------------------
1997 1998 1999
------- ------ -------
<S> <C> <C> <C>
Revenues:
Software licenses.................................. $ 648 $6,814 $11,676
Software licenses--related party................... -- -- 1,778
Services and maintenance........................... 420 1,832 4,315
Services and maintenance--related party............ -- -- 180
------- ------ -------
Total revenues................................... 1,068 8,646 17,949
Cost of revenues:
Software licenses.................................. 68 258 298
Services and maintenance........................... 506 1,589 3,193
------- ------ -------
Total cost of revenues........................... 574 1,847 3,491
------- ------ -------
Gross profit......................................... 494 6,799 14,458
Operating expenses:
Research and development........................... 1,407 1,978 3,829
Sales and marketing................................ 714 1,283 5,185
General and administrative......................... 1,147 1,229 3,162
------- ------ -------
Total operating expenses......................... 3,268 4,490 12,176
------- ------ -------
Income (loss) from operations........................ (2,774) 2,309 2,282
Interest, net........................................ (39) 52 130
------- ------ -------
Income (loss) before income taxes.................... (2,813) 2,361 2,412
Income tax provision (benefit)....................... -- (514) 936
------- ------ -------
Net income (loss).................................... $(2,813) $2,875 $ 1,476
======= ====== =======
Earnings (loss) per share:
Basic.............................................. $ (3.51) $ 3.81 $ 0.57
Diluted............................................ (3.51) 0.25 0.10
Shares used in computation of earnings (loss) per
share:
Basic.............................................. 801 754 2,575
Diluted............................................ 801 11,326 14,641
Pro forma earnings per share:
Basic.............................................. $ 0.13
Diluted............................................ 0.10
Shares used in computation of pro forma earnings per
share:
Basic.............................................. 11,275
Diluted............................................ 14,641
</TABLE>
See accompanying notes.
F-4
<PAGE>
ESPS, INC.
STATEMENTS OF STOCKHOLDERS' EQUITY
(In thousands)
<TABLE>
<CAPTION>
Series A Retained
Preferred Stock Common Stock Additional Earnings Deferred Total
----------------- -------------- Paid-In (Accumulated Stock Stockholders'
Shares Amount Shares Amount Capital Deficit) Compensation Equity
-------- ------- ------ ------ ---------- ------------ ------------ -------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Balance at
March 31, 1996......... 2,000 $ 2 854 $-- $1,972 $(1,189) $ -- $ 785
Issuance of series A
preferred stock...... 4,000 4 -- -- 3,996 -- -- 4,000
Stock issuance costs.. -- -- -- -- (10) -- -- (10)
Repurchase of common
stock................ -- -- (323) -- -- -- -- --
Net loss.............. -- -- -- -- -- (2,813) -- (2,813)
-------- ------- ----- ---- ------ ------- ----- ------
Balance at
March 31, 1997......... 6,000 6 531 -- 5,958 (4,002) -- 1,962
Exercise of stock
options.............. -- -- 787 1 58 -- -- 59
Deferred stock
compensation......... -- -- -- -- 170 -- (170) --
Net income............ -- -- -- -- -- 2,875 -- 2,875
-------- ------- ----- ---- ------ ------- ----- ------
Balance at
March 31, 1998......... 6,000 6 1,318 1 6,186 (1,127) (170) 4,896
Exercise of stock
options.............. -- -- 1,836 2 132 -- -- 134
Deferred stock
compensation......... -- -- -- -- 252 -- (252) --
Amortization of
deferred stock
compensation......... -- -- -- -- -- -- 218 218
Net income............ -- -- -- -- -- 1,476 -- 1,476
-------- ------- ----- ---- ------ ------- ----- ------
Balance at
March 31, 1999......... 6,000 $ 6 3,154 $ 3 $6,570 $ 349 $(204) $6,724
======== ======= ===== ==== ====== ======= ===== ======
</TABLE>
See accompanying notes.
F-5
<PAGE>
ESPS, INC.
STATEMENTS OF CASH FLOWS
(In thousands)
<TABLE>
<CAPTION>
Year ended March 31,
-------------------------
1997 1998 1999
------- ------- -------
<S> <C> <C> <C>
Operating activities:
Net income (loss).................................. $(2,813) $ 2,875 $ 1,476
Adjustments to reconcile net income (loss) to net
cash (used in) provided by operating activities:
Depreciation and amortization.................... 170 223 464
Deferred income taxes............................ -- (650) 328
Provision for losses on accounts receivables..... -- 50 77
Amortization of deferred stock compensation...... -- -- 218
Changes in assets and liabilities:
Accounts receivable............................ (370) (3,619) (2,506)
Other current assets........................... (85) (16) (291)
Accounts payable and accrued expenses.......... 93 757 1,579
Deferred revenue............................... 679 3,115 (2,141)
------- ------- -------
Net cash (used in) provided by operating
activities.................................. (2,326) 2,735 (796)
Investing activities:
Purchase of property and equipment................. (224) (547) (2,001)
Financing activities:
Proceeds from issuance of bridge loan.............. 1,500 -- --
Proceeds from the issuance of preferred stock...... 2,500 -- --
Stock issuance and deferred offering costs......... (10) -- (83)
Proceeds from exercise of stock options............ -- 59 134
------- ------- -------
Net cash provided by financing activities.... 3,990 59 51
------- ------- -------
Net increase (decrease) in cash and cash
equivalents....................................... 1,440 2,247 (2,746)
Cash and cash equivalents, beginning of year....... 871 2,311 4,558
------- ------- -------
Cash and cash equivalents, end of year............. $ 2,311 $ 4,558 $ 1,812
======= ======= =======
Supplemental disclosures of cash flow information:
Conversion of bridge loan to preferred stock....... $ 1,500 $ -- $ --
Liability incurred for offering costs.............. $ -- $ -- $ 613
Cash paid for income taxes......................... $ -- $ 6 $ 236
</TABLE>
See accompanying notes.
F-6
<PAGE>
ESPS, INC.
NOTES TO FINANCIAL STATEMENTS
March 31, 1999
1. Business
ESPS, Inc. (formerly Electronic Submission Publishing Systems, Inc.), a
Delaware corporation, is a leading provider of electronic compliance management
solutions to businesses in highly regulated industries. The Company's solution,
which consists of the CoreDossier family of software products and related
services, enables users across departments and throughout an enterprise to
collaborate in the authoring, compilation, distribution, publishing and reuse
of compliance information and regulatory submissions. The Company designed its
CoreDossier software products to utilize advanced technologies, such as
corporate intranets and the Internet, and to meet emerging electronic
compliance requirements and standards. The Company's solution enables its
customers to realize a return on their investment by reducing the cost and
burden of compliance while also reducing the time required to bring new
products and services to market. The Company's initial concentration has been
directed to the pharmaceutical industry.
2. Accounting Policies
Use of Estimates
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the amounts reported in the financial statements and
accompanying notes. Actual results could differ from those estimates.
Recent Pronouncements
The Financial Accounting Standards Board recently issued Statements of
Financial Accounting Standards Nos. 130 and 131, which establish standards for
the reporting of comprehensive income and disclosure concerning segment
information, respectively. The adoption of the requirements of these standards
has not resulted in a material effect on the Company's financial position or
results of operations.
Revenue Recognition
Statement of Position 97-2, Software Revenue Recognition (SOP 97-2), was
issued in October 1997 by the American Institute of Certified Public
Accountants (AICPA) and was amended by Statement of Position 98-4 (SOP 98-4).
The Company adopted SOP 97-2 for fiscal year ending March 31, 1998. Based upon
their interpretation of SOP 97-2 and SOP 98-4, the Company believes its current
revenue recognition policies and practices are consistent with SOP 97-2 and SOP
98-4. However, full implementation guidelines for this standard have not yet
been issued.
Additionally, the AICPA recently issued SOP 98-9, which provides certain
amendments to SOP 97-2 and is effective for transactions entered into after
April 1, 1999. This pronouncement has not and is not expected to materially
impact the Company's revenue recognition practices.
The Company generates revenues through the sale of software licenses and
services and maintenance to end users. Software licenses revenues are generated
from licensing the rights to use the Company's products. Services and
maintenance revenues are generated from sales of customer support services
contracts and consulting and training services performed for customers that
license the Company's products.
Revenues from the sale of software licenses are recognized upon shipment of
software when persuasive evidence of an arrangement exists, collection is
probable, the fee is fixed or determinable, and vendor-specific objective
evidence exists to allocate the total fee to elements of the arrangement.
Vendor-specific
F-7
<PAGE>
ESPS, INC.
NOTES TO FINANCIAL STATEMENTS (Continued)
2. Accounting Policies (continued)
Revenue Recognition (continued)
objective evidence is typically based on the price charged when an element is
sold separately, or, in the case of an element not yet sold separately, the
price established by authorized management, if it is probable that the price,
once established, will not change before market introduction. Elements included
in multiple element arrangements could consist of software products, upgrades,
enhancements, customer support services, or consulting services. If an
acceptance period is required, revenues are recognized upon the earlier of
customer acceptance or the expiration of the acceptance period.
Revenues from maintenance are recognized ratably over the term of the
customer support contract, typically one year. Consulting revenues are
primarily related to implementation services performed on a time-and-materials
basis under separate service arrangements related to the installation of the
Company's software products. Revenues from consulting and training services are
recognized as services are performed. If a transaction includes both license
and service elements, license fee revenues are recognized on shipment of the
software, provided services do not include significant customization or
modification of the base product, and the software is not subject to acceptance
criteria.
Revenues from one customer exceeded 10% of total revenues and accounted for
approximately $1,958,000, of revenues during the year ended March 31, 1999
(Note 8). Revenues from three customers each exceeding 10% of total revenues
accounted for approximately $1,495,000, $1,297,000, and $1,185,000, of total
revenues during the year ended March 31, 1998. Amounts due from these customers
amounted to approximately $193,000 at March 31, 1998. Revenues from four
customers each exceeding 10% of total revenues accounted for approximately
$473,000, $249,000, $200,000 and $146,000 of total revenues during the year
ended March 31, 1997.
Cash and Cash Equivalents
The Company considers as cash equivalents all highly liquid investments with
an original maturity of three months or less.
Fair Value of Financial Instruments
At March 31, 1999, the Company had the following financial instruments: cash
and cash equivalents, accounts receivable, accounts payable and accrued
liabilities. The carrying value of cash and cash equivalents, accounts
receivable, accounts payable and accrued liabilities approximates their fair
value based on the liquidity of these financial instruments or based on their
short-term nature.
Concentration of Credit Risk and Major Customers
Financial instruments that potentially subject the Company to a
concentration of credit risk consist principally of accounts receivable. The
Company's customer base is mainly in North America and Europe and consists of
companies in the pharmaceutical, chemical and utility industries. The Company
does not require collateral or other security to support credit sales, but
provides an allowance for bad debts based on historical experience and
specifically identified risks.
Deferred Offering Costs
As of March 31, 1999, specific incremental costs directly attributable to
the Company's planned initial public offering process have been deferred. These
costs will be charged against additional paid-in capital in connection with the
consummation of this offering.
F-8
<PAGE>
ESPS, INC.
NOTES TO FINANCIAL STATEMENTS (Continued)
2. Accounting Policies (continued)
Property and Equipment
Property and equipment is recorded at cost. Depreciation is computed using
accelerated methods over the estimated useful lives of the related assets which
range from five to seven years.
Research and Development
Research and development costs, which consist primarily of software
development costs, are expensed as incurred. Financial accounting standards
provide for the capitalization of certain software development costs after
technological feasibility of the software is established. Under the Company's
current practice of developing new products and enhancements, the technological
feasibility of the underlying software is not established until substantially
all product development is complete, including the development of a working
model. No such costs have been capitalized because the impact of capitalizing
such costs would not be material.
Accounting for Stock-Based Compensation
Statement of Financial Accounting Standards No. 123, Accounting for Stock-
Based Compensation (SFAS No. 123), provides companies with a choice to follow
the provisions of SFAS No. 123 in determination of stock-based compensation
expenses or to continue with the provisions of Accounting Principles Board
Opinion No. 25, Accounting for Stock Issued to Employees (APB No. 25). The
Company continues to follow APB No. 25 and has provided pro forma disclosures
as required by SFAS No. 123.
Earnings (Loss) Per Share and Pro Forma Earnings Per Share
Basic earnings (loss) per share is computed by dividing net income (loss) by
the weighted average number of common shares outstanding for the period.
Diluted earnings per share reflects the potential dilution of securities by
including other common stock equivalents, including stock options and
convertible preferred stock, in the weighted average number of common shares
outstanding for a period, if dilutive.
Pro forma earnings per share is computed by dividing net income by the
weighted average number of common shares outstanding and the weighted average
convertible preferred stock outstanding as if such shares were converted into
common stock at the time of issuance.
Derivatives
In June 1998, SFAS No. 133, Accounting for Derivatives and Hedging
Activities, was issued which establishes accounting and reporting standards for
derivative instruments, including certain derivative instruments embedded in
other contracts (collectively referred to as derivatives), and for hedging
activities. Because the Company has never used nor currently intends to use
derivatives, management does not anticipate that the adoption of this new
standard will have a significant effect on earnings or the financial position
of the Company. SFAS No. 133 is effective for fiscal years beginning after June
15, 1999.
F-9
<PAGE>
ESPS, INC.
NOTES TO FINANCIAL STATEMENTS (Continued)
3. Property and Equipment
Property and equipment consists of the following (amounts in thousands):
<TABLE>
<CAPTION>
March 31,
-------------
1998 1999
----- ------
<S> <C> <C>
Computer equipment......................................... $ 760 $1,832
Computer software.......................................... 173 237
Furniture, fixtures, and office equipment.................. 271 903
Leasehold improvements..................................... 40 273
----- ------
1,244 3,245
Accumulated depreciation................................... (481) (915)
----- ------
Total property and equipment............................... $ 763 $2,330
===== ======
</TABLE>
4. Accrued Expenses
Accrued expenses consist of the following (amounts in thousands):
<TABLE>
<CAPTION>
March 31,
-------------
1998 1999
------ ------
<S> <C> <C>
Income taxes................................................ $ 136 $ 328
Sales taxes................................................. 241 405
Payroll and related......................................... 397 809
Accrued offering costs...................................... -- 613
Other....................................................... 271 156
------ ------
Total accrued expenses...................................... $1,045 $2,311
====== ======
</TABLE>
5. Capital Stock
The holders of the series A preferred stock are entitled to noncumulative
dividends at a rate of $.08 per share prior to any payment of dividends on
common stock.
Each share of preferred stock is convertible into 1.45 shares of common
stock, subject to adjustment in certain circumstances, and has a liquidation
preference of $1.00 per share. Conversion is at the option of the stockholders
until such time, if ever, that the Company consummates a public offering at a
designated price and from which the Company receives proceeds of at least
$10,000,000 at which time such conversion becomes mandatory. The preferred
stock has voting rights equal to its common stock conversion ratio.
Stock Options
The Company has a stock option plan whereby the Company may grant either
incentive or nonqualified stock options to purchase shares of the Company's
common stock. Twenty-five percent of the options are exercisable on the first
anniversary of the date of grant or the participant's hire date, whichever is
earlier. The additional amounts become exercisable at varying rates from 6.25%
to 9.40% on the last day of each quarter thereafter. The Company has authorized
6,720,170 shares to be issued under the plan.
The incentive stock options may be granted at no less than the fair market
value of the shares at the date of grant, and the nonqualified stock options
are to be granted at no less than eighty-five percent of the
F-10
<PAGE>
ESPS, INC.
NOTES TO FINANCIAL STATEMENTS (Continued)
5. Capital Stock (continued)
Stock Options (continued)
fair market value of the shares at the date of grant. The fair market value of
the Company's common stock is determined by the board of directors based on
Company specific objective evidence, including periodic outside independent
valuations. Under APB No. 25, if the exercise price of the Company's employee
stock options equals the fair value of the underlying stock on the date of
grant, no compensation expense is recognized. During the years ended March 31,
1998 and 1999, the Company determined that certain common stock options were
issued at a price that was lower than the estimated fair value of the common
stock, resulting in deferred compensation expense of $170,000 and $252,000,
respectively. The deferred compensation is being amortized over the vesting
period of the underlying options using a graded vesting schedule. Amortization
expense of $218,000 was recognized during the year ended March 31, 1999.
Amortization of the deferred stock-based compensation balance of $204,000 will
approximate $116,000, $62,000, and $26,000 for the fiscal years ending
March 31, 2000, 2001, 2002, respectively.
The following table summarizes information about stock options outstanding
at March 31, 1999:
<TABLE>
<CAPTION>
Outstanding Exercisable
------------------------------------------------ --------------------------
Weighted Average
Per Share Number of Weighted Average Remaining Contractual Number of Weighted Average
Prices Shares Per Share Price Life (years) Shares Per Share Price
--------- --------- ---------------- --------------------- --------- ----------------
<S> <C> <C> <C> <C> <C>
$0.07-
0.08 2,745,139 $0.07-0.08 3.11 767,572 $0.07
0.34 45,678 0.34 4.21 -- --
2.07 486,475 2.07 4.50 -- --
4.14 152,250 4.14 4.74 -- --
8.28 263,887 8.28 4.49 -- --
10.34 180,888 10.34 4.96 -- --
--------- -------
3,874,317 767,572
========= =======
</TABLE>
FASB No. 123 requires pro forma information regarding net income as if the
Company had accounted for its employee stock options under the fair value
method of that statement. The fair value for these options was estimated at the
date of grant using the minimum value method option pricing model with the
following weighted average assumptions for all periods presented: risk-free
interest rate of 5.2%, dividend yield of 0%, weighted average expected life of
the option of 4 years, and minimum value volatility.
Stock Option Activity
For purposes of pro forma disclosures, the estimated fair value of the
options is amortized to expense over the options' vesting period. The Company's
pro forma information is as follows (in thousands except per share data):
<TABLE>
<CAPTION>
Year ended March 31,
----------------------
1997 1998 1999
------- ------ ------
<S> <C> <C> <C>
Net income (loss):
As reported..................................... $(2,813) $2,875 $1,476
SFAS No. 123 pro forma.......................... (2,815) 2,870 1,309
Diluted earnings (loss) per share:
As reported--diluted............................ (3.51) 0.25 0.10
SFAS No. 123 pro forma.......................... (3.51) 0.25 0.09
</TABLE>
F-11
<PAGE>
ESPS, INC.
NOTES TO FINANCIAL STATEMENTS (Continued)
5. Capital Stock (continued)
Stock Option Activity (continued)
The weighted average fair value of options granted during the years ended
March 31, 1997, 1998, and 1999 for which the estimated fair value of the stock
equaled the exercise price is $0.06, $0.06 and $0.89, respectively. The
weighted average fair value of options granted during the years ended 1998 and
1999 for which the stock price exceeded the exercise price is $0.06 and $1.84,
respectively.
A summary of stock option activity follows:
<TABLE>
<CAPTION>
Weighted
Number of Average Exercise
Shares Price Per Share
----------- ----------------
<S> <C> <C>
Outstanding at April 1, 1996................... 1,496,581 $0.07
Granted...................................... 2,891,300 0.07
Canceled..................................... (72,500) 0.07
----------- -----
Outstanding at March 31, 1997.................. 4,315,381 0.07
Granted...................................... 904,800 0.07
Exercised.................................... (787,169) 0.08
Canceled..................................... (114,368) 0.07
----------- -----
Outstanding at March 31, 1998.................. 4,318,644 0.07
Granted...................................... 1,820,305 3.74
Exercised.................................... (1,837,220) 0.07
Canceled..................................... (427,412) 0.30
----------- -----
Outstanding at March 31, 1999.................. 3,874,317 $1.77
=========== =====
</TABLE>
6. Income Taxes
Deferred income taxes reflect the net tax effects of temporary differences
between the carrying amount of assets and liabilities for financial reporting
purposes and the amounts used for income tax purposes. Significant components
of the Company's net deferred income taxes are as follows (amounts in
thousands):
<TABLE>
<CAPTION>
March 31,
-----------
1998 1999
---- -----
<S> <C> <C>
Current deferred tax assets:
Deferred revenue........................................... $ 18 $ --
Depreciation and amortization.............................. 5 --
Bad debt reserves.......................................... 20 51
Stock compensation and vacation pay........................ -- 153
Other accrued liabilities.................................. 40 18
Tax credits................................................ 60 17
Net operating loss carryforwards........................... 664 83
---- -----
Total deferred tax asset................................. 807 322
Less: valuation allowance.................................... (157) --
---- -----
Net deferred tax asset................................... $650 $ 322
==== =====
</TABLE>
F-12
<PAGE>
ESPS, INC.
NOTES TO FINANCIAL STATEMENTS (Continued)
6. Income Taxes (continued)
A reconciliation of the income tax provision to amounts computed using
federal statutory rates is as follows (amounts in thousands):
<TABLE>
<CAPTION>
Years ended March 31,
-------------------------
1997 1998 1999
------- -------- -------
<S> <C> <C> <C>
Federal statutory rate............................. $ (957) $ 791 $ 820
Change in valuation allowance...................... 951 (1,406) (157)
State income taxes, net............................ -- 90 158
Other.............................................. 6 11 115
------ -------- ------
Income tax provision (benefit)................... $ -- $ (514) $ 936
====== ======== ======
Income tax provision (benefit):
Current:
Federal........................................ $ -- $ -- $ 508
State.......................................... -- 136 100
------ -------- ------
-- 136 608
Deferred:
Federal........................................ -- (598) 270
State.......................................... -- (52) 58
------ -------- ------
-- (650) 328
------ -------- ------
$ -- $ (514) $ 936
====== ======== ======
</TABLE>
For federal income tax purposes, the Company utilized approximately
$1,295,000 of net operating loss carryforwards to reduce taxable income for the
fiscal year ended March 31, 1999. In addition, during the same period the
Company utilized $1,000,000 of net operating losses for state tax purposes. For
state income tax purposes the Company has approximately $1,270,000 of operating
losses which begin to expire in 2006.
7. Commitments
The Company leases its office space under an operating lease. Future minimum
lease payments subsequent to March 31, 1999 are as follows: $237,000 in 2000,
$404,000 in 2001, $379,000 in 2002, $379,000 in 2003, $237,000 in 2004 and
$29,000 thereafter.
Rent expense was approximately $77,000, $96,000, and $697,000 during the
years ended March 31, 1997, 1998, and 1999, respectively.
The Company is obligated to pay royalties to a third party for the use of
its software, which is incorporated into the Company's products. The Company
pays royalties ranging from 1.8% to 2.5% of the net selling price of its
software licenses. Royalty expense is recorded as software licenses revenue is
recognized. The term of this royalty agreement expires in December 1999 and is
subject to renewal.
8. Related Party Transaction
During fiscal 1998, the Company signed a $1,800,000 license agreement with a
related party which required the Company to customize software and grant an
exclusive, nontransferable
F-13
<PAGE>
ESPS, INC.
NOTES TO FINANCIAL STATEMENTS (Continued)
8. Related Party Transaction (continued)
worldwide license to use the customized software. In conjunction with the
agreement, the Company received approximately $900,000 in cash during fiscal
1998 and had a receivable of $300,000 as of March 31, 1998 relating to license
fees. As of March 31, 1998, the Company deferred all revenue relating to this
contract, as delivery of the product had not occurred as of March 31, 1998.
The Company recognized the revenue related to this contract after delivery
occurred in June of 1998 over the period that the required services were
performed. The Company recognized $1,800,000 of revenue related to this
agreement during the fiscal year ended March 31, 1999.
The agreement also includes a royalty arrangement in which the Company
receives royalties based on sales of the software product. The Company received
royalties of approximately $158,000 during the fiscal year ended March 31,
1999.
9. Employee Benefit Plan
The Company maintains a retirement plan for eligible employees under the
provisions of Internal Revenue Code section 401(k). Participants may defer a
portion of their annual compensation on a pretax basis, subject to maximum
limits on contributions prescribed by law. Contributions by the Company are at
the discretion of the board of directors. No discretionary contributions have
been made by the Company to date.
10. International Operations
The Company licenses and markets its products through direct channels
throughout the world. Information about the Company's operations in different
geographic regions is shown below. Revenues were attributed to geographic areas
based on the location of the customer (amounts in thousands.)
<TABLE>
<CAPTION>
Year ended March 31,
---------------------
1997 1998 1999
------ ------ -------
<S> <C> <C> <C>
Revenues:
United States..................................... $1,068 $7,449 $14,631
United Kingdom.................................... -- 778 2,137
Rest of world..................................... -- 419 1,181
------ ------ -------
Total revenues...................................... $1,068 $8,646 $17,949
====== ====== =======
</TABLE>
The majority of the rest of world revenue is from countries within
continental Europe.
<TABLE>
<CAPTION>
Year ended March 31,
----------------------
1997 1998 1999
------ ------ --------
<S> <C> <C> <C>
Long-lived assets:
United States.................................... $ 401 $ 747 $ 2,027
United Kingdom................................... 9 16 303
------ ------ --------
Total long-lived assets............................ $ 410 $ 763 $ 2,330
====== ====== ========
</TABLE>
F-14
<PAGE>
ESPS, INC.
NOTES TO FINANCIAL STATEMENTS (Continued)
11. Earnings (Loss) Per Share
The following table sets forth the computation of basic and diluted earnings
(loss) per share (in thousands except per share data):
<TABLE>
<CAPTION>
Years ended March 31,
-----------------------
1997 1998 1999
------- ------ -------
<S> <C> <C> <C>
Net income (loss)...................................... $(2,813) $2,875 $ 1,476
======= ====== =======
Weighted average number of common shares outstanding... 801 754 2,575
Effect of dilutive securities:
Stock options........................................ -- 1,872 3,366
Series A preferred stock............................. -- 8,700 8,700
------- ------ -------
Adjusted weighted average shares outstanding and
assumed conversions................................... 801 11,326 14,641
======= ====== =======
Pro forma adjustment to weighted average number of
common shares outstanding for the conversion of series
A preferred stock..................................... 8,700
-------
Pro forma weighted average shares:
Basic................................................ 11,275
=======
Diluted.............................................. 14,641
=======
Earnings (loss) per share:
Basic................................................ $ (3.51) $ 3.81 $ 0.57
Diluted.............................................. (3.51) 0.25 0.10
Pro forma earnings per share:
Basic................................................ $ 0.13
Diluted.............................................. 0.10
</TABLE>
Due to their antidilutive effects, series A preferred stock and outstanding
stock options to purchase shares of common stock were excluded from the
computation of diluted (loss) per share for the fiscal year ended March 31,
1997.
12. Initial Public Offering
On March 30, 1999, the board of directors of the Company authorized
management to pursue an underwritten sale of shares of the Company's common
stock in an initial public offering ("IPO") pursuant to the Securities Act of
1933. Upon closing of the IPO, all outstanding shares of the series A preferred
stock will automatically convert into an aggregate of 8,700,000 shares of
common stock.
13. Subsequent Events
On May 17, 1999, the board of directors approved a 1.45 for 1 stock split in
the form of a stock dividend to be effective immediately prior to the
effectiveness of their initial public offering. All periods presented have been
restated to reflect this stock split. Further, on May 17, 1999, the Company
authorized an additional 1,160,000 shares to be issued under its stock option
plan.
F-15
<PAGE>
ESPS, INC.
NOTES TO FINANCIAL STATEMENTS (Continued)
14. Pro Forma Information (unaudited)
The pro forma financial statements include unaudited pro forma information
as of March 31, 1999 to reflect the conversion of all outstanding shares of
series A preferred stock into shares of common stock, upon consummation of the
Company's IPO. This information does not give effect to the proceeds from the
IPO.
F-16
<PAGE>
[Graphic: The ESPS logo appears on a background depicting a spiral. The
following text appears below the logo: "CoreDossier Enabling e-Compliance"]
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
4,000,000 Shares
Common Stock
--------------
PROSPECTUS
--------------
Hambrecht & Quist
BancBoston Robertson Stephens
U.S. Bancorp Piper Jaffray
Charles Schwab & Co., Inc.
--------------
, 1999
--------------
You should rely only on information contained in this prospectus. We have
not authorized anyone to provide you with information different from that
contained in this prospectus. We are offering to sell, and seeking offers to
buy, shares of common stock only in jurisdictions where offers and sales are
permitted. The information contained in this prospectus is accurate only as of
the date of this prospectus, regardless of the time of delivery of this
prospectus or of any sale of our common stock.
No action is being taken in any jurisdiction outside the United States to
permit a public offering of the common stock or possession or distribution of
this prospectus in any such jurisdiction. Persons who come into possession of
this prospectus in jurisdictions outside the United States are required to
inform themselves about and to observe any restrictions as to this offering and
the distribution of this prospectus applicable to that jurisdiction.
Until , 1999, all dealers that buy, sell or trade in our common stock,
whether or not participating in this offering, may be required to deliver a
prospectus. This is in addition to the dealers' obligation to deliver a
prospectus when acting as underwriters and with respect to their unsold
allotments or subscriptions.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution
The expenses (other than underwriting discounts and commissions and the
underwriters' non-accountable expense allowance) payable in connection with the
sale of the common stock offered in this Registration Statement are as follows:
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee.................. $ 12,788
NASD filing fee...................................................... 5,100
Nasdaq filing fee.................................................... 95,000
Printing and engraving expenses...................................... 175,000
Directors' and officers' liability insurance......................... 450,000
Legal fees and expenses.............................................. 400,000
Accounting fees and expenses......................................... 450,000
Blue Sky fees and expenses (including legal fees).................... 10,000
Transfer agent and rights agent and registrar fees and expenses...... 10,000
Miscellaneous........................................................ 32,112
----------
Total............................................................ $1,640,000
==========
</TABLE>
All expenses are estimated except for the SEC fee and the NASD fee.
Item 14. Indemnification of Directors and Officers
ESPS's certificate of incorporation permits indemnification to the fullest
extent permitted by Delaware law. ESPS's bylaws require ESPS to indemnify any
person who was or is an authorized representative of ESPS, and who was or is a
party or is threatened to be made a party to any corporate proceeding, by
reason of the fact that such person was or is an authorized representative of
ESPS, against expenses, judgments, penalties, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with
such third party proceeding if such person acted in good faith and in a manner
such person reasonably believed to be in, or not opposed to, the best interests
of ESPS and, with respect to any criminal third party proceeding (including any
action or investigation which could or does lead to a criminal third party
proceedings had no reasonable cause to believe such conduct was unlawful. ESPS
shall also indemnify any person who was or is an authorized representative of
ESPS and who was or is a party or is threatened to be made a party to any
corporate proceeding by reason of the fact that such person was or is an
authorized representative of ESPS, against expenses actually and reasonably
incurred by such person in connection with the defense or settlement of such
corporate action if such person acted in good faith and in a manner reasonably
believed to be in, or not opposed to, the best interests of ESPS, except that
no indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to ESPS unless and only
to the extent that the Delaware Court of chancery or the court in which such
corporate proceeding was pending shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such authorized representative is fairly and reasonably entitled to indemnity
for such expenses which the Court of Chancery or such other court shall deem
proper. Such indemnification is mandatory under the ESPS's bylaws as to
expenses actually and reasonably incurred to the extent that an authorized
representative of ESPS had been successful on the merits or otherwise in
defense of any third party or corporate proceeding or in defense of any claim,
issue or matter therein. The determination of whether an individual is entitled
to indemnification may be made by a majority of disinterested directors,
independent legal counsel in a written legal opinion or the stockholders.
Delaware law also permits indemnification in connection with a proceeding
brought by or in the right of ESPS to procure a judgment in its favor. Insofar
as indemnification for liabilities
II-1
<PAGE>
arising under the Securities Act of 1933 may be permitted to directors,
officers or persons controlling ESPS pursuant to the foregoing provisions, ESPS
has been informed that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities
Act of 1933 and is therefore unenforceable. ESPS expects to obtain a directors
and officers liability insurance policy prior to the effective date of this
Registration Statement.
The Underwriting Agreement provides that the underwriter is obligated, under
certain circumstances, to indemnify directors, officers, and controlling
persons of ESPS against certain liabilities, including liabilities under the
Securities Act of 1933. Reference is made to Section 7 of the form of
Underwriting Agreement which will be filed by amendment as Exhibit 1.1 to this
Registration Statement.
Item 15. Recent Sales of Unregistered Securities
In the preceding three years, ESPS has issued the following securities that
were not registered under the Securities Act of 1933:
In March 1997, ESPS sold 4,000,000 shares of series A preferred stock par
value $.001 per share at a purchase price of $1.00 per share. All of such sales
were made under the exemption from registration provided under Section 4(2) of
the Securities Act of 1933.
Since inception through April 30, 1999, ESPS has granted options to purchase
a total of 6,498,706 shares of common stock at a weighted average exercise
price of $1.34 per share under its 1995 stock incentive plan. In the past three
years ESPS issued an aggregate of 2,624,390 shares of common stock par value
$.001 per share upon the exercise of options granted under the 1995 stock
incentive plan as follows:
<TABLE>
<CAPTION>
Shares Exercise Price Per Share
------ ------------------------
<S> <C>
1,527,827 .07
1,096,563 .08
</TABLE>
For a more detailed description of this plan, see "Management--Employee
Benefit Plans" in this registration statement. In granting the options and
selling the underlying securities upon exercise of the options, ESPS is relying
upon exemptions from registration set forth in Rule 701 and Section 4(2) of the
Securities Act of 1933.
II-2
<PAGE>
Item 16. Exhibits and Financial Statement Schedules
(a) Exhibits:
<TABLE>
<CAPTION>
Exhibit
Number Description
------- -----------
<C> <S>
1.1 Form of Underwriting Agreement.
3.1 Form of Second Amended and Restated Certificate of Incorporation of
the Company.
3.2 Form of Second Amended and Restated Bylaws of the Company.
5.1 Opinion of Morgan, Lewis & Bockius LLP.
10.1+ 1995 Stock Incentive Plan, as amended.
10.2+ Lease between Maplewood Center Limited Partnership and the Company
dated June 10, 1998.
10.3+ ESPS Rights Agreement dated July 5, 1994.
10.4 License and Marketing Agreement between Adobe Systems Incorporated
and the Company dated November 6, 1997.
10.5#+ Value Added Reseller License Agreement between Versant Object
Technology and the Company dated December 31, 1996.
10.6+ Convertible Promissory Note between Adobe Ventures L.P. and the
Company dated July 29, 1996.
10.7+ Convertible Promissory Note between Adobe Ventures L.P. and the
Company dated September 18, 1996.
10.8+ Convertible Promissory Note between Adobe Ventures L.P. and the
Company dated November 6, 1996.
10.9 Series A Preferred Stock Purchase Agreement between Adobe Ventures
L.P., H&Q Investors L.P. and the Company.
10.10+ ESPS, Inc. Employee Stock Purchase Plan.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Morgan, Lewis & Bockius LLP (to be included in Exhibit
5.1).
24.1+ Power of Attorney (included on signature page).
27.1+ Financial Data Schedule.
</TABLE>
- --------------------
+ Previously filed.
# We have requested confidential treatment of certain portions of this exhibit
pursuant to Rule 406 of the Securities Act of 1933. The entire agreement has
been filed separately with the Securities and Exchange Commission.
(b) Financial Statement Schedules
All information for which provision is made in the applicable accounting
regulations of the Securities and Exchange Commission is either included in the
financial statements or is not required under the related instructions or are
inapplicable, and therefore have been omitted.
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
II-3
<PAGE>
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
20 percent change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
registration statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the registrant
pursuant to provisions described in Item 14 above, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
The undersigned registrant hereby undertakes (1) to provide to the
underwriter at the closing specified in the standby underwriting agreement,
certificates in such denominations and registered in such names as required by
the underwriter to permit prompt delivery to each purchaser; (2) that for
purposes of determining any liability under the 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
registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Act shall be
deemed to be part of this registration statement as of the time it was declared
effective; and (3) that for the purpose of determining any liability under the
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.
The undersigned registrant hereby undertakes to supplement the prospectus,
after the expiration of the subscription period, to set forth the results of
the subscription offer, the transactions by the underwriters during the
subscription period, the amount of unsubscribed securities to be purchased by
the underwriters, and the terms of any subsequent reoffering thereof. If any
public offering by the underwriters is to be made on terms differing from those
set forth on the cover page of the prospectus, a post-effective amendment will
be filed to set forth the terms of such offering.
II-4
<PAGE>
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 Fort Washington, Pennsylvania, on
June 2, 1999.
ESPS, Inc.
/s/ Terrence P. Brennan
By: _________________________________
Terrence P. Brennan
Chief Executive Officer
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 date indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Terrence P. Brennan President, Chief Executive June 2, 1999
______________________________________ Officer and Director
Terrence P. Brennan (Principal Executive
Officer)
/s/ Leonard W. von Vital Chief Financial Officer June 2, 1999
______________________________________ (Principal Financial and
Leonard W. von Vital Accounting Officer)
* Director June 2, 1999
______________________________________
Charles O. Heller
* Director June 2, 1999
______________________________________
Christopher B. Hollenbeck
* Director June 2, 1999
______________________________________
Michael J. Egan
* /s/ Leonard W. von Vital June 2, 1999
______________________________________
Leonard W. von Vital
As Attorney-in-Fact
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
------- -----------
<C> <S>
1.1 Form of Underwriting Agreement.
3.1 Form of Second Amended and Restated Certificate of Incorporation of
the Company.
3.2 Form of Second Amended and Restated Bylaws of the Company.
5.1 Opinion of Morgan, Lewis & Bockius LLP.
10.1+ 1995 Stock Incentive Plan, as amended.
10.2+ Lease between Maplewood Center Limited Partnership and the Company
dated June 10, 1998.
10.3+ ESPS Rights Agreement dated July 5, 1994.
10.4 License and Marketing Agreement between Adobe Systems Incorporated
and the Company dated November 6, 1997.
10.5#+ Value Added Reseller License Agreement between Versant Object
Technology and the Company dated December 31, 1996.
10.6+ Convertible Promissory Note between Adobe Ventures L.P. and the
Company dated July 29, 1996.
10.7+ Convertible Promissory Note between Adobe Ventures L.P. and the
Company dated September 18, 1996.
10.8+ Convertible Promissory Note between Adobe Ventures L.P. and the
Company dated November 6, 1996.
10.9 Series A Preferred Stock Purchase Agreement between Adobe Ventures
L.P., H&Q Investors L.P. and the Company.
10.10+ ESPS, Inc. Employee Stock Purchase Plan.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Morgan, Lewis & Bockius LLP (to be included in
Exhibit 5.1).
24.1+ Power of Attorney (included on signature page).
27.1+ Financial Data Schedule.
</TABLE>
- ---------------------
+ Previously filed.
# We have requested confidential treatment of certain portions of this exhibit
pursuant to Rule 406 of the Securities Act of 1933. The entire agreement has
been filed separately with the Securities and Exchange Commission.
II-6
<PAGE>
ESPS, INC.
__________ Shares/1/
Common Stock
UNDERWRITING AGREEMENT
----------------------
, 1999
HAMBRECHT & QUIST LLC
BANCBOSTON ROBERTSON STEPHENS INC.
U.S. BANCORP PIPER JAFFRAY INC.
CHARLES SCHWAB & CO., INC.
c/o Hambrecht & Quist LLC
One Bush Street
San Francisco, CA 94104
Ladies and Gentlemen:
ESPS, Inc., a Delaware corporation (herein called the "Company"),
proposes to issue and sell __________ shares of its authorized but unissued
Common Stock, $0.001 par value per share (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 proposes to grant to
the Underwriters (as hereinafter defined) an option to purchase up to __________
additional shares of Common Stock and certain of the Selling Securityholders
propose to grant to the Underwriters (as hereinafter defined) an option to
purchase up to __________ additional shares of Common Stock. The additional
__________ shares of Common Stock to be sold by the Company and the additional
__________ shares of Common Stock to be sold by the Selling Securityholders
pursuant to such option are herein collectively 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 as representative, 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
/1/ Plus an option to purchase from the Company and certain of the Selling
Securityholders up to an aggregate of _________________ additional shares to
cover over-allotments.
<PAGE>
other Underwriters to enter into this Agreement on its behalf and to act for it
in the manner herein provided.
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. 333-75397), 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) The Company has been duly organized and is validly existing as a corporation
in good standing under the laws of the State of Delaware, 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
2
<PAGE>
makes qualification necessary (except where the failure to be so qualified
would not have a material adverse effect on the earnings, business,
prospects, management, properties, assets, rights, condition (financial or
otherwise) or results of operations of the Company (herein called a
"Material Adverse Effect"). The Company does not own or control, directly
or indirectly, any corporation, association or other entity.
(ii) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any material
adverse change in the earnings, business, prospects, management,
properties, assets, rights, condition (financial or otherwise) or results
of operations of the Company, 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, the Company has not entered into any
material transaction not referred to in the Registration Statement and the
Prospectus.
(iii) The Registration Statement and the Prospectus comply on the Effective Date
and at all subsequent times 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 and at all subsequent times will not contain any untrue statement
of a material fact or 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 at all
subsequent times 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 outstanding shares of capital stock of the Company have been duly
authorized and validly issued and are fully paid and non-assessable; the
Stock to be issued and sold by the Company has been duly authorized and,
when issued and paid for as contemplated herein, will be validly issued,
fully paid and non-assessable; and no preemptive, co-sale right,
registration right, right of first refusal or other similar rights of
stockholders exist with respect to any of the Stock or the issue and sale
thereof, other than those rights which have been waived with respect to the
stock. No further approval or authority of the stockholders or the Board
of Directors of the Company will be required for the issuance and sale of
the Stock as contemplated herein. The Stock to be sold by the Selling
Securityholders, when issued, were validly issued, fully paid and
nonassessable. Neither the filing of the Registration Statement nor the
offering or sale of the Stock as contemplated by this Agreement gives rise
to any rights, other than those which have been waived or satisfied, for or
relating to the registration of any shares of capital stock. Except as
described in the Prospectus, there are no contracts, agreements or
understandings between the Company and any person granting such person the
right to require the Company to file a registration statement under the
Securities Act with respect
3
<PAGE>
to any securities of the Company owned or to be owned by such person or to
require the Company to include such securities in the securities registered
pursuant to the Registration Statement or in any securities being
registered pursuant to any other registration statement filed by the
Company under the Securities Act. Except as described in the Prospectus,
there are no outstanding subscriptions, rights, warrants, options, calls,
convertible securities, commitments of sale or liens related to or
entitling any person to purchase or otherwise to acquire any shares of the
capital stock of, or other ownership interest in, the Company.
(v) The information set forth under the caption "Capitalization" in the
Prospectus is true and correct in all material respects. All of the Stock
conforms in all material respects to the description thereof contained in
the Registration Statement. The form of certificates for the Stock
conforms to the legal requirements of the jurisdiction of the Company's
incorporation.
(vi) The Commission has not issued an order preventing or suspending the use of
any Prospectus relating to the proposed offering of the Stock, nor, to the
best knowledge of the Company, instituted proceedings for that purpose.
(vii) The Stock has been approved for listing on the Nasdaq National Market,
subject only to official notice of issuance.
(viii) The Company has full corporate power and authority to enter into this
Agreement and perform the transactions contemplated hereby. This
Agreement has been duly authorized, executed and delivered by the Company
and is a valid and binding agreement on the part of the Company,
enforceable in accordance with its terms, except as rights to
indemnification hereunder may be limited by applicable law and except as
the enforcement hereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to
or affecting creditors' rights generally or by general equitable
principles; the performance of this Agreement and the consummation of the
transactions herein contemplated will not result in a material breach or
violation of any of the terms and provisions of, or constitute a default
under, (i) any bond, debenture, note or other evidence of indebtedness,
or under any lease, contract, license, indenture, mortgage, deed of
trust, loan agreement, joint venture or other agreement or instrument to
which the Company is a party or by which its properties may be bound,
(ii) the charter or bylaws of the Company, or (iii) any law, order, rule,
regulation, writ, injunction, judgment or decree of any court, government
or governmental agency or body, domestic or foreign, having jurisdiction
over the Company or its properties except where such breach, violation or
default would not have a Material Adverse Effect. No consent, approval,
authorization or order of or qualification with any court, government or
governmental agency or body, domestic or foreign, having jurisdiction
over the Company or over its properties is required for the execution and
delivery of this Agreement and the consummation by the Company of the
transactions herein contemplated, except such as may be required under
the Act or under state or other securities or Blue Sky laws, all of which
requirements have been satisfied in all material respects.
4
<PAGE>
(ix) The Company has not sustained, since the date of the latest audited
financial statements included in the Prospectus, any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus; and, since such date, there has not been
any material change in the capital stock or long-term debt of the Company
or any material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of the
Company, otherwise than as set forth or contemplated in the Prospectus.
(x) The audited financial statements of the Company, together with the related
notes and supporting schedules, and the unaudited financial statements,
filed as part of the Registration Statement or included or incorporated by
reference in the Prospectus, fairly present the financial condition and
results of operations of the Company at the dates and for the periods
indicated, in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved. The
unaudited financial statements (including related notes) filed as part of
the Registration Statement or included in the Prospectus include all
adjustments, consisting of normal recurring adjustments, that the Company
considers necessary for a fair presentation of the financial position and
results of operations for these periods. The selected and summary
financial and statistical data included in the Registration Statement
present fairly the information shown therein and have been compiled on a
basis consistent with the audited financial statements presented therein.
No other financial statements or schedules are required to be included in
the Registration Statement.
(xi) Ernst & Young LLP, who has audited the balance sheets of the Company as of
March 31, 1998 and 1999 and the related statements of operations,
stockholder's equity and cash flows, together with the related schedules
and notes for each of the three (3) years in the period ended March 31,
1999, whose report appears in the Registration Statement and in the
Prospectus and who have delivered the Original Letter referred to in
Section 9(f) hereof, are independent public accountants as required by and
within the meaning of the Securities Act and the Rules and Regulations.
(xii) All real property and buildings held under lease by the Company are held
by them under valid and enforceable leases except as may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting creditors' rights generally or by
general equitable principles, with such exceptions as would not have a
Material Adverse Effect.
(xiii) The Company carries, or maintain insurance in such amounts and covering
such risks as is reasonably adequate for the conduct of its business and
the value of its properties. The Company has not been refused any
insurance coverage sought or applied for; and the Company has no reason
to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage
from similar insurers as may be necessary to continue its business at a
cost that would not have a Material Adverse Effect.
5
<PAGE>
(xiv) The Company owns or possesses adequate rights to use all inventions,
designs, computer programs, computer code, communications protocols,
security devices, trade secrets, know-how, trademarks, service marks,
trade names, copyright works or other information (herein collectively
called Intellectual Property) which are necessary to conduct its business
as described in the Registration Statement and the Prospectus; the Company
has not received any notice of, and has no knowledge of, any infringement
of or conflict with any rights of the Company by others with respect to
any Intellectual Property which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would have a
Material Adverse Effect; the Company has not received any notice of, and
has no knowledge of, any infringement of or conflict with any rights of
others with respect to any Intellectual Property which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding,
would have a Material Adverse Effect; none of the Intellectual Property
licensed to or by the Company are unenforceable or invalid; and the
Company is not aware of the granting of any patent rights to third parties
or the filing of any patent applications by third parties or any other
rights of third parties to any Intellectual Property owned by the Company.
(xv) There are no legal, governmental or administrative proceedings pending to
which the Company is a party or of which any property or assets of the
Company is the subject which, if determined adversely to the Company, may
have a Material Adverse Effect, and to the Company's best knowledge, no
such proceedings are threatened or contemplated by governmental authorities
or by others.
(xvi) There are no contracts or other documents which are required to be
described in the Prospectus or filed as exhibits to the Registration
Statement by the Securities Act or by the Rules and Regulations which have
not been described in the Prospectus or filed as exhibits to the
Registration Statement.
(xvii) There are no outstanding loans, advances (except normal advances for
business expenses in the ordinary course of business) or guarantees of
indebtedness by the Company to or for the benefit of any of the officers
or directors of the Company or any of the members of the families of any
of them, which is required to be disclosed in the Registration Statement
and the Prospectus which is not so disclosed. No relationship, direct or
indirect, exists between the Company on the one hand, and the directors,
officers, stockholders, collaboration partners, joint venturers,
licensees, licensors, consultants, customers or suppliers of the Company
on the other hand, which is required to be described in the Prospectus
which is not so described.
(xviii) No labor disturbance by the employees of the Company exists or, to the
knowledge of the Company, is imminent which might be expected to have a
Material Adverse Effect. No collective bargaining agreement exists with
any of the Company's employees and, to the best of the Company's
knowledge, no such agreement is imminent.
(xix) The Company has filed all federal, state and local income and franchise
tax returns required to be filed through the date hereof and have paid all taxes
due thereon, and no tax deficiency has been determined adversely to the Company
which
6
<PAGE>
will have (nor does the Company have any knowledge of any tax deficiency which,
if determined adversely to the Company, might have) a Material Adverse Effect.
All tax liabilities are adequately provided for on the books of the Company. The
Company is not currently subject to any audit by any tax authorities and, to the
Company's knowledge, no such audit is threatened or contemplated by any such
authorities.
(xx) Since the date as of which information is given in the Prospectus through
the date hereof, and except as may otherwise be disclosed in the
Prospectus, the Company has not (i) issued or granted or obligated
themselves to issue or grant any securities, other than option grants
pursuant to the Company's stock option plan in the ordinary course of
business and consistent with past practice, (ii) incurred any liability or
obligation, direct or contingent, other than liabilities and obligations
which were incurred in the ordinary course of business, (iii) entered into
any transaction not in the ordinary course of business or (iv) declared or
paid any dividend on their capital stock.
(xxi) The Company (i) makes and keeps accurate books and records and (ii)
maintains internal accounting controls which provide reasonable assurances that
(A) transactions are executed in accordance with management's authorization, (B)
transactions are recorded as necessary to permit preparation of their financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for its assets, (C) access to its assets is permitted
only in accordance with management's authorization and (D) the reported
accountability for its assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
(xxii) The Company (i) is not in violation of their charter or bylaws, (ii) is
not in default in any material respect, and no event has occurred which, with
notice or lapse of time or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition contained in any
license agreement, purchase order, manufacturing or supply agreement,
collaboration agreement, material indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which it is a party or by which it
is bound or to which any of its properties or assets is subject, other than as
would not cause a Material Adverse Effect (and, to its knowledge, no other party
to any such agreement is in default thereof and no event has occurred which,
with notice, lapse of time or both, would constitute such a default), or (iii)
is not in violation in any material respect of any law, ordinance, governmental
rule, regulation or court decree to which it or its property or assets may be
subject and the Company has not failed to obtain any material license, permit,
certificate, franchise or other governmental authorization or permit necessary
for the ownership of their property or to the conduct of their businesses, other
than as would not cause a Material Adverse Effect.
(xxiii) Each approval, consent, order, authorization, designation, declaration
or filing by or with any regulatory, administrative or other governmental body
necessary in connection with the execution and delivery by the Company of this
Agreement and the consummation of the transactions herein contemplated (except
such additional steps as may be required by the National Association of
Securities Dealers, Inc. (herein called the "NASD") or such additional steps as
may be necessary to qualify
7
<PAGE>
the Stock for public offering by the Underwriters under state securities or blue
sky laws) has been obtained or made and is in full force and effect.
(xxiv) The Company is in compliance in all material respects with all presently
applicable provisions of the Employee Retirement Income Security Act of 1974, as
amended, including the regulations and published interpretations thereunder
(herein called "ERISA"); no "reportable event" (as defined in ERISA) has
occurred with respect to any "pension plan" (as defined in ERISA) for which the
Company would have any liability; the Company has not incurred and does not
expect to incur liability under (i) Title IV of ERISA with respect to
termination of, or withdrawal from, any "pension plan" or (ii) Sections 412 or
4971 of the Internal Revenue Code of 1986, as amended, including the regulations
and published interpretation thereunder (herein called the "Code"); and each
"pension plan" for which the Company would have any liability that is intended
to be qualified under Section 401(a) of the Code is so qualified in all material
respects and nothing has occurred, whether by action or by failure to act, that
would cause the loss of such qualification.
(xxv) Except as set forth in the Registration Statement and Prospectus, (i) and
except as would not, singularly or in the aggregate have a Material Adverse
Effect, the Company is in compliance with all rules, laws and regulations
relating to the use, treatment, storage and disposal of toxic substances and
protection of health or the environment ("Environmental Laws") which are
applicable to its business, (ii) the Company has not received any notice from
any governmental authority or third party of an asserted claim under
Environmental Laws, which claim is required to be disclosed in the Registration
Statement and the Prospectus, and (iii) to the best of its knowledge, the
Company will not be required to make future material capital expenditures to
comply with Environmental Laws. There has been no storage, disposal,
generation, manufacture, refinement, transportation, handling or treatment of
toxic wastes, medical wastes, hazardous wastes or hazardous substances by the
Company (or, to the knowledge of the Company, any of its or their predecessors
in interest) at, upon or from any of the property now or previously owned or
leased by the Company in violation of any applicable law, ordinance, rule,
regulation, order, judgment, decree or permit or which would require remedial
action under any applicable law, ordinance, rule, regulation, order, judgment,
decree or permit, except for any violation or remedial action which would not
have, or could not be reasonably likely to have, singularly or in the aggregate
with all such violations and remedial actions, a Material Adverse Effect; there
has been no material spill, discharge, leak, emission, injection, escape,
dumping or release of any kind onto such property or into the environment
surrounding such property of any toxic wastes, medical wastes, solid wastes,
hazardous wastes or hazardous substances due to or caused by the Company or with
respect to which the Company has knowledge, except for any such spill,
discharge, leak, emission, injection, escape, dumping or release which would not
have or would not be reasonably likely to have, singularly or in the aggregate
with all such spills, discharges, leaks, emissions, injections, escapes,
dumpings and releases, a Material Adverse Effect; and the terms "hazardous
wastes," "toxic wastes," "hazardous substances" and "medical wastes" shall have
the meanings specified in any applicable local, state, federal and foreign laws
or regulations with respect to environmental protection.
8
<PAGE>
(xxvi) The Company possesses such valid and current certificates,
authorizations or permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to conduct their business, and the
Company has not received any notice of proceedings relating to the revocation or
modification of, or non-compliance with, any such certificate, authorization or
permit which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, could result in a Material Adverse Effect.
(xxvii) The Company has been advised concerning the Investment Company Act of
1940, as amended (the "1940 Act"), and the rules and regulations thereunder, and
has in the past conducted, and intends in the future to conduct, its affairs in
such a manner as to ensure that it will not become an "investment company" or a
company "controlled" by an "investment company" within the meaning of the 1940
Act and such rules and regulations.
(xxviii) The Company has not at any time during the last five (5) years (i)
made any unlawful contribution to any candidate for foreign office or failed to
disclose fully any contribution in violation of law, or (ii) made any payment to
any foreign, federal or state governmental officer or official, or other person
charged with similar public or quasi-public duties, other than payments required
or permitted by the laws of the United States or any jurisdiction thereof.
(xxix) The statements in the Prospectus, under the heading "Certain
Transactions," set forth all existing agreements, arrangements, understandings
or transactions, or proposed agreements, arrangements, understandings or
transactions, between the Company, on the one hand, and any officer, director or
stockholder of the Company, or with any partner, affiliate or associate of any
of the foregoing persons or entities, on the other hand, required to be set
forth or described thereunder.
(xxx) There are no issues related to the Company's preparedness for the Year
2000 (i) that are of a character required to be described or referred to in the
Registration Statement or Prospectus by the Act or the Rules and Regulations
which have not been accurately described in the Registration Statement or
Prospectus or (ii) which have not been accurately described in the Registration
Statement or Prospectus and might reasonably be expected to result in any
Material Adverse Change. All internal computer systems and each Constituent
Component (as defined below) of those systems and all computer-related products
and each Constituent Component of those products of the Company fully comply
with the Year 2000 Qualification Requirements. Year 2000 Qualification
Requirements means that the internal computer systems and each Constituent
Component of those systems and all computer-related products and each
Constituent Component of those products of the Company (i) have been reviewed to
confirm that they store, process (including sorting and performing mathematical
operations, calculations and computations), input and output data containing
date and information correctly regardless of whether the date contains dates and
times before, on or after January 1, 2000, (ii) have been designated to ensure
date and time entry recognition, calculations that accommodate same century and
multi-century formulas and date values, leap year recognition and calculations,
and date data interface values that
9
<PAGE>
reflect the century, (iii) accurately manage and manipulate data involving dates
and times, including single century formulas and multi-century formulas, and
will not cause an abnormal ending scenario within the application or generate
incorrect values or invalid results involving such dates, (iv) accurately
process any date rollover and (v) accept and respond to two-digit year date
input in a manner that resolves any ambiguities as to the century. "Constituent
Component" means all software (including operating systems, programs, packages
and utilities), firmware, hardware, networking components, and peripherals
provided as part of the configuration.
(xxxi) The Company has not taken and will not take, directly or indirectly, any
action designed to or that might reasonably be expected to cause or result in
stabilization or manipulation of the price of the Stock to facilitate the sale
or resale of the Stock.
(xxxii) The Company has not distributed and will not distribute prior to the
later of (i) the Closing Date, or any date on which Option Stock is to be
purchased, as the case may be, and (ii) completion of the distribution of the
Stock, any offering material in connection with the offering and sale of the
Stock other than any Preliminary Prospectuses, the Prospectus, the Registration
Statement and other materials, if any, permitted by the Act.
(xxxiii) The Company has not had any disagreements, during its two most recent
fiscal years or any subsequent interim period, with an independent accountant
who was previously engaged as the principal accountant to audit the Company's
financial statements and on whom the principal accountant expressed reliance in
its report (either of whom resigned, indicated that it declined to stand for re-
election after the completion of the current audit, or was dismissed), on any
matter of accounting principles or practices, financial statement disclosure, or
auditing scope or procedure, which disagreement(s) would require disclosure in
the Registration Statement.
(xxxiv) The Company has not incurred any liability for any finder's fees or
similar payments in connection with the transactions contemplated hereby.
(xxxv) Each officer and director of the Company, each Selling Securityholder
and each beneficial owner of _____ or more percent of the outstanding issued
capital stock of the Company has agreed to sign an agreement substantially in
the form attached hereto as Exhibit A (the "Lock-up Agreements"). The Company
---------
has provided to counsel for the Underwriters a complete and accurate list of all
securityholders of the Company and the number and type of securities held by
each securityholder. The Company has provided to counsel for the Underwriters
true, accurate and complete copies of all of the Lock-up Agreements presently in
effect or effected hereby. The Company hereby represents and warrants that it
will not release any of its officers, directors or other stockholders from any
Lock-up Agreements currently existing or hereafter effected without the prior
written consent of Hambrecht & Quist LLC.
(b) Each of the Selling Securityholders hereby represents and warrants, only as
to himself, as follows:
10
<PAGE>
(i) Such Selling Securityholder has good and marketable 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 and no preemptive right, co-sale right, registration right,
right of first refusal or other similar right exists with respect to such
Stock, with full right and authority to deliver the same hereunder, except
for those that have been waived with respect to such Stock, 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, the several
Underwriters will receive good and marketable title thereto, free and clear
of all liens, encumbrances, equities, security interests and claims
whatsoever.
(ii) This Agreement has been duly authorized, executed and delivered by or on
behalf of such Selling Securityholder and is a valid and binding agreement
of such Selling Securityholder, enforceable in accordance with its terms,
except as rights to indemnification hereunder may be limited by applicable
law and except as the enforcement hereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or
affecting the rights and remedies of creditors or by general equitable
principles.
(iii) Each of the (i) Letter of Transmittal and Custody Agreement signed by
such Selling Securityholder and the Custodian, relating to the deposit of the
Stock to be sold by such Selling Securityholder (the "Custody Agreement") and
(ii) Selling Securityholder's Irrevocable Power of Attorney appointing certain
individuals named therein as such Selling Securityholder's attorneys-in-fact
(each, an "Attorney-in-Fact") to the extent set forth therein relating to the
transactions contemplated hereby and by the Prospectus (the "Power of
Attorney"), of such Selling Securityholder has been duly authorized, executed
and delivered by such Selling Securityholder and is a valid and binding
agreement of such Selling Securityholder, enforceable in accordance with its
terms, except as rights to indemnification thereunder may be limited by
applicable law and except as the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights and remedies of creditors or by general
equitable principles.
(iv) 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 the occurrence of any other event; if any
such death, incapacity 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
11
<PAGE>
and conditions of this Agreement as if such death, incapacity or other event had
not occurred, regardless of whether the Custodian shall have received notice of
such death, incapacity or other event. All consents, approvals, authorizations
and orders required for the execution and delivery by such Selling
Securityholder of the Power of Attorney and the Custody Agreement, the execution
and delivery by or on behalf of such Selling Securityholder of this Agreement
and the sale and delivery of the Stock to be sold by such Selling Securityholder
under this Agreement (other than, at the time of the execution hereof (if the
Registration Statement has not yet been declared effective by the Commission),
the issuance of the order of the Commission declaring the Registration Statement
effective and such consents, approvals, authorizations or orders as may be
necessary under state or other securities or Blue Sky laws) have been obtained
and are in full force and effect; and such Selling Securityholder has full legal
right, power and authority to enter into and perform its obligations under this
Agreement and such Custody Agreement and Power of Attorney, and to sell, assign,
transfer and deliver the Stock to be sold by such Selling Securityholder under
this Agreement.
(v) Each of such Selling Securityholder's Attorneys-in-Fact, acting alone, is
authorized to execute and deliver this Agreement and the certificate
referred to in Section 9(k) hereof on behalf of such Selling
Securityholder, to determine (within the limitations therein specified) the
purchase price to be paid by the several Underwriters to such Selling
Securityholder as provided in Section 3 hereof, to authorize the delivery
of the shares of Stock to be sold by such Selling Securityholder under this
Agreement and to duly endorse (in blank or otherwise) the certificate or
certificates representing such Stock or a stockpower or powers with respect
thereto, to accept payment therefor, and otherwise to act on behalf of such
Selling Securityholder in connection with this Agreement.
(vi) Such Selling Securityholder will comply with all agreements and satisfy all
conditions on its part to be complied with or satisfied pursuant to this
Agreement on or prior to the Closing Date and will advise one of its
Attorneys-in-Fact and Hambrecht & Quist LLC prior to the Closing Date if
any statement to be made on behalf of such Selling Securityholder in the
certificate contemplated by Section 9(k) hereof would be inaccurate if made
as of the Closing Date.
(vii) Such Selling Securityholder has not taken and will not take, directly or
indirectly, any action designed to or that might reasonably be expected to cause
or result in stabilization or manipulation of the price of the Common Stock to
facilitate the Sale or resale of the Stock.
(viii) Such Selling Securityholder does not have, or has waived prior to the
date hereof, any preemptive right, co-sale right or right of first refusal or
other similar right to purchase any of the Stock that are to be sold by the
Company to the Underwriters pursuant to this Agreement; such Selling
Securityholder does not have, or has waived prior to the date hereof, any
registration right or other similar right to participate in the offering made by
the Prospectus, other than such rights of participation as have been satisfied
by the participation of such Selling Securityholder in the transactions to which
this Agreement relates in accordance with the terms of this Agreement and such
Selling
12
<PAGE>
Securityholder does not own any warrants, options or similar rights to
acquire, and does not have any right or arrangement to acquire, any capital
stock, rights, warrants, options or other securities from the Company, other
than those described in the Registration Statement and the Prospectus.
(ix) To the extent that any statements or omissions made in the Registration
Statement, any Preliminary Prospectus, the Prospectus or any amendment or
supplement thereto are made in reliance upon and in conformity with written
information furnished to the Company by such Selling Securityholder
expressly for use therein, such Preliminary Prospectus and the Registration
Statement did, and the Prospectus and any further amendments or supplements
to the Registration Statement and the Prospectus, when they become
effective or are filed with the Commission, as the case may be, will
conform in all material respects to the requirements of the Act and the
rules and regulations of the Commission thereunder and will not, insofar as
it relates to such Selling Securityholder, contain any untrue statement of
a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading. Such
Selling Securityholder confirms as accurate the number of shares of Common
Stock set forth opposite such Selling Securityholder's name in the
Prospectus under the caption "Principal and Selling Securityholders" (both
prior to and after giving effect to the sale of the Stock).
(x) With respect to those Selling Securityholders that are directors or
officers of the Company, or are controlled by directors or officers of the
Company, each such Selling Securityholder represents and warrants that (i)
the Registration Statement, when it became effective, did not contain and,
as amended, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, (ii)
the Registration Statement and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with the
Act, (iii) the Prospectus does not contain and, as amended or supplemented,
if applicable, will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading
and (iv) each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Act, complied when so filed in all material
respects with the Act, and did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that the
representations and warranties set forth in this paragraph do not apply to
statements or omissions in the Registration Statement, the Prospectus or in
any preliminary prospectus based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter through
you expressly for use therein.
(xi) Such Selling Securityholder has not distributed and will not distribute any
prospectus or other offering material in connection with the offering and
sale of the Stock.
13
<PAGE>
(xii) 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; and, 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.
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 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
14
<PAGE>
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 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 grants an option to the several Underwriters to purchase, severally
and not jointly up to ___________ shares in the aggregate of the Option
Stock from such Company and certain of 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 such
Selling Securityholders 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 and such
Selling Securityholders setting forth the aggregate number of shares of the
Option Stock as to which the several Underwriters are exercising the
option. 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.
15
<PAGE>
4. Offering by Underwriters.
(a) The terms of the initial public offering by the Underwriters of the Stock
to be purchased by them 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 and
under "Underwriting" in the Registration Statement, any Preliminary
Prospectus and the Prospectus relating to the Stock filed 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 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 office of Morgan, Lewis & Bockius LLP, 1701 Market Street,
Philadelphia, Pennsylvania, at 7:00 a.m., San Francisco 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 office of Morgan, Lewis & Bockius
LLP, 1701 Market Street, Philadelphia, Pennsylvania, at 7:00 a.m., San
Francisco time, on the third business day after the exercise of such
option.
(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. Such certificates 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.
16
<PAGE>
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 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. Each of
the Company and the Selling Securityholders 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 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 and the
Selling Securityholders 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 possible 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.
(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
17
<PAGE>
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 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, after the initial public offering of the Stock by the
Underwriters and during such period, the Underwriters shall propose to vary
the terms of offering thereof 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 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.
(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.
18
<PAGE>
(i) The Company and the Selling Securityholders jointly and severally agree to
pay all costs and expenses incident to the performance of their obligations
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 and the Selling Securityholders jointly and severally agree 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 printing 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 (including the provincial securities laws
of Canada or any other country) 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 and the Selling Securityholders hereby agree 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 180 days following the commencement of the
public offering of the Stock by the Underwriters, directly or indirectly,
(i) sell, offer, contract to sell, make any short sale, pledge, sell any
option or contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant to purchase or otherwise transfer or
dispose of any shares of Common Stock or any securities convertible into or
exchangeable or exercisable for or any rights to purchase or acquire Common
Stock or (ii) enter into any swap or other agreement that transfers, in
whole or in part, any of the economic consequences or ownership of Common
Stock, whether any such transaction described in clause (i) or (ii) above
is to be settled by delivery of Common Stock or such other securities, in
cash or otherwise. The foregoing sentence shall not apply to the Stock to
be sold to the Underwriters pursuant to this Agreement.
(m) If at any time during the 25-day period after the Registration Statement
becomes effective any rumor, publication or event relating to or affecting
the Company shall occur as a result of which in your opinion the market
price for the Stock has been or is likely to be materially affected
(regardless of whether such rumor, publication or event necessitates a
supplement to or amendment of the Prospectus), the Company will, after
written notice from you advising the Company to the effect set forth above,
forthwith prepare, consult
19
<PAGE>
with you concerning the substance of, and disseminate a press release or
other public statement, reasonably satisfactory to you, responding to or
commenting on such rumor, publication or event.
7. Indemnification and Contribution.
(a) Subject to the provisions of paragraph (f) of this Section 7, the Company
and the Selling Securityholders jointly and severally 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 jointly and severally 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 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) with respect to any
Preliminary Prospectus 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 thereof
(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 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 paragraph (c) of
Section 6 hereof, and (3) each Selling Securityholder other than those that
are directors or officers of the Company, or are controlled by directors or
officers of the Company, 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
20
<PAGE>
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 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
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 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 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
21
<PAGE>
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 such indemnity
agreement. 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 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 indemnified party
or parties and (ii) in any event, 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
22
<PAGE>
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 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 and
reimbursement agreements contained in the provisions of this Section 7 and
Section 11 hereof shall be limited to an amount equal to the initial public
offering price of the stock sold by such Selling Securityholder to the
Underwriters. The Company and the Selling Securityholders
23
<PAGE>
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.
(g) Without limitation and in addition to their obligations under the other
subsections of this Section 7, the Company and the Selling Securityholders
agree to indemnify and hold harmless BancBoston Robertson Stephens Inc. and
each person, if any, who controls BancBoston Robertson Stephens Inc. within
the meaning of the Securities Act or the Exchange Act from and against any
loss, claim, damage, liabilities or expense, as incurred, arising out of or
based upon BancBoston Robertson Stephens Inc.'s acting as a "qualified
independent underwriter" (within the meaning of Rule 2720 to the NASD's
Conduct Rules) in connection with the offering contemplated by this
Agreement, and agrees to reimburse each such indemnified person for any
legal or other expense reasonably incurred by them in connection with
investigating, defending, settling, compromising or paying any such loss,
claim, damage, liability, expense or action; provided, however, that the
Company shall not be liable in any such case to the extent that any such
loss, claim, damage, liability or expense results from the gross negligence
or willful misconduct of BancBoston Robertson Stephens Inc.
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 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 and no liability of the Underwriters to the
Company or the Selling Securityholders; provided, however, that in the event of
any such termination the Company and the Selling Securityholders agree 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.
24
<PAGE>
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 Brobeck, Phleger & Harrison LLP, counsel for
the Underwriters.
(c) You shall have received from Morgan, Lewis & Bockius LLP, counsel for the
Company and certain of the Selling Securityholders, an opinion, addressed
to the Underwriters and dated the Closing Date, covering the matters set
forth in Annex A and Annex B hereto, and you shall receive from the
respective counsel for each of the other Selling Securityholders an
opinion, addressed to the Underwriters and dated the Closing Date, covering
the matters set forth in Annex B hereto, if Option Stock is purchased at
any date after the Closing Date, additional opinions from Morgan, Lewis &
Bockius LLP and 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 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,
whether or not arising from transactions in the ordinary course of
business, and, since such dates, except in the ordinary course of business,
the Company has not 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) the Company has no
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 is a party or of which
property of the Company is the subject which are material and which are not
disclosed in the
25
<PAGE>
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 (viii) of paragraph (d) of this Section 9
are true and correct.
(f) You shall have received from Ernst & Young LLP, a letter or letters,
addressed to the Underwriters and dated the Closing Date and the Option
Closing Date, as the case may be, 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
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 the Option Closing 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 which, in your sole 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. The Original Letter from Ernst & Young LLP shall be addressed
to or for the use of the Underwriters in form and substance satisfactory to
the Underwriters and shall (i) represent, to the extent true, that they are
independent certified public accountants with respect to the Company within
the meaning of the Act and the applicable published Rules and Regulations,
(ii) set forth their opinion with respect to their examination of the
consolidated balance sheet of the Company as of March 31, 1999 and related
consolidated statements of operations, stockholders' equity, and cash flows
for the twelve (12) months ended March 31, 1999, and (iii) address other
matters agreed upon by Ernst & Young LLP and you. Financial statements as
of March
26
<PAGE>
31, 1999, did not disclose any weaknesses in internal controls that they
considered to be material weaknesses.
(g) You shall have received from Ernst & Young 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 March 31, 1999, 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 referred to in paragraph
(f) of Section 6 hereof.
(i) Prior to the Closing Date, the Stock shall have been duly authorized for
listing by the Nasdaq National Market upon official notice of issuance.
(j) On or prior to the Closing Date, you shall have received from all
directors, officers, and beneficial holders of more than __% 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 180 days following the commencement of the public
offering of the Stock by the Underwriters, directly or indirectly, (i)
sell, offer, contract to sell, make any short sale, pledge, sell any option
or contract to purchase, purchase any option or contract to sell, grant any
option, right or warrant to purchase or otherwise transfer or dispose of
any shares of Common Stock or any securities convertible into or
exchangeable or exercisable for or any rights to purchase or acquire Common
Stock or (ii) enter into any swap or other agreement that transfers, in
whole or in part, any of the economic consequences or ownership of Common
Stock, whether any such transaction described in clause (i) or (ii) above
is to be settled by delivery of Common Stock or such other securities, in
cash or otherwise.
(k) You shall have received on the Closing Date and on any later date on which
Option Stock is purchased a written certificate executed by the Attorneys-
in-Fact of the Selling Securityholders, dated as of such Closing Date, to
the effect that: (i) the representations, warranties and covenants of such
Selling Securityholder set forth in Section 2(b) of this Agreement are true
and correct with the same force and effect as though expressly made by such
Selling Securityholder on and as of such Closing Date; and (ii) such
Selling Securityholder has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied at or prior to
such Closing Date.
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 Brobeck, Phleger & Harrison LLP, counsel for the
Underwriters, shall be satisfied that they comply in form and scope.
27
<PAGE>
In case any of the conditions specified in this Section 9 shall not be
fulfilled, this Agreement may be terminated by you by giving 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 and without liability of the Underwriters to the Company or the
Selling Securityholders; provided, however, that (i) in the event of such
termination, the Company and the Selling Securityholders agree 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, 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 and without liability of the Underwriters to the Company or the
Selling Securityholders; provided, however, that in the event of any such
termination the Company and the Selling Securityholders jointly and severally
agree 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 (and subject, in the case of a Selling
Securityholder, to the provisions of paragraph (f) of Section 7), the Company
and the Selling Securityholders hereby jointly and severally agree 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.
28
<PAGE>
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 telegraph and, if to the Underwriters, shall be
mailed, telegraphed or delivered to Hambrecht & Quist LLC, One Bush Street, San
Francisco, California 94104, with a copy to Brobeck, Phleger & Harrison LLP,
1633 Broadway, 47th Floor, New York, New York 10019, Attention: Alexander D.
Lynch, Esq.; and if to the Company, shall be mailed, telegraphed or delivered to
it at its office, 1300 Virginia Drive, Suite 125, Fort Washington, Pennsylvania
19034, Attention: Terrence P. Brennan, with a copy to Morgan, Lewis & Bockius,
LLP, 1701 Market Street, Philadelphia, Pennsylvania 19103, Attention: Stephen
M. Goodman; and if to the Selling Securityholders, shall be mailed, telegraphed
or delivered to the Selling Securityholders in care of ____________________ at
____________________________________. 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 (1) and (m) 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 internal laws of the State of New York.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
29
<PAGE>
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.
Very truly yours,
ESPS, INC.
By __________________________
Terrence P. Brennan
President, Chief Executive Officer
and Chairman of the Board
SELLING SECURITYHOLDERS:
Listed on Schedule II
By __________________________
[Attorney-in-Fact]
The foregoing Agreement is hereby confirmed
and accepted as of the date first above written.
HAMBRECHT & QUIST LLC
BANCBOSTON ROBERTSON STEPHENS INC.
U.S. BANCORP PIPER JAFFRAY INC.
CHARLES SCHWAB & CO., INC.
By Hambrecht & Quist LLC
By __________________________
Managing Director
Acting on behalf of the several Underwriters,
including themselves, named in Schedule I hereto.
30
<PAGE>
SCHEDULE I
UNDERWRITERS
<TABLE>
<CAPTION>
Number of
Shares to be
Underwriters Purchased
- ------------ --------------------
<S> <C>
Hambrecht & Quist LLC....................................................
BancBoston Robertson Stephens Inc........................................
U.S. Bancorp Piper Jaffray Inc...........................................
Charles Schwab & Co., Inc................................................ _____
Total.................................................................
</TABLE>
<PAGE>
SCHEDULE II
SELLING SECURITYHOLDERS
<TABLE>
<CAPTION>
Number of Shares
Name of Selling Securityholders to be Sold
- ------------------------------- ---------------------
<S> <C>
Total................................................................ _____
</TABLE>
<PAGE>
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ESPS, INC.
ESPS, Inc., (the "Corporation"), a corporation organized and existing under
the General Corporation Law of the State of Delaware, hereby certifies as
follows:
1. The name of the Corporation is ESPS, Inc. The original Certificate of
Incorporation of the Corporation was filed with the Secretary of State of the
State of Delaware on April 29, 1994 under the name Electronic Submission
Publishing Systems, Inc. An Amended and Restated Certificate of Incorporation
was filed on July 5, 1994. A Certificate of Amendment of the Amendment and
Restated Certificate of Incorporation was filed on March 4, 1997 and on March
30, 1999.
2. This Second Amended and Restated Certificate of Incorporation
restates, integrates and further amends the Amended and Restated Certificate of
Incorporation of the Corporation. This Second Amended and Restated Certificate
of Incorporation was duly adopted in accordance with the provisions of Sections
242 and 245 of the General Corporation Law of the State of Delaware and was
approved by written consent of the stockholders of the Corporation in accordance
with the provisions of Section 228 of the General Corporation Law (prompt notice
of such action having been given to those stockholders who did not consent in
writing).
3. The Amended and Restated Certificate of Incorporation is hereby
amended and restated in its entirety to read as follows:
ARTICLE I
NAME
The name of the Corporation is ESPS, Inc.
ARTICLE II
REGISTERED AGENT
The address of the corporation's registered office in the State of Delaware
is: 1013 Center Road, Wilmington, Delaware 19805-1297. The name of its
registered agent at such address is: Corporate Service Company
<PAGE>
ARTICLE III
PURPOSE
The purpose of the Corporation is to engage in any lawful act or activity
for which a corporation may be organized under the General Corporation Law of
the State of Delaware.
ARTICLE IV
CAPITAL STOCK
The Corporation shall have the authority to issue 56,000,000 shares of all
classes of stock, consisting of 50,000,000 shares of common stock, par value
$.001 per share ("Common Stock"), and 6,000,000 shares of preferred stock, par
value $.001 per share ("Preferred Stock").
Subject to the preferential and other dividend rights of the holders of
Preferred Stock, the holders of the Common Stock shall be entitled to receive
such dividends or other distributions as declared by the Board of Directors out
of assets at the time legally available therefor. Subject to the preferential
and other liquidation rights of the holders of Preferred Stock, in the event of
a liquidation, the holders of Common Stock shall be entitled to receive the
assets of the Corporation ratably in proportion to the number of shares held.
Subject to the voting rights of the holders of Preferred Stock, the holders of
Common Stock shall be entitled to one vote for each share of Common Stock on all
matters to be voted on at any meeting of stockholders of the Corporation.
2
<PAGE>
The Preferred Stock may be issued from time to time by the Board of
Directors as shares of one or more classes or series. Subject to the provisions
of this Second Amended and Restated Certificate of Incorporation and the
limitations prescribed by law, the Board of Directors is expressly authorized by
adopting resolutions to issue the shares, fix the number of shares and change
the number of shares constituting any series, and to provide for or change the
voting powers, designations, preferences and relative, participating, optional
or other special rights, qualifications, limitations or restrictions thereof,
including dividend rights (and whether dividends are cumulative), dividend
rates, terms of redemption (including sinking fund provisions), redemption price
or prices, conversion rights and liquidation preferences of the shares
constituting any class or series of the Preferred Stock, without any further
action or vote of the stockholders.
ARTICLE V
BYLAWS
In furtherance and not in limitation of the powers conferred upon the Board
of Directors by statute, the Board of Directors is expressly authorized to make,
alter or repeal the Bylaws of the Corporation, subject to the power of the
stockholders to adopt any Bylaws or to amend or repeal any Bylaws adopted,
amended or repealed by the Board of Directors.
ARTICLE VI
NO ACTION WITHOUT ANNUAL OR SPECIAL MEETING
Any action required or permitted to be taken by the stockholders of the
Corporation must be effected at an annual or special meeting of stockholders of
the Corporation and may not be affected by any consent in writing by such
stockholders.
ARTICLE VI
LIMITATION OF LIABILITY
No person who is or was a director of this Corporation shall be personally
liable to the Corporation or its stockholders for monetary damages for the
breach of any fiduciary duty as a director, unless, and only to the extent that,
such director is liable (i) for any breach of the director's duty of loyalty to
the Corporation or its stockholders, (ii) for acts or omissions not in good
faith or that involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the General Corporation Law, or (iv) for any
transaction from which the director derived an improper personal benefit.
If the General Corporation Law is amended to authorize corporate action
further limiting or eliminating the personal liability of directors, then the
liability of a director of the Corporation shall be eliminated or limited to the
fullest extent permitted by the General Corporation Law, as so amended. No
amendment to, repeal or adoption of any provision of this Certificate of
3
<PAGE>
Incorporation inconsistent with this ARTICLE VII shall apply to or have any
effect on the liability of any director of the Corporation for or with respect
to any acts or omissions of such director occurring prior to such amendment,
repeal or adoption of an inconsistent provision.
ARTICLE VIII
INDEMNIFICATION
The Corporation shall indemnify each person who is or was a director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, to the
fullest extent permitted by Section 145 of the General Corporation Law, as
amended. The indemnification provided for herein shall not be deemed exclusive
of any other rights to which those indemnified may be entitled under any Bylaw,
agreement, vote of stockholders or disinterested directors or otherwise, both as
to action in an official capacity and as to action in another capacity while
holding such office, and such indemnification shall continue as to a person who
has ceased to be such a person and shall inure to the benefit of the heirs,
executors and administrators of such a person.
IN WITNESS WHEREOF, ESPS, Inc. has caused this Second Amended and Restated
Certificate of Incorporation to be signed by its President and Chief Executive
Officer this ______ day of ____, 1999.
ESPS, INC.
By:___________________________________
Terrence P. Brennan
President and Chief Executive Officer
4
<PAGE>
SECOND AMENDED AND RESTATED BYLAWS
OF
ESPS, INC.
Incorporated under the Laws of the State of Delaware
ARTICLE I
OFFICERS AND RECORDS
SECTION 1.1 Delaware Office. The Corporation shall maintain a
---------------
registered office and registered agent within the State of Delaware, which may
be changed by the Board of Directors from time to time. The address of the
Corporation's principal office in Delaware is: 32 Loockerman Square, Suite L-
100, Dover, Kent County. The name of the registered agent is: The Prentice-Hall
Corporation System, Inc.
SECTION 1.2 Other Offices. The Corporation may have such other offices,
-------------
either within or without the State of Delaware, as the Board of Directors may
designate or as the business of the Corporation may from time to time require.
SECTION 1.3 Books and Records. The books and records of the Corporation
-----------------
may be kept outside the State of Delaware at such place or places as may from
time to time be designated by the Board of Directors.
ARTICLE II
STOCKHOLDERS
SECTION 2.1 Annual Meeting. The annual meeting of the stockholders of
--------------
the Corporation shall be held on such date and at such place and time as may be
fixed by resolution of the Board of Directors.
SECTION 2.2 Special Meeting. Subject to the rights of the holders of
---------------
any series of stock having a preference over the Common Stock of the Corporation
as to dividends or upon liquidation ("Preferred Stock") with respect to such
series of Preferred Stock, special meetings of the stockholders may be called
only by the Chairman of the Board or by the Board of Directors pursuant to a
resolution adopted by a majority of the total number of directors which the
Corporation would have if there were no vacancies (the "Whole Board").
<PAGE>
SECTION 2.3 Place of Meeting. The Board of Directors or the Chairman of
----------------
the Board, as the case may be, may designate the place of meeting for any annual
meeting or for any special meeting of the stockholders called by the Board of
Directors or the Chairman of the Board. If no designation is so made, the place
of meeting shall be the principal office of the Corporation.
SECTION 2.4 Notice of Meeting. Written or printed notice, stating the
-----------------
place, day and hour of the meeting and the purpose or purposes for which the
meeting is called, shall be delivered by the Corporation not less than ten (10)
days nor more than sixty (60) days before the date of the meeting, either
personally or by mail, to each stockholder of record entitled to vote at such
meeting. If mailed, such notice shall be deemed to be delivered when deposited
in the United States mail with postage thereon prepaid, addressed to the
stockholder at his address as it appears on the stock transfer books of the
Corporation. Such further notice shall be given as may be required by law.
Only such business shall be conducted at a special meeting of stockholders as
shall have been brought before the meeting pursuant to the Corporation's notice
of meeting. Meetings may be held without notice if all stockholders entitled to
vote are present, or if notice is waived by those not present in accordance with
Section 6.4 of these Bylaws. Any previously scheduled meeting of the
stockholders may be postponed, and (unless the Certificate of Incorporation
otherwise provides) any special meeting of the stockholders may be cancelled, by
resolution of the Board of Directors upon public notice given prior to the date
previously scheduled for such meeting of stockholders.
SECTION 2.5 Quorum and Adjournment. Except as otherwise provided by law
----------------------
or by the Certificate of Incorporation, the holders of a majority of the
outstanding shares of the Corporation entitled to vote generally in the election
of directors (the "Voting Stock"), represented in person or by proxy, shall
constitute a quorum at a meeting of stockholders, except that when specified
business is to be voted on by a class or series of stock voting as a class, the
holders of a majority of the shares of such class or series shall constitute a
quorum of such class or series for the transaction of such business. The
Chairman of the meeting or a majority of the shares so represented may adjourn
the meeting from time to time, whether or not there is such a quorum. No notice
of the time and place of adjourned meetings need be given except as required by
law. The stockholders present at a duly called meeting at which a quorum is
present may continue to transact business until adjournment, notwithstanding the
withdrawal of enough stockholders to leave less than a quorum.
SECTION 2.6 Proxies. At all meetings of stockholders, a stockholder may
-------
vote by proxy executed in writing (or in such manner prescribed by the General
Corporation Law of the State of Delaware) by the stockholder, or by his duly
authorized attorney in fact.
SECTION 2.7 Notice of Stockholder Business and Nominations.
----------------------------------------------
(A) Annual Meetings of Stockholders.
-------------------------------
2
<PAGE>
(1) Nominations of persons for election to the Board of
Directors of the Corporation and the proposal of business to be considered by
the stockholders may be made at an annual meeting of stockholders (a) pursuant
to the Corporation's notice of meeting, (b) by or at the direction of the Board
of Directors or (c) by any stockholder of the Corporation who was a stockholder
of record at the time of giving of notice provided for in this Bylaw, who is
entitled to vote at the meeting and who complies with the notice procedures set
forth in this Bylaw.
(2) For nominations or other business to be properly brought
before an annual meeting by a stockholder pursuant to clause (c) of paragraph
(A) (1) of this Bylaw, the stockholder must have given timely notice thereof in
writing to the Secretary of the Corporation and such other business must
otherwise be a proper matter for stockholder action. To be timely, a
stockholder's notice shall be delivered to the Secretary at the principal
executive offices of the Corporation not later than the close of business on the
day prior to the first anniversary of the preceding year's annual meeting;
provided, however, that in the event that the date of the annual meeting is more
than 30 days before or more than 60 days after such anniversary date, notice by
the stockholder to be timely must be so delivered not earlier than the close of
business on the 90th day prior to such annual meeting and not later than the
close of business on the later of the 60th day prior to such annual meeting or
the 10th day following the day on which public announcement of the date of such
meeting is first made by the Corporation. In no event shall the public
announcement of an adjournment of an annual meeting commence a new time period
for the giving of a stockholder's notice as described above. Such stockholder's
notice shall set forth (a) as to each person whom the stockholder proposes to
nominate for election or reelection as a director all information relating to
such person that is required to be disclosed in solicitations of proxies for
election of directors in an election contest, or is otherwise required, in each
case pursuant to Regulation 14A under the Securities Exchange Act of 1934, as
amended (the "Exchange Act") and Rule 14a-11 thereunder (including such person's
written consent to being named in the proxy statement as a nominee and to
serving as a director if elected); (b) as to any other business that the
stockholder proposes to bring before the meeting, a brief description of the
business desired to be brought before the meeting, the reasons for conducting
such business at the meeting and any material interest in such business of such
stockholder and the beneficial owner, if any, on whose behalf the proposal is
made; and (c) as to the stockholder giving the notice and the beneficial owner,
if any, on whose behalf the nomination or proposal is made (i) the name and
address of such stockholder, as they appear on the Corporation's books, and of
such beneficial owner and (ii) the class and number of shares of the Corporation
which are owned beneficially and of record by such stockholder and such
beneficial owner.
(3) Notwithstanding anything in the second sentence of paragraph
(A) (2) of this Bylaw to the contrary, in the event that the number of directors
to be elected to the Board of Directors of the Corporation is increased and
there is no public announcement by the Corporation naming all of the nominees
for director or specifying the size of the increased Board of Directors at least
70 days prior to the first anniversary of the preceding year's annual meeting,
3
<PAGE>
a stockholder's notice required by this Bylaw shall also be considered timely,
but only with respect to nominees for any new positions created by such
increase, if it shall be delivered to the Secretary at the principal executive
offices of the Corporation not later than the close of business on the 10th day
following the day on which such public announcement is first made by the
Corporation.
(B) Special Meetings of Stockholders. Only such business shall be
--------------------------------
conducted at a special meeting of stockholders as shall have been brought before
the meeting pursuant to the Corporation's notice of meeting. Nominations of
persons for election to the Board of Directors may be made at a special meeting
of stockholders at which directors are to be elected pursuant to the
Corporation's notice of meeting (a) by or at the direction of the Board of
Directors or (b) provided that the Board of Directors has determined that
directors shall be elected at such meeting, by any stockholder of the
Corporation who is a stockholder of record at the time of giving of notice
provided for in this Bylaw, who shall be entitled to vote at the meeting and who
complies with the notice procedures set forth in this Bylaw. In the event the
Corporation calls a special meeting of stockholders for the purpose of electing
one or more directors to the Board of Directors, any such stockholder may
nominate a person or persons (as the case may be), for election to such
position(s) as specified in the Corporation's notice of meeting, if the
stockholder's notice required by paragraph (A) (2) of this Bylaw shall be
delivered to the Secretary at the principal executive offices of the Corporation
not earlier than the close of business on the 90th day prior to such special
meeting and not later than the close of business on the later of the 60th day
prior to such special meeting or the 10th day following the day on which public
announcement is first made of the date of the special meeting and of the
nominees proposed by the Board of Directors to be elected at such meeting. In
no event shall the public announcement of an adjournment of a special meeting
commence a new time period for the giving of a stockholder's notice as described
above.
(C) General.
-------
(1) Only such persons who are nominated in accordance with the
procedures set forth in this Bylaw shall be eligible to serve as directors and
only such business shall be conducted at a meeting of stockholders as shall have
been brought before the meeting in accordance with the procedures set forth in
this Bylaw. Except as otherwise provided by law, the Certificate of
Incorporation or these Bylaws, the Chairman of the meeting shall have the power
and duty to determine whether a nomination or any business proposed to be
brought before the meeting was made or proposed, as the case may be, in
accordance with the procedures set forth in this Bylaw and, if any proposed
nomination or business is not in compliance with this Bylaw, to declare that
such defective proposal or nomination shall be disregarded.
(2) For purposes of this Bylaw, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or comparable national news service or in a document publicly filed by the
Corporation with the Securities and Exchange Commission pursuant to Section 13,
14 or 15(d) of the Exchange Act.
4
<PAGE>
(3) Notwithstanding the foregoing provisions of this Bylaw, a
stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set
forth in this Bylaw. Nothing in this Bylaw shall be deemed to affect any rights
(i) of stockholders to request inclusion of proposals in the Corporation's proxy
statement pursuant to Rule 14a-8 under the Exchange Act or (ii) of the holders
of any series of Preferred Stock to elect directors under specified
circumstances.
SECTION 2.8 Procedure for Election of Directors; Required Vote.
--------------------------------------------------
Election of directors at all meetings of the stockholders at which directors are
to be elected shall be by ballot, and, subject to the rights of the holders of
any series of Preferred Stock to elect directors under specified circumstances,
a plurality of the votes cast thereat shall elect directors. Except as
otherwise provided by law, the Certificate of Incorporation, or these Bylaws, in
all matters other than the election of directors, the affirmative vote of a
majority of the shares present in person or represented by proxy at the meeting
and entitled to vote on the matter shall be the act of the stockholders.
SECTION 2.9 Inspectors of Elections; Opening and Closing the Polls. The
------------------------------------------------------
Board of Directors by resolution shall appoint one or more inspectors, which
inspector or inspectors may include individuals who serve the Corporation in
other capacities, including, without limitation, as officers, employees, agents
or representatives, to act at the meetings of stockholders and make a written
report thereof. One or more persons may be designated as alternate inspectors
to replace any inspector who fails to act. If no inspector or alternate has
been appointed to act or is able to act at a meeting of stockholders, the
Chairman of the meeting shall appoint one or more inspectors to act at the
meeting. Each inspector, before discharging his or her duties, shall take and
sign an oath faithfully to execute the duties of inspector with strict
impartiality and according to the best of his or her ability. The inspectors
shall have the duties prescribed by law.
The Chairman of the meeting shall fix and announce at the meeting the date
and time of the opening and the closing of the polls for each matter upon which
the stockholders will vote at a meeting.
SECTION 2.10. No Stockholder Action by Written Consent. Subject to the
----------------------------------------
rights of the holders of any series of Preferred Stock with respect to such
series of Preferred Stock, any action required or permitted to be taken by the
stockholders of the Corporation must be effected at an annual or special meeting
of stockholders of the Corporation and may not be affected by any consent in
writing by such stockholders.
ARTICLE III
BOARD OF DIRECTORS
5
<PAGE>
SECTION 3.1 General Powers. The business and affairs of the Corporation
--------------
shall be managed under the direction of the Board of Directors. In addition to
the powers and authorities by these Bylaws expressly conferred upon them, the
Board of Directors may exercise all such powers of the Corporation and do all
such lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these Bylaws required to be exercised or done by the
stockholders.
SECTION 3.2 Number, Tenure and Qualifications. Subject to the rights of
---------------------------------
the holders of any series of Preferred Stock to elect directors under specified
circumstances, the number of directors shall be fixed from time to time
exclusively pursuant to a resolution adopted by a majority of the Whole Board.
SECTION 3.3 Regular Meetings. A regular meeting of the Board of
----------------
Directors shall be held without other notice than this Bylaw immediately after,
and at the same place as, the Annual Meeting of Stockholders. The Board of
Directors may, by resolution, provide the time and place for the holding of
additional regular meetings without other notice than such resolution.
SECTION 3.4 Special Meetings. Special meetings of the Board of
----------------
Directors shall be called at the request of the Chairman of the Board, the
President or a majority of the Board of Directors then in office. The person or
persons authorized to call special meetings of the Board of Directors may fix
the place and time of the meetings.
SECTION 3.5 Notice. Notice of any special meeting of directors shall be
------
given to each director at his business or residence in writing by hand delivery,
first-class or overnight mail or courier service, telegram or facsimile
transmission, or orally by telephone. If mailed by first-class mail, such
notice shall be deemed adequately delivered when deposited in the United States
mails so addressed, with postage thereon prepaid, at least five (5) days before
such meeting. If by telegram, overnight mail or courier service, such notice
shall be deemed adequately delivered when the telegram is delivered to the
telegraph company or the notice is delivered to the overnight mail or courier
service company at least twenty-four (24) hours before such meeting. If by
facsimile transmission, such notice shall be deemed adequately delivered when
the notice is transmitted at least twelve (12) hours before such meeting. If by
telephone or by hand delivery, the notice shall be given at least twelve (12)
hours prior to the time set for the meeting. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the Board
of Directors need be specified in the notice of such meeting, except for
amendments to these Bylaws, as provided under Section 8.1. A meeting may be
held at any time without notice if all the directors are present or if those not
present waive notice of the meeting in accordance with Section 6.4 of these
Bylaws.
SECTION 3.6 Action by Consent of Board of Directors. Any action
---------------------------------------
required or permitted to be taken at any meeting of the Board of Directors or of
any committee thereof may
6
<PAGE>
be taken without a meeting if all members of the Board or committee, as the case
may be, consent thereto in writing, and the writing or writings are filed with
the minutes of proceedings of the Board or committee.
SECTION 3.7 Conference Telephone Meetings. Members of the Board of
-----------------------------
Directors, or any committee thereof, may participate in a meeting of the Board
of Directors or such committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and such participation in a meeting shall
constitute presence in person at such meeting.
SECTION 3.8 Quorum. Subject to Section 3.9, a whole number of directors
------
equal to at least a majority of the Whole Board shall constitute a quorum for
the transaction of business, but if at any meeting of the Board of Directors
there shall be less than a quorum present, a majority of the directors present
may adjourn the meeting from time to time without further notice. The act of
the majority of the directors present at a meeting at which a quorum is present
shall be the act of the Board of Directors. The directors present at a duly
organized meeting may continue to transact business until adjournment,
notwithstanding the withdrawal of enough directors to leave less than a quorum.
SECTION 3.9 Vacancies. Subject to applicable law and the rights of the
---------
holders of any series of Preferred Stock with respect to such series of
Preferred Stock, and unless the Board of Directors otherwise determines,
vacancies resulting from death, resignation, retirement, disqualification,
removal from office or other cause, and newly created directorships resulting
from any increase in the authorized number of directors, may be filled only by
the affirmative vote of a majority of the remaining directors, though less than
a quorum of the Board of Directors, and directors so chosen shall hold office
for a term expiring at the annual meeting of stockholders at which the term of
office of the class to which they have been elected expires and until such
director's successor shall have been duly elected and qualified. No decrease in
the number of authorized directors constituting the Whole Board shall shorten
the term of any incumbent director.
SECTION 3.1 Executive and Other Committees. The Board of Directors may,
------------------------------
by resolution adopted by a majority of the Whole Board, designate an Executive
Committee to exercise, subject to applicable provisions of law, all the powers
of the Board in the management of the business and affairs of the Corporation
when the Board is not in session, including without limitation the power to
declare dividends, to authorize the issuance of the Corporation's capital stock
and to adopt a certificate of ownership and merger pursuant to Section 253 of
the General Corporation Law of the State of Delaware, and may, by resolution
similarly adopted, designate one or more other committees. The Executive
Committee and each such other committee shall consist of two or more directors
of the Corporation. The Board may designate one or more directors as alternate
members of any committee, who may replace any absent or disqualified member at
any meeting of the committee. Any such committee, other than the Executive
Committee (the powers of which are expressly provided for herein), may to the
extent permitted
7
<PAGE>
by law exercise such powers and shall have such responsibilities as shall be
specified in the designating resolution. In the absence or disqualification of
any member of such committee or committees, the member or members thereof
present at any meeting and not disqualified from voting, whether or not
constituting a quorum, may unanimously appoint another member of the Board to
act at the meeting in the place of any such absent or disqualified member. Each
committee shall keep written minutes of its proceedings and shall report such
proceedings to the Board when required.
A majority of any committee may determine its action and fix the time and
place of its meetings, unless the Board shall otherwise provide. Notice of such
meetings shall be given to each member of the committee in the manner provided
for in Section 3.5 of these Bylaws. The Board shall have power at any time to
fill vacancies in, to change the membership of, or to dissolve any such
committee. Nothing herein shall be deemed to prevent the Board from appointing
one or more committees consisting in whole or in part of persons who are not
directors of the Corporation; provided, however, that no such committee shall
-------- -------
have or may exercise any authority of the Board.
SECTION 3.1 Removal. Subject to the rights of the holders of any series
-------
of Preferred Stock with respect to such series of Preferred Stock, any director,
or the entire Board of Directors, may be removed from office at any time, but
only for cause and only by the affirmative vote of the holders of at least 66
2/3 percent of the voting power of all of the then-outstanding shares of Voting
Stock, voting together as a single class.
SECTION 3.1 Records. The Board of Directors shall cause to be kept a
-------
record containing the minutes of the proceedings of the meetings of the Board
and of the stockholders, appropriate stock books and registers and such books of
records and accounts as may be necessary for the proper conduct of the business
of the Corporation.
ARTICLE IV
OFFICERS
SECTION 4.1 Elected Officers. The elected officers of the Corporation
----------------
shall be a Chairman of the Board of Directors, a President, a Secretary, a
Treasurer, and such other officers (including, without limitation, a Chief
Financial Officer) as the Board of Directors from time to time may deem proper.
The Chairman of the Board shall be chosen from among the directors. All officers
elected by the Board of Directors shall each have such powers and duties as
generally pertain to their respective offices, subject to the specific
provisions of this ARTICLE IV. Such officers shall also have such powers and
duties as from time to time may be conferred by the Board of Directors or by any
committee thereof. The Board or any committee thereof may from time to time
elect, or the Chairman of the Board or President may appoint, such other
officers (including one or more Assistant Vice Presidents, Assistant
Secretaries, Assistant Treasurers, and Assistant Controllers) and such agents,
as may be necessary or desirable for the
8
<PAGE>
conduct of the business of the Corporation. Such other officers and agents shall
have such duties and shall hold their offices for such terms as shall be
provided in these Bylaws or as may be prescribed by the Board or such committee
or by the Chairman of the Board or President, as the case may be.
SECTION 4.2 Election and Term of Office. The elected officers of the
---------------------------
Corporation shall be elected annually by the Board of Directors at the regular
meeting of the Board of Directors held after the annual meeting of the
stockholders. If the election of officers shall not be held at such meeting,
such election shall be held as soon thereafter as convenient. Each officer shall
hold office until his successor shall have been duly elected and shall have
qualified or until his death or until he shall resign, but any officer may be
removed from office at any time by the affirmative vote of a majority of the
Whole Board or, except in the case of an officer or agent elected by the Board,
by the Chairman of the Board or President. Such removal shall be without
prejudice to the contractual rights, if any, of the person so removed.
SECTION 4.3 Chairman of the Board. The Chairman of the Board shall
---------------------
preside at all meetings of the stockholders and of the Board of Directors and
shall be the Chief Executive Officer of the Company. The Chairman of the Board
shall be responsible for the general management of the affairs of the
Corporation and shall perform all duties incidental to his office which may be
required by law and all such other duties as are properly required of him by the
Board of Directors. He shall make reports to the Board of Directors and the
stockholders, and shall see that all orders and resolutions of the Board of
Directors and of any committee thereof are carried into effect. The Chairman of
the Board may also serve as President, if so elected by the Board.
SECTION 4.4 President. The President shall act in a general executive
---------
capacity and shall assist the Chairman of the Board in the administration and
operation of the Corporation's business and general supervision of its policies
and affairs. The President shall, in the absence of or because of the inability
to act of the Chairman of the Board, perform all duties of the Chairman of the
Board and preside at all meetings of stockholders and of the Board of Directors.
SECTION 4.5 Secretary. The Secretary shall keep or cause to be kept in
---------
one or more books provided for that purpose, the minutes of all meetings of the
Board, the committees of the Board and the stockholders; he shall see that all
notices are duly given in accordance with the provisions of these Bylaws and as
required by law; he shall be custodian of the records and the seal of the
Corporation and affix and attest the seal to all stock certificates of the
Corporation (unless the seal of the Corporation on such certificates shall be a
facsimile, as hereinafter provided) and affix and attest the seal to all other
documents to be executed on behalf of the Corporation under its seal; and he
shall see that the books, reports, statements, certificates and other documents
and records required by law to be kept an filed are properly kept and filed; and
in general, he shall perform all the duties incident to the office of Secretary
and such other duties
9
<PAGE>
as from time to time may be assigned to him by the Board, the Chairman of the
Board or the President.
SECTION 4.6 Removal. Any officer elected, or agent appointed, by the
-------
Board of Directors may be removed by the affirmative vote of a majority of the
Whole Board whenever, in their judgment, the best interests of the Corporation
would be served thereby. Any officer or agent appointed by the Chairman of the
Board or the President may be removed by him whenever, in his judgment, the best
interests of the Corporation would be served thereby. Any officer or agent
appointed by the Chairman of the Board or the President may be removed by him
whenever, in his judgment, the best interests of the Corporation would be served
thereby. No elected officer shall have any contractual rights against the
Corporation for compensation by virtue of such election beyond the date of the
election of his successor, his death, his resignation or his removal, whichever
event shall first occur, except as otherwise provided in an employment contract
or under an employee deferred compensation plan.
SECTION 4.7 Vacancies. A newly created elected office and a vacancy in
---------
any elected office because of death, resignation, or removal may be filled by
the Board of Directors for the unexpired portion of the term at any meeting of
the Board of Directors. Any vacancy in an office appointed by the Chairman of
the Board or the President because of death, resignation, or removal may be
filled by the Chairman of the Board or the President.
ARTICLE V
STOCK CERTIFICATES AND TRANSFERS
SECTION 5.1 Stock Certificates and Transfers. The interest of each
--------------------------------
stockholder of the Corporation shall be evidenced by certificates for shares of
stock in such form as the appropriate officers of the Corporation may from time
to time prescribe. The shares of the stock of the Corporation shall be
transferred on the books of the Corporation by the holder thereof in person or
by his attorney, upon surrender for cancellation of certificates for at least
the same number of shares, with an assignment and power of transfer endorsed
thereon or attached thereto, duly executed, with such proof of the authenticity
of the signature as the Corporation or its agents may reasonably require.
The certificates of stock shall be signed, countersigned and registered in
such manner as the Board of Directors may by resolution prescribe, which
resolution may permit all or any of the signatures on such certificates to be in
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate has ceased to be
such officer, transfer agent or registrar before such certificate is issued, it
may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
10
<PAGE>
SECTION 5.2 Lost, Stolen or Destroyed Certificates. No certificate for
--------------------------------------
shares of stock in the Corporation shall be issued in place of any certificate
alleged to have been lost, destroyed or stolen, except on production of such
evidence of such loss, destruction or theft and on delivery to the Corporation
of a bond of indemnity in such amount, upon such terms and secured by such
surety, as the Board of Directors or any financial officer may in its or his
discretion require.
ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 6.1 Fiscal Year. The fiscal year of the Corporation shall begin
-----------
on the first day of April and end on the thirty-first day of March of each year.
SECTION 6.2 Dividends. The Board of Directors may from time to time
---------
declare, and the Corporation may pay, dividends on its outstanding shares in the
manner and upon the terms and conditions provided by law and the Certificate of
Incorporation.
SECTION 6.3 Seal. The corporate seal shall have inscribed thereon the
----
words "Corporate Seal," the year of incorporation and around the margin thereof
the words "ESPS, Inc. - Delaware."
SECTION 6.4 Waiver of Notice. Whenever any notice is required to be
----------------
given to any stockholder or director of the Corporation under the provisions of
the General Corporation Law of the State of Delaware or these Bylaws, a waiver
thereof in writing, signed by the person or persons entitled to such notice,
whether before or after the time stated therein, shall be deemed equivalent to
the giving of such notice. Neither the business to be transacted at, nor the
purpose of, any annual or special meeting of the stockholders or the Board of
Directors or committee thereof need be specified in any waiver of notice of such
meeting.
SECTION 6.5 Audits. The accounts, books and records of the Corporation
------
shall be audited upon the conclusion of each fiscal year by an independent
certified public accountant selected by the Board of Directors, and it shall be
the duty of the Board of Directors to cause such audit to be done annually.
SECTION 6.6 Resignations. Any director or any officer, whether elected
------------
or appointed, may resign at any time by giving written notice of such
resignation to the Chairman of the Board, the President, or the Secretary, and
such resignation shall be deemed to be effective as of the close of business on
the date said notice is received by the Chairman of the Board, the President, or
the Secretary, or at such later time as is specified therein. No formal action
shall be required of the Board of Directors or the stockholders to make any such
resignation effective.
SECTION 6.7 Indemnification and Insurance.
-----------------------------
11
<PAGE>
(A) Each person who was or is made a party or is threatened to
be made a party to or is involved in any action, suit, or proceeding, whether
civil, criminal, administrative or investigative (hereinafter a "proceeding"),
by reason of the fact that he or she or a person of whom he or she is the legal
representative is or was a director or officer of the Corporation or is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans maintained
or sponsored by the Corporation, whether the basis of such proceeding is alleged
action in an official capacity as a director, officer, employee or agent or in
any other capacity while serving as a director, officer, employee or agent,
shall be indemnified and held harmless by the Corporation to the fullest extent
authorized by the General Corporation Law of the State of Delaware as the same
exists or may hereafter be amended (but, in the case of any such amendment, only
to the extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide prior
to such amendment), against all expense, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts
paid or to be paid in settlement) reasonably incurred or suffered by such person
in connection therewith and such indemnification shall continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure to
the benefit of his or her heirs, executors and administrators; provided,
--------
however, that except as provided in paragraph (C) of this Bylaw, the Corporation
- -------
shall indemnify any such person seeking indemnification in connection with a
proceeding (or part thereof) initiated by such person only if such proceeding
(or part thereof) was authorized by the Board of Directors. The right to
indemnification conferred in this Bylaw shall be a contract right and shall
include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition, such advances
to be paid by the Corporation within 20 days after the receipt by the
Corporation of a statement or statements from the claimant requesting such
advance or advances from time to time; provided, however, that if the General
-------- -------
Corporation Law of the State of Delaware requires, the payment of such expenses
incurred by a director or officer in his or her capacity as a director or
officer (and not in any other capacity in which service was or is rendered by
such person while a director or officer, including, without limitation, service
to an employee benefit plan) in advance of the final disposition of a
proceeding, shall be made only upon delivery to the Corporation of an
undertaking by or on behalf of such director or officer, to repay all amounts so
advanced if it shall ultimately be determined that such director or officer is
not entitled to be indemnified under this Bylaw or otherwise.
(B) To obtain indemnification under this Bylaw, a claimant shall
submit to the Corporation a written request, including therein or therewith such
documentation and information as is reasonably available to the claimant and is
reasonably necessary to determine whether and to what extent the claimant is
entitled to indemnification. Upon written request by a claimant for
indemnification pursuant to the first sentence of this paragraph (B), a
determination, if required by applicable law, with respect to the claimant's
entitlement thereto shall be made as follows: (1) if requested by the claimant,
by Independent Counsel (as hereinafter defined), or (2)
12
<PAGE>
if no request is made by the claimant for a determination by Independent
Counsel, (i) by the Board of Directors by a majority vote of a quorum consisting
of Disinterested Directors (as hereinafter defined), or (ii) if a quorum of the
Board of Directors consisting of Disinterested Directors is not obtainable or,
even if obtainable, such quorum of Disinterested Directors so directs, by
Independent Counsel in a written opinion to the Board of Directors, a copy of
which shall be delivered to the claimant, or (iii) if a quorum of Disinterested
directors so directs, by the stockholders of the Corporation. In the event the
determination of entitlement to indemnification is to be made by Independent
Counsel at the request of the claimant, the Independent Counsel shall be
selected by the Board of Directors unless there shall have occurred within two
years prior to the date of the commencement of the action, suit or proceeding
for which indemnification is claimed a "Change of Control" as defined in the
Corporation's 1995 Stock Incentive Plan, in which case the Independent Counsel
shall be selected by the claimant unless the claimant shall request that such
selection be made by the Board of Directors. If it is so determined that the
claimant is entitled to indemnification, payment to the claimant shall be made
within 10 days after such determination.
(C) If a claim under paragraph (A) of this Bylaw is not paid in
full by the Corporation within thirty days after a written claim pursuant to
paragraph (B) of this Bylaw has been received by the Corporation, the claimant
may at any time thereafter bring suit against the Corporation to recover the
unpaid amount of the claim and, if successful in whole or in part, the claimant
shall be entitled to be paid also the expense of prosecuting such claim. It
shall be a defense to any such action (other than an action brought to enforce a
claim for expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standard of
conduct which makes it permissible under the General Corporation Law of the
State of Delaware for the Corporation to indemnify the claimant for the amount
claimed, but the burden of proving such defense shall be on the Corporation.
Neither the failure of the Corporation (including its Board of Directors,
Independent Counsel or stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in the General Corporation Law of the State of Delaware, nor an actual
determination by the Corporation (including its Board of Directors, Independent
Counsel or stockholders) that the claimant has not met such applicable standard
of conduct, shall be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
(D) If a determination shall have been made pursuant to
paragraph (B) of this Bylaw that the claimant is entitled to indemnification,
the Corporation shall be bound by such determination in any judicial proceeding
commenced pursuant to paragraph (C) of this Bylaw.
(E) The Corporation shall be precluded from asserting in any
judicial proceeding commenced pursuant to paragraph (C) of this Bylaw that the
procedures and presumptions of this Bylaw are not valid, binding and enforceable
and shall stipulate in such proceeding that the Corporation is bound by all the
provisions of this Bylaw.
13
<PAGE>
(F) The right to indemnification and the payment of expenses
incurred in defending a proceeding in advance of its final disposition conferred
in this Bylaw shall not be exclusive of any other right which any person may
have or hereafter acquire under any statute, provision of the Certificate of
Incorporation, Bylaws, agreement, vote of stockholders or Disinterested
Directors or otherwise. No repeal or modification of this Bylaw shall in any way
diminish or adversely affect the rights of any director, officer, employee or
agent of the Corporation hereunder in respect of any occurrence or matter
arising prior to any such repeal or modification.
(G) The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the Corporation
or another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the Corporation would
have the power to indemnify such person against such expense, liability or loss
under the General Corporation Law of the State of Delaware. To the extent that
the Corporation maintains any policy or policies providing such insurance, each
such director or officer, and each such agent or employee to which rights to
indemnification have been granted as provided in paragraph (H) of this Bylaw,
shall be covered by such policy or policies in accordance with its or their
terms to the maximum extent of the coverage thereunder for any such director,
officer, employee or agent.
(H) The Corporation may, to the extent authorized from time to
time by the Board of Directors, grant rights to indemnification, and rights to
be paid by the Corporation the expenses incurred in defending any proceeding in
advance of its final disposition, to any employee or agent of the Corporation to
the fullest extent of the provisions of this Bylaw with respect to the
indemnification and advancement of expenses of directors and officers of the
Corporation.
(I) If any provision or provisions of this Bylaw shall be held
to be invalid, illegal or unenforceable for any reason whatsoever: (1) the
validity, legality and enforceability of the remaining provisions of this Bylaw
(including, without limitation, each portion of any paragraph of this Bylaw
containing any such provision held to be invalid, illegal or unenforceable, that
is not itself held to be invalid, illegal or unenforceable, that is not itself
held to be invalid, illegal or unenforceable) shall not in any way be affected
or impaired thereby; and (2) to the fullest extent possible, the provisions of
this Bylaw (including, without limitation, each such portion of any paragraph of
this Bylaw containing any such provision held to be invalid, illegal or
unenforceable) shall be construed so as to give effect to the intent manifested
by the provision held invalid, illegal or unenforceable.
(J) For purposes of this Bylaw:
14
<PAGE>
(1) "Disinterested Director" means a director of the
Corporation who is not and was not a party to the matter in
respect of which indemnification is sought by the claimant.
(2) "Independent Counsel" means a law firm, a member of a
law firm, or an independent practitioner, that is experienced in
matters of corporation law and shall include any person who,
under the applicable standards of professional conduct then
prevailing, would not have a conflict of interest in representing
either the Corporation or the claimant in an action to determine
the claimant's rights under this Bylaw.
(K) Any notice, request or other communication required or
permitted to be given to the Corporation under this Bylaw shall be in writing
and either delivered in person or sent by telecopy, telex, telegram, overnight
mail or courier service, or certified or registered mail, postage prepaid,
return receipt requested, to the Secretary of the Corporation and shall be
effective only upon receipt by the Secretary.
ARTICLE VII
CONTRACTS, PROXIES, ETC.
SECTION 7.1 Contracts. Except as otherwise required by law, the
---------
Certificate of Incorporation or these Bylaws, any contracts or other instruments
may be executed and delivered in the name and on the behalf of the Corporation
by such officer or officers of the Corporation as the Board of Directors may
from time to time direct. Such authority may be general or confined to specific
instances as the Board may determine. The Chairman of the Board, the President
or any Vice President may execute bonds, contracts, deeds, leases and other
instruments to be made or executed for or on behalf of the Corporation. Subject
to any restrictions imposed by the Board of Directors or the Chairman of the
Board, the President or any Vice President of the Corporation may delegate
contractual powers to others under his jurisdiction, it being understood,
however, that any such delegation of power shall not relieve such officer of
responsibility with respect to the exercise of such delegated power.
SECTION 7.2 Proxies. Unless otherwise provided by resolution adopted by
-------
the Board of Directors, the Chairman of the Board, the President or any Vice
President may from time to time appoint an attorney or attorneys or agent or
agents of the Corporation, in the name and on behalf of the Corporation, to cast
the votes which the Corporation may be entitled to cast as the holder of stock
or other securities in any other corporation, any of whose stock or other
securities may be held by the Corporation, at meetings of the holders of the
stock or other securities of such other corporation, or to consent in writing,
in the name of the Corporation as such holder, to any action by such other
corporation, and may instruct the person or persons so appointed as to the
manner of casting such votes or giving such consent, and may execute or cause to
be executed in the name and on behalf of the Corporation and under its corporate
seal or
15
<PAGE>
otherwise, all such written proxies or other instruments as he may deem
necessary or proper in the premises.
ARTICLE VII
AMENDMENTS
SECTION 8.1 Amendments. These Bylaws may be altered, amended, or
----------
repealed at any meeting of the Board of Directors or of the stockholders,
provided notice of the proposed change was given in the notice of the meeting
and, in the case of a meeting of the Board of Directors, in a notice given not
less than two days prior to the meeting.
16
<PAGE>
MORGAN, LEWIS & BOCKIUS LLP
1701 Market Street
Philadelphia, PA 19103
June 2, 1999
ESPS, Inc.
1300 Virginia Drive, Suite 125
Fort Washington, PA 19034
Re: ESPS, Inc. Registration Statement on Form S-1
Ladies and Gentlemen:
We have acted as counsel for ESPS, Inc., a Delaware corporation (the "Company"),
in connection with the preparation of the registration statement on Form S-1
(the "Registration Statement") filed with the Securities and Exchange Commission
(the "Commission") pursuant to the Securities Act of 1933, as amended (the
"Act"), relating to the public offering (the "Offering") of up to 4,600,000
shares (the "Shares") of the Company's common stock, $.001 par value (the
"Common Stock"), including 600,000 Shares purchasable by the underwriters upon
exercise of their over-allotment option. Of the 4,600,000 Shares, (i) up to
3,808,308 Shares will be newly issued and sold by the Company (the "Company
Shares") and (ii) up to 791,692 Shares will be sold by the selling stockholders
(the "Selling Stockholder Shares"). This opinion is being furnished pursuant to
Item 601(b)(5) of Regulation S-K under the Act.
In rendering the opinion set forth below, we have reviewed (a) the Registration
Statement and the exhibits thereto; (b) the Company's Amended and Restated
Certificate of Incorporation, as amended on March 30, 1999; (c) the Company's
Amended and Restated Bylaws; (d) certain records of the Company's corporate
proceedings as reflected in its minute books; and (e) such statutes, records and
other documents as we have deemed relevant. In our examination, we have assumed
the genuineness of all signatures, the authenticity of all documents submitted
to us as originals, and conformity with the originals of all documents submitted
to us as copies thereof. In addition, we have made such other examinations of
law and fact as we have deemed relevant in order to form a basis for the opinion
hereinafter expressed.
<PAGE>
ESPS, Inc,
June 2, 1999
Page 2
Based upon the foregoing, we are of the opinion that (i) the Company Shares,
upon issuance and sale by the Company in the manner and for the consideration
contemplated in the Registration Statement, will be validly issued, fully paid
and nonassessable and (ii) the Selling Stockholder Shares are validly issued,
fully paid and nonassessable.
We hereby consent to the use of this opinion as an Exhibit to the Registration
Statement and to all references to this Firm under the caption "Legal Matters"
in the Registration Statement. In giving such consent, we do not thereby admit
that we are acting within the category of persons whose consent is required
under Section 7 of the Act and rules and regulations of the Securities and
Exchange Commission thereunder.
Very truly yours,
/s/ Morgan, Lewis & Bockius LLP
<PAGE>
Exhibit 10.4
LICENSE AND MARKETING AGREEMENT
This Agreement ("Agreement") is entered into effective as of November 6,
1997 ("Effective Date") between Electronic Submission Publishing Systems, Inc.,
a Delaware corporation, 1300 Virginia Drive, Fort Washington, Pennsylvania 19034
("ESPS") and Adobe Systems Incorporated, a Delaware corporation, 345 Park
Avenue, San Jose, California 95110 ("Adobe").
RECITAL
ESPS develops, markets and supports software products designed to manage,
generate, publish, and distribute high quality regulatory submissions. Adobe
develops, markets and supports software products that enable users to express
and use information across print and electronic media. ESPS and Adobe desire
that Adobe market and distribute retail and OEM products containing certain PDF
transformation and publishing software developed by ESPS. Therefore, subject to
the terms and conditions of this Agreement, ESPS has agreed to grant Adobe a
license to market and distribute the object code of such products in the retail
and OEM markets.
NOW, THEREFORE, intending to be legally bound hereby, ESPS and Adobe agree
as follows:
1. DEFINITIONS
Defined terms used in this Agreement shall have the meanings set forth
below:
1.1. "Acrobat" shall mean Adobe's Acrobat software products, including
current and future versions of the Acrobat products.
1.2. "Adobe Quarter" shall mean the three (3) month periods following
Adobe's fiscal year beginning December 1.
1.3. "Affiliate" shall mean, with respect to any Party, any other party
which directly or indirectly controls, is controlled by, or is under common
control with, such Party. A party shall be regarded as in control of another
party if it owns, or directly or indirectly controls, at least fifty percent
(50%) of the voting stock or other ownership interest of the other party, or if
it directly or indirectly possesses the power to direct or cause the direction
of the management and policies of the other party by any means whatsoever.
1
<PAGE>
1.4. "Alpha Release" shall mean, a functionally complete version of the
ESPS software (including installer) and the frozen APIs. The version may contain
bugs but testing has begun with test plans and test documentation written during
the development phase and further planned development requires only correction
of outstanding bugs unless Adobe and ESPS mutually agree on the additional
features and any necessary changes to the Specifications and Delivery Schedule.
1.5. "Beta Release" shall mean, a release which contains all features and
no severity 4 bugs (highest level) unless agreed upon by ESPS and Adobe and
draft documentation shall be completed. For the purpose of this provision, a
"Severity 4 Bug" means any bug that crashes the system, hangs the application,
or causes a loss of data.
1.6. "Change in Control" shall mean the sale of a majority of the
outstanding voting shares of ESPS to a direct competitor of Adobe or the merger
or consolidation of ESPS into, or the sale of all or substantially all of the
assets of ESPS to, a direct competitor. For purposes of this Section 1.3, a
direct competitor of Adobe shall mean a company that develops, manufactures
and/or distributes software that directly competes with Acrobat.
1.7. "Client/Server Licenses" shall mean licenses by Adobe in Adobe's
customary distribution markets for networked client/server systems of the
combination of (i) the PDFPress Server Software, and (ii) copies of Acrobat that
contain the PDFPress Client Software.
1.8. "Confidential Information" shall mean confidential or other
proprietary information that is disclosed by ESPS or Adobe to the other Party
under the terms of this Agreement, including without limitation, software code
and designs, product specifications, and documentation, business and product
plans, and other confidential business information. Confidential Information
shall not include information which: (i) is or becomes public knowledge without
any action by, or involvement of the receiving Party; (ii) is disclosed by the
receiving Party with the prior written approval of the disclosing Party; (iii)
is independently developed by the receiving Party without the use of any
Confidential Information received from the other Party under this Agreement; and
(iv) is disclosed pursuant to any judicial or governmental order, provided that
the receiving Party gives the disclosing Party sufficient prior notice to
contest such order.
1.9. "Effective Date" shall mean November 6, 1997.
1.10. "Enterprise Licenses" shall mean multiple-copy or multiple-seat
licenses by Adobe of the non-networked version of Acrobat that contains the
PDFPress Client Software, including without limitation any multiple-copy or
multiple-seat licenses sold as bundled products or sold through Adobe's
customary distribution channels.
2
<PAGE>
1.11. "ESPS Documentation" shall mean the initial version of the
explanatory and informational materials concerning the ESPS Software delivered
by ESPS under Section 5.1.
1.12. "ESPS Software" shall mean the PDFPress Client Software, PDFPress
Standalone Client Software and PDFPress Server Software and any subsequent
modifications, updates and or upgrades by ESPS as provided in Section 5.3.
1.13. "Intellectual Property Rights" shall mean all forms of intellectual
property rights and protections that may be obtained for, or may pertain to,
Acrobat, ESPS Software and Confidential Information, including, without
limitation, all right, title and interest arising under the common law, state
law, Federal law, and laws of foreign countries to all: (i) letters patent, and
filed, pending or potential applications for letters patent, including any
reissue, reexamination, division, continuation or continuation-in-part
applications; (ii) trade secrets, and all trade secret rights and equivalent
rights; (iii) mask works, copyrights and other literary property or authors
rights, whether or not protected by copyright or as a mask work; and (iv)
trademarks, trade names, symbols, logos, and/or brand names.
1.14. "Level I Support" shall mean the following Support Services:
acceptance of and response to customer inquiries, in writing, by telephone, or
by electronic mail, concerning the use and operation of the ESPS Software and
any possible errors or defects in the ESPS Software.
1.15. "Level II Support" shall mean the following Support Services:
replication and testing of Material Defects in the ESPS Software and correction
of Material Defects that do not require access to Source Code.
1.16. "Level III Support" shall mean the following Support Services:
correction of Material Defects in the ESPS software that require access to
Source Code.
1.17. "License Fee" shall mean an up-front payments by Adobe to ESPS under
Section 6.1. The total License Fee shall be one million three-hundred thousand
dollars ($1,300,000) and shall be paid in four installments as set forth in
Section 6.1.
1.18. Marks shall mean all trademarks, trade names, symbols, logos and/or
brand names adopted from time to time to identify a Party, product or service.
1.19. Material Defect shall mean any reported malfunction, error or other
defect in the ESPS Software that: (i) can be reproduced by ESPS and Adobe; and
(ii) constitutes a substantial nonconformity with the Specifications for such
ESPS Software.
3
<PAGE>
1.20. "Named Accounts" shall mean those OEM customers with which ESPS has
an established an ongoing business relationship and which are set forth in
Exhibit C. Additional ESPS OEM customers may be added as Named Accounts under
this Agreement by the mutual agreement of Adobe and ESPS.
1.21. "Net Revenues" shall have the meaning set forth in Section 6.3.
1.22. "Object Code" shall mean machine readable program code containing
actual computer instructions.
1.23. "OEM Customer" shall mean a distributor that incorporates the ESPS
Software in its products and distributes the ESPS Software as a component of
such products.
1.24. "OEM Licenses" shall mean licenses of the ESPS Software by Adobe or
ESPS to OEM Customers.
1.25. "Parties" shall mean ESPS and Adobe collectively and "Party" shall
mean either ESPS or Adobe.
1.26. "PDFPress Client Software" shall mean the ESPS Software set forth in
Exhibit A that is licensed to Adobe for distribution as a component of Acrobat
for client machines in Adobe's customary distribution channels.
1.27. "PDFPress Server Software" shall mean the ESPS software set forth in
Exhibit A that is licensed to Adobe for use on file server machines.
1.28. "PDFPress Standalone Client Software" shall mean the PDFPress Client
Software set forth in Exhibit A that is licensed to Adobe to be sold on a
standalone basis rather than as a component of Acrobat.
1.29. "Release Candidate version" shall mean, a release of the ESPS
software with no severity 4 bugs (highest level) and a minimum number of other
Material Defects and shall perform at a quality level consistent with recently
published products from Adobe. For the purpose of this provision, a "Severity 4
Bug" means any bug that crashes the system, hangs the application, or causes a
loss of data.
1.30. "Royalty Advance" shall mean the advance royalty payment by Adobe to
ESPS under Section 6.4. The Royalty Advance shall be a non-refundable payment of
five hundred thousand dollars ($500,000).
4
<PAGE>
1.31. "Source Code" shall mean program code expressed in a form suitable
for modification by humans.
1.32. "Source Code License Fee" shall mean the fee paid by Adobe to ESPS
under Section 2.7 for a license of the Source Code for the ESPS Software. The
Source Code Fee shall equal three times (3x) Adobe's Net Revenues for OEM
Licenses for the twelve (12) month period prior to the initial date of the
Source Code license, plus three times (3x) the royalties paid by Adobe to ESPS
for all other licenses of the ESPS Software during such twelve (12) month
period.
1.33. "Specifications" shall mean the specifications applicable to the ESPS
Software set forth in Exhibit A.
1.34. "Support Failure" shall mean, subject to the provisions for cure
under Section 12.2, the failure of ESPS to provide Adobe with Level III Support
in accordance with the terms of Section 5.5.
1.35. "Support Services" shall mean (i) providing qualified personnel to
furnish technical support for the ESPS Software; (ii) diagnosis and correction
of Material Defects of the ESPS Software via telephone, remote system access,
magnetic media, repair or replacement; and (iii) delivery of all updates to the
ESPS Software.
1.36. "Term" shall mean the period beginning on the Effective Date and
terminating on the date this Agreement is terminated under Article 12.
2. LICENSE RIGHTS
2.1. Grant of License. Subject to the provisions of this Agreement, during
the license terms set forth in Section 2.2, ESPS shall grant to Adobe an
exclusive, non-transferable, world-wide license to
(i) use and reproduce the ESPS Software in Object Code form on an
internal basis in connection with the manufacture by Adobe of copies of
PDFPress Server, PDFPress Standalone and copies of Acrobat that contain the
PDFPress Client Software and, subject to the terms of Section 5.1, the
PDFPress Standalone Client Software;
(ii) market, distribute and sublicense the PDFPress Client Software
in Object Code form (either directly or through its customary distribution
channels) solely as part of licenses of Acrobat;
5
<PAGE>
(iii) market, distribute and sublicense, in Object Code form (either
directly or through its customary distribution channels), the PDFPress
Server Software and, subject to the terms of Section 5.1, the PDFPress
Standalone Client Software;
(iv) use, reproduce, make derivative works of, and distribute the
ESPS Documentation to support the marketing and distribution of the ESPS
Software; and in connection with the localization efforts by Adobe under
Section 4.6 of this Agreement, the ESPS Software in Object Code form.
2.2. License Term. The term of the licenses for the PDFPress Client
Software and the PDFPress Server Software shall commence upon delivery and
acceptance of the Release Candidate of the PDFPress Client Software and the
PDFPress Server Software and the full payment of Adobe of the License Fee. The
term of the license for the PDFPress Standalone Client Software shall commence
upon delivery and acceptance of the PDFPress Standalone Client Software to Adobe
under the terms of Section 5.1. The term of the license for all of the ESPS
Software shall terminate upon the terms set forth in Article 12.
2.3. Exclusivity. In consideration of Adobe's marketing efforts and the
licensing and royalty fees paid under this Agreement, during the term of this
Agreement, ESPS will not enter into any marketing or licensing agreement with
any other party for distribution of the ESPS Software on a stand-alone basis;
provided that nothing in this Agreement shall prevent ESPS from (i)
distributing, marketing, and sublicensing the ESPS Software to Named Accounts,
or (ii) using or distributing the functionality contained in the ESPS Software
as part of any other ESPS product, including without limitation ESPS's
CoreDossier Products provided, however, in no event during the term of the
agreement shall ESPS sublicense the ESPS Software.
2.4. Restrictions. Adobe shall not use, copy, modify, sell, assign,
sublicense, or otherwise transfer or disclose the ESPS Software, in whole or in
part, except as permitted under this Agreement. All copies of the ESPS Software
must contain the copyright and other proprietary notices contained in the ESPS
Software delivered to Adobe under Section 5.1 and shall contain ESPS' Marks in
conformance with the requirements in Section 4.4 regarding use of ESPS's name on
Adobe products.
2.5. Sublicense Agreements. Adobe is authorized to sublicense the ESPS
Software only under the terms of this Agreement. Each such sublicense shall be
subject to Adobe's standard written license agreement which shall contain terms
substantially similar to the terms no less protective than those contained in
the Adobe license agreement attached hereto as Exhibit D.
6
<PAGE>
2.6. Marketing Limitations. In consideration of the exclusive license from
ESPS under this Agreement, during the term of this Agreement, neither Adobe, nor
any Affiliate of Adobe, shall (i) market, promote or sublicense the PDFPress
Client Software on a stand alone basis separate from Acrobat (the PDFPress
Standalone Client Software may be marketed on a stand-alone basis); or (ii)
market, promote or sublicense any product to the Named Accounts that is directly
competitive with the PDFPress Server Software that is sold to OEM Customers
during the twelve (12) month period of exclusivity set forth in Section 5.7,
provided nothing in this provision shall prevent Adobe or its Affiliates from
marketing, promoting or sublicensing any product to an end user where the
software from a Named Account is installed.
2.7. Source Code License. In the event that there is a Support Failure or a
Change in Control, within seven (7) days of payment of the Source Code License
Fee by Adobe to ESPS, ESPS shall: (i) deliver to Adobe a complete set of the
Source Code to the ESPS Software and all documents, programming tools,
utilities, file layouts, and other materials that are necessary for a computer
programmer to use or modify the ESPS Software on behalf of Adobe, and (ii) grant
to Adobe a license to use, reproduce and modify the ESPS Software in Source Code
form on an internal basis in connection with the manufacture, distribution and
maintenance by Adobe of copies of PDFPress Server, PDFPress Standalone Client
Software and copies of Acrobat that contain PDFPress Client Software.
3. INTELLECTUAL PROPERTY RIGHTS
3.1. ESPS Intellectual Property Rights. Adobe hereby recognizes that ESPS
retains all Intellectual Property Rights in the ESPS Software, ESPS
Documentation and the Confidential Information received by Adobe from ESPS,
including without limitation, all corrections and modifications to the ESPS
Software and ESPS Documentation, if any, developed by ESPS or Adobe; provided,
that ESPS grants to Adobe a perpetual, royalty free, unrestricted license to
corrections or modifications made by Adobe. Adobe hereby assigns to ESPS all
Intellectual Property Rights it may possess in the ESPS Software, ESPS
Documentation and ESPS' Confidential Information, and all corrections and
modifications thereof and agrees (i) to execute all documents, and take all
actions, that may be necessary to confirm such rights, and (ii) to retain all
proprietary marks, legends and patent and copyright notices that appear on the
ESPS Software, ESPS Documentation and Confidential Information delivered to
Adobe by ESPS and all whole or partial copies made by Adobe thereof.
3.2. Adobe's Intellectual Property Rights. ESPS hereby recognizes that
Adobe retains all Intellectual Property Rights in Acrobat and the Confidential
Information received by ESPS from Adobe, including without limitation, all
corrections and modifications to Acrobat, if any, developed by Adobe or ESPS.
ESPS hereby assigns to Adobe all Intellectual Property Rights it may posses in
Acrobat and Adobe's Confidential Information, and all corrections and
modifications thereof and agrees (i) to
7
<PAGE>
execute all documents, and take all actions, that may be necessary to confirm
such rights, and (ii) to retain all proprietary marks, legends and patent and
copyright notices that appear on Acrobat and Confidential Information delivered
to ESPS by Adobe and all whole or partial copies made by ESPS thereof.
3.3. Source Code. Except as provided in Section 2.7, Adobe shall not
attempt to decompile, disassemble, reverse engineer or use any other process to
gain access to the Source Code of the ESPS Software.
3.4. Confidentiality. The Parties agree not to disclose, or permit any
third party or entity access to, the Confidential Information (or any portion
thereof) without prior written permission of the disclosing Party (except such
disclosure or access which is required to perform any obligations under this
Agreement); and to insure that any employees, or any third parties who receive
access to the Confidential Information, are advised of the confidential and
proprietary nature thereof and are prohibited from copying, utilizing or
otherwise revealing the Confidential Information. Without limiting the
foregoing, the Parties agrees to employ with regard to the Confidential
Information procedures no less restrictive than the procedures used by it to
protect its own confidential and proprietary information of a similar nature and
that in no event will the Parties employ less than commercially reasonable
procedures to protect such Confidential Information.
3.5. Trademarks. During the Term, subject to the terms of Sections 3.5 and
4.4, the Parties may use the other Party's Marks for only the purposes of
marketing and distributing the ESPS Software (for the purposes of ESPS this is
only to the Named Accounts). Except as set forth in this Section 3.5, nothing
contained in this Agreement shall grant to either Party any right, title or
interest in the Marks of the other Party. At no time during or after the Term
shall either Party challenge or assist others to challenge the other Party's
Intellectual Property Rights in such other Party's Marks or the registration
thereof or attempt to register any Marks confusingly similar to the Marks of the
other Party.
4. ADOBE RESPONSIBILITIES
4.1. Marketing of ESPS Software. Adobe shall, at its own expense, promote
the distribution of the ESPS Software on a world-wide basis. At all times during
the Term, Adobe shall maintain in its own name, at its own cost, adequate
resources to effectively market the ESPS Software, inventory to fulfill market
demand for the ESPS Software and trained personnel to enable Adobe to provide
competent technical advise and service to its customers.
4.2. Marketing Events. Adobe shall regularly engage in market making events
to showcase the PDFPress Server Software. ESPS shall have the option to
8
<PAGE>
participate, without cost to ESPS (except for travel and entertainment), in all
OEM market making events for the PDFPress Server Software. Nothing in this
Agreement will prohibit ESPS from also marketing the PDFPress Server Software to
the Named Accounts.
4.3. Quality Control. Subject to the obligations of ESPS under Article 8,
Adobe shall be fully responsible for quality control assurance for the ESPS
Software distributed hereunder, including without limitation, acquisition of all
components and supplies for manufacturing copies of the ESPS Software and its
documentation and packaging, providing quality control processes for such
manufacturing and establishing the testing procedures necessary to assure that
the ESPS Software delivered to Adobe's customers will meet or exceed customary
industry standards and conform to the Specifications for the ESPS Software.
4.4. Packaging. Adobe shall be fully responsible for the packaging of the
ESPS Software distributed by Adobe hereunder, including without limitation, the
design and manufacturing of such packaging, provided that, in addition to
retaining all copyright notices and other proprietary rights notices on the ESPS
Software delivered under Section 5.1, wherever possible, Adobe shall include at
its discretion in the ESPS Software distributed by Adobe under this Agreement,
ESPS' Marks on all documentation, and initial splash screens including a
specific notation that ESPS is a critical or integral technology provider of
Adobe.
4.5. Manuals. Subject to the license for the ESPS Documentation under
Section 2.1 and the limitations set forth in Section 4.8, Adobe shall be fully
responsible for all manual and other documentation provided to Adobe's customers
with the ESPS Software distributed by Adobe hereunder.
4.6. Localization. Except as set forth in Section 5.4, Adobe shall be fully
responsible for any localization of the ESPS Software, and its documentation and
packaging necessary for marketing the ESPS Software outside of the United
States. Adobe shall complete localization of the ESPS Software for French,
German and Japanese within twelve (12) months of the acceptance of the Release
Candidate under Section 5.2. Upon completion of any localization effort, Adobe
will deliver to ESPS a copy of all localized ESPS Software, ESPS Documentation
and packaging, and, subject to Adobe's rights in its Marks, ESPS shall have the
right to use such localized materials on an internal basis and as a component of
software packages distributed by ESPS.
4.7. Support Services. During the term of this Agreement, subject to the
terms of Section 5.5, Adobe shall provide Adobe's customers with Support
Services for the ESPS Software distributed by Adobe hereunder, including without
limitation, (i) all Level I Support and Level II Support for the ESPS Software
at first and second level assistance for such customers; and (ii) any updates to
the ESPS Software to be provided
9
<PAGE>
by ESPS as part of Support Services to its customers. Adobe will not provide
support for any other ESPS product containing the functionality of the ESPS
Software. Nothing in this Agreement shall require that Adobe modify the ESPS
Software.
4.8. Performance Obligations. Adobe shall represent the ESPS Software
accurately and fairly and shall avoid any misleading or unethical business
practices. Without the prior written approval of ESPS, Adobe shall not (i) make
warranties of functionality or performance on the ESPS Software except as
specifically set forth in the ESPS Documentation, or (ii) alter, re-label or
change the ESPS Software or Documentation except as provided in Section 4.6 or
otherwise in this Agreement. Adobe shall take all necessary steps to ensure
compliance by its employees or its other representatives with Adobe's
obligations under this Agreement.
5. ESPS OBLIGATIONS
5.1. Delivery. In accordance with the specifications and timetables
identified and mutually agreed upon in Exhibit B, ESPS shall deliver to Adobe:
(i) one master copy each version (Alpha, Beta and Release Candidate versions) of
the Object Code of the PDFPress Client Software and PDFPress Server Software,
and (ii) one copy of the ESPS Documentation. Upon the mutual agreement of ESPS
and Adobe regarding the royalty under Section 6.2(ii), the specifications under
Exhibit A and the timetable under Exhibit B, ESPS shall deliver to Adobe: (i)
one master copy of the Object Code of the PDFPress Standalone Client Software,
and (ii) one copy of the ESPS Documentation related to the PDFPress Standalone
Client Software.
5.2. Acceptance. Upon any delivery of the ESPS Software under Section 5.1,
Adobe shall review, test and evaluate the ESPS Software. Within fourteen (14)
days after delivery, Adobe shall notify ESPS in writing of (i) acceptance of the
delivered version of the ESPS Software, or (ii) any Material Defects. If Adobe
notifies ESPS in writing of Material Defects within fourteen (14) days after
delivery, ESPS shall promptly correct such defects and return the corrected
deliverable for retesting and reevaluation to Adobe. If ESPS fails to correct
such Material Defects in the corrected deliverable or fails to provide a
corrected deliverable within thirty (30) days of Adobe's original notice, then,
subject to the terms of Section 12.2, Adobe may terminate this Agreement. In the
event that Adobe fails to notify ESPS of any Material Defect within fourteen
(14) days of the delivery of any deliverable or corrected deliverable, ESPS
shall be deemed to have accepted such deliverable.
5.3. Development. Except for the Level III Services provided under Section
5.5, ESPS shall have no obligation to develop any other modifications, updates
or upgrades to the ESPS Software, provided that (i) during the term of this
Agreement, in the event that ESPS develops modifications, updates or upgrades to
the ESPS Software, such modifications, updates and upgrades shall be delivered
to Adobe and included under
10
<PAGE>
the licenses granted under this Agreement; and (ii) in the event that Adobe
desires that the ESPS Software be modified or upgraded in any manner, it shall
notify ESPS of such request, including a proposed description of such
modifications. Within ninety (90) days of the receipt of such development
request, ESPS will provide the specifications for such development, including
any terms and conditions for such development. Upon acceptance of such
development plan by Adobe, ESPS will complete the development and Adobe will pay
ESPS at ESPS' customary rates for the time necessary to complete the
development.
5.4. Localization. Upon Adobe's request, ESPS, at its own expense, shall
provide Adobe with a reasonable amount of technical assistance to support
Adobe's localization efforts under Section 4.6 including without limitation any
modifications to the Source Code for the ESPS Software necessary to complete the
localization and to make the ESPS Software compatible with localized versions of
the application software programs set forth in Schedule A. ESPS will provide
localizable versions of the PDFPress Client software for French and German as
part of the Alpha, Beta, and Release Candidate releases. By November 14, 1997,
ESPS will provide the date for the localizable version of the PDFPress Software
for the Japanese release and will subsequently deliver the localizable software
for that release by that date as the parties may agree. In the event that Adobe
requires assistance from ESPS for localization other than French, German and
Japanese, or compatibility with other application software programs, the parties
will mutually agree on the compensation and other terms for such assistance.
Other than this reasonably requested content support, Adobe will have sole
responsibility for localization of the ESPS Software.
5.5. Level III Support. During the term of this Agreement and for a period
of three (3) years after the termination of this Agreement, at Adobe's request,
ESPS shall provide to Adobe: (i) Level III Support for the ESPS Software as
third level assistance for the maintenance that Adobe provides directly to its
customers; and (ii) any updates to the ESPS Software necessary for Adobe to
provide Support Services to its customers. ESPS shall have no obligation to
provide such services directly to Adobe's customers or to provide such services
if the Material Defect in the ESPS Software is caused by malfunction of non-ESPS
hardware or software, by modification of the ESPS Software not made by ESPS, by
operator error, or by use of the ESPS Software that is not in accordance with
the operating instructions for the ESPS Software.
5.6. Support Response. If requested by Adobe under Section 5.5, ESPS shall
provide telephone consultation within the next business day of ESPS' receipt of
a telephone request for Level III Support by Adobe during ESPS standard business
hours. ESPS shall provide a means whereby requests for consultation can be
recorded outside of standard hours. Subject to the provisions of Section 5.5,
ESPS shall use reasonable efforts to provide a workaround within fifteen (15)
days of ESPS' receipt of a notice of any Material Defect and to correct such
Material Defect within sixty (60) days of ESPS' receipt of such notice.
11
<PAGE>
5.7. Named Accounts. ESPS will have the exclusive right to market and
license the PDFPress Server Software to the Named Accounts for a period of
twelve (12) months after the date of acceptance by Adobe of the Release
Candidate version of the ESPS Software under Section 5.2. In the event that ESPS
has not licensed the PDF Server Software to the Named Account within such twelve
(12) month period, Adobe may thereafter market and sublicense the PDFPress
Server Software to such Named Account. In the event that ESPS has not licensed
the accounts in the allotted time but it can demonstrate that it reasonably
expects to close a licensing transaction with one or more of the Named Accounts.
Adobe agrees to accept a written letter of request for extension, for a period
of up to six months, such that ESPS may continue its pursuit of said specified
Named Accounts. In the event that ESPS licenses the PDFPress Server Software to
a Named Account, ESPS shall execute a written license agreement directly with
such Named Account. Support Services for the Named Account will be provided by
Adobe and ESPS in the same manner as Support Services are provided for Adobe's
customers under Articles 4 and 5.
6. CONSIDERATION
6.1. Initial Payments.
(i) Agreement Execution. Upon execution of the Agreement, Adobe
shall pay to ESPS eight hundred thousand dollars ($900,000), consisting of
(a) four hundred thousand dollars ($400,000) as a refundable pre-payment of
the License Fee, and (b) the non-refundable Royalty Advance of five hundred
thousand dollars ($500,000).
(ii) Alpha. Upon acceptance of the Alpha version of the PDFPress
Client Software and PDFPress Server Software under Section 5.2, Adobe shall
pay to ESPS three hundred thousand dollars ($300,000) as a refundable
pre-payment of the License Fee.
(iii) Beta. Upon acceptance of the Beta version of the PDFPress
Client Software and PDFPress Server Software under Section 5.2, Adobe shall
pay to ESPS three hundred thousand dollars ($300,000) as a refundable pre-
payment of the License Fee.
(iv) Release Candidate. Upon acceptance of the Release Candidate
version of the PDFPress Client Software and PDFPress Server Software under
Section 5.2, Adobe shall pay to ESPS the remaining three hundred thousand
dollars ($300,000) of the License Fee.
(v) Delivery Delay. In the event that ESPS fails to deliver the
Release Candidate version of the PDFPress Client Software and PDFPress
12
<PAGE>
Server Software within thirty (30) days of the delivery date set forth in
the schedule attached hereto as Exhibit B, Adobe may retain as a penalty
ten percent (10%) of the scheduled payment for such version. Such penalty
shall not be imposed in the event (i) Adobe has materially changed the
specifications or other requirements for the ESPS Software in any manner
after the Effective Date; or (ii) the delay is caused by any other action
or inaction of Adobe.
6.2. Royalties.
(i) PDFPress Client Software.
(a) Individual Licenses. Except for Enterprise Licenses
(6.2(i)(b)), the Client/Server Licenses (6.2(iii)(a)), Bundled Sales
(6.2(i)(b)), and OEM Licenses (6.2(iii)(b)), Adobe shall pay a royalty
to ESPS equal to one dollar and fifty cents ($1.50) for every copy of
Acrobat sold that contains the PDFPress Client Software. For purposes
of this Agreement, the sale of a copy of Acrobat shall occur on the
date of shipment of the copy of Acrobat by Adobe.
(b) Enterprise Licenses and Bundled Sales. Adobe shall pay a
royalty to ESPS equal to one percent (1%) of the Net Revenues received
by Adobe from (a) all Enterprise Licenses for copies of Acrobat that
contain the PDFPress Client Software and (b) all licenses of PDFPress
Client Software that are distributed in conjunction with other
products ("Bundled Sales").
(ii) PDFPress Standalone Client Software. The royalty for distribution
by Adobe of the PDFPress Standalone Client Software shall be determined by
mutual agreement of ESPS and Adobe upon the completion of the
specifications and timetable for delivery of the Standalone PDFPress Client
Software.
(iii) PDFPress Server Software.
(a) Client/Server Licenses. Except as provided in Section
6.2(iii)(b), Adobe shall pay a royalty to ESPS equal to ten percent
(10%) of the Net Revenues received by Adobe for Client/Server
Licenses.
(b) OEM Licenses. Except for OEM Licenses by Adobe of the
PDFPress Server Software to Named Accounts, Adobe shall pay a royalty
to ESPS equal to ten percent (10%) of the Net Revenues Adobe receives
from all OEM Licenses for the PDFPress
13
<PAGE>
Server Software. For OEM Licenses by Adobe of the PDFPress Server
Software to Named Accounts, Adobe shall pay a royalty to ESPS equal to
twenty percent (20%) of the Net Revenues from the OEM License at any
time within the first two years after the commencement of the OEM
License; the royalty for each such OEM License after the two year
period shall be 10%.
6.3. Revenues.
(i) Definition. "Net Revenues" mean all revenues received with
respect to the distribution of ESPS Software, less the sum of the
following: (i) customary discounts; (ii) sales, tariff duties or use taxes;
and (iii) credits or refunds provided for returns of the ESPS Software. No
deductions shall be made for the cost of distribution, collections or for
commissions paid to corporations or individuals. Net Revenues shall also
include all license fees and royalties received by Adobe or ESPS, as the
case may be, from third parties for products developed which incorporate
the ESPS Software.
(ii) Client/Server Revenues. For purposes of determining Net
Revenues for Client/Server Licenses and OEM Licenses, Net Revenues shall
include revenues received for all copies of Acrobat that contain the
PDFPress Client Software that are distributed in conjunction with, or
distributed for use with, the PDFPress Server Software, provided that such
copies of PDFPress Client Software are distributed within six (6) months
before or after the initial license term for the initial sale of the
PDFPress Server Software. In no event shall Adobe pay more than one royalty
to ESPS for each copy of Acrobat that contains the PDFPress Client Software
that is distributed hereunder.
6.4. Royalty Advance. On the Effective Date, Adobe shall pay ESPS the
Royalty Advance. This advance shall be credited against all royalty payments
owed by Adobe under Section 6.2 and will be considered the minimum amount of
royalties due under this Agreement.
6.5. Royalty Payment by ESPS. For Named Accounts where ESPS licenses the
PDFPress Server Software to the OEM customer and collects the revenue from such
license, ESPS shall pay a royalty to Adobe equal to forty percent (40%) of the
Net Revenues to ESPS from the OEM Licenses.
7. PAYMENT
7.1. Payment of Royalties. Within thirty (30) days after the end of each
Adobe Quarter during this Agreement, each Party shall submit to the other Party
the report described in Section 7.2 and pay the other Party all royalties due
under Article 6
14
<PAGE>
for such Adobe Quarter, including the number of copies of the ESPS Software
distributed (including the number of copies of Acrobat containing the ESPS
Software), and all Net Revenue received, during such Adobe Quarter. Payment for
all fees under this Agreement shall be in U.S. dollars and submitted to the
other Party at its principle place of business or other location that the other
Party shall indicate. The other party may impose a service charge of one and
one-half percent (1.5%) per month for all amounts not paid when due.
7.2. Reports. Within thirty (30) days after the end of each Adobe Quarter
under this Agreement, each Party shall deliver to the other Party a true and
accurate report giving the particulars of the business conducted under this
Agreement for the preceeding quarter as shall be pertinent to a royalty
accounting under this Agreement. The reports shall include the number of copies
of the ESPS Software that have been licensed, the amount of the Net Revenues for
Enterprise Licenses, Client/Server Licenses and OEM Licenses, the royalties due
for such Net Revenues, and all other records and documentation that may
reasonably be requested by the other Party. Information in such reports,
including without limitation, Net Revenue and volume data, shall be deemed
Confidential Information of the disclosing Party.
7.3. Records. Each Party shall keep full, true, and accurate books of
account containing all particulars that may be necessary for the purpose of
showing amounts payable hereunder. The books of account shall be kept at the
Party's principle place of business and shall be open upon reasonable notice and
during normal business hours for five (5) years following the end of the
calendar year to which they pertain, for inspection by other Party or its agents
for the purpose of verifying royalty statements or compliance with other
respects of this Agreement. The cost of such audit shall be borne by the Party
requesting the audit, except as set forth below. Any fees found by such audit to
be overdue shall promptly be paid. In addition, if the audit reveals that
underpayment exceeds five percent (5%) of the amounts due hereunder for the
period being audited, the Party that has made the underpayment shall pay the
cost of the audit.
8. WARRANTY
8.1. Limited Warranty. ESPS warrants that (i) ESPS has all Intellectual
Property Rights necessary to license the ESPS Software to Adobe in accordance
with the terms of this Agreement; and (ii) the ESPS Software will be free from
Material Defects for a period of ninety (90) days from the date of delivery to
Adobe. ESPS' sole responsibility under this Section 8(ii) warranty shall be, at
ESPS' option, to either repair or replace the ESPS Software.
8.2. Limitations. The foregoing warranties apply only to Adobe. ESPS shall
provide warranty service only for the most current version of the ESPS Software.
ESPS shall have no obligation to provide warranty services to the extent that
the Material
15
<PAGE>
Defect in the ESPS Software is caused by malfunction of non-ESPS hardware or
software, by modification of the ESPS Software not made by ESPS, by operator
error, or by use of the ESPS Software that is not in accordance with the
operating instructions for the ESPS Software.
8.3. Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES STATED HEREIN, THE ESPS
SOFTWARE IS PROVIDED TO ADOBE AS IS, AND ESPS MAKES NO WARRANTIES WHATSOEVER
WITH RESPECT TO FUNCTIONALITY, OPERABILITY OR USE OF THE ESPS SOFTWARE. ESPS
HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE ESPS
SOFTWARE OR OTHERWISE HEREUNDER, INCLUDING ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
9. INDEMNIFICATION
Except as provided in Articles 8 and 10, Adobe will defend, at its expense,
any action brought against ESPS to the extent that it is based on a claim by a
third party based on the actions or omissions of Adobe regarding the
distribution of the ESPS Software by Adobe hereunder and Adobe will indemnify
ESPS from any costs, damages and fees incurred by ESPS from such claim. ESPS
agrees to notify Adobe promptly in writing of any claim, to permit Adobe to
defend, compromise or settle the claim and to provide all available information
and assistance regarding such claim.
10. INTELLECTUAL PROPERTY INDEMNIFICATION
10.1. Indemnification. ESPS will defend, at its expense, any action brought
against Adobe to the extent that it is based on a claim that the use of the ESPS
Software, ESPS Documentation or ESPS' Marks by Adobe in accordance with this
Agreement infringes any copyright, trademark, or United States patent, and ESPS
will indemnify Adobe from any costs, damages and fees incurred by Adobe from
such action. Adobe agrees to notify ESPS promptly in writing of any claim, to
permit ESPS to defend, compromise or settle the claim and to provide all
available information and assistance regarding such claim.
10.2. Remedies. Should the ESPS Software become, or in ESPS' opinion be
likely to become, the subject of a claim for infringement of a copyright,
trademark, or United States patent, ESPS may (i) procure for Adobe, at no cost
to Adobe, the right to continue to use the ESPS Software, (ii) replace or modify
the ESPS Software at no cost to Adobe, to make such software non-infringing,
provided that the replacement or modified ESPS Software provides substantially
similar function and performance; or (iii) if neither (i) or (ii) are practical,
terminate the right to use such ESPS Software, and ESPS shall reimburse Adobe
for all license fees and royalties paid by Adobe to ESPS, as depreciated
16
<PAGE>
on a straight-line five (5) year basis. None of these remedies shall relieve
ESPS of its obligations under 10.1.
10.3. Limitation of Liability. ESPS shall have no liability for any claim
to the extent that such claim is based upon: (i) the combination, operation or
use of any ESPS Software with equipment, devices or software not supplied or
specified by ESPS; (ii) the alteration or modification of any ESPS Software that
was not made by ESPS; or (iii) the failure by Adobe or its customers to use the
most current version of the ESPS Software.
10.4. Entire Liability. This Article 10 states the entire liability of ESPS
with respect to infringement of any intellectual property rights by the ESPS
Software and ESPS shall have no additional liability with respect to any alleged
or proven infringement.
10.5. Notification of Unauthorized Use. Adobe shall promptly notify ESPS in
writing upon its discovery for any unauthorized use or infringement of the ESPS
Software, or ESPS's Intellectual Property Rights with respect thereto. ESPS
shall have the sole and exclusive right to bring an infringement action or
proceeding against any infringing third party, and, in the event that ESPS
brings such an action or proceeding, Adobe shall, at ESPS' expense, cooperate
and provide full information and assistance to ESPS and its counsel in
connection with any such action or proceeding.
11. LIMITATION OF LIABILITY
11.1. Consequential Damages. EXCEPT FOR SECTION 10, UNDER NO CIRCUMSTANCES
WHATSOEVER SHALL ESPS OR ADOBE BE LIABLE FOR SPECIAL, INCIDENTIAL, OR
CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS OR LOSSES
RESULTING FROM BUSINESS INTERRUPTION, EVEN IF IT HAS BEEN ADVISED OF THE
POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY
NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
11.2. Liability Limitation. In no event shall ESPS's liability for any and
all claims, losses or damages arising out of or relating to, in whole or in
part, this Agreement or any services provided hereunder exceed (i) all amounts
paid by Adobe to ESPS hereunder or (ii) two million, seven hundred thousand
dollars ($2,700,000) regardless of the form of action or legal theory under
which liability may be asserted.
12. TERM AND TERMINATION
17
<PAGE>
12.1. Term. This Agreement shall continue in force for an initial term of
five (5) years from the Effective Date unless terminated earlier under the
provisions of this Article 11. Upon the expiration of the initial term, this
Agreement shall be automatically renewed for consecutive additional one year
terms ("Renewal Terms") unless the Agreement has previously been terminated
under this Article 2. Either party may terminate this Agreement at the end of
the initial term or any Renewal Term by providing the other Party with notice of
termination at least ninety (90) days prior to end of such initial term or
Renewal Term.
12.2. Termination for Cause. In the event of any material breach of this
Agreement, the non-breaching Party may terminate this Agreement by giving sixty
(60) days' prior written notice to the other Party; provided, however, that this
Agreement shall not terminate if the other Party has cured the breach prior to
the expiration of such sixty (60) day period, or if such breach cannot be cured
within such sixty (60) day period, the other Party has taken steps within such
sixty (60) day period to cure the breach and thereafter cured such breach as
soon as practicable.
12.3. Termination for Insolvency. This Agreement may be terminated by
either party (i) upon the institution by or against the other Party of
insolvency, receivership or bankruptcy proceedings, (ii) upon the other Party's
making an assignment for the benefit of creditors, or (iii) upon the other
Party's dissolution or ceasing to do business.
12.4. Effect of Termination. Upon termination of this Agreement for any
reason:
(i) The license granted under this Agreement shall immediately
terminate, provided that Adobe shall retain the right to use the ESPS
Software to provide Level I and Level II Support to existing customers and
ESPS will continue to provide Level III support to Adobe under Section 5.5
and for a period of three (3) months following termination; however, Adobe
is under no obligation to provide support to existing customers upon
termination of agreement.
(ii) Customers properly sublicensed prior to the termination shall
have the right to continue to use the ESPS Software pursuant to the terms
and conditions of their respective sublicense agreements;
(iii) Except as necessary to provide Support Services under Section
4.7, Adobe shall return to ESPS the Confidential Information, Documentation
and all other tangible materials related to the ESPS Software, all
translations thereof; and
18
<PAGE>
(iv) Termination of this Agreement by either Party shall be without
prejudice to that Party's other rights and remedies hereunder, subject to
any limitations on remedies provided herein.
12.5. Survival. The provisions of Sections 4.7, 5.5, 6.2, 6.5, 8.3, 12.4
and 12.5 and Articles 3, 7, 9, 10 and 11 shall survive the termination of this
Agreement for any reason.
13. EXPORT COMPLIANCE
The rights and obligations of ESPS and Adobe hereunder shall be subject to
such United States laws and regulations as shall from time to time govern the
license and delivery of technology abroad by persons subject to the jurisdiction
of the United States, including the Export Administration Act of 1979, as
amended, any successor legislation to the Export Administration Act of 1979, and
the Export Administration regulations issued by the Department of Commerce,
International Trade Administration, Office of Export Administration. ESPS and
Adobe each shall certify that they shall not directly or indirectly, export,
reexport or transship the ESPS Software or any parts or copies thereof in such a
manner as to violate such laws and regulations in effect from time to time. ESPS
represents that the ESPS Software delivered to Adobe shall qualify for a general
export license under the Export Administration Act and that the ESPS Software
shall not include encryption technology that precludes qualification for such
general license.
14. DISPUTE RESOLUTION
In the event that a controversy or claim arises relating to this Agreement,
or the breach thereof, the Parties shall use good faith efforts to resolve such
controversy or claim without resort to litigation. Upon written notice of any
such dispute ("Dispute Notice"), the managers for distribution of the ESPS
Software for each Party must consult with each other to attempt to resolve the
matter amicably for a period of at least thirty (30) days. In the event that the
Parties are unable to reach an accommodation within such thirty (30) day period,
senior management from both ESPS and Adobe with authority to settle the
controversy or claim shall hold a meeting and use good faith efforts to resolve
the dispute within the following thirty (30) days. An attempt to arrive at a
settlement shall be deemed to have failed only if after such sixty (60) day
resolution period one of the Parties notifies the other Party in writing of such
failure.
15. GENERAL PROVISIONS
15.1. Governing Law. This Agreement shall be governed by and construed
under the laws of the State of New York, U.S.A., without reference to conflicts
of law principles.
19
<PAGE>
15.2. Entire Agreement. This Agreement sets forth the entire agreement and
understanding of the Parties relating to the subject matter herein and merges
all prior discussions between the Parties. No modification or amendment of this
Agreement, nor any waiver of any rights under this Agreement, shall be effective
unless in writing signed by the Party to be charged.
15.3. Notice. All notices and other communications hereunder shall be in
writing and shall be deemed effective when delivered by hand or by facsimile
transmission, when telexed or upon receipt when mailed by registered or
certified mail (return receipt requested) postage prepaid, to the Parties at the
address first listed above (or at such other address for a Party as shall be
specified by like notice). No change of address shall be binding upon the other
Party hereto until written notice thereof is received by such Party at the
address shown herein.
15.4. Force Majeure. Except for the obligation to make payment,
nonperformance of either Party shall be excused to the extent the performance is
rendered impossible by strike, fire, flood, governmental acts or orders or
restrictions, failure of suppliers, or any other reason where failure to perform
is beyond the reasonable control of and not caused by the negligence of the
non-performing Party. Each Party agrees to promptly notify the other of any such
circumstance delaying its performance and to resume performance as so as
reasonably practicable, but in no case greater than one hundred twenty (120)
days.
15.5. Non-assignability and Binding Effect. Neither Party shall assign this
Agreement to any third party without the prior written consent of the other
Party provided that, subject to the provisions of Section 2.7, the merger or
consolidation of one Party into, or the sale of all or substantially all of the
assets of such Party to, a third party shall not be deemed to be an assignment.
Subject to the foregoing, this Agreement shall be binding upon and inure to the
benefit of the Parties hereto and their permitted successors and assigns.
15.6. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
15.7. Severability. The provisions of this Agreement are severable, and in
the event that any provision of this Agreement shall be determined to be invalid
or unenforceable under any controlling body of law, such invalidity or
unenforceability shall not in any way affect the validity or enforceability of
the remaining provisions hereof.
IN WITNESS WHEREOF, the Parties have entered into this Agreement as of the
date first set forth above.
20
<PAGE>
ELECTRONIC SUBMISSION ADOBE SYSTEMS, INC.
PUBLISHING SYSTEMS, INC.
/s/ Terrence A. Brennan /s/ [SIGNATURE ILLEGIBLE]
- ------------------------------ ------------------------------
Authorized Signature Authorized Signature
/s/ Terrence A. Brennan /s/ [SIGNATURE ILLEGIBLE]
- ------------------------------ ------------------------------
Printed Name Printed Name
President CEO Vice President
- ------------------------------ ------------------------------
Title Title
Nov 18 1997 Nov 6 1992
- ------------------------------ ------------------------------
Date Date
21
<PAGE>
EXHIBIT A
Specifications
--------------
Definition of Products
- ----------------------
The following products are going to be delivered to Adobe from ESPS:
1. PDF Press Client
2. PDF Press Server
Each of these products will be described below. In addition to these products,
a series of plug-ins will be delivered. These plug-ins each support a different
source document types.
PDF Press Client
- ----------------
The PDF press client is a product that gives the user PDF
transformation and compound document publishing features. The product
has a GUI that allows for compound document assembly. This GUI
supports the following features.
Drag and Drop insertion of PDF files
Drag and Drop manipulation of the compound document
Viewing of PDF files
Transformation of supported source documents to PDF (See supported content
types)
Printing of the compound document structure
Saving of the compound document
Publishing the compound document to PDF
Publishing the compound document to a LAN printer
Publishing with headers and footers with static text and pagination
information
Publishing with a table of contents
Publishing with a cover page
Publishing with navigation hot spots
Publishing with a watermark
Create Thumbnails for the PDF
Bookmark the PDF, if the source application supports it
Optimize and linearize the PDF
Apply PDF security options
Platforms Supported
Windows 95
Windows NT 4.0
<PAGE>
Inputs to system:
Drag and Drop messages from the file system
Right click menu from Windows Explorer
File selection from standard windows dialogs
Proprietary Compound Document files
Error Reporting
The PDF Press Client reports errors in the main window of the
application. The user has the options of specifying two different log
files, one for all messages and one for errors only. The application
also reports errors from the server about jobs it has sent.
Additional Software Required
Acrobat Exchange 3.0 or greater
Acrobat Distiller--optional
Acrobat PDF writer--optional
Source applications required for transformation
PDF Press Server
- ----------------
The PDF Press Server is a product that provides the server side of the
PDF Press Client. This product will receive requests from the clients
and process the jobs without utilizing the client machine for
transformation or publishing. PDF Press Server is also the server
side of the PDF Press SDK. Applications wishing to provide
transformation and publishing functionality on a server will interface
to the PDF Press SDK objects through PDF Press Server. When the PDF
Press Server is installed, the PDF Press client will gain new
capabilities. These include:
Support for watched folders
Support for transformation scheduling
Support for templates of publication styles
Support for Drag and Drop of any supported file type, not just PDF's
Support for document variables in the headers and footers
OLE Automation support
Intended Audience:
The audience for this product is Acrobat users that want a simple way
to create and publish PDF files from source documents on a file system
utilizing a server or users wishing to provide a server interface into
their own document repository.
Platforms Supported
Windows NT 4.0
2
<PAGE>
Inputs to system:
Job Requests sent by PDF Press Clients
Other required software
Acrobat Distiller 3.0 or greater (optional)
PDF Writer 3.0 or greater
Acrobat Exchange 3.0 or greater
Source applications
Error Reporting
The PDF Press server reports errors in the main window of the application.
The user has the options of specifying two different log files, one for all
messages and one for errors only.
Errors will be sent back to the clients.
Restart Recovery Processing
The PDF Press Server has the option of specifying three different
restart recovery time outs. If the current functionality has not
completed in the allotted time, the Transform Object will halt
processing and fail the current job. The three timeout parameters, in
minutes, are:
Maximum Postscript creation time
Maximum distill time
Maximum bookmark extraction time
Contents Types Supported
- ------------------------
Each of the content types listed below will be supported through a plug-in
interface. A plug-in DLL will be provided that has the capability to create a
PDF or PostScript version of the source file. If the plug-in has any options
that can be selected, the plug-in is responsible for providing a dialog for
collecting the information. Initial delivery of the product is for US English
versions of the plug-ins. These will support the US versions of the products
listed below. German, French and Japanese product support will be provided
during the localization phase of the project.
Adobe Capture
PostScript Options
No Transformation options
Extraction Options
Extraction not supported
Versions supported
Version 2.0
3
<PAGE>
Adobe FrameMaker
PostScript Options
No Transformation options
Extraction Options
No extraction options, bookmarks are generated from table of
contents entries
Versions supported
Version 5.5
Adobe Illustrator
PostScript Options
No Transformation options
Extraction Options
Extraction not supported
Versions supported
Version 7.0
Adobe PageMaker
PostScript Options
No Transformation options
Extraction Options
Extraction not supported
Versions supported
Version 6.5
Adobe Persuasion
PostScript Options
No Transformation options
Extraction Options
Extraction not supported
Versions supported
Version 6.0
Adobe Exchange
PostScript Options
No Transformation options
4
<PAGE>
Extraction Options
Extraction not supported
Bookmarks are preserved
Versions supported
Version 3.0
Version 3.01
Adobe PhotoShop
PostScript Options
No Transformation options
Extraction Options
Extraction not supported
Versions supported
Version 4.0
Adobe Postscript
PostScript Options
No Transformation options
Extraction Options
Extraction not supported
Versions supported
Versions supported by Distiller 3.01
ASCII Text
PostScript Options
Paper size
Orientation
Font
Font size
Use/don't use printer control characters
Margins
Characters/line
Lines/page
Fit font to margin
Extraction Options
Extraction not supported
5
<PAGE>
Versions supported
English Version
AutoCAD (Support through INSO filter)
PostScript Options
No Transformation options
Extraction Options
Extraction not supported
Versions supported
Current Shipping Version
Corel DRAW
PostScript Options
No Transformation options
Extraction Options
Extraction not supported
Versions supported
Version 7.0
Corel PHOTO-PAINT
PostScript Options
No Transformation options
Extraction Options
Extraction not supported
Versions supported
Version 7.0
Corel Presentations
PostScript Options
No Transformation options
Extraction Options
Extraction not supported
Versions supported
Version 8.0
6
<PAGE>
Corel Quattro Pro
PostScript Options
No Transformation options
Extraction Options
Extraction not supported
Versions supported
Version 8.0
Corel WordPerfect
PostScript Options
Suppress headers and footers
Extraction Options
Extraction not supported
Bookmarks are created from table of contents
Versions supported
Version 7.0
Version 8.0
Harvard Graphics
PostScript Options
No Transformation options
Extraction Options
Extraction not supported
Versions supported
Version 4.0
Interleaf
PostScript Options
Suppress headers and footers
Extraction Options
Bookmarks created from TOC's
Versions supported
Version 6.2
7
<PAGE>
Lotus 123
PostScript Options
No Transformation options
Extraction Options
Extraction not supported
Versions supported
97 Edition
Lotus FreeLance
PostScript Options
No Transformation options
Extraction Options
Extraction not supported
Versions supported
97 Edition
Lotus Word Pro
PostScript Options
No Transformation options
Extraction Options
Extraction not supported
Bookmarks are created from table of contents
Versions supported
97 Edition
MacroMedia FreeHand
PostScript Options
No Transformation options
Extraction Options
Extraction not supported
Versions supported
Version 7.0
Microsoft Excel
PostScript Options
8
<PAGE>
No Transformation options
Extraction Options
Extraction not supported
Versions supported
97 Edition
Microsoft Internet Explore
PostScript Options
No Transformation options
Extraction Options
Extraction not supported
Versions supported
Version 4.0
Microsoft PowerPoint
PostScript Options
Print black and white
Scale to fit
Frame slides
Print notes
Extraction Options
Remove special characters
Bookmarks are created from slide titles
Versions supported
97 Edition
Microsoft Project
PostScript Options
No Transformation options
Extraction Options
Extraction not supported
Versions supported
97 Edition
9
<PAGE>
Microsoft Word
PostScript Options
Suppress headers and footers
Extraction Options
Define number of TOC levels for bookmarks
Versions supported
97 Edition
Microsoft WordPad
PostScript Options
No Transformation options
Extraction Options
Extraction not supported
Versions supported
Version 4.0
Netscape Navigator
PostScript Options
No Transformation options
Extraction Options
Extraction not supported
Versions supported
Version 4.0
Quark
PostScript Options
No Transformation options
Extraction Options
Extraction not supported
Versions supported
Version 3.32
10
<PAGE>
Visio
PostScript Options
No Transformation options
Extraction Options
Extraction not supported
Versions supported
Version 5.0
Wang Image Viewer
PostScript Options
No Transformation options
Extraction Options
Extraction not supported
Versions supported
W95 Edition
WNT Edition
Customization Options
- ---------------------
The PDFPress SDK is for companies that want to integrate all of the
functionality of the transformation and publishing process into their own
applications using their native document repositories. For the PDFPress
SDK, interfaces into PDFPress Server and PDFPress Client will be
documented. The PDFPress SDK will also include all header files,
documentation, and libraries required to access the OLE Automation
interface to these objects. The SDK will also document the plug-in
interface that is used for transformation.
Localization Issues
- -------------------
Adobe will provide localization service for translating dialogs and
messages in the PDF Press client and server. The products will be
localized for French, German and Japanese. ESPS will be responsible for
any code changes in addition to the dialog and message resources.
PDFPress Standalone Client Software
- -----------------------------------
The Specifications for the Standalone PDF Press Client Software will be
mutually agreed upon by ESPS and Adobe prior to delivery under Section 5.1
of the Agreement.
11
<PAGE>
EXHIBIT B
Delivery Schedule
-----------------
PDFPress Client Software and PDFPress Server Software (including US Plug-Ins and
- --------------------------------------------------------------------------------
SDK)
- ----
Alpha Version - 12/31/97 (target)
Beta Version - 2/25/98 (target)
Release Candidate Version - 4/22/98
PDFPress Standalone Client Software
- -----------------------------------
To be determined by mutual agreement of ESPS and Adobe
12
<PAGE>
EXHIBIT C
Named Accounts
--------------
Documentum, Inc.
5761 Gibraltar Drive
Pleasanton, CA 94588-8547
FileNet
10900 N.E. 8/th/ Street
700 Plaza Center
Bellevue, WA 98004
PC DOCS, Inc.
25 Burlington Mall Road
Burlington, MA 01803
NovaSoft Systems, Inc.
10 Burlington Mall Road
Burlington, MA 01803
OpenText, Inc.
185 Columbia Street West
Waterloo, Ontario N2L 5Z5
13
<PAGE>
EXHIBIT D
Standard Adobe License Agreement
--------------------------------
14
<PAGE>
Exhibit 10.9
ELECTRONIC SUBMISSION PUBLISHING SYSTEM, INC.
SERIES A PREFERRED STOCK PURCHASE AGREEMENT
THIS SERIES A PREFERRED STOCK PURCHASE AGREEMENT (the "Agreement") is made
as of March 5, 1997, between ELECTRONIC SUBMISSION PUBLISHING SYSTEMS, INC., a
Delaware corporation (the "Company"), ADOBE VENTURES L.P., a California limited
partnership and H&Q ESPS INVESTORS L.P., a California limited partnership. Adobe
Ventures L.P. and H&Q ESPS Investors L.P. are sometimes referred to herein
individually as a "Purchaser" and collectively as the "Purchasers." The parties
hereby agree as follows:
1. Authorization and Sale of the Preferred Shares.
----------------------------------------------
1.1. Authorization; Amendment of the Certificate of Incorporation. The
------------------------------------------------------------
Company has authorized the issuance and sale pursuant to the terms and
conditions hereof of up to 4,000,000 shares of its Series A Preferred Stock, par
value $0.001 per share (the "Series A Shares"), having the rights, restrictions,
privileges and preferences as set forth in the Company's Certificate of
Incorporation. The Company shall adopt and file with the Secretary of State of
the State of Delaware on or before the Closing (as defined below) the
Certificate of Amendment of the Certificate of Incorporation attached hereto as
Exhibit A ("Certificate of Amendment").
- ---------
1.2. Sale and Issuance of the Series A Shares. Subject to the terms and
----------------------------------------
conditions hereof, at the Closing (as defined below) the Company will issue and
sell to each Purchaser and each Purchaser will purchase from the Company the
number of Series A Shares, at a purchase price of $1.00 per share, as specified
opposite such Purchaser's name on Schedule A to this Agreement.
----------
2. Closing Date; Delivery.
----------------------
2.1. Closing Date.
------------
(a) Purchase and Sale at the Closing. The closing comprising the
--------------------------------
purchase by the Purchasers and sale by the Company of Series A Shares shall be
held at the offices of Fox, Rothschild, O'Brien & Frankel, Eagleview Corporate
Center, 760 Constitution Drive, Exton, Pennsylvania on March 5, 1997, or at such
other time and place as the Company and the Purchaser may agree in writing. The
closing referred to in this Section 2.1(a) shall be hereinafter referred to as
the "Closing" and the date of the Closing is hereinafter referred to as the
"Closing Date".
2.2. Delivery. Subject to the terms of this Agreement, at the Closing the
--------
Company will deliver to the Purchaser the certificates representing the Series A
Shares to be purchased by the Purchaser from the Company, against payment of the
purchase price therefor by delivery of a check, payable to the order of the
Company, by wire transfer or by cancellation of indebtedness owed by the Company
to Purchaser, which indebtedness is set forth on Exhibit A.
---------
1
<PAGE>
3. Representations and Warranties of the Company. The Company hereby
---------------------------------------------
represents and warrants to each Purchaser that except as set forth on a Schedule
of Exceptions attached hereto as Exhibit B, which exceptions shall be deemed to
---------
be representations and warranties as if made hereunder:
3.1. Organization and Standing. The Company is a corporation duly
-------------------------
organized, validly existing and in good standing under the laws of the State of
Delaware and has all requisite corporate power and authority to carry on its
businesses as now conducted and as proposed to be conducted. The Company is
qualified or licensed to do business as a foreign corporation in all
jurisdictions where such qualification or licensing is required, except where
the failure to so qualify would not have a material adverse effect upon the
Company.
3.2. Corporate Power. The Company has now, or will have at the Closing
---------------
Date, all requisite corporate power necessary for the authorization, execution
and delivery of this Agreement and the Amendment to Rights Agreement in the form
attached hereto as Exhibit C (the "Rights Amendment"). This Agreement and the
---------
Rights Amendment are valid and binding obligations of the Company enforceable in
accordance with their terms, except as the same may be limited by bankruptcy,
insolvency, moratorium, and other laws of general application affecting the
enforcement of creditors' rights.
3.3. Subsidiaries. The Company does not control, directly or indirectly,
------------
any other corporation, association or business entity.
3.4. Capitalization. The authorized capital stock of the Company is
--------------
10,000,000 shares of Common Stock and 6,000,000 shares of Preferred Stock, of
which 6,000,000 shares have been designated Series A Preferred Stock. There are
issued and outstanding 365,400 shares of the Company's Common Stock and
2,000,000 shares of Preferred Stock. All such issued and outstanding shares have
been duly authorized and validly issued, are fully paid and nonassessable, and
were issued in compliance with all applicable state and federal laws concerning
the issuance of securities. Except for (a) the conversion privileges of the
Preferred Stock, (b) options to purchase 1,538,000 shares of Common Stock and
(c) the right of first refusal granted to certain stockholders of the Company
pursuant to that certain Registration Rights Agreement between the Company and
those stockholders dated July 5, 1994, as amended by the Rights Amendment (such
Registration Rights Agreement as amended by the Rights Agreement is herein
referred to as the "Rights Agreement"), there are no outstanding rights
(including conversion or preemptive rights), options, warrants, conversion
rights or agreements for the purchase or acquisition from the Company of any
shares of its capital stock. The Company is not a party or subject to any
agreement or understanding between any persons or entities, which affects or
relates to the voting or giving of written consents with respect to any
securities or by any director of the Company.
3.5. Authorization.
-------------
(a) Corporate Action. All corporate action on the part of the Company,
----------------
directors and stockholders necessary for the execution and delivery of this and
the Rights Amendment, the sale and issuance of the Series A Shares, the of the
Common Stock issuable upon conversion of the Series A Preferred Stock
performance of
2
<PAGE>
the Company's obligations hereunder and under the Rights Agreement has been
taken or will be taken prior to the Closing. The Company has duly served an
aggregate of 6,000,000 shares of Common Stock for issuance upon conversion of
the Series A Preferred Stock.
(b) Valid Issuance. The Series A Shares when issued in compliance with the
--------------
provisions of this Agreement, and the shares of Common Stock issued upon
conversion of the Series A Preferred Stock when issued in accordance with the
provisions of the Certificate of Incorporation, will be validly issued, fully
paid and nonassessable and will be free of any liens or encumbrances; provided,
however, that all such shares may be subject to restrictions on transfer under
state and/or federal securities laws as set forth herein, and as may be required
by future changes in such laws. The rights, preferences, privileges and
restrictions of the Series A Preferred Stock are as set forth in the Certificate
of Incorporation.
(c) No Preemptive Rights. Except as set forth in the Rights Agreement, no
--------------------
person has any right of first refusal or any preemptive rights in connection
with the issuance of the Series A Shares, the issuance of the Common Stock upon
conversion of the Series A Preferred Stock or any future issuances of securities
by the Company.
3.6. Patents, Trademarks, etc. The Company owns and possesses or is
------------------------
licensed under all patents, patent applications, licenses, trademarks, trade
names, brand names, trade secrets, inventions and copyrights employed in the
operation of its business as now conducted and as proposed to be conducted, with
no infringement of or conflict with the rights of others respecting any of the
same. The operation of the Company's business as now conducted or as proposed to
be conducted does not infringe any patent, copyright, trade secret or other
proprietary rights of any third parties. There are no outstanding options,
licenses, or agreements of any kind relating to the foregoing, nor is the
Company bound by or a party to any options, licenses or agreements of any kind
with respect to patents, patent applications, licenses, trademarks, trade names,
brand names, inventions, proprietary rights and copyrights of any other person
or entity. The Company is not obligated to make any payments by way of
royalties, fees or otherwise to any owner, licensor of, or other claimant to any
patent, trademark, trade name, copyright or other intangible asset, with respect
to the use thereof or in connection with the conduct of its business, or
otherwise. The Company has not received any communications alleging that it has
violated or, by conducting its business as proposed, would violate any of the
patents, trademarks, service marks, trade names, copyrights or trade secrets or
other proprietary rights of any other person or entity, nor is the Company aware
of any basis for the foregoing. There are no agreements, understandings,
instruments, contracts, judgments, orders, writs of decrees to which the Company
is a party or by which it is bound which involve indemnification by the Company
with respect to infringements of proprietary rights.
3.7. Compliance with Other Instruments, None Burdensome, etc. The Company
-------------------------------------------------------
is not in violation of any term of its Certificate of Incorporation or Bylaws,
nor is the Company in violation of or in default in any material respect under
the terms of any mortgage, indenture, contract, agreement, instrument, judgment
or decree, the violation of which would have a material adverse effect on the
Company as a whole, and to the best knowledge of the Company, is not in
violation of any order, statute, rule or regulation applicable to the Company,
the violation of which would have a material adverse effect on the Company. The
execution, delivery and performance of and compliance with this Agreement and
the Rights Amendment
3
<PAGE>
and the issuance and sale of the Series A Shares will not (a) result in any such
violation, or (b) be in conflict with or constitute a default under any such
term, or (c) result in the creation of any mortgage, pledge, lien, encumbrance
or charge upon any of the properties or assets of the Company pursuant to any
such term. To the best knowledge of the Company, there is no such term or any
such order, statute, rule or regulation which adversely affects, or in the
future may materially adversely affect, the business, prospects, condition,
affairs or operations of the Company or any of its properties or assets.
3.8. Proprietary Agreements; Employees. Each employee and consultant of the
---------------------------------
Company has executed an agreement regarding confidentiality and proprietary
information, the form of which has been provided to special counsel to the
Purchaser. None of its employees or consultants is in violation thereof and the
Company will use best efforts to prevent such violations. The employees and
consultants of the Company are not obligated under any contract (including
licenses, covenants or commitments of any nature) or other agreement, or subject
to any judgment, decree or order of any court or administrative agency, that
would interfere with the use of his or her best efforts to promote the interests
of the Company or that would conflict with the Company's business as conducted
or as proposed to be conducted or that would prevent any such employee or
consultant from assigning inventions to the Company. Neither the execution nor
delivery of this Agreement or the Rights Amendment, nor the carrying on of the
Company's business as proposed, will conflict with or result in a breach of the
terms, conditions or provisions of, or constitute a default under, any contract,
covenant or instrument under which any of such employees or consultants is now
obligated. The Company does not believe that it is or will be necessary for the
Company to utilize any inventions of any of its employees made prior to their
employment by the Company.
3.9. Litigation, etc. There is no action, proceeding or investigation
---------------
pending against the Company or its officers, directors or stockholders, or to
the best of the Company's knowledge, against employees or consultants of the
Company (or, to the best of the Company's knowledge, any basis therefor or
threat thereof): (1) which might result, either individually or in the
aggregate, in (a) any material adverse change in the business, prospects,
conditions, affairs or operations of the Company or in any of its properties or
assets, or (b) any material impairment of the right or ability of the Company to
carry on its business as now conducted or as proposed to be conducted, or (c)
any material liability on the part of the Company; or (2) which questions the
validity of this Agreement, the Rights Amendment or the Rights Agreement or any
action taken or to be taken in connection herewith, including in each case,
without limitation, actions pending or threatened involving the prior employment
of any of the Company's employees or consultants, the use in connection with the
Company's business of any information or techniques allegedly proprietary to any
of the former employers of such employees or consultants or their obligations
under any agreements with prior employers. The Company is not a party to or
subject to the provisions of any order, writ, injunction, judgment or decree of
any court or government agency or instrumentality. There is no action, suit,
proceeding or investigation by the Company currently pending or which the
Company currently intends to initiate.
3.10. Governmental Consent, etc. No consent, approval or authorization of
-------------------------
or designation, declaration or filing with any governmental authority on the
part of the Company is required in connection with: (a) the valid execution and
delivery of this Agreement or the Rights Amendment; or (b) the offer, sale or
issuance of the Series A Shares, or the issuance of the
4
<PAGE>
shares of Common Stock issuable upon conversion of the Series A Preferred Stock
or (c) the obtaining of the consents, permits and waivers specified in
subsection 5.1(b) hereof.
3.11. Offering. In reliance on the representations and warranties of the
--------
Purchaser in Section 4 hereof, the offer, sale and issuance of the Series A
Shares in conformity with the terms of this Agreement will not result in a
violation of the requirements of Section 5 of the Securities Act of 1933, as
amended (the "Securities Act") or the qualification or registration requirements
of applicable blue sky laws.
3.12. Taxes. The Company has filed all tax returns that are required to
-----
have been filed with appropriate federal, state, county and local governmental
agencies or instrumentalities, except where the failure to do so would not have
a material adverse effect upon the Company, taken as a whole. The Company has
not elected pursuant to the Internal Revenue Code of 1986, as amended ("Code"),
to be treated as a Subchapter S corporation or a collapsible corporation
pursuant to Section 341(f) or Section 1362(a) of the Code, nor has it made any
other elections pursuant to the Code (other than elections which relate solely
to methods of accounting, depreciation or amortization) which would have a
material effect on the Company, its financial condition, its business as
presently conducted or proposed to be conducted or any of its properties or
material assets. The Company has paid or established reserves for all income,
franchise and other taxes, assessments, governmental charges, penalties,
interest and fines due and payable by them on or before the Closing.
3.13. Title. The Company owns its property and assets free and clear of all
-----
liens, mortgages, loans or encumbrances except liens for current taxes, and such
encumbrances and liens which arise in the ordinary course of business and do not
materially impair the Company's ownership or use of such property or assets.
With respect to the property and assets leased by the Company, the Company is in
compliance with such leases and, to the best of the Company's knowledge, holds
valid leasehold interests free and clear of any liens, claims or encumbrances.
3.14. Material Contracts and Commitments. All of the contracts, mortgages,
----------------------------------
indentures, agreements, instruments and transactions to which the Company is a
party or by which it is bound (including purchase orders to the Company or
placed by the Company) which involve obligations of, or payments to, the Company
in excess of Ten Thousand Dollars ($10,000) and all agreements between the
Company and its officers, directors, consultants and employees are either (i)
attached as exhibits to this Agreement, or (ii) set forth on Exhibit B (the
---------
"Contracts"), copies of which have been delivered to special counsel to the
Purchaser. All of the Contracts are valid, binding and in full force and effect
in all material respects and enforceable by the Company in accordance with their
respective terms in all material respects, subject to the effect of applicable
bankruptcy, insolvency, reorganization, moratorium or other laws of general
application relating to or affecting enforcement of creditors' rights and rules
or laws concerning equitable remedies. The Company is not in material default
under any of such Contracts.
3.15. Financial Statements. The Company maintains and will continue to
--------------------
maintain a standard system of accounting established and administered in
accordance with generally accepted accounting principles. The Company has
delivered to Purchaser its unaudited balance sheet as of March 31, 1996 and its
statement of operations and statement of cash flows for the year ended March 31,
1996 and its unaudited balance sheet as of January 31, 1997 and its
5
<PAGE>
statement of operations and statement of cash flows for the ten month period
ended January 31, 1997 (the above financial statements are hereinafter
collectively referred to as the "Financial Statements"). The Financial
Statements fairly set out and describe the financial condition and operating
results of the Company as of the dates, and during the periods, indicated
therein. Except as disclosed in the Financial Statements, the Company has no
liabilities, contingent or otherwise, other than (i) liabilities incurred in the
ordinary course of business, and (ii) obligations under contracts and
commitments incurred in the ordinary course of business, which, in both cases,
individually or in the aggregate, are not material to the financial condition or
operating results of the Company.
3.16. Absence of Changes. Since January 31, 1997 (a) the Company has not
------------------
entered into any transaction which was not in the ordinary course of business,
(b) there has been no material adverse change in the condition (financial or
otherwise) of the business, property, assets or liabilities of the Company other
than changes in the ordinary course of its business, none of which, individually
or in the aggregate, has been materially adverse, (c) there has been no damage
to, destruction of or loss of physical property (whether or not covered by
insurance) materially adversely affecting the assets, prospects, financial
condition, operating results, business or operations of the Company, (d) the
Company has not declared or paid any dividend or made any distribution on its
stock, or redeemed, purchased or otherwise acquired any of its stock, (e) the
Company has not materially changed any compensation arrangement or agreement
with any of its key employees or executive officers, or materially changed the
rate of pay of its employees as a group, (f) the Company has not changed or
amended any material contract by which the Company or any of its assets are
bound or subject, except as contemplated by this Agreement, (g) there has been
no resignation or termination of employment of any key officer or employee of
the Company and the Company does not know of any impending resignation or
termination of employment of any such officer or employee that if consummated
would have a material adverse effect on the business of the Company, (h) there
has been no change, except in the ordinary course of business, in the material
contingent obligations of the Company (nor in any contingent obligation of the
Company regarding any director, stockholder or key employee or officer of the
Company) by way of guaranty, endorsement, indemnity, warranty or otherwise, (i)
there have been no loans made by the Company to any of its employees, officers
or directors other than travel advances and other advances made in the ordinary
course of business, (j) there has been no waiver by the Company of a valuable
right or of a material debt owing to it, and (k) there has not been any
satisfaction or discharge of any lien, claims or encumbrance or any payment of
any obligation by the Company, except in the ordinary course of business and
which is not material to the assets, properties, financial condition, operating
results or business of the Company.
3.17. Outstanding Indebtedness. The Company has no indebtedness for
------------------------
borrowed money which it has directly or indirectly created, incurred, assumed or
guaranteed, or with respect to which it has otherwise become liable, directly or
indirectly, except as reflected on the Financial Statements.
3.18. Registration Rights. Other than as granted pursuant to the Rights
-------------------
Agreement, the Company has not granted or agreed to grant any rights to register
(as that term is defined in the Rights Agreement), including piggyback
registration rights, to any person or entity.
6
<PAGE>
3.19. Certain Transactions. The Company is not indebted, directly or
--------------------
indirectly, to any of its employees, officers, directors or stockholders or to
their spouses or children, in any amount whatsoever; and none of said employees,
officers, directors or, to the best of the Company's knowledge, stockholders, or
any member of their immediate families, are indebted to the Company or have any
direct or indirect ownership interest in any firm or corporation with which the
Company is affiliated or with which the Company has a business relationship. To
the best of the Company's knowledge, no such employee, officer, director or
stockholder, or any member of their immediate families, is, directly or
indirectly, interested in any material contract with the Company. The Company is
not guarantor or indemnitor of any indebtedness of any other person, firm or
corporation.
3.20. Corporate Documents; Minute Books. Except for amendments necessary to
---------------------------------
satisfy representations and warranties or conditions contained herein (the form
of which amendments has been approved by the Purchaser), the Certificate of
Incorporation and Bylaws of the Company are in the form previously provided to
special counsel to the Purchaser. The minute books of the Company previously
provided to special counsel to the Purchaser contain a complete summary of all
meetings of directors and stockholders since the time of incorporation of the
Company.
3.21. Employee Benefit Plans. The Company does not have any "employee
----------------------
benefit plan" as defined in the Employee Retirement Income Security Act of 1974,
as amended.
3.22. Environmental and Safety Laws. To the best of its knowledge, the
-----------------------------
Company is not in violation of any applicable statute, law, or regulation
relating to the environment or occupational health and safety, and to the best
of its knowledge, no material expenditures are or will be required in order to
comply with any such existing statute, law, or regulation.
3.23. Insurance. The Company has in full force and effect fire and casualty
---------
insurance policies, with extended coverage, and insurance against other hazards,
risks and liabilities to persons and property to the extent and in the manner
customary for companies in similar businesses similarly situated.
3.24. Labor Agreements and Actions. The Company is not aware that any
----------------------------
officer or key employee or consultant intends to terminate his or her employment
with the Company, nor does the Company have a present intention to terminate the
employment of any of the foregoing. Subject to general principles related to
wrongful termination of employees, the employment of each officer and employee
of the Company is terminable at the will of the Company.
3.25. Section 83(b) Elections. To the best of the Company's knowledge, all
-----------------------
elections and notices required by Section 83(b) of the Internal Revenue Code and
any analogous provisions of applicable state tax laws have been timely filed by
all individuals who have purchased shares of the Company's Common Stock.
3.26. Disclosure. No representation or warranty by the Company in this
----------
Agreement, or in any document or certificate furnished or to be furnished to the
Purchaser pursuant hereto or in connection with the transactions contemplated
hereby, when taken together, contains or will contain any untrue statement of a
material fact or omits or will omit to state a material fact
7
<PAGE>
necessary to make the statements made herein and therein, in the light of the
circumstances under which they were made, not misleading. The Company has fully
provided the Purchaser with all the information which such Purchaser has
requested for deciding whether to purchase the Series A Preferred Stock.
4. Representations and Warranties of Purchasers and Restrictions on Transfer
-------------------------------------------------------------------------
Imposed by the Securities Act.
- -----------------------------
4.1. Representations and Warranties by the Purchasers. Each Purchaser
------------------------------------------------
represents and warrants to the Company as follows:
(a) Investment Intent. This Agreement is made with the Purchaser in
-----------------
reliance upon such Purchaser's representation to the Company, evidenced by
Purchaser's execution of this Agreement, that Purchaser is acquiring the Series
A Shares and the Common Stock issuable upon conversion of Series A Preferred
Stock (collectively the "Securities") for investment for such Purchaser's own
account, for investment and not with a view to, or for resale in connection
with, any distribution or public offering thereof within the meaning of the
Securities Act. Purchaser has the full right, power and authority to enter into
and perform this Agreement and the Rights Amendment, and this Agreement, the
Rights Amendment and the Rights Agreement constitute valid and binding
obligations upon it.
(b) Series A Shares Not Registered. Purchaser understands and
------------------------------
acknowledges that the offering of the Series A Shares pursuant to this Agreement
will not be registered under the Securities Act or qualified under applicable
blue sky laws on the grounds that the offering and sale of securities
contemplated by this Agreement are exempt from registration under the Securities
Act and exempt from qualifications available under applicable blue sky laws, and
that the Company's reliance upon such exemptions is predicated upon such
Purchaser's representations set forth in this Agreement. The Purchaser
acknowledges and understands that the Securities must be held indefinitely
unless the Securities are subsequently registered under the Securities Act and
qualified under applicable blue sky laws or an exemption from such registration
and such qualification is available.
(c) No Transfer. Purchaser covenants that in no event will such
-----------
Purchaser dispose of any of the Securities (other than in conjunction with an
effective registration statement for the Securities under the Securities Act or
in compliance with Rule 144 promulgated under the Securities Act) unless and
until (i) such Purchaser shall have notified the Company of the proposed
disposition and shall have furnished the Company with a statement of the
circumstances surrounding the proposed disposition, and (ii) if reasonably
requested by the Company, such Purchaser shall have furnished the Company with
an opinion of counsel to the effect that (x) such disposition will not require
registration under the Securities Act and (y) appropriate action necessary for
compliance with the Securities Act and other applicable state, local or foreign
law has been taken. It is agreed that the Company will not require opinions of
counsel for transactions made pursuant to Rule 144.
(d) Permitted Transfers. Notwithstanding the provisions of subsection
-------------------
(c) above, no registration statement or opinion of counsel shall be necessary
for a transfer by a Purchaser which is a partnership to a partner of such
partnership or a former partner of such
8
<PAGE>
partnership who leaves such partnership after the date hereof, or to the estate
of any such partner or former partner or the transfer by gift, will or intestate
succession of any partner to his spouse or lineal descendants or ancestors, if
the transferee agrees in writing to be bound by the terms of this Agreement to
the same extent as if he were an original Purchaser hereunder.
(e) Knowledge and Experience. Purchaser (i) has such knowledge and
------------------------
experience in financial and business matters as to be capable of evaluating the
merits and risks of such Purchaser's prospective investment in the Securities;
(ii) has the ability to bear the economic risks of such Purchaser's prospective
investment; (iii) has been furnished with and has had access to such information
as such Purchaser has considered necessary to make a determination as to the
purchase of the Securities together with such additional information as is
necessary to verify the accuracy of the information supplied; (iv) has had all
questions which have been asked by such Purchaser satisfactorily answered by the
Company; and (v) has not been offered the Securities by any form of
advertisement, article, notice or other communication published in any
newspaper, magazine, or similar media or broadcast over television or radio, or
any seminar or meeting whose attendees have been invited by any such media.
(f) Not Organized to Purchase. Purchaser has not been organized for
-------------------------
the purpose of purchasing the Securities.
4.2. Legends. Each certificate representing the Securities may be endorsed
-------
with the following legends:
(a) Federal Legend. THE SECURITIES REPRESENTED BY THIS CERTIFICATE
--------------
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT") AND ARE "RESTRICTED SECURITIES" AS DEFINED IN RULE 144 PROMULGATED UNDER
THE ACT. THE SECURITIES MAY NOT BE SOLD OR OFFERED FOR SALE OR OTHERWISE
DISTRIBUTED EXCEPT (i) IN CONJUNCTION WITH AN EFFECTIVE REGISTRATION STATEMENT
FOR THE SHARES UNDER THE ACT OR (ii) IN COMPLIANCE WITH RULE 144, OR (iii)
PURSUANT TO AN OPINION OF COUNSEL, SATISFACTORY TO THE COMPANY, THAT SUCH
REGISTRATION OR COMPLIANCE IS NOT REQUIRED AS TO SAID SALE, OFFER OR
DISTRIBUTION.
(b) Other Legends. Any other legends required by applicable state blue
-------------
sky laws.
The Company need not register a transfer of legended Securities, and may also
instruct its transfer agent not to register the transfer of the Securities,
unless the conditions specified in each of the foregoing legends are satisfied.
4.3. Removal of Legend and Transfer Restrictions. Any legend endorsed on a
-------------------------------------------
certificate pursuant to subsection 4.2(a) and the stop transfer instructions
with respect to such legended Securities shall be removed, and the Company shall
issue a certificate without such legend to the holder of such Securities if such
Securities are registered under the Securities Act and a prospectus meeting the
requirements of Section 10 of the Securities Act is available or if such holder
satisfies the requirements of Rule 144(k) and, where reasonably deemed necessary
9
<PAGE>
by the Company, provides the Company with an opinion of counsel for such holder
of the Securities to the effect that (i) such holder, meets the requirements of
Rule 144(k) or (ii) a public sale, transfer or assignment of such Securities may
be made without registration.
5. Conditions to Closing.
---------------------
5.1. Conditions to Purchasers' Obligations. The obligation of the Purchaser
-------------------------------------
to purchase the Series A Shares at the Closing is subject to the fulfillment to
its satisfaction, on or prior to the Closing Date, of the following conditions,
any of which may be waived by Purchaser:
(a) Representations and Warranties Correct; Performance of
------------------------------------------------------
Obligations. The representations and warranties made by the Company in Section 3
- -----------
hereof shall be true and correct when made, and shall be true and correct in all
material respects on the Closing Date with the same force and effect as if they
had been made on and as of said date. The Company's business and assets shall
not have been adversely affected in any material way prior to the Closing Date.
The Company shall have performed in all material respects all obligations and
conditions herein required to be performed or observed by it on or prior to the
Closing Date.
(b) Consents and Waivers. The Company shall have obtained in a timely
--------------------
fashion any and all consents, permits and waivers necessary or appropriate for
consummation of the transactions contemplated by this Agreement and the Rights
Agreement, as amended by the Rights Amendment.
(c) Filing of the Certificate of Amendment of the Certificate of
------------------------------------------------------------
Incorporation. The Certificate of Amendment shall have been filed with the
- -------------
Division of Corporations for the State of Delaware.
(d) Compliance Certificate. The Company shall have delivered a
----------------------
Certificate, executed by the President of the Company, dated the Closing Date,
certifying to the fulfillment of the conditions specified in subsections (a),
(b) and (c) of this section 5.1.
(e) Secretary Certificate. The Company shall have delivered a
---------------------
Certificate, executed by the Secretary of the Company, dated the Closing Date,
certifying the Board of Directors and stockholders resolutions approving this
Agreement and the issuance of the Series A Shares and certifying the current
versions of the Certificate of Incorporation and Bylaws of the Company.
(f) Opinion of Counsel. The Purchaser shall have received an opinion
------------------
from Fox, Rothschild, O'Brien & Frankel, the Company's counsel, satisfactory in
form to special counsel for the Purchaser.
5.2. Conditions to Obligations of the Company. The Company's obligation to
----------------------------------------
sell and issue the Series A Shares at the Closing is subject to the fulfillment
to the satisfaction of the Company on or prior to the respective Closing Date of
the following conditions, any of which may be waived by the Company:
10
<PAGE>
(a) Representations and Warranties Correct. The representations and
--------------------------------------
warranties made by the Purchaser in Section 4 hereof shall be true and correct
when made, and shall be true and correct on the Closing Date with the same force
and effect as if they had been made on and as of said date.
(b) Conditions Fulfilled. The conditions set forth in subsections (b)
--------------------
and (c) of Section 5.1 shall have been fulfilled.
6. Affirmative Covenants of the Company. The Company hereby covenants and
------------------------------------
agrees as follows:
6.1. Financial Information. Until the first to occur of (i) the date on
---------------------
which the Company is required to file a report pursuant to Section 13(a) of the
Securities Exchange Act of 1934 (the "Exchange Act"), by reason of the Company
having registered any of its securities pursuant to Section 12(g) of the
Exchange Act or (ii) quotations for the Common Stock of the Company are reported
by the automated quotations system operated by the National Association of
Securities Dealers, Inc. or by an equivalent quotations system or (iii) shares
of the Common Stock of the Company are listed on a national securities exchange
registered under Section 6 of the Exchange Act, the Company will furnish to the
Purchaser:
(a) so long as such Purchaser or its affiliates own any of the Series
A Shares or Common Stock issued upon conversion of the Series A Shares, as soon
as practicable after the end of each fiscal year, and in any event within 90
days thereafter, consolidated balance sheets of the Company and its
subsidiaries, if any, as at the end of such fiscal year, and consolidated
statements of operations and consolidated statements of cash flow of the Company
and its subsidiaries, if any, for such year, prepared in accordance with
generally accepted accounting principles, all in reasonable detail and certified
by independent public accountants of recognized national standing selected by
the Company; and
(b) so long as the Purchaser continues to hold at least 100,000 shares
of the Company's Series A Preferred Stock (as adjusted for stock splits,
combinations, dividends, distributions or recapitalizations), as soon as
practicable after the end of each month and in any event within 15 days
thereafter, consolidated balance sheets of the Company and its subsidiaries, if
any, as of the end of such month and consolidated statements of income and cash
flow statements, for such month and for the current fiscal year to date,
prepared in accordance with generally accepted accounting principles (except for
required footnotes), all in reasonable detail and signed, subject to changes
resulting from year-end audit adjustments, by the principal financial officer or
chief executive officer of the Company; and
(c) at such time as the Purchaser or its affiliates are no longer
entitled to receive information under Section 6.1(b) above and so long as such
Purchaser or its affiliates own any of the Series A Shares or Common Stock
issued upon conversion of the Series A Shares, as soon as practicable after the
end of each fiscal quarter, and in any event within 45 days thereafter,
consolidated balance sheets of the Company and its subsidiaries, if any, as at
the end of such fiscal quarter, and consolidated statements of operations and
consolidated statements of cash flow of the Company and its subsidiaries, if
any, for such quarter, prepared in accordance with generally accepted accounting
principles (except for required footnotes), all in reasonable
11
<PAGE>
detail and signed, subject to changes resulting from year-end audit adjustments,
by the principal financial officer or chief executive officer of the Company;
and
(d) so long as the Purchaser continues to hold at least 100,000 shares
of the Company's Series A Preferred Stock (as adjusted for stock splits,
combinations, dividends, distributions or recapitalizations), as soon as
practicable and in any event no later than sixty (60) days before the end of the
fiscal year, an annual budget (consisting of projected income statements and
projected cash flow statements reported on a monthly basis) for the subsequent
fiscal year.
6.2. Conflicts of Interests. The Company shall use its best efforts to
----------------------
ensure that the Company's employees and consultants, during the term of their
employment with the Company, do not engage in activities which would result in a
conflict of interest with the Company. The Company's obligations hereunder
include, but are not limited to, requiring that the Company's employees devote
their primary productive time, ability and attention to the business of the
Company (provided, however, the Company's employees may engage in other
professional activity if such activity does not materially interfere with their
obligations to the Company), requiring that the Company's employees and
consultants enter into agreements regarding proprietary information and
confidentiality.
6.3. Proprietary Agreements. The Company will use its best efforts to
----------------------
prevent any employee or consultant from violating the confidentiality and
proprietary information agreement entered into between the Company and each of
its employees.
6.4. Future Stock Issuances. After July 5, 1994, the Company has not and in
----------------------
the future will not issue more than 3,634,600 shares of Common Stock (or grant
any options, warrants or other rights to purchase the same) to employees,
officers, directors and consultants without unanimous vote of the Company's
Board of Directors. The Company will not issue any shares of Common Stock (or
grant any options, warrants or other rights to purchase the same) to any
employee, officer, director or consultant except pursuant to agreements which
provide for vesting over a period of at least forty-eighty (48) months (with the
initial vesting date to occur after twelve (12) months) and a right of first
refusal in favor of the Company in the event of any proposed transfer unless
such issuance or grant is approved by unanimous vote of the Company's Board of
Directors. The Company, Adobe Ventures L.P. and H&Q ESPS Investors L.P. agree to
terminate Section 6.4 of that certain Series A Preferred Stock Purchase
Agreement dated July 5, 1994.
6.5. Inspection. The Company shall permit the Purchaser, at the Purchaser's
----------
expense, to visit and inspect the Company's properties, to examine its books of
account and records and to discuss the Company's affairs, finances and accounts
with its officers, all at such reasonable times as may be requested by the
Purchaser; provided, however, that the Company shall not be obligated pursuant
to this Section 6.5 to provide access to any information which it reasonably
considers to be a trade secret or similar confidential information.
12
<PAGE>
7. Miscellaneous.
-------------
7.1. Governing Law. This Agreement shall be governed in all respects by the
-------------
laws of the State of Delaware as such laws are applied to agreements between
Delaware residents entered into and to be performed entirely within Delaware.
7.2. Survival. The representations, warranties, covenants and agreements
--------
made herein shall survive the Closing of the transactions contemplated hereby,
notwithstanding any investigation made by the Purchaser. All statements as to
factual matters contained in any certificate or other instrument delivered by or
on behalf of the Company pursuant hereto or in connection with the transactions
contemplated hereby shall be deemed to be representations and warranties by the
Company hereunder as of the date of such certificate or instrument.
7.3. Successors and Assigns. Except as otherwise expressly provided herein,
----------------------
the provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto.
7.4. Entire Agreement. This Agreement and the other documents delivered
----------------
pursuant hereto constitute the full and entire understanding and agreement
between the parties with regard to the subjects hereof and thereof and they
supersede, merge and render void every other prior written and/or oral
understanding or agreement among or between the parties hereto.
7.5. Notices, etc. All notices and other communications required or
------------
permitted hereunder shall be in writing and shall be delivered personally,
mailed by first class mail, postage prepaid, or delivered by courier or
overnight delivery, addressed (a) if to a Purchaser, at such Purchaser's address
set forth in the Schedule of Purchasers, or at such other address as such
Purchaser shall have furnished to the Company in writing or (b) if to the
Company, at 1300 Virginia Drive, Suite 215, Fort Washington, PA 19034, or at
such other address as the Company shall have furnished to the Purchaser in
writing. Notices that are mailed shall be deemed received five (5) days after
deposit in the United States mail.
7.6. Severability. In case any provision of this Agreement shall be found
------------
by a court of law to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions of this Agreement shall
not in any way be affected or impaired thereby.
7.7. Finder's Fees and Other Fees.
----------------------------
(a) The Company (i) represents and warrants that it has retained no
finder or broker in connection with the transactions contemplated by this
Agreement and, (ii) hereby agrees to indemnify and to hold Purchasers harmless
from and against any liability for commission or compensation in the nature of a
finder's fee to any broker or other person or firm (and the costs and expenses
of defending against such liability or asserted liability) for which the
Company, or any of its employees or representatives, is responsible.
(b) Each Purchaser (i) represents and warrants that it has retained no
finder or broker in connection with the transactions contemplated by this
Agreement and (ii) hereby agrees to indemnify and to hold the Company harmless
from and against any liability for any
13
<PAGE>
commission or compensation in the nature of a finder's fee to any broker or
other person or firm (and the costs and expenses of defending against such
liability or asserted liability) for which Purchaser, or any of its employees or
representatives, are responsible.
7.8. Expenses. The Company and the Purchasers shall each bear their own
--------
expenses and legal fees in connection with the consummation of this transaction;
provided, however, that the Company will pay the reasonable fees, up to $10,000,
of special counsel for the Purchasers, together with disbursements and expenses
incurred by special counsel.
7.9. Titles and Subtitles. The titles of the sections and subsections of
--------------------
this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
7.10. Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
7.11. Delays or Omissions. No delay or omission to exercise any right,
-------------------
power or remedy accruing to the Company or to any holder of any securities
issued or to be issued hereunder shall impair any such right, power or remedy of
the Company or such holder, nor shall it be construed to be a waiver of any
breach or default under this Agreement, or an acquiescence therein, or of or in
any similar breach or default thereafter occurring; nor shall any delay or
omission to exercise any right, power or remedy or any waiver of any single
breach or default be deemed a waiver of any other right, power or remedy or
breach or default theretofore or thereafter occurring. All remedies, either
under this Agreement, or by law otherwise afforded to the Company or any holder,
shall be cumulative and not alternative.
14
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
ELECTRONIC SUBMISSION
PUBLISHING SYSTEMS, INC.
By: /s/ Terrence Brennan
----------------------------
Terrence Brennan,
President
PURCHASERS:
ADOBE VENTURES L.P.
By: it general partner,
H&Q Adobe Ventures Management L.P.,
By: its general partner,
H&Q Adobe Ventures Management Corp.,
By: /s/ Jackie Berterretche
---------------------------------
Title: Attorney-in-Fact
------------------------------
H&Q ESPS INVESTORS L.P.
By: /s/ Jackie Berterretche
---------------------------------
Title: Attorney-in-Fact
------------------------------
15
<PAGE>
LIST OF SCHEDULES
Schedule A - Schedule of Purchasers
LIST OF EXHIBITS
Exhibit A - Certificate of Amendment
Exhibit B - Schedule of Exceptions
Exhibit C - Rights Amendment
<PAGE>
SCHEDULE A
----------
Schedule of Purchasers
<TABLE>
<CAPTION>
Purchaser Number of Series A Shares
- --------- -------------------------
<S> <C>
Adobe Ventures L.P. 2,500,000*
H&Q ESPS Investors L.P. 1,500,000
---------
TOTAL 4,000,000
</TABLE>
Note: All correspondence with and notices to the above Purchasers should be
addressed to: H&Q Ventures, One Bush Street, San Francisco, CA 94104 Attn:
Standish O'Grady
* Partial payment for these shares to be in the form of cancellation of
indebtedness in the amount of $1,541,936.72, representing $1,500,000 in
principal repayment and $41,936.72 in interest payments.
<PAGE>
EXHIBIT A
---------
CERTIFICATE OF AMENDMENT
<PAGE>
CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
ELECTRONIC SUBMISSION PUBLISHING SYSTEM, INC.
Pursuant to Section 242 of the General Corporation Law
of the State of Delaware
The undersigned, Terrence Brennan, President of Electronic Submission
Publishing System, Inc., a corporation organized and existing under the General
Corporation Law of the State of Delaware (the "Corporation"), in accordance with
the provisions of Section 242 thereof, certifies as follows:
1. That the amendment to the Corporation's Amended and Restated
Certificate of Incorporation set forth below has been approved by the
Corporation's Board of Directors and stockholders and was duly adopted in
accordance with the provisions of Section 242 of the General Corporation Law of
the State of Delaware.
2. That the first full paragraph of Article IV of the Corporation's
Certificate of Incorporation which reads as follows:
"The Corporation is authorized to issue two classes of shares to be
designated respectively "Series A Preferred Stock" and "Common Stock."
The total number of shares of Series A Preferred Stock authorized is
2,000,000, having a par value of $0.001 per share. The total number
of shares of Common Stock authorized is 4,000,000, having a par value
of $0.001 per share."
is hereby amended to read in full as follows:
"The Corporation is authorized to issue two classes of shares to be
designated respectively "Series A Preferred Stock" and "Common Stock."
The total number of shares of Series A Preferred Stock authorized is
6,000,000, having a par value of $0.001 per share. The total number
of shares of Common Stock authorized is 10,000,000, having a par value
of $0.001 per share."
IN WITNESS WHEREOF, this Certificate of Amendment has been executed on
behalf of the Corporation by its President on this ____________ day of February
1997.
<PAGE>
ELECTRONIC SUBMISSION PUBLISHING
SYSTEM, INC.
By:
---------------------------------
Terrence Brennan,
President
<PAGE>
EXHIBIT B
---------
SCHEDULE OF EXCEPTIONS
----------------------
Pursuant to Section 3 of the Agreement concerning purchase of Series A Preferred
Stock dated February, 26, 1997 (the "Agreement") between Electronic submission
Publishing Systems, Inc. (the "Company"), Adobe Ventures L.P. and H&Q ESPS
Investors L.P., the Company hereby delivers this Schedule of Exceptions (the
"Schedule"). The section numbers in the Schedule correspond to the section
numbers in the Agreement. Any information disclosed under any section in the
Schedule is deemed to be disclosed and incorporated in any other section of the
Schedule where such disclosure would be appropriate. Capitalized terms used in
the Schedule, unless otherwise specified, have the same meanings given them in
the Agreement.
<TABLE>
<S> <C> <C> <C>
Section 3.1 Organization in Good Standing See exhibit I
3.2 Corporate Power No exceptions
3.3 Subsidiaries No exceptions
3.4 Capitalization See exhibit II
3.5 (a) Authorization No exceptions
3.5 (b) Valid Issuance No exceptions
3.5 (c) No Preemptive Right No exceptions
3.6 Patents, Trademarks See exhibit III; VAR
agreements for exceptions, no
other exceptions
3.7 Compliance with Other Instruments, None
Burdensome, etc. No exceptions
3.8 Proprietary Agreements Employees See exhibit IV for exceptions
3.9 Litigation, etc. See exhibit V
3.10 Governmental Consent, etc. No exceptions
3.11 Offering No exceptions
3.12 Taxes No exceptions
3.13 Title All ESPS assets have been
pledged as security for bridge
loans from Adobe Ventures L.P.
Also, all equipment under
capital leases ($8,171, at
1/31/97, see exhibit VI) are
pledged as security. (No
other exceptions)
3.14 Material Contracts & Commitments See Exhibit VI
3.15 Financial Statements See Exhibits VII and VIII
3.16 Absence of Changes No exceptions
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C>
3.17 Outstanding Indebtness No exceptions
3.18 Registration Rights No exceptions
3.19 Certain Transactions ESPS is indebted to the
stockholder, Adobe Ventures,
L.P. for bridge loans
amounting to $1.5 million -
see exhibit A (No other
exceptions)
3.20 Corporate Documents:
Minute books No exceptions
3.21 Employee Benefit Plan ESPS 401(k) profit sharing
plan employer's tax I.D.
23-2762324
3.22 Environmental & Safety Laws No exceptions
3.23 Insurance No exceptions
3.24 Labor Agreements & Actions No exceptions
3.25 Section 83(b) elections No exceptions
3.26 Disclosure No exceptions
</TABLE>
<PAGE>
Exhibit I
Exception to Section 3.1
Organization in Good Standing
ESPS has a small office (2 employees) in Crawley, U.K. We are doing business as
a non-resident company through a branch of ESPS which does not require
registration and is not subject to taxation.
<PAGE>
Exhibit II
Exception to Section 3.4 Capitalization
Ronald M. Swartz, as a part of the ESPS/Swartz settlement, has granted to the
CEO of ESPS his proxy to vote his common stock in matters solely related to the
election of directors.
The proxy will terminate upon the earliest to occur of (i) the closing of ESPS's
first public offering registered under the Securities Act of 1933, as amended,
or (ii) upon stockholder approval of any merger or consolidation of ESPS any
other corporation in which more than 50% of the voting control of ESPS is
transferred to a party or parties not affiliated with ESPS or any stockholder of
ESPS, provided that, if such merger or consolidation is not consummated, the
proxy shall be deemed restored and reinstated to full force and effect.
<PAGE>
Exhibit III
Exceptions to Section 3.6 Patents and Trademarks
ESPS has entered into the following Value Added Reseller License Agreements
and/or Distributor Agreements (VAR's) for embedded technology within CoreDossier
in the normal course of business:
<TABLE>
<CAPTION>
Date of
Company Agreement Term Financial Obligation
- ------- --------- ---- --------------------
<S> <C> <C> <C>
Versant 12/31/96 3 years 2.5% on future sales which
includes Versant Technology
and $41,900.00 royalty
payment on past sales plus
$39,500.00 for inventory of
licenses.
Ambia Corporation 1/20/97 1 year $20.00 per seat which uses
Ambia Technology
Nobelnet, Inc. 12/20/96 unlimited $10,000.00 RPC NT
Distribution License
$10,000.00 RPC Windows
Distribution License
Tools & Techniques, Inc. In Process 1 year $8,750.00 per license for
every D2 sale
</TABLE>
<PAGE>
Exhibit IV
Exceptions to Section 3.8 Proprietary Agreement Employees
<TABLE>
<CAPTION>
INVENTIONS
----------
NAME NON COMPETE PROPRIETARY
---- ----------- -----------
RIGHTS AGMT.
-----------
- -------------------------------------------------------------------------------------------------
<S> <C> <C>
Joanne Applegate
- -------------------------------------------------------------------------------------------------
Ben Berck
- -------------------------------------------------------------------------------------------------
Prasad Bhalerao
- -------------------------------------------------------------------------------------------------
Stephen Boccardo
- -------------------------------------------------------------------------------------------------
Ashis Bose
- -------------------------------------------------------------------------------------------------
Farouk Bouaziz
- -------------------------------------------------------------------------------------------------
Terry Brennan
- -------------------------------------------------------------------------------------------------
Gery Cardenas
- -------------------------------------------------------------------------------------------------
Stephanie Carmichael
- -------------------------------------------------------------------------------------------------
Moon Chung X X
- -------------------------------------------------------------------------------------------------
William Collom
- -------------------------------------------------------------------------------------------------
Robert Cooper
- -------------------------------------------------------------------------------------------------
Ginny Farnell
- -------------------------------------------------------------------------------------------------
Susan Galle X
- -------------------------------------------------------------------------------------------------
Glenn Gifford
- -------------------------------------------------------------------------------------------------
Karyn Greenstreet
- -------------------------------------------------------------------------------------------------
Sandra Harvey
- -------------------------------------------------------------------------------------------------
Mike Hoey
- -------------------------------------------------------------------------------------------------
Jane Hulings
- -------------------------------------------------------------------------------------------------
Matthew Krause
- -------------------------------------------------------------------------------------------------
Maria Latulippe
- -------------------------------------------------------------------------------------------------
Sharon McCollick
- -------------------------------------------------------------------------------------------------
Rob Montgomery
- -------------------------------------------------------------------------------------------------
George Pearcy
- -------------------------------------------------------------------------------------------------
Ross Raymond
- -------------------------------------------------------------------------------------------------
Donald Russell
- -------------------------------------------------------------------------------------------------
Jeff Sager
- -------------------------------------------------------------------------------------------------
Naresh Sawant (Sam)
- -------------------------------------------------------------------------------------------------
Bruce Salkovitz
- -------------------------------------------------------------------------------------------------
Bob Schatz
- -------------------------------------------------------------------------------------------------
Purvesh Shah X
- -------------------------------------------------------------------------------------------------
Nicholas Stowfis
- -------------------------------------------------------------------------------------------------
Bob Timpko
- -------------------------------------------------------------------------------------------------
Kousalya Vaddempudi
- -------------------------------------------------------------------------------------------------
Lynda Wilson
- -------------------------------------------------------------------------------------------------
</TABLE>
Notes
- -----
X, indicates the absence of this document
Blank, indicates that the document has been executed
<PAGE>
Exhibit V
Exception to Section 3.9 Litigation, Etc.
ESPS and two employees, Robert Timpko and Benjamin Berck, were approached by
Dolphin Inc. in June, 1996 for a possible breach of non-competition agreements
executed by Dolphin and the two ESPS employees. This disagreement was quickly
settled out of court.
<PAGE>
Exhibit VI
Material Contracts & Commitments
ELECTRONIC SUBMISSION PUBLISHING SYSTEMS, INC.
Unpaid Bills by Vendor
As of February 11, 1997
<TABLE>
<CAPTION>
Type Date Num Due Date Aging Open Balance
- ---------------------------- ----------- --------- ------------- ---------- ----------------------
<S> <C> <C> <C> <C> <C>
AIRBORNE
Bill 01/22/97 02/21/97 123.25
Total AIRBORNE ------
123.25
BELL ATLANTIC
Bill 01/21/97 02/20/97 199.45
Bill 01/21/97 02/20/97 401.14
Total BELL ATLANTIC ------
600.59
DaVinci Graphics
Bill 02/06/97 03/08/97 253.34
Bill 02/07/97 03/09/97 567.10
Total DaVinci Graphics ------
820.44
DELL COMPUTERS
Bill 01/29/97 02/28/97 4,545.60
Total DELL COMPUTERS --------
4,545.60
DIGITAL EXPRESSWAY
Bill 01/29/97 02/28/97 1,553.96
Total DIGITAL EXPRESSWAY --------
1,553.96
EASTERN TELEPHONE
Bill 01/30/97 03/01/97 809.14
Total EASTERN TELEPHONE ------
809.14
Federal Express
Bill 01/29/97 02/28/97 99.05
Bill 01/29/97 02/28/97 58.00
Total Federal Express ------
157.05
FOX, ROTHSCHILD, O'BRIEN
& FRANKEL
Bill 10/31/96 11/10/96 93 38,726.99
Bill 11/30/96 12/30/96 43 5,713.62
Bill 12/31/96 01/30/97 12 1,483.15
---------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Type Date Num Due Date Aging Open Balance
- ---------------------------- ----------- --------- ------------- ---------- ----------------------
<S> <C> <C> <C> <C> <C>
Total FOX, ROTHSCHILD, 45,923.76
O'BRIEN & FRANKEL
GE CAPITAL
Bill 01/20/97 02/19/97 1,674.80
Bill 01/20/97 02/19/97 1,081.20
Total GE CAPITAL --------
2,756.00
GRAY CARY WARE & FRIEDENRICH
Bill 01/21/97 02/20/97 156.40
Total GRAY CARY WARE & ------
FRIEDENRICH 156.40
HEWLETT-PACKARD
Bill 01/22/97 02/21/97 615.96
Total HEWLETT-PACKARD ------
615.96
IMPERIAL PREMIUM FINANCE, INC.
Bill 02/01/97 02/26/97 871.92
Total IMPERIAL PREMIUM ------
FINANCE, INC. 871.92
JUDGE COURIERS
Bill 01/25/97 02/24/97 64.50
Total JUDGE COURIERS -----
64.50
McFRANK AND WILLIAMS
ADVERTISING AGENCY
Bill 01/29/97 02/28/97 480.00
Total McFRANK AND WILLIAMS ------
480.00
ADVERTISING AGENCY
MICRO WAREHOUSE
Bill 01/22/97 02/21/97 96.95
Bill 01/23/97 02/22/97 268.85
Bill 01/30/97 03/01/97 2,643.71
Total MICRO WAREHOUSE --------
3,009.51
OLSTEN STAFFING SERVICES
Bill 04/26/96 06/25/96 231 420.37
Bill 04/26/96 06/25/96 231 90.95
Total OLSTEN STAFFING SERVICES ------
511.32
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Type Date Num Due Date Aging Open Balance
- ---------------------------- ----------- --------- ------------- ---------- ----------------------
<S> <C> <C> <C> <C> <C>
PAYCHEX, INC.
Bill 01/22/97 02/21/97 836.80
Total PAYCHEX, INC. ------
836.80
PHILADELPHIA NEWSPAPERS,
INC.
Bill 01/29/97 02/28/97 1,590.42
Total PHILADELPHIA --------
1,590.42
NEWSPAPERS, INC.
STAPLES
Bill 01/29/97 02/28/97 857.18
Total STAPLES ------
857.18
WOLF BLOCK, SCHORR &
SOLIS-COHEN
General Journal
Bill 10/31/96 AJE-4 (5,337.75)
Bill 07/30/96 08/14/96 181 884.88
Total WOLF BLOCK, SCHORR & 09/19/96 10/19/96 115 383.05
---------
SOLIS-COHEN (4,069.82)
---------
TOTAL
62,213.98
=========
</TABLE>
<PAGE>
ESPS
Exhibit VI (Continued)
Material Contracts and Commitments
Lease Commitments
- -----------------
Capital Lease Obligations at 1/31/97:
------------------------------------
. Hewlett Packard $6,454
. Computer Lease 627
. Telephone Lease 1,090
------
Total $8,171
======
Operating Lease Obligation at 1/31/97:
-------------------------------------
ESPS leases its office space under an operating lease. Future minimum lease
payments as of January 31, 1997 for Fiscal Year Ending 3/31 are:
. 1997 $ 11,980
. 1998 79,800
. 1999 82,300
. 2000 24,300
--------
Total $198,380
========
Customer Contracts (Future ESPS Revenue)
- ----------------------------------------
. Maintenance (as of 1/31/97) $ 000
------
AMI (2 years) 356
Janssen (1 year) 80
Agouron (1 year) 23
RPR (1 year) 165
DuPont Merck (1 year) 40
------
Total $ 664
======
. Software Licenses
RPR $1,100
DuPont Merck 200
Dura 200
------
Total $1,500
======
<PAGE>
Financial Statements
Electronic Submission
Publishing Systems, Inc.
Year ended March 31, 1996 and
for the Period April 29, 1994
(date of inception) to March 31, 1995
<PAGE>
Electronic Submission Publishing Systems, Inc.
Financial Statements
Year ended March 31, 1996 and for the Period April 29, 1994
(date of inception) to March 31, 1995
Contents
Unaudited Financial Statements
Balance Sheets................................... 2
Statements of Operations......................... 3
Statements of Stockholders' Equity............... 4
Statements of Cash Flows......................... 5
Notes to Financial Statements.................... 6
<PAGE>
Electronic Submission Publishing Systems, Inc.
Balance Sheets
<TABLE>
<CAPTION>
March 31
1996 1995
---------------------------
<S> <C> <C>
Assets
Current assets:
Cash and cash equivalents $ 871,004 $ 435,354
Other current assets 14,702 12,017
---------------------------
Total current assets 885,706 447,371
Property and equipment:
Computer equipment 289,987 97,129
Computer software 56,068 23,299
Furniture, fixtures, and office equipment 127,479 18,458
---------------------------
Accumulated depreciation 473,534 138,886
124,413 23,361
---------------------------
349,121 115,525
Other assets 27,504 39,004
---------------------------
Total assets $ 1,262,331 $ 601,900
===========================
Liabilities and stockholders' equity
Current liabilities:
Accounts payable and accrued expenses
Capital lease obligations--current $ 207,364 $ 28,961
Deferred revenue--current 10,391 8,781
Total current liabilities 238,999 -
456,754 37,742
---------------------------
Capital lease obligations, less current portion
Deferred revenue, less current portion 6,317 16,708
13,667 -
Stockholders' equity:
Series A convertible preferred stock, $0.001 par
value:
Authorized shares--2,000,000
Issued and outstanding shares--2,000,000 in 1996
and 1,000,000 in 1995 and (liquidation
preference of $2,000,000 at March 31, 1996
and $1,000,000 at March 31, 1995): 2,000 1,000
Common stock $0.001 par value
Authorized shares--4,000,000
Issued shares--1,000,000 1,000 1,000
Outstanding shares--588,600 in 1996 and 1,000,000
in 1995
Additional paid-in capital 1,972,729 980,494
Accumulated deficit (1,189,314) (435,044)
Less treasury stock, at cost--411,400 shares (822) -
---------------------------
Total stockholders' equity
785,593 547,450
---------------------------
Total liabilities and stockholders' equity
$ 1,262,331 $ 601,900
===========================
</TABLE>
See accompanying notes.
<PAGE>
Electronic Submission Publishing Systems, Inc.
Statements of Operations
<TABLE>
<CAPTION>
Year ended April 29, 1994
March 31, to March 31,
1996 1995
-------------------------------------------
<S> <C> <C>
Revenues:
Licensing $ 720,500 $ 100,000
Maintenance 27,334 -
Consulting 4,488 2,310
-------------------------------------------
Total operating revenue 752,322 102,310
Operating expenses:
Research and development 795,834 208,029
General administrative 633,464 302,032
Marketing and sales 95,101 32,473
-------------------------------------------
Total operating expenses 1,524,399 542,534
Total operating loss (772,077) (440,224)
Other:
Interest income 21,640 6,965
Interest expense (3,833) (1,785)
-------------------------------------------
17,807 5,180
-------------------------------------------
Net loss $ (754,270) $(435,044)
===========================================
</TABLE>
See accompanying notes.
<PAGE>
Electronic Submission Publishing Systems, Inc.
Statements of Stockholders' Equity
Year ended March 31, 1996 and
for the Period April 29, 1994
to March 31, 1995
<TABLE>
<CAPTION>
Series A Convertible Additional
Preferred Stock Common Stock Treasury Paid-in
Shares Amount Shares Amount Stock Capital
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Issuance of common stock on April 29, 1994 1,000,000 $1,000 $ - $ 1,000
Issuance of Series A Convertible Preferred 1,000,000 $1,000 999,000
Stock
Stock Issuance costs (19,506)
------------------------------------------------------------------
Net loss
Balance at March 31, 1995 1,000,000 1,000 1,000,000 1,000 - 980,494
Issuance of Series A Convertible preferred 1,000,000 1,000 999,000
stock
Stock issuance costs (6,765)
Purchase of treasury stock (411,400) - (822)
Net loss
------------------------------------------------------------------
Balance at March 31, 1996 2,000,000 $2,000 588,600 $1,000 $(822) $1,972,729
==================================================================
<CAPTION>
Total
Accumulated Stockholders'
Deficit Equity
----------------------------
<S> <C> <C>
Issuance of common stock on April 29, 1994 $ 2,000
Issuance of Series A Convertible Preferred 1,000,000
Stock
Stock Issuance costs (19,506)
Net loss $ (435,044) (435,044)
----------------------------
Balance at March 31, 1995 (435,044) 547,450
Issuance of Series A Convertible preferred 1,000,000
stock
Stock issuance costs (6,765)
Purchase of treasury stock (822)
Net loss (754,270) (754,270)
----------------------------
Balance at March 31, 1996 $(1,189,314) $ 785,593
============================
</TABLE>
See accompanying notes.
<PAGE>
Electronic Submission Publishing Systems, Inc.
Statements of Cash Flows
<TABLE>
<CAPTION>
Year ended April 29, 1994
March 31, to March 31,
1996 1995
<S> <C> <C>
------------------------------------------------
Operating activities
Net loss $ (754,270) $(435,044)
Adjustments to reconcile net loss to net cash used in operating
activities:
Depreciation 101,052 23,361
Amortization 1,000 917
Changes in assets and liabilities:
Other current assets 7,815 (12,017)
Other assets - (34,921)
Accounts payable and accrued expenses 178,403 28,961
Deferred revenue 252,666 -
------------------------------------------------
Net cash used in operating activities (213,334) (428,743)
Investing activities
Acquisition of property and equipment (334,648) (108,488)
Organization expense - (5,000)
------------------------------------------------
Net cash used in investing activities (334,648) (113,488)
Financing activities
Proceeds from issuance of common stock - 2,000
Proceeds from issuance of bridge loan - 200,000
Proceeds from the issuance of preferred stock 1,000,000 800,000
Stock issuance costs (6,765) (19,506)
Purchase of treasury stock (822) -
Payments of capital lease obligations (8,781) (4,909)
------------------------------------------------
Net cash provided by financing activities 983,632 977,585
------------------------------------------------
Net increase in cash and cash equivalents 435,650 435,354
Cash and cash equivalents, beginning of period 435,354 -
------------------------------------------------
Cash and cash equivalents, end of period $ 871,004 $ 435,354
------------------------------------------------
Supplemental disclosures of cash flow information
Capital lease obligations incurred $ - $ 30,398
------------------------------------------------
Conversion of bridge loan to preferred stock $ - $ 200,000
------------------------------------------------
</TABLE>
See accompanying notes.
5
<PAGE>
Electronic Submission Publishing Systems, Inc.
Notes to Financial Statements
Year ended March 31, 1996 and
for the Period April 29, 1994 to March 31, 1995
1. Business
Electronic Submission Publishing Systems, Inc. (the "Company"), a Delaware
corporation, was founded in April 1994 and is a systems developer and integrator
of comprehensive electronic publishing solutions designed to manage, generate,
publish and distribute high quality regulatory submissions. The Company's
initial concentration has been directed to the pharmaceutical industry.
Revenues of approximately $648,000 were from one customer during the year ended
March 31, 1996. The Company came out of the development stage during the year
ended March 31, 1996.
2. Accounting Policies
Use of Estimates
The preparation of financial statements in conformity with generally accepted
accounting principals requires management to make estimates and assumptions that
affect that amounts reported in the financial statements and accompanying notes.
Actual results could differ from those estimates.
Revenue Recognition
The Company recognizes revenue from software licenses upon acceptance by the
customer. Maintenance and service fee income is recognized as income ratably
over the life of the maintenance contracts. Consulting income is recognized as
the services are performed.
Cash and Cash Equivalents
The Company considers as cash equivalents all highly liquid investments with an
original maturity of three months or less.
Income Taxes
The Company accounts for income taxes under the liability method. The liability
method provides that deferred tax assets and liabilities are recorded based on
the difference between the tax basis of assets and liabilities and their
carrying amounts for financial reporting purposes, referred to as "temporary
differences."
6
<PAGE>
Electronic Submission Publishing Systems, Inc.
Notes to Financial Statements (continued)
2. Accounting Policies (continued)
Property and Equipment
Property and equipment is recorded at cost. Depreciation is computed using
accelerated methods over the estimated useful lives of the related assets which
range from five to seven years.
Capitalized Software Costs
Financial accounting standards provide for the capitalization of certain
software development costs after technological feasibility of the software is
established. No such costs have been capitalized because the impact on the
financial statements would be immaterial.
Reclassification
Certain balances in fiscal year 1995 financial statements have been reclassified
to conform with current year presentation.
3. Obligations Under Capital Lease
The Company has entered into agreements to lease certain assets which have been
accounted for as capital leases and are included in property and equipment at
March 31, 1996 and 1995.
<TABLE>
<CAPTION>
1996 1995
------------------------------------------------
<S> <C> <C>
Equipment under capital lease $ 30,398 $30,398
Less accumulated depreciation (14,976) (4,000)
------------------------------------------------
$ 15,422 $26,398
------------------------------------------------
</TABLE>
7
<PAGE>
Electronic Submission Publishing Systems, Inc.
Notes to Financial Statements (continued)
3. Obligations Under Capital Lease (continued)
Future minimum lease payments subsequent to March 31, 1996 under the
aforementioned capital lease agreements (including interest ranging from 13% to
22% per annum) are as follows:
<TABLE>
<S> <C>
1997 $12,295
1998 6,682
------------
Total minimum lease payments 18,977
Less amount representing interest 2,269
------------
Present value of net minimum lease payments 16,708
Less current obligations under capital lease 10,391
------------
Obligations under capital lease, less current portion $ 6,317
------------
</TABLE>
4. Capital Stock
The holders of the Series A convertible preferred stock are entitled to
noncumulative dividends at a rate of $.08 per share prior to any payment of
dividends on common stock.
Each share of preferred stock is convertible into one share of common stock,
subject to adjustment in certain circumstances, and has a liquidation preference
of $1.00 per share. Conversion is at the option of the stockholders until such
time, if ever, that the Company consummates a public offering at a designated
price and from which the Company receives proceeds of at least $10,000,000 at
which time such conversion becomes mandatory. The preferred stock has voting
rights equal to its common stock conversion ratio.
Stock Options
During 1995, the Company adopted a stock option plan whereby the Company may
grant either incentive or nonqualified stock options to purchase the Company's
common stock. The incentive stock options are to be granted at no less than
fair market value at the date of grant, and the nonqualified stock options are
to be granted at no less than eighty-five percent of the fair market value of
the shares at the date of grant. The fair market value is determined by the
Board of Directors. Twenty-five percent of the option shares are exercisable on
the first anniversary of the date of grant or the participant's hire date,
whichever is earlier. The additional amounts become exercisable at varying
rates from 6.25% to 9.40% on the last day of each quarter thereafter. The
Company has authorized 1,411,400 shares to be issued under the plan. There are
468,400 options available for grant at March 31, 1996. No options were
exercised during fiscal
8
<PAGE>
Electronic Submission Publishing Systems, Inc.
Notes to Financial Statements (continued)
4. Capital Stock (continued)
Stock Options (continued)
1996. Subsequent to March 31, 1996, an additional 174,000 options were granted
at the fair market value as determined by the Board of Directors.
<TABLE>
<CAPTION>
Number
of Shares Price per share
-----------------------------------
<S> <C> <C>
Granted 101,000 $ 0.10
Exercised -
-----------------------------------
Outstanding at March 31, 1995 101,000 0.10
Granted 963,000 .10-.11
Exercised -
Canceled (121,000) .10
-----------------------------------
Outstanding at March 31, 1996 943,000 $.10-.11
-----------------------------------
</TABLE>
5. Income Taxes
The Company has a deferred tax asset resulting from net operating loses and
research and development tax credits of approximately $510,000. The Company has
recorded a valuation allowance equal to the deferred tax asset.
For federal income tax purposes, the Company has approximately $1,167,000 of net
operating loss carryforwards and $20,000 of research and development tax credit
carryforwards which begin to expire in 2010. Certain limitations imposed by the
Internal Revenue Code may limit the use of the net operating loss if the Company
undergoes a change in control as defined. For state income tax purposes, the
Company has approximately $732,000 of operating losses which begin to expire in
1997.
9
<PAGE>
Electronic Submission Publishing Systems, Inc.
Notes to Financial Statements (continued)
6. Commitments
The Company leases its office space under an operating lease. Future minimum
lease payments as of March 31, 1996 are as follows:
<TABLE>
<S> <C>
1997 $76,700
1998 79,800
1999 82,300
2000 24,300
</TABLE>
Rent expense was approximately $43,000 during the year ended March 31, 1996 and
$23,000 during the period ended March 31, 1995.
7. Subsequent Event
Subsequent to March 31, 1996, the Company obtained a $500,000 equipment line of
credit from a leasing company expiring March 31, 1997. The line is secured by
equipment owned by the Company and equipment to be purchased and bears interest
at 21%.
10
<PAGE>
ESPS
----
January 1997
------------
Financial Review
----------------
<TABLE>
<CAPTION>
Item Page
- ---- -----
<S> <C>
. Executive Overview 2-4
. Balance Sheet Comparison (Sch 1) 5
. Statement of Operations Comparison (Sch 2) 7
. Statement of Cash Flows Comparison (Sch 3) 9
</TABLE>
<PAGE>
Executive Overview
- ------------------
Financial Performance ($000)
<TABLE>
<CAPTION>
January YTD
Actual Budget Var Actual Budget Var
-------------------------------- ------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Revenue 74 100 -26 653 444 209
Profit/(Loss) (241) (178) (63) (2,416) (2,089) (327)
Cash Balance 237 469 (232)
</TABLE>
Highlights
This month was spent meeting the demands (installations, regulatory filing
support, training and software upgrades) made by new customers. Revenue of $74k
was ($26k/26%) under Budget and includes $29k of maintenance and $45k of
customer support for Agouron. Absent this month is new software licensing
revenue. Operating expenses totaled $308k and were $31k/11% higher than
expected. Details of spending by department follow. This combination of
revenue shortfall and overspending pushed our loss to $241k ($63k/35%) above
budget.
Our cash position at month end is $237k, $232k or 49% below Plan. Anticipated
investor funding remains $500k below Budget, which more than offsets our cash
short fall.
Balance Sheet
The accounts receivable balance of $487k represents billings to AMI; for $334k,
two years maintenance, Agouron; for $45k customer support and Dura; for $108k a
50% advance on our software license. Other current assets now include $40k of
Versant licenses held as inventory and $11k of prepaid Versant maintenance.
Equity funding has been replaced with bridge loans of $1.5 million, $500k short
of Plan. All Company assets are currently pledged for these bridge loans which
has prevented us from using our equipment leasing line of credit. Our payables
and accrued expense position are higher than expected due to the inclusion of
the Versant invoice, for royalties, maintenance and license inventory totaling
$93k. Deferred revenue, both current and long term is composed of $335k for
licensing (RPR; $135k, DuPont Merck; $100k and Dura; $100k) and $664k for
maintenance (AMI; $356k, Janssen; $80k, Agouron; $23k, RPR; $165k and DuPont
Merck $40k).
Statement of Operations
Revenue:
2
<PAGE>
Revenue for the month of $74k ($29k, maintenance and $45k, customer support) is
$26k or 26% below budget. Expected pilot revenue (software licensing) of $60k
did not materialize. Management is making every effort to maximize this year's
revenue by expediting installations and acceptances for those customer's where
it is possible. Our deferred revenue position of $999k speaks well for the
future.
Expenses:
Cost of revenue of $1k represents the amortization of prepaid Versant
maintenance. Budgeted, was the monthly write-off of capitalized development
costs that has been discounted due to immateriality.
Our Research & Development costs for the month were $91k, $12k over budget, all
of which can be associated with excess depreciation. This excess is almost
completely offset by a similar savings in G & A.
Regulatory departmental costs were $43k for the month. This level of spending
is $29k higher than planned and due primarily to travel and payroll overruns.
Excess travel costs of $13k are expected to continue, as Regulatory personnel
support our customers base. The excess payroll of $11k is offset with similar
savings in the Quality Assurance and G & A Departments (budgeted staff have been
reassigned to Regulatory).
Quality Assurance spending was $28k for the month, a $16k or 36% savings. These
savings are due to assigning budgeted employees to other departments and reduced
staff levels.
G&A spending of $94k is right on budget.
Marketing & Sales costs of $50k for the month were $20k or 67% over budget.
Most of the overspending is the result of higher than expected payroll costs.
Cash Flow
Our cash position at month end was $234k, which is $232k below Plan. This cash
short fall can be directly linked to the remaining $500k of budgeted investor
funding which has yet to take place. Cash provided by operations for the month
was $5k but $264k higher than expected. This excess is directly related to the
increases in our deferred revenue position caused by Dura and AMI cash advances.
3
<PAGE>
Personnel
<TABLE>
<CAPTION>
Headcount
Actual Budgeted
<S> <C> <C>
Software Development (R&D) 12 13
Q & A (Systems Support/Documentation) 6 9
Regulatory (Customer Support) 6 2
Sales & Marketing 4 3
G & A 4 5
----------------------------
Total 32 32
</TABLE>
4
<PAGE>
<TABLE>
<CAPTION>
SCH 1
-----
Electronic Submission Publishing Systems, Inc.
- ----------------------------------------------
Balance Sheets Actual Budget Var.
-------------- Actual-
January 1997 Budget
--------------
<S> <C> <C> <C>
Assets
Current assets:
Cash and cash equivalents $ 236,968 $ 469,144 ($232,176)
Accounts Receivable $ 486,812 $ 60,000 $ 426,812
Other current assets $ 52,640 $ 10,516 $ 42,124
--------------------------------------------
Total current assets 776,420 $ 533,660 $ 236,760
Property and equipment
Computer equipment $ 455,008
Computer software $ 94,342
Furniture, fixtures, and office equipment $ 155,950
--------------------------------------------
$ 705,300 $ 711,981 ($6,681)
Accumulated depreciation $ 260,459 $ 249,939 $ 10,520
--------------------------------------------
Computer Software (net) $ 444,841 $ 462,042 ($17,201)
Other Assets $ 0 $ 117,871 ($117,871)
$ 31,503 $ 36,421 ($4,918)
--------------------------------------------
Total assets $ 1,252,764 $ 1,155,994 $ 96,770
============================================
Liabilities and stockholders' equity
Current liabilities:
Accounts payable and accrued expenses $ 375,530 $ 229,927 $ 145,603
Bridge Loan Payable $ 1,500,000 $ 0 $ 1,500,000
Capital lease obligations - current $ 8,172 $ 48,551 ($40,379)
Deferred revenue - current $ 841,812 $ 79,167 $ 762,645
--------------------------------------------
Total current liabilities $ 2,725,514 $ 357,645 $ 2,357,869
Capital lease obligations, less current portion $ 0 $ 69,602 ($69,602)
Deferred revenue, less current portion $ 157,569 $ 0 $ 157,569
Stockholders' equity
Series A convertible preferred stock $0.001 par value:
Authorized shares 2,000,000
Issues and outstanding 2,000,000 $ 2,000 $ 3,980,495 ($3,978,495)
Common Stock, $0.001 par value:
Authorized 4,000,000
Issued and outstanding 533,600 $ 1,000 $ 588 $ 412
Additional paid in capital $ 1,972,730 $ 588 $ 1,972,142
Accumulated ($3,605,227) ($3,272,924) ($332,303)
Less treasury stock, at cost, 411,400 shares ($822) $ 0 ($822)
--------------------------------------------
Total Stockholders' Equity ($1,630,319) $ 708,747 ($2,339,066)
--------------------------------------------
Total liabilities and stockholders' equity $ 1,252,764 $ 1,155,994 $ 95,770
============================================
</TABLE>
<TABLE>
SCH 1
-----
Electronic Submission Publishing Systems, Inc.
- ---------------------------------------------- Prior Var. Actual Comments
Balance Sheets Month Actual- 1985 (Var. from
-------------- Prior Budget)
January 1997 Month
--------------
<S> <C> <C> <C> <C>
Assets
Current assets:
Cash and cash equivalents $ 242,835 ($5,865) $ 249,801 (1)
Accounts Receivable $ 300,000 $ 186,612 $ 0 (2)
Other current assets $ 52,282 $ 358 $ 6,493 (3)
-------------------------------- --------------
Total current assets $ 595,115 $ 181,305 $ 256,294
Property and equipment
Computer equipment $ 450,463 $ 4,545 $ 0
Computer software $ 90,885 $ 3,457 $ 0
Furniture, fixtures, and office equipment $ 153,825 $ 2,125 $ 0
-------------------------------- --------------
$ 695,173 $ 10,127 $ 408,484
Accumulated depreciation $ 245,472 $ 14,987 $ 72,537
-------------------------------- --------------
Computer Software (net) $ 469,701 ($4,860) $ 335,947
Other Assets $ 0 $ 0 $ 0 (4)
$ 31,503 $ 0 $ 38,422
-------------------------------- --------------
Total assets $ 1,076,319 $ 176,445 $ 630,663
================================ ==============
Liabilities and stockholders' equity
Current liabilities:
Accounts payable and accrued expenses $ 342,731 $ 32,799 $ 2,315 (5)
Bridge Loan Payable $ 1,500,000 $ 0 $ 0 (6)
Capital lease obligations - current $ 9,081 ($909) $ 4,937 (7)
Deferred revenue - current $ 613,178 $ 228,634 $ 0 (8)
-------------------------------- --------------
Total current liabilities $ 2,464,990 $ 260,524 $ 7,252
Capital lease obligations, less current portion $ 0 $ 0 $ 3,230 (7)
Deferred revenue, less current portion $ 0 $ 157,569 $ 0 (8)
Stockholders' equity
Series A convertible preferred stock $0.001 par value:
Authorized shares 2,000,000
Issues and outstanding 2,000,000 $ 2,000 $ 0 $ 1,980,434 (9)
Common Stock, $0.001 par value:
Authorized 4,000,000
Issued and outstanding 533,600 $ 1,000 $ 0 $ 588
Additional paid in capital $ 1,972,730 $ 0 $ 588 (9)
Accumulated ($3,363,579) ($241,646) ($1,361,489) (10)
Less treasury stock, at cost, 411,400 shares ($822) $ 0 $ 0
-------------------------------- --------------
Total Stockholders' Equity ($1,368,671) ($241,646) $ 620,181
-------------------------------- --------------
Total liabilities and stockholders' equity $ 1,076,319 $ 176,445 $ 630,663
================================ ==============
</TABLE>
5
<PAGE>
Footnotes
- ---------
(1) See Statement of Cash Flows Analysis (Sch. 3).
(2) Billed AMI one month earlier than budgeted for maintenance renewal ($334k),
plus unbudgeted billing to Agouron for Customer Support ($45k) and
unexpected billing to Dura for 50% of software license ($108k). Versus
budget receivable of one month pilot ($60k).
(3) Includes $40k of Versant licenses held in inventory for customer evaluation
and $11k for one year of prepaid Versant maintenance. Both unbudgeted.
Budgeted $10k of prepaid insurance.
(4) No longer capitalizing software development cost due to immateriality.
(5) Unbudgeted Versant VAR agreement payable at $93k caused most of the
variance.
(6) Bridge Loan prior to permanent equity financing.
(7) Have not yet used equipment financing as anticipated for capital additions.
(8) Actual includes licenses (paid in advance) of $335k and maintenance of
$564k. Budgeted includes only maintenance for Janssen & AMI.
Licenses: Maintenance:
RPR $100k AMI (regular) $ 41k
Dupont Merck $135k AMI (2 yrs in advance) $315k
Dura $100k Janssen (regular) $ 80k
Agouron (regular) $ 23k
RPR (1 yr. in advance) $165k
DuPont Merck (1 yr. in advance) $ 40k
(9) classification difference between Preferred Stock and Additional Paid in
Capital. However, remaining variance of $2m due to delay in equity
financing. See (6) above.
(10) See Statement of Operations (Sch. 2).
6
<PAGE>
<TABLE>
<CAPTION>
Sch 2
-----
Electronic Submission Publishing
-------------------------------- MONTH QUARTER TO DATE
Systems, Inc.
------------- ACTUAL BUDGET VAR ACTUAL BUDGET VAR
Statements of Operations Actual- Actual-
------------------------ ------- -------
January 1997 Budget Budget
------------ ------ ------
<S> <C> <C> <C> <C> <C> <C>
Revenue:
Licensing $ 0 $ 60,000 ($60,000)
Maintenance $ 28,937 $ 40,000 ($11,063)
Consulting $ 45,014 $ 0 $ 45,014
Total operating income $ 73,951 $ 100,000 ($26,049) Quarter to Date
same as
Month to Date
Operating expenses:
Cost of revenue $ 1,018 $ 16,075 ($15,057)
Research and development $ 91,394 $ 78,999 $ 12,395
Regulatory $ 42,578 $ 14,063 $ 28,515
Quality Assurance $ 28,228 $ 44,054 ($15,826)
General and $ 84,224 $ 93,969 $ 255
administrative
Marketing and sales $ 50,453 $ 30,033 $ 20,420
Total operating expenses $ 307,895 $ 277,193 $ 30,702
Total operating loss ($233,944) ($177,193) ($56,751)
Other:
Interest income $ 244 $ 0 $ 244
Interest expense ($7,590) ($747) ($6,843)
($7,346) ($747) ($6,599)
Net Loss ($241,290) ($177,940) ($63,350)
</TABLE>
<TABLE>
<CAPTION>
Sch 2
-----
Electronic Submission Publishing
-------------------------------- YTD
Systems, Inc.
------------- ACTUAL BUDGET VAR Comments
Statements of Operations Actual-
------------------------ -------
January 1997 Budget
------------ ------
<S> <C> <C> <C> <C>
Revenue:
Licensing $ 345,200 $ 60,000 $ 285,200 (1)
Maintenance $ 262,478 $ 383,333 ($120,855) (2)
Consulting $ 45,014 $ 0 $ 45,014 (3)
Total operating income $ 652,692 $ 443,333 $ 209,359
Operating expenses:
Cost of revenue $ 72,433 $ 139,387 ($66,954) (4)
Research and development $ 831,707 $ 536,528 $ 295,179 (5)
Regulatory $ 274,184 $ 137,813 $ 136,371 (6)
Quality Assurance $ 301,909 $ 403,429 ($101,520) (7)
General and $ 1,033,017 $ 949,491 $ 83,526 (8)
administrative
Marketing and sales $ 523,958 $ 357,210 $ 166,748 (9)
Total operating expenses $ 3,037,208 $ 2,523,858 $ 513,350
Total operating loss ($2,384,516) ($2,080,525) ($303,991)
Other:
Interest income $ 3,343 $ 0 $ 3,343
Interest expense ($34,743) ($8,465) ($26,278) (10)
($31,400) ($8,465) ($22,935)
Net Loss ($2,415,916) ($2,088,990) ($326,926)
</TABLE>
Footnotes & Comments
- --------------------
(1) Month, budget anticipated a pilot @ $60k which did not occur. YTD actual,
Agouron $194k and AMI $151k versus this months pilot.
(2) Month and YTD variances; increased revenue recognition period from 12 to 15
months.
(3) Month and YTD variances; unbudgeted Customer Support Services for Agouron.
(4) Month, Budget anticipated authorization of capitalized software cost which
was discontinued. Actual, is the amortization of prepaid Versant
maintenance which was not anticipated. YTD variance, unexpected Versant
royalty expense for existing install base versus budgeted write-off of
capitalized software costs.
(5) YTD variance, primarily due to $102k excess depreciation expenses, offset by
equal savings in G & A and $102k overspend in payroll due to not
capitalizing software development costs.
7
<PAGE>
(6) Month variance due to travel and P/R overruns, $13k and $11k respectively.
YTD, travel and P/R higher than expected by $57k and $41k respectively.
P/R overruns are offset by savings in other departments due to shifting
staff.
(7) Month, and YTD savings due to reduced staff levels in Department. Partially
offset by overruns in Regulatory staffing (Shifting of Staffing between
departments).
(8) Month spending on Plan. YTD variance due to consulting and legal expense
overruns partially offset by savings in management bonus plan.
(9) Monthly variance due to payroll overrun. YTD variance due to overspends in
product launch and trade shows.
(10) Month and YTD did not budget for Bridge Loan interest.
8
<PAGE>
<TABLE>
<CAPTION>
SCH 3
-----
Electronic Submission Publishing Systems, Inc.
---------------------------------------------- Month Var. Quarter to date Var.
Statements of Cash Flows
------------------------ Actual Budget Actual- Actual Actual-
January 1997 Budget Budget
------------
<S> <C> <C> <C> <C> <C>
Operating Activities
Net loss ($241,290) ($177,940) ($63,350)
Adjustments to reconcile net
loss to net cash used
in operating activities:
Depreciation $ 14,987 $ 13,364 $ 1,623 Quarter to Date
same as
Month to Date
Amortization $ 83 $ 500 ($417)
Changes in assets and
liabilities:
Other current assets ($358) ($206) ($152)
Accounts receivable ($186,812) ($60,000) ($126,812)
Other assets ($83) $ 0 ($83)
Accounts payable and $ 32,441 ($35,011) $ 67,452
accrued expenses
Deferred Revenue $ 386,203 $ 0 $ 386,203
--------------------------------------
Net Cash used in operating $ 5,171 ($259,293) $ 264,464
activities
Investing Activities
Acquisition of property and ($10,127) ($5,000) ($5,127)
equipment
Capitalization of software $ 0 $ 16,075 ($16,075)
development costs
Organization expense $ 0 $ 0 $ 0
--------------------------------------
($10,127) $ 11,075 ($21,202)
Financing Activities
Purchase of treasury stock $ 0 $ 0 $ 0
Proceeds from the issuance $ 0 $ 0 $ 0
of preferred stock ($909) $ 3,591 ($4,500)
(Payments)/Proceeds of
capital lease obligations $ 0 $ 0 $ 0
Stock issuance costs $ 0 $ 0 $ 0
Proceeds from the issuance
of common stock $ 0 $ 0 $ 0
Proceeds from the issuance --------------------------------------
of bridge loans ($909) $ 3,591 ($4,500)
Net increase in cash and --------------------------------------
cash equivalents ($5,865) ($244,627) $ 238,762
Cash and cash equivalents,
beginning of period $ 242,833 $ 713,771 ($470,938)
Cash and cash equivalents, --------------------------------------
end of period $ 236,968 $ 469,144 ($232,176)
======================================
</TABLE>
<TABLE>
<CAPTION>
SCH 3
-----
Electronic Submission Publishing Systems, Inc.
---------------------------------------------- YTD Var.
Statements of Cash Flows
------------------------ Actual Budget Actual- Comments
January 1997 Budget
------------
<S> <C> <C> <C> <C>
Operating Activities
Net loss ($2,415,558) ($2,088,990) ($326,568) (1)
Adjustments to reconcile net
loss to net cash used
in operating activities:
Depreciation $ 135,443 $ 126,820 $ 8,623
Amortization $ 30,345 $ 5,000 $ 25,345
Changes in assets and
liabilities:
Other current assets ($37,937) ($1,707) ($36,230) (2)
Accounts receivable ($486,212) ($60,000) ($426,212) (3)
Other assets ($4,828) ($3,183) ($1,645)
Accounts payable and $ 107,582 $ 1,786 $ 105,796 (4)
accrued expenses
Deferred Revenue $ 746,715 ($139,221) $ 885,936 (5)
--------------------------------------------
Net Cash used in operating ($1,924,450) ($2,159,495) $ 235,045
activities
Investing Activities
Acquisition of property and ($230,917) ($265,000) $ 34,083 (6)
equipment
Capitalization of software $ 29,867 ($64,272) $ 94,139 (7)
development costs
Organization expense $ 0 $ 0 $ 0
--------------------------------------------
($201,050) ($329,272) $ 128,222
Financing Activities
Purchase of treasury stock $ 0 $ 0 $ 0
Proceeds from the issuance $ 0 $ 2,000,000 ($2,000,000) (8)
of preferred stock
(Payments)/Proceeds of ($8,536) $ 86,907 ($95,443) (9)
capital lease obligations
Stock issuance costs $ 0 $ 0 $ 0
Proceeds from the issuance $ 0 $ 0 $ 0
of common stock
Proceeds from the issuance
of bridge loans $ 1,500,000 $ 0 $ 1,500,000 (8)
--------------------------------------------
$ 1,491,464 $ 2,086,907 ($595,443)
--------------------------------------------
Net increase in cash and ($634,036) ($401,860) ($232,176)
cash equivalents
Cash and cash equivalents, $ 871,004 $ 871,004 $ 0
beginning of period --------------------------------------------
Cash and cash equivalents, $ 236,968 $ 469,144 ($232,176)
end of period ============================================
</TABLE>
Footnotes & Comments
- --------------------
(1) See Statement of Operations (Sch 2).
(2) YTD, unbudgeted investment in Versant inventory of licenses.
(3) Month, increase in our receivable position due to billing of (AMI; $334k
maintenance, Agouron; $45k customer support, Dura; $107k software license)
versus last month's receivable from RPR of $300k. YTD variance represents
investment in receivables due to this months billing as previously
described.
9
<PAGE>
(4) Month, variance due to increase in payables and accruals as opposed to
budgeted decrease. YTD, variance due to much larger increase in this
position than budgeted.
(5) Month, variance due to additions of Dura; license deferral $100k and AMI;
two years maintenance deferral $315k. Both additions net of normal monthly
revenue. YTD, variance due to advance payments by customers not
anticipated in budget.
(6) Monthly variance due to slight CapX overspend, however, YTD still under
spent by $34k.
(7) No capitalization of software development costs as anticipated by Budget.
(8) Anticipated Equity funding replaced with Bridge Loans and $500k under
funded.
(9) Month and YTD variances; anticipated using equipment financing line of
credit as a source of cash. To date have not used the line but only paid
off old leases.
10
<PAGE>
EXHIBIT C
---------
RIGHTS AMENDMENT
<PAGE>
ELECTRONIC SUBMISSION PUBLISHING SYSTEM, INC.
AMENDMENT NO. 1 TO
RIGHTS AGREEMENT
This Amendment No. 1 to Rights Agreement is entered into as of
February 24, 1997 by and among Electronic Submission Publishing Systems, Inc., a
Delaware corporation (the "Company") and the undersigned holders of the Series A
Preferred Stock of the Company (the "Series A Holders"). Unless defined herein,
capitalized terms shall have the meanings given them in that certain Rights
Agreement dated July 5, 1994 between the Company and the Series A Holders (the
"Rights Agreement").
RECITAL
-------
1. Section 4.4 of the Rights Agreement provides that the Company and
the Series A Holders can amend the Rights Agreement.
2. The Company and the Series A Holders now wish to amend the Rights
Agreement to increase the number of shares of the Company's Common Stock
issuable by the Company to employees and consultants that are excluded from the
definition of New Securities for purposes of Section 2 of the Rights Agreement.
AGREEMENT
---------
1. Section 2.3 of the Rights Agreement is amended and restated to
read in full as follows:
2.3. Except as set forth below, "New Securities" shall mean any
Equity Securities, whether now authorized or not, and rights, options
or warrants to purchase said Equity Securities. Notwithstanding the
foregoing, "New Securities" does not include (i) Common Stock (or
options, warrants or other rights to purchase the same) issued to the
Founders or employees, officers, consultants or directors of the
Company at any time after July 5, 1994 up to a total of 3,000,000
shares (as adjusted for stock splits, combinations, dividends,
distributions or recapitalizations); (ii) securities offered to the
public generally pursuant to a registration statement under the
Securities Act; (iii) securities issued pursuant to the acquisition of
another corporation by the Company by merger, purchase of
substantially all of the assets or other reorganization whereby the
Company or its shareholders own not less than fifty-one (51%) percent
of the voting power of the surviving or successor corporation; (iv)
the Conversion Stock; (v) warrant or warrants for the purchase of
shares of capital stock of the Company (and stock issued upon exercise
of such warrant or warrants) which have been unanimously
<PAGE>
approved by the Board of Directors of the Company and issued in
connection with an equipment lease, equipment financing or bank line
financing; or (vi) stock issued in connection with any stock split,
stock dividend or recapitalization by the Company.
2. Except as amended hereby, the Rights Agreement shall remain in
full force and effect.
The foregoing agreement is hereby executed as of the date first above
written.
ELECTRONIC SUBMISSION PUBLISHING
SYSTEMS, INC.
By: /s/ Terrance Brennan
------------------------------------
Terrance Brennan,
President
ADOBE VENTURES L.P.
By: Its general partner,
H&Q Adobe Ventures Management L.P.
By: Its general partner,
H&Q Adobe Ventures Management Corp.
By: /s/ J. Berterretche
------------------------------------
Title: Attorney-in-Fact
------------------------------------
H&Q ESPS INVESTORS, L.P.
By: /s/ J. Berterretche
------------------------------------
Title: Attorney-in-Fact
------------------------------------
<PAGE>
POWER OF ATTORNEY
GENERAL
BY THIS POWER OF ATTORNEY:
THE UNDERSIGNED of the County of
- --------------------------------------------------------
(Name or names of person or persons giving this power hereinafter referred
to as Principal)
SAN FRANCISCO State of CALIFORNIA ,
- -------------------------------------------------- ------------------
does appoint each of Jackie Berterretche, Samuel Kingsland, Sharon Smith
---------------------------------------------------------
its true and lawful attorneys.
In principal's name, and for principal's use and benefit, said attorneys
are authorized hereby:
(1) to demand, sue for, collect, and receive all money, debts, accounts
legacies, bequests, interest, dividends, annuities, and demands as are now or
shall hereafter become due, payable, or belonging to principal, and to take all
lawful means, for the recovery thereof and to compromise the same, and give
discharges for the same;
(2) to buy and sell land, make contracts of every kind relative to land, any
interest therein or the possession thereof, and to take possession and exercise
control over the use thereof;
(3) to buy, sell, exchange, mortgage, hypothecate, assign, transfer, and in
any manner deal in and with goods, wares, and merchandise, chooses in action,
and to make, do and transact all and every kind of business of whatever nature;
(4) to execute, acknowledge and deliver contracts of sale, escrow
instructions, deeds, leases including leases for minerals and hydrocarbon
substances and assignments of leases, covenants, agreements and assignments of
agreements, mortgages and assignments of mortgages, conveyances in trust to
secure indebtedness or other obligations, and assign the beneficial interest
thereunder, subordinations of liens or encumbrances, bills of lading, bills,
bonds, notes, receipts, evidences of debt, releases and satisfactions of
mortgages, requests to reconvey deeds of trust, partial or full, judgments, and
other debts, and other instruments in writing of whatever kind and nature, all
upon such terms and conditions and under such covenants as said attorneys shall
approve.
GIVING AND GRANTING to said attorneys full power and authority to do all and
every act and thing whatsoever requisite and necessary to be done relative to
any of the foregoing as fully to all intents and purposes as principal might or
could do if personally present.
All that said attorneys shall lawfully do or cause to be done under the
authority of this power of attorney is expressly approved.
H&Q ESPS Investors, L.P.
Dated 11/20/95 by: H&Q Management Corporation
---------------------
STATE OF CALIFORNIA }
COUNTY OF SAN FRANCISCO }
On November 20, 1995 , before me, By: /s/ William R. Hambrecht
--------------------------- ---------------------------
William R. Hambrecht
President
/s/ Kathy Waldron (name, title of officer), personally
- -------------------
appeared /s/ William R. Hambrecht
---------------------------------
[] personally known to me - OR - [] proved to me on the basis of
satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
WITNESS my hand and official seal.
/s/ Kathy Waldron
- ---------------------------------------------
Signature
<PAGE>
POWER OF ATTORNEY
GENERAL
BY THIS POWER OF ATTORNEY:
THE UNDERSIGNED of the County of
- ----------------------------------------------------------
(Name or names of person or persons giving this power hereinafter referred
to as Principal)
SAN FRANCISCO State of CALIFORNIA ,
- -------------------------------------------- --------------------------
does appoint each of Jackie Berterretche, Samuel Kingsland, Sharon Smith
-----------------------------------------------------------
its true and lawful attorneys.
In principal's name, and for principal's use and benefit, said attorneys are
authorized hereby:
(1) to demand, sue for, collect, and receive all money, debts, accounts
legacies, bequests, interest, dividends, annuities, and demands as are now or
shall hereafter become due, payable, or belonging to principal, and to take all
lawful means, for the recovery thereof and to compromise the same, and give
discharges for the same;
(2) to buy and sell land, make contracts of every kind relative to land, any
interest therein or the possession thereof, and to take possession and exercise
control over the use thereof;
(3) to buy, sell, exchange, mortgage, hypothecate, assign, transfer, and in
any manner deal in and with goods, wares, and merchandise, chooses in action,
and to make, do and transact all and every kind of business of whatever nature;
(4) to execute, acknowledge and deliver contracts of sale, escrow
instructions, deeds, leases including leases for minerals and hydrocarbon
substances and assignments of leases, covenants, agreements and assignments of
agreements, mortgages and assignments of mortgages, conveyances in trust to
secure indebtedness or other obligations, and assign the beneficial interest
thereunder, subordinations of liens or encumbrances, bills of lading, bills,
bonds, notes, receipts, evidences of debt, releases and satisfactions of
mortgages, requests to reconvey deeds of trust, partial or full, judgments, and
other debts, and other instruments in writing of whatever kind and nature, all
upon such terms and conditions and under such covenants as said attorneys shall
approve.
GIVING AND GRANTING to said attorneys full power and authority to do all and
every act and thing whatsoever requisite and necessary to be done relative to
any of the foregoing as fully to all intents and purposes as principal might or
could do if personally present.
All that said attorneys shall lawfully do or cause to be done under the
authority of this power of attorney is expressly approved.
Adobe Ventures, L.P.
Dated December 19, 1994 by: H&Q Adobe Ventures Management
--------------------- L.P., General Partner
STATE OF CALIFORNIA }
COUNTY OF SAN FRANCISCO }
On December 19, 1994, before me, By: /s/ Standish O'Grady
-------------------- -------------------------------
Standish O'Grady
President
Kathy Waldron (name, title of officer), personally
- --------------------
appeared Standish O'Grady
-------------------------------
[] personally known to me - OR - [] proved to me on the basis of
satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
WITNESS my hand and official seal.
/s/ Kathy Waldron
- ----------------------------------------
Signature
<PAGE>
Exhibit 23.1
Consent of Independent Auditors
We consent to the reference to our firm under the captions "Selected Financial
Data" and "Experts" and to the use of our report dated April 28, 1999, except as
to Note 13, as to which the date is June __, 1999, in Amendment No. 4 to the
Registration Statement on Form S-1 and related Prospectus of ESPS, Inc. dated
June 3, 1999.
Ernst & Young LLP
Philadelphia, Pennsylvania
The foregoing consent is in the form that will be signed upon the completion of
the stock split described in Note 13 to the financial statements.
/s/ Ernst & Young LLP
Philadelphia, Pennsylvania
June 3, 1999
