UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
FORM 10-K
x |
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934 |
For the fiscal year ended December 31, 2002
OR
o | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) |
Commission file number 000-27687
BSQUARE CORPORATION
Washington
(State or other jurisdiction of incorporation or organization) |
91-1650880
(I.R.S. Employer Identification No.) |
3150 139th Avenue SE, Suite 500, Bellevue, Washington 98005-4081
(Address of principal executive offices)
(425) 519-5900
(Registrants telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act:
Common Stock, no par value
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes x No 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. o
Indicate by check mark whether the registrant is an accelerated filer (as defined in Rule 12b-2 of the Act). Yes o No x
Aggregate market value of voting stock held by non-affiliates of the registrant as of June 28, 2002: $47.6 million
Number of shares of common stock outstanding as of February 28, 2003: 37,031,348
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the definitive proxy statement to be delivered to shareholders in connection with the annual meeting of shareholders to be held on April 29, 2003 are incorporated by reference into Part III of this Form 10-K.
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BSQUARE CORPORATION
FORM 10-K
TABLE OF CONTENTS
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PART I
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Item 1 |
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Business | 3 | |||||||||
Item 2 |
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Properties | 19 | |||||||||
Item 3 |
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Legal Proceedings | 19 | |||||||||
Item 4 |
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Submission of Matters to a Vote of Security Holders | 20 | |||||||||
PART II
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Item 5 |
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Market for Registrant's Common Equity and Related Shareholder Matters | 20 | |||||||||
Item 6 |
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Selected Financial Data | 21 | |||||||||
Item 7 |
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Management's Discussion and Analysis of Financial Condition and Results of Operations | 22 | |||||||||
Item
7A
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Quantitative and Qualitative Disclosures About Market Risk | 30 | |||||||||
Item 8 |
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Financial Statements and Supplementary Data | 31 | |||||||||
Item 9 |
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Changes in and Disagreements with Accountants on Auditing and Financial Disclosure | 54 | |||||||||
PART III
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Item 10 |
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Directors and Executive Officers of the Registrant | 54 | |||||||||
Item 11 |
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Executive Compensation | 54 | |||||||||
Item 12 |
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Security Ownership of Certain Beneficial Owners and Management and Related Shareholder Matters | 54 | |||||||||
Item 13 |
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Certain Relationships and Related Transactions | 54 | |||||||||
Item 14 |
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Controls and Procedures | 54 | |||||||||
PART IV
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Item 15 |
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Exhibits, Financial Statement Schedules and Reports on Form 8-K | 55 | |||||||||
Signatures |
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58 |
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PART I
Item 1. Business
FORWARD-LOOKING STATEMENTS
This Form 10-K and the documents incorporated herein by reference contain forward-looking statements within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934 based on current expectations, estimates and projections about our industry and our managements beliefs and assumptions. When used in this Form 10-K and elsewhere, the words believes, plans, estimates, intends, anticipates, seeks and expects and similar expressions are intended to identify forward-looking statements. These forward-looking statements include, but are not limited to, statements about our plans, objectives, expectations and intentions and other statements that are not historical facts. These forward-looking statements are not guarantees of future performance and are subject to certain risks and uncertainties that are difficult to predict. Accordingly, actual results may differ materially from those anticipated or expressed in such statements as a result of a variety of factors, including those set forth below under Risk Factors. Such forward-looking statements include, but are not limited to, statements with respect to the following:
| the growth in number of Internet users and market for business to business Internet transactions; | ||
| the development of the smart device market and our ability to address its challenges; | ||
| the emergence of Windows CE, Windows NT Embedded and Windows XP Embedded as operating systems of choice for many hardware and software applications vendors; | ||
| our business plan, its advantages and our strategy for implementing our plan; | ||
| our ability to expand our strategic relationships with hardware and software vendors and continue to build on our relationship with Microsoft; | ||
| our ability to expand our international presence; | ||
| our ability to increase our revenue through product sales and revenue growth attributable to original equipment manufacturers and semiconductor vendors; | ||
| our ability to develop our technology and expand our product and service offerings; and | ||
| our anticipated working capital and capital expenditure requirements, including our ability to meet our anticipated cash needs. |
Readers are cautioned not to place undue reliance on the forward-looking statements, which speak only as of the date made. Except as required by law, we undertake no obligation to update any forward-looking statement, whether as a result of new information, future events or otherwise. Readers, however, should carefully review the factors set forth in this and other reports or documents that we file from time to time with the Securities and Exchange Commission (SEC).
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RISK FACTORS
In addition to other information in this Form 10-K report, investors evaluating our business should carefully consider the following risk factors. These risks may impair our operating results and business prospects and the market price of our stock. The risks set forth below and elsewhere in this Form 10-K report could cause actual results to differ materially from those projected.
Unanticipated fluctuations in our operating results could cause our stock price to decline significantly.
Our operating results have fluctuated in the past, and we expect that they will continue to do so. We believe that period-to-period comparisons of our operating results are not meaningful, and you should not rely on such comparisons to predict our future performance. If our operating results fall below the expectations of stock analysts and investors, the price of our common stock may fall. Factors that have in the past and may continue in the future to cause our operating results to fluctuate include:
In addition, our stock price may fluctuate due to conditions unrelated to our operating performance, including general economic conditions in the software industry and the market for technology stocks.
If we do not maintain a good relationship with Microsoft, our revenue could decrease and our business would be adversely affected.
For the years ended December 31, 2002, 2001 and 2000, approximately 16%, 40% and 58% of our revenue, respectively, was generated under our Master Agreement with Microsoft. We expect that service revenue from Microsoft will not be as significant as our historical experience because work plans under our Master Agreement have ended.
We also have entered into distribution agreements with Microsoft, which enable us to distribute certain Microsoft licenses to our customers and generate product revenue. For the years ended December 31, 2002, 2001 and 2000, approximately 43%, 4% and 2% of our revenue, respectively, was generated under these distribution agreements. If these distribution agreements with Microsoft are terminated, our product revenue would decrease. Moreover, if these distribution agreements with Microsoft are not renewed on terms as favorable as current terms, our revenue could decrease, and our gross
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margins from these transactions, which are already low, would further decline. Microsoft is a publicly traded company that files financial reports and information with the Securities and Exchange Commission. These reports are publicly available under Microsofts Exchange Act filing number, 000-14278.
If we do not maintain our favorable relationship with Microsoft, we will have difficulty marketing our software products and services and may not receive developer releases of Windows CE, and our revenue and operating margins will suffer.
We also maintain a strategic relationship with Microsoft. In the event that our relationship with Microsoft were to deteriorate, our efforts to market and sell our software products and services to original equipment manufacturers and network operators could be adversely affected and our business would be harmed. Microsoft has great influence over the development plans and buying decisions of original equipment manufacturers utilizing Windows CE for smart devices. Microsoft refers many of our original equipment manufacturer customers to us. Moreover, Microsoft controls the marketing campaigns related to its operating systems, including Windows CE. Microsofts marketing activities, including trade shows, direct mail campaigns and print advertising, are important to the continued promotion and market acceptance of Windows CE and, consequently, of our Windows CE-based software products and services. We must maintain a successful relationship with Microsoft so that we may continue to participate in joint marketing activities with Microsoft, including participating in partner pavilions at trade shows and listing our services on Microsofts website, and to receive referrals from Microsoft. In the event that we are unable to continue our joint marketing efforts with Microsoft or fail to receive referrals from Microsoft, we would be required to devote significant additional resources and incur additional expenses to market our software products and services directly to potential customers. In addition, we depend on receiving from Microsoft developer releases of new versions of and upgrades to Windows CE and related Microsoft software in order to timely develop and ship our products and provide services. If we are unable to receive these developer releases, our revenue and operating margins would suffer.
If we are unable to license key software from third parties our business could be harmed.
We often integrate third-party software with our internally developed software to provide products and services for our original equipment manufacturer customers. If our relationships with our third-party vendors were to deteriorate, we might be unable to obtain licenses on commercially reasonable terms, if at all, for newer versions of their software required to maintain compatibility. In the event that we are unable to obtain additional licenses, we would be required to develop this technology internally, which could delay or limit our ability to introduce enhancements or new products or to continue to sell existing products.
Our software or hardware products or the third-party hardware or software integrated with our software products and services may suffer from defects or errors that could impair our ability to sell our software products and services.
Software and hardware components as complex as those needed for smart devices frequently contain errors or defects, especially when first introduced or when new versions are released. We have had to delay commercial release of certain versions of our products until problems were corrected, and in some cases have provided product enhancements to correct errors in released products. Some of our contracts require us to repair or replace products that fail to work. To the extent that we repair or replace products our expenses may increase, resulting in a decline in our gross margins. In addition, it is possible that by the time defects are fixed the market opportunity may have been missed which may result in lost revenue. Moreover, to the extent that we provide increasingly comprehensive products and rely on third-party manufacturers to manufacture our and our customers products, we will be dependent on the ability of third-party manufacturers to correct, identify and prevent manufacturing errors. Errors that are discovered after commercial release could result in loss of revenue or delay in market acceptance, diversion of development resources, damage to our reputation or increased service and warranty costs, all of which could harm our business.
If Microsoft adds features to its Windows operating system or develops products that directly compete with products and services we provide, our revenue could be reduced and our profit margins could suffer.
As the developer of Windows, Microsoft could add features to its operating system or could develop products that directly compete with the products and services we provide to our customers. Such features could include, for example, faxing, hardware-support packages and quality-assurance tools. The ability of our customers or potential customers to obtain products and services directly from Microsoft that compete with our products and services could harm our business. Even if the standard features of future Microsoft operating system software were more limited than our offerings, a significant number of our customers and potential customers might elect to accept more limited functionality in lieu of purchasing additional software. Moreover, the resulting competitive pressures could lead to price reductions for our products and reduce our profit margins.
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If the market for Windows Embedded operating systems fails to develop further, or develops more slowly than we expect, or declines, our business and operating results will be materially harmed.
Because a significant portion of our revenue to date has been generated by software products and services dependent on the Windows Embedded operating systems, if the market for such operating systems fails to develop further, develops more slowly than we expect, or declines, our business and operating results will be significantly harmed. Market acceptance of Windows Embedded will depend on many factors, including:
| Microsofts development and support of the Windows Embedded market. As the developer and primary promoter of Windows CE, if Microsoft were to decide to discontinue or lessen its support of the Windows CE operating system, potential customers could select competing operating systems, which would reduce the demand for our Windows CE-based software products and services; | ||
| the ability of the Windows Embedded operating systems to compete against existing and emerging operating systems for the smart device market including: VxWorks and pSOS from WindRiver Systems Inc., VRTX from Mentor Graphics Corporation, JavaOS from Sun Microsystems, Inc. and Linux. In particular, in the market for palm-size devices, Windows Embedded operating system faces intense competition from PalmOS from Palm Incorporated, and to date has had limited success in this market. In the market for cellular phones, Windows Embedded operating systems faces competition from the EPOC operating system from Symbian, a joint venture among several of the largest manufacturers of cellular phones. Windows Embedded operating systems may be unsuccessful in capturing a significant share of these two segments of the smart device market, or in maintaining its market share in those other segments of the smart device market on which our business currently focuses, including the markets for Internet-enabled television set-top boxes, handheld industrial devices, consumer Internet appliances such as kiosk terminals and vehicle navigational devices, and Windows-based terminals; | ||
| the acceptance by original equipment manufacturers and consumers of the mix of features and functions offered by Windows Embedded operating systems; and | ||
| the willingness of software developers to continue to develop and expand the applications that run on Windows Embedded operating systems. To the extent that software developers write applications for competing operating systems that are more attractive to smart device end users than those available on Windows Embedded operating systems, potential purchasers could select competing operating systems over Windows Embedded operating systems. |
Unanticipated delays, or announcement of delays, by Microsoft of Windows Embedded operating systems product releases could adversely affect our sales.
Unanticipated delays, or announcement of delays, in Microsofts delivery schedule for new versions of its Windows Embedded operating systems could cause us to delay our product introductions and impede our ability to complete customer projects on a timely basis. These delays or announcements by Microsoft of delays could also cause our customers to delay or cancel their project development activities or product introductions. Any resulting delays in, or cancellations of, our planned product introductions or in our ability to commence or complete customer projects may adversely affect our revenue and could cause our operating results to fluctuate.
Erosion of the financial condition of our customers could adversely affect our business.
Our business could be adversely affected in the event that the financial condition of our customers erodes because such erosion could cause these customers to reduce their demand for our products or even terminate their relationship with us, and also could result in these customers being greater credit risks. As the global information technology market weakens, the likelihood of the erosion of the financial condition of our customers increases, which could adversely affect the demand for our products and services. While we believe that our allowance for doubtful accounts is adequate, these allowances may not cover actual losses, which could adversely affect our business. Moreover, our distribution of Microsoft licenses is a relatively low-margin business, and we face increased credit risk with the accounts receivable from certain customers.
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Recent efforts to reduce expenses, including reductions in work force, may not achieve the results we intend and may
harm our business.
Beginning in 2001, we initiated a number of measures to streamline operations and reduce expenses, including cuts in discretionary spending, reductions in capital expenditures, reductions in our work force and consolidation of certain office locations, as well as other steps to reduce expenses. In connection with our cost reduction efforts, we were required to make certain product and product development decisions with limited information regarding the future demand. There can be no assurance that we decided to pursue the correct product offerings to take advantage of future market opportunities. Furthermore, the implementation of such measures has placed, and may continue to place, a significant strain on our managerial, operational, financial, employee and other resources. Additionally, the restructuring may negatively affect our recruiting and retention of important employees. It is possible that these reductions could impair our marketing, sales and customer support efforts or alter our product development plans. If we experience difficulties in carrying out such measures, our expenses could increase more quickly than we expect. If we find that our planned reductions do not achieve our objectives, it may be necessary to implement further streamlining of our expenses, to perform additional reductions in our work force, or to undertake additional cost-cutting measures.
Our revenue may continue to decline or we may not be able to return to profitability in accordance with our plans.
Our revenue declined 39% from 2001 to 2002 and 3% from 2000 to 2001. The decline in our revenue may continue in the future. In addition, the slowdown in the U.S. economy generally has added economic and consumer uncertainty that could adversely affect our revenue growth. We expect that our expenses will continue to be substantial in the foreseeable future as we continue to develop our technology and refocus our product and service offerings. These efforts may prove more expensive than we currently anticipate, and we may not succeed in increasing our revenue sufficiently to offset our expenses.
If we fail to develop products successfully and in a timely manner, we will not be able to compete effectively and our ability to generate revenue will suffer.
The market for Windows-based embedded products and services is competitive, new and evolving. As a result, the life cycles of our products are difficult to estimate. To be successful, we must continue to enhance our current product line and develop new products that are appealing to our customers with acceptable features, prices and terms. We have experienced delays in enhancements and new product release dates in the past and may be unable to introduce enhancements or new products successfully or in a timely manner in the future. Our business may be harmed if we must delay releases of our products and product enhancements or if we fail to accurately anticipate our customers needs or technical trends and are unable to introduce new products into the market successfully. In addition, our customers may defer or forego purchases of our products if we, Microsoft, our competitors or major hardware, systems or software vendors introduce or announce new products or product enhancements. Such deferrals or failures to purchase would decrease our revenue and our ability to generate product revenue will suffer.
If the market for smart devices fails to develop further, or develops more slowly than we expect or declines, our revenue will not develop as anticipated, if at all.
The market for smart devices is emerging and the potential size of this market and the timing of its development are not known. As a result, our profit potential is uncertain and our revenue may not develop as anticipated, if at all. We are dependent upon the broad acceptance by businesses and consumers of a wide variety of Windows-based smart devices, which will depend on many factors, including:
| the development of content and applications for smart devices; | ||
| the willingness of large numbers of businesses and consumers to use devices such as handheld and palm-size PCs and handheld industrial data collectors to perform functions currently carried out manually or by traditional PCs, including inputting and sharing data, communicating among users and connecting to the Internet; and | ||
| the evolution of industry standards or the necessary infrastructure that facilitate the distribution of content over the Internet to these devices via wired and wireless telecommunications systems, satellite or cable. |
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Our market is extremely competitive, which may result in price reductions, lower gross margins and loss of market share.
The market for Windows-based software products and services is extremely competitive. In addition, competition is intense for the business of the limited number of original equipment manufacturer customers that are capable of building and shipping large quantities of smart devices. Moreover, foreign competitors may be able to offer similar services to our customers at prices that are below our costs. Increased competition may result in price reductions, lower gross margins and loss of market share, which would harm our business. We face competition from:
| our current and potential customers internal research and development departments that may seek to develop their own proprietary solutions; | ||
| professional engineering services firms, domestic and foreign; | ||
| established smart device software and tools vendors; and | ||
| software and component distributors. |
As we develop new products, particularly products focused on specific industries, we may begin competing with companies with whom we have not previously competed. It is also possible that new competitors will enter the market or that our competitors will form alliances, including alliances with Microsoft, that may enable them to rapidly increase their market share. Microsoft has not agreed to any exclusive arrangement with us nor has it agreed not to compete with us. In fact, we believe that Microsoft has decided to bring more of the core development services and expertise that we provide in-house to Microsoft resulting in reduced opportunities for service revenue for us. The barrier to entering the market as a provider of Windows-based smart device software and services is low. In addition, Microsoft has created a marketing program to encourage systems integrators to work on Windows. These systems integrators are given the same access by Microsoft to the Windows technology as we are. New competitors may have lower overhead than us and may therefore be able to offer advantageous pricing. We expect that competition will increase as other established and emerging companies enter the Windows-based smart device market and as new products and technologies are introduced.
Our reputation and revenue could be adversely affected if third-party manufacturers and suppliers were to fail in meeting their performance obligations.
We intend to leverage and rely upon third-party manufacturers to manufacture products for us and our customers to the extent we develop increasingly comprehensive, customized turnkey solutions for our customers. As a result, we would depend on third-party manufacturers to produce a sufficient volume of products in a timely fashion and at satisfactory quality levels. If these third-party manufacturers were to fail in producing quality products on time and in sufficient quantities, our reputation and results of operations could suffer. In addition, we would rely on these third-party manufacturers to place orders with suppliers for the components they need to manufacture our technology in customers products. If they were to fail in placing timely and sufficient orders with suppliers, our revenue could suffer. Moreover, if alternative sources for components and elements of our technology were unavailable or financially prohibitive, the ability to maintain timely and cost-effective production of our customers products could be seriously harmed and our revenues and reputation could suffer as a result.
If we fail to adequately protect our intellectual property rights, competitors may be able to use our technology or trademarks, which could weaken our competitive position, reduce our revenue and increase our costs.
If we fail to adequately protect our intellectual property, our competitive position could be weakened and our revenue adversely affected. We rely primarily on a combination of patent, copyright, trade secret and trademark laws, confidentiality procedures and contractual provisions to protect our intellectual property. These laws and procedures provide only limited protection. We have applied for a number of patents relating to our engineering work. These patents, if issued, may not provide sufficiently broad protection or they may not prove to be enforceable against alleged infringers. There can be no assurance that any of our pending patents will be granted. Even if granted, these patents may be circumvented or challenged and, if challenged, may be invalidated. Any patents obtained may provide limited or no competitive advantage to us. It is also possible that another party could obtain patents that block our use of some, or all, of our products and services. If that occurred, we would need to obtain a license from the patent holder or design around their patent. The patent holder may or may not choose to make a license available to us at all or on acceptable terms. Similarly, it may not be possible to design around such a blocking patent.
In general, there can be no assurance that our efforts to protect our intellectual property rights through patent, copyright, trade secret and trademark laws will be effective to prevent misappropriation of our technology, or to prevent the development and design by others of products or technologies similar to or competitive with those developed by us. We frequently license the source code of our products and the source code results of our services to customers. There can be no assurance that customers with access to our source code will comply with the license terms or that we will discover any violations of the license terms or, in the event of discovery of violations that we will be able to successfully enforce the license terms and/or recover the
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economic value lost from such violations. To license many of our software products, we rely in part on shrinkwrap and clickwrap licenses that are not signed by the end user and, therefore, may be unenforceable under the laws of certain jurisdictions. As with other software products, our products are susceptible to unauthorized copying and uses that may go undetected, and policing such unauthorized use is difficult.
A significant portion of our marks include the word BSQUARE or the preface b. Other companies use forms of BSQUARE or the preface b in their marks alone or in combination with other words, and we cannot prevent all such third-party uses. We license certain trademark rights to third parties. Such licensees may not abide by our compliance and quality control guidelines with respect to such trademark rights and may take actions that would harm our business.
The computer software market is characterized by frequent and substantial intellectual property litigation, which is often complex and expensive, and involves a significant diversion of resources and uncertainty of outcome. Litigation may be necessary in the future to enforce our intellectual property or to defend against a claim of infringement or invalidity. Litigation could result in substantial costs and the diversion of resources and could harm our business and operating results.
Third parties could assert that our software products and services infringe their intellectual property rights, which could expose us to additional costs and litigation.
Third parties may claim that our current or future software products and services infringe their proprietary rights, and these claims, regardless of their merit, could increase our costs and harm our business. We have not conducted patent searches to determine whether the technology used in our products infringes patents held by third parties. In addition, it is difficult to determine whether our software products and services infringe third-party intellectual property rights, particularly in a rapidly evolving technological environment in which there may be numerous patent applications pending, many of which are confidential when filed, with regard to similar technologies. If we were to discover that one of our software products violated a third partys proprietary rights, we may not be able to obtain a license on commercially reasonable terms, or at all, to continue offering that software product. Moreover, any indemnification we obtain against claims that the technology we license from third parties infringes the proprietary rights of others may not always be available or may be limited in scope or amount. Even if we receive broad third-party indemnification, these indemnitors may not have the financial capability to indemnify us in the event of infringement. In addition, in some circumstances we could be required to indemnify our customers for claims made against them that are based on our solutions.
There can be no assurance that infringement or invalidity claims related to the software products and services we provide or arising from the incorporation by us of third-party technology, and claims for indemnification from our customers resulting from such claims, will not be asserted or prosecuted against us. We expect that software product developers will be increasingly subject to infringement claims, as the number of products and competitors in the software industry grows and the functionality of products in different industry segments overlaps. Such claims, even if not meritorious, could result in the expenditure of significant financial and managerial resources in addition to potential product redevelopment costs and delays.
Our international operations expose us to greater intellectual property, management, collections, regulatory and other risks.
Foreign customers generated approximately 21% of our total revenue in 2002. Our international operations expose us to a number of risks, including the following:
| greater difficulty in protecting intellectual property due to less stringent foreign intellectual property laws and enforcement policies; | ||
| greater difficulty in managing foreign operations due to the lack of proximity between our home office and our foreign operations; | ||
| longer collection cycles than we typically experience in the U.S.; | ||
| unfavorable changes in regulatory practices and tariffs; | ||
| adverse changes in tax laws; | ||
| greater difficulty in managing foreign third-party manufacturing; | ||
| the impact of fluctuating exchange rates between the U.S. dollar and foreign currencies; and |
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| general economic and political conditions in Asian and European markets. |
These risks could have a material adverse effect on the financial and managerial resources required to operate our foreign offices, as well as on our future international revenue, which could harm our business.
Recent acquisitions have proven difficult to integrate, and future acquisitions, if any, could disrupt our business, dilute shareholder value and adversely affect our operating results.
We have acquired the technologies and/or operations of other companies in the past and may acquire or make investments in complementary companies, services and technologies in the future. If we fail to properly evaluate, integrate and execute acquisitions and investments, including these recent acquisitions, our business and prospects may be seriously harmed. In some cases, we have been required to implement reductions in force and office closures in connections with an acquired business, which has resulted in significant costs to us. To successfully complete an acquisition, we must properly evaluate the technology, accurately forecast the financial impact of the transaction, including accounting charges and transaction expenses, integrate and retain personnel, combine potentially different corporate cultures and effectively integrate products and research and development, sales, marketing and support operations. If we fail to do any of these, we may suffer losses and impair relationships with our employees, customers and strategic partners, and our management may be distracted from our day-to-day operations. We also may be unable to maintain uniform standards, controls, procedures and policies, and significant demands may be placed on our management and our operations, information services and financial, legal and marketing resources. Finally, acquired businesses sometimes result in unexpected liabilities and contingencies, which could be significant. In addition, acquisitions using debt or equity securities dilute the ownership of existing shareholders, which could affect the market price of our stock.
We may be subject to product liability claims that could result in significant costs.
Our license agreements with our customers typically contain provisions designed to limit our exposure to potential product liability claims. It is possible, however, that these provisions may be ineffective under the laws of certain jurisdictions. Although we have not experienced any product liability claims to date, the sale and support of our products and services entail the risk of such claims and we may be subject to such claims in the future. There is a risk that any such claims or liabilities may exceed or fall outside the scope of our insurance coverage, and we may be unable to retain adequate liability insurance in the future. A product liability claim brought against us, whether successful or not, could harm our business and operating results.
The lengthy sales cycle of our products and services makes our revenue susceptible to fluctuations.
Our sales cycle is typically three to nine months because the expense and complexity of our products and services generally require a lengthy customer approval process, and may be subject to a number of significant risks over which we have little or no control, including:
| customers budgetary constraints and internal acceptance review procedures; | ||
| the timing of budget cycles; and | ||
| the timing of customers competitive evaluation processes. |
In addition, to successfully sell our products and services, we frequently must educate our potential customers about the full benefits of our products and services, which can require significant time. If our sales cycle lengthens unexpectedly, it could adversely affect the timing of our revenue, which could cause our quarterly results to fluctuate.
The volatility of the stock markets could adversely affect our stock price.
Stock markets are subject to significant price and volume fluctuations which may be unrelated to the operating performance of particular companies, and the market price of our common stock may therefore frequently change. The market price of our common stock could also fluctuate substantially due to a variety of other factors, including quarterly fluctuations in our results of operations, our ability to meet analysts expectations, adverse circumstances affecting the introduction and market acceptance of new products and services offered by us, announcements of new products and services by competitors, changes in the information technology environment, changes in earnings estimates by analysts, changes in accounting principles, sales of our common stock by existing holders and the loss of key personnel. In the past, following periods of volatility in the market price of a companys stock, class action securities litigation has often been instituted against such companies. Such litigation, if
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instituted, could result in substantial costs and diversion of managements attention and resources which would materially adversely affect our business, financial condition and operating results.
A continued decline in our stock price could cause us ultimately to be delisted from the NASDAQ National Market.
During 2002 to date, the market price for our common stock has traded at times near or below the $1.00 Nasdaq National Market minimum bid price. If our stock price declines and remains below $1.00 for a period of thirty consecutive trading days, we face the possibility of receiving notification from the Listing Qualifications Department of The Nasdaq Stock Market, Inc. indicating that our common stock has not maintained the required minimum bid price for continued quotation on the Nasdaq National Market and is subject to delisting. If our common stock is delisted from trading on the NASDAQ National Market as a result of listing requirement violations and is neither relisted thereon nor listed for trading on the NASDAQ SmallCap Market, trading in our common stock may continue to be conducted on the OTC Bulletin Board or in a non-NASDAQ over-the-counter market, such as the pink sheets. Delisting of our common stock from trading on the NASDAQ National Market would adversely affect the price and liquidity of our common stock and could adversely affect our ability to issue additional securities or to secure additional financing. In that event our common stock could also be deemed to be a penny stock under the Securities Enforcement and Penny Stock Reform Act of 1990, which would require additional disclosure in connection with trades in the common stock, including the delivery of a disclosure schedule explaining the nature and risks of the penny stock market. Such requirements could further adversely affect the liquidity of our common stock.
A small number of our existing shareholders can exert control over us.
Our executive officers, directors and principal shareholders holding more than 5% of our common stock together control a majority of our outstanding common stock. As a result, these shareholders, if they act together, could control our management and affairs of the company and all matters requiring shareholder approval, including the election of directors and approval of significant corporate transactions. This concentration of ownership may have the effect of delaying or preventing a change in control of us and might affect the market price of our common stock.
It might be difficult for a third party to acquire us even if doing so would be beneficial to our shareholders.
Certain provisions of our amended and restated articles of incorporation, bylaws and Washington law may discourage, delay or prevent a change in the control of us or a change in our management even if doing so would be beneficial to our shareholders. Our board of directors has the authority under our amended and restated articles of incorporation to issue preferred stock with rights superior to the rights of the holders of common stock. As a result, preferred stock could be issued quickly and easily with terms calculated to delay or prevent a change in control of our company or make removal of our management more difficult. In addition, our board of directors is divided into three classes. The directors in each class serve for three-year terms, one class being elected each year by our shareholders. This system of electing and removing directors may tend to discourage a third party from making a tender offer or otherwise attempting to obtain control of our company because it generally makes it more difficult for shareholders to replace a majority of our directors.
In addition, Chapter 19 of the Washington Business Corporation Act generally prohibits a target corporation from engaging in certain significant business transactions with a defined acquiring person for a period of five years after the acquisition, unless the transaction or acquisition of shares is approved by a majority of the members of the target corporations board of directors prior to the time of acquisition. This provision may have the effect of delaying, deterring or preventing a change in control of our company. The existence of these anti-takeover provisions could limit the price that investors might be willing to pay in the future for shares of our common stock.
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BUSINESS
We provide products and services for the development and deployment of wireless and wireline smart devices that use Microsoft Windows Embedded operating systems, such as handheld data collection, digital entertainment, and mobile communication devices. We are one of the leading system integrators for the Microsoft Windows Embedded operating systems and technologies and are the leading distributor of Microsoft Windows Embedded operating systems and tools. Our customers include original equipment manufacturers (OEMs), original design manufacturers (ODMs), software developers and network operators. We believe customers are attracted to our products and services because we apply our more than nine years of Microsoft Windows Embedded device development experience to help bring customized smart devices and applications to market quickly and cost-effectively.
Leveraging our Microsoft Windows Embedded experience, we generate revenue in three distinct ways. First, we offer a wide range of services, including:
| Hardware and software development services; | ||
| Systems integration; | ||
| Quality assurance; | ||
| Customer technical support; and | ||
| Platform development training. |
Second, we license to OEMs, ODMs and network operators a wide range of our proprietary products, including:
| Complete, customizable reference designs utilized to create smart devices such as smart phones, pocket PCs, portable data collection terminals, and kiosks; | ||
| Software applications that enhance the feature sets and usability of smart devices, including personal information managers, faxing capabilities, secure file systems, and backup and restore applications; | ||
| Software technologies that extend the features of smart devices, such as new universal serial bus (USB) and secure digital input/output (SDIO) peripherals; | ||
| Software enabling the low-level management and updating and synchronization of deployed smart devices; and | ||
| Software development and testing tools that facilitate the development of smart devices. |
Third, we sublicense and distribute licenses for a wide range of third-party products, including:
| Microsoft Windows CE.NET; | ||
| Microsoft Windows XP Embedded; | ||
| Microsoft Windows Server Appliance Kit; and | ||
| Insignia Geode Java Virtual Machine (under the BSQUARE JEM-CE brand). |
We were incorporated in the State of Washington in July 1994. Our principal executive office is located at 3150 139th Avenue SE, Suite 500, Bellevue, Washington 98005, and our telephone number is (425) 519-5900.
Strategy
BSQUAREs goal is to continue to enhance our position as a leading provider of complete smart device solutions. By leveraging the breadth and depth of our intellectual property and development capabilities, we believe we provide our customers with comprehensive and feature-rich device solutions in a reliable and cost-effective manner.
Key elements to our strategy include:
| Leveraging our expertise and product portfolio to provide turnkey solutions : We intend to leverage our product and service offerings to provide more comprehensive customized (turnkey) solutions to our customers. Using our substantial institutional knowledge about Microsoft Embedded operating systems and related technologies and our extensive portfolio of existing products and intellectual property, we are able to provide our customers with hardware and software solutions, which can be used for various applications. While we focus on the design and development of their products, our customers can be free to focus on their market and product requirements, getting their products to market more quickly. In addition, products can be manufactured for our customers by a contract manufacturer. The BSQUARE® Power Handheld Reference Design demonstrates the wide range of capabilities we have to provide turnkey solutions, and we intend to leverage our experience with the Power Handheld to increase these business opportunities. |
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| Leveraging our Microsoft Windows Embedded licensing business to create additional sales opportunities : BSQUARE is currently the largest distributor of Microsoft Windows Embedded products in North America. The customers of our licensing business generally have well-defined needs and spending patterns. Not only is this business a source of direct revenue, but it also represents a significant opportunity for us to generate additional forms of revenue. By offering these existing customers additional BSQUARE products and services, we potentially increase margin contributions on a per customer basis. | ||
| Leveraging our existing strategic relationships to expand opportunities : As a result of the growth in our Microsoft Windows Embedded licensing business, we have reinvigorated our relationship with Microsoft, which we believe should help drive more business to BSQUARE in the future. We are expanding our co-marketing activities with Microsoft, which will not only help fortify our position in the industry but should also serve to expand the market available to BSQUARE. We also continue to strengthen our relationships with other key companies in our industry, such as Intel, Texas Instruments and Advanced Micro Devices. By aligning our strategies more carefully with these key companies, we believe we become a natural solutions provider for their customers. |
Industry Background
As more businesses and consumers access the Internet, new ways of conducting business are emerging. Examples of users who are taking advantage of opportunities to communicate electronically include:
| Businesses that use mobile computing devices to permit their employees to access server-based network applications and the Internet from remote sites; | ||
| Retail businesses that use point-of-sale terminals which connect to back office systems to provide real-time inventory tracking, automate their procurement processes and publish information instantly to both internal and external users via the Internet; | ||
| Healthcare professionals who use mobile computing devices to record and access patient information that can then be shared via internal networks and the Internet among a broader group of professionals; and | ||
| Consumers who use Internet-enabled television set-top boxes, smart cellular phones, gaming systems and other devices to access Internet content, communicate and conduct transactions online. |
The increasing need for connectivity among both business and consumer users is driving demand for easy-to-use, cost-effective and customizable methods of electronic communication. Although the PC has been the traditional means of electronically connecting suppliers, partners and customers, smart devices is a new class of powerful technology. This includes smart phones, handheld and palm-size PCs, handheld industrial data collectors, consumer Internet appliances such as kiosk and point of sale terminals, Internet-enabled television set-top boxes, logistical and navigation devices, and Webpads. These smart devices are particularly attractive to business and consumer users because they are often less expensive than desktop and laptop computers; have adaptable configurations, including size, weight and shape; and are able to support a variety of customized applications and user interfaces that can be designed for particular tasks. In addition, these devices are typically compatible with existing business information systems.
The smart device industry is characterized by a wide variety of hardware configurations and end-user applications, each often designed for a specific market. To accommodate these diverse characteristics in a cost-effective manner, OEMs and ODMs require operating systems that can be integrated with a number of different smart devices and can support an expanding range of industry-specific functionality, content and applications. The Microsoft Windows family of operating systems, specifically Windows CE, Windows NT Embedded and Windows XP Embedded, helps satisfy these requirements because it leverages the existing industry-wide base of Microsoft Windows developers and technology standards; can be customized to operate across a variety of smart devices and integrate with existing information systems; offers Internet connectivity; and reduces systems requirements compared to traditional PC operating systems.
Services
We provide professional engineering services, such as custom development, product adaptations, and system quality assurance, to a diverse customer base. We focus on providing integration and support services to OEMs
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developing smart devices based on the Windows CE, Windows NT Embedded and Windows XP Embedded operating systems. For example, we have provided services to companies developing Internet-enabled television set-top boxes, handheld industrial devices, consumer Internet appliances, kiosk terminals, navigational devices in cars and trucks, and Windows-based terminals. Our software engineering projects require the use of our products, and we often retain a license or other proprietary rights in the resulting work product. In addition, we often provide support services and training with our software products and engineering services in an effort to complete smart device development and reduce the customers time-to-market.
During our first seven years that we were in business, the majority of our business was providing software development tools and related engineering services to Microsoft and numerous semiconductor vendors to support and enhance the development of the Windows CE operating system and the Microsoft Visual Tools series, a set of software development tools for use with the Windows CE operating system. These tools include compilers, linkers, runtime libraries, debuggers, and customizations to Platform Builder for Windows CE and integration of Windows CE with multiple microprocessors. Since July 2001 these service engagements have curtailed to an immaterial level - approximately 9 of our 135 engineers were involved in the development of the Windows CE operating system and accompanying tools for Microsoft at the end of 2002.
Products
We offer three categories of products that are used by our customers for the development and deployment of smart devices:
| Smart device design packages and software applications . Our SmartBuild design packages provide complete turn-key hardware design and software solutions for developing Windows CE-based products in various form factors, including smart phones, Pocket PCs, webpads, data collection tablets, and portable data terminals. One example of a product based on our SmartBuild solution is the BSQUARE® Power Handheld, which is based on this comprehensive software solution kit complete with iWin graphic user interface, remote device administrator and customized engineering services with a hardware reference platform. In addition to the software stack and hardware design, we provide a wide range of commercially available personal productivity, utility and communications software to enhance the functionality and usefulness of Windows CE-based smart devices. SmartBuild design packages include BSQUARE software applications for faxing, printing, spreadsheet and utility functionality. | ||
| Development products. We provide software products that facilitate the integration of new hardware and peripherals into Windows operating systems including the CEValidator family of testing and verification tools for quality assurance; licensing and integration of wired and wireless connectivity technologies, or stacks for wireless connectivity and universal serial bus (USB); and user interface design, secure digital input and output (SDIO) capability and development tools. | ||
| Third-party software products . To augment our own software products and services, we have license and distribution agreements with third-party software vendors to provide our customers with additional features and functionality. Our ability to provide these third-party software products to OEMs in conjunction with our own software products and services, provides our original equipment manufacturer customers with a single source for software products and services for smart devices. We are currently a licensed distributor of operating systems and software applications developed by Microsoft, Insignia, Citrix, Socket, Communication Intelligence Corporation, Datalight, M-Systems, and RealNetworks. |
Customers
Microsoft has been our largest customer to date, representing approximately 16%, 40%, and 58% of our total revenue in 2002, 2001 and 2000, respectively.
Other customers include OEMs, ODMs, network operators, and semiconductor vendors seeking to leverage the benefits of Windows-based operating systems to develop high quality, full-feature products that meet the requirements of numerous end-markets.
We maintain other strategic relationships with Microsoft to promote and license its Windows-based operating systems across a broad range of industries and applications. Our offerings to customers developing devices with Microsoft technology extends to the following:
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| Windows Embedded distributor. We are a licensed distributor of the Windows CE, Windows NT Embedded and Windows XP Embedded operating systems. As a result, we provide our customers with the opportunity to bundle the Windows Embedded operating systems in their smart devices. | ||
| Windows CE independent software vendor. We develop software applications for a wide variety of Windows CE-based smart devices, which we market under our brand names, including bFAX and bPRINT. | ||
| Development partner. Since our inception, we have been a preferred Microsoft vendor and have worked on a number of Windows CE-based projects for Microsoft and on the development of Windows CE-related software tools. | ||
| Systems integrator. We are one of a limited number of Gold-level members of the Microsoft Windows Embedded Partner program, as designated by Microsoft, helping customers such as OEMs bring smart devices to market quickly and cost effectively. We were named Windows Embedded Partner of the Year in the category of Systems Integrator by Microsoft in December 2001. | ||
| Windows CE training partner. BSQUARE is one of the few companies authorized by Microsoft to provide Windows CE training. |
Sales and Marketing
We market our products and services in a variety of ways;
| We market our services to OEMs, ODMs, network operators and semiconductor vendors through our direct sales force and various resellers; | ||
| We market our products and related services through our direct sales force, as well as through third-party representatives and distributors; and | ||
| We market our software applications bundled by OEMs onto particular smart devices or integrated with our smart device designs. |
We have direct sales offices in the United States, Japan, and Taiwan. As of February 28, 2003, we had 39 employees in our sales and marketing departments. Key elements of our sales and marketing strategy include direct marketing, advertising, event marketing, an active public relations program, customer and strategic alliance partner co-marketing programs and a comprehensive website.
Research and Development
As of February 28, 2003, we had 73 engineers engaged in research and development. Our research and development teams are responsible for the design, development and release of our products. Members of our research and development staff work closely with our sales and marketing departments, as well as with our customers and potential customers, to better understand market needs and requirements.
Competition
We face competition from:
| Our current and potential customers internal research and development departments that may seek to develop their own proprietary products and solutions; | ||
| Professional engineering services firms; | ||
| Established smart device software and tools manufacturers; and |
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| Software and component distributors. |
As we develop new products, particularly products focused on specific industries, we may begin competing with companies with which we have not previously competed. We compete principally on the basis of the breadth of products and services offered, the experience of the providers, the quality of the products and services, the time-to-market and price. We believe we compete favorably in each of these areas.
Intellectual Property and Other Proprietary Rights
Our intellectual property is critical to our success. In general, we attempt to protect our intellectual property rights through patent, copyright, trademark and trade secret laws and contractual arrangements. There can, however, be no assurance that our efforts will be effective to prevent misappropriation of our technology, or to prevent the development and design by others of products or technologies similar to or competitive with those developed by us.
We currently have a number of pending U.S. patent applications. We have five issued patents and a number of registered trademarks. We will continue to pursue registration of these and other marks. This report also contains other company and product names, which may be the trademarks of their respective owners.
Acquisitions
Infogation Corporation
On March 13, 2002, we acquired all of the issued and outstanding shares of Infogation Corporation, a developer of on-board and handheld vehicle navigation systems (telematics), for total consideration of $8.7 million, including 1.2 million shares of our common stock. We assumed Infogations outstanding vested and unvested employee stock options, which were converted into options to acquire approximately 200,000 shares of our common stock. In addition, $300,000 of cash and 129,762 shares of common stock were held in escrow subject to terms and conditions of the merger agreement. The agreement contained a provision for the payment of up to $3.0 million of additional consideration in cash and/or common stock based upon the attainment of certain revenue targets, as defined in the merger agreement.
Due to weaker-than-expected demand for telematics products and services, we reduced the number of telematics personnel to four at the end of 2002 and plan to eliminate the remaining positions in early 2003. In addition, we no longer expect to actively pursue telematics work.
Mainbrace Corporation
On May 24, 2000, we acquired all of the issued and outstanding shares of Mainbrace Corporation, an intellectual property licensing and enabling software firm. We paid an aggregate of $10.8 million cash and issued 627,334 shares of our common stock and options to purchase an additional 172,629 shares of our common stock in exchange for all of the outstanding shares and options to purchase shares of Mainbrace. The acquisition was accounted for under the purchase method of accounting.
BlueWater Systems, Inc.
On January 5, 2000, we acquired all of the issued and outstanding shares of BlueWater Systems, Inc., a privately held designer of software development tools for the creation of Windows-based smart devices. The transaction was effected through the exchange of 261,391 shares of our common stock and options to purchase an additional 21,793 shares of our common stock for all of the issued and outstanding shares and options to purchase shares of BlueWater. The acquisition was accounted for as a pooling of interests.
Internet Website
Our Internet website can be found at www.bsquare.com. We make available free of charge through our investor relations website at www.bsquare.com/ir , under Financial Releases, our annual reports on Form 10-K and quarterly reports on Form 10-Q, filed pursuant to Section 13(a) or 15(d) of the Exchange Act, as soon as reasonably practicable after such material is filed with, or furnished to, the SEC.
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Employees
As of February 28, 2003, we had
204 employees, excluding independent
contractors and other temporary employees, including 135 employees in software
engineering services and research and product development, 39 employees in
sales and marketing and 30 employees in general and administrative services
(including executive officers). Of these employees, 176 are located in the
United States, 19 are located in Japan and 9 are located in Taiwan. In
addition, from time to time, we employ temporary employees and consultants.
Directors and Executive Officers
The following table sets forth certain information with respect to our
directors and executive officers as of February 28, 2003.
Name
Age
Position
William T. Baxter
39
Chairman of the Board, President and Chief Executive Officer
Jeffrey T. Chambers
47
Director
Scot E. Land
48
Director
William L. Larson
46
Director
Elwood D. Howse, Jr.
63
Director
Elliott H. Jurgensen, Jr.
58
Director
James R. Ladd
59
Senior Vice President, Finance & Operations, Chief
Financial Officer, Secretary and Treasurer
Kent A. Hellebust
44
Senior Vice President, Marketing and Product Management
Scott E. Bufkin
50
Vice President, Professional Engineering Services
Brian T. Crowley
42
Vice President, Product Development
Brian M. Deutsch
41
Vice President, Wireless Services
Tracy A. Rees
41
Vice President, Sales
William T. Baxter co-founded BSQUARE in July 1994 and has served as our President, Chief Executive Officer and Chairman of the Board since our inception (with the exception of the period of April 2001 to September 2001, during which time he served as Chief Executive Officer and Chairman of the Board). From June 1993 to October 1994, Mr. Baxter served as Principal Engineer at Digital Equipment Corporation, a manufacturer of business and networking computer systems. Between February 1990 and May 1993, Mr. Baxter served as Manager of Compiler Development at Intergraph Corporation, a developer and manufacturer of interactive computer graphics systems. Mr. Baxter holds a B.S. and M.S. in computer science from the University of Wyoming.
Jeffrey T. Chambers has been a director of BSQUARE since February 1998. Mr. Chambers was elected to our board of directors in connection with the purchase of shares of our preferred stock by affiliates of TA Associates, Inc., a private equity firm, prior to our initial public offering. Mr. Chambers has been employed by TA Associates or its predecessor since 1980, where he currently serves as a managing director. In addition to BSQUARE, Mr. Chambers currently serves as a director of several privately held companies. Mr. Chambers holds a B.A. from Harvard University and a M.B.A. from Stanford University.
Scot E. Land has been a director of BSQUARE since February 1998. Mr. Land was elected to our board of directors in connection with the purchase of shares of our preferred stock by affiliates of Encompass Group, a venture capital firm, prior to our initial public offering. Mr. Land is currently a managing director of Encompass Ventures, an affiliate of Encompass Group, a position he has held since September 1997. Prior to joining Encompass, Mr. Land was a Senior Technology Analyst and Strategic Planning Consultant with Microsoft from June 1995 to September 1997, and a technology research analyst and investment banker for First Marathon Securities, a Canadian investment bank, from September 1993 to April 1995. From October 1988 to February 1993, Mr. Land was the President and Chief Executive Officer of InVision Technologies, a publicly traded company founded by Mr. Land in October 1988 that designs and manufacturers high-speed computer-aided topography systems for automatic explosives detection for aviation security. Prior to founding InVision Technologies, Mr. Land served as a principal in the international consulting practice of Ernst & Young LLP, a public accounting firm, from April 1984 to October 1988. Mr. Land serves as a director of Radiant Communications Corp. and several privately held companies.
William L. Larson has been a director of BSQUARE since September 1998. Mr. Larson is currently a private investor. From September 1993 to January 2001, Mr. Larson served as the Chief Executive Officer of Network Associates, Inc., a software company, where he also served as President and a director from October 1993 to January 2001 and as Chairman of the Board from April 1995 to January 2001. Mr. Larson also served as Chairman of the Board of McAfee.com Corporation a software company, from October 1998 to January 2001. From August 1988 to September 1993, Mr. Larson served as a Vice President of SunSoft, Inc., a systems software subsidiary of Sun Microsystems, where he was responsible for worldwide sales and marketing. Prior to that, Mr. Larson held various executive positions at Apple Computer, Inc. and Spinnaker Software and was a
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consultant with Bain & Company. Mr. Larson holds degrees from Stanford Law School and the Wharton School of Finance and Commerce at the University of Pennsylvania. Mr. Larson is a member of the California Bar Association and serves on the boards of several technology companies, including Backweb Technologies Ltd.
Elwood D. Howse, Jr. has been a director at BSQUARE since November 2002. Mr. Howse is currently President of Cable & Howse, LLC, a Northwest venture capital management firm, a position he has held since 1981. Mr. Howse has also served as a director of ImageX, a provider of online solutions for distribution, management and production of sales and marketing materials, since December 1996, of OrthoLogic Corporation, a provider of orthopedic rehabilitation products, since September 1987, and of Applied Microsystems Corporation, an embedded systems solutions provider to the electronics industry, since February 1992. In addition, he also serves as a director of several private companies and charitable institutions. Mr. Howse received both a B.S. in engineering and a M.B.A. from Stanford University.
Elliott H. Jurgensen, Jr . has been a director at BSQUARE since January 2003. Mr. Jurgensen recently retired from KPMG LLP after 32 years, including 23 years as a partner. During his career he has held a number of leadership roles, including National Partner in Charge of KPMGs Hospitality Industry Practice from 1981 to 1993, Managing Partner of the Bellevue, Washington office from 1982 to 1991 and Managing Partner of the Seattle, Washington office from 1993 to 2002. His professional experience focused on providing business advisory and audit services to clients ranging from emerging businesses to large multinational public companies. His industry experience includes software, e-commerce, life sciences, hospitality, long-term care and manufacturing. He has been actively involved in a number of business, civic and charitable organizations and is currently Treasurer of WSA (formerly the Washington Software Alliance). Mr. Jurgensen has a B.S. in accounting from San Jose State University and is a Certified Public Accountant.
James R. Ladd has been our Senior Vice President, Finance & Operations, Chief Financial Officer, Secretary and Treasurer since April 2002. From 1997 to 2001 Mr. Ladd served as President and Chief Executive Officer of EnCompass Globalization Inc., which provided services to convert U.S. software and websites for foreign markets. Mr. Ladd has also served as an international business consultant, and for 16 years was a partner in Deloitte & Touche, an international accounting and consulting firm in which he was Managing Partner of the Tokyo and Seattle offices and held other management roles. Mr. Ladd is currently chairman of the University of Washingtons Global Business Advisory Board and a trustee of the United Way of King County Endowment Fund. Mr. Ladd holds a B.A. in Accounting from Duke University and is a Certified Public Accountant.
Kent A. Hellebust has been our Senior Vice President, Marketing and Product Management since May 2002. From January 2002 to April 2002 Mr. Hellebust served as the head of the 802.11 initiative at Starbucks Corporation, a provider of coffee and coffee-related products, where he led the market targeting and deployment of the worlds largest wireless broadband network. From August 1999 to May 2001, Mr. Hellebust served as the Executive Vice President of Wireless Services at Infospace, Inc., a provider of internet-related content and services. Mr. Hellebust also served as Vice President of Innovation Services at AT&T Wireless Services, Inc., a telecommunications company, from August 1995 to July 1999. Mr. Hellebust holds an M.B.A. from the Wharton School of the University of Pennsylvania and a B.A. from Wesleyan University.
Scott E. Bufkin has been our Vice President, Professional Engineering Services since November 2001, and from January 1997 to November 2001, Mr. Bufkin held various other positions with us. From January 1992 to January 1997, Mr. Bufkin was an engineering manager and program manager at Intermec Corporation, an automated identification company, and from September 1988 to January 1992, he served in management positions at ESCA Corporation, a developer of control systems for electric utilities. Mr. Bufkin holds a B.S. in Computer Science from Texas A&M University.
Brian T. Crowley has been our Vice President, Product Development since April 2002. From December 1999 to April 2002, Mr. Crowley held various positions at DataChannel, a market leader in enterprise portals, including Vice President of Engineering and Vice President of Marketing. From April 1999 to December 1999, Mr. Crowley was Vice President, Operations of Consortio, a software company. From December 1997 to April 1999, Mr. Crowley was Director of Development at Sequel Technology, a network solutions provider. From 1986 to December 1997, Mr. Crowley held various positions at Applied Microsystems Corporation, including Vice President and General Manager of the Motorola products and quality assurance divisions. Mr. Crowley holds a B.S. in Electrical Engineering from Arizona State University.
Brian M. Deutsch has been our Vice President, Wireless Services since July 2002, and from May 2001 to July 2002, Mr. Deutsch served as our Vice President, General Manager of Device Solutions. From May 1999 to May 2001, Mr. Deutsch was the Chief Executive Officer and a founder of Sageport, Inc., a provider of Internet technology. From April 1997 to January 1999, he was interim Chief Executive Officer of another company he co-founded, TeamVision, Inc., a provider of advanced adaptive knowledge networks and applications for companies such as Boeing and NASA. From September 1989 to May 1999, Mr. Deutsch served as Chief Executive Officer of Foursum International, a designer and manufacturer of public telephony products
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and services. From 1992 to 1996, Mr. Deutsch was Chief Executive Officer of American Wireless Corp., a wireless technology start-up, which he co-founded. Mr. Deutsch holds a B.S. in Electrical Engineering from the University of Miami.
Tracy A. Rees has been our Vice President, Sales since February 2003. From May 2002 to February 2003 Mr. Rees served as our Director, Microsoft Licensing. From August 2001 to May 2002, Mr. Rees served as President and Director and from August 1999 to August 2001 as Vice President, Sales and Marketing at Anna Technology, a provider of system design and integration services, education services, and software for manufacturers of smart devices. Mr. Rees served as Director, Electronic Products at PG Design Electronics, a manufacturer of industrial PCs, memory modules, and other computer devices, from October 1998 to August 1999. From October 1995 to July 1998, Mr. Rees served as Vice President, Sales and Marketing at Magnetec Corporation, a division of Transact Technology, a company which designs, develops, manufactures and markets transaction-based printers. Mr. Rees holds a B.S. from the State University of New York.
Item 2. Properties.
Our corporate headquarters are located in approximately 92,800 square feet of space in a single location in Bellevue, Washington, pursuant to leases, which expire in 2004. We lease approximately 20,000 square feet in Sunnyvale, California, which was previously used as a research and development and service facility under a lease agreement which expires in December 2005. In addition, we lease office space domestically in Eden Prairie, Minnesota and San Diego, California and internationally for sales offices in Tokyo, Japan and Taipei, Taiwan. The annual cost of these leases totals approximately $5.8 million, subject to annual adjustments. As of February 28, 2003, we had excess space of approximately 31,000 square feet at our corporate headquarters in Bellevue, Washington, 20,000 square feet in Sunnyvale, California and 15,700 square feet in San Diego, California. All of the excess space is currently being offered for sublease.
Item 3. Legal Proceedings.
In summer and early fall of 2001, four purported shareholder class action lawsuits were filed in the United States District Court for the Southern District of New York against us, certain of our current and former officers and directors (the Individual Defendants), and the underwriters of our initial public offering. The suits purport to be class actions filed on behalf of purchasers of our common stock during the period from October 19, 1999 to December 6, 2000. The complaints against us have been consolidated into a single action and a Consolidated Amended Complaint, which is now the operative complaint, was filed on April 19, 2002. Plaintiffs allege that the underwriter defendants agreed to allocate stock in our initial public offering to certain investors in exchange for excessive and undisclosed commissions and agreements by those investors to make additional purchases of stock in the aftermarket at pre-determined prices. Plaintiffs allege that the prospectus for our initial public offering was false and misleading in violation of the securities laws because it did not disclose these arrangements. The action seeks damages in an unspecified amount. The action is being coordinated with approximately 300 other nearly identical actions filed against other companies. On July 15, 2002, we moved to dismiss all claims against us and the Individual Defendants. On October 9, 2002, the Court dismissed the Individual Defendants from the case without prejudice based upon Stipulations of Dismissal filed by the plaintiffs and the Individual Defendants. On February 19, 2003, the Court denied the motion to dismiss the complaint against us. We dispute the allegation of wrongdoing in this company and intend to defend this action vigorously. However, due to the inherent uncertainties of litigation, we cannot accurately predict the ultimate outcome of the litigation. Any unfavorable outcome of litigation could have an adverse impact on our business, financial condition and results of operations.
On February 28, 2003, we, our Chief Executive Officer and our former Chief Financial Officer (the Individuals), together with Credit Suisse First Boston (CSFB), the lead underwriter involved in our initial public offering, were named as defendants in a separate purported class action suit filed in the United States District Court for the Southern District of Florida. The complaint makes similar allegations against approximately 50 other companies for which CSFB was the lead or co-lead underwriter of an IPO. The complaint alleges claims against us and the Individuals for violations of the Securities Act of 1933 and/or violations of the Securities and Exchange Act of 1934 and Rule 10b-5 promulgated thereunder. The complaint also alleges claims based on common law theories of fraud, negligent misrepresentation, respondeat superior, as well as Florida state securities laws. The complaint alleges that the defendants disseminated false and misleading information to the public, which misrepresented our initial public offering price and our financial condition and future revenue prospects. The complaint further alleges that the effect of the purported fraud was to manipulate our stock price so that the defendants could profit from the manipulation. The action seeks damages in an unspecified amount. No date has been set for a response to this complaint. We dispute the allegation of wrongdoing in this company and intend to vigorously defend this action. Again, due to the inherent uncertainties of litigation, we cannot accurately predict the ultimate outcome of the litigation. Any unfavorable outcome of litigation could have an adverse impact on our business, financial condition and results of operations.
On November 6, 2002, we filed a complaint in King County Superior Court against Lineo, Inc. (Lineo) and The Canopy Group, Inc. (Canopy) seeking repayment of an advance in the amount of $1.8 million (plus costs and expenses) made by us to Lineo
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in connection with our potential acquisition of Lineo. The advance was guaranteed by Canopy. Subsequently, on February 19, 2003, Embedix, Inc., the alleged successor-in-interest to Lineo, filed a complaint against us in United States District Court, Central Division, District of Utah, alleging securities law violations and related state law claims in connection with the same transaction. We believe the complaint is without merit and intend to defend these claims vigorously. However, due to the inherent uncertainties of litigation, we cannot accurately predict the ultimate outcome of this litigation. Any unfavorable outcome of this litigation could have an adverse impact on our business, financial condition and results of operations.
Item 4. Submission of Matters to a Vote of Security Holders.
No matters were submitted to a vote of shareholders during the fourth quarter ended December 31, 2002.
PART II
Item 5.
Market for Registrants Common Equity and Related Shareholder Matters.
Market Prices of Common Stock
Our common stock is traded on the NASDAQ National Market under the symbol
BSQR. The following table sets forth the high and low sale prices for our
common stock for the periods indicated, as reported by the NASDAQ National
Market.
These quotations represent prices between dealers and do not include retail
markups, markdowns, or commissions and may not necessarily represent actual
transactions.
High
Low
$
4.15
$
2.98
$
4.13
$
1.74
$
2.19
$
0.72
$
1.50
$
0.83
$
12.63
$
5.47
$
15.85
$
6.90
$
10.80
$
2.03
$
4.49
$
2.13
Holders
As of February 28, 2003 there were approximately 163 record owners of our common stock.
Dividends
We have never paid cash dividends on our common stock. We currently intend to retain any future earnings to fund the development and growth of our business. Therefore, we do not currently anticipate paying any cash dividends in the foreseeable future.
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Item 6. Selected Financial Data.
The following selected consolidated financial data should be read in
conjunction with the consolidated financial statements and the notes thereto in
Item 8 of Part II, Financial Statements and Supplementary Data, and the
information contained herein in Item 7 of Part II, Managements Discussion and
Analysis of Financial Condition and Results of Operations. Historical results
are not necessarily indicative of future results.
Year Ended December 31,
2002
2001
2000
1999(1)
1998 (1)
(in thousands, except per share data)
$
37,506
$
61,852
$
63,502
$
41,406
$
25,937
30,795
32,682
29,786
19,509
11,363
6,711
29,170
33,716
21,897
14,574
16,692
12,761
9,259
7,506
4,438
19,230
19,241
17,229
12,518
6,996
1,698
4,100
1,380
5,745
2,920
6,472
1,336
16,249
6,707
61,721
45,790
33,508
20,024
11,434
(55,010
)
(16,620
)
208
1,873
3,140
(1,900
)
2,657
3,282
926
326
(620
)
(56,910
)
(13,963
)
2,870
2,799
3,466
(1,696
)
3,679
(2,136
)
(1,104
)
(1,166
)
(58,606
)
(10,284
)
734
1,695
2,300
(14,932
)
$
(73,538
)
$
(10,284
)
$
734
$
1,695
$
2,300
$
(2.02
)
$
(0.30
)
$
0.02
$
0.08
$
0.12
$
(2.02
)
$
(0.30
)
$
0.02
$
0.06
$
0.08
36,413
34,314
33,275
21,430
18,633
36,413
34,314
35,932
30,800
27,736
December 31,
2002
2001
2000
1999(1)
1998(1)
(in thousands)
$
35,425
$
69,711
$
72,351
$
82,972
$
7,056
27,957
74,887
76,560
81,675
10,527
53,597
115,666
122,262
96,642
16,448
5,431
3,087
353
289
14,417
32,634
98,821
108,347
89,125
(965
)
(1) | Reflects restatement for 2000 business acquisition accounted for under the pooling-of-interests method. | |
(2) | For further discussion of earnings (loss) per share, see Notes 1 and 14 of Notes to Consolidated Financial Statements. |
21
Item 7. Managements Discussion and Analysis of Financial Condition and Results of Operations.
The following Managements Discussion and Analysis of Financial Condition and Results of Operations should be read in conjunction with our consolidated financial statements and related notes.
Critical Accounting Judgments
The preparation of financial statements in conformity with accounting principles generally accepted in the United States requires estimates and assumptions that affect the reported amounts of assets and liabilities, revenues and expenses and related disclosures of contingent assets and liabilities in the consolidated financial statements and accompanying notes. The SEC has defined a companys critical accounting policies as those that are most important to the portrayal of the companys financial condition and results of operations, and which require the company to make its most difficult and subjective judgments, often as a result of the need to make estimates of matters that are inherently uncertain. Based on this definition, we have identified the critical accounting policies and judgments addressed below. We also have other key accounting policies, which involve the use of estimates, judgments and assumptions that are significant to understanding our results. For additional information see Item 8 of Part II, Financial Statements and Supplementary Data Note 1 Description of Business and Accounting Policies. Although we believe that our estimates, assumptions and judgments are reasonable, they are based upon information presently available. Actual results may differ significantly from these estimates under different assumptions, judgments or conditions.
Revenue Recognition
We generally recognize revenue from product sales or services rendered when the following four revenue recognition criteria are met: persuasive evidence of an arrangement exists, delivery has occurred or services have been rendered, the selling price is fixed or determinable and collectibility is reasonably assured.
We recognize product revenue upon shipment provided that collection is determined to be probable and no significant obligations remain on our part. We also enter into multiple element arrangements in which a customer purchases a combination of software licenses, post-contract customer support (PCS), and/or professional services. As a result, significant contract interpretation is sometimes required to determine the appropriate accounting, including how the price should be allocated among the deliverable elements if there are multiple deliverables, whether undelivered elements are essential to the functionality of delivered elements, and when to recognize revenue. PCS, or maintenance, includes rights to upgrades, when and if available, telephone support, updates, and enhancements. Professional services relate to consulting and development services and training. When vendor specific objective evidence (VSOE) of fair value exists for all elements in a multiple element arrangement, revenue is allocated to each element based on the relative fair value of each of the elements. VSOE of fair value is established by the price charged when the same element is sold separately. We determine VSOE of fair value of PCS based on renewal rates for the same term PCS. In a multiple element arrangement whereby VSOE of fair value of all undelivered elements exists but VSOE of fair value does not exist for one or more delivered elements, revenue is recognized using the residual method. Under the residual method, the fair value of the undelivered elements is deferred and the remaining portion of the arrangement fee is recognized as revenue, assuming delivery has occurred and collectibility is probable. Revenue allocated to PCS is recognized ratably over the contractual term, typically one to two years. Changes in the allocation of the sales price between deliverables might impact the timing of revenue recognition, but would not change the total revenue recognized on the contract.
Service revenue from fixed-priced consulting contracts is recognized using the percentage of completion method. Percentage of completion is measured monthly based primarily on input measures such as hours incurred to date compared to total estimated hours to complete, with consideration given to output measures, such as contract milestones, when applicable. Losses on fixed-priced contracts are recognized in the period when they become known.
We record OEM licensing revenue, primarily royalties, when OEM partners ship products incorporating our software, if collection of such revenue is deemed probable.
Deferred revenue includes deposits received from customers for service contracts and unamortized service contract revenue, customer advances under OEM licensing agreements and maintenance revenue. In cases where we will provide a specified free upgrade to an existing product, we defer revenue until the future obligation is fulfilled.
Estimated costs of future warranty claims and claims under indemnifications in connection with certain licensing agreements are accrued based on historical experience.
We perform ongoing credit evaluations of our customers financial condition and generally do not require collateral. We maintain allowances for estimated credit losses.
Long-Lived Assets
We assess the impairment of our long-lived assets whenever events or changes in circumstances indicate that the carrying value may not be recoverable. Factors we consider, which could trigger an impairment review, include significant underperformance relative to expected historical or projected future operating results and a significant change in the manner of use of the assets or the strategy for our overall business. When we determine that the carrying value of certain long-lived assets may not be recoverable based upon the existence of one or more of the above indicators of impairment, we then measure any
22
impairment based on a projected discounted cash flow method using a discount rate determined by us to be commensurate with the risk inherent in our current business model. This approach uses our estimates of future market growth, forecasted revenue and costs, expected periods the assets will be utilized and appropriate discount rates.
Accounting for Goodwill and Certain Other Intangibles
Effective January 1, 2002, we adopted Statement of Financial Accounting Standards (SFAS) No. 142, which requires companies to discontinue amortizing goodwill and certain intangible assets with an indefinite useful life. SFAS No. 142 requires that goodwill and indefinite life intangible assets be reviewed for impairment annually, or more frequently if impairment indicators arise. Our policy provides that goodwill and indefinite life intangible assets will be reviewed for impairment on October 1st of each year. In calculating our impairment losses, we evaluated the fair value of the relevant reporting units by estimating the expected present value of their future cash flows.
Restructuring Estimates
Restructuring-related liabilities include estimates for, among other things, anticipated disposition costs of lease obligations. Key variables in determining such estimates include anticipated commencement timing of sublease rentals, estimates of sublease rental payment amounts and tenant improvement costs and estimates for brokerage and other related costs. We periodically evaluate and, if necessary, adjust our estimates based on currently-available information.
Taxes
As part of the process of preparing our consolidated financial statements, we are required to estimate income taxes in each of the countries in which we operate. This process involves estimating our current tax exposure together with assessing temporary differences resulting from differing treatment of items for tax and accounting purposes. These differences result in deferred tax assets and liabilities. We must then assess the likelihood that our deferred tax assets will be recovered from future taxable income, and, to the extent we believe that recovery is not likely we must establish a valuation allowance. To the extent we establish a valuation allowance or increase this allowance in a period, we must include an expense within the tax provision in the statement of operations. Significant management judgment is required in determining our provision for income taxes, deferred tax assets and liabilities and any valuation allowance recorded against our net deferred tax assets. We provided full valuation allowances on deferred tax assets during 2002 because of our uncertainty regarding their realizability based on our estimates .
We cannot predict what future laws and regulations might be passed that could have a material effect on our results of operations. We assess the impact of significant changes in laws and regulations on a regular basis and update the assumptions and estimates used to prepare our financial statements when deemed necessary.
23
Results of Operations
The following table presents certain financial data as a percentage of total
revenue for the periods indicated. Our historical operating results are not
necessarily indicative of the results for any future period.
Comparison of the Years Ended December 31, 2002, 2001 and 2000
Revenue
Total revenue consists of service and product revenue. Service revenue is
derived from hardware and software development consulting, porting contracts,
maintenance and support contracts, and customer training. Product revenue
consists of third-party product distribution, software licensing fees and royalties from our software development
tool products, debugging tools and applications and smart device reference designs.
Total revenue was $37.5 million, $61.9 million and $63.5 million in 2002, 2001
and 2000, respectively, representing decreases of 39% and 3% for 2002 and 2001,
respectively. These decreases were due primarily to reductions in the volume
of services provided to Microsoft Corporation. Microsoft accounted for 16%, 40%
and 58% of total revenue in 2002, 2001 and 2000, respectively. We expect that
service revenue from Microsoft will not be as significant a percentage of our
total revenue as our historical experience because workplans under
our Microsoft Master Agreement, which defines our
service volume and fees, have ended.
Revenue from customers outside of the United States was $7.8 million, $20.9 million and
$13.5 million in 2002, 2001 and 2000, respectively, representing a 63% decrease
and 54% increase for 2002 and 2001, respectively. The decrease in
international revenue from 2001 to 2002 was due to a decrease in the number and
size of software service projects with international porting partners. The
increase in international revenue from 2000 to 2001 was the result of an
increase in the number and size of software integration service and product
contracts with porting partners and OEMs in Asia and Europe. We expect
international sales will continue to represent a significant portion of
revenue, although its percentage of total revenue may fluctuate from period to
period.
Service revenue
Service revenue was $18.0 million, $53.8 million and $57.2 million for 2002,
2001 and 2000, respectively, representing decreases of 66% and 6% for 2002 and
2001, respectively. These decreases were due primarily to reductions in
Microsoft service projects, and to an overall decline in demand for our
services as a result of the decline in the U.S. and international business
economies.
Product revenue
Product revenue was $19.5 million, $8.1 million and $6.3 million in 2002, 2001
and 2000, respectively, representing increases of 141% and 28% for 2002 and
2001, respectively. As a percentage of total revenue, product revenue was 52%
in 2002, 13% in 2001 and 10% in 2000. These increases were primarily due to
increased sales of third-party product software, our intelligent computing
device integration tool kits, CE Validator quality assurance test suites,
our software licenses and to the expansion of our product offerings. As a
percentage of product revenues, third-party product revenues were
78%, 33% and
18% in 2002, 2001 and 2000, respectively. In 2002, third-party product sales
increased 472% as a result of increased sales of Microsoft and other
third-party software products following the failure of a competitor and our
acquisition of its customer list in the
24
second quarter of 2002. We expect third-party software sales to continue to be
a significant percentage of our total annual revenue.
Gross Profit
Gross profit is revenue less the cost of revenue, which consists of cost of services and cost of products.
Gross profit was $6.7 million, $29.2 million and $33.7 million in 2002, 2001
and 2000, respectively, representing decreases of 77% and 13% for 2002 and
2001, respectively. Gross margin was 18%, 47% and 53% of revenue in 2002,
2001 and 2000, respectively. These decreases are primarily due to reduced
volume of Microsoft services, higher costs per employee and excess service
capacity. In addition, in 2002 third-party product revenue increased as a
percentage of our total sales and the majority is from the
distribution of
Microsoft licenses, which generate lower margins.
Operating Expenses
Research and development
Research and development expenses consist primarily of salaries and benefits
for software developers, quality assurance personnel, program managers and
related facilities and depreciation costs.
Research and development expenses were $16.7 million, $12.8 million and $9.3
million in 2002, 2001 and 2000, respectively, representing increases of 31% and
38% for 2002 and 2001, respectively. As a percentage of our revenue, research
and development expenses represented 45%, 21% and 15% in 2002, 2001 and 2000,
respectively. In 2002, these percentage increases were due primarily to
increases in our research and development activities for new products such as
our Power Handheld Reference Design and the overall decline in our total
revenue. In 2001, these increases were due primarily to higher payroll costs
per person, re-deployment of software engineers to research and development
projects, and higher facilities costs related to our expansion, which was
initiated during the latter half of 2000, of our research and development
efforts from Bellevue, Washington to the Silicon Valley area in California,
where both payroll and facilities costs were substantially higher. We believe
that as a result of restructuring reductions in our developer workforce and our
more focused development initiatives, our future research and development
expenses will be lower than in 2002.
Selling, general and administrative
Selling, general and administrative expenses consist primarily of salaries and
benefits for our sales, marketing and administrative personnel and related
facilities and depreciation costs
.
Selling, general and administrative expenses were $19.2 million, $19.2 million
and $17.2 million in 2002, 2001 and 2000, respectively, representing no
significant change in 2002 and a 12% increase in 2001. Selling, general
and administrative expenses represented 51%, 31% and 27% of our total revenue
in 2002, 2001 and 2000, respectively. As a percentage of revenue, the annual
increases were due primarily to our decreasing revenue, higher facility costs
and our increased level of marketing and sales efforts in each year. Although
there was no significant change in 2002 in total selling, general and
administrative expenses, we initiated restructuring steps that reduced our
personnel and facilities during 2002 that we believe will result in lower
expenses in 2003. The increase in 2001 in total selling, general and
administrative expenses was primarily due to increases in sales and marketing
personnel, product launches and increased marketing activities, including trade
shows, public relations and other promotional expenses.
Acquired in-process research and development and amortization of intangible
assets
On March 13, 2002, we acquired Infogation Corporation in a purchase transaction
valued at approximately $8.7 million. The purchase price was allocated to the
fair value of the acquired assets and assumed liabilities based on their fair
market values at the date of the acquisition. Of the total purchase price, we
allocated $1.7 million to acquired in-process research and development, $6.8
million to goodwill and other intangible assets and $200,000 to working capital
and tangible assets. The amount allocated to in-process research and
development was determined by an independent valuation and was recorded as a
charge to expense because its technological feasibility had not been
established and it had no alternative future use at the date of
acquisition. Due to weaker-than-expected demand for telematics
products and services, we reduced the number of telematics personnel
to four at the end of 2002 and plan to eliminate the remaining
positions in early 2003. In addition, we no longer expect to actively
pursue telematics work.
25
On May 24, 2000, we acquired Mainbrace Corporation, a software firm delivering
product solutions to high-volume market segments including set-top boxes,
Web-enabled phones, wireless thin clients, and electronic book readers. The
acquisition was accounted for using the purchase method of accounting and,
accordingly, the purchase price was allocated to the fair value of the acquired
assets and assumed liabilities based on their fair market values at the date of
the acquisition. Of the total purchase price, we allocated $4.1 million to
acquired in-process research and development, $19.7 million to goodwill and
other intangible assets and $1.0 million to working capital and tangible
assets. The amount allocated to in-process research and development was
determined by an independent valuation and was recorded as a charge to expense
because its technological feasibility had not been established and it had no
alternative future use at the date of acquisition.
Impairment of goodwill and other
intangible assets
Due to weaker-than-expected demand for
telematics products and services, we significantly reduced the number
of our telematics personnel, most of whom joined us in connection
with our March 2002 acquisition of Infogation. As a result, we
evaluated the carrying value of the goodwill and other intangible
assets associated with the purchase of Infogation and recognized an
impairment loss of $6.5 million in the third quarter of 2002.
Restructuring Charge
s
We initiated several reductions in our workforce in 2002 and 2001 due to the
economic slowdown in the U.S. and international business environment, as well
as the reduction of our business with Microsoft.
On December 16, 2002, we announced a company-wide reduction in workforce of
approximately 25% to be completed by February 14, 2003. 50 employees were
involuntarily terminated in the fourth quarter of 2002, with 20 more to be
involuntarily terminated in the first quarter of 2003. In connection with this
reduction in force, we recorded a restructuring charge of
$4.2 million in the
fourth quarter of 2002, consisting of $1.1 million for severance and other
benefit payments, $1.9 million for excess facilities and additional changes in
prior estimates relating to non-cancelable leases and $1.2 million for property
and equipment to be disposed of or abandoned.
On July 17, 2002, we announced a company-wide reduction in workforce of
approximately 30% to be completed by December 31, 2002. 60 employees were
involuntarily terminated in the third quarter of 2002, with 50 more
involuntarily terminated in the fourth quarter of 2002. These reductions
resulted in the curtailment of certain research and development initiatives and
reductions in our engineering services, sales, general and administrative
departments. In connection with this reduction in force, we recorded a
restructuring charge of $9.9 million in the third quarter of 2002, consisting
of $1.5 million for severance and other benefit payments, $6.4 million for
excess facilities primarily relating to non-cancelable leases and early lease
termination fees, and $2.0 million for property and equipment to be disposed of
or abandoned.
On January 8, 2002, we completed a company-wide reduction in workforce of
approximately 100 employees, representing approximately 20% of our total
employees at the time, including the closure of our 25-person professional
engineering service facility in Eden Prairie, Minnesota. A restructuring charge
of $2.2 million was recorded in the first quarter of 2002, which included $1.1
million for severance and other benefits paid by us and $1.1 million for excess
facilities under non-cancelable leases.
On July 17, 2001 we completed a company-wide reduction in workforce and
recorded a total restructuring charge of $6.7 million relating to severance,
abandoned property and equipment and consolidation of excess facilities and
other costs.
Other Income (Expense), Net
Investment income (expense), net was $(1.9) million, $2.7 million and $3.3
million in 2002, 2001 and 2000, respectively, representing decreases of 170%
and 18% for 2002 and 2001, respectively. The 2002 and 2001 decreases were due
primarily to lower average cash, cash equivalent and short-term investment
balances due to our use of cash for operations and acquisitions. In 2002 we
also recorded a charge of $3.5 million for the impairment of the carrying value
of cost-based investments.
In January 2000, the Company acquired BlueWater Systems, Inc. in a transaction
accounted for as a pooling of interests. In connection with the acquisition, we
incurred $620,000 of acquisition-related costs, which were charged to
operations in 2000.
Income Taxes
Our federal, state and foreign income taxes were a provision of $1.7 million
for 2002, a benefit of $3.7 million for 2001 and a provision of $2.1 million
for 2000, yielding an effective rate of 3.0%, (26.3)% and 74.4% in 2002, 2001
and 2000, respectively. The tax provision for 2002 of $1.7 million primarily
relates to the deferred tax provision of $4.7 million for the valuation
allowance provided on previously recorded net deferred tax assets, offset in
part by the benefit of $2.9 million for net operating loss carrybacks. The
benefit for 2001 results primarily to our ability to carry back the net
operating losses generated in that year to recapture taxes paid in prior years.
In 2000 our provision was positively
affected by interest income earned on tax-advantaged municipal securities held
in our short-term investment portfolio, and was negatively affected by the
non-deductibility of in-process research and development and amortization of
intangible assets.
26
We provided full valuation allowances on deferred tax assets during 2002
because of uncertainty regarding their realizability. The increase in the
valuation allowance on our deferred tax assets was $25.7 million during 2002
and $450,000 in 2001. At December 31, 2002 we had approximately $47.9 million
of net operating loss carryforwards, which begin to expire in 2022.
Cumulative effect of change in accounting principle
Effective January 1, 2002, we
adopted SFAS No. 142, Goodwill and Other Intangible
Assets, which requires companies to discontinue amortizing
goodwill and certain intangible assets with an indefinite useful
life. SAFS No. 142 requires that goodwill and indefinite life
intangible assets be reviewed for impairment upon adoption of the
accounting standard and annually thereafter, or more frequently if
impairment indicators arise. During the second quarter of 2002, we
performed the first of the required impairment tests of goodwill and
indefinite lived intangible assets and found instances of impairment
in our recorded goodwill. Accordingly, during the third quarter of
2002, we completed our evaluation of goodwill and other intangible
assets acquired in prior years. As a result, we retroactively
recorded an impairment loss of $14.9 million as of
January 1, 2002 as a cumulative effect of a change in accounting
principle.
Pro Forma Net Income (Loss)
Our management uses pro forma measures internally to evaluate our performance,
prepare and measure our operating plan and manage our operations. Our
management believes pro forma measures provide useful information to investors
regarding our results of operations because pro forma results exclude certain
items that are unpredictable and outside of our control, not settled in cash,
or both. Pro forma results exclude the effect of restructurings and
certain other non-cash
charges. This pro forma information is not presented in accordance with
accounting principles generally accepted in the United States or the recently
issued SEC final rule promulgated under Section 401(b) of the
Sarbanes-Oxley Act, which is
not in effect until fiscal 2003. Pro forma results are provided as a
complement to results provided in accordance with accounting principles
generally accepted in the United States. All pro forma results are derived from
information presented in our financial statements. For information about our
financial results, as reported in accordance with accounting principles
generally accepted in the United States, see Item 8 of Part II, Financial
Statements and Supplementary Data.
The following table provides our pro forma results (in thousands, except per
share amounts):
Liquidity and Capital Resources
As of December 31, 2002, we had $35.4 million of cash, cash equivalents,
restricted cash, and short-term investments compared to $69.7 million at
December 31, 2001. Our working capital at December 31, 2002 was $28.0 million
compared to $74.9 million at December 31, 2001.
Prior to 2002, we financed our operations and capital expenditures primarily
through cash flow from operations. In 2002 our operating activities resulted in
cash outflow of $35.3 million primarily due to our net operating loss of $73.5
million offset primarily by the non-cash charge of $14.9 million for a
cumulative effect change in accounting principle and a charge of $16.2 million
for restructuring. In 2001, cash provided by operating activities resulted
primarily from loss from operations excluding the amortization of intangible
assets and non-cash impairment charges. In 2000, cash provided by operating
activities resulted primarily from income from operations excluding acquired
in-process research and development, the amortization of intangible assets and
the tax benefit from the exercise of stock options as well as increases in
deferred revenue.
Investing activities provided cash of
$14.8 million in 2002, and used cash of $13.7 million in 2001
and $30.0 million in 2000. Investing activities for 2002 included $2.2 million
used for purchases of leasehold improvements and capital equipment, $3.9
million of cash used for the acquisition of Infogation Corporation and $21.0
million provided by maturities of short-term investments. Investing activities
for 2001 included $4.9 million in purchases of leasehold improvements and
capital equipment and $2.2 million in net cash used for the acquisition of a
smaller-scale company and for strategic investments. Investing activities in
2000 included $14.3 million in net cash used in connection with the acquisition
of Mainbrace Corporation, $8.5 million used for the acquisition of
smaller-scale companies and strategic investments, and $1.8 million used for
capital equipment purchases.
Financing activities generated $1.1 million in 2002 through the issuance of
shares under our employee stock purchase plan and the exercise of stock
options. Financing activities generated $1.8 million in 2001, primarily
through the issuance of shares under
27
our employee stock purchase plan and the
exercise of stock options, partially offset by repayment of loans.
Financing activities generated $3.3 million in 2000 through the issuance of
shares under our employee stock purchase plan, the exercise of stock options,
and the exercise of warrants by former BlueWater Systems, Inc. shareholders.
In 2002 we paid a total of $7.6 million for restructuring related costs,
including $1.8 million for an early lease termination. As of December 31,
2002, we had accrued $11.1 million in estimated remaining restructuring-related
costs, consisting of $1.3 million for unpaid employee separation costs, $7.6
million for excess facilities primarily related to non-cancelable leases, and
$2.2 million for early lease termination fees discussed in the following
paragraph. We expect the employee separation costs to be paid within the first
quarter of 2003 and the excess facilities costs to be paid over the remaining
terms of leases through 2005.
As of December 31, 2002, our principal commitments consisted of obligations
outstanding under operating leases. In September 2002, we executed an amendment
to the terms of the lease for our corporate offices in Bellevue, Washington,
which allowed us to surrender approximately 56,700 square feet of unused office
space at the end of 2002 and the remainder of our current space as of December
31, 2004, almost five years earlier than the original termination date. To
achieve these terms, we agreed to pay $4.3 million, of which $1.8 million was
paid in September 2002 and the remaining $2.5 million will be paid in quarterly
installments through 2004. We also have lease commitments for office space in
Sunnyvale, California; Eden Prairie, Minnesota; San Diego, California; Tokyo,
Japan; and Taipei, Taiwan. The annual obligation under these leases total
approximately $5.8 million, subject to annual adjustments.
As of December 31,
2002, we had pledged a total of $5.9 million to banks as collateral for letters
of credit issued to landlords as deposits against our lease commitments. The
pledged cash is recorded as restricted cash. Although we have no other material
commitments, we anticipate a continuation of capital expenditures to support
new and continuing business initiatives.
In 2002 we elected not to renew a $5.0 million secured revolving bank line of
credit. The line of credit had been secured by substantially all our assets and
carried certain other restrictive terms and conditions, with which we were in
compliance.
Our revenue declined 39% in 2002 and 3% in 2001. Revenue has not grown since
2000. Our revenue may continue to decline in light of the slowdown in the U.S.
and international economies. We expect that our expenses will decrease in the
foreseeable future as a result of our reductions in headcount throughout 2002.
However, even with this reduction in expenses, if our revenues continue to
decline at their current levels or faster than we reduce our costs, we will
continue to experience losses and will be required to use our existing cash
to fund those losses.
We believe that our existing cash, cash equivalents and short-term investments
will be sufficient to meet our needs for working capital and capital
expenditures for the next 12 months. We believe that we will be able to meet
our cash needs after that time from those sources and cash generated from
operations and we do not currently expect to need to raise additional capital.
If we do seek to raise additional capital, there can be no assurance that
additional financing will be available on acceptable terms, if at all. We may
use a portion of our available cash to acquire additional businesses, products
and technologies or to establish joint ventures that we believe will complement
our current or future business. Pending such uses, we will invest our surplus
cash in government securities and other short-term, investment grade,
interest-bearing instruments.
Recent Accounting Pronouncements
In April 2002, the Federal Accounting Standards Board, or FASB, issued SFAS No.
145, which rescinds SFAS No. 4, Reporting Gains and Losses from Extinguishment
of Debt, and amends SFAS No. 64, Extinguishments of Debt Made to Satisfy
Sinking-Fund Requirements. This statement also rescinds SFAS No. 44,
Accounting for Intangible Assets of Motor Carriers, and amends SFAS No. 13,
Accounting for Leases. We have evaluated the impact of these changes and do
not expect the pronouncement to have a material impact on our consolidated
financial position, results of operations or cash flows.
In June 2002, the FASB issued SFAS No. 146, Accounting for Costs Associated
with Exit or Disposal Activities. This statement addresses financial
accounting and reporting for costs associated with exit or disposal activities
and nullifies Emerging Issues Task Force (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). This
statement requires that a liability for a cost associated with an exit or
disposal activity be recognized at fair value when the liability is incurred.
We adopted the provisions of SFAS 146 effective January 1, 2003. We do not
expect the pronouncement to have a material impact on our consolidated
financial position, results of operations or cash flows, however, the adoption
of this standard could impact the timing and amounts recognized for future exit
or disposal activities, if any.
In November 2002, the EITF reached a consensus on Issue 00-21, addressing how
to account for arrangements that involve the delivery or performance of
multiple products, services, and/or rights to use assets. Revenue arrangements
with multiple deliverables are divided into separate units of accounting if the
deliverables in the arrangement meet the following criteria: (1)
28
the delivered
item has value to the customer on a standalone basis; (2) there is objective
and reliable evidence of the fair value of undelivered items; and (3) delivery
of any undelivered item is probable. Arrangement consideration should be
allocated among the separate units of accounting based on their relative fair
values, with the amount allocated to the delivered item being limited to the
amount that is not contingent on the delivery of additional items or meeting
other specified performance conditions. The final consensus will be applicable
to agreements entered into in fiscal periods beginning after June 15, 2003 with
early adoption permitted. We do not expect the provisions of this consensus to
have a significant effect on our financial position or operating results.
In November 2002, the FASB issued FASB Interpretation No. 45 (FIN 45),
Guarantors Accounting and Disclosure Requirements for Guarantees, Including
Indirect Guarantees of Indebtedness of Others, an interpretation of FASB
Statements No. 5, 57 and 107 and Rescission of FASB Interpretation No. 34. FIN
45 clarifies the requirements of SFAS No. 5, Accounting for Contingencies,
relating to the guarantors accounting for, and disclosure of, the issuance of
certain types of guarantees. The disclosure provisions of FIN 45 are effective
for our 2002 financial statements. However,
the provisions for initial recognition and measurement are effective on a
prospective basis for guarantees that are issued or modified after December 31,
2002. We are still assessing the potential impact on our results from
operations from the adoption of FIN 45.
In December 2002, the FASB issued SFAS No. 148, Accounting for Stock-Based
CompensationTransition and Disclosurean amendment of SFAS 123. This
statement amends SFAS No. 123, Accounting for Stock-Based Compensation, to
provide alternative methods of transition for a voluntary change to the fair
value based method of accounting for stock-based employee compensation. In
addition, this statement amends the disclosure requirements of SFAS No. 123 to
require prominent disclosures in both annual and interim financial statements
about the method of accounting for stock-based employee compensation and the
effect of the method used on reported results. We have chosen to continue to
account for stock-based compensation using the intrinsic value method
prescribed in APB Opinion No. 25 and related interpretations. Accordingly,
compensation expense for stock options is measured as the excess, if any, of
the estimate of the market value of our stock at the date of the grant over the
amount an employee must pay to acquire the stock. We adopted the annual
disclosure provisions of SFAS No. 148 in our financial reports for the year
ended December 31, 2002 and will adopt the interim disclosure provisions for
our financial reports for the quarter ended March 31, 2003. As the adoption of
this standard involves disclosures only, we do not expect it to have a material
impact on our consolidated results of operations, financial position or
liquidity.
In January 2003, the FASB issued FASB
Interpretation No. 46 (FIN 46),
Consolidation of Variable Interest Entities. FIN 46
clarifies the application of Accounting Research Bulletin
No. 51, Consolidated Financial Statements, to
certain entities in which equity investors do not have the
characteristics of a controlling financial interest or do not have
sufficient equity at risk for the entity to finance its activities
without additional subordinated financial support from other parties.
FIN 46 applies immediately to variable interest entities created
after January 31, 2003, and to variable interest entities in
which an enterprise obtains an interest after that date. It applies
in the beginning of the third quarter of 2003, to variable interest entities in which an enterprise holds a
variable interest that it acquired before February 1, 2003.
FIN 46 applies to public enterprises as of the beginning of the
applicable interim or annual period. We do not believe there will be
a material effect upon our financial condition or results of
operations from the adoption of the provisions of FIN 46.
29
As a Percentage of Total
Revenue
Year Ended December 31,
2002
2001
2000
48
%
87
%
90
%
52
13
10
100
100
100
45
50
44
37
3
3
82
53
47
18
47
53
45
21
15
51
31
27
5
6
4
9
5
17
2
43
11
165
74
53
(147
)
(27
)
(5
)
4
5
(1
)
(152
)
(23
)
4
(4
)
6
(3
)
(156
)
(17
)
1
40
(196
)%
(17
)%
1
%
(1)
The consolidated statements of
operations include a charge of $1.7 million (5% of total revenue) and $4.1 million (6% of total revenue) for
the years ended December 31, 2002 and 2000, respectively, for acquired
in-process research and development costs associated with our purchase of
Infogation Corporation in March
2002 and Mainbrace Corporation in May 2000, respectively.
(2)
The consolidated statements of operations for the year ended December 31,
2000 include a charge of $620,000 (1% of total revenue) of
acquisition-related expenses associated with a pooling of interests
transaction.
Table of Contents
Cost of services consists primarily of salaries and benefits for our
software engineers, plus related facilities and depreciation costs.
Cost of products consists primarily of license fees and royalties for
third-party software and the costs of product media, product duplication
and manuals.
Table of Contents
Table of Contents
Year Ended December 31,
2002
2001
2000
$
(73,538
)
$
(10,284
)
$
734
1,698
4,100
1,380
5,745
2,920
3,476
1,336
6,472
16,249
4,360
14,932
109
193
554
515
$
(29,222
)
$
1,350
$
8,823
$
(0.80
)
$
0.04
$
0.25
36,413
35,974
35,932
Table of Contents
Table of Contents
Table of Contents
Item 7A. Quantitative and Qualitative Disclosures About Market Risk.
Interest Rate Risk. We do not hold derivative financial instruments or equity securities in our short-term investment portfolio. Our cash equivalents consist of high-quality securities, as specified in our investment policy guidelines. The policy limits the amount of credit exposure to any one issue to a maximum of 15% and any one issuer to a maximum of 10% of the total portfolio with the exception of treasury securities, commercial paper and money market funds, which are exempt from size limitation. The policy limits all short-term investments to mature in two years or less, with the average maturity being one year or less. These securities are subject to interest rate risk and will decrease in value if interest rates increase.
The following table presents the amounts of our cash equivalents and short-term
investments that are subject to market risk by range of expected maturity and
weighted average interest rates as of December 31, 2002 and 2001. This table
does not include money market funds, as those funds are not subject to market
risk.
Maturing in
Three Months
Three Months
Greater Than
Fair
or Less
to One Year
One Year
Total
Value
(dollars in thousands)
$
10,571
$
10,571
$
10,574
1.4
%
$
4,273
$
8,461
$
4,642
$
17,376
$
17,315
3.2
%
3.6
%
3.8
%
$
25,548
$
25,548
$
25,515
2.1
%
$
13,566
$
13,156
$
12,686
$
39,408
$
39,084
4.9
%
3.3
%
3.6
%
Foreign Currency Exchange Rate Risk. Currently, the majority of our revenue and expenses is denominated in U.S. dollars, and, as a result, we have not experienced significant foreign exchange gains and losses to date. While we have conducted some transactions in foreign currencies and expect to continue to do so, we do not anticipate that foreign exchange gains or losses will be significant. We have not engaged in foreign currency hedging to date, although we may do so in the future.
Our international businesses are subject to risks typical of international activity, including, but not limited to, differing economic conditions, changes in political climate, differing tax structures, other regulations and restrictions, and foreign exchange rate volatility. Accordingly, our future results could be materially adversely impacted by changes in these or other factors.
Our exposure to foreign exchange rate fluctuations can vary as the financial results of our foreign subsidiaries are translated into U.S. dollars in consolidation. As exchange rates vary, these results, when translated, may vary from expectations and adversely impact overall expected profitability. The effect of foreign exchange rate fluctuations for the year ended December 31, 2002 was not material.
Investment Risk. We have investments in voting capital stock of technology companies for business and strategic purposes. These investments are included in other assets and are accounted for under the cost method as our ownership is less than 20% and we do not have significant influence. To the extent that the capital stock held is in a public company and the securities have a quoted market price, then the investment is marked to market. Our policy is to regularly review the operating performance of the company in assessing the carrying value of the investment.
30
Item 8. Financial Statements and Supplementary Data.
BSQUARE CORPORATION
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
Report of Ernst & Young LLP, Independent Auditors
|
32 | |||
Report of Prior Independent Public Accountants
|
33 | |||
Consolidated Balance Sheets
|
34 | |||
Consolidated Statements of Operations
|
35 | |||
Consolidated Statements of Shareholders Equity
|
36 | |||
Consolidated Statements of Cash Flows
|
37 | |||
Notes to Consolidated Financial Statements
|
38 |
31
REPORT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
The Board of Directors and Shareholders of BSQUARE Corporation:
We have audited the accompanying consolidated balance sheet of BSQUARE
Corporation and subsidiaries as of December 31, 2002 and the related
consolidated statements of operations, shareholders equity, and cash flows for
the year then ended. Our audit also included the 2002 financial statement
schedule listed at Item 15(a)(2). These financial statements are the
responsibility of the Companys management. Our responsibility is to express
an opinion on these financial statements based on our audit. The financial
statements of BSQUARE Corporation for the years ended
December 31, 2001 and
2000 were audited by other auditors who have ceased operations and whose report
dated January 25, 2002 expressed an unqualified opinion on those
statements before the reclassification adjustment described in
Note 1 and the supplemental disclosures provided in Note 4.
We conducted our audit in accordance with auditing standards generally accepted
in the 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 audit provides 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 BSQUARE
Corporation and subsidiaries at December 31, 2002 and the consolidated results
of their operations and their cash flows for the year then ended in conformity
with accounting principles generally accepted in the United States. Also, in
our opinion, the related 2002 financial statement schedule, when considered in
relation to the basic financial statements taken as a whole, presents fairly in
all material respects the information set forth therein.
As discussed in Note 4 to the financial statements, in 2002 the Company changed
its method of accounting for goodwill and other intangibles in connection with
the adoption of Statement of Financial Accounting Standards Statement
No. 142, Goodwill and Other Intangible Assets
(SFAS No. 142).
As discussed above, the financial statements of BSQUARE Corporation as of
December 31, 2001, and for each of the two years then ended were audited by
other auditors who have ceased operations. As described in Note 4, these
financial statements have been revised to include the transitional disclosures
required by SFAS No. 142, which was adopted by the Company as of
January 1, 2002. Our audit procedures related to the disclosures
in Note 4
with respect to 2001 and 2000 included (a) agreeing the previously reported net income
(loss) to the previously issued financial statements and the adjustments to reported
net income (loss) representing amortization expense, including any related tax
effects, recognized in those periods related to goodwill, to the Companys
underlying records obtained from management, and (b) testing the mathematical
accuracy of the reconciliation of adjusted net income (loss) to reported net
income (loss), and the related earnings (loss)-per-share amounts. As
described in the last paragraph of Note 1, certain 2001 accrued
restructuring costs have been reclassified to long term
liabilities. Our audit procedures with respect to the reclassification
adjustment were to evaluate the classification of the
restructuring liabilities based on the timing of related payments. In our
opinion, the disclosures for 2001 and 2000 in Note 1 and 4 and
the accrued restructuring reclassification adjustment are appropriate. However,
we were not engaged to audit, review, or apply any procedures to the 2001 and
2000 financial statements of the Company other than with respect to
the
disclosures and the accrued restructuring reclassification
adjustment, referred to above and, accordingly, we do not express an opinion or any other form of
assurance on the 2001 and 2000 financial statements taken as a whole.
January 22, 2003, except for the last two paragraphs of
32
Note 7, as to which the date is February 28, 2003
Seattle, Washington
Table of Contents
REPORT OF PRIOR INDEPENDENT PUBLIC ACCOUNTANTS
THE FOLLOWING REPORT OF ARTHUR ANDERSEN LLP (ANDERSEN) IS A COPY OF THE REPORT
PREVIOUSLY ISSUED BY ANDERSEN ON JANUARY 25, 2002. THE REPORT OF ANDERSEN IS
INCLUDED IN THIS ANNUAL REPORT ON FORM 10-K PURSUANT TO RULE 2-02(E) OF
REGULATION S-X. AFTER REASONABLE EFFORTS THE COMPANY HAS NOT BEEN ABLE TO
OBTAIN A REISSUED REPORT FROM ANDERSEN. ANDERSEN HAS NOT CONSENTED TO THE
INCLUSION OF ITS REPORT IN THIS ANNUAL REPORT ON FORM 10-K. BECAUSE ANDERSEN
HAS NOT CONSENTED TO THE INCLUSION OF ITS REPORT IN THIS ANNUAL REPORT, IT MAY
BE DIFFICULT TO SEEK REMEDIES AGAINST ANDERSEN AND THE ABILITY TO SEEK RELIEF
AGAINST ANDERSEN MAY BE IMPAIRED.
To BSQUARE Corporation:
We have audited the accompanying consolidated balance sheets of BSQUARE
Corporation and subsidiaries as of December 31, 2001 and 2000, and the related
consolidated statements of operations and comprehensive income, shareholders
equity and cash flows for each of the three years in the period ended December
31, 2001. 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 auditing standards generally
accepted in the 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 financial position of BSQUARE Corporation and
subsidiaries as of December 31, 2001 and 2000, and the results of their
operations and their cash flows for each of the three years in the period ended
December 31, 2001, in conformity with accounting principles generally accepted
in the United States.
Seattle, Washington,
33
January 25, 2002
Table of Contents
BSQUARE CORPORATION
CONSOLIDATED BALANCE SHEETS
(in thousands, except share amounts)
December 31,
2002
2001
ASSETS
$
11,041
$
30,303
2,582
18,444
39,408
6,494
8,833
2,934
1,469
1,966
2,840
28
5,792
43,489
88,645
3,124
6,509
3,358
210
2,319
15,713
850
1,856
2,566
624
$
53,597
$
115,666
LIABILITIES AND SHAREHOLDERS EQUITY
$
1,942
$
435
3,079
3,570
5,659
1,447
3,204
4,291
28
1,071
1,620
2,944
15,532
13,758
5,431
3,087
20,963
16,845
117,149
111,459
(15
)
(121
)
(325
)
(1,880
)
(84,175
)
(10,637
)
32,634
98,821
$
53,597
$
115,666
See notes to Consolidated Financial Statements.
34
BSQUARE CORPORATION
CONSOLIDATED STATEMENTS OF OPERATIONS
(in thousands, except per share amounts)
Year Ended December 31,
2002
2001
2000
$
18,028
$
53,775
$
57,196
19,478
8,077
6,306
37,506
61,852
63,502
16,847
30,556
28,195
13,948
2,126
1,591
30,795
32,682
29,786
6,711
29,170
33,716
16,692
12,761
9,259
19,230
19,241
17,229
1,698
4,100
1,380
5,745
2,920
6,472
1,336
16,249
6,707
61,721
45,790
33,508
(55,010
)
(16,620
)
208
(1,900
)
2,657
3,282
(620
)
(1,900
)
2,657
2,662
(56,910
)
(13,963
)
2,870
(1,696
)
3,679
(2,136
)
(58,606
)
(10,284
)
734
(14,932
)
$
(73,538
)
$
(10,284
)
$
734
$
(1.61
)
$
(0.30
)
$
0.02
(0.41
)
$
(2.02
)
$
(0.30
)
$
0.02
36,413
34,314
33,275
36,413
34,314
35,932
See notes to Consolidated Financial Statements.
35
BSQUARE CORPORATION
CONSOLIDATED STATEMENTS OF SHAREHOLDERS EQUITY
(in thousands, except share amounts)
Preferred Stock
Common Stock
Deferred
Accumulated Other
Total
Stock-Based
Comprehensive
Accumulated
Shareholders'
Shares
Amount
Shares
Amount
Compensation
Income (loss)
Deficit
Equity
46,246
$
250
32,509,978
$
90,845
$
(868
)
$
(15
)
$
(1,087
)
$
89,125
734
734
(239
)
(239
)
495
712,680
3,350
3,350
554
554
(46,246
)
(250
)
46,246
250
627,334
9,650
9,650
78,949
1,441
1,441
3,732
3,732
33,975,187
109,268
(314
)
(254
)
(353
)
108,347
(10,284
)
(10,284
)
(259
)
(259
)
(1,367
)
(1,367
)
(11,910
)
900,398
2,191
2,191
193
193
34,875,585
111,459
(121
)
(1,880
)
(10,637
)
98,821
(73,538
)
(73,538
)
188
188
1,367
1,367
(71,983
)
924,689
1,544
1,544
106
106
1,167,854
4,146
4,146
$
36,968,128
$
117,149
$
(15
)
$
(325
)
$
(84,175
)
$
32,634
See notes to Consolidated Financial Statements.
36
BSQUARE CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS
(in thousands)
Year Ended December 31,
2002
2001
2000
$
(73,538
)
$
(10,284
)
$
734
3,853
8,651
5,422
4,721
(3,854
)
168
3,476
1,698
4,100
14,932
16,249
6,707
6,472
1,336
3,732
64
507
814
(5,940
)
2,339
3,732
(7,113
)
(1,465
)
345
(1,539
)
(926
)
(1,253
)
(784
)
(142
)
224
(534
)
(5,787
)
(2,563
)
3,450
(1,324
)
(707
)
2,461
(35,318
)
2,841
10,911
(2,234
)
(4,875
)
(1,757
)
20,964
(6,623
)
(5,415
)
(14,294
)
(3,893
)
(1,183
)
(3,633
)
(75
)
(1,000
)
(4,878
)
14,762
(13,681
)
(29,977
)
(353
)
(66
)
(8
)
1,106
2,191
3,350
1,106
1,838
3,276
188
(261
)
(248
)
(19,262
)
(9,263
)
(16,038
)
30,303
39,566
55,604
$
11,041
$
30,303
$
39,566
See notes to Consolidated Financial Statements.
37
BSQUARE CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. Description of Business and Accounting Policies
Description of Business
BSQUARE Corporation, a Washington corporation, and its subsidiaries
(collectively, the Company) provides products and
services for the development and deployment of wireless and wireline
smart devices that use Microsoft Windows Embedded operating systems.
The Company is one of the leading system integrators for
Microsoft Windows Embedded operating systems and technologies and is
the leading
distributor of Microsoft Windows Embedded operating systems and tools. The
Companys customers include original equipment manufacturers
(OEMs), original design manufacturers (ODMs), software developers and network
operators. The Company markets its services and products on a worldwide basis through a
direct sales force augmented by distributors.
Principles of Consolidation
The consolidated financial statements include the accounts of the Company and
its wholly owned subsidiaries. All intercompany balances and transactions have
been eliminated. Accounts denominated in foreign currencies have been
translated to U.S. dollars from their functional currency.
Business Combinations
For business combinations that have been accounted for under the purchase
method of accounting, the Company includes the results of operations of the
acquired business from the date of acquisition. Net assets of the companies
acquired are recorded at their fair value at the date of acquisition. The
excess of the purchase price over the fair value of tangible and identifiable
intangible net assets acquired is included in goodwill in the accompanying
consolidated balance sheets.
For business combinations that have been accounted for under the pooling of
interests method of accounting, the assets, liabilities and shareholders
equity of the acquired entity are combined with the Companys respective
accounts at recorded values and the consolidated financial statements are
restated to reflect the historical results of the pooled entity. The historical
results of the pooled entity reflect its actual operating cost structures and,
as a result, do not necessarily reflect the cost structure of the
newly-combined entity and may not be indicative of future results.
Use of Estimates
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions
that affect the reported amounts of assets and liabilities, the disclosure of
contingent assets and liabilities at the date of the financial statements and
the reported amounts of revenue and expenses during the reporting period.
Actual results could differ from those estimates. Estimates are used for, but
not limited to, assessing the collectibility of accounts receivable, the
realization of deferred tax assets, useful lives of tangible and intangible
assets, restructuring-related liabilities and contingencies. Estimates and
assumptions are reviewed periodically, and the effects of revisions are
reflected in the consolidated financial statements in the period they are
determined to be necessary.
Earnings Per Share
Basic earnings per share is computed using the weighted average number of
common shares outstanding during the period, net of shares subject to
repurchase, and excludes any dilutive effects of common stock equivalent
shares, such as options and warrants (using the treasury stock method) and
convertible securities (using the if-converted method). Diluted earnings per
share is computed using the weighted average number of common and common stock
equivalent shares outstanding during the period; common stock equivalent shares
are excluded from the computation if their effect is antidilutive.
38
Cash and Cash Equivalents
Cash and cash equivalents include demand deposits, money market accounts and
all highly liquid debt instruments with a purchased maturity date of three
months or less.
Restricted Cash
Restricted cash represents time deposits held at financial institutions as
security for outstanding letters of credit expiring through 2005 in connection
with the Companys office space.
Short-term Investments
The Companys short-term investments consist primarily of investment-grade
marketable securities, which are classified as held to maturity and recorded at
amortized cost. Due to the short-term nature of these investments, changes in
market interest rates would not have a significant impact on the fair value of
these securities that are carried at amortized cost, which approximates fair
value.
Other Investments
The Companys other investments consist of voting capital stock of technology
companies. These investments are accounted for under the cost method as the
Company owns less than 20% of the outstanding shares and does not have
significant influence. To the extent that the capital stock held is in a public
company and the securities have a quoted market price, the investment is marked
to market. The Companys policy is to regularly review operating performance in
assessing the carrying value investments in non-public companies. During 2002,
the Company recognized an other than-temporary impairment charge of $3.5
million related to these investments (the charge is included in Investment income (expense), net).
Financial Instruments and Concentrations of Credit Risk
The Company has the following financial instruments: cash and cash equivalents,
short-term investments, accounts receivable, accounts payable and accrued
liabilities. The carrying value of cash and cash equivalents, short-term
investments, accounts receivable, accounts payable, and accrued liabilities
approximates fair value based on the liquidity of these financial instruments
or based on their short-term nature.
The Company performs ongoing credit evaluations of its customers financial
condition, and generally does not require collateral. The Company records an
allowance for potential credit losses based on these ongoing credit evaluations
and the expected collectibility of total accounts receivable.
Furniture, Equipment and Leasehold Improvements
Furniture, equipment and leasehold improvements are stated at cost less
accumulated depreciation. Depreciation is provided on the straight-line method
over estimated useful lives, generally three to four years. Leasehold
improvements are amortized over the shorter of the lease term or estimated
useful lives. Maintenance and repairs costs are expensed as incurred. When
properties are retired or otherwise disposed of, gains or losses are reflected
in the statement of operations. When facts and circumstances indicate that the
cost of long-lived assets may be impaired, an evaluation of recoverability is
performed by comparing the carrying value of the asset to projected future cash
flows. Upon indication that the carrying value of such assets may not be
recoverable, the Company recognizes an impairment loss by a charge against
current operations.
Goodwill and Other Intangible Assets
Effective January 1, 2002, the Company adopted Statement of Financial
Accounting Standards (SFAS) No. 142 Goodwill and Other Intangible Assets.
SFAS No. 142 requires that purchased goodwill and certain indefinite-lived
intangibles no longer be amortized, but instead be tested for impairment at
least annually. SFAS No. 142 prescribes a two-phase process for impairment
testing of goodwill. The first phase screens for impairment; while the second
phase measures impairment. See Note 4 for further discussion.
Software Development Costs
Under the criteria set forth in SFAS No. 86, Accounting for the Costs of
Computer Software to Be Sold, Leased, or Otherwise Marketed, capitalization of
software development costs begins upon the establishment of technological
feasibility of the product, which the Company has defined as the completion of
beta testing of a working product. The establishment of technological
39
feasibility and the ongoing assessment of the recoverability of these costs
require considerable judgment by management with respect to certain external
factors, including, but not limited to, anticipated future gross product
revenue, estimated economic life and changes in software and hardware
technology. Amounts that could have been capitalized under this statement after
consideration of the above factors were immaterial and, therefore, no software
development costs have been capitalized by the Company to date.
Research and Development
Research and development costs are expensed as incurred.
Advertising Costs
All costs of advertising, including cooperative marketing arrangements offered
by the Company, are expensed as incurred. Advertising expense totaled $705,
$192 and $220 for the years ended December 31, 2000, 2001 and 2002,
respectively.
Stock-Based Compensation
The Company has elected to follow Accounting Principles Board (APB) Opinion No.
25, Accounting for Stock Issued to Employees, and related interpretations, in
accounting for employee stock options rather than the alternative fair value
accounting allowed by SFAS No. 123, Accounting for Stock-Based Compensation.
Under APB No. 25, compensation expense related to the Companys employee stock
options is measured based on the intrinsic value of the stock option. SFAS No.
123, amended by SFAS No. 148 Accounting for Stock-Based-Compensation
Transition and Disclosure, requires companies that continue to follow APB No.
25 to provide pro forma disclosure of the impact of applying the fair value
method of SFAS No. 123. The Company recognizes compensation expense for
options granted to non-employees in accordance with the provisions of SFAS No.
123 and the Emerging Issues Task Force consensus Issue 96-18, Accounting for
Equity Instruments that are Issued to Other Than Employees for Acquiring, or in
Conjunction with Selling, Goods or Services, which require using a
Black-Scholes option pricing model and re-measuring such stock options to the
current fair market value as the underlying option vests.
Deferred stock-based compensation consists of amounts recorded when the
exercise price of an option is lower than the subsequently determined fair
value of the underlying common stock on the date of grant. Deferred
stock-based compensation is amortized in accordance with FASB
Interpretation No. 28, on an accelerated basis, over the vesting period of the underlying
option.
Pro forma information regarding net loss is required by SFAS No. 123 and SFAS
No. 148 as if the Company had accounted for its employee stock options under
the fair value method. The fair value of the Companys options
was estimated on the date of grant using the Black-Scholes method, with the following assumptions:
Because the determination of the fair value of the Companys options is based on
assumptions described above, and because additional option grants are expected
to be made in future periods, this pro forma information is not likely to be
representative of the pro forma effects on reported net income or loss for
future periods.
For purposes of pro forma disclosures, the estimated fair value of the options
is amortized to expense over the options vesting period. The following table
illustrates what net loss would have been had the Company accounted for its
stock options under the provisions of SFAS 123:
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Income Taxes
The Company computes income taxes using the asset and liability method, under
which deferred income taxes are provided for the temporary differences between
the financial reporting basis and the tax basis of the Companys assets and
liabilities. Deferred tax assets and liabilities are measured using currently
enacted tax rates that are expected to apply to taxable income in the years in
which those temporary differences are expected to be recovered or settled. A
valuation allowance is established when necessary to reduce deferred tax assets
to the amounts expected to be realized.
Foreign Currency Translation
The functional currency of foreign subsidiaries is the local currency.
Accordingly, assets and liabilities are translated into U.S. dollars at
exchange rates in effect at the balance sheet date and income and expense
accounts at the average exchange rates during the year. Resulting translation
adjustments are included in Accumulated other comprehensive loss, a separate
component of shareholders equity. The net gains and losses resulting from
foreign currency transactions are recorded in the consolidated statements of
income in the period incurred and were not significant for any of the periods
presented.
Revenue Recognition
The Companys revenue recognition policy is in compliance with the provisions
of the American Institute of Certified Public Accountants Statement of
Position 97-2, Software Revenue Recognition as amended by Statement of
Position 98-9, Modification of SOP 97-2, Software Revenue Recognition With
Respect to Certain Transactions. In addition, in December 1999, the Securities
and Exchange Commission (SEC) issued Staff Accounting Bulletin (SAB) 101,
Revenue Recognition, which outlines the basic criteria that must be met to
recognize revenue and provides guidance for presentation of revenue and for
disclosure related to revenue recognition policies in financial statements
filed with the SEC. The Company believes that it is in compliance with the
provisions of SAB 101. Revenue is recognized when persuasive evidence of an
arrangement exists, products are delivered or services rendered, sales price is
fixed and determinable, and collectibility is reasonable assured.
Service revenue is derived from fees from professional services, porting and
development contracts, software maintenance and support contracts, and customer
training. Service revenue is recognized as follows:
Product revenue consists of licensing fees from software development tool
products and operating system licenses and royalty fees from embedded system
run-time licenses. Product licensing fees, including advanced production
royalty payments, are generally recognized when a customer license agreement
has been executed, the software has been shipped, remaining obligations are
insignificant and collection of the resulting account receivable is probable.
The Company recognizes license royalty income as the reseller reports when it
ships its product to distributors.
Revenue for transactions that include multiple deliverables such as hardware,
software, consulting, training, and support is allocated to each element based
on its relative fair value and recognized for each deliverable when the revenue
recognition criteria have been met for such deliverable. Fair value is
generally determined based on the price charged when the deliverable is sold
separately. In the absence of fair value of a deliverable, revenue is allocated
first to the fair value of the undelivered elements and the residual revenue to
the delivered elements. Revenue is recognized for delivered elements only when
the
41
Deferred revenue consists of deposits received from customers for service
contracts and unamortized service contract revenue as well as amounts deferred
for software sales for undelivered software elements.
Estimated costs of future warranty
claims and claims under indemnifications in connection with certain
licensing agreements are accrued based on historical experience.
Recent Accounting Pronouncements
In April 2002, the Federal Accounting Standards Board, or FASB, issued SFAS No.
145, which rescinds SFAS No. 4, Reporting Gains and Losses from Extinguishment
of Debt, and amends SFAS No. 64, Extinguishments of Debt Made to Satisfy
Sinking-Fund Requirements. This statement also rescinds SFAS No. 44,
Accounting for Intangible Assets of Motor Carriers, and amends SFAS No. 13,
Accounting for Leases. The Company has evaluated the impact of these changes
and does not expect the pronouncement to have a material impact on its
consolidated financial position, results of operations or cash flows.
In June 2002, the FASB issued SFAS No. 146, Accounting for Costs Associated
with Exit or Disposal Activities. This statement addresses financial
accounting and reporting for costs associated with exit or disposal activities
and nullifies Emerging Issues Task Force (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). This
statement requires that a liability for a cost associated with an exit or
disposal activity be recognized at fair value when the liability is incurred.
The Company will adopt the provisions of SFAS 146 on January 1, 2003. The
Company does not expect the pronouncement to have a material impact on its
consolidated financial position, results of operations or cash flows,
however, the adoption of this standard could impact the timing for
future exit or disposal activities if any.
In November 2002, the Emerging Issues Task Force (EITF) issued EITF Issue No.
00-21, Revenue Arrangements with Multiple Deliverables, which provides
guidance on the timing and method of revenue recognition for sales arrangements
that include the delivery of more than one product or service. EITF 00-21 is
effective prospectively for arrangements entered into in fiscal periods
beginning after June 15, 2003. The Company does not expect that the adoption of
EITF 00-21 will have a significant impact on its consolidated financial
statements.
In November 2002, the FASB issued FASB Interpretation No. 45 (FIN 45),
Guarantors Accounting and Disclosure Requirements for Guarantees, Including
Indirect Guarantees of Indebtedness of Others, an interpretation of FASB
Statements No. 5, 57 and 107 and Rescission of FASB Interpretation No. 34. FIN
45 clarifies the requirements of SFAS No. 5, Accounting for Contingencies,
relating to the guarantors accounting for, and disclosure of, the issuance of
certain types of guarantees. The disclosure provisions of FIN 45 are effective
for the Companys 2002 financial statements. However,
the provisions for initial recognition and measurement are effective on a
prospective basis for guarantees that are issued or modified after December 31,
2002. The Company is still assessing the potential impact on its results from
operations from the adoption of FIN 45.
In
January 2003, the FASB issued FASB Interpretation No. 46
(FIN 46), Consolidation of Variable Interest
Entities. FIN 46 clarifies the application of Accounting
Research Bulletin No. 51, Consolidated Financial
Statements, to certain entities in which equity investors do
not have the characteristics of a controlling financial interest or
do not have sufficient equity at risk for the entity to finance its
activities without additional subordinated financial support from
other parties. FIN 46 applies immediately to variable interest
entities created after January 31, 2003, and to variable
interest entities in which an enterprise obtains an interest after
that date. It applies in the beginning of the third quarter of 2003, to variable entities in which an
enterprise holds a variable interest that it acquired before
February 1, 2003. FIN 46 applies to public enterprises as
of the beginning of the applicable interim or annual period. The
Company does not believe there will be a material effect upon its
financial condition or results of operations from the adoption of the
provisions of FIN 46.
Reclassifications
Certain prior year amounts have been reclassified to conform to the current
year presentation. For the year ended December 31, 2001,
$3.1 million of restructuring costs have been reclassified to
long-term liabilities based on the timing of payments associated with
the liability.
2. Cash and Short-Term Investments
The Companys cash, cash equivalents and short-term investments consist of the
following:
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3. Furniture, Equipment and Leasehold Improvements
Major classifications of furniture, equipment and leasehold improvements
consist of the following:
4. Goodwill and Other Intangible Assets
Effective January 1, 2002, the Company adopted SFAS No. 142, which requires
companies to discontinue amortizing goodwill and certain intangible assets with
an indefinite useful life. SFAS No. 142 requires that goodwill and indefinite
life intangible assets be reviewed for impairment upon adoption of the
accounting standard and annually thereafter, or more frequently if impairment
indicators arise. During the third quarter of 2002, the Company completed its
initial evaluation of goodwill and other intangible assets acquired in prior years, as
required. As a result, the Company recorded a retroactive impairment loss of
$14.9 million as of January 1, 2002 as the cumulative effect of this change in
accounting principle.
In addition, due to weaker-than-expected demand for telematics products and
services, the Company significantly reduced its telematics personnel, most of
whom joined the Company through the acquisition of Infogation Corporation. As a
result, the Company evaluated the carrying value of the goodwill and other
intangible assets associated with the purchase of Infogation and recognized an
impairment loss of $6.5 million in the third quarter of 2002. In calculating
these impairment losses, the Company evaluated the fair value of its reporting
units by estimating the expected present value of their future cash
flows. In addition, the Company no longer expects to actively pursue
telematic work.
During 2001, the Company recognized an impairment loss of $1.3 million related
to goodwill associated with an engineering facility in Eden Prairie, Minnesota,
which was closed in January 2002.
The 2000 and 2001 results on a historical basis do not reflect the provisions
of SFAS No. 142. Had the Company adopted SFAS No. 142 on January 1, 2000, the
historical net income (loss) and basic and diluted net earnings (loss) per
share would have been changed to the adjusted amounts indicated below:
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The Companys intangible assets subject to amortization consist of the
following:
The changes in the carrying amount of goodwill for the year ended December 31,
2002, are as follows:
Intangible assets subject to amortization are amortized over their deemed
useful lives, ranging from eighteen to thirty-six months. Based on the
current amount of intangible assets subject to amortization, the estimated
amortization expense for the years ending December 31, 2003 and 2004 is $583
and $267, respectively, and zero thereafter.
5. Income Taxes
The income tax benefit (provision) consists of the following:
The components of net deferred tax assets (liabilities) consist of the
following:
44
The provision for income taxes differs from the amount of income tax determined
by applying the applicable U.S. statutory federal income tax rate to pre-tax
income, as a result of the following:
The Company has provided full valuation allowances on deferred tax assets
during 2002 because of the uncertainty regarding their realizability. The
valuation allowance increased $25.7 million in 2002 and $450 in 2001. At
December 31, 2002, the Company had approximately $47.9 million of net operating
loss carryforwards, and $1.0 million of tax credit carryforwards, which begin
to expire in 2022.
6. Bank Line of Credit
At December 31, 2001, the Company had available a $5.0 million secured domestic
revolving line of credit, with interest accruing at the banks prime rate plus
0.5%. The Company had $1.2 million in standby letters of credit issued and
outstanding under the agreement and was in compliance with all covenants. The
line of credit expired in 2002 and the Company chose not to renew it.
7. Commitments and Contingencies
Lease Commitments
The Company leases its offices under non-cancelable operating leases that
expire at various dates through 2005. During the years ending December 31,
2002, 2001 and 2000, rental expense was $4.6 million, $6.5 million and $4.7
million, respectively. Minimum rental commitments under non-cancelable
operating leases at December 31, 2002 are as follows:
45
The Companys corporate headquarters are located in a single location in
Bellevue, Washington. In September 2002, the Company executed an amendment to
the terms of the lease for its corporate headquarters. The amendment allowed
the Company to surrender approximately 56,700 square feet of unused office
space in late 2002 and early 2003 and the remainder of the space as of December
31, 2004, almost five years earlier than the original termination date. To
achieve these terms, the Company agreed to pay $4.3 million, of which $1.8
million was paid in September 2002 and the remaining $2.5 million is due in
quarterly installments through 2004.
The Company pledged $5.9 million to banks as collateral for letters of credit
issued to landlords for deposits against lease commitments. The pledged cash is
recorded as restricted cash, which may be reduced annually by amounts specified
in the lease agreement upon the Companys achieving certain economic goals.
Legal Proceedings
In summer and early fall 2001, four purported shareholder class action lawsuits
were filed in the United States District Court for the Southern District of New
York against the Company, certain of the Companys current and former officers
and directors (the Individual Defendants), and the underwriters of the
Companys initial public offering. The suits purport to be class actions filed
on behalf of purchasers of the Companys common stock during the period from
October 19, 1999 to December 6, 2000. The complaints against the Company have
been consolidated into a single action and a Consolidated Amended Complaint,
which is now the operative complaint, was filed on April 19, 2002. Plaintiffs
allege that the underwriter defendants agreed to allocate stock in the
Companys initial public offering to certain investors in exchange for
excessive and undisclosed commissions and agreements by those investors to make
additional purchases of stock in the aftermarket at pre-determined prices.
Plaintiffs allege that the prospectus for the Companys initial public offering
was false and misleading in violation of the securities laws because it did not
disclose these arrangements. The action seeks damages in an unspecified
amount. The action is being coordinated with approximately 300 other nearly
identical actions filed against other companies. On July 15, 2002, the Company
moved to dismiss all claims against it and the Individual Defendants. On
October 9, 2002, the Court dismissed the Individual Defendants from the case
without prejudice based upon Stipulations of Dismissal filed by the plaintiffs
and the Individual Defendants. On February 19, 2003, the Court denied the
motion to dismiss the complaint against the Company. The Company
disputes the allegations of wrongdoing in this complaint and intends to
defend this action vigorously. However, due to the inherent uncertainties of
litigation, the Company cannot accurately predict the ultimate outcome of the
litigation. Any unfavorable outcome of litigation could have an adverse impact
on the Companys business, financial condition and results of operations.
On February 28, 2003 the Company, its Chief Executive Officer and its former
Chief Financial Officer, together with Credit Suisse First Boston
(CSFB), the lead
underwriter involved in the Companys IPO, were named as defendants in a
separate purported class action suit filed in the United States District Court
for the Southern District of Florida. The complaint makes similar
allegations against approximately 50 other companies for which CSFB
was the lead or co-lead underwriter of an initial public offering. The complaint alleges claims against the
Company and the individuals for violations of the Securities Act of 1933
and/or violations of the Securities and Exchange Act of 1934 and Rule 10b-5
promulgated thereunder. The complaint also alleges claims based on common law
theories of fraud, negligent misrepresentation, respondeat superior, as well as
Floridas state securities laws. The complaint alleges that the defendants
disseminated false and misleading information to the public, which
misrepresented the Companys initial public offering price and its financial condition and future
revenue prospects. The complaint further alleges that the effect of the
purported fraud was to manipulate the Companys stock price so that the
defendants could profit from the manipulation. The action seeks damages in an
unspecified amount. No date has been set for a response to this complaint.
The Company disputes the allegations of wrongdoing in this complaint and
intends to vigorously defend this action. Again, due to
the inherent uncertainties of litigation, the Company cannot accurately predict
the ultimate outcome of the litigation. Any unfavorable outcome of litigation
could have an adverse impact on our business, financial condition and results
of operations.
Advance to Lineo
In connection with a potential acquisition, the Company advanced $1.8 million
in January 2002 to Lineo, Inc. (Lineo) as a working capital loan. This amount
is included in other non-current assets in the accompanying consolidated
balance sheet. The Company subsequently terminated negotiations for the
acquisition and is seeking repayment of the advance, which was guaranteed by
Canopy Group, Inc. (Canopy), an investor of Lineo. On
November 6, 2002, the Company filed a complaint in King County Superior Court against Lineo
and Canopy seeking repayment of the advance (plus costs and
expenses). Subsequently, on February 19, 2003, Embedix, Inc., the alleged
successor-in-interest to Lineo, filed a complaint against the Company in United States
District Court, Central Division, District of Utah, alleging securities law
violations and related state law claims in connection with the same
transaction. The Company believes the complaint is without merit and intends to defend these claims vigorously. However, due to
the inherent uncertainties of litigation, the Company cannot accurately predict the
ultimate outcome of this litigation. Any
46
unfavorable outcome of this litigation
could have an adverse impact on the Companys
business, financial condition and results of operations.
8. Shareholders Equity
Common Stock Reserved for Future Issuance
At December 31, 2002, the Company had 8,564,682 shares of common stock reserved
for future issuances under Stock Option Plans.
Stock Options
In May 1997, the Company adopted the Amended and Restated Stock Option Plan
(the Amended Plan). Under the Amended Plan, the Board of Directors may grant
nonqualified stock options at a price determined by the Board, not to be less
than 85% of the fair market value of the common stock. These options have a
term of up to 10 years and vest over a schedule determined by the Board of
Directors, generally four years. Incentive stock options granted under this
program may only be granted to employees of the Company, have a term of up to
10 years, and shall be granted at a price equal to the fair market value of the
Companys stock. The Amended Plan was amended in 2000 to allow for an annual
increase in the number of shares reserved for issuance during each of the
Companys fiscal years by an amount equal to the lesser of (i) four percent of
the Companys outstanding shares at the end of each fiscal year or (ii) an
amount determined by the Board of Directors.
In July 2000, the Company adopted the 2000 Non-Qualified Stock Option Plan (the
2000 Plan). Under the 2000 Plan, the Board of Directors may grant
non-qualified stock options at a price determined by the Board. These stock
options have a term of up to 10 years and vest over a schedule determined by
the Board of Directors, generally over four years.
The Company has assumed certain options granted to employees of acquired
companies, referred to as acquired options. These options were assumed by the
Company outside of its stock option plans, and are administered as if issued
under their original plans. All of the acquired options have been adjusted to
reflect the price conversion under the terms of the agreements between the
Company and the companies acquired. The acquired options generally become
exercisable over a four-year period and generally expire ten years from the
date of grant. No additional options will be granted under any of the acquired
companies plans.
A summary of all stock option activity follows:
47
The following table summarizes information concerning currently outstanding and
exercisable options at December 31, 2002:
1999 Employee Stock Purchase Plan
On July 21, 1999, the Board of Directors approved the adoption of the Companys
1999 Employee Stock Purchase Plan (the 1999 Purchase Plan). Under the 1999
Purchase Plan, the Company was authorized to sell up to 1,500,000 shares of
common stock in a series of eighteen-month offerings. In March 2002, the
Companys shareholders approved an amendment to the 1999 Purchase Plan to
increase the authorized shares of common stock to sell to 2,500,000. The 1999
Purchase Plan permitted eligible employees of the Company and its subsidiaries
to acquire shares of the Companys common stock through periodic payroll
deductions of up to 10% of base cash compensation. The price at which the
common stock was purchased was 85% of the lesser of 1) the fair market value of
the Companys common stock on the first day of the applicable offering period
or 2) the fair market value of the shares on the purchase date. The initial
offering period commenced on the effectiveness of the initial public offering.
During the year ended December 31, 2002, 2001 and 2000, the Company issued
230,129, 468,894 and 182,962 shares under the plan, respectively. The plan was
terminated by the Company during 2002.
Deferred Stock-Based Compensation
In connection with the grant of certain stock options to employees and
consultants during 1999, the Company recorded deferred-stock based compensation
of $1.1 million, representing the difference between the estimated fair value
of the common stock for accounting purposes and the option exercise price of
such options at the date of grant. Such amount is presented as a reduction of
shareholders equity and amortized, in accordance with FASB Interpretation No.
28, on an accelerated basis over the vesting period of the applicable options
(generally four years). During the twelve months ended December 31, 2000, 2001
and 2002, the Company recorded aggregate deferred stock-based compensation of
$554, $193 and $106, respectively. Compensation expense is decreased in the
period of forfeiture for any accrued but unvested compensation arising from the
early termination of an option holders services.
9. Employee Benefit Plan
Profit Sharing and Deferred Compensation Plan
The Company has a Profit Sharing and Deferred Compensation Plan (Profit Sharing
Plan) under Section 401(k) of the Internal Revenue Code of 1986, as amended.
Substantially all full-time employees are eligible to participate. The Company,
at its discretion, may elect to match the participants contributions to the
Profit Sharing Plan. Participants will receive their share of the value of
their investments upon retirement or termination, subject to a vesting
schedule. During the years ended December 31, 2002, 2001 and 2000, the Company
made matching contributions to the Profit Sharing Plan of $665, $922
and $760,
respectively.
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10. Supplemental Disclosure of Cash Flow Information
All other significant non-cash financing activities are listed elsewhere in the
financial statements or the notes thereto.
11. Significant Customers
For the years ended December 31, 2000, 2001 and 2002, approximately 58%, 40%
and 16% of the Companys revenue, respectively, was generated
under its master
development and license agreement with Microsoft, which
concludes in 2003. As of
December 31, 2001 and 2002 Microsoft represented 21% and 1% of total accounts
receivable, respectively.
12. Geographic and Segment Information
The Company follows the requirements of Statement of Financial Accounting
Standards No. 131 (SFAS 131), Disclosures About Segments of an Enterprise and
Related Information. As defined in SFAS No. 131, the Company operates in two
reportable segments: service and products. The following table summarizes total
revenue and long-lived assets attributed to significant countries:
The service segment includes revenue earned for design and development of
integration tools for semiconductor vendors, original equipment manufacturers,
original design manufacturers, and network administrators. The product segment
includes revenue earned from licensing of software products to original
equipment manufacturers, distributing products through resellers, and
distribution of third-party products. The accounting policies for these
segments are described in the summary of significant accounting policies.
The Company does not track assets or operating expenses by operating segments.
Consequently, it is not practicable to show assets or operating expenses by
operating segments.
49
13. Quarterly Financial Information (Unaudited)
Summarized quarterly financial information for 2002 and 2001 are as
follows:
14. Earnings (Loss) Per Share
The following is a reconciliation of the numerators and denominators used in
computing basic and diluted earnings (loss) per share:
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15. Consolidation of Excess Facilities and Restructuring Charge
Due to the decline in the U.S. and international economies, as well as the
reduction in the Companys business with Microsoft, the Company has taken a number of
steps to reduce expenses that have led to restructuring charges.
During 2001, the Company recorded a restructuring charge of $6.7 million
related to the consolidation of excess facilities and other charges. Of this
amount, approximately $5.4 million represents the value of excess facilities
under noncancelable leases. Property and equipment that was disposed of or
removed from operations resulted in a charge of $1.1 million and primarily
consisted of leasehold improvements, computer equipment and related software,
production, engineering, and other equipment. In July 2001, the Company also
recorded restructuring costs of $227 for severance and other costs associated
with a reduction of workforce.
On January 8, 2002, the Company completed a company-wide reduction in workforce
of 100 employees, representing approximately 20% of the Companys total
employees at the time, including the closure of the Companys 25-person
professional service engineering facility in Eden Prairie, Minnesota. In
connection with this reduction in force, the Company recorded a restructuring
charge of $2.2 million during the first quarter of 2002, consisting of $1.1
million for severance and other benefits paid by the Company and $1.1 million
primarily for excess facilities under non-cancelable leases.
On July 17, 2002, the Company announced a company-wide reduction in workforce
of 110 employees or 30% of the workforce that was completed in the fourth
quarter of 2002. These reductions included the curtailment of certain research
and development initiatives and reductions in the Companys engineering
services, sales, general and administrative departments. In connection with
this reduction in force, the Company recorded a restructuring charge of $9.9
million during the third quarter of 2002, which included $1.5 million for
severance and other benefits paid by the Company, $6.4 million for excess
facilities primarily relating to non-cancelable leases and early lease
termination fees, and $2.0 million of property and equipment that was disposed
of or abandoned.
On December 16, 2002, the Company announced a reduction in workforce of
approximately 25% of the remaining workforce to be completed by February 14,
2002. 50 employees were terminated in the fourth quarter of 2002, with 20 more
terminated in the first quarter of 2003. In connection with this
reduction in force, the Company recorded a restructuring charge of $4.2 million
during the fourth quarter of 2002, consisting of $1.1 million for severance and
other benefits paid by the Company, $1.9 million for excess facilities and
changes in prior estimates relating to non-cancelable leases, and $1.2 million
of property and equipment that was disposed of or abandoned.
The accrued restructuring costs and other related charges are summarized as
follows:
Included in the charges recorded in 2002 were net non-cash adjustments of $1.1
million, due to changes in estimates and assumptions related to the impact of
subleasing excess facilities and the successful negotiation of an early lease
termination. Other related charges recorded in 2002 included impairment losses
of $3.2 million for property and equipment that were disposed of or abandoned.
In calculating the impairment loss, the Company evaluated the fair value of the
assets located in the facilities to be abandoned by estimating the expected
present value of their future cash flows. The net lease payments for the
excess facilities will be paid over the related lease terms through 2005. The
Company continues to market its excess space for sublease.
16. Acquisitions
BlueWater Systems, Inc.
On January 5, 2000, the Company acquired BlueWater Systems, Inc. in a
transaction accounted for as a pooling of interests. BlueWater Systems,
formerly located in Edmonds, Washington, was dedicated to the design of software
development tool kits and system integration services for the creation of
Windows-based intelligent computing devices.
51
The transaction was effected through the exchange of 261,391 shares of BSQUARE
common stock for all of the issued and outstanding common shares of BlueWater
Systems. The consolidated financial statements of BSQUARE have been restated
for all periods prior to the merger to include the accounts and operations of
BlueWater Systems, Inc. In connection with the acquisition, the Company
incurred $620 ($515 after taxes, or $0.01 per diluted share) of
acquisition-related costs, which were charged to operations during the three
months ended March 31, 2000.
Mainbrace Corporation
On May 24, 2000, the Company acquired Mainbrace Corporation in a transaction
accounted for as a purchase. Mainbrace, located in Sunnyvale, California, was a
leading IP-licensing and enabling software firm delivering product solutions to
high volume market segments including set-top boxes, Web-enabled phones,
wireless thin clients, and electronic book readers. Total consideration
included the issuance of 627,334 shares of BSQUARE common stock, and
approximately $10,800 in cash. The Company also assumed Mainbraces outstanding
vested and unvested employee stock options, which were converted into the right
to acquire 172,629 shares of the Companys common stock. Mainbraces options
had a fair market value of approximately $552.
A summary of the purchase price for the acquisition is as follows:
The purchase price was allocated as follows:
The excess of consideration paid over the fair value of the net assets acquired
was recorded as goodwill and other intangible assets and is amortized over
periods ranging from two to seven years. During 2002, the goodwill
associated with this acquisition was included in the impairment loss
recognized upon the transition to SFAS No. 142 as the cumulative
effect of change in accounting principle.
In accordance with generally accepted accounting principles, the amount
allocated to in-process research and development, which was determined by an
independent valuation, has been recorded as a charge to expense in the second
quarter of 2000 because its technological feasibility had not been established
and it had no alternative future use at the date of acquisition.
The results of operations of Mainbrace have been included in the Companys
consolidated results beginning May 25, 2000. The following table presents
unaudited pro forma results of operations as if the acquisition of Mainbrace
had occurred at January 1, 2000. The unaudited pro forma information is not
necessarily indicative of the combined results that would have occurred had the
acquisition taken place at the beginning of the period presented, nor is it
necessarily indicative of future results.
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Infogation Corporation
On March 13, 2002, the Company acquired Infogation Corporation (Infogation) in
a purchase transaction valued at approximately $8.7 million. Infogation,
located in San Diego, California, was dedicated to the development of on-board
and handheld vehicle navigation systems (telematics), a line of business the
Company believed would complement its service and product offerings. Total
consideration included the issuance of approximately 1.2 million shares of
BSQUARE common stock valued at $3.55 per share, the market price on the date of
closing, and approximately $3.9 million in cash. The Company assumed
Infogations outstanding vested and unvested employee stock options, which were
converted into options to acquire approximately 200,000 shares of the Companys
common stock. The fair value of these vested and unvested options were included
in the purchase price and recorded as deferred stock compensation. In addition,
$300 of cash and 129,762 shares of common stock were held in escrow
subject to the indemnification provisions of the merger agreement. The
agreement also contains provision for the payment of up to $3.0 million of
additional consideration in cash and/or common stock based upon the attainment
of certain revenue targets, as defined in the merger agreement. The cash held
in escrow is included in restricted cash at December 31, 2002.
A summary of the purchase price paid in connection with the acquisition of
Infogation is as follows:
The purchase price was allocated as follows:
The excess of consideration paid over the fair value of the net assets acquired
was recorded as goodwill and other intangible assets as developed
technology. In accordance with generally accepted accounting principles, the amount
allocated to in-process research and development was recorded as a charge to
expense in the first quarter of 2002 because its technological feasibility had
not been established and it had no alternative future use at the date of
acquisition.
The results of operations of Infogation have been included in the Companys
consolidated results beginning March 14, 2002. The following table presents
unaudited pro forma results of operations as if the acquisition of Infogation
had occurred at the beginning of the periods presented. The unaudited pro forma
information is not necessarily indicative of the combined results that would
have occurred had the acquisition taken place at the beginning of the periods
presented, nor is it necessarily indicative of future results.
Due to weaker-than-expected demand for telematics products and services, the
Company has significantly reduced its telematics personnel, most of whom joined
the Company as a result of the Infogation acquisition. The Company
reduced the headcount in the telematics division from 23 employees in March 2002 to four
employees at December 31, 2002 and plans to eliminate the remaining positions
in early 2003. During the third quarter of 2002, the Company recorded
an impairment charge of $6.5 million for goodwill and intangible
assets resulting from the curtailment of the telematics operations.
53
(in thousands, except share and per share amounts)
Table of Contents
Table of Contents
Year Ended December 31,
2002
2001
2000
0
%
0
%
0
%
5 years
5 years
5 years
180
%
133
%
70
%
2.8
%
4.5
%
5.7
%
Year Ended December 31,
2002
2001
2000
(pro forma amounts unaudited)
$
(73,538
)
$
(10,284
)
$
734
(1,115
)
(9,341
)
(8,565
)
$
(74,653
)
$
(19,625
)
$
(7,831
)
$
(2.05
)
$
(0.57
)
$
(0.24
)
$
(2.05
)
$
(0.57
)
$
(0.22
)
Table of Contents
Time and Material Consulting Contracts.
The Company recognizes
revenue as services are rendered.
Fixed-Price Consulting Contracts.
Service revenue from fixed-price
contracts is recognized on the percentage-of-completion method, measured
by the cost incurred to date to the estimated total cost for the
contract. This method is used because management considers expended
costs to be the best available measure of contract performance. Contract
costs include all direct labor, material and any other costs related to
contract performance. Selling, general and administrative costs are
charged to expense as incurred. Provisions for estimated losses on
uncompleted contracts are made in the period in which such losses are
determined. Changes in job performance, job conditions and estimated
profitability may result in revisions in the estimate of total costs.
Any required adjustments due to these changes are recognized in the
period in which such revisions are determined.
Software Maintenance Contracts.
Software maintenance and support fees are recognized ratably over the contract period.
Customer Training.
Service revenue from training is recognized when the services are provided.
Table of Contents
December 31,
2002
2001
$
631
$
4,090
832
664
2,074
7,504
25,549
$
11,041
$
30,303
$
515
$
3,004
1,745
4,557
24,546
11,627
11,858
$
18,444
$
39,408
Table of Contents
December 31,
2002
2001
$
2,909
$
5,292
1,042
2,013
917
5,105
997
348
5,865
12,758
(2,741
)
(6,249
)
$
3,124
$
6,509
Depreciation expense was $2.5 million, $2.9 million and $2.5 million for the
years ended December 31, 2000, 2001 and 2002, respectively.
For the Year Ended December 31,
2002
2001
2000
$
(73,538
)
$
(10,284
)
$
734
4,978
1,732
(73,538
)
(5,306
)
2,466
$
(2.02
)
$
(0.30
)
$
0.02
0.15
0.05
$
(2.02
)
$
(0.15
)
$
0.07
Table of Contents
December 31, 2002
December 31, 2001
Accumulated
Accumulated
Gross
Amortization
Net
Gross
Amortization
Net
$
3,140
$
(3,140
)
$
$
3,140
$
(2,617
)
$
523
1,600
(800
)
800
1,600
(267
)
1,333
75
(25
)
50
$
4,815
$
(3,965
)
$
850
$
4,740
$
(2,884
)
$
1,856
$
$
$
$
20,318
$
(4,605
)
$
15,713
$
15,713
4,152
(19,082
)
(783
)
$
Year Ended December 31,
2002
2001
2000
$
2,856
$
768
$
(2,378
)
169
(69
)
(27
)
(4,721
)
2,980
269
$
(1,696
)
$
3,679
$
(2,136
)
December 31,
2002
2001
$
2,829
$
339
367
1,618
4,318
2,468
297
301
601
16,753
152
1,020
409
358
358
273
(26,191
)
(450
)
$
28
$
5,792
$
$
(1,043
)
(28
)
(28
)
$
(28
)
$
(1,071
)
Table of Contents
Year Ended December 31,
2002
2001
2000
35.0
%
34.0
%
34.0
%
(34.7
)
0.4
5.1
(16.5
)
(7.2
)
19.7
Year Ended December 31,
2002
2001
2000
4.7
(32.3
)
3.9
50.0
(5.0
)
(7.0
)
19.7
1.3
(3.3
)
(4.1
)
(3.0
)%
26.3
%
74.4
%
$
5,799
5,869
1,493
$
13,161
Table of Contents
Table of Contents
Number of
Available
Weighted
Options
for
Average
Outstanding
Issuance
Exercise Price
3,449,565
1,773,980
$
3.15
1,771,786
194,422
(194,422
)
1.92
1,512,124
(1,512,124
)
19.05
(529,718
)
0.86
(553,796
)
553,796
10.55
4,072,597
2,393,016
8.58
1,594,933
2,550,814
(2,550,814
)
5.73
(431,504
)
0.69
(1,013,237
)
1,013,237
0.27
5,178,670
2,450,372
7.48
1,660,356
178,893
(178,893
)
0.86
3,613,178
(3,613,178
)
1.34
(724,716
)
0.73
(2,520,173
)
2,520,173
7.70
5,725,852
2,838,830
4.12
Table of Contents
Outstanding
Exercisable
Weighted
Average
Weighted
Remaining
Average
Number of
Contractual
Number of
Exercise
Options
Life (Years)
Options
Price
198,522
4.55
198,022
$
0.06
2,462,130
9.37
446,183
0.82
1,530,475
8.12
747,879
2.59
1,534,725
7.58
671,685
13.68
5,725,852
8.41
2,063,769
5.57
Table of Contents
Year Ended December 31,
2002
2001
2000
$
1
$
41
$
38
(1,692
)
(328
)
1,050
11,044
9,650
4,146
1,441
Year Ended December 31,
2002
2001
2000
$
29,716
$
40,993
$
49,989
4,996
13,004
8,272
2,794
7,855
5,241
$
37,506
$
61,852
$
63,502
$
5,011
$
6,518
$
5,681
593
578
793
86
37
82
$
5,690
$
7,133
$
6,556
(1)
Revenue is attributed to countries based on location of customer
invoiced.
(2)
Long-lived assets do not include acquired intangible assets, goodwill or
long term investments.
Table of Contents
March 31,
June 30,
September 30,
December 31,
$
8,696
$
9,520
$
10,006
$
9,284
3,261
1,800
968
682
(9,799
)
(9,232
)
(24,201
)
(11,778
)
(9,235
)
(12,744
)
(25,547
)
(11,080
)
14,932
$
(24,167
)
$
(12,744
)
$
(25,547
)
$
(11,080
)
$
(0.68
)
$
(0.35
)
$
(0.69
)
$
(0.30
)
35,364
36,572
36,783
36,912
$
18,628
$
18,219
$
14,506
$
10,499
10,013
9,387
6,470
3,300
897
(206
)
(9,151
)
(8,160
)
$
830
$
461
$
(5,794
)
$
(5,781
)
$
0.02
$
0.01
$
(0.17
)
$
(0.17
)
34,003
34,190
34,388
34,672
35,368
35,615
34,388
34,672
(1)
Amounts presented for the quarter ended March 31, 2002 reflect the
cumulative effect of change in accounting principle attributable to the
adoption of SFAS 142, not previously reported in the Companys Form 10-Q
for that period.
Year Ended December 31,
2002
2001
2000
$
(73,538
)
$
(10,284
)
$
734
36,413
34,314
33,275
$
(2.02
)
$
(0.30
)
$
0.02
36,413
34,314
33,275
2,657
36,413
34,314
35,932
$
(2.02
)
$
(0.30
)
$
0.02
(1)
Common stock equivalents (in
thousands) of 1,660 and 748 have not been presented for the
2001 and 2002 period as their effect is anti-dilutive.
Table of Contents
Employee
Excess
Other Related
Separation Costs
Facilities
Charges
Total
$
$
$
$
227
6,480
6,707
(1,120
)
(1,120
)
(217
)
(836
)
(1,053
)
10
4,524
4,534
3,757
9,287
3,205
16,249
1,108
1,108
(2,513
)
(5,083
)
(7,596
)
(3,205
)
(3,205
)
$
1,254
$
9,836
$
$
11,090
Table of Contents
$
10,800
9,650
347
2,840
319
900
$
24,856
$
871
160
16,885
2,840
4,100
$
24,856
Year Ended December 31, 2000
(unaudited)
$
65,290
$
(2,023
)
$
(0.06
)
Table of Contents
$
2,700
4,146
413
971
429
$
8,659
$
(358
)
557
4,152
2,610
1,698
$
8,659
Year Ended December 31,
2002
2001
(unaudited)
$
37,956
$
64,569
(58,801
)
(12,389
)
(14,932
)
$
(73,733
)
$
(12,389
)
$
(1.61
)
$
(0.36
)
(0.41
)
$
(2.02
)
$
(0.36
)
Table of Contents
Item 9. | Changes in and Disagreements with Accountants on Auditing and Financial Disclosure |
On May 23, 2002 our Board of Directors approved the dismissal of Arthur Andersen LLP as our independent auditors and the appointment of Ernst & Young LLP to serve as our auditors for the fiscal year ended December 31, 2002. We filed a Current Report on Form 8-K dated May 28, 2002, as amended, to report this change in our certifying accountant.
PART III
Item 10. Directors and Executive Officers of the Registrant.
The information required in this Item regarding our directors and executive officers is set forth in Part I of this report under the heading Directors and Executive Officers, which information is incorporated herein by reference.
The information required by this Item regarding our compliance with Section 16(a) is included in our definitive proxy statement for our 2003 annual meeting of shareholders to be filed with the SEC under the caption Section 16(a) Beneficial Ownership Reporting Compliance and is incorporated herein by this reference.
Item 11. Executive Compensation.
The information required by this Item is included in our definitive proxy statement for our 2003 annual meeting of shareholders to be filed with the SEC under the caption Information Regarding Executive Officer Compensation and is incorporated herein by this reference.
Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Shareholder Matters.
The information required by this Item regarding security ownership is included in our definitive proxy statement for our 2003 annual meeting of shareholders to be filed with the SEC under the caption Security Ownership of Principal Shareholders, Directors and Management and is incorporated herein by this reference.
The information required by this Item regarding equity compensation plan information is included in our definitive proxy statement for our 2003 annual meeting of shareholders to be filed with the SEC under the caption Equity Compensation Plan Information and is incorporated herein by this reference.
Item 13. Certain Relationships and Related Transactions.
The information required by this Item is included in our definitive proxy statement for our 2003 annual meeting of shareholders to be filed with the SEC under the caption Certain Relationships and Related Transactions and is incorporated herein by this reference.
Item 14. Controls and Procedures.
Within the 90-day period prior to the date of this report, we carried out an evaluation, under the supervision and with the participation of our management, including our Chief Executive Officer and Chief Financial Officer, of the effectiveness of the design and operation of our disclosure controls and procedures pursuant to Rule 13a-14 of the Securities Exchange Act of 1934 (the Exchange Act). Based upon that evaluation, the Chief Executive Officer and Chief Financial Officer concluded that our disclosure controls and procedures are effective in timely alerting them to material information relating to us (including our consolidated subsidiaries) required to be included in our Exchange Act filings. Subsequent to the date we carried out our evaluation, there have been no significant changes in our internal controls or in other factors, which could significantly affect our internal controls, nor were any corrective actions required with regard to significant deficiencies and material weaknesses.
54
PART IV
Item 15. Exhibits, Financial Statement Schedules and Reports on Form 8-K.
(a) Financial Statements and Schedules
1. | Financial Statements. |
A. | Consolidated Balance Sheets at December 31, 2001 and 2002. | |
B. | Consolidated Statements of Operations for the Years Ended December 31, 2000, 2001 and 2002. | |
C. | Consolidated Statements of Shareholders Equity. | |
D. | Consolidated Statements of Cash Flows for the Years Ended December 31, 2000, 2001 and 2002. |
2. | Financial Statement Schedules. |
A. | Schedule II Valuation and Qualifying Accounts. |
Financial statement schedules not included herein have been omitted because they are either not required, not applicable, or the information is otherwise included herein.
(b) Reports on Form 8-K
On December 2, 2002, we filed a Form 8-K announcing the appointment of Elwood D. Howse, Jr. to our Board of Directors and Chairman of our Audit Committee.
On December 16, 2002, we filed a Form 8-K announcing a more focused product and service strategy and company-wide restructuring to reduce operating expenses.
(c) Exhibits
Exhibit
Number
Description
3.1
Amended and Restated Articles of Incorporation(1)
3.1(a)
Articles of Amendment to Amended and Restated Articles of Incorporation(2)
3.2
Bylaws and all amendments thereto
4.1
See Exhibits 3.1, 3.1(a) and 3.2 for provisions defining the rights of the holders of common stock
10.1
Amended and Restated Stock Option Plan(1)
10.1(a)
1998 Mainbrace Stock Option Plan(3)
10.1(b)
2000 Non-Qualified Stock Option Plan(4)
10.1(c)
Infogation Corporation 1996 Stock Option Plan(12)
10.1(d)
Infogation Corporation 2001 Stock Options/Stock Issuance Plan(12)
10.2
Employee Stock Purchase Plan(1)
10.2(a)
Amendment No. 1 to the Employee Stock Purchase Plan(13)
10.3
401(k) Plan(1)
10.4
Form of Indemnification Agreement(1)
10.6
Office Lease Agreement between Seattle Office Associates, LLC and BSQUARE Corporation dated March
24, 1997 (for Suite 100)(1)
10.7
Sunset North Corporate Campus Lease Agreement between WRC Sunset North and BSQUARE Corporation(1)
10.8
First Amendment to Office Lease Agreement between WRC Sunset North LLC and BSQUARE(5)
10.9*
Master Development & License Agreement between Microsoft Corporation and BSQUARE Corporation
dated effective as of October 1, 1998(1)
55
Exhibit
Number
Description
10.9(a)*
Amendment No. 1 to the Master Development and License Agreement between BSQUARE Corporation and
Microsoft Corporation dated December 23, 1999 (6)
10.9(b)*
Amendment No. 2 to the Master Development and License Agreement between BSQUARE Corporation and
Microsoft Corporation dated July 26, 2001(6)
10.10
Stock Purchase and Shareholders Agreement dated as of January 30, 1998(1)
10.11
Stock Purchase Agreement dated August 18, 1999 by and between BSQUARE Corporation and Vulcan
Ventures Incorporated(1)
10.12
Agreement and Plan of Merger among BSQUARE, BlueWater Systems, Inc. and H2O Merger Corporation
dated as of January 5, 2000(7)
10.13
Agreement and Plan of Merger among BSQUARE Corporation, Mainbrace Corporation and Mainbrace
Acquisition Inc. dated as of May 10, 2000 (8)
10.14
Single-Tenant Commercial Space Lease among One South Park Investors, Paul Enterprises and FKLM as
Landlord and BSQUARE as Tenant(9)
10.15
Single-Tenant Commercial Space Lease (NNN), dated as of August 30, 2000, by and between One South
Park Investors, Partnership and BSQUARE Corporation (10)
10.16
Fourth Amendment to Office Lease Agreement between WRC Sunset North LLC and BSQUARE Corporation
(11)
10.17
Agreement and Plan of Merger among BSQUARE, BSQUARE San Diego Corporation and Infogation
Corporation dated as of March 10, 2002
21.1
Subsidiaries of the registrant
23.1
Consent of Ernst & Young LLP, Independent Auditors
23.2
Notice Regarding Arthur Andersen LLP
24.1
Power of Attorney (See Signature page)
99.1
Certification of Chief Executive Officer Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant
to Section 906 of the Sarbanes-Oxley Act of 2002
99.2
Certification of Chief Financial Officer Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant
to Section 906 of the Sarbanes-Oxley Act of 2002
* | Subject to confidential treatment. | |
(1) | Incorporated by reference to the registrants registration statement on Form S-1 (File No. 333-85351) filed with the Securities and Exchange Commission on October 19, 1999. | |
(2) | Incorporated by reference to the registrants quarterly report on Form 10-Q filed with the Securities and Exchange Commission on August 7, 2000. | |
(3) | Incorporated by reference to the registrants registration statement on Form S-8 (File No. 333-44306) filed with the Securities and Exchange Commission on August 23, 2000. | |
(4) | Incorporated by reference to the registrants registration statement on Form S-8 (File No. 333-70290) filed with the Securities and Exchange Commission on September 27, 2001 | |
(5) | Incorporated by reference to the registrants annual report on Form 10-K filed with the Securities and Exchange Commission on March 2, 2000. | |
(6) | Incorporated by reference to the registrants quarterly report on Form 10-Q filed with the Securities and Exchange Commission on November 9, 2001. | |
(7) | Incorporated by reference to the registrants Current Report on Form 8-K filed with the Securities and Exchange Commission on January 18, 2000. | |
(8) | Incorporated by reference to the registrants Current Report on Form 8-K filed with the Securities and Exchange Commission on May 23, 2000. |
56
(9) | Incorporated by reference to the registrants registration statement on Form S-1 (File No. 333-45506) filed with the Securities and Exchange Commission on September 14, 2000. | |
(10) | Incorporated by reference to the registrants annual report on Form 10-K filed with the Securities and Exchange Commission on March 26, 2001. | |
(11) | Incorporated by reference to the registrants quarterly report on Form 10-Q filed with the Securities and Exchange Commission on November 14, 2002. | |
(12) | Incorporated by reference to the registrants statement on Form S-8 (File No. 333-85340) filed with the Securities and Exchange Commission on April 2, 2002. | |
(13) | Incorporated by reference to the registrants statement on Form S-8 (File No. 333-90848) filed with the Securities and Exchange Commission on June 20, 2002. |
57
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 on March 19, 2003.
BSQUARE CORPORATION | ||||
By: |
/s/ WILLIAM T. BAXTER
William T. Baxter Chairman of the Board, President and Chief Executive Officer |
POWER OF ATTORNEY
Each person whose individual signature appears below hereby authorizes and appoints William T. Baxter and James R. Ladd, and each of them, with full power of substitution and resubstitution and full power to act without the other, as his true and lawful attorney-in-fact and agent to act in his name, place and stead and to execute in the name and on behalf of each person, individually and in each capacity stated below, and to file, any and all amendments to this report, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in fact and agents, and each of them, full power and authority to do and perform each and every act and thing, ratifying and confirming all that said attorneys-in-fact and agents or any of them or their or his substitute or substitutes may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on March 19, 2003, on behalf of the registrant and in the capacities indicated.
Signature | Title | |
|
|
|
/s/ WILLIAM T. BAXTER
William T. Baxter |
Chairman of the Board, President and Chief
Executive Officer (Principal Executive Officer) |
|
/s/ JAMES R. LADD
James R. Ladd |
Senior Vice President, Finance & Operations and
Chief Financial Officer (Principal Financial and Accounting Officer) |
|
/s/ SCOT E. LAND
Scot E. Land |
Director | |
/s/ JEFFREY. T. CHAMBERS
Jeffrey T. Chambers |
Director | |
/s/ WILLIAM L. LARSON
William L. Larson |
Director | |
/s/ ELWOOD D. HOWSE, JR.
Elwood D. Howse, Jr. |
Director | |
/s/ ELLIOTT H. JURGENSEN, JR.
Elliott H. Jurgensen, Jr. |
Director |
58
CERTIFICATION
I, William T. Baxter, President and Chief Executive Officer of BSQUARE
Corporation, certify that:
1. I have reviewed this annual report on Form 10-K of BSQUARE Corporation;
2. Based on my knowledge, this annual report does not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by this quarterly
report;
3. Based on my knowledge, the financial statements, and other financial
information included in this annual report, fairly present in all material
respects the financial condition, results of operations and cash flows of the
registrant as of, and for, the periods presented in this annual report;
4. The registrants other certifying officers and I are responsible for
establishing and maintaining disclosure controls and procedures (as defined in
Exchange Act Rules 13a-14 and 15d-14) for the registrant and have:
5. The registrants other certifying officers and I have disclosed, based on
our most recent evaluation, to the registrants auditors and the audit
committee of registrants board of directors (or persons performing the
equivalent functions):
6. The registrants other certifying officers and I have indicated in this
annual report whether there were significant changes in internal controls or in
other factors that could significantly affect internal controls subsequent to
the date of our most recent evaluation, including any corrective actions with
regard to significant deficiencies and material weaknesses.
59
a)
designed such disclosure controls and procedures to ensure that
material information relating to the registrant, including its
consolidated subsidiaries, is made known to us by others within those
entities, particularly during the period in which this annual report is
being prepared;
b)
evaluated the effectiveness of the registrants disclosure controls
and procedures as of a date within 90 days prior to the filing date of
this annual report (the Evaluation Date); and
c)
presented in this annual report our conclusions about the
effectiveness of the disclosure controls and procedures based on our
evaluation as of the Evaluation Date;
a)
all significant deficiencies in the design or operation of internal
controls which could adversely affect the registrants ability to record,
process, summarize and report financial data and have identified for the
registrants auditors any material weaknesses in internal controls; and
b)
any fraud, whether or not material, that involves management or other
employees who have a significant role in the registrants internal
controls; and
Date: March 19, 2003
/s/ William T. Baxter
William T. Baxter,
President and Chief Executive Officer
Table of Contents
CERTIFICATION
I, James R. Ladd, Senior Vice President of Finance & Operations and Chief
Financial Officer of BSQUARE Corporation, certify that:
1. I have reviewed this annual report on Form 10-K of BSQUARE Corporation;
2. Based on my knowledge, this annual report does not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by this quarterly
report;
3. Based on my knowledge, the financial statements, and other financial
information included in this annual report, fairly present in all material
respects the financial condition, results of operations and cash flows of the
registrant as of, and for, the periods presented in this annual report;
4. The registrants other certifying officers and I are responsible for
establishing and maintaining disclosure controls and procedures (as defined in
Exchange Act Rules 13a-14 and 15d-14) for the registrant and have:
5. The registrants other certifying officers and I have disclosed, based on
our most recent evaluation, to the registrants auditors and the audit
committee of registrants board of directors (or persons performing the
equivalent functions):
6. The registrants other certifying officers and I have indicated in this
annual report whether there were significant changes in internal controls or in
other factors that could significantly affect internal controls subsequent to
the date of our most recent evaluation, including any corrective actions with
regard to significant deficiencies and material weaknesses.
60
d)
designed such disclosure controls and procedures to ensure that
material information relating to the registrant, including its
consolidated subsidiaries, is made known to us by others within those
entities, particularly during the period in which this annual report is
being prepared;
e)
evaluated the effectiveness of the registrants disclosure controls
and procedures as of a date within 90 days prior to the filing date of
this annual report (the Evaluation Date); and
f)
presented in this annual report our conclusions about the
effectiveness of the disclosure controls and procedures based on our
evaluation as of the Evaluation Date;
c)
all significant deficiencies in the design or operation of internal
controls which could adversely affect the registrants ability to record,
process, summarize and report financial data and have identified for the
registrants auditors any material weaknesses in internal controls; and
d)
any fraud, whether or not material, that involves management or other
employees who have a significant role in the registrants internal
controls; and
Date: March 19, 2003
/s/ James R. Ladd
James R. Ladd,
Chief Financial Officer
Table of Contents
REPORT OF INDEPENDENT ACCOUNTANTS ON SCHEDULE
THE FOLLOWING REPORT OF ARTHUR ANDERSEN LLP (ANDERSEN) IS A COPY OF THE REPORT
PREVIOUSLY ISSUED BY ANDERSEN ON JANUARY 19, 2002. THE REPORT OF ANDERSEN IS
INCLUDED IN THIS ANNUAL REPORT ON FORM 10-K PURSUANT TO RULE 2-02(E) OF
REGULATION S-X. AFTER REASONABLE EFFORTS THE COMPANY HAS NOT BEEN ABLE TO
OBTAIN A REISSUED REPORT FROM ANDERSEN. ANDERSEN HAS NOT CONSENTED TO THE
INCLUSION OF ITS REPORT IN THIS ANNUAL REPORT ON FORM 10-K. BECAUSE ANDERSEN
HAS NOT CONSENTED TO THE INCLUSION OF ITS REPORT IN THIS ANNUAL REPORT, IT MAY
BE DIFFICULT TO SEEK REMEDIES AGAINST ANDERSEN AND THE ABILITY TO SEEK RELIEF
AGAINST ANDERSEN MAY BE IMPAIRED.
To BSQUARE Corporation:
We have audited in accordance with generally accepted auditing standards
in the United States, the financial statements of BSQUARE Corporation and
subsidiaries included in this Form 10-K, and have issued our report thereon
dated January 25, 2002. Our audits were made for the purpose of forming an
opinion on those statements taken as a whole. The accompanying schedule is
presented for purposes of complying with the Securities and Exchange
Commissions rules and is not part of the basic financial statements. This
schedule has been subjected to the auditing procedures applied in the audits of
the basic financial statements and, in our opinion, fairly states in all
material respects the financial data required to be set forth therein in
relation to the basic financial statements taken as a whole.
ARTHUR ANDERSEN LLP
61
Table of Contents
BSQUARE CORPORATION
SCHEDULE II VALUATION AND QUALIFYING ACCOUNTS
Allowance for doubtful accounts
(in thousands)
Balance at
Charged to
Beginning
Costs and
Charged to
Amounts
Balance at
Year Ended
of Period
Expenses
Other Accounts
Written Off
End of Period
$
1,721
$
1,137
$
$
1,998
$
860
$
502
$
1,238
$
$
19
$
1,721
$
142
$
425
$
$
65
$
502
62
BSQUARE CORPORATION
INDEX TO EXHIBITS
Exhibit
Number
Description
3.1
Amended and Restated Articles of Incorporation(1)
3.1(a)
Articles of Amendment to Amended and Restated Articles of Incorporation(2)
3.2
Bylaws and all amendments thereto
4.1
See Exhibits 3.1, 3.1(a) and 3.2 for provisions defining the rights of the holders of common stock
10.1
Amended and Restated Stock Option Plan(1)
10.1(a)
1998 Mainbrace Stock Option Plan(3)
10.1(b)
2000 Non-Qualified Stock Option Plan(4)
10.1(c)
Infogation Corporation 1996 Stock Option Plan(12)
10.1(d)
Infogation Corporation 2001 Stock Options/Stock Issuance Plan(12)
10.2
Employee Stock Purchase Plan(1)
10.2(a)
Amendment No. 1 to the Employee Stock Purchase Plan(13)
10.3
401(k) Plan(1)
10.4
Form of Indemnification Agreement(1)
10.6
Office Lease Agreement between Seattle Office Associates, LLC and BSQUARE Corporation dated March
24, 1997 (for Suite 100)(1)
10.7
Sunset North Corporate Campus Lease Agreement between WRC Sunset North and BSQUARE Corporation(1)
10.8
First Amendment to Office Lease Agreement between WRC Sunset North LLC and BSQUARE(5)
10.9*
Master Development & License Agreement between Microsoft Corporation and BSQUARE Corporation
dated effective as of October 1, 1998(1)
10.9(a)*
Amendment No. 1 to the Master Development and License Agreement between BSQUARE Corporation and
Microsoft Corporation dated December 23, 1999 (6)
10.9(b)*
Amendment No. 2 to the Master Development and License Agreement between BSQUARE Corporation and
Microsoft Corporation dated July 26, 2001(6)
10.10
Stock Purchase and Shareholders Agreement dated as of January 30, 1998(1)
10.11
Stock Purchase Agreement dated August 18, 1999 by and between BSQUARE Corporation and Vulcan
Ventures Incorporated(1)
10.12
Agreement and Plan of Merger among BSQUARE, BlueWater Systems, Inc. and H2O Merger Corporation
dated as of January 5, 2000(7)
10.13
Agreement and Plan of Merger among BSQUARE Corporation, Mainbrace Corporation and Mainbrace
Acquisition Inc. dated as of May 10, 2000 (8)
10.14
Single-Tenant Commercial Space Lease among One South Park Investors, Paul Enterprises and FKLM as
Landlord and BSQUARE as Tenant(9)
10.15
Single-Tenant Commercial Space Lease (NNN), dated as of August 30, 2000, by and between One South
Park Investors, Partnership and BSQUARE Corporation (10)
10.16
Fourth Amendment to Office Lease Agreement between WRC Sunset North LLC and BSQUARE Corporation
(11)
10.17
Agreement and Plan of Merger among BSQUARE, BSQUARE San Diego Corporation and Infogation
Corporation dated as of March 10, 2002
21.1
Subsidiaries of the registrant
23.1
Consent of Ernst & Young LLP, Independent Auditors
23.2
Notice Regarding Arthur Andersen LLP
24.1
Power of Attorney (See Signature page)
63
Exhibit
Number
Description
99.1
Certification of Chief Executive Officer Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant
to Section 906 of the Sarbanes-Oxley Act of 2002
99.2
Certification of Chief Financial Officer Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant
to Section 906 of the Sarbanes-Oxley Act of 2002
* | Subject to confidential treatment. | |
(1) | Incorporated by reference to the registrants registration statement on Form S-1 (File No. 333-85351) filed with the Securities and Exchange Commission on October 19, 1999. | |
(2) | Incorporated by reference to the registrants quarterly report on Form 10-Q filed with the Securities and Exchange Commission on August 7, 2000. | |
(3) | Incorporated by reference to the registrants registration statement on Form S-8 (File No. 333-44306) filed with the Securities and Exchange Commission on August 23, 2000. | |
(4) | Incorporated by reference to the registrants registration statement on Form S-8 (File No. 333-70290) filed with the Securities and Exchange Commission on September 27, 2001 | |
(5) | Incorporated by reference to the registrants annual report on Form 10-K filed with the Securities and Exchange Commission on March 2, 2000. | |
(6) | Incorporated by reference to the registrants quarterly report on Form 10-Q filed with the Securities and Exchange Commission on November 9, 2001. | |
(7) | Incorporated by reference to the registrants Current Report on Form 8-K filed with the Securities and Exchange Commission on January 18, 2000. | |
(8) | Incorporated by reference to the registrants Current Report on Form 8-K filed with the Securities and Exchange Commission on May 23, 2000. | |
(9) | Incorporated by reference to the registrants registration statement on Form S-1 (File No. 333-45506) filed with the Securities and Exchange Commission on September 14, 2000. | |
(10) | Incorporated by reference to the registrants annual report on Form 10-K filed with the Securities and Exchange Commission on March 26, 2001. | |
(11) | Incorporated by reference to the registrants quarterly report on Form 10-Q filed with the Securities and Exchange Commission on November 14, 2002. | |
(12) | Incorporated by reference to the registrants statement on Form S-8 (File No. 333-85340) filed with the Securities and Exchange Commission on April 2, 2002. | |
(13) | Incorporated by reference to the registrants statement on Form S-8 (File No. 333-90848) filed with the Securities and Exchange Commission on June 20, 2002. |
64
EXHIBIT 3.2
AMENDMENTS TO BYLAWS
August 13, 1999:
Section 3 of Article II of the Company's Bylaws was amended to read in its entirety as follows:
Section 3. TERM. Unless the Articles of Incorporation provide otherwise, the directors shall be elected at the annual meeting of shareholders and each director shall be elected to serve for a term of one (1) year; provided that in the event of failure to hold such meeting or to hold such election at such meeting, the directors may be elected an any special meeting of the shareholders called for that purpose.
Section 3 of Article V of the Bylaws was amended to read in its entirety as follows:
Section 3. SPECIAL MEETINGS. Unless the Articles of Incorporation provide otherwise, and subject to Section (2) of this Article, special meetings of shareholders may be called at any time by the President or by the Board of Directors or by one or more shareholder holding not less than one-tenth (1/10) of the voting power of the Company.
Article V of the Bylaws was amended to add the following two sections:
Section 8. NOTICE OF SHAREHOLDER NOMINEES. Nominations of persons for election
to the Board of Directors shall be made only at a meeting of shareholders and
only (i) by the Board of Directors or a committee appointed by the Board of
Directors or (ii) by any shareholder entitled to vote in the election of
directors at the meeting who complies with the notice procedures set forth in
this Section 8. Such nominations, other than those made by or at the direction
of the Board of Directors, shall be made pursuant to timely notice in writing to
the Secretary of the corporation. To be timely, a shareholder's notice shall be
delivered to or mailed and received at the principal executive offices of the
corporation (i) with respect to an election to be held at an annual meeting of
shareholders, ninety days prior to the date one year from the date of the
immediately preceding annual meeting of shareholders, and (ii) with respect to
an election to be held at a special meeting of shareholders for the election of
directors, the close of business on the tenth day following the date on which
notice of such meeting is first given to shareholders. For purposes of this
Section 8, any adjournment(s) or postponement(s) of the original meeting whereby
the meeting will reconvene within thirty days from the original date shall be
deemed for purposes of notice to be a continuation of the original meeting, and
no nominations by a shareholder of persons to be elected directors of the
corporation may be made at any such reconvened meeting unless pursuant to a
notice which was timely for the meeting on the date originally scheduled. Each
such notice shall set forth: (a) the name and address of the shareholder who
intends to make the nomination and of the person or persons to be nominated; (b)
a representation that the shareholder is a holder of record of stock of the
corporation entitled to vote at such meeting and intends to appear in person or
by proxy at the meeting to nominate the person or persons specified in the
notice; (c) a description of all arrangements or understandings between the
shareholder and each nominee and any other person or persons (naming such person
or persons) pursuant to which the nomination or nominations are to be made by
the shareholder; (d) such other information regarding each nominee proposed by
such shareholder as would be required to be disclosed in solicitations of
proxies for election of directors, or is otherwise required, in each case
pursuant to the Securities Exchange Act of 1934, as amended; and (e) the consent
of each nominee to serve as a director of the corporation if so elected.
Notwithstanding the foregoing, nothing in this Section 8 shall be interpreted or construed to require the inclusion of information about any such nominee in any proxy statement distributed by, at the direction of, or on behalf of the Board of Directors. The Chairman of the meeting shall, if the facts warrant, determine and declare to the meeting that a nomination was not made in accordance with the foregoing procedures, and if he should so determine, he shall so declare to the meeting and the defective nomination shall be disregarded.
Section 9. SHAREHOLDER PROPOSALS AT ANNUAL MEETING. Business may be properly brought before an annual meeting by a shareholder only upon the shareholder's timely notice thereof in writing to the Secretary of the corporation. To be timely, a shareholder's notice must be delivered to or mailed and received at the principal executive offices of the corporation not later than ninety days prior to the date one year from the date of the immediately preceding annual meeting of shareholders. For purposes of this Section 9, any adjournment(s) or postponement(s) of the original meeting whereby the meeting will reconvene within thirty days from the original date shall be deemed for purposes of notice to be a continuation of the original meeting, and no business may be brought before any reconvened meeting unless pursuant to a notice which was timely for the meeting on the date as originally scheduled. Each such notice shall set forth: (a) the name and address of the shareholder who intends to make the proposal; (b) a representation that the shareholder is a holder of record of stock of the corporation entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to vote for the proposal; (c) any material interest of such shareholder in such proposal; and (d) such other information regarding such proposal as would be required to be disclosed in solicitations of proxies pursuant to the Securities Exchange Act of 1934, as amended.
Notwithstanding the foregoing, nothing in this Section 9 shall be interpreted or construed to require the inclusion of information about any such proposal in any proxy statement distributed by, at the discretion of, or on behalf of the Board of Directors. The Chairman of the meeting shall, if the facts warrant, determine and declare to the meeting that a proposal was not made in accordance with the foregoing procedures, and if he should so determine, he shall so declare to the meeting, and any such business not properly brought before the meeting shall be disregarded.
AMENDMENTS TO BYLAWS
August 15, 1998:
Section 2 of Article V of the Company's Bylaws was amended as follows:
Section 2. Annual Meeting. Subject to the foregoing provisions, the date, the time and location of the annual meeting of the shareholders shall be determined each year by the Board of Directors. At said annual meeting, directors of the Corporation shall be elected, reports of the affairs of the Corporation shall be considered and any other business may be transacted which is within the powers of the shareholders to transact.
AMENDMENTS TO THE BYLAWS
January 29, 1998:
- Section 2 of Article II of the Company's Bylaws was amended to increase the number of directors on the Company's Board of Directors from three to seven
- Added Article X, which reads as follows:
ARTICLE X
INDEMNIFICATION
Section 1. Right to Indemnification
Each person who was, is or is threatened to be made a named party to or is otherwise involved (including, without limitation, as a witness) in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative and whether formal or informal (hereinafter a "proceeding"), by reason of the fact that he or she is or was a Director or officer of the corporation or, that being or having been such a Director or officer or an employee of the corporation, he or she is or was serving at the request of the corporation as a Director, officer, partner, trustee, employee or agent of another corporation or of a partnership, joint venture, trust, employee benefit plan or other enterprise (hereinafter an "indemnitee"), whether the basis of a proceeding is alleged action in an official capacity as such a Director, officer, partner, trustee, employee or agent or in any other capacity while serving as such a Director, officer, partner, trustee, employee or agent, shall be indemnified and held harmless by the corporation against all expense, liability and loss (including counsel fees, judgments, fines, ERISA excise taxes or penalties and amounts to be paid in settlement) actually and reasonably incurred or suffered by such indemnitee in connection therewith, and such indemnification shall continue as to an indemnitee who has ceased to be a Director, officer, partner, trustee, employee or agent and shall inure to the benefit of the indemnitee's heirs executors and administrators. Except as provided in Section 2 of this Article 10 with respect to proceedings seeking to enforce rights to indemnification, the corporation shall indemnify any such indemnitee in connection with a proceeding (or part thereof) initiated by such indemnitee only if a proceeding (or part thereof) was authorized or ratified by the Board. The right to indemnification conferred in this Article shall be a contract right.
Section 2. Restrictions on Indemnification
No indemnification shall be provided to any such indemnitee for acts or omissions of the indemnitee finally adjudged to be intentional misconduct or a knowing violation of law, for conduct of the indemnitee finally adjudged to be in violation of Section 23B.08.310 of the Washington Business Corporation Act, for any transaction with respect to which it was finally adjudged that such indemnitee personally received a benefit in money, property or services to which the indemnitee was not legally entitled or if the corporation is otherwise prohibited by applicable law from paying such indemnification, except that if Section 23B.08.560 or any successor provision of the Washington Business Corporation Act is hereafter amended, the restrictions on indemnification set forth in this Section 2 shall be as set forth in such amended statutory provision.
Section 3. Advancement of Expenses
The right to indemnification conferred in this Article shall include the right to be paid by the corporation the expenses incurred in defending any proceeding in advance of its final disposition (hereinafter an "advancement of expenses"). An advancement of expenses shall be made upon delivery to the corporation of an undertaking (hereinafter an "undertaking"), by or on behalf of such indemnitee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right to appeal that such indemnitee is not entitled to be indemnified for such expenses under this Section 3.
Section 4. Right of Indemnitee to Bring Suit
If a claim under Section 1 or 3 of this Article 10 is not paid in full by the corporation within sixty days after a written claim has been received by the corporation, except in the case of a claim for an advancement of expenses, in which case the applicable period shall be twenty days, the indemnitee may at any time thereafter bring suit against the corporation to recover the unpaid amount of the claim. If successful in whole or in part, in any such suit or in a suit brought by the corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the indemnitee shall be entitled to be paid also the expense of prosecuting or defending such suit. The indemnitee shall be presumed to be entitled to indemnification under this Article upon submission of a written claim (and, in an action brought to enforce a claim for an advancement of expenses, where the required undertaking has been tendered to the corporation) and thereafter the corporation shall have the burden of proof to overcome the presumption that the indemnitee is so entitled.
Section 5. Procedures Exclusive
Pursuant to Section 23B.08.560(2) or any successor provision of the Washington Business Corporation Act, the procedures for indemnification and advancement of expenses set forth in this Article are in lieu of the procedures
required by Section 23B.08.550 or any successor provision of the Washington Business Corporation Act.
Section 6. Nonexclusivity of Rights
The right to indemnification and the advancement of expenses conferred in this Section shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provision of the Articles of Incorporation or Bylaws of the corporation, general or specific action of the Board, contract or otherwise.
Section 7. Insurance, Contracts and Funding
The corporation may maintain insurance, at its expense, to protect itself and any Director, officer, partner, trustee, employee or agent of the corporation or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the corporation would have the power to indemnify such person against such expense, liability or loss under the Washington Business Corporation Act. The corporation may enter into contracts with any Director, officer, partner, trustee, employee or agent of the corporation in furtherance of the provisions of this Article and may create a trust fund, grant a security interest or use other means (including, without limitation, a letter of credit) to ensure the payment of such amounts as may be necessary to effect indemnification as provided in this Article.
Section 8. Indemnification of Employees and Agents of the Corporation
The corporation may, by action of the Board, grant rights to indemnification and advancement of expenses to employees and agents or any class or group of employees and agents of the corporation (i) with the same scope and effect as the provisions of this Article with respect to the indemnification and advancement of expenses of Directors and officers of the corporation; (ii) pursuant to rights granted pursuant to, or provided by, the Washington Business Corporation Act; or (iii) otherwise consistent with law.
Section 9. Personal Serving Other Entities
Any person who, while a Director, officer or employee of the corporation, is or was serving (a) as a Director or officer of another foreign or domestic corporation of which a majority of the shares entitled to vote in the election of its Directors is held by the corporation or (b) as a partner, trustee or otherwise in an executive or management capacity in a partnership, joint venture, trust or other enterprise of which the corporation or a wholly owned subsidiary of the corporation is a general partner or has a majority ownership shall be deemed to be so serving at the request of the corporation and entitled to indemnification and advancement of expenses under Sections 1 and 3 of this Article 10.
BYLAWS
OF
BSQUARE CONSULTING, INC.
ARTICLE I.
Place of Business
Section 1. PRINCIPAL LOCATION. The principal office of the corporation for the transaction of business shall be at such location as the Board of Directors shall determine from time to time.
Section 2. ADDITIONAL OFFICES. Additional business offices may be established at such other places as the Board of Directors may from time to time designate.
ARTICLE II.
Directors
Section 1. INITIAL BOARD OF DIRECTORS. Each member of the Initial Board of Directors, appointed through the Articles of Incorporation, shall serve until his death, resignation, until removed, or until a Board of Directors is elected by the shareholders at the first shareholders meeting.
Section 2. NUMBER. The number of directors shall be not less than one
(1), with the exact number to be fixed from time to time by the Board of
Directors, provided that until otherwise changed by resolution of the Board of
Directors, the number of directors shall be three (3).
Section 3. TERM. The directors shall be elected at the annual meeting
of shareholders and each director shall be elected to serve for a term of one
(1) year; provided that in the event of failure to hold such meeting or to hold
such election at such meeting, the directors may be elected at any special
meeting of the stockholders called for that purpose.
Section 4. QUORUM. A majority of the directors shall constitute a quorum for the transaction of business, and the act of a majority of the directors present at any meeting at which a quorum is present shall be the act of the Board of Directors.
Section 5. NOTICES. Regular meetings of the Board of Directors may be held without notice of the time, date, location or purpose of the meeting. Special meetings shall be preceded by at least, two days notice of the time, date and location of said meeting. Any notice of a meeting required to be given or which may be given to a director shall be personally served or mailed by United States Mail, postage prepaid, properly addressed to the last known address of
such director and, if mailed, shall be deemed to be given and received three (3) days following the date of mailing. Any director may waive notice of any meeting, so long as said waiver is in writing, signed by the director entitled to notice and delivered to the corporation for inclusion in the minutes of the corporation. Notwithstanding the foregoing, attendance of a director at a meeting shall constitute a waiver of notice of such meeting except where the director attends a meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened and where said director does not thereafter vote for or assent to any action taken at the said meeting. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board of Directors need be specified in the notice or waiver of notice of such meeting.
Section 6. POWERS AND DUTIES. The Board of Directors shall be responsible for the management of the business of the corporation, and, subject to the restrictions imposed by law, by the Articles of Incorporation, or by these Bylaws, may exercise all the powers of the corporation.
Section 7. COMMITTEES. By resolution adopted by a majority of the full Board of Directors, the Board of Directors may appoint from among its members an Executive Committee of not less than two nor more than five members, one of whom shall be the President (who shall be the Chairman of the Executive Committee). The Board of Directors may also designate one or more of its members as alternates to serve as a member or members of the Executive Committee in the absence of a regular member or members. The Executive Committee shall have and may exercise all the authority of the Board of Directors during the intervals between meetings of the Board of Directors, except that the Executive Committee (and other committees) shall not have the authority to (1) declare dividends or distributions, except according to a general formula or method prescribed by the Board of Directors, (2) approve or recommend to shareholders actions or proposals required by this title to be approved by shareholders, (3) fill vacancies on the Board of Directors or any committee thereof, (4) amend the Articles of Incorporation, (5) adopt, amend or repeal the Bylaws, (6) authorize or approve the issuance or reacquisition of shares unless pursuant to general formula or method specified by the Board of Directors, (7) fix compensation of any director for serving on the Board of Directors or any committee, (8) approve a plan of merger, consolidation or exchange of shares not requiring shareholder approval, or (9) appoint other committees of the Board of Directors.
The Board of Directors may also appoint from among its own members such other committees as the Board of Directors may determine, which shall in each case consist of not less than two (2) directors, and which shall have such powers and duties as shall from time to time be prescribed by the Board.
A majority of the members of any committee may fix its rules of procedure. All actions by any committee shall be reported to the Board of Directors at a meeting succeeding such action and shall be subject to revision, alteration, and approval by the Board of Directors; provided that no rights or acts of third parties shall be affected by any such revision or alteration.
Members of any committee may participate in a meeting of such committee by means of a conference telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other at the same time, and participation by such means shall constitute presence in person at a meeting.
Section 8. SALARY. Directors may receive a salary for their services as directors but any such salary must be approved by unanimous vote of all of the directors. Nothing herein contained shall be construed to preclude any director from serving the corporation in any other capacity as an officer, agent or otherwise and receiving compensation therefor so long as the compensation is approved by the Board of Directors.
Section 9. VACANCY. Any vacancy that occurs in the Board of Directors may be filled by a majority of the remaining directors or by the shareholders, and each director so elected shall hold office until his successor is selected at the next meeting of shareholders held for that purpose.
Section 10. CONSENT AND WAIVER OF NOTICE. Any transactions of the Board of Directors at any meeting thereof, regardless of how or whether call was made or notice given, shall be as valid as though transacted at a meeting duly held after regular call and notice, if a quorum be present, and if, either before or after the meeting, each of the directors entitled to vote and not present in person sign a written waiver of notice, or a consent to the holding of such meeting, or an approval of the minutes thereof. All such waivers, consents or approvals shall be filed with the Secretary of this corporation and made a part of the records of the meeting.
Whenever any notice whatsoever is required to be given under the provisions of these Bylaws, a waiver thereof in writing signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the actual giving of such notice.
Any action, which under any provision of these Bylaws might be taken at a meeting of the directors, may be taken without a meeting if a record or memorandum thereof be made in writing and signed by all of the directors who would be entitled to vote at a meeting for such purpose and such record or memorandum be filed with the Secretary and made a part of the corporate records.
A director who is present at a meeting at which action on any corporate matter is taken shall be presumed to have assented to the action taken unless his dissent shall be entered in the minutes of the meeting or unless he shall file his written dissent to such action with the person acting as Secretary before the adjournment of the meeting or shall forward such dissent by registered mail to the Secretary immediately after the adjournment.
Section 11. CONFERENCE TELEPHONE CALLS. Members of the Board of Directors may participate in a meeting of such Board by means of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other at the same time, and participation by such means shall constitute presence in person at a meeting.
ARTICLE III.
Officers
Section 1. APPOINTMENT AND QUALIFICATIONS. The officers of this corporation shall consist of a President, and such other officers as may be chosen by the Board of Directors. No officer shall execute, acknowledge or verify any instrument in more than one capacity if such instrument be required by law or these Bylaws to be executed, acknowledged or verified, as the case may be, by any two or more officers, except that when all of the issued and outstanding shares of the corporation is owned by one shareholder, one person may hold all or any combination of offices and any such one person may execute, acknowledge or verify any such instrument in more than one capacity.
Section 2. TERMS AND COMPENSATION. The terms of office and the salary of each of said officers and the manner and time of the payment of such salaries shall be fixed and determined by the Board of Directors and may be altered by said Board from time to time, and at any time at its pleasure. Any officer may be removed at any time by the Board.
ARTICLE IV.
Powers and Duties of Officers
Section 1. PRESIDENT. The powers and duties of the President shall be:
(1) To preside at all meetings of the Board of Directors or of the shareholders, regular and special.
(2) Except when otherwise directed by the Board of Directors, to affix the signature of the corporation to all deeds, conveyances, mortgages, bonds, contracts and other instruments in writing and other papers that may require the same, to sign certificates of shares of the corporation; and in general to supervise and control all of the business affairs of the corporation. Subject to the direction of the Board of Directors, the President shall supervise and control all officers, agents and employees of the corporation. Unless otherwise directed by the Board of Directors or by law, all deeds, conveyances, mortgages, bonds, contracts and other instruments of the corporation need only be signed by the President and need not be signed by the Secretary or any other officer of the corporation.
(3) To enforce these Bylaws and perform all of the duties incident to the office and which are required by law.
Section 2. VICE-PRESIDENT. In case of the absence, disability or death of the President, the Vice-President of this corporation, if the corporation shall have a Vice President, shall have such powers and perform such duties as may be granted or prescribed by the Board of Directors from time to time.
At all times, the Vice-President shall have the power to countersign such instruments, if any, as may by law require execution, acknowledgment, or verification by two officers.
Section 3. SECRETARY. The powers and duties of the Secretary, if the corporation shall have a Secretary shall be:
(1) To keep full and complete records of the meetings of the Board of Directors and of the shareholders.
(2) To keep the seal of the corporation and to affix the same to all instruments which may require it.
(3) To make service and publication of all notices that may be necessary or proper, without command or direction from anyone.
To transfer upon the books of the corporation any and all shares; provided, however, that no certificate of shares shall be issued or delivered, or if issued or delivered, shall have any validity whatsoever, until and unless it has been signed by the President of the corporation.
(4) Generally to have such powers and perform such duties as pertain to his office and as may be required by the Board of Directors.
Section 4. TREASURER. If the corporation shall have a Treasurer, the Treasurer shall receive all moneys belonging to or paid into the corporation and give receipts therefor; and shall deposit such moneys, as the treasurer shall be directed by the Board of Directors, with one or more solvent and reputable banks to be designated by the Board of Directors; and shall keep full and complete records of the funds received and the disbursement thereof. The treasurer shall render to the shareholders at the regular annual meeting thereof, and also to the Board of Directors at any meeting thereof, or from time to time whenever the Board of Directors or the President may require, an account of all transactions as Treasurer and of the financial condition of the corporation, and shall perform such other duties as may from time to time be prescribed by the Board of Directors. The treasurer shall exhibit or cause to be exhibited the books of the corporation to the Board of Directors, or to any committee appointed by the Board, or to any director on application during business hours, or to any other person entitled to inspect such books pursuant to pertinent provisions of the Business Corporation Act of the State of Washington.
At all times, the Treasurer shall have the power to countersign such instrument, if any, as may by law require execution, acknowledgment, or verification by two officers.
The Treasurer shall have such powers and perform such duties as pertain to the office of the treasurer and as may be required by the Board of Directors.
Section 5. OTHER OFFICERS. The Board of Directors may appoint such other officers as the business of the Corporation may require, each of whom shall hold office for such period, have such authority and perform such duties as are provided in the Bylaws or as the Board of Directors may from time to time determine.
ARTICLE V.
Shareholders
Section 1. PLACE OF MEETING. Notwithstanding anything to the contrary in these Bylaws, any meeting (whether annual, special or adjourned) of the stockholders of this corporation may be held at any place within or without the State of Washington which has been designated therefor by the Board of Directors.
Section 2. ANNUAL MEETING. Subject to the foregoing provisions, the
annual meeting of the stockholders shall be held at the principal office of the
corporation in the City of Bellevue, State of Washington, at the hour of 9:00
a.m. on 15th day of February in each year, if not a legal holiday, and if a
legal holiday, then on the next succeeding business day not a legal holiday. At
said annual meeting, directors of the corporation shall be elected, reports of
the affairs of the corporation shall be considered and any other business may be
transacted which is within the powers of the stockholders to transact.
The corporation shall notify shareholders of the date, time and place of each annual meeting and each special meeting of the shareholders. Said notice shall be given no fewer than 10 nor more than 60 days before the meeting date, except that notice of a shareholders' meeting to act on an amendment to the Articles of Incorporation, a plan of merger or share exchange, a proposed sale of assets pursuant to RCW 23B.12.020, or the dissolution of the corporation shall be given no fewer than 20 nor more than 60 days before the meeting date. In the case of a notice of a special meeting of shareholders, the notice shall also include a description of the purpose or purposes for which the meeting is called.
Notice of special meetings of stockholders shall be given by written notice personally served on each shareholder, or deposited in the United States mail, postage prepaid, and addressed to him at his last known post office address appearing upon the books of the corporation. Such notice, if mailed, shall be deemed to be given and received three (3) days following the date of mailing.
In the event the annual meeting be not held, or the directors be not elected thereat, the directors may be elected at a special meeting held for that purpose, and it shall be the duty of the President, the Vice-President, or the Secretary, upon the demand of any shareholder entitled to vote at such meeting, to call such special meeting.
Section 3. SPECIAL MEETINGS. Subject to Section (2) of this Article, special meetings of the shareholders may be called at any time by the President or by the Board of Directors or by one or more shareholders holding not less than one-tenth (1/10) of the voting power of the corporation.
Section 4. CONSENT AND WAIVER OF NOTICE. Any transactions of the shareholders at any meeting thereof, regardless of how or whether call was made or notice given, shall be as valid as though transacted at a meeting duly held after regular call and notice, if a quorum be present, either in person or by proxy, and if, either before or after the meeting, each of the shareholders entitled to vote and not present in person or by proxy sign a written
waiver of notice, or a consent to the holding of such meeting, or an approval of the minutes thereof. All such waivers, consents or approvals shall be filed with the Secretary and made a part of the records of the meeting.
Whenever any notice whatsoever is required to be given under the provisions of these Bylaws, a waiver thereof in writing signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the actual giving of such notice.
A shareholder's attendance at a meeting waives objection to lack of notice or defective notice of the meeting, unless the shareholder at the beginning of the meeting objects to holding the meeting or transacting business at the meeting. A shareholder waives objection to consideration of a particular matter at a meeting that is not within the purpose or purposes described in the meeting notice unless the shareholder objects to consideration of the matter when it is presented.
Any action, which under any provisions of these Bylaws might be taken at a meeting of the shareholders, may be taken without a meeting if a record or memorandum thereof be made in writing and signed by all of the holders of shares who would be entitled to vote at a meeting for such purpose and such record or memorandum be filed with the Secretary and made a part of the corporate records. The consent shall have the same force and effect as a unanimous vote of shareholders, and may be stated as such in any articles or document filed with the Secretary of State.
Section 5. QUORUM, VOTING AND PROXIES. At all meetings of the shareholders (whether annual, special or adjourned) the presence in person or by proxy in writing of the holders of a majority of the shares entitled to vote at that meeting shall constitute a quorum for the transaction of business. Each share shall entitle the duly qualified and registered holder thereof to one vote. All proxies shall be in writing subscribed by the party entitled to vote the number of shares represented thereby, or by his duly authorized attorney, and no such proxy shall be valid or confer any right or authority to vote or act thereunder unless such proxy has been offered for filing to, and left with, the Secretary of the corporation prior to the meeting at which the same is to be used; provided, however, that in case any meeting of shareholders whatsoever (whether annual, special or adjourned) shall have been for any cause adjourned, proxies shall be valid and may be used at such adjourned meeting, which have been offered for filing to, and left with the Secretary of the corporation prior to the date upon which said adjourned meeting shall in fact be held.
Once a share is represented at a meeting for any purpose other than solely to object to holding the meeting or transacting business at the meeting, it is deemed present for quorum purposes for the remainder of the meeting and for any adjournment thereof, unless a new record date is or must be set for that adjourned meeting.
An amendment to the Articles of Incorporation, adding, changing or reducing a quorum for a voting group greater or lesser than the simple majority specified above, or adding, changing or reducing a voting requirement from a simple majority shall be governed by RCW 23B.07.270.
Section 6. ADJOURNMENTS. Any business which might be transacted at an annual meeting of the shareholders may be done at a special or at an adjourned meeting. If no quorum be present at any meeting of the stockholders (whether annual, special or adjourned) such meeting may be adjourned by those present from day to day, or from time to time, until such quorum be obtained, such adjournment and the reasons therefor being recorded in the journal or minutes of proceedings of the stockholders, and no notice whatsoever need be given of any such adjourned meeting if the time and place of such meeting be fixed at the meeting adjourned.
Section 7. CONFERENCE TELEPHONE CALLS. Shareholders may participate in a meeting of shareholders by means of a conference telephone call or similar communication equipment by means of which all persons participating in the meeting can hear each other at the same time, and participation by such means shall constitute presence in person at a meeting.
ARTICLE VI.
Shares
Section 1. CLASS. The shares of this corporation shall consist of such classes as may be authorized by the Articles of Incorporation as they may be amended from time to time.
Section 2. CERTIFICATES. The shares of the corporation shall be represented by certificates prepared by the Board of Directors and signed by two officers of the corporation, unless the corporation has only one officer, in which case certificates for shares shall be signed by said officer. Each certificate shall be sealed with the seal of the corporation or a facsimile thereof, if any. The certificates shall be numbered consecutively and in the order in which they are issued; and a share register shall be maintained in which shall be entered the name of the person to whom the shares represented by each certificate are issued, the number and class or series of such shares, and the date of issue. Each certificate shall state upon the face thereof (i) that the corporation is organized under the laws of the state of incorporation, (ii) the name of the person to whom issued, (iii) the number and class of the shares, and the designation of the series, if any.
Section 3. SUBSCRIPTIONS. Subscriptions to the shares shall be paid at such times and in such installments as the Board of Directors may determine. If default be made in the payment of any installment as required by such resolution, the Board may declare the shares and all previous payments thereon forfeited for the use of the corporation, if such payment remains in default twenty (20) days after written notice of the default has been sent to the subscriber, or in such other manner prescribed by law.
Section 4. SHARE OPTIONS. The corporation may issue rights, options or warrants for the purchase of shares of the corporation. The Board of Directors shall determine the terms upon which the rights, options, or warrants are issued, their form and content, and the consideration for which the shares are to be issued.
Section 5. RESTRICTION ON TRANSFER OF SHARES OR OTHER SECURITIES.
(a) The Articles of Incorporation, an agreement among shareholders, or an agreement between shareholders and the corporation may impose restrictions on the transfer or registration of transfer of shares. The restriction does not affect shares issued before the restriction was adopted unless the holders of the shares are parties to the restriction agreement or voted in favor of the restriction.
(b) A restriction on the transfer or registration of transfer of shares is valid and enforceable against the holder or a transferee of the holder if the restriction is authorized and its existence is noted conspicuously on the front or back of the certificate or is contained in the information statement. Unless so noted, a restriction is not enforceable against a person without knowledge of the restriction.
(c) A restriction on the transfer or registration of transfer of shares is authorized:
(1) to maintain the corporation's status when it is dependent on the number or identity of its shareholders;
(2) to preserve exemptions under federal or state securities law; or
(3) for any other reasonable purpose.
(d) A restriction on the transfer or registration of transfer of shares may:
(1) obligate the shareholder first to offer the corporation or other persons (separately, consecutively, or simultaneously) an opportunity to acquire the restricted shares;
(2) obligate the corporation or other persons (separately, consecutively, or simultaneously) to acquire the restricted shares;
(3) require the corporation, the holders of any class of its shares, or another person to approve the transfer of the restricted shares, if the requirement is not manifestly unreasonable; or
(4) prohibit the transfer of the restricted shares to designated persons or classes of persons, if the prohibition is not manifestly unreasonable.
Section 6. RETURNED CERTIFICATES. All certificates for shares changed or returned to the corporation for transfer shall be marked by the Secretary "Cancelled" with the date of cancellation; and the transaction shall be immediately recorded in the transfer book opposite the memorandum of their issue. The returned certificates shall be retained by the corporation and filed with the stock register.
Section 7. LOST CERTIFICATES. Any person claiming a certificate for shares to be lost or destroyed shall make an affidavit or an affirmation of the fact and shall advertise the same in such manner as the Board of Directors may determine; and, if the directors require,
shall give the corporation a bond of indemnity in form and with sureties satisfactory to the Board, in an amount to be fixed by the Board whereupon a new certificate may be issued of the same tenor and for the same number of shares as the certificate alleged to be lost or destroyed.
ARTICLE VII.
Books and Records
Section 1. This corporation shall keep as permanent records minutes of all meetings of its shareholders and board of directors, a record of all actions taken by the shareholders or board of directors without a meeting, and a record of all actions taken by a committee of the board of directors exercising the authority of the board of directors on behalf of the corporation.
Section 2. This corporation shall maintain appropriate accounting records.
Section 3. This corporation or its agent shall maintain a record of its shareholders, in a form that permits preparation of a list of the names and addresses of all shareholders, in alphabetical order by class of shares showing the number and class of shares held by each.
Section 4. This corporation shall maintain its records in written form or in another form capable of conversion into written form within a reasonable time.
Section 5. The corporation shall keep a copy of the following records at its principal office:
(a) its articles or restated articles of incorporation and all amendments to them currently in effect;
(b) its bylaws or restated bylaws and all amendments to them currently in effect;
(c) the minutes of all shareholders' meetings, and records of all action taken by shareholders' without a meeting, for the past three years;
(d) the financial statements prepared pursuant to RCW 23B.16.200, for the past three years;
(e) all written communications to shareholders generally within the past three years;
(f) a list of the names and business addresses of its current directors and officers; and
(g) its most recent annual report delivered to the secretary of state.
ARTICLE VIII.
Amendments
These Bylaws may be amended or repealed and new and additional Bylaws may be made from time to time at any time by the Board of Directors.
ARTICLE IX.
Miscellaneous Provisions
Section 1. INSTRUMENTS IN WRITING. Notwithstanding any other provision hereof, all checks, drafts and demands for money of the corporation shall be signed by such officer or officers, agent or agents, as the Board of Directors may from time to time by resolution designate. No officer, agent or employee of the corporation shall have the power to bind the corporation by contract or otherwise unless authorized to do so by the Board of Directors.
Section 2. FISCAL YEAR. The fiscal year of this corporation shall be set by resolution of the Board of Directors.
KNOW ALL MEN BY THESE PRESENTS: That we, the undersigned, being the Board of Directors of BSQUARE CONSULTING, INC., a Washington corporation, organized and existing under the laws of the State of Washington, do hereby certify that the foregoing code of Bylaws was duly adopted by resolution of the Board of Directors of the corporation on the ___ day of July, 1994.
/s/ ALBERT T. DOSSER --------------------------------------------- Albert T. Dosser, Director /s/ PETER R. GREGORY --------------------------------------------- Peter R. Gregory, Director /s/ WILLIAM T. BAXTER --------------------------------------------- William T. Baxter, Director |
AGREEMENT AND PLAN OF MERGER
MARCH 10, 2002
AMONG
BSQUARE CORPORATION,
BSQUARE SAN DIEGO CORPORATION,
INFOGATION CORPORATION
AND
KENT PU
TABLE OF CONTENTS
Page ---- ARTICLE I THE MERGER....................................................................................... 1 1.1 Effective Time of the Merger......................................................................... 1 1.2 Closing.............................................................................................. 2 1.3 Effects of the Merger................................................................................ 2 1.4 Directors and Officers............................................................................... 2 ARTICLE II CONVERSION OF SECURITIES......................................................................... 2 2.1 Conversion of Capital Stock.......................................................................... 2 2.2 Escrow Agreement..................................................................................... 6 2.3 Appraisal Rights..................................................................................... 7 2.4 Exchange of Certificates; No Further Ownership Rights in InfoGation Capital Stock.................... 8 2.5 Distributions with Respect to Unexchanged Shares..................................................... 9 2.6 No Fractional Shares................................................................................. 9 2.7 Tax Consequences..................................................................................... 9 2.8 Restricted Securities................................................................................ 10 2.9 Deductions; Withholdings............................................................................. 10 2.10 Further Action....................................................................................... 10 ARTICLE III REPRESENTATIONS AND WARRANTIES OF INFOGATION..................................................... 10 3.1 Organization of InfoGation........................................................................... 10 3.2 InfoGation Capital Structure......................................................................... 11 3.3 Authority; No Conflict; Required Filings and Consents................................................ 12 3.4 Financial Statements; Absence of Undisclosed Liabilities............................................. 13 3.5 Tax Matters.......................................................................................... 14 3.6 Absence of Certain Changes or Events................................................................. 16 3.7 Title and Related Matters............................................................................ 18 3.8 Proprietary Rights................................................................................... 18 3.9 Employee Benefit Plans............................................................................... 22 3.10 Bank Accounts........................................................................................ 24 3.11 Contracts............................................................................................ 24 3.12 Orders, Commitments and Returns...................................................................... 26 3.13 Compliance With Law.................................................................................. 26 3.14 Labor Difficulties; No Discrimination................................................................ 26 3.15 Trade Regulation..................................................................................... 27 3.16 Insider Transactions................................................................................. 27 3.17 Employees, Independent Contractors and Consultants................................................... 28 3.18 Insurance............................................................................................ 28 3.19 Accounts Receivable.................................................................................. 28 3.20 Litigation........................................................................................... 28 3.21 Governmental Authorizations and Regulations.......................................................... 29 3.22 Subsidiaries......................................................................................... 29 |
3.23 Compliance with Environmental Requirements........................................................... 29 3.24 Corporate Documents.................................................................................. 29 3.25 No Brokers........................................................................................... 30 3.26 Customers and Suppliers.............................................................................. 30 3.27 InfoGation Action.................................................................................... 30 3.28 Privacy Laws and Policies Compliance................................................................. 30 3.29 Disclosure........................................................................................... 30 3.30 Disclosure to Shareholders........................................................................... 30 3.31 Vote Required........................................................................................ 31 ARTICLE IV REPRESENTATIONS AND WARRANTIES OF BSQUARE AND SUB................................................ 31 4.1 Organization of BSQUARE and Sub...................................................................... 31 4.2 Valid Issuance of BSQUARE Common Stock............................................................... 31 4.3 Authority; No Conflict; Required Filings and Consents................................................ 31 4.4 Commission Filings; Financial Statements............................................................. 32 4.5 Compliance with Laws................................................................................. 33 4.6 Interim Operations of Sub............................................................................ 33 4.7 Disclosure........................................................................................... 33 4.8 No Litigation........................................................................................ 34 ARTICLE V PRECLOSING COVENANTS OF INFOGATION............................................................... 34 5.1 Approval of InfoGation Shareholders.................................................................. 34 5.2 Advice of Changes.................................................................................... 34 5.3 Operation of Business................................................................................ 34 5.4 Access to Information................................................................................ 37 5.5 Satisfaction of Conditions Precedent................................................................. 38 5.6 Other Negotiations................................................................................... 38 5.7 Budget and Updated Financial Information............................................................. 38 5.8 Certain Employee Benefits Matters.................................................................... 38 ARTICLE VI PRECLOSING AND OTHER COVENANTS OF BSQUARE AND SUB................................................ 38 6.1 Advice of Changes.................................................................................... 38 6.2 Approval of InfoGation Shareholders.................................................................. 39 6.3 Reservation of BSQUARE Common Stock.................................................................. 39 6.4 Satisfaction of Conditions Precedent................................................................. 39 6.5 Nasdaq National Market Listing....................................................................... 39 6.6 Registration Rights.................................................................................. 39 6.7 Employee Benefit Matters............................................................................. 39 6.8 Attorneys' Fees...................................................................................... 40 ARTICLE VII OTHER AGREEMENTS................................................................................. 40 7.1 Confidentiality...................................................................................... 40 7.2 No Public Announcement............................................................................... 40 7.3 Regulatory Filings; Consents; Reasonable Efforts..................................................... 40 7.4 Further Assurances................................................................................... 40 |
7.5 Escrow Agreement..................................................................................... 41 7.6 Blue Sky Laws........................................................................................ 41 7.7 Other Filings........................................................................................ 41 7.8 Availability of BSQUARE's Public Information......................................................... 41 7.9 Qualification as Reorganization...................................................................... 41 ARTICLE VIII CONDITIONS TO MERGER............................................................................. 41 8.1 Conditions to Each Party's Obligation to Effect the Merger........................................... 41 8.2 Additional Conditions to Obligations of BSQUARE and Sub.............................................. 42 8.3 Additional Conditions to Obligations of InfoGation................................................... 44 ARTICLE IX TERMINATION AND AMENDMENT........................................................................ 44 9.1 Termination.......................................................................................... 44 9.2 Effect of Termination................................................................................ 45 9.3 Fees and Expenses.................................................................................... 45 ARTICLE X ESCROW AND INDEMNIFICATION....................................................................... 45 10.1 Indemnification...................................................................................... 45 10.2 Escrow Fund.......................................................................................... 46 10.3 Escrow Period........................................................................................ 46 10.4 Claims Upon Escrow Fund.............................................................................. 46 10.5 Valuation............................................................................................ 47 10.6 Objections to Claims................................................................................. 47 10.7 Resolution of Conflicts.............................................................................. 47 10.8 Shareholders' Agent.................................................................................. 48 10.9 Actions of the Shareholders' Agent................................................................... 48 10.10 Claims............................................................................................... 49 10.11 Limitation of Remedies............................................................................... 49 ARTICLE XI MISCELLANEOUS.................................................................................... 49 11.1 Survival of Representations and Covenants............................................................ 49 11.2 Notices.............................................................................................. 50 11.3 Interpretation....................................................................................... 51 11.4 Counterparts......................................................................................... 51 11.5 Entire Agreement; No Third-Party Beneficiaries....................................................... 51 11.6 Governing Law........................................................................................ 51 11.7 Assignment........................................................................................... 51 11.8 Amendment............................................................................................ 51 11.9 Extension; Waiver.................................................................................... 52 11.10 Specific Performance................................................................................. 52 |
EXHIBITS EXHIBIT A - ESCROW AGREEMENT EXHIBIT B - INVESTOR REPRESENTATION STATEMENT EXHIBIT C - REGISTRATION RIGHTS AGREEMENT |
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER, dated as of March 10, 2002 (this "Agreement"), is entered into by and among BSQUARE Corporation, a Washington corporation ("BSQUARE"), BSQUARE San Diego Corporation, a Washington corporation and a wholly owned subsidiary of BSQUARE ("Sub"), InfoGation Corporation, a Delaware corporation ("InfoGation") and Kent Pu.
RECITALS
A. Each of the boards of directors of BSQUARE, Sub and InfoGation have deemed it advisable and in the best interests of each corporation and its respective shareholders that BSQUARE and InfoGation combine in order to advance the long-term business interests of BSQUARE and InfoGation;
B. The combination of BSQUARE and InfoGation shall be effected according to the terms, but subject to the conditions, set forth in this Agreement through a transaction pursuant to which, among other things, (1) InfoGation will merge with and into Sub (the "Merger"), (2) Sub will survive the Merger and (3) the stockholders of InfoGation will become shareholders of BSQUARE;
C. For Federal income tax purposes, it is intended that the Merger shall qualify as a reorganization within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended (the "Code"); and
D. This Agreement has been adopted and approved by the respective boards of directors of BSQUARE, Sub and InfoGation.
NOW, THEREFORE, in consideration of the foregoing recitals and the respective representations, warranties, covenants and agreements set forth below, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
ARTICLE I
THE MERGER
1.1 Effective Time of the Merger.
(a) Subject to the provisions of this Agreement, (i) articles of merger (the "Washington Articles of Merger"), in such mutually acceptable form as is required by the relevant provisions of the Washington Business Corporation Act ("Washington Law"), shall be duly executed and delivered by the Surviving Corporation (as defined in Section 1.3(a)) and thereafter delivered to the Secretary of State of the State of Washington for filing on the Closing Date and (ii) a certificate of merger (the "Delaware Certificate of Merger") in such mutually acceptable form as is required by the relevant provisions of the Delaware General Corporation
Law ("Delaware Law") shall be duly executed and delivered by the Surviving Corporation and thereafter delivered to the Secretary of State of the State of Delaware for filing on the Closing Date.
(b) The Merger shall become effective upon the due and valid filing of the Washington Articles of Merger with the Secretary of State of the State of Washington or at such time thereafter as is provided in the Washington Articles of Merger (the "Effective Time").
1.2 Closing. The closing of the Merger (the "Closing") will take place at 10:00 a.m., Pacific Daylight time, on a date (the "Closing Date") to be specified by BSQUARE and InfoGation, which shall be no later than the second business day after satisfaction or waiver of the latest to occur of the conditions set forth in Article VIII, at the offices of Summit Law Group, PLLC, 1505 Westlake Avenue N., Suite 300, Seattle, Washington 98109 unless another date, time or place is agreed to in writing by BSQUARE and InfoGation.
1.3 Effects of the Merger.
(a) At the Effective Time (i) InfoGation shall be merged with and into Sub, and the separate existence of InfoGation shall cease (Sub and InfoGation are sometimes referred to herein as the "Constituent Corporations," and Sub following consummation of the Merger is sometimes referred to herein as the "Surviving Corporation"), (ii) the articles of incorporation of Sub as in effect immediately prior to the Effective Time shall be the articles of incorporation of the Surviving Corporation and (iii) the bylaws of Sub as in effect immediately prior to the Effective Time shall become the bylaws of the Surviving Corporation.
(b) At the Effective Time, the effect of the Merger shall be as provided in this Agreement and the applicable provisions of Washington Law and Delaware Law. Without limiting the generality of the foregoing, at and after the Effective Time, the Surviving Corporation shall possess all the rights, privileges, powers and franchises, and be subject to all the restrictions and duties of each of the Constituent Corporations.
1.4 Directors and Officers. The directors of Sub immediately prior to the Effective Time shall become the directors of the Surviving Corporation, each to hold office in accordance with the articles of incorporation and bylaws of the Surviving Corporation, and the officers of Sub immediately prior to the Effective Time shall become the officers of the Surviving Corporation, in each case until their respective successors are duly elected or appointed and qualified.
ARTICLE II
CONVERSION OF SECURITIES
2.1 Conversion of Capital Stock. At the Effective Time, by virtue of the Merger and without any action on the part of the holder of any shares of the capital stock of Sub or the holder of any shares of the capital stock of InfoGation, including, without limitation, shares of Common Stock, $0.01 par value, of InfoGation ("InfoGation Common Stock"), shares of Series B-1 Preferred Stock, $0.01 par value, of InfoGation ("InfoGation Series B-1 Preferred Stock"), shares of Series B-2 Preferred Stock, $0.01 par value, of InfoGation ("InfoGation Series B-2 Preferred Stock"), shares of Series C Preferred Stock, $0.01 par value of InfoGation
("InfoGation Series C Preferred Stock, and, together with the InfoGation Series B-1 Preferred Stock and the InfoGation Series B-2 Preferred Stock, the "InfoGation Preferred Stock"), the capital stock of the Constituent Corporations shall be treated as follows:
(a) Cancellation of BSQUARE-Owned and InfoGation-Owned Stock. Any shares of InfoGation Capital Stock that are owned by BSQUARE, Sub, InfoGation or any other direct or indirect wholly owned Subsidiary (as defined below) of BSQUARE or InfoGation shall be canceled and retired and shall cease to exist and no stock of BSQUARE or other consideration shall be delivered in exchange. As used in this Agreement, "InfoGation Capital Stock" means any share of InfoGation Common Stock, InfoGation Series B-1 Preferred Stock, InfoGation Series B-2 Preferred Stock or InfoGation Series C Preferred Stock which is issued and outstanding immediately prior to the Effective Time. As used in this Agreement, the word "Subsidiary" means, with respect to any other party, any corporation or other organization, whether incorporated or unincorporated, of which (i) such party or any other Subsidiary of such party is a general partner (excluding partnerships, the general partnership interests of which held by such party or any Subsidiary of such party do not have a majority of the voting interest in such partnership) or (ii) at least a majority of the securities or other interests having by their terms ordinary voting power to elect a majority of the board of directors or others performing similar functions with respect to such corporation or other organization or a majority of the profit interests in such other organization is directly or indirectly owned or controlled by such party or by any one or more of its Subsidiaries, or by such party and one or more of its Subsidiaries.
(b) Exchange Ratio.
(i) Subject to Sections 2.2, 2.3, 2.6 and 9.3 of this Agreement, pursuant to this Agreement and InfoGation's certificate of incorporation, each issued and outstanding share of InfoGation Capital Stock (other than shares to be canceled in accordance with Section 2.1(a) and any Dissenting Shares as defined in and to the extent provided in Section 2.3) immediately prior to the Effective Time shall be converted into the right to receive the following:
(A) Each share of InfoGation Common Stock issued and outstanding immediately prior to the Effective Time shall cease to be outstanding and shall be converted into and exchanged for the right to receive 0.1541 shares of BSQUARE Common Stock (the "Common Stock Exchange Ratio").
(B) Each share of InfoGation Series B-1
Preferred Stock shall be converted into and exchanged for the right to receive
(1) a cash payment equal to the fraction (a) having a numerator equal to
$1,000,000 and (b) having a denominator equal to the Fully Diluted Number of
Shares of InfoGation Series B-1 Preferred Stock (as defined below) (the "Series
B-1 Cash Consideration") plus (2) that number of shares of BSQUARE Common Stock
equal to the Series B-1 Exchange Ratio (as defined below) plus (3) that number
of shares of BSQUARE Common Stock and/or cash equal to the Series B-1 Preferred
Stock Earnout (as defined below). All such shares of InfoGation Series B-1
Preferred Stock when so converted shall no longer be outstanding and shall
automatically be canceled and retired and shall cease to exist, and each holder
of a certificate representing any such shares of InfoGation Series B-1 Preferred
Stock shall cease to have any rights with respect thereto, except the right to
receive the
Series B-1 Cash Consideration and the shares of BSQUARE Common Stock in
consideration therefor upon the surrender of such certificate in accordance with
Section 2.4, without interest. The "Series B-1 Exchange Ratio" shall be the
fraction (x) having a numerator equal to 278,324 and (y) having a denominator
equal to the Fully Diluted Number of Shares of InfoGation Series B-1 Preferred
Stock. The "Fully Diluted Number of Shares of InfoGation Series B-1 Stock" means
the aggregate number of shares of InfoGation Series B-1 Preferred Stock
outstanding immediately prior to the Effective Time. The "Series B-1 Preferred
Stock Earnout" shall be the fraction (x) having a numerator equal to 15% of any
quarterly license royalty revenue payments (for contracts with total license
royalty revenue of at least $20 per unit) received by BSQUARE from Clarion Co.,
Ltd. ("Clarion Co."), Clarion Corporation of America ("CCA") and/or any
Affiliates (as defined in Section 3.16) of Clarion Co. or CCA (collectively,
"Clarion"), in connection with licensing or similar arrangements with automobile
manufacturers or automobile parts manufacturers where such arrangements involve
the licensing by Clarion of InfoGation technology (the "Royalty Revenue
Payments"), which shall be made in the form of unregistered BSQUARE Common
Stock; provided, however, that in no event shall BSQUARE be required to issue
any additional shares of BSQUARE Common Stock pursuant to the Series B-1
Preferred Stock Earnout in the event that the sum of the aggregate number of
shares of BSQUARE Common Stock issued pursuant to the Series B-1 Preferred Stock
Earnout, when added to the number of shares of BSQUARE Common Stock previously
issued (or reserved for issuance) as consideration hereunder is equal to 19.9%
of the outstanding shares of BSQUARE Common Stock as of the Effective Time. Upon
the occurrence of such event, any remaining Royalty Revenue Payments shall be
paid in cash. The BSQUARE Common Stock to be delivered as payment for the
Royalty Revenue Payments shall be valued by determining the average closing
price of such stock over a 20-business-day period beginning 10 business days
before the end of each calendar quarter and ending 10 business days after the
end of the quarter to which the applicable Royalty Revenue Payments pertain, and
shall be made following BSQUARE's receipt from Clarion of 100% of the royalty
revenue payments owing to BSQUARE for such quarter and (y) having a denominator
equal to the Fully Diluted Number of Shares of InfoGation Series B-1 Preferred
Stock. Any such shares of BSQUARE Common Stock shall be delivered by or on
behalf of BSQUARE to the former holders of InfoGation Series B-1 Preferred Stock
within 30 calendar days after the receipt by BSQUARE from Clarion of 100% of the
royalty revenue payments owing to BSQUARE for such quarter. Notwithstanding the
foregoing, the Series B-1 Preferred Stock Earnout shall forever cease and
terminate on the earlier of (a) the date on which the holders of InfoGation B-1
Preferred Stock have received cash and/or shares of BSQUARE Common Stock with an
aggregate value of $3,000,000 (valued at the time of issuance) from the Series
B-1 Preferred Stock Earnout (and expressly excluding the BSQUARE Common Stock
paid pursuant to this Section 2.1(b)(i)(B)(2) above), or (b) five years from the
Effective Time.
(C) Each share of InfoGation Series B-2
Preferred Stock shall be converted into and exchanged for the right to receive
that number of shares of BSQUARE Common Stock equal to the Series B-2 Exchange
Ratio (as defined below). The "Series B-2 Exchange Ratio" shall be the fraction
(x) having a numerator equal to 205,632 and (y) having a denominator equal to
the Fully Diluted Number of Shares of InfoGation Series B-2 Preferred Stock. All
such shares of InfoGation Series B-2 Preferred Stock when so converted shall no
longer be outstanding and shall automatically be canceled and retired and shall
cease to exist, and each holder of a certificate representing any such shares of
InfoGation Series B-2 Preferred Stock shall cease to have any rights with
respect thereto, except the right to receive the shares of
BSQUARE Common Stock in consideration therefor upon the surrender of such certificate in accordance with Section 2.4, without interest. The "Fully Diluted Number of Shares of InfoGation Series B-2 Stock" means the aggregate number of shares of InfoGation Series B-2 Preferred Stock outstanding immediately prior to the Effective Time.
(D) Each share of InfoGation Series C
Preferred Stock shall be converted into and exchanged for the right to receive
(1) a cash payment equal to the fraction (a) having a numerator equal to
$2,000,000 and (b) having a denominator equal to the Fully Diluted Number of
Shares of InfoGation Series C Preferred Stock (as defined below) (the "Series C
Cash Consideration" and, together with the Series B-1 Cash Consideration, the
"Cash Consideration") plus (2) that number of shares of BSQUARE Common Stock
equal to the Series C Exchange Ratio (as defined below). All such shares of
InfoGation Series C Preferred Stock when so converted shall no longer be
outstanding and shall automatically be canceled and retired and shall cease to
exist, and each holder of a certificate representing any such shares of
InfoGation Series C Preferred Stock shall cease to have any rights with respect
thereto, except the right to receive the Series C Cash Consideration and the
shares of BSQUARE Common Stock in consideration therefor upon the surrender of
such certificate in accordance with Section 2.4, without interest. The "Series C
Exchange Ratio" shall be the fraction (x) having a numerator equal to 163,720
and (y) having a denominator equal to the Fully Diluted Number of Shares of
InfoGation Series C Stock. The "Fully Diluted Number of Shares of InfoGation
Series C Stock" means the aggregate number of shares of InfoGation Series C
Preferred Stock outstanding immediately prior to the Effective Time.
(ii) If, on or after the date of this Agreement and prior to the Effective Time, the outstanding shares of BSQUARE Common Stock, InfoGation Series B-1 Preferred Stock, InfoGation Series B-2 Preferred Stock or InfoGation Series C Preferred Stock shall have been changed into a different number of shares or a different class by reason of any reclassification, stock split, stock dividend or stock combination, then the Common Stock Exchange Ratio, the Series B-1 Exchange Ratio, the Series B-2 Exchange Ratio or the Series C Exchange Ratio, as the case may be, shall be correspondingly adjusted.
(c) InfoGation Stock Options and Warrants.
(i) All options to purchase InfoGation Common Stock (the "InfoGation Options") issued and outstanding under either the InfoGation 1996 Stock Option Plan, as amended (the "InfoGation 1996 Option Plan" and a "InfoGation Option Plan"), or the InfoGation 2001 Stock Option/Stock Issuance Plan, as amended (the "InfoGation 2001 Option Plan" and a "InfoGation Option Plan"), whether or not exercisable, whether or not vested, and whether or not performance-based, shall remain outstanding following the Effective Time subject to the provisions of this Section 2.1(c). Schedule 2.1(c) hereto sets forth a true and complete list as of the date of this Agreement of all holders of outstanding options under both the InfoGation 1996 Option Plan and the InfoGation 2001 Option Plan, including the number of shares of InfoGation Common Stock subject to each such option, the exercise or vesting schedule, the exercise price per share and the term of each such option. On the Closing Date, InfoGation shall deliver to BSQUARE an updated Schedule 2.1(c) hereto current as of such date.
(ii) At the Effective Time, the InfoGation Options shall, by virtue of the Merger and without any further action on the part of InfoGation or any holder of the InfoGation Options, be assumed by BSQUARE in accordance with this Section 2.1(c). Each such InfoGation Option so assumed by BSQUARE under this Agreement shall continue to have, and be subject to, the same terms and conditions set forth in the InfoGation Option Plan pursuant to which it was issued immediately prior to the Effective Time, except that (i) such InfoGation Option will be exercisable for that number of whole shares of BSQUARE Common Stock equal to the product of the number of shares of InfoGation Common Stock that were issuable upon exercise of such InfoGation Option immediately prior to the Effective Time multiplied by the Common Stock Exchange Ratio and rounded down to the nearest whole number of shares of BSQUARE Common Stock, and (ii) the per share exercise price for the shares of BSQUARE Common Stock issuable upon exercise of such assumed option will be equal to the quotient determined by dividing the exercise price per share of InfoGation Common Stock at which such InfoGation Option was exercisable immediately prior to the Effective Time by the Common Stock Exchange Ratio, rounded up to the nearest whole cent.
(iii) InfoGation has not taken, and shall not take, any action that would result in the accelerated vesting, exercisability or payment of the InfoGation Options as a consequence of the execution of, or consummation of the transactions contemplated by, this Agreement. Consistent with the terms of the InfoGation 1996 Option Plan and the InfoGation 2001 Option Plan and the documents governing the outstanding options under such InfoGation Option Plans, the Merger will not terminate any of the outstanding InfoGation Options or accelerate the vesting, exercisability or payment of such InfoGation Options or the shares of BSQUARE Common Stock which will be subject to those options upon Gumpdrop's assumption of the InfoGation Options in the Merger.
(iv) It is the intention of the parties that the InfoGation Options assumed by BSQUARE following the Effective Time qualify as incentive stock options as defined in Section 422 of the Code to the extent such InfoGation Options qualified as incentive stock options prior to the Effective Time. As soon as practicable after the Effective Time, BSQUARE will issue to each person who, immediately prior to the Effective Time, was a holder of a InfoGation Option under either of the InfoGation Option Plans, a written document evidencing the foregoing assumption of such InfoGation Option by BSQUARE.
(v) Without limiting the foregoing, effective immediately prior to the Effective Time and contingent upon consummation of the Merger, all outstanding InfoGation Warrants (as defined below), to the extent not exercised prior to the Effective Time and excluding the InfoGation Options not specifically assumed pursuant to this Section 2.1(c), shall terminate in their entirety by virtue of the Merger and without any action on the part of InfoGation, BSQUARE, Sub or the holder thereof. "InfoGation Warrants" shall mean all warrants or other rights to acquire any shares InfoGation Capital Stock outstanding immediately prior to the Effective Time, including, without limitation, the Series B-2 Option (as defined below) and the InfoGation Series C Preferred Stock Warrants (as defined below).
2.2 Escrow Agreement. At the Effective Time, BSQUARE will, on behalf of
the holders of InfoGation Series B-1 and Series C Preferred Stock entitled to
receive the Cash Consideration pursuant to Section 2.1 of this Agreement
(collectively the "Cash Consideration Stockholders")
and on behalf of the holders of InfoGation Common Stock and InfoGation Series
B-1, Series B-2 and Series C Preferred Stock entitled to receive shares of
BSQUARE Common Stock pursuant to Section 2.1 of this Agreement (collectively the
"Stock Consideration Stockholders"), deposit in escrow $300,000 in cash (the
"Escrow Cash") and certificates (the "Escrow Shares") representing ten percent
(10%) of the total number of shares of BSQUARE Common Stock issuable pursuant to
Section 2.1 of this Agreement (the "Total Consideration Shares"). The Escrow
Cash shall be held in escrow for the benefit of the Cash Consideration
Stockholders in accordance with each such stockholder's Pro Rata Cash Portion
(as defined below). The "Pro Rata Cash Portion" shall mean, as to any
stockholder, that number equal to the fraction (a) having a numerator equal to
the aggregate Series B-1 Cash Consideration or Series C Cash Consideration, as
applicable, owing to such stockholder pursuant to Sections 2.1(b)(i)(B) or (D),
as applicable, and (b) having a denominator equal to 3,000,000 less any
Additional Fees (as defined in Section 9.3 of this Agreement). The Escrow Shares
shall be held in escrow and registered in the names of the Stock Consideration
Stockholders in accordance with each such stockholder's Pro Rata Stock Portion
(as defined below). The "Pro Rata Stock Portion" shall mean, as to any
stockholder, that number of shares equal to the fraction (a) having a numerator
equal to the aggregate number of shares of BSQUARE Capital Stock issuable to
such stockholder pursuant to Sections 2.1(b)(i)(A), (B), (C) or (D), as
applicable and (b) having a denominator equal to the Total Consideration Shares.
The Escrow Cash and Escrow Shares (collectively, the "Escrow Funds") deposited
into escrow pursuant to this Section 2.2 shall be held and applied pursuant to
the provisions of an escrow agreement in the form attached hereto as Exhibit A
(the "Escrow Agreement") to be executed pursuant to Section 7.5 of this
Agreement. The Escrow Funds shall be maintained in escrow for the purpose of
satisfying claims brought pursuant to Article X of this Agreement and for the
period of time set forth in Article X and the Escrow Agreement. No contribution
to the escrow shall be made in respect of any InfoGation Options. All
calculations to determine the number of Escrow Shares to be delivered by each
Stock Consideration Stockholder into escrow shall be rounded down to the nearest
whole share. Any shares of BSQUARE Common Stock issued by reason of any
reclassification, stock split, stock dividend or stock combination of the Escrow
Shares shall be deposited into escrow and held as Escrow Funds hereunder.
2.3 Appraisal Rights.
(a) Notwithstanding any provision of this Agreement to the
contrary, any shares of InfoGation Capital Stock held by a holder who has
demanded an appraisal of such shares' value in accordance with Section 262 of
the Delaware Law or Chapter 13 of the California Corporations Code (the "CCC"),
and who, as of the Effective Time, has not effectively withdrawn or lost such
appraisal rights, or may become owned by "dissenters" ("Dissenting Shares")
within the meaning of Delaware Law and/or Chapter 13 of CCC, shall not be
converted into or represent a right to receive BSQUARE Common Stock pursuant to
Section 2.1, and the holder or holders of such Dissenting Shares shall be
entitled only to such rights as may be granted to such holder or holders in
Section 262 of the Delaware Law or Chapter 13 of the California Corporations
Code; provided, however, that if the status of any Dissenting Shares shall not
be perfected in accordance with Section 262 of the Delaware Law and/or Chapter
13 of CCC, or if they lose their status as Dissenting Shares, then, as of the
later of the Effective Time or the time of the failure to perfect such status or
upon the loss of such status, such shares shall automatically be converted into
and shall represent only the right to receive (upon the surrender
of the certificate or certificates representing such shares) BSQUARE Common Stock and Cash Consideration, if any, issuable in accordance with this Article II.
(b) InfoGation shall give BSQUARE (i) prompt notice of any written demand received by InfoGation to require InfoGation to purchase Dissenting Shares pursuant to Section 262 of the Delaware Law and/or Chapter 13 of CCC and (ii) the opportunity to participate in all negotiations and proceedings with respect to any such demand. InfoGation shall not, except with the prior written consent of BSQUARE, voluntarily make any payment with respect to any such demands or offer to settle or compromise any such demands.
2.4 Exchange of Certificates; No Further Ownership Rights in InfoGation Capital Stock.
(a) From and after the Effective Time, each holder of an outstanding certificate or certificates ("Certificates") which represented shares of InfoGation Capital Stock shall have the right to surrender each Certificate to BSQUARE (or at BSQUARE's option, to an exchange agent to be appointed by BSQUARE), and receive promptly in exchange for all Certificates held by such holder (1) a certificate representing the number of whole shares of BSQUARE Common Stock (other than the Escrow Shares) into which the InfoGation Capital Stock evidenced by the Certificates so surrendered has been converted pursuant to the provisions of Article II of this Agreement and (2) with respect to the Cash Consideration Stockholders only, the Cash Consideration (other than the Escrow Cash). The surrender of Certificates shall be accompanied by duly completed and executed Letters of Transmittal in such form as may be reasonably specified by BSQUARE (which shall specify, among other things, that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon receipt of the Certificates by BSQUARE (or, if applicable, the exchange agent)). Until surrendered, each outstanding Certificate which prior to the Effective Time represented shares of InfoGation Capital Stock shall be deemed for all corporate purposes to evidence the right to receive the number of whole shares of BSQUARE Common Stock into which the shares of InfoGation Capital Stock have been converted and, with respect to the Cash Consideration Stockholders only, the Cash Consideration, but shall, subject to applicable appraisal rights under the Delaware Law, Chapter 13 of the CCC and Section 2.3 hereof, have no other rights. Subject to applicable appraisal rights under Delaware Law, Chapter 13 of the CCC and Section 2.3 hereof, from and after the Effective Time, the holders of shares of InfoGation Capital Stock shall cease to have any rights in respect of such shares and their rights shall be solely in respect of the BSQUARE Common Stock into which such shares of InfoGation Capital Stock have been converted and, with respect to the Cash Consideration Stockholders only, the Cash Consideration. From and after the Effective Time, there shall be no further registration of transfers on the records of InfoGation of shares of InfoGation Capital Stock.
(b) If any shares of BSQUARE Common Stock are to be issued in the name of a person other than the person in whose name the Certificate(s) surrendered in exchange therefor is registered, it shall be a condition to the issuance of such shares that (i) the Certificate(s) so surrendered shall be transferable, and shall be properly assigned, endorsed or accompanied by appropriate stock powers and (ii) the person requesting such transfer shall pay BSQUARE, or its exchange agent, any transfer or other taxes payable by reason of the foregoing or establish to the satisfaction of BSQUARE that such taxes have been paid or are not required to be paid. Notwithstanding the foregoing, none of BSQUARE, InfoGation, the Surviving Corporation or
any party hereto shall be liable to any person for any amount properly paid to a public official pursuant to applicable abandoned property, escheat or similar laws.
(c) In the event any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming such Certificate to be lost, stolen or destroyed, BSQUARE shall issue in exchange for such lost, stolen or destroyed Certificate the shares of BSQUARE Common Stock issuable in exchange therefor pursuant to the provisions of Article II of this Agreement. BSQUARE's exchange agent may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed Certificate to provide to BSQUARE an indemnity agreement and/or bond against any claim that may be made against BSQUARE with respect to the Certificate alleged to have been lost, stolen or destroyed.
(d) BSQUARE agrees to make available to its exchange agent the
Total Consideration Shares less the aggregate number of Escrow Shares (which
Escrow Shares will be deposited with the Escrow Agent (as defined in Section
10.2) pursuant to Section 2.2) and the Cash Consideration less the Escrow Cash
(which Escrow Cash will be deposited with the Escrow Agent (as defined in
Section 10.2) pursuant to Section 2.2).
(e) The provisions of this Section 2.4 shall also apply to Dissenting Shares that lose their status as such, except that the obligations of BSQUARE under this Section 2.4 shall commence on the date of loss of such status.
2.5 Distributions with Respect to Unexchanged Shares. No dividends or other distributions declared or made after the Effective Time with respect to BSQUARE Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the shares of BSQUARE Common Stock represented thereby until the holder of record of such Certificate shall surrender such Certificate. Subject to the effect of applicable laws, following surrender of any such Certificate, there shall be paid to the record holder of the certificates representing whole shares of BSQUARE Common Stock issued in exchange therefor, without interest (a) at the time of such surrender, the amount of any dividends or other distributions with a record date after the Effective Time previously paid with respect to such whole shares of BSQUARE Common Stock, and (b) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of BSQUARE Common Stock.
2.6 No Fractional Shares. No fraction of a share of BSQUARE Common Stock will be issued, but in lieu thereof each holder of shares of InfoGation Capital Stock who would otherwise be entitled to a fraction of a share of BSQUARE Common Stock (after aggregating all fractional shares of BSQUARE Common Stock to be received by such holder) shall receive from BSQUARE an amount of cash (rounded to the nearest whole cent) equal to the product of (i) such fraction, multiplied by (ii) $3.05.
2.7 Tax Consequences. It is intended by the parties hereto that the Merger shall constitute a "reorganization" within the meaning of Section 368 of the Code. The parties hereto
adopt this Agreement as a "plan of reorganization" within the meaning of Sections 1.368-2(g) and 1.368-3(a) of the United States Income Tax Regulations.
2.8 Restricted Securities. The shares of BSQUARE Common Stock to be issued in the Merger shall be characterized as "restricted securities" for purposes of Rule 144 under the Securities Act of 1933, as amended (the "Securities Act"), and each certificate representing any such shares shall, until such time that the shares are not so restricted under the Securities Act, bear a legend identical or similar in effect to the following legend (together with any other legend or legends required by applicable state securities laws or otherwise, if any):
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "ACT") AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED UNLESS REGISTERED UNDER THE ACT OR UNLESS AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE ACT IS AVAILABLE."
2.9 Deductions; Withholdings. BSQUARE and the Surviving Corporation shall be entitled to deduct and withhold from any consideration payable or otherwise deliverable to any holder of InfoGation Capital Stock pursuant to this Agreement such amounts as BSQUARE or the Surviving Corporation may be required to deduct or withhold therefrom under the Code or under any provision of state, local or foreign tax law. To the extent such amounts are so deducted or withheld, such amounts shall be treated for all purposes under this Agreement as having been paid to the person or entity to whom such amounts would otherwise have been paid.
2.10 Further Action. If, at any time after the Effective Time, any further action is determined by BSQUARE to be necessary or desirable to carry out the purposes of this Agreement or to vest the Surviving Corporation or BSQUARE with full right, title and possession for and to all rights and property of Sub and InfoGation, the officers and directors of the Surviving Corporation and BSQUARE shall be fully authorized to take such action.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF INFOGATION
InfoGation and Kent Pu, jointly and severally, each represent and warrant to BSQUARE and Sub that the statements contained in this Article III are true and correct, except as expressly set forth in the disclosure schedule delivered by InfoGation to BSQUARE on or before the date of this Agreement (the "InfoGation Disclosure Schedule"). The InfoGation Disclosure Schedule shall be arranged in paragraphs corresponding to the numbered and lettered paragraphs contained in this Article III.
3.1 Organization of InfoGation. InfoGation is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, has all requisite corporate power to own, lease and operate its property and to carry on its business as now being conducted,
and is duly qualified or licensed to do business and is in good standing as a foreign corporation in each jurisdiction in which the nature of its business or ownership or leasing of properties makes such qualification or licensing necessary, which jurisdictions are set forth in the InfoGation Disclosure Schedule. The InfoGation Disclosure Schedule contains a true and complete listing of the locations of all sales offices, development facilities, and any other offices or facilities of InfoGation and a true and complete list of all states in which InfoGation maintains any employees. The InfoGation Disclosure Schedule contains a true and complete list of all states in which InfoGation is duly qualified or licensed to transact business as a foreign corporation.
3.2 InfoGation Capital Structure.
(a) The authorized capital stock of InfoGation consists of
34,650,000 shares of capital stock, of which 21,000,000 are designated as
InfoGation Common Stock and 13,650,000 shares of have been designated as
InfoGation Preferred Stock, of which 7,000,000 shares are designated as
InfoGation Series B-1 Preferred Stock, 1,250,000 shares are designated
InfoGation Series B-2 Preferred Stock and 5,400,000 shares are designated
InfoGation Series C Preferred Stock. As of the date of this Agreement, there are
(i) 4,217,676 shares of InfoGation Common Stock, 7,000,000 shares of InfoGation
Series B-1 Preferred Stock, 800,000 shares of InfoGation Series B-2 Preferred
Stock and 2,103,662 shares of InfoGation Series C Preferred Stock issued and
outstanding, all of which are validly issued, fully paid and nonassessable and
none of which are subject to preemptive or repurchase rights or rights of first
refusal created by applicable law, contract or otherwise; (ii) an outstanding
option to purchase up to 450,000 shares of InfoGation Series B-2 Preferred Stock
issued to Kent Pu (the "Series B-2 Option"); (iii) outstanding warrants to
purchase up to 3,048,777 shares of InfoGation Series C Preferred Stock (the
"InfoGation Series C Preferred Stock Warrants"); (iv) 9,903,662 shares of
InfoGation Common Stock reserved for future issuance upon conversion of the
InfoGation Series B-1 Preferred Stock, Series B-2 Preferred Stock and Series C
Preferred Stock; (v) 1,186,325 shares of InfoGation Common Stock reserved for
future issuance pursuant to InfoGation Options granted and outstanding under the
InfoGation Option Plans; (vi) 1,575,864 shares of InfoGation Common Stock
reserved for issuance upon exercise of options available to be granted in the
future under the InfoGation Option Plans; (vii) 450,000 shares of InfoGation
Series B-2 Preferred Stock reserved for issuance upon the exercise of the Series
B-2 Option; (viii) 3,048,777 shares of InfoGation Series C Preferred Stock
reserved for issuance upon the exercise of the InfoGation Series C Preferred
Stock Warrants; (ix) 450,000 shares of InfoGation Common Stock reserved for
issuance upon the conversion of the InfoGation Series B-2 Preferred Stock
issuable upon the exercise of the Series B-2 Option; and (x) 3,048,777 shares of
InfoGation Common Stock reserved for issuance upon the conversion of the
InfoGation Series C Preferred Stock issuable upon exercise of the InfoGation
Series C Preferred Stock Warrants. The issued and outstanding shares of
InfoGation Common Stock, Series B-1 Preferred Stock, Series B-2 Preferred Stock
and Series C Preferred Stock are held of record by the stockholders of
InfoGation as set forth and identified on Schedule 3.2(a) of the InfoGation
Disclosure Schedule, and that schedule lists each stockholder's state of
residence opposite such stockholder's name. The issued and outstanding
InfoGation Options are held of record by the optionholders identified in the
amounts and subject to the vesting schedules set forth on Schedule 3.2(a) of the
InfoGation Disclosure Schedule, which lists each state of residence opposite
such optionholder's name. The Series B-2 Option is held of record by Kent Pu.
The issued and outstanding InfoGation Series C Preferred Stock
Warrants are held of record by the warrantholders as set forth and identified on Schedule 3.2(a) of the InfoGation Disclosure Schedule, which lists each warrantholder's state of residence opposite such warrantholder's name. All shares of InfoGation Common Stock subject to issuance as specified above, upon issuance on the terms and conditions (including payment) specified in the instruments pursuant to which they are issuable, shall be duly authorized, validly issued, fully paid and nonassessable and shall not be subject to preemptive or repurchase rights or rights of first refusal created by applicable law, contract or otherwise. All shares of InfoGation Common Stock subject to issuance upon the conversion of InfoGation Series B-1, Series B-2 and Series C Preferred Stock and upon the exercise of InfoGation Options and all shares of InfoGation Series B-2 Preferred Stock subject to issuance upon exercise of the Series B-2 Option and InfoGation Series C Preferred Stock subject to issuance upon exercise of the InfoGation Series C Preferred Stock Warrants, upon issuance on the terms and conditions (including payment) specified in the instrument pursuant to which they are issuable, will be duly authorized, validly issued, fully paid and nonassessable and shall not be subject to preemptive or repurchase rights or rights of first refusal created by applicable law, contract or otherwise. Except as set forth in Schedule 3.2(a) of the InfoGation Disclosure Schedule, all outstanding shares of InfoGation Capital Stock and outstanding InfoGation Options, InfoGation Warrants, the Series B-2 Option and InfoGation Series C Preferred Stock Warrants (collectively "InfoGation Securities") were issued in compliance with applicable federal and state securities laws. Except as set forth in the InfoGation Disclosure Schedule, there are no obligations, contingent or otherwise, of InfoGation to repurchase, redeem or otherwise acquire or issue or sell any shares of InfoGation Capital Stock or make any investment (in the form of a loan, capital contribution or otherwise) in any other entity. Except as otherwise provided herein or in the InfoGation Disclosure Schedule, there are no other shares of InfoGation Capital Stock authorized, issued and outstanding. An updated Schedule 3.2(a) reflecting changes permitted by this Agreement in the capitalization of InfoGation between the date hereof and the Effective Time shall be delivered by InfoGation to BSQUARE on the Closing Date.
3.3 Authority; No Conflict; Required Filings and Consents.
(a) InfoGation has all requisite corporate power and authority to enter into this Agreement and all Transaction Documents (as defined below) to which it is or will become a party and to consummate the transactions contemplated in this Agreement and such Transaction Documents. The execution and delivery of this Agreement and such Transaction Documents and the consummation of the transactions contemplated in this Agreement and such Transaction Documents have been duly authorized by all necessary corporate action on the part of InfoGation, subject only to the approval of the Merger by InfoGation's stockholders under the provisions of Delaware Law and InfoGation's certificate of incorporation. This Agreement has been and such Transaction Documents have been or, to the extent not executed by InfoGation as of the date hereof, will be duly executed and delivered by InfoGation. This Agreement and each of the Transaction Documents to which InfoGation is a party constitutes, and each of the Transaction Documents to which InfoGation will become a party, when executed and delivered by InfoGation, will constitute, the valid and binding obligation of InfoGation, enforceable against InfoGation in accordance with their respective terms, except to the extent that enforceability may be limited by applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting the enforcement of creditors' rights generally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding at law or in
equity. For purposes of this Agreement, "Transaction Documents" means the Washington Articles of Merger, the Delaware Certificate of Merger and the Escrow Agreement.
(b) The execution and delivery by InfoGation of this Agreement
and the Transaction Documents to which it is or will become a party does not,
and the consummation of the transactions contemplated in this Agreement and the
Transaction Documents to which it is or will become a party will not, (i)
conflict with, or result in any violation or breach of any provision of the
certificate of incorporation or bylaws of InfoGation, each as amended to date
(ii) result in any violation or breach of, or constitute (with or without notice
or lapse of time, or both) a default (or give rise to a right of termination,
cancellation or acceleration of any obligation or loss of any benefit) under any
of the terms, conditions or provisions of any note, bond, mortgage, indenture,
lease, contract or other agreement, instrument or obligation to which InfoGation
is a party or by which it or any of its properties or assets may be bound, or
(iii) conflict or violate any permit, concession, franchise, license, judgment,
order, decree, statute, law, ordinance, rule or regulation applicable to
InfoGation or any of its properties or assets, except in the case of (ii) and
(iii) for any such conflicts, violations, defaults, terminations, cancellations
or accelerations which would not have a material adverse effect on the business,
assets (including intangible assets), liabilities, condition (financial or
otherwise), property or results of operations (a "Material Adverse Effect") of
InfoGation.
(c) None of the execution and delivery by InfoGation of this Agreement or of any other Transaction Document to which InfoGation is or will become a party or the consummation of the transactions contemplated in this Agreement or any such Transaction Document will require any consent, approval, order or authorization of, or registration, declaration or filing with, any court, administrative agency or commission or other governmental authority or instrumentality ("Governmental Entity"), except for (i) the filing of the Washington Articles of Merger with the Secretary of State of the State of Washington (ii) the filing of the Delaware Certificate of Merger with the Secretary of State of the State of Delaware, (iii) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable federal and state securities laws and (iv) such other consents, authorizations, filings, approvals and registrations which, if not obtained or made, could be expected to have a Material Adverse Effect on InfoGation, all of which consents are listed on the InfoGation Disclosure Schedule.
3.4 Financial Statements; Absence of Undisclosed Liabilities.
(a) InfoGation has delivered to BSQUARE copies of InfoGation's unaudited balance sheet as of January 31, 2002 (the "Most Recent Balance Sheet") and unaudited statements of operations, shareholders' equity and cash flows for the ten-month period then-ended (together with the Most Recent Balance Sheet, the "InfoGation Interim Financials") and InfoGation's audited balance sheets as of March 31, 2001, 2000, and 1999 and the related audited statements of operations, shareholders' equity and cash flows for the years ended March 31, 2001, 2000 and 1999, respectively (together with the InfoGation Interim Financials, the "InfoGation Financial Statements"). The InfoGation Financial Statements are attached as Schedule 3.4(a) of the InfoGation Disclosure Schedule.
(b) Other than as set forth on the InfoGation Disclosure Schedule, the InfoGation Financial Statements were prepared in accordance with the books and records of InfoGation and present fairly in all material respects the financial position, results of operations and cash flows of InfoGation as of their historical dates and for the periods indicated, subject, in the case of the InfoGation Interim Financials, to normal year-end audit adjustments. The InfoGation Financial Statements have been prepared in accordance with generally accepted accounting principles applied on a basis consistent with prior periods, except to the extent required by changes in generally accepted accounting principles or as may be indicated in the notes thereto and except to the extent that the InfoGation Interim Financials do not include footnotes that would be required by generally accepted accounting principles. The reserves, if any, reflected on the InfoGation Financial Statements are adequate in light of the contingencies with respect to which they were made.
(c) InfoGation has no material debt, liability or obligation of any nature, whether accrued, absolute, contingent or otherwise, and whether due or to become due, that is not reflected or reserved against in the Most Recent Balance Sheet, except for those that would not reasonably be required, in accordance with generally accepted accounting principles applied on a basis consistent with prior periods, to be included in a balance sheet or the notes thereto. All debts, liabilities and obligations incurred after the date of the Most Recent Balance Sheet were incurred in the ordinary course of business and are not material either individually or in the aggregate to InfoGation or its business.
3.5 Tax Matters.
(a) For purposes of this Section 3.5 and other provisions of this Agreement relating to Taxes, the following definitions shall apply:
(i) The term "Taxes" shall mean all taxes, however denominated, including any interest, penalties or other additions to tax that may become payable in respect thereof, (A) imposed by any federal, territorial, state, local or foreign government or any agency or political subdivision of any such government, which taxes shall include, without limiting the generality of the foregoing, all income or profits taxes (including but not limited to, federal income taxes and state income taxes), payroll and employee withholding taxes, unemployment insurance, social security taxes, sales and use taxes, ad valorem taxes, excise taxes, franchise taxes, gross receipts taxes, business license taxes, occupation taxes, real and personal property taxes, stamp taxes, environmental taxes, ozone depleting chemicals taxes, transfer taxes, workers' compensation, Pension Benefit Guaranty Corporation premiums and other governmental charges, and other obligations of the same or of a similar nature to any of the foregoing, which are required to be paid, withheld or collected, (B) any liability for the payment of amounts referred to in (A) as a result of being a member of any affiliated, consolidated, combined or unitary group, or (C) any liability for amounts referred to in (A) or (B) as a result of any obligations to indemnify another person.
(ii) The term "Returns" shall mean all reports, estimates, declarations of estimated tax, information statements and returns relating to, or required to be filed in connection with, any Taxes, including information returns or reports with respect to backup withholding and other payments to third parties.
(b) All material Returns required to be filed prior to the date hereof by or on behalf of InfoGation have been duly filed on a timely basis, and such Returns are true, complete and correct in all material respects. All Taxes shown to be payable on such Returns or on subsequent assessments with respect thereto, and all payments of estimated Taxes required to be made prior to the date hereof by or on behalf of InfoGation under Section 6655 of the Code or comparable provisions of state, local or foreign law, have been paid in full on a timely basis or have been accrued on the Most Recent Balance Sheet, and no other Taxes are payable by InfoGation with respect to items or periods covered by such Returns (whether or not shown on such Returns). InfoGation currently is not the beneficiary of any extension of time within which to file any Return. InfoGation has withheld and paid over all Taxes required to have been withheld and paid over prior to the date hereof, and complied with all information reporting and backup withholding requirements, including maintenance of required records with respect thereto, in connection with amounts paid or owing to any employee, creditor, independent contractor, or other third party. No claim has ever been made by any authority in a jurisdiction where InfoGation does not file Returns that it is or may be subject to taxation by that jurisdiction. There are no liens on any of the assets of InfoGation with respect to Taxes, other than liens for Taxes not yet due and payable or for Taxes that InfoGation is contesting in good faith through appropriate proceedings and for which appropriate reserves have been established on the Most Recent Balance Sheet. InfoGation has not at any time been (i) a member of an affiliated group of corporations filing consolidated, combined or unitary income or franchise tax returns, nor does it have any liability for Taxes of any Person under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local, or foreign law) as a transferee or successor, by contract or otherwise. InfoGation has not at any time been a member of any partnership or joint venture for a period for which the statue of limitations for any Tax potentially applicable as a result of such membership has not expired.
(c) The amount of InfoGation's liability for unpaid Taxes (whether or not shown on any Returns) for all periods through the date of the Most Recent Balance Sheet does not, in the aggregate, exceed the reserve for Tax liability (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) reflected on the Most Recent Balance Sheet (rather than in any notes thereto), and the Most Recent Balance Sheet reflects proper accrual in accordance with generally accepted accounting principles applied on a basis consistent with prior periods of all liabilities for Taxes payable after the date of the Most Recent Balance Sheet attributable to transactions and events occurring prior to such date. No liability for Taxes has been incurred (or prior to Closing will be incurred) by InfoGation since such date other than in the ordinary course of business.
(d) InfoGation has furnished to BSQUARE true and complete copies of (i) relevant portions of income tax audit reports, statements of deficiencies, closing or other agreements received by or on behalf of InfoGation relating to Taxes, and (ii) all federal and state income or franchise tax Returns, state sales and use tax Returns and business and occupation tax Returns for or including InfoGation for all periods since the inception of InfoGation. InfoGation is not required to file Returns in any state other than states for which Returns have been duly filed and furnished to BSQUARE.
(e) The Returns of or including InfoGation have never been audited by a government or taxing authority, nor is any such audit in process, pending or, to InfoGation's
knowledge, threatened (either in writing or verbally, formally or informally). No deficiencies exist or have been asserted (in writing), and InfoGation has not received notice (in writing) that it has not filed a Return or paid Taxes required to be filed or paid. InfoGation is neither a party to any action or proceeding for assessment or collection of Taxes, nor has such event been asserted or, to the knowledge of InfoGation, overtly threatened (either in writing or orally, formally or informally) against InfoGation or any of its assets. No waiver or extension of any statute of limitations is in effect with respect to Taxes or Returns of InfoGation. InfoGation has disclosed on its federal and state income and franchise tax Returns all positions taken therein that could give rise to a substantial understatement penalty within the meaning of Section 6662 of the Code or comparable provisions of applicable state, local, foreign or other tax laws.
(f) InfoGation will not be required to include any item of
income in, or exclude any item of deduction from, taxable income for any taxable
period (or portion thereof) ending after the Closing Date as a result of any:
(i) change in method of accounting for a taxable period ending on or prior to
the Closing Date; (ii) "closing agreement" as described in Section 7121 of the
Code (or any corresponding or similar provision of state, local or foreign
income Tax law) executed on or prior to the Closing Date; (iii) installment sale
or open transaction disposition made on or prior to the Closing Date; or (iv)
prepaid amount received on or prior to the Closing Date.
(g) InfoGation is not, nor has it ever been, a party to any tax sharing agreement.
(h) InfoGation has not been a "distributing corporation" or a "controlled corporation" in a transaction described in Section 355(a) of the Code (x) in the two years prior to the date of this Agreement; or (y) in a distribution which could otherwise constitute part of a "plan" or "series of related transactions" (within the meaning of Section 355(e) of the Code) in conjunction with the Merger.
(i) InfoGation is not, nor has it been, a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code, and BSQUARE is not required to withhold tax by reason of Section 1445 of the Code. InfoGation is not a "consenting corporation" under Section 341(f) of the Code. InfoGation has not entered into any agreement, contract, arrangement or plan that has resulted or would result, separately or in the aggregate (x) in a nondeductible expense to InfoGation pursuant to Section 280G of the Code or an excise tax to the recipient of such payment pursuant to Section 4999 of the Code or (y) in an amount that will not be fully deductible as a result of Section 162(m) or Section 404 of the Code. InfoGation is not, nor has it been, a "reporting corporation" subject to the information reporting and record maintenance requirements of Section 6038A of the Code and the regulations thereunder. InfoGation is in compliance with the terms and conditions of any applicable tax exemptions, agreements or orders of any foreign government to which it may be subject or which it may have claimed, and the transactions contemplated by this Agreement will not have any adverse effect on such compliance.
3.6 Absence of Certain Changes or Events. Since January 31, 2002, other than as set forth on the InfoGation Disclosure Schedule, InfoGation has not:
(a) suffered any Material Adverse Effect;
(b) suffered any damage, destruction or loss, other than operating losses included in the ordinary course of business and consistent with recent periods, whether covered by insurance or not, that has resulted, or could be reasonably expected to result, in a Material Adverse Effect on InfoGation;
(c) granted or agreed to make any increase in the compensation payable or to become payable by InfoGation to its officers or employees;
(d) declared, set aside or paid any dividend or made any other distribution on or in respect of the shares of the capital stock of InfoGation or declared any direct or indirect redemption, retirement, purchase or other acquisition by InfoGation of such shares;
(e) issued any shares of capital stock of InfoGation or any warrants, rights, options or entered into any commitment relating to the shares of InfoGation, except for the grant of InfoGation Options pursuant to the InfoGation Option Plans in the ordinary course of business and consistent with recent periods and the issuance of shares of InfoGation capital stock pursuant to the exercise of InfoGation Options set forth on the InfoGation Disclosure Schedule;
(f) except as required by generally accepted accounting principles, made any change in the accounting methods or practices it follows, whether for general financial or tax purposes, or any change in depreciation or amortization policies or rates adopted therein;
(g) sold, leased, abandoned or otherwise disposed of any real property or any machinery, equipment or other operating property with an individual net book value in excess of One Thousand Dollars ($5,000);
(h) sold, assigned, transferred or otherwise disposed of any patent, trademark, trade name, brand name, copyright (or pending application for any patent, trademark or copyright) invention, work of authorship, process, know-how, formula or trade secret or interest thereunder or other intangible asset;
(i) permitted or allowed any of its property or assets to be subjected to any mortgage, deed of trust, pledge, lien, security interest or other encumbrance of any kind (except those permitted under Section 3.7);
(j) made any capital expenditure or commitment for capital expenditure individually in excess of Five Thousand Dollars ($5,000) or in the aggregate in excess of Fifteen Thousand Dollars ($15,000);
(k) paid, loaned or advanced any amount to, or sold, transferred or leased any properties or assets to, or entered into any agreement or arrangement with, any of its Affiliates (as defined in Section 3.16), officers, directors or stockholders or any affiliate of any of the foregoing;
(l) made any amendment to or terminated any agreement which, if not so amended or terminated, would be required to be disclosed on the InfoGation Disclosure Schedule; or
(m) agreed to take any action described in this Section 3.6 or outside of its ordinary course of business or which would constitute a breach of any of the representations of InfoGation contained in this Agreement.
3.7 Title and Related Matters. InfoGation has good and valid title to all its properties, interests in properties and assets, real and personal, free and clear of all mortgages, liens, pledges, charges or encumbrances of any kind or character, except the lien of current taxes not yet due and payable. The equipment of InfoGation used in the operation of its business is, taken as a whole, (a) adequate for the business conducted by InfoGation and (b) in good operating condition and repair, ordinary wear and tear excepted. All personal property leases to which InfoGation is a party are valid, binding, enforceable against the parties thereto and in effect in accordance with their respective terms, except to the extent that enforceability may be limited by applicable bankruptcy, reorganization, insolvency, moratorium, or other laws affecting the enforcement of creditors' rights generally and by principles of equity, regardless of whether such enforceability is considered in a proceeding at law or in equity. There is not under any of such leases any existing default by InfoGation or event of default or event which, with notice or lapse of time or both, would constitute a default by InfoGation or, to the knowledge of InfoGation, any existing default by any other party to such leases or event of default or event which, with notice or lapse of time or both, would constitute a default by any other party to such leases. The InfoGation Disclosure Schedule contains a description of all items of personal property with an individual net book value in excess of Fifteen Thousand Dollars ($15,000) and real property leased or owned by InfoGation, describing its interest in said property. True and correct copies of InfoGation's real property and personal property leases have been provided to BSQUARE or its representatives.
3.8 Proprietary Rights.
(a) InfoGation owns all right, title and interest in and to, or otherwise possesses legally enforceable rights, or is licensed to use all copyrights, technology, software, software tools, know-how, processes, trade secrets, trademarks, service marks, trade names, Internet domain names and other proprietary rights and, to InfoGation's knowledge, patents, used in the conduct of InfoGation's business as conducted to the date of this Agreement or as proposed to be conducted, including, without limitation, the technology, information, databases, data lists, data compilations, and all proprietary rights developed or discovered or used in connection with or contained in all versions and implementations of InfoGation's World Wide Web sites (including www.InfoGation and the other domain names listed in Section 3.8(a) of the InfoGation Disclosure Schedule) and InfoGation's products and services (collectively, including such Web sites, the "InfoGation Proprietary Rights"), free and clear of all liens, claims and encumbrances (excluding licensing and distribution rights listed in the InfoGation Disclosure Schedule). Such InfoGation Proprietary Rights are sufficient for the conduct of InfoGation's business as currently conducted and as proposed to be conducted. The InfoGation Disclosure Schedule contains an accurate and complete (i) description of all patents and patent applications, registered trademarks and trademark applications, registrations or applications for trade names, Internet domain names
and registered copyrights included in the InfoGation Proprietary Rights
(collectively, "Registered Intellectual Property"), including the jurisdictions
in which each such InfoGation Proprietary Right has been issued or registered or
in which any such application of such issuance and registration has been filed,
(ii) list of all licenses and other agreements with third parties (the
"Third-Party Licenses") relating to any patents, copyrights, trade secrets,
software, inventions, technology, know-how, processes or other proprietary
rights that InfoGation is licensed or otherwise authorized by such third parties
to use, market, or distribute (such patents, copyrights, trade secrets,
software, inventions, technology, know-how, processes or other proprietary
rights are collectively referred to as the "Third-Party Technology"), other than
non-exclusive, object code licenses of software generally available to the
public under standard form shrinkwrap or clickwrap license agreements that are
both (A) currently generally publicly available and (B) do not relate to
software that InfoGation is redistributing in whole or in part, and (iii) list
of all licenses and other agreements with third parties relating to any
information, compilations, data lists or databases that InfoGation is licensed
or otherwise authorized by such third parties to use, market, disseminate or
distribute. All of InfoGation's patents and patent applications are subsisting
and all necessary registration, maintenance and renewal fees in connection with
such InfoGation patents and patent applications have been paid and all necessary
documents and certificates in connection with such InfoGation patents and patent
applications have been filed with the relevant patent or other authorities in
the United States or foreign jurisdictions, as the case may be, for the purposes
of maintaining such InfoGation Intellectual Property Rights. To InfoGation's
knowledge, all of InfoGation's Registered Intellectual Property is valid and in
full force and effect, and except as set forth on the InfoGation Disclosure
Schedule, the consummation of the transactions contemplated in this Agreement
will not alter or impair any such rights. Other than as set for the in the
Third-Party Licenses, there are no royalties, license fees or other payments
payable by InfoGation to any third party (other than salaries payable to
employees and independent contractors not contingent on or related to use of
their work product) as a result of the ownership, use, license, distribution,
sale or practice of any InfoGation Proprietary Rights by InfoGation or any of
its licensees and none shall become payable as a result of the consummation of
the transactions contemplated by this Agreement. Except as set forth on the
InfoGation Disclosure Schedule, no claims have been asserted or, to InfoGation's
knowledge, threatened against InfoGation (and InfoGation is not aware of any
claims which are likely to be asserted or threatened against InfoGation or which
have been asserted or threatened against others relating to InfoGation
Proprietary Rights) by any person challenging InfoGation's use, possession,
manufacture, sale or distribution of InfoGation Proprietary Rights (including,
without limitation, the Third-Party Technology and any technology embodying the
InfoGation Proprietary Rights) or challenging or questioning the validity or
effectiveness of any license or agreement to which InfoGation is a party
relating thereto (including, without limitation, the Third-Party Licenses) or
alleging a violation by InfoGation or any employee, consultant or agent of
InfoGation of any person's or entity's privacy, personal or confidentiality
rights. InfoGation knows of no valid basis for any claim of the type specified
in the immediately preceding sentence which could in any way relate to or
interfere with the continued enhancement and exploitation by InfoGation of any
of the InfoGation Proprietary Rights. Neither the use or exploitation of any
InfoGation Proprietary Rights (other than patents) or, to InfoGation's
knowledge, the use or exploitation of any InfoGation patents, in InfoGation's
business as currently conducted or as proposed to be conducted infringes on the
rights of or constitutes misappropriation of any proprietary information or
intangible property right of any third person
or entity, including without limitation any patent, trade secret, copyright, trademark or trade name, and InfoGation has not been served with a summons in any suit, action or proceeding which involves a claim of such infringement, misappropriation or unfair competition.
(b) Except as set forth in Section 3.8(b) of the InfoGation Disclosure Schedule, InfoGation has not granted any third party any right to use, reproduce, distribute, market or exploit any of the InfoGation Proprietary Rights or any adaptations, translations, or derivative works based on the InfoGation Proprietary Rights or any portion thereof. Except with respect to the rights of third parties to the Third-Party Technology and except as set forth in the InfoGation Disclosure Schedule, no third party has any express right to use, reproduce, distribute, market or exploit any works or materials of which any of the InfoGation Proprietary Rights are a "derivative work" as that term is defined in the United States Copyright Act, Title 17, U.S.C. Section 101. Except as set forth in Schedule 3.8(b) of the InfoGation Disclosure Schedule, InfoGation has not assigned or granted joint ownership rights to any software, technology or intellectual property developed by InfoGation.
(c) All material designs, drawings, specifications, source code, object code, scripts, documentation, flow charts, diagrams, data lists, databases, compilations and information incorporating, embodying or reflecting any of the InfoGation Proprietary Rights at any stage of their development (the "InfoGation Components") were written, developed and created solely and exclusively by full-time employees of InfoGation without the assistance of any third party or entity or were created by third parties who assigned ownership of their rights to InfoGation by means of valid and enforceable confidentiality and intellectual property rights assignment agreements, copies of which have been delivered to BSQUARE.
(d) To InfoGation's knowledge, no employee, contractor or consultant of InfoGation is in violation in any material respect of any term of any written employment contract, patent disclosure agreement or any other written contract or agreement relating to the relationship of any such employee, consultant or contractor with InfoGation or, to InfoGation's knowledge, any other party because of the nature of the business conducted by InfoGation or proposed to be conducted by InfoGation. The InfoGation Disclosure Schedule lists all employees, contractors and consultants who have participated in any way in the development of any material portion of the InfoGation Proprietary Rights. To InfoGation's knowledge, the employment of any employee of InfoGation or the use by InfoGation of the services of any consultant or independent contractor does not subject InfoGation to any liability to any third party for improperly soliciting such employee, consultant or independent contractor to work for InfoGation, whether such liability is based on contractual or other legal obligations to such third party
(e) Each person presently or previously employed by InfoGation (including independent contractors, if any) with access authorized by InfoGation to confidential information of InfoGation has executed a confidentiality and non-disclosure agreement pursuant to the form of agreement previously provided to BSQUARE or its representatives.
(f) No product liability or warranty claims have been communicated in writing to or threatened against InfoGation.
(g) To InfoGation's knowledge, there is no unauthorized use, disclosure, infringement or misappropriation of any InfoGation Proprietary Rights, or any Third-Party Technology to the extent licensed by or through InfoGation, by any third party, including any employee or former employee of InfoGation. InfoGation has not entered into any agreement to indemnify any other person against any charge of infringement of any InfoGation Proprietary Rights except in the ordinary course of business pursuant to agreements listed in Schedule 3.8(b) of the InfoGation Disclosure Schedule.
(h) InfoGation has taken all steps customary and reasonable in the industry to protect and preserve the confidentiality and proprietary nature of all InfoGation Proprietary Rights and other confidential information not otherwise protected by issued patents ("Confidential Information"). All use and disclosure to a third party by InfoGation of Confidential Information owned by InfoGation has been pursuant to the terms of a written agreement between InfoGation and such third party. To InfoGation's knowledge, all use and disclosure to a third party by another party pursuant to rights granted to it by InfoGation of Confidential Information owned by InfoGation has been pursuant to the terms of a written agreement between such other party and such third party, and all use and disclosure by InfoGation of Confidential Information not owned by InfoGation has been pursuant to the terms of a written agreement between InfoGation and the owner of such Confidential Information, or is otherwise lawful.
(i) Neither InfoGation nor any other party acting on its behalf has disclosed or delivered to any party, or permitted the disclosure or delivery to any escrow agent or other party of, any InfoGation Source Code (as defined below). No event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time, or both) shall, or would reasonably be expected to, result in the disclosure or delivery by InfoGation or any other party acting on their behalf to any party of any InfoGation Source Code. Schedule 3.8(h) identifies each contract, agreement, arrangement, commitment or undertaking (whether written or oral) pursuant to which InfoGation has deposited, or is or may be required to deposit, with an escrow holder or any other party, any InfoGation Source Code and further describes whether the execution of this Agreement or the consummation of the Merger or any of the other transactions contemplated by this Agreement, in and of itself, would reasonably be expected to result in the release from escrow of any InfoGation Source Code. As used in this Section 3.8(i), "InfoGation Source Code" means, collectively, any software source code, or any portion or aspect of the software source code that embodies any InfoGation Proprietary Rights or any other product marketed or currently under development by InfoGation.
(j) No government funding; facilities of a university, college, other educational institution or research center; or funding from third parties (other than funds received in consideration for InfoGation capital stock) was used in the development of the computer software programs or applications owned by InfoGation. Except as set forth on Schedule 3.8(j), no current or former employee, consultant or independent contractor of InfoGation, who was involved in, or who contributed to, the creation or development of any InfoGation Proprietary Rights, has performed services for the government, university, college, or other educational institution or research center during a period of time during which such employee, consultant or independent contractor was also performing services for InfoGation.
(k) No Public Software (as defined below) forms part of the
InfoGation Proprietary Rights or was or is used in connection with the
development of any InfoGation Proprietary Right, incorporated in whole or in
part, or has been distributed, in whole or in part, in conjunction with any
InfoGation Proprietary Right. As used in this Section 3.8(k), "Public Software"
means any software that contains, or is derived in any manner (in whole or in
part) from, any software that is distributed as free software, open source
software (e.g., Linux) or similar licensing or distribution models, including
software licensed or distributed under any of the following licenses or
distribution models, or licenses or distribution models similar to any of the
following: (i) GNU's General Public License (GPL) or Lesser/Library GPL (LGPL),
(ii) the Artistic License (e.g., PERL), (iii) the Mozilla Public License, (iv)
the Netscape Public License, (v) the Sun Community Source License (SCSL), (vi)
the Sun Industry Standards License (SISL), (vii) the BSD License and (viii) the
Apache License
3.9 Employee Benefit Plans.
(a) The InfoGation Disclosure Schedule lists, with respect to InfoGation and any trade or business (whether or not incorporated) which is treated as a single employer with InfoGation (an "ERISA Affiliate") within the meaning of Section 414(b), (c), (m) or (o) of the Code, (i) all employee benefit plans (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") to which InfoGation and/or an ERISA Affiliate contribute or which they sponsor or maintain or by which they are otherwise bound, (ii) each loan to a non-officer employee, loans to officers and directors and any stock option, stock purchase, phantom stock, stock appreciation right, supplemental retirement, severance, sabbatical, medical, dental, vision care, disability, employee relocation, cafeteria benefit (Code Section 125) or dependent care (Code Section 129), life insurance or accident insurance plans, programs or arrangements, (iii) all bonus, pension, profit sharing, savings, deferred compensation or incentive plans, programs or arrangements, (iv) other fringe or employee benefit plans, programs or arrangements that apply to senior management of InfoGation and/or an ERISA Affiliate and that do not generally apply to all employees, and (v) any current or former employment or executive compensation or severance agreements, written or otherwise, for the benefit of, or relating to, any present or former employee, independent contractor, consultant or director of InfoGation and/or an ERISA Affiliate, as to which (with respect to any of items (i) through (v) above) any potential liability is borne by InfoGation and/or an ERISA Affiliate (together, the "InfoGation Employee Plans"). Each InfoGation Employee Plan has been duly adopted by InfoGation.
(b) InfoGation has delivered to BSQUARE or its representatives a copy of each of the InfoGation Employee Plans and related trust documents, insurance policies or contracts, employee booklets and summary plan descriptions, and, to the extent still in its possession, any material employee communications related thereto, and has, with respect to each InfoGation Employee Plan which is subject to ERISA reporting requirements, provided copies of any Form 5500 reports filed for the last three plan years, including all schedules thereto and financial statements with attached opinions of independent auditors. Any InfoGation Employee Plan intended to be qualified under Section 401(a) of the Code has either obtained from the Internal Revenue Service a favorable determination letter as to its qualified status under the Code, including all amendments to the Code effected by the Tax Reform Act of 1986 and subsequent legislation, or has remaining a period of time under the Code or applicable Treasury Regulations
or Internal Revenue Service pronouncements in which to apply for such determination letter and to make any amendments necessary to obtain a favorable determination and each trust under such InfoGation Employee Plan is exempt from tax under Section 501(a) of the Code. InfoGation has also furnished BSQUARE with the most recent Internal Revenue Service determination letter issued with respect to each such InfoGation Employee Plan, and, to the knowledge of InfoGation, nothing has occurred since the issuance of each such letter which could reasonably be expected to cause the loss of the tax-qualified status of any InfoGation Employee Plan subject to Code Section 401(a) or the loss of the tax-qualified status of any trust thereunder.
(c) (i) None of the InfoGation Employee Plans promises or
provides retiree medical or other retiree welfare benefits to any person, except
to the extent mandated by applicable law, including, without limitation,
Sections 601 through 609 of ERISA and Section 4980B(f) of the Code; (ii) there
has been no "prohibited transaction," as such term is defined in Section 406 of
ERISA and Section 4975(c)(1) of the Code, for which an exemption is not
available, with respect to any InfoGation Employee Plan that is a "plan" within
the meaning of Section 4975(c)(1) of the Code or an "employee benefit plan"
within the meaning of Section 3(3) of ERISA; (iii) each InfoGation Employee Plan
has been administered in all material respects in accordance with its terms and
in compliance with the requirements prescribed by any and all statutes, rules
and regulations (including ERISA and the Code), and InfoGation and each ERISA
Affiliate have performed all material obligations required to be performed by
them under, are not in any material respect in default under or in material
violation of, and have no knowledge of any material default or violation by any
other party to, any of the InfoGation Employee Plans; (iv) neither InfoGation
nor any ERISA Affiliate is subject to any liability or penalty under Sections
4976 through 4980 of the Code with respect to any of the InfoGation Employee
Plans; (v) all contributions required to be made by InfoGation or any ERISA
Affiliate to any InfoGation Employee Plan have been made on or before their due
dates and a reasonable amount has been accrued for contributions to each
InfoGation Employee Plan for the current plan years; and (vi) no InfoGation
Employee Plan is covered by, and neither InfoGation nor any ERISA Affiliate has
incurred or expects to incur any material liability under, Title IV of ERISA or
Section 412 of the Code. With respect to each InfoGation Employee Plan subject
to ERISA as either an employee pension benefit plan within the meaning of
Section 3(2) of ERISA or an employee welfare benefit plan within the meaning of
Section 3(1) of ERISA, InfoGation has prepared in good faith and timely filed
all requisite governmental reports (which, to the knowledge of InfoGation, were
true and correct as of the date filed) and has properly and timely filed and
distributed or posted all notices and reports to employees required to be filed,
distributed or posted with respect to each such InfoGation Employee Plan. No
suit, administrative proceeding, action or other litigation has been brought, or
to the knowledge of InfoGation is threatened, against or with respect to any
such InfoGation Employee Plan, including any audit or inquiry by the IRS or
United States Department of Labor. Neither InfoGation nor any ERISA Affiliate is
a party to, or has made any contribution to or otherwise incurred any obligation
under, any "multiemployer plan" as defined in Section 3(37) of ERISA.
(d) With respect to each InfoGation Employee Plan that is a "group health plan" within the meaning of the Code and ERISA, InfoGation has complied in all material respects with (i) the applicable health care continuation and notice provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended ("COBRA"), and the regulations
thereunder, (ii) the applicable requirements of the Family and Medical Leave Act of 1993, as amended, and the regulations thereunder, (iii) the applicable requirements of the Health Insurance Portability and Accountability Act of 1996, as amended ("HIPAA"), and the temporary regulations thereunder, (iv) the Women's Health and Cancer Rights Act, and any regulations thereunder, (v) the Mental Health Parity Act, and any regulations thereunder, (vi) the Newborns and Mothers Health Protection Act, and any regulations thereunder, and (vii) any other federal and state laws or regulations applicable to such plans..
(e) The consummation of the transactions contemplated in this Agreement will not (i) entitle any current or former employee or other service provider of InfoGation or an ERISA Affiliate to severance benefits or any other payment (including, without limitation, unemployment compensation, golden parachute or bonus), except as expressly provided in this Agreement, or (ii) accelerate the time of payment or vesting of any such benefits, or (iii) increase or accelerate any benefits or the amount of compensation due any such employee or service provider.
(f) There has been no amendment to, written interpretation or announcement (whether or not written) by InfoGation or other ERISA Affiliate relating to, or change in participation or coverage under, any InfoGation Employee Plan which would materially increase the expense of maintaining such Plan above the level of expense incurred with respect to that Plan for the most recent fiscal year included in the InfoGation Financial Statements.
3.10 Bank Accounts. The InfoGation Disclosure Schedule sets forth the names and locations of all banks, trust companies, savings and loan associations, and other financial institutions at which InfoGation maintains accounts of any nature and the names of all persons authorized to draw thereon or make withdrawals therefrom.
3.11 Contracts.
(a) A list of (i) all contracts to which InfoGation is a party which involves payment by InfoGation of Ten Thousand Dollars ($10,000) or more in any calendar year (excluding any employment agreements), (ii) each material agreement, credit agreement or other instrument relating to the borrowing of money by InfoGation or the guarantee by InfoGation of any such obligation (other than trade payables and instruments relating to transactions entered into in the ordinary course of business) or (iii) any other contract or agreement or amendment thereto that (A) is material to the business, financial condition or results of operations of InfoGation, or (B) places any material restrictions on the ability of InfoGation to engage in any business activity (collectively, the "Material Contracts") is set forth in the InfoGation Disclosure Schedule. Except as identified therein and as set forth in the InfoGation Disclosure Schedule:
(i) InfoGation has no agreements, contracts or commitments that provide for the sale, assignment or distribution by InfoGation of any InfoGation Proprietary Rights. Without limiting the foregoing, except as set forth on the InfoGation Disclosure Schedule, InfoGation has not granted to any third party (including, without limitation, original equipment manufacturers ("OEMs") and site-license customers) any rights to use, reproduce, manufacture or distribute any of the InfoGation Proprietary Rights, nor has InfoGation granted to any third party any exclusive rights of any kind (including, without limitation, territorial
exclusivity or exclusivity with respect to particular versions, implementations or translations of any of the InfoGation Proprietary Rights), nor has InfoGation granted any third party any right to market any of the InfoGation Proprietary Rights under any private label or "OEM" arrangements, nor has InfoGation granted any license of any InfoGation trademarks or service marks.
(ii) InfoGation has no agreements, contracts or commitments that call for fixed and/or contingent payments or expenditures by or to InfoGation (including, without limitation, any advertising or revenue sharing arrangement).
(iii) InfoGation has no outstanding sales or advertising contract, commitment or proposal.
(iv) InfoGation has no outstanding agreements, contracts or commitments with officers, employees, agents, consultants, advisors, salesmen, sales representatives, distributors or dealers that are not cancelable by InfoGation "at will" and without liability, penalty or premium.
(v) InfoGation has no employment, independent contractor or similar agreement, contract or commitment that is not terminable on 30 days' notice or less without penalty, liability or premium of any type, including, without limitation, severance or termination pay.
(vi) InfoGation has no currently effective collective bargaining or union agreements, contracts or commitments.
(vii) InfoGation is not restricted by agreement from competing with any person or from carrying on its business anywhere in the world.
(viii) InfoGation has not guaranteed any obligations of other persons or made any agreements to acquire or guarantee any obligations of other persons.
(ix) InfoGation has no outstanding loan or advance to any person; nor is it party to any line of credit, standby financing, revolving credit or other similar financing arrangement of any sort which would permit the borrowing by InfoGation of any sum.
(x) InfoGation has no agreements providing for the development of any software, content (including textual content and visual, photographic or graphics content), technology or intellectual property.
True, correct and fully executed copies of each document or instrument listed on the InfoGation Disclosure Schedule pursuant to this Section 3.11(a) have been provided to BSQUARE or its representatives.
(b) All of the Material Contracts listed on the InfoGation Disclosure Schedule are valid, binding, in full force and effect, and, to the knowledge of InfoGation, enforceable by InfoGation in accordance with their respective terms, except to the extent that enforceability may be limited by applicable bankruptcy, reorganization, insolvency, moratorium or other laws
affecting the enforcement of creditors' rights generally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding at law or in equity. Except as disclosed in the InfoGation Disclosure Schedule, no Material Contract contains any liquidated damages or similar provision. To the knowledge of InfoGation, except as disclosed in the InfoGation Disclosure Schedule, no party to any such Material Contract intends to cancel, withdraw, modify or amend such contract, agreement or arrangement.
(c) InfoGation is not in default under or in breach or violation of, nor, to InfoGation's knowledge, is there any valid basis for any claim of default by InfoGation under, or breach or violation by InfoGation of, any provision of any Material Contract. To InfoGation's knowledge, no other party is in default under or in breach or violation of, nor is there any valid basis for any claim of default by any other party under or any breach or violation by any other party of, any Material Contract.
(d) Except as specifically indicated on the InfoGation Disclosure Schedule, none of the Material Contracts provides for indemnification by InfoGation of any third party. No claims have been made or threatened that would require indemnification by InfoGation, and InfoGation has not paid any amounts to indemnify any third party as a result of indemnification requirements of any kind.
3.12 Orders, Commitments and Returns. All accepted advertising arrangements entered into by InfoGation, and all material agreements, contracts, or commitments for the purchase of supplies by InfoGation, were made in the ordinary course of business. There are no oral contracts or arrangements for the sale of advertising or any other product or service by InfoGation.
3.13 Compliance With Law. InfoGation and the operation of its business are in compliance with all laws and regulations applicable to the operation of its business except for any non-compliances that would not have a Material Adverse Effect on InfoGation. Neither InfoGation nor, to InfoGation's knowledge, any of its employees has directly or indirectly paid or delivered any fee, commission or other sum of money or item of property, however characterized, to any finder, agent, government official or other party in the United States or any other country, that was or is in violation of any federal, state, or local statute or law or of any statute or law of any other country having jurisdiction. InfoGation has not participated directly or indirectly in any boycotts or other similar practices affecting any of its customers. InfoGation has complied at all times with any and all applicable federal, state and foreign laws, rules, regulations, proclamations and orders relating to the importation or exportation of its products except for non-compliances that would not have a Material Adverse Effect on InfoGation.
3.14 Labor Difficulties; No Discrimination.
(a) InfoGation is not engaged in any unfair labor practice and is not in violation of any applicable laws respecting employment and employment practices, terms and conditions of employment, and wages and hours. There is no unfair labor practice complaint against InfoGation actually pending or, to the knowledge of InfoGation, threatened before the National Labor Relations Board or any comparable state agency. There is no strike, labor dispute, slowdown, or stoppage actually pending or, to the knowledge of InfoGation, threatened against
InfoGation. To the knowledge of InfoGation, no union organizing activities are taking place with respect to the business of InfoGation. No grievance, nor any arbitration proceeding arising out of or under any collective bargaining agreement is pending and, to the knowledge of InfoGation, no claims therefor exist. No collective bargaining agreement that is binding on InfoGation restricts it from relocating or closing any of its operations. InfoGation has not experienced any work stoppage.
(b) There is and has not been any claim against InfoGation or its officers or employees, or to InfoGation's knowledge, threatened against InfoGation or its officers or employees, based on actual or alleged race, age, sex, disability or other harassment or discrimination, or similar tortuous conduct, or based on actual or alleged breach of contract with respect to any person's employment by InfoGation, nor, to the knowledge of InfoGation, is there any basis for any such claim.
(c) There are no pending claims against InfoGation under any
workers' compensation plan or policy or for long-term disability. Neither
InfoGation nor any of its ERISA Affiliates has any material obligations under
COBRA with respect to any former employees or qualified beneficiaries
thereunder. InfoGation agrees to provide BSQUARE at the Effective Time with an
updated list of "M&A qualified beneficiaries" (as defined in Treasury Regulation
Section 54.4980B-9 (Q&A-4). InfoGation is in material compliance with all
currently applicable laws and regulations respecting employment, discrimination
in employment, terms and conditions of employment, wages, hours and occupational
health and safety in employment practices. InfoGation has withheld all amounts
required by law or by agreement to be withheld from the wages, salaries, and
other payments to employees, and is not liable for any arrears of wages or any
taxes or penalties for failure to comply with the foregoing. InfoGation is not
liable for any payment to any trust or other fund or to any governmental or
administrative authority, with respect to unemployment compensation benefits,
social security or other benefits or obligations for employees. There are no
controversies pending or, to the knowledge of InfoGation, threatened between
InfoGation and any of its employees which controversies have or could reasonably
be expected to result in an action, suit, proceeding, claim, arbitration or
investigation before any agency, court or tribunal.
3.15 Trade Regulation. To InfoGation's knowledge, all of the prices charged by InfoGation in connection with the marketing or sale of any products or services have been in compliance with all applicable laws and regulations. No claims have been communicated or threatened in writing against InfoGation with respect to wrongful termination of any dealer, distributor or any other marketing entity, discriminatory pricing, price fixing, unfair competition, false advertising, or any other violation of any laws or regulations relating to anti-competitive practices or unfair trade practices of any kind, and to InfoGation's knowledge, no specific situation, set of facts, or occurrence provides any basis for any such claim against InfoGation.
3.16 Insider Transactions. InfoGation is not indebted to any director, officer, employee or agent of InfoGation (except for amounts due in reimbursement of ordinary expenses), and no such person is indebted to InfoGation. Except as set forth in Section 3.16 of the Disclosure Schedule, no affiliate ("Affiliate") as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), of InfoGation owns any asset that is used in the Company's business or has any relationship with InfoGation that would require
disclosure under Item 404 of Regulation S-K under the Securities Act if InfoGation were subject to such regulation.
3.17 Employees, Independent Contractors and Consultants. The InfoGation Disclosure Schedule lists all past and all currently effective written or oral consulting, independent contractor and/or employment agreements involving the development of InfoGation Proprietary Rights and all currently effective written or oral consulting, independent contractor and/or employment agreements (except for standard employee offer letters prepared by InfoGation and executed and delivered by InfoGation and its employees) and other material agreements concluded with individual employees, independent contractors or consultants to which InfoGation is or was a party. True and correct copies of all such written agreements and standard offer letters have been provided to BSQUARE or its representatives. To InfoGation's knowledge, no employees, independent contractors or consultants of InfoGation are in violation of any term of any employment agreement, consulting agreement, confidentiality agreement, inventions assignment agreement, or noncompetition agreement between InfoGation and such individual, or to InfoGation's knowledge, in violation of any restrictive covenant to a former employer relating to the right of any such individual to be employed or engaged by InfoGation because of the nature of the business conducted by InfoGation or to the use of trade secrets or proprietary information of others. To InfoGation's knowledge, all independent contractors have been properly classified as independent contractors for the purposes of federal and applicable state Tax laws, laws applicable to employee benefits and other applicable law. All salaries and wages paid by InfoGation are in compliance with applicable federal, state and local laws. Also shown on the InfoGation Disclosure Schedule are the names, positions and salaries or rates of pay, including bonuses, of all persons presently employed by InfoGation.
3.18 Insurance. The InfoGation Disclosure Schedule contains a list of the policies of fire, liability and other forms of insurance currently held by InfoGation, and all claims made by InfoGation under such policies. To its knowledge, InfoGation has not done anything, either by way of action or inaction, that might invalidate such policies in whole or in part. There is no claim pending under any of such policies or bonds as to which coverage has been questioned, denied or disputed by the underwriters of such policies or bonds. All premiums due and payable under all such policies and bonds have been paid and InfoGation is otherwise in compliance with the terms of such policies and bonds.
3.19 Accounts Receivable. The accounts receivable of InfoGation, as shown on the Most Recent Balance Sheet and as set forth on the InfoGation Disclosure Schedule, were incurred in the ordinary course of business.
3.20 Litigation. There is no private or governmental action, suit, proceeding, claim, arbitration or investigation pending before any agency, court or tribunal, foreign or domestic, or, to the knowledge of InfoGation, threatened against InfoGation or any of its properties or any of its officers, directors, employees or agents (in their capacities as such). There is no judgment, decree or order against InfoGation, or, to the knowledge of InfoGation, any of its directors, officers, employees or agents (in their capacities as such). To InfoGation's knowledge, no circumstances exist that could reasonably be expected to result in a claim against InfoGation as a result of the conduct of InfoGation's business (including, without limitation, any claim of infringement of any intellectual property right). The matters described in this Section 3.20
include, but are not limited to, those arising under any applicable federal, state and local laws, regulations and agency interpretations of the same relating to the collection and use of user information gathered in the course of InfoGation's operations.
3.21 Governmental Authorizations and Regulations. InfoGation has obtained each federal, state, county, local or foreign governmental consent, license, permit, grant, or other authorization of a Governmental Entity (a) pursuant to which InfoGation currently operates or holds any interest in any of its properties or (b) that is required for the operation of InfoGation's business or the holding of any such interest, and all of such authorizations are in full force and effect.
3.22 Subsidiaries. InfoGation has no Subsidiaries. InfoGation does not own or control (directly or indirectly) any capital stock, bonds or other securities of, and does not have any proprietary interest in, any other corporation, general or limited partnership, limited liability company, firm, association or business organization, entity or enterprise, and InfoGation does not control (directly or indirectly) the management or policies of any other corporation, partnership, limited liability company, firm, association or business organization, entity or enterprise.
3.23 Compliance with Environmental Requirements. InfoGation has obtained all permits, licenses and other authorizations which are required under federal, state and local laws applicable to InfoGation and relating to pollution or protection of the environment, including laws or provisions relating to emissions, discharges, releases or threatened releases of pollutants, contaminants, or hazardous or toxic materials, substances, or wastes into air, surface water, groundwater, or land, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport, or handling of pollutants, contaminants or hazardous or toxic materials, substances, or wastes or which are intended to assure the safety of employees, workers or other persons. InfoGation is in compliance with all terms and conditions of all such permits, licenses and authorizations. There are no conditions, circumstances, activities, practices, incidents, or actions relating to InfoGation which could reasonably be expected to form the basis of any claim, action, suit, proceeding, hearing, or investigation of, by, against or relating to InfoGation, based on or related to the manufacture, processing, distribution, use, treatment, storage, disposal, transport, or handling, or the emission, discharge, release or threatened release into the environment, of any pollutant, contaminant, or hazardous or toxic substance, material or waste, or relating to the safety of employees, workers or other persons.
3.24 Corporate Documents. InfoGation has furnished to BSQUARE or its representatives: (a) copies of its certificate of incorporation and bylaws, each as amended to date; (b) consents, actions, and meetings of the stockholders, the board of directors and any committees thereof; (c) all permits, orders, and consents issued by any regulatory agency with respect to InfoGation, or any securities of InfoGation, and all applications for such permits, orders, and consents; and (d) the stock transfer books of InfoGation setting forth all transfers of any capital stock. The stock certificate books, stock registers and other corporate records of InfoGation are complete and accurate, and the signatures appearing on all documents contained therein are the true or facsimile signatures of the persons purporting to have signed the same.
3.25 No Brokers. Except as set forth in the Disclosure Schedule, neither InfoGation nor, to InfoGation's knowledge, any InfoGation stockholder is obligated for the payment of fees or expenses of any broker or finder in connection with the origination, negotiation or execution of this Agreement or the other Transaction Documents or in connection with any transaction contemplated herein or therein or with respect to any previous issuance of InfoGation Securities.
3.26 Customers and Suppliers. As of the date hereof, no customer which individually accounted for more than five percent (5%) of InfoGation's gross revenues during the 12-month period preceding the date hereof, and no material supplier of InfoGation, has canceled or otherwise terminated prior to the expiration of the contract term, or, to InfoGation's knowledge, made any written threat to InfoGation to cancel or otherwise terminate its relationship with InfoGation, or has at any time on or after January 31, 2002 decreased materially its services or supplies to InfoGation in the case of any such supplier, or its usage of the services or products of InfoGation in the case of such customer, and to InfoGation's knowledge, no such supplier or customer intends to cancel or otherwise terminate its contractual relationship with InfoGation or to decrease materially its services or supplies to InfoGation or its usage of the services or products of InfoGation, as the case may be. InfoGation has not (a) breached, so as to provide a benefit to InfoGation that was not intended by the parties, any agreement with, or (b) engaged in any fraudulent conduct with respect to, any customer or supplier or InfoGation. InfoGation's customers and suppliers are listed on the InfoGation Disclosure Schedule.
3.27 InfoGation Action. The board of directors of InfoGation, at a meeting duly called and held, has (a) determined that the Merger is fair and in the best interests of InfoGation and its stockholders, (b) approved, and declared the advisability of the Merger, this Agreement and the transactions contemplated hereby in accordance with the provisions of Delaware Law, and (c) directed that this Agreement and the Merger be submitted to InfoGation stockholders for their approval and resolved to recommend that InfoGation stockholders vote in favor of the approval of the Merger, this Agreement and the transactions contemplated hereby.
3.28 Privacy Laws and Policies Compliance. InfoGation has complied in all material respects with all applicable federal, state and local laws, and regulations relating to the collection and use of user information gathered in the course of InfoGation's operations, and InfoGation has at all times complied with all rules, policies and procedures established by InfoGation from time to time with respect to the foregoing.
3.29 Disclosure. No statements by InfoGation contained in this Agreement, its exhibits and schedules (when read together) nor in any of the certificates or documents, including any of the Transaction Documents, delivered or required to be delivered by InfoGation to BSQUARE or Sub under this Agreement contain any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained herein or therein not misleading in light of the circumstances under which they were made. InfoGation has disclosed to BSQUARE all material information of which it is aware relating specifically to the operations and business of InfoGation as of the date of this Agreement or the transactions contemplated in this Agreement.
3.30 Disclosure to Stockholders. InfoGation has read and reviewed the information statement to be sent to the stockholders of InfoGation in connection with the written consent of
stockholders of InfoGation (such information statement as amended or supplemented is referred to herein as the "Information Statement") and that, with respect to the information InfoGation has supplied, the Information Statement does not contain any statement which is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not false or misleading.
3.31 Vote Required. The affirmative vote of the holders of (i) a majority of the InfoGation Common Stock and InfoGation Preferred Stock, voting together as a group, (ii) a majority of the InfoGation Common Stock, voting as a separate series, (iii) a majority of the InfoGation Series B-1 Preferred Stock, voting as a separate series, (iv) a majority of the InfoGation Series B-2 Preferred Stock, voting as a separate series and (v) eighty-five percent (85%) of the InfoGation Series C Preferred Stock voting as a separate series, are the only votes of the holders of InfoGation's Capital Stock necessary to approve the Merger, this Agreement, the Transaction Documents and the transactions contemplated hereby and thereby.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BSQUARE AND SUB
BSQUARE and Sub jointly and severally represent and warrant to InfoGation that the statements contained in this Article IV are true and correct except as set forth in the disclosure schedule delivered by BSQUARE to InfoGation on or before the date of this Agreement (the "BSQUARE Disclosure Schedule"). The BSQUARE Disclosure Schedule shall be arranged in paragraphs corresponding to the numbered and lettered paragraphs contained in this Article IV.
4.1 Organization of BSQUARE and Sub. Each of BSQUARE and Sub, is a corporation duly organized and validly existing under the laws of the State of Washington and has all requisite corporate power to own, lease and operate its property and to carry on its business as now being conducted and is duly qualified or licensed to do business and is in good standing in each jurisdiction in which the failure to be so qualified or licensed would have a Material Adverse Effect on BSQUARE or Sub.
4.2 Valid Issuance of BSQUARE Common Stock. The shares of BSQUARE Common Stock to be issued pursuant to the Merger will be duly authorized, validly issued, fully paid and nonassessable, and will not be subject to preemptive or repurchase rights or rights of first refusal created by applicable law, BSQUARE's articles of incorporation or bylaws, or any agreement by which BSQUARE is a party or is bound (except for the Escrow Shares which are subject to this Agreement and the Escrow Agreement), and issued in compliance with all applicable federal or state securities laws.
4.3 Authority; No Conflict; Required Filings and Consents.
(a) Each of BSQUARE and Sub has all requisite corporate power and authority to enter into this Agreement and the other Transaction Documents to which it is or will become a party and to consummate the transactions contemplated in this Agreement and such Transaction Documents. The execution and delivery of this Agreement and such Transaction Documents and
the consummation of the transactions contemplated in this Agreement and such Transaction Documents have been duly authorized by all necessary corporate action on the part of BSQUARE and Sub. This Agreement has been and such Transaction Documents have been or, to the extent not executed as of the date hereof, will be duly executed and delivered by BSQUARE and Sub. This Agreement and each of the Transaction Documents to which BSQUARE or Sub is a party constitutes, and each of the Transaction Documents to which BSQUARE or Sub will become a party when executed and delivered by BSQUARE or Sub will constitute, a valid and binding obligation of BSQUARE or Sub, enforceable by InfoGation against BSQUARE or Sub, as the case may be, in accordance with its terms, except to the extent that enforceability may be limited by applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting the enforcement of creditors' rights generally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding at law or in equity.
(b) The execution and delivery by BSQUARE or Sub of this Agreement and the Transaction Documents to which it is or will become a party does not, and consummation of the transactions contemplated in this Agreement or the Transaction Documents to which it is or will become a party will not, (i) conflict with, or result in any violation or breach of any provision of the articles of incorporation or bylaws of BSQUARE or Sub, respectively, (ii) result in any violation or breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any material benefit) under any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, contract or other agreement, instrument or obligation to which BSQUARE or Sub is a party or by which either of them or any of their properties or assets may be bound, or (iii) conflict or violate any permit, concession, franchise, license, judgment, order, decree, statute, law, ordinance, rule or regulation applicable to BSQUARE or Sub or any of their properties or assets, except in the case of (ii) and (iii) for any such conflicts, violations, defaults, terminations, cancellations or accelerations which would not have a Material Adverse Effect on BSQUARE and its Subsidiaries, taken as a whole.
(c) Neither the execution and delivery of this Agreement by
BSQUARE or Sub or the Transaction Documents to which BSQUARE or Sub is or will
become a party nor the consummation of the transactions contemplated herein or
therein will require any consent, approval, order or authorization of, or
registration, declaration or filing with, any Governmental Entity, except for
(i) the filing of the Washington Articles of Merger with the Secretary of State
of the State of Washington (ii) the filing of the Delaware Certificate of Merger
with the Secretary of State of the State of Delaware, (iii) such consents,
approvals, orders, authorizations, registrations, declarations and filings as
may be required under applicable federal and state securities laws and the laws
of any foreign country, and (iv) such other consents, authorizations, filings,
approvals and registrations which, if not obtained or made, could be expected to
have a Material Adverse Effect on BSQUARE and its Subsidiaries, taken as a
whole.
4.4 Commission Filings; Financial Statements.
(a) BSQUARE has filed with the Commission all forms, reports and documents required to be filed by BSQUARE with the Securities and Exchange Commission (the "Commission") since October 19, 1999 (collectively, the "BSQUARE Commission Reports").
The BSQUARE Commission Reports (i) at the time filed, complied in all material respects with the applicable requirements of the Securities Act and the Exchange Act, as the case may be, and (ii) did not at the time they were filed (or if amended or superseded by a filing prior to the date of this Agreement, then on the date of such filing) contain any untrue statement of a material fact or omit to state a material fact required to be stated in such BSQUARE Commission Reports or necessary in order to make the statements in such BSQUARE Commission Reports, in the light of the circumstances under which they were made, not misleading.
(b) Each of the financial statements (including, in each case, any related notes) contained in the BSQUARE Commission Reports, including any BSQUARE Commission Reports filed after the date of this Agreement until the Closing, complied or will comply as to form in all material respects with the applicable published rules and regulations of the Commission with respect thereto, was prepared in accordance with generally accepted accounting principles applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by Form 10-Q of the Commission) and fairly presented the consolidated financial position of BSQUARE and its Subsidiaries as of the respective dates and the consolidated results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments which were not or are not expected to be material in amount.
4.5 Compliance with Laws. BSQUARE has complied with, is not in violation of, and has not received any notices of violation with respect to, any federal, state or local statute, law or regulation with respect to the conduct of its business, or the ownership or operation of its business, except for failures to comply or violations which would not have a Material Adverse Effect on BSQUARE and its Subsidiaries, taken as a whole.
4.6 Interim Operations of Sub. Sub was formed by BSQUARE solely for the purpose of engaging in the transactions contemplated in this Agreement, has engaged in no other business activities and has conducted its operations only as contemplated in this Agreement. Sub has no liabilities and, except for a subscription agreement pursuant to which all of its authorized capital stock was issued to BSQUARE, is not a party to any agreement other than this Agreement.
4.7 Disclosure. No statements by BSQUARE contained in this Agreement, its exhibits and schedules, or any of the certificates or documents, including any of the Transaction Documents, required to be delivered by BSQUARE or Sub to InfoGation under this Agreement contain any untrue statement of material fact or omit to state a material fact necessary in order to make the statements contained herein or therein not misleading in light of the circumstances under which they were made.
4.8 Disclosure to InfoGation Stockholders. BSQUARE has read and reviewed the Information Statement and that, with respect to the information BSQUARE has supplied, the Information Statement does not contain any statement which is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not false or misleading.
4.9 No Litigation. Except as set forth in Section 4.9 of the BSQUARE Disclosure Schedule, there is no action, investigation or proceeding pending against, and to the knowledge of BSQUARE, threatened against or effecting BSQUARE or Sub before any court, agency, government entity or tribunal the result of which would have a Material Adverse Effect on BSQUARE.
ARTICLE V
PRECLOSING COVENANTS OF INFOGATION
5.1 Approval of InfoGation Stockholders. Prior to the Closing Date, InfoGation will solicit written consents from its stockholders seeking approval of this Agreement, the Merger and related matters. In soliciting such written consent, the board of directors of InfoGation will (subject to satisfying its fiduciary obligations to the stockholders of InfoGation) recommend to the stockholders of InfoGation that they approve and adopt this Agreement and the Merger and shall use its best efforts to obtain the approval of the stockholders of InfoGation entitled to consent to this Agreement and the Merger. With the assistance and cooperation of BSQUARE, InfoGation will prepare as soon as reasonably practicable the Information Statement to be sent with the solicitation of written consents from the stockholders of InfoGation to approve this Agreement, the Merger and related matters. InfoGation shall cooperate with and assist BSQUARE so that the Information Statement shall be in such form and contain such information so as to permit compliance by BSQUARE with the requirements of applicable federal and state securities laws in connection with the issuance of shares of BSQUARE Common Stock in the Merger and will comply in all material respects with all applicable requirements of law and the rules and regulations promulgated thereunder. Within two business days after the execution of this Agreement and the completion of the Information Statement, InfoGation will distribute the Information Statement to the stockholders of InfoGation. Whenever any event occurs which should be set forth in an amendment or supplement to the Information Statement, InfoGation or BSQUARE, as the case may be, will promptly inform the other of such occurrence and cooperate in making any appropriate amendment or supplement, and in mailing to such amendment or supplement to the stockholders of InfoGation.
5.2 Advice of Changes. InfoGation will promptly advise BSQUARE in writing of any event known to InfoGation occurring subsequent to the date of this Agreement which would render any representation or warranty of InfoGation contained in this Agreement, if made on or as of the date of such event or the Closing Date, untrue or inaccurate in any material respect; provided however, that nothing provided by InfoGation after the date of this Agreement pursuant to this Section 5.2 or any other provision of this Agreement shall affect the representations, warranties, covenants or agreements of the parties in this Agreement or the conditions to the obligations of the parties under this Agreement, except as specifically set forth herein.
5.3 Operation of Business. During the period from the date of this Agreement and continuing until the earlier of the termination of the Agreement or the Effective Time, InfoGation agrees (except to the extent that BSQUARE shall otherwise consent in writing) to carry on its business in the usual, regular and ordinary course in substantially the same manner as previously conducted, to pay its debts and Taxes when due, subject to good faith disputes over such debts or Taxes, to pay or perform other obligations when due, to comply with all applicable
laws, rules, regulations and orders, and, to the extent consistent with such business, use all reasonable efforts consistent with past practices and policies to preserve intact its present business organization, keep available the services of its present officers and key employees and preserve its relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with it, to the end that its goodwill and ongoing businesses would be unimpaired at the Effective Time. InfoGation shall promptly notify BSQUARE of any event or occurrence not in the ordinary course of business of InfoGation. Except as expressly contemplated by this Agreement, InfoGation shall not, without the prior written consent of BSQUARE:
(a) accelerate, amend or change the period of exercisability or the vesting schedule of any options or restricted stock granted under any InfoGation Option Plan or agreements or authorize cash payments in exchange for any options or stock granted under any of such plans except as specifically required by the terms of such plans or any related agreements or any such agreements in effect as of the date of this Agreement and disclosed in the InfoGation Disclosure Schedule;
(b) declare or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any of its capital stock, or split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of such party, or purchase or otherwise acquire, directly or indirectly, any shares of its capital stock except from former employees, directors and consultants in accordance with agreements providing for the repurchase of shares in connection with any termination of service by such party and as set forth in the InfoGation Disclosure Schedule;
(c) issue, deliver or sell or authorize or propose the issuance, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock or securities convertible into shares of its capital stock, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue any such shares or other convertible securities, other than (i) the issuance of shares of InfoGation Common Stock issuable upon exercise of InfoGation Options, which are outstanding on the date of this Agreement or (ii) the repurchase of shares of Common Stock from terminated employees pursuant to the terms of outstanding stock restriction or similar agreements;
(d) acquire or agree to acquire by merging or consolidating with, or by purchasing an equity interest in or a portion of the assets of, or by any other manner, any business or any corporation, partnership or other business organization or division, or otherwise acquire or agree to acquire any assets;
(e) sell, lease, license or otherwise dispose of any of its properties or assets (other than InfoGation Proprietary Rights) except in the ordinary course of business;
(f) (i) except as set forth on the InfoGation Disclosure Schedule, increase or agree to increase the compensation payable or to become payable to its officers or employees, (ii) except as set forth on the InfoGation Disclosure Schedule, grant any additional severance or termination pay to, or enter into any employment or severance agreements with, officers, (iii)
grant any severance or termination pay to, or enter into any employment or severance agreement, with any non-officer employee, (iv) enter into any collective bargaining agreement, or (v) establish, adopt, enter into or amend (except as may be required by pursuant to any applicable law, rule or regulation) in any material respect any InfoGation Employee Plan, any bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, trust, fund, policy or arrangement for the benefit of any directors, officers or employees;
(g) revalue any of its assets, including writing down the value of inventory or writing off notes or accounts receivable;
(h) incur any indebtedness or guarantee any such indebtedness or issue or sell any debt securities or warrants or rights to acquire any debt securities or guarantee any debt securities of others;
(i) amend or propose to amend its certificate of incorporation or bylaws;
(j) incur or commit to incur any capital expenditures in excess of Five Thousand Dollars ($5,000) in the aggregate or in excess of Two Thousand Five Hundred Dollars ($2,500) as to any individual matter;
(k) lease, license, sell, transfer or encumber or permit to be encumbered any asset, InfoGation Proprietary Right or other property associated with the business of InfoGation (including sales or transfers to Affiliates of InfoGation) (other than non-exclusive object code licenses of software forming part of the InfoGation Proprietary Rights granted in the ordinary course of business);
(l) enter into any lease or contract for the purchase or sale of any property, real or personal, except in the ordinary course of business involving annual expenditures of less than $10,000;
(m) materially reduce the amount of any insurance coverage provided by existing insurance policies;
(n) fail to maintain its equipment and other assets in the state they were in as of the date of this Agreement, subject only to ordinary wear and tear;
(o) change accounting methods;
(p) amend or terminate any contract, agreement or license to which it is a party except in the ordinary course of business with the prior written consent of BSQUARE;
(q) loan any amount to any person or entity, or guaranty or act as a surety for any obligation;
(r) waive or release any right or claim, except in the ordinary course of business with the prior written consent of BSQUARE;
(s) make or change any material Tax or accounting election, change any annual accounting period, adopt or change any accounting method, file any amended Return, enter into any closing agreement, settle any Tax claim or assessment relating to InfoGation, surrender any right to claim refund of Taxes, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to InfoGation, or take any other action or omit to take any action that would have the effect of increasing the Tax liability of InfoGation or BSQUARE;
(t) pay, discharge or satisfy in an amount in excess of $2,000 in any one case, or $10,000 in the aggregate, any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise) arising other than in the ordinary course of business, other than the payment, discharge or satisfaction of liabilities reflected or reserved in the InfoGation Financial Statements;
(u) take any action or fail to take any action that would cause there to be a Material Adverse Change with respect to InfoGation;
(v) enter into any agreement outside of the ordinary course of business;
(w) enter into any agreement (including without limitation any licenses to information or databases, any OEM agreements, any exclusive agreements of any kind, or any agreements providing for obligations that would extend beyond one hundred eighty (180) days of the date of this Agreement) other than in the ordinary course of business consistent with past practice;
(x) continue or begin any discussions or negotiations regarding any international expansion, licensing, joint ventures, partnership or other arrangements, plans or other similar commitments or understandings;
(y) commence a lawsuit other than (i) for the routine collection of bills, (ii) in such cases where it in good faith determines that failure to commence suit would result in the material impairment of a valuable aspect of its business, provided that it consults with BSQUARE prior to the filing of such suit or (iii) for the breach of this Agreement; or
(z) take, or agree in writing or otherwise to take, any of the actions described in clauses (a) through (y) above, or any action which is reasonably likely to make any of InfoGation's representations or warranties contained in this Agreement untrue or incorrect on the date made or as of the Effective Time.
5.4 Access to Information. Until the Closing, InfoGation shall allow
BSQUARE and its agents reasonable free access, upon reasonable notice, to its
officers, directors, employees, files, books, records, and offices, including,
without limitation, any and all information relating to Taxes, commitments,
contracts, leases, licenses, personal and real property and financial condition.
Until the Closing, InfoGation shall cause its accountants to cooperate with
BSQUARE and its agents in making available all financial information requested,
including, without limitation, the right to examine all working papers
pertaining to all financial statements prepared or audited by such accountants.
No information or knowledge obtained in any investigation pursuant to this
Section shall affect or be deemed to modify any representation or
warranty contained in this Agreement or its exhibits and schedules. All such access shall be subject to the terms of the Confidentiality Agreement (as defined in Section 7.1).
5.5 Satisfaction of Conditions Precedent. InfoGation will use its best efforts to satisfy or cause to be satisfied all the conditions precedent which are set forth in Sections 8.1 and 8.2, and InfoGation will use its best efforts to cause the transactions contemplated in this Agreement to be consummated, and, without limiting the generality of the foregoing, to obtain all consents and authorizations of third parties and to make all filings with, and give all notices to, third parties which may be necessary, advisable or reasonably required on its part in order to effect the transactions contemplated in this Agreement, including, without limitation, all consents necessary to consummate the Merger with respect to those Material Contracts listed on the InfoGation Disclosure Schedule (the "Material Consents").
5.6 Other Negotiations. Following the date hereof and until termination of this Agreement pursuant to Section 9.1, InfoGation will not take (and it will not permit any of its officers, directors, shareholders, optionholders, warrantholders, employees, agents, Affiliates or representatives to take) any action to solicit, initiate, seek, encourage or support any inquiry, proposal or offer from, furnish any information to, or participate in any negotiations with, any corporation, partnership, person or other entity or group (other than BSQUARE) regarding any acquisition of InfoGation, any merger or consolidation with or involving InfoGation, or any acquisition of any material portion of the stock or assets of InfoGation or any material license of InfoGation Proprietary Rights (any of the foregoing being referred to in this Agreement as an "Acquisition Transaction") or enter into an agreement concerning any Acquisition Transaction with any party other than BSQUARE. If between the date of this Agreement and the termination of this Agreement pursuant to Section 9.1, InfoGation receives from a third party any offer or indication of interest regarding any Acquisition Transaction, or any request for information regarding any Acquisition Transaction, InfoGation shall (a) notify BSQUARE immediately (verbally and in writing) of such offer, indication of interest or request, including the identity of such party and the full terms of any proposal therein, and (b) notify such third party immediately of InfoGation's obligations under this Agreement. Any notification of such third party shall comply with InfoGation's obligations under the Confidentiality Agreement.
5.7 Budget and Updated Financial Information. InfoGation shall provide to BSQUARE internally generated financial statements, including a statement of cash flows, within 2 business days after the end of each week between the date of this Agreement and the Closing Date.
5.8 Certain Employee Benefits Matters. Unless otherwise required by applicable law, InfoGation shall take such actions as are requested by BSQUARE that may be necessary to terminate or continue the InfoGation Employee Plans, as determined by BSQUARE in its sole discretion.
ARTICLE VI
PRECLOSING AND OTHER COVENANTS OF BSQUARE AND SUB
6.1 Advice of Changes. BSQUARE and Sub will promptly advise InfoGation in writing of any event occurring subsequent to the date of this Agreement which would render any
representation or warranty of BSQUARE or Sub contained in this Agreement, if made on or as of the date of such event or the Closing Date, untrue or inaccurate in any material respect; provided however, that nothing provided by BSQUARE after the date of this Agreement pursuant to this Section 6.1 or any other provision of this Agreement shall affect the representations, warranties, covenants or agreements of the parties in this Agreement or the conditions to the obligations of the parties under this Agreement, except as specifically set forth herein.
6.2 Information Statement. As soon as reasonably practicable, BSQUARE will provide InfoGation with such information as is reasonably necessary for inclusion with the Information Statement so as to permit compliance by BSQUARE with the requirements of applicable federal and state securities laws in connection with the issuance of shares of BSQUARE Common Stock in the Merger. The Information Statement shall include as an attachment an Investor Representation Statement, in substantially the form attached hereto as Exhibit B (an "Investor Representation Statement"), to be completed by each holder of InfoGation Capital Stock and delivered to BSQUARE.
6.3 Reservation of BSQUARE Common Stock. BSQUARE shall prior to the Effective Time reserve for issuance, out of its authorized but unissued capital stock, the maximum number of shares of BSQUARE Common Stock as may be issuable upon consummation of the Merger.
6.4 Satisfaction of Conditions Precedent. BSQUARE and Sub will use their best efforts to satisfy or cause to be satisfied all the conditions precedent which are set forth in Sections 8.1 and 8.3, and BSQUARE and Sub will use their best efforts to cause the transactions contemplated in this Agreement to be consummated, and, without limiting the generality of the foregoing, to obtain all consents and authorizations of third parties and to make all filings with, and give all notices to, third parties which may be necessary or reasonably required on its part in order to effect the transactions contemplated herein.
6.5 Nasdaq National Market Listing. BSQUARE shall prior to the Effective Time cause the shares of BSQUARE Common Stock issuable to the stockholders of InfoGation in the Merger to be authorized for listing on the Nasdaq National Market in accordance with applicable regulations.
6.6 Registration Rights. BSQUARE and InfoGation will execute and deliver at closing a Registration Rights Agreement in the form attached hereto as Exhibit C granting the holders of InfoGation Series C Preferred Stock immediately prior to the Closing certain piggyback registration rights with respect to BSQUARE Common Stock into which their InfoGation Series C Preferred Stock is converted (the "Registration Rights Agreement").
6.7 Employee Benefit Matters. Following the Effective Time, BSQUARE, in its sole and absolute discretion, shall arrange for each participant (including without limitation all dependents) in the InfoGation Employee Plans ("InfoGation Participants") to participate in BSQUARE's and/or Sub's employee benefit plans ("BSQUARE Plans") to the same extent as similarly situated employees of BSQUARE and their dependents. Each InfoGation Participant who continues to be employed by BSQUARE (or any of its subsidiaries) or Sub immediately following the Effective Time shall, to the extent permitted by law and applicable tax
qualification requirements, and subject to any generally applicable break in service or similar rule, receive credit for all purposes for eligibility to participate and vesting under BSQUARE's 401(k) Plan for years of service with InfoGation (and its subsidiaries and predecessors) prior to the Effective Time.
6.8 Attorneys' Fees . At the Closing, BSQUARE shall pay Infogation's attorneys' fees in the amount of $100,000, as well as the reasonable expenses of Infogation's attorneys, incurred in connection with the Merger.
ARTICLE VII
OTHER AGREEMENTS
7.1 Confidentiality. Each party acknowledges that BSQUARE and InfoGation have previously executed a Non-Disclosure Agreement (the "Confidentiality Agreement"), which agreement shall continue in full force and effect in accordance with its terms.
7.2 No Public Announcement. The parties shall make no public announcement concerning this Agreement, their discussions or any other memoranda, letters or agreements between the parties relating to the Merger; provided, however, that (i) either party may make disclosure if required under applicable law, including disclosure by BSQUARE of the Merger and the transactions contemplated thereby to the SEC and the Nasdaq National Market as may be necessary under applicable securities laws and listing requirements; (ii) either party may disclose, in general terms only, the Merger and the transactions contemplated thereby, to its employees and the media, so long as, with respect to the media communications, the other party gives its prior consent to the content of such communications, which consent shall not be unreasonably withheld, conditioned or delayed.
7.3 Regulatory Filings; Consents; Reasonable Efforts. Subject to the
terms and conditions of this Agreement, InfoGation and BSQUARE shall (a) make
all necessary filings with respect to the Merger and this Agreement under the
Securities Act and the Exchange Act and applicable blue sky or similar
securities laws and obtain required approvals and clearances with respect
thereto and supply all additional information requested in connection therewith;
(b) make merger notification or other appropriate filings with federal, state or
local governmental bodies or applicable foreign governmental agencies and obtain
required approvals and clearances with respect thereto and supply all additional
information requested in connection therewith; (c) use their respective
reasonable good faith efforts to obtain all consents, waivers, approvals,
authorizations and orders required in connection with the authorization,
execution and delivery of this Agreement and the consummation of the Merger; and
(d) use their respective reasonable good faith efforts to take, or cause to be
taken, all appropriate action, and do, or cause to be done, all things
necessary, proper or advisable to consummate and make effective the transactions
contemplated by this Agreement as promptly as practicable.
7.4 Further Assurances. Prior to and following the Closing, each party agrees to cooperate fully with the other parties and to execute such further instruments, documents and agreements and to give such further written assurances, as may be reasonably requested by any
other party to better evidence and reflect the transactions described herein and contemplated herein and to carry into effect the intents and purposes of this Agreement.
7.5 Escrow Agreement. On or before the Effective Time, BSQUARE shall, and the parties hereto shall exercise their reasonable good faith efforts to cause the Escrow Agent (as defined in Section 10.2) and the Stockholders' Agent (as defined in Section 10.9), to enter into a Escrow Agreement in substantially the form attached hereto as Exhibit A.
7.6 Blue Sky Laws. BSQUARE shall take such steps as may be necessary to comply with the securities and blue sky laws of all jurisdictions which are applicable to the issuance of the BSQUARE Common Stock in connection with the Merger. InfoGation shall use its reasonable good faith efforts to assist BSQUARE as may be necessary to comply with the securities and blue sky laws of all jurisdictions which are applicable in connection with the issuance of BSQUARE Common Stock in connection with the Merger.
7.7 Other Filings. As promptly as practicable after the date of this Agreement, InfoGation and BSQUARE will prepare and file any other filings required under the Exchange Act, the Securities Act or any other federal, foreign or state securities or blue sky laws relating to the Merger and the transactions contemplated in this Agreement (the "Other Filings"). Whenever any event occurs which is required to be set forth in an amendment or supplement to the Other Filings, InfoGation or BSQUARE, as the case may be, will promptly inform the other of such occurrence and cooperate in making any appropriate amendment or supplement, and/or mailing to stockholders of InfoGation, such amendment or supplement.
7.8 Availability of BSQUARE's Public Information. BSQUARE shall timely file all reports required to be filed pursuant to the Exchange Act and to keep available adequate current public information about itself, as such information is described in Section (c) of Rule 144 of the Securities Act.
7.9 Qualification as Reorganization Each of BSQUARE and InfoGation shall use reasonable best efforts to cause the Merger to qualify as a reorganization under the provisions of Section 368(a) of the Code. Without limiting the generality of the foregoing, except where otherwise required by law, each of BSQUARE, Sub and InfoGation shall not take a position on any tax returns inconsistent with the treatment of the Merger for tax purposes as a reorganization within the meaning of Section 368(a)(1)(A) of the Code by reason of Section 368(a)(2)(D) of the Code.
ARTICLE VIII
CONDITIONS TO MERGER
8.1 Conditions to Each Party's Obligation to Effect the Merger. The respective obligations of each party to this Agreement to effect the Merger shall be subject to the satisfaction prior to the Closing Date of the following conditions:
(a) Stockholder Approval. The stockholders of InfoGation entitled to vote on or consent to this Agreement and the Merger, including, without limitation, Clarion Co. and CCA, shall have duly approved this Agreement and the Merger.
(b) Approvals. Other than the filings provided for by Section 1.1, all authorizations, consents, orders or approvals of, or declarations or filings with, or expirations of waiting periods imposed by, any Governmental Entity shall have been filed, occurred or been obtained.
(c) No Injunctions or Restraints; Illegality. No temporary restraining order, preliminary or permanent injunction or other order issued by any court of competent jurisdiction or other legal or regulatory restraint or prohibition preventing the consummation of the Merger or limiting or restricting the conduct or operation of the business of InfoGation by BSQUARE after the Merger shall have been issued, nor shall any proceeding brought by a domestic administrative agency or commission or other domestic Governmental Entity or other third party, seeking any of the foregoing be pending; nor shall there be any action taken, or any statute, rule, regulation or order enacted, entered, enforced or deemed applicable to the Merger which makes the consummation of the Merger illegal.
(d) Nasdaq. The shares of BSQUARE Common Stock to be issued in the Merger shall have been approved for quotation on the Nasdaq National Market.
8.2 Additional Conditions to Obligations of BSQUARE and Sub. The obligations of BSQUARE and Sub to effect the Merger are subject to the satisfaction of each of the following conditions, any of which may be waived in writing exclusively by BSQUARE and Sub:
(a) Representations and Warranties. The representations and warranties of InfoGation and Kent Pu set forth in this Agreement shall be true and correct as of the date of this Agreement and (except to the extent such representations and warranties speak as of an earlier date) as of the Closing Date as though made on and as of the Closing Date, except for changes contemplated in this Agreement; and BSQUARE shall have received a certificate signed on behalf of InfoGation by the chief executive officer or chief financial officer of InfoGation to such effect.
(b) Performance of Obligations of InfoGation. InfoGation shall have performed all obligations required to be performed by it under this Agreement at or prior to the Closing Date; and BSQUARE shall have received a certificate signed on behalf of InfoGation by the chief executive officer of InfoGation to such effect.
(c) Secretary's Certificate. InfoGation shall have delivered to BSQUARE (i) resolutions of the board of directors of InfoGation, certified by its Secretary, authorizing its execution and delivery of this Agreement and the performance of its obligations hereunder, and (ii) resolutions adopted by written consent of the holders of InfoGation Capital Stock certified by its Secretary, authorizing the execution and delivery of this Agreement and the performance of InfoGation's obligations hereunder.
(d) Certificate and Bylaws. InfoGation shall have delivered to BSQUARE a copy of the certificate of incorporation of InfoGation, certified as of a recent date by the Secretary of State of Delaware, and the bylaws of InfoGation, certified as of a recent date by its Secretary.
(e) Blue Sky Laws. BSQUARE shall have received all state securities or "blue sky" permits and other authorizations necessary to issue shares of BSQUARE Common Stock pursuant to the Merger.
(f) Escrow Agreement. The Escrow Agent and Stockholders' Agent shall have executed and delivered to BSQUARE the Escrow Agreement and such agreement shall remain in full force and effect.
(g) Employees; Employee Agreement. Kent Pu shall have executed and delivered employment, non-competition and non-solicitation agreements in a form satisfactory to BSQUARE. In addition, Kent Pu, and all other InfoGation employees who shall become employees of BSQUARE at the Effective Time, shall have executed and delivered BSQUARE's standard form of proprietary information and invention assignment agreement.
(h) Opinion of InfoGation's Counsel. BSQUARE shall have received an opinion letter dated the Closing Date of Wilson, Sonsini, Goodrich & Rosati, a Professional Corporation, counsel to InfoGation, in form and substance reasonably satisfactory to BSQUARE.
(i) Approvals. All authorizations, consents (including the Material Consents), or approvals of, or notifications to, any third party, required by InfoGation's contracts, agreements or other obligations in connection with the consummation of the Merger shall have occurred or been obtained.
(j) Affirmative Vote or Dissenting Stockholders. Holders of ninety-six percent (96%) or more of InfoGation's Capital Stock entitled to vote on the Merger shall have voted in favor of the approval of the Merger.
(k) Financial Statements. InfoGation shall have provided all of the information required by Section 5.7.
(l) Board Resignations. InfoGation shall have delivered to BSQUARE written letters of resignation from the InfoGation board of directors from each of the current members of such board of directors, in each case effective at the Effective Time.
(m) Securities Exemption. Each holder of InfoGation Capital Stock shall have executed and delivered to BSQUARE an Investor Representation Statement and, based upon the information supplied in such Investor Representation Statement, BSQUARE shall have reasonably concluded that the issuance of shares of BSQUARE Common Stock shall be exempt from registration under applicable federal and state securities laws.
(n) No Material Change. Since January 31, 2002, there shall not have been any material adverse change in the financial condition, results of operations, assets, liabilities, business or prospects of InfoGation or in any Material Contract of InfoGation.
(o) Distribution Compliance with Law. InfoGation shall have taken all necessary action to ensure that the distribution of the consideration set forth in Section 2.1 of this Agreement is in compliance with Delaware law.
(p) Exclusivity Agreement. BSQUARE, InfoGation and Clarion Co. shall have executed an Exclusivity Agreement in form and substance satisfactory to BSQUARE whereby InfoGation (and, following the Effective Time, Sub) will be the exclusive supplier of navigation software to Clarion.
8.3 Additional Conditions to Obligations of InfoGation. The obligation of InfoGation to effect the Merger is subject to the satisfaction of each of the following conditions, any of which may be waived, in writing, exclusively by InfoGation:
(a) Representations and Warranties. The representations and warranties of BSQUARE and Sub set forth in this Agreement shall be true and correct as of the date of this Agreement and (except to the extent such representations speak as of an earlier date) as of the Closing Date as though made on and as of the Closing Date, and InfoGation shall have received a certificate signed on behalf of BSQUARE by the chief executive officer or chief financial officer of BSQUARE to such effect.
(b) Performance of Obligations of BSQUARE and Sub. BSQUARE and Sub shall have performed all obligations required to be performed by them under this Agreement at or prior to the Closing Date; and InfoGation shall have received a certificate signed on behalf of BSQUARE by the chief executive officer or chief financial officer of BSQUARE to such effect.
(c) No Material Change. Since January 31, 2002, there shall not have been any material adverse change in the financial condition, results of operations, assets, liabilities, business or prospects of BSQUARE.
(d) Escrow Agreement. The Escrow Agent and BSQUARE shall have executed and delivered to InfoGation the Escrow Agreement and such agreement shall remain in full force and effect.
ARTICLE IX
TERMINATION AND AMENDMENT
9.1 Termination. This Agreement may be terminated at any time prior to the Effective Time:
(a) by mutual written consent of BSQUARE and InfoGation;
(b) by either BSQUARE or InfoGation, by giving written notice to the other party, if a court of competent jurisdiction or other Governmental Entity shall have issued a nonappealable final order, decree or ruling or taken any other action, in each case having the effect of permanently restraining, enjoining or otherwise prohibiting the Merger, except, if such party relying on such order, decree or ruling or other action shall not have complied with its respective obligations under Sections 5.5 or 6.3 of this Agreement, as the case may be;
(c) by BSQUARE or InfoGation, by giving written notice to the other party, if the other party is in material breach of any representation, warranty, or covenant of such other party contained in this Agreement, which breach shall not have been cured, if subject to cure, within
10 business days following receipt by the breaching party of written notice of such breach by the other party;
(d) by BSQUARE, by giving written notice to InfoGation, if the Closing shall not have occurred on or before April 15, 2002 by reason of the failure of any condition precedent under Section 8.1 or 8.2 (unless the failure results primarily from a material breach by BSQUARE of any representation, warranty, or covenant of BSQUARE contained in this Agreement or BSQUARE's failure to fulfill a material condition precedent to closing or other default);
(e) by InfoGation, by giving written notice to BSQUARE, if the Closing shall not have occurred on or before April 15, 2002 by reason of the failure of any condition precedent under Section 8.1 or 8.3 (unless the failure results primarily from a material breach by InfoGation of any representation, warranty, or covenant of InfoGation contained in this Agreement or InfoGation's failure to fulfill a condition precedent to closing or other default).
9.2 Effect of Termination. In the event of termination of this Agreement as provided in Section 9.1, this Agreement shall immediately become void and there shall be no liability or obligation on the part of BSQUARE, InfoGation, Sub or their respective officers, directors, stockholders or Affiliates, except as set forth in Section 9.3 and further except to the extent that such termination results from the willful breach by any such party of any of its representations, warranties or covenants set forth in this Agreement.
9.3 Fees and Expenses. All fees and expenses (including investment banking fees) incurred in connection with this Agreement and the transactions contemplated herein shall be paid by the party incurring such expenses in the event the Merger is not consummated. In the event the Merger is consummated, then BSQUARE will assume the fees and expenses incurred by InfoGation in connection with this Agreement and the transactions contemplated herein up to a maximum of $650,000. Fees and expenses incurred by InfoGation in excess of $650,000 (the "Additional Fees") shall be deducted by BSQUARE on a proportionate basis from the aggregate Merger consideration paid to the holders of InfoGation Capital Stock at the Closing. Notwithstanding the foregoing, if InfoGation has violated the provisions of Section 5.6 of this Agreement, because the parties agree that the damages to BSQUARE resulting from such violation would be difficult to obtain, then InfoGation shall pay BSQUARE $500,000 in cash as liquidated damages. InfoGation has submitted a budget to BSQUARE for completion of the Merger. InfoGation shall use its best efforts to consummate the Merger within such budget and shall not enter into any agreement inconsistent with such budget.
ARTICLE X
ESCROW AND INDEMNIFICATION
10.1 Indemnification. From and after the Effective Time and subject to the limitations contained in Section 10, InfoGation and the holders of InfoGation Capital Stock, including, without limitation, Kent Pu, jointly and, with respect to Kent Pu, severally, will indemnify and hold BSQUARE harmless against any loss, expense, liability or other damage, including attorneys' fees, to the extent of the amount of such loss, expense, liability or other damage
(collectively "Damages") that BSQUARE has incurred by reason of the breach or alleged breach by InfoGation and Kent Pu of any representation, warranty, covenant or agreement of InfoGation and Kent Pu contained in this Agreement that occurs or becomes known to BSQUARE.
10.2 Escrow Fund. As partial security for the indemnities in
Section 10.1 and as soon as practicable after the Effective Time, the Escrow
Cash and the Escrow Shares shall be deposited by BSQUARE with Mellon Investor
Services (or such other institution selected by BSQUARE with the reasonable
consent of InfoGation) as Escrow Agent (the "Escrow Agent"), such deposit to
constitute the Escrow Fund (the "Escrow Fund") and to be governed by the terms
set forth in this Article X and in the Escrow Agreement. With respect to all
holders of InfoGation Capital Stock other than Kent Pu, the Escrow Fund shall be
the exclusive remedy of BSQUARE and Sub for breaches of the representations and
warranties made in this Agreement by InfoGation and Kent Pu, or for violations
of the covenants made by InfoGation in this Agreement. Furthermore, BSQUARE may
not receive any of the Escrow Cash and/or the Escrow Shares from the Escrow Fund
unless and until BSQUARE Officer's Certificates (as defined below) identifying
BSQUARE's Damages, the aggregate amount of which exceed $50,000, have been
delivered to the Escrow Agent as provided in Section 10.4; thereafter, BSQUARE
shall be entitled to be indemnified for all BSQUARE Damages in excess of such
$50,000 threshold. Any claims for BSQUARE Damages shall be offset or reduced by
the amount of any insurance proceeds actually received by BSQUARE and/or Sub.
10.3 Escrow Period. The Escrow Fund shall terminate upon the first
anniversary date of the Closing Date (the period from the Closing Date to such
date referred to as the "Escrow Period"), and on such date, each holder of
InfoGation Capital Stock who was entitled to shares of the Total Consideration
Shares shall be entitled to the release of such holder's Pro Rata Stock Portion
of what remains of the Escrow Shares as of such date and each holder of
InfoGation Capital Stock who was entitled to receive part of the Cash
Consideration shall be entitled to the release of such holder's Pro Rata Cash
Portion of what remains of the Escrow Cash as of such date, which releases shall
be made in accordance with the terms of Section 6 of the Escrow Agreement.
Notwithstanding the foregoing sentence, BSQUARE shall have the right, in its
reasonable discretion, to withhold that amount of Escrow Cash and/or Escrow
Shares which, subject to the objection of the Stockholders' Agent (as defined
below) and the subsequent resolution of the matter in the manner provided in
Section 10.8, is necessary to satisfy any unsatisfied claims specified in any
Officer's Certificate (as defined below) theretofore delivered to the Escrow
Agent and the Stockholders' Agent prior to termination of the Escrow Period with
respect to Damages incurred or litigation pending prior to expiration of the
Escrow Period, shall remain in the Escrow Fund until such claims have been
finally resolved.
10.4 Claims Upon Escrow Fund. Upon receipt by the Escrow Agent on or before the last day of the Escrow Period of a certificate signed by any appropriately authorized officer of BSQUARE (an "Officer's Certificate"):
(i) Stating the aggregate amount of BSQUARE's Damages or an estimate thereof, in each case to the extent known or determinable at such time; and
(ii) Specifying in reasonable detail the individual items of such Damages included in the amount so stated, the date each such item was paid or properly accrued
or arose, and the nature of the misrepresentation, breach or claim to which such item is related, the Escrow Agent shall, subject to the provisions of Section 10.6 and 10.7 hereof and of the Escrow Agreement, deliver to BSQUARE out of the Escrow Fund, as promptly as practicable, Escrow Cash and Escrow Shares having, in aggregate, a value equal to such Damages all in accordance with the Escrow Agreement. The Escrow Cash and Escrow Shares delivered pursuant to the preceding sentence shall be delivered such that the relative proportion of Escrow Cash and Escrow Shares shall remain the same before and after such distribution.
10.5 Valuation. For the purpose of compensating BSQUARE for its Damages pursuant to this Agreement, the value of the Escrow Shares which shall be released to BSQUARE in respect of a claim for Damages shall be $3.05 per share.
10.6 Objections to Claims. At the time of delivery of any Officer's Certificate to the Escrow Agent, a duplicate copy of such Officer's Certificate shall be delivered to the Stockholders' Agent and for a period of 30 days after such delivery, the Escrow Agent shall make no delivery of Escrow Cash and Escrow Shares, as the case may be, pursuant to Section 10.4 unless the Escrow Agent shall have received written authorization from the Stockholders' Agent to make such delivery. After the expiration of such 30-day period, the Escrow Agent shall make delivery of the Escrow Cash or Escrow Shares, as the case may be, in the Escrow Fund in accordance with Section 10.4; provided, however, that no such delivery may be made if the Stockholders' Agent shall object in a written statement to the claim made in the Officer's Certificate, and such statement shall have been delivered to the Escrow Agent and to BSQUARE prior to the expiration of such 30-day period.
10.7 Resolution of Conflicts.
(a) In case the Stockholders' Agent shall so object in writing to any claim or claims by BSQUARE made in any Officer's Certificate, BSQUARE shall have 30 days to respond in a written statement to the objection of the Stockholders' Agent. If after such 30-day period there remains a dispute as to any claims, the Stockholders' Agent and BSQUARE shall attempt in good faith for 30 days to agree upon the rights of the respective parties with respect to each of such claims. If the Stockholders' Agent and BSQUARE should so agree, a memorandum setting forth such agreement shall be prepared and signed by both parties and shall be furnished to the Escrow Agent. The Escrow Agent shall be entitled to rely on any such memorandum and shall distribute the Escrow Cash or the Escrow Shares, as the case may be, from the Escrow Fund in accordance with the terms of the memorandum.
(b) If no such agreement can be reached after good faith negotiation, either BSQUARE or the Stockholders' Agent may, by written notice to the other, demand arbitration of the matter unless the amount of the damage or loss is at issue in pending litigation with a third party, in which event arbitration shall not be commenced until such amount is ascertained or both parties agree to arbitration; and in either such event the matter shall be settled by arbitration conducted by three arbitrators. Within 15 days after such written notice is sent, BSQUARE (on the one hand) and the Stockholders' Agent (on the other hand) shall each select one arbitrator, and the two arbitrators so selected shall select a third arbitrator. The decision of the arbitrators as to the validity and amount of any claim in such Officer's Certificate shall be binding and conclusive upon the parties to this Agreement and the Escrow Agent shall be entitled to act in
accordance with such decision and make or withhold payments out of the Escrow Fund in accordance with such decision.
(c) Judgment upon any award rendered by the arbitrators may be entered in any court having jurisdiction. Any such arbitration shall be held in King County, Washington under the commercial rules then in effect of the American Arbitration Association. The non-prevailing party to an arbitration shall pay its own expenses, the fees of each arbitrator, the administrative fee of the American Arbitration Association, and the expenses, including, without limitation, the reasonable attorneys' fees and costs, incurred by the prevailing party to the arbitration.
10.8 Stockholders' Agent.
(a) If this Agreement and the Merger are approved by the requisite vote of InfoGation's stockholders, effective upon such vote and without any further act by any former InfoGation stockholder, Kent Pu shall be constituted and appointed as agent (the "Stockholders' Agent") for and on behalf of the holders of InfoGation Capital Stock to give and receive notices and communications, to authorize delivery to BSQUARE of the Escrow Cash and the Escrow Shares or other property from the Escrow Fund in satisfaction of claims by BSQUARE, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Stockholders' Agent for the accomplishment of the foregoing. Such agency may be changed from time to time by (i) the holders of a majority in interest of the Escrow Shares or (ii) the holders of a majority in interest of the Escrow Shares deposited on behalf of the holders of InfoGation Series C Preferred Stock immediately prior to the Effective Time, in each case upon not less than 10 days' prior written notice to BSQUARE. No bond shall be required of the Stockholders' Agent, and the Stockholders' Agent shall receive no compensation for services. Notices or communications to or from the Stockholders' Agent shall constitute notice to or from each of the holders of InfoGation Capital Stock.
(b) The Stockholders' Agent shall not be liable for any act done or omitted hereunder as Stockholders' Agent while acting in good faith, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The holders of InfoGation Capital Stock shall severally and jointly indemnify the Stockholders' Agent and hold him harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Stockholders' Agent and arising out of or in connection with the acceptance or administration of his duties hereunder under this Agreement or the Escrow Agreement.
(c) The Stockholders' Agent shall have reasonable access to information about InfoGation and BSQUARE and the reasonable assistance of InfoGation's and BSQUARE's officers and employees for purposes of performing their duties and exercising their rights under this Article X, provided that the Stockholders' Agent shall treat confidentially and not disclose any nonpublic information from or about InfoGation or BSQUARE to anyone (except on a need to know basis to individuals who agree to treat such information confidentially).
10.9 Actions of the Stockholders' Agent. A decision, act, consent or instruction of the Stockholders' Agent shall constitute a decision of all of the Designated InfoGation Stockholders
for whom shares of BSQUARE Common Stock otherwise issuable to them are deposited in the Escrow Fund and shall be final, binding and conclusive upon each such Designated InfoGation Stockholder, and the Escrow Agent and BSQUARE may rely upon any decision, act, consent or instruction of the Stockholders' Agent as being the decision, act, consent or instruction of each and every such holder of InfoGation Capital Stock. The Escrow Agent and BSQUARE are hereby relieved from any liability to any person for any acts done by them in accordance with such decision, act, consent or instruction of the Stockholders' Agent.
10.10 Claims. In the event BSQUARE becomes aware of a third-party claim which BSQUARE reasonably believes may result in a demand against the Escrow Fund, BSQUARE shall promptly notify the Stockholders' Agent of such claim, and the Stockholders' Agent and the holders of InfoGation Capital Stock shall be entitled, at their expense, to participate in any defense of such claim. BSQUARE shall have the right in its sole discretion to settle any such claim; provided, however, that BSQUARE may not effect the settlement of any such claim without the consent of the Stockholders' Agent, which consent shall not be unreasonably withheld. In the event that the Stockholders' Agent has consented to any such settlement, the Stockholders' Agent shall have no power or authority to object to the amount of such settlement.
10.11 Limitation of Remedies. BSQUARE and Sub acknowledge and agree that, in the event the Merger is completed, recourse to the Escrow Fund shall be the exclusive remedy of BSQUARE and Sub for BSQUARE Damages from all holders of InfoGation Capital Stock other than Kent Pu. With respect to Kent Pu, in addition to recourse to the Escrow Fund, and only after BSQUARE and Sub shall have first sought and obtained reimbursement from the Escrow Fund and exhausted the entire Escrow Fund for BSQUARE Damages, then and only then, may BSQUARE exercise any other right, power or remedy granted to it or otherwise permitted to it by law, either by suit in equity or by action at law, or both against Kent Pu, provided, however, that in no event shall the aggregate amount recovered from Kent Pu by BSQUARE exceed the aggregate value of the consideration received by Kent Pu under this Agreement.
ARTICLE XI
MISCELLANEOUS
11.1 Survival of Representations and Covenants. All representations, warranties, covenants and agreements of InfoGation and Kent Pu contained in this Agreement shall survive the Closing and any investigation at any time made by or on behalf of BSQUARE until (a) sixty days following the expiration of any applicable statute of limitations (including any extensions thereof) in the case of any claim for misrepresentation or breach of warranty made in Section 3.2, (b) in the case of any fraud, intentional misrepresentation or active concealment, the representations and warranties of InfoGation or Kent Pu shall survive until sixty days following the expiration of any applicable statute of limitations (including any extensions thereof), and (c) until the first anniversary date of the Closing Date for all other representations, warranties, covenants and agreements of InfoGation. All representations, warranties, covenants and agreements of BSQUARE and Sub contained in this Agreement shall survive the Closing and any investigation at any time made by or behalf of InfoGation until the first anniversary date of the Closing Date.
11.2 Notices. All notices and other communications hereunder shall be in writing and shall be deemed given if delivered personally, telecopied (which is confirmed) or two business days after being mailed by registered or certified mail (return receipt requested) to the parties at the following addresses (or at such other address for a party as shall be specified by like notice):
(a) if to BSQUARE or Sub:
BSQUARE Corporation 3150 - 139th Ave. S.E., Suite 500 Bellevue, Washington 98005-4081 Telephone:(425) 519-5900 Fax: (425) 519-5999 Attention: Joe Notarangelo
with a copy to:
Summit Law Group, PLLC 1505 Westlake Avenue N., Suite 300 Seattle, Washington 98109 Telephone No: (206) 676-7000 Fax No: (206) 676-7001 Attention: Michael J. Erickson
(b) if to InfoGation, to:
InfoGation Corporation 10525 Vista Sorento Parkway San Diego, California 92121 Telephone: (858) 535-9870 Fax: (858) 535-9871 Attention: Kent Pu
with a copy to:
Wilson Sonsini Goodrich & Rosati 650 Page Mill Road Palo Alto, California 94304-1050 Telephone No: (650) 493-9300 Fax No: (650) 493-6811 Attention: Mark J. Casper
(c) If to Stockholders' Agent:
Kent Pu
5095 Seachase Way
San Diego, CA 92130
Telephone: (858) 509-0186
11.3 Interpretation. When a reference is made in this Agreement to Sections, such reference shall be to a Section of this Agreement unless otherwise indicated. The table of contents and headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Whenever the words "include," "includes" or "including" are used in this Agreement they shall be deemed to be followed by the words "without limitation." Whenever the words "to the knowledge of InfoGation" or "known to InfoGation" or similar phrases are used in this Agreement, they mean to the actual knowledge, after due and diligent inquiry, of all of the executive officers of InfoGation. Whenever the words "to the knowledge of BSQUARE" or "known to BSQUARE" or similar phrases are used in this Agreement, they mean to the actual knowledge, after due and diligent inquiry, of the chief executive and chief financial officers of BSQUARE.
11.4 Counterparts. This Agreement may be executed in two or more counterparts, all of which shall be considered one and the same agreement and shall become effective when two or more counterparts have been signed by each of the parties and delivered to the other parties, it being understood that all parties need not sign the same counterpart.
11.5 Entire Agreement; No Third-Party Beneficiaries. This Agreement (including the documents and the instruments referred to herein), the Confidentiality Agreement, and the Transaction Documents (a) constitute the entire agreement and supersedes all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof, and (b) are not intended to confer upon any person other than the parties hereto (including without limitation any InfoGation employees) any rights or remedies hereunder.
11.6 Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Washington without regard to any applicable conflicts of law.
11.7 Assignment. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto (whether by operation of law or otherwise) without the prior written consent of the other parties. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.
11.8 Amendment. This Agreement may be amended by the parties hereto, at any time before or after approval of matters presented in connection with the Merger by the stockholders of InfoGation, but after any such stockholder approval, no amendment shall be made which by law requires the further approval of stockholders without obtaining such further approval. This Agreement may not be amended except by an instrument in writing signed on behalf of each of the parties hereto.
11.9 Extension; Waiver. At any time prior to the Effective Time, the parties hereto may, to the extent legally allowed, (a) extend the time for the performance of any of the obligations or the other acts of the other parties hereto, (b) waive any inaccuracies in the representations or warranties contained herein or in any document delivered pursuant hereto and (iii) waive compliance with any of the agreements or conditions contained herein. Any agreement on the part of a party hereto to any such extension or waiver shall be valid only if set forth in a written instrument signed on behalf of such party.
11.10 Specific Performance. The parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to injunctive relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof in any court of the United States or any state having jurisdiction, this being in addition to any other remedy to which they are entitled at law or in equity.
(signature page follows)
IN WITNESS WHEREOF, BSQUARE, Sub and InfoGation have caused this Agreement and Plan of Merger to be signed by their respective officers thereunto duly authorized as of the date first written above.
BSQUARE CORPORATION
By:______________________________________________
Title:___________________________________________
BSQUARE SAN DIEGO CORPORATION
By:______________________________________________
Title:___________________________________________
INFOGATION CORPORATION
By:______________________________________________
Title:___________________________________________
KENT PU
EXHIBIT A
ESCROW AGREEMENT
This ESCROW AGREEMENT (this "Escrow Agreement") is entered into as of March 13, 2002 by and among InfoGation Corporation, a Delaware corporation (the "Company"), Kent Pu, as agent and representative of the stockholders of the Company (the "Stockholders' Agent"), BSQUARE Corporation, a Washington corporation ("BSQUARE"), and Mellon Investor Services LLC, as escrow agent (the "Escrow Agent").
RECITALS
A. BSQUARE, BSQUARE San Diego Corporation, a Washington corporation and wholly owned subsidiary of BSQUARE ("Sub"), the Company, and the stockholders of the Company have entered into an Agreement and Plan of Merger of even date herewith (the "Merger Agreement"), pursuant to which BSQUARE will acquire the Company through the merger of the Company with and into Sub (the "Merger").
B. Pursuant to the Merger Agreement, the stockholders of the Company (the "Stockholders") will receive (i) cash and (ii) shares of common stock of BSQUARE ("BSQUARE Common Stock"), a portion of which is to be deposited into the escrow fund provided for hereby. The Merger Agreement provides that the escrow fund provided for hereby will secure the indemnification obligations of the Stockholders to BSQUARE on the terms and conditions set forth herein.
C. The parties desire to establish the terms and conditions pursuant to which the Escrow Fund (as defined in Section 3(a) of this Escrow Agreement) will be established and maintained and the procedure by which claims for indemnification may be made against the Escrow Fund.
D. Capitalized terms used in this Escrow Agreement and not otherwise defined shall have the meanings given those terms in the Merger Agreement.
AGREEMENT
The parties to this Escrow Agreement hereby agree as follows:
1. CONSENT OF STOCKHOLDERS. By execution of the Investor Representation Statement, each Stockholder has (a) agreed to be bound by the indemnification obligations of the Stockholders set forth in Article X of the Merger Agreement, (b) consented to the establishment of the Escrow Fund (as defined below) to secure the indemnification obligations of the Stockholders under Article X of the Merger Agreement, (c) irrevocably authorized and appointed the Stockholders' Agent, with full power of substitution and resubstitution, as his or her representative and true and lawful attorney-in-fact and agent, to act in his, her or its name, place and stead as contemplated by Article X of the Merger Agreement and this Escrow Agreement,
and to execute in his, her or its name, and on behalf of such Stockholder, this Escrow Agreement and any other agreement, certificate, instrument and document to be delivered by the Stockholders in connection with Article X of the Merger Agreement and the Escrow Agreement.
2. APPOINTMENT OF ESCROW AGENT. The Escrow Agent is hereby appointed to act, and the Escrow Agent agrees to act, as escrow agent under this Escrow Agreement.
3. ESCROW AND INDEMNIFICATION.
ESCROW FUND. The escrow fund (the "Escrow Fund") shall consist of the following:
Cash in the aggregate amount of $300,000 (the "Escrow Cash"), which amount shall be deposited into the Escrow Fund at the Effective Time;
129,772 shares of BSQUARE common stock, no par value per share (the "Common Stock"), which shares shall be deposited into the Escrow Fund at the Effective Time (the "Escrow Shares");
any additional shares of BSQUARE Common Stock or other equity securities issued or distributed by BSQUARE (including shares issued upon a stock split) with respect to the Escrow Shares (the "New Shares"), which shares shall be deposited into the Escrow Fund as of the date of such issuance or distribution and become part of the Escrow Shares.
Exhibit A hereto sets forth the name of each Stockholder and the amount of Escrow Cash and/or the number of Escrow Shares contributed to the Escrow Fund on behalf of each such Stockholder pursuant to Article X of the Merger Agreement. The amount of the Escrow Cash contributed by each Stockholder divided by the aggregate amount of the Escrow Cash contributed by all Stockholders to the Escrow Fund shall be each such Stockholder's "proportionate interest" in the Escrow Cash. The number of Escrow Shares contributed by each Stockholder divided by the aggregate number of Escrow Shares contributed by all Stockholders to the Escrow Fund shall be each such Stockholder's "proportionate interest" in the Escrow Shares. The initial "proportionate interest" of each Stockholder shall also be set forth on Exhibit A hereto.
The Escrow Agent shall have no duty to confirm or verify the sufficiency, appropriateness, or accuracy of any amount of Escrow Cash or Escrow Shares deposited with it under this Escrow Agreement.
Pledge. At the Effective Time (in the case of the Escrow Shares issued at the Effective Time) or at the time of issuance (in the case of any New Shares), the Escrow Shares shall be issued to and beneficially owned by the Stockholders, on a pro rata basis according to each such Stockholder's proportionate interest (as set forth on Exhibit A hereto) in the total number of shares of BSQUARE Common Stock issued at the Effective Time (in the case of the Escrow Shares issued at the Effective Time) or at the time of issuance (in the case of any New Shares). At the Effective Time (in the case of the Escrow Cash and Escrow Shares issued at the Effective Time) or at the time of issuance (in the case of any New Shares), the
Stockholders shall be deemed to have pledged such Escrow Cash and Escrow Shares to BSQUARE and shall deliver such Escrow Cash and Escrow Shares to the Escrow Agent, and such Escrow Cash and Escrow Shares shall be held by the Escrow Agent on BSQUARE 's behalf in accordance with the terms and conditions of this Escrow Agreement. The Company shall deliver to BSQUARE appropriate stock powers from the Stockholders endorsed in blank and such documentation as BSQUARE may reasonably request to carry out the purposes of this Escrow Agreement. So long as any Escrow Cash or Escrow Shares are held by the Escrow Agent under this Escrow Agreement, BSQUARE shall have, and the Stockholders shall be deemed to have granted to BSQUARE, effective as of the Effective Time (in the case of the Escrow Cash or Escrow Shares issued at the Effective Time) or at the time of issuance (in the case of any New Shares), a perfected, first-priority security interest in such Escrow Cash and Escrow Shares (subject only to the security interest of the Stockholders' Agent and the Escrow Agent, as described in Sections 7 and 9(f), respectively, of this Escrow Agreement), to secure payment of amounts payable by the Stockholders in respect of indemnification claims made under Article X of the Merger Agreement and this Escrow Agreement. The Escrow Agent makes no representation or warranty as to the sufficiency, legality or effectiveness of the above-mentioned first-priority security interest and the perfection thereof, and except as expressly provided herein, the Escrow Agent shall have no duty or obligation to monitor or take any action whatsoever (except upon the express written reasonable request of BSQUARE) in connection therewith. The Escrow Fund shall not be subject to any lien, attachment, trustee process or any other judicial process of any creditor of any party to this Escrow Agreement (except for the security interests of the Stockholders' Agent and Escrow Agent, as provided in this Escrow Agreement). The Escrow Agent agrees to accept delivery of and hold the Escrow Cash and Escrow Shares subject to the terms and conditions of this Escrow Agreement.
INDEMNIFICATION. Subject to the terms and conditions of Article X of the Merger Agreement, the Stockholders shall indemnify and hold each of the Indemnified Parties harmless from and against, and shall reimburse the Indemnified Parties for, any and all Losses (as defined in Section 6.2 of the Merger Agreement) incurred by such Indemnified Party that are indemnifiable under Article VI of the Merger Agreement.
(d) ESCROW CASH. It is expressly agreed and understood that the Escrow Cash shall, until distributed pursuant to the terms of this Escrow Agreement, constitute assets of BSQUARE. Accordingly, for tax purposes, the Escrow Cash and all earnings on the Escrow Cash shall be considered owned by BSQUARE until distributed pursuant to the terms of this Escrow Agreement, and reported as such for all tax reporting purposes.
(e) INVESTMENTS. So long as the Escrow Agent is holding the Escrow Cash or any other funds or cash in the Escrow Fund in accordance with this Escrow Agreement, it shall invest such Escrow Cash, funds or cash in Class B Shares of the Dreyfus General Money Market Fund. All income and earnings from the investment of the Escrow Cash shall be credited to, and become a part of, the Escrow Fund, and any losses on any such investments shall be debited to
the Escrow Fund. The Escrow Agent shall have no duty, responsibility or obligation to invest any funds or cash held in the Escrow Fund other than in accordance with this Section 3(e). The Escrow Agent shall have no liability or responsibility for any investment losses, including without limitation any market loss on any investment liquidated (whether at or prior to maturity) in order to make a payment required under this Escrow Agreement. The Escrow Agent may, in making or disposing of any investment permitted by this Escrow Agreement, deal with itself, in its individual capacity, or any of its affiliates, whether or not it or such affiliate is acting as a subagent of the Escrow Agent or for any third person or dealing as principal for its own account.
4. ADMINISTRATION OF ESCROW FUND. The Escrow Agent shall administer the Escrow Fund as follows:
DUTIES OF ESCROW AGENT. The Escrow Agent shall (i) hold and safeguard the Escrow Fund during the period beginning on the date of this Escrow Agreement and ending 12 months after the date hereof (the "Escrow Period"), (ii) treat the Escrow Fund in accordance with the terms of this Escrow Agreement and (iii) hold and dispose of the Escrow Fund only in accordance with the terms of this Escrow Agreement.
CLAIMS FOR INDEMNIFICATION. Upon receipt by the Stockholder
Representative and the Escrow Agent at any time on or before
the last day of the Escrow Period (except as provided in
Section 6 of this Escrow Agreement) of a certificate signed by
any officer of BSQUARE (an "Officer's Certificate"):
stating that BSQUARE has incurred Damages that, on a aggregate basis with all prior Damages, exceed $50,000,
specifying in reasonable detail the individual items of all such Damages included in the amount so stated, the date each such item was paid or properly accrued or arose, and a reasonably detailed statement of the misrepresentation, breach or claim to which such item is related, and
specifying the exact amount of Escrow Cash and the specific number of Escrow Shares to be delivered to BSQUARE (including each Stockholder's proportionate interest of such Escrow Cash and such Escrow Shares),
the Escrow Agent shall, subject to the provisions of this Escrow Agreement, deliver to BSQUARE out of the Escrow Fund, as promptly as practicable, Escrow Cash and Escrow Shares in an amount as set forth in said Officer's Certificate, which value shall be determined by BSQUARE in accordance with subsection (iii) of this Section 4(b). When making any necessary calculations, BSQUARE shall ensure that the Escrow Cash and Escrow Shares delivered pursuant to the preceding sentence shall be delivered such that the relative proportion of Escrow Cash and Escrow Shares shall remain the same before and after such distribution.
For the purposes of determining the number of Escrow Shares to be transferred to BSQUARE out of the Escrow Fund pursuant to subsection (ii) of this Section 4(b), the value of the Escrow Shares shall be $3.05 per share. The
Escrow Agent shall have no duty or obligation to make, calculate or verify any determination regarding the value of Escrow Shares or regarding the number of Escrow Shares that are necessary to be delivered to BSQUARE, nor shall it have any duty or obligation to verify, examine, or make any determination in connection with any of the information set forth in the applicable Officer's Certificate; its sole duty in connection therewith being to deliver the precise number of Escrow Shares and Escrow Cash as are set forth in an Officer's Certificate delivered to it.
If any Escrow Cash or Escrow Shares are retained by the Escrow Agent or
transferred to BSQUARE pursuant to any provisions of this
Section 4, such Escrow Cash and Escrow Shares shall be taken
from the Escrow Fund in accordance with each Stockholder's
proportionate interest therein, all as determined pursuant to
Section 3(a) of this Escrow Agreement and all as shall be set
forth in the Officer's Certificate delivered to the Escrow
Agent.
Notwithstanding the foregoing, in the event that BSQUARE reasonably anticipates in good faith that it will have to pay or incur Damages with respect to facts and circumstances existing on or before the expiration of the Escrow Period, BSQUARE shall, on or before the last day of the Escrow Period, deliver to both the Stockholders' Agent and the Escrow Agent an Officer's Certificate with respect to such anticipated liability, in accordance with the provisions of this subsection (b). That amount of Escrow Cash and/or number of Escrow Shares that, in the reasonable judgment of BSQUARE and as is expressly set forth in the applicable Officer's Certificate, subject to the objection of the Stockholders' Agent and the subsequent resolution of the claim in accordance with this Escrow Agreement, would be necessary to satisfy a claim for indemnification with respect to such anticipated liability, if BSQUARE were to prevail in establishing its right to indemnification, shall remain in the Escrow Fund until such claim for indemnification shall have been resolved.
OBJECTIONS TO CLAIMS. For a period of 30 days after delivery of the Officer's Certificate to the Stockholders' Agent and the Escrow Agent, BSQUARE shall receive no Escrow Cash or Escrow Shares from the Escrow Fund pursuant to Section 4(b) of this Escrow Agreement unless the Escrow Agent shall have received written authorization from the Stockholders' Agent to make such delivery. If the Stockholders' Agent shall not have objected in a written statement to the claim made in the Officer's Certificate (such written objection, a "Dispute Notice") and delivered such statement to BSQUARE and the Escrow Agent before the expiration of such 30-day period, BSQUARE shall be entitled to receive Escrow Cash and/or Escrow Shares from the Escrow Fund in accordance with Section 4(b) of this Escrow Agreement.
RESOLUTION OF CONFLICTS; ARBITRATION.
If the Stockholders'Agent shall deliver a Dispute Notice to the Escrow Agent within such 30-day period, BSQUARE shall have 30 days to respond in a written statement to
the objection of the Stockholders' Agent. If after such 30-day period there remains a dispute as to any claims, the Stockholders' Agent and BSQUARE shall attempt in good faith for 30 days to agree upon the rights of the respective parties with respect to each of such claims. If the Stockholders' Agent and BSQUARE should so agree, a memorandum setting forth such agreement shall be prepared and signed by both parties and shall be furnished to the Escrow Agent. Such memorandum shall set forth the items that are required to be set forth in an Officer's Certificate in accordance with Section 4(b)(iii) above. The Escrow Agent shall be entitled to rely on any such memorandum and, provided such memorandum contains the required information, shall distribute the Escrow Cash or the Escrow Shares, as the case may be, from the Escrow Fund in accordance with the terms of the memorandum.
If no such agreement can be reached after good faith negotiation, either BSQUARE or the Stockholders' Agent may, by written notice to the other, demand arbitration of the matter unless the amount of the damage or loss is at issue in pending litigation with a third party, in which event arbitration shall not be commenced until such amount is ascertained or both parties agree to arbitration; and in either such event the matter shall be settled by arbitration conducted by three arbitrators. Within 15 days after such written notice is sent, BSQUARE (on the one hand) and the Stockholders' Agent (on the other hand) shall each select one arbitrator, and the two arbitrators so selected shall select a third arbitrator. The decision of the arbitrators as to the validity and amount of any claim in such Officer's Certificate shall be binding and conclusive upon the parties to this Escrow Agreement and the Escrow Agent shall be entitled to act in accordance with such decision and make or withhold payments out of the Escrow Fund in accordance with such decision. Such decision shall set forth the items that are required to be set forth in an Officer's Certificate in accordance with Section 4(b)(iii) above.
(iii) Judgment upon any award rendered by the arbitrators may be entered in any court having jurisdiction. Any such arbitration shall be held in King County, Washington under the commercial rules then in effect of the American Arbitration Association. The non-prevailing party to an arbitration shall pay its own expenses, the fees of each arbitrator, the administrative fee of the American Arbitration Association, and the expenses, including, without limitation, the reasonable attorneys' fees and costs, incurred by the prevailing party to the arbitration.
5. THIRD-PARTY CLAIMS. In the event BSQUARE becomes aware of a third-party claim which BSQUARE reasonably and in good faith believes will result in a demand against the Escrow Fund, BSQUARE shall promptly notify the Stockholders' Agent of such claim, and the Stockholders' Agent and the Stockholders shall be entitled, at their expense, to participate in any defense of such claim. BSQUARE shall have the right in its sole discretion to settle any such claim; provided, however, that BSQUARE may not effect the settlement of any such claim without the consent of the Stockholders' Agent, which consent shall not be unreasonably withheld. In the event that the Stockholders' Agent has consented to any such settlement, the Stockholders' Agent shall have no power or authority to object to the amount of such settlement.
6. RELEASE OF ESCROW FUND. Subject to the provisions of this
Section 6, the Escrow Fund shall remain in existence during the Escrow Period.
Upon the expiration of the Escrow Period, the Escrow Fund shall terminate with
respect to all Escrow Cash and/or Escrow Shares then remaining in the Escrow
Fund and the Escrow Agent shall deliver all such Escrow Cash and/or Escrow
Shares to the Stockholders in such proportionate amounts as shall be set forth
in a writing from the Stockholders' Agent to the Escrow Agent; provided,
however, that the amount of Escrow Cash and/or number of Escrow Shares that, in
the reasonable judgement of BSQUARE, subject to the objection of the
Stockholders' Agent and the subsequent negotiation and arbitration of the matter
in accordance with Section 4(d) hereof, is necessary to satisfy any unsatisfied
claims specified in any Officer's Certificate delivered to Escrow Agent prior to
the expiration of such Escrow Period with respect to facts and circumstances
existing on or prior to the expiration of the Escrow Period shall remain in the
Escrow Fund (and the Escrow Fund shall remain in existence) until such claims
have been resolved; provided further, that BSQUARE agrees to notify Escrow Agent
in writing of the expiration of the Escrow Period. As soon as all such claims
have been resolved or the maximum amount associated with such claims has been
agreed to by the Stockholders' Agent and BSQUARE, the Escrow Agent shall deliver
to the Stockholders, in the amounts as set forth in a writing from BSQUARE to
the Escrow Agent, all Escrow Cash and/or Escrow Shares and other property then
remaining in the Escrow Fund and not required to satisfy such claims. Deliveries
of Escrow Cash and Escrow Shares and other property to the Stockholders pursuant
to this Section 6 shall be made in accordance with each Stockholder's
proportionate interest therein.
7. STOCKHOLDERS' AGENT.
No bond shall be required of the Stockholders' Agent, and the Stockholders' Agent shall receive no compensation for services. Notices or communications to or from the Stockholders' Agent shall constitute notice to or from each of the Stockholders.
The Stockholders' Agent shall not be liable for any act done or omitted hereunder as Stockholders' Agent while acting in good faith, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. The Stockholders shall severally and jointly indemnify the Stockholders' Agent and hold him harmless against any loss, liability or expense incurred without gross negligence or bad faith on the part of the Stockholders' Agent and arising out of or in connection with the acceptance or administration of his duties hereunder under this Escrow Agreement or the Merger Agreement.
A decision, act, consent or instruction of the Stockholders' Agent shall constitute a decision of all of the Stockholders and shall be final, binding and conclusive upon each such Stockholder, and the Escrow Agent and BSQUARE may rely upon any decision, act, consent or instruction of the Stockholders' Agent as being the decision, act, consent or instruction of each and every such Stockholder. The Escrow Agent and BSQUARE are hereby relieved from any liability to any person or entity for any acts done by them in accordance with such decision, act, consent or instruction of the Stockholders' Agent.
The Stockholders' Agent may be replaced by (i) the holders of a majority in interest of the Escrow Shares or (ii) the holders of a majority in interest of the Escrow Shares deposited on behalf of the holders of InfoGation Series C Preferred Stock immediately prior to the Effective Time, in each case upon not less than 10 days' prior written notice to BSQUARE. Upon any replacement of the Stockholders' Agent, BSQUARE will promptly deliver to the Escrow Agent notice of such replacement, as well as a specimen signature of such new Stockholders' Agent. Before receiving such notice and specimen signature, the Escrow Agent shall not be required to recognize any change in the Stockholders' Agent.
The Stockholders' Agent shall have reasonable access to information about the Company and BSQUARE and the reasonable assistance of the Company's and BSQUARE's officers and employees for purposes of performing their duties and exercising their rights under this Escrow Agreement, provided that the Stockholders' Agent shall treat confidentially and not disclose any nonpublic information from or about the Company or BSQUARE to anyone (except on a need to know basis to individuals who agree to treat such information confidentially).
8. DISTRIBUTIONS; VOTING.
Any New Shares and any accrued interest on Escrow Cash shall be added to the Escrow Fund and become a part of the Escrow Shares and Escrow Cash, respectively. When and if cash dividends on Escrow Shares in the Escrow Fund shall be declared and paid, they shall be distributed to the beneficial owners of such shares on the applicable distribution date. Such dividends will not become part of the Escrow Fund and will not be available to satisfy Damages. The beneficial owners of such shares shall pay any taxes on such dividends.
Each Stockholder shall possess voting rights with respect to that number of Escrow Shares issued to and deposited in the Escrow Fund on behalf of such Stockholder (and on any voting securities added to the Escrow Fund with respect to such shares), so long as such shares or other voting securities are held in the Escrow Fund. BSQUARE shall promptly deliver to the Escrow Agent, and the Escrow Agent shall promptly deliver to Stockholder, copies of all proxy solicitation materials.
9. DUTIES OF ESCROW AGENT.
BSQUARE and the Stockholders' Agent acknowledge and agree that the Escrow Agent (i) shall be obligated only for the performance of such duties as are specifically set forth in this Escrow Agreement with respect to the Escrow Agent (and no implied obligations) and as set forth in any additional written escrow instructions as the Escrow Agent may receive after the date of this Escrow Agreement that are signed by an officer of BSQUARE and the Stockholders' Agent and in form and substance acceptable to the Escrow Agent; (ii) shall not be obligated to take any legal or other action under this Escrow Agreement that would, in its reasonable judgment, result in a material expense or liability unless the Escrow Agent shall have been furnished with indemnity acceptable to it; and (iii) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, request or document furnished to it under this Escrow Agreement and reasonably believed by it to be genuine and to have been signed or presented by the proper person, and shall have no responsibility for determining the accuracy thereof.
The Escrow Agent is hereby expressly authorized to comply with and obey any order, judgment or decree of any court of competent jurisdiction or a written decision of arbitrators. If the Escrow Agent shall obey or comply with any such order, judgment or decree or written decision of arbitrators, the Escrow Agent shall not be liable to any of the parties to this Escrow Agreement or to any other person by reason of such compliance, notwithstanding any such order, judgment, decree or written decision being subsequently reversed, modified, annulled, set aside, vacated or found to have been entered without jurisdiction.
The Escrow Agent shall not be liable in any respect on account of the identity, authority or rights of the parties executing or delivering or purporting to execute or deliver this Escrow Agreement or any documents or papers deposited or called for under this Escrow Agreement.
The Escrow Agent shall not be liable for the expiration of any rights under any statute of limitations with respect to this Escrow Agreement or any documents or other items deposited with the Escrow Agent.
Neither the Escrow Agent nor any of its affiliates, directors, officers or employees shall be liable to anyone for any error of judgment or for any action taken, suffered or omitted to be taken by it or any of its affiliates, directors, officers or employees under or in connection with this Escrow Agreement except in the case of gross negligence, bad faith or willful misconduct (each as finally determined by a court of competent jurisdiction or as agreed to by the parties). Anything to the contrary notwithstanding, in no event shall the Escrow Agent be liable for special, punitive, indirect, consequential or incidental loss or damage of any kind whatsoever (including, but not limited to, lost profits), even if the Escrow Agent has been advised of the likelihood of such loss or damage. Any liability of the Escrow Agent under this Escrow Agreement shall be limited to the amount of fees
paid to the Escrow Agent under this Agreement. Subject to
Section 9(g) below, BSQUARE and the Stockholders
(collectively, the "Escrow Indemnifying Parties") covenant and
agree to jointly and severally indemnify the Escrow Agent and
hold it harmless from and against any fee, loss, claim, cost,
penalty, fine, settlement, damages, judgment, liability or
expense (including reasonable attorney's fees and expenses)
(an "Escrow Loss") incurred by the Escrow Agent arising out of
or in connection with this Escrow Agreement, including but not
limited to, the execution and delivery of this Escrow
Agreement, the Escrow Agent's performance of its obligations
in accordance with the provisions of this Escrow Agreement or
with the administration of its duties under this Escrow
Agreement, unless such Escrow Loss shall arise out of or be
caused by the Escrow Agent's gross negligence, bad faith or
willful misconduct (each as finally determined by a court of
competent jurisdiction or as agreed to by the parties);
provided, however, that indemnification for the Escrow Agent's
standard fees and expenses set forth on the fee schedule
attached to this Escrow Agreement as Exhibit B shall be paid
exclusively by BSQUARE, and provided further that the
indemnity agreement contained in this Section 9(e) shall not
apply to amounts paid in settlement of any Escrow Loss if such
settlement is effected without the consent of the
Stockholders' Agent, such consent not to be unreasonably
withheld, conditioned or delayed.
Subject to Section 9(g) below, the Escrow Indemnifying Parties agree to jointly and severally indemnify and hold the Escrow Agent harmless from and against any taxes, additions for late payment, interest, penalties and other expenses, that may be assessed against the Escrow Agent on any payment or other activities under this Escrow Agreement unless any such tax, addition for late payment, interest, penalty or other expense shall arise out of or be caused by the gross negligence, bad faith or willful misconduct of the Escrow Agent (each as finally determined by a court of competent jurisdiction or as agreed to by the parties). To the extent that the Escrow Agent becomes liable for any of the foregoing or to the extent the Stockholders and BSQUARE owe the Escrow Agent money under any of the other provisions of this Escrow Agreement, the Escrow Agent may, but shall not be obligated to, satisfy such liability or obligation from the Escrow Cash and/or Escrow Shares remaining in the Escrow Fund, and the Stockholders and BSQUARE shall be deemed to have granted to the Escrow Agent at the Closing, effective as of the Effective Time or at the time of issuance, as the case may be, a perfected, first-priority security interest in the Escrow Cash and Escrow Shares to secure payment of such taxes. No cash distributions will be made to the Stockholders unless the Escrow Agent is supplied with an original, signed Form W-9 or its equivalent before distribution.
Notwithstanding the joint and several nature of the obligations of the Escrow Indemnifying Parties under Section 9(e) and 9(f), the Stockholders' total collective share of the liability for indemnification of the Escrow Agent under Sections 9(e) and 9(f) of this Escrow Agreement (the "Escrow Indemnification Liability") shall in no event exceed the aggregate value of the Escrow Cash and Escrow Shares then held as part of the Escrow Fund. Any and all amounts to be
paid by the Stockholders for their share of the Escrow Indemnification Liability shall be paid in cash to the Escrow Agent by BSQUARE, and the Stockholders shall reimburse BSQUARE for such amounts pro rata in accordance with each Stockholder's proportionate interest in the Escrow Fund. The Escrow Agent shall deliver such amount of Escrow Cash and/or number of Escrow Shares as reimbursement to BSQUARE as BSQUARE requests in writing, which writing shall set forth the proportionate interest of each Stockholder in such reimbursement. Subject to the foregoing, each of the Escrow Indemnifying Parties shall contribute to the Escrow Indemnification Liability in such proportion as is appropriate to reflect the relative fault of each individual Escrow Indemnifying Party, including up to all such Escrow Indemnification Liability in the case of any tax liability arising from failure to provide correct information with respect to any taxes pursuant to Section 9(f). In all cases where there is no such basis for allocating contribution for such Escrow Indemnification Liability or except as otherwise provided in Section 9(e), one half of the total Escrow Indemnification Liability shall be paid out of the Escrow Cash and/or Escrow Shares and allocated pro rata among each of the Stockholders according to their proportionate interest therein, and one half of the total Escrow Indemnification Liability shall be paid by BSQUARE. Notwithstanding anything to the contrary, nothing in this Escrow Agreement shall be construed as absolving BSQUARE from fully indemnifying the Escrow Agent for any Escrow Loss or otherwise to the extent the Stockholders fail to comply with their indemnification obligations under this Escrow Agreement. The costs and expenses incurred by the Escrow Agent in enforcing any right of indemnification set forth in this Escrow Agreement shall be paid by BSQUARE.
The Escrow Agent may resign at any time with at least 30 days' prior
written notice to BSQUARE and the Stockholders' Agent;
provided, however, that no such resignation shall become
effective until the appointment of a successor escrow agent,
which shall be accomplished as follows. BSQUARE and the
Stockholders' Agent shall use their commercially reasonable
best efforts to mutually agree upon a successor agent within
30 days after receiving such notice. If the parties fail to
agree upon a successor escrow agent within such time, BSQUARE,
with the consent of the Stockholders' Agent (which shall not
be unreasonably withheld), shall have the right to appoint a
successor escrow agent. The successor escrow agent selected in
the preceding manner shall execute and deliver an instrument
accepting such appointment and it shall thereupon be deemed
Escrow Agent under this Escrow Agreement and it shall without
further acts be vested with all the estates, properties,
rights, powers and duties of the predecessor Escrow Agent as
if originally named as Escrow Agent. If no successor escrow
agent is named, the Escrow Agent may apply to a court of
competent jurisdiction for the appointment of a successor
escrow agent or the Escrow Agent may deposit the Escrow Fund
with such court. Upon such deposit or upon the appointment of
a successor Escrow Agent, the predecessor Escrow Agent shall
be discharged from any further duties and liabilities under
this Escrow Agreement. The provisions of this Section 9 and
Section 10, to the extent applicable, shall survive the
resignation or removal of the Escrow Agent or the termination of this Escrow Agreement.
1. The Escrow Agent shall be under no duty to institute or defend
any proceeding unless the subject of such proceeding is part
of its duties under this Escrow Agreement. In the event of any
dispute between the parties to this Escrow Agreement, or
between any of them and any other person, resulting in adverse
claims or demands being made upon any of the Escrow Funds, or
in the event that the Escrow Agent, in good faith, is in doubt
as to what action it should take under this Escrow Agreement,
the Escrow Agent may, at its option, file a suit as
interpleader in a court of appropriate jurisdiction, or refuse
to comply with any claims or demands on it, or refuse to take
any other action under this Escrow Agreement, so long as such
dispute shall continue or such doubt shall exist. The Escrow
Agent shall be entitled to continue so to refrain from acting
until (i) the rights of all parties have been fully and
finally adjudicated by a court of appropriate jurisdiction or
(ii) all differences and doubt shall have been resolved by
agreement among all of the interested persons, and the Escrow
Agent shall have been notified thereof in writing signed by
all such persons. The rights of the Escrow Agent under this
Section are cumulative of all other rights which it may have
by law or otherwise.
(j) The Escrow Agent may consult with and obtain advice from counsel (who may be counsel to a party hereto or an employee of the Escrow Agent).
(k) The Escrow Agent shall not be subject to, nor be required to comply with, or determine if any person or entity has complied with, the Merger Agreement or any other agreement between or among the parties hereto, even though reference thereto may be made in this Escrow Agreement, or to comply with any notice, instruction, direction, request or other communication, paper or document other than as expressly set forth in this Escrow Agreement.
(l) The Escrow Agent may execute or perform any duty,
responsibility or obligation hereunder either directly or through agents,
attorneys, accountants or other experts; provided, however, that nothing in this
Section 9(l) shall relieve the Escrow Agent of any of its obligations hereunder.
(m) The Escrow Agent may engage or be interested in any financial or other transaction with BSQUARE or any party hereto or affiliate thereof, and may act on, or as depositary, trustee or agent for, any committee or body of holders of obligations of such party or affiliate, as freely as if it were not the Escrow Agent hereunder.
(n) The Escrow Agent shall not be obligated to expend or risk its own funds or to take any action which it believes would expose it to expense or liability or to a risk of incurring expense or liability, unless it has been furnished with assurances of repayment or indemnity satisfactory to it.
(o) The Escrow Agent shall not be called upon to advise any person or entity as to any investments with respect to any security, property or funds held in escrow hereunder or the dividends, distributions, income, interest or earnings thereon.
(p) In the event the Escrow Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Escrow Agent hereunder, Escrow Agent, may, in its sole discretion, upon written notice to BSQUARE and the Stockholders' Agent, refrain from taking any action, and shall be fully protected and shall not be liable in any way to BSQUARE, the Stockholders' Agent or any Stockholder or other person or entity for refraining from taking such action, unless the Escrow Agent receives written instructions signed by BSQUARE and the Stockholders' Agent which eliminates such ambiguity or uncertainty to the reasonable satisfaction of Escrow Agent.
10. FEES, EXPENSES AND TAXES.
BSQUARE agrees to pay or reimburse the Escrow Agent for its normal services under this Escrow Agreement in accordance with the fee schedule attached to this Escrow Agreement as Exhibit B. The Escrow Agent shall be entitled to reimbursement upon 30 days' written notice for all reasonable expenses and disbursements incurred in connection with the preparation, negotiation, amendment, modification, waiver, execution, delivery, performance or enforcement of this Escrow Agreement, and payment of any reasonable legal fees and expenses incurred by the Escrow Agent in connection with the resolution of any claim by any party under this Escrow Agreement. Taxes incurred with respect to the earnings of the Escrow Fund and payments made under this Escrow Agreement shall be paid by the party to whom such earnings are distributed (or to be distributed) or to whom such payment is made.
11. MISCELLANEOUS.
AMENDMENTS AND WAIVERS. Any term of this Escrow Agreement may be amended or waived with the written consent of BSQUARE, the Escrow Agent and the Stockholders' Agent, or their respective permitted successors and assigns. Any amendment or waiver effected in accordance with this Section 11(a) shall be binding upon the parties and their respective successors and assigns.
SUCCESSORS AND ASSIGNS. The terms and conditions of this Escrow Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties to this Escrow Agreement. Nothing in this Escrow Agreement, express or implied, is intended to confer upon any party other than the parties to this Escrow Agreement or their respective successors and assigns any rights, remedies, obligations or liabilities under or by reason of this Escrow Agreement, except as expressly provided in this Escrow Agreement.
GOVERNING LAW; JURISDICTION; VENUE. This Escrow Agreement and all acts and transactions pursuant to this Escrow Agreement and the rights and obligations of the parties shall be governed, construed and interpreted in accordance with the laws of the State of Washington, without giving effect to principles of conflicts of
law; provided, however, that all provisions regarding the rights, duties and obligations of the Escrow Agent shall be governed by and construed in accordance with the laws of the state of New York applicable to contracts made and to be performed entirely within that state.
COUNTERPARTS. This Escrow Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.
HEADINGS. The headings used in this Escrow Agreement are used for convenience only and are not to be considered in construing or interpreting this Escrow Agreement.
NOTICES. Any notice required or permitted by this Escrow Agreement shall be in writing and shall be deemed sufficient upon receipt, when delivered personally or by courier, overnight delivery service or confirmed facsimile, or three days after being deposited in the regular mail as certified or registered mail (airmail if sent internationally) with postage prepaid, if such notice is addressed to the party to be notified at such party's address or facsimile number as set forth below, or as subsequently modified by written notice.
If to BSQUARE Corporation or Sub:
BSQUARE Corporation
3150 - 139 th Ave. S.E., Suite 500
Bellevue, Washington 98005-4081
Telephone: (425) 519-5900
Fax: (425) 519-5999
Attention: Joe Notarangelo
with a copy to:
Summit Law Group, PLLC
1505 Westlake Avenue N., Suite 300
Seattle, Washington 98109
Telephone No: (206) 676-7000
Fax No: (206) 676-7001
Attention: Michael J. Erickson
If to the Company:
InfoGation Corporation
10525 Vista Sorento Parkway
San Diego, California 92121
Telephone: (858) 535-9870
Fax: (858) 535-9871
Attention: Kent Pu
with a copy to:
Wilson Sonsini Goodrich & Rosati 650 Page Mill Road Palo Alto, California 94304-1050 Telephone No: (650) 493-9300 Fax No: (650) 493-6811 Attention: Mark J. Casper
If to the Stockholders' Agent:
Kent Pu
5095 Seachase Way
San Diego, CA 92130
(858) 509-0186
If to the Escrow Agent:
Mellon Investor Services, LLC
85 Challenger RD, 2nd Floor
Ridgefield Park, NJ 07660
Attention: Client Administration Facsimile No.: (201) 296-4774 Telephone No.: (201) 329-8748
with a copy to:
Mellon Investor Services, LLC 85 Challenger Road Ridgefield Park, NJ 07660 Attention: General Counsel Facsimile No.: (201) 296-4004 Telephone No.: (201) 296-4926
SEVERABILITY. If one or more provisions of this Escrow Agreement are
held to be unenforceable under applicable law, the parties
agree to renegotiate such provision in good faith, in order to
maintain the economic position enjoyed by each party as
closely as possible to that under the provision rendered
unenforceable. In the event that the parties cannot reach a
mutually agreeable and enforceable replacement for such
provision, then (i) such provision shall be excluded from this
Escrow Agreement, (ii) the balance of the Escrow Agreement
shall be interpreted as if such provision were so excluded and
(iii) the balance of the Escrow Agreement shall be enforceable
in accordance with its terms.
ENTIRE AGREEMENT. This Escrow Agreement, the Merger Agreement (with respect to all parties but the Escrow Agent) and the exhibits and schedules hereto and thereto constitute the entire agreement between the parties pertaining to the subject matter of this Escrow Agreement, and supercedes all prior agreements and understandings (written or oral) of the parties with respect to the subject matter of this Escrow Agreement. Notwithstanding the foregoing, in the event of any conflict between the terms and provisions of this Escrow Agreement and those of the Merger Agreement, the terms and conditions of this Escrow Agreement shall control.
ADVICE OF LEGAL COUNSEL. Each party acknowledges and represents that, in executing this Escrow Agreement, it has had the opportunity to seek advice as to its legal rights from legal counsel and that the person signing on its behalf has read and understood all of the terms and provisions of this Escrow Agreement. This Escrow Agreement shall not be construed against any party by reason of the drafting or preparation of this Escrow Agreement.
[Signature Page Follows]
In witness whereof, the parties have executed this Escrow Agreement as of the date first above written.
BSQUARE Corporation
By:___________________
Name:_________________
Its:__________________
InfoGation Corporation
By:___________________
Name:_________________
Its:__________________
STOCKHOLDERS' AGENT
Kent Pu
MELLON INVESTOR SERVICES LLC, as
Escrow Agent
By:___________________
Name:_________________
Its:__________________
EXHIBIT B
INFOGATION CORPORATION
INVESTOR REPRESENTATION STATEMENT
The undersigned is aware that pursuant to an Agreement and Plan of Merger dated as of March 10, 2002 (the "MERGER AGREEMENT") entered into by and among BSQUARE Corporation, a Washington corporation ("BSQUARE"), Galaxy Surfer, Inc., a Washington corporation and a wholly owned subsidiary of BSQUARE ("SUB"),and InfoGation Corporation, a Delaware corporation ("INFOGATION"), InfoGation will merge (the "MERGER") with and into Sub, and all shares of capital stock of InfoGation will be exchanged for certain consideration as set forth in the Merger Agreement (the "MERGER CONSIDERATION"). Unless otherwise indicated, capitalized terms not defined herein have the meanings set forth in the Merger Agreement.
The undersigned understands that the execution of this Statement is a condition precedent to BSQUARE and Sub's obligation to consummate the Merger and to the receipt by the undersigned of the shares of BSQUARE Common Stock in connection with the Merger (pursuant to the terms and conditions of the Merger Agreement).
The undersigned hereby represents and warrants as follows:
ARTICLE XII INVESTMENT REPRESENTATIONS.
12.1 The BSQUARE Common Stock issued to the undersigned will be acquired for investment for the undersigned's own account, not as a nominee or agent, and not with a view to or for the sale or distribution of any part thereof in violation of the Securities Act of 1933, as amended (the "1933 ACT"), and the undersigned has no present intention of selling, granting any participation in, or otherwise distributing the same. The undersigned represents that the entire legal and beneficial interest of the BSQUARE Common Stock will be held for the undersigned's account only, and neither in whole nor in part for any other person.
12.2 The undersigned understands and acknowledges that the issuance of the BSQUARE Common Stock pursuant to the Merger Agreement is being effected on the basis that the issuance of such securities is exempt from registration pursuant to Section 4(2) of the 1933 Act and exemptions from applicable state securities laws and that BSQUARE's reliance upon such exemptions is predicated upon the undersigned's representations herein.
12.3 The undersigned further represents that (without limiting or affecting the representations and warranties of BSQUARE or Sub under the Merger Agreement) the undersigned: (i) has such knowledge and experience in financial and business matters as to be capable of protecting his, her or its own interests and evaluating the merits and risks of the undersigned's prospective investment in the shares of BSQUARE Common Stock; (ii) has received and reviewed BSQUARE's (A) Annual Report on Form 10-K for the year ended December 31, 2000; (B) Quarterly Reports on Form 10-Q for the quarters ended March 31, 2001, June 30, 2001 and September 30, 2001; (C) Current Reports on Form 8-K dated July 16, 2001, July 12, 2001 and July 6, 2001; (D) 2001 Annual Report to Shareholders and (E) Proxy Statement for 2001 Annual Meeting of Shareholders; and (iii) has received and reviewed all of the information he, she or it has requested from BSQUARE and InfoGation that the undersigned considers necessary or appropriate for
deciding whether to accept the BSQUARE Common Stock and has had the opportunity to ask questions and request information; and (iv) has the ability to bear the economic risks of the undersigned's prospective investment; and (v) is able, without materially impairing his, her or its financial condition, to hold the BSQUARE Common Stock for an indefinite period of time and to suffer a complete loss on such investment.
12.4 Each certificate representing BSQUARE Common Stock issued pursuant to the Merger Agreement to the undersigned, and any shares issued or issuable in respect of any such BSQUARE Common Stock upon any stock split, stock dividend, recapitalization or similar event, shall be stamped or otherwise imprinted with legends in substantially the following form (in addition to any legend required under applicable state securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. THESE SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT.
12.5 The certificates evidencing the BSQUARE Common Stock shall also bear any legend required pursuant to any state, local or foreign law governing such securities.
12.6 The undersigned understands and acknowledges that the BSQUARE Common Stock has not been registered under the 1933 Act, that the BSQUARE Common Stock must be held indefinitely unless subsequently registered under the 1933 Act or an exemption from such registration is available, and that, except as expressly contemplated by the Registration Rights Agreement attached as an exhibit to the Merger Agreement, neither BSQUARE nor InfoGation is under any obligation to register the BSQUARE Common Stock.
12.7 The undersigned acknowledges that the BSQUARE Common Stock shall not be transferable except upon the conditions specified in this Statement, except if:
(a) There is then in effect a registration statement under the 1933 Act covering such proposed disposition and such disposition is made in accordance with such registration statement; or
(b) (A) The transferee has agreed in writing to be bound by the terms of this Statement, including without limitation this Section 1(g), (B) the undersigned shall have notified BSQUARE of the proposed disposition and shall have furnished BSQUARE with a detailed statement of the circumstances surrounding the proposed disposition, and (C) if reasonably requested by BSQUARE, the undersigned shall have furnished BSQUARE with an opinion of counsel, reasonably satisfactory to BSQUARE, that such disposition will not require registration of such shares under the 1933 Act.
12.8 The undersigned is familiar with the provisions of Rule 144,
promulgated under the 1933 Act, which, in substance, permits limited public
resale of "restricted securities" acquired, directly or indirectly, from the
issuer thereof (or from an affiliate of such issuer) in a non-public offering
subject to the satisfaction of certain conditions, including, among other
things: (i) a public trading market then exists for the BSQUARE Common Stock;
(ii) the availability of certain public
information about BSQUARE; (iii) the resale occurring not less than one (1) year after the party has purchased, and made full payment for, within the meaning of Rule 144, the securities to be sold; and (iv) the sale being made through a broker in an unsolicited "broker transaction" or in transactions directly with a market maker (as said term is defined under the Securities Exchange Act of 1934, as amended) and the amount of securities being sold during any three (3) month period not exceeding the specified limitations stated therein, if applicable. The undersigned further understands that at the time the undersigned wishes to sell the shares of BSQUARE Common Stock received from BSQUARE there may be no public market upon which to make such a sale, and that, even if such a public market then exists, BSQUARE may not be satisfying the current public information requirements of Rule 144, and that, in such event, the undersigned would be precluded from selling the shares of BSQUARE Common Stock received from BSQUARE under Rule 144 even if the one (1) year minimum holding period had been satisfied. The undersigned further understands that, in the event all of the applicable requirements of Rule 144 are not satisfied, registration under the 1933 Act, compliance with Regulation A or some other registration exemption would be required to sell the shares of BSQUARE Common Stock received from BSQUARE.
12.9 The undersigned is the sole record and beneficial owner of capital stock of InfoGation ("INFOGATION CAPITAL STOCK") of the amount and type set forth next to his, her or its name on the signature page hereto. Such InfoGation Capital Stock is not subject to any claim, lien, pledge, charge, security interest or other encumbrance or to any rights of first refusal of any kind, and the undersigned has not granted any rights to purchase such shares to any other person or entity. The undersigned has the sole right to transfer such shares. Such shares constitute all of the InfoGation Capital Stock owned, beneficially or of record, by the undersigned, and the undersigned has no other rights to acquire any capital stock of InfoGation except as set forth on the signature page hereto.
12.10 The undersigned has had an opportunity to review with his, her or its own tax advisors the tax consequences to the undersigned of the Merger and the transactions contemplated by the Merger Agreement. The undersigned understands that it must rely solely on his, her or its advisors and not on any statements or representations by BSQUARE, InfoGation or any of their agents with respect to tax matters. The undersigned understands that he, she or it (and not BSQUARE or InfoGation) shall be responsible for his, her or its own tax liability that may arise as a result of the Merger or the transactions contemplated by the Merger Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Statement this _____ day of March, 2002.
NUMBER OF SHARES AND TYPE OF
INFOGATION COMMON STOCK:
(indicate class of stock, i.e.,
common, preferred, etc. and
include options and warrants)
[SIGNATURE PAGE TO INVESTOR REPRESENTATION STATEMENT]
EXHIBIT C
BSQUARE CORPORATION
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "AGREEMENT") is made as of March 13, 2002 by and among BSQUARE Corporation, a Washington corporation (the "PARENT"), and the shareholders listed on EXHIBIT A hereto (the "SHAREHOLDERS"), pursuant to that certain Agreement and Plan of Merger dated as of March 10, 2002 (the "MERGER AGREEMENT") among the Parent, BSQUARE San Diego Corporation, a Washington corporation and wholly owned subsidiary of the Parent (the "SUB"), InfoGation Corporation, a Delaware corporation (the "COMPANY"), and certain shareholders of InfoGation.
ARTICLE XIII DEFINITIONS. AS USED IN THIS AGREEMENT:
13.1 "SHAREHOLDERS" means any person who holds outstanding Registrable Securities which have not been sold to the public, but only if such person (i) was a holder of record of shares of the Company's Series C Convertible Preferred Stock immediately prior to the Effective Time of the Merger (as defined in the Merger Agreement) or (ii) is an assignee or transferee thereof in accordance with Section 7 hereof.
13.2 "REGISTRABLE SECURITIES" means the shares of the Parent Common Stock issued in the Merger to the Shareholders pursuant to the Merger Agreement, in the amounts set forth for each Shareholder on EXHIBIT A attached hereto.
13.3 "SEC" means the Securities and Exchange Commission.
13.4 "SECURITIES ACT" means the Securities Act of 1933, as amended.
Terms not otherwise defined herein have the meanings given to them in the Merger Agreement.
ARTICLE XIV PARENT REGISTRATION.
(a) Notice of Registration. If on or after the Effective Time, the Parent shall determine to register any of its Common Stock by filing with the SEC a registration statement for its own account, other than (i) a registration statement on Form S-4 and/or relating solely to a merger, acquisition or exchange, (ii) a registration statement relating solely to employee benefit plans or (iii) a registration statement relating to a convertible debt transaction, the Parent will:
(i) promptly give to each Shareholder written notice thereof; and
(ii) use its best efforts to include in such registration (and any related qualification under blue sky laws or other statute or regulation), and in any underwriting involved therein, all of the Registrable Securities specified in a written request or requests made within ten (10) days after receipt of such written notice from the Parent by any Shareholder, subject to the underwriter's right to limit the number of securities included in the registration as set forth in Section 2(b) below.
(b) Underwriting. If the registration of which the Parent gives notice is for a registered public offering involving an underwriting, the Parent shall so advise the Shareholders as a part of the written notice given pursuant to Section 2(a)(i). In such event, the right of any Shareholder to registration pursuant to this Section 2 shall be conditioned upon such Shareholder's participation in such underwriting and the inclusion of Registrable Securities in the underwriting to the extent provided herein. All Shareholders proposing to distribute their securities through such underwriting shall (together with the Parent and any other selling shareholders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the managing underwriter selected for such underwriting by the Parent. Notwithstanding any other provision of this Section 2, if the managing underwriter determines in its sole discretion that marketing factors require a limitation of the number of shares to be underwritten, the managing underwriter may limit the number of Registrable Securities to be included in the registration and underwriting pursuant to this Section 2. In such event, the securities so included will be apportioned first to the Parent, then pro rata among the selling shareholders (including the Shareholders) according to the total amount of securities otherwise entitled to be included therein owned by each selling shareholder or in such other proportions as shall mutually be agreed to by such selling shareholders (including the Shareholders). No such reduction shall reduce (a) the securities being offered by the Parent for its own account to be included in the registration and underwriting or (b) the number of Registrable Securities to less than 20% of the securities being sold in the offering. To facilitate the allocation of shares in accordance with the above provisions, the Parent or the underwriters may round the number of shares allocated to any Shareholder or other shareholder to the nearest 100 shares. If any Shareholder or other shareholder disapproves of the terms of any such underwriting, he or she may elect to withdraw therefrom by written notice to the Parent and the managing underwriter. Any securities excluded or withdrawn from such underwriting shall be withdrawn from such registration and shall not be transferred in a public distribution prior to 90 days after the date of the final prospectus included in the registration statement relating thereto.
(c) Right to Terminate, Withdraw or Suspend Registration.
The Parent shall have the right to terminate, withdraw or suspend any
registration initiated by it under this Section 2 either prior to or after the
effectiveness of such registration, whether or not any Shareholder has elected
to include securities in such registration; provided, however, that, subject to
Section 10 hereof, the Shareholders' rights under this Section 2 shall survive
any such termination, withdrawal or suspension of any registration.
ARTICLE XV EXPENSES. THE PARENT SHALL PAY THE EXPENSES INCURRED BY THE PARENT
IN CONNECTION WITH ANY REGISTRATION OF REGISTRABLE SECURITIES PURSUANT TO THIS
AGREEMENT INCLUDING ALL SEC, NASD AND BLUE SKY REGISTRATION AND FILING FEES,
PRINTING EXPENSES, TRANSFER AGENTS' AND REGISTRARS' FEES, AND THE REASONABLE
FEES AND DISBURSEMENTS OF THE PARENT'S OUTSIDE COUNSEL AND INDEPENDENT
ACCOUNTANTS; PROVIDED, HOWEVER, THAT THE SHAREHOLDERS SHALL BE RESPONSIBLE FOR
ALL UNDERWRITING DISCOUNTS AND COMMISSIONS APPLICABLE TO THE SECURITIES SOLD BY SUCH SHAREHOLDERS AND FOR ALL OTHER EXPENSES INCURRED BY THE SHAREHOLDERS, INCLUDING, WITHOUT LIMITATION, THE FEES AND EXPENSES OF THEIR OWN COUNSEL AND ACCOUNTANTS, IF ANY, PROVIDED, FURTHER, HOWEVER, THAT IN THE EVENT THAT THE PARENT TERMINATES ANY REGISTRATION OF REGISTRABLE SECURITIES COMMENCED PURSUANT TO THIS AGREEMENT, THEN IN SUCH EVENT PARENT AGREES TO REIMBURSE THE SHAREHOLDERS FOR ANY REASONABLE EXPENSES INCURRED BY THE SHAREHOLDERS IN CONNECTION WITH SUCH REGISTRATION PRIOR TO THE DATE OF TERMINATION, UP TO A MAXIMUM AGGREGATE AMOUNT FOR ALL SELLING SHAREHOLDERS COLLECTIVELY OF $10,000.
ARTICLE XVI ADDITIONAL OBLIGATIONS OF THE PARENT. IN THE CASE OF EACH
REGISTRATION EFFECTED BY THE PARENT PURSUANT TO THIS AGREEMENT, THE PARENT WILL KEEP EACH SHAREHOLDER ADVISED IN WRITING AS TO THE INITIATION OF EACH REGISTRATION AND AS TO THE COMPLETION THEREOF. AT ITS EXPENSE, THE PARENT WILL
USE ITS BEST EFFORTS TO:
16.1 Keep such registration effective for a period of 60 days or until the Shareholder or Shareholders have completed the distribution described in the registration statement relating thereto, whichever first occurs;
16.2 Prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection with such registration statement as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement, subject to Section 4(a) above;
16.3 Furnish such number of prospectuses and other documents incident thereto as a Shareholder from time to time may reasonably request;
16.4 Notify each seller of Registrable Securities covered by such registration statement at any time when a prospectus relating thereto is required to be delivered under the Securities Act of the happening of any event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in the light of the circumstances then existing, prepare and furnish to such seller a reasonable number of copies of a supplement or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such shares, such prospectus shall not include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in the light to the circumstances then existing;
16.5 Register or qualify the securities covered by said registration statement under the securities or "blue sky" laws of such jurisdictions as any selling Shareholder may reasonably
request, provided that the Parent shall not be required to register or qualify the securities in any jurisdictions which require it to qualify to do business therein;
16.6 Cause all such Registrable Securities to be listed on each securities exchange or quotation system on which similar securities issued by the Parent are then listed or quoted;
16.7 Otherwise comply with the securities laws of the United States and other applicable jurisdictions and all applicable rules and regulations of the SEC and comparable governmental agencies in other applicable jurisdictions; and
16.8 Otherwise cooperate with the underwriter or underwriters, the SEC and other regulatory agencies and take all actions and execute and deliver or cause to be executed and delivered all documents necessary to effect the registration of any Registrable Securities under this Agreement.
ARTICLE XVII INDEMNIFICATION. IN THE EVENT OF ANY OFFERING REGISTERED
PURSUANT TO THIS AGREEMENT:
17.1 By the Parent. The Parent will indemnify each Shareholder with respect to any registration effected pursuant to this Agreement against all expenses, claims, losses, damages and liabilities (or actions in respect thereof), including any of the foregoing incurred in settlement of any litigation, commenced or threatened, arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any registration statement, or any amendment or supplement thereto, or prospectus related thereto, incident to any such registration, or based on any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein, not misleading, or any violation by the Parent of any rule or regulation promulgated under the Securities Act, or state securities laws, applicable to the Parent in connection with any such registration, and will reimburse such Shareholder for any legal and any other expenses reasonably incurred as such expenses are incurred in connection with investigating, preparing or defending any such claim, loss, damage, liability or action, provided that the Parent will not be liable in any such case (i) to the extent that any such claim, loss, damage, liability or expense arises out of or is based in any untrue statement or omission or alleged untrue statement or omission, made in reliance upon and in conformity with written information furnished to the Parent by such Shareholder provided for the purpose of inclusion in the registration statement or (ii) if a copy of the final prospectus relating to any registration statement (as then amended or supplemented if the Parent shall have furnished any amendments or supplements thereto) (the "FINAL PROSPECTUS") was not sent or given by or on behalf of such Shareholder to a purchaser of the Shareholder's Registrable Securities, if required by law so to have been delivered, at or prior to the written confirmation of the sale of the Registrable Securities to such purchaser, and if the Final Prospectus (as so amended or supplemented) would have cured the defect giving rise to such loss, claim, damage or liability; provided that Parent notifies Shareholder prior to such sale that the prospectus in its then current form contains a material misstatement or omission.
17.2 By the Shareholders. Each Shareholder will severally indemnify the Parent, each of its directors, officers, employees, agents and each person who controls the Parent within the
meaning of Section 15 of the Securities Act, against all claims, losses, damages and liabilities (or actions in respect thereof) arising out of or based on any untrue statement (or alleged untrue statement) or a material fact contained in any registration statement, or any amendment or supplement thereto, or prospectus related thereto, or any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but only to the extent that such untrue statement (or alleged untrue statement) or omission (or alleged omission) is made in such registration statement or prospectus in reliance upon and in conformity with written information furnished to the Parent by such Shareholder provided for the purpose of inclusion in the registration statement and will reimburse the Parent, the remaining Shareholders, such directors, officers, employees, agents and/or control persons for any legal or any other expenses reasonably incurred in connection with investigating or defending any such claim, loss, damage, liability or action.
17.3 Procedures. Each party entitled to indemnification under this
Section 5 (the "INDEMNIFIED PARTY") shall give notice to the party required to
provide indemnification (the "INDEMNIFYING PARTY") promptly after such
Indemnified Party has notice of any claim as to which indemnity may be sought,
and shall permit the Indemnifying Party to assume the defense of any such claim
or any litigation resulting therefrom, and the Indemnified Party may participate
in such defense at such party's expense, and provided further that the failure
of any Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Agreement, but only to the
extent that the Indemnifying Party's ability to defend against such claim or
litigation is impaired as a result of such failure to give notice. No
Indemnifying Party, in the defense of any such claim or litigation, shall,
except with the consent of each Indemnified Party, consent to entry of any
judgment or enter any settlement which does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such Indemnified Party of a
release from all liability in respect to such claim or litigation. Whether or
not the defense of any claim or action is assumed by the Indemnifying Party,
such Indemnifying Party will not be subject to any liability for any settlement
without its consent.
17.4 Contribution. If the indemnification provided for in Sections 5(a) and (b) above for any reason is held by a court of competent jurisdiction to be unavailable to an indemnified party in respect of any losses, claims, damages, expenses or liabilities referred to therein, then each indemnifying party under this Section 5, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, expenses or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Parent, the other selling shareholders and the underwriters from the offering of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Parent, the other selling shareholders and the underwriters in connection with the statements or omissions which resulted in such losses, claims, damages, expenses or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Parent, the selling shareholders and the underwriters shall be deemed to be in the same respective proportions that the net proceeds from the offering (before deducting expenses) received by the Parent and the selling shareholders and the underwriting discount received
by the underwriters, in each case as set forth in the table on the cover page of the applicable prospectus, bear to the aggregate public offering price of the Registrable Securities. The relative fault of the Parent, the selling shareholders and the underwriters shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Parent, the selling shareholders or the underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Parent and the selling Shareholders agree that it would not be just and equitable if contribution pursuant to this Section 5(d) were determined by pro rata or per capita allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph. No person found guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not found guilty of such fraudulent misrepresentation.
17.5 Survival. The obligations of the Parent and the Shareholders under this Section 5 shall survive the completion of any offering of stock in a registration statement effected under this Agreement.
ARTICLE XVIII SUSPENSION. IN THE CASE OF A REGISTRATION FOR THE SALE OF
REGISTRABLE SECURITIES, UPON RECEIPT OF ANY NOTICE (A "SUSPENSION NOTICE") FROM
THE PARENT OF THE HAPPENING OF ANY EVENT WHICH MAKES ANY STATEMENT MADE IN THE
REGISTRATION STATEMENT OR RELATED PROSPECTUS UNTRUE OR WHICH REQUIRES THE MAKING
OF ANY CHANGES IN SUCH REGISTRATION STATEMENT OR PROSPECTUS SO THAT THEY WILL
NOT CONTAIN ANY UNTRUE STATEMENT OF A MATERIAL FACT OR OMIT TO STATE ANY
MATERIAL FACT REQUIRED TO BE STATED THEREIN OR NECESSARY TO MAKE THE STATEMENTS
THEREIN NOT MISLEADING, EACH SHAREHOLDER WHO IS A HOLDER OF REGISTRABLE
SECURITIES REGISTERED UNDER SUCH REGISTRATION STATEMENT SHALL FORTHWITH
DISCONTINUE DISPOSITION OF SUCH REGISTRABLE SECURITIES PURSUANT TO SUCH
REGISTRATION STATEMENT (A "SUSPENSION") UNTIL SUCH SHAREHOLDER'S RECEIPT OF THE
COPIES OF THE SUPPLEMENTED OR AMENDED PROSPECTUS OR UNTIL IT IS ADVISED IN
WRITING (THE "ADVICE") BY THE PARENT THAT THE USE OF THE PROSPECTUS MAY BE
RESUMED, AND HAS RECEIVED COPIES OF ANY ADDITIONAL OR SUPPLEMENTAL FILINGS WHICH
ARE INCORPORATED BY REFERENCE IN THE PROSPECTUS. IN THE EVENT OF A SUSPENSION,
THEN LENGTH OF TIME IN WHICH PARENT IS REQUIRED TO KEEP THE REGISTRATION
EFFECTIVE UNDER SECTION 4(a) OF THIS AGREEMENT SHALL BE EXTENDED BY THE NUMBER
OF DAYS OF THE SUSPENSION, AND IN NO EVENT SHALL ANY SUSPENSION LAST MORE THAN
TWENTY (20) DAYS. IN THE EVENT THAT THE PARENT SHALL GIVE ANY SUSPENSION NOTICE,
THE PARENT SHALL USE ITS BEST EFFORTS AND TAKE SUCH ACTIONS AS ARE NECESSARY TO
RENDER THE ADVICE AND END THE SUSPENSION PERIOD AS PROMPTLY AS PRACTICABLE.
ARTICLE XIX NON-ASSIGNMENT OF REGISTRATION RIGHTS. THE RIGHTS TO CAUSE THE
PARENT TO REGISTER REGISTRABLE SECURITIES PURSUANT TO THIS AGREEMENT MAY NOT BE
ASSIGNED BY THE SHAREHOLDERS TO ANY PERSON OR ENTITY EXCEPT (a) A TRANSFER BY
WILL OR INTESTACY UPON THE DEATH OF ANY SHAREHOLDER, (b) ESTATE PLANNING
TRANSFERS CONSISTING OF GIFTS TO THE SPOUSE OR ISSUE OF THE TRANSFEREE AND
TRANSFERS TO TRUSTS FOR THE BENEFIT OF THE SPOUSE OR ISSUE OF THE TRANSFEREE,
(c) A TRANSFER TO ANY TRANSFEREE OR ASSIGNEE WHO IS A PARTNER OR MEMBER (OR
RETIRED PARTNER OR MEMBER) OF A SHAREHOLDER OR THE ESTATE OF SUCH PARTNER OR
MEMBER (OR RETIRED PARTNER OR MEMBER) OR (d) A SHAREHOLDER THAT IS A
CORPORATION, LIMITED LIABILITY COMPANY OR PARTNERSHIP MAY ASSIGN THE RIGHTS TO
CAUSE THE PARENT TO REGISTER REGISTRABLE SECURITIES PURSUANT TO THIS
AGREEMENT TO ANY WHOLLY OWNED SUBSIDIARY OF SUCH SHAREHOLDER.
ARTICLE XX INFORMATION BY HOLDER. EACH SHAREHOLDER WHO IS A HOLDER OF
REGISTRABLE SECURITIES SHALL FURNISH TO THE PARENT SUCH INFORMATION REGARDING
SUCH SHAREHOLDER AND THE DISTRIBUTION PROPOSED BY SUCH SHAREHOLDER AS THE PARENT MAY REASONABLY REQUEST IN WRITING AND AS SHALL BE REASONABLY REQUIRED IN CONNECTION WITH ANY REGISTRATION, QUALIFICATION OR COMPLIANCE REFERRED TO IN
THIS AGREEMENT.
ARTICLE XXI AMENDMENT OF REGISTRATION RIGHTS. THIS AGREEMENT MAY BE AMENDED BY THE HOLDERS OF A MAJORITY OF THE REGISTRABLE SECURITIES AND THE PARENT AT ANY TIME BY EXECUTION OF AN INSTRUMENT IN WRITING SIGNED ON BEHALF OF EACH OF SUCH PARTIES.
ARTICLE XXII TERMINATION. THE REGISTRATION RIGHTS SET FORTH IN THIS AGREEMENT
SHALL TERMINATE AS TO ANY SHAREHOLDER AT SUCH TIME AS ALL OF THE REGISTRABLE
SECURITIES THEN HELD BY SUCH SHAREHOLDER CAN BE SOLD BY SUCH SHAREHOLDER IN A
SINGLE 3-MONTH PERIOD IN ACCORDANCE WITH RULE 144 UNDER THE SECURITIES ACT.
ARTICLE XXIII GRANT OF ADDITIONAL REGISTRATION RIGHTS. THE SHAREHOLDERS ACKNOWLEDGE THAT THE PARENT MAY ACQUIRE OTHER COMPANIES OR ISSUE ADDITIONAL SECURITIES AND IN THE COURSE OF SUCH ACQUISITIONS OR ISSUANCES MAY GRANT THE EQUITY OWNERS THEREOF REGISTRATION RIGHTS WITH RESPECT TO THEIR SHARES OF THE PARENT ON TERMS WHICH WOULD BE NEGOTIATED AT SUCH TIME AND MAY BE MATERIALLY DIFFERENT THAN THE TERMS OF THIS AGREEMENT, AND MAY BE SUPERIOR TO THE RIGHTS GRANTED TO THE SHAREHOLDERS HEREUNDER.
ARTICLE XXIV NOTICES. ALL NOTICES AND OTHER COMMUNICATIONS REQUIRED OR PERMITTED
HEREUNDER SHALL BE IN WRITING AND SHALL BE DEEMED EFFECTIVELY GIVEN UPON
DELIVERY TO THE PARTY TO BE NOTIFIED IN PERSON OR BY COURIER SERVICE OR FIVE
DAYS AFTER DEPOSIT WITH THE UNITED STATES MAIL, POSTAGE PREPAID, ADDRESSED (a)
IF TO THE SHAREHOLDERS, AT THE SHAREHOLDERS' RESPECTIVE ADDRESSES AS SET FORTH
IN EXHIBIT A HERETO OR (b) IF TO THE PARENT, AT 3150 - 139TH AVENUE N.E., SUITE
500, BELLEVUE, WA 98005, ATTENTION: CORPORATE SECRETARY.
ARTICLE XXV GOVERNING LAW; INTERPRETATION. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE AND GOVERNED FOR ALL PURPOSES BY THE LAWS OF THE STATE OF WASHINGTON
WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW PROVISION OR RULE
(WHETHER OF THE STATE OF WASHINGTON OR ANY OTHER JURISDICTION) THAT WOULD CAUSE
THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF
WASHINGTON. THE SHAREHOLDERS HEREBY CONSENT TO THE EXCLUSIVE JURISDICTION AND
VENUE OF THE STATE AND FEDERAL COURTS SITTING IN KING COUNTY, WASHINGTON FOR ALL
MATTERS AND ACTIONS ARISING UNDER THIS AGREEMENT.
ARTICLE XXVI SEVERABILITY; SURVIVAL. IF ANY PORTION OF THIS AGREEMENT IS HELD BY A COURT OF COMPETENT JURISDICTION TO CONFLICT WITH ANY FEDERAL, STATE OR LOCAL LAW, OR TO BE OTHERWISE INVALID OR UNENFORCEABLE, SUCH PORTION OF THIS AGREEMENT SHALL BE OF NO FORCE OR EFFECT, AND THIS AGREEMENT SHALL OTHERWISE REMAIN IN FULL FORCE AND EFFECT AND BE CONSTRUED AS IF SUCH PORTION HAD NOT BEEN INCLUDED
IN THIS AGREEMENT.
ARTICLE XXVII ENTIRE AGREEMENT. THIS AGREEMENT CONTAINS THE ENTIRE AGREEMENT AND UNDERSTANDING OF THE PARTIES AND SUPERSEDES ALL PRIOR DISCUSSIONS, AGREEMENT AND UNDERSTANDINGS RELATING TO THE SUBJECT MATTER HEREOF.
ARTICLE XXVIII COUNTERPARTS. THIS AGREEMENT MAY BE EXECUTED IN ONE OR MORE
COUNTERPARTS, ALL OF WHICH SHALL BE CONSIDERED ONE AND THE SAME AGREEMENT AND
SHALL BECOME EFFECTIVE WHEN ONE OR MORE COUNTERPARTS HAVE BEEN SIGNED BY EACH OF THE PARTIES AND DELIVERED TO THE OTHER PARTY, IT BEING UNDERSTOOD THAT ALL PARTIES NEED NOT SIGN THE SAME COUNTERPART.
IN WITNESS WHEREOF, the Parent and the Shareholders have caused this Agreement to be executed as of the date first above written.
BSQUARE CORPORATION
By:_________________________________________
Signature of Authorized Signatory
SHAREHOLDERS
BRIDGEWEST, LLC
By:_________________________________________
Signature of Authorized Signatory
NEXTREME VENTURES LLC
By:________________________________________
Signature of Authorized Signatory
BARAKA TRUST
By:_________________________________________
Signature of Authorized Signatory
AMIRRA INVESTMENTS, LTD.
By:_________________________________________
Signature of Authorized Signatory
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
SECOND AMENDMENT
THIS SECOND AMENDMENT (the "Amendment") is made and entered into as of the _____ day of __________________, 2000, by and between EOP-SUNSET NORTH BELLEVUE, L.L.C., A WASHINGTON LIMITED LIABILITY COMPANY ("Landlord") and BSQUARE CORPORATION, A WASHINGTON CORPORATION ("Tenant").
WITNESSETH
A. WHEREAS, Landlord (as successor in interest to WRC Sunset North LLC, a Washington limited liability company) and Tenant are parties to that certain lease dated as of January 15, 1999, as amended by instruments dated October 19, 1999 and July 27, 1999 (the "First Amendment) (collectively the "Lease"), for space currently designated in the Lease as containing 125,490 rentable square feet (approximately 113,054 usable square feet) on the 2nd, 3rd, 4th and 5th floors of building 4 (the "Initial Premises") located at the Northeast corner of 139th Avenue Southeast and Southeast 32nd Street, Bellevue, Washington and commonly known as Sunset North Corporate Campus (the "Building"); and
B. WHEREAS, Landlord and Tenant have remeasured the Initial Premises as required by Article 5.A of the Lease, and Landlord has remeasured the Buildings, and Landlord and Tenant now wish to amend the Lease to properly reflect the Rentable Area and usable area of the Initial Premises and the Rentable Area of the Buildings; and
C. WHEREAS, Tenant has requested that additional space containing approximately 25,803 rentable square feet described as Floor 1 of Building 4, as shown on Exhibit A hereto (the "Expansion Space") be added to the Initial Premises and that the Lease be appropriately amended and Landlord is willing to do the same on the following terms and conditions.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant agree as follows:
I. REMEASUREMENT OF INITIAL PREMISES. Pursuant to Article 5.A of the Lease, the Initial Premises have been remeasured and Landlord and Tenant agree that the Rentable Area of the Initial Premises is 123,684 square feet and that the usable area of the Initial Premises is 109,028 square feet.
II. REMEASUREMENT OF THE BUILDINGS, The Buildings (as defined in Section
1.A.3 of the Lease) have been remeasured and Landlord and Tenant agree
that the Rentable Area of the Buildings is 465,013 rentable square
feet.
III. MONTHLY BASE RENTAL. Monthly Base Rental for the Initial Premises shall be based on the revised rentable area of the Premises and Article 1.A.2 of the Lease is hereby modified to provide that the monthly Base Rental for the Initial Premises shall be payable as follows:
RENTABLE ANNUAL RATE ANNUAL MONTHLY PERIOD SQUARE FEET PER SQUARE FOOT BASE RENTAL BASE RENTAL ------ ----------- --------------- ----------- ----------- 10/01/99- 94,182 $20.00 N/A $156,970.06 (actual 10/14/99 payment is $69,822.12)* 10/15/99- 123,684 $20.00 N/A $181,713.13 (actual 10/31/99 payment is $ 113,044.52)* 11/01/99- 123,684 $20.00 N/A $ 206,140.00 09/30/00 10/01/00- 123,684 $21.00 $2,597,364.00 $ 216,447.00 09/30/02 10/01/02- 123,684 $22.00 $2,721,048.00 $ 226,754.00 09/30/04 10/01/04- 123,684 $23.00 $2,844,732.00 $ 237,061.00 09/30/06 10/01/06- 123,684 $24.00 $2,968,416.00 $ 247,368.00 09/30/08 10/01/08- 123,684 $25.00 $3,092,100.00 $ 257,675.00 09/30/09 |
*Prorated based upon number of days at referenced rentable area.
There are two commencement dates for the Initial Premises. The portion of the Initial Premises on floors 5, 4 & 3, consisting of 94,182 rentable square feet commenced on October 1, 1999 and the portion of the Initial Premises on the second floor, consisting of 31,921 rentable square feet commenced on October 15, 1999.
All such Base Rental shall be payable by Tenant in accordance with the terms of Article 7 of the Lease.
IV. TENANT'S PRO RATA SHARE. Tenant's Pro Rata Share for the Initial Premises shall be:
A. 20.2536% with respect to the period commencing as of October 1, 1999 and expiring October 14, 1999; and
B. 26.5980% with respect to the period commencing as of October 15, 1999 and continuing thereafter during the Lease Term.
V. BASIC COSTS AND TAXES. Tenant shall pay for Tenant's Pro Rata Share of Basic Costs and Taxes applicable to the Premises in accordance with the terms of the Lease.
VI. ALLOWANCE. The Allowance payable to Tenant pursuant to Section B of Article G of the Lease and Article II of Exhibit D to the Lease is decreased to a total of $3,287,194.20 ($30.15 per usable square foot multiplied by 109,028 usable square feet in the Premises).
VII. RECONCILIATION. Within thirty (30) days following the full execution of this Amendment or as soon thereafter as reasonably possible, Landlord shall deliver to Tenant a reconciliation of the net amount owed by one to the other as a result of the increased Rent payable by Tenant to Landlord and the increased Allowance payable by Landlord to Tenant. Such net amount shall be paid within fifteen (15) days after delivery of such reconciliation to Tenant.
VIII. EXPANSION AND EFFECTIVE DATE. Effective as of the Expansion Effective Date (defined below), the Initial Premises, as defined above, is increased from 123,684 rentable square feet on the 2nd, 3rd, 4th and 5th floors to 149,487 rentable square feet on the 1st, 2nd, 3rd, 4th and 5th floors by the addition of the Expansion Space, and from and after the Expansion Effective Date, the Initial Premises and the Expansion Space, collectively, shall be deemed the Premises, as defined in the Lease. The Lease Term for the
Expansion Space shall commence on the Expansion Effective Date and end on the Termination Date. The Expansion Space is subject to all the terms and conditions of the Lease except as expressly modified herein and except that Tenant shall not be entitled to receive any allowances, abatements or other financial concessions granted with respect to the Initial Premises unless such concessions are expressly provided for herein with respect to the Expansion Space.
A. The Expansion Effective Date shall be January 1, 2001.
B. The Expansion Effective Date shall be delayed to the extent that Landlord fails to deliver possession of the Expansion Space for any other reason (other than delays caused by Tenant), including but not limited to, holding over by prior occupants. Any such delay in the Expansion Effective Date shall not subject Landlord to any liability for any loss or damage resulting therefrom. If the Expansion Effective Date is delayed, the Termination Date under the Lease shall not be similarly extended.
IX. BASE RENTAL. In addition to Tenant's obligation to pay Base Rental for the Initial Premises, Tenant shall pay Landlord Base Rental for the Expansion Space as follows:
ANNUAL RATE ANNUAL MONTHLY PERIOD PER SQUARE FOOT BASE RENTAL BASE RENTAL ------ --------------- ----------- ----------- January 1, 2001- $31.00 $799,893.00 $66,657.75 December 31, 2001 January 1, 2002- $32.00 $825,696.00 $68,808.00 December 31, 2003 January 1, 2004- $33.00 $851,499.00 $70,958.25 December 31, 2005 January 1, 2006- $34.00 $877,302.00 $73,108.50 December 31, 2007 January 1, 2008- $35.00 $903,105.00 $75,258.75 September 30, 2009 |
All such Base Rental shall be payable by Tenant in accordance with the terms of the Lease.
X. ADDITIONAL SECURITY DEPOSIT. Upon Tenant's execution hereof, Tenant shall pay Landlord the sum of $270,000.00 (the "Additional Security Amount") which is added to and becomes part of the Security Deposit held by Landlord as provided under Section 9.A of the Lease as security for payment of Rent and the performance of the other terms and conditions of the Lease by Tenant. At least 50% of the Additional Security Amount shall be in the form of cash. A maximum of 50% of the Additional Security Amount may be in the form of an irrevocable letter of credit, which letter of credit shall be in form and substance satisfactory to Landlord and shall otherwise conform to the letter of credit requirements provided in Section 9.C of the Lease.
XI. TENANT'S PRO RATA SHARE. For the period commencing with the Expansion Effective Date and ending on the Termination Date, Tenant's Pro Rata Share for the Expansion Space is 5.5489%.
XII. BASIC COSTS AND TAXES. For the period commencing with the Expansion Effective Date and ending on the Termination Date, Tenant shall pay for Tenant's Pro Rata Share of Basic Costs and Taxes applicable to the Expansion Space in accordance with the terms of the Lease.
XIII. IMPROVEMENTS TO EXPANSION SPACE.
A. CONDITION OF EXPANSION SPACE. Tenant has inspected the Expansion Space and agrees to accept the same "as is" without any agreements, representations, understandings or obligations on the part of Landlord to perform any alterations, repairs or improvements, except as may be expressly provided otherwise in this Amendment.
B. RESPONSIBILITY FOR IMPROVEMENTS TO EXPANSION SPACE. Tenant may perform improvements to the Expansion Space in accordance with the Work Letter attached hereto as EXHIBIT B and Tenant shall be entitled to an improvement allowance in connection with such work as more fully described in EXHIBIT B.
C. RESPONSIBILITY FOR CAT5E AND CAT3 CABLING WITHIN EXPANSION SPACE. Tenant has agreed to accept the Cat5E and Cat3 cabling currently in place in the Expansion Space and Tenant agrees that such cabling shall be considered Tenant's personal property, which Landlord shall have the right, at its sole option, to require Tenant to remove on the Termination Date or upon earlier termination of the Lease or Tenant's right of possession thereunder.
XIV. EARLY ACCESS TO EXPANSION SPACE. During any period that Tenant shall be permitted to enter the Expansion Space prior to the Expansion Effective Date (e.g., to perform alterations or improvements, if any), Tenant shall comply with all terms and provisions of the Lease, except those provisions requiring payment of Base Rental or Additional Base Rental as to the Expansion Space. If Tenant takes possession of the Expansion Space prior to the Expansion Effective Date for any reason whatsoever (other than the performance of work in the Expansion Space with Landlord's prior approval), such possession shall be subject to all the terms and conditions of the Lease and this Amendment, and Tenant shall pay Base Rental and Additional Base Rental as applicable to the Expansion Space to Landlord on a per diem basis for each day of occupancy prior to the Expansion Effective Date.
XV. PARKING. In accordance with the provisions of Section 5(f) of the
Lease, Landlord shall provide Tenant with an additional ninety-four
(94) unassigned parking spaces in the parking garage serving the
Building from and after the Expansion Effective Date. The rate for
monthly parking for such spaces shall be as set forth in Section 5(f)
of the Lease.
XVI. MISCELLANEOUS.
A. This Amendment sets forth the entire agreement between the parties with respect to the matters set forth herein. There have been no additional oral or written representations or agreements. Under no circumstances shall Tenant be entitled to any Rent abatement, improvement allowance, leasehold improvements, or other work to the Expansion Space, or any similar economic incentives that may have been provided Tenant in connection with entering into the Lease, unless specifically set forth in this Amendment.
B. Except as herein modified or amended, the provisions, conditions and terms of the Lease shall remain unchanged and in full force and effect.
C. In the case of any inconsistency between the provisions of the Lease and this Amendment, the provisions of this Amendment shall govern and control.
D. Submission of this Amendment by Landlord is not an offer to enter into this Amendment but rather is a solicitation for such an offer by Tenant. Landlord shall not be bound by this Amendment until Landlord has executed and delivered the same to Tenant.
E. The capitalized terms used in this Amendment shall have the same definitions as set forth in the Lease to the extent that such capitalized terms are defined therein and not redefined in this Amendment.
F. Tenant hereby represents to Landlord that Tenant has dealt with no broker other than Rob Leibsohn of Leibsohn & Company in connection with this Amendment. Tenant agrees to indemnify and hold Landlord, its members, principals, beneficiaries, partners, officers, directors, employees, mortgagee(s) and agents, and the respective principals and members of any such agents (collectively, the "Landlord Related Parties") harmless from all claims of any brokers claiming to have represented Tenant in connection with this Amendment. Landlord hereby represents to Tenant that Landlord has dealt with no broker other than Suzanne Baugh of Wright Runstad & Company in connection with this Amendment. Landlord agrees to indemnify and hold Tenant, its members, principals, beneficiaries, partners, officers, directors, employees, and agents, and the respective principals and members of any such agents (collectively, the "Tenant Related Parties") harmless from all claims of any other brokers claiming to have represented Landlord in connection with this Amendment.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Amendment as of the day and year first above written
LANDLORD: EOP-SUNSET NORTH BELLEVUE, L.L.C., A
WASHINGTON LIMITED LIABILITY COMPANY
By: EOP-Sunset North, L.L.C., a Delaware limited liability company, its managing member By: EOP Operating Limited Partnership, a Delaware limited partnership, its sole member By: Equity Office Properties Trust, a Maryland real estate investment trust, its general partner By:________________________________ Name: Pat Callahan Title: Senior Vice President - Seattle Region |
TENANT: BSQUARE CORPORATION, A WASHINGTON
CORPORATION
By:___________________________________________
Name:_________________________________________
Title:________________________________________
THIS PAGE IS REQUIRED IF PROPERTY IS IN DELAWARE,
MICHIGAN, OHIO, UTAH, WASHINGTON, D.C. OR WASHINGTON STATE
LANDLORD ACKNOWLEDGMENT
STATE OF ____________________)
COUNTY OF ___________________)Section
I, the undersigned, a Notary Public, in and for the County and State aforesaid, do hereby certify that ____________________________, personally known to me to be the Senior Vice President of Equity Office Properties Trust, a Maryland real estate investment trust, and personally known to me to be the same person whose name is subscribed to the foregoing instrument, appeared before me this day in person and acknowledged that as such officer of said entity being authorized so to do, (s)he executed the foregoing instrument on behalf of said entity, by subscribing the name of such entity by himself/herself as such officer, as a free and voluntary act, and as the free and voluntary act and deed of said entity, for the uses and purposes therein set forth.
GIVEN under my hand and official seal this ___ day of__________, 2000.
My Commission Expires: __________________
TENANT ACKNOWLEDGMENT
CORPORATION
STATE OF _____________________)
COUNTY OF ____________________)Section:
On this the ____ day of ___________________, 2000, before me a Notary Public duly authorized in and for the said County in the State aforesaid to take acknowledgments personally appeared _______________________________________ known to me to be ______________ President of ______________________________, one of the parties described in the foregoing instrument, and acknowledged that as such officer, being authorized so to do, (s)he executed the foregoing instrument on behalf of said corporation by subscribing the name of such corporation by himself/herself as such officer and caused the corporate seal of said corporation to be affixed thereto, as a free and voluntary act, and as the free and voluntary act of said corporation, for the uses and purposes therein set forth.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
My Commission Expires: __________________
EXHIBIT A
Floor Plan of Expansion Space
EXHIBIT B
TENANT WORKLETTER
This Exhibit is attached to and made a part of the Amendment dated as of _________, 2000, by and between EOP-SUNSET NORTH BELLEVUE, L.L.C., A WASHINGTON LIMITED LIABILITY COMPANY ("Landlord") and BSQUARE CORPORATION, a Washington corporation ("Tenant") for space in the Building located at the Northeast corner of 139th Avenue Southeast and Southeast 32nd Street, Bellevue, Washington and commonly known as the Sunset North Corporate Campus
As used in this Workletter, the "Premises" shall be deemed to mean the Expansion Space, as defined in the attached Amendment.
I. ALTERATIONS AND ALLOWANCE.
A. Tenant, following the delivery of the Premises by Landlord and the full and final execution and delivery of the Amendment to which this Exhibit is attached and all prepaid rental and security deposits required under such agreement (if any), shall have the right to perform alterations and improvements in the Premises (the "Initial Alterations"). Notwithstanding the foregoing, Tenant and its contractors shall not have the right to perform Initial Alterations in the Premises unless and until Tenant has complied with all of the terms and conditions of Article 13 of the Lease, including, without limitation, approval by Landlord of the final plans for the Initial Alterations and the contractors to be retained by Tenant to perform such Initial Alterations (which contractors shall be selected by Tenant from Landlord's list of preapproved contractors). Tenant shall be responsible for all elements of the design of Tenant's plans (including, without limitation, compliance with law, functionality of design, the structural integrity of the design, the configuration of the premises and the placement of Tenant's furniture, appliances and equipment), and Landlord's approval of Tenant's plans shall in no event relieve Tenant of the responsibility for such design. Landlord's approval of the contractors to perform the Initial Alterations shall not be unreasonably withheld.
B. Provided Tenant is not in default under the Lease (as so amended by the Amendment), Landlord agrees to contribute the sum of $164,881.17 (the "Expansion Allowance") toward the cost of performing the Initial Alterations in preparation of Tenant's occupancy of the Premises.
II. The Expansion Allowance may only be used for the cost of preparing
design and construction documents and mechanical and electrical plans
for the Initial Alterations and for hard costs in connection with the
Initial Alterations. The Expansion Allowance, less a 10% retainage
(which retainage shall be payable as part of the final draw), shall be
paid to Tenant or, at Landlord's option, to the order of the general
contractor that performs the Initial Alterations, in periodic
disbursements within 30 days after receipt of the following
documentation: (i) an application for payment and sworn statement of
contractor substantially in the form of AIA Document G-702 covering all
work for which disbursement is to be made to a date specified therein;
(ii) a certification from an AIA architect substantially in the form of
the Architect's Certificate for Payment which is located on AIA
Document G702, Application and Certificate of Payment; (iii)
Contractor's, subcontractor's and material supplier's waivers of liens
which shall cover all Initial Alterations for which disbursement is
being requested and all other statements and forms required for
compliance with the mechanics' lien laws of the state in which the
Premises is located, together with all such invoices, contracts, or
other supporting data as Landlord or Landlord's Mortgagee may
reasonably require; (iv) a cost breakdown for each trade or
subcontractor performing the Initial Alterations; (v) plans and
specifications for the Initial Alterations, together with a certificate
from an AIA architect that such plans and specifications comply in all
material respects with all laws affecting the Building, Property and
Premises; (vi) copies of all construction contracts for the Initial
Alterations, together with copies of all change orders, if any; and
(vii) a request to disburse from Tenant containing an approval by
Tenant of the work done and a good faith estimate of the cost to
complete the Initial Alterations. Upon completion of the Initial
Alterations, and prior to final disbursement of the Expansion
Allowance, Tenant shall furnish Landlord with: (1) general contractor
and architect's completion affidavits, (2) full and final waivers of
lien, (3) receipted bills covering all labor and materials expended and
used, (4) as-built plans of the Initial Alterations, and (5) the
certification of Tenant and its architect that the Initial Alterations
have been installed in a good and workmanlike manner in accordance with
the approved plans, and in accordance with applicable laws,
codes and ordinances. In no event shall Landlord be required to disburse the Expansion Allowance more than one time per month. If the Initial Alterations exceed the Expansion Allowance, Tenant shall be entitled to the Expansion Allowance in accordance with the terms hereof, but each individual disbursement of the Expansion Allowance shall be disbursed in the proportion that the Expansion Allowance bears to the total cost for the Initial Alterations, less the 10% retainage referenced above. Notwithstanding anything herein to the contrary, Landlord shall not be obligated to disburse any portion of the Expansion Allowance during the continuance of an uncured default under the Lease, and Landlord's obligation to disburse shall only resume when and if such default is cured.
III. In no event shall the Expansion Allowance be used for the purchase of equipment, furniture or other items of personal property of Tenant. If Tenant does not submit a request for payment of the entire Expansion Allowance to Landlord in accordance with the provisions contained in this Exhibit by the Termination Date (or if the Lease is terminated prior to the Termination Date, the date of such earlier termination), any unused amount shall accrue to the sole benefit of Landlord, it being understood that Tenant shall not be entitled to any credit, abatement or other concession in connection therewith. Tenant shall be responsible for all applicable state sales or use taxes, if any, payable in connection with the Initial Alterations and/or Expansion Allowance.
IV. Tenant agrees to accept the Premises in its "as-is" condition and configuration, it being agreed that Landlord shall not be required to perform any work or, except as provided above with respect to the Expansion Allowance, incur any costs in connection with the construction or demolition of any improvements in the Premises.
V. This Exhibit shall not be deemed applicable to any additional space added to the Premises at any time or from time to time, whether by any options under the Lease or otherwise, or to any portion of the original Premises or any additions to the Premises in the event of a renewal or extension of the original Term of the Lease, whether by any options under the Lease or otherwise, unless expressly so provided in the Lease or any amendment or supplement to the Lease.
IN WITNESS WHEREOF, Landlord and Tenant have entered into this Exhibit as of the date first written above.
LANDLORD: EOP-SUNSET NORTH BELLEVUE, L.L.C., A
WASHINGTON LIMITED LIABILITY COMPANY
By: EOP-Sunset North, L.L.C., a Delaware limited liability company, its managing member By: EOP Operating Limited Partnership, a Delaware limited partnership, its sole member By: Equity Office Properties Trust, a Maryland real estate investment trust, its general partner By: ______________________________ Name: Pat Callahan Title: Senior Vice President - Seattle Region TENANT: BSQUARE CORPORATION, A WASHINGTON CORPORATION By: __________________________________________ Name: ________________________________________ Title: _______________________________________ |
THIRD AMENDMENT
THIS THIRD AMENDMENT (the "Amendment") is made and entered into as of the _____ day of ________________, 2001, by and between EOP-SUNSET NORTH BELLEVUE, L.L.C., A WASHINGTON LIMITED LIABILITY COMPANY ("Landlord") and BSQUARE CORPORATION, A WASHINGTON CORPORATION ("Tenant").
RECITALS
A. Landlord (as successor in interest to WRC Sunset North LLC, a Washington limited liability company) and Tenant are parties to that certain lease dated as of January 15, 1999, as amended by instruments dated October 19, 1999, July 27, 1999 (the "First Amendment), and January 3, 2001 (the "Second Amendment") (collectively the "Lease"), for space currently designated in the Lease as containing 149,487 rentable square feet on the 1st, 2nd, 3rd, 4th and 5th floors of building 4 (the "Initial Premises") located at the Northeast corner of 139th Avenue Southeast and Southeast 32nd Street, Bellevue, Washington and commonly known as Building 4 of Sunset North Corporate Campus (the "Building"); and
B. Tenant plans to make Initial Alterations to the Expansion Space (as such terms are defined in the Second Amendment) which will eliminate the "common areas" on Floor 1 of the Building. Landlord acknowledges and approves such plans, on the condition that Tenant agrees to return the Appropriate Portions (as defined in Paragraph I) of Floor 1 to their original configuration, restored for use as common areas necessary for a multi-tenant building when possession of the Expansion Space is surrendered to Landlord.
C. Tenant and Landlord mutually desire that the Lease be amended on and subject to the following terms and conditions.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant agree as follows:
I. AMENDMENT. Effective as of the date hereof, Landlord and Tenant agree that the Lease shall be amended in accordance with the following terms and conditions:
Pursuant to the Work Letter attached as Exhibit B to the Second Amendment, Tenant has provided Landlord with the plans for Tenant's Initial Alterations to the Expansion Space (i.e. Floor 1 of the Building), which plans provide for the reconfiguration of the Expansion Space such that the existing common area corridors and mail room will be eliminated. Tenant hereby acknowledges and agrees that Landlord has approved such plans, and that prior to Tenant's surrender of the Expansion Space on the Termination Date or any earlier termination of the Lease, Tenant shall, at Tenant's sole cost and expense, perform the work necessary (the "Required Work") to substantially return the Appropriate Portions (as defined below) of the Expansion Space to the configuration and condition they were in prior to the performance of the Initial Alterations therein (the "Prior Configuration and Condition") to the reasonable satisfaction of Landlord. The Appropriate Portions shall mean: The areas generally depicted on the floor plan attached hereto as Exhibit A, and generally indicated by cross hatching, and shall be described as: (1) the entire common area corridor extending from the loading dock door past the elevator bank and adjacent stairwell, and (2) the mail room, and (3) the loading dock door and adjacent wall. With respect to the mail room, Tenant specifically acknowledges that the Prior Configuration and Condition includes the presence of installed mail boxes, mail chutes, and counter/work area. All such Required Work shall be performed after first obtaining Landlord's prior written approval of the contractor and plans therefor in accordance with Article 13 of the Lease, and using materials substantially the same as were in place in the Expansion Space prior to Tenant's Initial Alterations therein. Tenant further acknowledges and agrees that the failure of Tenant to perform the Required Work prior to the Termination Date or earlier termination of the Lease, shall constitute a material default under the Lease. In such event, and in addition to any other remedies available to Landlord, Landlord will have the right to perform the Required Work, and Tenant shall, upon demand, reimburse Landlord for the cost thereof, plus a 15% oversight fee and any applicable state sales or use tax thereon (all of which shall constitute Rent under the Lease), and further that until such time as the Required Work is completed, Tenant shall be responsible for the payment of Rent under the holdover provisions of the Lease.
However, in such event, if Landlord elects to perform the Required Work, Landlord will make commercially reasonable efforts to complete the Required Work in a timely manner.
II. MISCELLANEOUS.
A. This Amendment sets forth the entire agreement between the parties with respect to the matters set forth herein. There have been no additional oral or written representations or agreements. Under no circumstances shall Tenant be entitled to any Rent abatement, improvement allowance, leasehold improvements, or other work to the Premises, or any similar economic incentives that may have been provided Tenant in connection with entering into the Lease, unless specifically set forth in this Amendment.
B. Except as herein modified or amended, the provisions, conditions and terms of the Lease shall remain unchanged and in full force and effect.
C. In the case of any inconsistency between the provisions of the Lease and this Amendment, the provisions of this Amendment shall govern and control.
D. Submission of this Amendment by Landlord is not an offer to enter into this Amendment but rather is a solicitation for such an offer by Tenant. Landlord shall not be bound by this Amendment until Landlord has executed and delivered the same to Tenant.
E. The capitalized terms used in this Amendment shall have the same definitions as set forth in the Lease to the extent that such capitalized terms are defined therein and not redefined in this Amendment.
F. Tenant hereby represents to Landlord that Tenant has dealt with no broker in connection with this Amendment. Tenant agrees to indemnify and hold Landlord, its members, principals, beneficiaries, partners, officers, directors, employees, mortgagee(s) and agents, and the respective principals and members of any such agents (collectively, the "Landlord Related Parties") harmless from all claims of any brokers claiming to have represented Tenant in connection with this Amendment. Landlord hereby represents to Tenant that Landlord has dealt with no broker in connection with this Amendment. Landlord agrees to indemnify and hold Tenant, its members, principals, beneficiaries, partners, officers, directors, employees, and agents, and the respective principals and members of any such agents (collectively, the "Tenant Related Parties") harmless from all claims of any brokers claiming to have represented Landlord in connection with this Amendment.
G. At Landlord's option, this Amendment shall be of no force and effect unless and until accepted by any guarantors of the Lease, who by signing below shall agree that their guaranty shall apply to the Lease as amended herein, unless such requirement is waived by Landlord in writing.
[SIGNATURES ON NEXT PAGE]
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Amendment as of the day and year first above written.
LANDLORD: EOP-SUNSET NORTH BELLEVUE, L.L.C.,
A WASHINGTON LIMITED LIABILITY COMPANY
By: EOP-SUNSET NORTH, L.L.C., A DELAWARE
LIMITED LIABILITY COMPANY, ITS
MANAGING MEMBER
By: EOP OPERATING LIMITED PARTNERSHIP,
A DELAWARE LIMITED PARTNERSHIP, ITS
SOLE MEMBER
By: EQUITY OFFICE PROPERTIES
TRUST, A MARYLAND REAL ESTATE
INVESTMENT TRUST, ITS GENERAL
PARTNER
By: ________________________
Name: M. PATRICK CALLAHAN
Title: SENIOR VICE PRESIDENT-
SEATTLE REGION
TENANT: BSQUARE CORPORATION, A WASHINGTON
CORPORATION
By: _________________________________
Name: _________________________________
Title: ________________________________
LANDLORD ACKNOWLEDGMENT
STATE OF ______________________)
COUNTY OF _____________________)ss:
I, the undersigned, a Notary Public, in and for the County and State aforesaid, do hereby certify that M. Patrick Callahan, personally known to me to be the Senior Vice President of Equity Office Properties Trust, a Maryland real estate investment trust, and personally known to me to be the same person whose name is subscribed to the foregoing instrument, appeared before me this day in person and acknowledged that as such officer of said entity being authorized so to do, (s)he executed the foregoing instrument on behalf of said entity, by subscribing the name of such entity by himself/herself as such officer, as a free and voluntary act, and as the free and voluntary act and deed of said entity, for the uses and purposes therein set forth.
GIVEN under my hand and official seal this ______ day of ________,2001.
My Commission Expires: _________________
TENANT ACKNOWLEDGMENT
CORPORATION
STATE OF ______________________)
COUNTY OF _____________________)ss:
On this the _____ day of ____________________, 2001, before me a Notary Public duly authorized in and for the said County in the State aforesaid to take acknowledgments personally appeared ___________________________ known to me to be _______________________ President of bSquare Corporation, one of the parties described in the foregoing instrument, and acknowledged that as such officer, being authorized so to do, (s)he executed the foregoing instrument on behalf of said corporation by subscribing the name of such corporation by himself/herself as such officer and caused the corporate seal of said corporation to be affixed thereto, as a free and voluntary act, and as the free and voluntary act of said corporation, for the uses and purposes therein set forth.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
My Commission Expires: _________________
EXHIBIT A
FLOOR PLAN OF FLOOR 1
This Exhibit is attached to and made a part of the Amendment dated as
of the ____ day of _____________________, 2001, by and between EOP-SUNSET NORTH
BELLEVUE, L.L.C., A WASHINGTON LIMITED LIABILITY COMPANY ("Landlord") and
BSQUARE CORPORATION, A WASHINGTON CORPORATION ("Tenant") for space in the
Building located at 777 108th Avenue NE, Bellevue, WA, 98004.
EXHIBIT 21.1
SUBSIDIARIES OF THE REGISTRANT
BSQUARE GmbH, a German corporation
BSQUARE K. K., a Japanese corporation
BlueWater Systems, Inc., a Washington corporation
BSQUARE Silicon Valley Corporation, a Washington corporation
Toolcrafts K. K., a Japanese corporation
Embedded Technologies, Inc., a Minnesota corporation
BSQUARE San Diego Corporation, a Washington corporation
BSQUARE Taiwan Corporation, a Republic of China corporation
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form S-8 No. 333-89333) pertaining to the 1999 Employee Stock Purchase Plan, the Registration Statement (Form S-8 No. 333-70290) pertaining to the Amended and Restated Stock Option Plan, the Registration Statement (Form S-8 No. 333-44306) pertaining to the 1998 Mainbrace Stock Option Plan, the Registration Statement (Form S-8 No. 333-70210) pertaining to the 2000 Non-Qualified Stock Option Plan, the Registration Statement (Form S-8 No. 333-85340) pertaining to the 1996 Infogation Stock Option Plan, and the Registration Statement (Form S-8 No. 333-90848) pertaining to the Amended and Restated Stock Option Plan and the 1999 Employee Stock Purchase Plan of BSQUARE Corporation of our report dated January 22, 2003, except for the last two paragraphs of Note 7, as to which the date is February 28, 2003, with respect to the 2002 consolidated financial statements and schedule of BSQUARE Corporation included in the Annual Report (Form 10-K) for the year ended December 31, 2002.
ERNST & YOUNG LLP
Seattle, Washington
March 19, 2003
EXHIBIT 23.2
NOTICE REGARDING CONSENT OF ARTHUR ANDERSEN LLP
Section 11(a) of the Securities Act of 1933, as amended (the "Securities Act"), provides that if any part of a registration statement at the time such part becomes effective contains an untrue statement of a material fact or an omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, any person acquiring a security pursuant to such registration statement (unless it is proved that at the time of such acquisition such person knew of such untruth or omission) may sue, among others, every accountant who has consented to be named as having prepared or certified any part of the registration statement, or as having prepared or certified any report or valuation which is used in connection with the registration statement, with respect to the statement in such registration statement, report or valuation which purports to have been prepared or certified by the accountant.
This Annual Report on Form 10-K is incorporated by reference into Registration Statement File Nos. 333-89333, 333-44306, 333-70210, 333-70290, 333-85340 AND 333-90848 on Form S-8 (collectively, the "Registration Statements") of BSQUARE Corporation ("BSQUARE") and, for purposes of determining any liability under the Securities Act, is deemed to be a new registration statement for each Registration Statement into which it is incorporated by reference.
On May 23, 2002, BSQUARE's Board of Directors decided to dismiss Arthur Andersen LLP ("Andersen") as BSQUARE's independent accountants. See BSQUARE's Current Report on Form 8-K filed May 28, 2002, as amended, for more information. After reasonable efforts, BSQUARE has been unable to obtain Andersen's written consent to the incorporation by reference into the Registration Statements of its audit reports with respect to BSQUARE's financial statements as of and for the fiscal years ended December 31, 2001 and 2000.
Under these circumstances, Rule 437a under the Securities Act permits
BSQUARE to file this Form 10-K without a written consent from Andersen. However,
as a result, with respect to transactions in BSQUARE securities pursuant to the
Registration Statements that occur subsequent to the date this Annual Report on
Form 10-K is filed with the Securities and Exchange Commission, Andersen will
not have any liability under Section 11(a) of the Securities Act for any untrue
statements of a material fact contained in the financial statements audited by
Andersen or any omissions of a material fact required to be stated therein.
Accordingly, you would be unable to assert a claim against Andersen under
Section 11(a) of the Securities Act because it has not consented to the
incorporation by reference of its previously issued reports into the
Registration Statements. To the extent provided in Section 11(b)(3)(C) of the
Securities Act, however, other persons who are liable under Section 11(a) of the
Securities Act, including BSQUARE's officers and directors, may still rely on
Andersen's original audit reports as being made by an expert for purposes of
establishing a due diligence defense under Section 11(b) of the Securities Act.
EXHIBIT 99.1
CERTIFICATION OF CHIEF EXECUTIVE OFFICER PURSUANT TO 18.U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
Pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, I, William T. Baxter, certify that:
1. I have read this annual report on Form 10-K of BSQUARE Corporation;
2. To my knowledge, this report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
3. To my knowledge, the information in this report fairly presents, in all material respects, the financial condition and results of operations as of December 31, 2002.
Date: March 19, 2003 /s/ William T. Baxter ------------------------------------- William T. Baxter, President and Chief Executive Officer |
EXHIBIT 99.2
CERTIFICATION OF CHIEF FINANCIAL OFFICER PURSUANT TO 18.U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
Pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, I, James R. Ladd, certify that:
1. I have read this annual report on Form 10-K of BSQUARE Corporation;
2. To my knowledge, this report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
3. To my knowledge, the information in this report fairly presents, in all material respects, the financial condition and results of operations as of December 31, 2002.
Date: March 19, 2003 /s/ James R. Ladd ------------------------- James R. Ladd, Chief Financial Officer |