UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10 - Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the quarterly period ended March 31, 1997
or
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
Commission File Number 0-28252
BROADVISION, INC.
-----------------
(Exact name of registrant as specified in its charter)
Delaware 94-3184303
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
333 Distel Circle, Los Altos, California 94022-1404
- ---------------------------------------- ----------
(Address of principal executive offices) (Zip code)
(415) 943-3600
--------------
(Registrant's telephone number, including area code)
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 _
As of April 30, 1997 there were 20,234,144 shares of the Registrant's
Common Stock outstanding.
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This is page 1 of 14 pages.
Index to exhibits is on page 15
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BROADVISION, INC.
QUARTERLY REPORT ON FORM 10-Q
QUARTER ENDED MARCH 31, 1997
TABLE OF CONTENTS
Page No.
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PART I FINANCIAL INFORMATION
Item 1. Financial Statements
Condensed Consolidated Statements of Operations -
Three months ended March 31, 1997 and 1996 3
Condensed Consolidated Balance Sheets -
March 31, 1997 and December 31, 1996 4
Condensed Consolidated Statements of Cash Flows -
Three months ended March 31, 1997 and 1996 5
Notes to Condensed Consolidated Financial Statements 6
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations 8
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PART II OTHER INFORMATION
Item 1. Legal Proceedings 13
Item 2. Changes in Securities 13
Item 3. Defaults upon Senior Securities 13
Item 4. Submission of Matters to a Vote of Security Holders 13
Item 5. Other Information 13
Item 6. Exhibits and Reports on Form 8-K 13
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SIGNATURES 14
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2
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BROADVISION, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
(In thousands, except per share amounts)
Three Months Ended
March 31,
1997 1996
(unaudited) (unaudited)
Revenues:
Software licenses $ 3,148 $ 1,099
Services 2,143 299
-------- --------
Total revenues 5,291 1,398
Cost of revenues
Cost of license revenues 214 96
Cost of service revenues 1,143 165
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Total cost of revenues 1,357 261
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Gross profit 3,934 1,137
Operating expenses
Research and development 1,680 917
Sales and marketing 4,204 1,585
General and administrative 746 340
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Total operating expenses 6,630 2,842
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Operating loss (2,696) (1,705)
Interest and other income 221 43
Interest and other expense (12) (36)
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Net loss $ (2,487) $ (1,698)
======== ========
Net loss per share $ (0.12) $ (0.09)
======== ========
Shares used in computing net loss per share 20,002 18,576
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BROADVISION, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
(In thousands)
March 31, December 31,
1997 1996
(unaudited)
ASSETS
Current assets:
Cash and cash equivalents $ 13,900 $ 17,608
Short-term investments 1,532 2,112
Accounts receivable, net 7,826 5,548
Other current assets 505 317
-------- --------
Total current assets 23,763 25,585
Property and equipment, net 3,350 3,024
Other assets 402 321
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Total assets $ 27,515 $ 28,930
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities
Accounts payable and accrued expenses $ 3,884 $ 3,484
Unearned revenues 2,616 2,625
Deferred maintenance 1,182 924
Current portion of long-term liabilities 365 294
-------- --------
Total current liabilities 8,047 7,327
Long-term liabilities 582 587
Stockholders' equity
Common stock and paid-in capital 39,565 39,318
Deferred compensation (1,923) (2,033)
Accumulated deficit (18,756) (16,269)
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Total stockholders' equity 18,886 21,016
-------- --------
Total liabilities and stockholders' equity $ 27,515 $ 28,930
======== ========
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BROADVISION, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(In thousands)
Three Months Ended
March 31, March 31,
1997 1996
(unaudited) (unaudited)
----------- -----------
Cash flows from operating activities:
Net loss $ (2,487) $ (1,698)
Adjustments to reconcile net loss to net cash
used for operating activities:
Depreciation and amortization 326 95
Amortization of deferred compensation 110 110
Allowance for doubtful accounts and returns 185 --
Changes in operating assets and liabilities:
Accounts receivable (2,463) (1,558)
Prepaid expenses, other current assets, and
other assets (269) (131)
Accounts payable and accrued expenses 400 799
Unearned revenue and deferred maintenance 249 896
Other liabilities (2) 15
-------- --------
Net cash used in operating activities (3,951) (1,472)
Cash flows from investing activities:
Acquisition of property and equipment (474) (499)
Purchase of short-term investments (1,532) --
Maturity of short-term investments 2,112 196
-------- --------
Net cash provided by (used in) investing
activities 106 (303)
Cash flows from financing activities:
Proceeds from issuance of common stock 247 160
Proceeds from issuance of preferred stock -- 6
Payments on capital lease (110) (39)
-------- --------
Net cash provided by financing activities 137 127
-------- --------
Net decrease in cash and cash equivalents (3,708) (1,648)
Cash and cash equivalents, beginning of period 17,608 4,311
-------- --------
Cash and cash equivalents, end of period $ 13,900 $ 2,663
======== ========
Non-cash investing and financing activities:
Acquisition of equipment under capital lease $ 178 $ -
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5
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BROADVISION, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
1) Summary of Significant Accounting Policies
Basis of Presentation
The accompanying consolidated financial statements include the accounts of
BroadVision, Inc. (the "Company") and its wholly owned subsidiaries. All
significant intercompany balances and transactions have been eliminated in
consolidation.
Business of the Company
The Company provides an integrated software application system,
BroadVision One-To-One(TM), that enables the creation of applications allowing
non-technical business managers to tailor Internet marketing and selling
services to the needs and interests of individual World Wide Web site visitors,
personalizing each visit on a real-time basis.
Interim Financial Information
The accompanying unaudited condensed financial statements have been
prepared in accordance with generally accepted accounting principles for interim
financial information and the instructions for Form 10-Q and Article 10 of
Regulation S-X. In the Company's opinion, the financial statements include all
adjustments, consisting only of normal recurring adjustments, which the Company
considers necessary to fairly state the Company's financial position and the
results of operations and cash flows. The balance sheet at December 31, 1996 has
been derived from the audited financial statements at that date but does not
include all of the information and footnotes required by generally accepted
accounting principles for complete financial statements. The accompanying
financial statements should be read in conjunction with the financial statements
and notes thereto included in the Company's Prospectus, Forms 10-K and 10-Q, and
other documents filed with the Securities and Exchange Commission ("SEC"). The
results of the Company's operations for any interim period are not necessarily
indicative of the results of the Company's operations for any other interim
period or for a full fiscal year.
Net Loss Per Share
The net loss per share is computed using net loss and, for periods
prior to the Company's initial public offering ("IPO"), is based on the weighted
average number of shares of common stock outstanding, convertible preferred
stock, on an "as-if-converted" basis, using the exchange rate in effect at the
initial public offering date and dilutive common equivalent shares from stock
options and warrants outstanding using the treasury stock method. In accordance
with certain SEC Staff Accounting Bulletins, such computations include all
common and common equivalent shares issued within 12 months of the initial
filing date as if they were outstanding for all periods presented using the
treasury stock method and the anticipated initial public offering price. For
periods subsequent to the IPO, loss per share is based on weighted average
shares outstanding, excluding the effects of dilutive securities.
6
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Recent Accounting Pronouncements
The Financial Accounting Standards Board recently issued Statement of
Financial Accounting Standards No. 128, "Earnings Per Share." SFAS No. 128
requires the presentation of basic earnings per share ("EPS") and, for companies
with complex capital structures or potentially dilutive securities, such as
convertible debt, options and warrants, diluted EPS. SFAS No. 128 is effective
for annual and interim periods ending after December 15, 1997. The Company
expects that basic EPS and diluted EPS will not differ materially from earnings
per share as presented in the accompanying consolidated financial statements.
2) Balance Sheet Detail
Property and Equipment
Property and equipment consisted of the following (in thousands):
March 31, December 31,
1997 1996
--------- ------------
(unaudited)
Furniture and fixtures $ 575 $ 539
Computers and software 3,820 3,210
Leasehold improvements 144 138
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4,539 3,887
Less accumulated depreciation and amortization 1,189 863
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$3,350 $3,024
====== ======
Accrued Expenses
Accrued expenses consisted of the following (in thousands):
March 31, December 31,
1997 1996
--------- ------------
(unaudited)
Employee benefits $ 327 $ 254
Commissions and bonuses 612 696
Directors and officers insurance premiums 226 283
Taxes payable 263 129
Contractors fees 316 489
Other 728 675
------ ------
$2,472 $2,526
====== ======
7
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ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
EXCEPT FOR HISTORICAL INFORMATION CONTAINED HEREIN, THE FOLLOWING
DISCUSSION CONTAINS FORWARD-LOOKING STATEMENTS WHICH INVOLVE RISKS AND
UNCERTAINTIES. THE COMPANY'S ACTUAL RESULTS COULD DIFFER SIGNIFICANTLY FROM
THOSE DISCUSSED HERE. FACTORS THAT COULD CAUSE OR CONTRIBUTE TO SUCH DIFFERENCES
INCLUDE, BUT ARE NOT LIMITED TO, THOSE DISCUSSED IN THIS FORM 10-Q AND IN THE
COMPANY'S PROSPECTUS, FORMS 10-K AND 10-Q, AND OTHER DOCUMENTS FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. ANY SUCH FORWARD-LOOKING STATEMENTS SPEAK
ONLY AS OF THE DATE SUCH STATEMENTS ARE MADE.
OVERVIEW
BroadVision provides industrial-strength software application solutions for
personalized, one-to-one business systems on the global Internet, Intranets, and
Extranets. These solutions enable rapid and cost-effective prototyping,
development, and on-going operation of electronic commerce, customer service,
interactive publishing and knowledge management applications over the Internet.
The Company's products and services are targeted at businesses developing Web
site applications for consumers and business customers as well as employees. The
Company's products provide the open, scalable, database architecture, expert
business logic, dynamic control, secure transaction processing, and
matching-based personalization capabilities essential for profitable Internet
business. The Company specializes in end-to-end solutions for the financial
services, retail, travel, media and telecommunications industries. In September
1996, the Company launched a personalized Web service called "The Angle," which
helps consumers more effectively utilize the Web. Using a combination of editors
and BroadVision One-to-One technology, The Angle matches daily information with
individuals including Web site reviews and recommendations, up-to-the-minute
news and special features.
The Company's revenues are derived from software license fees and fees for
its services. The Company generally recognizes license fees when the software
has been delivered, the customer acknowledges an unconditional obligation to
pay, and the Company has no significant obligations remaining. Professional
services revenues generally are recognized as services are performed.
Maintenance revenues are recognized ratably over the term of the support period,
which is typically one year.
Since its inception, the Company has incurred substantial costs to
research, develop, and enhance its technology and products, to recruit and train
a marketing and sales group, and to establish an administrative organization. As
a result, the Company has incurred net losses in each fiscal quarter since
inception and, as of March 31, 1997, had an accumulated deficit of $18.8
million. The Company anticipates that its operating expenses will increase in
the foreseeable future as it continues the development of its technology,
increases its sales and marketing activities, and creates and expands its
distribution channels. Accordingly, the Company expects to incur additional
losses for the foreseeable future. In addition, the Company's limited operating
history makes the prediction of future results of operations difficult and,
accordingly, there can be no assurance that the Company will achieve or sustain
revenue growth or profitability.
To date, only a limited number of companies have licensed the
BroadVision One-To-One application system. Accordingly, the Company has only a
limited operating history, and its prospects must be evaluated in light of the
risks and uncertainties frequently encountered by a company in its early stage
of development. Some of these risks and uncertainties relate to the new and
rapidly evolving nature of the markets in which the Company operates. Such
market
8
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risks include, among other things, the early stage of market development for
online commerce, the dependence of online commerce upon the development of the
Internet, the uncertainty of widespread adoption of online commerce and the risk
of government regulation of the Internet. Other risks and uncertainties facing
the Company relate to the Company's ability to, among other things, successfully
implement its marketing strategy, respond to competitive developments, continue
to develop and upgrade its products and technologies more rapidly than its
competitors, and commercialize its products and services incorporating these
enhanced technologies. There can be no assurance that the Company will succeed
in addressing any or all of these risks. A more complete description of these
and other risks relating to the Company's business is set forth under the
caption "Risk Factors" in the Prospectus, Form 10-K and 10-Q, and other
documents filed with the SEC.
RESULTS OF OPERATIONS
Revenues
Total revenues increased to $5,291,000 in the three-month period ended
March 31, 1997 from $1,398,000 for the same quarter of fiscal 1996. The Company
recognized its first license revenues in the first quarter of fiscal 1996.
Software product license revenues increased to $3,148,000 for the
three-month period ended March 31, 1997 from $1,099,000 for the same quarter of
fiscal 1996. For the quarter, the software product license revenues consisted of
North American software product license revenues of $1,446,000, or 46% of the
total software product license revenues, and International software product
license revenues of $1,702,000, or 54% of the total software product license
revenues. The increases in software product license revenues for the three-month
period ended March 31, 1997 reflect the sale of development licenses of the
Company's product, and the recognition of revenues relating to deployment
licenses. Deployment license revenues increased to $1,571,000 for the
three-month period ended March 31, 1997 from $191,000 for the same quarter of
fiscal 1996. As of March 31, 1997, the Company had deployed ten customer sites.
Services revenues increased to $2,143,000 for the three-month period
ended March 31, 1997 from $299,000 for the same quarter of fiscal 1996. For the
quarter, North American services revenues were $928,000, or 43% of total
services revenues, and International services revenues were $1,215,000, or 57%
of total services revenues. Services revenues increased during the period from
the respective prior year period due to the increasing number of licenses of
BroadVision One-to-One with a service or maintenance component.
Operating Expenses
The Company's operating expenses have increased substantially since
inception. The Company believes that continued expansion of its operations is
essential to achieving its objectives and, therefore, intends to increase
expenditures in all operating areas.
Cost of Software Licenses. Cost of software licenses includes the costs
of royalties payable to third parties for software that is embedded in, or
bundled together and sold with, the Company's products, product media and
duplication, and manuals. The amount of such royalties payable is generally
related to the volume of sales made by the Company to its customers. Cost of
software licenses increased to $214,000 for the three-month period ended March
31, 1997 from $96,000 for the same quarter of fiscal 1996. Cost of software
licenses decreased to 7% of related license revenues in the three-month period
ended March 31, 1997 from 9% for the same quarter of fiscal 1996. This decrease
primarily is derived from increased costs spread over the increase in volume of
license revenues.
9
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Cost of Services. Cost of services consists primarily of
employee-related costs and fees for third-party consultants incurred in
providing consulting, post-contract support, and training services. Cost of
services increased to $1,143,000 for the three-month period ended March 31, 1997
from $165,000 for the same quarter of fiscal 1996. The increase in cost of
services was due to the increasing number of licenses of BroadVision One-to-One
with a support or maintenance component and the increasing fixed costs resulting
from the Company's expansion of its services organization. The Company expects
that services costs will continue to increase in absolute dollar amounts as the
Company continues to expand its services organization.
Research and Development. Research and development expenses consist
primarily of salaries, other employee-related costs, and consulting fees related
to the development of the Company's products. Research and development expenses
increased by 83%, to $1,680,000, for the three-month period ended March 31, 1997
from $917,000 for the same quarter of fiscal 1996. These increases in the dollar
amount of research and development expenses are primarily attributable to costs
of additional personnel in the Company's research and development operations.
The Company continues to direct product development expenditures toward
developing new products and enhancing existing products. The Company anticipates
that research and development expenses will continue to increase in absolute
dollars for the remainder of 1997. All expenditures related to research and
development have been expensed as incurred and, therefore, no amortization of
capitalized software development costs is included.
Sales and Marketing. Sales and marketing expenses consist primarily of
salaries and other employee-related costs, commissions and other incentive
compensation, travel and entertainment, and expenditures for marketing programs
such as collateral materials, trade shows, public relations and creative
services. Sales and marketing expenses increased to $4,204,000 for the
three-month period ended March 31, 1997 from $1,585,000 for the same quarter of
fiscal 1996. These increases in sales and marketing expenses reflect primarily
the hiring of additional sales and marketing personnel, developing and expanding
its sales distribution channels, and expanding promotional activities. The
Company expects to continue to expand its direct sales and marketing efforts and
expects sales and marketing expenses to continue to increase significantly in
absolute dollars.
General and Administrative. General and administrative expenses consist
primarily of salaries, other employee-related costs, and fees for professional
services. General and administrative expenses increased to $746,000 for the
three-month period ended March 31, 1997 from $340,000 for the same quarter of
fiscal 1996. These increases for general and administrative expenses reflect
primarily the hiring of additional administrative and management personnel,
increases in the provision for doubtful accounts, increased professional fees,
and the addition of other infrastructure to support the expansion of the
Company's operations. The Company expects to continue to add administrative
staff to support broadened operations, expand North American and international
office facilities, and incur costs related to being a public company and,
therefore, expects general and administrative expenses to increase significantly
in absolute dollars.
Prior to its IPO, the Company recorded deferred compensation for the
difference between the exercise price and the deemed fair value of the Company's
Common Stock with respect to 1,794,000 shares issuable upon exercise of options
granted. These amounts were initially recorded as deferred compensation and will
be amortized to cost of services, research and development, selling and
marketing, and general and administrative expense over the vesting periods of
the options, generally 60 months. Deferred compensation amortized to
compensation expense was $110,000 for each of the three-month periods ended
March 31, 1996 and 1997, respectively. The amortization of deferred compensation
will have an adverse effect on the Company's reported results of operations
through the year 2003, but such effect will be significantly reduced beginning
in the third quarter of 2001.
10
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FACTORS AFFECTING QUARTERLY OPERATING RESULTS
The Company expects to experience significant fluctuations in quarterly
operating results that may be caused by many factors including, but not limited
to, those discussed under the caption "Risk Factors" in the Prospectus, Forms
10-K and 10-Q, and other filed documents with the SEC.
The Company expects that a significant portion of its revenues will be
derived from a limited number of orders, and the timing of receipt, fulfillment
and deployment of such orders is likely to cause material fluctuations in the
Company's operating results, particularly on a quarterly basis, as with many
software companies. Specifically, the Company is taking steps to accelerate the
pace of deployment which could result in acceleration of revenue recognition
and, consequently, the potential for greater fluctuation in quarterly operating
results. The Company anticipates that it will make the major portion of each
quarter's deliveries near the end of each quarter and, as a result, short delays
in delivery of products at the end of a quarter could adversely affect operating
results for that quarter. Due to these factors, quarterly revenues and operating
results are difficult to forecast, and the Company believes that
period-to-period comparisons of its operating results will not necessarily be
meaningful and should not be relied upon as any indication of future
performance.
The Company anticipates that its operating expenses will increase
substantially in the foreseeable future as it continues the development of its
technology, increases its sales and marketing activities, and creates and
expands its distribution channels. Accordingly, the Company expects to incur
additional losses for the foreseeable future. In addition, the Company's limited
operating history makes the prediction of future results of operations difficult
and, accordingly, there can be no assurance that the Company will achieve or
sustain revenue growth or profitability. The Company's limited operating history
also requires that its prospects be evaluated in light of the risks and
uncertainties frequently encountered by a company in its early stage of
development. Some of these risks and uncertainties relate to the new and rapidly
evolving nature of the markets in which the Company operates. Such market risks
include, among other things, the early stage of market development for online
commerce, the dependence of online commerce upon the development of the
Internet, the uncertainty of widespread adoption of online commerce, and the
risk of government regulation of the Internet. Other risks and uncertainties
facing the Company relate to the Company's ability to, among other things,
successfully implement its marketing strategy, respond to competitive
developments, continue to develop and upgrade its products and technologies more
rapidly than its competitors, and commercialize its products and services
incorporating these enhanced technologies. There can be no assurance that the
Company will succeed in addressing any or all of these risks. A more complete
description of these and other risks relating to the Company's business is set
forth under the caption "Risk Factors" in the Prospectus and Form 10-K filing
with the SEC. It is also likely that the Company's future quarterly operating
results from time to time will not meet the expectations of market analysts or
investors, which may have an adverse effect on the price of the Company's Common
Stock.
LIQUIDITY AND CAPITAL RESOURCES
Prior to the IPO, the Company financed its operations primarily through
private placements of Common and Preferred Stock, which provided net proceeds
totaling $15.5 million through May 1996. The IPO yielded net proceeds of
approximately $20.7 million. At March 31, 1997, the Company had approximately
$15.4 million in cash, cash equivalents, and short-term investments. The Company
currently has no significant capital commitments other than commitments under
equipment and operating leases disclosed in the Form 10-K filed with the SEC.
The Company has no credit facilities, and does not believe that it will require
credit facilities for at least the next 12 months.
The Company anticipates that its available cash resources will be
sufficient to meet its presently anticipated working capital and capital
expenditure requirements for at least the next 12 months. This estimate is a
forward-looking statement that involves risks and uncertainties, and actual
results may vary as a result of a number of factors, including those discussed
under "Risk Factors" in the Prospectus,
11
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Forms 10-K and 10-Q, and other documents filed with the SEC and those discussed
under the caption "Factors Affecting Operating Results" above and elsewhere
herein. The Company may need to raise additional funds in order to support more
rapid expansion, develop new or enhanced services, respond to competitive
pressures, acquire complementary businesses or technologies, or respond to
unanticipated requirements. The Company may seek to raise additional funds
through private or public sales of securities, strategic relationships, bank or
lease financings, or otherwise. If additional funds are raised through the
issuance of equity securities, the percentage ownership of the stockholders of
the Company will be reduced, stockholders may experience additional dilution, or
such equity securities may have rights, preferences, or privileges senior to
those of the holders of the Company's Common Stock. There can be no assurance
that additional financing will be available on acceptable terms, if at all. If
adequate funds are not available or are not available on acceptable terms, the
Company may be unable to develop or enhance its products, take advantage of
future opportunities, or respond to competitive pressures or unanticipated
requirements, which could have a material adverse effect on the Company's
business, financial condition, and operating results.
12
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PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
Not applicable
ITEM 2. CHANGES IN SECURITIES
Not applicable
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
Not applicable
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
Not applicable
ITEM 5. OTHER INFORMATION
Not applicable
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
Item Description
10.1 Form of Indemnity Agreement between the Company and each of
its executive officers
11.1 Statement re: Computation of Net Loss Per Share
27.1 Financial Data Schedule
13
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
BROADVISION, INC
Date: May 13, 1997 /s/ Pehong Chen
______________________________________________
Pehong Chen
President and Chief Executive Officer
(Principal Executive Officer)
Date: May 13, 1997 /s/ Randall C. Bolten
______________________________________________
Randall C. Bolten
Vice President, Operations and Chief Financial
Officer
(Principal Financial and Accounting Officer)
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BROADVISION, INC.
INDEX TO EXHIBITS
Exhibit
No. Description
- ------- ------------------------------------------------------------------------
10.1 Form of Indemnity Agreement between the Company and each of
its executive officers
11.1 Statement regarding Computation of Per Share Loss
27.1 Financial Data Schedule
- --------------------------------------------------------------------------------
15
Exhibit 10.1
INDEMNITY AGREEMENT
THIS AGREEMENT is made and entered into this ______ day of __________,
1997 by and between BROADVISION, INC., a Delaware corporation (the
"Corporation"), and __________________ ("Agent").
RECITALS
WHEREAS, Agent performs a valuable service to the Corporation in his
capacity as __________________________________________________ of the
Corporation;
WHEREAS, the stockholders of the Corporation have adopted bylaws (the
"Bylaws") providing for the indemnification of the directors, officers,
employees and other agents of the Corporation, including persons serving at the
request of the Corporation in such capacities with other corporations or
enterprises, as authorized by the Delaware General Corporation Law, as amended
(the "Code");
WHEREAS, the Bylaws and the Code, by their non-exclusive nature, permit
contracts between the Corporation and its agents, officers, employees and other
agents with respect to indemnification of such persons; and
WHEREAS, in order to induce Agent to continue to serve as
______________________________________ of the Corporation, the Corporation has
determined and agreed to enter into this Agreement with Agent;
NOW, THEREFORE, in consideration of Agent's continued service as
______________________________________ after the date hereof, the parties hereto
agree as follows:
AGREEMENT
1. Services to the Corporation. Agent will serve, at the will of the
Corporation or under separate contract, if any such contract exists, as
______________________________________ of the Corporation or as a director,
officer or other fiduciary of an affiliate of the Corporation (including any
employee benefit plan of the Corporation) faithfully and to the best of his
ability so long as he is duly elected and qualified in accordance with the
provisions of the Bylaws or other applicable charter documents of the
Corporation or such affiliate; provided, however, that Agent may at any time and
for any reason resign from such position (subject to any contractual obligation
that Agent may have assumed apart from this Agreement) and that the Corporation
or any affiliate shall have no obligation under this Agreement to continue Agent
in any such position.
2. Indemnity of Agent. The Corporation hereby agrees to hold harmless
and indemnify Agent to the fullest extent authorized or permitted by the
provisions of the Bylaws
1.
<PAGE>
and the Code, as the same may be amended from time to time (but, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than the Bylaws or the Code permitted prior to adoption
of such amendment).
3. Additional Indemnity. In addition to and not in limitation of the
indemnification otherwise provided for herein, and subject only to the
exclusions set forth in Section 4 hereof, the Corporation hereby further agrees
to hold harmless and indemnify Agent:
(a) against any and all expenses (including attorneys' fees),
witness fees, damages, judgments, fines and amounts paid in settlement and any
other amounts that Agent becomes legally obligated to pay because of any claim
or claims made against or by him in connection with any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, arbitrational,
administrative or investigative (including an action by or in the right of the
Corporation) to which Agent is, was or at any time becomes a party, or is
threatened to be made a party, by reason of the fact that Agent is, was or at
any time becomes a director, officer, employee or other agent of Corporation, or
is or was serving or at any time serves at the request of the Corporation as a
director, officer, employee or other agent of another corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise; and
(b) otherwise to the fullest extent as may be provided to
Agent by the Corporation under the non-exclusivity provisions of the Code and
Section 43 of the Bylaws.
4. Limitations on Additional Indemnity. No indemnity pursuant to
Section 3 hereof shall be paid by the Corporation:
(a) on account of any claim against Agent for an accounting of
profits made from the purchase or sale by Agent of securities of the Corporation
pursuant to the provisions of Section 16(b) of the Securities Exchange Act of
1934 and amendments thereto or similar provisions of any federal, state or local
statutory law;
(b) on account of Agent's conduct that was knowingly
fraudulent or deliberately dishonest or that constituted willful misconduct;
(c) on account of Agent's conduct that constituted a breach of
Agent's duty of loyalty to the Corporation or resulted in any personal profit or
advantage to which Agent was not legally entitled;
(d) for which payment is actually made to Agent under a valid
and collectible insurance policy or under a valid and enforceable indemnity
clause, bylaw or agreement, except in respect of any excess beyond payment under
such insurance, clause, bylaw or agreement;
(e) if indemnification is not lawful (and, in this respect,
both the Corporation and Agent have been advised that the Securities and
Exchange Commission believes that indemnification for liabilities arising under
the federal securities laws is against public policy and
2.
<PAGE>
is, therefore, unenforceable and that claims for indemnification should be
submitted to appropriate courts for adjudication); or
(f) in connection with any proceeding (or part thereof)
initiated by Agent, or any proceeding by Agent against the Corporation or its
directors, officers, employees or other agents, unless (i) such indemnification
is expressly required to be made by law, (ii) the proceeding was authorized by
the Board of Directors of the Corporation, (iii) such indemnification is
provided by the Corporation, in its sole discretion, pursuant to the powers
vested in the Corporation under the Code, or (iv) the proceeding is initiated
pursuant to Section 9 hereof.
5. Continuation of Indemnity. All agreements and obligations of the
Corporation contained herein shall continue during the period Agent is a
director, officer, employee or other agent of the Corporation (or is or was
serving at the request of the Corporation as a director, officer, employee or
other agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise) and shall continue thereafter so long as Agent
shall be subject to any possible claim or threatened, pending or completed
action, suit or proceeding, whether civil, criminal, arbitrational,
administrative or investigative, by reason of the fact that Agent was serving in
the capacity referred to herein.
6. Partial Indemnification. Agent shall be entitled under this
Agreement to indemnification by the Corporation for a portion of the expenses
(including attorneys' fees), witness fees, damages, judgments, fines and amounts
paid in settlement and any other amounts that Agent becomes legally obligated to
pay in connection with any action, suit or proceeding referred to in Section 3
hereof even if not entitled hereunder to indemnification for the total amount
thereof, and the Corporation shall indemnify Agent for the portion thereof to
which Agent is entitled.
7. Notification and Defense of Claim. Not later than thirty (30) days
after receipt by Agent of notice of the commencement of any action, suit or
proceeding, Agent will, if a claim in respect thereof is to be made against the
Corporation under this Agreement, notify the Corporation of the commencement
thereof; but the omission so to notify the Corporation will not relieve it from
any liability which it may have to Agent otherwise than under this Agreement.
With respect to any such action, suit or proceeding as to which Agent notifies
the Corporation of the commencement thereof:
(a) the Corporation will be entitled to participate therein at
its own expense;
(b) except as otherwise provided below, the Corporation may,
at its option and jointly with any other indemnifying party similarly notified
and electing to assume such defense, assume the defense thereof, with counsel
reasonably satisfactory to Agent. After notice from the Corporation to Agent of
its election to assume the defense thereof, the Corporation will not be liable
to Agent under this Agreement for any legal or other expenses subsequently
incurred by Agent in connection with the defense thereof except for reasonable
costs of investigation or otherwise as provided below. Agent shall have the
right to employ separate counsel in such
3.
<PAGE>
action, suit or proceeding but the fees and expenses of such counsel incurred
after notice from the Corporation of its assumption of the defense thereof shall
be at the expense of Agent unless (i) the employment of counsel by Agent has
been authorized by the Corporation, (ii) Agent shall have reasonably concluded
that there may be a conflict of interest between the Corporation and Agent in
the conduct of the defense of such action or (iii) the Corporation shall not in
fact have employed counsel to assume the defense of such action, in each of
which cases the fees and expenses of Agent's separate counsel shall be at the
expense of the Corporation. The Corporation shall not be entitled to assume the
defense of any action, suit or proceeding brought by or on behalf of the
Corporation or as to which Agent shall have made the conclusion provided for in
clause (ii) above; and
(c) the Corporation shall not be liable to indemnify Agent
under this Agreement for any amounts paid in settlement of any action or claim
effected without its written consent, which shall not be unreasonably withheld.
The Corporation shall be permitted to settle any action except that it shall not
settle any action or claim in any manner which would impose any penalty or
limitation on Agent without Agent's written consent, which may be given or
withheld in Agent's sole discretion.
8. Expenses. The Corporation shall advance, prior to the final
disposition of any proceeding, promptly following request therefor, all expenses
incurred by Agent in connection with such proceeding upon receipt of an
undertaking by or on behalf of Agent to repay said amounts if it shall be
determined ultimately that Agent is not entitled to be indemnified under the
provisions of this Agreement, the Bylaws, the Code or otherwise.
9. Enforcement. Any right to indemnification or advances granted by
this Agreement to Agent shall be enforceable by or on behalf of Agent in any
court of competent jurisdiction if (i) the claim for indemnification or advances
is denied, in whole or in part, or (ii) no disposition of such claim is made
within ninety (90) days of request therefor. Agent, in such enforcement action,
if successful in whole or in part, shall be entitled to be paid also the expense
of prosecuting his claim. It shall be a defense to any action for which a claim
for indemnification is made under Section 3 hereof (other than an action brought
to enforce a claim for expenses pursuant to Section 8 hereof, provided that the
required undertaking has been tendered to the Corporation) that Agent is not
entitled to indemnification because of the limitations set forth in Section 4
hereof. Neither the failure of the Corporation (including its Board of Directors
or its stockholders) to have made a determination prior to the commencement of
such enforcement action that indemnification of Agent is proper in the
circumstances, nor an actual determination by the Corporation (including its
Board of Directors or its stockholders) that such indemnification is improper
shall be a defense to the action or create a presumption that Agent is not
entitled to indemnification under this Agreement or otherwise.
10. Subrogation. In the event of payment under this Agreement, the
Corporation shall be subrogated to the extent of such payment to all of the
rights of recovery of Agent, who shall execute all documents required and shall
do all acts that may be necessary to secure such rights and to enable the
Corporation effectively to bring suit to enforce such rights.
11. Non-Exclusivity of Rights. The rights conferred on Agent by this
Agreement shall not be exclusive of any other right which Agent may have or
hereafter acquire under any statute, provision of the Corporation's Certificate
of Incorporation or Bylaws, agreement, vote of stockholders or directors, or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding office.
4.
<PAGE>
12. Survival of Rights.
(a) The rights conferred on Agent by this Agreement shall
continue after Agent has ceased to be a director, officer, employee or other
agent of the Corporation or to serve at the request of the Corporation as a
director, officer, employee or other agent of another corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise and shall inure
to the benefit of Agent's heirs, executors and administrators.
(b) The Corporation shall require any successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business or assets of the Corporation, expressly to
assume and agree to perform this Agreement in the same manner and to the same
extent that the Corporation would be required to perform if no such succession
had taken place.
13. Separability. Each of the provisions of this Agreement is a
separate and distinct agreement and independent of the others, so that if any
provision hereof shall be held to be invalid for any reason, such invalidity or
unenforceability shall not affect the validity or enforceability of the other
provisions hereof. Furthermore, if this Agreement shall be invalidated in its
entirety on any ground, then the Corporation shall nevertheless indemnify Agent
to the fullest extent provided by the Bylaws, the Code or any other applicable
law.
14. Governing Law. This Agreement shall be interpreted and enforced in
accordance with the laws of the State of Delaware.
15. Amendment and Termination. No amendment, modification, termination
or cancellation of this Agreement shall be effective unless in writing signed by
both parties hereto.
16. Identical Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall for all purposes be deemed to be an
original but all of which together shall constitute but one and the same
Agreement. Only one such counterpart need be produced to evidence the existence
of this Agreement.
17. Headings. The headings of the sections of this Agreement are
inserted for convenience only and shall not be deemed to constitute part of this
Agreement or to affect the construction hereof.
18. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given (i)
upon delivery if delivered by hand to the party to whom such communication was
directed or (ii) upon the third business
5.
<PAGE>
day after the date on which such communication was mailed if mailed by certified
or registered mail with postage prepaid:
(a) If to Agent, at the address indicated on the signature
page hereof.
(b) If to the Corporation, to
BroadVision, Inc.
333 Distel Circle
Los Altos, CA 94022-1404
Attn: Chief Financial Officer
or to such other address as may have been furnished to Agent by the Corporation.
[THIS SPACE INTENTIONALLY LEFT BLANK]
6.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
and as of the day and year first above written.
BROADVISION, INC.
By:
-----------------------------------
Title:
--------------------------------
AGENT
--------------------------------------
Address:
--------------------------------------
--------------------------------------
7.
Exhibit 11.1
BROADVISION, INC AND SUBSIDIARIES
STATEMENT REGARDING COMPUTATION OF PER SHARE LOSS
(In thousands, except per share data)
March 31, March 31,
1997 1996
--------- ---------
Statement of operations data:
Net Loss $(2,487) $(1,698)
Weighted average number of common and dilutive
equivalent shares used in computations:
Common stock 20,002 6,409
Preferred stock (as if converted) - 5,600
------- -------
Subtotal 20,002 12,009
Pursuant to Staff Accounting Bulletin No. 83:
Preferred stock converted on as-if basis at exercise
prices less than the anticipated initial public
offering price - 3,916
Stock options - 2,651
------- -------
Shares used in computing net loss per share 20,002 18,576
------- -------
Net loss per share $ (0.12) $ (0.09)
======= =======
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE YEAR
ENDED MARCH 31, 1997 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FORM
10-Q FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> MAR-31-1997
<CASH> 13,900
<SECURITIES> 1,532
<RECEIVABLES> 8,202
<ALLOWANCES> (376)
<INVENTORY> 0
<CURRENT-ASSETS> 23,763
<PP&E> 4,539
<DEPRECIATION> (1,189)
<TOTAL-ASSETS> 27,515
<CURRENT-LIABILITIES> 8,047
<BONDS> 0
<COMMON> 39,565
0
0
<OTHER-SE> (20,679)
<TOTAL-LIABILITY-AND-EQUITY> 27,515
<SALES> 3,148
<TOTAL-REVENUES> 5,291
<CGS> 214
<TOTAL-COSTS> 1,357
<OTHER-EXPENSES> 6,630
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 12
<INCOME-PRETAX> (2,487)
<INCOME-TAX> 0
<INCOME-CONTINUING> (2,487)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (2,487)
<EPS-PRIMARY> (0.12)
<EPS-DILUTED> (0.12)
</TABLE>
