UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 10-K/A No. 1
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the Fiscal year ended September 30, 1997
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from___________to___________
Commission File Number: 0-132-58
BOOLE & BABBAGE, INC.
(Exact name of registrant as specified in its charter)
Delaware 94-1651571
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
3131 Zanker Road, San Jose, CA 95134-1933
(Address of principal executive offices)
Registrant's telephone number, including area code: (408) 526-3000
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act: Common Stock, $.001
par value (Title of Class)
Indicate by check mark whether the Registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes [X] No [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [X]
The aggregate market value of voting stock held by nonaffiliates of the
registrant, based upon the average bid and asked price of the Common Stock on
November 28, 1997, was approximately $503,252,809. Shares of Common Stock held
by each officer and director have been excluded because such persons may be
deemed to be affiliates. This determination of affiliate status is not
necessarily a conclusive determination for other purposes.
The number of shares outstanding of the registrant's Common Stock on November
28, 1997 was 18,866,547.
DOCUMENTS INCORPORATED BY REFERENCE
1. Portions of Annual Report to Stockholders for fiscal year ended September
30, 1997 - Items 5, 6, 7, 8 and 14.
2. Portions of Proxy Statement dated January 15, 1998 - Items 10, 11, 12 and
13.
<PAGE>
<TABLE>
ITEM 6. SELECTED CONSOLIDATED FINANCIAL DATA
<CAPTION>
Years ended September 30,
----------------------------------------------------------------------------
(In thousands, except per share amounts) 1997 1996 1995(a) 1994 1993
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Revenue $197,097 $180,151 $169,027 $141,600 $121,015
Expenses 185,283 167,322 156,242 137,234 116,834
------------ ------------ ------------ ------------- -------------
Operating Income 11,814 12,829 12,785 4,366 4,181
Interest and other income, net 9,180 5,643 5,414 1,306 1,411
------------ ------------ ------------ ------------- -------------
Income before income taxes 20,994 18,472 18,199 5,672 5,592
Provision for income taxes 7,525 7,015 5,076 3,570 3,519
------------ ------------ ------------ ------------- -------------
Net income $ 13,469 $ 11,457 $ 13,123 $2,102 $2,073
============ ============ ============ ============= =============
Basic earnings per share $0.49 $0.43 $0.51 $0.09 $0.09
Diluted earnings per share $0.45 $0.40 $0.47 $0.08 $0.08
Weighted average common shares 27,715 26,565 25,535 24,285 23,395
outstanding
Weighted average common shares 30,145 28,815 27,700 25,725 25,470
outstanding assuming dilution
Balance sheet data:
Cash, cash equivalents and short-term $ 56,973 $ 62,010 $ 42,047 $ 39,794 $ 24,224
investments
Total assets $260,144 $224,540 $182,827 $145,621 $106,450
Long-term debt $ 1,845 $ 3,269 $ 2,075 $ 7,830 $ 9,684
Deferred maintenance revenue $ 91,714 $ 80,190 $ 61,468 $ 49,172 $ 33,893
Stockholders' equity $118,502 $ 95,064 $ 78,501 $ 47,482 $ 29,481
<FN>
(a) Includes $1.507 million ($0.06 basic earnings per share and $0.05 diluted
per share) of extraordinary gain on forgiveness of debt in fiscal 1995.
</FN>
</TABLE>
1
<PAGE>
<TABLE>
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The table below sets forth the results of operations of the Company for the
three fiscal years ended September 30, 1997:
<CAPTION>
PERCENTAGE OF REVENUE YEAR-TO-YEAR
YEARS ENDED SEPTEMBER 30, PERCENTAGE CHANGE
----------------------------------------- ---------------------------
1997 1996 1995 97 vs. 96 96 vs. 95
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Revenue:
Product licensing 55.3% 52.9% 53.0% 14.4% 6.3%
Maintenance fees and other 44.7% 47.1% 47.0% 3.8% 6.9%
----------- ----------- ------------ ------------ ------------
Total revenue 100.0% 100.0% 100.0% 9.4% 6.6%
Costs and expenses:
Cost of product licensing 7.6% 8.5% 7.7% -2.1% 18.4%
Cost of maintenance fees and other 10.0% 10.8% 10.8% 1.4% 6.3%
Product development 12.6% 12.5% 12.5% 11.4% 6.0%
Sales and marketing 48.6% 50.9% 51.3% 4.4% 5.8%
General and administrative 9.4% 10.1% 10.1% 0.6% 7.3%
Acquisition and nonrecurring costs 5.7% -- -- N/A N/A
----------- ----------- ------------ ------------ ------------
Total costs and expenses 93.9% 92.8% 92.4% 10.7% 7.1%
----------- ----------- ------------ ------------ ------------
Operating income 6.1% 7.2% 7.6% -7.9% 0.3%
Interest and other income, net 4.7% 3.1% 2.3% 62.7% 44.4%
----------- ----------- ------------ ------------ ------------
Income before provision for income taxes 10.8% 10.3% 9.9% 13.7% 10.7%
Provision for income taxes 3.8% 3.9% 3.0% 7.3% 38.2%
----------- ----------- ------------ ------------ ------------
Net income before extraordinary item 7.0% 6.4% 6.9% 17.6% -1.4%
Extraordinary gain on forgiveness of debt -- -- 0.9% N/A N/A
----------- ----------- ------------ ------------ ------------
Net income 7.0% 6.4% 7.8% 17.6% -12.7%
=========== =========== ============ ============ ============
</TABLE>
Forward-Looking Information
When used in this discussion, the words "anticipate," "estimate," "project" and
similar expressions are intended to identify forward-looking statements. Such
statements are subject to certain risks and uncertainties, including those
discussed below, that could cause actual results to differ materially from those
projected. Readers are cautioned not to place undue reliance on these
forward-looking statements, which speak only as of the date hereof. The Company
undertakes no obligation to publicly release the result of any revisions to
these forward-looking statements which may be made to reflect events or
circumstances after the date hereof or to reflect the occurrence of
unanticipated events.
Acquisition
On January 16, 1997, the Company acquired all of the outstanding capital stock
of MAXM Systems Corporation ("MAXM"), a privately held company, in exchange for
up to 1,137,115 shares of Boole & Babbage common stock. The transaction was
accounted for using the pooling of interests method and the Company's
consolidated financial statements for all prior periods have been restated to
include the results of MAXM.
2
<PAGE>
Revenue
<TABLE>
The Company derives its revenues primarily from the licensing of computer
software programs, the sales of software maintenance services and from
consulting and educational services. The following table shows year-to-year
percentage changes as reported; without the effect of currency rate changes; and
without the revenues of MAXM for all periods.
<CAPTION>
Without Currency Without MAXM
Growth Rates: As Reported Effect Results
- ------------- -------------------------- ------------------------ -----------------------
Product Licensing 97 vs. 96 96 vs. 95 97 vs. 96 96 vs. 95 97 vs. 96 96 vs. 95
<S> <C> <C> <C> <C> <C> <C>
Product Group:
- --------------
Client/Server 4.9% 16.0% 13.2% 17.5% 43.6% 73.4%
Mainframe 18.0% 3.0% 26.4% 4.9% 26.4% 4.9%
----- ----- ----- ----- ----- -----
14.4% 6.3% 22.7% 8.1% 30.2% 14.9%
===== ===== ===== ===== ===== =====
Sales Channel:
- --------------
Domestic 23.5% (5.9%) 23.5% (5.9%) 35.2% 17.9%
International 9.8% 13.7% 22.3% 16.6% 27.8% 13.6%
----- ----- ----- ----- ----- -----
14.4% 6.3% 22.7% 8.1% 30.2% 14.9%
===== ===== ===== ===== ===== =====
Maintenance fees
and other 3.8% 6.9% 10.6% 8.6% 15.0% 5.5%
===== ===== ===== ===== ===== =====
Total revenue 9.4% 6.6% 17.0% 8.3% 23.1% 10.3%
===== ===== ===== ===== ===== =====
</TABLE>
The effect of currency rates decreased the rate of revenue growth from 1996 to
1997 by 7.6%. This decrease is attributable to a 2% decrease in the German
deutsche mark and a 1% decrease in the French franc, Japanese yen, Dutch
guilder, Italian lira and Spanish peseta, respectively. All other currencies had
an immaterial impact on revenue. Foreign currency rates decreased the rate of
revenue growth from 1995 to 1996 by 1.7%. No individual currency had a
significant impact on the rate of revenue growth.
Product Licensing
The Company licenses its products to customers for use on their computer
systems. As is common in the industry, more than 50% of the Company's license
revenue is derived from transactions that close in the last month of a quarter,
which can make quarterly revenues difficult to forecast. And, since operating
expenses are relatively fixed, failure to achieve projected revenues could
materially affect the Company's operating results. This, in turn, could result
in an immediate and adverse effect on the market price of the Company's stock.
Products
The Company anticipates that the Client/Server group of products will show
higher growth rates for fiscal 1998. However, the Company competes with certain
companies who have much greater financial and operational resources along with
larger customer bases. This could allow those companies to bundle competing
products with more established non-competing products in order to gain a
marketing advantage. In addition, the Company is dependent on the success of its
new Explorer family of Windows NT and Web-based products relating to its new
Desired-State Management initiative. This initiative represents a significant
expansion of the SpaceView, COMMAND/POST and Command MQ product lines. There is
also a potential diversion of customers' business attention and project funding
toward Year 2000 projects. Due to these factors, there can be no assurances that
new or even existing products will achieve significant market acceptance or
competitive success and thus contribute to revenue growth.
Mainframe products include Plex products which enable customers to handle
large groups of computer processors, particularly the parallel processing
machines from IBM. In the mainframe market, industry analysts have projected
that systems management spending will only grow at approximately 5% per year
through the year 2000. They also project that while the majority of large data
centers have adopted a sysplex strategy, mid-size data centers will not broadly
adopt these parallel processors until 1998 or later. Thus, despite a flattish
mainframe market, the Company's product licensing growth has benefited by data
centers adopting this new technology. This has also helped to increase the
number of
3
<PAGE>
competitive replacements which in 1997 accounted for approximately 16% of
licensing revenue compared with approximately 11% in 1996. These occur primarily
through multi-year licensing agreements which comprised approximately 50% of the
licensing revenue in 1997 and 1996. Thus, future growth rates could be
materially and adversely affected if these parallel processors do not gain
significant market acceptance among the mid-size data centers, if the rate of
successful competitive replacements slows, or if customer spending shifts away
from traditional mainframes to technology platforms where the Company does not
have significant product acceptance
A price increase on selected products was implemented in January 1997, but
did not have a significant effect on recognized revenue in 1997. Price changes
during 1996 and 1995 were not significant.
Markets
Domestic:
Domestic licensing comprised 36.1%, 33.5% and 37.8% of total product licensing
for 1997, 1996, and 1995, respectively. Domestic product licensing grew 23.5%
overall in 1997 versus the decrease of 5.9% in 1996 which had resulted primarily
from decreased productivity in the telesales group. For growth to continue in
the domestic market, the company is dependent on continued productivity
increases as well as the ability to generate larger size transactions, primarily
through multi-year contracts and competitive replacements.
International:
In 1997, the Company's licensing from its international operations, comprised of
foreign subsidiaries and marketing agents, increased 9.8% as a result of solid
growth in all channels despite unfavorable currency exchange rates. In 1996, the
Company's licensing from its international operations increased 13.7% as a
result of strong growth in Europe which was somewhat offset by unfavorable
currency exchange rates. Significant revenue in foreign currencies came from
sales in Germany, France, Britain, Italy and Japan. Sales in each of these
countries were between 5% and 11% of total revenue in 1997 and 1996. The Company
has a hedging strategy to attempt to minimize the short-term impact of foreign
currency fluctuations on its net asset position in foreign currencies. At
September 30, 1997, the Company had approximately $50.4 million of open forward
exchange contracts to hedge its foreign currency fluctuations on its net asset
position. The Company had approximately $10.7 million of its net asset position
unhedged. The Company does not have any commitments denominated in currencies
other than the operation's functional currencies. In addition to the risks
described above, since the majority of product licensing is derived from
international markets, the Company's overall operations and financial results
could be significantly and adversely affected by such international factors as
changes in currency exchange rates and specific regional or country political
and economic circumstances.
Maintenance Fees and Other
Maintenance revenue is generated from services the Company provides including
technical support, product enhancements, system updates and user documentation.
Maintenance revenue also includes maintenance services for an initial period
ranging from six months to one year which is included in the initial charge when
the Company licenses its software products under a long-term agreement.
Thereafter on each anniversary date of the license, the customer may elect to
renew its maintenance agreement with the Company. Customers may also elect to
purchase advance maintenance at the time of product licensing for maintenance
periods beyond the first year. Included in maintenance fees and other is revenue
from consulting and educational services, computer services, hardware sales and
royalties from IBM for the jointly developed CICS product. In July 1996, the
Company entered into a long-term licensing agreement requiring IBM to make
royalty payments, based upon their sales of the product, of up to approximately
$10 million for the period from the fourth quarter of 1996 through the second
quarter of fiscal 1999. The Company has recognized $5.4 million in revenue of
which $4.3 million has been paid through September 30, 1997. Since there are no
minimum generated amounts, actual royalties due to the Company may be
significantly below the annual maximum amounts.
The increases in maintenance fees and other are mainly the result of
increased product licensing in the previous years combined with relatively high
renewal rates and increased royalties from IBM under the July 1996 agreement.
In both years, the maintenance revenue growth rates are lower than the
licensing growth rates primarily as a result of fewer customer sites due to the
consolidation of customer data centers; reduced revenue associated with
customers' conversion to non-CPU specific pricing systems such as MIPS-based
pricing; and higher discount levels offered by the Company on multiple-year
maintenance packages.
The Company anticipates that maintenance revenue in 1998 will increase due
to the higher license revenue growth in 1997, although it will continue to be
negatively impacted by reduced revenue associated with site consolidations,
non-CPU specific pricing and discounted multiple-year maintenance packages.
4
<PAGE>
The Company must continue to generate new product licensing revenues and
also continue to provide high quality maintenance support and upgrades to ensure
future maintenance revenue increases.
Costs and expenses
<TABLE>
The following table shows year-to-year percentage changes of costs and expenses,
excluding acquisition and non-recurring costs, as reported; without the effect
of currency rate changes; and without the costs and expenses relating to MAXM
for all periods.
<CAPTION>
Without Currency Without MAXM
Growth Rates: As Reported Effect Results
-------------------------- ------------------------ -----------------------
97 vs. 96 96 vs. 95 97 vs. 96 96 vs. 95 97 vs. 96 96 vs. 95
<S> <C> <C> <C> <C> <C> <C>
Cost of product
licensing (2.1%) 18.4% 6.9% 20.1% 11.8% 20.4%
Cost of maintenance
fees and other 1.4% 6.3% 7.9% 9.2% 21.7% 4.9%
Product development 11.4% 6.0% 13.0% 6.3% 17.8% 16.5%
Sales and marketing 4.4% 5.8% 11.2% 7.4% 19.7% 6.5%
General and
administrative 0.6% 7.3% 5.1% 8.6% 14.4% 7.3%
----- ----- ----- ----- ----- -----
Total costs and
expenses 4.0% 7.1% 10.0% 8.7% 18.3% 8.9%
===== ===== ===== ===== ===== =====
</TABLE>
The effect of currency rates decreased the growth rate of costs and expenses
from 1996 to 1997 by 6.0%. This decrease is attributable to a 2% decrease in the
German deutsche mark and a 1% decrease in the French franc. All other currencies
did not have a significant impact on the change in costs and expenses. Foreign
currency rates decreased the growth rate of costs and expenses from 1995 to 1996
by 1.6%. No individual currency had a significant impact on the rate of growth
of costs and expenses.
Cost of Product Licensing
Cost of product licensing consists primarily of royalties paid to independent
software authors and amortization of purchased and internally developed
software. In both years, the increases were primarily due to higher third-party
royalties from increased third-party licensing in Europe and Japan. In the third
quarter of 1996 there was a charge of approximately $1 million on the remaining
royalty commitments on a third-party product. In general, fluctuations in the
relationship of cost of product licensing to revenue are caused primarily by
changes in licensing revenue mix, royalty agreements, and amortization of
capitalized software.
Cost of Maintenance Fees and Other
Cost of maintenance fees and other consists primarily of cost of product
maintenance support, royalties paid to independent software authors,
amortization of purchased and internally developed software, the cost to provide
educational and consulting services and costs related to certain computer
services. In 1997, the increase was due primarily to higher third-party
royalties in Europe as a result of the expiration of a reduced rate from a
third-party vendor which was in effect from the second quarter of fiscal 1995 to
the fourth quarter of fiscal 1996. Cost of educational and consulting services
was up in proportion to the services revenue increase although this was
partially offset by lower maintenance support costs. In 1996, the increase was
primarily due to higher cost of educational and consulting services partially
offset by lower maintenance support costs and software amortization. Software
amortization was down due to write-offs in 1995 of certain software products and
the full amortization of products purchased in July 1991. Maintenance support
costs are down as a result of more efficient processes which allowed the
redeployment of personnel to research and development ("R&D"). In general,
fluctuations in the relationship of cost of maintenance fees and other to
revenue are caused primarily by changes in maintenance revenue mix, educational
and consulting revenue, maintenance support, royalty agreements, and
amortization of capitalized software.
5
<PAGE>
Product Development
In 1997, the increase in product development is primarily due to increased
headcount and consulting costs. The increase in 1996 is due to higher personnel
costs as headcount replacements were filled and certain maintenance support
employees were transferred to R&D. The Company capitalizes development costs in
accordance with Statement of Financial Accounting Standards No. 86. To the
extent the Company capitalizes its product development costs, the effect is to
defer such costs to future periods and match them to the revenue generated by
the products. Product development expenses may fluctuate annually depending in
part upon the number and status of internal software development projects.
Sales and Marketing
In 1997, the increase in sales and marketing was primarily a result of higher
sales commissions on increased product licensing. In addition, 1997 had higher
product marketing costs and international sales costs. The increase in 1996 is
primarily a result of higher commissions on increased sales. Higher sales
personnel costs internationally were partially offset by lower product marketing
costs.
General and Administrative
The increase in costs in 1997 is primarily attributable to higher personnel and
consulting costs, European facility costs and performance-based accruals. The
increase in 1996 was primarily a result of a prior year lease termination credit
combined with higher 1996 facilities costs for relocating certain European and
Japanese offices.
Acquisition and Non-recurring Costs
During the second quarter of 1997, the Company had approximately $11.3 million
of non-recurring costs comprised of $1 million of purchased R&D costs and $10.3
million of acquisition costs related to the purchase of MAXM. These acquisition
costs consisted primarily of $4.0 million of termination costs related to
reseller agreements, $2.8 million of employee costs, $1.6 million of costs
related to closing redundant facilities and $1.9 million of legal, accounting,
broker fees and other.
Interest and Other Income, Net
Interest and other income consists principally of interest income or expense and
gain or loss from sales of investments, currency or disposal of assets. An
increase of 62.7% over 1996 was primarily the result of higher interest income
on more lease contracts receivable, lower interest expense as the MAXM line of
credit was paid off in 1997 and less currency losses. The 44.4% increase in 1996
was primarily the result of more interest income as gross lease contracts
receivable was higher and there was approximately $300,000 of gain on sale of
investment securities versus a $300,000 loss in 1995. These increases were
somewhat mitigated by higher currency losses. As further described in Note 1,
the Company has a hedging program to attempt to reduce its exposure to currency
fluctuations.
Income Taxes
The effective tax rates were 35.8%, 38.0%, and 30.4% for 1997, 1996 and 1995,
respectively. Without the impact of non-deductible acquisition costs and
pre-acquisition operating losses of MAXM, the effective tax rates were 28.5%,
28.0% and 30.0%, respectively. It is anticipated that the Company's effective
tax rate in 1998 will approximate these non-acquisition related rates. The
Company's effective tax rates before the valuation allowance for MAXM operating
losses and non-deductible acquisition costs differ from the federal statutory
rate primarily due to permanently invested earnings of foreign subsidiaries
being taxed at rates lower than the federal statutory rate and tax credits for
increased research and development. At September 30, 1997, the Company had
carryforwards of MAXM's pre-acquisition federal net operating losses of
approximately $43.8 million that will expire between 2003 and 2012.
Recent Accounting Pronouncements
SFAS No. 128, "Earnings per share," was issued in February 1997 and is
required for periods ending after December 15, 1997. It requires dual
presentation of earnings per share ("EPS"); basic EPS and diluted EPS (see Note
1 of Notes to Consolidated Financial Statements).
6
<PAGE>
SOP 97-2, "Software Revenue Recognition," was issued in November 1997 and
is required for periods ending after December 15, 1997. It provides guidance on
applying GAAP in recognizing revenue on software transactions and the impact on
the results of operations is not expected to be material.
Liquidity and Capital Resources
At September 30, 1997, the Company's cash, cash equivalents and short-term
investments were $56,973,000. The Company continues to use installment payment
plans to gain a competitive advantage during the sales process and had
outstanding installment receivables of $124,792,000 at September 30, 1997. The
Company periodically sells portions of installments receivables subject to
limited recourse provisions. During 1997, the Company sold $8,140,000.
The Company continues to finance its growth through funds generated from
operations. For the year ended September 30, 1997 net cash provided by operating
activities before acquisition and non-recurring costs was $9,726,000.
Acquisition and non-recurring expenses of $9,744,000 were paid in 1997. Net cash
used in investing activities in 1997 was $7,690,000, primarily for internally
developed and purchased capitalized software, acquisition of computers and
related equipment and the purchase of equity securities. Cash provided by
investing activities was due to net sales of short-term investments. Net cash
provided by financing activities in 1997 was $7,628,000, primarily from the sale
of lease contracts receivable, the exercise of employee stock options and stock
purchases through the Employee Stock Purchase Plan. Cash used for financing
activities relates to the Company's stock repurchase program and to debt
payment.
On July 30, 1997, a share repurchase plan was adopted which authorized
the Company to acquire 500,000 shares of its common stock. The Company's
previous stock repurchase plan was rescinded in accordance with pooling of
interest accounting in connection with the MAXM acquisition. During fiscal 1997,
the Company repurchased 85,000 shares of its common stock, 55,000 of which were
purchased under the new plan, for an aggregate purchase price of $2,072,000.
The Company continues to evaluate business acquisition opportunities
that complement its strategic plans and believes existing cash balances and
funds generated from operations will be sufficient to meet its liquidity
requirements for the foreseeable future.
7
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this amendment to be signed
on its behalf by the undersigned, thereunto duly authorized on the 1st of March
1999.
BOOLE & BABBAGE, INC.
By: /s/ Arthur F. Knapp, Jr.
---------------------------------
Arthur F. Knapp, Jr.
Chief Financial Officer
(Principal Financial and Accounting Officer)
* *
- ----------------------------- ---------------------------------
Johannes S. Bruggeling Terry R. McGowan
Executive Vice President and Director Director
* *
- ----------------------------- ---------------------------------
Raymond E. Cairns Paul E. Newton
Director President and Director
* *
- ----------------------------- ---------------------------------
Franklin P. Johnson, Jr. David B. Wright
Chairman of the Board of Directors Director
* By: /s/ Arthur F. Knapp, Jr.
-----------------------
Arthur F. Knapp, Jr.
Attorney-in-Fact
