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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 10-Q
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[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED MARCH 31, 2000
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM
--------------- TO
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COMMISSION FILE NUMBER 0-28247
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MCAFEE.COM CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 77-0503003
(STATE OF INCORPORATION) (IRS EMPLOYER IDENTIFICATION NUMBER)
</TABLE>
2805 BOWERS AVENUE
SANTA CLARA, CALIFORNIA 95051
(408) 572-1500
(ADDRESS AND TELEPHONE NUMBER OF PRINCIPAL EXECUTIVE OFFICES)
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Indicate by check mark whether registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months, and (2) has been subject to such filing
requirements for the past 90 days.
YES [X] NO [ ]
As of April 30, 2000, the number of outstanding shares of the registrant's
Class A common stock, $.001 par value, was 7,701,005. The number of outstanding
shares of the registrant's Class B common stock, par value $.001, was
36,000,000, all of which are beneficially owned by Network Associates, Inc.
THIS DOCUMENT CONTAINS 35 PAGES.
THE EXHIBIT INDEX IS ON PAGE 35.
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MCAFEE.COM CORPORATION
FORM 10-Q, MARCH 31, 2000
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CONTENTS
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ITEM
NUMBER PAGE
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PART I: FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
Condensed Consolidated Balance Sheets:
March 31, 2000 and December 31, 1999........................ 3
Condensed Consolidated Statements of Operations and
Comprehensive Income:
Three months ended March 31, 2000 and March 31, 1999........ 4
Condensed Consolidated Statements of Cash Flows:
Three months ended March 31, 2000 and March 31, 1999........ 5
Notes to Condensed Consolidated Financial Statements........ 6
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS
OF OPERATIONS............................................... 12
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET
RISK........................................................ 16
PART II: OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS........................................... 33
ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS................... 33
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K............................ 33
SIGNATURES........................................................... 34
EXHIBIT INDEX........................................................ 35
</TABLE>
2
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MCAFEE.COM CORPORATION
CONDENSED CONSOLIDATED BALANCE SHEETS
(UNAUDITED)
(IN THOUSANDS, EXCEPT SHARE DATA)
ASSETS
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<CAPTION>
MARCH 31, DECEMBER 31,
2000 1999
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Current assets:
Cash and cash equivalents................................. $ 45,515 $ 67,321
Short-term marketable securities.......................... 8,959 6,427
Accounts receivable, net of allowance for doubtful
accounts and sales returns reserve of $600 at March 31,
2000 and $600 at December 31, 1999..................... 2,431 3,486
Prepaid expenses and other current assets................... 2,813 943
-------- --------
Total current assets.............................. 59,718 78,177
Long-term marketable securities............................. 23,389 12,751
Fixed assets, net........................................... 4,732 4,359
Intangible and other assets................................. 17,393 --
-------- --------
Total assets...................................... $105,232 $ 95,287
======== ========
LIABILITIES
Current liabilities:
Accounts payable.......................................... $ 2,560 $ 1,256
Accrued liabilities....................................... 9,103 8,447
Deferred revenue.......................................... 22,034 21,280
Payable to NAI............................................ 5,243 8,313
-------- --------
Total liabilities................................. 38,940 39,296
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STOCKHOLDERS' EQUITY
Preferred stock, $.001 par value:
Authorized: 5,000,000 shares;
None outstanding
Common stock, Class A; $.001 par value:
Authorized: 100,000,000 shares;
Issued and outstanding: 7,696,505 shares at March 31, 2000
and 7,206,250 at December 31, 1999........................ 8 7
Common stock, Class B; $.001 par value:
Authorized 65,000,000; 36,000,000 shares issued and
outstanding at March 31, 2000 and December 31, 1999.... 36 36
Additional paid-in capital.................................. 106,272 89,221
Other comprehensive loss.................................... (176) (56)
Accumulated deficit......................................... (39,848) (33,217)
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Total stockholders' equity........................ 66,292 55,991
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Total liabilities and stockholders' equity........ $105,232 $ 95,287
======== ========
</TABLE>
The accompanying notes are an integral part of these condensed consolidated
financial statements.
3
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MCAFEE.COM CORPORATION
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
AND COMPREHENSIVE INCOME
(UNAUDITED)
(IN THOUSANDS, EXCEPT PER SHARE DATA)
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<CAPTION>
THREE MONTHS ENDED
MARCH 31,
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2000 1999
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Revenue..................................................... $10,258 $ 3,468
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Cost of revenue:
Product costs............................................. 367 953
Technology costs.......................................... 1,996 1,226
License fee payable to NAI................................ 729 434
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Total cost of revenue....................................... 3,092 2,613
------- -------
Gross margin................................................ 7,166 855
Operating expenses:
Research and development.................................. 2,778 1,558
Marketing and sales....................................... 9,582 2,398
General and administrative................................ 1,988 349
Amortization of intangibles............................... 748 --
Stock-based compensation.................................. -- 456
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Total operating costs and expenses................ 15,096 4,761
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Loss from operations.............................. (7,930) (3,906)
Interest and other income and expense, net.................. 1,299 --
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Net loss.......................................... $(6,631) $(3,906)
======= =======
Other comprehensive income:
Unrealized losses on securities........................... $ (113) $ --
Foreign currency translation loss......................... (7) --
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Comprehensive loss.......................................... $(6,751) $(3,906)
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Net loss per share.......................................... $ (0.15) $ (0.11)
======= =======
Shares used in per share calculation -- basic and diluted... 43,483 36,000
======= =======
</TABLE>
The accompanying notes are an integral part of these condensed consolidated
financial statements.
4
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MCAFEE.COM CORPORATION
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
(IN THOUSANDS)
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<CAPTION>
THREE MONTHS ENDED
MARCH 31,
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2000 1999
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Cash flows from operating activities:
Net loss.................................................... $(6,631) $(3,906)
Adjustments to reconcile net income to net cash provided
from operating activities:
Depreciation and amortization............................. 1,268 58
Stock-based compensation.................................. -- 456
Changes in assets and liabilities:
Accounts receivable.................................... 1,323 (5)
Prepaid expenses and other assets...................... (1,987)
Accounts payable and accrued liabilities............... 1,720 1,281
Deferred revenue....................................... 754 10,054
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Net cash (used in) provided by operating
activities....................................... (3,553) 7,938
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Cash flows from investing activities:
Purchases and other changes of marketable securities,
net.................................................... (13,253) --
Additions to fixed assets................................. (893) --
Acquisition of Signal 9 Solutions, net of cash acquired... (1,981) --
------- -------
Net cash used in investing activities............. (16,127) --
------- -------
Cash flows from financing activities:
Change in amount due to NAI............................... (3,070) (7,938)
Proceeds from issuance of common stock under stock option
and stock purchase plans............................... 1,044 --
Other..................................................... (65) --
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Net cash used in financing activities............. (2,091) (7,938)
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Effect of exchange rate fluctuations...................... (35) --
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Net increase in cash and cash equivalents................... (21,806) --
Cash and cash equivalents at beginning of period............ 67,321 --
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Cash and cash equivalents at end of period.................. $45,515 $ --
======= =======
Non cash investing and financing activities:
Unrealized loss on available-for-sale securities.......... $ (83) $ --
------- -------
Acquisition of Signal 9 Solutions by issuance of common
stock.................................................. $16,074 $ --
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Contribution of fixed assets from NAI..................... $ -- $ 247
------- -------
</TABLE>
The accompanying notes are an integral part of these condensed consolidated
financial statements.
5
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MCAFEE.COM CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
1. DESCRIPTION OF THE COMPANY AND BASIS OF PRESENTATION
Description of the Company
McAfee.com Corporation, a publicly traded, majority owned subsidiary of
Networks Associates, Inc. ("NAI"), was incorporated in December 1998, and
commenced operations as a separate legal entity in January 1999. Prior to
January 1, 1999, this business was operated as a part of NAI.
The Company is an Internet destination site, which allows users to secure,
repair, update, upgrade and manage their personal computers (PCs) over the
Internet. The Company's electronic commerce activities include, software
licensing, sponsorship and co-hosting, and advertising. The Company's objective
is to become the leading and most trusted online destination where consumers
secure, repair, update, upgrade and manage their PCs and other Internet access
devices.
Basis of Presentation
The unaudited consolidated financial statements have been prepared by the
Company without audit in accordance with instructions to Form 10-Q and Article
10 of Regulation S-X. The consolidated financial statements include the accounts
of the Company and its wholly owned subsidiaries. All significant intercompany
accounts and transactions have been eliminated. In the opinion of management,
all adjustments, consisting only of normal recurring adjustments considered
necessary for a fair presentation, have been included.
The accompanying interim financial statements should be read in conjunction
with the financial statements and related notes included in the Company's Annual
Report on Form 10-K for the year ended December 31, 1999. Certain information
and footnote disclosures normally included in annual financial statements
prepared in accordance with generally accepted accounting principles have been
condensed or omitted as permitted by rules and regulations of the Securities and
Exchange Commission. The results of operations for the three months ended March
31, 2000 are not necessarily indicative of the results to be expected for the
full year or for any future periods.
2. RECENT ACCOUNTING PRONOUNCEMENTS
In June 1998, the Financial Accounting Standards Board ("FASB") issued
Statement of Financial Accounting Standards ("SFAS") No. 133, "Accounting for
Derivative Instruments and Hedging Activities." SFAS 133 establishes methods of
accounting for derivative financial instruments and hedging activities related
to those instruments as well as other hedging activities, and is effective for
all fiscal quarters of all fiscal years beginning after June 15, 2000. The
Company believes the adoption of this pronouncement will not have a material
impact on the Company's financial position and results of operations.
In December 1999, the Securities and Exchange Commission issued Staff
Accounting Bulletin No. 101 (SAB 101), "Revenue Recognition in Financial
Statements." SAB 101 provides guidance for revenue recognition under certain
circumstances. The Company is currently evaluating the impact of SAB 101 on its
financial statements and related disclosures, but does not expect that such
impact, if any, will be material. The accounting and disclosures prescribed by
SAB 101 will be effective for the Company's fiscal year ending December 31,
2000.
In March 2000, the FASB issued FASB Interpretation No. 44, "Accounting for
Certain Transactions Involving Stock Compensation, an interpretation of APB
Opinion No. 25" ("Interpretation"). The Interpretation is intended to clarify
certain problems that have arisen in practice since the issuance of APB 25. The
Interpretation provides guidance, some of which is a significant departure from
current practice. The Interpretation generally provides for prospective
application for grants or modifications to existing stock
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MCAFEE.COM CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(UNAUDITED)
options or awards made after June 30, 2000. However, for certain transactions
the guidance is effective after December 15, 1998 and January 12, 2000. The
Company believes the adoption of this pronouncement will not have a material
impact on the Company's financial position and results of operations.
3. BUSINESS COMBINATIONS
Signal 9 Solutions, Inc.
On February 15, 2000, the Company acquired all of the outstanding capital
stock of Signal 9 Solutions Canada, Inc. ("Signal 9"), a privately held provider
of personal firewall software, for $2.0 million in cash and 385,001 shares of
the Company's Class A common stock. The acquisition was accounted for using the
purchase method of accounting and the total purchase price was approximately
$18.3 million, including transaction costs. The Company analyzed the intangible
assets to determine whether any amount should be recorded as in-process research
and development, however the Company determined that the acquired technologies
and products are largely dependent on the core technology and that new versions
are released frequently and contain incremental rather than fundamental
improvements. Based on this analysis $18.0 million was recorded as purchased
technology and goodwill, and is being amortized on a straight-line basis over
three years.
As of March 31, 2000 the Company finalized it purchase price allocation as
follows (in thousands):
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Cash....................................................... $ 2,000
Stock...................................................... 16,074
Transaction cost........................................... 237
-------
Total purchase price....................................... $18,311
=======
Net assets acquired and liabilities assumed................ $ 302
-------
Intangibles................................................ 18,009
-------
Total allocation of purchase price......................... $18,311
=======
</TABLE>
Pro forma information with respect to revenue and net loss, as if the
Company had acquired Signal 9 on January 1, 1999 does not materially differ from
the historical information presented, subject to the amortization of goodwill,
which would have been approximately $1.5 million in each of the three months
ended March 31, 2000 and March 31, 1999.
4. SEGMENT AND MAJOR CUSTOMER INFORMATION
The Company identifies its operating segments based on business activities,
management responsibility and geographical location. The Company has organized
its operations into a single operating segment, providing delivery of
personalized e-commerce offerings and local content. Further, the Company
derives the significant majority of its revenues from operations in the United
States.
At March 31, 2000, two customers had accounts receivable balances
representing 20% and 13% of our total accounts receivable balance. No other
customer had an accounts receivable balance that exceeded 10% at March 31, 2000.
For the three months ended March 31, 2000 the largest customer accounted for 28%
of our total revenue.
5. NET LOSS PER SHARE
Net loss available to common shareholders and weighted average shares
outstanding are the same for basic and fully diluted earnings per share
calculations for all periods presented.
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MCAFEE.COM CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(UNAUDITED)
The fully diluted earnings per share calculations for the three months
ended March 31, 2000 and the three months ended March 31, 1999 excludes
outstanding options to purchase 5,373,035 and 4,320,000 shares, respectively.
6. RELATED PARTY TRANSACTIONS
The Company has entered into certain agreements with Network Associates,
Inc. ("NAI") for the purpose of defining their ongoing relationship. These
agreements were developed in the context of a parent/subsidiary relationship and
therefore are not the result of arms-length negotiations between independent
parties. Although these agreements or the transactions contemplated by these
agreements may not have been effected on terms at least as favorable to the
Company as could have been obtained from unaffiliated third parties, the Company
believes that these agreements taken as a whole are fair to both parties and
that the amount of the expenses contemplated by the agreements would not be
materially different if the Company operated on a stand-alone basis.
Corporate Management Services Agreement. On January 1, 1999, the Company
entered into a Corporate Management Services Agreement with NAI under which NAI
provides the Company certain administrative services. Under this agreement, NAI
provides to the Company services relating to tax, accounting, insurance,
employee benefits administration, corporate record-keeping, payroll, information
technology infrastructure, and facilities management. In addition, the Company
may request certain additional services to be provided from time-to-time in the
future, with the fee for such additional services subject to negotiation between
the parties. The initial monthly fee that the Company is required to pay for
these services under the agreement is a portion of the costs to NAI plus a 10%
mark-up. The Company's share of such costs is calculated based on headcount.
Under this agreement NAI charged the Company $1.4 million in the three months
ended March 31, 2000 and $506,000 in the three months ended March 31, 1999.
The corporate management services agreement may be terminated either by the
Company upon 30 days notice, or by NAI when it ceases to own a majority of the
Company's outstanding voting stock. Following a termination of this agreement,
the Company may be unable to secure these services from others on acceptable
terms. If the Company is unsuccessful in obtaining acceptable provision of these
services upon termination of the corporate management services agreement, the
Company's future financial performance could be adversely affected.
Cross License Agreement. The Company entered into a technology cross
license agreement with NAI through one of NAI's wholly owned subsidiaries. Under
this agreement, NAI has granted the Company worldwide non-exclusive patent
licenses and exclusive copyright licenses for the sale or licensing of software
products or software services to certain OEMs and end users solely via the
Internet. Eligible end users include only single-node, individual consumers. In
consideration for the license and rights granted under this license, the Company
is required to pay NAI a royalty on revenues from related product and
subscription sales, initially at a rate of 20% commencing on January 1, 1999 and
declining 1.625% per quarter until the rate is 7% in the quarter beginning
January 1, 2001, and remaining at 7% thereafter. The rate for the three months
ended March 31, 2000 is 13.5%. Also under this agreement, the Company has
granted NAI non-exclusive patent licenses and exclusive copyright licenses for
the sale of products to enterprise customers through any method of distribution
including the Internet and to end users through any method excluding the
Internet. In consideration for the rights granted under this license, NAI is
required to pay the Company a royalty of $250,000 per quarter.
The Company was charged royalties under this agreement of $979,000 in the
three months ended March 31, 2000 and $684,000 in the three months ended March
31, 1999.
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MCAFEE.COM CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(UNAUDITED)
Asset Contribution and Receivables Settlement Agreement. The Company
entered into an asset contribution agreement with NAI effective as of January 1,
1999 that transfers ownership of certain assets to the Company. Among the assets
transferred to the Company are: a number of co-hosting and technology agreements
to which NAI is a party; revenues from advertising and sponsorship agreements
involving the Company; ownership rights in 3 patent applications; computers and
Internet infrastructure hardware; and any other assets which both NAI and the
Company's board of directors agree to transfer at a future date. All assets
transferred from NAI have been recorded as a permanent contribution to capital,
at NAI's carryover basis. No liabilities were transferred to the Company, except
for those directly resulting from the assets transferred.
Revolving Loan Agreement. In January 1999, the Company entered into a
revolving loan agreement with NAI. Under the agreement, NAI has agreed to make
available to the Company up to $30 million in cash as a revolving loan. The
interest rate under this revolving loan is equal to the one-month LIBOR rate.
The revolving loan is repayable in full on January 1, 2001, the termination date
of the agreement. As of March 31, 2000, no amounts were outstanding under this
agreement.
Tax Sharing Agreement. The Company and NAI have entered into a tax sharing
agreement under which the Company calculates income taxes on a separate return
basis. The Company will be included in NAI's consolidated group for federal
income tax purposes for so long as NAI beneficially owns at least 80% of the
total voting power and the value of the outstanding common stock. Each member of
a consolidated group is jointly and severally liable for the federal income tax
liability of each other member of the consolidated group. Accordingly, although
the tax sharing agreement allocates tax liabilities between the Company and NAI,
during the period in which the Company is included in NAI's consolidated group,
the Company could be liable in the event that any federal tax liability is
incurred, but not discharged, by any other members of NAI's consolidated group.
Under the tax sharing agreement, NAI and each other member has agreed to
indemnify the Company if the Company is required to pay any tax liability amount
in excess of its hypothetical separate income tax liability, provided the
Company is not in default in its obligation to pay such hypothetical separate
income tax liability to NAI.
The tax sharing agreement will terminate if the Company is no longer
eligible to join NAI in the filing of a consolidated federal income tax return.
In the event of such termination, any net operating losses or other carryforward
amounts would not be available to the Company upon departure from the group.
Under the tax sharing agreement, the Company will not be reimbursed for any such
loss of tax benefits.
Joint Cooperation Agreement. The Company has entered into a Joint
Cooperation and Master Services Agreement with NAI which governs the provision
of technology services among the parties. Under this agreement, NAI's anti-virus
emergency response team (AVERT) will provide us with research and solutions for
virus events. The agreement also contains standard terms and conditions
governing the provision of technology services from one party to the other under
statements of work that may be negotiated from time to time. Currently we have
entered into one such statement of work under which we provide Network
Associates the infrastructure and technical support services for Network
Associates' web site (www.nai.com). Network Associates pays us a fee for these
services in an amount equal to ten percent of our total quarterly technology
costs plus a ten percent service charge. Although we are obligated to provide
these services until December 31, 2000 under this statement of work, the Company
and NAI have agreed that NAI will take over the running of the NAI web site as
of May 1, 2000. The charge to NAI under this statement of work was approximately
$247,000 for the three months ended March 31, 2000 and approximately $151,000
for the three months ended March 31, 1999. This amount has been offset against
technology costs.
Indemnification and Voting Agreement. The Company has entered into an
indemnification and voting agreement with NAI which became effective on December
2, 1999. Except under certain specified
9
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MCAFEE.COM CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(UNAUDITED)
circumstances, NAI will indemnify the Company for all losses related to any
third party claims relating to events or circumstances arising out of actions or
inaction of NAI, including its subsidiaries and officers and directors, on or
prior to December 2, 1999. Additionally, for so long as NAI owns at least 20% of
the Company's outstanding voting power, it will vote its shares of the Company's
common stock in favor of the election of two independent directors.
Registration Rights Agreement. The Company has entered into a registration
rights agreement with NAI that entitles NAI to include its shares of Company
common stock in any future registration of common stock made by the Company,
other than any registration statement relating to an acquisition or a stock
option plan. In addition, at any time after May 2, 2000, NAI or certain
transferees can request that the Company file a registration statement so they
can publicly sell their shares. The Company has agreed pursuant to the terms of
this registration rights agreement to pay all costs and expenses, other than
underwriting discounts and commissions, related to shares to be sold by NAI or
certain transferees in connection with any such registration.
Japanese Distribution Agreement. On April 28, 2000, the Company entered
into a Master Distribution Agreement, retroactive to January 1, 2000, with NAI
KK, a majority-owned Japanese subsidiary of NAI. Under the terms of the
agreement, NAI KK will be the exclusive distributor of the Company's products in
the Japanese PC OEM channel for an initial term of three years. The Company will
receive a license fee of fifty percent (50%) of net sales revenue received by
NAI KK from its distribution in this channel. The Company, in turn, will pay NAI
KK a revenue share of ten percent (10%) of net sales revenue it initially
receives from PC OEM customers that subsequently purchase a subscription to
McAfee Clinic.
Lease Agreement. In February 2000, the Company entered into a lease
agreement to rent a facility of approximately 55,000 square feet commencing on
or about May 1, 2000. This lease is set to expire in 2006. The lease agreement
required a letter of credit for approximately $305,000. This letter of credit
has been guaranteed by NAI.
7. LITIGATION
From time to time, we may be involved in legal proceedings and litigation
arising in the ordinary course of business. As of the date of this report, we
are not a party to any litigation or other legal proceeding, including product
liability claims, that, in our opinion, could have a material adverse effect on
our business, operating results or financial condition.
Network Associates is a party to several litigation matters, described
below, that relate to the anti-virus software technology they license to us.
Network Associates has indicated that it intends to defend these lawsuits
vigorously. Under the terms of our intercompany license agreement and
indemnification and voting agreement, Network Associates has agreed to indemnify
us with respect to these existing matters. See Related Party Transactions.
Trend Micro, Inc. v. Network Associates. On May 13, 1997, Trend Micro, Inc.
("Trend") filed suit in United States District Court for the Northern District
of California against both Network Associates and Symantec. Trend alleges that
Network Associates' "WebShield," "GroupShield," and "Gauntlet Firewall" products
infringe a Trend patent which was issued on April 22, 1997. Trend's complaint
seeks injunctive relief and unspecified money damages. On June 6, 1997, Network
Associates filed its answer denying any infringement. Network Associates also
filed counterclaims against Trend alleging unfair competition, false
advertising, trade libel, and interference with prospective economic advantage.
On September 19, 1997, Symantec filed a motion to sever Trend's action against
Network Associates from its action against Symantec. Network Associates did not
oppose Symantec's motion to sever, other than to recommend a joint hearing on
patent claim interpretation. On December 19, 1997, the Court granted Symantec's
motion to sever and
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MCAFEE.COM CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(UNAUDITED)
adopted Network Associates' recommendation regarding a joint hearing on patent
claim interpretation. As a result of the Court's decision, Trend's actions
against Network Associates and Symantec were to proceed separately. Symantec has
since settled out of the lawsuit.
The Court held a patent claim interpretation hearing on September 1, 1998.
The Court issued a ruling on claim interpretation on or about December 29, 1998.
In addition, Trend filed a supplemental complaint on October 5, 1998, adding the
Gauntlet product to the products accused of infringing Trend's patent. At a case
management conference held on October 2, 1998, the Court set a new trial date of
November 8, 1999. The trial has since been postponed and is now scheduled for
May 1, 2000. The parties are engaged in completing expert discovery and
preparing for trial.
Hilgraeve v. Network Associates. On September 15, 1997, Network Associates
was named as a defendant in a patent infringement action filed by Hilgraeve
Corporation ("Hilgraeve") in the United States District Court, Eastern District
of Michigan. Hilgraeve alleges that Network Associates' VirusScan product
infringes a Hilgraeve patent which was issued on June 7, 1994. Hilgraeve's
action seeks injunctive relief and unspecified money damages. All discovery has
been completed. The Court heard Network Associates' motions for summary judgment
of non-infringement on May 20, 1999 and granted the motion in a written opinion
dated June 10, 1999. The Court entered judgment in favor of Network Associates
on July 7, 1999. Hilgraeve has filed an appeal from the judgment to the United
States Court of Appeals for the Federal Circuit. That appeal is pending.
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MCAFEE.COM CORPORATION
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
The following discussion should be read in conjunction with the condensed
consolidated financial statements and related notes included elsewhere in this
report. The results shown herein are not necessarily indicative of the results
to be expected for the full year or any future periods.
This Report on Form 10-Q contains forward-looking statements, including but
not limited to those specifically identified as such, that involve risks and
uncertainties. The statements contained in this Report on Form 10-Q that are not
purely historical are forward-looking statements within the meaning of Section
27A of the Securities Act and Section 21E of the Exchange Act, including without
limitation statements regarding the Company's expectations, beliefs, intentions
or strategies regarding the future. All forward-looking statements included in
this Report on Form 10-Q are based on information available to the Company on
the date hereof, and the Company assumes no obligation to update any such
forward-looking statements. The Company's actual results could differ materially
from those anticipated in these forward-looking statements as a result of a
number of factors, including, but not limited to, those set forth in "Risk
Factors" and elsewhere in this Report on Form 10-Q.
OVERVIEW
We are currently a majority-owned subsidiary of NAI. We were incorporated
in December 1998 and, effective January 1, 1999 NAI contributed to us its
consumer e-commerce business, which began operations in January 1996. To date,
NAI has provided a number of administrative and support services to us and we
will continue to rely on NAI to provide many of these services for the
foreseeable future. These services are based on NAI's management's estimate of
the cost of these services and are using a percentage of total expenses for the
services provided, based on headcount. See Note 6 of notes to financial
statements. In light of the above, you should not consider our historical
financial statements to be representative of future results.
We are a provider of hosted, version-less PC security and management
products and services over the Internet. We derive our revenue from:
- software subscriptions for our hosted PC security and management
applications provided on our web site, including McAfee Clinic and Oil
Change, our initial hosted subscription service;
- products, software and subscription licenses sold through the McAfee
Store as well as through e-retail distributors, such as Beyond.com and
America Online, and computer original equipment manufacturers, or OEMs,
such as Hewlett-Packard. The McAfee Store is the location on our web site
where consumers can purchase McAfee-branded products through secure,
credit-card based transactions;
- sponsorship arrangements in which we provide access to other vendors' web
sites;
- co-hosting arrangements where products and services are branded under
both our brand and that of our partners; and
- banner advertising and other advertising space on our web site sold by us
or our partners to third parties.
Historically, substantially all of our net revenue has come from software
licenses sold through the McAfee Store, OEMs and other e-retail distributors. In
particular, sales of our anti-virus products accounted for approximately 37% of
our revenue in the three months ended March 31, 2000. Furthermore, during the
three months ended March 31, 2000, approximately 28% of our net revenue was
derived from the sale of software licenses through Beyond.com.
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RESULTS OF OPERATIONS
The following table sets forth for the periods indicated the percentage of
net revenue represented by certain items in our Statement of Operations.
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31,
-------------------
2000 1999
------ -------
<S> <C> <C>
Net revenue....................................... 100.0% 100.0%
Cost of net revenue:
Product......................................... 3.5 27.5
Technology costs................................ 19.5 35.4
License fees.................................... 7.1 12.5
----- ------
Total cost of net revenue............... 30.1 75.4
----- ------
Operating expenses:
Research and development........................ 27.1 44.9
Marketing and sales............................. 93.4 69.1
General and administrative...................... 19.4 10.1
Amortization of intangibles..................... 7.3 --
Stock-based compensation........................ -- 13.1
----- ------
Total operating expenses................ 147.2 137.2
----- ------
Loss from operations.............................. (77.3) (112.6)
Interest and other income and expense, net........ 12.7 --
----- ------
Net loss................................ (64.6)% (112.6)%
===== ======
</TABLE>
Net Revenue. Net revenue increased to $10.3 million in the three months
ended March 31, 2000 from $3.5 million in the three months ended March 31, 1999.
This increase was primarily a result of the official launch of our website in
the second quarter of 1999, revenue related to subscriptions for McAfee Clinic
which we began charging for in September 1999, as well as revenue from
sponsorship and co-hosting arrangements and advertising on our site.
Cost of Net Revenue. Cost of net revenue includes product costs, technology
costs and license fees to NAI (See Note 6 to notes to financial statements).
Technology costs are included in cost of net revenue because these costs
represent the cost of selling our products and services over the Internet.
Technology costs consist of Internet connection charges, co-location costs for
maintaining server sites, salary and benefit expenses for personnel maintaining
our web site and other related costs associated with the maintenance of the web
site. Although on a percentage basis, cost of net revenue decreased due to
higher net revenue. Cost of net revenue increased to $3.1 million in the three
months ended March 31, 2000 from $2.6 million in the three months ended March
31, 1999. The increase in cost of net revenue was due to an increase in
technology costs relating to the continuing investment in our infrastructure, as
well as license fees payable to NAI due to increased revenues, partially offset
by a reduction in product costs as a result of Beyond.com becoming a reseller in
May 1999. Prior to May 1999, product costs include charges from Beyond.com for
processing and fulfilling sales transactions, including credit card processing
fees and fulfillment costs.
We expect that cost of net revenue will continue to increase in absolute
dollars, but may fluctuate as a percentage of net revenue over time as we
continue to expand our operations.
Research and Development. Research and development costs consist primarily
of salary and benefits for our development and technical staff, computer and
equipment depreciation as well as allocated overhead expenses. Research and
development expenses increased to $2.8 million in the three months ended March
31, 2000 from $1.6 million in the three months ended March 31, 1999. This
increase was primarily due to a significant investment in research and
development headcount and infrastructure as we continue to expand and enhance
our product and service offerings. As a percentage of net revenue, research and
development
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<PAGE> 14
expenses were 27% in the three months ended March 31, 2000 and 45% in the three
months ended March 31, 1999.
We are focusing our research and development resources on providing
next-generation software services for Internet access devices initially focused
on PC security and management delivered via the Internet, contextual e-commerce
and contextual advertising. We expect that our research and development expenses
will grow in absolute dollars as we continue to invest in development and
enhancement of our products and services, but may fluctuate as a percentage of
net revenue. We also expect an increase in research and development expenses
related to the anticipated future international expansion of our business. The
timing and amount of our research and development expenses may vary
significantly based upon the number of new products and significant upgrades
under development and products acquired, if any, during a given period.
Marketing and Sales. Marketing and sales expenses consist primarily of
salary, commissions and benefits for marketing and sales employees as well as
expenses associated with advertising and promotions. Marketing and sales
expenses increased to $9.6 million in the three months ended March 31, 2000,
from $2.4 million in the three months ended March 31, 1999. This increase was
primarily due to a significant investment in the marketing of our products and
services, including advertising and promotions, as well as development of
strategic relationships with a variety of Internet companies, including America
Online, or AOL, and Excite@Home, or Excite. We have also continued our
advertising campaign to build brand awareness and increased the number of sales
and marketing personnel. As a percentage of net revenue, marketing and sales
expenses were 93% in the three months ended March 31, 2000 and 69% in the three
months ended March 31, 1999.
We expect marketing and sales expenses to increase in absolute dollars over
time as we continue to aggressively market our products and services to attract
new paid subscribers; continue to establish strategic relationships with third
parties; and expand internationally. However, we expect that our marketing and
sales expenses may fluctuate as a percentage of net revenue.
General and Administrative. General and administrative expenses consist
principally of charges under the corporate services agreement with NAI and of
salary and benefit expenses for administrative personnel. Under the corporate
services agreement, NAI is providing services relating to tax, accounting,
insurance, employee benefits administration, corporate record-keeping, payroll,
information technology infrastructure, and facilities management. The expenses
are allocated based on relative headcount and include a 10% mark-up from NAI's
allocated expenses. In turn, we allocate a portion of these charges related to
facilities and information technology infrastructure to marketing and sales and
research and development. This allocation is based on the headcount of these
departments. Although we believe that we benefit from the services provided by
NAI, the corporate services agreement gives us the right to obtain these
services from a third party, and we may do so to the extent that we are able to
obtain these services on more economical terms.
General and administrative expenses increased to $2.0 million in the three
months ended March 31, 2000 from $349,000 in the three months ended March 31,
1999. This increase was primarily due to public company expenses as well as an
increase in the charge from NAI as a result of a significant increase in
headcount resulting from our increased investment in infrastructure and
expansion of operations. As a percentage of net revenue, general and
administrative expenses were 19% in the three months ended March 31, 2000 and
10% in the three months ended March 31, 1999. We expect that general and
administrative expenses will increase in absolute dollars in the future, but may
fluctuate as a percentage of net revenue, as we expand our operations.
Stock-Based Compensation. In January 1999, five officers of NAI were
granted options to purchase 3,420,000 shares of our Class A common stock. These
options originally vested over four years. Since these officers are not our
employees, those options are accounted for at fair market value. The
determination of the total compensation to be recognized in connection with
these grants requires the remeasurement of the fair value of the options each
reporting period until the options are fully vested. Compensation expense is
reflected in our results of operations over the vesting period. We recorded
compensation expense of approximately $456,000 in the three months ended March
31, 1999. On September 22, 1999, with the agreement of the option holders, we
cancelled options for 1,710,000 shares and amended the remaining options to make
them
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<PAGE> 15
fully vested. As a result of this change we recorded a charge of approximately
$5.7 million, including a charge for options to purchase 388,500 shares granted
to NAI employees in September, October and December 1999.
Amortization of intangibles. We expensed approximately $748,000 of
amortization related to intangibles in the three months ended March 31, 2000.
Intangibles consist of purchased goodwill and certain technology acquired
through the acquisition of Signal 9 in February 2000.
Interest and other income and expense, net. Interest and other income and
expense, net, increased to $1.3 million in the three months ended March 31, 2000
from zero in the three months ended March 31, 1999. This increase is due to
interest income from the investment of the net proceeds from the issuance of
common stock in our initial public offering in December 1999.
Taxes. Our operations are included in NAI's consolidated U.S. tax returns.
No income tax provision has been included in our financial statements because
net losses were incurred throughout the reporting period. We have entered into a
tax sharing agreement with NAI effective as of December 2, 1999. See Note 6 for
a more detailed description of the NAI tax sharing agreement.
LIQUIDITY AND CAPITAL RESOURCES
At March 31, 2000, we had $45.5 million in cash and cash equivalents and
$32.3 million in marketable securities, for a combined total of $77.8 million.
$5.2 million is due to NAI related to cash payments made on our behalf by NAI,
as well as intercompany charges from NAI, in the three months ended March 31,
2000, net of a payment of $7.0 million made to NAI in March to settle previously
outstanding amounts. At March 31, 2000, we also had in place an intercompany
revolving loan agreement under which NAI has agreed to make up to $30 million
available to us. The interest rate under this revolving loan is equal to the
one-month LIBOR rate, which fluctuates daily and was 6.13% on March 31, 2000.
The revolving loan is payable in full on January 1, 2001, the termination date
of the agreement. As of March 31, 2000, there were no amounts outstanding under
the revolving loan agreement.
Net cash used in operating activities was $3.6 million in the three months
ended March 31, 2000, resulting primarily from the net loss of $6.6 million as
well as an increase in prepaid and other assets, partially offset by
depreciation and amortization and a decrease in accounts receivable and
increases in accounts payable and accrued liabilities and deferred revenue.
Net cash provided by operating activities was $7.9 million in the three
months ended March 31, 1999, resulting primarily from a $10.1 million increase
in deferred revenue, partially offset by net loss before depreciation and
amortization and stock-based compensation.
Net cash used in investing activities was $16.1 million in the three months
ended March 31, 2000, resulting from purchases and other changes in marketable
securities, purchases of fixed assets as well as the purchase of Signal 9
Solutions. Net cash used in investing activities was zero in the three months
ended March 31, 1999.
Net cash used in financing activities was $2.1 million in the three months
ended March 31, 2000 resulting primarily from the change in the amount payable
to NAI partially offset by proceeds from issuance of common stock under our
stock option and stock purchase plans. Net cash used in financing activities was
$7.9 million in the three months ended March 31, 1999 resulting from the change
in the amount payable to NAI.
We believe our available cash and anticipated cash flow from operations
will be sufficient to fund our working capital and capital expenditure
requirements for at least the next 12 months, although this may not be
sufficient to fund our working capital beyond the next 24 months. However, we
may seek to raise additional capital during that period. We cannot assure you
that we will not require additional funds during the next 12 months. Even if
these additional funds are not required, we may decide to seek additional equity
or debt financing. There can be no assurance that such financing will be
available on acceptable terms, if at all, or that such financing will not be
dilutive to our stockholders.
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<PAGE> 16
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
There have been no material changes in the Company's market risk during the
three months ended March 31, 2000. For additional information, refer to
Management's Discussion and Analysis of Financial Condition and Results of
Operations of the Company's Form 10-K for the year ended December 31, 1999.
RISK FACTORS
The following risk factors should be considered in conjunction with the
information in this Report on Form 10-Q.
RISKS RELATED TO OUR RELATIONSHIP WITH NETWORK ASSOCIATES
We are currently a majority-owned subsidiary of Network Associates. We were
incorporated in December 1998 and effective January 1, 1999, Network Associates
contributed the assets of its consumer e-commerce business to us.
WE DO NOT OWN MUCH OF THE CORE TECHNOLOGY AND INTELLECTUAL PROPERTY UNDERLYING
OUR CURRENT PRODUCTS AND OUR CURRENTLY PLANNED PRODUCTS
Much of the core technology and intellectual property underlying our
current products and our currently planned products is licensed to us by Network
Associates under a license agreement. This license agreement has a perpetual
term subject to specific termination provisions contained in the agreement. This
license agreement:
- restricts our use of the licensed technology to providing single-user
consumer licenses for our products and services sold over the Internet or
for Internet-based products and licensing the technology to original
equipment manufacturers for sale to individual consumers;
- allows Network Associates to continue to sell "shrink-wrapped" boxed
products incorporating the licensed technology through non-online
distribution channels, such as retail stores;
- prevents us from offering products from companies other than Network
Associates if Network Associates offers a competitive product;
- grants to Network Associates a license to all technology that we create
based on the copyrights that we license from Network Associates;
- does not enable us to independently enforce Network Associates'
intellectual property rights in the licensed technology against third
parties; and
- allows Network Associates to terminate the cross license if we fail to
cure any material breach of the cross license within 30 days after being
notified by Network Associates of the breach, subject to mandatory
dispute resolution prior to the effectiveness of any proposed
termination.
Despite precautions that we and Network Associates may take, third parties
could copy or otherwise obtain or use the proprietary information without
authorization or develop similar technology independently. If Network Associates
fails to adequately and timely protect the technology it licenses to us, our
business may be adversely affected.
OUR AGREEMENTS WITH NETWORK ASSOCIATES ARE NOT THE RESULT OF ARM'S LENGTH
NEGOTIATIONS AND AS A RESULT THE AGREEMENTS MAY BE LESS FAVORABLE TO US THAN IF
THE AGREEMENTS WERE NEGOTIATIONS WERE AT ARM'S LENGTH
Our agreements with Network Associates were negotiated when we were a
wholly-owned subsidiary of Network Associates and one of our two directors at
that time was a director and the chief executive officer of Network Associates.
In addition, Srivats Sampath, our president and the other director at the time,
was employed by Network Associates prior to joining McAfee.com in December 1998.
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<PAGE> 17
WE MAY BE UNABLE TO PURSUE BUSINESS OPPORTUNITIES AVAILABLE TO US BECAUSE OF OUR
RELATIONSHIP WITH NETWORK ASSOCIATES
We do not currently have a policy in place with Network Associates to
govern the pursuit or allocation of business opportunities between the two
companies, except to the extent the license agreement restricts each party from
selling licensed products in specified markets or prevents us from offering
products based on technology competitive with that provided to us by Network
Associates under the license agreement. Our ability to take advantage of a
specific business opportunity may be affected by Network Associates'
representation on our board of directors, its voting control over us and our
comparatively limited resources. As a result, we may be unable to successfully
pursue business opportunities available to both Network Associates and us.
OUR HOSTED PRODUCTS AND SERVICES CURRENTLY COMPETE WITH SOME OF NETWORK
ASSOCIATES' EXISTING PRODUCTS AND MAY COMPETE WITH FUTURE NETWORK ASSOCIATES'
PRODUCTS AND SERVICES, WHICH WOULD SIGNIFICANTLY LIMIT OUR BUSINESS
OPPORTUNITIES
Network Associates will continue to offer competing products through
traditional non-online distribution channels, such as retail stores. These
products include "shrink wrapped," boxed versions of McAfee VirusScan and McAfee
Office, a suite of products which incorporates a number of the features included
in our online products and services. We compete with these Network Associates
products based on a number of factors, including price, preferred method of
software delivery, and consumer convenience. Network Associates also provides
hosted online products and services to business users through its MyCIO.com
subsidiary. Our license agreement with Network Associates currently restricts
our use of the licensed technology to providing single-user consumer licenses
and grants Network Associates a license to the proprietary technology which
enables us to provide hosted products and services. As a result, absent Network
Associates' consent, we are unable to pursue business customers for our online
products and services and we may experience customer confusion, each of which
would harm our business or limit our business opportunities.
NETWORK ASSOCIATES' ABILITY TO EXERT CONTROL OVER COULD RESULT IN ACTIONS THAT
ARE NOT CONSISTENT WITH THE INTERESTS OF OUR OTHER STOCKHOLDERS, PARTICULARLY
WITH RESPECT TO A CHANGE OF CONTROL
Network Associates' substantial voting control over us could conflict with
the interests of our other stockholders. Our capital stock consists of Class A
common stock and Class B common stock. Holders of Class A common stock are
entitled to one vote per share, and Network Associates, as the sole holder of
Class B common stock, is entitled to three votes per share. In the event that
Network Associates transfers Class B common stock to a third party, the
transferred Class B common stock automatically converts to Class A common stock
upon transfer. As of March 31, 2000, Network Associates owned 36,000,000 shares,
or 100%, of the outstanding Class B common stock, representing approximately 93%
of the overall voting power of our outstanding stock. As long as the shares of
Class B common stock held by Network Associates represent more than 25% of our
outstanding voting capital stock, Network Associates will have a majority of the
voting power represented by our outstanding stock. This voting power will enable
Network Associates to:
- elect our entire board of directors and, as a result, control matters
requiring board approval, subject to Network Associates' contractual
obligation to vote in favor of at least two independent directors or at
least a majority of independent directors if a change of control of
Network Associates takes place that is not approved by the Network
Associates continuing directors;
- control matters submitted to a stockholder vote, including mergers and
consolidations with third parties and the sale of all or substantially
all of our assets; and
- otherwise control or influence the business direction and policies of
McAfee.com.
In light of its voting control and board influence, Network Associates will
have significant influence over matters requiring approval of our board of
directors and stockholders. Two of our current board members are affiliated with
Network Associates. William Larson is Network Associates' chief executive
officer and
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Prabhat Goyal is Network Associates' chief financial officer. Our business could
be adversely affected if these directors act in favor of Network Associates'
interests over ours while on our board of directors.
Network Associates' voting control and board influence may have the effect
of discouraging many types of transactions involving a change of control,
including transactions in which the holders of Class A common stock might
otherwise receive a premium for their shares over the then-current market price.
In addition, we have elected not to be subject to Section 203 of the Delaware
General Corporation Law, which would otherwise provide certain restrictions on
"business combinations" between us and any party acquiring a 15% or greater
interest in our voting stock other than in a transaction approved by our board
of directors and in certain cases by our stockholders. As a result, for example,
as long as Network Associates owns more than 50% of the outstanding common
stock, Network Associates could effect a change in control of McAfee.com through
sales of its shares without our other stockholders having an opportunity to
participate in the transaction.
BECAUSE NETWORK ASSOCIATES CONSOLIDATES OUR OPERATING RESULTS WITH ITS OWN, IT
MAY ATTEMPT TO RESTRICT OUR EXPENDITURES, WHICH COULD ADVERSELY AFFECT OUR
BUSINESS IN THE LONG TERM
As long as Network Associates owns common stock having at least a majority
of our voting power, it will continue to consolidate our operating results with
its own for accounting purposes. Our business strategy will require us to incur
large expenses resulting in significant losses as we attempt to establish our
brand by increasing our marketing efforts and establishing strategic
relationships. Incurring large expenses for these purposes may conflict with
Network Associates' interests in maximizing its net earnings, and Network
Associates may attempt to influence our expenditures in a manner that limits our
losses in the short term but may not be in our best interests in the long term.
WE RELY ON NETWORK ASSOCIATES TO ADEQUATELY PROTECT AND DEFEND OUR LICENSED
TECHNOLOGY AND INTELLECTUAL PROPERTY AND ANY FAILURE BY NETWORK ASSOCIATES TO DO
SO COULD ADVERSELY AFFECT OUR BUSINESS
We rely on Network Associates to protect the technology and intellectual
property that it licenses to us through a combination of patent, trademark,
trade secret and copyright law and contractual restrictions. Despite Network
Associates' precautionary measures, third parties could copy or otherwise obtain
or use the licensed technology and intellectual property without authorization.
Our license agreement with Network Associates does not permit us to take
independent legal action against third parties to enforce Network Associates'
intellectual property rights. In the future Network Associates may be, subject
to litigation related to the technology licensed to us. Adverse determinations
in that litigation could:
- result in the loss of Network Associates', and as a result our,
proprietary rights, which could prevent us from selling our products;
- subject us to significant liabilities; or
- require Network Associates and/or us to seek licenses from third parties.
OUR BUSINESS MAY BE HARMED BY THE LITIGATION TO WHICH NETWORK ASSOCIATES IS A
PARTY WITH RESPECT TO ANTI-VIRUS TECHNOLOGY IT LICENSES TO US
Hilgraeve and Trend Micro have each filed suit against Network Associates
with respect to the anti-virus technology that we license from Network
Associates. See Note 7 to Notes to Condensed Consolidated Financial Statements
for a description of these pending actions. In addition to naming Network
Associates as a defendant in these litigation matters, these claimants may seek
to name us as a defendant in related actions and seek damages from us. Under the
terms of an indemnification agreement with Network Associates, it has agreed to
indemnify and defend us and hold us harmless from any losses as a result of
these or other intellectual property claims known prior to December 2, 1999. The
litigation process is subject to inherent uncertainties and we and/or Network
Associates may not prevail in these matters, or we and/or Network Associates may
be unable to obtain licenses with respect to any patents or other intellectual
property rights of third parties that may be held valid or infringed upon by us
through our use of intellectual property licensed to us by Network Associates.
Uncertainties inherent in the litigation process include, among other things,
the
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complexity of the technologies involved, potentially adverse changes in the law
and discovery of facts unfavorable to Network Associates or McAfee.com. In
addition, any involvement in legal actions regarding our intellectual property
rights could be expensive and could distract our management from our day-to-day
operations.
BECAUSE WE LICENSE OUR ANTI-VIRUS AND OTHER TECHNOLOGY FROM NETWORK ASSOCIATES,
OUR ABILITY TO COMPETE IN OUR MARKETS DEPENDS IN PART ON THE SUCCESS OF NETWORK
ASSOCIATES' RESEARCH AND DEVELOPMENT
Under our license agreement with Network Associates, Network Associates
licenses to us all future improvements based on the licensed technologies. Our
research and development efforts will initially focus on adapting the licensed
technology for sales of products and services over the Internet. Specifically,
we do not plan to undertake independent research and development efforts
relating to the anti-virus technology licensed from Network Associates but
instead plan to rely on future improvements developed by Network Associates. As
a result, our ability to introduce additional or enhanced anti-virus products is
directly impacted by the success of Network Associates' related research and
development efforts. If Network Associates does not commit sufficient resources
to these efforts, or if its efforts are unsuccessful or untimely, the quality of
our anti-virus products would suffer and we would be required to commit
significant resources to our own research and development efforts. If we are
required to do so, our ability to maintain any technological leadership
currently provided by Network Associates would be severely constrained by our
relatively limited capital resources, engineering capabilities and other
resources necessary to timely develop and introduce additional or enhanced
anti-virus products. This would significantly harm our competitive position and
business.
We expect to rely on Network Associates' ongoing research and development
efforts to keep our anti-virus products up-to-date. Accordingly, we will not
control whether these products will:
- continue to recognize and eliminate new computer viruses;
- incorrectly report the presence or absence of computer viruses;
- incorporate leading-edge technology; or
- be adequately protected from infringement by third parties or infringe
upon the intellectual property rights of third parties.
BECAUSE WE SHARE THE MCAFEE BRAND WITH NETWORK ASSOCIATES, ITS ACTIVITIES
RELATED TO ITS MCAFEE-BRANDED PRODUCTS COULD HARM OUR BRAND AND OUR COMPETITIVE
POSITION
The value of our McAfee.com brand is closely linked to the reputation of
Network Associates' McAfee-branded software, such as VirusScan. Network
Associates owns the McAfee trademark and will continue to maintain the right to
control the sale of McAfee and other Network Associates-branded "shrink-wrapped"
boxed software into non-online and corporate channels. Our McAfee.com brand and
competitive position could be harmed by:
- publicity surrounding inadequate levels of consumer support for, or poor
performance of, Network Associates' McAfee-branded products, particularly
McAfee VirusScan; and
- customer confusion related to Network Associates' continued sale of
McAfee-branded products in non-online channels and corporate channels
including the on-line offering of anti-virus products to businesses.
The McAfee.com web site address, or domain name, and the McAfee trademark
are important to our business and are licensed to us by Network Associates. If
we were to lose the McAfee.com domain name or the use of this trademark, our
business would be harmed, and we would need to devote substantial resources
towards developing an independent brand identity through its myCIO.com
subsidiary.
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WE RELY ON NETWORK ASSOCIATES TO PROVIDE CRITICAL SERVICES TO US, AND FAILURE ON
ITS PART TO EFFECTIVELY DO SO COULD ADVERSELY AFFECT OUR BUSINESS
We currently rely on Network Associates for some cash management functions,
tax and payroll administration, insurance, employee benefits administration and
other services. We have entered into a services agreement with Network
Associates for the continued provision of these services. Until otherwise
terminated, this agreement will continue in effect through the end of December
2000 with automatic one-year renewal periods following this date. This agreement
was not the result of arm's length negotiation since we were a wholly-owned
subsidiary of Network Associates at the time we negotiated and entered into the
agreement. As a result, the agreement may be less favorable to us than if it was
negotiated at arm's length. If this agreement is terminated or if Network
Associates fails to satisfactorily provide these services, we would be required
to provide these services internally or find a third-party provider of these
services. Any services we choose to provide internally may not be as
cost-effective as those that Network Associates is currently providing,
particularly in light of our lack of experience as an independent organization.
If we are required to obtain these services from a third party, we may be unable
to do so in a timely, efficient and cost effective manner, or the services we
receive may be inferior to those that Network Associates is currently providing.
RISKS RELATED TO OUR BUSINESS
WE HAVE A HISTORY OF LOSSES AND EXPECT FURTHER LOSSES
As of March 31, 2000 we had aggregate net losses of approximately $39.8
million. Our net losses as a percentage of net revenue were 65% in the three
months ended March 31, 2000 and 113% in the three months ended March 31, 1999.
We expect to continue to incur significant net operating losses for the
foreseeable future. We may never become profitable, or if we do earn a profit in
any period, we may be unable to sustain or increase our profitability on a
quarterly or annual basis. It is critical to our success that we continue to
devote financial, sales and management resources to developing brand awareness
for our web site and our online PC security and management products and
services. As a result, we expect that our operating expenses will increase
significantly during the next several years, as we incur additional expenses
related to:
- development, marketing and promotion of products and services;
- development of our web site and related infrastructure;
- development and maintenance of strategic relationships; and
- increased employee headcount.
With the addition of these operating expenses, we will need to generate
significant additional revenues to achieve profitability.
OUR APPLICATIONS SERVICE PROVIDER BUSINESS MODEL IS UNPROVEN, AND OUR SUCCESS
DEPENDS ON MARKET ACCEPTANCE OF OUR HOSTED APPLICATIONS
Historically, substantially all of our revenue has come from software sales
through our web site and other online resellers, such as Beyond.com. Our current
strategy is to expand upon this base and broaden our role as an applications
service provider, or ASP, providing consumers with online access to PC security
and management software applications hosted on our servers. Under this ASP
model, consumers "rent versus buy" our software, which means PC users purchase a
license to use the software hosted on our servers for a limited duration of time
with all version updates included, as opposed to purchasing a single version of
traditional software with perpetual access to only one version. We believe we
are among the first consumer focused ASPs, and this concept may not achieve
acceptance in the market. We began providing our application services online in
October 1998 when we updated Oil Change and introduced it as our initial online
subscription service following the acquisition of CyberMedia, Inc. by Network
Associates. In April 1999, we significantly redesigned our web site and
introduced our McAfee Clinic hosted services. To build awareness and demand for
our hosted products and services, we offered our McAfee Clinic and other
products and services for free prior to September 2, 1999, when we began
charging a subscription fee for McAfee Clinic. Consumer
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acceptance of our hosted products and services is highly uncertain and subject
to a number of potential factors, including:
- consumers' reluctance to pay a subscription fee for our hosted services
which were offered for free prior to September 2, 1999;
- consumers' reluctance to change their software purchasing behavior in
favor of services hosted on our servers;
- consumer concerns regarding the effectiveness of hosted PC products and
services compared with software that is entirely on a user's PC;
- unwillingness by consumers to incur ongoing subscription fees for hosted
products and services previously offered for free;
- consumer concerns about whether the Internet is fast and reliable enough
to deliver critical PC security and management functions effectively; and
- our ability to properly price our products and services to generate the
greatest revenue potential.
Our online services are designed to protect consumer privacy by ensuring
that all PC scans are done locally at the PC, all information about the user's
PC is transmitted to us anonymously and no scanned data is stored by us.
However, consumers' misconceptions about this process could prevent our ASP
model from achieving market acceptance.
ANY FAILURE TO SUCCESSFULLY EXPAND OUR CONTEXTUAL E-COMMERCE SERVICES COULD
LIMIT OUR POTENTIAL GROWTH
We plan to expand our contextual e-commerce services, in which we provide
product recommendations based on a customer's particular PC, attached hardware,
such as printers and monitors, internal peripheral devices, such as hard drives
and graphics cards, and software, such as Windows 95 and Quicken. The success of
our contextual e-commerce services requires that we continue to properly scan
the user's PC system and identify the PC configuration. In addition, we will be
unable to successfully complete the rollout of our contextual e-commerce
services unless we take the following actions:
Obtain Relevant Content. For our recommendations to be accurate, we must
successfully obtain and maintain:
- relationships with vendors, such as hardware and software distributors,
who agree to have their products included in our database of products we
recommend to consumers for purchase;
- interoperability information to ensure that our recommended products are
compatible with the consumer's PC system configuration; and
- relationships with third party providers of information, such as product
reviews and ratings, about the products included in our contextual
product database.
To date we have secured only a limited amount of the content needed to
successfully provide our contextual e-commerce services. To obtain this content,
particularly online product information, product reviews and interoperability
information, we may have to pay fees or enter into revenue-sharing agreements.
We may not be successful in our efforts to enter into mutually satisfactory
revenue-sharing arrangements with content providers.
Establish Revenue-Generating Arrangements with Vendors. We must
successfully negotiate revenue generating arrangements with our vendors.
Potential revenue-generating arrangements with our vendors may include:
- a referral fee or a share in the product revenue based on the type and
value of products purchased as a result of our product recommendation;
- guaranteed minimum payments paid by participating vendors in exchange for
their inclusion in our contextual product database, perhaps on an
exclusive basis depending on the product;
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- slotting fees paid by vendors to ensure that their products receive
preferential listing in our list of recommended products; and
- licenses of our technology to third parties with whom we have strategic
relationships in exchange for license fees or revenue sharing.
We may be unable to establish and maintain mutually satisfactory revenue
generating arrangements. E-commerce is a relatively new concept and our ability
to enter into these arrangements and their success is dependent on the degree to
which e-commerce is broadly adopted by consumers.
Establish Consumer Trust and Generate Related Revenue. We must establish
consumer trust and generate related revenue through our contextual e-commerce
services. To do so, we must successfully and consistently recommend a broad
selection of high-quality and reliable products at competitive prices. In
addition, for us to generate revenue through our contextual e-commerce services,
consumers must purchase the products recommended by our service. We believe that
a significant number of consumers will use our service to gather product
recommendations and information and purchase products from sources with whom we
do not have revenue sharing relationships, such as traditional retail channels
or third-party online sources. If our vendors offer low-quality or unreliable
products or do not properly distribute and support their products, consumers
could lose trust in us. Consumers could also lose trust in us as a result of our
only recommending the products of vendors who have separately agreed to be
included in our database or giving priority to those vendors who have paid us a
slotting fee for preferential treatment.
WE RECENTLY INTRODUCED CONTEXTUAL ADVERTISING, AND THE FAILURE OF THIS SERVICE
COULD ADVERSELY AFFECT OUR BUSINESS
Contextual advertising is based on selling advertising targeted to
consumers based on their PC configuration, attached peripherals and software. We
will be unable to successfully establish and maintain our contextual advertising
product unless we take the following actions:
Provide Proper System Scanning. Our scanning software must accurately scan
the user's PC system in order to provide relevant targeted advertisements.
Obtain Advertisers Willing to Pay a Premium for Targeted
Advertisements. The market for contextual advertising is still developing and
advertisers may be unwilling to utilize contextual advertising or pay a premium
for this product. Our ability to charge higher rates for contextual advertising
is subject to a number of factors including the number and demographics of the
users of our web site, the amount of time users spend on our web site and the
degree to which users of our web site purchase the advertised products.
ANY FAILURE ON OUR PART TO DEVELOP, MAINTAIN AND ENHANCE STRATEGIC RELATIONSHIPS
WILL LIMIT OUR ABILITY TO EXPAND OUR DISTRIBUTION AND GROW OUR BUSINESS
Our distribution strategy will require us to develop and maintain strategic
relationships with third parties including Internet portals, Internet shopping
sites, and Internet access providers. We believe that the maintenance and
enhancement of our relationship with Beyond.com and the establishment of
additional strategic relationships in other areas of our business will be
critical if we are to expand our business. Our current agreement with
Beyond.com, which is the largest reseller of our software and the exclusive
reseller of third-party software sold on our web site, expires on June 30, 2000.
Through the Beyond.com reseller arrangement, Beyond.com purchases licenses to
our software from us for resale at the time a customer decides to purchase it,
paying us for these licenses on a monthly basis. In the three months ended March
31, 2000, approximately 28% of our net revenue was derived from the sale of
software licenses through Beyond.com. Although we intend to pursue additional
strategic relationships in the future, these efforts may not be successful. To
secure and maintain key strategic relationships, we may be required to pay
significant fees and/or grant exclusive rights. Even if we do succeed in
establishing these relationships, they may not result in our generating
additional subscriber or customer relationships or increased revenues.
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OUR MANAGEMENT TEAM WAS ONLY RECENTLY FORMED, AND OUR SUCCESS DEPENDS UPON THEIR
ABILITY TO WORK EFFECTIVELY TOGETHER AND OUR ABILITY TO RETAIN THEM
Because our senior management currently consists of individuals who have
worked together for a relatively short period of time, our management may be
unable to work together effectively. We are substantially dependent on the
continued services of our senior management, including Srivats Sampath, our
chief executive officer, and Evan Collins, our chief financial officer, as well
as key technical and engineering personnel. We do not have employment agreements
with any of our senior management or key personnel and we do not maintain any
"key person" life insurance policies. If our management team fails to work
together effectively, or if we lose the services of any other members of senior
management or key personnel, our business could be harmed.
OUR FAILURE TO HIRE AND RETAIN KEY MANAGEMENT PERSONNEL AND OTHER QUALIFIED
INDIVIDUALS COULD HARM OUR BUSINESS
In addition to retaining and motivating our current management and
technical employees, we must attract and train new employees in key areas of our
company, including marketing and sales, research and development and web
information technologies functions. We may be unable to successfully attract,
train, retain and motivate key management personnel and other highly skilled
technical, sales and marketing and customer support personnel. Competition for
these individuals is intense, especially in the San Francisco Bay Area. If we
fail to either retain our current employees, or fail to attract and train new
employees, our business could be harmed.
OUR INABILITY TO EFFECTIVELY MANAGE OUR WEB SITE TRAFFIC AND INFORMATION
TECHNOLOGY INFRASTRUCTURE COULD HARM OUR BUSINESS
We have experienced significant growth and fluctuations in traffic to our
web site. To meet increased traffic demands and potential future traffic
increases, we recently expanded our information technology, or IT,
infrastructure and continue to add additional infrastructure based on our
anticipated requirements.
We have experienced significant temporary increases in traffic to our web
site in response to particular events, such as the Melissa and Chernobyl
computer virus outbreaks in the first half of 1999, each of which approximately
tripled our then average daily web site traffic. To respond to sudden traffic
increases, we must expand and maintain the capacity of our IT infrastructure. If
we are unable to effectively expand our IT infrastructure to accommodate traffic
increases, consumers may experience difficulties in accessing our web site or in
downloading products and information from our web site. This could materially
harm our business.
The impact of traffic increases would likely be most severe during
unanticipated events such as virus outbreaks. Currently, our web site
infrastructure supporting our web site operates at approximately 17% capacity
based on average daily traffic levels. These capacity estimates are based on
measuring existing web site traffic against the bandwidth specifications of our
installed hardware.
Currently, Beyond.com provides electronic distribution for software
products sold on our web site. If we were to elect to provide our own electronic
distribution of these products and the related updates and upgrades, we would
need to increase our IT infrastructure.
WE RELY ON BEYOND.COM FOR SOFTWARE LICENSE SALES AND PRODUCT FULFILLMENT, AND
ANY FAILURE BY BEYOND.COM TO PERFORM THIS SERVICE EFFECTIVELY COULD ADVERSELY
AFFECT OUR BUSINESS
During the three months ended March 31, 2000, approximately 28% of our net
revenue was derived from the sale of our software licenses through Beyond.com.
Included in these revenues are software licenses sold on our web site for which
Beyond.com acts as a reseller and provides product fulfillment. Beyond.com
provides fulfillment for these products whether they are distributed
electronically by Beyond.com or in "shrink-wrapped" box format shipped to
customers. If Beyond.com does not provide these services in a timely and
satisfactory manner, we would be required to replace Beyond.com and our business
could be harmed.
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WE EXPECT OUR QUARTERLY REVENUES AND OPERATING RESULTS TO FLUCTUATE FOR A NUMBER
OF REASONS THAT COULD CAUSE OUR STOCK PRICE TO FLUCTUATE
We expect that our quarterly and long-term revenues and operating results
will fluctuate significantly in the future based upon a number of factors, many
of which are not within our control.
We plan to significantly increase our operating expenses to expand our
marketing and sales activities and expand our operating infrastructure. We base
our operating expenses on anticipated market growth and our operating expenses
are relatively fixed in the short term. As a result, if our revenues are lower
than we expect, our quarterly and long-term operating results may not meet the
expectations of public market analysts or investors, which could cause the
market price of our common stock to decline.
In prior periods, our net revenue and operating results have fluctuated on
a quarterly basis. For example, during the year ended December 31, 1999, we
recorded approximately 34% of our total net revenue in the three months ended
December 31, 1999, approximately 28% in the three months ended September 30,
1999, approximately 24% in the three months ended June 30, 1999 and
approximately 14% in the three months ended March 31, 1999. During the year
ended December 31, 1998, we recorded approximately 32% in the three months ended
December 31, 1998, approximately 27% in the three months ended September 30,
1998, approximately 24% in the three months ended June 30, 1998 and
approximately 17% of our total net revenue in the three months ended March 30,
1998.
It is likely that in some future period, our operating results may be below
expectations of public market analysts or investors. If this occurs, our stock
price may drop. The primary factors that may affect our quarterly and long-term
revenues and operating results include the following:
- the number of visitors to our web site, the proportion of visitors that
become registered users, the proportion of registered users that convert
to paying online subscribers and the rate at which they renew their
subscriptions;
- seasonality, such as during summer months, when Internet usage is
typically lower;
- the number of visitors to our web site who purchase products offered
through our web site and the mix of products purchased;
- our success in licensing our contextual e-commerce technology;
- the amount and timing of our operating expenses and capital expenditures;
- the percentage of revenue which is deferred, which may fluctuate based on
the change in product mix and/or pricing; and
- costs related to potential acquisitions of businesses or technologies.
BECAUSE OUR HISTORICAL FINANCIAL STATEMENTS ARE DERIVED FROM NETWORK ASSOCIATES'
HISTORIC FINANCIAL RESULTS PRIOR TO THE TIME WE ADOPTED OUR CURRENT BUSINESS
MODEL, THEY MAY NOT BE INDICATIVE OF OUR FUTURE PERFORMANCE
Our financial statements are derived from the historic books and records of
Network Associates. Furthermore, although historically substantially all of our
revenues have come from traditional software sales, our current strategy is to
expand our role as an ASP, providing consumers with online access to software
applications hosted on our servers. For these reasons, we do not believe that
our historical operating results are representative of our business model going
forward. As a result, you should not rely on comparisons of our historical
operating results as an indicator of our future performance.
THE GROWTH OF OUR NET REVENUE DEPENDS TO A SIGNIFICANT EXTENT UPON THE CONTINUED
DEMAND FOR OUR ANTI-VIRUS PRODUCTS AND SERVICES
We believe that to date a significant portion of the traffic to our web
site has been generated by consumer demand for our anti-virus products and
services. A decline in the demand for, or the price that consumers are willing
to pay for, our anti-virus products and services as a result of competition, an
erosion of brand loyalty,
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perceived degradation in product quality, technological changes, the bundling by
third parties of anti-virus functionality into their products or services or
other factors would harm our business and operating results. We license the
technology underlying our anti-virus products and services from Network
Associates and we are therefore dependent on the continued quality and
availability of Network Associates' anti-virus technology.
COMPETITION FROM OTHER VENDORS MAY RENDER OUR PRODUCTS OBSOLETE OR LEAD TO
REDUCED SALES OF OUR PRODUCTS OR REDUCED MARKET SHARE
Vendors of hardware and of operating system software or other software,
such as e-mail software, may enhance their products or bundle separate products
to include PC security and management software similar to our products. This
competition from vendors and their widespread inclusion of products that perform
some of the same or similar functions as our products within computer hardware
or other software, such as those offered by our current competitors Dell and
Microsoft, could render our products duplicative or obsolete and result in
reduced sales and market share. Even if these incorporated products are inferior
or more limited than our products, consumers may nevertheless believe that the
incorporated products eliminate the need to purchase our products separately. If
we are unable, either directly or indirectly through Network Associates, to
develop new PC security and management products to further enhance operating
systems or other software and to successfully replace any obsolete products, our
business would suffer.
IF OUR PRODUCTS AND SERVICES ARE NOT EFFECTIVE, OUR REPUTATION AND BUSINESS MAY
BE HARMED AND CONSUMERS MAY MAKE PRODUCT LIABILITY CLAIMS AGAINST US
Our PC security and management software products and services are used to
protect and manage PCs. If these products and services are not effective, our
reputation will be harmed and demand for our products and services could
decrease, which would materially adversely affect our business. As a result, we
could face potential product liability and related claims. Our anti-virus
products and services may fail to effectively detect and respond to existing or
newly developed computer viruses. In addition, our anti-virus technology may
cause a "false alarm" by detecting viruses that do not actually exist. Our PC
management services may not perform effectively, causing a consumer to
accidentally lose or delete a file and other data. Any of the foregoing events
could harm our reputation and our business and could lead to claims against us.
This risk is especially acute for anti-virus software because of the rate at
which new viruses are introduced, the challenges involved in widely distributing
software updates before customers have been infected by new viruses, and the
severity of the harm that consumers may suffer as a result of viruses. Because
we license the technology underlying our anti-virus products and services from
Network Associates, the quality of these products and services depends on
Network Associates' research and development efforts. We seek to limit our
exposure to potential product liability claims through limitation of liability
provisions in our electronic and shrink wrap licenses and through disclaimers.
However, these measures, particularly those involving unsigned licenses, may not
be effective under the laws of some jurisdictions.
IF MICROSOFT TECHNOLOGY FAILS TO MAINTAIN ITS MARKET SHARE OUR BUSINESS WILL BE
ADVERSELY AFFECTED
Currently, our online services are designed exclusively for PCs running
Microsoft's Windows 95, Windows 98, Windows 2000 and Windows NT operating
systems. For our web browser interface, we utilize Microsoft's Internet Explorer
technology, which has achieved a market share of approximately 60% among home PC
users according to Gartner Group, an industry research firm. We do not support
Netscape browser technology except through use of specialized software, commonly
referred to as "plug-ins," that must be downloaded over the Internet, a
potentially time-consuming and complicated process. For such plug-ins to work,
Microsoft's Internet Explorer must reside on the user's PC. If Microsoft's
technology fails to continue to be broadly accepted by consumers, or if
consumers migrate to other technologies that we do not support, our business
would be harmed.
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OUR MARKET IS SUBJECT TO RAPID TECHNOLOGICAL CHANGE, AND TO COMPETE WE MUST
CONTINUALLY ADAPT TO THESE CHANGES AND INTRODUCE NEW PRODUCTS AND SERVICES THAT
ACHIEVE BROAD MARKET ACCEPTANCE
The market for Internet products and services is subject to rapid
technological developments, evolving industry standards and consumer demands,
and frequent new product introductions and enhancements. To remain competitive,
we must continue to enhance and improve the ease of use, responsiveness,
functionality and features of our web site. These efforts may require us to
internally develop increasingly complex technologies or license them from either
Network Associates or other parties. Developing and integrating new products,
services or technologies into our web site could be expensive and
time-consuming. Any new features, functions or services may not achieve market
acceptance or enhance our brand loyalty. If we fail to develop and introduce or
acquire new features, functions or services effectively on a timely basis, we
may be unable to continue to attract new users or to retain our existing users.
Furthermore, we may not succeed in incorporating new Internet technologies, or
to do so, we may incur substantial expenses. We must also work through our
strategic relationships to expand and enhance the content on our web site.
COMPETITION FROM OTHER COMPANIES THAT OFFER PC SECURITY AND MANAGEMENT SERVICES
COULD REDUCE OUR NET REVENUE AND MARKET SHARE
A large number of Internet companies compete for users, advertisers,
e-commerce transactions and other sources of online revenue. The market for PC
security and management products is intensely competitive and we expect
competition to increase in the near-term. Competitive factors affecting our
market include:
- relatively low barriers to entry, allowing current and new competitors to
launch new Internet sites at a relatively low cost using commercially
available software;
- the ability of some of our present and future competitors to offer their
products and services for free;
- new technologies that may increase competitive pressures by enabling our
competitors to offer lower-cost services; and
- web-based applications that direct Internet traffic to web sites and
users to computer management services that compete with ours.
Increased competition could result in price reductions, diminished market
share and loss of subscribers, which could materially harm our business. We
believe that competition for consumers of PC security and management services
will continue to increase as the Internet grows as a commercial medium and as
consumer ownership of PCs and other Internet access devices becomes more
widespread. To respond to changes in the competitive environment, we may, from
time to time, make pricing, service or marketing decisions or acquisitions that
could harm our business.
In the market for anti-virus software products, we compete primarily
against Symantec and Trend Micro Systems, which offer software licenses to
anti-virus software products, including boxed products sold through retail store
channels. In the market for hosted PC security and management solutions, we also
compete primarily against Symantec and Trend Micro Systems, as well as other PC
utility vendors. In particular, Symantec and Trend Micro Systems both offer
online anti-virus services. In the future, we may also compete against PC and
system vendors such as Dell, Compaq, IBM, Gateway and Intel that may seek to
provide a higher level of support and service to their customers. In particular,
Dell has announced an online customer support initiative that includes online PC
management services. Operating system and application vendors such as Microsoft
provide or plan to provide hosted services to better manage Windows-based PCs.
Online PC content sites such as CNET and ZDNet provide or have announced their
intention to provide hosted services to enhance their web sites. We are also
aware of smaller entrepreneurial companies that are focusing significant
resources on developing and marketing these services to consumers.
In the market for e-commerce and advertising, we compete primarily with
established online retailers such as Beyond.com, Gigabuys.com, Outpost.com and
PC-related content sites such as CNET and ZDNet. We also compete with online
comparative shopping services provided by Internet sites such as Yahoo!,
Amazon.com and Excite. Some current and many potential competitors have longer
operating histories, larger
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customer bases and greater brand recognition in other business and Internet
markets than we do. Some of these competitors also have significantly greater
financial, marketing, technical and other resources. Other online computer
management services may be acquired by, receive investments from or enter into
commercial relationships with larger, more established and better financed
companies. As a result, some of our competitors may be able to devote more
resources to marketing and promotional campaigns, adopt more aggressive pricing
policies and devote substantially more resources to web site and systems
development than we are able to provide. Increased competition may result in
reduced operating margins, loss of market share and diminished value of our
brand.
OUR INTENDED EXPANSION INTO INTERNATIONAL MARKETS COULD EXPOSE US TO RELATED
RISKS THAT COULD HARM OUR BUSINESS
We currently are expanding our operations outside the United States. To
expand our business, we intend to continue to develop subscriber relationships
with users outside of the United States. Expansion of our business to
international consumers poses significant challenges, including the creation of
non-English language or localized versions of our web site. Conducting business
outside of the United States is subject to additional risks, including:
- difficulties related to online payment processing, including foreign
currency issues and transacting with consumers who do not have credit
cards;
- currency fluctuations;
- the burden of complying with foreign laws, including evolving privacy
laws of Europe, which may include restrictions on e-mail marketing;
- difficulties in securing an international provider of fulfillment
services for shrink-wrapped software; and
- political or economic instability or constraints on international trade.
Any of the foregoing factors could adversely affect our future
international operations, and as a result, harm our business and financial
results.
WE MAY FACE LIABILITY RELATING TO CONTENT ON, OR PRODUCTS AND SERVICES SOLD
FROM, OUR WEB SITE
Our web site provides third-party content and links to other web sites. We
could be exposed to claims related to copyright or trademark infringement,
errors or omissions or other wrongful acts by the third parties whose content we
provide or whose web sites are linked with ours. We enter into agreements with
purchase of products or services through direct or indirect links to or from our
web site. These arrangements may expose us to additional legal risks and
uncertainties, including government regulation and potential liabilities to
consumers of these products and services, even if we do not provide the products
and services ourselves.
IF WE ARE UNSUCCESSFUL IN PROTECTING OUR INTELLECTUAL PROPERTY AND PROPRIETARY
RIGHTS, WE MAY BE UNABLE TO PREVENT THIRD PARTIES FROM USING THESE RIGHTS AND WE
MAY LOSE THESE RIGHTS OR BE REQUIRED TO PAY DAMAGES OR ROYALTIES
We regard substantial elements of our web site and the underlying
technology as proprietary. Despite our precautionary measures and those of
Network Associates, it is possible that third parties could copy or otherwise
obtain and use our proprietary information without authorization or develop
similar technology independently, and the intellectual property laws on which we
rely may be ineffective in preventing such unauthorized copying or use.
Other companies may own, obtain or claim trademarks that could prevent,
limit or interfere with our use of the trademark that we use. The McAfee.com web
site address, or domain name, and the McAfee trademark are important to our
business and are licensed to us by Network Associates. If we were to lose the
McAfee.com domain name or the use of this trademark, our business would be
harmed and we would need to devote substantial resources towards developing an
independent brand identity. From time to time, third parties may claim that our
products and services infringe upon their rights. These claims might require us
to
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pay damages or royalties. Any infringement claims, with or without merit, could
lead to costly litigation that could absorb significant management time and
require substantial expenses.
Legal standards relating to the validity, enforceability and scope of
protection of proprietary rights in Internet-related businesses are uncertain
and evolving, and we can give no assurance regarding the future viability or
value of any of our proprietary rights.
WE COULD FACE CLAIMS BY OUR CUSTOMERS FOR INVASION OF PRIVACY
We collect and use data from our customers to process their orders for our
services as well as in the operation of our services. This creates the potential
for claims to be made against us based on invasion of privacy or other legal
theories. Although we carry general liability insurance, our insurance may not
cover potential claims of this type or may not be adequate to indemnify us for
all liability that may be imposed.
OUR NET REVENUE WOULD BE HARMED IF WE EXPERIENCE SIGNIFICANT CREDIT CARD FRAUD
A failure to adequately control fraudulent credit card transactions could
harm our net revenue and operating results because we do not carry insurance
against this risk. Under current credit card practices, we are liable for
fraudulent credit card transactions because we do not obtain a cardholder's
signature.
PROVISIONS IN OUR CERTIFICATE OF INCORPORATION AND BYLAWS AND DELAWARE LAW AND
OUR RELATIONSHIP WITH NETWORK ASSOCIATES MAY DISCOURAGE TAKEOVER ATTEMPTS
Certain provisions of Delaware law and our certificate of incorporation and
bylaws could have the effect of delaying or preventing a third party from
acquiring us, even if a change in control would be beneficial to our
stockholders. For example, we have a classified board of directors whose members
serve staggered three-year terms and are removable only for cause. These
provisions could make it more difficult for a third party to acquire us, even if
doing so would benefit our stockholders. Furthermore, as of March 31, 2000,
Network Associates owned 36,000,000 shares, or 100%, of our outstanding Class B
common stock, with each Class B share entitled to three votes. As a result,
Network Associates will have sufficient voting power to control the direction
and policies of McAfee.com.
WE MAY NEED ADDITIONAL FINANCING TO ACHIEVE OUR BUSINESS OBJECTIVES, AND IF SUCH
FINANCING IS UNAVAILABLE, OUR BUSINESS COULD BE HARMED AND OUR PLANNED EXPANSION
COULD BE LIMITED
We may need to obtain additional financing to fund more rapid expansion, to
expand our marketing activities, to develop new or enhance existing services or
products, to respond to competitive pressures or to acquire complementary
services, businesses or technologies. We may also need to raise funds in the
future to meet our working capital needs. Additional financing may not be
available on terms favorable to us, or at all. If adequate funds are not
available or are not available on acceptable terms, we may be required to lower
our operating expenses by scaling back our operations, such as reducing our
marketing and research and development expenditures.
INTERNET STOCKS HAVE BEEN VOLATILE AND OUR STOCK PRICE MAY FLUCTUATE
SIGNIFICANTLY, AND MAY CAUSE A DECLINE IN THE PRICE OF OUR SHARES
The trading prices of many Internet stocks have experienced extreme price
and volume fluctuations. These fluctuations have often been unrelated or
disproportionate to the operating performance of these companies. During the
first quarter of 2000, our closing stock price on the NASDAQ ranged from a high
of $55.50 to a low of $32.38. The trading price of our stock is likely to remain
highly volatile and may be significantly affected by factors including actual or
anticipated fluctuations in our operating results, new products introduced by us
or our competitors, conditions and trends in the software or e-commerce
industries, changes in financial estimates by securities analysts, general
market conditions and other factors. Any negative change in the public
perception of the prospects of Internet or e-commerce companies in general could
also depress our stock price regardless of our business, prospects or operating
results.
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WE FACE RISKS ASSOCIATED WITH PAST AND FUTURE ACQUISITIONS
On February 15, 2000 we completed the acquisition of Signal 9 Solutions
Canada, Inc. As part of our growth strategy, we may acquire additional
companies, products and technologies which are complementary to our business.
These acquisitions involve a number of risks and we may not realize the expected
benefits of these transactions.
The integration of an acquired company or technology involves a complex,
time consuming and expensive process. Following any acquisition, we must operate
as a combined organization utilizing common information communication systems,
operating procedures, financial controls and human resource practices. In order
to successfully integrate Signal 9 and other potential acquisitions, we may need
to, among other things, successfully:
- attract and retain key management and other personnel;
- integrate the acquired products into our suite of product offerings both
from an engineering and a sales and marketing perspective;
- integrate and support preexisting supplier, distribution and customer
relationships;
- coordinate research and development efforts;
- integrate sales forces; and
- consolidate duplicate facilities.
The difficulties of integrating an acquired company may be exacerbated by
the geographic distance between the companies, the complexity of the
technologies and operations being integrated, and the disparate corporate
cultures being combined. Successful acquisitions may be more difficult to
accomplish in the high technology industry than in other industries, and will
require the dedication of our management resources. Management's focus on the
integration of operations may distract attention from our day-to-day business,
and may disrupt key research and development, marketing or sales efforts. In
addition, it is common in the technology industry for aggressive competitors to
attract customers and recruit key employees away from companies during the
integration phase of an acquisition. If we cannot successfully integrate any
potential acquisition, our business could suffer.
Our available cash and our securities may be used to acquire companies or
products, which could result in significant acquisition-related charges to
earnings and dilution to our stockholders. Moreover, if we acquire a company, we
may have to incur or assume that company's liabilities, including liabilities
that are unknown at the time of acquisition, which may result in a material
adverse effect on us.
WE WILL EXPERIENCE SIGNIFICANT AMORTIZATION CHARGES AND FACE THE RISK OF FUTURE
NON-RECURRING CHARGES IN THE EVENT OF IMPAIRMENT.
In future periods we will experience significant charges related to the
amortization of purchased technology and goodwill in connection with our recent
acquisition of Signal 9 accounted for under the purchase method of accounting.
In addition, if we later determine that this purchased technology and goodwill
is impaired, we will be required to take a related non-recurring charge to
earnings.
INTERNET INDUSTRY RISKS
IF USE OF THE INTERNET DOES NOT CONTINUE TO GROW AND RELIABLY SUPPORT THE
DEMANDS PLACED ON IT BY ELECTRONIC COMMERCE, OUR MARKET AND ABILITY TO ATTRACT
NEW SUBSCRIBERS TO OUR SERVICES WILL BE HARMED AND WE MAY EXPERIENCE LOSS OF
SALES
Our success depends upon continued growth in the use of the Internet as a
medium of commerce. If the Internet develops more slowly than we expect as a
medium of commerce, our business may be seriously harmed. Broad acceptance and
adoption of the Internet by consumers and businesses for our online PC
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products and services will only occur if the Internet provides them with more
efficient and cost effective methods of obtaining the products and services
offered by McAfee.com.
GOVERNMENT LEGISLATION AND REGULATION OF THE INTERNET MAY LIMIT THE GROWTH OF
OUR BUSINESS AND OUR ABILITY TO MARKET OUR PRODUCTS AND SERVICES
A number of legislative and regulatory proposals under consideration by
federal, state, local and foreign governmental organizations may lead to laws or
regulations concerning various aspects of the Internet, including online
content, user privacy, direct mail marketing, access charges, liability for
third-party activities and jurisdiction. Additionally, it is uncertain how
existing laws will be applied to the Internet. The adoption of new laws or the
application of existing laws may decrease the growth in the use of the Internet,
which could in turn decrease the usage and demand for our services or materially
increase our cost of doing business.
Some local telephone carriers have asserted that the increasing popularity
and use of the Internet has burdened the existing telecommunications
infrastructure, and that many areas with high Internet use have begun to
experience interruptions in telephone service. These carriers have petitioned
the Federal Communications Commission to impose access fees on Internet service
providers and online service providers. If access fees are imposed, the costs of
communicating on the Internet could increase substantially, potentially slowing
the increasing use of the Internet. This could in turn decrease demand for our
services or materially increase our cost of doing business.
A number of European countries have enacted laws restricting the marketing
of products and services using e-mail. These restrictions could hinder or
restrict the sales and marketing of our products and services in Europe. If
similar restrictions were also adopted in the United States or other countries,
our business would be materially harmed.
CURRENT AND FUTURE LEGISLATION COULD LIMIT OUR ABILITY TO EXPAND OUR CONTEXTUAL
E-COMMERCE SERVICES AND LICENSING EFFORTS
Legislation has recently been enacted in several states restricting the
sending of unsolicited commercial e-mail. The federal government and several
other states are considering, or have considered, similar legislation. Although
the provisions of these current and contemplated laws vary, they generally limit
or prohibit both the transmission of unsolicited commercial e-mails and the use
of forged or fraudulent routing and header information. Some states, including
California, require that unsolicited e-mails include "opt-out" instructions and
that senders of such e-mails honor any "opt-out" requests.
In addition, the European Union's Directive on Data Protection, adopted in
1998, requires that the electronic transfer of personal data take place only to
non-EU countries that provide an adequate level of privacy protection.
Uncertainty over whether the U.S. will be deemed to provide an adequate level of
privacy protection means that we cannot be certain that this EU Directive will
have no impact on our expansion of our contextual e-commerce services,
particularly if we choose to target new market opportunities in Europe. Future
legislation or the application of existing legislation may harm our business.
There is a growing body of laws and regulations applicable to access to or
commerce on the Internet. Due to the increasing popularity and use of the
Internet, it is likely that a growing number of laws and regulations will be
adopted at the international, federal, state and local level relating to the
Internet or e-commerce services covering issues such as user privacy, pricing,
content, copyrights, distribution, antitrust and characteristics and quality of
services. Further, the growth and development of the market for e-commerce may
prompt calls for more stringent consumer protection laws that may impose
additional burdens on those companies conducting business online. The adoption
of any additional laws or regulations may impair the growth of the Internet or
e-commerce. In turn, the adoption of these laws and regulations could increase
our cost of doing business because we currently rely on direct targeted e-mail
campaigns as an element of our marketing and sales strategy. Moreover, the
applicability to the Internet of existing laws in various jurisdictions
governing issues such as property ownership, sales and other taxes, libel and
personal privacy is uncertain and may take years to resolve. Any such new
legislation or regulation, the application of laws and
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<PAGE> 31
regulations from jurisdictions whose laws do not currently apply to our business
or the application of existing laws and regulations to the Internet could harm
our business.
TAXATION OF INTERNET TRANSACTIONS COULD SLOW THE GROWTH OF E-COMMERCE AND HARM
OUR BUSINESS
The tax treatment of electronic commerce is currently unsettled. A number
of proposals have been made at the federal, state and local levels and by
various foreign governments to impose taxes on the sale of goods and services
and other e-commerce activities. Recently, the Internet Tax Information Act was
signed into law, placing a three-year moratorium on new state and local taxes on
Internet commerce. However, future laws may impose taxes or other regulations on
e-commerce, which could substantially impair the growth of e-commerce and
materially and adversely affect our business.
IF THE MARKET FOR WEB ADVERTISING DEVELOPS MORE SLOWLY THAN EXPECTED, OUR
BUSINESS MAY BE ADVERSELY AFFECTED
Our ability to generate advertising revenues from selling banner
advertisements, contextual advertisements and sponsorships on our web site will
depend on, among other factors, the continued development of the Internet as an
advertising medium, the amount of traffic to our web site and our ability to
achieve and demonstrate user demographic characteristics that are attractive to
advertisers. Most potential advertisers and their advertising agencies have only
limited experience with the Internet as an advertising medium and have not
devoted a significant portion of their advertising expenditures to
Internet-based advertising. No standards have been widely accepted to measure
the effectiveness of web advertising. If these standards do not develop,
existing advertisers might reduce their current levels of Internet advertising
or eliminate their spending entirely. The widespread adoption of technologies
that permit Internet users to selectively block out unwanted graphics, including
advertisements attached to web pages, could also adversely affect the growth of
the Internet as an advertising medium. Furthermore, advertisers have
traditionally relied upon advertising media other than the Internet, such as
newsprint and magazines, and have invested substantial resources in these other
advertising methods. Therefore, advertisers may be reluctant to adopt a new
strategy and advertise on the Internet.
IF THE INTERNET INFRASTRUCTURE DOES NOT CONTINUE TO DEVELOP, THE GROWTH OF OUR
BUSINESS MAY BE ADVERSELY AFFECTED
The recent growth in Internet traffic has caused episodes of diminished
performance, requiring Internet service providers and users of the Internet to
upgrade their infrastructures. Our ability to maintain and increase the speed
with which we provide services to consumers and to increase the scope of these
services is limited by and dependent upon the speed and reliability of the
Internet. Consequently, the emergence and growth of the market for our services
is dependent on the performance of and future improvements to the Internet.
IF OUR INTERNAL NETWORK INFRASTRUCTURE IS DISRUPTED BY COMPUTER HACKERS OR BY
OTHER OCCURRENCES, OUR BUSINESS MAY BE ADVERSELY AFFECTED
Our operations depend upon our ability to maintain and protect our computer
systems, most of which are located in Santa Clara, California. We also contract
with a third party to maintain a fully redundant computer system to prevent
disruption of our operations in the event of a system failure in our Santa Clara
facility. Given our high profile in the security software market, we are an
attractive target for skilled computer users commonly referred to as "hackers"
who attempt to gain unauthorized access to computers or computer networks. In
the past, we have been a target of hackers who have, among other things,
attempted to penetrate our network security or created viruses to sabotage or
otherwise attack our web site. While to date these efforts have been discovered
quickly and their adverse impact has been limited, similar efforts or viruses
may be created or replicated in the future. In this event, our web site or
users' computer systems could be damaged and, as a result, demand for our
software products may suffer. In addition, we could be subject to denial of
service attacks, a type of Internet attack that bombards a web site with
information requests, eventually causing the web site to overload, delaying or
disrupting service. Our relationships with our subscribers and customers may be
adversely affected if the security measures that we use to protect their
personal information, such as credit card numbers, are not effective, causing
our revenues to decrease and our business to suffer. We
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<PAGE> 32
might be required to expend significant capital and resources to protect
against, or to alleviate, problems caused by hackers. In addition to purposeful
security breaches, the inadvertent transmission of computer viruses could expose
us to litigation or harm our reputation.
We have not experienced any material outages to date. However, our systems
are vulnerable to damage from break-ins, unauthorized access, vandalism, fire,
floods, earthquakes, power loss, telecommunications failures and similar events.
Although we maintain insurance against fires, floods and general business
interruptions, the amount of coverage may not be adequate in any particular
case.
32
<PAGE> 33
MCAFEE.COM CORPORATION
FORM 10-Q MARCH 31, 2000
PART II: OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
Information with respect to this item is incorporated by reference to Note
7 of the Notes to the Condensed Consolidated Financial Statements included
herein on page 10 of this Report on Form 10-Q.
ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS
On February 15, 2000 we acquired Signal 9 Solutions, Inc. ("Signal 9"). In
connection therewith, we issued an aggregate of 385,001 shares of our Class A
common stock to the shareholders of Signal 9. The transaction was exempt from
registration requirements of Section 5 of the Securities Act pursuant to Section
4(2) thereof and Regulation D promulgated thereunder. The recipients of the
securities represented their intentions to acquire the securities for investment
only and not with a view to or for sale in connection with any distribution
thereof and appropriate legends were affixed to the share certificates issued in
such transaction. All recipients had adequate access to information regarding
us.
On December 1, 1999, a registration statement on Form S-1 (No.333-87609)
was declared effective by the SEC, pursuant to which 7,187,500 shares of the
Company's common stock were offered and sold for the account of the Company at a
price of $12.00 per share, generating gross offering proceeds of $86.3 million.
The managing underwriters were Morgan Stanley Dean Witter, Hambrecht & Quist and
Robertson Stephens. In connection with the offering, the Company incurred $6.0
million in underwriting discounts and commissions, and approximately $1.3
million in other related expenses. The net proceeds from the offering, after
deducting the foregoing expenses, were approximately $78.9 million. McAfee.com
has used a portion of the net proceeds of the offering to fund working capital
and sales and marketing expenditure and to acquire Signal 9 Solutions.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K:
(a) The Company filed the following reports on Form 8-K:
February 23, 2000 related to the acquisition of Signal 9.
(b)Exhibits. The exhibits listed in the accompanying Exhibit Index are
filed or incorporated by reference as part of this Report.
33
<PAGE> 34
MCAFEE.COM CORPORATION
FORM 10-Q MARCH 31, 2000
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, and
the results and regulations promulgated thereunder, the registrant has duly
caused this amended report to be signed on its behalf by the undersigned
thereunto duly authorized.
MCAFEE.COM CORPORATION
By: /s/ EVAN COLLINS
Name: Evan Collins
Title: Vice President
Administration,
Chief Financial Officer and
Secretary
Date: May 8, 2000
34
<PAGE> 35
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT PAGE
NUMBER EXHIBIT TITLE NUMBER
- ------- ------------- ------
<C> <S> <C>
3.2 Amended and Restated Certificate of Incorporation of
McAfee.com Corporation, dated December 2, 1999(1)...........
10.1 Form of Indemnification Agreement between the Company and
each of its directors and officers(1).......................
10.2 1999 Amended and Restated Stock Plan and form of agreements
thereunder(1)...............................................
10.3 1999 Director Option Plan and form of agreements
thereunder(1)...............................................
10.4 1999 Employee Stock Purchase Plan and form of agreements
thereunder(1)...............................................
10.5 Corporate Management Services Agreement between the Company
and Networks Associates, Inc., dated as of January 1,
1999(1).....................................................
10.6 Technology Cross License Agreement between McAfee.com and
Networks Associates, Inc., dated as of January 1, 1999(1)...
10.7 Registration Rights Agreement between McAfee.com and
Networks Associates, Inc., dated as of January 1, 1999(1)...
10.8 Asset Contribution and Receivables Settlement Agreement
between McAfee.com and Networks Associates, Inc., dated as
of January 1, 1999(1).......................................
10.9 Intercompany Revolving Loan Agreement between McAfee.com and
Networks Associates, Inc., dated as of January 1, 1999(1)...
10.10 Tax Sharing Agreement between McAfee.com and Networks
Associates, Inc., dated as of January 1, 1999(1)............
10.11 Indemnification and Voting Agreement between McAfee.com and
Networks Associates, Inc. dated August 20, 1999(1)..........
10.12 Joint Cooperation and Master Services Agreement between
McAfee.com and Networks Associates, Inc. dated as of January
1, 1999(1)..................................................
10.13 Amended and Restated Electronic Software Reseller/Web
SiteServices Agreement between Beyond.com Corporation and
McAfee.com, dated as of May 17, 1999(1).....................
10.14 Stockholders Agreement between McAfee.com and Network
Associates, Inc., dated as of October 31, 1999(1)...........
10.15 Lease Agreement dated February 14, 2000 for facility at 535
Oakmead Parkway, Sunnyvale, California by and between RNM
535 Oakmead L.P.(2).........................................
10.16 Master OEM Distributor Agreement between McAfee.com and
Network Associates K.K. ....................................
27.1 Financial Data Schedule.....................................
</TABLE>
- ---------------
(1) Incorporated by reference from the Registrant's Registration Statement on
Form S-1 filed with the Commission on December 2, 1999.
(2) Incorporated by reference from the Registrant's Current Report on Form 10-K
filed with the Commission on March 29, 2000.
35
<PAGE> 1
EXHIBIT 10.16
MCAFEE.COM CORP.
MASTER OEM DISTRIBUTOR AGREEMENT FOR JAPAN
This Master OEM Distributor Agreement (the "Agreement") is effective as
of January 1, 2000 (the "Effective Date") by and between McAfee.com, Corp., a
Delaware corporation, with its principal place of business at 2805 Bowers
Avenue, Santa Clara, CA 95051 ("McAfee.com"), and Network Associates K.K. a
Japanese corporation, with its principal place of business at Toranomon No. 33
Mori Bldg., 3-8-21 Toranomon, Minato-ku Tokyo 105 Japan ("Distributor").
RECITALS
WHEREAS, McAfee owns and/or markets certain computer software services
and products;
WHEREAS, Distributor licenses computer products to End Users and to its
authorized OEMs, system integrators and resellers and offers post-sales support
services and software evaluation libraries through its sales offices and/or
resale locations;
WHEREAS, Distributor desires to license the Products from McAfee.com in
order to sub-license the Products in Japan to OEMs for the sole purpose of
producing OEM Products for distribution to End Users and Resellers, and
McAfee.com desires to make the Products available to Distributor for these
purposes.
IN CONSIDERATION of the foregoing premises, the parties agree that the
terms and conditions attached and incorporated herein shall govern the
distribution of the Products by Distributor.
IN WITNESS WHEREOF, the parties have executed this Agreement.
NETWORK ASSOCIATES K.K.
Address for Notices:
Network Associates K.K. Signed: /s/ Takahiro Kato
Toranomon No. 33 Mori Bldg. --------------------------------
Toranomon, Minato-ku Name: Takahiro Kato
Tokyo 105 Japan Title: Representative Director
Fax: 81-3-3435-1349
Attention: Representative Director
MCAFEE.COM CORP.
Address for Notices:
McAfee.com Corp. Signed: /s/ Srivats Sampath
2805 Bowers Avenue --------------------------------
Santa Clara, California U.S.A. 95051 Name: Srivats Sampath
Fax: Title: President, Chief Executive
Attention: Officer and Director
<PAGE> 2
TERMS AND CONDITIONS OF AGREEMENT
1. DEFINITIONS
(a) "Agreement" means this Agreement, fully executed by the parties,
which includes all Attachments.
(b) "Attachments" means addenda, including any exhibits or schedules
to this Agreement describing the License Fees, and any special
terms and conditions pertaining to this Agreement.
(c) "End User" means the entity to whom the End User License
Agreement applies, who uses the Products for internal use and
not for re-sale, marketing, leasing or renting, and who has
obtained the Products bundled or pre-installed by an OEM.
(d) "End User License Agreement" means the license to use the
Products, which shall be included with each Product and in the
form of Exhibit A (or a translation thereof or as specified by
McAfee.com
(e) "Error" means any reproducible failure of the Products to
perform its intended functions or any significant inaccuracies
in the End User Documentation.
(f) "License Fees" has the meaning set forth in Section 5(a).
(g) "Localization Services" has the meaning set forth in Section
4(j).
(h) "Marketing Materials" include all data sheets, reference
stories, product literature, CDs, and related items.
(i) "Master Distributor Agreement" means that certain Master
Distributor Agreement between Distributor and NAI dated January
1, 2000, as such agreement is renewed, amended, supplemented or
revised from time to time.
(j) "NAI" means Network Associates, Inc., a Delaware corporation.
(k) "OEM" means, and shall be limited to, an original computer
equipment manufacturer who preinstalls or bundles software with
its personal computer hardware.
(l) "OEM Product" means, and shall be limited to, an OEM's personal
computer hardware loaded or bundled with the Products or with
software which accesses PC Clinic.
(m) "PC Clinic" means the paid subscription service of McAfee.com
referred to as "PC Clinic" and all upgrades, new versions or
successor products thereof, generally made available by
McAfee.com in the Territory from time to time in its sole
discretion.
(n) "Products" means all current and future NAI software products
licensed to McAfee.com by NAI pursuant to that certain
Technology Cross License Agreement dated January 1, 1999, but
only to the extent that McAfee.com is authorized to license such
software products to Distributor within the Territory without
infringement of third party rights.
(o) "Resellers" means individuals and companies that distribute the
OEM Products to End Users or to other Resellers in the
Territory.
(p) "Single User" means and End User who acquires the right to use
the software product from an OEM or Reseller under an End User
License Agreement for single-node, individual-consumer home
office or single-node, individual-small office use only and not
for resale or multi-user usage.
(q) "Subscription" means a subscription for PC Clinic generated.
from end users of OEM Products.
(r) "Territory" is Japan, in which the Distributor agrees to confine
its sales and marketing activities.
2. APPOINTMENT. McAfee.com appoints Distributor as the exclusive (subject to the
provisos below) distributor of the Products to OEMs in the Territory for the
sole purpose of authorizing such OEMs to produce OEM Products for distribution
to Resellers or End Users, and Distributor accepts this appointment. To perform
its obligations as exclusive (subject to the provisos below) distributor,
McAfee.com grants to Distributor the non-transferable, fee-bearing right to
reproduce the Products, market and distribute them to OEMs in the Territory,
subject to the terms of the End User License Agreement that accompanies each
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<PAGE> 3
Product. PROVIDED, HOWEVER, that (i) with respect to distribution of PC Clinic
to OEMs, Distributor's exclusive license shall apply only for the OEMs listed on
Exhibit C or their affiliates, and Distributor's PC Clinic distribution right
for other OEMs shall be non-exclusive, and (ii) the exclusive license granted by
McAfee.com to Distributor may be changed to a non-exclusive license by
McAfee.com (without obligation, penalty or other change in the terms and
conditions of this Agreement) upon 60 days prior written notice by McAfee.com at
any time during the Term (or any renewal term) subsequent to Distributor's
failure to meet or exceed the Minimum Performance Targets set forth in Exhibit
E.
3. DISTRIBUTION.
(a) Distributor's Distribution Right. Distributor, as an independent
distributor, at its own risk and expense and subject to any such prices,
contractual terms and conditions as Distributor may from time to time determine,
shall distribute the Products to OEMs solely for distribution, marketing and
sale to Resellers and End Users as a component of an OEM Product. The
distribution of Products by Distributor to OEMs shall be governed by an OEM
agreement in form and substance acceptable to McAfee.com, the terms of which
shall not grant to the OEM rights exceeding the rights granted to Distributor
under this Agreement and shall be no less favorable to and protective of
McAfee.com in all material respects than this Agreement, provided that each of
the Distributor's existing OEM license agreements as of the Effective Date which
are set forth in Exhibit C hereto are deemed acceptable to McAfee.com.
McAfee.com shall not unreasonably withhold or delay its consent to the form of
an OEM agreement proposed by Distributor, such consent to be deemed given if
McAfee.com fails to respond to Distributor's written request for approval within
five (5) business days after it receives such request. Distributor may submit
for approval to McAfee.com proposed OEM agreements in their original Japanese
language form, provided a summary of key business terms (royalty amount and
payment terms, term of contract, product, upgrade rights of end users, and term
of End User License Agreement) in also submitted in English. Distributor's
exclusive right of distribution is limited to OEMs with their principal place of
business located in the Territory.
(b) Limitation on Online Distribution. Distributor is not authorized to
sell, supply or distribute the Products via the Internet (i) to Single Users or
(ii) to OEMs, Resellers, or other Original Equipment Manufacturers, resellers or
sub-distributors for sale or distribution via the Internet to Single Users;
provided that such restriction shall not prevent Distributor from fulfilling its
obligations for the remaining term of any such sub-distribution agreements that
are in existence on the Effective Date, which are set forth in Exhibit D hereto.
Any such agreements shall be subject to the License Fees set forth below. After
the establishment of McAfee.com Japan, Distributor shall not renew any such
agreements, and to the extent any such agreements may be assigned upon their
terms, Distributor shall assign such agreements with the consent of the
sub-distributor to McAfee.com Japan forthwith. Distributor shall use its best
efforts to obtain the consent of the sub-distributors to assign such agreements
to McAfee.com Japan.
(c) PC Clinic Changes. McAfee.com reserves the right in its sole
discretion and without liability to Distributor to add additional Products
features to PC Clinic, change the price for PC Clinic, modify or rename PC
Clinic, change the level of McAfee.com's support for PC Clinic and/or
discontinue the availability of PC Clinic in the Territory. McAfee.com retains
the right to discontinue distribution of PC Clinic through Distributor upon
giving Distributor thirty (30) days prior written notice of such discontinuance.
McAfee.com will use reasonable efforts to provide Distributor with thirty (30)
days notice prior to any such change.
(d ) McAfee.com Distribution Rights. As between McAfee.com and
Distributor, McAfee.com shall have the right, but not the obligation, to
distribute updates or renewals of the Products or cross sales to other products
via the Internet (or an Internet link bundled with or into the Products) and
shall be entitled to retain 100% of any revenue therefrom except to the extent
provided in Exhibit B. For avoidance of doubt, McAfee.com agrees not (i) grant
any multi-user licenses to the Products for use within the Territory, or (ii)
distribute packaged versions of the Products (other than PC Clinic) within the
Territory.
(e) Term of End User License Agreement. The term to be proposed to each
OEM of the license granted in the End User License Agreement for PC Clinic shall
be set by McAfee.com in its sole discretion. Distributor may set the term to be
proposed to each OEM of the license granted in the End User License Agreements
for other Products supplied to OEMs, provided that, without the prior written
consent of McAfee.com (which shall not be unreasonably withheld or delayed),
such license term shall not exceed twelve months for such other Products
supplied to OEMs pursuant to any OEM agreement entered into or renewed after
August 1, 2000.
Page -3-
<PAGE> 4
4. MARKETING.
(a) Products. McAfee.com will make available, and Distributor is granted
the right to obtain, the Products via electronic means. Distributor is also
granted the right to obtain all Marketing Materials. The parties hereby
acknowledge that to the extent they use words such as "purchase", "sale",
"purchase price", "fees", and similar words with respect to the Products, they
do so for convenience and do not intend to imply that the Products are being
sold.
(b) General. Distributor will use commercially reasonable efforts to
market the Products to OEMs to the best of its ability, and to that end will (i)
provide a sufficient number of competent sales and support representatives
trained and knowledgeable about the Products, capable of answering OEM questions
regarding the Products, demonstrating the Products, informing OEMs about the
Product features, assisting OEMs in determining which Products will best meet
their needs and providing pre-and post-sale technical assistance, service and
support for the Products, (ii) conduct marketing activities to OEMs, (iii)
maintain a sufficient inventory of the Products to satisfy anticipated demand
from OEMs, (iv) make Products sales and promotional materials available to OEMs,
(v) provide training for the Products as part of Distributor's new hire
orientation, (vi) support special promotions to OEMs, and (viii) maintain a
sound financial condition. Distributor will conduct its business in a manner
that reflects favorably upon the Products and McAfee.com. Distributor will
ensure the media for each Product distributed by the Distributor contains a
label bearing a NAI or McAfee.com copyright, as the case may be, and the
particular Product trademark. Distributor shall cause the OEM to agree to bundle
each copy of such media for the Products with the applicable End User License
Agreement before shipment to Resellers and End Users. Distributor shall not in
any event remove from or obscure upon any Products any labels placed thereon by
McAfee.com containing statements of restrictions upon distribution, without the
prior written consent of McAfee.com. Distributor must provide all of the files
that McAfee.com includes with a particular Product to Distributor's OEMs as a
whole with all DOC, TXT, DLL and other files included with all COM and EXE
files.
(c) Advertising; Use of Trademarks. Solely within the Territory,
Distributor may advertise and promote the Products in a commercially reasonable
manner and, subject to the provisions of Section 15, may use trademarks and
service marks provided by McAfee.com or NAI in connection therewith, provided
that all such promotions and advertising will be consistent with McAfee.com's
general quality standards and the provisions of this Agreement.
(d) Trademarks Rights. McAfee.com and/or NAI owns any and all
trademarks, trade names, and service marks for the Products. Such trademarks,
trade names, and service marks shall include all product names, the names
"McAfee" and "McAfee.com", logos, designs, and other designations or brands used
by McAfee.com and NAI in connection with the Products. Distributor acknowledges
and agrees that McAfee.com is not granting to Distributor any rights in any
Product trademark, trade name, or service mark in or outside of the Territory.
Distributor shall not attempt to register any Product trademark, or any trade
name or service mark which is similar to the Products' trademark, trade name or
service mark in or outside of the Territory during or after the term of this
Agreement. Distributor agrees that only NAI and/or McAfee.com, as the case may
be, is entitled to register such trademarks, trade names, and service marks in
any class of products or services in the Territory. If Distributor has any
ownership or rights or claims to any McAfee.com trademarks, trade names, or
service marks, then Distributor agrees to so notify McAfee.com and agrees that
such ownership or rights or claims are transferred to McAfee.com on the
Effective Date of this Agreement. The compensation to Distributor for the
transfer of such ownership or rights or claims shall be $1.00.
(e) McAfee.com Marketing Support. McAfee.com will make available to
Distributor all Marketing Materials ordinarily, and without any compensation,
made available to its Resellers and OEMs regarding technical, sales, and
marketing information for the Products.
(f) Sales and Technical Training. McAfee.com will provide Distributor
with sales and technical training on existing and new Products at a level which
McAfee.com determines is commensurate with the revenues generated by
Distributor.
(g) PC Clinic; Joint Sales Calls. Distributor agrees to use its best
efforts to migrate OEMs from the VirusScan product to PC Clinic, provided that
(i) Distributor has received sufficient pre-sales support for PC Clinic to make
such migration commercially practicable, (ii) PC Clinic meets any applicable
product testing and quality standards of the relevant OEM and (iii) McAfee.com
is solely responsible for PC Clinic product quality. McAfee.com and Distributor
shall make joint sales calls to OEMs in order to promote such OEM's transition
to PC Clinic. Both parties agree to cooperate in promoting the Products in the
Territory.
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<PAGE> 5
(h) Competing Products. During the term of this Agreement, Distributor
agrees not to market to OEMs any products that directly or indirectly compete
with the Products, and shall not engage in any competitive activities or make
any investments in or with any competitor offering competing products, except
with the prior written consent of McAfee.com. Notwithstanding the foregoing,
Distributor may market, distribute and sell any NAI products in accordance with
the Master Distributor Agreement (except to the extent the rights granted in the
Master Distributor Agreement may be deemed to alter the terms of this
Agreement), and this Agreement shall not be construed as to limit or reduce the
rights of Distributor under such agreement with NAI. For the avoidance of doubt
no rights are granted to Distributor under the Master Distributor Agreement with
respect to sales to OEMs, or for PC Clinic.
(i) No Modification. Except with the prior approval of McAfee.com,
Distributor agrees not to alter, remove, or modify any serial number,
identifying number, trademark, End User License Agreement, registration card,
copyright or other proprietary rights notices contained in or on the Products or
any materials supplied under this Agreement. Distributor will not apply any
other trademarks, logos or notices to the Products.
(j) Localization. Distributor agrees to provide reasonable assistance to
McAfee.com, at McAfee.com's expense, with localization, translation,
engineering, porting, printing, web-site localization and other work required to
create Japanese language OEM versions of the Products and Marketing Materials
(the "Localization Services"). McAfee.com shall own the copyrights to resulting
Japanese-language translations and other work product (the "Work Product") to
the extent that McAfee.com has borne the expense of the creation of such Work
Product. The agreed non-binding target date for completion of the localization
of the initial Japanese language version of PC Clinic is September 30, 2000.
(k) McAfee.com K.K. Distributor and McAfee.com agree to cooperate in the
establishment of McAfee.com K.K. ("McAfee.com Japan"), a wholly owned subsidiary
of McAfee.com to be established after the date hereof. Distributor shall
provide, at McAfee.com Japan's expense (equal to a reasonable allocation of
actual costs), office space for up to ten (10) employees of McAfee.com Japan.
(l) Quarterly Progress Meetings. Representatives of each party shall
meet on a quarterly basis to discuss the progress of product development,
localization and marketing.
5. LICENSE FEES, REPORTS, TAXES.
(a) License Fees. The license fees ("License Fees") to be paid to
McAfee.com by Distributor for any license or Marketing Materials provided by
Distributor to OEMs, and to Distributor by McAfee.com for any Subscriptions
generated through an OEM, are set forth in Exhibit B. Each party agrees to pay
License Fees quarterly regardless of the other party's invoice date. The License
Fees are denominated in Japanese Yen ((Y)), but if requested by McAfee.com,
payments to McAfee.com shall be payable by Distributor to McAfee.com in U.S.
Dollars converted from Japanese Yen at the exchange rate available to
Distributor on the date of payment. All payments will be made via wire transfer
to a bank account designated by McAfee.com.
(b) Distributor's Reports. Distributor will provide a customer and sales
report to McAfee.com in a detailed format acceptable to McAfee.com within
fifteen (15) business days after the end of each quarter during the term of this
Agreement, including listing (and if requested by McAfee.com, providing copies
of) licenses granted by Distributor to all OEMs for all Products for that
quarter. Such customer and sales reports will be the basis for McAfee.com's
invoice for such sales to Distributor for that quarter. Distributor will also
provide a forecast report and a customer opportunities report in a format
acceptable to McAfee.com within five (5) business days after each quarter during
the term of this Agreement. All such reports will be sent via e-mail to
McAfee.com.
(c) McAfee.com's Reports. McAfee.com will provide a customer and sales
report to Distributor in a detailed format acceptable to Distributor within
fifteen (15) business days after the end of each quarter during the term of this
Agreement, which lists the number of new Subscriptions for that quarter. Such
customer and sales reports will be the basis for Distributor's invoice for such
sales to McAfee.com for that quarter. McAfee.com will also provide a forecast
report and a customer opportunities report in a format acceptable to Distributor
within five (5) business days after each quarter during the term of this
Agreement. All such reports will be sent via e-mail to Distributor.
(d) Taxes. All amounts payable by any paying party to a receiving party
under this Agreement are exclusive of any tax, withholding tax, levy, or similar
governmental charge that may be assessed by any
Page -5-
<PAGE> 6
jurisdiction in the Territory or in the United States. Withholding for corporate
or personal income taxes, if any, required by the government of Japan or the
United States on the amounts payable pursuant to this Agreement shall be
withheld and paid by the paying party to the appropriate tax authorities, and
the amounts payable shall be subject to deductions of amounts equivalent to such
withholding taxes. The paying party shall cooperate with the receiving party and
provide any documentation necessary to reduce the withholding tax rate to the
lowest legal rate. Promptly after each such tax payment, the paying party shall
forward to the receiving party the official tax receipts or other evidence
issued by the tax authorities concerned. The paying party shall assist the
receiving party in preserving and exercising whatever right the receiving party
may have to contest by appropriate proceedings the validity or amount of any tax
thus withheld.
6. TERM AND TERMINATION.
(a) Term. The initial term of this Agreement is three (3) years from the
Effective Date. This Agreement shall automatically renew for up to one
additional two (2) year term, provided that (i) Distributor has used its best
efforts to promote the sale of Products to OEMs in the Territory and has met or
exceeded the Minimum Performance Targets set forth on Exhibit E, and (ii) the
Master Distributor Agreement between NAI and Distributor remains in effect.
(b) Termination for Breach. Unless otherwise specified, if either party
fails to comply with any of the terms and conditions of this Agreement, the
other party may terminate this Agreement upon thirty (30) days written notice to
the breaching party specifying any such breach, unless the breach specified
therein has been remedied within such thirty (30) day period.
(c) Termination by McAfee.com. McAfee.com may terminate this Agreement
upon fifteen (15) days written notice for the following breaches by Distributor
unless such breaches are cured within such fifteen (15) day period: (i)
Distributor fails to pay amounts due from sales reports within thirty (30) days
pursuant to Section 5(a) or any McAfee.com invoice within 30 days of issuance;
(ii) Distributor markets any competing products or otherwise violates Sections
3(b) or 4(h) without McAfee.com's written consent; or (iii) Distributor misuses
McAfee.com's trademarks in violation of Sections 4(c) or 4(d).
(d) Termination for change in business. McAfee.com may terminate this
agreement immediately if (i) there is any material change in the ownership or
management of Distributor, or Distributor's business or assets where such change
no longer meets the requirements of this Agreement or where ownership is
transferred to a competitor of McAfee.com or NAI; (ii) a receiver is appointed
for Distributor or its property; (iii) Distributor becomes insolvent or unable
to pay its debts as they mature; (iv) Distributor makes an assignment for the
benefit of creditors; or (v) Distributor becomes the subject of any proceeding
under any bankruptcy, insolvency, wagi, company reorganization, or debtor's
relief law.
(e) Effect of Termination. Upon termination, all outstanding License
Fees will be immediately due and payable. Distributor shall have no further
right to distribute the Products or any related materials.
(f) No Liability, Damages. Neither party will be liable for damages or
costs of any nature arising from the expiration or termination of this Agreement
in accordance with its terms.
(g) Survival beyond Termination. Those rights and obligations that by
their nature extend beyond the term of this Agreement shall survive any
termination or expiration of this Agreement.
7. TECHNICAL SUPPORT.
(a) McAfee.com Support. McAfee.com will provide technical support to
Distributor via telephone, email, and fax as needed to assist Distributor in
performing its duties described in 7(b). McAfee.com shall invoice Distributor
for such technical support at McAfee.com's customary rates charged to third
parties. McAfee.com will not provide support directly to any of Distributor's
OEMs or any Resellers or End Users unless as agreed between the parties.
(b) Distributor Support. Distributor shall be solely responsible for
providing technical support via telephone, email, and fax to the OEMs with
respect to the Products other than PC Clinic. At a minimum, Distributor shall
provide technical support with respect to such Products to the OEMs including
the following: (i) assisting with installation, operation, and use of the
Products; (ii) preparing all Error reports, forwarding these to McAfee.com, and
conducting necessary call backs; (iii) furnishing Error corrections to OEMs
provided to Distributor by McAfee.com. Upon termination of this Agreement,
Distributor expressly
Page -6-
<PAGE> 7
acknowledges its obligation to continue to support all of Distributor's OEMs and
their End Users who still have a valid subscription license for any Product or a
separate support agreement with Distributor for the remaining term of such
subscription or agreement. McAfee.com shall be solely responsible for providing
technical support with respect to PC Clinic.
(c) New Viruses. Distributor agrees to provide any new suspected virus
to McAfee.com technical personnel as soon as possible. Distributor will include
a brief description of how the virus functions with such samples if available.
8. INSPECTIONS, RECORDS AND REPORTING.
(a) Notification. Distributor will notify McAfee.com in writing of any
claim made or proceeding initiated against McAfee.com or Distributor involving
the Products within ten (10) days after Distributor learns of such claim or
proceeding. Distributor will also report promptly to McAfee.com all claimed or
suspected Product Errors or violations of the End User License Agreement.
Distributor will notify McAfee.com in writing not more than thirty (30) days
after any change in the management or control of Distributor or any transfer of
more than five percent of Distributor's voting control or a transfer of
substantially all its assets.
(b) Records. For two (2) years after each calendar quarter during the
term of this Agreement, Distributor will keep full and accurate books of account
and copies of all documents and other materials for such quarter relating to
this Agreement and Distributor's records, accounts and contracts relating to the
distribution of the Products at Distributor's office.
(c) Audit. Each party and its representatives, upon reasonable advance
notice to the other party and at the examining party's cost, shall have the
right at any time during the term of this Agreement, and for two (2) years
thereafter, to examine such books, records, correspondence, quotations, orders
and other documents as it may deem necessary and appropriate. Such audit shall
be conducted during regular business hours at the examined party's offices and
in such manner as not to interfere with the examined party's normal business
activities. All information from such inspections will be disclosed only to
those who need to know the contents in the discharge of their duties to the
examining party under this Agreement. If such inspections should disclose any
under reporting of License Fees, then the paying party shall promptly pay to the
receiving party such amount, together with interest thereon at the lesser of the
rate of 1 1/2% per month or the maximum allowable by applicable law from the
date on which such amount became due to the receiving party from the paying
party, plus any reasonable fees (including accounting or legal fees) incurred by
the paying party associated with the audit.
9. GOVERNMENT APPROVALS. Distributor shall, at its own expense, obtain and
arrange for the maintenance in full force and effect of all government
approvals, consents, licenses, authorizations, declarations, filings, and
registrations as may be necessary for the performance of the terms and
conditions of this Agreement, including without limitation, fair trade
approvals, under all laws, regulations, and other legal requirements within the
Territory that apply to this Agreement, including tax and foreign exchange
legislation.
10. EXPORT. Distributor acknowledges that the laws and regulations of the United
States may restrict the export and re-export of certain commodities and
technical data of United States origin, including the Products in any medium.
Distributor agrees that it will not export or re-export the Products in any form
without the appropriate United States and foreign government licenses.
11. WARRANTIES
(a) Limited Warranty. McAfee.com warrants that for a period of 30 days
from the date of delivery to Distributor that (i) any media on which the Product
is furnished will be free from defects in materials and workmanship under normal
use; (ii) the Products contain the features described in the appropriate data
sheet. Except for the foregoing, to the full extent allowed by applicable law,
the Products are provided "AS IS". Distributor's exclusive remedy and
McAfee.com's entire liability under this limited warranty will be at
McAfee.com's option to repair or replace the Product.
(b) No Other Warranties. OTHER THAN AS SET FORTH HEREIN, MCAFEE.COM
DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES OR CONDITIONS WITH REGARD TO THE
PRODUCTS, INCLUDING WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, AND NON INFRINGEMENT OF THIRD PARTY RIGHTS. NO
Page -7-
<PAGE> 8
PERSON IS AUTHORIZED TO MAKE ANY OTHER WARRANTY OR REPRESENTATION CONCERNING THE
PRODUCTS OTHER THAN AS PROVIDED IN THE END-USER LICENSE AGREEMENT. Distributor
shall be solely responsible for any claims, warranties or representations made
by Distributor or Distributor's employees or representatives that differ from
the warranty provided by McAfee.com or its licensors. In addition, where
Distributor produces any materials and supplies them to OEMs or their End Users,
Distributor will be solely responsible for all remedies and warranties for any
defects or errors in any such materials so supplied.
12. INDEMNIFICATION.
(a) Indemnification of Distributor. McAfee.com agrees that, if notified
promptly in writing and given sole control of the defense and all related
settlement negotiations, it will defend Distributor against any claim based on
an allegation that a Product in the form supplied by McAfee.com to Distributor
directly infringes a Japan copyright or Japan trade secret right. Under no
circumstances will McAfee.com be directly or indirectly deemed to indemnify
Distributor for any Japan patent or trademark claim. To qualify for such defense
and payment, Distributor must: (i) give McAfee.com prompt written notice of such
claim; (ii) allow McAfee.com to control and fully cooperate with McAfee.com in
the defense and all related settlement negotiations; and (iii) diligently
pursue all indemnification and other remedies provided to it under its Master
Distributor Agreement with respect to any alleged infringement. McAfee.com will
pay any resulting costs, damages and attorneys' fees finally awarded by a court
with respect to any such claims but shall not be responsible for any compromise
made without its consent, or that are subject to indemnification by NAI under
the Master Distributor Agreement . Distributor agrees that, if the Products in
the inventory of Distributor or the operation thereof, become, or in
McAfee.com's opinion are likely to become, the subject of an infringement claim,
Distributor will permit McAfee.com, at McAfee.com's option and expense, to,
among other things: (x) procure the right for Distributor to continue marketing
and using such Products; (y) to replace or modify them so that they become
non-infringing; (z) if neither of the foregoing alternatives is available on
terms that McAfee.com deems reasonable, permit Distributor to return such
Products and McAfee.com will grant Distributor a credit equal to the price paid
by Distributor for such returned Products, as adjusted for discounts, returns
and credits actually given and this Agreement shall be deemed terminated with
respect to any such infringing Product. THE FOREGOING STATES DISTRIBUTOR'S SOLE
AND EXCLUSIVE REMEDY WITH RESPECT TO CLAIMS OF INFRINGEMENT OF THIRD PARTY
PROPRIETARY RIGHTS OF ANY KIND.
(b) No Combination Claims. Notwithstanding Section 12(a), McAfee.com
will not be liable to Distributor for any claim arising from or based upon the
combination, operation or use of any Product with equipment, data or programming
not supplied by McAfee.com, or arising from any unauthorized modification of the
Products.
(c) Indemnification of McAfee.com. Distributor will indemnify, hold
harmless and upon McAfee.com's request, defend McAfee.com against any claims,
liabilities and expenses (including court costs and reasonable attorneys' fees)
arising from the negligence, misrepresentations, or acts or omissions of
Distributor, its employees or representatives.
13. LIMITATION OF LIABILITY. NEITHER PARTY'S LIABILITY WITH REGARD TO THIS
AGREEMENT OR THE PRODUCTS, IF ANY, WILL INCLUDE CONSEQUENTIAL, INCIDENTAL,
SPECIAL OR OTHER INDIRECT DAMAGES, SUCH AS LOST PROFITS, EVEN IF THE OTHER PARTY
HAS KNOWLEDGE OF THE LIKELIHOOD OF SUCH DAMAGES; SAVE THAT NOTHING IN THIS
CLAUSE SHALL RESTRICT LIABILITY FOR DEATH, PERSONAL PROPERTY DAMAGE, DAMAGE OR
PERSONAL INJURY DIRECTLY CAUSED BY THE NEGLIGENCE OF EITHER PARTY.
Notwithstanding any other provisions of this Agreement, McAfee.com's aggregate
liability to Distributor under this Agreement shall be limited to a sum equal to
the total payments made by Distributor to McAfee.com for Products ordered
directly from McAfee.com in the most recent Term of the Agreement preceding
imposition of such liability.
14. CONFIDENTIALITY. Certain information disclosed by either party, including
any information relating to such party's research, development, proprietary
technology, product and marketing plans, finances, personnel and business
opportunities will be considered confidential information. Each party will not
use the other party's confidential information except as required to achieve the
objectives of this Agreement and will not disclose such confidential information
except to employees, representatives and contractors who have a need to know in
the discharge of their duties under this Agreement. Such restrictions will not
apply to information that (i) becomes public knowledge other than through the
disclosing party; (ii) is already known by the
Page -8-
<PAGE> 9
disclosing party prior to disclosure by the disclosing party; (iii) is received
from a third party without similar restriction and without breach of this
Agreement. Disclosure of information is not prohibited if prior notice is given
to McAfee.com and such disclosure is: (a) compelled pursuant to a legal
proceeding or (b) otherwise required by law. Distributor will make no disclosure
or statement regarding the terms of this Agreement without first obtaining
McAfee.com's prior written consent.
15. PROPRIETARY RIGHTS. McAfee.com and its licensors retain ownership of all
intellectual property rights in the Products and Work Product as provided in
Section 4(j) hereof. Distributor will report any violations of any OEM agreement
or of the End User License Agreement and any claims of Product Errors that comes
to its attention. Distributor will not reverse engineer, modify or otherwise
change any of the software contained in the Products or its form. Distributor
will not remove, alter or obscure any copyright or other proprietary rights
notices contained on the Products. Distributor will not apply any other
trademarks, logos or notices to the Products. Distributor may use trademarks and
logos as provided by McAfee.com and/or NAI's only in connection with the
marketing and resale of the Products. Distributor's use of trademarks and logos
must be in accordance with NAI's and/or McAfee.com's policies and must meet
McAfee.com's quality standards.
16. RELATIONSHIP OF THE PARTIES. The parties are independent contractors and
this Agreement does not create any partnership, joint venture, or relationship
of employer and employee between McAfee.com and Distributor. Both McAfee.com and
Distributor acknowledge that neither party may obligate the other to any
warranty, agreement, or other obligation.
17. FORCE MAJEURE. Neither party shall be liable hereunder by reason of failure
or delay in the performance of its obligations hereunder (except for the payment
of money) on account of strikes, shortages, riots, insurrection, fires, flood,
storm, explosions, acts of God, war, governmental action, labor conditions,
earthquakes, or any other cause which is beyond the reasonable control of such
party.
18. EQUITABLE RELIEF. Each party acknowledges that any breach of its obligations
under this Agreement with respect to the proprietary rights or confidential
information of the other party will cause the other party irreparable injury for
which there are inadequate remedies at law, and therefore such other party will
be entitled to equitable relief in addition to all other remedies provided by
this Agreement or available at law.
19. COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original and all of which together shall
constitute one instrument.
20. ASSIGNMENT. Neither party shall have the right to assign or otherwise
transfer this Agreement or any rights herein granted to any other person or
entity, except with the prior written consent of the other party, provided that
McAfee.com may assign all (but not less than all) of its rights and obligations
under this Agreement to McAfee.com Japan. Any attempted assignment in violation
of this Agreement shall be void.
20. GENERAL. This Agreement, including all Attachments hereto, constitutes the
entire agreement between the parties with respect to the subject matter hereof,
and supersedes and replaces all prior or contemporaneous understandings or
agreements, written or oral, regarding the subject matter. This Agreement may
not be changed, terminated or amended except in writing. The provisions of any
order for Products provided by Distributor will not apply unless expressly
included in McAfee.com's written acceptance of the order. McAfee.com's failure
or delay in exercising any of its rights will not constitute a waiver of such
rights unless expressly waived in writing. This Agreement will be governed and
interpreted according to the laws of California, excluding its conflict of laws
rules. Any suit hereunder may be brought in the federal or state courts in the
County of Santa Clara, California, and Distributor hereby submits to the
personal jurisdiction thereof. The parties acknowledge that the United Nations
Convention on Contracts for the International Sales of Goods (1980) is
specifically excluded from application to this Agreement. If a court of law
finds any provision of this Agreement unenforceable, the parties agree to
replace the offending provision with an enforceable provision that most nearly
achieves the intent and economic effect of the unenforceable provision. Any
notice provided hereunder must be in writing and will be deemed given upon the
earlier of actual receipt or ten (10) days after being sent by first class mail,
return receipt requested, to the appropriate address set forth above, as such
address may be changed by written notice to the other party.
Page -9-
<PAGE> 10
EXHIBIT B
B1. LICENSE FEES PAYABLE BY DISTRIBUTOR TO MCAFEE.COM
(a) Distributor shall pay as License Fees to McAfee.com fifty percent
(50%) of Distributor's net invoice sales revenue (net of returns and rebates,
and excluding consumption or similar taxes) received in a given calendar quarter
from all sales made pursuant to this Agreement in any order, contract,
transaction or arrangement that includes the Products.
(b) During the calendar year 2000 only, in no event shall the License
Fees paid to McAfee.com by Distributor pursuant to this Agreement be less than
US$125,000 (or Yen equivalent) per calendar quarter.
B2. LICENSE FEES PAYABLE BY MCAFEE.COM TO DISTRIBUTOR
McAfee.com shall pay to Distributor as License Fees ten percent (10%) of
net sales revenue received from PC Clinic Subscriptions directly generated from
end users of OEM Products (net of revenue sharing with OEMs, returns and
rebates, and excluding consumption or similar taxes). Such License Fees shall be
payable for the calendar quarter in which McAfee.com receives the Subscription
payment.
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<PAGE> 11
EXHIBIT C
OEM AGREEMENTS OF DISTRIBUTOR
<TABLE>
<CAPTION>
COMPANY AGREEMENT TITLE START DATE PRODUCT
------- --------------- ---------- -------
<S> <C> <C> <C>
Toshiba Corporation Software License Agreement 01-May-99 VirusScan
EPSON HANBAI Co., Ltd. McAfee OEM License Agreement 01-Oct-99 VirusScan
Sharp Corporation OEM License Agreement 01-Feb-99 VirusScan
NEC Corporation OEM License Agreement 01-Oct-99 VirusScan
Hitachi, Ltd. OEM License Agreement 30-Mar-99 VirusScan
Fujitsu, Ltd License Agreement 07-Sep-99 VirusScan
Sony Corporation OEM Software License Agreement 13-May-99 VirusScan for
Win95/98(J,E,G,F)
Matsushita Electric
Industrial Co., Ltd. OEM License Agreement Target: by the VirusScan
end of May '00
</TABLE>
By May 15, 2000, Distributor shall provide McAfee.com with an English summary of
the key business terms (royalty amount and payment terms, term of contract,
product, upgrade rights of end users, and term of End User License Agreement)
for each of the above OEM agreements.
Page -12-
<PAGE> 12
EXHIBIT D
INTERNET SUB-DISTRIBUTION AGREEMENTS OF DISTRIBUTOR EXISTING AS OF THE EFFECTIVE
DATE
<TABLE>
<CAPTION>
COMPANY AGREEMENT TITLE START DATE
------- --------------- ----------
<S> <C> <C>
NEC Corporation Software Distribution Agreement (Site:NEC BIGLOBE) 1999/7/15
Hitachi,Ltd Online Distribution Addendum (to Special Distribution 1999/12/16
Agreement) (Site: Hitachi FloraCity)
Mitsubishi Corporation Online Distribution Agreement (Site: b-store) 2000/2/1
NextBusiness Systems Online Distribution Agreement(Site: Onkyo) 1999/10/28
</TABLE>
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<PAGE> 13
EXHIBIT E
MINIMUM PERFORMANCE TARGETS FOR RENEWAL AND/OR MAINTENANCE OF EXCLUSIVITY:
1/1/2000 to 12/31/2000:
(c) $500,000 in License Fees
1/1/2001 to 12/31/2003:
In each year 5 million units of any Product (VirusScan and/or PC Clinic)
distributed to OEMs.
Page -14-
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from the
consolidated balance sheet at March 31, 2000 and the consolidated statement of
operations for the quarter ended March 31, 2000, and is qualified in its
entirety by reference to such financial statements.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-2000
<PERIOD-START> JAN-01-2000
<PERIOD-END> MAR-31-2000
<CASH> 45,515
<SECURITIES> 32,348
<RECEIVABLES> 4,732
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 59,718
<PP&E> 6,258
<DEPRECIATION> (1,526)
<TOTAL-ASSETS> 105,232
<CURRENT-LIABILITIES> 39,940
<BONDS> 0
0
0
<COMMON> 44
<OTHER-SE> 106,272
<TOTAL-LIABILITY-AND-EQUITY> 105,232
<SALES> 10,258
<TOTAL-REVENUES> 10,258
<CGS> 3,092
<TOTAL-COSTS> 3,092
<OTHER-EXPENSES> 15,096
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> (6,631)
<INCOME-TAX> 0
<INCOME-CONTINUING> (6,631)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (6,631)
<EPS-BASIC> (0.15)
<EPS-DILUTED> (0.15)
</TABLE>
