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EXHIBIT 99.1
SAFE HARBOR COMPLIANCE STATEMENT FOR FORWARD LOOKING STATEMENTS
You should consider carefully the following factors in evaluating our
business and us. The risks and uncertainties described below are not the only
ones we face. Additional risks and uncertainties not presently known to us,
which we currently deem immaterial or that are similar to those faced by other
companies in our industry or business in general, may also impair our business
operations. If any of the following risks actually occurs, our business,
financial condition or results of future operations could be materially and
adversely affected. In such case, the trading price of our common stock could
decline, and you could lose all or part of your investment.
RISK FACTORS
You should consider carefully the following factors in evaluating our
business and us. The risks and uncertainties described below are not the only
ones we face. Additional risks and uncertainties not presently known to us,
which we currently deem immaterial or that are similar to those faced by other
companies in our industry or business in general, may also impair our business
operations. If any of the following risks actually occurs, our business,
financial condition or results of future operations could be materially and
adversely affected. In such case, the trading price of our common stock could
decline, and you could lose all or part of your investment.
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RISKS RELATED TO OUR BUSINESS
OUR LENGTHY SALES AND IMPLEMENTATION CYCLE COULD ADVERSELY AFFECT US
If we experience delays in, or cancellation of, sales or
implementations of our products and services, our business and financial results
could be hurt. To sell our products, we generally must provide a significant
level of education to prospective customers regarding the use and benefits of
our products. In addition, prospective customers must make a significant
commitment of resources in connection with the implementation of our products,
which typically requires substantial integration efforts by our customer or us.
For these and other reasons, the length of time between the date of initial
contact with the potential customer and the installation and use of our products
is typically six months or more, and may be subject to delays over which we have
little or no control. Our implementation cycle could be lengthened in the future
by increases in the size and complexity of our installations and in the number
of third-party systems with which our products must integrate. In addition, any
unexpected delays in individual implementations could expose us to liability
claims from our customers.
OUR OPERATING RESULTS ARE SUBSTANTIALLY DEPENDENT ON A LIMITED SUITE OF PRODUCTS
AND THE MARKET FOR CALL CENTER AND INTERNET BASED SOLUTIONS
We currently derive a majority of our revenues from sales of our
Conversations(TM) products and related services. We introduced Conversations in
early 2000. We anticipate that in the near term, a significant portion of our
future revenue may be attributable to our Conversations product line. We intend
to enhance these products and develop related products. However, any factor
adversely affecting the market for call center solutions in general, or the
Conversations products in particular, could hurt our business and financial
results. We may face potential charges resulting from the impact of having to
write down inventory of outdated products that cannot be sold. The markets for
both call center systems and Internet products are intensely competitive, highly
fragmented and subject to rapid change. Additionally, the recent turmoil in the
Internet space has fostered a new set of challenges related to a market, which
is still evolving
WE RELY ON A FEW CUSTOMERS FOR A SIGNIFICANT PORTION OF OUR REVENUES
In the call center space, we have historically derived and believe that
we will continue to derive a significant portion of our revenues in any period
from a limited number of large corporate clients. In 2000, our five largest
customers accounted for 16.6% of our total revenues. In 1999, our five largest
customers accounted for 28.2% of our total revenues. Although the specific
customers may change from period to period, we expect that large sales to a
limited number of customers will continue to account for a significant
percentage of our revenues in any particular period for the foreseeable future.
Therefore, the loss, deferral or cancellation of an order could have a
significant impact on our operating results in a particular quarter. Our current
customers may not place additional orders and we may not obtain orders of
similar magnitude from other customers. If we lose any major customer, suffer
any reduction, delay in or cancellation of orders by any such customer or fail
to market successfully to new customers, our business and financial results
could be hurt.
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THERE ARE MANY RISKS ASSOCIATED WITH INTERNATIONAL OPERATIONS
Our sales outside the United States accounted for 27.5%, 31.7% and
23.8% of our total revenues in 2000, 1999 and 1998 respectively. A significant
element of our business strategy is to continue expansion of our operations in
international markets. This expansion will continue to require significant
management attention and financial resources to develop international sales
channels. Because of the difficulty in penetrating new markets, we may not be
able to maintain or increase international revenues. Our international
operations are subject to inherent risks, including:
- Significant volatility in the level and timing of business;
- the impact of possible recessionary environments in economies
outside the United States;
- changes in legal and regulatory requirements, including those
relating to telemarketing activities;
- changes in tariffs;
- seasonality of sales;
- the costs of localizing products for foreign markets and
integrating products with foreign system components;
- longer accounts receivable collection periods and greater
difficulty in accounts receivable collection;
- difficulties and costs of staffing and managing foreign
operations;
- reduced protection for intellectual property rights in some
countries;
- potentially adverse tax consequences;
- political and economic instability;
- currency fluctuation; and
- the higher cost of foreign service delivery.
While our expenses incurred in foreign countries typically are
denominated in the local currencies, revenues generated by our international
sales typically are paid in U.S. dollars, Euros or Pounds Sterling. Accordingly,
we could experience fluctuations in currency exchange rates in the future that
would have a material adverse impact on our international operations. We
currently do not engage in currency hedging activities.
OUR GROWTH IS DEPENDENT UPON THE SUCCESSFUL DEVELOPMENT OF OUR DIRECT AND
INDIRECT SALES CHANNELS
We currently sell our products domestically primarily through our
direct sales force and internationally through both direct and indirect sales
channels. We support our customers with our internal technical and customer
support staff. Our ability to achieve significant revenue growth in the
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future will greatly depend on our ability to recruit and train sufficient
technical, customer support and direct sales personnel. We have in the past and
may in the future experience difficulty in recruiting qualified sales, technical
and support personnel. If we are unable to rapidly and effectively expand our
direct sales force and our technical and support staff, our business and
financial results could be hurt.
We believe that our future growth also will depend on developing and
maintaining successful indirect sales channels, including value added resellers,
or VARs, and distributors. Our strategy is to continue to increase the
proportion of customers served through these indirect channels. We are currently
investing, and plan to continue to invest, significant resources to develop
these indirect channels. This could adversely affect our operating results if
these efforts do not generate revenues necessary to offset this investment.
Also, our inability to recruit and retain qualified VARs and distributors could
adversely affect our results of operations. Because lower unit prices are
typically charged on sales made through indirect channels, increased indirect
sales could adversely affect our average selling prices and result in lower
gross margins. In addition, sales of our products through indirect channels will
reduce our gross profits from our services as the VARs and distributors provide
these services. As indirect sales increase, our direct contact with our customer
base will decrease, and we may have more difficulty accurately forecasting
sales, evaluating customer satisfaction and recognizing emerging customer
requirements. In addition, our VARs and distributors may develop, acquire or
market products competitive with our products.
Our strategy of marketing our products directly to customers and
indirectly through VARs and distributors may result in distribution channel
conflicts. Our direct sales efforts may compete with those of our indirect
channels and, to the extent different VARs and distributors target the same
customers, VARs and distributors may also come into conflict with each other.
Any channel conflicts that develop may have a material adverse effect on our
relationships with VARs and distributors or hurt our ability to attract new VARs
and distributors.
THERE ARE RISKS ASSOCIATED WITH POTENTIAL ACQUISITIONS
We may in the future continue to engage in selective acquisitions of
businesses that are complementary to ours, including other providers of Internet
products, contact management or CIM solutions or technology. We may not be able
to identify suitable acquisition candidates available for sale at reasonable
prices, consummate any acquisition or successfully integrate any acquired
business into our operations. Further, acquisitions involve a number of
additional risks, including diversion of management's attention, failure to
retain key acquired personnel, unanticipated events or circumstances and legal
liabilities, some or all of which could hurt our business and financial results.
Problems with an acquired business could have a material adverse impact on our
performance as a whole.
If we engage in acquisitions in the future, we might finance such
acquisitions with the proceeds from public offerings as well as with possible
debt financing, the issuance of additional equity securities (common or
preferred stock) or a combination of the foregoing. We may not be able to
arrange adequate financing on acceptable terms. If we were to proceed with one
or more significant future acquisitions in which the consideration consisted of
cash, a substantial portion of our available cash could be used to consummate
the acquisitions. As has been the case in the past, if we were to consummate one
or more significant acquisitions in which the consideration consisted of stock,
our shareholders could suffer significant dilution of their interests in us.
Many business acquisitions must be accounted for using purchase
accounting. Most of the businesses that might become attractive acquisition
candidates for us are likely to have significant
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intangible assets. If we acquire these businesses and are required to account
for them as a purchase, we would typically be required to recognize substantial
goodwill amortization charges, reducing future earnings. In addition, such
acquisitions could involve non-recurring acquisition-related charges, such as
the write-off or write-down of software development costs or other intangible
items.
WE MAY BE CONFRONTED WITH DEFECTS IN OUR SOFTWARE OR THE INABILITY TO ACQUIRE
THIRD-PARTY SOFTWARE OR HARDWARE THAT IS ERROR-FREE
Our software products are complex and may contain errors that could be
detected at any point in the products' life cycles. We have, in the past,
discovered software errors in certain of our products and have experienced
delays in shipment or implementation of products during the period required to
correct these errors. Despite extensive testing by us and by current and
potential customers, errors may still be found. This could result in a loss of,
or delay in, market acceptance and sales, diversion of development resources,
injury to our reputation or increased service and warranty cost. In particular,
the call center environment is characterized by a wide variety of standard and
non-standard configurations that make pre-release testing for programming or
compatibility errors very difficult and time consuming and limit our ability to
uncover all defects prior to shipment and installation at a customer's location.
We license certain software used in our products from third parties, and our
products are designed to operate on certain hardware platforms manufactured by
third parties. Such third-party software or hardware may contain errors that we
are dependent upon the third-party to correct. Additionally, we may experience
difficulties in obtaining support and maintenance of third party hardware and
software that is integrated with our products and distributed by us.
WE MAY FACE LIABILITY TO CLIENTS IF OUR SYSTEMS FAIL
Our products are often critical to the operations of our clients'
businesses and provide benefits that may be difficult to quantify. If our
product or a client's system fails, the client could make a claim for
substantial damages against us, regardless of our responsibility for such
failure. Although we attempt to limit contractually our liability for damages
arising from product failures or negligent acts or omissions, the limitations of
liability set forth in our contracts may not be enforceable in all instances and
may not otherwise protect us from liability for damages. Although we maintain
general liability insurance coverage, including coverage for product liability
and errors or omissions, this coverage may not continue to be available on
reasonable terms or in sufficient amounts to cover one or more large claims. In
addition, the insurer might disclaim coverage as to any future claim. If we
experience one or more large claims against us that exceed available insurance
coverage or changes in our insurance policies, including premium increases or
the imposition of large deductible or co-insurance requirements, our business
and financial results could be hurt.
WE MUST CONTINUE TO ADVANCE OUR TECHNOLOGY AND COMPLY WITH INDUSTRY REQUIREMENTS
TO REMAIN COMPETITIVE
The market for our products is subject to rapid technological change,
changing customer needs, frequent new product introductions and evolving
industry standards that may render our existing products and services obsolete.
As a result, unforeseen changes in customer and technological requirements for
application features, functions and technologies could rapidly erode our
position in this market. If we are unable, for technological or other reasons,
to develop and introduce new and enhanced products in a timely manner, our
business and financial results could be hurt. Our growth and future operating
results will depend in part upon our ability to enhance existing applications
and develop and introduce new
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applications that anticipate, meet or exceed technological advances in the
marketplace, that meet changing customer requirements, that respond to
competitive products and that achieve market acceptance. Our product development
and testing efforts have required, and are expected to continue to require,
substantial investments. We may not possess sufficient resources to make these
necessary investments. In addition, we cannot assure that these products will
meet the requirements of the marketplace and achieve market acceptance, or that
our current or future products will conform to industry standards.
WE MAY EXPERIENCE DELAYS IN DEVELOPMENT OF NEW PRODUCTS
We have in the past experienced delays both in developing new products
and customizing existing products. We could experience similar delays in the
future. Delays could occur for a variety of reasons, including:
- the complex nature of our products;
- difficulties in getting newly developed software code to
function properly with existing code;
- difficulty in recruiting sufficient numbers of programmers
with the proper technical skills and capabilities;
- loss of programmers with existing technical knowledge of our
products;
- changing standards or protocols within the computer and
telephony equipment with which our products integrate;
- inherent limitations in, difficulties in integrating with, and
unforeseen problems with using other company or industry
products and software;
- changes in design specifications once technical problems are
uncovered; and
- unforeseen problems with the implementation of a distributed,
object-oriented architecture and processing.
THE INABILITY TO ATTRACT AND RETAIN MANAGEMENT AND OTHER PERSONNEL MAY ADVERSELY
AFFECT US
The future success of our growth strategy will depend to a significant
extent on our ability to attract, train, motivate and retain highly skilled
professionals, particularly software developers, sales and marketing personnel
and other senior technical personnel. Highly skilled employees with the
education and training we require are in high demand. If we are unable to hire
and retain such qualified personnel, our ability to adequately manage and
complete our existing sales and to bid for, obtain and implement new sales would
be impaired. Further, we must train and manage our growing employee base,
requiring an increase in the level of responsibility for both existing and new
management personnel.
WE MUST SUCCESSFULLY MANAGE OPERATIONS
Our ability to grow will be dependent on properly managing our
operations. Our inability to manage effectively could have a material adverse
effect on the quality of our services and projects, our
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ability to attract and retain key personnel, our business prospects and our
financial results. In particular, we will have to continue to train our
personnel, particularly skilled technical, marketing and management personnel,
and continue to develop and improve our operational, financial, communications
and other internal systems.
WE MAY NOT BE ABLE TO CONTINUE TO COMPETE SUCCESSFULLY WITH OTHER COMPANIES
The market for our products is intensely competitive, fragmented and
subject to rapid change. Because our principal products are call management
systems, which include both software applications and hardware, we compete with
a variety of companies that provide these components independently or as an
integrated system. We may not be able to compete successfully against current
and future competitors and competitive pressures faced by us could hurt our
business and financial results. Our primary competitors in the field of
integrated inbound/outbound telephony-based call management systems are Davox
Corporation, or Davox; Genesys Telecommunications Laboratories, or Genesys; and
Lucent/Mosaix International, Inc., or Mosaix. We compete primarily against Davox
and Mosaix in the collections segment of the outbound call management systems
market, and against Genesys and Mosaix in the telemarketing and telesales
segments of the inbound/outbound call management systems market. We also compete
in the CIM segment of the market, where principal competitors include
Interactive Intelligence, Firstwave Technologies, Inc., Genesys,
Telecommunications Laboratories, GeoTel Communications Corporation, Information
Management Associates, Inc., and Avaya Corporation, among others.
Some of our competitors may align themselves with telecommunications
equipment providers, such as providers of private branch exchange, or PBX, and
automatic call distribution, or ACD, equipment, other telecommunications
equipment providers or other vendors in an effort to increase sales potential
for their products. We may also face additional direct competition from PBX/ACD
vendors, other telecommunications equipment providers, telecommunications
service providers, computer hardware and software vendors and others. We may
also face competition from non-traditional competitors in the emerging computer
telephony market. These competitors may include Interactive Intelligence Inc.,
Oracle Corporation, IBM and others. We generally face competition from one or
more of our principal competitors on major installations and believe that price
is a major factor considered by our prospective customers. Increased call center
competition has contributed significantly to price reductions, and we expect
these price reductions to continue. In addition, increased competition may
result in reduced operating margins and loss of market share. Many of our
current and potential competitors have significantly greater financial,
technical, marketing and other resources than we do. As a result, they may be
able to respond more quickly to new or emerging technologies and changes in
customer requirements, or to devote greater resources to the development,
promotion and sale of their products than we could.
The market for our Internet based products is new and rapidly evolving,
and is expected to become increasingly competitive as current competitors expand
their product offerings and new companies enter the market. The principal
competitive factors in the community and e-commerce software and services market
include adherence to emerging Web-based technology standards; comprehensiveness
of applications; reliability and security; adaptability, flexibility and
scalability; real-time, interactive capability with customers, partners, vendors
and suppliers; integration with a variety of communications media; ease of use;
ease of implementation; customer service and support; and price. Although we
believe that we currently compete favorably with respect to these factors, there
can be no assurance that we can maintain our competitive position against
current and potential competitors,
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especially those with longer operating histories, greater name recognition and
substantially greater financial, technical, marketing, management, service,
support and other resources. We expect that these solutions will continue to be
a principal source of competition for the foreseeable future.
We face competition in the community market from Web Crossing, O'Reilly
Web Board, The Palace Server and Koz iChat and our competitors in the live
interaction market include Webline, Kana Communications, eGain, Acuity and
Business Evolutions, Inc. In addition, traditional call center software
providers and customer relationship vendor managers are trying to penetrate the
interactive communication market by joining with established strategic partners
in the industry.
We also may face competition from systems integrators that design and
develop custom systems and perform custom integration. Some of these firms may
possess industry-specific expertise or reputations among potential customers for
offering enterprise solutions to e-commerce needs. These systems integrators may
be resellers of our products and may engage in joint marketing and sales efforts
with us. We rely on these firms for recommendations of our products during the
evaluation stage of the purchase process, as well as for implementation and
customer support services. These systems integrators may have similar, and often
more established, relationships with our competitors, and there can be no
assurance that these firms will not develop, market or recommend competing
software applications.
OTHER COMPANIES MAY CLAIM THAT OUR PRODUCTS INFRINGE THEIR INTELLECTUAL PROPERTY
RIGHTS.
We cannot assure that third parties will not claim that we are
infringing their intellectual property rights. We expect that software product
developers will increasingly be subject to infringement claims as the number of
products and competitors in our industry grows and the functionality of products
in different industry segments overlaps. In furtherance of the development of
our services or products, we may need to acquire licenses for intellectual
property to avoid infringement of a third party's product. Such licenses may not
be available on commercially reasonable terms, if at all. We also cannot assure
that former employees of our present and future employers will not assert claims
that such employees have improperly disclosed confidential or proprietary
information to us. Any such claims, with or without merit, could be time
consuming to defend, result in costly litigation, divert management's attention
and resources, cause product shipment delays or require us to pay money damages
or enter into royalty or licensing agreements. Such royalty or licensing
agreements may not be available on terms acceptable to us, if at all. In the
event of a successful claim of product infringement against us and our failure
or inability to license the infringed or similar technology, our business,
operating results and financial condition could be materially and adversely
affected.
OUR FAILURE TO ADEQUATELY PROTECT OUR PROPRIETARY RIGHTS MAY ADVERSELY AFFECT US
We rely on a combination of patent, copyright, trade secret and
trademark laws, confidentiality procedures and contractual provisions to protect
our proprietary rights in our products and technology. These measures may not be
adequate to protect our trade secrets and proprietary technology. Further, we
may be subject to additional risks as we enter into transactions in countries
where intellectual property laws are not well developed or are poorly enforced.
Legal protections of our rights may be ineffective in such countries. If we must
engage in litigation to defend and enforce our intellectual property rights,
either domestically or in other countries, we could face substantial costs and
diversion of resources, regardless of the final outcome of such litigation.
Despite our efforts to safeguard and maintain our
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proprietary rights both in the United States and abroad, we may not be
successful in doing so and the steps we take in this regard may not be adequate
to deter misappropriation or independent third-party development of our
technology or to prevent an unauthorized third party from copying or otherwise
obtaining and using our products or technology. Others may independently develop
similar technologies or duplicate any technology developed by us.
We have undertaken a program of actively pursuing infringers of our
patents. These efforts by us to enforce our patents might not be successful or
result in royalties that exceed the cost of such enforcement efforts. We may not
be able to detect all instances of infringement. Additionally, we may incur
significant expenses in enforcing our patents, as well as be susceptible to
counterclaims files by the parties against whom we have filed infringement
actions. These expenses and liabilities may exceed the revenue we realize from
license agreements we consummate. We are also at risk that as a consequence of
litigation, one or more of the patents we hold may be determined to be invalid.
As the number of call management software applications in the industry increases
and the functionality of these products further overlaps, software development
companies like us may increasingly become subject to claims of infringement or
misappropriation of the intellectual property rights of others. Although we
believe that our software components and other intellectual property do not
infringe on the intellectual property rights of others, we still face the risk
that such a claim will be asserted against us in the future, that assertion of
such claims will result in litigation and that we might not prevail in such
litigation or be able to obtain a license for the use of any infringed
intellectual property from a third party on commercially reasonable terms.
Furthermore, litigation, regardless of its outcome, could result in substantial
cost to us, divert management's attention from our operations and delay customer
purchasing decisions.
We have entered into agreements with certain of our distributors giving
them a limited, non-exclusive right to use portions of our source code to create
foreign language versions of our products for distribution in foreign markets.
In addition, we have entered into agreements with a number of our customers
requiring us to place our source code in escrow. These escrow arrangements
typically provide that these customers have a limited, non-exclusive right to
use this code in the event that there is a bankruptcy proceeding by or against
us, if we cease to do business or if we fail to meet our support obligations.
These arrangements may increase the likelihood of misappropriation by third
parties.
OUR SUCCESS DEPENDS ON OUR KEY EXECUTIVES
Our success will depend in large part upon the continued availability
and performance of our senior executives, including Aleksander Szlam, our
Chairman and Chief Executive Officer, George Landgrebe, our Chief Operating
Officer, William K. Dumont, our President-Worldwide Sales, and Glen Shipley, our
Chief Financial Officer. Although we have employment agreements with Messrs.
Szlam and Dumont, the agreements do not obligate them to continue their
employment with us. We might not be able to retain the services of these key
executives. We do not maintain key man life insurance on any of these
executives.
A significant portion of the Company's senior management team has been
in place for only a relatively short period of time. Mr. Landgrebe joined the
company in December 1999, and Mr. Shipley joined the company in October 2000.
Accordingly, these individuals have been involved with only the most recent
operating activity of the Company. The Company's success will depend to a
significant extent on the ability of its new executive officers to integrate
themselves into the Company's daily operations, to gain the trust and confidence
of the Company's other employees and to work effectively as a team.
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ONLINE SECURITY BREACHES COULD HARM OUR BUSINESS
A party that is able to circumvent our security systems or the security
systems of our customers could steal proprietary information or cause
interruptions in our operations. Security breaches also could damage our
reputation and expose us to a risk of loss or litigation and possible liability.
Our insurance policies have coverage limits and exclusions that may prevent
reimbursement for losses caused by security breaches.
Furthermore, our servers may be vulnerable to computer viruses,
physical or electronic break-ins and similar disruptions. We may need to expend
significant additional capital and other resources to protect against security
breaches or to alleviate problems caused by any breaches. We cannot assure that
we can prevent all security breaches.
IF INTERNET USAGE DECREASES, OUR BUSINESS COULD BE MATERIALLY ADVERSELY
AFFECTED
Our future success is substantially dependent on the growth in the use
of the Internet and e-commerce. The Internet is relatively new and is rapidly
evolving. Our business has been impacted by the volatility of the e-commerce
market and will continue to be adversely affected if Internet usage and
e-commerce does not grow. Growth in Internet usage and e-commerce may be
inhibited for a number of reasons, such as:
- the Internet infrastructure may not be able to support the
demands placed on it, or its performance and reliability may
decline as usage grows;
- security and authentication concerns with respect to
transmission over the Internet of confidential information,
such as credit card numbers, and attempts by unauthorized
computer users, commonly referred to as hackers, to penetrate
online security systems; and
- privacy concerns, such as those related to the placement by
Web sites on a user's hard drive without the user's knowledge
or consent of certain information to gather user information,
known as "cookies."
RISKS RELATED TO OUR INDUSTRY
WE MAY BE SUBJECT TO CHANGING GOVERNMENTAL REGULATIONS
Federal, state or foreign agencies may and have adopted laws or
regulations affecting the use of outbound call processing systems as well as the
Internet as a commercial medium. These laws or regulations could limit the
market for our products, which could materially adversely affect our business,
operating results and financial condition. Although many of these laws or
regulations may not apply to our business directly, we expect that laws and
regulations relating to user privacy, pricing, content and quality of products
and services could indirectly affect our business. It is possible that these
laws or regulations could expose companies involved in outbound call processing
systems as well as e-commerce to liability, which could limit the growth of
commerce on the Internet generally.
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THE APPLICATION OF SALES AND OTHER TAXES TO ONLINE COMMERCE COULD ADVERSELY
AFFECT DEMAND FOR OUR PRODUCTS AND SERVICES
The application of sales and other taxes by state and local governments
to online commerce is uncertain and may take years to resolve. In particular,
the federal government and a number of states are currently reviewing the
appropriate tax treatment of online commerce, and new federal laws or state tax
regulations may subject online commerce to additional state sales and income
taxes. Any adverse impact on the growth of online commerce may reduce the sales
of our software and adversely affect our revenues and earnings.
RISKS RELATED TO THE MARKET FOR OUR SECURITIES
OUR OPERATING RESULTS COULD CONTINUE TO FLUCTUATE, CAUSING OUR STOCK PRICE TO
FALL
Our revenues and operating results could vary substantially from
quarter to quarter. If our quarterly revenues or operating results fall below
the expectations of investors or public market analysts, the price of our common
stock could fall substantially. Our quarterly revenues and operating results may
vary as a result of a number of factors, including:
- changes in the demand for our products;
- the level of product and price competition;
- the length of our sales and implementation process;
- our ability to control costs;
- the size and timing of individual transactions;
- the mix of products and services sold;
- software defects and other product quality problems;
- any delay in or cancellation of customer installations;
- our success in expanding our direct sales force and indirect
distribution channels;
- the timing of new product introductions and enhancements by us
or our competitors;
- customer order deferrals in anticipation of enhancements or
new products offered by us or our competitors;
- changes in foreign currency exchange rates;
- customers' fiscal constraints; and
- general economic conditions.
In addition, a limited number of relatively large customer orders has
accounted for and is likely to continue to account for a substantial portion of
our total revenues in any particular quarter. Any delay or
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deferral of customer orders may cause significant variations in our operating
results from quarter to quarter. A high percentage of our costs are for staffing
and operating expenses and are fixed in the short term based on anticipated
revenue levels. Therefore, variations between anticipated order dates and actual
order dates, as well as non-recurring or unanticipated large orders, can cause
significant variations in our operating results from quarter to quarter.
THE LOW PRICE OF OUR COMMON STOCK COULD RESULT IN THE DELISTING OF OUR COMMON
STOCK FROM THE NASDAQ STOCK MARKET.
Our Common Stock is currently listed on the Nasdaq National Market
System of the Nasdaq Stock Market. We must satisfy Nasdaq's minimum listing
maintenance requirements to maintain our listing on the Nasdaq Stock Market.
Nasdaq listing maintenance requirements include a series of financial tests
relating to net tangible assets, public float, number of market makers and
shareholders, and maintaining a minimum bid price of $1.00 for shares of our
Common Stock. The minimum bid price of our Common Stock has recently dropped
below $1.00. There is no guarantee that it will return to a minimum bid price of
$1.00 or higher. If the minimum bid price of our Common Stock remains below
$1.00 for 30 consecutive trading days, or if we are unable to continue to meet
Nasdaq's standards for any other reason, our Common Stock could be delisted from
the Nasdaq Stock Market. If our Common Stock is delisted, the liquidity for our
Common Stock would be adversely affected. Delisting could make trading our
shares more difficult for investors, leading to further declines in share price.
It would also make it more difficult for us to raise additional capital. In
addition, we would incur additional costs under state blue sky laws to sell
equity if our Common Stock is delisted.
OUR CHARTER AND BYLAWS AND GEORGIA LAW MAY INHIBIT A TAKEOVER OF ESHARE
The Board of Directors has authority to issue up to 20,000,000 shares
of preferred stock and to fix the rights, preferences, privileges and
restrictions, including voting rights, of the preferred stock without further
vote or action by our shareholders. The rights of the holders of our common
stock will be subject to, and may be adversely affected by, the rights of the
holders of preferred stock that may be issued in the future. While we have no
present intention to issue shares of preferred stock, such issuance could have
the effect of making it more difficult for a third party to acquire a majority
of our outstanding voting stock. In addition, our charter and bylaws contain
provisions that may discourage proposals or bids to acquire us. These provisions
could have the effect of making it more difficult for a third party to acquire
control of us and adversely affect prevailing market prices for our common
stock.
OUR STOCK PRICE HAS BEEN VOLATILE
The market price of our common stock could be subject to significant
fluctuations in response to variations in quarterly operating results and other
factors. In addition, the securities markets have experienced significant price
and volume fluctuations from time to time that have often been unrelated or
disproportionate to the operating performance of particular companies. Any
announcement with respect to any adverse variance in revenue or earnings from
levels generally expected by securities analysts or investors for a given period
would have an immediate and significant adverse effect on the trading price of
the common stock. In addition, factors such as announcements of technological
innovations or new products by us, our competitors or third parties, rumors of
such innovations or new products, changing conditions in the market for call
center systems, changes in estimates by securities analysts, announcements of
extraordinary events, such as acquisitions or litigation, or general economic
conditions may have a significant adverse impact on the market price of the
common stock.
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13
OUR PRINCIPAL SHAREHOLDER CONTINUES TO CONTROL OUR AFFAIRS
Aleksander Szlam, our Chairman of the Board, Chief Executive Officer
and principal shareholder, is the beneficial owner of approximately 50.1% of the
outstanding shares of our common stock. Accordingly, Mr. Szlam is in a position
to control our affairs through his ability to control any election of members of
our Board of Directors, as well as any decision whether to merge or sell our
assets, to amend our charter and bylaws, or to take other actions requiring the
vote or consent of our shareholders. This concentration of ownership could also
discourage bids for the shares of common stock at a premium to, or create a
depressive effect on, the market price of the common stock.
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