10-Q 1 a09-11200_110q.htm 10-Q

Table of Contents

 

 

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 10-Q

 

x

 

QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934

 

 

 

 

 

For the quarterly period ended March 31, 2009

 

 

 

o

 

TRANSITION REPORT UNDER SECTION 13 OR 15(d) OF THE EXCHANGE ACT

 

 

 

 

 

For the transition period                 to                 

 

Commission file number 000-51257

 

BIDZ.COM, INC.

(Exact name of Registrant as specified in its charter)

 

Delaware

 

95-4728109

(State or other jurisdiction of

 

(I.R.S. Employer

incorporation or organization)

 

Identification Number)

 

3562 Eastham Drive
Culver City, California
90232

(Address, including zip code, of principal executive office)

 

(310) 280-7373

(Registrant’s telephone number, including area code)

 

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.     Yes x   No  o

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, or a non accelerated filer. See definition of “accelerated filer and large filer” in Rule 12b-2 of the Exchange Act). (Check one):

 

Large accelerated filer o

Accelerated filer x

Non-accelerated filer o

 

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).

 

o  Yes    x  No

 

Number of shares outstanding of Registrant’s common stock, $0.001 par value, as of April 30, 2009: 23,238,764

 

 

 



Table of Contents

 

TABLE OF CONTENTS

 

PART I. FINANCIAL INFORMATION

 

Item 1.

Financial Statements

3

 

Condensed Balance Sheets as of December 31, 2008 and March 31, 2009 (unaudited)

3

 

Condensed Statements of Income for the three month periods ended March 31, 2008 and 2009 (unaudited)

4

 

Condensed Statements of Cash Flows for the three month periods ended March 31, 2008 and 2009 (unaudited)

5

 

Notes to Financial Statements (unaudited)

6

Item 2.

Management’s Discussion and Analysis of Financial Condition and Results of Operations

10

Item 3.

Quantitative and Qualitative Disclosures About Market Risk

16

Item 4.

Controls and Procedures

16

 

 

 

PART II. OTHER INFORMATION

17

Item 1.

Legal Proceedings

17

Item 1A

Risk Factors

17

Item 2.

Unregistered Sales and Purchases of Equity Securities

29

Item 6.

Exhibits

30

 

 

 

SIGNATURES

30

 

This quarterly report includes forward looking statements. All statements other than statements of historical facts contained in this registration statement, including statements regarding our future financial position, business strategy and plans and objectives of management for future operations, are forward looking statements. The words “believe,” “may,” “will,” “estimate,” “continue,” “anticipate,” “intend,” “expect” and similar expressions, as they relate to us, are intended to identify forward looking statements. We have based these forward-looking statements largely on our current expectations and projections about future events and financial trends that we believe may affect our financial condition, results of operations, business strategy and financial needs. These forward looking statements are subject to a number of risks, uncertainties and assumptions discussed throughout this filing.

 

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Table of Contents

 

PART I. FINANCIAL INFORMATION

 

ITEM 1. FINANCIAL STATEMENTS

 

Bidz.com, Inc.

 

Condensed Balance Sheets

 

(in thousands, except share and per share data)

 

 

 

December 31,

 

March 31,

 

 

 

2008

 

2009

 

 

 

 

 

(Unaudited)

 

Assets

 

 

 

 

 

Current assets:

 

 

 

 

 

Cash

 

$

4,456

 

$

3,160

 

Accounts receivable

 

591

 

677

 

Inventories, net of reserves of $820 and $1,350 at December 31, 2008 and March 31, 2009, respectively

 

37,657

 

38,947

 

Other receivable (includes related party amounts of $102 and $127 at December 31, 2008 and March 31, 2009, respectively)

 

1,041

 

1,052

 

Current deferred tax assets

 

1,950

 

2,053

 

Other current assets

 

689

 

758

 

Total current assets

 

46,384

 

46,647

 

Long term deferred tax asset

 

84

 

169

 

Property and equipment, net

 

1,672

 

1,627

 

Intangible asset

 

161

 

161

 

Deposits

 

104

 

104

 

Total assets

 

$

48,405

 

$

48,708

 

 

 

 

 

 

 

Liabilities and Stockholders’ Equity

 

 

 

 

 

Current liabilities:

 

 

 

 

 

Revolving credit line

 

$

 

$

 

Accounts payable (includes related party amounts of $1,364 and $442 at December 31, 2008 and March 31, 2009, respectively)

 

9,636

 

8,893

 

Accrued expenses

 

3,091

 

3,205

 

Deferred revenue

 

872

 

1,189

 

Total current liabilities

 

13,599

 

13,287

 

 

 

 

 

 

 

Long term deferred tax liability

 

 

162

 

 

 

 

 

 

 

Commitments and contingencies (Note 10)

 

 

 

 

 

 

 

 

 

 

 

Stockholders’ equity:

 

 

 

 

 

Preferred stock: par value $0.001; authorized 4,000,000 shares; none issued and outstanding at December 31, 2008 and March 31, 2009, respectively

 

 

 

Common stock: par value $0.001; authorized 100,000,000 shares; issued and outstanding 22,917,918 and 22,839,499 at December 31, 2008 and March 31, 2009, respectively

 

23

 

23

 

Additional paid in capital

 

24,520

 

24,240

 

Shares held in treasury, at cost; 0 and 266,735 shares at December 31, 2008 and March 31, 2009, respectively

 

 

(871

)

Employees share purchase receivable

 

(708

)

(619

)

Accumulated earnings

 

10,971

 

12,486

 

Total stockholders’ equity

 

34,806

 

35,259

 

 

 

 

 

 

 

 

 

$

48,405

 

$

48,708

 

 

The accompanying notes form an integral part of these condensed financial statements.

 

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Table of Contents

 

Bidz.com, Inc.

 

Condensed Statements of Income (Unaudited)

 

(in thousands, except share and per share data)

 

 

 

Three Months Ended March 31,

 

 

 

2008

 

2009

 

 

 

 

 

 

 

Net revenue:

 

 

 

 

 

Merchandise sales

 

$

57,609

 

$

30,891

 

Wholesale merchandise sales

 

4,202

 

206

 

Other revenue

 

118

 

80

 

 

 

61,929

 

31,177

 

Cost of revenue

 

43,893

 

20,991

 

Gross profit

 

18,036

 

10,186

 

Operating expenses:

 

 

 

 

 

General and administrative

 

5,907

 

4,861

 

Sales and marketing

 

4,199

 

2,605

 

Depreciation and amortization

 

162

 

180

 

Total operating expenses

 

10,268

 

7,646

 

Income from operations

 

7,768

 

2,540

 

Other income - interest income

 

13

 

2

 

Other expense - interest (expense)

 

(11

)

(11

)

Income before income tax expense

 

7,770

 

2,531

 

Income tax expense

 

3,165

 

1,016

 

Net income

 

$

4,605

 

$

1,515

 

 

 

 

 

 

 

Net income per share available to common shareholders - basic

 

$

0.19

 

$

0.07

 

Net income per share available to common shareholders - diluted

 

$

0.18

 

$

0.07

 

Weighted average number of shares outstanding - basic

 

24,538,263

 

22,898,532

 

Weighted average number of shares outstanding - diluted

 

25,828,507

 

22,898,532

 

 

The accompanying notes form an integral part of these condensed financial statements.

 

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Table of Contents

 

Bidz.com, Inc.

 

Condensed Statements of Cash Flows (Unaudited)

 

(in thousands)

 

 

 

Three Months Ended March 31,

 

 

 

2008

 

2009

 

 

 

 

 

 

 

Cash flows provided by (used for) operating activities:

 

 

 

 

 

Net income

 

$

4,605

 

$

1,515

 

 

 

 

 

 

 

Adjustments to reconcile net income to net cash provided by operating activities:

 

 

 

 

 

Depreciation and amortization

 

162

 

180

 

Change in inventory reserve

 

(156

)

530

 

Impairment in employees share purchase receivable

 

 

89

 

Stock-based compensation

 

267

 

81

 

Changes in assets and liabilities:

 

 

 

 

 

(Increase) decrease in assets:

 

 

 

 

 

Accounts receivable

 

(2,638

)

(86

)

Inventories

 

22,047

 

(1,820

)

Other receivable

 

 

(11

)

Current deferred tax assets

 

 

(103

)

Other current assets

 

1,918

 

421

 

Increase (decrease) in liabilities:

 

 

 

 

 

Accounts payable

 

(14,390

)

(743

)

Accrued expenses

 

1,167

 

114

 

Deferred revenue

 

(1,265

)

317

 

Net cash provided by operating activities

 

11,717

 

484

 

 

 

 

 

 

 

Cash flows used for investing activities:

 

 

 

 

 

Prepayment for intangible asset

 

 

(490

)

Capital expenditures

 

(203

)

(135

)

Net cash used for investing activities

 

(203

)

(625

)

Cash flows provided by (used for) financing activities:

 

 

 

 

 

Long term deferred tax asset

 

 

(85

)

Long term deferred tax liability

 

 

162

 

Revolving credit line

 

(5,924

)

 

Proceeds from exercise of stock options

 

3

 

 

Adjustment to tax benefit from stock based compensation

 

 

(158

)

Purchase of treasury stock

 

(3,808

)

(1,074

)

Net cash used for financing activities

 

(9,729

)

(1,155

)

 

 

 

 

 

 

Net increase (decrease) in cash

 

1,785

 

(1,296

)

Cash, beginning of period

 

4,808

 

4,456

 

Cash, end of period

 

$

6,593

 

$

3,160

 

 

 

 

 

 

 

Supplemental disclosure of cash flow information:

 

 

 

 

 

 

 

 

 

 

 

Interest paid

 

$

11

 

$

11

 

 

 

 

 

 

 

Income taxes paid

 

$

1,332

 

$

 

 

 

 

 

 

 

Supplemental disclosure of non-cash investing and financing activities:

 

 

 

 

 

 

 

 

 

 

 

Retirement of treasury shares

 

$

1,176

 

$

203

 

 

The accompanying notes form an integral part of these condensed financial statements.

 

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BIDZ.COM, INC.

NOTES TO FINANCIAL STATEMENTS FOR THE THREE MONTHS ENDED MARCH 31, 2008 AND 2009

(UNAUDITED)

 

1.                                      Basis of Presentation and Nature of Business Operations

 

Basis of Presentation

 

The accompanying condensed balance sheet as of December 31, 2008, which has been derived from audited financial statements, and the unaudited financial statements included herein have been prepared in accordance with the instructions to Form 10-Q and do not include all of the information and footnotes required by accounting principles generally accepted in the United States of America for complete financial statements.  These financial statements and related notes should be read in conjunction with the Company’s audited financial statements for the fiscal year ended December 31, 2008 filed in the Annual Report on Form 10-K by the Company on February 25, 2009 with the Securities and Exchange Commission. In the opinion of management, these financial statements reflect all adjustments which are of a normal recurring nature and which are necessary to present fairly the financial position of Bidz.com, Inc. as of March 31, 2009 and the results of operations for the three month periods ended March 31, 2008 and 2009 and the cash flows for the three month periods ended March 31, 2008 and 2009.  The results of operations for the three months ended March 31, 2009 are not necessarily indicative of the results which may be expected for the entire fiscal year.

 

The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenue and expenses during the reporting period. Actual results could differ from those estimates. We have made estimates for return and allowance reserve, inventory reserve, inventory vendor marketing reserves, deferred tax assets and accrued expenses.

 

Nature of Business Operations

 

Bidz.com, Inc. was founded in November of 1998 as a California corporation with its principal location of business in Los Angeles, California. In June 2006, we reincorporated in Delaware, and with our principle location of business in Los Angeles. We operate websites located at www.bidz.com and www.buyz.com for the purpose of selling merchandise, utilizing our unique sales auction and fixed price platforms.

 

We sell our products throughout the United States and have expanded the reach of our customer base to Europe and Asia. Revenue generated from the United States accounted for approximately 76.4% and 69.7% of net revenue for the three months ended March 31, 2008 and 2009, respectively.

 

Recent Developments

 

In 2009, we plan to implement an ERP system based on Microsoft Dynamics AX that will fundamentally change and improve our IT, operational and accounting infrastructure.

 

In March 2009, we acquired a $6.0 million lot of jewelry, intellectual property and tools from the Colibri Group bankruptcy auction. Subsequently in April 2009, we sold all intellectual property and tools acquired in the Colibri Group bankruptcy auction to the Richline Group, a Berkshire Hathaway Company.

 

In March 2009, we have entered into an amendment of the lease of our main office and warehouse (i) extending the expiration date of the lease by thirty-two months to June 30, 2012, and (ii) not increasing the monthly rent for the duration of the lease.

 

In February 2009, our Board of Directors authorized an increase in the open market stock buyback program of its outstanding common stock to $33.5 million from $20 million. The stock buyback will be at prices deemed appropriate by management over a 24 month period. As of March 31, 2009, we have purchased a cumulative total of 2.2 million shares for $14.5 million, and 1.9 million shares have been retired which reduced our number of shares outstanding. The balance of the 267,000 shares was retired in April 2009 and it is our policy to retire all shares acquired in the buyback.

 

Recent Accounting Pronouncements

 

In February 2007, the FASB issued Statement No. 159 (“FAS 159”) which expanded FAS No. 157, “Fair Value Measurements,” which defines fair value, establishes guidelines for measuring fair value and expands disclosures regarding fair value measurements. FAS 159 does not require any new fair value measurements but rather eliminates inconsistencies in

 

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guidance found in various prior accounting pronouncements. FAS 159 is effective for fiscal years beginning after November 15, 2007. The adoption of FAS 159 did not have a material impact on our financial statements.

 

In September 2006, the FASB issued Statement SFAS No. 157 (“FAS 157”), “Fair Value Measurements,” which defines fair value, establishes guidelines for measuring fair value and expands disclosures regarding fair value measurements. FAS 157 does not require any new fair value measurements but rather eliminates inconsistencies in guidance found in various prior accounting pronouncements. SFAS 157 is effective for fiscal years beginning after November 15, 2007. The adoption of FAS 159 did not have a material impact on our financial statements.

 

2.             Earnings per Common Share

 

In accordance with SFAS No. 128, “Earnings per Share,” the basic earnings per common share is calculated by dividing net income available to common stockholders less preferred dividends by the weighted average number of common shares outstanding. Diluted earnings per common share is computed similarly to basic earnings per common share, except that the denominator is increased to include the number of additional common shares that would have been outstanding if potential common shares had been issued and if the additional common shares were not anti-dilutive.

 

The dilutive effect of outstanding stock options is reflected in diluted earnings per share by application of the treasury stock method including the impact of pro forma deferred tax benefits for the three month periods ending March 31, 2008 and 2009.  The following table sets forth the computation of basic and diluted net income per share.

 

(in thousands, except share and per share data)

 

 

 

Three Months Ended March 31,

 

 

 

2008

 

2009

 

 

 

 

 

 

 

Basic and diluted net income per share:

 

 

 

 

 

Numerator:

 

 

 

 

 

Net income

 

$

4,605

 

$

1,515

 

Denominator:

 

 

 

 

 

Weighted common shares outstanding

 

24,538,263

 

22,898,532

 

Effect of dilutive securities

 

1,290,244

 

 

Denominator for diluted calculation

 

25,828,507

 

22,898,532

 

Net income per share, basic

 

$

0.19

 

$

0.07

 

Net income per share, diluted

 

$

0.18

 

$

0.07

 

 

3.             Inventories

 

Inventories, which are pledged as collateral for our revolving line of credit, consist of the following (in thousands):

 

 

 

December 31, 2008

 

March 31, 2009 (unaudited)

 

 

 

 

 

 

 

Fine jewelry, watches and other

 

$

37,485

 

$

32,938

 

Loose diamonds and semi-precious stones

 

570

 

849

 

Prepaid inventory

 

36

 

6,122

 

Inventory with manufacturing vendors

 

386

 

388

 

Product inventories

 

38,477

 

40,297

 

Less: Inventory reserve

 

(820

)

(1,350

)

 

 

$

37,657

 

$

38,947

 

 

4.             Revolving Credit Line

 

In July 2006, we entered into a revolving credit line agreement with LaSalle Bank, wholly owned by Bank of America, to provide working capital financing secured by inventories and tangible assets. The agreement allowed for us to initially draw on a line of credit up to $10 million. During the three month period ended March 31, 2008 we successfully increased the limit to $25 million. The revolving credit line agreement expires in July of 2010. As of March 31, 2009, there was no outstanding balance under the revolving credit line. Under the terms and conditions of the revolving credit line agreement, the Company is subject to certain restrictive covenants for which it is in compliance at March 31, 2009.

 

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5.             Stock Based Compensation

 

In December 2004, the FASB issued SFAS No. 123R, “Share Based payment: An Amendment of FASB Statements No. 123 and 95.” This statement requires that we recognize in our financial statements the cost resulting from all share-based payment transactions. In addition, in March 2005 the Securities and Exchange Commission (“SEC”) released SEC Staff Accounting Bulletin No. 107, “Share-Based Payment” (“SAB 107”), which provides the SEC staff’s position regarding the application of SFAS 123R and certain SEC rules and regulations, and also provides the staff’s views regarding the valuation of share-based payment arrangements for public companies. On January 1, 2006, we adopted SFAS 123R, which eliminates our ability to account for share-based compensation transactions, as we formerly did, using the intrinsic value method as prescribed by APB 25 and generally requires that we recognize in our statements of income all share-based payments to employees, including grants of stock options based on their fair values.

 

The Company adopted SFAS 123R using the modified prospective method which requires the application of the accounting standard as of January 1, 2006. The Company’s financial statements as of and for the three months ended March 31, 2008 and 2009, respectively, reflect the impact of adopting SFAS 123R.

 

Under SFAS 123R stock-based compensation expense recognized during the period is based on the value of the portion of stock-based payment awards that is ultimately expected to vest. Compensation expense for the stock-based payment awards granted subsequent to December 31, 2005, will be based on the grant date fair value estimated in accordance with SFAS 123R. As stock-based compensation expense recognized in the statements of income is based on awards ultimately expected to vest, it will be reduced for estimated forfeitures. SFAS 123R requires forfeitures to be estimated at the time of grant and revised, if necessary, in subsequent periods if actual forfeitures differ from those estimates.

 

Under SFAS 123R, we will continue to use the Black-Scholes model to estimate the fair value of options. Our assessment of the estimated compensation charges will be affected by our stock price as well as assumption regarding a number of subjective variables and the related tax impact. These variables include, but are not limited to, our stock price volatility, forfeiture rates and employee stock option exercise behaviors (or expected term).

 

Restricted Shares

 

The restricted stock awards are expensed pro rata over the vesting period based upon the market value of the awards at the time of grant. Stock-based compensation from restricted stock awards totaled $88,000 and $81,000 for the three months ended March 31, 2008 and 2009, respectively. The unamortized stock-based expense for restricted stock awards was $768,000 at March 31, 2009.

 

A summary of all restricted stock activity during the three months ended March 31, 2009 is as follows:

 

Restricted shares outstanding, December 31, 2008

 

117,800

 

Shares granted

 

 

Shares vested

 

(27,500

)

Shares forfeited

 

(9,000

)

Restricted shares outstanding, March 31, 2009

 

81,300

 

 

Stock Options

 

We adopted our 2001 Stock Option Plan, our 2002 Special Stock Option Plan and our 2006 Award Plan (collectively, the ‘‘Plans’’), in January 2001, January 2002, and March 2006, respectively. The 2006 Plan provides for the granting of awards in the form of incentive stock options, nonqualified stock options, stock appreciation rights, shares of restricted common stock, bonus stock in lieu of obligations, or other stock-based awards to employees, directors, and independent contractors who provide valuable services to our company.  The vesting requirements, performance thresholds and other terms and conditions of options granted under the Plans will be determined by our Compensation Committee and Board of Directors.

 

The following is a summary of stock option activity as of March 31, 2009, and changes during the three months ended March 31, 2009.

 

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Options

 

Shares

 

Weighted-
Average
Exercise
Price ($)

 

Weighted
Average
Remaining
Life of
Contract

 

Aggregate
Intrinsic
Value ($)

 

Outstanding at December 31, 2008

 

6,864,500

 

6.08

 

2.36

 

 

Granted

 

 

 

 

 

 

 

Exercised

 

 

 

 

 

 

 

Forfeited

 

 

 

 

 

 

 

Expired

 

3,000

 

6.00

 

 

 

 

 

Outstanding at March 31, 2009

 

6,861,500

 

6.08

 

2.12

 

 

Vested and Exercisable at March 31, 2009

 

6,861,500

 

6.08

 

2.12

 

 

 

The following table summarizes information about stock options outstanding and exercisable at March 31, 2009.

 

 

 

 

 

 

 

Options outstanding and exercisable
as of March 31, 2009

 

 

 

 

 

 

 

Options outstanding

 

Options exercisable

 

Range of
exercise prices

 

 

 

Number
outstanding
3/31/2009

 

Weighted
average
remaining
contractual

 

Weighted
average
exercise
price

 

Number
exercisable
3/31/2009

 

Weighted
average
exercise
price

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

$

5.01

 

$

6.00

 

6,628,500

 

2.09

 

$

6.00

 

6,628,500

 

$

6.00

 

$

6.01

 

$

7.00

 

105,500

 

2.94

 

$

6.50

 

105,500

 

$

6.50

 

$

9.01

 

$

10.00

 

127,500

 

3.21

 

$

9.90

 

127,500

 

$

9.90

 

$

5.01

 

$

10.00

 

6,861,500

 

2.12

 

$

6.08

 

6,861,500

 

$

6.08

 

 

The stock-based compensation expense from stock options for the three months ended March 31, 2008 and 2009 totaled $32,000 and $0, respectively. The unamortized stock-based compensation expense from stock options as of March 31, 2009 is $0. No stock options were granted in the three months ended March 31, 2008 and 2009.

 

6.                                      Segment Information

 

Net revenue by geographic area is presented based upon the country of destination. No foreign country represented 10% or more of net revenue for three-month periods ended March 31, 2008 and 2009. Net revenue by geographic area was as follows:

 

(in thousands, except percentage data)

 

 

 

Three Months Ended

 

 

 

March 31,

 

 

 

2008

 

2009

 

Geographic area

 

Amount

 

Percent

 

Amount

 

Percent

 

United States

 

$

47,325

 

76.4

%

$

21,723

 

69.7

%

International

 

14,604

 

23.6

%

9,454

 

30.3

%

 

 

 

 

 

 

 

 

 

 

Total

 

$

61,929

 

100.0

%

$

31,177

 

100.0

%

 

7.                                      Concentrations

 

Purchases from two vendors amounted to $2.5 million and $3.8 million representing 13.2% and 17.4% of the total purchases during the three months ended March 31, 2008 and 2009, respectively. Outstanding accounts payable to the two vendors totaled $1.3 million and $725,000 as of December 31, 2008 and March 31, 2009, respectively. Loss of either of these vendors is not expected to have a significant negative impact on the operations of the Company.

 

8.                                      Related Party Transaction

 

During the three months ended March 31, 2008 and 2009, we purchased approximately 3.2% and 3.5%, respectively, of our merchandise from LA Jewelers, Inc., where one of its managers is a stockholder who beneficially owns approximately 5.2% of our outstanding common stock as of March 31, 2009. The accounts payable balances due to LA Jewelers were $1.4 million and $442,000 as of December 31, 2008 and March 31, 2009, respectively.

 

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LA Jewelers participates in our inventory co-op marketing program. For the three months ended March 31, 2008 and 2009, we earned approximately $482,000 and $181,000, respectively from LA Jewelers relating to co-op marketing contributions and $124,000 was unamortized as of March 31, 2009. The amounts of co-op marketing contributions due from LA Jewelers were $22,000 and $28,000 as of December 31, 2008 and March 31, 2009, respectively.

 

In May, 2007 we entered into an understanding with LA Jewelers whereby they will guarantee that we will earn a certain minimum gross profit margin on their merchandise. This agreement provides that in the event of a gross profit margin shortfall we will be compensated for the difference between our actual gross profit margin and the guaranteed minimum gross profit margin. For the three months ended March 31, 2008 and 2009, we recognized $141,000 and $19,000, respectively, under this agreement. As of December 31, 2008 and March 31, 2009, we have $80,000 and $99,000, respectively, outstanding under this gross profit margin guarantee.

 

During the three months ended March 31, 2008 and 2009, we recorded $0 and $206,000, respectively, in wholesale merchandise sales to a customer that is owned by Daniella Zinberg, the daughter of our Chief Executive Officer, David Zinberg. There was no accounts receivable due from this customer as of December 31, 2008 and March 31, 2009.

 

9.             Income Tax — FIN 48

 

We adopted the provisions of FASB Interpretation 48, Accounting for Uncertainty in Income Taxes, on January 1, 2007. Previously, we had accounted for tax contingencies in accordance with Statement of Financial Accounting Standards 5, Accounting for Contingencies. As required by Interpretation 48, which clarifies Statement 109, Accounting for Income Taxes, we recognize the financial statement benefit of a tax position only after determining that the relevant tax authority would more likely than not sustain the position following an audit. For tax positions meeting the more-likely-than-not threshold, the amount recognized in the financial statements is the largest benefit that has a greater than 50 percent likelihood of being realized upon ultimate settlement with the relevant tax authority. At the adoption date, we applied Interpretation 48 to all tax positions for which the statute of limitations remained open. Our preliminary analysis of the implementation of Interpretation 48 reveals that there is no material effect on our financial statements.

 

We are subject to income taxes in the U.S. federal jurisdiction and California. Tax regulations within each jurisdiction are subject to the interpretation of the related tax laws and regulations and require significant judgment to apply. With few exceptions, we are no longer subject to U.S. federal and California examinations by tax authorities for the years before 2003.

 

We had been under examination by the Internal Revenue Service for the 2004, 2005 and 2006 tax years. The examination was concluded as of December 31, 2007 and final settlement was approximately $35,000, including interest and penalties. We are currently under examination for the 2007 tax year.

 

10.          Contingencies

 

We are subject to various legal proceedings and claims that arise in the ordinary course of business.  Although the Company believes it has defenses to the allegations and intends to pursue them vigorously, management does not currently have sufficient information to assess the validity of the claims or the amount of potential damages.  Company management currently believes, however, that resolution of such legal matters will not have a material adverse impact on the Company’s financial position, results of operations or cash flows.

 

ITEM 2.  MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

 

The following discussion should be read in conjunction with the financial statements and related notes which appear elsewhere in this form. This discussion contains forward-looking statements. Our actual results could differ materially from those anticipated in these forward-looking statements as a result of various factors, including various risks and uncertainties discussed below and throughout this report.

 

Overview

 

We are a leading online retailer of jewelry, featuring a live auction format. We have established our retail brand in the online marketplace by offering high-quality merchandise, a unique user-friendly shopping experience, and the opportunity for buyers to achieve significant cost savings versus traditional retail channels. A key to our success has been our ability to efficiently and cost effectively source closeout and regular jewelry merchandise, and rapidly respond to changing consumer

 

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demands for jewelry, watches and accessories. We offer our products through a continuous live format, featuring a $1 minimum opening bid, and a unique 15-second auction extension period that allows our auctions to continue until all bids are received. On select auctions we maintain a reserve price that must be met before a sale will be consummated. The majority of our auctions are short-term, often lasting less than one hour, providing immediate gratification to our customers and encouraging frequent visits and active viewing of our website.

 

In addition to our auction site we have a fixed pricing format that offers similar merchandise as those listed for auction.  This online store provides us access to different types of consumers and we will plan to offer customers the ability to design their own jewelry including diamond earrings and rings in the near future.

 

Our product inventory includes gold, platinum, and silver jewelry set with diamonds, rubies, emeralds, sapphires, and other precious and semi-precious stones; watches, accessories and brand name merchandise. We believe we are the second largest online retailer of jewelry based on revenue and the largest online jewelry auction site based on web traffic.

 

We sell to consumers looking for reliable bargains on jewelry, watches, accessories and brand name merchandise. Because we purchase and retain all of our inventory onsite, we can provide our customers with timely service and delivery of their purchases. In addition, each item is inspected by one of our trained product specialists prior to its placement on our website, which assures our customers of the quality of their purchases of our products. We operate in a highly competitive market with low barriers to entry. By selling our own merchandise, we provide a buying environment in which we minimize fraudulent activity and questionable product quality frequently associated with purchase transactions from third-party sellers. We also provide a 15-day return policy on all merchandise. We believe that many of our customers resell merchandise that they purchase from our auctions on eBay, at local auctions, and through other retail channels. Our auctions and fixed price sales are conducted 24 hours a day, seven days a week. We also offer daily telephone customer support, 24-hour online live-help and e-mail customer support.

 

In line with our growth plans, we have completed a major upgrade of our auction platform at the end of 2007. The new auction LiveBid system supports a broad range of leading browser software including Microsoft Internet Explorer, FireFox and Safari. The new system touts high availability, faster end-user response time and greater scalability among the key features delivered in this release. We have leveraged this new software solution to launch additional site features and the new online retail store. We have launched the Spanish, Arabic and German versions of our website in 2008.

 

Critical Accounting Policies

 

The preparation of our financial statements requires us to make certain estimates and judgments that affect amounts reported and disclosed in our financial statements and related notes. We base our estimates on historical experience and on other assumptions that we believe to be reasonable under the circumstances. Actual results may differ from these estimates. The following are the critical accounting policies that we believe require significant estimation and judgment.

 

Revenue Recognition

 

We derive our revenue from four sources: merchandise sales, which include wholesale merchandise sales, shipping revenue, transaction fee revenue and other revenue. In accordance with SAB 104, we recognize revenue from all four sources when the following revenue recognition criteria are met: (1) persuasive evidence of an arrangement exists; (2) the product has been shipped or the service has been rendered and the customer takes ownership and assumes the risk of loss; (3) the selling price is fixed or determinable; and (4) collection of the resulting receivable is reasonably assured.

 

For online sales through our website, we recognize merchandise sales upon shipments made to consumers that are fulfilled from our warehouse. We require payment before we ship and the payment is generally made online by credit card or other electronic payment methods. We record amounts received or billed prior to shipment of goods to customers as deferred revenue. We reduce gross sales by returns and charge-backs from customers. For wholesale merchandise sales, we recognize sales when the merchandise is delivered to the customer and credit terms may be offered to such customers.

 

We report shipping and handling fees and costs in accordance with Emerging Issues Task Force (“EITF”) issue No. 00-10, “Accounting for Shipping and Handling Fees and Costs.” As such, in the Statement of Operations all amounts billed to customers by us related to shipping and handling are included in “Net revenue” and our shipping costs are included in “Cost of revenue.”

 

We include transaction fee revenue in net revenue. The 3% auction transaction fee is applied to all merchandise sales, including shipping and handling but not to wholesale merchandise sales.

 

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We present sales tax liability on a net basis in accordance with Emerging Issues Task Force (“EITF”) Issue No. 06-03.  Sales are not grossed up with the attendant taxes and deducted as a separate line item. The EITF became effective for interim and annual reporting periods beginning after December 15, 2006.

 

Other revenue consists primarily of commissions we derive from hosting sales of Certified Merchant merchandise that is owned by third parties and we recognize only the commission portion of the price our customers pay for the purchased products because we are acting as an agent in such transactions.

 

Cost of Revenue

 

Cost of revenue includes product costs, inbound and outbound shipping charges, packaging and shipping supplies, insurance on shipments, product repair and service costs, and credit card and other electronic payment fees, and is recorded in the same period in which related revenue has been recorded. The cost of revenue is reduced by amortized co-op marketing contributions from our vendors.

 

Outbound shipping costs on merchandise sales totaled $3.1 million and $1.7 million in the three months ended March 31, 2008 and 2009, respectively.

 

Returns and Allowances Reserve

 

We estimate potential future product returns and charge-backs related to current period revenue. We analyze historical returns, and changes in customer demand and acceptance of our products when evaluating the adequacy of the sales returns reserve and other allowances in any accounting period. If actual returns are greater than our estimates, we will record additional returns and allowances in addition to our estimates, which will result in lower net revenue recorded during that period.  Reserves for returns and charge-backs are included in accrued expenses.

 

Inventories

 

Inventories consist mainly of merchandise purchased for resale and are stated at the lower of first-in, first-out (FIFO) cost or market.

 

Inventory Reserve

 

The unique nature of our business model where customers set the prices they are willing to pay may result in items selling below our cost, and we provide reserves against our inventory based on the estimated difference between the average selling price and the cost of inventory if the average selling price is lower than the cost of inventory. We also provide reserves for obsolescence and slow moving inventory.

 

Inventory Co-op Marketing Contributions

 

In the third quarter of 2007, we started to bill and collect from our inventory vendors co-op marketing contributions as an incentive for us to market and sell their merchandise on the Bidz website. In accordance with EITF 02-16:  Accounting by a Customer (including a Reseller) for Certain Consideration Received from a Vendor, the co-op marketing contributions that  cannot be identified specifically to benefit the vendors are a reduction in cost of sales and will result in an increase in gross profit. We cannot specifically identify the benefit to each vendor; consequently, co-op marketing contributions are charged against inventory as a reduction of costs and amortized as a reduction of cost of sales. For the three months ended March 31, 2008 and 2009, we have recognized $3.6 million and $2.3 million of co-op marketing contributions, respectively. Approximately $3.8 million remain unamortized and is included as an offset to inventory at March 31, 2009. Receivable from vendors for co-op marketing contributions, less allowance for doubtful accounts, is included in other current assets and amounted to $954,000 at March 31, 2009.

 

Description of Our Revenue, Costs, and Expenses

 

The following table presents our historical results of operations for the periods indicated as a percentage of net revenue.

 

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Three Months Ended
March 31,

 

 

 

2008

 

2009

 

 

 

 

 

 

 

Net revenue

 

100.0

%

100.0

%

Gross profit

 

29.1

 

32.7

 

Operating expenses:

 

 

 

 

 

General & administrative

 

9.5

 

15.6

 

Sales & marketing

 

6.8

 

8.4

 

Depreciation & amortization

 

0.3

 

0.6

 

Total operating expenses

 

16.6

 

24.6

 

Income from operations

 

12.5

 

8.1

 

Interest income

 

0.0

 

0.0

 

Interest expense

 

0.0

 

0.0

 

Income tax expense

 

5.1

 

3.3

 

Net income

 

7.4

%

4.8

%

 

Net Revenue

 

Substantially all of our net revenue consists of jewelry sold via the Internet, net of returns. We also generate net revenue from wholesale merchandise sales that is not online, shipping and handling, auction transaction fee and other revenue.

 

The following table presents our sources of revenue for the periods indicated as a percentage of net revenue.

 

 

 

Three Months Ended
March 31,

 

 

 

2008

 

2009

 

 

 

 

 

 

 

Merchandise sales

 

78.2

%

85.8

%

Wholesale merchandise sales

 

6.8

 

0.7

 

Shipping & handling

 

11.8

 

10.2

 

Transaction fees

 

3.0

 

3.0

 

Commissions

 

0.2

 

0.3

 

Total net revenue

 

100.0

%

100.0

%

 

Gross Profit

 

Our gross profit consists of net revenue less the cost of revenue. Our cost of revenue consists of the cost of merchandise sold to customers, amortized co-op marketing contributions from vendors, inbound and outbound shipping costs, packaging and shipping supplies, insurance on shipments, product repair and service costs, and credit card and other transaction fees associated with payments.

 

General and Administrative Expenses

 

Our general and administrative expenses consist primarily of payroll and related benefit costs for our employees. These expenses also include fulfillment, customer service, technology, professional fees, other general corporate expenses, and stock-based compensation, consisting substantially of stock option grants and restricted stock awards to employees and directors.

 

Sales and Marketing Expenses

 

Our marketing expenses consist primarily of costs associated with paid website search marketing, online banner marketing, e-mail campaigns, affiliate programs and optimization services. These marketing programs, which are designed to drive buyers to our website, are the most important factors in increasing demand for our jewelry products and increasing net revenue.

 

Comparison of Three Months Ended March 31, 2009 to Three Months Ended March 31, 2008

 

Net income in the three months ended March 31, 2009 was $1.5 million, or $0.07 per basic and diluted share and net income in the three months ended March 31, 2008 was $4.6 million, or $0.19 and $0.18 per basic and diluted share, respectively. Net income decreased by 67.1% in the three months ended March 31, 2009 compared to the three months ended March 31, 2008.

 

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Net Revenue

 

Net revenue decreased 49.7% to $31.2 million in the three months ended March 31, 2009 from $61.9 million in the three months ended March 31, 2008. Merchandise wholesale sales were $206,000 in the three months ended March 31, 2009 compared to $4.2 million in the three months ended March 31, 2008.

 

The continuing economic decline resulted in a major slowdown in our revenue in the first quarter of 2009 compared to the first quarter of 2008. There was an overall decrease in online demand for our jewelry as consumers reduced their discretionary spending. If the economy continues to decline it will cause a decline in demand and have a negative effect on our revenue. We anticipate that net revenue will be lower for the second and third quarters of 2009 compared to the first quarter as the second and third quarters are seasonally weak periods for jewelry sales.

 

Gross Profit

 

Gross profit decreased 43.5% to $10.2 million in the three months ended March 31, 2009 from $18.0 million in the three months ended March 31, 2008. The decrease in gross profit resulted from the decrease in sales revenue which declined by 49.7% for the three months ended March 31, 2009 compared to the three months ended March 31, 2008 and offset by the increase in gross profit margin to 32.7% in the three months ended March 31, 2009 from 29.1% in the three months ended March 31, 2008. Gross profit margins benefited from the amortized co-op marketing contributions that reduced our cost of sales by $2.3 million and $3.6 million in the three months ended March 31, 2009 and 2008, respectively.

 

General and Administrative Expenses

 

General and administrative expenses decreased 17.7% to $4.9 million in the three months ended March 31, 2009 from $5.9 million in three months ended March 31, 2008. The decrease in general and administrative expenses was due to our decline in revenue and corresponding decreases in payroll and payroll related expenses and administrative expenses. General and administrative expenses as a percentage of net revenue increased to 15.6% in the three months ended March 31, 2009 from 9.5% in the three months ended March 31, 2008.

 

An impairment charge of $89,000 was recorded in the three months ended March 31, 2009 on advances made to employees to purchase shares of our common stock when the value of our common stock held as collateral for the advances fell below the amount of the advances. The 154,000 shares of the common stock held as collateral were valued based on the closing price at March 31, 2009.

 

Sales & Marketing Expenses

 

Sales and marketing expenses decreased 37.9% to $2.6 million in the three months ended March 31, 2009 from $4.2 million in the three months ended March 31, 2008. Sales and marketing expenses as a percentage of net revenue increased to 8.4% in the three months ended March 31, 2009 from 6.8% in the three months ended March 31, 2008.

 

Income Tax Expense

 

Income tax expense decreased to $1.0 million in the three months ended March 31, 2009 from $3.2 million in the three months ended March 31, 2008 and the effective tax rates are 40.2% and 40.7%, respectively.

 

Additional Quarterly Data

 

 

 

Three Months Ended
March 31,

 

 

 

2008

 

2009

 

 

 

 

 

 

 

Average gross selling price per order

 

$

182

 

$

181

 

Average orders per day

 

3,734

 

2,043

 

Average items sold per day

 

12,186

 

6,110

 

Acquisition costs per new buyer

 

$

50

 

$

51

 

Number of new buyers

 

83,179

 

51,021

 

 

Wholesale merchandise sales are excluded in computing additional quarterly data.

 

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Liquidity and Capital Resources

 

The significant components of our working capital are inventory and liquid assets such as cash and accounts receivable, reduced by revolving credit line, accounts payable, accrued expenses and deferred revenue. Our business model contains beneficial working capital characteristics: while we collect cash from sales to customers within several business days of the related sale, we typically have extended payment terms with our suppliers.

 

As of March 31, 2009, we had a working capital surplus of $33.4 million and have no long-term debt obligations. Net cash provided by operating activities was $484,000 in the three months ended March 31, 2009 compared to $11.7 million in the three months ended March 31, 2008. Cash in the three months ended March 31, 2009 was primarily affected by changes in net income and inventories and in the three months ended March 31, 2008 was primarily affected by changes in net income, accounts receivable, inventories and accounts payable.

 

We recorded net income of $1.5 million in the three months ended March 31, 2009 compared to $4.6 million in the three months ended March 31, 2008. Cash flows from net income were used to meet our working capital requirements. In the three months ended March 31, 2009, inventories increased by $1.8 million. In the three months ended March 31, 2008, accounts receivable increased by $2.6 million, inventories decreased by $22.0 million and accounts payable decreased by $14.4 million. Inventories and accounts payable is affected by our revenue growth and changes in our inventory strategy. Our inventory strategy is influenced by our ability to secure inventory that we believe will improve our margins and the current revenue trend.

 

Net cash used in investing activities was $625,000 in the three months ended March 31, 2009 compared to $203,000 in the three months ended March 31, 2008. In the three months ended March 31, 2009, we made a prepayment of $490,000 for intangible asset. During the three months ended March 31, 2009 and 2008, cash used for capital expenditures of $135,000 and $203,000, respectively, related mainly to acquisition of office and computer equipment and software.

 

In the three months ended March 31, 2009, net cash of $1.2 million was used in financing activities when $1.1 million was used to repurchase our common stock shares. In the three months ended March 31, 2008, net cash of $9.7 million was used in financing activities when $5.9 million was used to repay our revolving credit facility and $3.8 million was used to repurchase our common stock shares.

 

We believe that cash and cash equivalents currently on hand, cash flows from operations and the availability of a $25 million revolving line of credit will be sufficient to continue our operations and to pursue our growth strategy for the foreseeable future. Our future capital requirements will depend on many factors, including the rate of our revenue growth; the timing and extent of spending to enhance our website, network infrastructure, and transaction processing systems; the extent of our advertising and marketing programs; the levels of the inventories we carry; acquisition and relocation to a new corporate office; and other factors relating to our business. Enhancement of our website, network infrastructure, transaction processing systems and a new ERP system will require us to spend significantly more than we have in the past. Moreover, to date our spending in these areas has been lower than industry averages. We anticipate increasing our system expenditures to accommodate these needs in the future. We may require additional financing in the future in order to execute our operating plan and we may not be able to obtain such financing. We cannot predict whether this additional financing will be in the form of equity, debt, or a combination of debt and equity.

 

Lease Obligations

 

The following table presents our contractual obligations at March 31, 2009, over the next five years and thereafter (in thousands):

 

Payments by period

 

Total
amount

 

Less than
1 year

 

1 to 3
years

 

3 to 5
years

 

After 5
years

 

 

 

 

 

 

 

 

 

 

 

 

 

Property lease

 

$

3,791

 

$

1,157

 

$

2,313

 

$

321

 

$

 

Equipment lease

 

193

 

56

 

103

 

34

 

 

 

 

$

3,984

 

$

1,213

 

$

2,416

 

$

355

 

$

 

 

We are obligated for the lease of our office and warehouse space. We lease a 50,000 square-foot office and warehouse and a separate 12,000 square-foot warehouse space in Culver City, California. The leases expire in June 2012 and August 2012, respectively. In March 2009, we extended the lease on our 50,000 square-foot office and warehouse by 32 months to expire in June 2012.

 

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Reclassification

 

Certain amounts from prior years have been reclassified to conform to the current year’s presentation.

 

ITEM 3 - QUANTITATIVE AND QUALITATIVE DISCLOSURE ABOUT MARKET RISK

 

Market risk represents the risk of loss arising from adverse changes in market rates and foreign exchange rates. We do not believe that a change in market interest rates would have a material effect on our results of operations or financial condition. Although we derive a portion of our sales outside of the United States, all of our sales are denominated in U.S. dollars. We have limited exposure to financial market risks, including changes in interest rates and foreign currency exchange rates.

 

ITEM 4 - CONTROLS AND PROCEDURES

 

Evaluation of Disclosure Controls and Procedures

 

Under the supervision and with the participation of our management, including our Chief Executive Officer and Chief Financial Officer, we evaluated the effectiveness of the design and operation of our disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934) as of the end of the period covered by this report.  Disclosure controls and procedures are the controls and other procedures that we designed to ensure that we record, process, summarize and report in a timely manner the information we must disclose in reports that we file with or submit to the Securities and Exchange Commission.  Based on this evaluation, our Chief Executive Officer and our Chief Financial Officer concluded that, as of the date of their evaluation, our disclosure controls and procedures were effective. There were no significant changes made in our internal controls or in other factors that could significantly affect internal controls subsequent to the date of their evaluation.

 

Report of Management on Internal Control over Financial Reporting

 

Management is responsible for establishing and maintaining adequate internal control over financial reporting, as defined in Rule 13a-15(f) of the 1934 Act. Our internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. Internal control over financial reporting include those policies and procedures that (1) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect our transactions and dispositions of our assets; (2) provide reasonable assurance that our transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that our receipts and expenditures are being made only in accordance with appropriate authorizations; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of our assets that could have a material effect on our financial statements.

 

We assessed the effectiveness of our internal control over financial reporting as of March 31, 2009, using the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission (COSO) in Internal Control — Integrated Framework. Based on this assessment, management has concluded that our internal control over financial reporting was effective as of March 31, 2009.

 

Changes in Internal Control over Financial Reporting

 

There were no changes in our internal control over financial reporting (as defined in Rule 13a-15(f) under the Securities Exchange Act of 1934) during the quarter ended March 31, 2009, that our certifying officers concluded materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.

 

Limitations on Controls

 

Management does not expect that our disclosure controls and procedures or our internal control over financial reporting will prevent or detect all error and fraud. Any control system, no matter how well designed and operated, is based upon certain assumptions and can provide only reasonable, not absolute, assurance that its objectives will be met. Further, no evaluation of controls can provide absolute assurance that misstatements due to error or fraud will not occur or that all control issues and instances of fraud, if any, within the Company have been detected. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.

 

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PART II. OTHER INFORMATION

 

ITEM 1. LEGAL PROCEEDINGS

 

On February 10, 2009, the Securities and Exchange Commission (“SEC”) issued a subpoena to produce documents relating to the Company’s inventory reserve policies, as well as other matters. We have been cooperating fully with the SEC regarding this matter.

 

On or about January 15, 2009, Landmark Technology, LLC (“Landmark”) filed a First Amended Complaint in the civil action titled Landmark Technology, LLC v. Zale Corp, et al. in the U.S. District Court for the Eastern District of Texas. The First Amended Complaint added the Company as a defendant and alleged that the Company infringed and is infringing certain patents of Landmark directly, contributory and by inducement. The First Amended Complaint seeks a temporary, preliminary and permanent injunction against infringement of the Landmark patents, damages (including a reasonable royalty and lost profits), enhanced or exemplary damages, a finding that the alleged infringement is “willful,” attorneys fees, costs and other relief. In April 2009, we have entered into  settlement negotiations.

 

On or about September 29, 2008, we were served with a lawsuit filed in the U.S. District Court for the Central District of California by Marla Tidenberg against Bidz.com, Mr. Zinberg and Marina Zinberg. The lawsuit purports to represent a class and alleges, among other things, that we engaged in unfair business practices by misrepresenting the value of our merchandise and by “false” bidding. The complaint purports to represent a class of persons who purchased any merchandise from us. We believe that the lawsuit is meritless and intend to defend the case vigorously.

 

We are, from time to time, a party to disputes arising from normal business activities, including various employee-related matters. In the opinion of our management, resolution of these matters, individually or collectively, will not have a material adverse effect upon our financial condition or future operating results.

 

ITEM 1.A. RISK FACTORS

 

We believe the risks and uncertainties described below are the most significant we face. The occurrence of any of the following risks could harm our business. In that case, the value of our common stock could decline, and you may lose part or all of your investment. Additional risks and uncertainties not presently known to us or that we currently deem immaterial may also impair our operations.

 

The trading price in our common stock may be volatile and you may lose all or part of your investment.

 

The market price of our common stock has been subject to significant fluctuations and these fluctuations could continue. Some factors that could affect the market price of our common stock are as follows:

 

·                  actual or anticipated changes in our operating results,

 

·                  our stock is subject to short selling and may cause trading in our common stock to be volatile,

 

·                  changes in research analysts’ recommendations or estimates of financial performance,

 

·                  changes in market valuation of similar companies, economic and general market conditions,

 

·                  announcements of significant contracts, company developments, commercial relationships, banking credit facilities, capital commitments, acquisitions or joint ventures,

 

·                  issuance of additional shares of common stock or other securities, and

 

·                  intellectual property or litigation development.

 

Trading in our common stock may experience significant price and volume fluctuations and adversely affect the trading price of our common stock. Following periods of volatility in the market price of a public company’s securities, securities class action litigation has often been instituted against that company. Such litigation could result in substantial cost and a diversion of management’s attention and resources.

 

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The adverse domestic and global economic conditions or the perception of said conditions may have adverse effects on our growth and operating results.

 

The continued success of our business depends on the willingness of our customers to spend in a discretionary manner.  While we do offer lower priced merchandise and may consequently fare better than those who exclusively offer more expensive merchandise, jewelry is essentially perceived as a luxury good. If the economy continues to decline it will cause people to feel less comfortable purchasing discretionary goods and would cause a negative effect on our operating results. Our annual and quarterly operating results may vary significantly in the future based on economic factors over which we have little or no control. Because we have little or no control over these factors and/or their magnitude, our operating results are difficult to predict. Any substantial adverse change in the economic factors could negatively affect our business and results of operations.

 

Our business has been and may continue to be significantly impacted by the decline in worldwide economic conditions, and the current uncertainty in the outlook for the global economy makes it more likely that our actual results will differ materially from expectations .

 

Global financial markets have been experiencing extreme disruptions in recent months, including severely diminished liquidity and credit availability, declines in consumer confidence, declines in economic growth, increases in unemployment rates, and uncertainty about economic stability. There can be no assurance that there will not be further deterioration in financial markets and confidence in economic conditions.  These economic uncertainties affect businesses such as ours in a number of ways, making it difficult to accurately forecast and plan our future business activities. The current tightening of credit in financial markets may lead consumers to postpone spending, which may cause our customers to reduce purchases of jewelry. Demand for jewelry is a function of the health of the economies in the United States and around the world. Since the US economy and other economies around the world are in a recession, the demand for jewelry has been and may continue to be adversely affected and therefore, demand for our jewelry products and our operating results have been and may continue to be adversely affected as well. We cannot predict the timing, strength or duration of any economic disruption or subsequent economic recovery, worldwide, in the United States, in our industry, or in the jewelry market. These and other economic factors have had and may continue to have a material adverse effect on demand for our jewelry products and on our financial condition and operating results.

 

Our future operating results are highly dependent upon how well we manage our business to respond to the economic recession.

 

Our annual and quarterly operating results may fluctuate based on how well we manage our business to respond to the economic recession. Some of these factors include the following:

 

·          our ability to manage our sales and marketing efforts;

·          our ability to structure our organization to achieve our operating objectives and to meet the needs of our customers; and

·          our ability to manage expenses and inventory levels.

 

If we fail to manage our business effectively, our results of operations could be adversely affected.

 

We will devote necessary resources to respond promptly and thoroughly to the SEC investigation.

 

On February 10, 2009, the Securities and Exchange Commission (“SEC”) issued a subpoena to us to produce documents relating to the Company’s inventory reserve policies, as well as other matters. We intend to cooperate fully with the SEC’s formal investigation, and our management will devote the resources required to respond promptly and thoroughly to any request by the SEC for any additional information or documents. Although the investigation is in its preliminary stages, and it is therefore difficult to predict the time required by senior management to respond to it, we do not presently anticipate that the investigation will adversely affect management, our results of operations or our financial position. Until the investigation is concluded, however, it is difficult to assess its impact on us.

 

We must continue to generate a high volume of visitor traffic to our website and convert those visitors into buyers.

 

Our net revenue depends to a significant extent on the number of customers who visit our website to purchase merchandise and the dollar amount of their purchases. Generating increased traffic to our website and converting that traffic into buyers requires us to achieve effective results from our marketing campaigns; offer a wide variety of products that our customers can purchase at favorable prices; maintain a user-friendly shopping experience; ensure the satisfactory availability, performance,

 

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and reliability of our website, network infrastructure, and transaction processing systems; and provide high-quality customer service. Our business will be harmed if we are unable to increase our customer base and the dollar volume of the orders customers place with us.

 

We are subject to “prank” bidding by persons who are not required to provide their identification.

 

Presently, we do not require new users to our site to provide their identification upon registration. Consequently, from time to time we are subject to “prank” bidders who may win auctions but do not intend to purchase our merchandise.  Although the Company re-auctions merchandise not purchased by such bidders, a large number of failed auctions in which winning bidders do not complete their purchases could adversely affect our results of operations.

 

We may face increasing costs to acquire new customers.

 

The acquisition of new customers is a key factor in increasing demand for our jewelry products and increasing our revenue. We currently attract new customers by driving traffic to our website using a marketing and advertising strategy that includes targeted keyword searches, online banner advertising, targeted e-mail advertising, and participation in affiliate programs. We do not maintain long-term contracts or arrangements with any companies, including any search engines, Internet portals, or other websites, and we may not successfully enter into additional relationships or maintain existing ones. In addition, traffic to our website could decline if our online marketing programs become less effective or the traffic decreases to the search engines, Internet portals, and websites with which we advertise. Our business could be materially and adversely affected if any substantial number of companies on which we advertise experience financial or operational difficulties or experience other corporate developments that adversely affect their performance. A failure to maintain or expand existing online advertising relationships or to establish additional online advertising relationships that generate a significant amount of traffic from other websites could result in decreased sales or limit the growth of our business.

 

Our growth will depend on our ability to increase the popularity of our website, and we may not be able to do so effectively.

 

We believe that continuing to increase the popularity of our website will be critical to expanding our business. Promoting and positioning our website will depend largely on the success of our marketing efforts and our ability to provide a variety and sufficient quantity of high-quality products at attractive prices in a convenient manner. Promoting our website will require us to increase our marketing budget and otherwise increase our financial commitment to creating and maintaining brand loyalty among users. Brand promotion activities may not yield increased revenue, and even if they do, any increased revenue may not offset the expenses we incur in building our website popularity and our brand. If we do attract new users to our website, they may not conduct transactions on a frequent basis or in sufficient dollar amounts. If we fail to promote and maintain our website or incur substantial expenses in an unsuccessful attempt to promote and maintain our brand, our business would be harmed.

 

We anticipate expanding our international sales activities, causing our business to become increasingly susceptible to numerous risks that could affect our profitability.

 

In the three month period ended March 31, 2008 and 2009, 23.6% and 30.3%, respectively, of our net revenue was generated by shipments to customers outside of the United States. We plan, over time, to expand our reach into international markets. We do not, however, currently have any overseas fulfillment, distribution, or server facilities. We cannot be certain that we will be able to expand our global presence. In addition, there are certain risks associated with doing business on an international basis, including regulatory requirements, legal uncertainty regarding liability, tariffs, and other trade barriers, longer payment cycles, and potentially adverse tax consequences, any of which could adversely affect our business. Although our foreign sales historically have been denominated in U.S. dollars, we also may be subject to increased risks relating to foreign currency exchange rate fluctuations to the extent we decide to denominate our sales in foreign currencies.

 

Customer complaints or negative publicity about our customer service could adversely affect our reputation and, as a result, our business could suffer.

 

Customer complaints or negative publicity about our customer service could severely diminish consumer confidence and the use of our website. Effective customer service requires significant personnel expense, and this expense, if not managed properly, could significantly impact our profitability. The failure to manage or train our customer service representatives properly could compromise our ability to handle customer inquiries and complaints effectively. If we do not handle customer

 

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inquiries and complaints effectively, we may lose customer confidence. As a result, our revenue could suffer and our operating margin may decrease.

 

Our limited operating history makes it difficult for us to forecast accurately net revenue and appropriately plan our expenses.

 

We have a limited operating history. As a result, it is difficult to forecast accurately our sales or operating expenses. We base our estimated expense levels on our operating forecasts and estimates of future sales. Sales and results of operations are difficult to forecast because they generally depend on the number, dollar volume, and timing of the orders we receive, which are uncertain. Some of our expenses are fixed, making it difficult to adjust our spending in a timely manner to take into account any unexpected shortfall in sales. We may also be unable to adjust spending in a timely manner to compensate for any unexpected sales shortfall, which could cause our net income in a given quarter to be lower than expected.

 

Quarterly financial results may not be consistent and impact our stock price.

 

There are numerous influences on our quarterly financial results that extend beyond the normal seasonal trends. Fluctuations that are under our control include: our ability to influence the timing and quantity of items we place for auction; our decision to acquire merchandise at favorable prices; our expenditures on marketing and our ability to attract customer visits to our website. Fluctuations that are not under our control that may directly impact our quarterly financial results include: changes in market price for precious metals and gems; changes in consumers’ discretionary income and demand for our products; and changes in fashion trends.

 

We may be at risk to accurately report financial results or detect fraud if we fail to maintain an effective system of internal controls.

 

As directed by Section 404 of the Sarbanes-Oxley Act of 2002, the Securities and Exchange Commission adopted rules requiring public companies to include a report that contains an assessment by management on the company’s internal control over financial reporting in their annual reports on Form 10-K. In addition, the independent registered public accounting firm auditing the company’s financial statements must attest to and report on our assessment of the effectiveness of the internal controls over financial reporting. While we are consistently working on improvements and conducting rigorous reviews of our internal controls over financial reporting, our independent auditors may interpret Section 404 requirements and apply related rules and regulations differently. If our independent auditors are not satisfied with our internal control over financial reporting or with the level at which it is documented, operated or reviewed, they may decline to attest to management’s assessment or issue a qualified report. Additionally, if we are not able to meet all the requirements of Section 404 in a timely manner or with adequate compliance, we might be subject to sanctions or investigation by regulatory authorities, such as the Securities and Exchange Commission.

 

Future changes in our accounting, financial reporting, and regulatory environment may create new areas of risk exposure. Failure to modify our existing control environment accordingly may impair our controls over financial reporting and cause our investors to lose confidence in the reliability of our financial reporting, which may adversely affect our stock price.

 

We do not have a guaranteed supply of jewelry products, and we have a concentration of inventory purchases from our top two suppliers.

 

The success of our business depends, in part, on our ability to offer our customers a wide variety of jewelry that they can purchase at prices that are substantially below those of traditional jewelry retailers. We do not have any formal or binding supply agreements with any of our manufacturers, distributors, or other suppliers for our supply of jewelry products. As a result, we do not have a guaranteed supply of jewelry products at favorable prices. Our inability to maintain and expand our jewelry supply relationships or the inability of our suppliers to continue to supply us with jewelry products at favorable prices would substantially harm our business and results of operations.

 

In addition, we have a concentration of inventory purchases from a small number of suppliers. Our top two suppliers accounted for approximately 31.1%, 24.0% and 14.6% of our total purchases in 2006, 2007, and 2008, respectively. In the three month period ended March 31, 2008 and 2009, 13.2% and 17.4%, respectively, were purchased from our top two suppliers.

 

We may give substantial deposits of inventory to our manufacturing vendors to produce finished jewelry products.

 

We may be at risk of loss for the diamonds, precious and semi-precious gems that we have given to our manufacturing vendors to produce into finished jewelry products. If the businesses of the vendors fail, the diamond inventory is lost or

 

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stolen, the vendors do not have adequate insurance coverage or if the vendors fail to produce and deliver finished jewelry products, we would incur substantial losses that would have a material impact on our net income and financial position.

 

Competition from online auctioneers and other online companies with greater brand recognition may adversely affect our sales.

 

The market for online auctions is rapidly evolving and intensely competitive. We expect competition to intensify further in the future. Barriers to entry are relatively low, and current and new competitors can launch new websites at relatively low cost using commercially available software.

 

We currently compete with a number of other companies, and other competitors may appear in the future. Our competitors currently include various online auction services and retailers that offer jewelry, including eBay, Blue Nile, Overstock, and uBid. We also encounter competition from national jewelry retail chains, such as Zales, Kay Jewelers, and Finlay Fine Jewelry, and mass retailers and other enterprises that sell jewelry, such as Wal-Mart, Target, J. C. Penney, Costco, QVC, and Home Shopping Network. Many of our competitors have greater brand recognition, longer operating histories, larger customer bases, and significantly greater financial, marketing, and other resources than we do. Smaller competitors may enter into strategic or commercial relationships with larger, more established, and well-financed companies. Other competitors may enter into exclusive distribution agreements with our suppliers that deny us access to suppliers’ products. Competitors may also devote greater resources to marketing and promotional campaigns and to website and systems technology than we do. We may not be able to compete successfully against current and future competitors or address increased competitive pressures. Furthermore, attempts have been made in the past to develop and market synthetic stones and gems to compete in the market for gemstones and gemstone jewelry. We expect such efforts to continue in the future. If any such efforts are successful in creating widespread demand for synthetic or alternative gemstone products, demand and price levels for our products could decline and our business and results of operations would be substantially harmed.

 

We rely heavily on the sale of jewelry for our net revenue, and demand for these products could decline.

 

Luxury products, such as jewelry, are discretionary purchases for consumers. The volume and dollar amount of such purchases may be affected by adverse trends in the general economy and consumer perceptions of those trends, and purchases may significantly decrease during economic downturns. The success of our business depends in part on macroeconomic factors, such as employment levels, salary levels, tax rates, and credit availability, all of which affect disposable income and consumer spending. Any reduction in disposable income or consumer spending may affect us more significantly than companies in other industries.

 

Our net revenue and results of operations depend in part on the demand for jewelry. Consumers’ tastes are subject to frequent, significant, and sometimes unpredictable changes. Should prevailing consumer tastes for jewelry change or the demand for jewelry decrease, the sale of our products could decline and our business and results of operations would suffer.

 

Furthermore, our ability to increase our net revenue and enhance our profitability may depend on our ability to expand our product offerings beyond our current offerings. If we offer new products that are not accepted by customers, our brand and reputation could be adversely affected, our sales may fall short of expectations, and we may incur substantial expenses that are not offset by increased sales.

 

Because we carry all of our jewelry products in inventory, our net revenue and gross margin may decrease if we are unable to predict and plan for changes in consumer demand.

 

If our sales increase, we will be required to increase our inventory proportionately. Consumer tastes and preferences for jewelry products can change rapidly, thereby exposing us to significant inventory risks. Currently, because the products we sell also consist of closeout merchandise from manufacturers, distributors, and other suppliers, we have less control over the specific items that we offer for sale than we would if we primarily ordered goods manufactured for us. In addition, it is important that we are able to purchase jewelry that we perceive to be in demand. The demand for specific products can change between the time we order items and when we sell them. As a result, we may be required to take significant inventory markdowns, which could reduce our gross margin, if we do not accurately predict these trends or if we overstock unpopular merchandise.

 

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We may be subject to a tax liability for past sales and our future sales may decrease if we are required to collect sales and use taxes on the products we sell.

 

In accordance with current industry practice and our interpretation of current law, we do not currently collect sales or other taxes with respect to shipments of goods into states other than California and New York. However, additional states or foreign countries may seek to impose sales or other tax obligations on us in the future. A successful assertion by one or more states or foreign countries that we should be collecting sales or other taxes on the sale of our products could result in substantial tax liabilities for past and future sales, discourage customers from purchasing products from us, decrease our ability to compete with traditional retailers, and otherwise substantially harm our business, financial condition, and results of operations.

 

We rely on suppliers and third-party carriers as part of our fulfillment process, and these third parties may fail to meet shipping schedules or requirements.

 

We rely on suppliers to deliver our orders promptly, which we then carry in inventory to ensure availability and expedited delivery to our customers. We also rely on third-party carriers to ship our products to our customers. As a result, we are subject to various risks, including employee strikes and inclement weather, associated with the ability of third-party carriers to provide delivery services to meet our shipping needs and those of our suppliers. The failure of our suppliers and third-party carriers to deliver products to us or our customers in a timely manner or otherwise to serve us or our customers adequately would damage our reputation and brand and substantially harm our business and results of operations.

 

Increases in the cost of precious metals and precious and semi-precious stones would increase the cost of our jewelry products.

 

The jewelry industry is affected by fluctuations in the prices of precious metals and precious and semi-precious stones. The availability and prices of gold, silver, platinum, and other precious metals and precious and semi-precious stones may be influenced by such factors as cartels, political instability in exporting countries, changes in global demand, and inflation. Shortages of these materials or an increase in their prices could reduce the quantity of products we have available for sale and our ability to sell our products for more than our cost, causing reduced sales or lower margins compared to our historical and expected sales and margins.

 

The satisfactory availability, performance, and reliability of our website, network infrastructure, and transaction processing systems are critical to our ability to attract, retain, and service customers.

 

Any problems with the availability, performance, or reliability of our website, network infrastructure, or transaction processing systems could result in decreased customer traffic, reduced orders, reduced order fulfillment performance, and lower net revenue as well as negative publicity and damage to our reputation. In order to remain competitive, we must continually seek to improve and expand the functionality and features of our website, network infrastructure, transaction processing systems, and delivery and shipping functions to accommodate any substantial increase in the volume of traffic to and orders from our website. We may not be successful in these efforts, and we may not be able to project accurately the rate or timing of increases, if any, in the use of or sales from our website, or timely expand or upgrade our website, infrastructure, or systems to accommodate any such increases. Additionally, we may not be able to remedy any such availability, performance, or reliability problems in a timely manner, or at all, because we depend in part on third parties for such availability, performance, and reliability.

 

Our business and results of operations would be harmed in the event of any failure of our auction and bidding systems hardware, which is located at a single third-party co-location facility, or any failure of our fulfillment and administrative hardware.

 

Our business depends in part on the efficient and uninterrupted operation of our computer and communications hardware. The servers and other hardware necessary to operate our website, including our auction and bidding systems, are located at a single third-party co-location facility in El Segundo, CA. We rely on that facility to provide Internet access with the speed, capacity, and reliability we require. Our servers and other hardware that run our transaction processing, order fulfillment, and office administration tasks are located at our headquarters. Our servers and other hardware are vulnerable to damage or interruption from human error, fire, flood, power loss, telecommunications failure, terrorist attacks, acts of war, break-ins, earthquakes, and similar events. We do not currently have redundant systems in multiple locations or a formal disaster recovery plan, and our business interruption insurance may be insufficient to compensate us for any losses that may occur. In

 

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addition, our servers are vulnerable to computer viruses, physical or electronic break-ins, and similar disruptions, which could lead to interruptions, delays, loss of critical data, the inability to accept and fulfill customer orders, or the unauthorized disclosure of confidential customer data. System disruptions or failures would also create a large number of customer questions and complaints that need to be addressed by our customer service support personnel. The occurrence of any of the foregoing risks could substantially harm our business and results of operations. Our systems are vulnerable to damage or interruption from earthquakes, floods, fires, power loss, telecommunication failures, terrorist attacks, computer viruses, computer denial-of-service attacks, and similar events.

 

Our failure to protect confidential information of our customers and our network against security breaches could damage our reputation and substantially harm our business and results of operations.

 

A significant barrier to online commerce and communications is the secure transmission of confidential information over public networks. Third parties may have the technology or expertise to breach the security of customer transaction data. Our security measures may not prevent security breaches that could result in substantial harm to our business and results of operations and damage to our reputation. Currently, a majority of our sales are billed to our customers’ credit card accounts directly. Under current credit card practices, we are liable for fraudulent credit card transactions because we do not obtain cardholder signatures. We rely on encryption and authentication technology licensed from third parties to effect secure transmission of confidential information, including credit card numbers. We do not currently carry insurance against this risk. Advances in computer capabilities, new discoveries in the field of cryptography, or other developments may result in a compromise or breach of the technology we use to protect customer transaction data. In addition, anyone who is able to circumvent our security measures could misappropriate proprietary information or cause interruptions in our operations. Any such compromise of our security could damage our reputation and brand and expose us to a risk of loss or litigation and possible liability, which would substantially harm our business and results of operations.

 

We are vulnerable to fraudulent activities on our website, including unauthorized use of customer information and identity theft by third parties.

 

Our network security measures to prevent third parties from penetrating our network and improperly accessing our customers’ personal information or credit card information may not be successful. Although we have not experienced any theft of our customers’ credit card information to date, as new discoveries in the field of cryptography and advances in computer capabilities occur, our security measures may not effectively prevent others from obtaining improper access to our customer information. In addition, third parties may target our customers directly with fraudulent identity theft schemes designed to appear as legitimate e-mails from us. In March 2006, one such third party attempted to solicit customer information through a tactic, commonly known as “phishing,” whereby an e-mail purporting to be from us solicited customer information from recipients of the e-mail. Any such security breach or fraud perpetrated on our customers could expose us to increased costs and could harm our business and results of operations.

 

Our ability to grow our business will be impaired by delays, interruptions, or failures of the Internet.

 

Our success depends on the continued growth and maintenance of the Internet. The Internet has experienced, and is likely to continue to experience, significant growth in the numbers of users and amount of traffic. If Internet usage continues to grow as anticipated, the infrastructure may not be able to support the level of usage and its performance and reliability may decline. If outages or delays on the Internet increase, overall Internet usage could grow more slowly or decline. In addition, the performance of the Internet may be harmed by increased number of users or bandwidth requirements or by viruses, worms, and similar issues. The Internet has experienced a variety of outages and other delays as a result of damage to portions of its infrastructure, and it could face outages and delays in the future. These outages and delays could reduce the level of Internet usage.

 

We depend on the continued growth and acceptance of online commerce, and our business will be substantially impaired if the growth of online commerce slows or does not grow as expected.

 

Our success depends on the widespread acceptance and use of the Internet as an effective medium for commerce by consumers. The acceptance and use of the Internet may not continue to expand as expected, and a sufficient broad base of consumers necessary for its continued growth may not adopt the Internet as a medium for commerce. Consumers who historically have used traditional means of commerce may have concerns about privacy, the inability to physically inspect merchandise before buying, delivery time, product damage during shipment, and the costs and inconvenience involved in returning purchased items, which may inhibit their crossover to e-commerce. In order to expand our user base, we must

 

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appeal to and acquire consumers who historically have used traditional means of commerce to purchase goods. If these new customers execute fewer or lower dollar amounts of orders than our historical users, and we are unable to gain efficiencies in our operating costs, including the cost of acquiring new customers, our business and profits could be adversely affected.

 

Increased product returns and the failure to predict product returns could substantially harm our business and results of operations.

 

As we expand our business and product offerings, rates of product return may increase. Any significant increase in product returns above our return assumptions and allowances could substantially harm our business and results of operations.

 

Our inventory is vulnerable to damage or loss caused by fire, flood, earthquakes, and similar events, and we face the risk of theft of our products from inventory or during shipment.

 

Our inventory is stored at our warehouse/office facility in Culver City, California. Consequently, our merchandise supply is vulnerable to fire, flood, earthquakes, and similar events that may impact our facility. Any damage to or loss of all or a significant portion of our inventory could cause significant delays in shipment of goods to our customers, resulting in negative publicity about and diminished customer confidence in our website. In addition, we may experience theft of our products while they are being held in inventory or during the course of their shipment to our customers by third-party carriers. We have implemented security measures to prevent such theft and maintain insurance to cover losses resulting from theft. Nevertheless, we could incur significant losses from theft, which would substantially harm our business and results of operations, if our security measures fail, losses exceed our insurance coverage, or we are not able to maintain insurance at a reasonable cost.

 

Increases in credit card processing fees could increase our costs.

 

Visa, MasterCard, American Express, and Discover Card could increase the interchange fees that they charge for transactions using their cards. Increases in interchange fees may result in increased operating costs and reduced profit margin.

 

We may default on our obligations, if we are unable to generate sufficient cash through sales in a timely manner.

 

Since our formation, we have funded our operations through the sale of equity securities and cash generated from operations. The working capital characteristics of our business have allowed us to collect cash from sales to customers within several business days of the related sale, while we typically have extended payment terms with our suppliers. We do not, however, have any formal or binding supply agreements with any of our suppliers, manufacturers, distributors, or other suppliers or any other formal agreements with them on payment terms. Accordingly, there is a risk that we may default on our obligations if we are unable to generate sufficient cash through sales in a timely manner or through our credit facility.

 

Seasonal fluctuations in our net revenue could cause our quarterly results to fluctuate and cause our results of operations to be below expectations.

 

Historically, sales in the jewelry industry are seasonal and have been higher in the fourth quarter of the calendar year as a result of higher consumer spending during the December holiday season. Approximately 28.5%, 33.8% and 16.9% of our net revenue was generated during the fourth quarter of 2006, 2007 and 2008, respectively. The fourth quarter of 2008 was an exception as we encountered a significant slowdown in sales resulting from the 2008 financial and economic crisis. As we continue to grow, we expect to experience more pronounced seasonal fluctuations in our net revenue and anticipate a disproportionate amount of our revenue will occur in the fourth quarter. In anticipation of any increased sales activity during the fourth quarter, we may incur significant additional expenses, including higher sales and marketing costs and additional staffing in our fulfillment and customer support operations. If we were to experience lower than expected sales during any future fourth quarter, it would have a disproportionately large impact on our results of operations for that year. In the future, our seasonal sales patterns may become more pronounced, may strain our personnel and fulfillment activities, and may cause a shortfall in sales compared with expenses in a given period, which would substantially harm our business and results of operations.

 

Sales growth in prior periods may not be indicative of our future growth.

 

Our sales have fluctuated significantly in the past, in part, as a result of varying amounts of funds we have spent on advertising and inventory levels and may fluctuate significantly in the future because of increasing advertising and inventory

 

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costs. These factors may prevent the meaningful use of period-to-period comparisons of financial results. For these and other reasons, investors should not rely on past sales growth rates as a prediction of our future sales growth.

 

We had grown quickly, and our business will suffer if we fail to manage our future growth.

 

We had expanded our operations at a rapid pace prior to the 2008 financial and economic crisis. This expansion had placed a significant strain on our management, operations, and financial resources. When the economy recovers, we anticipate adding personnel in the future, including managerial, technical, and operations personnel. In order to manage the future growth of our operations, we also will be required to improve existing and implement new transaction-processing, operational and financial systems, procedures, and controls. If we are unable to manage growth effectively, our business and results of operations will be harmed.

 

Descriptions of our jewelry items are not guarantees and may confuse, mislead, or disappoint our customers.

 

In an effort to provide accurate descriptions of jewelry posted on our website, we provide appraisal summaries from third-party gemological laboratories for some of our jewelry items. All other jewelry and watch descriptions are provided by our full-time Gemological Institute of America, or GIA, trained gemologists and several experienced product specialists. Nevertheless, there is a subjective component involved with respect to assessing the clarity, color, and carat characteristics of diamonds and other gemstones. In addition, mistakes or omissions of important information in our descriptions may occur. Even if our descriptions are accurate, buying a product online may lead to disappointment resulting in returned merchandise. For example, a customer may determine that a piece does not have the expected look, feel, and overall appearance of the merchandise that the buyer envisioned from the website photograph.

 

Additionally, in response to customer requests and as a courtesy to resellers, we provide “Compare,” and/or “Retail” prices for jewelry items listed on our website. Compare prices are not meant to reflect fair market values or manufacturer suggested retail prices, and in fact, may be higher than prices found in local retail stores. As a consequence, perceived misrepresentations in item descriptions by disappointed buyers may occur, resulting in negative publicity about and diminished customer confidence in our website.

 

We may unknowingly be involved in “conflict” diamond purchases that result in a negative public relationship impact.

 

There has been an increase in attention to “conflict” diamonds originating out of war-torn regions of Africa. The proceeds from the sale of “conflict” diamonds have been used to fund ongoing aggression and terrorist activities throughout the world. We make every effort to evaluate our vendor sources to ensure they are not a dealer in “conflict” diamonds. In addition we have implemented an anti-money laundering program to guard against both illicit purchase and sales activities. If these risks were to occur, we may face a negative public reaction to our brand name resulting in loss of sales.

 

We may not be able to maintain our domain name uniqueness.

 

Our Internet domain name is critical to our success. Under current domain name registration practices, no other entity can obtain an identical domain name, but can obtain a similar name or the identical name with a different suffix, such as “.net” or “.org,” or with a different country designation, such as “jp” for Japan. We have not registered our domain name with different suffixes nor have we registered our name in any other jurisdiction. As a result, third parties may use domain names that are similar to our domain name, which may result in confusion to potential customers and lost sales. We are aware that other businesses have registered the name “bidz” with other suffixes and in other countries.

 

We may be subject to assertions by third parties for infringement on their intellectual property rights.

 

Third parties may in the future assert that we have infringed on their intellectual property rights as we self-develop our auction platform, sales transaction system, and inventory control system.  We have a larger exposure to being accused of intellectual property rights infringements than if we had purchased our technology off the shelf. We also may be at risk for selling items that infringe on other third party trade dress rights, copyright, or patent rights that may cause the offended party to bring an action against us. In either event of alleged infringement, we would face substantial litigation cost to defend ourselves and utilization of our management and personnel resources.

 

We may be unable to protect or enforce our own intellectual property rights adequately, and we may become subject to intellectual property litigation.

 

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We regard the protection of our trademarks, copyrights, domain name, trade dress, and trade secrets as critical to our success. We rely on a combination of common law as well as trademark, copyright, trade dress, and trade secret laws to protect our intellectual property rights. We also have entered into confidentiality and invention assignment agreements with our employees and relevant contractors and nondisclosure agreements with relevant parties with whom we conduct business in order to limit access to and disclosure of our proprietary information. These contractual arrangements and other steps we have taken to protect our intellectual property may not prevent misappropriation of our intellectual property or deter independent development of similar intellectual property by others. We also are pursuing the registration of our domain name, trademarks, and service marks in the United States and internationally. Effective trademark, copyright, patent, trade dress, trade secret, and domain name protection is very expensive to maintain and may require litigation. We must protect our trademarks, copyrights, patents, and domain names in an increasing number of jurisdictions, a process that is expensive and may not be successful in every location.

 

Third parties may from time to time claim that we have infringed their intellectual property relating to our business model or auction systems. We expect that participants in our market increasingly will be subject to infringement claims as the number of services and competitors in our industry segment grows. Any claim like this, whether meritorious or not, could be time-consuming, result in costly litigation, cause service upgrade delays, or require us to enter into royalty or license agreements. These royalty or license agreements may not be available on acceptable terms or at all. As a result, any such claim could harm our business.

 

We may be unable to enforce protection of our intellectual property rights under the laws of other countries.

 

We anticipate that we will become increasingly subject to international intellectual property risks, including differing intellectual property laws, which may be insufficient to protect our intellectual property, unique local laws, and lack of applicable law or clear precedent.

 

Various legal rules and regulations related to privacy and the collection, dissemination, and security of personal information may adversely affect our marketing efforts.

 

We are subject to increasing regulation at the federal, state, and international levels relating to privacy and the use of personal user information designed to protect the privacy of personally identifiable information as well as to protect against its misuse. These laws include the Federal Trade Commission Act, the CAN-SPAM Act of 2003, the Children’s Online Privacy Protection Act, the Fair Credit Reporting Act, the Homeland Security Act, and related regulations. Several states have proposed legislation that would limit the use of personal information gathered online or require online services to establish privacy policies. Moreover, proposed legislation in the United States and existing laws in foreign countries require companies to establish procedures to notify users of privacy and security policies, obtain consent from users for collection and use of personal information, and/or provide users with the ability to access, correct, and delete personal information stored by companies. These regulations and other laws, rules, and regulations enacted in the future may adversely affect our ability to collect, disseminate, or share demographic and personal information about users and our ability to e-mail or telephone users, which could be costly and adversely affect our marketing efforts.

 

We may be subject to regulations governing the conduct and liability of auctioneers, which could affect the way in which we conduct our business or otherwise increase our cost of doing business.

 

Numerous states and foreign jurisdictions, including California, where our headquarters are located, have regulations regarding how auctions may be conducted and the liability of auctioneers in conducting such auctions. No final legal determination has been made whether the California regulations apply to our business, and little precedent exists in this area. Several states and some foreign jurisdictions have attempted, and may attempt in the future, to impose regulations that could affect us or our users, which could harm our business.

 

We are subject to regulations relating to consumer privacy, which could increase the cost of our doing business, expose us to litigation costs, increase our service or delivery costs, and otherwise harm our business.

 

Several states have proposed, and California, Minnesota, Utah, and Vermont have recently passed, legislation that would limit the uses of personal user information gathered online or offline. Many states already have such laws and continually consider strengthening them, especially against online services. However, the Fair Credit Reporting Act, or FCRA, a federal statute enacted in 1970 to protect consumer privacy, includes a provision preempting conflicting state laws on the sharing of

 

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information between corporate affiliates. The preemptive provisions of FCRA were permanently extended in 2002, thereby ensuring that we are not subject to the laws of each individual state with respect to matters within the scope of FCRA, but remain subject to the other provisions of FCRA.

 

The Federal Trade Commission also has settled several proceedings against companies regarding the manner in which personal information is collected from users and provided to third parties. Specific statutes intended to protect user privacy have been passed in many foreign jurisdictions. Compliance with these laws, given the tight integration of our systems across different countries and the need to move data to facilitate transactions among our users, such as payment companies and shipping companies, is both necessary and difficult. Failure to comply could subject us to lawsuits, fines, criminal penalties, statutory damages, adverse publicity, and other losses that could harm our business. Changes to existing laws or the passage of new laws intended to address these issues could directly affect the way we do business or could create uncertainty on the use of the Internet. This could reduce demand for our products, increase the cost of our doing business, expose us to litigation costs, increase our service or delivery costs, or otherwise harm our business.

 

New and existing regulations could harm our business.

 

We are subject to the same foreign and domestic laws as other companies conducting both online and offline business. There are still relatively few laws specifically directed towards online business. However, due to the increasing popularity and use of the Internet and online services, many laws relating to the Internet are being debated at all levels of government around the world, and it is possible that such laws and regulations will be adopted. These laws and regulations could cover issues such as user privacy, freedom of expression, pricing, fraud, content and quality of products and services, taxation, advertising, intellectual property rights, and information security. Applicability to the Internet of existing laws governing issues, such as property ownership, copyrights and other intellectual property issues, taxation, libel and defamation, obscenity, and personal privacy is uncertain. The vast majority of these laws was adopted prior to the advent of the Internet and related technologies and, as a result, do not contemplate or address the unique issues of the Internet and related technologies. Those laws that do reference the Internet, such as the U.S. Digital Millennium Copyright Act and the European Union’s Directive on Distance Selling and Electronic Commerce, have only recently begun to be interpreted by the courts and implemented by the European Union member states, so their applicability and scope remain uncertain. As our activities and the types of goods listed on our website expand, regulatory agencies may claim that we or our users are subject to licensure in their jurisdiction, either with respect to our business in general, or in order to allow the sale of certain items, such as real estate, event tickets, boats, and automobiles.

 

In addition, because our products are available over the Internet in multiple states and because we sell merchandise to consumers residing in multiple states, we could be required to qualify to do business as a foreign corporation in each state in which our products are available. Our failure to qualify as a foreign corporation in a jurisdiction in which we are required to do so could subject us to penalties. Any new legislation or regulation, or the application of laws or regulations from jurisdictions whose laws do not currently apply to our business could have a material adverse affect on our business.

 

We depend to a very significant extent on David Zinberg, our Chairman of the Board and Chief Executive Officer.

 

Our performance depends substantially upon David Zinberg, our Chairman of the Board and Chief Executive Officer, who has extensive experience with the purchase and sale of jewelry. We rely on Mr. Zinberg to make critical operational decisions on a daily basis, such as product offerings and purchases, and to make key strategic plans. We have an employment agreement with Mr. Zinberg extending through 2009 and renewable annually. The loss of the services of Mr. Zinberg would adversely affect our business and operations.

 

Holders of common stock issued by us in prior offerings may be entitled to rescind their purchases.

 

From our inception until mid-2003, we raised over $20.5 million in gross equity capital by selling shares of our common stock to approximately 830 investors at prices ranging from $4.00 to $6.00 per share with a weighted average share price of $4.50. We also issued shares of common stock to about 30 persons in exchange for services and other non-cash consideration valued in excess of $5.5 million and issued approximately 250 stock option grants to purchase common stock at a weighted average exercise price of $4.45. After conducting these sales of our securities, we determined that these sales were not exempt from the registration requirements under the Securities Act of 1933 and similar provisions of laws of the states in which our stockholders reside, because certain of our employees who solicited investors engaged in a “general solicitation” of securities. In addition, these employees received compensation for selling our common stock and were required to be licensed as broker-dealers with the Securities and Exchange Commission, or SEC, and various state authorities, but they were

 

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not so licensed. In such situations, a number of remedies may be available to regulatory authorities and the investors who purchased common stock in those offerings, including a right of rescission, civil penalties, a restraining order or injunction, and a court order to pay restitution and costs. We believe, however, that as to any options by investors at this time or in the future, applicable statutes of limitations will mitigate our exposure to any civil remedies.

 

We do not intend to pay dividends on our common stock, and, consequently, your only opportunity to achieve a return on your investment is if the price of our common stock appreciates.

 

We have never declared or paid any cash dividends on our common stock and do not intend to pay dividends on our common stock for the foreseeable future. We intend to invest any future earnings to fund our business. Therefore, stockholders likely will not receive any dividends on our common stock for the foreseeable future. Investors cannot be certain that they will receive a positive return on their investment when they sell their shares or that they will not lose the entire amount of their investment.

 

The concentration of our capital stock ownership with our founder and executive officers and directors and their affiliates will limit your ability to influence corporate matters.

 

Our founder, executive officers, and directors together own approximately 31.4% of our common stock as of March 31, 2009. Marina Zinberg, our Vice President, who is the sister of David Zinberg, our Chairman and Chief Executive Officer, owns an additional 31.3% of our common stock.  As a result, these individuals will have significant influence over our management and affairs and over all matters requiring stockholder approval, including the election of directors and the approval of significant corporate transactions, such as a merger or a sale of our company or its assets, for the foreseeable future. This concentrated control will limit the ability of other stockholders to influence corporate matters. Because of this, we may take actions that some of our stockholders do not view as beneficial. As a result, the market price of our common stock could be adversely affected because stockholders may not view favorably the concentration of control in the hands of management.

 

Our charter documents and Delaware law could make it more difficult for a third party to acquire us, and discourage a takeover.

 

On June 22, 2006, we reincorporated in Delaware, and the Delaware certificate of incorporation and the Delaware General Corporation Law, or DGCL, contain provisions that may have the effect of making more difficult or delaying attempts by others to obtain control of our company, even when these attempts may be in the best interests of our stockholders. The Delaware certificate of incorporation also authorizes our Board of Directors, without stockholder approval, to issue one or more series of preferred stock, which could have voting and conversion rights that adversely affect or dilute the voting power of the holders of common stock. Delaware law also imposes conditions on certain business combination transactions with “interested stockholders.” The Delaware certificate of incorporation divides our Board of Directors into three classes, with one class to stand for election each year for a three-year term after the initial election. The classification of directors tends to discourage a third party from initiating a proxy solicitation or otherwise attempting to obtain control of our company and may maintain the incumbency of our Board of Directors, as this structure generally increases the difficulty of, or may delay, replacing a majority of directors. The Delaware bylaws authorize our Board of Directors to fill vacancies or newly created directorships. A majority of the directors then in office may elect a successor to fill any vacancies or newly created directorships.

 

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ITEM 2. UNREGISTERED SALES AND PURCHASES OF EQUITY SECURITIES

 

No stock awards and stock options were granted during the three months ended March 31, 2009.

 

Issuer Purchases of Equity Securities

 

The following table contains information about purchases of our common stock during the three months ended March 31, 2009:

 

 

 

 

 

 

 

Total Number of

 

Maximum

 

 

 

 

 

 

 

Shares

 

Dollar Value

 

 

 

Total

 

Average

 

Purchased as

 

of Shares that

 

 

 

Number

 

Price

 

Part of a

 

May

 

 

 

of

 

Paid

 

Publicly

 

yet be Purchased

 

 

 

Shares

 

per

 

Announced

 

Under the

 

2009

 

Purchased

 

Share

 

Program

 

Program (1)

 

January 1 – January 31

 

25,685

 

$

2.92

 

1,879,558

 

$

6,514,429

 

February 1 – February 29

 

43,734

 

2.95

 

1,923,292

 

$

19,885,607

 

March 1 – March 31

 

266,735

 

$

3.26

 

2,190,027

 

$

19,015,141

 

Total

 

336,154

 

 

 

 

 

 

 

 


(1)                                  In June 2007, we authorized the stock buyback program for up to $5 million of our outstanding common stock to be repurchased through the open market at prices deemed appropriate by management.  In February 2008, we authorized an increase in the stock buyback program to $20 million from $5 million. In February 2009, we authorized an increase in the stock buyback program to $33.5 million. The stock buyback will be at prices deemed appropriate by management over a 24 month period.

 

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ITEM 6. EXHIBITS

 

10.1

 

Addendum No. 3 to Standard Industrial/Commercial Multi-Tenant Lease — Net, dated March 26, 2009 (incorporated by reference to Exhibit 10.1 to Form 8-K filed April 1, 2009).

 

 

 

31.1

 

Principal Executive Officer Certification Pursuant to Rule 13a-14(a) of the Securities Exchange Act of 1934

 

 

 

31.2

 

Principal Financial Officer Certification Pursuant to Rule 13a-14(a) of the Securities Exchange Act of 1934

 

 

 

32.1

 

Certifications Pursuant to Rule 13a-14(b) of the Securities Exchange Act of 1934

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized.

 

 

BIDZ.COM, INC.

 

 

 

 

By:

/s/ DAVID ZINBERG

 

 

 

 

 

David Zinberg

 

 

President and Chief Executive Officer

 

 

 

 

By:

/s/ LAWRENCE KONG

 

 

 

 

 

Lawrence Kong

 

 

Principal Accounting Officer

 

 

 

Dated: May 5, 2009

 

 

 

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