e10vk
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, DC 20549
Form 10-K
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(Mark One)
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ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
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For the fiscal year ended
December 31, 2006
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or
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TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
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For the transition period
from to
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Commission file number
000-26679
Art Technology Group,
Inc.
(Exact name of registrant as
specified in its charter)
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Delaware
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04-3141918
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(State or other jurisdiction
of
incorporation or organization)
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(I.R.S. Employer
Identification No.)
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One Main Street
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02142
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Cambridge,
Massachusetts
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(Zip
Code)
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(Address of principal executive
offices)
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(617) 386-1000
(Registrants telephone
number, including area code)
Securities registered pursuant to Section 12(b) of the
Act:
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Title of Each Class
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Name of Each Exchange on Which Registered
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Common Stock, $0.01 par
value with Associated Preferred Stock Purchase Rights
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The Nasdaq Stock Market, LLC
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Securities registered pursuant to Section 12(g) of the
Act:
None
Indicate by check mark if the registrant is a well-known
seasoned issuer, as defined in Rule 405 of the Securities
Act. Yes o No þ
Indicate by check mark if the registrant is not required to file
reports pursuant to Section 13 or Section 15(d) of the
Exchange
Act. Yes o No þ
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 þ No o
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 registrants 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. þ
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, or a non-accelerated
filer. See definition of accelerated filer and
large accelerated filer in
Rule 12b-2
of the Exchange Act.
Large accelerated
filer o Accelerated
filer þ Non-accelerated
filer o
Indicate by check mark whether the registrant is a shell company
(as defined in
Rule 12b-2
of the Exchange
Act). Yes o No þ
As of June 30, 2006 (the last business day of the
registrants most recently completed second fiscal
quarter), the aggregate market value of voting stock held by
non-affiliates of the registrant was approximately $332,794,140.
As of March 13, 2007, the number of shares of the
registrants common stock outstanding was 127,521,957.
Documents
Incorporated by Reference
Portions of the registrants definitive proxy statement for
its annual meeting of stockholders to be held on May 17,
2007 are incorporated by reference in Items 10, 11,
12, 13 and 14 of Part III.
ART
TECHNOLOGY GROUP, INC.
INDEX TO
FORM 10-K
References in this Report to we, us,
our and ATG refer to Art Technology
Group, Inc. and its subsidiaries. ATG and Art Technology Group
are our registered trademarks, and ATG Wisdom is our trademark.
This Report also includes trademarks and trade names of other
companies.
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PART I
Some of the information contained in this Report consists of
forward-looking statements within the meaning of the
Private Securities Litigation Reform Act of 1995. Use of words
such as believes, expects,
anticipates, intends, plans,
estimates, should, likely or
similar expressions indicate a forward-looking statement. These
statements are subject to risks and uncertainties and are based
on the beliefs and assumptions of our management based on
information currently available to our management. Important
factors that could cause actual results to differ materially
from the forward-looking statements include, but are not limited
to, those set forth below under the heading Risk
Factors. We assume no obligation to update any
forward-looking statements.
Our
Business
We develop and market a comprehensive suite of
e-commerce
software products, as well as provide related services,
including support and maintenance, education, application
hosting, professional services and proactive conversion
solutions for enhancing online sales and support. Our customers
use our products and services to power their
e-commerce
websites, attract prospects, convert sales, and offer ongoing
customer care services. Our solutions are designed to provide a
scalable, reliable and sophisticated
e-commerce
website for our customers to create a satisfied, loyal and
profitable online customer base.
Corporate
Information
We were incorporated in 1991 in the State of Delaware and have
been a publicly traded corporation since 1999. Our corporate
headquarters are at One Main Street, Cambridge, Massachusetts
02142. We have domestic offices in Chicago, Illinois; New York,
New York; Washington, D.C.; Reston, Virginia;
San Francisco, California; and Seattle, Washington; and
international offices in the Canada; France; Northern Ireland;
Singapore; and United Kingdom. As of December 31, 2006, we
had a total of 378 employees and we have more than
900 customers. Our Internet web site address is
www.atg.com.
Overview
We provide software and services that help online businesses
increase their revenues. We seek to differentiate ourselves by
enabling businesses to use our solutions to provide a richer,
more personalized and more compelling online shopping
experience. This provides their merchandisers and marketers more
control over the online channel, and enables customer service
agents to provide consumers more consistent, personalized and
relevant assistance. Our solutions deliver better consistency
and relevancy by capturing and maintaining information about
customers personal preferences, online activity, and
transaction history, and by using this information to deliver
more personalized and contextual content.
Through our eStara subsidiary, we deliver OnDemand services for
multi-channel interaction. Our Click to Call and Click to Chat
services provide online businesses with proactive conversion
solutions for enhancing online sales and support. eStara
solutions allow customers to initiate a conversation with a
sales person or customer care agent by clicking a button on a
website,
e-mail,
banner ad or directory listing, and eStaras Call Tracking
solutions allow advertisers to track the source of each in-bound
call as well as information about callers. We seek to
differentiate ourselves by providing enterprise-class solutions
suitable for higher-volume, more demanding applications.
We market our products and services primarily to Global
2000 companies and other businesses that have a large
number of online users and utilize the Internet as an important
business channel. We focus primarily on providing our software
and services to businesses in the retail, consumer products,
manufacturing, media and entertainment, telecommunications,
financial services, travel and high technology industries. We
have over 900 customers, including Amazon, American Eagle
Outfitters, American Express, AOL, AT&T, Best Buy, B&Q,
Cabelas, Carrefour, Cingular, Coca-Cola, Continental Airlines,
Dell, DirecTV, El Corte Ingles, Expedia, France Telecom, Harvard
Business School Publishing, Hewlett-Packard, Intuit, Hilton,
HSBC, J. Crew, LL Bean, Macys, Meredith, Microsoft, Neiman
Marcus, New York & Company, Nike, Nokia, OfficeMax,
PayPal, Philips, Procter & Gamble, Sears, Sony,
Symantec, T Mobile, Target, Urban Outfitters, Verizon, Viacom,
Vodafone and Walgreens.
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Our business has evolved significantly since our incorporation
in 1991:
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Until 1995, we functioned primarily as a professional services
organization in the Internet commerce market.
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In 1996, we began offering Internet commerce and software
solutions, initially focusing on infrastructure products, such
as our ATG Dynamo Application Server.
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In 2004, we began to concentrate on developing application
products, having concluded that the market for infrastructure
products had become increasingly standards driven and that we
could best differentiate ourselves by offering our clients
advanced applications functionality.
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In November 2004, we acquired Primus Knowledge Solutions, Inc.
(Primus), a provider of software solutions for
customer service designed to help companies deliver a superior
customer experience via contact centers,
e-mail and
web self-service. The Primus solutions extended ATGs
offerings beyond commerce and marketing and into customer
service.
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In 2004, we also began to offer our clients hosted services,
also known as software-as-a-service, as an alternative delivery
model for our application solutions. We believe that hosted
services can provide significant advantages for our clients, and
provide us with a substantial opportunity for growth.
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In 2005, we completed the integration of Primus applications
into the ATG platform, in what we call our Wisdom strategy.
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In October 2006, we acquired eStara, Inc. (eStara),
a provider of proactive conversion solutions for enhancing
online sales and support initiatives. The eStara solutions
provided us with a new channel to help our clients convert web
browsing activities into sales, as well as business
opportunities independent of ATG-powered websites.
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Our
Strategy
Our objective is to be the industry leader in helping businesses
do more business on the Internet. We intend to achieve this
objective by implementing the following key components of our
strategy:
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Deliver a commerce platform with leadership functionality,
suitable for the most demanding enterprises. Our
clients tell us that, in some cases, our platform delivers over
100,000 orders per day in peak periods. Leading industry
analysts rank our overall offering number one among commerce
platforms for
business-to-consumer
sites, including reliability and scalability, administration and
management, catalog/content management, campaign management and
customer self-service. It is our objective to continue to
provide leadership in
e-commerce
functionality and operational excellence.
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Through application hosting services, provide the same
quality platform to mid-tier companies and others who opt to
outsource their
e-commerce
operations. For clients that do not wish to
expend resources on running
e-commerce
and
e-business
applications in-house, we offer hosting services for the full
spectrum of ATG applications, which we call ATG OnDemand.
Clients can purchase licenses to our solutions and elect an
OnDemand managed services model where we host the clients
solutions in our hosted environment. Or clients can elect an
OnDemand subscription model, which requires neither an
investment in software licenses, nor support and maintenance
agreements. With the OnDemand subscription model, we provide a
full solution for the client, including the software, hardware
and management. There are several advantages for organizations
to choose an OnDemand hosting model, which makes this a
potential growth area for us. These include:
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leveraging our experience to accelerate growth of the
clients online business and allowing clients to focus on
their core competencies;
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shifting the clients technology risks to us;
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shortening the time to market (vs. in-house development,
deployment and maintenance); and
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avoiding upfront and ongoing expenditures required to purchase
and maintain software and hardware.
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Differentiate by providing a more personalized, more
relevant, more consistent shopping experience. We
give merchandisers and marketers the power and analytics to
define offers and cross-sells, to follow up on abandoned
shopping carts, to perform A/B split tests and to create
multi-channel, multi-stage web and
e-mail
campaigns that match a companys selling strategy with
information about a visitors browsing behavior, purchase
and interaction history, preferences and profile. This increases
basket size and the number of website visitors who go on to
purchase items from that website, resulting in increased
revenue. We use this same information to extend the consistent
customer experience to the customer service agent in the call
center, which results in a more satisfied, loyal and profitable
customer.
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Through our eStara subsidiary, deliver solutions independent
of the choice of web platform. Our eStara
proactive conversion solutions can be delivered to clients who
are using any
e-commerce
platform, or custom-built websites, across all industries. This
enlarges the size of our market opportunity and customer
penetration.
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Leverage existing sales channels. We sell our
products primarily through our direct sales organization. In
addition, a significant portion of our revenue is co-sold or
influenced by a variety of business partners, including systems
integrators, solution providers and other technology partners.
We currently have a broad range of business alliances throughout
the world, such as Accenture, Capgemini, Deloitte Consulting, HP
Consulting and Tata Consultancy Services, as well as regional
integrators and interactive agencies such as aQuantive,
BlastRadius, imc2, CGI (EMEA), LBi Group (EMEA), McFadyen
Consulting, Professional Access, Resource Interactive and D2C2
(Taiwan). In most geographies and situations, our goal is both
to maintain close relationships directly with our clients while
also motivating systems integrators and other channel partners
to implement our applications in their projects and solution
sets.
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Leverage and expand our service
capabilities. We have extensive experience in web
application development and integration services, as well as
knowledge management design and call-center systems deployment.
Through our Professional and Education Services organizations,
we provide services to train our systems integrators, value
added resellers and complementary software vendors in the use of
our products and offer consulting services to assist with
customer implementations. We seek to motivate our business
partners to provide joint implementation services to our end
user customers. We intend to continue to seek additional
opportunities to increase revenues from product sales by
expanding our base of business partners trained in the
implementation and application of our products.
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ATG
Licensed Products
We provide a comprehensive
e-commerce
product suite designed to enable our clients to attract
visitors, convert them to buyers, deliver customer service and
analyze the results. The products that comprise our
comprehensive
e-commerce
product suite are as follows:
ATG Commerce is a comprehensive, highly scalable
e-commerce platform. Its flexible, component-based architecture
enables our clients to personalize the online buying experience
for their customers so that customers can more easily find
desired products, comparison shop, register for gifts, pre-order
products, redeem coupons and execute other useful features. ATG
Commerces functionality includes catalogs, product
management, shopping carts, checkout, pricing management,
merchandising, promotions, inventory management and
business-to-business
order management.
The ATG Adaptive Scenario Engine (ASE) is a platform that
provides the enabling technology and core functionality to allow
our clients to develop and manage robust, adaptable, scalable
and personalized
e-commerce
applications across channels and through the complete customer
lifecycle. The ATG platform is designed to allow our clients to
easily integrate these applications across their
marketing/merchandising,
e-commerce
and customer care organizations.
ATG Commerce Search is a dynamic, integrated search
solution that incorporates natural language technology into our
clients online storefronts. ATG Commerce Search is
designed to enable shoppers to navigate our clients
e-commerce
sites quickly and efficiently to find merchandise they want and
discover new items, as well as make purchases directly from the
search results page.
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ATG Merchandising enables our clients merchandising
professionals to directly manage their online
storefronts including catalogs, products, search
facets, promotions, pricing, coupons and special
offers to help quickly connect shoppers with the
items most likely to interest them.
ATG Content Administration is a comprehensive web content
management solution to support personalized websites throughout
the entire content process, including creation, version
tracking, preview, editing, revision, approval and site
deployment.
ATG Outreach is an
e-marketing
and proactive service solution that leverages customer
information gained through web interactions, preferences and
behaviors to enable our clients to create relevant, personalized
outbound marketing and service campaigns.
ATG Self-Service offers consumers access to personalized
answers to questions and helps the customer answer his or her
questions without telephoning for help. ATG Self-Service
combines an answer repository with multi-lingual natural
language search and navigation capabilities. The application
also offers comprehensive business reporting that helps clients
better understand customers needs and preferences.
ATG Commerce Assist provides complete e-commerce support
for call center agents to create and manage orders in a unified
browser based application for the web and call-center
environments.
ATG Response Management is a solution for automating
responses to inbound electronic communications, enabling our
clients to provide answers to customer inquiries via
e-mail, web
forms, chat, short messaging service (SMS) or multimedia
messaging service (MMS). ATG Response Managements
categorization capabilities assess an inquiry, then either send
an automated response or route the inquiry to the agent best
skilled to handle the issue.
ATG Knowledge is a knowledge management solution that
call center agents and help-desk personnel who provide customers
with assisted service can use to find the answers to customer
inquiries and resolve problems. ATG Knowledge enables our
clients agents to fulfill a wide range of customer needs
by unifying customer management, knowledge management and
incident management into a single solution.
ATG Campaign Optimizer assists marketing professionals in
defining comparative tests of different offers, promotions and
product representations through an A/B split testing solution.
The product puts those tests into production, specifying the
segments of website visitors to be tested, and finally writes
reports on the test results. Methods for testing campaigns
provided by our competitors often require programming by expert
developers, and sometimes even involve network infrastructure
modifications. ATG Campaign Optimizer is designed to allow
non-technical marketing professionals to create and execute
comparative tests that can be used to increase the effectiveness
of online marketing activities without the need for expert
programming or infrastructure modifications.
ATG Customer Intelligence is an integrated set of
datamart and reporting capabilities to monitor and analyze
commerce and customer care performance. It is designed to
combine key data from the ATG product suite, such as purchases,
searches, escalations and click-throughs, with behavioral data
from web traffic analysis and demographic data, such as age,
gender and geography.
Our products allow companies to present a single view of
themselves to their customers through our repository
integration. This integration technology is designed to allow
companies to easily access and utilize data in the enterprise
regardless of the data storage format or location. The data can
be leveraged in native form without having to move, duplicate or
convert the data. By enabling these capabilities in a
cost-effective manner, we believe our products can help
companies protect their brands and keep their customers from
becoming confused or frustrated, all of which positively impact
customer satisfaction and loyalty.
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We support the adoption of open application server
infrastructure by our existing and new clients and work closely
with other application server, operating system and database
vendors to increase the value customers receive from our
products on a variety of popular infrastructure components.
OnDemand
Service Offerings
We offer OnDemand delivery of
e-commerce
and customer care with our ATG OnDemand service offerings. The
ATG OnDemand offerings are available on a subscription and
managed services basis. We also offer OnDemand multi-channel
customer interaction through our eStara subsidiary.
Subscription Services. We offer our clients
hosting services for the full spectrum of ATG applications.
These services include the provisioning, management and
monitoring of the application infrastructure including
bandwidth, network, security, servers, operating systems,
enabling software and ATG applications. ATG OnDemand
subscription services (also known as software-as-a-service, or
SaaS) require neither an investment in software licenses nor
maintenance agreements. The customer pays an initial
set-up fee,
and after a brief implementation period the solution is managed
in our data center. For the OnDemand subscription offerings, we
control the implementation and management process. We support
our hosted clients on a 24/7 basis by providing problem
resolution services, application change management services, and
the support for service level agreements related to application
availability.
Managed Services. Through our OnDemand Managed
Services program, we make our application hosting services
available for a fee to clients that have purchased ATG software
licenses and maintenance agreements. The OnDemand Managed
Services program shifts the clients technology risk to us
and leverages our domain expertise.
eStara
Service Offerings
In October 2006, we acquired eStara, Inc., a provider of
proactive conversion solutions for enhancing online sales and
support initiatives. Like the ATG OnDemand offerings, the eStara
offerings are hosted on our servers; however, eStaras
products are platform independent, so a client can benefit from
eStaras products whether it elects to run its online
environment on an ATG-powered
e-commerce
platform, another
e-commerce
platform or a custom built website.
eStara Click to Call is designed to allow online
prospects and customers to transition seamlessly within the
context of their online session into immediate telephone or
PC-based voice contact with businesses. Web site visitors,
e-mail
recipients or viewers of a banner ad simply click a Click to
Call button and select
PC-to-phone
or
phone-to-phone
to connect in real-time with our clients sales or customer
service agents.
eStara Click to Chat allows online prospects and
customers to initiate a text chat session online with our
clients sales or customer service agents by simply
clicking a Click to Chat button.
eStara Call Tracking is designed to allow our clients to
accurately track the source of inbound telephone responses to
their print and online promotional campaigns.
Support
and Services
Our services organization provides a variety of consulting,
design, application development, deployment, integration,
hosting, training, and support services in conjunction with our
products. We provide these services through our Customer Support
Services, Professional Services and Education Services groups.
Customer Support and Maintenance Services. We
offer four levels of customer support and maintenance including
our Premium Support Program, which consists of access to
technical support engineers
24/7, for
customers deploying mission critical applications. For an annual
support and maintenance fee, customers are entitled to receive
software updates, maintenance releases, online documentation and
eServices including bug reports and unlimited technical support.
Professional Services. The primary goal of our
Professional Services organization is to ensure customer
satisfaction and the successful implementation of our
application solutions. ATG Professional Services has
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developed an Adaptive Delivery Framework (ADF) to ensure
consistent, high-quality service delivery throughout all our
project engagements. The ADF is used to create repeatable
delivery processes from project to project in order to provide a
consistent look and feel for all ATG project deliverables. Our
Professional Services include four primary service offerings:
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OnDemand Offerings. By leveraging our
experience with the pre-built OnDemand offerings, our
Professional Services organization assists our clients with
their ATG implementations, thus helping our clients quickly and
economically launch their
e-commerce
and service projects.
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Full-lifecycle Solutions. We work with our
clients from the earliest stages of their projects. The
full-lifecycle approach encompasses everything from working with
our clients end users and technical staff to define
project requirements to solution design, implementation,
usability testing, staging and deployment.
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Custom Solutions. We can also manage specific
areas of our clients projects, such as designing a
solution to meet a clients requirements, implementing
scenarios or integrating our solutions with a third-party
application.
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Structured Enablement. In this model, we give
our clients the guidance they need while maximizing the skills
of the clients own personnel. Depending on a clients
project goals and the expertise of its team, appropriate ATG
personnel (such as architects or engineers) work onsite as
advisors to aid the clients personnel in areas such as
reviewing completed work or advising on a particular project
area.
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Education Services. We provide a broad
selection of educational programs designed to train clients and
partners on our applications. This curriculum addresses the
educational needs of developers, technical managers, business
managers, and system administrators. ATG Education Services also
offers an online learning program that complements our
instructor-led training. Developers can become certified on our
products by taking a certification exam in a proctored
environment. We also measure partner quality using a partner
accreditation program that ensures ATG partners have the skills
necessary to effectively assist our clients with
implementations. We provide a full range of instructor-led
solutions to assist clients with these key initiatives.
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Markets
Our principal target markets are Global 2000 companies and
other businesses that have large numbers of online users and
utilize the Internet as an important business channel. Our
clients represent a broad spectrum of enterprises within diverse
industry sectors, and include some of the worlds leading
corporations. As of December 31, 2006, we have more than
900 customers. The following is a partial list:
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Consumer Retail
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Financial Services
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Manufacturing
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Amazon
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Allied Irish Banks
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Abbott Laboratories
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American Eagle Outfitters
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Allstate
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Airbus
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B&Q (UK)
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American Express
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American Standard
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Best Buy Companies, Inc.
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Barclays Global Investors
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Boeing
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Bluefly
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Canada Trust
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Boston Scientific
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Body Shop
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Citicorp
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Coca-Cola
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Cabelas
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Conseco
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Daimler-Chrysler
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Carrefour (Europe)
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Dell Financial Services
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Eastman Kodak
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CVS
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Deutsche Bank
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General Motors
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El Corte Ingles (Spain)
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Dreyfus Services Corporation
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Heidelberger Druckmaschinen
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J. Crew
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Fidelity
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Hoffman la Roche
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LL Bean
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Ford Motor Credit
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Johnson & Johnson
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Neiman Marcus
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Franklin Templeton Funds
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Louis Vuitton
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New York & Company
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Harris Bank
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Mars
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OfficeMax
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HSBC
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Motorola
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PetMed Express
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Irwin Union Bank
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Newell Rubbermaid
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Restoration Hardware
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John Hancock Funds
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Nike
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Sears
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Merrill Lynch
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Nokia
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Target Corporation
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MFS Investment Management
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Philips
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The Finish Line
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PayPal
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Pirelli
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Urban Outfitters
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Pioneer Investments
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Procter & Gamble
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Walgreens
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St. James Place Management
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Rubbermaid
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Warnaco (Calvin Klein, Speedo)
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Washington Mutual
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Sony
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Communications and Technology
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Travel, Media and Entertainment
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Adobe
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AOL
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AT&T
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BMG Direct
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BellSouth
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Club Med
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Dell
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Elsevier
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EMC
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Expedia
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France Telecom
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Harvard Business School Publishing
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Hewlett-Packard
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Hilton Hotels
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Hitachi
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Hotels.com
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Intuit
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Hyatt
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Microsoft
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Intercontinental Hotels Group
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Orange PLC
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Knight-Ridder
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Sony
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Media News Group
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Telefonica
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Meredith Corporation
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T-Mobile
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Nintendo
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VeriSign
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Readers Digest
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Verizon
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The MTVi Group
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Vodafone
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Time, Inc.
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Warner Music
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7
Research
and Development
Our research and development group is responsible for core
technology, product architecture, product development, quality
assurance, documentation and third-party software integration.
This group also assists with pre-sale, customer support
activities and quality assurance tasks supporting the services
and sales organizations.
Since we began focusing on selling software products in 1996,
the majority of our research and development activities have
been directed towards creating new versions of our products,
which extend and enhance competitive product features. In 2006,
we focused primarily on developing new and innovative
applications, as well as developing and enhancing our new
OnDemand offerings.
Sales and
Marketing
We market and sell our products and services primarily through
our direct sales force, which is compensated based on product
and services sales made to our clients, directly or through
business partners. We also sell products and services through
channel partners, including systems integrators and other
technology partners. The majority of our revenue is from direct
sales.
Our sales and service organization includes employees in direct
and channel sales, system engineers and account management. As
of December 31, 2006, we had approximately 93 employees in
our sales and support organization, including 54 direct and
channel sales representatives whose performance is measured on
the basis of achievement of quota objectives.
To support our sales efforts and promote the ATG brand, we
conduct comprehensive marketing programs. These programs include
industry and partner events, market research, public relations
activities, seminars, advertisements, direct mailings and the
development of our website. Our marketing organization supports
the sales process and helps identify key strategic alliances and
other opportunities. They prepare product research, product
planning, manage press coverage and other public relations. As
of December 31, 2006, we had 16 employees in our global
marketing organization, which is a component of our sales and
marketing organization.
As of December 31, 2006, in addition to offices throughout
the United States, we had sales offices located in the United
Kingdom, France, Canada and Singapore.
Strategic
Alliances
We have established strategic alliances with system integrators,
technology partners and resellers to augment our direct sales
activities. We provide our systems integrators, technology
partners and resellers with sales and technical training in
order to encourage them to create demand for our products and
services and to extend our presence globally and regionally. In
addition, we encourage our channel partners to enroll in our
accreditation and certification programs. Our ATG Certified
Professional Program is a training program for developers to
learn more about our products and services, and our ATG
Accredited Partner Program is intended to identify our most
qualified partners.
Competition
The market for online sales, marketing and customer service
solutions is intensely competitive, subject to rapid
technological change, and significantly affected by new product
introductions and other market activities. We expect competition
to persist and intensify in the future. We currently have the
following primary sources of competition:
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in-house development efforts by potential clients or partners;
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e-commerce
application vendors, such as IBM and Escalate Retail;
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e-commerce
business process outsourcers, such as Digital River and GSI
Commerce;
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hosting managed service providers, such as Accenture, EDS and
IBM;
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hosting on-demand subscription service providers, such as
Demandware, Digital River, MarketLive and Venda;
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marketing and customer-service application vendors, including
natural language, self-service and traditional customer
relationship management application vendors; and
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proactive solutions vendors, such as LivePerson.
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We compete against these alternative products and services by
providing a solution that enables our clients to provide their
customers with an integrated customer experience for online
sales, marketing and customer service. We believe our solutions
provide our clients with a rapid return on investment,
attractive long-term total cost of ownership, a way to present a
single view of themselves to their customers, the ability to
improve the productivity and effectiveness of customer
interactions, and the flexibility to adapt to rapidly changing
and often unpredictable market needs.
We seek to provide our clients with a rapid return on investment
through
out-of-the-box
functionality for online sales
(e-commerce),
marketing and service built on a flexible, component
architecture that is practical and cost-effective to customize.
These capabilities enable our clients to get to market quickly
in a manner that exploits their competitive advantages, which
helps drive their return on investment.
Proprietary
Rights and Licensing
Our success and ability to compete depends on our ability to
develop and protect the proprietary aspects of our technology
and to operate without infringing on the proprietary rights of
others. We rely on a combination of patent, trademark, trade
secret and copyright law and contractual restrictions to protect
our proprietary technology. At December 31, 2006, we had
ten issued United States and seven issued European patents
covering our technology, and we have eleven additional patent
applications pending. In addition, we have several trademarks
that are registered or pending registration in the United
States or abroad. We seek to protect our source code for
our software, documentation and other written materials under
trade secret and copyright laws. However, these legal
protections afford only limited protection for our technology.
We license our software pursuant to signed master license
agreements, as well as click through or shrink
wrap agreements, which impose restrictions on the
licensees ability to use the software, such as prohibiting
reverse engineering and limiting the use of copies. We also seek
to avoid disclosure of our intellectual property by requiring
employees and consultants with access to our proprietary
information to execute confidentiality agreements and by
restricting access to our source code. Due to rapid
technological change, we believe that factors such as the
technological and creative skills of our personnel, new product
developments and enhancements to existing products are more
important than legal protections to establish and maintain a
technology leadership position.
Employees
As of December 31, 2006, we had a total of 378 employees.
Our success depends on our ability to attract, retain and
motivate highly qualified technical and management personnel,
for whom competition is intense. Our employees are not
represented by any collective bargaining unit, and we have never
experienced a work stoppage. We believe our relations with our
employees are good.
Internet
Address and SEC Reports
We are registered as a reporting company under the Securities
Exchange Act of 1934, as amended, which we refer to as the
Exchange Act. Accordingly, we file or furnish with the
Securities and Exchange Commission, or the Commission, annual
reports on
Form 10-K,
quarterly reports on
Form 10-Q
and current reports on
Form 8-K
as required by the Exchange Act and the rules and regulations of
the Commission. We refer to these reports as Periodic Reports.
The public may read and copy any Periodic Reports or other
materials we file with the Commission at the Commissions
Public Reference Room at 100 F Street, NE, Washington, DC 20549.
Information on the operation of the Public Reference Room is
available by calling
1-800-SEC-0330.
In addition, the Commission maintains an Internet website that
contains reports, proxy and information statements and other
information regarding issuers,
9
such as Art Technology Group, that file electronically with the
Commission. The address of this website is
http://www.sec.gov.
Our Internet website is www.atg.com. We make available, free of
charge, on or through our Internet website our Periodic Reports
and amendments to those Periodic Reports as soon as reasonably
practicable after we electronically file them with the
Commission. We are not, however, including the information
contained on our website, or information that may be accessed
through links on our website, as part of, or incorporating it by
reference into, this annual report on
Form 10-K.
The following are certain of the important factors that could
cause our actual operating results to differ materially from
those indicated or suggested by forward-looking statements made
in this annual report on
Form 10-K
or presented elsewhere by management from time to time.
We
expect our revenues and operating results to continue to
fluctuate for the foreseeable future. If our quarterly or annual
results are lower than the expectations of securities analysts,
then the price of our common stock is likely to
fall.
Our revenues and operating results have varied from quarter to
quarter in the past and will probably continue to vary
significantly from quarter to quarter in the foreseeable future.
A number of factors are likely to cause variations in our
operating results, including:
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the timing of sales and revenue recognition of our products and
services, which are affected by the mix of licensed, hosted and
subscription-based sales in a period; depending on our sales
terms with our customers, we expect to recognize an increasing
portion of our revenue ratably over a period of time rather than
at the time of invoice;
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the timing of customer orders, especially larger transactions,
and product implementations;
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fluctuating economic conditions, particularly as they affect our
customers willingness to implement new
e-commerce
solutions;
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delays in introducing new products and services;
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the size of price discounting and concessions;
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changes in the mix of revenues derived from products and
services;
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timing of hiring and utilization of personnel;
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cost overruns related to fixed-price services projects;
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the mix of domestic and international sales;
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variation in our actual costs from our cost estimates related to
long term hosting contracts;
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increased expenses, whether related to sales and marketing,
product development or administration; and
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costs related to possible acquisitions of technologies or
businesses.
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In any given quarter, we often depend on several relatively
large license transactions to meet expected revenues for that
quarter. If we expect to complete a large sale to a specific
customer in a particular quarter and the sale is not completed
in that quarter, then we are not likely to be able to generate
revenue from alternate sources in time to compensate for the
shortfall. In addition, as is the case with many software
companies, a significant portion of our sales are concentrated
near the end of each fiscal quarter. If we are unable to close
or recognize revenues on even a relatively small number of
license deals at quarter-end, then we may not be able to meet
expected revenues for that quarter. Because of this
concentration of sales at quarter end, our more sophisticated
customers may be successful in pressuring us to give them higher
price discounts than we might otherwise provide by waiting until
quarter-end to complete their transactions with us.
10
Our
management has concluded that there were material weaknesses in
our internal control over financial reporting which could
undermine our investors confidence in our financial
statements.
Section 404 of Sarbanes Oxley Act of 2002 requires that we
annually evaluate and report on our systems of internal controls
and that our independent registered public accounting firm must
report on managements evaluation of those controls. Our
management has concluded that material weaknesses in our
internal control over financial reporting, specifically relating
to inadequate and ineffective controls over the financial
statement close process and inadequate staffing within the
accounting organization, existed as of December 31, 2006.
As a result of these material weaknesses, our management
concluded that we did not maintain effective internal control
over financial reporting as of December 31, 2006. Our
independent registered public accounting firm, Ernst &
Young LLP, has concurred with managements assessment. Our
managements report on our internal control over financial
reporting and the report of Ernst & Young LLP thereon
appear in Item 9A of this annual report on
Form 10-K.
A material weakness is a control deficiency, or a combination of
control deficiencies, that results in more than a remote
likelihood that a material misstatement of the annual or interim
financial statements will not be prevented or detected. If the
presence of these material weaknesses in our internal controls
over financial reporting undermine investor confidence in the
quality of our financial reporting, the market price of our
common stock could be adversely affected. We cannot assure you
that the remedial actions we have undertaken, as described in
Item 9A, will be adequate to promptly and completely
correct the reported deficiencies.
We may
not be able to sustain or increase our revenue or attain
profitability on a quarterly or annual basis.
We incurred losses in five of the most recent 12 quarters
preceding December 31, 2006, and we had an accumulated
deficit of $191.6 million as of December 31, 2006. We
operate in a rapidly evolving industry, which makes it more
difficult to predict our future operating results. We cannot be
certain that our revenues will grow or our expenses will
decrease at rates that will allow us to achieve profitability on
a quarterly or annual basis. Additionally, we expect to
recognize an increasing portion of our revenue ratably over a
period of time rather than at the time of invoice. In the near
term, this may have an adverse effect on our revenue and net
income, which could result in a decline in the price of our
common stock.
Our
lengthy sales cycle makes it difficult to predict our quarterly
results and causes variability in our operating
results.
We have a long sales cycle, often several months or quarters,
because our clients often need to make large expenditures and
invest substantial resources in order to take advantage of our
products and services and also because we generally need to
educate potential customers about the use and benefits of our
products and services. This long sales cycle makes it difficult
to predict the quarter in which sales may occur. We may incur
significant sales and marketing expenses in anticipation of
selling our products, and if we do not achieve the level of
revenues we expected, our operating results will suffer and our
stock price may decline. Further, our potential customers
frequently need to obtain approvals from multiple decision
makers before making purchase decisions. Delays in sales could
cause significant variability in our revenues and operating
results for any particular period.
Our
common stock price has historically been volatile and will
probably continue to be volatile.
The market price of our common stock has ranged from
$0.58 per share to $126.88 per share since our initial
public offering in July 1999 and has ranged from $1.83 per
share to $3.81 per share between January 1, 2006 and
December 31, 2006. Fluctuations in market price and volume
are particularly common among securities of software companies.
The market price of our common stock may fluctuate significantly
in response to the following factors among others, some of which
are beyond our control:
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variations in our quarterly operating results, in particular,
our ability to meet the expectations of brokerage firms,
industry analysts and investors;
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changes in market valuations of software companies;
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our announcement of significant contracts, acquisitions,
strategic partnerships, joint ventures or capital commitments;
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timing of completion of significant sales;
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additions or departures of our key personnel; or
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future sales of our common stock.
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If the
market for
e-commerce
does not continue to grow, then demand for our products and
services may decrease.
Our success depends heavily on the continued use of the Internet
for
e-commerce.
Many companies continue to rely primarily or exclusively on
traditional means of commerce and may be reluctant to change
their patterns of commerce. For our customers and potential
customers to be willing to invest in our electronic commerce and
online marketing, sales and service applications, the Internet
must continue to be accepted and widely used for commerce and
communication. If Internet commerce does not grow or grows more
slowly than expected, then our future revenues and profits may
not meet our expectations or those of analysts.
If we
fail to adapt to rapid changes in the market for online business
applications, then our products and services could become
obsolete.
The market for our products is constantly and rapidly evolving,
as we and our competitors introduce new and enhanced products,
retire older ones, and react to changes in Internet-related
technology and customer demands, coalescence of product
differentiators, product commoditization and evolving industry
standards. We may not be able to develop or acquire new products
or product enhancements that comply with present or emerging
Internet technology standards or differentiate our products
based on functionality and performance. In addition, we may not
be able to establish or maintain strategic alliances with
operating system and infrastructure vendors that will permit
migration or upgrade opportunities for our current user base.
New products based on new technologies or new industry standards
could render our existing products obsolete and unmarketable.
To succeed, we need to enhance our current products and develop
new products on a timely basis to keep pace with market needs,
satisfy the increasingly sophisticated requirements of customers
and leverage strategic alliances with third parties in the
e-commerce
field who have complementary or competing products.
E-commerce
technology is complex, and new products and product enhancements
can require long development and testing periods. Any delays in
developing and releasing new or enhanced products could cause us
to lose revenue opportunities and customers.
We
face intense competition in the market for online commerce
applications and services, and we expect competition to
intensify in the future. If we fail to remain competitive, then
our revenues may decline, which could adversely affect our
future operating results and our ability to grow our
business.
A number of competitive factors could cause us to lose potential
sales or to sell our products and services at lower prices or at
reduced margins, including, among others:
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Potential clients or partners may choose to develop
e-commerce
applications in-house, rather than paying for our products or
services.
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Some of our current and potential competitors have greater
financial, marketing and technical resources than we do,
allowing them to leverage a larger installed customer base and
distribution network, adopt more aggressive pricing policies and
offer more attractive sales terms, adapt more quickly to new
technologies and changes in customer requirements, and devote
greater resources to the promotion and sale of their products
and services than we can.
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Our suite of service products competes against various vendor
software tools designed to address a specific element or
elements of the complete set of eService processes, including
e-mail
management, support, knowledge management, and web-based
customer self-service and assisted service.
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Current and potential competitors have established or may
establish cooperative relationships among themselves or with
third parties to enhance their products and expand their
markets. Accordingly, new competitors or alliances among
competitors may emerge and rapidly acquire significant market
share.
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Some of our current and potential competitors, especially our
larger competitors like IBM that offer broad suites of computer
and software applications may offer free or low-cost
e-commerce
applications and functionality bundled with their own computer
and software products. Potential customers may not see the need
to buy our products and services separately when they can use
the bundled applications and functionality in our
competitors product suites for little or no additional
cost.
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If the
market for our OnDemand service offerings does not develop or
develops more slowly than we expect, then our business could be
negatively affected.
Our OnDemand hosted service and subscription offerings are at an
early stage of development, and we may not achieve or sustain
demand for these offerings. Our success in this effort will
depend in part on the price, performance and availability of our
products and services in comparison with competing products and
services and on the willingness of companies to increase their
use of hosting applications. While we will continue to market
and sell traditional licenses for our software solutions, we
believe that the widespread market acceptance of our hosting
software solutions is important to the success of our business
because of the growth acceleration opportunities.
If our
clients experience interruptions, delays or failures in our
hosted services, then we could incur significant costs and lose
revenue opportunities.
Our OnDemand hosted service offering is at an early stage of
development and any equipment failures, mechanical errors,
spikes in usage volume or failure to follow system protocols and
procedures could cause our systems to fail, resulting in
interruptions in our clients service to their customers.
Any such interruptions or delays in our hosting services,
whether as a result of third-party error, our own error, natural
disasters or accidental or willful security breaches, could harm
our relationships with clients and our reputation. This in turn
could reduce our revenue, subject us to liability, cause us to
issue credits or pay penalties or cause our clients to decide
not to renew their hosting agreements, any of which could
adversely affect our business, financial condition and results
of operations.
We
depend heavily on key employees in a competitive labor
market.
Our success depends on our ability to attract, motivate and
retain skilled personnel, especially in the areas of management,
finance, sales, marketing and research and development, and we
compete with other companies for a small pool of highly
qualified employees. Members of our management team, including
executives with significant responsibilities in these areas,
have left us during the past few years for a variety of reasons,
and there may be additional departures in the future. These
historical and potential future changes in personnel may be
disruptive to our operations or affect our ability to maintain
effective internal controls over financial reporting. In
addition, equity incentives such as stock options constitute an
important part of our total compensation program for employees,
and the volatility or lack of positive performance of our stock
price may adversely affect our ability to retain our employees
or hire replacements.
If we
fail to anticipate and address the risks associated with
eStaras business, then our business could be
harmed.
The integration of the business and operations of eStara, Inc.,
which we acquired in October 2006, into our business and
operations is an important process. In order to be successful,
we need to retain key eStara personnel and also understand and
address the risks associated with eStaras business and
products. For example, it is possible that the market for
eStaras Click to Call and Click to Chat products may be
more limited than we anticipated or that eStaras
technology may infringe upon a third partys intellectual
property. If we fail to successfully integrate eStaras
business and operations, retain valuable eStara personnel and
address the risks associated with our acquisition of its
business, then we could fail to realize the anticipated benefits
of the acquisition, and the disruption caused by the acquisition
could hurt our business.
13
We
could incur substantial costs defending against a claim of
infringement or protecting our intellectual property from
infringement.
In recent years, there has been significant litigation in the
United States involving patents and other intellectual property
rights. Companies providing Internet-related products and
services are increasingly bringing and becoming subject to suits
alleging infringement of proprietary rights, particularly patent
rights. We could incur substantial costs in prosecuting or
defending any intellectual property litigation. If we sue to
enforce our rights or are sued by a third party that claims that
our technology infringes its rights, the litigation could be
expensive and could divert our management resources. For
example, we have been involved in litigation alleging that we
have infringed United States patents owned by third parties. We
may be required to incur substantial costs in defending
infringement litigation in the future, which could have a
material adverse effect on our operating results and financial
condition.
In addition, we have agreed to indemnify customers against
claims that our products infringe the intellectual property
rights of third parties. From time to time, our customers have
been subject to third party patent claims and we have agreed to
indemnify these customers to the extent the claims related to
our products. The results of any intellectual property
litigation to which we might become a party may force us to do
one or more of the following:
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cease selling or using products or services that incorporate the
challenged intellectual property;
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obtain a license, which may not be available on reasonable
terms, to sell or use the relevant technology; or
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redesign those products or services to avoid infringement.
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We seek to protect the source code for our proprietary software
under a combination of patent, copyright and trade secrets law.
However, because we make the source code available to some
customers, third parties may be more likely to misappropriate
it. Our policy is to enter into confidentiality agreements with
our employees, consultants, vendors and customers and to control
access to our software, documentation and other proprietary
information. Despite these precautions, it may be possible for
someone to copy our software or other proprietary information
without authorization or to develop similar software
independently.
Despite our efforts to protect our proprietary rights,
unauthorized parties may attempt to copy aspects of our products
or to obtain and use information that we regard as proprietary.
Policing unauthorized use of our products is difficult, and
while we are unable to determine the extent to which piracy of
our software exists, we expect software piracy to be a
persistent problem. Litigation may be necessary in the future to
enforce our intellectual property rights, to protect our trade
secrets, to determine the validity and scope of the proprietary
rights of others or to defend against claims of infringement or
invalidity. However, the laws of many countries do not protect
proprietary rights to as great an extent as the laws of the
United States. Any such resulting litigation could result in
substantial costs and diversion of resources and could have a
material adverse effect on our business, operating results and
financial condition. There can be no assurance that our means of
protecting our proprietary rights will be adequate or that our
competitors will not independently develop similar technology.
If we fail to meaningfully protect our intellectual property,
then our business, operating results and financial condition
could be materially harmed.
Finally, our professional services may involve the development
of custom software applications for specific customers. In some
cases, customers retain ownership or impose restrictions on our
ability to use the technologies developed from these projects.
Issues relating to the ownership of software can be complicated,
and disputes could arise that affect our ability to resell or
reuse applications we develop for customers.
If we
fail to maintain our existing customer base, then our ability to
generate revenues will be harmed.
Historically, we have derived a significant portion of our
revenues from existing customers that purchase our support and
maintenance services and license enhanced versions of our
products. If we are unable to continue to obtain significant
revenues from our existing customer base, then our ability to
grow our business would be harmed, and our competitors could
achieve greater market share. To retain our existing customer
base, we must:
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provide high levels of customer service and product support to
help our clients maximize the benefits that they derive from our
products;
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remain competitive by introducing enhancements and new versions
of our products that provide additional functionality; and
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manage the transition from our older products so as to minimize
the disruption to our clients caused by the migration and
integration with the clients information technology
platform.
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If we
fail to address the challenges associated with our international
operations, then revenues from our products and services may
decline, and the costs of providing our products or services may
increase.
At December 31, 2006, we had offices in the United Kingdom,
France, Northern Ireland, Canada and Singapore. We derived 25%
of our total revenues in the year ended December 31, 2006
and 24% of our total revenues in the year ended
December 31, 2005 from customers outside the United States.
Our operations outside the United States are subject to
additional risks, including:
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changes in regulatory requirements, exchange rates, tariffs and
other barriers;
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longer payment cycles and problems in collecting accounts
receivable in Western Europe and Asia;
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difficulties in managing systems integrators and technology
partners;
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difficulties in staffing and managing foreign subsidiary
operations;
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differing technology standards;
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difficulties and delays in translating products and product
documentation into foreign languages for countries in which
English is not the primary language;
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reduced protection for intellectual property rights in some of
the countries in which we operate or plan to operate;
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difficulties related to entering into legal contracts under
local laws and in foreign languages;
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fluctuations in the exchange rates between foreign and United
States currency;
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potentially adverse tax consequences; and
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political and economic instability.
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If we
fail to comply with the financial covenants in our line of
credit, or if our bank refuses to renew this facility, then our
liquidity could be impaired.
We have a revolving line of credit with Silicon Valley Bank that
allows us to borrow up to $20.0 million. Our bank had
issued letters of credit totaling $5.3 million to several
of our landlords to secure our lease obligations, which letters
of credit are supported by this facility. This line of credit
will expire on January 31, 2008.
If we fail to comply with the financial covenants or default on
any of the provisions of our loan agreement, then the bank may,
among other things, declare all obligations immediately due and
payable, cease to advance money or extend credit for our benefit
and require our outstanding letters of credit to be cash
secured. At December 31, 2006, we were in compliance with
all of the financial covenants in our loan agreement. If in
response to any future default the bank declared our obligations
due, or required us to secure each outstanding letter of credit
on a dollar for dollar basis, then our cash, cash equivalents
and marketable securities balances would decrease substantially,
and our liquidity could be materially impaired.
We may
need additional financing in the future, and any additional
financing may result in restrictions on our operations or
substantial dilution to our stockholders.
We may need to raise additional funds in the future, for
example, to develop new technologies, expand our business,
respond to competitive pressures, acquire complementary
businesses or respond to unanticipated situations. We may try to
raise additional funds through public or private financings,
strategic relationships or other arrangements. Our ability to
obtain debt or equity funding will depend on a number of
factors, including market conditions, our operating performance
and investor interest. Additional funding may not be available
to us
15
on acceptable terms or at all. If adequate funds are not
available, we may be required to reduce expenditures, including
curtailing our growth strategies, foregoing acquisitions or
reducing our product development efforts. If we succeed in
raising additional funds through the issuance of equity or
convertible securities, then the issuance could result in
substantial dilution to existing stockholders. If we raise
additional funds through the issuance of debt securities or
preferred stock, these new securities would have rights,
preferences and privileges senior to those of the holders of our
common stock. The terms of these securities, as well as any
borrowings under our credit agreement, could impose restrictions
on our operations.
If
systems integrators or value added resellers reduce their
support and implementation of our products, then our revenues
may fail to meet expectations and our operating results would
suffer.
Since our potential customers often rely on third-party systems
integrators to develop, deploy and manage websites for
conducting commerce on the Internet, we cultivate relationships
with systems integrators to encourage them to support our
products. We do not, however, generally have written agreements
with our systems integrators, and they are not required to
implement solutions that include our products or to maintain
minimum sales levels of our products. Our revenues would be
reduced if we fail to train a sufficient number of systems
integrators adequately or if systems integrators devote their
efforts to integrating or co-selling products of other
companies. Any such reduction in revenue would not be
accompanied by a significant offset in our expenses. As a
result, our operating results would suffer, and the price of our
common stock would probably fall.
If our
software products contain serious errors or defects, then we may
lose revenues and market acceptance and may incur costs to
defend or settle product liability claims.
Complex software products such as ours often contain errors or
defects, particularly when first introduced or when new versions
or enhancements are released. Despite internal testing and
testing by our customers, our current and future products may
contain serious defects, which could result in lost revenues or
a delay in market acceptance.
Since our customers use our products for critical business
applications such as
e-commerce,
errors, defects or other performance problems could result in
damage to our customers. They could seek significant
compensation from us for the losses they suffer. Although our
license agreements typically contain provisions designed to
limit our exposure to product liability claims, existing or
future laws or unfavorable judicial decisions could negate these
limitations. Even if not successful, a product liability claim
brought against us would likely be time consuming and costly and
could seriously damage our reputation in the marketplace, making
it harder for us to sell our products.
If the
Sun®
Javatm
programming language loses market acceptance or if we are
not able to continue using Java technologies, then our business
could be harmed.
We write our software in the Java computer programming language
developed by Sun Microsystems, and we incorporate Suns
Java 2 Platform, Enterprise Edition, or J2EE, and other Java
technologies into our products under licenses granted to us by
Sun. If Sun were to decline to continue to allow us to use these
technologies for any reason, we would be required to either
license the equivalent technology from another source, create
equivalent technology ourselves, or rewrite portions of our
software to accommodate the change.
While a number of companies have introduced web applications
based on Java technology, this technology could fall out of
favor, and support by Sun Microsystems or other companies could
decline. Moreover, our new Version 7 ATG Adaptive Scenario
Engine is designed to support J2EE standards for developing
modular Java programs that can be accessed over a network. We
have licensed the J2EE brand and certification tests from Sun.
There can be no assurance that these standards will be widely
adopted, that we can continue to support J2EE standards
established by Sun from time to time or that the J2EE brand will
continue to be made available to us on commercially reasonable
terms. If Java or J2EE support decreased or we could not
continue to use Java or related Java technologies or to support
J2EE, we might have to rewrite the source code for our entire
product line to enable our products to run on other computer
platforms. Also, changes to Java or J2EE standards or the loss
of our license to the J2EE brand could require us to change our
products and adversely affect the perception of our products by
our customers. If we were unable to develop or implement
appropriate modifications to our products on a timely basis, we
could lose revenue opportunities and our business could be
harmed.
16
Government
or industry regulations could directly restrict our business or
indirectly affect our business by limiting the growth of
e-commerce.
As
e-commerce
evolves, federal, state and foreign agencies have adopted and
could in the future adopt regulations covering issues such as
user privacy, content and taxation of products and services.
Government regulations could limit the market for our products
and services or impose burdensome requirements that render our
business unprofitable. Although many regulations might not apply
to our business directly, we expect that laws regulating the
solicitation, collection or processing of personal and consumer
information could indirectly affect our business. The
Telecommunications Act of 1996 prohibits certain types of
information and content from being transmitted over the
Internet. The prohibitions scope and the liability
associated with a violation are currently unsettled. In
addition, although substantial portions of the Communications
Decency Act were held to be unconstitutional, we cannot be
certain that similar legislation will not be enacted and upheld
in the future. It is possible that legislation could expose
companies involved in
e-commerce
to liability, which could limit the growth of
e-commerce
generally. Legislation like the Telecommunications Act and the
Communications Decency Act could dampen the growth in web usage
and decrease its acceptance as a medium of communications and
commerce.
The
Internet is generating privacy concerns that could result in
legislation or market perceptions that could result in reduced
sales of our products and harm our business.
Businesses use our ATG Adaptive Scenario Engine product to
develop and maintain profiles to tailor the content to be
provided to website visitors. When a visitor first arrives at a
website, our software creates a profile for that visitor. If the
visitor registers or logs in, the visitors identity is
added to the profile, preserving any profile information that
was gathered up to that point. ATG Adaptive Scenario Engine
product tracks both explicit user profile data supplied by the
user as well as implicit profile attributes derived from the
users behavior on the website. Privacy concerns may cause
visitors to resist providing the personal data or to avoid
websites that track the web behavioral information necessary to
support our profiling capability. More importantly, even the
perception of security and privacy concerns, whether or not
valid, may indirectly inhibit market acceptance of our products.
In addition, legislative or regulatory requirements may heighten
these concerns if businesses must notify website users that the
data captured after visiting websites may be used to direct
product promotion and advertising to that user. Other countries
and political entities, such as the European Economic Community,
have adopted such legislation or regulatory requirements, and
the United States may follow suit. Privacy legislation and
consumer privacy concerns could make it harder for us to sell
our products and services, resulting in reduced revenues.
Our products use cookies to track demographic
information and user preferences. A cookie is
information keyed to a specific user that is stored on a
computers hard drive, typically without the users
knowledge. The user can generally remove the cookies, although
removal could affect the content available on a particular site.
Germany has imposed laws limiting the use of cookies, and a
number of Internet commentators and governmental bodies in the
United States and other countries have urged passage of laws
limiting or abolishing the use of cookies. If such laws are
passed or if users begin to delete or refuse cookies as a common
practice, then demand for our personalization products could be
reduced.
If
NASDAQ were to delist our common stock from The NASDAQ Global
Market, then the value of your investment could be reduced, and
your shares could be more difficult to sell.
For our common stock to trade on The NASDAQ Global Market
(formerly known as The NASDAQ National Market), we must continue
to meet the listing standards of that market. Among other
things, those standards require that our common stock maintain a
minimum closing bid price of at least $1.00 per share. As
recently as October 2005, our common stock has traded at prices
near or below $1.00. If we do not continue to meet NASDAQs
applicable minimum listing standards, NASDAQ could delist us
from The NASDAQ Global Market, which could, among other things:
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hinder your ability to sell, or obtain an accurate quotation for
the price of your shares of our common stock;
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hurt our reputation among our investors and prospects, which
could lead to further declines in the market price of our common
stock;
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17
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make it more difficult and expensive for us to raise
capital; and
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subject us to a Securities and Exchange Commission rule that
could adversely affect the ability of broker-dealers to sell or
make a market in our common stock, thus hindering your ability
to sell your shares.
|
Anti-takeover
provisions in our charter documents and Delaware law could
prevent or delay a change in control of our
company.
Certain provisions of our charter and by-laws may discourage,
delay or prevent a merger or acquisition that some of our
stockholders may consider favorable, which could reduce the
market price of our common stock. These provisions include:
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authorizing the issuance of blank check preferred
stock;
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providing for a classified board of directors with staggered,
three-year terms;
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providing that directors may only be removed for cause by a
two-thirds vote of stockholders;
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limiting the persons who may call special meetings of
stockholders and prohibiting stockholder action by written
consent;
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establishing advance notice requirements for nominations for
election to the board of directors or for proposing matters that
can be acted on by stockholders at stockholder meetings; and
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authorizing anti-takeover provisions.
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In addition, we adopted a shareholder rights plan in 2001, and
Delaware law may further discourage, delay or prevent someone
from acquiring or merging with us.
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Item 1B.
|
Unresolved
Staff Comments
|
Not applicable.
Our headquarters are located in 45,000 square feet of
leased office space in Cambridge, Massachusetts. In addition, we
have major United States facilities in Seattle, Washington
(approximately 19,000 square feet); Chicago, Illinois
(approximately 12,000 square feet); San Francisco,
California (approximately 5,000 square feet); and
Washington, D.C. (approximately 7,000 square feet).
Our European headquarters are located in Apex Plaza, Reading,
United Kingdom where we lease approximately 8,000 square.
We also maintain offices in Northern Ireland, Canada, France and
Singapore. All of our facilities are leased. We believe our
facilities are sufficient to meet our needs for the foreseeable
future and, if needed, additional space will be available at a
reasonable cost.
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Item 3.
|
Legal
Proceedings
|
As previously disclosed, in 2001, we were named as defendants in
seven purported class action suits that were consolidated into
one action in the United States District Court for the District
of Massachusetts under the caption In re Art Technology
Group, Inc. Securities Litigation. The action alleges that
we, and certain of our former officers, violated
Sections 10(b) and 20(a) of the Securities Exchange Act of
1934 and SEC
Rule 10b-5
promulgated there under. In October 2006, the court ruled in our
favor and dismissed the case on summary judgment. The plaintiffs
have appealed the decision. Management believes that none of the
claims that plaintiffs have asserted has merit, and we intend to
continue to defend the action vigorously. While we cannot
predict with certainty the outcome of the litigation, we do not
expect any material adverse impact to our business, or the
results of our operations, from this matter.
As previously disclosed, in December 2001, a purported class
action complaint was filed against our wholly owned subsidiary
Primus Knowledge Solutions, Inc., two former officers of Primus
and the underwriters of Primus 1999 initial public
offering. The complaints are similar and allege violations of
the Securities Act of 1933, as amended, and the Securities
Exchange Act of 1934 primarily based on the allegation that the
underwriters
18
received undisclosed compensation in connection with
Primus initial public offering. The litigation has been
consolidated in the United States District Court for the
Southern District of New York (SDNY) with claims
against approximately 300 other companies that had initial
public offerings during the same general time period. On
February 15, 2005, the court issued an opinion and order
granting preliminary approval of the settlement, subject to
certain non-material modifications. The court held a settlement
fairness meeting on April 24, 2006 following which it took
under advisement the motion for final approval of the
settlement. In December 2006, the Court of Appeals for the
Second Circuit ruled that the certification of this proceeding
as a class action was invalid and remanded the case to the SDNY.
The class plaintiffs have requested the Second Circuit to
reconsider. If the settlement is not approved, we believe we
have meritorious defenses and intend to defend the case
vigorously. While we cannot predict the outcome of the
litigation or appeal, we do not expect any material adverse
impact to our business, or the results of our operations, from
this matter.
We are also subject to various other claims and legal actions
arising in the ordinary course of business. In the opinion of
management, the ultimate disposition of these matters is not
expected to have a material effect on our business, financial
condition or results of operations.
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Item 4.
|
Submission
of Matters to a Vote of Security Holders
|
Not applicable.
19
PART II
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Item 5.
|
Market
for the Registrants Common Equity, Related Stockholder
Matters and Issuer Purchases of Equity Securities
|
Our common stock trades on The NASDAQ Global Market (formerly
known as The NASDAQ National Market) under the symbol
ARTG. The following table sets forth the high and
low reported sales prices of our common stock for the periods
indicated as reported by The NASDAQ Global Market.
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High
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Low
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Fiscal 2005
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First quarter
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$
|
1.40
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|
$
|
1.05
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|
Second quarter
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|
1.22
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|
|
|
0.95
|
|
Third quarter
|
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|
1.21
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|
|
|
1.00
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Fourth quarter
|
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|
2.13
|
|
|
|
0.92
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|
Fiscal 2006
|
|
|
|
|
|
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|
|
First quarter
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|
$
|
3.49
|
|
|
$
|
1.83
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|
Second quarter
|
|
|
3.81
|
|
|
|
2.12
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|
Third quarter
|
|
|
3.10
|
|
|
|
2.32
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|
Fourth quarter
|
|
|
2.66
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|
|
|
1.91
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On March 12, 2007 the last reported sale price on The
NASDAQ Global Market for our common stock was $2.17 per
share. On March 8, 2007, there were approximately 643
holders of record of our common stock. This number does not
include stockholders for whom our shares were held in a
nominee or street name.
We have never paid or declared any cash dividends on shares of
our common stock or other securities and do not anticipate
paying any cash dividends in the foreseeable future. We
currently intend to retain all future earnings, if any, for use
in the operation of our business. We did not repurchase any
equity securities in 2006.
On October 2, 2006, we acquired eStara, Inc. pursuant to an
agreement and plan of merger among us, eStara, our wholly-owned
subsidiaries Arlington Acquisition Corp. and Storrow Acquisition
Corp., certain stockholders of eStara and the stockholder
representative named therein, dated September 18, 2006, as
amended on October 2, 2006. We acquired eStara for
consideration consisting of (1) 14,915,567 shares,
including restricted shares, of our common stock issued to
eStaras stockholders that are considered accredited
investors under the SEC rules promulgated under the
Securities Act of 1933 and (2) approximately
$3.8 million in cash paid to all of eStaras
stockholders, both accredited and unaccredited. We issued the
shares of our common stock in a private placement pursuant to
Regulation D under the Securities Act of 1933.
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Item 6.
|
Selected
Consolidated Financial Data
|
The following selected consolidated financial data should be
read in conjunction with our consolidated financial statements
and related notes and with Managements Discussion
and Analysis of Financial Condition and Results of
Operations and other financial data included elsewhere in
this Annual Report on
Form 10-K.
The consolidated statement of operations data and balance sheet
data for all periods presented is derived from audited
consolidated financial statements included elsewhere in this
Annual Report on
Form 10-K
or in Annual Reports on
Form 10-K
for prior years on file with the Securities and Exchange
Commission.
In 2004, we acquired Primus, which was accounted for under the
purchase method of accounting, for a purchase price of $31.7
million, comprised primarily of our common stock. We allocated
$35.7 million of the cost of this acquisition to goodwill and
intangible assets. Income from continuing operations for the
year ended December 31, 2004 includes $1.0 million for the
amortization of other intangible assets related to this
acquisition.
On January 1, 2006, we adopted, on a modified prospective
basis, the provisions of SFAS No. 123(R), which
requires us to record stock-based compensation expense for
employee stock awards at fair value at the time of grant. As a
result, our stock-based compensation expense increased in 2006
by $3.6 million.
20
In 2006, we acquired eStara for a purchase price of $49.8
million, comprised primarily of our common stock. This
acquisition was accounted for under the purchase method of
accounting. We allocated $46.1 million of the cost of this
acquisition to goodwill and intangible assets. Net income from
continuing operations for the year ended December 31, 2006
includes $791,000 for the amortization of intangible assets to
this acquisition.
During 2006, we determined that certain foreign
subsidiaries operations had substantially ceased and were
effectively liquidated in 2002 and 2003. In accordance with
SFAS 52, companies are required to eliminate the cumulative
translation adjustment related to entities that have either been
sold or substantially liquidated. As a result, we are restating
our 2002 and 2003 financial statements to reflect the write-off
of the cumulative translation adjustment related to
substantially liquidated entities. We are recording adjustments
of $442,000 in 2002 and $1,345,000 in 2003 to eliminate the
cumulative translation adjustment related to these substantially
liquidated entities and are recording corresponding increases in
our accumulated deficit as of December 31, 2002 and 2003.
The write-off of the cumulative translation adjustment is
recorded as a charge to the interest and other income, net line
item in the Statement of Operations.
In connection with recording the adjustments to write-off the
cumulative translation adjustment for liquidated foreign
subsidiaries in 2002 and 2003, we are also recording historical
identified errors. In 2002 and 2003, we should have recorded
certain amounts as deferred revenue to properly recognize
support and maintenance revenue ratably as the service was
provided and for future discounts provided to customers. In
addition, we had an unsupported revenue reserve. We recorded net
revenue adjustments to decrease revenue by $608,000 and $386,000
in 2002 and 2003, respectively. Regarding expenses, we had
over-accrued for certain sales and marketing, general and
administrative and restructuring expenses. The net impact to
recording these errors was a decrease to operating expenses of
$584,000 in 2002 and an increase to operating expenses of
$83,000 in 2003. The errors to revenue and operating expenses
were deemed to not be material individually, or in aggregate, in
2002 and 2003. The net impact of the restatement is to increase
our net loss and net loss per basic and diluted share for 2002
from $29.5 million to $30.0 million, and from $0.42
per share to $0.43 per share, respectively, and to decrease our
net income and net income per basic and diluted share for 2003
from $4.2 million to $2.4 million, and from $0.06 per
share to $0.03 per share, respectively.
The correction of these errors had no impact to our results of
operations for 2004, 2005 or 2006. We have recorded an
adjustment of $1,787,000 to the beginning balances at
January 1, 2004 to increase accumulated deficit and
decrease cumulative translation adjustment, which is the only
component of accumulated other comprehensive loss. There was no
net impact to stockholders equity.
21
Consolidated
Statements of Operations Data:
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Year Ended December 31,
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2006
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|
|
2005
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2004
|
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2003(1)
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2002(1)
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(As restated)
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|
(As restated)
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(In thousands, except per share data)
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Revenues:
|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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Product licenses
|
|
$
|
32,784
|
|
|
$
|
29,821
|
|
|
$
|
23,345
|
|
|
$
|
26,793
|
|
|
$
|
48,932
|
|
Services
|
|
|
70,448
|
|
|
|
60,825
|
|
|
|
45,874
|
|
|
|
45,313
|
|
|
|
51,953
|
|
|
|
|
|
|
|
|
|
|
|
|
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|
|
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|
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|
|
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Total revenues
|
|
|
103,232
|
|
|
|
90,646
|
|
|
|
69,219
|
|
|
|
72,106
|
|
|
|
100,885
|
|
Cost of revenues:
|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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Product licenses
|
|
|
1,751
|
|
|
|
1,816
|
|
|
|
2,206
|
|
|
|
2,118
|
|
|
|
4,278
|
|
Services
|
|
|
30,799
|
|
|
|
23,255
|
|
|
|
19,879
|
|
|
|
19,730
|
|
|
|
33,745
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total cost of revenues
|
|
|
32,550
|
|
|
|
25,071
|
|
|
|
22,085
|
|
|
|
21,848
|
|
|
|
38,023
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit
|
|
|
70,682
|
|
|
|
65,575
|
|
|
|
47,134
|
|
|
|
50,258
|
|
|
|
62,862
|
|
Operating expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Research and development
|
|
|
20,434
|
|
|
|
17,843
|
|
|
|
16,209
|
|
|
|
17,928
|
|
|
|
22,046
|
|
Sales and marketing
|
|
|
31,992
|
|
|
|
30,034
|
|
|
|
29,602
|
|
|
|
31,400
|
|
|
|
42,800
|
|
General and administrative
|
|
|
12,952
|
|
|
|
11,231
|
|
|
|
7,742
|
|
|
|
9,265
|
|
|
|
10,955
|
|
Restructuring charge (benefit)
|
|
|
(62
|
)
|
|
|
885
|
|
|
|
3,570
|
|
|
|
(10,346
|
)
|
|
|
18,875
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total operating expenses
|
|
|
65,316
|
|
|
|
59,993
|
|
|
|
57,123
|
|
|
|
48,247
|
|
|
|
94,676
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) from operations
|
|
|
5,366
|
|
|
|
5,582
|
|
|
|
(9,989
|
)
|
|
|
2,011
|
|
|
|
(31,814
|
)
|
Interest and other income, net
|
|
|
1,712
|
|
|
|
219
|
|
|
|
395
|
|
|
|
176
|
|
|
|
1,858
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) before provision
(benefit) for income taxes
|
|
|
7,078
|
|
|
|
5,801
|
|
|
|
(9,594
|
)
|
|
|
2,187
|
|
|
|
(29,956
|
)
|
Provision (benefit) for income
taxes
|
|
|
(2,617
|
)
|
|
|
32
|
|
|
|
(50
|
)
|
|
|
(255
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss)
|
|
$
|
9,695
|
|
|
$
|
5,769
|
|
|
$
|
(9,544
|
)
|
|
$
|
2,442
|
|
|
$
|
(29,956
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic net income (loss) per share
|
|
$
|
0.08
|
|
|
$
|
0.05
|
|
|
$
|
(0.12
|
)
|
|
$
|
0.03
|
|
|
$
|
(0.43
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Diluted net income (loss) per share
|
|
$
|
0.08
|
|
|
$
|
0.05
|
|
|
$
|
(0.12
|
)
|
|
$
|
0.03
|
|
|
$
|
(0.43
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic weighted average common
shares outstanding
|
|
|
115,280
|
|
|
|
109,446
|
|
|
|
79,252
|
|
|
|
71,798
|
|
|
|
69,921
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Diluted weighted average common
shares outstanding
|
|
|
120,096
|
|
|
|
111,345
|
|
|
|
79,252
|
|
|
|
73,678
|
|
|
|
69,921
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Consolidated
Balance Sheet Data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
December 31,
|
|
|
|
2006
|
|
|
2005
|
|
|
2004
|
|
|
2003(1)
|
|
|
2002(1)
|
|
|
|
|
|
|
|
|
|
|
|
|
(As restated)
|
|
|
(As restated)
|
|
|
|
(In thousands)
|
|
|
Cash, cash equivalents and
short-term marketable securities
|
|
$
|
31,223
|
|
|
$
|
33,569
|
|
|
$
|
26,507
|
|
|
$
|
41,584
|
|
|
$
|
68,558
|
|
Long-term marketable securities
|
|
|
|
|
|
|
|
|
|
|
4,001
|
|
|
|
|
|
|
|
|
|
Total assets
|
|
|
149,981
|
|
|
|
92,765
|
|
|
|
97,803
|
|
|
|
67,360
|
|
|
|
104,835
|
|
Long-term obligations, less
current maturities
|
|
|
|
|
|
|
63
|
|
|
|
112
|
|
|
|
|
|
|
|
|
|
Total stockholders equity
|
|
$
|
105,074
|
|
|
$
|
50,160
|
|
|
$
|
42,185
|
|
|
$
|
20,937
|
|
|
$
|
15,999
|
|
|
|
|
(1) |
|
Refer to Note 2 to our consolidated financial statements in
Item 8 of this annual report on Form 10-K for
additional discussion of the restatement in 2002 and 2003. |
22
|
|
Item 7.
|
Managements
Discussion and Analysis of Financial Condition and Results of
Operations
|
Overview
We develop and market a comprehensive suite of
e-commerce
software products, as well as provide related services including
support and maintenance, education, application hosting,
professional services and proactive conversion solutions for
enhancing online sales and support. We primarily derive revenue
from the sale of software products and related services. Our
software licenses are priced based on the size of the customer
implementation. Services revenue is derived from fees for
professional services, training, support and maintenance,
application hosting and proactive conversion solutions.
Professional services include implementation, custom application
development and project and technical consulting. We bill
professional service fees primarily on a time and materials
basis. Support and maintenance arrangements are priced based on
the level of support services provided as a percent of net
license fees on a per annum basis. Under support and maintenance
services, customers are generally entitled to receive software
updates, maintenance releases and technical support. Training is
billed as services are provided. Revenue from application
hosting services is recognized monthly as the services are
provided based on a per transaction, per CPU or percent of
revenue basis. Proactive conversion solutions, recently offered
as a result of the eStara acquisition, are priced on a per
transaction basis and recognized monthly as the services are
provided.
This Managements Discussion and Analysis of Financial
Condition and Results of Operations should be read in
conjunction with our consolidated financial statements and notes
thereto which appear elsewhere in this Annual Report on
Form 10-K.
See Risk Factors elsewhere in this Annual Report on
Form 10-K
for a discussion of certain risks associated with our business.
The following discussion contains forward-looking statements.
The forward-looking statements do not include the potential
impact of any mergers, acquisitions, or divestitures of business
combinations that may be announced after the date hereof.
Recent
Events
On October 2, 2006, we acquired all of the outstanding
shares of common stock and common stock equivalents of eStara,
Inc., a provider of proactive conversion solutions for enhancing
online sales and support initiatives, in exchange for
approximately 14.6 million shares of ATG common stock
valued at $39.2 million and approximately $8.4 million
in cash, excluding transaction costs. We also issued
0.3 million shares of restricted stock, which will be
recognized as stock-based compensation expense over the vesting
term. The revenues and expenses generated from acquisition date,
October 2, 2006 to December 31, 2006 were not
significant to our fiscal 2006 financial results reported in our
consolidated statement of operations included elsewhere in this
Annual Report on
Form 10-K.
On January 1, 2006, we adopted SFAS 123R using the
modified prospective method as permitted under SFAS 123R.
Under this transition method, compensation cost recognized in
fiscal 2006 includes: (a) compensation cost for all
share-based payments granted prior to but not yet vested as of
December 31, 2005, based on the grant-date fair value
estimated in accordance with the provisions of SFAS 123,
and (b) compensation cost for all share-based payments
granted subsequent to January 1, 2006, based on the
grant-date fair value estimated in accordance with the
provisions of SFAS 123R. In accordance with the modified
prospective method of adoption, our results of operations and
financial position for prior periods have not been restated. For
the year ended December 31, 2006, our stock-based
compensation expense was $3.8 million, as compared to a de
minimis expense for years ended December 31, 2005 and 2004.
Critical
Accounting Policies and Estimates
This Managements Discussion and Analysis of financial
condition and results of operations discusses our consolidated
financial statements, which have been prepared in accordance
with accounting principles generally accepted in the United
States.
The preparation of these financial statements requires
management to make estimates and assumptions that affect the
reported amounts of assets and liabilities and the disclosure of
contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses
during the reporting period. On an ongoing basis, management
evaluates its estimates and judgments, including those related
to revenue recognition, the allowance for doubtful accounts,
research and development costs, restructuring expenses, the
impairment of
23
long-lived assets, income taxes and assumptions for stock-based
compensation. Management bases its estimates and judgments on
historical experience, known trends or events and various other
factors that are believed to be reasonable under the
circumstances, the results of which form the basis for making
judgments about the carrying values of assets and liabilities
that are not readily apparent from other sources. Actual results
may differ from these estimates under different assumptions or
conditions.
Definitions
We define our critical accounting policies as those
accounting principles generally accepted in the United States
that require us to make subjective estimates about matters that
are uncertain and are likely to have a material impact on our
financial condition and results of operations as well as the
specific manner in which we apply those principles. Our
estimates are based upon assumptions and judgments about matters
that are highly uncertain at the time the accounting estimate is
made and applied and require us to assess a range of potential
outcomes.
We believe the following critical accounting policies to be both
those most important to the portrayal of our financial condition
and those that require the most subjective judgment.
Revenue
Recognition
We recognize service and hosting revenue not related to software
arrangements in accordance with the Securities and Exchange
Commissions Staff Accounting
Bulletin No. 104, Revenue Recognition,
and the Financial Accounting Standards Board, or FASB, Emerging
Issues Task Force Issue
No. 00-21,
Revenue Arrangements with Multiple Deliverables. Revenue
is recognized only when the price is fixed or determinable,
persuasive evidence of an arrangement exists, the service is
performed and collectibility of the resulting receivable is
reasonably assured. In addition, the delivered element must have
stand-alone value and we must have specific objective evidence
of the fair value of the undelivered elements.
At the inception of a customer contract for service, we make a
judgment of the customers ability to pay for the services
provided. We base our estimate on a combination of factors,
including the successful completion of a credit check or
financial review, our payment history with the customer and
other forms of payment assurance. Upon the completion of these
steps, we recognize revenue monthly in accordance with our
revenue recognition policy.
We also license software under perpetual license agreements. We
apply the provisions of Statement of Position, or SOP,
97-2,
Software Revenue Recognition, as amended by
SOP 98-9,
Modifications of
SOP 97-2,
Software Revenue Recognition, With Respect to Certain
Transactions. In accordance with
SOP 97-2
and
SOP 98-9,
revenues from software product license agreements are recognized
upon execution of a license agreement and delivery of the
software, provided that the fee is fixed or determinable and
deemed collectible by management. If conditions for acceptance
are required subsequent to delivery, revenues are recognized
upon customer acceptance if such acceptance is not deemed to be
perfunctory.
As prescribed by this accounting guidance, we apply the residual
method of accounting. The residual method requires that the
portion of the total arrangement fee attributable to undelivered
elements, as indicated by vendor specific objective evidence of
fair value, is deferred and subsequently recognized when
delivered. The difference between the total arrangement fee and
the amount deferred for the undelivered elements is recognized
as revenue related to the delivered elements, if all other
revenue recognition criteria of
SOP 97-2
are met. Consulting revenues from these arrangements are
generally accounted for separately from software licenses
because the arrangements qualify as service transactions as
defined in
SOP 97-2.
The more significant factors considered in determining whether
the revenue should be accounted for separately include the
nature of services (i.e., consideration of whether the services
are essential to the functionality of the licensed product),
degree of risk, availability of services from other vendors,
timing of payments and impact of milestones or acceptance
criteria on the realizability of the software license fee.
Revenues from software maintenance are recognized ratably over
the term of the maintenance, which is typically one year.
We derive revenues from the sale of application hosting and
proactive conversion solutions by providing services to
customers who have executed contracts with terms of one year or
longer. These contracts generally commit the customer to a
minimum monthly level of usage and provide the rate at which the
customer must pay for actual usage above the monthly minimum.
For these services, we recognize the monthly minimum as revenue
each
24
month provided that an enforceable contract has been signed by
both parties, the service has been delivered to the customer,
the fee for the service is fixed or determinable and collection
is reasonably assured. Should a customers usage of these
services exceed the monthly minimum, we recognize revenue for
such excess usage in the period of the usage. We typically
charge the customer an installation fee when the services are
first activated. The installation fees are recorded as deferred
revenue and recognized as revenue ratably over the estimated
life of the customer arrangement.
When software products are licensed perpetually in conjunction
with application hosting and or proactive conversion solutions,
we allocate revenue between the elements based on each
elements relative fair value, provided that each element
meets the criteria as a separate element under SOP 97-2. An
item is considered a separate element if we have vendor-specific
objective evidence of fair value of the element. Fair value is
generally determined based upon the price charged when the
element is sold separately. If the fair value of each element
cannot be objectively determined, the total value of the
arrangement is recognized ratably over the entire service period
to the extent that all services were provided at the outset of
the period. For most multiple element arrangements where
software products are sold in conjunction with application
hosting and or proactive conversion solutions, the fair value of
each element has not been objectively determinable. Therefore,
all revenue under these types of arrangements is recognized
ratably over the related estimated service period to the extent
that all services have begun to be provided at the outset of the
period.
Revenues from professional service arrangements are recognized
as the services are performed, provided that amounts due from
customers are fixed or determinable and deemed collectible by
management. We charge for professional services primarily on a
time-and-material
basis. Amounts collected prior to satisfying the above revenue
recognition criteria are reflected as deferred revenue. Deferred
revenue primarily consists of advance payments related to
support and maintenance, hosting and service agreements.
We also sell our services through a reseller channel. Assuming
all other revenue recognition criteria are met, we recognize
revenue from reseller arrangements based on the resellers
contracted commitment. We do not grant our resellers the right
of return or price protection.
Accounts
Receivable and Bad Debts
We maintain allowances for doubtful accounts for estimated
losses resulting from the inability of our customers to make
required payments. We continuously monitor collections and
payments from our customers and determine the allowance for
doubtful accounts based upon historical experience and specific
customer collection issues. If the financial condition of our
customers were to deteriorate, resulting in an impairment of
their ability to make payments, additional allowances would be
required.
Research
and Development Costs
We account for research and development costs in accordance with
SFAS No. 2, Accounting for Research and Development
Costs, and SFAS No. 86, Accounting for the
Costs of Computer Software to be Sold, Leased, or Otherwise
Marketed, which specifies that costs incurred internally to
develop computer software products should be charged to expense
as incurred until technological feasibility is reached for the
product. Once technological feasibility is reached, all software
costs should be capitalized until the product is made available
for general release to customers. Judgment is required in
determining when technological feasibility is established. We
believe that the time period from reaching technological
feasibility until the time of general product release is very
short. Costs incurred after technological feasibility is reached
are not material, and accordingly, all such costs are charged to
research and development expense as incurred.
Restructuring
Expenses
During the years ended 2006, 2005 and 2004, we recorded net
restructuring charges/(benefits) of ($0.1) million,
$0.9 million and $3.6 million, respectively,
pertaining to the closure and consolidation of excess
facilities, impairment of assets as discussed below, employee
severance benefits and settlement of certain contractual
obligations. These charges and benefits were recorded in
accordance with SFAS No. 146, Accounting for Costs
Associated with Exit or Disposal Activities,
SFAS No. 88, Employers Accounting for
Settlements and Curtailments
25
of Defined Benefit Pension Plans and for Termination Benefits
and SAB No. 100 (SAB 100), Restructuring
and Impairment Charges. The 2002 and 2001 charges were
recorded in accordance with EITF, Issue
No. 94-3,
Liability Recognition for Certain Employee Termination
Benefits and Other Costs to Exit an Activity (including Certain
Costs Incurred in a Restructuring), SFAS 88, and
SAB 100. In determining the charges to record, we made
certain estimates and judgments surrounding the amounts
ultimately to be paid for the actions we have taken. At
December 31, 2006, there were several accruals recorded for
lease obligations, which may be adjusted periodically for either
resolution of certain contractual commitments or changes in
estimates of sublease income or the period of time the
facilities will be vacant and subleased. Although we do not
anticipate additional significant changes to our restructuring
accruals, the actual costs may differ from those recorded in the
event that the subleasing assumptions require adjustment. Such
changes in estimates have had a material impact on our operating
results in the past and could have a material impact on our
operating results in the future.
To estimate the costs related to our restructuring efforts,
management made its best estimates of the most likely expected
outcomes of the significant actions to accomplish the
restructuring. These estimates principally related to costs
attributable to excess leased facilities and included estimates
of future sublease income, future net operating expenses of the
facilities, brokerage commissions and other expenses. The most
significant of these estimates related to the timing and extent
of future sublease income that would reduce our lease
obligations.
Included in our accrued restructuring balance at
December 31, 2006 was estimated sublease income of
$2.4 million. We based our estimate of sublease income on
the status of current negotiations with a potential subtenant
and current market conditions and rental rates for this
location. Actual results may vary significantly from this
estimate, depending in part on our ability to obtain approval of
the sublease from the landlord. We review the status of our
restructuring activities on a quarterly basis and, if
appropriate, record adjustments to our restructuring obligations
in our financial statements for such quarter based on
managements current best estimates.
Impairment
or Disposal of Long Lived Assets, including Intangible
Assets
We review our long-lived assets, including intangible assets
subject to amortization, whenever events or changes in
circumstances indicate that the carrying amount of such an asset
may not be recoverable. Recoverability of these assets is
measured by comparison of their carrying amount to the future
undiscounted cash flows the assets are expected to generate. If
such assets are considered impaired, the impairment to be
recognized is equal to the amount by which the carrying value of
the assets exceeds their fair market value determined by either
a quoted market price, if any, or a value determined by
utilizing a discounted cash flow technique. In assessing
recoverability, we must make assumptions regarding estimated
future cash flows and discount factors. If these estimates or
related assumptions change in the future, we may be required to
record impairment charges. Intangible assets with determinable
lives are amortized over their estimated useful lives, based
upon the pattern in which the expected benefits will be
realized, or on a straight-line basis, whichever is greater.
Goodwill
Goodwill represents the excess of the purchase price in a
business combination over the fair value of net tangible and
intangible assets acquired in a business combination. In
accordance with SFAS No. 142, Goodwill and Other
Intangible Assets, we evaluate goodwill for impairment
annually, as well as whenever events or changes in circumstances
suggest that the carrying amount may not be recoverable from
estimated discounted future cash flows. Because we have one
reporting segment under SFAS 142, we utilize the
entity-wide approach for assessing goodwill for impairment and
compare our market value to our net book value to determine if
impairment exists. No impairment of goodwill resulted from our
evaluation of goodwill in any of the fiscal years presented.
Accounting
for Income Taxes
We account for income taxes in accordance with
SFAS No. 109, Accounting for Income Taxes,
which requires that deferred tax assets and liabilities be
recognized using enacted tax rates for the effect of temporary
differences between the book and tax bases of recorded assets
and liabilities. SFAS 109 also requires that deferred tax
assets be reduced by a valuation allowance if it is more likely
than not that some portion or all of the deferred tax assets
will not be realized. We evaluate the realizability of our
deferred tax assets quarterly and adjust the amount of such
26
allowance, if necessary. At December 31, 2006 and 2005, we
have provided a full valuation allowance against our net
deferred tax assets due to the uncertainty surrounding the
realizability of these assets. The valuation allowance decreased
$1.6 million to $117.8 million in 2006 from
$119.4 million in 2005. The primary reason for the decrease
in the valuation allowance is due to a decrease of
$7.1 million utilized to offset current book income and an
increase of $5.5 million related to tax credits and other
temporary differences.
In addition, we have provided for potential amounts due in
various foreign tax jurisdictions. Judgment is required in
determining our worldwide income tax expense provision. In the
ordinary course of global business, there are many transactions
and calculations where the ultimate tax outcome is uncertain.
Some of these uncertainties arise as a consequence of cost
reimbursement arrangements among related entities. Although we
believe our estimates are reasonable, no assurance can be given
that the final tax outcome of these matters will not be
different from that which is reflected in our historical income
tax provisions and accruals. Such differences could have a
material impact on our income tax provision and operating
results in the period in which such determination is made.
During 2006 and 2004, we reversed previously accrued taxes of
$2.6 million and $158,000, respectively, for foreign
locations due to the closure of the tax years under audit or the
expiration of the statute of limitations in certain foreign
jurisdictions.
Stock-Based
Compensation Expense
Since January 1, 2006, we have accounted for stock-based
compensation in accordance with SFAS No. 123(R).
Historically, we recognized stock-based compensation costs
pursuant to Accounting Principles Bulletin No. 25,
Accounting for Stock Issued to Employees, and elected to
disclose the impact of expensing stock options pursuant to
SFAS No. 123, Share-Based Payment, in the notes
to our financial statements. See Note 6 to the Financial
Statements included elsewhere in this Annual Report on
Form 10-K.
Under the fair value recognition provisions of
SFAS No. 123(R), stock-based compensation cost is
measured at the grant date based on the value of the award and
is recognized as expense over the vesting period. We have
selected the Black-Scholes option pricing model to determine
fair value of stock option awards. Determining the fair value of
stock-based awards at the grant date requires judgment,
including estimating the expected life of the stock awards and
the volatility of the underlying common stock. Our assumptions
may differ from those used in prior periods because of
adjustments to the calculation of such assumptions based upon
the guidance of SFAS No. 123(R) and
SAB No. 107, Share-Based Payment. Changes to
the assumptions may have a significant impact on the fair value
of stock options, which could have a material impact on our
financial statements. In addition, judgment is also required in
estimating the amount of stock-based awards that are expected to
be forfeited. Should our actual forfeiture rates differ
significantly from our estimates, our stock-based compensation
expense and results of operations could be materially impacted.
27
Results
of Operations
The following table sets forth statement of operations data as
percentages of total revenues for the periods indicated:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year ended December 31,
|
|
|
|
2006
|
|
|
2005
|
|
|
2004
|
|
|
Revenues:
|
|
|
|
|
|
|
|
|
|
|
|
|
Product licenses
|
|
|
32
|
%
|
|
|
33
|
%
|
|
|
34
|
%
|
Services
|
|
|
68
|
|
|
|
67
|
|
|
|
66
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total revenues
|
|
|
100
|
|
|
|
100
|
|
|
|
100
|
|
Cost of revenues:
|
|
|
|
|
|
|
|
|
|
|
|
|
Product licenses
|
|
|
2
|
|
|
|
2
|
|
|
|
3
|
|
Services
|
|
|
30
|
|
|
|
26
|
|
|
|
29
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total cost of revenues
|
|
|
32
|
|
|
|
28
|
|
|
|
32
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross margin
|
|
|
68
|
|
|
|
72
|
|
|
|
68
|
|
Operating expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
Research and development
|
|
|
20
|
|
|
|
20
|
|
|
|
23
|
|
Sales and marketing
|
|
|
31
|
|
|
|
33
|
|
|
|
43
|
|
General and administrative
|
|
|
12
|
|
|
|
12
|
|
|
|
11
|
|
Restructuring charge (benefit)
|
|
|
(0
|
)
|
|
|
1
|
|
|
|
5
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total operating expenses
|
|
|
63
|
|
|
|
66
|
|
|
|
82
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) from operations
|
|
|
5
|
|
|
|
6
|
|
|
|
(14
|
)
|
Interest and other income, net
|
|
|
2
|
|
|
|
0
|
|
|
|
0
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) before provision
(benefit) for income taxes
|
|
|
7
|
|
|
|
6
|
|
|
|
(14
|
)
|
Provision (benefit) for income
taxes
|
|
|
(2
|
)
|
|
|
0
|
|
|
|
(0
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss)
|
|
|
9
|
%
|
|
|
6
|
%
|
|
|
(14
|
)%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The following table sets forth, for the periods indicated, gross
margin on product license revenue and gross margin on services
revenue:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year ended December 31,
|
|
|
|
2006
|
|
|
2005
|
|
|
2004
|
|
|
Cost of product license revenues
|
|
|
5
|
%
|
|
|
6
|
%
|
|
|
9
|
%
|
Gross margin on product license
revenues
|
|
|
95
|
|
|
|
94
|
|
|
|
91
|
|
Cost of services revenues
|
|
|
44
|
|
|
|
38
|
|
|
|
43
|
|
Gross margin on services revenues
|
|
|
56
|
|
|
|
62
|
|
|
|
57
|
|
Years
ended December 31, 2006, 2005 and 2004
Revenues
For 2006, total revenues increased 14% to $103.2 million
from $90.6 million for 2005. This increase is primarily due
to increases in product license revenue, hosting revenue and
professional service revenue when compared to 2005.
Additionally, the fourth quarter of 2006 included the
contribution from the eStara acquisition as compared to 2005,
which accounted for $4.7 million of revenue.
28
Total revenues increased 31% to $90.6 million in 2005 from
$69.2 million in 2004. The increase was primarily
attributable to our acquisition of Primus in November 2004 and
the shift in our focus to marketing and selling application
products rather than infrastructure products.
Since 2004 our focus has been on
e-commerce
and service applications, and through our Primus acquisition,
solutions that enable our customers to deliver a superior
customer experience via contact centers, information technology
help desks, web (intranet and Internet) self-service and
electronic communication channels.
For 2006, revenues generated from international customers
increased to 25% of total revenues from 24% of total revenues in
2005.
No single customer accounted for more than 10% of our total
revenues in 2006, 2005 or 2004.
We expect full year 2007 revenues in the range of
$117.0 million to $123.0 million.
Product
License Revenues
Product license revenues increased 10% to $32.8 million for
2006 from $29.8 million for 2005. This increase is
primarily attributable to increased demand of our Commerce
product suite due to an improvement in the overall
e-commerce
market.
Product license revenues increased 28% to $29.8 million in
2005 from $23.3 million in 2004. The increase was primarily
attributable to our acquisition of Primus in November 2004 and
the shift in our focus of our marketing and selling efforts to
applications products from infrastructure products.
Product license revenues generated from international customers
increased 22% to $9.0 million in 2006 from
$7.4 million for the 2005. The increase in international
revenues was primarily due to several new international
customers.
Product license revenues generated from international customers
decreased to $7.4 million in 2005 from $9.4 million in
2004. The decrease in international revenues was primarily due
to the timing of certain deals.
Product license revenues as a percentage of total revenues for
2006, 2005 and 2004 were 32%, 33% and 34%, respectively. We
expect this percentage to be in the range of 15% to 20% in 2007.
The expected year over year decrease in product license revenue
as a percent of total revenue is due to our expectation that an
increasing percent of product license revenue will be recognized
ratably.
Our resellers receive a discount from our list price. The extent
of any discount is based on negotiated contractual agreements
between us and the reseller. We do not grant our resellers the
right of return, price protection or favorable payment terms. We
rely upon resellers to market and sell our products and support
and maintenance to governmental entities and to customers in
geographic regions where it is not cost effective for us to sell
directly. We have approximately 17 active resellers. Reseller
revenues and the percentage of revenues from resellers can vary
significantly from period to period. No resellers accounted for
more than 10% of our revenues in 2006, 2005 or 2004.
Services
Revenues
Services revenues increased 16% to $70.4 million for 2006
from $60.8 million for 2005. The increase was primarily
attributable to the addition of eStara service revenue. The
increase is also attributed to new service revenue from
professional services and application hosting services
associated with our new ATG OnDemand Service offerings.
Services revenues increased 33% to $60.8 million in 2005
from $45.9 million in 2004. The increase was attributable
to new service revenues from the acquisition of Primus,
specifically including application hosting services.
Support and maintenance revenues were 56% of total service
revenues for 2006 as compared to 64.0% for 2005. Support and
maintenance revenues decreased as a percentage of total service
revenue due to increases in professional services, hosting and
eStara revenue.
29
Support and maintenance revenues were 64% of total services
revenues in 2005 and 2004. Support and maintenance revenues, in
absolute dollars, were higher during 2005 due primarily to the
addition of Primus active support and maintenance customer
base.
Revenue from on demand services (includes both application
hosting services and eStara) increased 122% to
$11.8 million for 2006 from $5.3 million for 2005.
This increase is primarily due to the addition of
$4.7 million of eStara revenue in the fourth quarter of
2006. We expect on demand service revenue to become a larger
portion of our services revenue as a result of our new expanding
product offerings and the contribution from eStara.
Services revenues as a percentage of total revenues for 2006,
2005 and 2004 were 68%, 67% and 66%, respectively.
Cost of
Product License Revenues
Cost of product license revenues includes salary, benefits and
stock-based compensation costs associated with fulfillment and
engineering staff dedicated to maintenance of products that are
in general release, the amortization of licenses purchased in
support of and used in our products, royalties paid to vendors
whose technology is incorporated into our products and
amortization expense related to acquired developed technology.
Cost of product license revenues was $1.8 million in 2006
and 2005. Cost of product license revenues decreased 18% to
$1.8 million in 2005 from $2.2 million in 2004. This
decrease was primarily related to a reduction in salary and
related costs along with decreased royalties paid on third party
software embedded in our products, partially offset by an
increase in amortization of acquired intangibles.
Gross
Margin on Product License Revenues
For 2006, 2005 and 2004, gross margin on product license
revenues was 95%, or $31.0 million, 94%, or
$28.0 million and 91%, or $21.1 million, respectively.
The sequential increase primarily relates to higher product
license revenue, partially offset by an increase in royalties.
Cost of
Services Revenues
Cost of services revenues includes salary, benefits and
stock-based compensation and other related costs for our
professional services and technical support staff, as well as
third-party contractor expenses. Additionally, cost of services
revenues includes fees for hosting facilities, bandwidth costs,
telecommunication fees, amortization of acquired intangibles and
equipment and related depreciation costs. Cost of services
revenues will vary significantly from period to period depending
on the level of professional services staffing, the effective
utilization rates of our professional services staff, the mix of
services performed, including product license technical support
services, the extent to which these services are performed by us
or by third-party contractors, the level of third-party
contractors fees, and the amount of equipment, bandwidth
and hosting space required.
Cost of services revenues increased 32% to $30.8 million in
2006 from $23.3 million in 2005. The increase in 2006 was
primarily attributable to an increase in professional services
salary and salary related expenses, specifically including
stock-based compensation expense related to our adoption of
SFAS 123R in 2006. Additionally, eStara cost of services
was included in the fourth quarter of 2006.
Cost of services revenues increased 17% to $23.3 million in
2005 from $19.9 million in 2004. The increase was primarily
attributable to an increase in service revenues of 33% for the
year and a full year of hosting activities; resulting in an
increase in salaries and benefits and increased use of third
party contractors.
Gross
Margin on Services Revenues
For 2006, gross margin on services revenues was 56%, or
$39.6 million, compared to 62%, or $37.6 million, in
the corresponding period in 2005 and 57%, or $26.0 million
in 2004. The decrease in gross margin was primarily attributable
to the change in service revenue mix, our continued investment
in OnDemand services and stock-based compensation expenses under
SFAS 123R. The nature of our OnDemand service requires us
to make an upfront fixed investment in both people and capital
before we realize economies of scale in our infrastructure. The
increase
30
in gross margin in 2005 compared with 2004 was primarily
attributable to continued use of third party contractors to
control costs.
Research
and Development Expenses
Research and development expenses consist primarily of salary,
benefits and stock-based compensation to support product
development, as well as costs related to our use of third party
offshore contractors. To date, all software development costs
have been expensed as research and development in the period
incurred.
Research and development expenses increased 15% to
$20.4 million in 2006 from $17.8 million in 2005. The
increase in 2006 compared to 2005 was primarily attributable to
an increase in outsourcing services and stock-based compensation
expense related to our adoption of SFAS 123R in 2006.
Research and development expenses increased 10% in 2005 as
compared to 2004. The increase was primarily attributable to an
increase in our use of third party offshore contractors.
We expect 2007 research and development expenses as a percentage
of revenue to be in the 20% - 21% range.
Sales and
Marketing Expenses
Sales and marketing expenses consist primarily of salaries,
benefits, stock-based compensation, commissions for sales and
marketing personnel, travel, public relations, and marketing
materials and events.
Sales and marketing expenses increased 7% to $32.0 million
in 2006 from $30.0 million in 2005. The increase in 2006
compared to 2005 was primarily attributable to the inclusion of
eStara expenses, including amortization of acquired intangibles
for customer relationships and stock-based compensation expense
related to our adoption of SFAS 123R in 2006.
Sales and marketing expenses increased 1% in 2005 as compared to
2004. The increase was primarily attributable to an increase in
amortization of acquired intangibles for customer relationships
related to the Primus acquisition.
We anticipate that 2007 sales and marketing expenses as a
percentage of total revenues will be in the mid-30% range.
However, sales and marketing expenses can fluctuate as a
percentage of total revenues depending on the level and timing
of global expansion, program spending, the rate at which new
sales personnel become productive and the level of revenue.
General
and Administrative Expenses
General and administrative expenses consist primarily of the
following components: salary benefits, stock-based compensation
and other related costs, including expenses for executive,
finance, legal, business applications, internal network
management, human resources and other administrative personnel;
fees for professional services; non-income related taxes;
insurance costs; and rent and other facility-related
expenditures for leased properties.
General and administrative expenses increased 15% to
$13.0 million in 2006 from $11.2 million in 2005. The
increase for 2006 when compared to 2005 is primarily due to
eStara expenses and stock-based compensation expense related to
our adoption of SFAS 123R in 2006.
General and administrative expenses increased 45% to
$11.2 million in 2005 from $7.7 million in 2004. The
increase was primarily attributable to an increase in outside
services and professional fees, an increase in insurance
expenses and amortization of acquired intangibles attributable
to our acquisition of Primus.
Stock-based
Compensation Expense
On January 1, 2006, we adopted Statement of Financial
Accounting Standards No. 123(R), Share-Based Payment,
or SFAS 123R, using the modified prospective
application method. Compensation cost is calculated on the date
of grant using the fair value of the options as calculated by
the Black-Scholes valuation model and is recognized ratably over
the employees service period.
31
As a result of adopting SFAS 123R on January 1, 2006,
our operating profit before income taxes and net income were
each lower by $3.6 million, and basic and diluted earnings
per share were lower by $0.04 and $0.03, respectively, than if
we had continued to account for share-based compensation under
APB 25. As of December 31, 2006, the total
compensation cost related to unvested awards to employees not
yet recognized in the statement of operations was approximately
$10.9 million, which will be recognized over a weighted
average period of 1.5 years.
Restructuring
In 2001 through 2005, we took restructuring actions to realign
our operating expenses and facilities with the requirements of
our business and current market conditions and recorded
adjustments to prior restructuring charges. These actions have
included closure and consolidation of excess facilities,
reductions in the number of our employees, abandonment or
disposal of tangible assets and settlement of contractual
obligations. In connection with each of these actions we have
recorded restructuring charges, based in part upon our estimates
of the costs ultimately to be paid for the actions we have
taken. When circumstances result in changes in our estimates
relating to our accrued restructuring costs, we reflect these
changes as additional charges or benefits in the period in which
the change of estimate occurs. As of December 31, 2006, we
had restructuring accruals of $2.2 million. We recorded
charges (benefits) of $(0.1) million, $0.9 million and
$3.6 million in 2006, 2005 and 2004, respectively. For
detailed information about our restructuring activities and
related costs and accruals, see Note 11 to the Consolidated
Financial Statements contained in Item 8 of this Annual
Report on
Form 10-K.
Abandoned
Facilities Obligations
At December 31, 2006, we had lease arrangements related to
three abandoned facilities. Of these locations, the
restructuring accrual for the Waltham, Massachusetts location is
net of assumed sublease income. We have made certain assumptions
regarding the future sublease income for this facility which are
shown in the table below. The restructuring accrual for the
other facilities, is net of contractual amounts due under any
executed
sub-lease
agreement. All locations for which we have recorded
restructuring charges have been exited, and thus our plans with
respect to these leases have been completed. A summary of the
remaining abandoned facility locations and the timing of the
remaining cash payments are as follows (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2007
|
|
|
2008
|
|
|
2009
|
|
|
Total
|
|
|
Waltham, MA
|
|
$
|
1,384
|
|
|
$
|
1,384
|
|
|
$
|
346
|
|
|
$
|
3,114
|
|
San Francisco, CA
|
|
|
515
|
|
|
|
|
|
|
|
|
|
|
|
515
|
|
Reading, UK
|
|
|
483
|
|
|
|
483
|
|
|
|
81
|
|
|
|
1,047
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Facility obligations, gross
|
|
|
2,382
|
|
|
|
1,867
|
|
|
|
427
|
|
|
|
4,676
|
|
Contracted and assumed sublet
income
|
|
|
(1,153
|
)
|
|
|
(1,051
|
)
|
|
|
(193
|
)
|
|
|
(2,397
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash obligations
|
|
$
|
1,229
|
|
|
$
|
816
|
|
|
$
|
234
|
|
|
$
|
2,279
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest
and Other Income, Net
Interest and other income, net increased to $1.7 million
for 2006 from $219,000 for 2005. The increase was primarily due
to an increase in interest income resulting from our higher
average cash and investment balances and foreign currency
exchange gains.
Interest and other income, net decreased 45% to $219,000 from
$395,000 in 2004. The decrease was primarily due to an increase
in foreign exchange losses, partially offset by an increase in
interest income.
Provision
(Benefit) for Income Taxes
For the year ended December 31, 2006, we recorded an income
tax benefit of $2.6 million. This relates to reversing
certain tax reserves in foreign locations that were no longer
required due to closed tax years under audit and expiration of
the statue of limitations at certain foreign jurisdictions.
We had no Federal or foreign income taxes for 2006 due to
taxable losses in domestic and certain foreign locations in 2006
and the use of net operating loss carry-forwards. We recorded
state income taxes for 2006 of
32
approximately $12,000. Accordingly, only a state provision for
taxes has been recorded for 2006. Taxes recorded in 2005 were
for foreign locations. In 2004, we reversed previously accrued
taxes for foreign locations due to the closure of statute of
limitations, or as a result of changes in our estimates of
potential amounts due in those locations.
As a result of historical net operating losses incurred, and
after evaluating our anticipated performance over our normal
planning horizon, we have provided a full valuation allowance
for our net operating loss carry-forwards, research credit
carry-forwards and other net deferred tax assets. The primary
differences between our book and tax income that give rise to a
tax loss for 2006 are due to the amortization of capitalized
research and development expenses and payments on lease
restructuring reserves partially offset by SFAS 123R stock
compensation expenses.
eStara
Acquisition
On October 2, 2006, we acquired all of the outstanding
shares of common stock of privately held eStara, Inc. to enhance
online sales and support initiatives. The aggregate purchase
price was $49.8 million, which consisted of
$39.2 million of our common stock, $8.4 million of
cash issued for transaction bonus to eStara employees of
$4.8 million and $3.6 million in lieu of issuing ATG
common stock to non-accredited investors, and $2.2 million
of transaction costs, which primarily consisted of fees paid for
financial advisory, legal and accounting services. We issued
approximately 14.6 million shares of ATG common stock, the
fair value of which was based upon a
five-day
average of the closing price two days before and two days after
the terms of the acquisition were agreed to and publicly
announced. The excess of the purchase price over the net assets
acquired resulted in goodwill of $32.1 million. We also
issued 0.3 million shares of restricted stock which will be
recognized as stock-based compensation expense over the vesting
term. In connection with this acquisition, we acquired
$14.0 million of intangible assets for customer
relationships, developed technology and trademarks, which are
being amortized over their estimated useful lives.
We may also pay up to an additional $6.0 million in
potential earn-out payments to the stockholders and employees of
eStara based on the eStara revenues for fiscal 2007. If
eStaras revenues exceed $25.0 million but are less
than $30.0 million, ATG will be required to pay
$2.0 million, of which $0.6 million will be
distributed to the stockholders and $1.4 million will be
distributed to employees. In the event eStaras revenues
exceed $30.0 million, ATG will be required to pay an
additional $4.0 million, of which $2.5 million will be
distributed to stockholders and $1.5 million will be
distributed to employees. The payments to stockholders will be
recorded as additional purchase price, and the amounts paid to
employees will be accounted for as compensation expense in our
income statement as it relates to amounts paid to eStara
employee shareholders in excess of that paid to non-employee
stockholders. These payments may be made, at our option, in the
form of cash or stock, subject to the applicable rules of the
Nasdaq stock market and applicable limitations under the tax
rules to permit the transaction to be categorized as a tax-free
reorganization.
Liquidity
and Capital Resources
Our capital requirements relate primarily to facilities,
employee infrastructure and working capital requirements. Our
primary sources of liquidity at December 31, 2006 were our
cash, cash equivalents and short-term marketable securities of
$31.2 million.
Cash provided by operating activities was $7.6 million in
2006. This consisted of net income of $9.7 million,
depreciation and amortization of $5.1 million, stock-based
compensation expense of $3.8 million, offset by a
$9.4 million increase in accounts receivable and a
$2.5 million decrease in accrued restructuring costs.
Our investing activities for the year ended December 31,
2006 used cash of $15.6 million, which consisted primarily
of net cash payments associated with the acquisition of eStara,
Inc. of $7.2 million, capital expenditures of
$4.5 million and net purchases of marketable securities of
$3.8 million. We expect capital expenditures in 2007 to be
approximately 5% of annual revenue.
Net cash provided by financing activities was $1.9 million
for the year ended December 31, 2006, which consisted
primarily of $2.2 million in proceeds from exercised
employee stock options offset by principal payments on notes
payable and capital leases.
We believe that our balance of $31.2 million in cash and
cash equivalents and marketable securities at December 31,
2006, including the effect of the cash to be paid to complete
the eStara acquisition, along with other
33
working capital and cash expected to be generated by our
operations will allow us to meet our liquidity needs over at
least the next twelve months. However, our actual cash
requirements will depend on many factors, including
particularly, overall economic conditions both domestically and
abroad. We may seek additional external funds through public or
private securities offerings, strategic alliances or other
financing sources. There can be no assurance that if we seek
external funding, it will be available on favorable terms, if at
all.
Credit
Facility
We have an existing $20.0 million revolving line of credit
with Silicon Valley Bank (the Bank). The line of credit is
secured by all of our tangible and intangible personal property
and is subject to financial covenants including liquidity
coverage and profitability. The line of credit will expire on
January 31, 2008.
While there were no outstanding borrowings under the facility at
December 31, 2006, the Bank had issued standing letters of
credit totaling $5.3 million on our behalf, which are
supported by this facility. The standing letters of credit have
been issued in favor of various landlords to secure obligations
under our facility leases pursuant to leases expiring through
December 2012. The line of credit bears interest at the
Banks prime rate (8.25% at December 31, 2006). As of
December 31, 2006, approximately $14.7 million was
available under the facility.
Contractual
Obligations
On December 31, 2006, our contractual cash obligations,
which consist primarily of operating leases, were as follows (in
thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Less than
|
|
|
|
|
|
More than
|
Contractual Obligations
|
|
Total
|
|
1 year
|
|
1-3 years
|
|
3-5 years
|
|
5 years
|
|
Operating Leases
|
|
$
|
15,216
|
|
|
$
|
4,823
|
|
|
$
|
6,819
|
|
|
$
|
3,574
|
|
|
$
|
0
|
|
In addition, we have an obligation for contingent consideration
of up to $6 million based on eStaras 2007 revenue.
Recent
Accounting Pronouncements
In June 2006, the FASB issued FIN No. 48, Accounting for
Uncertainty in Income Taxes, an Interpretation of FASB Statement
No. 109 (FIN No. 48).
FIN No. 48 clarifies the accounting for uncertainty in
income taxes recognized in an enterprises financial
statements in accordance with FASB Statement No. 109,
Accounting for Income Taxes. FIN No. 48
prescribes a two-step process to determine the amount of tax
benefit to be recognized. First, the tax position must be
evaluated to determine the likelihood that it will be sustained
upon external examination. If the tax position is deemed
more-likely-than-not to be sustained, the tax position is then
assessed to determine the amount of benefit to recognize in the
financial statements. The amount of the benefit that may be
recognized is the largest amount that has a greater than
50 percent likelihood of being realized upon ultimate
settlement. FIN No. 48 is effective for us beginning
in 2007. We do not expect the implementation of
FIN No. 48 to have a material impact on our financial
statements.
In September 2006, the Securities and Exchange Commission, or
the SEC, released SAB No. 108,
(SAB 108). SAB 108 expresses the SEC
staffs views regarding the process of quantifying and
recording financial statement misstatements. These
interpretations were issued to address diversity in practice and
the potential under current practice for the build up of
improper amounts on the balance sheet. SAB 108 expresses
the SEC staffs view that a registrants materiality
evaluation of an identified unadjusted error should quantify the
effects of the error on each financial statement and related
financial statement disclosures and that prior year
misstatements should be considered in quantifying misstatements
in current year financial statements. SAB 108 also states
that correcting prior year financial statements for immaterial
errors would not require previously filed reports to be amended.
Such correction may be made the next time the registrant files
the prior year financial statements. Registrants electing not to
restate prior periods should reflect the effects of initially
applying the guidance in SAB 108 in their annual financial
statements covering the first fiscal year ending after
November 15, 2006. The cumulative effect of the initial
application should be reported in the carrying amounts of assets
and liabilities as of the beginning of that fiscal year and the
offsetting adjustment should be made to the opening balance of
retained earnings for that year. Registrants should disclose the
nature and amount of each individual error being
34
corrected in the cumulative adjustment. The disclosure should
also include when and how each error arose and the fact that the
errors had previously been considered immaterial. The SEC staff
encourages early application of the guidance in SAB 108 for
interim periods of the first fiscal year ending after
November 15, 2006. The implementation of SAB 108 did
not have any impact on our financial statements.
In September 2006, the FASB issued SFAS No. 157,
Fair Value Measurements, (SFAS 157).
SFAS 157 defines fair value, establishes a
framework for measuring fair value in generally accepted
accounting principles, and expands disclosures about fair value
measurements. SFAS 157 does not require any new fair value
measurements but may change current practice for some entities.
SFAS 157 is effective for financial statements issued for
fiscal years beginning after November 15, 2007 and interim
periods within those years. We are currently evaluating the
potential impact of SFAS 157 on our financial position and
results of operations.
|
|
Item 7A.
|
Quantitative
and Qualitative Disclosures about Market Risk
|
We maintain an investment portfolio consisting mainly of
investment grade money market funds, corporate obligations and
government obligations with a weighted average maturity of less
than one year. These
held-to-maturity
securities are subject to interest rate risk. However, a 10%
change in interest rates would not have any impact to the fair
values of these securities at December 31, 2006 and 2005
primarily due to their short maturity and our intent to hold the
securities to maturity. There have been no significant changes
since December 31, 2006.
The majority of our operations are based in the U.S., and
accordingly, the majority of our transactions are denominated in
U.S. dollars. However, we have foreign-based operations
where transactions are denominated in foreign currencies and are
subject to market risk with respect to fluctuations in the
relative value of foreign currencies. Our primary foreign
currency exposures relate to our short-term intercompany
balances with our foreign subsidiaries and accounts receivable
valued in the United Kingdom in U.S. dollars. Our primary
foreign subsidiaries have functional currencies denominated in
the British pound and Euro, and foreign denominated assets and
liabilities are remeasured each reporting period with any
exchange gains and losses recorded in our consolidated
statements of operations. Based on currency exposures existing
at December 31, 2006 and 2005, a 10% movement in foreign
exchange rates would not expose us to significant gains or
losses in earnings or cash flows. We may use derivative
instruments to manage the risk of exchange rate fluctuations.
However, at December 31, 2006, we had no outstanding
derivative instruments. We do not use derivative instruments for
trading or speculative purposes.
35
|
|
Item 8.
|
Consolidated
Financial Statements and Supplementary Data
|
Report of
Independent Registered Public Accounting Firm
The Board of Directors and Stockholders
Art Technology Group, Inc.
We have audited the accompanying consolidated balance sheets of
Art Technology Group, Inc. as of December 31, 2006 and
2005, and the related consolidated statements of operations,
stockholders equity and comprehensive income (loss), and
cash flows for each of the three years in the period ended
December 31, 2006. These financial statements are the
responsibility of the Companys management. Our
responsibility is to express an opinion on these financial
statements based on our audits.
We conducted our audits in accordance with the standards of the
Public Company Accounting Oversight Board (United States). Those
standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are
free of material misstatement. An audit includes examining, on a
test basis, evidence supporting the amounts and disclosures in
the financial statements. An audit also includes assessing the
accounting principles used and significant estimates made by
management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a
reasonable basis for our opinion.
In our opinion, the financial statements referred to above
present fairly, in all material respects, the consolidated
financial position of Art Technology Group, Inc. at
December 31, 2006 and 2005, and the consolidated results of
its operations and its cash flows for each of the three years in
the period ended December 31, 2006, in conformity with
U.S. generally accepted accounting principles.
As discussed in Note 1(m) and Note 6 to the financial
statements, effective January 1, 2006, the Company adopted
Statement of Financial Accounting Standards No. 123(R),
Share-Based Payment, using the modified-prospective
transition method.
We also have audited, in accordance with the standards of the
Public Company Accounting Oversight Board (United States), the
effectiveness of Art Technology Group, Inc.s internal
control over financial reporting as of December 31, 2006,
based on criteria established in Internal Control-Integrated
Framework issued by the Committee of Sponsoring Organizations of
the Treadway Commission and our report dated March 14, 2007
expressed an adverse opinion thereon.
Boston, Massachusetts
March 14, 2007
36
ART
TECHNOLOGY GROUP, INC.
CONSOLIDATED
BALANCE SHEETS
(In thousands, except share and per share data)
|
|
|
|
|
|
|
|
|
|
|
December 31,
|
|
|
|
2006
|
|
|
2005
|
|
|
ASSETS
|
Current Assets:
|
|
|
|
|
|
|
|
|
Cash and cash equivalents
|
|
$
|
17,911
|
|
|
$
|
24,060
|
|
Marketable securities
|
|
|
13,312
|
|
|
|
9,509
|
|
Accounts receivable, net of
reserves of $447 ($778 in 2005)
|
|
|
34,554
|
|
|
|
21,459
|
|
Prepaid expenses and other current
assets
|
|
|
2,501
|
|
|
|
1,130
|
|
|
|
|
|
|
|
|
|
|
Total current assets
|
|
|
68,278
|
|
|
|
56,158
|
|
Property and equipment, net
|
|
|
5,326
|
|
|
|
2,995
|
|
Goodwill
|
|
|
59,328
|
|
|
|
27,347
|
|
Intangible assets, net
|
|
|
16,013
|
|
|
|
4,859
|
|
Other assets
|
|
|
1,036
|
|
|
|
1,406
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
149,981
|
|
|
$
|
92,765
|
|
|
|
|
|
|
|
|
|
|
|
LIABILITIES AND
STOCKHOLDERS EQUITY
|
Current Liabilities:
|
|
|
|
|
|
|
|
|
Accounts payable
|
|
$
|
2,607
|
|
|
$
|
2,719
|
|
Accrued expenses
|
|
|
15,791
|
|
|
|
13,359
|
|
Deferred revenue
|
|
|
24,178
|
|
|
|
21,113
|
|
Accrued restructuring, current
portion
|
|
|
1,213
|
|
|
|
3,012
|
|
Capital lease obligations, current
portion
|
|
|
56
|
|
|
|
56
|
|
Notes payable
|
|
|
|
|
|
|
198
|
|
|
|
|
|
|
|
|
|
|
Total current liabilities
|
|
|
43,845
|
|
|
|
40,457
|
|
Accrued restructuring, less
current portion
|
|
|
1,031
|
|
|
|
2,085
|
|
Capital lease obligations, less
current portion
|
|
|
|
|
|
|
63
|
|
Long-term deferred revenue
|
|
|
31
|
|
|
|
|
|
Commitments and contingencies
(Notes 8 and 12)
|
|
|
|
|
|
|
|
|
Stockholders equity:
|
|
|
|
|
|
|
|
|
Preferred stock, $0.01 par
value; Authorized 10,000,000 shares; Issued and
outstanding no shares
|
|
|
|
|
|
|
|
|
Common stock, $0.01 par
value; Authorized 200,000,000 shares; Issued
and outstanding 127,055,373 shares and
110,637,606 shares at December 31, 2006 and 2005,
respectively
|
|
|
1,270
|
|
|
|
1,106
|
|
Additional paid-in capital
|
|
|
296,291
|
|
|
|
251,454
|
|
Accumulated deficit
|
|
|
(191,558
|
)
|
|
|
(201,253
|
)
|
Accumulated other comprehensive
loss
|
|
|
(929
|
)
|
|
|
(1,147
|
)
|
|
|
|
|
|
|
|
|
|
Total stockholders equity
|
|
|
105,074
|
|
|
|
50,160
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
149,981
|
|
|
$
|
92,765
|
|
|
|
|
|
|
|
|
|
|
The accompanying notes are an integral part of these
consolidated financial statements.
37
ART
TECHNOLOGY GROUP, INC.
CONSOLIDATED
STATEMENTS OF OPERATIONS
(In
thousands, except per share data)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31,
|
|
|
|
2006
|
|
|
2005
|
|
|
2004
|
|
|
Revenues:
|
|
|
|
|
|
|
|
|
|
|
|
|
Product licenses
|
|
$
|
32,784
|
|
|
$
|
29,821
|
|
|
$
|
23,345
|
|
Services
|
|
|
70,448
|
|
|
|
60,825
|
|
|
|
45,874
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total revenues
|
|
|
103,232
|
|
|
|
90,646
|
|
|
|
69,219
|
|
Cost of revenue:
|
|
|
|
|
|
|
|
|
|
|
|
|
Product licenses
|
|
|
1,751
|
|
|
|
1,816
|
|
|
|
2,206
|
|
Services
|
|
|
30,799
|
|
|
|
23,255
|
|
|
|
19,879
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total cost of revenues
|
|
|
32,550
|
|
|
|
25,071
|
|
|
|
22,085
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit
|
|
|
70,682
|
|
|
|
65,575
|
|
|
|
47,134
|
|
Operating expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
Research and development
|
|
|
20,434
|
|
|
|
17,843
|
|
|
|
16,209
|
|
Sales and marketing
|
|
|
31,992
|
|
|
|
30,034
|
|
|
|
29,602
|
|
General and administrative
|
|
|
12,952
|
|
|
|
11,231
|
|
|
|
7,742
|
|
Restructuring charge (benefit)
|
|
|
(62
|
)
|
|
|
885
|
|
|
|
3,570
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total operating expenses
|
|
|
65,316
|
|
|
|
59,993
|
|
|
|
57,123
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) from operations
|
|
|
5,366
|
|
|
|
5,582
|
|
|
|
(9,989
|
)
|
Interest and other income, net
|
|
|
1,712
|
|
|
|
219
|
|
|
|
395
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) before provision
(benefit) for income taxes
|
|
|
7,078
|
|
|
|
5,801
|
|
|
|
(9,594
|
)
|
(Benefit) provision for income
taxes
|
|
|
(2,617
|
)
|
|
|
32
|
|
|
|
(50
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss)
|
|
$
|
9,695
|
|
|
$
|
5,769
|
|
|
$
|
(9,544
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income per weighted average
share:
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
$
|
0.08
|
|
|
$
|
0.05
|
|
|
$
|
(0.12
|
)
|
Diluted
|
|
$
|
0.08
|
|
|
$
|
0.05
|
|
|
$
|
(0.12
|
)
|
Shares used in per share
calculations:
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
|
115,280
|
|
|
|
109,446
|
|
|
|
79,252
|
|
Diluted
|
|
|
120,096
|
|
|
|
111,345
|
|
|
|
79,252
|
|
The accompanying notes are an integral part of these
consolidated financial statements.
38
ART
TECHNOLOGY GROUP, INC.
CONSOLIDATED STATEMENTS OF STOCKHOLDERS EQUITY AND
COMPREHENSIVE INCOME (LOSS)
(In thousands, except share and per share information)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accumulated
|
|
|
|
|
|
|
|
|
|
Common Stock
|
|
|
Additional
|
|
|
|
|
|
|
|
|
Other
|
|
|
Total
|
|
|
Comprehensive
|
|
|
|
Number of
|
|
|
Par
|
|
|
Paid-In
|
|
|
Deferred
|
|
|
Accumulated
|
|
|
Comprehensive
|
|
|
Stockholders
|
|
|
Income
|
|
|
|
Shares
|
|
|
Value
|
|
|
Capital
|
|
|
Compensation
|
|
|
Deficit
|
|
|
Loss
|
|
|
Equity
|
|
|
(Loss)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Restated)
|
|
|
(Restated)
|
|
|
|
|
|
|
|
|
Balance, January 1, 2004 as
restated (See Note 2)
|
|
|
72,936,165
|
|
|
$
|
729
|
|
|
$
|
218,927
|
|
|
$
|
(11
|
)
|
|
$
|
(197,478
|
)
|
|
$
|
(1,230
|
)
|
|
$
|
20,937
|
|
|
|
|
|
Exercise of stock options
|
|
|
718,126
|
|
|
|
7
|
|
|
|
525
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
532
|
|
|
|
|
|
Issuance of common stock in
connection with employee stock purchase plan
|
|
|
1,016,419
|
|
|
|
10
|
|
|
|
926
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
936
|
|
|
|
|
|
Issuance of common stock and
valuation of options related to Primus acquisition
|
|
|
33,471,256
|
|
|
|
335
|
|
|
|
29,087
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
29,422
|
|
|
|
|
|
Amortization of deferred
compensation
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
11
|
|
|
|
|
|
|
|
|
|
|
|
11
|
|
|
|
|
|
Comprehensive Income:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(9,544
|
)
|
|
|
|
|
|
|
(9,544
|
)
|
|
$
|
(9,544
|
)
|
Foreign currency translation
adjustment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(109
|
)
|
|
|
(109
|
)
|
|
|
(109
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Comprehensive loss
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
(9,653
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance, December 31, 2004
|
|
|
108,141,966
|
|
|
$
|
1,081
|
|
|
$
|
249,465
|
|
|
$
|
|
|
|
$
|
(207,022
|
)
|
|
$
|
(1,339
|
)
|
|
$
|
42,185
|
|
|
|
|
|
Exercise of stock options
|
|
|
1,751,942
|
|
|
|
18
|
|
|
|
1,342
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,360
|
|
|
|
|
|
Issuance of common stock in
connection with employee stock purchase plan
|
|
|
743,698
|
|
|
|
7
|
|
|
|
647
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
654
|
|
|
|
|
|
Comprehensive Income:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
5,769
|
|
|
|
|
|
|
|
5,769
|
|
|
$
|
5,769
|
|
Foreign currency translation
adjustment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
192
|
|
|
|
192
|
|
|
|
192
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Comprehensive income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
5,961
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance, December 31, 2005
|
|
|
110,637,606
|
|
|
$
|
1,106
|
|
|
$
|
251,454
|
|
|
$
|
|
|
|
$
|
(201,253
|
)
|
|
$
|
(1,147
|
)
|
|
$
|
50,160
|
|
|
|
|
|
Exercise of stock options
|
|
|
1,474,897
|
|
|
|
15
|
|
|
|
1,535
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,550
|
|
|
|
|
|
Issuance of common stock in
connection with employee stock purchase plan
|
|
|
327,643
|
|
|
|
3
|
|
|
|
658
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
661
|
|
|
|
|
|
Issuance of common stock related to
eStara acquisition
|
|
|
14,523,386
|
|
|
|
145
|
|
|
|
38,894
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
39,039
|
|
|
|
|
|
Vesting of restricted stock issued
to employees
|
|
|
45,284
|
|
|
|
|
|
|
|
120
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
120
|
|
|
|
|
|
Vesting of restricted stock issued
under the non-employee director plan
|
|
|
46,557
|
|
|
|
1
|
|
|
|
55
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
56
|
|
|
|
|
|
Stock based compensation expense
|
|
|
|
|
|
|
|
|
|
|
3,575
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3,575
|
|
|
|
|
|
Comprehensive Income:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
9,695
|
|
|
|
|
|
|
|
9,695
|
|
|
$
|
9,695
|
|
Foreign currency translation
adjustment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
218
|
|
|
|
218
|
|
|
|
218
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Comprehensive income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
9,913
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance, December 31, 2006
|
|
|
127,055,373
|
|
|
$
|
1,270
|
|
|
$
|
296,291
|
|
|
$
|
|
|
|
$
|
(191,558
|
)
|
|
$
|
(929
|
)
|
|
$
|
105,074
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The accompanying notes are an integral part of these
consolidated financial statements.
39
ART
TECHNOLOGY GROUP, INC.
CONSOLIDATED
STATEMENTS OF CASH FLOWS
(In
thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Years Ended December 31,
|
|
|
|
2006
|
|
|
2005
|
|
|
2004
|
|
|
Cash Flows from Operating
Activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss)
|
|
$
|
9,695
|
|
|
$
|
5,769
|
|
|
$
|
(9,544
|
)
|
Adjustments to reconcile net
income (loss) to net cash provided by (used in) operating
activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock-based compensation expense
|
|
|
3,751
|
|
|
|
|
|
|
|
11
|
|
Depreciation and amortization
|
|
|
5,141
|
|
|
|
4,180
|
|
|
|
2,957
|
|
Non-cash restructuring charge
|
|
|
|
|
|
|
1,167
|
|
|
|
667
|
|
Loss on disposal of fixed assets,
net
|
|
|
|
|
|
|
|
|
|
|
33
|
|
Changes in current assets and
liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
|
Accounts receivable, net
|
|
|
(9,424
|
)
|
|
|
2,940
|
|
|
|
(7,147
|
)
|
Prepaid expenses and other current
assets
|
|
|
(1,183
|
)
|
|
|
434
|
|
|
|
671
|
|
Deferred rent
|
|
|
562
|
|
|
|
664
|
|
|
|
978
|
|
Accounts payable
|
|
|
(629
|
)
|
|
|
(1,428
|
)
|
|
|
519
|
|
Accrued expenses
|
|
|
(169
|
)
|
|
|
310
|
|
|
|
(3,364
|
)
|
Deferred revenues
|
|
|
2,417
|
|
|
|
(4,067
|
)
|
|
|
6,957
|
|
Accrued restructuring
|
|
|
(2,536
|
)
|
|
|
(6,061
|
)
|
|
|
(6,841
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash provided by (used in)
operating activities
|
|
|
7,625
|
|
|
|
3,908
|
|
|
|
(14,103
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash Flows from Investing
Activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
Purchases of marketable securities
|
|
|
(18,904
|
)
|
|
|
(14,115
|
)
|
|
|
(11,426
|
)
|
Maturities of marketable securities
|
|
|
15,101
|
|
|
|
13,804
|
|
|
|
11,878
|
|
Purchases of property and equipment
|
|
|
(4,459
|
)
|
|
|
(1,924
|
)
|
|
|
(763
|
)
|
Acquisition costs, net of cash
acquired
|
|
|
(7,153
|
)
|
|
|
(1,010
|
)
|
|
|
2,730
|
|
Decrease in other assets
|
|
|
(155
|
)
|
|
|
313
|
|
|
|
(12
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash (used in) provided by
investing activities
|
|
|
(15,570
|
)
|
|
|
(2,932
|
)
|
|
|
2,407
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash Flows from Financing
Activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
Principal payments on notes payable
|
|
|
(198
|
)
|
|
|
(413
|
)
|
|
|
(502
|
)
|
Proceeds from exercise of stock
options
|
|
|
1,537
|
|
|
|
1,360
|
|
|
|
532
|
|
Proceeds from employee stock
purchase plan
|
|
|
661
|
|
|
|
654
|
|
|
|
936
|
|
Payments on capital leases
|
|
|
(63
|
)
|
|
|
(55
|
)
|
|
|
(7
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash provided by financing
activities
|
|
|
1,937
|
|
|
|
1,546
|
|
|
|
959
|
|
Effect of foreign exchange rate
changes on cash and cash equivalents
|
|
|
(141
|
)
|
|
|
228
|
|
|
|
113
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net increase (decrease) in cash
and cash equivalents
|
|
|
(6,149
|
)
|
|
|
2,750
|
|
|
|
(10,624
|
)
|
Cash and cash equivalents,
beginning of period
|
|
|
24,060
|
|
|
|
21,310
|
|
|
|
31,934
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents, end of
period
|
|
$
|
17,911
|
|
|
$
|
24,060
|
|
|
$
|
21,310
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Supplemental Disclosure of Cash
Flow information:
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash paid for interest expense
|
|
$
|
11
|
|
|
$
|
18
|
|
|
$
|
4
|
|
Cash paid for income taxes
|
|
$
|
|
|
|
$
|
39
|
|
|
$
|
38
|
|
Supplemental Disclosure of Noncash
Investing and Financing Activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
Issuance of stock and options
related to acquisitions
|
|
$
|
39,039
|
|
|
$
|
|
|
|
$
|
29,422
|
|
The accompanying notes are an integral part of these
consolidated financial statements.
40
ART
TECHNOLOGY GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(1) Organization,
Business and Summary of Significant Accounting
Policies
Art Technology Group, Inc. (ATG or the Company) develops and
markets a comprehensive suite of
e-commerce
software products, as well as provides related services
including support and maintenance, education, application
hosting, professional services and proactive conversion
solutions for enhancing online sales and support.
|
|
(a)
|
Principles
of Consolidation
|
The accompanying consolidated financial statements include the
accounts of ATG and its wholly owned subsidiaries. All
intercompany accounts and transactions have been eliminated in
consolidation.
The preparation of consolidated financial statements in
conformity with accounting principles generally accepted in the
United States requires management to make estimates and
assumptions that affect the reported amounts of assets and
liabilities and disclosure of contingent assets and liabilities
at the date of the financial statements, and the reported
amounts of revenues and expenses during the reporting period.
Our actual results could differ from those estimates.
ATG recognizes service and hosting revenue not related to
software arrangements in accordance with the Securities and
Exchange Commissions Staff Accounting
Bulletin No. 104, Revenue Recognition, and the
Financial Accounting Standards Board, or FASB, Emerging Issues
Task Force Issue
No. 00-21,
Revenue Arrangements with Multiple Deliverables. Revenue
is recognized only when the price is fixed or determinable,
persuasive evidence of an arrangement exists, the service is
performed and collectibility of the resulting receivable is
reasonably assured. In addition, the delivered element must have
stand-alone value and ATG must have specific objective evidence
of fair value of the undelivered elements.
At the inception of a customer contract for service, ATG makes a
judgment of the customers ability to pay for the services
provided. This judgment is based on a combination of factors,
including the successful completion of a credit check or
financial review, payment history with the customer and other
forms of payment assurance. Upon the completion of these steps,
ATG recognizes revenue monthly in accordance with its revenue
recognition policy.
ATG also licenses software under perpetual license agreements.
ATG applies the provisions of Statement of Position, or SOP,
97-2,
Software Revenue Recognition, as amended by
SOP 98-9,
Modifications of
SOP 97-2,
Software Revenue Recognition, With Respect to Certain
Transactions. In accordance with
SOP 97-2
and
SOP 98-9,
revenues from software product license agreements are recognized
upon execution of a license agreement and delivery of the
software, provided that the fee is fixed or determinable and
deemed collectible by management. If conditions for acceptance
are required subsequent to delivery, revenues are recognized
upon customer acceptance if such acceptance is not deemed to be
perfunctory.
As prescribed by this accounting guidance, ATG applies the
residual method of accounting. The residual method requires that
the portion of the total arrangement fee attributable to
undelivered elements, as indicated by vendor specific objective
evidence of fair value, is deferred and subsequently recognized
when delivered. The difference between the total arrangement fee
and the amount deferred for the undelivered elements is
recognized as revenue related to the delivered elements, if all
other revenue recognition criteria of
SOP 97-2
are met. Consulting revenues from these arrangements are
generally accounted for separately from software licenses
because the
41
ART TECHNOLOGY GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
arrangements qualify as service transactions as defined in
SOP 97-2.
The more significant factors considered in determining whether
the revenue should be accounted for separately include the
nature of services (i.e., consideration of whether the services
are essential to the functionality of the licensed product),
degree of risk, availability of services from other vendors,
timing of payments and impact of milestones or acceptance
criteria on the realizability of the software license fee.
Revenues from software maintenance are recognized ratably over
the term of the maintenance, which is typically one year.
ATG derives revenue from the sale of application hosting and
proactive conversion solutions by providing services to
customers who have executed contracts with terms of one year or
longer. These contracts generally commit the customer to a
minimum monthly level of usage and provide the rate at which the
customer must pay for actual usage above the monthly minimum.
For these services, ATG recognizes the monthly minimum as
revenue each month provided that an enforceable contract has
been signed by both parties, the service has been delivered to
the customer, the fee for the service is fixed or determinable
and collection is reasonably assured. Should a customers
usage of these services exceed the monthly minimum, ATG
recognizes revenue for such excess usage in the period of the
usage. ATG typically charges the customer an installation fee
when the services are first activated. The installation fees are
recorded as deferred revenue and recognized as revenue ratably
over the estimated life of the customer arrangement.
When software products are licensed perpetually in conjunction
with application hosting and or proactive conversion solutions,
ATG allocates revenue between the elements based on each
elements relative fair value, provided that each element
meets the criteria as a separate element under
SOP 97-2.
An item is considered a separate element if the Company has
vendor-specific objective evidence of fair value of the element.
Fair value is generally determined based upon the price charged
when the element is sold separately. If the fair value of each
element cannot be objectively determined, the total value of the
arrangement is recognized ratably over the entire service period
to the extent that all services were provided at the outset of
the period. For most multiple element arrangements where
software products are sold in conjunction with application
hosting and or proactive conversion solutions, the fair value of
each element has not been objectively determinable. Therefore,
all revenue under these types of arrangements is recognized
ratably over the related estimated service period to the extent
that all services have begun to be provided at the outset of the
period.
Revenues from professional service arrangements are recognized
as the services are performed, provided that amounts due from
customers are fixed or determinable and deemed collectible by
management. ATG charges for professional services primarily on a
time-and-material
basis. Amounts collected prior to satisfying the above revenue
recognition criteria are reflected as deferred revenue. Deferred
revenue primarily consists of advance payments related to
support and maintenance, hosting and service agreements.
ATG also sells its services through a reseller channel. Assuming
all other revenue recognition criteria are met, ATG recognizes
revenue from reseller arrangements based on the resellers
contracted commitment. ATG does not grant resellers the right of
return or price protection.
|
|
(d)
|
Allowances
for Doubtful Accounts and Returns
|
ATG records allowances for doubtful accounts based upon a
specific review of all outstanding invoices, known collection
issues and historical experience. ATG also records a provision
for estimated sales returns and allowances on product and
service related sales in the same period the related revenues
are recorded in accordance with Statement of Financial
Accounting Standards (SFAS) No. 48, Revenue Recognition
When Right of Return Exists. These estimates are based on
historical sales returns, analysis of credit memo data and other
known factors.
42
ART TECHNOLOGY GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
The following is a rollforward of our allowance for doubtful
accounts (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Additions
|
|
|
|
|
|
|
|
|
|
Beginning of
|
|
|
Charges to
|
|
|
Deductions/
|
|
|
Balance at End
|
|
|
|
Period
|
|
|
Expense
|
|
|
Write-Offs
|
|
|
of Period
|
|
|
Year Ended December 31, 2004
|
|
$
|
799
|
|
|
$
|
259
|
|
|
$
|
(378
|
)
|
|
$
|
680
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31, 2005
|
|
$
|
680
|
|
|
$
|
677
|
|
|
$
|
(579
|
)
|
|
$
|
778
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31, 2006
|
|
$
|
778
|
|
|
$
|
323
|
|
|
$
|
(654
|
)
|
|
$
|
447
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(e)
|
Cost
of Product License Revenues
|
Cost of product license revenues includes salary, benefits, and
stock-based compensation in connection with SFAS 123(R) for
engineering staff and outsourced developers dedicated to the
maintenance of products that are in general release, costs of
fulfillment, external shipping costs, the amortization of
technology acquired in connection with the Primus acquisition
and licenses purchased in support of and used in our products
and royalties paid to vendors whose technology is incorporated
into our products.
|
|
(f)
|
Cost
of Services Revenues
|
Cost of services revenues includes salary, benefits, and
stock-based compensation in connection with SFAS 123(R) and
other costs for professional services and technical support
staff, costs associated with the hosting centers, third-party
contractors, and amortization of technology acquired in
connection with the eStara acquisition.
|
|
(g)
|
Net
Income (Loss) Per Share
|
Basic net income (loss) per share is computed based solely on
the weighted average number of common shares outstanding during
the period. In 2004, the Company recorded a net loss, and
accordingly, common stock equivalents are anti-dilutive. Diluted
net income per share is computed based on the weighted average
number of common shares outstanding during the period plus the
dilutive effect of common stock equivalents using the treasury
stock method. Common stock equivalents consist of stock options.
In accordance with SFAS 123R, the assumed proceeds under
the treasury stock method include the average unrecognized
compensation expense of stock options that are
in-the-money.
This results in the assumed buyback of additional
shares thereby reducing the dilutive impact of stock options.
43
ART TECHNOLOGY GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
The following table sets forth the computation of basic and
diluted net income (loss) per share for the years ended
December 31, 2006, 2005 and 2004:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2006
|
|
|
2005
|
|
|
2004
|
|
|
|
(In thousands, except per share amounts)
|
|
|
Net income (loss)
|
|
$
|
9,695
|
|
|
$
|
5,769
|
|
|
$
|
(9,544
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted average common shares
outstanding used in computing basic net income per share
|
|
|
115,280
|
|
|
|
109,446
|
|
|
|
79,252
|
|
Dilutive employee common stock
options
|
|
|
4,816
|
|
|
|
1,899
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total weighted average common
stock and common stock equivalent shares outstanding used in
computing diluted net income per share
|
|
|
120,096
|
|
|
|
111,345
|
|
|
|
79,252
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic net income (loss) per share
|
|
$
|
0.08
|
|
|
$
|
0.05
|
|
|
$
|
(0.12
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Diluted net income (loss) per share
|
|
$
|
0.08
|
|
|
$
|
0.05
|
|
|
$
|
(0.12
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Anti-dilutive common stock options
|
|
|
5,237
|
|
|
|
7,443
|
|
|
|
15,236
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(h)
|
Cash,
Cash Equivalents and Marketable Securities
|
ATG accounts for investments in marketable securities under
SFAS No. 115 (SFAS 115), Accounting for
Certain Investments in Debt and Equity Securities. Under
SFAS 115, investments consisting of cash equivalents and
marketable securities for which the Company has the positive
intent and the ability to hold to maturity are reported at
amortized cost, which approximates fair market value. Cash
equivalents are highly liquid investments with maturities at the
date of acquisition of less than 90 days. Marketable
securities are investment grade debt securities with maturities
at the date of acquisition of greater than 90 days. At
December 31, 2006 and December 31, 2005, all
marketable securities were classified as
held-to-maturity.
The average maturity of our marketable securities was
approximately 4.3 months and 3.2 months at
December 31, 2006 and 2005, respectively. At
December 31, 2006 and 2005, the difference between the
carrying value and market value of ATGs marketable
securities was an unrealized gain of approximately $1,000, and
an unrealized loss of $18,000, respectively. At
December 31, 2006 and 2005, cash, cash equivalents and
marketable securities consisted of the following (in thousands):
|
|
|
|
|
|
|
|
|
|
|
December 31,
|
|
|
|
2006
|
|
|
2005
|
|
|
Cash and cash equivalents:
|
|
|
|
|
|
|
|
|
Cash
|
|
$
|
16,750
|
|
|
$
|
15,473
|
|
Money market accounts
|
|
|
262
|
|
|
|
5,253
|
|
U.S. Treasury and
U.S. Government Agency securities
|
|
|
|
|
|
|
1,323
|
|
Commercial paper
|
|
|
899
|
|
|
|
2,011
|
|
|
|
|
|
|
|
|
|
|
Total cash and cash equivalents
|
|
$
|
17,911
|
|
|
$
|
24,060
|
|
|
|
|
|
|
|
|
|
|
Marketable securities:
|
|
|
|
|
|
|
|
|
U.S. Treasury and
U.S. Government Agency securities
|
|
$
|
996
|
|
|
$
|
389
|
|
Certificates of deposit
|
|
|
1,775
|
|
|
|
450
|
|
Commercial paper
|
|
|
4,792
|
|
|
|
2,011
|
|
Corporate debt securities
|
|
|
5,749
|
|
|
|
6,659
|
|
|
|
|
|
|
|
|
|
|
Total marketable securities
|
|
$
|
13,312
|
|
|
$
|
9,509
|
|
|
|
|
|
|
|
|
|
|
44
ART TECHNOLOGY GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
Included in other assets at December 31, 2006 are primarily
lease security deposits for the Companys various offices
and locations. At December 31, 2005, other assets included
deferred rent expense related to lease settlements reached with
landlords during 2003. These settlement agreements involved both
reaching a settlement on abandoned space and renegotiating a
reduction in the rate for continuing operating space. In these
cases, a portion of the settlement payment was accounted for as
deferred rent expense. The deferred rent is amortized over the
remaining lease term, which had the effect of maintaining the
effective rent expense per square foot on the existing operating
space equal to the effective rent expense per square foot per
the original lease. At December 31, 2006, the Company had
no remaining deferred rent.
Other assets at December 31, 2006 and 2005 consisted of the
following (in thousands):
|
|
|
|
|
|
|
|
|
|
|
December 31,
|
|
|
|
2006
|
|
|
2005
|
|
|
Deferred rent resulting from lease
settlements
|
|
$
|
|
|
|
$
|
562
|
|
Other assets, primarily lease
deposits
|
|
|
1,036
|
|
|
|
844
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
1,036
|
|
|
$
|
1,406
|
|
|
|
|
|
|
|
|
|
|
|
|
(j)
|
Property
and Equipment
|
Property and equipment are stated at cost, net of accumulated
depreciation and amortization. ATG records depreciation and
amortization using the straight-line method.
Property and equipment at December 31, 2006 and 2005
consisted of the following (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
December 31,
|
|
Asset Classification
|
|
Estimated Useful Life
|
|
2006
|
|
|
2005
|
|
|
Computer equipment
|
|
3 years
|
|
$
|
5,839
|
|
|
$
|
12,564
|
|
Leasehold improvements
|
|
Lesser of useful life or
life of lease
|
|
|
2,309
|
|
|
|
3,342
|
|
Furniture and fixtures
|
|
5 years
|
|
|
1,512
|
|
|
|
2,969
|
|
Computer software
|
|
3 years
|
|
|
4,875
|
|
|
|
4,417
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
14,535
|
|
|
|
23,292
|
|
Less accumulated
depreciation and amortization
|
|
|
|
|
9,209
|
|
|
|
20,297
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
5,326
|
|
|
$
|
2,995
|
|
|
|
|
|
|
|
|
|
|
|
|
Depreciation and amortization expense related to property and
equipment was $2.3 million, $1.9 million and
$1.9 million for each of the years ended December 31,
2006, 2005 and 2004, respectively.
During 2006, in connection with the Companys annual
evaluation of its property and equipment for impairment, the
Company identified $13.3 million of fully depreciated
assets that were disposed of or no longer in use. As a result,
the Company wrote-off the related cost basis and accumulated
depreciation.
In accordance with SFAS No. 144, Accounting for the
Impairment or Disposal of Long-Lived Assets, ATG reviews the
carrying value of long-lived assets, including intangible assets
subject to amortization, for impairment whenever events and
circumstances indicate that the carrying value of the assets may
not be recoverable. Recoverability of these assets is measured
by comparing the carrying value of the assets to the
undiscounted cash flows estimated to be generated by those
assets over their remaining economic life. If the undiscounted
cash flows are not sufficient to recover the carrying value of
the assets, the assets are considered impaired. The impairment
loss is measured by comparing the fair value of the assets to
their carrying values. Fair value is
45
ART TECHNOLOGY GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
determined by either a quoted market price or a value determined
by a discounted cash flow technique, whichever is more
appropriate under the circumstances involved. There were no
impairment charges related to property and equipment in 2006.
However, the Company recorded impairment charges related to
property and equipment in 2005 and 2004, as discussed in
Note 11.
|
|
(k)
|
Research
and Development Expenses for Software Products
|
ATG evaluates the establishment of technological feasibility of
its products in accordance with SFAS No. 86,
Accounting for the Costs of Computer Software to be Sold,
Leased, or Otherwise Marketed. ATG sells products in a
market that is subject to rapid technological change, new
product development and changing customer needs. Accordingly,
management has concluded that technological feasibility is not
established until the development stage of the product is nearly
complete. ATG defines technological feasibility as the
completion of a working model. The time period during which
costs could be capitalized, from the point of reaching
technological feasibility until the time of general product
release, is very short, and consequently, the amounts that could
be capitalized are not material to ATGs financial position
or results of operations. Therefore, ATG expenses all such costs
to research and development in the period incurred.
ATG accounts for income taxes in accordance with the provisions
of SFAS 109, Accounting for Income
Taxes. This statement requires ATG to recognize a
current tax asset or liability for current taxes payable or
refundable and to record deferred tax assets or liabilities for
the estimated future tax effects of temporary differences and
carryforwards to the extent that they are realizable. A
valuation allowance is established against net deferred tax
assets, if based on the weighted available evidence, it is more
likely than not that all or a portion of the deferred tax assets
will not be realized (see Note 5). As a result of
historical net operating losses incurred, and after evaluating
ATGs anticipated performance over its normal planning
horizon, ATG has provided for a full valuation allowance for its
net operating loss carry-forwards, research credit
carry-forwards and other net deferred tax assets.
|
|
(m)
|
Stock-Based
Compensation
|
On December 16, 2004, the Financial Accounting Standards
Board (FASB) issued SFAS 123 (revised 2004), Share-Based
Payment (SFAS 123R). SFAS 123R supersedes APB
Opinion No. 25, Accounting for Stock Issued to
Employees, and amends SFAS No. 95, Statement of
Cash Flows. Generally, the approach in SFAS 123R
is similar to the approach described in SFAS 123. However,
SFAS 123R requires all share-based payments to employees,
including grants of employee stock options, to be recognized in
the income statement based on their fair values at the date of
grant. Pro forma disclosure is no longer an alternative. On
January 1, 2006, ATG adopted SFAS 123R using the
modified prospective method as permitted under SFAS 123R.
Under this transition method, compensation cost recognized in
2006 includes: (a) compensation cost for all share-based
payments granted before but not yet vested as of
December 31, 2005 based on the grant-date fair value
estimated in accordance with the provisions of SFAS 123,
and (b) compensation cost for all share-based payments
granted after December 31, 2005 based on the grant-date
fair value estimated in accordance with the provisions of
SFAS 123R. In accordance with the modified prospective
method of adoption, results of operations and financial position
for prior periods have not been restated. See Note 6 for
further information related to stock-based compensation.
|
|
(n)
|
Comprehensive
Income (Loss)
|
SFAS No. 130, Reporting Comprehensive Income,
requires financial statements to include the reporting of
comprehensive income, which includes net income and certain
transactions that have generally been reported in the statement
of stockholders equity. ATGs comprehensive income
(loss) consists of net income (loss) and foreign currency
translation adjustments.
46
ART TECHNOLOGY GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
|
|
(o)
|
Fair
Value of Financial Instruments
|
Financial instruments mainly consist of cash and cash
equivalents, marketable securities and notes payable. The
carrying amounts of these instruments approximate their fair
values.
|
|
(p)
|
Concentrations
of Credit Risk
|
Financial instruments that potentially subject ATG to
concentrations of credit risk consist principally of marketable
securities and accounts receivable. ATG maintains cash, cash
equivalents and marketable securities with high credit quality
financial institutions.
The Company sells its products and services to customers in a
variety of industries, including consumer retail, financial
services, manufacturing, communications and technology, and
travel, media and entertainment. The Company has adopted credit
policies and standards and routinely assesses the financial
strength of its customers through continuing credit evaluations.
The Company generally does not require collateral or letters of
credit from its customers.
At December 31, 2006, no customer accounted for more than
10% of accounts receivable. At December 31, 2005, one
customer balance, comprising product and services invoices,
accounted for greater than 10% of accounts receivable. No single
customer accounted for more than 10% of total revenues during
the years ended December 31, 2006, 2005 and 2004.
Goodwill represents the excess of the purchase price in a
business combination over the fair value of net tangible and
intangible assets acquired in a business combination. In
accordance with SFAS No. 142, Goodwill and Other
Intangible Assets, the Company evaluates goodwill for
impairment annually in December, as well as whenever events or
changes in circumstances suggest that the carrying amount may
not be recoverable from estimated discounted future cash flows.
Because the Company has one reporting segment under
SFAS No. 142, it utilizes the entity-wide approach for
assessing goodwill for impairment and compares the
Companys market value to its net book value to determine
if impairment exists. No impairment of goodwill resulted from
this evaluation of goodwill in any of the fiscal years
presented. The following table presents the changes in goodwill
during 2006 and 2005 (in thousands):
|
|
|
|
|
|
|
|
|
|
|
Years Ended December 31,
|
|
|
|
2006
|
|
|
2005
|
|
|
Balance at beginning of year
|
|
$
|
27,347
|
|
|
$
|
27,458
|
|
Acquisition of eStara
|
|
|
32,071
|
|
|
|
|
|
Reversal of reserves related to
Primus acquisition
|
|
|
(90
|
)
|
|
|
(111
|
)
|
|
|
|
|
|
|
|
|
|
|
|
$
|
59,328
|
|
|
$
|
27,347
|
|
|
|
|
|
|
|
|
|
|
See Note 7 for additional information on the Companys
2006 acquisition.
The Company reviews identified intangible assets for impairment
whenever events or changes in circumstances indicate that the
carrying value of the assets may not be recoverable. The Company
evaluates recoverability of these assets by comparing the
carrying value of the assets to the undiscounted cash flows
estimated to be generated by those assets over their remaining
economic life. If the undiscounted cash flows are not sufficient
to recover the carrying value of the assets, the assets are
considered impaired. The impairment loss is measured by
comparing the fair value of the assets to their carrying values.
Fair value is determined by either a quoted market
47
ART TECHNOLOGY GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
price or a value determined by a discounted cash flow technique,
whichever is more appropriate under the circumstances involved.
Intangible assets with determinable lives are amortized over
their estimated useful lives, based upon the pattern in which
the expected benefits will be realized, or on a straight-line
basis.
During 2006, the Company acquired all of the shares of eStara,
Inc. As a result of this acquisition, the Company recorded
$14.0 million of additional intangible assets. See
Note 7 for additional information on this acquisition.
Total intangible assets, which are being amortized, consisted of
the following (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
December 31, 2006
|
|
|
December 31, 2005
|
|
|
|
Gross
|
|
|
|
|
|
|
|
|
Gross
|
|
|
|
|
|
|
|
|
|
Carrying
|
|
|
Accumulated
|
|
|
Net Book
|
|
|
Carrying
|
|
|
Accumulated
|
|
|
Net Book
|
|
|
|
Amount
|
|
|
Amortization
|
|
|
Value
|
|
|
Amount
|
|
|
Amortization
|
|
|
Value
|
|
|
Customer relationships
|
|
$
|
11,500
|
|
|
$
|
(3,492
|
)
|
|
$
|
8,008
|
|
|
$
|
4,200
|
|
|
$
|
(1,927
|
)
|
|
$
|
2,273
|
|
Purchased technology
|
|
|
8,900
|
|
|
|
(2,336
|
)
|
|
|
6,564
|
|
|
|
3,600
|
|
|
|
(1,258
|
)
|
|
|
2,342
|
|
Trademarks
|
|
|
1,400
|
|
|
|
(70
|
)
|
|
|
1,330
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Non-compete agreements
|
|
|
400
|
|
|
|
(289
|
)
|
|
|
111
|
|
|
|
400
|
|
|
|
(156
|
)
|
|
|
244
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total intangible assets
|
|
$
|
22,200
|
|
|
$
|
(6,187
|
)
|
|
$
|
16,013
|
|
|
$
|
8,200
|
|
|
$
|
(3,341
|
)
|
|
$
|
4,859
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Amortization expense related to intangible assets was
$2.8 million, $2.3 million and $1.0 million for
the years ended December 31, 2006, 2005 and 2004,
respectively. At December 31, 2006, annual amortization
expense for intangible assets will be as follows (in thousands):
|
|
|
|
|
|
|
Total
|
|
|
2007
|
|
$
|
4,905
|
|
2008
|
|
|
4,013
|
|
2009
|
|
|
3,381
|
|
2010
|
|
|
2,709
|
|
2011
|
|
|
1,005
|
|
|
|
|
|
|
Total
|
|
$
|
16,013
|
|
|
|
|
|
|
|
|
(s)
|
Foreign
Currency Translation
|
The financial statements of the Companys foreign
subsidiaries are translated in accordance with
SFAS No. 52, Foreign Currency Translation
(SFAS 52). The functional currency of the
Companys foreign subsidiaries has generally been
determined to be the local currency. ATG translates the assets
and liabilities of its foreign subsidiaries at the exchange
rates in effect at year-end. Before translation, the Company
re-measures foreign currency denominated assets and liabilities
into the functional currency of the respective ATG entity,
resulting in unrealized gains or losses recorded in interest and
other income, net in the accompanying consolidated statements of
operations. Revenues and expenses are translated using average
exchange rates in effect during the year. Gains and losses from
foreign currency translation are recorded to accumulated other
comprehensive loss included in stockholders equity. During
2006, the Company determined that certain foreign
subsidiaries operations had substantially ceased and were
effectively liquidated in prior periods, and as a result, the
Company recorded an adjustment to reduce the related cumulative
translation adjustment to beginning retained earnings and
accumulated other comprehensive loss. See Note 2 for
additional discussion. During the years ended December 31,
2006, 2005 and 2004, the Company recorded net gains (losses) of
$739,000, $(402,000) and $18,000, respectively, from realized
foreign currency transactions gains and losses and the
re-measurement of foreign currency denominated
48
ART TECHNOLOGY GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
assets and liabilities. These amounts are included in interest
and other income, net in the accompanying Consolidated
Statements of Operations.
|
|
(t)
|
Recent
Accounting Pronouncements
|
In June 2006, the FASB issued FASB Interpretation No. 48,
Accounting for Uncertainty in Income Taxes, an Interpretation
of FASB Statement No. 109
(FIN No. 48). FIN No. 48
clarifies the accounting for uncertainty in income taxes
recognized in an enterprises financial statements in
accordance with SFAS Statement No. 109, Accounting for
Income Taxes. FIN No. 48 prescribes a two-step
process to determine the amount of tax benefit to be recognized.
First, the tax position must be evaluated to determine the
likelihood that it will be sustained upon external examination.
If the tax position is deemed more-likely-than-not to be
sustained, the tax position is then assessed to determine the
amount of benefit to recognize in the financial statements. The
amount of the benefit that may be recognized is the largest
amount that has a greater than 50 percent likelihood of
being realized upon ultimate settlement. FIN No. 48 is
effective for the Company beginning in 2007. The Company does
not expect the implementation of FIN No. 48 to have a
material impact on its financial statements.
In September 2006, the Securities and Exchange Commission, or
the SEC, released Staff Accounting Bulletin No. 108
(SAB 108). SAB 108 expresses the SEC
staffs views regarding the process of quantifying and
recording financial statement misstatements. These
interpretations were issued to address diversity in practice and
the potential under current practice for the build up of
improper amounts on the balance sheet. SAB 108 expresses
the SEC staffs view that a registrants materiality
evaluation of an identified unadjusted error should quantify the
effects of the error on each financial statement and related
financial statement disclosures and that prior year
misstatements should be considered in quantifying misstatements
in current year financial statements. SAB 108 also states
that correcting prior year financial statements for immaterial
errors would not require previously filed reports to be amended.
Such correction may be made the next time the registrant files
the prior year financial statements. Registrants electing not to
restate prior periods should reflect the effects of initially
applying the guidance in SAB 108 in their annual financial
statements covering the first fiscal year ending after
November 15, 2006. The cumulative effect of the initial
application should be reported in the carrying amounts of assets
and liabilities as of the beginning of that fiscal year and the
offsetting adjustment should be made to the opening balance of
retained earnings for that year. Registrants should disclose the
nature and amount of each individual error being corrected in
the cumulative adjustment. The disclosure should also include
when and how each error arose and the fact that the errors had
previously been considered immaterial. The SEC staff encourages
early application of the guidance in SAB 108 for interim
periods of the first fiscal year ending after November 15,
2006. The implementation of SAB 108 did not have any impact
on the Companys financial statements.
In September 2006, the FASB issued SFAS No. 157,
Fair Value Measurements, (SFAS 157).
SFAS 157 defines fair value, establishes a
framework for measuring fair value in generally accepted
accounting principles, and expands disclosures about fair value
measurements. SFAS 157 does not require any new fair value
measurements but may change current practice for some entities.
SFAS 157 is effective for financial statements issued for
fiscal years beginning after November 15, 2007 and interim
periods within those years. The Company is currently evaluating
the potential impact of SFAS 157 on the Companys
financial position and results of operations.
(2) Restatement
of Financial Statements
During 2006, the Company determined that certain foreign
subsidiaries operations substantially ceased and were
effectively liquidated in 2002 and 2003. In accordance with
SFAS 52, companies are required to eliminate the cumulative
translation adjustment related to entities that have either been
sold or substantially liquidated. As a result, the Company is
restating its 2002 and 2003 financial statements to reflect the
write-off of the cumulative translation adjustment related to
substantially liquidated entities. The Company is recording
adjustments of $442,000 in 2002 and $1,345,000 in 2003 to
eliminate the cumulative translation adjustment related to these
substantially liquidated entities and is recording corresponding
increases in the Companys accumulated deficit as
49
ART TECHNOLOGY GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
of December 31, 2002 and 2003. The write-off of the
cumulative translation adjustment is recorded as a charge to the
interest and other income, net line item in the statement of
operations.
In connection with recording the adjustments to write-off the
cumulative translation adjustment for liquidated foreign
subsidiaries in 2002 and 2003, the Company is also recording
historical identified errors. In 2002 and 2003, the Company
should have recorded certain amounts as deferred revenue to
properly recognize support and maintenance revenue ratably as
the service was provided and for future discounts provided to
customers. In addition, the Company had an unsupported revenue
reserve. The Company recorded net revenue adjustments to
decrease revenue by $608,000 and $386,000 in 2002 and 2003,
respectively. Regarding expenses, the Company had over-accrued
for certain sales and marketing, general and administrative and
restructuring expenses. The net impact to recording these errors
was a decrease to operating expenses of $584,000 in 2002 and an
increase to operating expenses of $83,000 in 2003. The errors to
revenue and operating expenses were deemed to not be material
individually, or in aggregate, in 2002 and 2003. The net impact
of the restatement is to increase the Companys net loss
and net loss per basic and diluted share for 2002 from
$29.5 million to $30.0 million, and from
$0.42 per share to $0.43 per share, respectively, and
to decrease the Companys net income and net income per
basic and diluted share for 2003 from $4.2 million to
$2.4 million, and from $0.06 per share to
$0.03 per share, respectively.
The correction of these errors had no impact to the
Companys results of operations for 2004, 2005 or 2006. The
Company has recorded an adjustment of $1,787,000 to the
beginning balances at January 1, 2004 to increase
accumulated deficit and decrease cumulative translation
adjustment, which is the Companys only component of
accumulated other comprehensive loss. There was no net impact to
stockholders equity.
50
ART TECHNOLOGY GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
A summary of the significant effects of the restatement is as
follows (in thousands):
|
|
|
|
|
|
|
|
|
|
|
As of or for the
|
|
|
As of or for the
|
|
|
|
Year Ended
|
|
|
Year Ended
|
|
|
|
Dec. 31, 2003
|
|
|
Dec. 31, 2002
|
|
|
Consolidated Statement of
Operations Data:
|
|
|
|
|
|
|
|
|
License revenue as previously
reported
|
|
$
|
27,159
|
|
|
$
|
48,796
|
|
License revenue as restated
|
|
|
26,793
|
|
|
|
48,932
|
|
Service revenues as previously
reported
|
|
|
45,333
|
|
|
|
52,697
|
|
Service revenues as restated
|
|
|
45,313
|
|
|
|
51,953
|
|
Cost of services revenue as
previously reported
|
|
|
19,808
|
|
|
|
33,745
|
|
Cost of services revenue as
restated
|
|
|
19,730
|
|
|
|
33,745
|
|
Sales and marketing expenses as
previously reported
|
|
|
31,174
|
|
|
|
43,122
|
|
Sales and marketing expenses as
restated
|
|
|
31,400
|
|
|
|
42,800
|
|
General and administrative
expenses as previously reported
|
|
|
9,538
|
|
|
|
11,087
|
|
General and administrative
expenses as restated
|
|
|
9,265
|
|
|
|
10,955
|
|
Restructuring charge (benefit) as
previously reported
|
|
|
(10,476
|
)
|
|
|
19,005
|
|
Restructuring charge (benefit) as
restated
|
|
|
(10,346
|
)
|
|
|
18,875
|
|
Interest and other income, net as
previously reported
|
|
|
1,521
|
|
|
|
2,300
|
|
Interest and other income, net as
restated(1)
|
|
|
176
|
|
|
|
1,858
|
|
Net income (loss) as previously
reported
|
|
$
|
4,178
|
|
|
$
|
(29,490
|
)
|
Net income (loss) as restated
|
|
$
|
2,442
|
|
|
$
|
(29,956
|
)
|
Net income (loss) per share, basic
and diluted, as previously reported
|
|
$
|
0.06
|
|
|
$
|
(0.42
|
)
|
Net income (loss) per share, basic
and diluted, as restated
|
|
$
|
0.03
|
|
|
$
|
(0.43
|
)
|
Consolidated Balance Sheet
Data:
|
|
|
|
|
|
|
|
|
Accrued expenses as previously
reported
|
|
$
|
12,363
|
|
|
$
|
18,219
|
|
Accrued expenses as restated
|
|
|
11,590
|
|
|
|
17,364
|
|
Accrued restructuring, short term,
as previously reported
|
|
|
9,427
|
|
|
|
19,819
|
|
Accrued restructuring, short term,
as restated
|
|
|
9,427
|
|
|
|
19,689
|
|
Deferred revenue as previously
reported
|
|
|
14,915
|
|
|
|
15,674
|
|
Deferred revenue as restated
|
|
|
16,103
|
|
|
|
16,683
|
|
Accumulated deficit as previously
reported
|
|
|
(195,691
|
)
|
|
|
(199,869
|
)
|
Accumulated deficit as restated
|
|
|
(197,478
|
)
|
|
|
(200,335
|
)
|
Accumulated other comprehensive
loss as reported
|
|
|
(3,017
|
)
|
|
|
(1,711
|
)
|
Accumulated other comprehensive
loss as restated
|
|
$
|
(1,230
|
)
|
|
$
|
(1,269
|
)
|
|
|
|
(1) |
|
Reflects the write-off of cumulative translation adjustments for
entities substantially liquidated. |
(3) Disclosures
about Segments of an Enterprise
SFAS No. 131, Disclosures About Segments of an
Enterprise and Related Information, establishes standards
for reporting information regarding operating segments in annual
financial statements. SFAS No. 131 also requires
related disclosures about products and services and geographic
areas. Operating segments are identified as components of an
enterprise about which separate discrete financial information
is available for evaluation by
51
ART TECHNOLOGY GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
the chief operating decision-maker or decision-making group in
making decisions on how to allocate resources and assess
performance. The Companys chief operating decision-maker
is its executive management team. To date, ATG has viewed its
operations and managed its business as one segment with two
product offerings: software licenses and services. ATG evaluates
these product offerings based on their respective gross margins.
As a result, the financial information disclosed in the
consolidated financial statements represents all of the material
financial information related to our principal operating segment.
Revenues from sources outside of the United States were
approximately $26.2 million, $21.6 million, and
$22.9 million in 2006, 2005 and 2004, respectively.
Revenues from international sources were primarily generated
from customers located in Europe and the Asia/Pacific region.
All of the Companys product sales for the years ended
December 31, 2006, 2005 and 2004, were delivered from
ATGs headquarters located in the United States.
The following table represents the percentage of total revenues
by geographic region from customers for 2006, 2005 and 2004:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Years Ended
|
|
|
|
December 31,
|
|
|
|
2006
|
|
|
2005
|
|
|
2004
|
|
|
United States
|
|
|
75
|
%
|
|
|
76
|
%
|
|
|
67
|
%
|
Europe, Middle East and Africa
(excluding UK)
|
|
|
9
|
%
|
|
|
9
|
%
|
|
|
20
|
%
|
United Kingdom (UK)
|
|
|
14
|
%
|
|
|
14
|
%
|
|
|
10
|
%
|
Asia Pacific
|
|
|
0
|
%
|
|
|
1
|
%
|
|
|
2
|
%
|
Other
|
|
|
2
|
%
|
|
|
0
|
%
|
|
|
1
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
100
|
%
|
|
|
100
|
%
|
|
|
100
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(4) Credit
Facility and Notes Payable
Credit
Facility
At December 31, 2006, the Company maintained a
$20.0 million revolving line of credit with Silicon Valley
Bank (the Bank) which provides for borrowings of up
to the lesser of $20.0 million or 80% of eligible accounts
receivable. The line of credit bears interest at the Banks
prime rate (8.25% at December 31, 2006). The line of credit
is secured by all of ATGs tangible and intangible
intellectual and personal property and is subject to financial
covenants including liquidity coverage and profitability. In
October 2006, the Company entered into the Tenth Loan
Modification Agreement (the Tenth Amendment) with
the Bank, which amended the Amended and Restated Loan and
Security Agreement dated as of June 13, 2002. Under the
Tenth Amendment, the profitability covenant was revised to
require that the Company have net losses of not more than
$2,500,000 for the quarter ending September 30, 2006 and
net profit of at least $500,000 for each quarter ending
thereafter. The Company is required to maintain unrestricted and
unencumbered cash, which includes cash equivalents and
marketable securities, of greater than $20.0 million at the
end of each month through the duration of the credit facility.
The line of credit will expire on January 31, 2008. As of
December 31, 2006, approximately $14.7 million was
available under the facility.
In addition, to avoid additional bank fees and expenses, ATG is
required to maintain unrestricted cash, which includes cash
equivalents and marketable securities, at the Bank in an amount
equal to two times the amount of obligations outstanding, which
includes letters of credit that have been issued but not drawn
upon, under the loan agreement. In the event the Companys
cash balances at the Bank fall below this amount, then the
Company will be required to pay fees and expenses to compensate
the Bank for lost income. At December 31, 2006, the Company
was in compliance with all related financial covenants. In the
event ATG does not comply with the financial covenants within
the line of credit or defaults on any of its provisions, then
the Banks significant remedies include: (1) declaring
all obligations immediately due and payable, which could include
requiring the Company to cash collateralize our outstanding
Letters of Credit (LCs); (2) ceasing to advance money or
extend credit for the
52
ART TECHNOLOGY GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
Companys benefit; (3) applying to the obligations any
balances and deposits held by the Company or any amount held by
the Bank owing to or for the credit of ATGs account; and,
(4) putting a hold on any deposit account held as
collateral. If the agreement expires, is not extended, the Bank
will require outstanding LCs at that time to be cash secured on
terms acceptable to the Bank.
While there were no outstanding borrowings under the facility at
December 31, 2006, the Bank had issued LCs totaling
$5.3 million on ATGs behalf, which are supported by
this facility. The LCs have been issued in favor of various
landlords to secure obligations under ATGs facility leases
pursuant to leases expiring through January 2009.
Notes Payable
In connection with our November 2004 acquisition of Primus, ATG
assumed Primus outstanding obligation of approximately
$297,000 under a credit facility with a bank. This note payable
was paid in full in 2006.
(5) Income
Taxes
Income (loss) before income taxes consists of the following (in
thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Years Ended December 31,
|
|
|
|
2006
|
|
|
2005
|
|
|
2004
|
|
|
Domestic
|
|
$
|
3,176
|
|
|
$
|
5,777
|
|
|
$
|
(7,930
|
)
|
Foreign
|
|
|
3,902
|
|
|
|
24
|
|
|
|
(1,664
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
7,078
|
|
|
$
|
5,801
|
|
|
$
|
(9,594
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The provision (benefit) for income taxes shown in the
accompanying consolidated statements of operations is composed
of the following (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Years Ended December 31,
|
|
|
|
2006
|
|
|
2005
|
|
|
2004
|
|
|
Federal
|
|
|
|
|
|
|
|
|
|
|
|
|
Current
|
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
Deferred
|
|
|
|
|
|
|
|
|
|
|
|
|
State
|
|
|
|
|
|
|
|
|
|
|
|
|
Current
|
|
|
12
|
|
|
|
|
|
|
|
30
|
|
Deferred
|
|
|
|
|
|
|
|
|
|
|
|
|
Foreign
|
|
|
|
|
|
|
|
|
|
|
|
|
Current
|
|
|
(2,629
|
)
|
|
|
32
|
|
|
|
(80
|
)
|
Deferred
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
(2,617
|
)
|
|
$
|
32
|
|
|
$
|
(50
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
53
ART TECHNOLOGY GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
The provision (benefit) for income taxes differs from the
federal statutory rate due to the following:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Years Ended December 31,
|
|
|
|
2006
|
|
|
2005
|
|
|
2004
|
|
|
Federal tax at statutory rate
|
|
|
35.0
|
%
|
|
|
35.0
|
%
|
|
|
(35.0
|
)%
|
State taxes, net of federal benefit
|
|
|
0.1
|
|
|
|
0.9
|
|
|
|
0.2
|
|
Stock-based compensation
|
|
|
18.7
|
|
|
|
|
|
|
|
|
|
Meals and entertainment
|
|
|
2.1
|
|
|
|
2.5
|
|
|
|
1.8
|
|
Reversal of previously accrued
taxes
|
|
|
(36.8
|
)
|
|
|
|
|
|
|
(1.6
|
)
|
Research and development
|
|
|
(34.6
|
)
|
|
|
|
|
|
|
|
|
Other
|
|
|
6.8
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Provision before valuation
allowance
|
|
|
(8.7
|
)
|
|
|
38.4
|
|
|
|
(34.6
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Use of fully reserved net
operating losses
|
|
|
(28.0
|
)
|
|
|
(37.8
|
)
|
|
|
34.1
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(36.7
|
)%
|
|
|
0.6
|
%
|
|
|
(0.5
|
)%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The approximate tax effect of each type of temporary difference
and carryforward is as follows (in thousands):
|
|
|
|
|
|
|
|
|
|
|
December 31,
|
|
|
|
2006
|
|
|
2005
|
|
|
Deferred tax assets:
|
|
|
|
|
|
|
|
|
Restructuring
|
|
$
|
1,025
|
|
|
$
|
1,968
|
|
Depreciation and amortization
|
|
|
1,348
|
|
|
|
1,036
|
|
Reserves and accruals
|
|
|
72
|
|
|
|
758
|
|
Capitalized expenses
|
|
|
20,450
|
|
|
|
24,305
|
|
US Income tax credits
|
|
|
7,643
|
|
|
|
5,195
|
|
Net operating losses
|
|
|
93,218
|
|
|
|
88,066
|
|
|
|
|
|
|
|
|
|
|
Total gross deferred tax assets
|
|
|
123,756
|
|
|
|
121,328
|
|
Valuation allowance
|
|
|
(117,797
|
)
|
|
|
(119,384
|
)
|
|
|
|
|
|
|
|
|
|
Total deferred tax assets
|
|
|
5,959
|
|
|
|
1,944
|
|
|
|
|
|
|
|
|
|
|
Deferred tax liabilities:
|
|
|
|
|
|
|
|
|
Intangible assets
|
|
|
(5,959
|
)
|
|
|
(1,944
|
)
|
|
|
|
|
|
|
|
|
|
Net deferred tax assets
|
|
$
|
|
|
|
$
|
|
|
|
|
|
|
|
|
|
|
|
As of December 31, 2006, the Company had net operating loss
carryforwards of approximately $215.6 million for federal
income tax purposes, $170.1 million for state income tax
purposes and approximately $29.7 million for non-US income
tax purposes. Approximately $90.5 million of the federal
and state income tax net operating loss carryforwards relate to
the exercise of incentive and nonqualified stock options which
are treated as compensation deductions for federal and state
income tax purposes. Approximately $56.0 million of this
amount was tax benefited through additional paid-in capital in
2000. The Company also has available federal tax credit
carryforwards of approximately $7.6 million. If not
utilized, these carryforwards will expire at various dates
beginning 2011 through 2026. If substantial changes in the
Companys ownership have occurred or should occur, as
defined by Section 382 of the Internal Revenue Code
(the Code), there could be annual limitations on the
amount of carryforwards that can be realized in future periods.
The Company has completed several refinancings since its
inception and has incurred ownership changes, as defined under
the Code, which could have an impact on its ability to utilize
these tax credit and operating loss carryforwards.
54
ART TECHNOLOGY GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
During the year ended December 31, 2005, the Company
amended its income tax returns for 2001 through 2003 for the
purpose of capitalizing certain expenses for income tax
purposes. The amended returns resulted in a decrease to net
operating losses and an increase in capitalized expenses of
approximately $51 million. The amortization of these
capitalized costs will become deductible in income tax returns
for the years 2002 through 2013.
Included in the total net operating loss carryforwards is
approximately $50.7 million acquired as a result of the
acquisition of Primus. This amount includes only those net
operating losses which would not be limited as a result of the
acquisition of Primus triggering an ownership change pursuant to
Section 382 of the Code. If Primus incurred any ownership
changes before its acquisition by ATG, limitations imposed under
Section 382 of the Code could have an impact on the
Companys ability to utilize these net operating loss
carryforwards.
To the extent that any Primus pre-acquisition net operating
losses and other temporary differences result in future tax
benefits, such tax benefits will be recognized as a reduction in
goodwill associated with the acquisition of Primus.
Included in the total net operating loss carryforwards is
approximately $16.7 million acquired as a result of the
acquisition of eStara. This amount includes net operating losses
which may be subject to limitation pursuant to Section 382
of the Code as a result of the acquisition. If eStara incurred
any ownership changes before its acquisition by ATG, limitations
imposed under Section 382 of the Code could have an impact
on our ability to utilize these net operating loss carryforwards.
To the extent that any eStara pre-acquisition net operating
losses and other temporary differences result in future tax
benefits, such tax benefits will be recognized as a reduction in
goodwill associated with the acquisition of eStara.
As of December 31, 2006, 2005 and 2004, the Company
recorded a full valuation allowance against its deferred tax
assets due to the uncertainty surrounding the realizability of
these assets. The valuation allowance decreased
$1.6 million to $117.8 million in 2006 from
$119.4 million in 2005. The primary reason for the decrease
in the valuation allowance is due to a decrease of
$7.1 million utilized to offset current book income and an
increase of $5.5 million related to tax credits and other
temporary differences.
The Company has provided for potential amounts due in various
foreign tax jurisdictions. Judgment is required in determining
our worldwide income tax expense provision. In the ordinary
course of global business, there are many transactions and
calculations where the ultimate tax outcome is uncertain. Some
of these uncertainties arise as a consequence of cost
reimbursement arrangements among related entities. Although the
Company believes its estimates are reasonable, no assurance can
be given that the final tax outcome of these matters will not be
different from that which is reflected in the Companys
historical income tax provisions and accruals. Such differences
could have a material impact on the Companys income tax
provision and operating results in the period in which such
determination is made. During 2006, 2005 and 2004, the Company
reversed previously accrued taxes of $2.6 million, $0 and
$158,000 respectively, due to the closure of tax years under
audit and expiration of the statute of limitations in foreign
locations.
(6) Stock-Based
Compensation and Stockholders Equity
On December 16, 2004, the FASB issued SFAS No. 123
(revised 2004), Share-Based Payment (SFAS 123R).
SFAS 123R supersedes APB Opinion No. 25, Accounting
for Stock Issued to Employees, and amends
SFAS No. 95, Statement of Cash Flows.
Generally, the approach in SFAS 123R is similar to the
approach described in SFAS 123 Accounting for
Stock-Based Compensation. However, SFAS 123R requires
all share-based payments to employees, including grants of
employee stock options, to be recognized in the income statement
over their vesting period based on their fair values at the date
of grant. Pro forma disclosure is no longer an alternative.
55
ART TECHNOLOGY GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
On January 1, 2006, the Company adopted SFAS 123R
using the modified prospective method as permitted under
SFAS 123R. Under this transition method, compensation cost
recognized in fiscal 2006 includes: (a) compensation cost
for all share-based payments granted prior to but not yet vested
as of December 31, 2005, based on the grant-date fair value
estimated in accordance with the provisions of SFAS 123,
and (b) compensation cost for all share-based payments
granted subsequent to January 1, 2006, based on the
grant-date fair value estimated in accordance with the
provisions of SFAS 123R. In accordance with the modified
prospective method of adoption, the Companys results of
operations and financial position for prior periods have not
been restated.
Equity
Compensation Plans
The Company grants, or has granted, stock options and other
stock and stock-based awards under the following equity
compensation plans:
1996
Stock Option Plan
In April 1996, the Companys Board of Directors and
stockholders adopted and approved its 1996 Stock Option Plan
(the 1996 Plan). The purpose of the 1996 Plan is to
reward its employees, officers and directors and consultants and
advisors who are expected to contribute to the Companys
growth and success. The 1996 Plan provides for the award of
options to purchase shares of ATGs common stock. Stock
options granted under the 1996 Plan may be either incentive
stock options or nonqualified stock options. In 2004, the
Companys stockholders approved the amendment and
restatement of the 1996 Plan to allow for the grant of
restricted stock awards, performance share awards and other
forms of equity based compensation that were not previously
provided for in the plan and the extension of the term of the
1996 Plan to December 31, 2013. The Board of Directors
administers the 1996 Plan and has the authority to designate
participants, determine the number and type of awards to be
granted, the time at which awards are exercisable, the method of
payment and any other terms or conditions of the awards. Options
generally vest quarterly over a two to four-year period and
expire 10 years from the date of grant. While the Board
determines the prices at which options may be exercised under
the 1996 Plan, the exercise price of an incentive stock option
shall be at least 100% (110% for incentive stock options granted
to a 10% stockholder) of the fair market value of the
Companys common stock on the date of grant. As of
December 31, 2006, there were 25,600,000 shares
authorized under the 1996 Plan.
Additionally, in May 1999, the Company granted options to
purchase 150,000 shares of ATGs common stock outside
of the Companys stock option plans to an executive of ATG.
As of December 31, 2006, these options have not been
exercised.
1999
Outside Director Stock Option Plan
In May 1999, the Board of Directors and stockholders adopted and
approved its 1999 Outside Director Stock Option Plan
(Director Plan). Under the terms of the Director
Plan, non-employee directors of ATG receive nonqualified options
to purchase shares of ATGs common stock. In 2004, the
stockholders approved the amendment and restatement of the
Director Plan to allow for the grant of restricted stock awards,
performance share awards and other forms of equity based
compensation that were not previously provided for in the plan
and the extension of the term of the Director Plan to
December 31, 2013. On April 4, 2006, the Company
amended its Non-Employee Director Compensation Plan. The changes
to the plan provide that (i) the vesting of the annual
stock option awards to the Companys non-employee directors
under the plan change from quarterly vesting over one year to
quarterly vesting over two years, with full acceleration of
vesting upon a change of control of the Company; and
(ii) the amount of the Companys annual restricted
stock awards to the Companys non-employee directors under
the plan increase from shares of the Companys common stock
valued at $2,500 to shares of the Companys common stock
valued at $4,500. As of December 31, 2006, there were
800,000 shares authorized under the Director Plan.
56
ART TECHNOLOGY GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
Primus
Stock Option Plans
In connection with the acquisition of Primus Knowledge
Solutions, Inc., ATG assumed certain options, as defined in the
merger agreement, issued under the Primus Solutions 1999 Stock
Incentive Compensation Plan (the Primus 1999 Plan)
and the Primus Solutions 1999 Non-Officer Employee Stock
Compensation Plan (Primus 1999 NESC Plan) (together
the Primus Stock Option Plans) subject to the same
terms and conditions as set forth in the Primus Stock Option
Plans, adjusted to give effect to the conversion under the terms
of the merger agreement. All options that ATG assumed pursuant
to the Primus Stock Option Plans were fully vested upon the
closing of the acquisition and converted to options to acquire
ATG common stock. Options granted under the Primus Stock Option
Plans typically vest over four years and remain exercisable for
a period not to exceed ten years. No additional options will be
granted under the Primus 1999 NESC Plan.
1999
Employee Stock Purchase Plan
In May 1999, the Board of Directors and stockholders adopted and
approved the 1999 Employee Stock Purchase Plan (the Stock
Purchase Plan). On April 4, 2006, the Board of
Directors adopted, subject to stockholder approval, an amendment
to the Stock Purchase Plan to increase the shares available for
issuance by 1,500,000. The stockholders approved the amendment
on May 23, 2006. The Stock Purchase Plan, as amended,
authorizes the issuance of up to a total of
6,500,000 shares of ATGs common stock to
participating employees. All of the Companys employees,
including directors who are also employees, are eligible to
participate in the Stock Purchase Plan. Employees who would
immediately after the grant own 5% or more of the total combined
voting power or value of our stock are not eligible to
participate. During each designated quarterly offering period,
each eligible employee may deduct between 1% and 10% of base pay
to purchase shares of our common stock. The purchase price is
85% of the closing market price of our common stock on either:
(1) the first business day of the offering period or
(2) the last business day of the offering period, whichever
is lower. Under APB Opinion No. 25, the Company was not
required to recognize stock-based compensation expense for the
cost of stock options or shares issued under the Companys
Stock Purchase Plan. Upon adoption of SFAS 123R, the
Company began recording stock-based compensation expense related
to the Stock Purchase Plan.
Grant-Date
Fair Value
The Company uses the Black-Scholes option pricing model to
calculate the grant-date fair value of an award. The fair value
of options granted during the years ended December 31,
2006, 2005 and 2004 were calculated using the following
estimated weighted average assumptions:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31,
|
|
Stock Options
|
|
2006
|
|
|
2005
|
|
|
2004
|
|
|
Options granted (in thousands)
|
|
|
4,540
|
|
|
|
3,839
|
|
|
|
8,750
|
|
Weighted-average exercise price
|
|
$
|
2.64
|
|
|
$
|
1.22
|
|
|
$
|
1.06
|
|
Weighted-average grant date
fair-value
|
|
$
|
2.28
|
|
|
$
|
0.83
|
|
|
$
|
0.72
|
|
Assumptions:
|
|
|
|
|
|
|
|
|
|
|
|
|
Expected volatility
|
|
|
113.2
|
%
|
|
|
93.5
|
%
|
|
|
98.1
|
%
|
Expected term (in years)
|
|
|
6.25
|
|
|
|
4.11
|
|
|
|
4.02
|
|
Risk-free interest rate
|
|
|
4.68
|
%
|
|
|
3.71
|
%
|
|
|
3.24
|
%
|
Expected dividend yield
|
|
|
0.00
|
%
|
|
|
0.00
|
%
|
|
|
0.00
|
%
|
Expected volatility The Company has determined that
the historical volatility of its common stock is the best
indicator of the future volatility of its common stock, and
therefore uses historical volatility to estimate the grant-date
fair value of stock options. Historical volatility is calculated
for a period that is commensurate with the stock options
expected term.
57
ART TECHNOLOGY GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
Expected term In fiscal 2006, the Company was unable
to use historical employee exercise and option expiration data
to estimate the expected term assumption for the Black-Scholes
grant-date fair value calculation. As such, the Company has
utilized the safe harbor provision in Staff Accounting
Bulletin No. 107 to determine the expected term of its
stock options. With respect to options granted on or before
December 31, 2005, the Company was able to use employee
exercise and option expiration data to estimate the expected
term assumption for the Black-Scholes grant-date valuation.
Risk-free interest rate The yield on zero-coupon
U.S. Treasury securities with a maturity that is
commensurate with the expected term of the option is used as the
risk-free interest rate.
Expected dividend yield The Companys Board of
Directors has never declared dividends nor does it expect to
issue dividends.
Stock-Based
Compensation Expense
The Company uses the straight-line attribution method to
recognize stock-based compensation expense for stock options.
The amount of stock-based compensation recognized during a
period is based on the value of the portion of the awards that
are ultimately expected to vest. SFAS 123R requires
forfeitures to be estimated at the time of grant and revised, if
necessary, in subsequent periods if actual forfeitures differ
from those estimates. The term forfeitures is
distinct from cancellations or
expirations and represents only the unvested portion
of the surrendered option. The Company has applied an annual
forfeiture rate of 6.5% to all unvested options as of
December 31, 2006. This analysis is re-evaluated quarterly
and the forfeiture rate is adjusted as necessary. Ultimately,
the actual expense recognized over the vesting period will only
be for those shares that vest.
The adoption of SFAS 123R on January 1, 2006 had the
following impact for the year ended December 31, 2006:
operating profit before income taxes and net income were each
lower by $3.6 million, and basic and diluted earnings per
share were lower by $0.04 and $0.03, respectively, than if the
Company had continued to account for share based compensation
under APB 25.
The following table details the effect on net income (loss) and
net income (loss) per share had stock-based compensation expense
been recorded for the years ended December 31, 2005 and
2004 based on the fair-value method under SFAS 123,
Accounting for Stock-Based Compensation.
|
|
|
|
|
|
|
|
|
|
|
Year Ending December 31,
|
|
|
|
2005
|
|
|
2004
|
|
|
Net income (loss) as reported
|
|
$
|
5,769
|
|
|
$
|
(9,544
|
)
|
Add: Stock-based compensation
expense included in
|
|
|
|
|
|
|
|
|
reported net income (loss)
|
|
|
|
|
|
|
11
|
|
Deduct: Total stock-based
compensation expense
|
|
|
|
|
|
|
|
|
determined under fair value method
for all awards
|
|
|
(2,553
|
)
|
|
|
(15,659
|
)
|
|
|
|
|
|
|
|
|
|
Pro forma net income (loss)
|
|
$
|
3,216
|
|
|
$
|
(25,192
|
)
|
|
|
|
|
|
|
|
|
|
Basic and diluted net income
(loss) per share:
|
|
|
|
|
|
|
|
|
As reported
|
|
$
|
0.05
|
|
|
$
|
(0.12
|
)
|
|
|
|
|
|
|
|
|
|
Pro forma net income (loss) per
share:
|
|
|
|
|
|
|
|
|
Basic
|
|
$
|
0.03
|
|
|
$
|
(0.32
|
)
|
|
|
|
|
|
|
|
|
|
Diluted
|
|
$
|
0.03
|
|
|
$
|
(0.32
|
)
|
|
|
|
|
|
|
|
|
|
58
ART TECHNOLOGY GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
Stock-Based
Compensation Activity
A summary of the activity under the Companys stock option
plans as of December 31, 2006 and changes during the year
then ended is presented below:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted
|
|
|
Weighted
|
|
|
|
|
|
|
|
|
|
Average
|
|
|
Average
|
|
|
|
|
|
|
|
|
|
Exercise
|
|
|
Remaining
|
|
|
Aggregate
|
|
|
|
Number
|
|
|
Price
|
|
|
Contractual
|
|
|
Intrinsic
|
|
|
|
of Options
|
|
|
Per Share
|
|
|
Term in Years
|
|
|
Value
|
|
|
Outstanding, December 31, 2005
|
|
|
13,244
|
|
|
|
2.33
|
|
|
|
7.5
|
|
|
|
|
|
Granted
|
|
|
4,540
|
|
|
|
2.64
|
|
|
|
|
|
|
|
|
|
Exercised
|
|
|
(1,474
|
)
|
|
|
1.04
|
|
|
|
|
|
|
|
|
|
Cancelled
|
|
|
(1,081
|
)
|
|
|
1.75
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Outstanding, December 31, 2006
|
|
|
15,229
|
|
|
$
|
2.55
|
|
|
|
7.7
|
|
|
$
|
11,742
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Exercisable, December 31, 2006
|
|
|
8,278
|
|
|
$
|
3.00
|
|
|
|
6.8
|
|
|
$
|
8,090
|
|
Options vested or expected to vest
at December 31,
2006(1)
|
|
|
14,614
|
|
|
$
|
2.56
|
|
|
|
7.6
|
|
|
$
|
11,489
|
|
|
|
(1) |
In addition to the vested options, the Company expects a portion
of the unvested options to vest at some point in the future.
Options expected to vest are calculated by applying an estimated
forfeiture rate to the unvested options.
|
During the years ended December 31, 2006, 2005 and 2004,
the total intrinsic value of options exercised (i.e. the
difference between the market price at exercise and the price
paid by the employee to exercise the options) was
$2.5 million, $1.2 million and $0.5 million,
respectively. The total amount of cash received from exercise
was $1.5 million, $1.4 million and $0.5 million
in 2006, 2005 and 2004, respectively.
A summary of the Companys restricted stock award activity
as of December 31, 2006 and changes during the year then
ended is presented below:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted
|
|
|
|
Restricted
|
|
|
Average Grant
|
|
|
|
Shares
|
|
|
Date Fair Value
|
|
|
|
Outstanding
|
|
|
Per Share
|
|
|
Non-Vested shares outstanding
at December 31,
2005
|
|
|
|
|
|
|
|
|
Awards granted
|
|
|
439
|
|
|
$
|
2.43
|
|
Restrictions lapsed
|
|
|
(85
|
)
|
|
|
2.05
|
|
Awards forfeited
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Non-Vested shares outstanding
at December 31, 2006
|
|
|
354
|
|
|
$
|
2.52
|
|
|
|
|
|
|
|
|
|
|
As of December 31, 2006, there was $10.9 million of
total unrecognized compensation cost related to unvested
share-based awards including stock options and restricted
shares. This cost is expected to be recognized over a
weighted-average period of 1.5 years.
Adoption
of Shareholders Rights Plan
On September 26, 2001, our Board of Directors adopted a
Shareholder Rights Plan (the Shareholder Rights
Plan) pursuant to which preferred stock purchase rights
were distributed to stockholders as a dividend at the rate of
one Right for each share of common stock held of record as of
the close of business on October 9, 2001. The Shareholder
Rights Plan was adopted to enable the Board of Directors to
protect us against any takeover attempt that the Board considers
not to be in the best interests of stockholders.
59
ART TECHNOLOGY GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
When exercisable, each Right will entitle stockholders to buy
one one-thousandth of a share of Series A Junior
Participating Preferred Stock at an exercise price of
$15.00 per Right. Subject to certain exceptions, the Rights
will be exercisable after a person or group (except for certain
excluded persons) acquires beneficial ownership of 15% or more
of our outstanding common stock or undertakes a tender or
exchange offer which, if consummated, would result in that
person or group beneficially owning 15% or more of our
outstanding common stock. The Rights will be redeemable by the
Board at any time before a person or group acquires 15% or more
of our outstanding common stock and under certain other
circumstances at a redemption price of $.001 per Right.
(7) Acquisitions
Acquisition
of eStara, Inc.
On October 2, 2006, the Company acquired all of the
outstanding shares of common stock of privately held eStara,
Inc., a provider of proactive conversion solutions for enhancing
online sales and support initiatives. The aggregate purchase
price was approximately $49.8 million, which consisted of
$39.2 million of ATG common stock, $2.2 million of
transaction costs, which primarily consisted of fees paid for
financial advisory, legal and accounting services, a transaction
bonus to eStara employees of $4.8 million and $3.6
million of cash in lieu of issuing ATG common stock to non
accredited investors. The Company issued approximately
14.6 million shares of ATG common stock, the fair value of
which was based upon a
five-day
average of the closing price two days before and two days after
the terms of the acquisition were agreed to and publicly
announced. In addition, the Company issued 0.3 million
shares of restricted stock were issued, which will be recognized
as stock-based compensation expense over the vesting term. The
excess of the purchase price over the net assets acquired
resulted in goodwill of $32.1 million.
The Company may also pay up to an additional $6.0 million
in potential earn-out payments to the eStara non-employee
stockholders and employee stockholders as of October 2,
2006 based on eStara revenues for fiscal 2007. If eStaras
revenues exceed $25.0 million but are less than
$30 million, ATG will be required to pay $2.0 million,
of which $0.6 million will be distributed to the
stockholders and $1.4 million will be distributed to
employee stockholders. In the event eStaras revenues
exceed $30.0 million, ATG will be required to pay an
additional $4.0 million, of which $2.5 million will be
distributed to non-employee stockholders and $1.5 million
will be distributed to employee stockholders. The payments to
stockholders will be recorded as additional purchase price, and
the amounts paid to employee stockholders will be accounted for
as compensation expense in the Companys income statement
to the extent it relates to amounts paid to eStara employee
stockholders in excess of that paid to non-employee
stockholders. These payments may be made, at the Companys
option, in the form of cash or stock, subject to the applicable
rules of the Nasdaq stock market and applicable limitations
under the tax rules to permit the transaction to be categorized
as a tax free reorganization.
In determining the purchase price allocation, the Company
considered, among other factors, the expected use of the
acquired assets, historical demand and estimates of future
demand of eStaras products and services. The fair value of
intangible assets was primarily determined using the income
approach, which is based upon a forecast of the expected future
net cash flows associated with the assets. These net cash flows
were then discounted to a present value by applying a discount
rate of 14% to 16%. The discount rate was determined after
consideration of eStaras weighted average cost of capital
and the risk associated with achieving forecast sales related to
the technology and assets acquired from eStara.
60
ART TECHNOLOGY GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
The preliminary purchase price was allocated based on estimated
fair values as of the acquisition date. The following represents
the allocation of the purchase price (in thousands):
|
|
|
|
|
Cash
|
|
$
|
2,699
|
|
Accounts receivable
|
|
|
3,671
|
|
Other current assets
|
|
|
188
|
|
Property, plant and equipment
|
|
|
167
|
|
Goodwill
|
|
|
32,071
|
|
Intangible assets:
|
|
|
|
|
Customer relationship (estimated
useful life of 4 years)
|
|
|
7,300
|
|
Purchased technology (estimated
useful life of 5 years)
|
|
|
5,300
|
|
Trademarks (estimated useful life
of 5 years)
|
|
|
1,400
|
|
|
|
|
|
|
Total intangible assets
|
|
|
14,000
|
|
Other long-term assets
|
|
|
37
|
|
Accounts payable
|
|
|
(517
|
)
|
Deferred revenue
|
|
|
(679
|
)
|
Accrued and other expenses
|
|
|
(1,821
|
)
|
|
|
|
|
|
Total purchase price
|
|
$
|
49,816
|
|
|
|
|
|
|
The consolidated financial statements include the results of
eStara from the date of acquisition. The following pro forma
information assumes the eStara acquisition occurred as of the
beginning of each year presented after giving effect to certain
adjustments, primarily amortization of intangible assets and
reduction of revenues for the fair market value adjustment to
eStaras deferred revenue balance. The pro forma results
are not necessarily indicative of the results of operations that
actually would have occurred had the acquisition been in effect
for the periods presented or of results that may occur in the
future (in thousands, except per share data):
|
|
|
|
|
|
|
|
|
|
|
December 31,
|
|
|
|
2006
|
|
|
2005
|
|
|
|
(Unaudited)
|
|
|
Revenue
|
|
$
|
113,935
|
|
|
$
|
98,078
|
|
Net income
|
|
$
|
7,111
|
|
|
$
|
2,591
|
|
Net income per share
basic
|
|
$
|
0.06
|
|
|
$
|
0.02
|
|
Net income per share
assuming dilution
|
|
$
|
0.05
|
|
|
$
|
0.02
|
|
Intangible assets acquired in the eStara acquisition are being
amortized based on the pattern in which the economic benefits of
the intangible assets are being utilized or on a straight-line
basis. The total weighted average amortization period for the
intangible assets is 4.5 years.
Acquisition
of Primus Knowledge Solutions, Inc.
Effective November 1, 2004, the Company acquired all of the
outstanding shares of common stock of Primus Knowledge
Solutions, Inc. In connection with the Primus acquisition, the
Company commenced integration activities which resulted in
involuntary terminations and lease and contract terminations.
The liability for involuntary termination benefits was for 49
employees, primarily in general and administrative and research
61
ART TECHNOLOGY GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
and development functions. The following summarizes the
restructuring obligations recognized in connection with the
Primus acquisition and activity to date (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
December 31, 2006
|
|
|
|
Involuntary
|
|
|
|
|
|
|
|
|
|
Termination
|
|
|
Facilities
|
|
|
|
|
|
|
Benefits
|
|
|
Related Costs
|
|
|
Totals
|
|
|
Obligations
|
|
$
|
1,682
|
|
|
$
|
376
|
|
|
$
|
2,058
|
|
Payments
|
|
|
(464
|
)
|
|
|
(97
|
)
|
|
|
(561
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance December 31, 2004
|
|
|
1,218
|
|
|
|
279
|
|
|
|
1,497
|
|
Payments
|
|
|
(891
|
)
|
|
|
(279
|
)
|
|
|
(1,170
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance December 31, 2005
|
|
|
327
|
|
|
|
0
|
|
|
|
327
|
|
Payments
|
|
|
(327
|
)
|
|
|
0
|
|
|
|
(327
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance December 31, 2006
|
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(8) Commitments
and Contingencies
Leases
ATG has offices, primarily for sales and support personnel, in
six domestic locations as well as four foreign countries. At
December 31, 2006, ATGs bank had issued
$5.3 million of LCs under ATGs line of credit in
favor of various landlords and equipment leasing companies to
secure obligations under our leases, which expire from 2006
through 2011.
The Company has both operating and capital lease obligations
related to equipment leases. Some of our equipment leases
include purchase options at the end of the lease term.
The future minimum payments of our facility leases and operating
and capital lease obligations as of December 31, 2006, were
as follows (in thousands):
|
|
|
|
|
|
|
|
|
|
|
Capital Leases
|
|
|
Operating Leases
|
|
|
Years Ending
December 31,
|
|
|
|
|
|
|
|
|
2007
|
|
$
|
59
|
|
|
$
|
4,823
|
|
2008
|
|
|
|
|
|
|
4,326
|
|
2009
|
|
|
|
|
|
|
2,493
|
|
2010
|
|
|
|
|
|
|
1,877
|
|
2011
|
|
|
|
|
|
|
1,697
|
|
|
|
|
|
|
|
|
|
|
Total future minimum lease payments
|
|
|
59
|
|
|
$
|
15,216
|
|
|
|
|
|
|
|
|
|
|
Less amount representing interest
|
|
|
3
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Present value of minimum lease
payments
|
|
$
|
56
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Of the $15.2 million in future minimum lease payments,
$4.7 million is included in the accrued restructuring
charges. The $4.7 million was reduced to $2.2 million
of restructuring accruals after taking into consideration
estimated sublease income, contracted sublease income, vacancy
periods and operating costs of the various subleased properties
(see Note 11).
Rent expense included in the accompanying statements of
operations was approximately $2.7 million,
$3.6 million and $4.4 million for the years ended
December 31, 2006, 2005 and 2004, respectively.
62
ART TECHNOLOGY GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
Indemnifications
The Company frequently has agreed to indemnification provisions
in software license agreements with our customers and in our
real estate leases in the ordinary course of our business.
With respect to software license agreements, these
indemnifications generally include provisions indemnifying the
customer against losses, expenses, and liabilities from damages
that may be awarded against the customer in the event the
Companys software is found to infringe upon the
intellectual property of others. The software license agreements
generally limit the scope of and remedies for such
indemnification obligations in a variety of industry- standard
respects. The Company relies on a combination of patent,
copyright, trademark and trade secret laws and restrictions on
disclosure to protect our intellectual property rights. The
Company believes such laws and practices, along with our
internal development processes and other policies and practices
limit its exposure related to the indemnification provisions of
the software license agreements. However, in recent years there
has been significant litigation in the United States involving
patents and other intellectual property rights. Companies
providing Internet-related products and services are
increasingly bringing and becoming subject to suits alleging
infringement of proprietary rights, particularly patent rights.
From time to time, the Companys customers have been
subject to third party patent claims, and the Company has agreed
to indemnify these customers from claims to the extent the
claims relate to our products.
With respect to real estate lease agreements or settlement
agreements with landlords, these indemnifications typically
apply to claims asserted against the landlord relating to
personal injury and property damage at the leased premises or to
certain breaches of the Companys contractual obligations
or representations and warranties included in the settlement
agreements. These indemnification provisions generally survive
the termination of the respective agreements, although the
provision generally has the most relevance during the contract
term and for a short period of time thereafter. The maximum
potential amount of future payments that the Company could be
required to make under these indemnification provisions is
unlimited. The Company has purchased insurance that reduces our
monetary exposure for landlord indemnifications.
|
|
(9)
|
Employee
Benefit Plan
|
The Company sponsors a 401(k) plan covering substantially all
employees. The 401(k) Plan allows eligible employees to make
salary-deferred contributions of up to 15% of their annual
compensation, as defined, subject to certain Internal Revenue
Service limitations. The Company may contribute to the 401(k)
Plan at its discretion. However, no contributions were made in
2006, 2005 or 2004 .
Accrued expenses at December 31, 2006 and 2005 consisted of
the following (in thousands):
|
|
|
|
|
|
|
|
|
|
|
2006
|
|
|
2005
|
|
|
Compensation and benefits
|
|
$
|
6,609
|
|
|
$
|
5,130
|
|
Taxes
|
|
|
1,560
|
|
|
|
4,172
|
|
Other
|
|
|
7,622
|
|
|
|
4,057
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
15,791
|
|
|
$
|
13,359
|
|
|
|
|
|
|
|
|
|
|
During the years ended 2006, 2005, 2004, 2003, 2002 and 2001,
the Company recorded net restructuring charges/(benefits) of
$(0.1) million, $0.9 million, $3.6 million,
$(10.3) million, $18.9 million and $75.6 million,
respectively, primarily as a result of the global slowdown in
information technology spending. The significant drop in demand
in 2001 for technology oriented products, particularly internet
related technologies, caused management
63
ART TECHNOLOGY GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
to significantly scale back the Companys prior growth
plans, resulting in a significant reduction in the
Companys workforce and consolidation of the Companys
facilities in 2001. Throughout 2002, the continued softness of
demand for technology products, as well as near term revenue
projections, caused management to further evaluate the
Companys marketing, sales and service resource
capabilities as well as its overall general and administrative
cost structure, which resulted in additional restructuring
actions being taken in 2002. These actions resulted in a further
reduction in headcount and consolidation of additional
facilities. In 2003, as the Company continued to refine its
business strategy and to consider future revenue opportunities,
the Company took further restructuring actions to reduce costs,
including product development costs, to help move the Company
towards profitability. In 2004, the Companys restructuring
activities were undertaken to align the Companys headcount
more closely with managements revenue projections and
changing staff requirements as a result of strategic product
realignments and the Companys acquisition of Primus, and
to eliminate facilities that were not needed to efficiently run
the Companys operations. In 2005, the Companys
restructuring was to align workforce and facilities needs. The
net benefit recorded in 2006 was related to adjustments to
charges recorded in 2001 and 2003. The charges referred to above
primarily pertain to the closure and consolidation of excess
facilities, impairment of assets, employee severance benefits,
and the settlement of certain contractual obligations. The 2005,
2004 and 2003 charges were recorded in accordance with
SFAS No. 146, Accounting for Costs Associated with
Exit or Disposal Activities, SFAS No. 88,
Employers Accounting for Settlements and Curtailments
of Defined Benefit Pension Plans and for Termination Benefits
and Staff Accounting Bulletin (SAB) No. 100,
Restructuring and Impairment Charges. The 2002 and 2001
charges were recorded in accordance with Emerging Issues Task
Force Issue
No. 94-3,
Liability Recognition for Certain Employee Termination
Benefits and Other Costs to Exit an Activity (Including Certain
Costs Incurred in a Restructuring), SFAS 88 and
SAB 100. During the years 2001 through 2006, the Company
has recorded adjustments to previously recorded restructuring
charges to reflect changes in estimates and assumptions.
As of December 31, 2006, the Company had an accrued
restructuring liability of $2.2 million related to facility
closure costs for net lease obligations. The long-term portion
of the accrued restructuring liability was $1.0 million.
A summary of the Companys charges and activity in its
restructuring accruals is as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Restructuring Charge (Benefit)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(In thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2006
|
|
|
2005
|
|
|
2004
|
|
|
2003
|
|
|
2002
|
|
|
2001
|
|
|
Total
|
|
|
Facility-related costs and
impairments
|
|
$
|
|
|
|
$
|
1,817
|
|
|
$
|
1,488
|
|
|
$
|
1,464
|
|
|
$
|
14,634
|
|
|
$
|
59,418
|
|
|
$
|
78,821
|
|
Employee severance and benefits
costs
|
|
|
|
|
|
|
|
|
|
|
2,461
|
|
|
|
1,236
|
|
|
|
3,553
|
|
|
|
7,938
|
|
|
|
15,188
|
|
Asset impairments
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4,205
|
|
|
|
4,205
|
|
Exchangeable share settlement
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,263
|
|
|
|
1,263
|
|
Marketing costs
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
851
|
|
|
|
851
|
|
Legal and accounting
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
405
|
|
|
|
405
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Restructuring charge
|
|
|
|
|
|
|
1,817
|
|
|
|
3,949
|
|
|
|
2,700
|
|
|
|
18,187
|
|
|
|
74,080
|
|
|
|
100,733
|
|
Adjustments to 2001 action, net
|
|
|
545
|
|
|
|
(792
|
)
|
|
|
(60
|
)
|
|
|
(8,338
|
)
|
|
|
688
|
|
|
|
1,500
|
|
|
|
(6,457
|
)
|
Adjustments to 2002 action, net
|
|
|
|
|
|
|
43
|
|
|
|
(242
|
)
|
|
|
(5,118
|
)
|
|
|
|
|
|
|
|
|
|
|
(5,317
|
)
|
Adjustments to 2003 action, net
|
|
|
(607
|
)
|
|
|
74
|
|
|
|
(77
|
)
|
|
|
410
|
|
|
|
|
|
|
|
|
|
|
|
(200
|
)
|
Adjustments to 2004 action, net
|
|
|
|
|
|
|
(257
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(257
|
)
|
Adjustments to 2005 action, net
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total adjustments to prior actions,
net
|
|
|
(62
|
)
|
|
|
(932
|
)
|
|
|
(379
|
)
|
|
|
(13,046
|
)
|
|
|
688
|
|
|
|
1,500
|
|
|
|
(12,231
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Restructuring charge (benefit)
|
|
$
|
(62
|
)
|
|
$
|
885
|
|
|
$
|
3,570
|
|
|
$
|
(10,346
|
)
|
|
$
|
18,875
|
|
|
$
|
75,580
|
|
|
$
|
88,502
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
64
ART TECHNOLOGY GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Restructuring Accrual
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(In thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2005
|
|
|
2004
|
|
|
2003
|
|
|
2002
|
|
|
2001
|
|
|
Total
|
|
|
Restructuring charges for the year
ended December 31, 2001
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
74,080
|
|
|
$
|
74,080
|
|
Changes in estimates resulting in
additional charges
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
9,700
|
|
|
|
9,700
|
|
Changes in estimates reducing
accruals
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(8,200
|
)
|
|
|
(8,200
|
)
|
Write-offs
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(16,219
|
)
|
|
|
(16,219
|
)
|
Facility related payments
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(6,308
|
)
|
|
|
(6,308
|
)
|
Employee related payments
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(6,748
|
)
|
|
|
(6,748
|
)
|
Legal and accounting payments
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(232
|
)
|
|
|
(232
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance December 31, 2001
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
46,073
|
|
|
$
|
46,073
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Restructuring charges for the year
ended December 31, 2002
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
18,187
|
|
|
|
|
|
|
$
|
18,187
|
|
Changes in estimates resulting in
additional charges
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2,207
|
|
|
|
2,207
|
|
Changes in estimates reducing
accruals
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1,389
|
)
|
|
|
(1,389
|
)
|
Write-offs
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(2,613
|
)
|
|
|
|
|
|
|
(2,613
|
)
|
Facility related payments
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(9,016
|
)
|
|
|
(9,016
|
)
|
Employee related payments
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(920
|
)
|
|
|
(920
|
)
|
Legal and accounting payments
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(173
|
)
|
|
|
(173
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance December 31, 2002
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
15,574
|
|
|
$
|
36,782
|
|
|
$
|
52,356
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Restructuring charges for the year
ended December 31, 2003
|
|
|
|
|
|
|
|
|
|
$
|
2,700
|
|
|
|
|
|
|
|
|
|
|
$
|
2,700
|
|
Changes in estimates resulting in
additional charges
|
|
|
|
|
|
|
|
|
|
|
494
|
|
|
|
4,421
|
|
|
|
2,998
|
|
|
|
7,913
|
|
Changes in estimates reducing
accruals
|
|
|
|
|
|
|
|
|
|
|
(84
|
)
|
|
|
(7,321
|
)
|
|
|
(11,466
|
)
|
|
|
(18,871
|
)
|
Write-offs
|
|
|
|
|
|
|
|
|
|
|
(371
|
)
|
|
|
|
|
|
|
536
|
|
|
|
165
|
|
Facility related payments
|
|
|
|
|
|
|
|
|
|
|
(70
|
)
|
|
|
(2,993
|
)
|
|
|
(18,143
|
)
|
|
|
(21,206
|
)
|
Employee related payments
|
|
|
|
|
|
|
|
|
|
|
(994
|
)
|
|
|
(3,794
|
)
|
|
|
(270
|
)
|
|
|
(5,058
|
)
|
Legal and accounting payments
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance December 31, 2003
|
|
|
|
|
|
|
|
|
|
$
|
1,675
|
|
|
$
|
5,887
|
|
|
$
|
10,437
|
|
|
$
|
17,999
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Restructuring charges for the year
ended December 31, 2004
|
|
|
|
|
|
$
|
3,949
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
3,949
|
|
Changes in estimates resulting in
additional charges
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
112
|
|
|
|
112
|
|
Changes in estimates reducing
accruals
|
|
|
|
|
|
|
|
|
|
|
(77
|
)
|
|
|
(242
|
)
|
|
|
(172
|
)
|
|
|
(491
|
)
|
Write-offs
|
|
|
|
|
|
|
(667
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(667
|
)
|
Facility related payments
|
|
|
|
|
|
|
(71
|
)
|
|
|
(179
|
)
|
|
|
(4,490
|
)
|
|
|
(4,066
|
)
|
|
|
(8,806
|
)
|
Employee related payments
|
|
|
|
|
|
|
(892
|
)
|
|
|
(46
|
)
|
|
|
|
|
|
|
|
|
|
|
(938
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance December 31, 2004
|
|
|
|
|
|
$
|
2,319
|
|
|
$
|
1,373
|
|
|
$
|
1,155
|
|
|
$
|
6,311
|
|
|
$
|
11,158
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Restructuring charges for the year
ended December 31, 2005
|
|
$
|
1,817
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
1,817
|
|
Changes in estimates resulting in
additional charges
|
|
|
|
|
|
|
200
|
|
|
|
98
|
|
|
|
91
|
|
|
|
|
|
|
|
389
|
|
Changes in estimates reducing
accruals
|
|
|
|
|
|
|
(457
|
)
|
|
|
(24
|
)
|
|
|
(48
|
)
|
|
|
(792
|
)
|
|
|
(1,321
|
)
|
Write-offs
|
|
|
(1,167
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1,167
|
)
|
Facility related payments
|
|
|
(264
|
)
|
|
|
(317
|
)
|
|
|
(428
|
)
|
|
|
(548
|
)
|
|
|
(2,676
|
)
|
|
|
(4,233
|
)
|
Employee related payments
|
|
|
|
|
|
|
(1,546
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1,546
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance December 31, 2005
|
|
$
|
386
|
|
|
$
|
199
|
|
|
$
|
1,019
|
|
|
$
|
650
|
|
|
$
|
2,843
|
|
|
$
|
5,097
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
65
ART TECHNOLOGY GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Restructuring Accrual
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(In thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2005
|
|
|
2004
|
|
|
2003
|
|
|
2002
|
|
|
2001
|
|
|
Total
|
|
|
Changes in estimates reducing
accruals
|
|
|
|
|
|
|
|
|
|
$
|
(607
|
)
|
|
|
|
|
|
$
|
(147
|
)
|
|
$
|
(754
|
)
|
Facility related payments
|
|
|
(123
|
)
|
|
|
(143
|
)
|
|
|
(223
|
)
|
|
|
(333
|
)
|
|
|
(1,596
|
)
|
|
|
(2,418
|
)
|
Foreign Currency exchange
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(317
|
)
|
|
|
|
|
|
|
(317
|
)
|
Employee related payments
|
|
|
|
|
|
|
(56
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(56
|
)
|
Changes in estimates resulting in
additional accruals/charges
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
692
|
|
|
|
692
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance December 31, 2006
|
|
$
|
263
|
|
|
$
|
|
|
|
$
|
189
|
|
|
$
|
|
|
|
$
|
1,792
|
|
|
$
|
2,244
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2006
Activity
In 2006, the Company recorded a net benefit of $62,000 based on
recording adjustments to previously recorded restructuring
charges. The adjustments primarily related to adjusting the
estimates of
sub-lease
income and vacancy periods for two leases. The Company recorded
a reversal of $607,000 due to executing
sub-lease
agreements for one location offset by additional charges of
$692,000 for another location to adjust its estimates of
sub-lease
income. In addition, the Company reversed $147,000 of other
accruals no longer needed.
Regarding the additional charges for one lease obligation of
$692,000, in the second quarter of 2006, the Company received
notification from its
sub-tenant
at the Waltham premises that it could no longer fulfill its full
payment obligation. The Company originally recorded the Waltham
facility charge in connection with its 2001 restructuring
action. The Company entered into a settlement agreement with the
Waltham subtenant and received $710,000 in lease cancellation
fees. As a result of this event, the Company re-evaluated its
net lease obligation and adjusted its assumptions for
sub-lease
income and vacancy periods based on current market data,
resulting in a charge of $509,000 in the second quarter of 2006.
In addition, the Company assumed the subtenants obligation
to restore the Waltham facility to the facilitys original
condition. The subtenant had previously issued a
$1.0 million letter of credit to the Companys
landlord to secure the restoration of the facilities to the
original condition. As part of the settlement agreement with the
subtenant and Landlord, the Company received the proceeds from
this $1.0 million letter of credit. This amount is recorded
in accrued expenses at December 31, 2006 and will be
expended in connection with the returning of the facilities back
to their original condition. The Company in return issued a
$1.0 million letter of credit to the Waltham landlord to
secure the restoration obligation. In the fourth quarter of
2006, the Company updated its assumptions based on agreeing to
terms with a
sub-tenant,
although the agreement has not yet been executed. As a result,
the Company recorded an additional charge in the fourth quarter
of $183,000.
2005
Actions
During 2005, the Company recorded net restructuring charges of
$885,000, comprised of costs related to new actions of
$1.8 million and net credits resulting from changes in
estimates related to prior actions of $0.9 million.
During the second quarter of 2005, the Company relocated its
San Francisco office and reduced the amount of space it
occupies in San Francisco. As a result of this action and
other minor facilities charges, the Company recorded
facilities-related charges of $1.8 million primarily
comprised of $1.0 million of deferred rent related to the
abandoned space, $118,000 of leasehold improvements written down
to their fair value, and $557,000 for an operating lease related
to idle office space vacated, net of assumptions for sublease
income based on an executed sublease agreement. In accordance
with SFAS 146, the Company recorded the net present value
of the net lease obligation.
During 2005, the Company recorded an adjustment to its estimates
of sublease costs related to the 2001 actions, resulting in a
credit to the restructuring charge of $792,000. The change in
estimate was primarily due to the
66
ART TECHNOLOGY GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
Companys continued evaluation of the financial condition
of its subtenants and their ability to meet their financial
obligations to the Company. The Company also re-evaluated is
accruals related to the 2002 action resulting in a reversal of
$48,000 primarily due to executing a
sub-lease
agreement. Offsetting this reversal, the Company recorded
additional charges of $91,000 due to changes in its sublease
assumptions at one location. In addition, the Company recorded
an additional charge of $98,000 for a lease included in the 2003
action pertaining to its estimate of sublease income offset by a
reversal of $24,000 for employee severance. The Company also
recorded a net reversal for the 2004 action of $257,000 as
discussed below.
2004
Actions
During 2004, the Company recorded a restructuring charge of
$3.6 million, comprised of costs related to new actions of
$3.9 million and net credits resulting from changes in
estimates related to prior actions of $379,000.
During the fourth quarter of 2004, the Company recorded
facilities-related charges of $1.5 million primarily
comprised of $800,000 for an operating lease related to idle
office space net of assumptions for vacancy period and sublease
income based on the then current real estate market data,
$200,000 of leasehold improvements written down to their fair
value and $500,000 of prepaid rent related to the abandoned
space, which was recorded as part of prior lease settlements.
The lease charge was for office space the Company vacated before
December 31, 2004 and intended to sublease. The estimated
sublease income was $350,000 based on then current rental rates
and an estimated vacancy period. In accordance with
SFAS 146, the Company recorded the present value of the net
lease obligation. As a result of a reduction of employees and
the closure of office space, the Company wrote off $200,000 of
leasehold improvements related to the vacated space to their
estimated fair value of zero because the estimated cash flows to
be generated from that location will not be sufficient to
recover the carrying value of the assets. During 2005, the
Company recorded a net reversal of $267,000 primarily due to
adjusting its estimates of net sublease obligations as a result
of executing a sublease agreement.
As part of the fourth quarter 2004 restructuring action, the
Company recorded a charge of $2.5 million for severance and
benefit costs related to cost reduction actions taken across the
worldwide employee base. The severance and benefit costs were
for 56 employees, or 14% of the Companys workforce,
consisting of 27 employees from sales and marketing, 8 from
services, 6 from general and administrative and 15 from research
and development. The Company accrued employee benefits pursuant
to its ongoing benefit plans for domestic locations and under
statutory minimum requirements in foreign locations. All
employees were notified of their termination as of
December 31, 2004, which was completed during 2005. During
the first quarter of 2005, the Company recorded a restructuring
charge of $200,000, resulting from adjustments to estimates made
in 2004 for employee severance benefits payable in international
geographies. Offsetting this charge were reversals of $190,000
due to final settlements.
During 2004, the Company recorded adjustments to its cost
estimates related to space vacated in 2001 action, resulting in
an additional charge of $112,000. Offsetting this charge, the
Company reached a final settlement with an employee terminated
in the 2001 action, resulting in a reduction to the
restructuring charge of $172,000. The Company also recorded an
adjustment to its estimates related to the 2002 actions,
resulting in a credit to the restructuring charge of $242,000.
In addition, the Company made adjustments in cost estimates
related to space vacated in 2003 and employee severance
estimates related to 2003 actions, resulting in a net reduction
to the restructuring charge of $77,000.
For additional information pertaining to the Companys
2001, 2002 and 2003 restructuring, refer to the Companys
2005 Annual Report on
Form 10-K.
Abandoned
Facilities Obligations
At December 31, 2006, the Company had lease arrangements
related to three abandoned facilities whose lease agreements are
ongoing. Of these locations, the restructuring accrual for the
Waltham, MA facility is net of assumed
67
ART TECHNOLOGY GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
sub-lease
income, as a
sub-lease
agreement was in negotiations as of December 31, 2006,
which was executed on March 9, 2007. The restructuring
accrual for all other locations is net of the contractual
amounts due under an executed
sub-lease
agreement. All locations for which the Company recorded
restructuring charges have been exited, and thus the
Companys plans with respect to these leases have been
completed. A summary of the remaining facility locations and the
timing of the remaining cash payments is as follows (in
thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2007
|
|
|
2008
|
|
|
2009
|
|
|
Total
|
|
Waltham, MA
|
|
$
|
1,384
|
|
|
$
|
1,384
|
|
|
$
|
346
|
|
|
$
|
3,114
|
|
San Francisco, CA
|
|
|
515
|
|
|
|
|
|
|
|
|
|
|
|
515
|
|
Reading, UK
|
|
|
483
|
|
|
|
483
|
|
|
|
81
|
|
|
|
1,047
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Facility obligations, gross
|
|
|
2,382
|
|
|
|
1,867
|
|
|
|
427
|
|
|
|
4,676
|
|
Contracted and assumed sublet
income
|
|
|
(1,153
|
)
|
|
|
(1,051
|
)
|
|
|
(193
|
)
|
|
|
(2,397
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash obligations
|
|
$
|
1,229
|
|
|
$
|
816
|
|
|
$
|
234
|
|
|
$
|
2,279
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(12) Litigation
As previously disclosed, in 2001, the Company was named as a
defendant in seven purported class action suits that were
consolidated into one action in the United States District Court
for the District of Massachusetts under the caption In re Art
Technology Group, Inc. Securities Litigation. The case
alleges that the Company, and certain of its former officers,
violated Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934 and SEC
Rule 10b-5
promulgated there under. In October 2006, the court ruled in the
Companys favor and dismissed the case on summary judgment.
The plaintiffs have appealed the decision. Management believes
that none of the claims that the plaintiffs have asserted has
merit, and the Company intends to continue to defend the action
vigorously. While the Company cannot predict with certainty the
outcome of the litigation, the Company does not expect any
material adverse impact to our business, or the results of our
operations, from this matter.
As previously disclosed, in December 2001, a purported class
action complaint was filed against the Companys wholly
owned subsidiary Primus Knowledge Solutions, Inc., two former
officers of Primus and the underwriters of Primus 1999
initial public offering. The complaints are similar and allege
violations of the Securities Act of 1933, as amended, and the
Securities Exchange Act of 1934 primarily based on the
allegation that the underwriters received undisclosed
compensation in connection with Primus initial public
offering. The litigation has been consolidated in the United
States District Court for the Southern District of New York
(SDNY) with claims against approximately 300 other
companies that had initial public offerings during the same
general time period. On February 15, 2005, the court issued
an opinion and order granting preliminary approval of a
settlement, subject to certain non-material modifications. The
court held a settlement fairness meeting on April 24, 2006
following which it took under advisement the motion for final
approval of the settlement. In December 2006, the Court of
Appeals for the Second Circuit ruled that the certification of
this proceeding as a class action was invalid and remanded the
case to the SDNY. The class plaintiffs have requested the Second
Circuit to reconsider. If the settlement is not approved, we
believe we have meritorious defenses and intend to defend the
case vigorously. While we cannot predict the outcome of the
litigation or appeal, we do not expect any material adverse
impact to our business, or the results of our operations, from
this matter.
The Company is also subject to various other claims and legal
actions arising in the ordinary course of business. In the
opinion of management, the ultimate disposition of these matters
is not expected to have a material effect on the Companys
business, financial condition or results of operations.
68
ART TECHNOLOGY GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
(13) Quarterly
Results of Operations (Unaudited)
The following table presents a condensed summary of quarterly
results of operations for the years ended December 31, 2006
and 2005 (in thousands, except per share amounts):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Three Months Ended
|
|
|
|
March 31,
|
|
|
June 30,
|
|
|
September 30,
|
|
|
December 31,
|
|
|
|
2006
|
|
|
2006
|
|
|
2006
|
|
|
2006
|
|
|
Total Revenues
|
|
$
|
23,956
|
|
|
$
|
25,229
|
|
|
$
|
21,840
|
|
|
$
|
32,207
|
|
Gross Profit
|
|
|
16,793
|
|
|
|
17,808
|
|
|
|
14,173
|
|
|
|
21,908
|
|
Net income (loss)
|
|
|
2,641
|
|
|
|
2,275
|
|
|
|
(285
|
)
|
|
|
5,064
|
|
Basic and diluted net income
(loss) per share
|
|
$
|
0.02
|
|
|
$
|
0.02
|
|
|
$
|
(0.00
|
)
|
|
$
|
0.04
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Three Months Ended
|
|
|
|
March 31,
|
|
|
June 30,
|
|
|
September 30,
|
|
|
December 31,
|
|
|
|
2005
|
|
|
2005
|
|
|
2005
|
|
|
2005
|
|
|
Total Revenues
|
|
$
|
21,994
|
|
|
$
|
20,261
|
|
|
$
|
22,705
|
|
|
$
|
25,686
|
|
Gross Profit
|
|
|
15,990
|
|
|
|
14,516
|
|
|
|
16,323
|
|
|
|
18,746
|
|
Net income (loss)
|
|
|
1,408
|
|
|
|
(327
|
)
|
|
|
1,510
|
|
|
|
3,178
|
|
Basic and diluted net income
(loss) per share
|
|
$
|
0.01
|
|
|
$
|
(0.00
|
)
|
|
$
|
0.01
|
|
|
$
|
0.03
|
|
69
|
|
Item 9.
|
Changes
in and Disagreements with Accountants on Accounting and
Financial Disclosure
|
None.
|
|
Item 9A.
|
Controls
and Procedures
|
1. Managements
Report on Disclosure Controls and Procedures
Our management, with the participation of our chief executive
officer and chief financial officer, evaluated the effectiveness
of our disclosure controls and procedures (as defined in
Rules 13a-15(e)
and
15d-15(e)
under the Exchange Act) as of December 31, 2006. Disclosure
controls and procedures means controls and other procedures that
are designed to ensure that information required to be disclosed
by us in the reports that we file or submit under the Exchange
Act is (a) recorded, processed, summarized and reported,
within the time periods specified in the Commissions rules
and forms and (b) accumulated and communicated to our
management, including our principal executive and principal
financial officers, or persons performing similar functions, as
appropriate to allow timely decisions regarding required
disclosure.
Based on the evaluation of our disclosure controls and
procedures as of December 31, 2006, our Chief Executive
Officer and Chief Financial Officer concluded that, as of such
date, our disclosure controls and procedures were ineffective,
due to the material weaknesses in our internal control over
financial reporting described below.
2. Managements
Annual Report on Internal Control over Financial
Reporting.
Our management is responsible for establishing and maintaining
adequate internal control over financial reporting, as such term
is defined in Exchange Act Rules 13a-15(f) and
15d-15(f).
Under the supervision and with the participation of our
management, including our Chief Executive Officer and Chief
Financial Officer, we conducted an evaluation of the
effectiveness of our internal control over financial reporting
as of December 31, 2006 based on the guidelines established
in Internal Control Integrated Framework
issued by the Committee of Sponsoring Organizations of the
Treadway Commission. (COSO).
Because of its inherent limitations, internal control over
financial reporting cannot provide absolute assurance of
achieving financial reporting objectives. Internal control over
financial reporting is a process that involves human diligence
and compliance and is subject to lapses in judgment and
breakdowns resulting from human failures. Internal control over
financial reporting also can be circumvented by collision or
improper management override. Because of such limitations, there
is a risk that material misstatements may not be prevented or
detected on a timely basis by internal control over financial
reporting. Also, projections of any evaluation of effectiveness
to future periods are subject to the risk that controls may
become inadequate because of changes in conditions or that the
degree of compliance with established policies or procedures may
deteriorate.
Our managements assessment of and conclusions on the
effectiveness of our internal control over financial reporting
did not include the internal controls of eStara, Inc., which we
acquired in October 2006. eStaras assets and liabilities
and the results of its operations from the date of acquisition
are included in our consolidated financial statements at and for
the year ended December 31, 2006. eStaras assets
constituted 36.0% of our total assets at December 31, 2006,
and revenue attributable to eStara accounted for 4.5% of our
revenue for the year then ended.
A material weakness is a control deficiency, or a combination of
control deficiencies, that results in more than a remote
likelihood that a material misstatement of the annual or interim
financial statements will not be prevented or detected. As a
result of our managements assessment of the effectiveness
of internal control over financial reporting, we have identified
the following material weaknesses that existed as of
December 31, 2006:
|
|
1.
|
Inadequate
and ineffective controls over the financial statement close
process.
|
In conjunction with the year-end financial close, our procedures
and controls to ensure that accurate financial statements in
accordance with generally accepted accounting principles could
be prepared and reviewed on timely basis were not operating
effectively. Such ineffective procedures and controls include
(a) ineffective review of historical cumulative translation
adjustment balances relative to the timing of substantial
liquidation of foreign
70
locations, which resulted in a restatement of our 2002 and 2003
financial statements; (b) inadequate processes to account
for transactions and accounts, such as business combinations,
commissions, restructuring accruals and cumulative translation
adjustments; and (c) insufficient documentation of
accounting policies and procedures and retention of historical
accounting portions. As a result of the above deficiencies,
material and less significant post-closing adjustments were
identified by our independent registered public accounting firm,
Ernst & Young LLP, and recorded in our financial
statements as of and for the year ended December 31, 2006.
These adjustments affected the following financial statement
account line items: current liabilities, cumulative translation
adjustment, stockholders equity, operating expenses and
foreign currency exchange gain. This weakness could continue to
affect the balances in the accounts previously mentioned and
affect our ability to timely close our books and review and
analyze our financial statements.
2. Inadequate
staffing within the accounting organization.
During 2006, there were numerous changes in our accounting
personnel. This has led to our not having a sufficient number of
experienced personnel in the accounting organization to provide
reasonable assurance that transactions are being recorded as
necessary to ensure timely preparation of financial statements
in accordance with generally accepted accounting principles,
including the preparation of our Annual Report on
Form 10-K.
We consider this weakness to be a material weakness in the
operation of entity-level controls and operation level controls.
The ineffectiveness of such controls can result in misstatement
to assets, liabilities, revenues, and expenses.
Our management concluded that, due to the material weaknesses
described above, we did not maintain effective internal control
over financial reporting as of December 31, 2006.
Our independent registered public accounting firm,
Ernst & Young LLP, has issued a report on our
assessment of our internal control over financial reporting.
This report appears on the next page.
3. Remedial
actions
In an effort to remediate the identified deficiencies, we have
commenced, and are continuing to implement, a number of changes
to our internal control over financial reporting. These
following changes will be made before the end of 2007:
|
|
|
|
|
We are enhancing our existing policies and procedures for
accounting review of month-end close, account reconciliation
processes, journal entries, write-offs, restructuring-related
entries, purchase accounting-related entries, and impairment
reviews; and
|
|
|
|
We have taken steps to reduce the complexity of our
consolidation processes.
|
Additionally, in response to the identified deficiencies, we
intend to implement additional remedial measures, including but
not limited to the following:
|
|
|
|
|
Hiring key leadership accounting personnel to focus on our
technical accounting issues and managing the monthly close
process and the SEC reporting process; and
|
|
|
|
Improving our documentation and training related to policies and
procedures for the controls related to our significant accounts
and processes.
|
4. Changes
in internal control over financial reporting.
Except as described above, during its assessment of our
internal control over financial reporting our management
identified no change in our internal control over financial
reporting that occurred during the fourth quarter of 2006 that
has materially affected, or is reasonably likely to affect, our
internal control over financial reporting.
71
Report of
Independent Registered Public Accounting Firm
The Board of Directors and Stockholders
Art Technology Group, Inc.
We have audited managements assessment, included in the
accompanying Managements Annual Report on Internal Control
Over Financial Reporting, that Art Technology Group, Inc. did
not maintain effective internal control over financial reporting
as of December 31, 2006, because of the effect of the two
material weaknesses identified in managements assessment,
based on criteria established in Internal Control
Integrated Framework issued by the Committee of Sponsoring
Organizations of the Treadway Commission (the COSO criteria).
Art Technology Group, Inc.s management is responsible for
maintaining effective internal control over financial reporting
and for its assessment of the effectiveness of internal control
over financial reporting. Our responsibility is to express an
opinion on managements assessment and an opinion on the
effectiveness of the companys internal control over
financial reporting based on our audit.
We conducted our audit in accordance with the standards of the
Public Company Accounting Oversight Board (United States). Those
standards require that we plan and perform the audit to obtain
reasonable assurance about whether effective internal control
over financial reporting was maintained in all material
respects. Our audit included obtaining an understanding of
internal control over financial reporting, evaluating
managements assessment, testing and evaluating the design
and operating effectiveness of internal control, and performing
such other procedures as we considered necessary in the
circumstances. We believe that our audit provides a reasonable
basis for our opinion.
A companys internal control over financial reporting is a
process designed to provide reasonable assurance regarding the
reliability of financial reporting and the preparation of
financial statements for external purposes in accordance with
generally accepted accounting principles. A companys
internal control over financial reporting includes those
policies and procedures that (1) pertain to the maintenance
of records that, in reasonable detail, accurately and fairly
reflect the transactions and dispositions of the assets of the
company; (2) provide reasonable assurance that transactions
are recorded as necessary to permit preparation of financial
statements in accordance with generally accepted accounting
principles, and that receipts and expenditures of the company
are being made only in accordance with authorizations of
management and directors of the company; and (3) provide
reasonable assurance regarding prevention or timely detection of
unauthorized acquisition, use, or disposition of the
companys assets that could have a material effect on the
financial statements.
Because of its inherent limitations, internal control over
financial reporting may not prevent or detect misstatements.
Also, projections of any evaluation of effectiveness to future
periods are subject to the risk that controls may become
inadequate because of changes in conditions, or that the degree
of compliance with the policies or procedures may deteriorate.
As indicated in the accompanying Managements Annual Report
on Internal Control Over Financial Reporting, managements
assessment of and conclusion on the effectiveness of internal
control over financial reporting did not include the internal
controls of eStara, Inc., which is included in the 2006
consolidated financial statements of Art Technology Group, Inc.
and constituted 36% of total assets at December 31, 2006
and 4.5% of revenues for the year then ended. Our audit of
internal control over financial reporting of Art Technology
Group, Inc. also did not include an evaluation of the internal
control over financial reporting of eStara, Inc.
A material weakness is a control deficiency, or combination of
control deficiencies, that results in more than a remote
likelihood that a material misstatement of the annual or interim
financial statements will not be prevented or detected. The
following material weaknesses have been identified and included
in managements assessment.
1. Inadequate
and ineffective controls over the financial statement close
process.
In connection with the year end financial statement close, the
Companys procedures and controls to ensure that accurate
financial statements in accordance with generally accepted
accounting principles could be prepared and reviewed on timely
basis were not operating effectively. Such ineffective
procedures and controls include (a) ineffective review of
historical cumulative translation adjustment balances relative
to the timing of substantially
72
liquidating foreign locations, which resulted in a restatement
of the 2002 and 2003 financial statements; (b) inadequate
processes to account for certain transactions and accounts such
as business combinations, commissions, restructuring accruals,
and cumulative translation adjustments; and
(c) insufficient documentation of accounting policies and
procedures and retention of historical accounting positions. As
a result of the above, material and less significant
post-closing adjustments were identified by us and recorded in
the Companys financial statements as of and for the year
ended December 31, 2006. These adjustments impacted the
following financial statement account line items: current
liabilities, cumulative translation adjustment,
stockholders equity, operating expenses and foreign
currency exchange gain. Such weakness could continue to impact
the balances in all of the accounts previously mentioned and
affect the Companys ability to timely close its books and
review and analyze its financial statements.
2. Inadequate
staffing within the accounting organization.
During 2006, there were numerous changes in accounting
personnel. This has led to the Company not having a sufficient
number of experienced personnel in the accounting organization
to provide reasonable assurance that transactions are being
recorded as necessary to ensure timely preparation of financial
statements in accordance with generally accepted accounting
principles, including preparation of the
Form 10-K.
This weakness is considered to be a material weakness in the
operation of entity-level controls and operation level controls
and the ineffectiveness of such controls can result in
misstatements to assets, liabilities, revenues, and expenses.
These material weaknesses were considered in determining the
nature, timing, and extent of audit tests applied in our audit
of the 2006 financial statements, and this report does not
affect our report dated March 14, 2007 on those financial
statements.
In our opinion, managements assessment that Art Technology
Group, Inc. did not maintain effective internal control over
financial reporting as of December 31, 2006, is fairly
stated, in all material respects, based on the COSO criteria.
Also, in our opinion, because of the effect of the material
weaknesses described above on the achievement of the objectives
of the control criteria, Art Technology Group, Inc. has not
maintained effective internal control over financial reporting
as of December 31, 2006, based on the COSO criteria.
Boston, Massachusetts
March 14, 2007
|
|
Item 9B.
|
Other
information
|
Not applicable
PART III
|
|
Item 10.
|
Directors,
Executive Officers and Corporate Governance
|
The information required under this Item is incorporated herein
by reference to our definitive proxy statement pursuant to
Regulation 14A, with respect to our annual meeting of
stockholders to be held on May 17, 2007, to be filed with
the Securities and Exchange Commission (SEC) not later than
April 30, 2007 (the Definitive Proxy Statement under
the headings Election of Class II Directors,
Background Information About Directors
73
Continuing in Office. Information About Executive
Officers, Compliance with Section 16(a) of The
Exchange Act and Corporate Governance.
We have adopted a Code of Business Conduct and Ethics that
applies to all of our directors, officers and employees,
including our principal executive officer and principal
financial officer. The Code of Business Conduct and Ethics is
posted on our website at http://www.atg.com/ under the caption
About ATG/ Legal Information/Code of Conduct.
We intend to satisfy the disclosure requirement under
Item 10 of
Form 8-K
regarding an amendment to, or waiver from, a provision of this
Code of Business Conduct and Ethics by posting such information
on our website, at the address and location specified above and,
to the extent required by the listing standards of The NASDAQ
Stock Market, by filing a Current Report on
Form 8-K
with the SEC, disclosing such information.
|
|
Item 11.
|
Executive
Compensation
|
The information required under this Item is incorporated herein
by reference to our Definitive Proxy Statement under the
headings Executive Compensation, Director
Compensation, Compensation Committee Interlocks and
Insider Participation, Compensation Committee
Report, and Information About Stock Ownership and
Performance Stock Performance Graph.
|
|
Item 12.
|
Security
Ownership of Certain Beneficial Owners and Management and
Related Stockholder Matters
|
The information required under this Item is incorporated herein
by reference to our Definitive Proxy Statement under the
headings Information About Stock Ownership and
Securities Authorized for Issuance under Equity
Compensation Plans.
|
|
Item 13.
|
Certain
Relationships and Related Transactions, and Director
Independence
|
The information, if any, required under this Item is
incorporated herein by reference to our Definitive Proxy
Statement under the headings Related Party
Transactions and Corporate Governance.
|
|
Item 14.
|
Principal
Accountant Fees and Services
|
The information required under this Item is incorporated herein
by reference to our Definitive Proxy Statement under the caption
Principal Accountant Fees and Services.
74
PART IV
|
|
Item 15.
|
Exhibits
and Financial Statement Schedules
|
(a) (1) Financial Statements
The following are included in Item 8:
|
|
|
|
|
Report of Independent Registered Public Accounting Firm
|
|
|
|
Consolidated Balance Sheets as of December 31, 2006 and 2005
|
|
|
|
Consolidated Statements of Operations for the years ended
December 31, 2006, 2005 and 2004
|
|
|
|
Consolidated Statements of Stockholders Equity and
Comprehensive Income (Loss) for the years ended
December 31, 2006, 2005 and 2004
|
|
|
|
Consolidated Statements of Cash Flows for the years ended
December 31, 2006, 2005 and 2004
|
|
|
|
Notes to Consolidated Financial Statements
|
(a) (2) Financial Statement Schedule
Schedule II for Valuation and Qualifying Accounts is
contained in Item 8 in the Notes to the Consolidated
Financial Statements. All other schedules have been omitted
since the required information is not present, or not present in
amounts sufficient to require submission of the schedule or
because information required is included in the consolidated
financial statements or the notes thereto.
(a) (3) Exhibits
We are filing as part of this Report the Exhibits listed in the
Exhibit Index following the signature page to this Report.
75
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) 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, as of March 16, 2007.
ART TECHNOLOGY GROUP, INC.
(Registrant)
Robert D. Burke
Chief Executive Officer
and President
Pursuant to the requirements of the Securities Exchange Act of
1934, this report has been signed below by the following persons
on behalf of the registrant and in the capacities as of
March 16, 2007.
|
|
|
|
|
Name
|
|
Title
|
|
/s/ ROBERT
D. BURKE
Robert
D. Burke
|
|
Chief Executive Officer and
President
(Principal Executive Officer)
|
|
|
|
/s/ JULIE
M.B.
BRADLEY
Julie
M.B. Bradley
|
|
Senior Vice President and Chief
Financial Officer
(Principal Financial and Accounting Officer)
|
|
|
|
/s/ DANIEL
C. REGIS
Daniel
C. Regis
|
|
Chairman of the Board
|
|
|
|
/s/ JOHN
R. HELD
John
R. Held
|
|
Director
|
|
|
|
/s/ ILENE
H. LANG
Ilene
H. Lang
|
|
Director
|
|
|
|
/s/ MARY
E. MAKELA
Mary
E. Makela
|
|
Director
|
|
|
|
/s/ MICHAEL
A. BROCHU
Michael
A. Brochu
|
|
Director
|
|
|
|
/s/ DAVID
B. ELSBREE
David
B. Elsbree
|
|
Director
|
|
|
|
/s/ PHYLLIS
S. SWERSKY
Phyllis
S. Swersky
|
|
Director
|
76
EXHIBIT INDEX
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Filed with
|
|
|
|
|
|
|
|
|
|
|
This
|
|
Incorporated by Reference
|
Exhibit
|
|
|
|
Form
|
|
|
|
|
|
Exhibit
|
No.
|
|
Description
|
|
10-K
|
|
Form
|
|
Filing Date
|
|
No.
|
|
|
2
|
.1
|
|
Agreement and Plan of Merger dated
as of September 18, 2006 among ATG, eStara, Inc., Arlington
Acquisition Corp., Storrow Acquisition Corp., and the
stockholder representative and principal stockholders of eStara
named therein
|
|
|
|
8-K
|
|
September 22, 2006
|
|
|
10.1
|
|
|
2
|
.2
|
|
Amendment No. 1 to Agreement
and Plan of Merger dated as of October 2, 2006 among ATG,
eStara, Inc. and the stockholder representative named therein
|
|
|
|
8-K
|
|
October 6, 2006
|
|
|
2.2
|
|
|
3
|
.1
|
|
Amended and Restated Certificate
of Incorporation
|
|
|
|
S-8
|
|
June 12, 2003
|
|
|
4.1
|
|
|
3
|
.2
|
|
Amended and Restated By-Laws
|
|
|
|
S-3
|
|
July 6, 2001
|
|
|
4.2
|
|
|
4
|
.1
|
|
Rights Agreement dated
September 26, 2001 with EquiServe Trust Company, N.A. (SEC
file no. 000-26679)
|
|
|
|
8-K
|
|
October 2, 2001
|
|
|
4.1
|
|
|
10
|
.1*
|
|
1996 Stock Option Plan, as amended
|
|
|
|
10-Q
|
|
November 8, 2005
|
|
|
10.4
|
|
|
10
|
.2*
|
|
1999 Outside Director Stock Option
Plan, as amended (including form of option agreement)
|
|
|
|
10-Q
|
|
November 8, 2005
|
|
|
10.3
|
|
|
10
|
.3*
|
|
1999 Employee Stock Purchase Plan
|
|
|
|
DEF14A
(proxy
statement)
|
|
April 10, 2006
|
|
|
Annex A
|
|
|
10
|
.4
|
|
Primus 1999 Non-Officer Stock
Option Plan
|
|
|
|
10-K
|
|
March 16, 2005
|
|
|
10.4
|
|
|
10
|
.5
|
|
Primus 1999 Stock Incentive
Compensation Plan
|
|
|
|
10-K
|
|
March 16, 2005
|
|
|
10.5
|
|
|
10
|
.6*
|
|
General
Change-in-Control
Policy for Employees
|
|
|
|
10-Q
|
|
November 9, 2004
|
|
|
10.21
|
|
|
10
|
.7*
|
|
Amended and Restated Employment
Agreement dated November 8, 2004 with Robert Burke
|
|
|
|
10-Q
|
|
November 9, 2004
|
|
|
10.22
|
|
|
10
|
.8*
|
|
Offer letter with Julie M.B.
Bradley dated July 6, 2005
|
|
|
|
10-Q
|
|
November 8, 2005
|
|
|
10.1
|
|
|
10
|
.10*
|
|
2006 Executive Management
Compensation Plan, as Amended
|
|
|
|
8-K
|
|
June 19, 2006
|
|
|
99.1
|
|
|
10
|
.11*
|
|
Non-Employee Director Compensation
Plan, as Amended
|
|
|
|
10-Q
|
|
May 10, 2006
|
|
|
10.34
|
|
|
10
|
.12
|
|
Lease agreement dated May 6,
2006 with RREEF America REIT II Corp. PPP
|
|
|
|
10-Q
|
|
May 10, 2006
|
|
|
10.33
|
|
|
10
|
.13
|
|
Lease dated October 6, 1999
with Pine Street Investors I, LLC
|
|
|
|
10-K
|
|
March 28, 2003
|
|
|
10.5
|
|
|
10
|
.14
|
|
First Amendment to Lease dated
December 30, 1999 with Pine Street Investors I, LLC
|
|
|
|
10-K
|
|
March 28, 2003
|
|
|
10.6
|
|
|
10
|
.15
|
|
Second Amendment to Lease dated
August 20, 2000 with Pine Street Investors I, LLC
|
|
|
|
10-K
|
|
March 28, 2003
|
|
|
10.7
|
|
|
10
|
.16
|
|
Third Amendment to Lease dated
December 22, 2000 with Pine Street Investors I, LLC
|
|
|
|
10-K
|
|
March 28, 2003
|
|
|
10.8
|
|
|
10
|
.17
|
|
Fourth Amendment to Lease dated
July 15, 2001 with Pine Street Investors I, LLC
|
|
|
|
10-K
|
|
March 15, 2004
|
|
|
10.10
|
|
|
10
|
.18
|
|
Fifth Amendment to Lease dated
March 31, 2003 with Pine Street Investors I, LLC
|
|
|
|
10-K
|
|
March 15, 2004
|
|
|
10.11
|
|
77
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Filed with
|
|
|
|
|
|
|
|
|
|
|
This
|
|
Incorporated by Reference
|
Exhibit
|
|
|
|
Form
|
|
|
|
|
|
Exhibit
|
No.
|
|
Description
|
|
10-K
|
|
Form
|
|
Filing Date
|
|
No.
|
|
|
10
|
.19
|
|
Amended and Restated Loan and
Security Agreement dated June 13, 2002 with Silicon Valley
Bank
|
|
|
|
10-Q
|
|
August 14, 2002
|
|
|
10.1
|
|
|
10
|
.20
|
|
First Loan Modification Agreement
dated September 30, 2002 with Silicon Valley Bank
|
|
|
|
10-Q
|
|
November 14, 2002
|
|
|
10.1
|
|
|
10
|
.21
|
|
Amendment Agreement dated
October 4, 2002 with Silicon Valley Bank
|
|
|
|
10-Q
|
|
November 14, 2002
|
|
|
10.2
|
|
|
10
|
.22
|
|
Second Loan Modification Agreement
dated December 20, 2002 with Silicon Valley Bank
|
|
|
|
10-K
|
|
March 28, 2003
|
|
|
10.21
|
|
|
10
|
.23
|
|
Fourth Loan Modification Agreement
dated November 26, 2003 with Silicon Valley Bank
|
|
|
|
10-K
|
|
March 15, 2004
|
|
|
10.25
|
|
|
10
|
.24
|
|
Fifth Loan Modification Agreement
dated June 2004 with Silicon Valley Bank
|
|
|
|
10-Q
|
|
August 9, 2004
|
|
|
10.26
|
|
|
10
|
.25
|
|
Letter Agreement re:
Loan Arrangement with Silicon Valley Bank dated
June 16, 2004
|
|
|
|
10-Q
|
|
August 9, 2004
|
|
|
10.25
|
|
|
10
|
.26
|
|
Sixth Loan Modification Agreement
dated November 24, 2004 with Silicon Valley Bank
|
|
|
|
10-K
|
|
March 16, 2005
|
|
|
10.28
|
|
|
10
|
.27
|
|
Seventh Loan Modification
Agreement dated December 21, 2004 with Silicon Valley Bank
|
|
|
|
10-K
|
|
March 16, 2005
|
|
|
10.29
|
|
|
10
|
.28
|
|
Eighth Loan Modification Agreement
dated December 30, 2005 with Silicon Valley Bank
|
|
|
|
10-K
|
|
March 16, 2006
|
|
|
10.31
|
|
|
10
|
.29
|
|
Ninth Loan Modification Agreement
dated February 10, 2006 with Silicon Valley Bank
|
|
|
|
10-Q
|
|
May 10, 2006
|
|
|
10.32
|
|
|
10
|
.30
|
|
Securities Account Control
Agreement dated December 20, 2002 with Silicon Valley Bank
|
|
|
|
10-K
|
|
March 28, 2003
|
|
|
10.20
|
|
|
10
|
.31
|
|
Tenth Loan Modification Agreement
dated October 4, 2006 with Silicon Valley Bank
|
|
|
|
8-K
|
|
October 5, 2006
|
|
|
10.1
|
|
|
10
|
.32*
|
|
2007 Executive Management
Compensation Plan
|
|
|
|
8-K
|
|
March 5, 2007
|
|
|
99.1
|
|
|
21
|
.1
|
|
Subsidiaries
|
|
X
|
|
|
|
|
|
|
|
|
|
23
|
.1
|
|
Consent of Ernst & Young
LLP
|
|
X
|
|
|
|
|
|
|
|
|
|
31
|
.1
|
|
Certification pursuant to
Rules 13a-14(a)
and 15(d)-14(a) of the Exchange Act of 1934 of the principal
executive officer
|
|
X
|
|
|
|
|
|
|
|
|
|
31
|
.2
|
|
Certification pursuant to
Rules 13a-14(a)
and 15(d)-14(a) of the Exchange Act of 1934 of the principal
financial officer
|
|
X
|
|
|
|
|
|
|
|
|
|
32
|
.1
|
|
Certificate pursuant to
18 U.S.C. Section 1350 of the principal executive
officer
|
|
X
|
|
|
|
|
|
|
|
|
|
32
|
.2
|
|
Certificate pursuant to
18 U.S.C. Section 1350 of the principal financial
officer
|
|
X
|
|
|
|
|
|
|
|
|
|
|
|
* |
|
Management contract or compensatory plan. |
78