-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, B4q76n/L9XZdBfg7qmuK7sVVUK/y8C69uBp3A5kpC4ZBu9gJSiCerhLCYoRPcLty UHtEimb6zp/zjfOyA7YcpQ== 0000950116-03-003881.txt : 20030915 0000950116-03-003881.hdr.sgml : 20030915 20030915133316 ACCESSION NUMBER: 0000950116-03-003881 CONFORMED SUBMISSION TYPE: 10-K PUBLIC DOCUMENT COUNT: 12 CONFORMED PERIOD OF REPORT: 20030630 FILED AS OF DATE: 20030915 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NEOWARE SYSTEMS INC CENTRAL INDEX KEY: 0000894743 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRONIC COMPUTERS [3571] IRS NUMBER: 232705700 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: 10-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-21240 FILM NUMBER: 03895292 BUSINESS ADDRESS: STREET 1: 400 FEHELEY DR CITY: KING OF PRUSSIA STATE: PA ZIP: 19406 BUSINESS PHONE: 6102778300 MAIL ADDRESS: STREET 1: 400 FEHELEY DR CITY: KING OF PRUSSIA STATE: PA ZIP: 19406 FORMER COMPANY: FORMER CONFORMED NAME: HDS NETWORK SYSTEMS INC DATE OF NAME CHANGE: 19950313 FORMER COMPANY: FORMER CONFORMED NAME: INFORMATION SYSTEMS ACQUISITION CORP DATE OF NAME CHANGE: 19930108 10-K 1 ten-k.txt SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 10-K (Mark One) [X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 For the fiscal year ended June 30, 2003 or [ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 Commission File Number 000-21240 --------- NEOWARE SYSTEMS, INC. (Exact name of registrant as specified in its charter) Delaware 23-2705700 (State or other jurisdiction of (IRS Employer incorporation or organization) Identification No.) 400 Feheley Drive, King of Prussia, Pennsylvania 19406 (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code: (610) 277-8300 Securities registered pursuant to Section 12(b) of the Act: Title of each class Name of each exchange on which registered None None ------------------- ----------------------------------------- Securities registered pursuant to Section 12(g) of the Act: Common Stock, par value $.001 per share --------------------------------------- (Title of Class) 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 __ Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulations S-K is not contained herein, and will not be contained, to the best of registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. _X_ The aggregate market value of the voting and non-voting common equity held by non-affiliates of the registrant computed by reference to the last reported sale price of the Common Stock as reported on the NASDAQ National Market on December 31, 2002 was approximately $199,002,000. In making such calculation, the registrant does not determine whether any director, officer or other holder of Common Stock is an affiliate for any other purpose. Indicate by checkmark whether the registrant is an accelerated filer (as defined in Exchange Act Rule 12b-2). YES _X_ NO __ The number of shares of the registrant's Common Stock outstanding as of August 26, 2003 was 15,643,650. DOCUMENTS INCORPORATED BY REFERENCE Portions of the registrant's definitive Proxy Statement for the Annual Meeting of Shareholders to be held on December 3, 2003 are incorporated by reference into Part III. Those portions of the Proxy Statement included in response to Item 402(k) and 402(1) of Regulation S-K are not incorporated by reference into Part III. 2
TABLE OF CONTENTS PAGE ----------------- ---- PART I ...........................................................................................................4 Item 1. Business..................................................................................4 Item 2. Properties................................................................................9 Item 3. Legal Proceedings........................................................................10 Item 4. Submission of Matters to a Vote of Security Holders......................................10 PART II .........................................................................................................10 Item 5. Market for Registrant's Common Equity and Related Shareholder Matters....................10 Item 6. Selected Financial Data..................................................................12 Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operations....12 Item 7A Quantitive and Qualitative Disclosures About Market Risk.................................27 Item 8. Financial Statements and Supplementary Data..............................................27 Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure.....27 Item 9A Controls and Procedures .................................................................28 PART III ........................................................................................................28 Item 10. Directors and Executive Officers of the Registrant.......................................28 Item 11. Executive Compensation...................................................................29 Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters..............................................................29 Item 13. Certain Relationships and Related Transactions...........................................29 PART IV .........................................................................................................29 Item 14. Principal Accounting Fees and Services ..................................................30 Item 15. Exhibits, Financial Statement Schedules and Reports on Form 8-K..........................30
3 PART I ITEM 1. BUSINESS. Neoware Systems, Inc. (the "Company") provides software, services and solutions to enable Appliance Computing, a proven Internet-based computing architecture targeted at business customers that is designed to be easier to manage and more cost-effective than traditional PC-based computing. The Company's software and management tools secure, power and manage a new generation of smart thin client appliances that utilize the benefits of open, industry-standard technologies to create new alternatives to full-function personal computers used in business and proprietary business devices including green-screen terminals. The Company's software runs on thin client appliances and personal computers, and enables these devices to be secured and centrally managed, as well as to connect to mainframes, midrange, UNIX, Linux and legacy systems. The Company generates revenues from sales of its Eon, Capio, ThinSTAR and Voyager thin client appliances, as well as its ThinPC thin client software for PCs, TeemTalk host access software for PCs and UNIX workstations, ezRemote Manager central management software, and services such as training and integration. The Company was formed in 1995 as the result of a merger between Human Designed Systems, Inc. (HDS), a privately held technology company, and Information Systems Acquisition Corporation (ISAC), a publicly held company. At the time of the merger, the Company changed its name to HDS Network Systems, Inc. and, in connection with the license of certain technology to Hitachi Data Systems in 1997, the name of the Company was changed to Neoware Systems, Inc. On June 28, 2001, the Company purchased the thin client business of Boundless Technologies, Inc., which included the Capio product line and associated software and intellectual property and access to the Capio distribution and customer databases, for $1,600,000, excluding transaction costs. On December 4, 2001, the Company acquired all of the assets and assumed substantially all of the liabilities of Telcom Assistance Center Corporation, d/b/a ACTIV-e Solutions, a full service Information Technology consulting company in the server-based computing marketplace. The purchase price was payable in cash of $75,000, 569,727 shares of the Company's newly issued common stock with a market value of $3.24 per share and the assumption of net liabilities of approximately $1,178,000, excluding transaction costs. On January 8, 2002, the Company entered into a worldwide alliance with IBM Corporation under which the Company is the preferred provider of thin client appliance products to IBM and its customers. In addition, the Company licensed from IBM the intellectual property associated with its thin client appliance products. As consideration for these agreements, the Company issued 375,000 shares of newly issued common stock with a market value of $6.26 per share to IBM. On March 26, 2002, the Company acquired the thin client business of Network Computing Devices, Inc. (NCD), including the ThinSTAR product line. In addition, the Company entered into an alliance with NCD to grow the worldwide thin client appliance market. The purchase price was payable in cash of $4,000,000, excluding transaction costs. On May 24, 2002, the Company completed a private placement of its common stock to institutional and other accredited investors. The Company sold 1,600,000 shares of its common stock at a price of $7.50 per share for proceeds of $12,000,000, excluding transaction costs. 4 On July 1, 2003, the Company acquired from Pericom Holdings PLC the host access software business operated under the name Pericom Software, including the TeemTalk host access software product line, for approximately $9,800,000 in cash, excluding transaction costs. Under the terms of the acquisition, the Company acquired all assets of the software business, including intellectual property and technology, customer lists, customer contracts and distribution channels and a non-competition agreement. On July 10, 2003, the Company completed a private placement of its common stock to institutional and other accredited investors. The Company sold 1,500,000 shares of its common stock at a price of $17.50 per share for proceeds of $26,250,000, excluding transaction costs. Proceeds of the offering will be used for general corporate purposes and to fund potential future acquisitions. Product Strategy The Company's current strategy is to establish itself as the recognized leader in the market for software and solutions to power and manage the wide-scale deployment of thin client appliances used by businesses. The Company provides its software on top of a number of desktop and embedded operating systems, including Microsoft's Windows 95, 98, ME, NT, 2000, XP, CE .NET, NT Embedded and XP Embedded, as well as an embedded version of the Linux operating system. The Company intends to utilize partners who have strong market positions in the server-based computing market to expand its sales, marketing and distribution channels and customer relationships in order to gain access to new markets and customers. As part of this strategy, the Company intends to leverage its existing technology and marketing relationships with leading technology companies to build its business. The Company has developed and intends to continue to enhance its technology, which enables large numbers of thin client appliances to be deployed in business environments as alternatives to proprietary or PC-based systems. The Company intends to continue to add its proprietary enhancements to other companies' operating systems, enabling them to be secured and centrally managed. The Company offers host access software, which enables customers to connect their thin client appliances, personal computers and UNIX workstations to a variety of computer systems, including mainframes, minicomputers, UNIX and legacy servers. In addition to providing software and appliance products, the Company offers consulting services, training services and assistance to enterprise customers as they manage the large-scale deployment of applications to thin client appliances. The Company intends to supply its software for use on personal computers and existing thin clients and to bundle its software with industry-standard thin client appliance platforms to enable complete hardware, software and management solutions for its customers. The Company incorporates the following principal elements of its business strategy into its products: Central Administration and Lower Cost of Ownership. The Company's products are designed to be centrally administered in order to lower total cost of ownership. Customers who utilize the Company's products typically run applications and store files on a server, not on desktop devices as with a personal computer. This makes administration of the Company's products much easier and more cost-effective than administration of personal computers, since administrative tasks take place at a small number of servers instead of a much larger number of desktops. 5 Diverse Technology Expertise. The Company has significant expertise in a wide range of technical disciplines, including central management, security, embedded operating systems, windowing and networking software, applications software development, host access, graphics acceleration, multimedia design and compression algorithms. Utilizing more than fifteen years of experience designing embedded UNIX operating systems, the Company has ported its proprietary software technologies to desktop and embedded versions of the Windows and Linux operating systems to develop a unique software product, which is designed specifically for thin client appliance environments. Use of Industry Standard Components. The Company plans, implements and manages the design of its software and appliance products to take advantage of industry-standard technologies and components that are widely available in the personal computer industry. This reduces the Company's risks and costs, and allows the Company more easily to increase production of its appliance products quickly to meet customer demand. Product Upgrades and Enhancements. The Company sells software upgrades and enhancements to customers of its thin client appliances, as well as software and enhancements to customers utilizing personal computers and thin client appliances sold by other vendors. This allows customers to expand their use of Appliance Computing, manage all of their appliances through one family of management tools, ezRemote Manager, and provide the same end-user experience to all thin client appliances. This provides customers extended use of their installed personal computers and thin client appliances without changing hardware, and provides a continued relationship with, and revenue stream from, the customer. Thin Client Appliance Computing Technical Support and Consulting Services. The Company provides technical support services in addition to software and thin client appliances. This support extends from the appliance through the customer's network infrastructure, including their server complex, which allows customers to work with one supplier with the expertise to assist them. Host Access Software Expertise. The Company has significant expertise developing software that allows customers to connect to thin client appliances, personal computers and UNIX workstations to mainframes, midrange systems, UNIX servers and other legacy systems. Additionally, the Company has licensed host access software from IBM enabling its products to connect to IBM servers with IBM-branded host access software. Customers The Company's customers span a wide range of industries, including retail, aerospace, automotive, education, financial services, government, healthcare, manufacturing and telecommunications. The Company's products have been adopted by such customers as 1-800-FLOWERS.COM, Air Canada, Air New Zealand, Ardent Health Services, Autozone, Bed, Bath and Beyond, Bristol Myers Squibb, Burlington Coat Factory, Caesar's Palace, California Department of Motor Vehicles, Circuit City, Comcast Cable, Cook County Circuit Court, Costco, Discount Tire, ESPN, Federated Department Stores, Harley Davidson, Hollywood Video, IBM, Ikea, Keystone Automotive, Kilotou, Lee Memorial HealthCare, Lockheed Martin, MicronPC, Monongehela Valley Hospital, Motorola, National Car Rental, National City Mortgage, National Semiconductor, Neiman Marcus, OfficeMax, O'Reilly Auto Parts, Panasonic, Raymour and Flanagan, Safeway, Sears, Target Corporation, Textron Financial, TJ Maxx Stores, US Veteran's Administration, Verizon, Wal-Mart and others. 6 For the year ended June 30, 2003, sales to IBM represented 16.6% of net revenues and sales to a European distributor represented 15.5% of net revenues. These customers resell the Company's products to individual resellers and/or end-users, none of which contributed sales of more than 10% of the Company's net revenues for the year ended June 30, 2003. Revenues from one customer amounted to 10.2% of total net revenues for the year ended June 30, 2002 and revenues from a different customer amounted to 10.2% for the year ended June 30, 2001. The percentage of revenue derived from individual distributors, resellers or end-users can vary significantly from year to year. Product Development The Company believes that its ability to expand the market for its products will depend in large part upon its ability to develop cross-platform enhancements to the Windows, Windows CE, NT and XP Embedded and Linux operating systems, and to continue to develop new software products that incorporate the latest improvements in performance, capability and manageability targeted specifically at host access and the Appliance Computing market. Accordingly, the Company is committed to investing significant resources in software development activities. During fiscal 2003, 2002 and 2001, the Company's expenditures for research and development totaled $1,837,055, $1,441,359 and $955,386, respectively. In addition, the Company has acquired technology in connection with its acquisitions and its alliance with IBM Corporation. The Company's current research and development programs include: o Development of enhancements to Microsoft's Windows, Windows CE .NET, NT and XP Embedded and the Linux operating system designed to make them more manageable and secure in network environments. o Development of server-based remote management software designed to manage the wide-scale deployments of large numbers of network-connected devices. o Development of the Company's host access product line, which provides connectivity to mainframes, minicomputers, UNIX and legacy servers from thin clients, personal computers and UNIX workstations. o Integration of the intellectual property licensed from IBM and NCD into the Company's software products. There can be no assurance that any of these development efforts will result in the introduction of new products or that any such products will be commercially successful. Marketing and Sales The principal objectives of the Company's marketing strategy are to increase awareness of the benefits of the Company's products, maintain the Company's position as a recognized innovator in the thin client appliance market and differentiate the Company's products from alternative types of devices, including personal computers. The Company's marketing activities include participation in trade shows and conferences, advertising and press relations with leading trade publications and the publication of technical articles. 7 The Company's products have won numerous awards in the thin client appliance and Windows-based terminal market, including "Editor's Choice" from PC Magazine, "Best Windows-based Terminal" and "Editors Choice" from Network Computing, "Best Buy" from Network Solutions, "Byte Best" from Byte Magazine, "Top of the World" from SCO World, "Crossroads A-List" from Open Systems Advisors, "Best Buy" from PC Dealer, "Gold Award for Excellence" from Computing Magazine, "Five Stars for Features and Overall Performance" from PC Pro, "Best Buy" from PC Week UK, "5-Star PC Digest Recommends" from PC Digest, and Reader's Choice Award from Windows & .NET Magazine. The Company distributes its products in North America through IBM, value-added resellers, system integrators, distributors, direct sales to end users and OEMs, and via the Internet. The Company utilizes distributors for its products throughout the world, and has relationships with distributors in the United States, United Kingdom, Canada, France, Scandinavia, Germany, Denmark, Belgium, Netherlands, Austria, Switzerland, Italy, Spain, Russia, Israel, India, Egypt, Latvia, Korea, Philippines, New Zealand, Australia, Malaysia, South Africa, and elsewhere. Net revenues from customers in foreign countries accounted for approximately 39%, 30% and 24% of net revenues, respectively, in fiscal 2003, 2002 and 2001. Service and Support The Company provides systems integration services, and also provides technical support at customers' sites, as well as via telephone and electronic mail. The Company's technical support specialists provide assistance in diagnosing problems and assisting with system integration issues. The Company typically warrants its thin client appliance products against defects in materials and workmanship for three years after purchase by the end user. To date, the Company has not encountered any material product maintenance problems. Competition The thin client segment of the personal computer market is characterized by rapidly changing technology and evolving industry standards. The Company experiences significant competition from suppliers of personal computers, as well as providers of thin client products. Competitive thin client products are offered by a number of established computer manufacturers, including Dell Computer, Hewlett Packard, Sun Microsystems and Wyse Technology. Some of these companies have substantially greater name recognition, engineering, manufacturing and marketing capabilities and greater financial resources than those of the Company. The Company believes that the principal competitive factors among suppliers include breadth of product line, product price/performance, capabilities of the products, software features, investment protection, network expertise, service and support, and market presence. The Company believes that it competes favorably with respect to these factors. The Company, as well as other manufacturers of thin client appliances, faces competition from established computer manufacturers whose personal computer products offer alternatives to thin client appliances for most applications. Thin client appliances compete with personal computers offered by such manufacturers as Dell, Gateway, and Hewlett Packard. Personal computers can be configured with software, such as an ICA client from Citrix Systems, or an RDP client from Microsoft, that allows them to operate as thin client appliances. Thin client appliances compete favorably on a price/performance basis with personal computers and offer cost advantages in initial system installation, as well as subsequent system upgrading and administration. However, the significant market presence and reputation of personal computer manufacturers, and customers' perceptions regarding their need for desktop application processing capability, constitute obstacles to the penetration of the personal computer portion of the market by thin client appliance suppliers. Increased competition 8 could result in price reductions, reduced profit margins and loss of market share, which would adversely affect the Company's operating results. At the low end of the commercial segment of the desktop computer market, the Company competes with suppliers of lower cost ASCII and 3270 terminals. These products do not offer the graphics and windowing capabilities offered by the Company's products, but are still appealing to certain price sensitive customers. The Company believes that thin client appliances will become increasingly competitive with ASCII and 3270 terminal systems. Manufacturing and Suppliers The Company provides its software and management tools on hardware platforms designed and manufactured for it by third parties. These platforms utilize high-performance, industry-standard components used in high volume in the PC industry. This lowers the cost of designing and manufacturing the Company's products and allows the Company to continue to lower the cost of its products as the costs of personal computers decline. The Company uses this strategy to compete with other companies that design and manufacture their own proprietary hardware. This strategy has allowed the Company to significantly lower the cost of its products and operations, and has allowed the Company to increase sales with higher margins and lower inventory levels. Proprietary Rights and Licenses The Company believes that its success will depend primarily on the innovative skills, technical competence and marketing abilities of its personnel rather than upon the ownership of patents or other intellectual property protection methods. Certain technology used in the Company's products is licensed from third parties, either on a non-royalty-bearing basis or on a royalty-bearing basis. Generally, such licenses grant to the Company non-exclusive, worldwide rights with respect to the subject technology and terminate upon a material breach by the Company. The Company has licensed technology from IBM, Citrix Systems, Inc., Microsoft Corporation and NCD. In addition to these licensing agreements, the Company holds various other licenses which it does not consider to be material. Employees As of July 31, 2003, the Company had 119 employees. Available Information The Company makes available on its website, www.neoware.com, its annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K, and all amendments to those reports, as soon as reasonably practicable after such material is electronically filed with, or furnished to, the Securities and Exchange Commission. The information found on the Company's website is not part of this or any other report that the Company files with or furnishes to the SEC. ITEM 2. PROPERTIES The Company's principal administrative, marketing and research and development operations are located in King of Prussia, Pennsylvania. The primary facility consists of approximately 22,000 square feet under a lease with an expiration date of September 30, 2005. The annual gross rent for the facility, including operating expenses, is approximately $230,000. In March 2002 the Company entered into a two-year lease for approximately 4,800 square feet at an adjacent facility in King of Prussia. The annual gross rent for this facility, including operating expenses, is approximately $96,000. The Company also leases a number of sales offices in the US, Europe and Australia, and a development office in the UK. The Company believes that its growth will likely require it to lease additional facilities and that suitable additional space will be available as needed. 9 ITEM 3. LEGAL PROCEEDINGS. None. ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS. None. PART II ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED SHAREHOLDER MATTERS. The Company's Common Stock began trading on the NASDAQ National Market on August 7, 2002. Prior to that date, the Company's common stock was traded on the NASDAQ SmallCap Market. Prior to August 1, 1997, the Company's Common Stock traded under the symbol HDSX and, effective on that date, began trading under the symbol NWRE. The following table sets forth the high and low closing bid quotations for the Company's common stock for the periods indicated. Fiscal 2003 High Low - ----------- ---- ----- First Quarter 18.72 10.50 Second Quarter 20.91 10.94 Third Quarter 17.69 10.76 Fourth Quarter 16.16 8.63 10 Fiscal 2002 High Low - ----------- ---- ---- First Quarter 2.81 1.34 Second Quarter 4.90 1.60 Third Quarter 10.03 5.15 Fourth Quarter 11.70 7.49 The above quotations represent prices between dealers and do not include retail markups or markdowns or commissions. They may not necessarily represent actual transactions. There were approximately 198 holders of record of common stock as of June 30, 2003. The Company has never declared or paid any cash dividends on its capital stock and does not intend to pay any cash dividends in the foreseeable future. In July 2003, the Company sold 1.5 million shares of common stock in a private placement at a price of $17.50 per share. Net proceeds to the Company were approximately $24.5 million after transaction costs. The shares were issued in reliance upon the exemption from the registration requirements of the Securities Act under Section 4(2) and Rule 506 thereof as a transaction not involving a public offering. The shares were acquired for investment and not with a view to the distribution thereof by accredited investors who had access to information regarding the Company and its business. In May 2002, the Company sold 1.6 million shares of common stock in a private placement at a price of $7.50 per share. Net proceeds to the Company were approximately $11.1 million after transaction costs. The shares were issued in reliance upon the exception from the registration requirements of the Securities Act under Section 4(2) and Rule 506 thereof as a transaction not involving a public offering. The shares were acquired for investment and not with a view to the distribution thereof by accredited investors who had access to information regarding the Company and its business. In connection with the private placement, the Company granted to one of the placement agents for the offering warrants to purchase a total of 48,000 shares of the Company's common stock at an exercise price of $9.375 per share until May 2005, subject to adjustment under certain conditions. The warrants were issued in reliance upon the exemption from the registration requirements of the Securities Act under Section 4(2) thereof as a transaction not involving a public offering. The warrants were acquired for investment and not with a view to the distribution thereof by an accredited investor who had access to information regarding the Company and its business. A total of 35,000 of these warrants were exercised in September 2002. In June 2001, in connection with acquisition-related consulting services provided to the Company by a strategic and financial adviser, the Company granted to the adviser and two of its affiliates warrants to purchase a total of 86,095 shares of the Company's common stock at an exercise price of $2.20 per share until June 2004, subject to adjustment under certain conditions. The warrants were issued in reliance upon the exemption from the registration requirements of the Securities Act under Section 4(2) thereof. The warrants were acquired for investment and not with a view to the distribution thereof by accredited investors who had access to information regarding the Company and its business. A total of 83,910 warrants were exercised in July 2002. 11 ITEM 6. SELECTED FINANCIAL DATA. The following table sets forth selected financial data with respect to the Company for the periods indicated. The data selected below have been derived from the consolidated financial statements of Neoware Systems, Inc. and Subsidiaries, which have been audited by KPMG LLP, independent auditors, for the years ended June 30, 2003 and 2002 and by Arthur Andersen LLP, independent public accountants, for the other years presented. The data set forth below should be read in conjunction with the Consolidated Financial Statements of the Company together with the related notes thereto included elsewhere herein and Item 7., Management's Discussion and Analysis of Financial Condition and Results of Operations.
Year Ended June 30, --------------------------------------------------------------------------- 2003 2002 2001 2000 1999 ----------- ----------- ----------- ----------- ----------- STATEMENT OF OPERATIONS DATA: Net revenues $57,522,240 $34,309,667 $17,654,825 $11,044,870 $10,665,753 ----------- ----------- ----------- ----------- ----------- Gross profit 25,972,766 13,964,633 5,962,050 2,318,774 1,367,637 Operating expenses 16,133,482 10,982,358 6,430,513 4,430,785 4,163,346 ----------- ----------- ----------- ----------- ----------- Operating income (loss) 9,839,284 2,982,275 (468,463) (2,112,011) (2,795,709) Gain on sale of equity investment -- -- -- -- 406,930 Loss on investment (300,000) -- (812,000) -- -- Interest income, net 322,834 296,045 771,695 291,900 38,317 ----------- ----------- ----------- ----------- ----------- Income (loss) before income taxes 9,862,118 3,278,320 (508,768) (1,820,111) (2,350,462) Income taxes (benefit) 3,550,361 (1,346,728) -- -- 430,396 ----------- ----------- ----------- ----------- ----------- Net income (loss) $ 6,311,757 $ 4,625,048 $ (508,768) $(1,820,111) $(2,780,858) =========== =========== =========== =========== =========== Basic earnings (loss) per share $ 0.46 $ 0.42 $ (0.05) $ (0.25) $ (0.44) Diluted earnings (loss) per share $ 0.43 $ 0.39 $ (0.05) $ (0.25) $ (0.44) Weighted average number of shares used in basic earnings (loss) per share computation 13,601,186 10,904,565 10,226,316 7,374,692 6,278,317 Weighted average number of shares used in diluted earnings (loss) per share computation 14,695,819 11,851,327 10,226,316 7,374,692 6,278,317
As of June 30, --------------------------------------------------------------------------- BALANCE SHEET DATA: 2003 2002 2001 2000 1999 ----------- ----------- ----------- ----------- ----------- Current assets $42,770,331 $29,722,626 $16,435,552 $17,995,134 $ 5,646,345 Current liabilities 7,722,308 5,893,267 2,698,939 2,191,299 3,223,986 Working capital 35,048,023 23,829,359 13,736,613 15,803,835 2,422,359 Total assets 54,376,171 42,398,960 18,788,842 18,668,379 7,325,897 Long-term capital leases excluding current portion 10,252 204,131 -- -- -- Stockholders' equity 46,626,823 36,601,562 16,089,903 16,477,080 4,101,911
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS. Introduction The Company provides software, services and solutions to enable Appliance Computing, a proven Internet-based computing architecture targeted at business customers that is designed to be easier to manage and more cost-effective than traditional PC-based computing. The Company's software and management tools secure, power and manage a new generation of smart thin client appliances that utilize the benefits of open, industry-standard technologies to create new alternatives to full-function personal computers used in business and proprietary business devices including green-screen terminals. 12 The Company's software runs on thin client appliances and personal computers, and enables these devices to be secured and centrally managed, as well as to connect to mainframes, midrange, UNIX, Linux and legacy systems. The Company generates revenues from sales of its Eon, Capio, ThinSTAR and Voyager thin client appliances, as well as its ThinPC thin client software for PCs, TeemTalk host access software for PCs and UNIX workstations, ezRemote Manager central management software, and services such as training and integration. Results of Operations The following table sets forth, for the periods indicated, certain items from the Company's consolidated statements of operations as a percentage of net revenues. Year Ended June 30, ------------------------- 2003 2002 2001 ------------------------- Gross profit 45.1% 40.7% 33.7% Operating expenses: Sales and Marketing 17.3 18.6 17.3 Research and Development 3.2 4.2 5.4 General and Administrative 7.5 9.2 12.3 Acquisition costs - - 1.4 ------------------------- Operating income (loss) 17.1 8.7 (2.7) Loss on investment (1.0) - (4.6) Interest income, net 1.0 0.9 4.4 ------------------------- Income (loss) before taxes 17.1 9.6 (2.9) Income taxes 6.2 (3.9) - ------------------------- Net income (loss) 10.9% 13.5% (2.9)% ------------------------- Year Ended June 30, 2003 Compared to Year Ended June 30, 2002 For the year ended June 30, 2003, net revenues increased by $23,212,573, or 67.7%, to $57,522,240 from $34,309,667 for the prior fiscal year. The increase in net revenues was primarily attributable to an increase in sales of the Company's thin client appliance products sold as a result of the increasing acceptance in the marketplace of thin client technology and the Company's increased access to customers as a result of its greater market share, its alliance with IBM, and its larger sales organization. This is an emerging market gaining mainstream acceptance and has grown in particular in a number of vertical markets such as retail, healthcare, transportation, hospitality, education, state and local governments and others. In addition, as discussed below, the Company significantly increased its investment in sales and marketing activities during the current fiscal year compared to the prior fiscal year, which also contributed to the increase in net revenues. 13 The Company's gross profit as a percentage of net revenues increased to 45.1% for the year ended June 30, 2003, from 40.7% for the prior fiscal year. The increase in gross profit is attributable primarily to lower component and license costs (2.4%) and secondarily to increased software sales (1%) and the spreading of fixed overhead costs over a larger revenue base (1%). Operating expenses for the year ended June 30, 2002 were $16,133,482, an increase of $5,151,124, or 46.9%, from operating expenses of $10,982,358 for the prior fiscal year. As a percentage of revenues, total operating expenses declined to 28.0% from 32.0% in the prior fiscal year. Sales and marketing expenses increased by $3,589,819, or 56.2%, to $9,970,943 for the year ended June 30, 2003 compared to $6,381,124 for the prior fiscal year. The increase is primarily attributable to personnel additions to sales, marketing and business development staffing and it is anticipated that such costs will continue to increase as the Company grows. As a percentage of revenues, sales and marketing expenses declined to 17.3% from 18.6% in the prior fiscal year. Research and development expenses for the year ended June 30, 2003 increased by $395,696, or 27.5%, to $1,837,055 from $1,441,359 in the prior fiscal year primarily due to increased staffing of professionals dedicated to research and development activities. The Company is committed to investing in research and development in order to continue to develop new products and enhance existing products and it is anticipated that such expenses will continue to increase as the Company continues to grow. As a percentage of revenues, research and development expenses declined to 3.2% from 4.2% in the prior fiscal year. General and administrative expenses for the year ended June 30, 2003 increased by $1,165,609, or 36.9%, to $4,325,484 from $3,159,875 for the prior fiscal year primarily due to increased staffing. During the year ended June 30, 2003, the Company hired a Chief Operating Officer and other management and administrative personnel to support the Company's continued growth in fiscal 2003 and it is anticipated that such expenses will continue to increase as the Company continues to grow. As a percentage of revenues, general and administrative expenses declined to 7.5% from 9.2%. During the year ended June 30, 2003, the Company wrote down its investment of $300,000 in the marketable equity securities of Boundless Corporation to zero as a result of the bankruptcy filing by Boundless in March 2003. The Company realized net interest income of $322,834 for the year ended June 30, 2003 compared to net interest income of $296,045 for the prior fiscal year. The increase was due to the higher levels of cash invested during the current year primarily as a result of cash provided from operations and the private placement, offset partially by a decrease in interest rates. For the year ended June 30, 2003, the Company recorded a provision for income taxes of $3,550,361 compared to an income tax benefit of $1,346,728 in the prior year, which reflected the reversal of a previously recorded valuation allowance against deferred income tax assets. This reversal was the result of the Company's sustained history of operating profitability and future prospects of continued profitability. The Company expects its effective income tax rate going forward will be approximately 36%. For the year ended June 30, 2003, the Company generated net income of $6,311,757 as compared to $4,625,048 for the prior fiscal year. The improvement in performance is primarily attributable to higher revenues, higher gross profit margin and lower operating expenses as a percentage of revenues, offset by the effect of the variance in the income tax provision/benefit described in the preceding paragraph resulting from the reversal of a previously recorded valuation allowance against deferred income tax assets in fiscal 2002. 14 Year Ended June 30, 2002 Compared to Year Ended June 30, 2001 For the year ended June 30, 2002, net revenues increased by $16,654,842 or 94.3% to $34,309,667 from $17,654,825 for the prior fiscal year. The increase in net revenues was attributable to increased sales of the Company's thin client appliance products; net revenues attributable to ACTIV-e Solutions operations acquired on December 4, 2001, which amounted to $2,222,176; net revenues generated from the ThinSTAR thin client business acquired from NCD on March 26, 2002 which amounted to $2,892,167; and net revenues generated from the IBM Alliance which was entered into on January 8, 2002 which amounted to approximately $2,000,000. The increase in sales of thin client appliance products is attributable to the increasing acceptance in the marketplace of thin client technology and the Company's increased access to customers as a result of its greater market share, its alliance with IBM, and its larger sales organization. This is an emerging market gaining mainstream acceptance and has grown in particular in a number of vertical markets such as retail, healthcare, transportation, hospitality, education, state and local governments and others. In addition, as discussed below, the Company significantly increased its investment in sales and marketing activities during the current and prior fiscal year which also contributed to the increase in net revenues. The Company's gross profit as a percentage of net revenues increased to 40.7% for the year ended June 30, 2002, from 33.7% for the prior fiscal year. The increase in gross profit is attributable primarily to reduced component and license costs (5%) and secondarily to the spreading of fixed overhead costs over a larger revenue base (2%). Operating expenses for the year ended June 30, 2002 were $10,982,358, an increase of $4,551,845 or 70.8% from operating expenses of $6,430,513 for the prior fiscal year. As a percentage of revenues, total operating expenses declined to 32.0% from 36.4% in the prior fiscal year. Sales and marketing expenses increased by $3,323,116, or 108.7%, to $6,381,124 for the year ended June 30, 2002 compared to $3,058,008 for the prior fiscal year. The increase is primarily attributable to personnel additions to sales, marketing and business development staffing, and it is anticipated that such costs will continue to increase as the Company grows. As a percentage of revenues, sales and marketing expenses increased to 18.6% from 17.3% in the prior fiscal year. Research and development expenses for the year ended June 30, 2002 increased by $485,973, or 50.9%, to $1,441,359 from $955,386 in the prior fiscal year primarily due to increases in staffing of professionals dedicated to research and development activities. The Company is committed to investing in research and development in order to continue to develop new products and enhance existing products, and it is anticipated that such expenses will continue to increase as the Company continues to grow. As a percentage of revenues, research and development expenses decreased to 4.2% from 5.4% in the prior fiscal year. 15 General and administrative expenses for the year ended June 30, 2002 increased by $988,595, or 45.6%, to $3,159,875 from $2,171,280 for the prior fiscal year primarily due to increased staffing and personnel costs, and it is anticipated that such expenses will continue to increase as the Company continues to grow. As a percentage of revenues, general and administrative expenses decreased to 9.2% from 12.3% in the prior fiscal year. During the year ended June 30, 2001, the Company incurred costs of $245,839 in connection with proposed acquisitions and/or strategic relationships that were not consummated. The Company realized net interest income of $296,045 for the year ended June 30, 2002 compared to net interest income of $771,695 for the prior fiscal year. The decrease was due to lower interest rates and a reduction in the amount of cash available for investment due to the Capio, ACTIV-e and ThinSTAR acquisitions. For the year ended June 30, 2002, the Company recorded a net income tax benefit of $1,346,728 which reflects the reversal of a previously recorded valuation allowance against deferred income tax assets. This reversal is the result of the Company's recent sustained history of operating profitability and future prospects of continued profitability. The effective income tax rate for the year ended June 30, 2001 was zero since no income tax benefit was recognized as a result of the net operating losses incurred as there was no assurance at that time that the benefit of the net operating loss carryforward would be realized. For the year ended June 30, 2002, the Company generated net income of $4,625,048 as compared to a net loss of $508,768 for the prior fiscal year. The improvement in performance is primarily attributable to higher revenues, higher gross profit margin and the net income tax benefit, offset by increased operating expenses. Liquidity and Capital Resources As of June 30, 2003, the Company had net working capital of $35,048,023 composed primarily of cash and cash equivalents, short-term investments and accounts receivable. The Company's principal sources of liquidity include $29,164,875 of cash and cash equivalents, short-term investments and a $2,000,000 line of credit facility with Wachovia Bank, formerly First Union National Bank, of which $2,000,000 was available as of June 30, 2003. The Company had no borrowings under the line of credit during the year ended June 30, 2003. Cash and cash equivalents and short-term investments increased by $12,133,453 during the year ended June 30, 2003, primarily as a result of positive cash flow from operations ($10,154,933) and proceeds received from the exercise of stock options and warrants ($2,240,933). The Company generated cash from operating activities of $10,154,933 in fiscal 2003 compared to using cash in operations of $843,661 during fiscal 2002. The increase in cash provided by operations during fiscal 2003 over cash used in operations in fiscal 2002 was primarily due to the increase in net income in fiscal 2003 ($6,311,757) over fiscal 2002 ($4,635,048) and a smaller increase in accounts receivable in fiscal 2003 ($1,568,436) compared to fiscal 2002 ($5,670,353). The increase in accounts receivable in fiscal 2003 is primarily a result of the increase in revenues of $1,742,442 for the quarter ended June 30, 2003 compared to the quarter ended June 30, 2002. Deferred taxes and current deductions from the exercise of stock options resulted in reduced income taxes payable of $2,444,966 in fiscal 2003. The increase in accounts payable and accrued expenses for fiscal 2003 compared to fiscal 2002 is primarily attributable to the growth of the Company's business. Cash flow from operations can vary significantly from quarter to quarter depending on the timing of payments from, and shipments to, large customers. 16 During fiscal 2003, net cash of $3,304,699 was used in investing activities for purchases of short-term investments ($3,156,320) and property and equipment ($153,379) compared to net cash used in investing activities of $4,585,959 in fiscal 2002, which was primarily for the acquisitions of the ACTIV-e Solutions and the ThinSTAR product line. During fiscal 2003, net cash of $2,131,897 was provided by financing activities primarily from the exercise of stock options and warrants compared to net cash generated by investing activities of $10,748,507 during fiscal 2002 primarily as a result of the proceeds from a private placement of the Company's common stock. The Company expects to fund current operations and other cash expenditures through the use of available cash, cash from operations, funds available under its credit facility and possible new debt or equity sources. Management believes that there will be sufficient funds from current cash, operations and available financing to fund operations and cash expenditures for the foreseeable future. During July 2003, the Company acquired from Pericom Holdings PLC its host access software business for approximately $9,800,000 in cash and completed a private placement of its common stock which resulted in net proceeds to the Company of approximately $24,500,000. Contractual Cash Obligations The following table summarizes the Company's contractual obligations as of June 30, 2003:
Payments Due by Period - ------------------------------------------------------------------------------------------- Total 2004 2005 2006 After 2006 - ------------------------------------------------------------------------------------------- Contractual Cash Obligations: Operating Leases $ 775,000 $ 318,329 $228,543 $228,128 - Capital Leases 16,809 6,557 6,557 3,695 - Purchase Commitments 2,169,050 2,169,050 - - - ---------------------------------------------------------- Total $2,960,859 $2,493,936 $235,100 $231,823 - - -------------------------------------------------------------------------------------------
Inflation The Company believes that inflation has not had a material effect on its costs and net revenues during the past three years. Off-Balance Sheet Arrangements None Critical Accounting Policies The Company has identified the following policies as critical to its business and the understanding of its results of operations. Application of these policies affects many of the items discussed throughout Management's Discussion and Analysis of Financial Condition and Results of Operations. For a detailed discussion on the application of these and other accounting policies see Note 2 in the Notes to the Consolidated Financial Statements. Preparation of this Annual Report on Form 10-K requires the Company's use of estimates and assumptions that affect the reported amounts of assets, liabilities, disclosure of contingent assets and liabilities at the date of the financial statements, and the reported revenue and expense amounts for the periods being reported. There can be no assurance that the Company's actual results will not differ from these estimates. Revenue Recognition The Company's revenue recognition policy is significant as revenue is a key component of results of operations. The timing of revenues also affects the timing of various expenses, such as commission and royalty expenses. The Company recognizes revenues in accordance with Statement of Position No. 97-2, Software Revenue Recognition, issued by the American Institute of Certified Public Accountants because software has been deemed to be essential to the functionality of the hardware. Generally, the Company recognizes revenue upon shipment of products. Revenue related to post-contract services on such shipments is recognized with the initial sale when the fee is included with the initial license fee, post-contract services are for one year or less, the cost of providing such services is not significant and unspecified upgrades/enhancements offered have historically been and are expected to be minimal and infrequent. Revenue from service obligations associated with service contracts is generally recognized ratably over the service period. From time to time, customers request delayed shipment, usually because of customer scheduling for systems integration and lack of storage space at a customer's facility during the implementation. In such "bill and hold" transactions, the Company recognizes revenues when the following conditions are met: the equipment is complete, ready for shipment and segregated from other inventory; the Company has no further performance obligations in connection with the completion of the transaction; the commitment and delivery schedule is fixed; the customer requested the transaction be completed on this basis; and the risks of ownership have passed to the customer. 17 The Company records a provision for estimated sales returns and allowances in the same period that related revenues are recorded. These estimates are based on historical sales returns, analysis of credit memo data and other known factors. If the historical data used to calculate these estimates do not properly reflect future returns, additional provisions could be required which would adversely affect revenues reported in future periods. The Company's agreements with customers typically do not provide for product returns except for very limited circumstances, including certain distributors that have stock rotation rights which are contractually limited to a maximum amount per quarter and require a corresponding order of equal or greater value at the time of the stock rotation. The impact of product returns has not historically been a significant factor in the Company's results of operations. Accounts Receivable The Company sells products and services to a large number of customers in various industries worldwide. Trade accounts receivable are exposed to normal credit risks and the Company provides for potential bad debts based upon the results of management's review of all significant outstanding invoices and the age of all of its receivables. The Company also performs ongoing credit reviews of payment performance and financial condition of its customers. If the judgments made as a result of this review are inaccurate, additional provisions for potential bad debts may be required which would adversely affect the results of operations of future periods. Inventories Inventories are valued at the lower of cost or market, with cost determined on a first-in first-out (FIFO) basis. Inventories on hand include the cost of materials, freight, direct labor and other manufacturing overhead. The Company regularly reviews its inventories on hand and records any provisions needed for excess and obsolete inventories based on forecasted demand, new product rollouts and production requirements. In making these judgments, the Company relies on historical sales data and on projected sales and new product introduction forecasts. If these estimates do not properly reflect future results, provisions for excess and obsolete inventories could be required in future periods. Income Taxes The Company records the estimated future tax effects of temporary differences between the financial reporting and tax bases of assets and liabilities and amounts reported in the accompanying balance sheets, as well as operating loss and tax credit carryforwards. The Company exercises judgment relating to projected future taxable income to determine the recoverability of any deferred tax assets recorded on the balance sheet. If judgments regarding recoverability of deferred tax assets are not accurate, the Company could be required to record additional income tax expense in future periods. Asset Impairment At June 30, 2003, goodwill and intangible assets amount to $11,033,792. Goodwill and non-amortizable intangible assets are assessed for impairment pursuant to SFAS No. 142, "Goodwill and Other Intangible Assets," and impairment of other amortizable intangible amortizable assets is assessed pursuant to SFAS No. 144, "Accounting for the Impairment or Disposal of Long-Lived Assets". The Company operates in one reporting unit and is required to perform the SFAS No. 142 impairment test at least annually or more frequently if circumstances indicate possible impairment. As of June 30, 2003, management believes there has been no impairment under SFAS No. 142 and no triggering events that would require an impairment analysis under SFAS No. 144. An adverse change in the business could result in an impairment charge. Factors Affecting the Company and Future Operating Results Our future results may be affected by industry trends and specific risks in our business. Some of the factors that could materially affect our future results include those described below. We experienced significant growth in our business in the past two years due to internal expansion and business acquisitions, and if we do not appropriately manage this growth and any future growth, including the integration of our newly hired employees and executive officers, our business will suffer. 18 Our business has grown during the past two years through both internal expansion and business acquisitions, and has put pressure on our infrastructure, internal systems and managerial resources. The number of our employees increased from 51 employees at June 30, 2001 to 119 employees at July 31, 2003. Our new employees include a number of senior executive officers and other key managerial, technical, sales and marketing personnel. To manage our growth effectively, we must continue to improve and expand our infrastructure, including operating and administrative systems and controls, and continue managing and integrating our personnel in an efficient manner. Our business may be adversely affected if we do not integrate and train our new employees quickly and effectively and coordinate among our executive, engineering, finance, marketing, sales, operations and customer support organizations, all of which add to the complexity of our organization and increase our operating expenses, which may grow at a faster rate than our sales. In addition, because of the growth of our foreign operations, we now have facilities located in multiple locations, and we have limited experience coordinating a geographically separated organization. Although we have generated operating profits for the past two years, we have a prior history of losses and may experience losses in the future, which could result in the market price of our common stock declining. Although we have generated operating profits in the past two years, we have incurred net losses in prior periods. We expect to continue to incur significant operating expenses. Our operating expenses increased during the three months and year ended June 30,2003 reflecting the hiring of additional key personnel as we continue to implement our growth strategy. As a result, we will need to generate significant revenues to maintain profitability. If we do not maintain profitability, the market price for our common stock may decline. Our financial resources may not be enough for our capital and corporate development needs, and we may not be able to obtain additional financing. A failure to maintain and increase our revenues would likely cause us to incur losses and negatively impact the price of our common stock. We may not be able to successfully integrate the acquisitions we have completed, the alliance we have entered into or future acquisitions we may complete as part of our growth strategy, which may materially adversely affect our growth and our operating results. Within the last two years, we have made four acquisitions and entered into an alliance with IBM, and we may make additional acquisitions as part of our growth strategy. We have not yet fully integrated some of these acquisitions or fully implemented the alliance. There is no assurance that we will successfully integrate these acquisitions into our business or successfully implement the alliance. In addition, we may be unable to retain key employees or key business relationships of the acquired businesses and integration of the businesses may divert the attention and resources of our management. We cannot assure that we will achieve anticipated revenue and earnings growth as a result of these transactions. Our failure to successfully integrate the acquired businesses into our operations or successfully implement the alliance could have a material adverse effect upon our business, operating results and financial condition. Even if the acquisitions and alliance are successfully integrated, we may not receive the expected benefits of the transactions if we find that the business or alliance does not further our business strategy or that we paid more than what the assets were worth. Managing acquisitions and alliances requires management resources, which may divert our attention from other business operations. As a result, the effects of any completed or future transactions on financial results may differ from our expectations. 19 Our ability to accurately forecast our quarterly sales is limited, although our costs are relatively fixed in the short term and we expect our business to be affected by rapid technological change, which may adversely affect our quarterly operating results. Because of the new and rapidly evolving market for our software and embedded Windows and Linux-based thin client appliances, our ability to accurately forecast our quarterly sales is limited, which makes it difficult to predict the quarterly revenues that we will recognize. In addition, most of our costs are for personnel and facilities, which are relatively fixed in the short term. If we have a shortfall in revenues in relation to our expenses, we may be unable to reduce our expenses quickly enough to avoid losses. As a result, our quarterly operating results could fluctuate. We expect our quarterly revenues and operating results to fluctuate for a number of reasons. Future operating results will continue to be subject to quarterly fluctuations based on a wide variety of factors, including: Linearity- Our quarterly sales have historically reflected a pattern in which a disproportionate percentage of sales occur in the last month of the quarter. This pattern makes prediction of revenues, earnings and working capital for each financial period especially difficult and uncertain and increases the risk of unanticipated variations in quarterly results and financial condition. Significant Orders- We are subject to variances in our quarterly operating results because of the fluctuations in the timing of our receipt of large orders. If even a small number of large orders are delayed until after a quarter ends, our operating results could vary substantially from quarter to quarter and net income could be substantially less than expected. Conversely, if even a small number of large orders are pulled into a quarter from a future quarter, our revenues and net income could be substantially higher than expected, making it possible that sales and net income in future periods may decline sequentially. There are factors that may affect the market acceptance of our products, some of which are beyond our control, including the following: o the growth and changing requirements of the thin client appliance market; o the quality, price, performance and total cost of ownership of our products; o the availability, price, quality and performance of competing products and technologies; and o the successful development of our relationships with software providers, original equipment manufacturers and existing and potential channel partners. 20 We may not succeed in developing and marketing our software and thin client appliance products and our operating results may decline as a result. Our gross margins can vary significantly, based upon a variety of factors. If we are unable to sustain adequate gross margins we may be unable to reduce operating expenses in the short term, resulting in losses. Our gross margins can vary significantly from quarter to quarter depending on average selling prices, fixed costs in relation to revenue levels and the mix of our business, including the percentage of revenues derived from hardware, software and consulting services. The gross profit margin also varies in response to competitive market conditions as well as periodic fluctuations in the cost of memory and other significant components. The market in which we compete remains very competitive, and although we intend to continue our efforts to reduce the cost of our products, there can be no certainty that we will not be required to reduce prices of our products without compensating reductions in the cost to produce our products in order to increase our market share or to meet competitors' price reductions. Our business is dependent on customer adoption of Windows and Linux-based thin client appliances to perform discrete tasks for corporate and Internet-based computer networks and a decrease in their rates of adoption could adversely affect our ability to increase our revenues. We are dependent on the growing use of thin client appliances to perform discrete tasks for corporate and Internet-based networks to increase our revenues. If the role of thin client appliances does not increase as we anticipate, or if it in any way decreases, our revenues would not materialize. If corporate information technology organizations do not accept Windows or Linux-based embedded operating systems, or if there is a wide acceptance of alternative operating systems that provide enhanced capabilities, our operating results could be harmed. The thin client appliance market in which we compete is new and unpredictable, and if this market does not develop and expand as we anticipate, our revenues may not grow. Because some of our products use embedded versions of Microsoft Windows as their operating system, an inability to license these operating systems on favorable terms could impair our ability to introduce new products and maintain market share. We may not be able to introduce new products on a timely basis because some of our products use embedded versions of Microsoft Windows as their operating system. Microsoft Corporation provides Windows to us, and we do not have access to the source code for certain versions of the Windows operating system. If Microsoft fails to continue to enhance and develop its embedded operating systems, or if we are unable to license these operating systems on favorable terms, our operations may suffer. Because some of our products use Linux as their operating system, the failure of Linux developers to enhance and develop the Linux kernel could impair our ability to release new products and maintain market share. 21 We may not be able to release new products on a timely basis because some of our products use Linux as their operating system. The heart of Linux, the Linux kernel, is maintained by third parties. Linus Torvalds, the original developer of the Linux kernel, and a small group of independent engineers are primarily responsible for the development and evolution of the Linux kernel. If this group of developers fails to further develop the Linux kernel, we would have to either rely on another party to further develop the kernel or develop it ourselves. To date, we have optimized our Linux-based operating system based on a version of Red Hat Linux. If we were unable to access Red Hat Linux, we would be required to spend additional time to obtain a tested, recognized version of the Linux kernel from another source or develop our own operating system internally, which could significantly increase our costs. Actions taken by the SCO Group ("SCO") could impact the sale of Linux as an operating system, negatively affecting sales of some of our products. SCO has taken legal action against IBM and recently sent a letter to 1,500 Linux customers alleging that certain Linux kernels infringe on SCO's Unix intellectual property and other rights, and that SCO intends to aggressively protect those rights. While we are not a party to any legal proceeding with SCO, since some of our products use Linux as their operating system, SCO's allegations, regardless of merit, could adversely affect sales of such products. Because we depend on sole source, limited source and foreign source suppliers for key components in our thin client appliance products, we are susceptible to supply shortages that could prevent us from shipping customer orders on time, if at all, and result in lost sales. We depend upon single source suppliers for our thin client appliance products and for several of the components in them. We also depend on limited sources to supply several other industry standard components. We also rely on foreign suppliers which subject us to risks associated with foreign operations such as the imposition of unfavorable governmental controls or other trade restrictions, changes in tariffs, political instability and currency fluctuations. A weakening dollar could result in greater costs to us for our components. We have in the past experienced and may in the future experience shortages of, or difficulties in acquiring, these components. A significant portion of our revenues is derived from the sale of thin client appliances that are bundled with our software. Third parties produce these thin client appliances for us. If we experience shortages of these products, or of their components, we may not be able to deliver our products to our customers, and our revenues would decline. If we are unable to continue generating substantial revenues from international sales our business could be adversely affected. Currently, approximately 39 percent of our revenues are derived from international sales. Our ability to sell our products internationally is subject to a number of risks. General economic and political conditions in each country could adversely affect demand for our products and services in these markets. Currency exchange rate fluctuations could result in lower demand for our products or lower pricing resulting in reduced revenue and margins, as well as currency translation losses. Changes to and compliance with a variety of foreign laws and regulations may increase our cost of doing business in these jurisdictions. Trade protection measures and import and export licensing requirements subject us to additional regulation and may prevent us from shipping products to a particular market, and increase our operating costs. 22 Because we rely on channel partners, including IBM, to sell our products, our revenues could be negatively impacted if our existing channel partners do not continue to purchase products from us. We cannot be certain that we will be able to attract channel partners that market our products effectively or provide timely and cost-effective customer support and service. None of our current channel partners, including IBM, is obligated to continue selling our products nor to sell our new products. We cannot be certain that any channel partner will continue to represent our products or that our channel partners will devote a sufficient amount of effort and resources to selling our products in their territories. We need to expand our direct and indirect sales channels, and if we fail to do so, our growth could be limited. If our channel partners were to discontinue sales of our products or reduce their sales efforts, it could adversely affect our operating results. In addition, there can be no assurance as to the continued viability and financial condition of our channel partners, two of which have accounted for more than 10% of our net sales. As a result of our alliance with IBM, we rely on IBM for distribution of our products to IBM's customers. If IBM were to discontinue sales of our products or reduce its sales efforts, it could adversely affect our operating results. Our business may suffer if it is alleged or found that we have infringed the intellectual property rights of others. Although we have not received any claims that our products infringe on the proprietary rights of third parties, if we were to receive such claims in the future, responding to such claims, regardless of their merit, could be time consuming, result in costly litigation, divert management's attention and resources and cause us to incur significant expenses. There is no assurance, in the event of such claims, that we would be able to enter into a licensing arrangement on acceptable terms or that litigation would not occur. In the event that there were a temporary or permanent injunction entered prohibiting us from marketing or selling certain of our products, or a successful claim of infringement against us requiring us to pay royalties to a third party, and we failed to develop or license a substitute technology, our business, results of operations or financial condition could be materially adversely affected. We may not be able to effectively compete against PC and thin client providers as a result of their greater financial resources and brand awareness. In the market for thin client appliances, we face significant competition from makers of personal computers, as well as larger companies that have greater name recognition than we have. Increased competition may negatively affect our business and future operating results by leading to price reductions, higher selling expenses or a reduction in our market share. Our future competitive performance depends on a number of factors, including our ability to: o continually develop and introduce new products and services with better prices and performance than offered by our competitors; o offer a wide range of products; and o offer high-quality products and services. If we are unable to offer products and services that compete successfully with the products and services offered by our competitors, including PC manufacturers, our business and our operating results would be harmed. In addition, if in responding to competitive pressures, we are forced to lower the prices of our products and services and we are unable to reduce our costs, our business and operating results would be harmed. 23 Thin client appliance products are subject to rapid technological change due to changing operating system software and network hardware and software configurations, and our products could be rendered obsolete by new technologies. The thin client appliance market segment of the PC market, is characterized by rapid technological change, frequent new product introductions, uncertain product life cycles, changes in customer demands and evolving industry standards. Our products could be rendered obsolete if products based on new technologies are introduced or new industry standards emerge. We may not be able to preserve the value of our products' intellectual property because we do not have any patents and other vendors could challenge our other intellectual property rights. Our products will be differentiated from those of our competitors by our internally developed technology that is incorporated into our products. If we are unable to protect our intellectual property, other vendors could sell products with features similar to ours, and this could reduce demand for our products, which would harm our operating results. We may not be able to attract software developers to bundle their products with our thin client appliances. Our thin client appliances include our own software, plus software from other companies for specific markets. If we are unable to attract software developers, and are unable to include their software in our products, we may not be able to offer our thin client appliances for certain important target markets, and our financial results will suffer. In order to continue to grow our revenues, we may need to hire additional personnel. In order to continue to develop and market our line of thin client appliances, we may need to hire additional personnel. Competition for employees is significant and we may experience difficulty in attracting suitably qualified people. Future growth that we may experience will place a significant strain on our management, systems and resources. To manage the anticipated growth of our operations, we may be required to: o improve existing and implement new operational, financial and management information controls, reporting systems and procedures; o hire, train and manage additional qualified personnel; and o establish relationships with additional suppliers and partners while maintaining our existing relationships. We rely on the services of certain key personnel, and those persons' knowledge of our business and technical expertise would be difficult to replace. Our products, technologies and operations are complex and we are substantially dependent upon the continued service of our existing personnel. The loss of any of our key employees could adversely affect our business and profits and slow our product development processes. 24 Errors in our products could harm our business and our operating results. Because our software and thin client appliance products are complex, they could contain errors or bugs that can be detected at any point in a product's life cycle. Although many of these errors may prove to be immaterial, any of these errors could be significant. Detection of any significant errors may result in: o the loss of or delay in market acceptance and sales of our products; o diversion of development resources; o injury to our reputation; or o increased maintenance and warranty costs. These problems could harm our business and future operating results. Occasionally, we have warranted that our products will operate in accordance with specified customer requirements. If our products fail to conform to these specifications, customers could demand a refund for the purchase price or assert claims for damages. Moreover, because our products are used in connection with critical distributed computing systems services, we may receive significant liability claims if our products do not work properly. Our agreements with customers typically contain provisions intended to limit our exposure to liability claims. However, these limitations may not preclude all potential claims. Liability claims could require us to spend significant time and money in litigation or to pay significant damages. Any such claims, whether or not successful, could seriously damage our reputation and our business. If our contracts with Citrix and other vendors of software applications were terminated, our IT services business would be materially adversely affected. We depend on third-party suppliers to provide us with key software applications in connection with our IT services business. If such contracts and relationships were terminated, our revenues would be negatively affected. Our prior use of Arthur Andersen LLP as our independent auditor may pose risks to us and limit our ability to seek potential recoveries from them related to their work. Our consolidated financial statements as of and for each of the three years in the period ended June 30, 2001 were audited by Arthur Andersen LLP (Andersen). On March 14, 2002, Andersen was indicted on federal obstruction of justice charges arising from the government's investigation of Enron Corporation. On June 15, 2002, a jury convicted Andersen of these charges. On July 23, 2002, we dismissed Andersen and retained KPMG LLP as our independent auditors for our fiscal year ended June 30, 2002. SEC rules require us to present historical audited financial statements in various SEC filings, such as registration statements, along with Andersen's consent to our inclusion of its audit report in those filings. Since our former engagement partner and audit 25 manager left Andersen and in light of the cessation of Andersen's SEC practice, we will not be able to obtain the consent of Andersen to the inclusion of its audit report in our relevant current and future filings. The SEC has provided regulatory relief designed to allow companies that file reports with the SEC to dispense with the requirement to file a consent of Andersen in certain circumstances, but purchasers of securities sold under our registration statements, which were not filed with the consent of Andersen to the inclusion of its audit report, will not be able to sue Andersen pursuant to Section 11(a)(4) of the Securities Act and, therefore, their right of recovery under that section may be limited as a result of the lack of our ability to obtain Andersen's consent. Our stock price can be volatile. Our stock price, like that of other technology companies, can be volatile. For example, our stock price can be affected by many factors such as quarterly increases or decreases in our revenues or earnings, changes in revenues or earnings estimates or publication of research reports by analysts; speculation in the investment community about our financial condition or results of operations and changes in revenue or earnings estimates, announcement of new products, technological developments, alliances, acquisitions or divestitures by us or one of our competitors or the loss of key management personnel. In addition, general macroeconomic and market conditions unrelated to our financial performance may also affect our stock price. Provisions in our charter documents and Delaware law may delay or prevent acquisition of us, which could decrease the value of your shares. Our certificate of incorporation and bylaws and Delaware law contain provisions that could make it harder for a third party to acquire us without the consent of our board of directors. These provisions include advance notice procedures with respect to stockholder proposals and the nomination of candidates for election as directors. Delaware law also imposes some restrictions on mergers and other business combinations between us and any holder of 15% or more of our outstanding common stock. The issuance of additional equity securities may have a dilutive effect on our existing stockholders and could lead to a decline in the price of our common stock. Any additional sale of equity securities may have a dilutive effect on our existing stockholders. In addition, the perceived risk associated with the possible sale of a large number of shares could cause some of our stockholders to sell their stock, thus causing the price of our stock to decline. Subsequent sales of our common stock in the open market or the private placement of our common stock or securities convertible into common stock could also have an adverse effect on the market price of the shares. If our stock price declines, it may be more difficult or we may be unable to raise additional capital. Forward-Looking Statements This annual report on Form 10-K contains statements that are forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995, such as statements regarding the increasing acceptance in the marketplace of thin client technology, anticipated increases in operating expenses, the Company's expected income tax rate of 36%, the Company's competitive position, the reduction of the cost of producing the Company's products, the cost benefits and other advantages of the Company's products, the acquisition of businesses and technologies, the establishment of strategic partnerships and other 26 relationships, the availability of cash or other financing sources to fund future operations and acquisitions, the Company's commitment to invest in the development and enhancement of its technology, the investment of significant resources in software development activities, the growth in the thin client segment of the PC market, and the development of new products. These forward-looking statements involve risks and uncertainties. The factors set forth below, and those contained in "Factors Affecting the Company and Future Operating Results" and set forth elsewhere in this report, could cause actual results to differ materially from those predicted in any such forward-looking statement. Factors that could affect the Company's actual results include the Company's ability to lower its costs, customers' acceptance of Neoware's line of thin client products, pricing pressures, rapid technological changes in the industry, growth of the thin client segment of the PC market, increased competition, the Company's ability to attract and retain qualified personnel, the economic viability of the Company's channel partners, changes in general economic conditions and risks associated with foreign operations and political and economic uncertainties associated with current world events. Item 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK. Interest Rate Risk The Company earns interest income from its balances of cash and cash equivalents and short-term investments. This interest income is subject to market risk related to changes in interest rates which primarily affects the Company's investment portfolio. The Company invests in instruments that meet high credit quality standards, as specified in its investment policy. As of June 30, 2003, cash equivalents and short-term investments consisted primarily of certificates of deposit, commercial paper and money market funds maturing over the following three months. Due to the average maturity and conservative nature of the Company's cash and cash equivalents and short-term investments, and the Company does not believe that a sudden change in interest rates would have a material effect on the value of the portfolio. Management estimates that if the average yield of the Company's investments decreased by 100 basis points, interest income for the year ended June 30, 2003 would have decreased by less than $200,000 This estimate assumes that the decrease occurred on July 1, 2002 and reduced the yield of each investment instrument by 100 basis points. ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA. The financial statements of the Company are filed under this Item 8, beginning on page 35 of this Report. ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE. At the direction of the Board of Directors of the Company, acting upon the recommendation of its Audit Committee, on July 23, 2002, the Company dismissed Arthur Andersen LLP ("Andersen") as the Company's independent public accountants. Andersen's reports on the Company's consolidated financial statements for the fiscal years ended June 30, 2001 and 2000 did not contain an adverse opinion or disclaimer of opinion, nor were they qualified or modified as to uncertainty, audit scope or accounting principles. During the Company's two fiscal years ended June 30, 2001 and through July 23, 2002, there were no disagreements with Andersen on any matter of accounting principle or practice, financial statement disclosure, or auditing scope or procedure which, if not resolved to Andersen's satisfaction, would have caused Andersen to make reference to the subject matter in connection with their reports on the Company's consolidated financial statements for such fiscal years. There were no reportable events as defined in Item 304(a)(1)(v) of Regulation S-K during the period set forth in the preceding sentence. 27 The Company provided Andersen with a copy of the foregoing disclosures and requested Andersen to furnish a letter addressed to the Securities and Exchange Commission stating whether it agrees with the above statements. The Company was advised that Andersen no longer had the ability to provide such letters, and therefore the Company relied on the provisions of Item 304T(b)(2) to excuse its inability to comply with the requirements of Item 304(a)(3). In addition, at the direction of the Board of Directors of the Company, acting upon the recommendation of its Audit Committee, on July 23, 2002, the Company engaged KPMG LLP ("KPMG") to serve as the Company's independent public accountants for the fiscal year ended June 30, 2002. During the Company's two most recent fiscal years and through July 23, 2002, the Company did not consult KPMG with respect to the application of accounting principles to a specified transaction, either completed or proposed, or the type of audit opinion that might be rendered on the Company's consolidated financial statements, or any other matters or reportable events as set forth Items 304(a)(2)(i) and (ii) of Regulation S-K. ITEM 9A. CONTROLS AND PROCEDURES. (a) Disclosure Controls and Procedures. The Company, under the supervision and with the participation of the Company's Chief Executive Officer and Chief Financial Officer, carried out an evaluation of the effectiveness of its disclosure controls and procedures, as such term is defined in Rules 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934, as of June 30, 2003 (the "Evaluation Date"). Based on the evaluation performed, the Company's Chief Executive Officer and Chief Financial Officer have concluded that, as of the Evaluation Date, the Company's disclosure controls and procedures were effective in recording, processing, summarizing and reporting in the periods specified in the SEC's rules and forms the information required to be disclosed by the Company in its reports filed or furnished under the Exchange Act. (b) Changes in Internal Control Over Financial Reporting There have not been any changes in the Company's internal control over financial reporting during the fiscal quarter ended June 30, 2003 that have materially affected, or are reasonably likely to materially affect, the Company's internal control over financial reporting. PART III ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT. The information with respect to directors required by this Item is incorporated by reference to the Section entitled "Election of Directors" in the Company's definitive Proxy Statement for its 2003 Annual Meeting of Stockholders. The following individuals are the current executive officers of the Company: Name Age Position ---- --- -------- Michael G. Kantrowitz 43 Chairman, President and Chief Executive Officer Eric N. Rubino 44 Chief Operating Officer Keith D. Schneck 48 Executive Vice President and Chief Financial Officer Matthew D. Wrabley 42 Executive Vice President of Sales Mr. Kantrowitz has been Chairman of the Company's Board of Directors since December 2002 and President and Chief Executive Officer of the Company since February 2000. Prior to his appointment as President and CEO, Mr. Kantrowitz served as Executive Vice President of the Company responsible for Marketing, Sales and Business Development and as a Director of the Company since March 1995. Prior to this, Mr. Kantrowitz was a senior executive of HDS from 1983, holding the positions of Executive Vice President from 1991 until March 1995 and Vice President of Marketing and Sales from 1987 until 1991. Prior to joining HDS, Mr. Kantrowitz held engineering and technical positions with Raytheon Company and Adage Corporation. Mr. Kantrowitz holds a BSEE in Electrical Engineering from the University of Lowell. 28 Mr. Rubino has been Chief Operating Officer of the Company since December 2002. Prior to joining the Company, from 1999 to 2002, Mr. Rubino served as the Chief Operating Officer for SAP America, Inc., where he managed a wide range of operational departments, including the small and medium business channel, customer support, new business development, information technology, legal, contracts, application hosting, strategic alliances, purchasing, facilities, and risk management. From 1991 to 1999, Mr. Rubino served as Corporate Secretary, Vice President and General Counsel and Senior Vice President of SAP America, Inc. In addition, Mr. Rubino has served in a variety of management positions in contracts and finance with RCA Corporation, General Electric and Bell Atlantic Business System Services, and holds a J.D., an MBA in Finance, and a B.S. in Marketing. Mr. Schneck has been Executive Vice President and Chief Financial Officer since joining the Company in April 2003. Prior to joining the Company, from December 2000 to April 2003, he served as Chief Financial Officer of T-Networks, a venture capital-funded start up company that provides next generation fiber optical components and sub-systems to the telecommunications market. From April 1995 to December 2000, Mr. Schneck served as President and Chief Financial Officer for AM Communications, Inc., a publicly held company. Prior to that, from 1987 until 1995, Mr. Schneck held senior management positions at Integrated Circuit Systems, Inc., a publicly held company, including Chief Operating Officer and Senior Vice President Finance. Mr. Schneck is a CPA with over 10 years of public accounting experience with KPMG LLP. Mr. Wrabley has been Executive Vice President of Sales since November 2002 and was Vice President of Business Development from July 2001. Prior to joining the Company, Mr. Wrabley, served as Vice President of Business Development at CIDCO Incorporated, a telecommunications company from 1997 to 2001. Prior to that, Mr. Wrabley served as Director of Strategic Alliances for Call Technologies, Inc. and was employed as a Senior Business Development Manager for Voysys Corporation. All executive officers of the Company are appointed annually by the Company's Board and serve at its discretion. ITEM 11. EXECUTIVE COMPENSATION. The information required by this Item is incorporated by reference to the section entitled "Executive Compensation" in the Company's definitive proxy statement for its 2003 Annual Meeting of Stockholders. ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS. The information required by this Item is incorporated by reference to the section entitled "Beneficial Ownership of Common Stock" and "Equity Compensation Plan Information" under "Executive Compensation" in the Company's definitive proxy statement for its 2003 Annual Meeting of Stockholders. ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS. The information required by this Item is incorporated by reference to the section entitled "Certain Transactions" in the Company's definitive proxy statement for its 2003 Annual Meeting of Stockholders. 29 PART IV ITEM 14. PRINCIPAL ACCOUNTING FEES AND SERVICES. The information encouraged to be included in this Annual Report on Form 10-K under Item 14 will be included in our Proxy Statement under the caption "Audit Fees" under "Proposal to Ratify Accountants" and is hereby incorporated by reference. ITEM 15. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K. (a)(1) Financial Statements - ----------------------------- See Index to Financial Statements at page 35. (a)(2) Financial Statement Schedules - -------------------------------------- All schedules have been omitted because they are not applicable, or not required, or the information is shown in the financial statements or notes thereto. The following is a list of exhibits filed as part of this annual report on Form 10-K. Where so indicated by footnote, exhibits which were previously filed are incorporated by reference. The following is a list of exhibits filed as part of this annual report on Form 10-K. Where so indicated by footnote, exhibits which were previously filed are incorporated by reference. Exhibit Numbers Description - ------- ----------- 2.1 Asset Purchase Agreement between Neoware Systems, Inc. and Network Computing Devices, Inc, dated March 22, 2002. (The Schedules and Exhibits to the Purchase Agreement (a list of which is attached as Exhibit 99.3 hereto) are not being filed as Exhibits to the Current Report on Form 8-K. Neoware agrees to furnish supplementally a copy of any such Schedules and Exhibits to the Securities and Exchange Commission upon request.) (Exhibit 2.1)(14) 2.2 Agreement for the sale and purchase of the terminal emulation software business of Pericom Holdings Plc and Pericom Software Plc among Neoware UK Ltd., as purchaser, Neoware Systems, Inc., as guarantor, Pericom Holdings Plc and Pericom Software Plc, as sellers, and Ron Cragg, as to a non-compete, dated July 1, 2003. (Schedule 3 and the Appendices to the Agreement (a list of which is attached as Exhibit 99.2 hereto) are not being filed as Exhibits to the Current Report on Form 8-K. Neoware agrees to furnish supplementally a copy of Schedule 3 and any such Appendices to the Securities and Exchange Commission upon request.) (Exhibit 2.1)(15) 3.1 Certificate of Incorporation (Exhibit 3.1)(1) 3.2 Amendment to Certificate of Incorporation (Exhibit 3.2)(2) 3.3 By-laws (Exhibit 3.2)(4) 30 4.1 Common Stock Purchase Warrants held by GKN Securities Corp. and two affiliated persons (Pursuant to Instruction 2 to Item 601 of Regulation S-K, the Warrants, which are identical in all material respects except as to the parties thereto and the number of Warrants held by the affiliated persons are not being filed) (Exhibit 4.2)(7). 4.2 Warrant to purchase 48,000 shares of Common Stock dated May 22, 2002 in favor of Emerging Growth Equities, Ltd. (Exhibit 99.3)(10) 10.1 Lease between the Registrant and GBF Partners, as amended. (Exhibit 10.9)(3) 10.2 Second Amendment to Commercial Lease, dated July 31, 2000, between the Registrant and GBF Partners. (Exhibit 10.3)(6) 10.3+ 1995 Stock Option Plan (as amended on December 4, 2002). (Exhibit 10.4)(12) 10.4+ Employment Agreement, dated February 14, 2000, between the Registrant and Michael G. Kantrowitz. (Exhibit 10.1)(5) 10.5+ Employment Agreement, dated June 10, 1999, between the Registrant and Edward M. Parks. (Exhibit 10.7)(4) 10.6+ Letter Agreement, dated January 27, 1999, between the Registrant and Vincent T. Dolan. (Exhibit 10.9)(6) 10.7+ Employment Agreement, dated December 4, 2001, between the Registrant and Anthony J. DePaul (Exhibit 10.1)(8) 10.8+ Termination agreement dated November 1, 2002, between the Registrant and Anthony J. DePaul. (Exhibit 10.1)(12) 10.9+ Letter Agreement, dated December 9, 2002, between the Registrant and Eric R. Rubino. (Exhibit 10.2)(12) 10.10+ Letter Agreement, dated November 8, 2002, between the Registrant and Matthew Wrabley. (Exhibit 10.3)(12) 10.11+ Amended and Restated 2002 Non-Qualified Stock Option Plan (as amended on June 30, 2003) (Exhibit 4.1)(13) 10.12+ Employment Agreement, dated February 12, 2002, between the Registrant and Howard L. Hunger (Exhibit 10.1)(9) 10.13 Securities Purchase Agreement dated May 22, 2002 among the Registrant and the persons listed as Purchasers therein (Exhibit 99.1)(10) 10.14 Registration Rights Agreement dated May 22, 2002 among the Registrant, Emerging Growth Equities, Ltd. and the investors named therein (Exhibit 99.2)(10) 10.15* Securities Purchase Agreement dated July 10, 2003 among the Registrant and the persons listed as Purchasers therein 31 10.16* Registration Rights Agreement dated July 10, 2003 among the Registrant and the investors named therein. 10.17+ Note, dated April 17, 2002, of Howard L. Hunger to the Registrant and Pledge Agreement dated April 17, 2002, between the Registrant and Howard L. Hunger. (Exhibit 10.15)(11) 10.18*+ Letter Agreement, dated April 11, 2003, between the Registrant and Keith D. Schneck 10.19* Separation Agreement, dated June 30, 2003, between the Registrant and Vincent T. Dolan 21.* Subsidiaries 23.1* Consent of KPMG LLP 23.2* Notice Regarding Consent of Arthur Andersen LLP 31.1* Certification of Michael Kantrowitz as Chairman, President and Chief Executive Officer of Neoware Systems, Inc. pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 31.2* Certification of Keith D. Schneck as Executive Vice President and Chief Financial Officer of Neoware Systems, Inc. pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 32.1* Certification of as Chairman, President and Chief Executive Officer of Neoware Systems, Inc. pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 32.2* Certification Keith D. Schneck as Executive Vice President and Chief Financial Officer of Neoware Systems, Inc pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 * Filed herewith. + Management contract or arrangement. (1) Filed as an Exhibit to the Company's Registration Statement on Form S-1 (File No. 33-56834) filed with the SEC on January 7, 1993. (2) Filed as an Exhibit to the Company's Annual Report on Form 10-K for the year ended December 31, 1994. (3) Filed as an Exhibit to the Company's Registration Statement on Form S-4 (File No. 33-87036) filed with the SEC on December 6, 1994. (4) Filed as an Exhibit to the Company's Annual Report on Form 10-K for the year ended June 30, 1999. (5) Filed as an Exhibit to the Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 2000. (6) Filed as an Exhibit to the Company's Annual Report on Form 10-K for the year ended June 30, 2000. (7) Filed as an Exhibit to the Company's Annual Report on Form 10-K for the year ended June 30, 2001. 32 (8) Filed as an Exhibit to the Company's Quarterly Report on Form 10-Q for the quarter ended December 31, 2001 (9) Filed as an Exhibit to the Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 2002. (10) Filed as an Exhibit to Amendment No. 1 to the Company's Registration Statement on Form S-3 (No. 333-85490) filed with the Securities and Exchange Commission on June 5, 2002. (11) Filed as an Exhibit to the Company's Annual Report on Form 10-K for the year ended June 30, 2002. (12) Filed as an Exhibit to the Company's Quarterly Report on Form 10-Q for the quarter ended December 31, 2002 (13) Filed as an Exhibit to Company's Registration Statement on Form S-8 (No. 333-107970) filed with the Securities and Exchange Commission on August 14, 2003. (14) Filed as an Exhibit to the Company's Current Report on Form 8-K filed on April 2, 2002 (15) Filed as an Exhibit to the Company's Current Report on Form 8-K filed on July 16, 2003 33 SIGNATURES Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. NEOWARE SYSTEMS, INC. Date: September 15, 2003 By: /s/ Michael G. Kantrowitz. -------------------------- Michael G. Kantrowitz President and Chief Executive Officer Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant in the capacities and on the dates indicated. Each person in so signing also makes, constitutes and appoints Michael G. Kantrowitz, President and Chief Executive Officer, and Keith D. Schneck, Executive Vice President and Chief Financial Officer, and each of them severally, his or her true and lawful attorney-in-fact, in his or her name, place and stead to execute and cause to be filed with the Securities and Exchange Commission any or all amendments to this report.
Signature Title Date --------- ----- ---- /s/ Michael G. Kantrowitz President, Chief Executive September 15, 2003 - ------------------------------ Officer and Chairman of the Board Michael G. Kantrowitz (Principal Executive Officer) /s/ Keith D. Schneck Executive Vice President and Chief September 15, 2003 - ------------------------------ Financial Officer (Principal Financial Keith D. Schneck Officer and Principal Accounting Officer) /s/ John M. Ryan Director September 15, 2003 - ------------------------------ John M. Ryan /s/ Christopher G. McCann Director September 15, 2003 - ------------------------------ Christopher G. McCann /s/ David D. Gathman Director September 15, 2003 - ------------------------------ David D. Gathman /s/ John P. Kirwin Director September 15, 2003 - ------------------------------ John P. Kirwin
34 INDEX TO CONSOLIDATED FINANCIAL STATEMENTS ------------------------------------------
Page ---- Neoware Systems, Inc. and Subsidiaries Independent Auditors' Report 36 Report of Independent Public Accountants 37 Consolidated Financial Statements: 37 Consolidated Balance Sheets as of June 30, 2003 and 2002 38 Consolidated Statements of Operations for the years ended June 30, 2003, 2002 and 2001 39 Consolidated Statements of Stockholders' Equity and Comprehensive Income (Loss) for the years ended June 30, 2003, 2002 and 2001 40 Consolidated Statements of Cash Flows for the years ended June 30, 2003, 2002 and 2001 41 Notes to Consolidated Financial Statements 42
35 INDEPENDENT AUDITORS' REPORT The Board of Directors Neoware Systems, Inc.: We have audited the 2003 and 2002 consolidated financial statements of Neoware Systems, Inc. and subsidiaries as listed in the accompanying index. These consolidated financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these consolidated financial statements based on our audits. The 2001 consolidated financial statements of Neoware Systems, Inc. and subsidiaries as listed in the accompanying index were audited by other auditors who have ceased operations. Those auditors expressed an unqualified opinion on those consolidated financial statements in their report dated August 17, 2001. We conducted our audits in accordance with auditing standards generally accepted in the United States of America. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion. In our opinion, the 2003 and 2002 consolidated financial statements referred to above present fairly, in all material respects, the financial position of Neoware Systems, Inc. and subsidiaries as of June 30, 2003 and 2002 and the results of their operations and their cash flows for the years then ended, in conformity with accounting principles generally accepted in the United States of America. /s/KPMG LLP Philadelphia, Pennsylvania August 21, 2003 36 Below is a copy of the report previously issued by Arthur Andersen LLP in connection with Neoware Systems, Inc.'s filing on Form 10-K for the year ended June 30, 2001. This audit report has not been reissued by Arthur Andersen LLP in connection with this filing on Form 10-K. See Exhibit 23.2 for further discussion. The consolidated balance sheets as of June 30, 2000 and 2001 and the consolidated statements of operations, stockholders' equity and cash flows for the years ended June 30, 2000 and 1999 have not been included in the accompanying financial statements. REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS To Neoware Systems, Inc.: We have audited the accompanying consolidated balance sheets of Neoware Systems, Inc. (a Delaware corporation) and subsidiaries as of June 30, 2001 and 2000, and the related consolidated statements of operations, stockholders' equity and cash flows for each of the three years in the period ended June 30, 2001. These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these financial statements based on our audits. We conducted our audits in accordance with auditing standards generally accepted in the United States. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion. In our opinion, the financial statements referred to above present fairly, in all material respects, the financial position of Neoware Systems, Inc. and subsidiaries as of June 30, 2001 and 2000, and the results of their operations and their cash flows for each of the three years in the period ended June 30, 2001 in conformity with accounting principles generally accepted in the United States. /s/ Arthur Andersen LLP Philadelphia, Pa., August 17, 2001 37
NEOWARE SYSTEMS, INC. AND SUBSIDIARIES -------------------------------------- CONSOLIDATED BALANCE SHEETS --------------------------- June 30, -------------------------------------- ASSETS 2003 2002 - ------ ---------------- --------------- CURRENT ASSETS: Cash and cash equivalents $ 26,013,555 $ 17,031,422 Short-term investments 3,151,320 183,333 Accounts receivable, net of allowance for doubtful accounts of $553,329 and $351,131 11,088,994 9,520,558 Inventories 772,494 1,040,851 Prepaid expenses and other 798,383 551,598 Deferred income taxes 945,585 1,394,864 --------------- --------------- Total current assets 42,770,331 29,722,626 PROPERTY AND EQUIPMENT, net 572,048 622,235 CAPITALIZED SOFTWARE, net - 47,779 NOTE RECEIVABLE FROM OFFICER - 263,732 DEFERRED INCOME TAXES - 173,648 GOODWILL 8,943,175 8,994,286 INTANGIBLE ASSETS, net 2,090,617 2,574,654 --------------- --------------- $ 54,376,171 $ 42,398,960 =============== =============== LIABILITIES AND STOCKHOLDERS' EQUITY - ------------------------------------ CURRENT LIABILITIES: Accounts payable $ 4,206,346 $ 3,111,164 Accrued expenses 2,817,791 2,136,776 Capital lease obligations 6,557 63,037 Deferred revenue 691,614 582,290 --------------- --------------- Total current liabilities 7,722,308 5,893,267 --------------- --------------- CAPTIAL LEASE OBLIGATIONS 10,252 204,131 DEFERRED INCOME TAXES 16,788 - COMMITMENTS AND CONTINGENCIES (Note 15) STOCKHOLDERS' EQUITY: Preferred stock, $.001 par value, 1,000,000 shares authorized and none issued and outstanding - - Common stock, $.001 par value, 50,000,000 shares authorized, 14,054,800 and 12,935,615 shares issued and 13,954,800 and 12,835,615 shares outstanding 14,056 12,936 Additional paid-in capital 44,214,516 40,291,861 Treasury stock, 100,000 shares at cost (100,000) (100,000) Other comprehensive income (loss) (26,943) (116,672) Retained earnings (accumulated deficit) 2,525,194 (3,786,563) --------------- --------------- Total stockholders' equity 46,626,823 36,301,562 --------------- --------------- $54,376,171 $ 42,398,960 =============== ===============
See accompanying notes to consolidated financial statements. 38 NEOWARE SYSTEMS, INC. AND SUBSIDIARIES -------------------------------------- CONSOLIDATED STATEMENTS OF OPERATIONS -------------------------------------
Year Ended June 30, ----------------------------------------------------- 2003 2002 2001 ------------ ----------- ----------- NET REVENUES $ 57,522,240 $34,309,667 $17,654,825 COST OF REVENUES 31,549,474 20,345,034 11,692,775 ------------ ----------- ----------- Gross profit 25,972,766 13,964,633 5,962,050 ------------ ----------- ----------- OPERATING EXPENSES: Sales and marketing 9,970,943 6,381,124 3,058,008 Research and development 1,837,055 1,441,359 955,386 General and administrative 4,325,484 3,159,875 2,171,280 Acquisition related costs - - 245,839 ------------ ----------- ----------- Total operating expenses 16,133,482 10,982,358 6,430,513 ------------ ----------- ----------- Operating income (loss) 9,839,284 2,982,275 (468,463) LOSS ON INVESTMENT (300,000) - (812,000) INTEREST INCOME, net 322,834 296,045 771,695 ------------ ----------- ----------- Income (loss) before income taxes 9,862,118 3,278,320 (508,768) INCOME TAXES (BENEFIT) 3,550,361 (1,346,728) - ------------ ----------- ----------- NET INCOME (LOSS) $ 6,311,757 $ 4,625,048 $ (508,768) ============ =========== =========== BASIC EARNINGS (LOSS) PER SHARE $ 0.46 $ 0.42 $ (0.05) ============ =========== =========== DILUTED EARNINGS (LOSS) PER SHARE $ 0.43 $ 0.39 $ (0.05) ============ =========== =========== WEIGHTED AVERAGE NUMBER OF SHARES USED IN BASIC EARNINGS (LOSS) PER SHARE CALCULATION 13,601,186 10,904,565 10,226,316 ============ =========== =========== WEIGHTED AVERAGE NUMBER OF SHARES USED IN DILUTED EARNINGS (LOSS) PER SHARE CALCULATION 14,695,819 11,851,327 10,226,316 ============ =========== ===========
See accompanying notes to consolidated financial statements. 39
NEOWARE SYSTEMS, INC. AND SUBSIDIARIES -------------------------------------- CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY AND --------------------------------------------------- COMPREHENSIVE INCOME (LOSS) --------------------------- Accumulated Additional Other (Deficit) Common Stock Paid-in Treasury Comprehensive Retained Shares Amount Capital Stock Income (Loss) Earnings Total ---------- ------- ----------- --------- ------------- ----------- ----------- BALANCE AT JUNE 30, 2000 10,275,163 10,275 24,369,648 -- -- (7,902,843) 16,477,080 Comprehensive loss: -- -- -- -- -- (508,768) (508,768) Unrealized gain on marketable equity securities -- -- -- -- 66,667 -- 66,667 ----------- Total comprehensive loss (442,101) Issuance of warrants -- -- 150,000 -- -- -- 150,000 Purchase of treasury stock (100,000) -- -- (100,000) -- -- (100,000) Exercise of stock options 4,500 5 4,919 -- -- -- 4,924 ----------------------------------------------------------------------------------------- BALANCE AT JUNE 30, 2001 10,179,663 10,280 24,524,567 (100,000) 66,667 (8,411,611) 16,089,903 Comprehensive income: -- -- -- -- -- 4,625,048 4,625,048 Unrealized loss on marketable equity securities -- -- -- -- (183,339) -- (183,339) ----------- Total comprehensive income 4,441,709 Issuance of common stock, net of expenses 1,600,000 1,600 11,191,116 -- -- -- 11,192,716 Shares issued for acquisition 569,727 570 1,845,345 -- -- -- 1,845,915 Shares issued for alliance 375,000 375 2,347,125 -- -- -- 2,347,500 Exercise of stock options 111,225 111 162,677 -- -- -- 162,788 Tax benefits related to stock options -- -- 221,031 -- -- -- 221,031 ----------------------------------------------------------------------------------------- BALANCE AT JUNE 30, 2002 12,835,615 $12,936 $40,291,861 $(100,000) $(116,672) $(3,786,563) $36,301,562 Comprehensive income: -- -- -- -- -- 6,311,757 6,311,757 Translation adjustment -- -- -- -- (26,943) -- (26,943) Reclassification adjustment for realized loss on marketable equity securities -- -- -- -- 116,672 -- 116,672 ----------- Total comprehensive income 6,401,496 Costs associated with issuance of common Stock -- -- (122,409) -- -- -- (122,409) Exercise of warrants 118,910 119 512,592 -- -- -- 512,711 Exercise of stock options 1,000,275 1,001 1,727,221 -- -- -- 1,728,222 Tax benefits related to stock options -- -- 1,805,251 -- -- -- 1,805,251 ----------------------------------------------------------------------------------------- BALANCE AT JUNE 30, 2003 13,954,800 $14,056 $44,214,516 $(100,000) $ (26,943) $ 2,525,194 $46,626,823 - ---------------------------------------- =========================================================================================
See accompanying notes to consolidated financial statements. 40
NEOWARE SYSTEMS, INC. AND SUBSIDIARIES -------------------------------------- CONSOLIDATED STATEMENTS OF CASH FLOWS ------------------------------------- Year Ended June 30, --------------------------------------------- 2003 2002 2001 ----------- ----------- ----------- CASH FLOWS FROM OPERATING ACTIVITIES: Net income (loss) $ 6,311,757 $ 4,625,048 $ (508,768) Adjustments to reconcile net income (loss) to net cash provided by (used in) operating activities- Depreciation and amortization 786,492 496,233 363,766 Loss on investment 300,000 -- 812,000 Stock option benefit on deferred income taxes 1,805,251 221,031 -- Deferred income tax benefit 639,715 (1,568,512) -- Changes in operating assets and liabilities, net of effect from acquisitions- (Increase) decrease in: Accounts receivable (1,568,436) (5,670,353) (1,433,783) Inventories 268,357 (578,166) 661,108 Prepaid expenses and other (273,723) (57,119) (110,182) Increase (decrease) in: Accounts payable 1,095,182 1,050,851 (218,029) Accrued expenses 681,016 498,114 871,077 Deferred revenue 109,324 139,212 (145,408) --------------------------------------------- Net cash provided by (used in) operating activities 10,154,935 (843,661) 291,781 --------------------------------------------- CASH FLOWS FROM INVESTING ACTIVITIES: Purchase of ACTIV-e Solutions, Inc. -- (220,649) -- Purchase of Network Computing Devices ThinSTAR product line -- (4,172,414) -- Capitalized and purchased software -- -- (66,932) Purchase of Boundless Technologies, Inc. Capio product line -- (12,420) (1,874,453) Alliance agreement transaction costs -- (52,152) -- Purchases of short-term investments (3,151,320) -- (300,000) Purchases of property and equipment, net (153,379) (128,324) (100,601) --------------------------------------------- Net cash used in investing activities (3,304,699) (4,585,959) (2,341,986) --------------------------------------------- CASH FLOWS FROM FINANCING ACTIVITIES: Proceeds from issuance of common stock, net of expenses (122,409) 11,192,716 -- Purchase of treasury stock -- -- (100,000) Exercise of stock options and warrants 2,240,933 162,788 4,925 Repayments of bank debt -- (388,213) -- Repayments of capital leases (250,359) (33,317) -- Repayments (advances) in officer notes receivable 263,732 (185,467) 26,023 --------------------------------------------- Net cash provided by (used in) financing activities 2,131,897 10,748,507 (69,052) --------------------------------------------- INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS 8,982,133 5,318,887 (2,119,257) CASH AND CASH EQUIVALENTS, BEGINNING OF YEAR 17,031,422 11,712,535 13,831,792 --------------------------------------------- CASH AND CASH EQUIVALENTS, END OF YEAR $26,013,555 $17,031,422 $11,712,535 ============================================= SUPPLEMENTAL CASH FLOW DISCLOSURES: Cash paid for income taxes $ 976,233 $ 25,000 $ -- Cash paid for interest 32,078 26,422 8,563
See accompanying notes to consolidated financial statements. 41 NEOWARE SYSTEMS, INC. AND SUBSIDIARIES -------------------------------------- NOTES TO CONSOLIDATED FINANCIAL STATEMENTS ------------------------------------------ 1. COMPANY BACKGROUND: ------------------- Neoware Systems, Inc. (the "Company") provides software, services and solutions to enable Appliance Computing, a proven Internet-based computing architecture targeted at business customers that is designed to be easier to manage and more cost-effective than traditional PC-based computing. The Company's software and management tools secure, power and manage a new generation of smart thin client appliances that utilize the benefits of open, industry-standard technologies to create new alternatives to full-function personal computers used in business and proprietary business devices including green-screen terminals. The Company's software runs on thin client appliances and personal computers, and enables these devices to be secured and centrally managed, as well as to connect to mainframes, midrange, UNIX, Linux and legacy systems. The Company generates revenues from sales of its Eon, Capio, ThinSTAR and Voyager thin client appliances, as well as its ThinPC thin client software for PCs, TeemTalk host access software for PCs and UNIX workstations, ezRemote Manager central management software, and services such as training and integration. 2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES: ------------------------------------------- Principles of Consolidation and Translation of Foreign Financial Statements - --------------------------------------------------------------------------- The consolidated financial statements include the accounts of the Company and its wholly owned subsidiaries. All significant intercompany profits, accounts and transactions have been eliminated in consolidation. Assets and liabilities of the Company's foreign subsidiaries are translated at the exchange rate as of the end of each reporting period. The statement of operations is translated at the average exchange rate for the period. Gains or losses from translating foreign currency are accumulated in a separate component of stockholders' equity. Use of Estimates - ---------------- 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 revenues and expenses during the reporting period. Significant estimates include the allowance for doubtful accounts, reserves for returns and allowances, inventory reserves and future tax effects of temporary differences between financial reporting and tax bases of assets and liabilities. Actual results could differ from those estimates. Cash Equivalents - ---------------- The Company considers all highly liquid investments purchased with an original maturity of three months or less to be cash equivalents for the purpose of determining cash flows. Cash equivalents at June 30, 2003 and 2002 consisted primarily of investments in commercial paper, money market funds and certificates of deposit. 42 Short-term Investments - ---------------------- The Company's short-term investments have been classified as "available-for-sale" securities under the provisions of Statement of Financial Accounting Standards No. ("SFAS") 115, "Accounting for Certain Investments in Debt and Equity Securities" and are reported at estimated fair value, with unrealized gains and losses reported as a separate component of stockholders' equity. Short-term investments at June 30, 2003 consisted of highly liquid discount notes. Short-term investments at June 30, 2002 consisted of 300,000 shares of common stock of Boundless Corporation (see Notes 3 and 17). Inventories - ----------- Inventories are stated at the lower of cost or market. Cost is determined by the first-in, first-out method. Long-Lived Assets - ----------------- Effective July 1, 2002, the Company adopted SFAS No, 144, "Accounting for the Impairment or Disposal of Long-Lived Assets", which supercedes SFAS No. 121, "Accounting for the Impairment of Long-Lived Assets and for Long-lived Assets to be Disposed of". Accordingly, in the event that facts and circumstances indicate that property and equipment, amortizable intangibles or other long-lived assets may be impaired, an evaluation of recoverability would be performed. If an evaluation is required, the estimated future undiscounted cash flows associated with the assets is compared to the carrying amount of the assets to determine if a write-down to market value or discounted cash flow value is necessary. As of June 30, 2003, management believes that there are no indications of impairment. Property and Equipment - ---------------------- Property and equipment are stated at cost. Additions and improvements that significantly extend the useful life of an asset are capitalized. Expenditures for repairs and maintenance are charged to operations as incurred. Leasehold improvements are amortized over the lesser of the estimated useful life of the asset or the lease term. Depreciation and amortization are provided using the straight-line method over the estimated useful lives of the assets as follows: Computer equipment 3-5 years Office furniture and equipment 5-7 years Leasehold improvements 5 years Other 3-5 years Goodwill - -------- The Company adopted SFAS No. 142, "Goodwill and Other Intangibles" on July 1, 2001. SFAS No. 142 requires that goodwill no longer be amortized but instead be tested for impairment at least annually. Goodwill represents the excess of the purchase price over the fair value of net assets acquired. The Company operates in one reporting segment. At June 30, 2003, management does not believe that goodwill is impaired. The Company had no goodwill amortization prior to the adoption of SFAS No. 142 because the Company had no goodwill until the acquisition of the thin client business of Boundless Technologies, Inc. on June 28, 2001 (see Note 3). Accordingly, the transitional disclosures required by SFAS No. 142 are not required. For the year ended June 30, 2003, changes in goodwill related primarily to minor adjustments to the opening balance sheets of acquired businesses. 43 Intangible Assets, net - ---------------------- The Company adopted SFAS No. 142 on July 1, 2001. SFAS No. 142 requires that intangible assets with indefinite useful lives no longer be amortized but instead be tested for impairment at least annually. SFAS No. 142 also requires that intangible assets with finite useful lives be amortized over their respective estimated useful lives to their estimated residual values (see Note 7). Amortizable intangible assets are reviewed for impairment pursuant to SFAS No. 144. Revenue Recognition - ------------------- The Company's products include both a hardware and software component. Software has been deemed to be essential to the functionality of the hardware and, therefore, the Company follows AICPA Statement of Position No. 97-2, "Software Revenue Recognition" ("SOP 97-2") for revenue recognition. Revenue is recognized on product sales when persuasive evidence of an arrangement exists, delivery of the product has occurred, the fee is fixed or determinable and collectibility is probable. Revenue related to post-contract services is generally recognized with the initial product sale when the fee is included with the initial product fee, post-contract services are typically for one year or less, the estimated cost of providing such services during the arrangement is insignificant, and unspecified upgrades and enhancements offered during the period historically have been and are expected to continue to be minimal and infrequent. Revenue from consulting services is recognized upon performance. In limited circumstances, the Company provides certain distributors with stock rotation rights, which are contractually limited to a maximum amount per quarter and require a corresponding order of equal or greater value at the time of the stock rotation. The Company reserves for these arrangements based on historical experience and the level of inventories in the distribution channel. Product warranty costs are accrued at the time the related revenues are recognized. From time to time, customers request delayed shipment, usually because of customer scheduling for systems integration and lack of storage space at a customer's facility during the implementation. In such "bill and hold" transactions, the Company recognizes revenues when the following conditions are met: the equipment is complete, ready for shipment and segregated from other inventory; the Company has no further performance obligations in connection with the completion of the transaction; the commitment and delivery schedule is fixed; the customer requested the transaction be completed on this basis; the billing and credit terms for the customer have not been modified from the Company's normal policies; and the risks of ownership have passed to the customer. Revenues recognized from "bill and hold" transactions for products which had not shipped by fiscal year-end were $-0- , $607,980 and $335,119 for the years ended June 30, 2003, 2002 and 2001, respectively. Accounts receivable relating to "bill and hold" transactions were $-0- and $233,279 at June 30, 2003 and 2002, respectively. Research and Development - ------------------------ Costs incurred in the development of new software products are charged to expense as incurred until the technological feasibility of the product has been established. After technological feasibility has been established, any additional costs are capitalized in accordance with SFAS No. 86, "Accounting for the Costs of Computer Software to be Sold, Leased or Otherwise Marketed." Capitalized software costs are amortized to cost of revenues over the expected life of the product, not to exceed three years. The Company capitalized $66,932 of software development costs in fiscal 2001 and recorded expense of $47,779, $29,468 and $230,630 in fiscal 2003, 2002 and 2001, respectively, related to amortization of capitalized software costs. There were no capitalized software costs during fiscal 2003 and 2002 since development costs incurred after the establishment of technological feasibility have not been significant. 44 Prepaid Licenses - ---------------- The Company also enters into various licensing agreements which require up front cash payments and/or royalties based on unit sales. Such amounts are capitalized and amortized over the term of the license agreement or based on the units sold and are included in prepaid expenses in the accompanying consolidated balance sheet. The Company continually evaluates whether events and circumstances have occurred that indicate that the unamortized balances may not be recoverable or that the amortization period should be revised. Earnings (Loss) Per Share - ------------------------- Basic earnings (loss) per share is computed by dividing net income (loss) by the weighted average number of common shares outstanding for the period. Diluted earnings per share reflects the potential dilution from the exercise or conversion of securities into common stock, such as stock options and warrants. At June 30, 2003, the Company has options and warrants outstanding to purchase 1,633,625 shares of common stock at prices ranging from $0.88 to $18.11. For the years ended June 30, 2003 and 2002, there were 493,500 and 84,500 options to purchase shares of common stock which were not included in the computation of diluted earnings per share as the impact would have been antidilutive. However, these options may be dilutive in the future. For the year ended June 30, 2001, there was no dilutive effect of stock options or warrants, as the Company incurred a net loss. The following table sets forth the computation of basic and diluted earnings (loss) per share:
For the year ended June 30, ----------------------------------------- 2003 2002 2001 ----------- ----------- ----------- Net income (loss) $ 6,311,757 $ 4,625,048 $ (508,768) =========== =========== =========== Weighted average shares outstanding: Basic 13,601,186 10,904,565 10,226,316 Dilutive effect of stock options and warrants 1,094,633 946,762 - ----------- ----------- ----------- Diluted 14,695,819 11,851,327 10,226,316 =========== =========== =========== Earnings (loss) per common share: Basic $0.46 $0.42 $(0.05) =========== =========== =========== Diluted $0.43 $0.39 $(0.05) =========== =========== ===========
Income Taxes - ------------ The Company accounts for income taxes in accordance with SFAS No. 109, "Accounting for Income Taxes." Under the asset-and-liability method of SFAS No. 109, deferred tax assets and liabilities are recognized for the future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and the respective tax bases. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled. Under SFAS No. 109, the effect on deferred tax assets and liabilities of a change in tax rates is recognized in income in the period that includes the enactment date. 45 Comprehensive Income (Loss) - --------------------------- The Company follows SFAS No. 130, "Reporting Comprehensive Income," which requires companies to classify items of other comprehensive income (loss) by their nature in a financial statement and display the accumulated balance of other comprehensive income (loss) separately from retained earnings and additional paid-in-capital in the equity section of a statement of financial position. Excluding net income (loss), the Company's sources of other comprehensive income (loss) are unrealized appreciation (depreciation) on its holdings of short-term investments classified as available-for-sale and unrealized income (loss) relating to foreign currency exchange rate fluctuations. Stock-Based Compensation - ------------------------ The Company applies Accounting Principles Board Opinion, "Accounting for Stock Issued to Employees" (APB 25), and related interpretations for stock options and other stock-based awards while disclosing pro forma net income (loss) and earnings (loss) per share as if the fair value method had been applied in accordance with SFAS No. 123, "Accounting for Stock-based Compensation." In December 2002, the Financial Accounting Standards Board (FASB) issued SFAS No. 148, "Accounting for Stock-Based Compensation-Transition and Disclosure." SFAS No. 148 provides alternative methods of transition for a voluntary change to the fair value method of accounting for stock-based employee compensation. SFAS No. 148 also amends the disclosure requirements of SFAS No. 123 to require prominent disclosures in both annual and interim financial statements about the method of accounting for stock-based employee compensation and the effect of the method used on reported results. The transition and disclosure provisions of SFAS No. 148 are effective for fiscal years ending after December 15, 2002. The Company has determined that it will not make the voluntary change to the fair value based method of accounting at this time. Had compensation cost been recognized consistent with SFAS No. 123, the Company's consolidated net income (loss) and earnings (loss) per share would have been as follows:
Year ended June 30. 2003 2002 2001 ----------- ---------- ----------- Net income (loss) As reported $ 6,311,757 $4,625,048 $ (508,768) Less total stock-based compensation determined under fair value method for all awards, net of tax (1,700,748) (964,218) (536,991) ----------- ---------- ----------- Net income (loss) Pro forma $ 4,611,009 $3,660,830 $(1,045,759) ----------- ---------- ----------- Basic and diluted net income (loss) per share: Basic EPS As reported $ 0.46 $ 0.42 $ (0.05) Pro forma $ 0.34 $ 0.34 $ (0.10) Diluted EPS As reported $ 0.43 $ 0.39 $ (0.05) Pro forma $ 0.33 $ 0.31 $ (0.10)
46 New Accounting Pronouncements - ----------------------------- In July 2002, the FASB issued SFAS No. 146, "Accounting for Costs Associated with Exit or Disposal Activities." Under SFAS 146, companies will record exit or disposal costs when they are incurred and can be measured at fair value, and they will subsequently adjust the recorded liability for changes in estimated cash flow. SFAS No. 146 is effective prospectively for exit or disposal activities initiated after December 31, 2002. In November 2002, the FASB issued FASB Interpretation (FIN) No. 45, "Guarantor's Accounting and Disclosure Requirements for Guarantees, Including Indirect Guarantees of Indebtedness of Others, an Interpretation of FASB Statements No. 5, 57, and 107 and rescission of FASB Interpretation No. 34". The Interpretation expands on the disclosure requirements to be made in interim and annual financial statements. The disclosure requirements are effective for financial statements of both interim and annual periods that end after December 15, 2002. The Interpretation also requires that a liability measured at fair value be recognized for certain guarantees even if the probability of payment on the guarantee is remote. The provision for initial recognition and measurement should be applied on a prospective basis to guarantees issued or modified after December 31, 2002. The adoption of FIN No. 45 did not have a material impact on the Company's financial statements. In November 2002, the Emerging Issues Task Force (EITF) reached a consensus on Issue No. 00-21, "Accounting for Revenue Arrangements with Multiple Deliverables." This issue addresses the appropriate accounting for arrangements that will result in the delivery of multiple products, services and/or rights to assets that may occur over a period of time. The Issue is effective for revenue arrangements entered into in fiscal periods beginning after June 15, 2003. The Company does not anticipate that the adoption of EITF Issue No. 00-21 will have a material impact on its financial statements. In January 2003, the FASB issued Interpretation No. 46, which addresses the consolidation by business enterprises of variable interest entities as defined in the Interpretation. The Interpretation applies immediately to variable interests in variable interest entities created after January 31, 2003, and to variable interest in variable interest entities obtained after January 31, 2003. The adoption of this interpretation did not have any impact on the Company's financial statements. 3. ACQUISITIONS AND ALLIANCE: -------------------------- On June 28, 2001, the Company acquired the thin client business of Boundless Technologies, Inc. (Boundless), which included the Capio product line and associated software, intellectual property, customer contract rights and other intangibles. The acquisition was accounted for using the purchase method of accounting. The purchase price was payable in cash of $1,874,453, including transaction costs of $205,074. In addition, the Company issued warrants to purchase 86,095 common shares in the aggregate to a financial advisor and two of its affiliates for providing acquisition related services (see Note 14). The fair value of the warrants of $150,000 was also included as part of the purchase price. The Company also accrued $81,799 of future contractual obligations in connection with the acquisition. The aggregate purchase price of $2,036,873 has been recorded as intangible assets, of which $300,000 was allocated to acquired distribution agreements, $150,000 was allocated to the Capio trade name, and $1,586,873 was allocated to goodwill. The results of operations of the Boundless thin client business have been included in the accompanying statements of operations from the date of the acquisition. Concurrent with the consummation of the acquisition, the Company made an equity investment of $300,000 in Boundless, which was accounted for as an available-for-sale security under SFAS 115. During the year ended June 30, 2003, the Company wrote off its investment as a result of the bankruptcy filing by Boundless in March 2003 (See Notes 2 and 17). 47 On December 4, 2001, the Company acquired all of the assets and assumed substantially all of the liabilities of Telcom Assistance Center Corporation, d/b/a ACTIV-e Solutions, a full service Information Technology consulting company in the server-based computing marketplace. The acquisition was accounted for under SFAS No. 141 using the purchase method of accounting. The purchase price was payable in cash of $75,000 and an aggregate of 569,727 shares of the Company's newly issued common stock with a market value of $3.24 per share at the date of acquisition. In addition, the Company assumed net liabilities, exclusive of cash acquired of $9,774, of $1,178,209. The aggregate cost of the acquisition was $3,234,999 (including transaction costs of $145,649), which amount is equal to the excess purchase price over the value of the net assets acquired. The entire purchase price has been allocated to goodwill. The results of operations of ACTIV-e Solutions have been included in the accompanying statement of operations from the date of the acquisition. On January 8, 2002, the Company entered into a worldwide alliance with IBM Corporation under which the Company became the preferred provider of thin client appliance products to IBM and its customers. In addition, the Company licensed from IBM the intellectual property associated with its thin client appliance products. As consideration for these agreements, the Company issued to IBM 375,000 newly issued shares of common stock with a fair market value of $6.26 per share. The fair value of the shares issued of $2,347,500, plus transaction costs of $52,152, has been allocated to intangible assets. Of the total consideration, $1,900,000 has been allocated to acquired distribution agreements with the remainder of $499,652 allocated to acquired technology. On March 26, 2002, the Company acquired the thin client business of Network Computing Devices, Inc. (NCD) which included the ThinSTAR product line. The acquisition was accounted for under SFAS No. 141 using the purchase method of accounting. The purchase price was payable in cash of $4,172,414, including transaction costs of $172,414, and was allocated to goodwill. The results of operations of the NCD thin client business have been included in the accompanying statements of operations from the date of the acquisition. A registration statement covering the shares issued in connection with the ACTIV-e acquisition and the IBM alliance was filed on April 3, 2002, and subsequently declared effective. The agreements with ACTIV-e and IBM provided for limitations on the number of shares which could be sold within the first twelve months after effectiveness of the registration statement for the shares granted to ACTIV-e and within fifteen months of issuance for the shares granted to IBM. 4. CONCENTRATIONS AND FOREIGN REVENUES: ------------------------------------- Sales to IBM accounted for 16.6% of total revenues and sales to a European distributor accounted for 15.5% of total revenues in fiscal 2003 and accounts receivable from these customers were $4,799,607 at June 30, 2003. Each of these customers resells the Company's products to individual resellers and/or end-users, none of which contributed sales of more than 10% of the Company's net revenues for the year ended June 30, 2003. One customer provided 10.2% of total net revenues in fiscal 2002 and accounts receivable from this customer was $1,879,703 at June 30, 2002. A different customer provided 10.2% of total net revenues in fiscal 2001. The percentage of revenue derived from individual distributors, resellers or end-users can vary significantly from year to year. The Company depends upon single source suppliers its thin client appliance products and for several of the components in them. The Company also depends on limited sources to supply several other industry standard components and relies on foreign suppliers which subject the Company to risks associated with foreign operations such as the imposition of unfavorable governmental controls or other trade restrictions, changes in tariffs, political instability and currency fluctuations. A weakening dollar could result in greater costs to the Company for its components. 48 The Company's products are used in a broad range of industries for a variety of applications. Sales are made to both domestic and international customers. Net revenues from customers in foreign countries during fiscal 2003, 2002 and 2001 were approximately 39%, 30% and 24%, respectively, and were transacted in US dollars. 5. INVENTORIES: ------------ Inventories, net of allowances, consist of the following:
June 30, -------------------------- 2003 2002 ---------- ----------- Purchased components and subassemblies $ 172,160 $ 211,131 Finished goods 600,334 829,720 ---------- ----------- $ 772,494 $ 1,040,851 ========== ===========
6. PROPERTY AND EQUIPMENT: -----------------------
June 30, -------------------------- 2003 2002 ---------- ----------- Computer equipment $1,551,508 $ 1,424,838 Office furniture and equipment 560,317 551,555 Leasehold improvements 457,121 397,949 Other 128,080 130,799 ---------- ----------- 2,697,026 2,505,141 Less accumulated depreciation and amortization (2,124,978) (1,882,906) ---------- ----------- $ 572,048 $ 622,235 ========== ===========
Depreciation and amortization expense was $248,713, $191,767 and $133,136 for the years ended June 30, 2003, 2002 and 2001, respectively. 7. INTANGIBLE ASSETS: ------------------
June 30, 2003 ----------------------------------------------------------- Estimated Gross carrying Accumulated useful life value amortization Net ------------- ---------------- ---------------- ---------------- Tradenames Indefinite $ 150,000 $ -- $ 150,000 Distributor relationships 5 years 2,200,000 (690,000) 1,510,000 Acquired technology 10 years 505,615 (74,998) 430,617 ---------------- ---------------- ---------------- $ 2,855,615 $ (764,998) $ 2,090,617 ================ ================ ================ June 30, 2002 ----------------------------------------------------------- Estimated Gross carrying Accumulated Net useful life value amortization ------------- ---------------- ---------------- ---------------- Tradenames Indefinite $ 150,000 $ -- $ 150,000 Distributor relationships 5 years 2,200,000 (250,000) 1,950,000 Acquired technology 10 years 499,652 (24,998) 474,654 ---------------- ---------------- ---------------- $ 2,849,652 $ (274,998) $ 2,574,654 ================ ================ ================
Amortization of intangibles was $490,000 and $274,998 for the years ended June 30, 2003 and 2002, respectively. There was no amortization for the year ended June 30, 2001. 49 The following table provides estimated future amortization expense related to intangible assets (assuming there is no write down associated with these intangible assets causing an acceleration of expense): Year ending June 30, Total ---------- 2004 $ 490,000 2005 490,000 2006 490,000 2007 240,000 2008 50,000 2009 through 2013 180,617 ---------- $1,940,617 ========== 8. ACCRUED EXPENSES: -----------------
June 30, --------------------------------- 2003 2002 ---------- ---------- Compensation $1,706,780 $1,170,034 Software license fees 184,616 327,703 Marketing costs 294,408 212,175 Professional fees 157,200 91,000 Other 474,787 335,864 ---------- ---------- $2,817,791 $2,136,776 ========== ==========
9. VALUATION AND QUALIFYING ACCOUNTS: ---------------------------------- A rollforward of the allowance for doubtful accounts is as follows:
Year Ended June 30, ---------------------------------- 2003 2002 2001 -------- --------- -------- Beginning balance $351,131 $ 188,151 $125,409 Expense 287,569 282,115 66,137 Write-offs (85,371) (119,135) (3,395) -------- --------- -------- Ending balance $553,329 $ 351,131 $188,151 ======== ========= ========
10. NOTE RECEIVABLE: ---------------- In April 2002, the Company entered into a note agreement with an officer in the amount of $263,732 in connection with recruiting this individual to the Company and to provide cash to exercise stock options held in a previous employer, IBM. The note bore interest at 5%, was secured by 8,506 shares of IBM common stock, was full recourse and was repayable upon either the earlier of the sale of the stock or three years. The note was repaid during May 2003. 50 11. LINE OF CREDIT: --------------- The Company has a line of credit agreement with a bank, which provides for borrowing up to $2,000,000 subject to certain limitations, as defined. The line of credit matures on December 31, 2004. Borrowings under the credit agreement bear interest at the Libor Market Index rate plus 2.5% (3.8% at June 30, 2003). At June 30, 2003 and June 30, 2002, there was $2,000,000 available for borrowing under the line. During fiscal 2003 and 2002, there were no borrowings under the line. The line of credit is unsecured and requires the Company to maintain a minimum balance of $3,000,000 in cash and cash equivalents with the bank. The Company is in compliance with this condition at June 30,2003. 12. INCOME TAXES: ------------ Income tax expense (benefit) consists of:
Current Deferred Total ------- -------- ----- Year ended June 30, 2003: U.S. Federal $2,596,874 $ 548,361 $ 3,145,235 State and local 144,190 91,354 235,544 Foreign jurisdictions 169,582 -- 169,582 ---------- ------------- ------------ $2,910,646 $ 639,715 $ 3,550,361 ========== ============= ============
Current Deferred Total ------- -------- ----- Year ended June 30, 2002: U.S. Federal $ -- $ (996,701) $ (996,071) State and local 753 (351,410) (350,657) ---------- ------------- ------------ $ 753 $ (1,347,481) $ (1,346,728) ========== ============= ============
The federal statutory income tax rate is reconciled to the effective tax rate as follows:
Year Ended June 30, --------------------------------------------------------------------------------------------------------- 2003 2002 2001 ---- ---- ---- Federal statutory rate 34.0% 34.0% (34.0)% State income taxes, net 1.6 - - Expenses not deductible for tax .2 1.8 .8 Valuation allowance - (82.2) 59.0 Other .2 5.3 (25.8) ------------------- ----------------- --------------- 36.0% (41.1)% -% =================== ================= ===============
51 Deferred taxes are comprised of the following:
June 30, -------------------------- 2003 2002 --------- ---------- Current deferred income tax asset $ 945,585 $1,394,864 Current deferred income tax liability - - --------- ---------- Total current deferred tax asset 945,585 1,394,864 --------- ---------- Gross non-current deferred income tax asset 292,886 292,863 Gross non-current deferred income tax liability (309,674) (119,215) --------- ---------- Total non-current deferred tax asset (liability) (16,788) 173,648 --------- ---------- Net deferred tax asset $ 928,797 $1,568,512 ========= ==========
The tax effect of significant temporary differences representing deferred tax assets and liabilities are as follows:
June 30, -------------------------- 2003 2002 --------- ---------- Net operating loss carryforwards $ 365,215 $ 951,430 Expenses not currently deductible for tax purposes 501,903 292,223 Deferred revenue 196,610 159,139 Basis difference in property and equipment and capitalized software 96,094 133,725 Basis difference in inventory 78,649 148,210 Amortization of intangible assets (309,674) (119,215) --------- ---------- Net deferred tax asset $ 928,797 $1,568,512 ========= ==========
As of June 30, 2003, the Company has state net operating loss carryforwards of approximately $5,300,000 that begin to expire in 2005 and are available to offset future state taxable income. The valuation allowance for deferred tax assets as of June 30, 2001 was $2,696,288. The net change in the total valuation allowance for the year ended June 30, 2002 was a decrease of $2,696,288. As of June 30, 2003, the Company does not have a valuation allowance against the deferred tax assets. In assessing the realizability of deferred tax assets, management considers whether it is more likely than not that some portion of the deferred tax assets will not be realized. The ultimate realization of deferred tax assets is dependent upon the generation of future taxable income during the periods in which those temporary differences become deductible. Management considers the scheduled reversal of deferred tax liabilities and projected future taxable income in making this assessment. Based upon the level of historical taxable income and projections for future taxable income over the periods which the deferred tax assets are deductible, along with reasonable and prudent tax planning strategies and the expiration dates of carryforwards, management believes it is more likely than not the Company will realize the benefits of these deductible differences at June 30, 2003. 52 13. SALE OF COMMON STOCK: --------------------- In May 2002, the Company sold 1,600,000 shares of common stock at $7.50 per share. The price represented an 8% discount from the average closing price for the 15-day period immediately preceding the sale. Net proceeds to the Company in fiscal 2002 were $11,192,716 after transaction costs of $807,284. Additional transaction costs of $122,409 were incurred in fiscal 2003 related to this transaction. In addition, warrants to purchase 48,000 shares of common stock were issued to one of the placement agents at a price of $9.375 per share. The warrants are exercisable until May 2005. The Company valued the warrants at $272,941 using the Black-Scholes option pricing model with the following assumptions: no dividend yield; expected volatility of 114%; risk-free interest rate of 4.9%; and an expected life of three years. A total of 35,000 warrants were exercised in fiscal 2003. 14. STOCK OPTIONS AND WARRANTS: --------------------------- The Company has two stock option plans for employees, directors, and consultants to the Company. Under the 1995 Stock Option plan (the "1995 Plan"), the Company is authorized to issue options for the purchase of up to 3,000,000 shares of common stock. Under the terms of the 1995 Plan, the exercise price of options granted cannot be less than fair market value on the date of grant. Employee options generally vest ratably over four years. Director options generally vest and become exercisable ratably over six months or one to three years from the date of grant. All options that have been granted expire five or ten years from the grant date. A committee established for this purpose, or the board of directors, administers the 1995 Plan. Except for non-discretionary grants of options to non-employee directors, the committee or board may define vesting and expiration dates for all options granted under the 1995 Plan. As of June 30, 2003, there were 360,945 options available for future grant under the 1995 Plan. The Company has a non-qualified stock option plan (the "2002 Plan") for employees, directors and consultants who perform services for the Company. The Company is authorized to issue options for the purchase of up to 700,000 shares of common stock, subject to adjustment. Under the terms of the 2002 Plan, the exercise price of options granted cannot be less than fair market value on the date of grant. Options generally vest ratably over four years. A committee established for this purpose, or the board of directors, administers the 2002 Plan. The committee or board may define vesting and expiration dates for all options granted under the 2002 Plan. As of June 30, 2003, there were 226,951 options available for grant under the 2002 Plan. Options granted under the 1995 Plan contain provisions pursuant to which all outstanding options granted under such Plan shall or may become fully vested and immediately exercisable upon a "change in control," as defined in the Plan. Information with respect to the options under the Company's stock option plans is as follows: Weighted Average Exercise Shares Price ----------- ------------------ Balance as of June 30, 2000 1,544,250 $ 2.20 Granted 220,750 1.90 Exercised (4,500) 1.09 Terminated (83,750) 2.96 ---------- Balance as of June 30, 2001 1,676,750 2.12 Granted 655,500 5.10 Exercised (111,225) 1.46 Terminated (82,750) 3.66 ---------- Balance as of June 30, 2002 2,138,275 3.01 Granted 680,000 14.34 Exercised (1,000,275) 1.73 Terminated (197,375) 5.27 ---------- Balance as of June 30, 2003 1,620,625 8.47 ========== 53 The following table summarizes information about stock options outstanding as of June 30, 2003:
Outstanding Stock Options Exercisable Stock Options ------------------------- ------------------------- Weighted Range Weighted Average Weighted of Average Remaining Average Exercise Exercise Contractual Exercise Prices Shares Price Life Shares Price ------------ --------- -------- ----------- ------- -------- $ .88-2.94 405,250 $ 2.35 2.3 years 224,875 $ 2.39 3.00-5.37 318,000 3.65 2.1 years 185,500 3.87 7.35-10.55 353,875 8.82 4.0 years 61,375 8.07 11.30-15.85 380,500 14.09 4.4 years - - 17.15-18.11 163,000 17.27 4.4 years 20,000 18.11 --------- ------- 1,620,625 491,750 ========= =======
In June 2001, the Company issued warrants to purchase 86,095 common shares at a price of $2.20 per share to a financial advisor and two of its affiliates in connection with acquisition related services (see Note 3). The warrants vested immediately and expire in June 2004. In accordance with SFAS No. 123, the fair value of the warrants of $150,000 was recorded as transaction costs related to the acquisition. The fair value of the warrants was determined using the Black-Scholes options pricing model using the following assumptions: dividend yield of zero, weighted average risk free interest rate of 4.6%, and expected volatility of 114% over the contractual term of the warrant. A total of 83,910 warrants were exercised in fiscal 2003. In May 2002, the Company issued warrants to a placement agent for the purchase of 48,000 common shares at a price of $9.375 per share and were fully vested at the date of grant (see Note 13). During the year ended June 30, 2003, 35,000 warrants were exercised and 13,000 warrants remain outstanding as of June 30, 2003 with an expiration date in May 2005. The fair value of each option grant is estimated on the date of grant using the Black-Scholes option pricing model with the following weighted-average assumptions used for grants in fiscal 2003, 2002 and 2001: no dividend yield; expected volatility of approximately 70%-126%; risk-free interest rates of approximately 2.1%-6.8%; and an expected life of five to ten years. 54 15. COMMITMENTS AND CONTINGENCIES: ------------------------------ The Company leases its principal facilities, an automobile, and furniture and fixtures under noncancelable operating leases. The remaining terms of these leases range from three months to three years. Rent expense under these leases was $482,437, $289,183 and $219,097 in fiscal 2003, 2002 and 2001, respectively. Future minimum lease payments under operating leases at June 30, 2003 are $318,329 in fiscal 2004, $228,543 in fiscal 2005 and $228,128 in fiscal 2006. During fiscal 2002, the Company assumed the liabilities for certain office equipment, computer hardware and software under capital leases as part of the ACTIV-e Solutions acquisition. During the year ended June 30, 2003, substantially all of these obligations were paid off. Interest expense under these leases was $7,207 and $18,386 in fiscal 2003 and 2002, respectively. The Company has employment agreements with its executive officers that provide for certain levels of base compensation, fringe benefits and incentives. One of the agreements provides for salary continuance of one year of employment if terminated upon certain conditions. In addition, all of the agreements provide for severance payments in the event of a change in control and the executive officer is not extended a similar position after the change in control. If a change of control had occurred on June 30, 2003, and all of the executive officers had been terminated, the severance obligations would have aggregated approximately $750,000. The Company, in the normal course of business, may be party to various claims. Management believes that the ultimate resolution of any such claims would not have a material impact on the Company's financial position or operating results. 16. EMPLOYEE BENEFIT PLAN: ---------------------- The Company sponsors a profit sharing/401(k) plan (the "Plan") for all of its employees who meet certain age and years of employment requirements. Participants may make voluntary contributions to the Plan and the Company makes a matching contribution of 50% of the first 6% of such contributions up to a maximum of $1,000 per participant per year. The Company's contributions were $131,908, $68,973 and $43,392 in fiscal 2003, 2002 and 2001, respectively. 17. LOSS ON INVESTMENT: ------------------- In October 1997, the Company merged ITC, a wholly owned subsidiary, into Broadreach Consulting, Inc. (Broadreach), a software consulting company, in exchange for a 2% stock interest in Broadreach and the reimbursement of $1,000,000 of expenses incurred by the Company. Of the total reimbursement, $300,000 was paid in cash and the remaining $700,000 was due under a note. During fiscal 1999, the Company sold its 2% interest in Broadreach for $406,930, which was included as a gain on the sale of an equity investment in the consolidated statements of operations. In fiscal 2001, the Company recorded a loss on investment of $812,000, representing the balance due on the note receivable and accrued interest thereon. Broadreach has subsequently discontinued operations. In fiscal 2003, the Company recorded a loss on investment of $300,000 representing the write-off of an investment in Boundless (See Notes 2 and 3). 18. RELATED PARTY ------------- For the year ended June 30, 2003, the Company had sales of approximately $183,000 to a customer of which one of the Company's directors is an executive officer and director. 19. SUBSEQUENT EVENTS: ------------------ On July 1, 2003, the Company acquired from Pericom Holdings PLC the host access software business formerly operated under the name Pericom Software for approximately $9.8 million in cash, excluding transaction costs. The Company acquired all of the assets of the software business including intellectual property and technology, customer lists, customer contracts and distribution channels and also entered into a non-competition agreement. The acquisition will be accounted for using the purchase method of accounting and the purchase price will be allocated to intangible assets. The results of operations of the host access software business will be included in the Company's statements of operations from the date of the acquisition. 55 On July 10, 2003, the Company sold 1,500,000 shares of common stock at $17.50 per share which represented a premium of 10% on the average closing price for the 15-day period immediately preceding the sale. Net proceeds to the Company were approximately $24,500,000 after transaction costs. The Company intends to use the net proceeds of the financing for general corporate purposes and to fund potential future acquisitions. 20. SELECTED QUARTERLY FINANCIAL INFORMATION (UNAUDITED): ----------------------------------------------------- The following table sets forth certain unaudited consolidated financial data for each of the quarters within the fiscal years ended June 30, 2003 and 2002. This information has been derived from the Company's Consolidated Financial Statements, and in management's opinion, reflects all adjustments (consisting only of normal recurring adjustments) necessary for a fair presentation of the information for the quarters presented. The operating results for any quarter are not necessarily indicative of results for any future periods.
(Unaudited) (In Thousands Except Share and Per Share Data) September December March June Fiscal 2003 Quarter Ended 2002 2002 2003 2003 - ---------------------------------------------- ---- ---- ---- ---- Revenues $ 13,517 $ 14,714 $ 13,468 $ 15,823 Gross profit 5,694 6,547 6,240 7,491 Operating income 2,171 2,852 2,218 2,598 Net income 1,447 1,884 1,281 1,700 Basic net income per share $ 0.11 $ 0.14 $ 0.09 $ 0.12 Diluted net income per share $ 0.10 $ 0.13 $ 0.09 $ 0.12 Shares used in computing basic net income per share 13,162,589 13,573,656 13,724,625 13,950,356 Shares used in computing diluted net income per share 14,652,096 14,785,902 14,704,171 14,647,585 - ----------------------------------------------
September December March June Fiscal 2002 Quarter Ended 2001 2001 2002 2002 - ---------------------------------------------- ---- ---- ---- ---- Revenues $ 5,265 $ 6,595 $ 8,369 $ 14,081 Gross profit 2,204 2,855 3,307 5,599 Operating income 148 527 645 1,662 Net income 260 611 705 3,049 Basic net income per share $ 0.03 $ 0.06 $ 0.06 $ 0.26 Diluted net income per share $ 0.02 $ 0.06 $ 0.06 $ 0.23 Shares used in computing basic net income per share 10,179,851 10,376,892 11,175,240 11,916,044 Shares used in computing diluted net income per share 10,596,720 10,884,693 12,509,099 13,417,597
56 EX-10 3 ex10-15.txt EXHIBIT 10.15 EXHIBIT 10.15 SECURITIES PURCHASE AGREEMENT This SECURITIES PURCHASE AGREEMENT is dated as of July 10, 2003 by and between NEOWARE SYSTEMS, INC., a Delaware corporation with its principal office at 400 Feheley Drive, King of Prussia, Pennsylvania 19406 (the "Company"), and the persons listed as the Purchasers on the signature pages hereto (the "Purchasers"). WHEREAS, the Company desires to issue and sell to the Purchasers shares ("Shares") of the Company's authorized but unissued common stock, $0.001 par value per share (the "Common Stock"), in connection with an offering (the "Offering") of a minimum of 1,000,000 Shares and a maximum of 1,500,000 Shares of Common Stock; and WHEREAS, each Purchaser wishes to purchase the Shares on the terms and subject to the conditions set forth in this Agreement. NOW THEREFORE, in consideration of the mutual agreements, representations, warranties and covenants herein contained, the parties hereto agree as follows: 1. Definitions. As used in this Agreement, the following terms shall have the following respective meanings: (a) "Affiliate" of a party, means any corporation or other business entity controlled by, controlling or under common control with such party. For this purpose "control" shall mean direct or indirect beneficial ownership of fifty percent (50%) or more of the voting or income interest in such corporation or other business entity. (b) "Closing Date" means, with respect to any Purchaser, the date of the Closing of such Purchaser's purchase of Shares hereunder. (c) "EGE" means Emerging Growth Equities, Ltd., a Pennsylvania limited partnership. (d) "Exchange Act" means the Securities Exchange Act of 1934, as amended, and all of the rules and regulations promulgated there under. (e) "Placement Agents" means EGE and C.E. Unterberg, Towbin (f) "Registration Rights Agreement" shall mean that certain Registration Rights Agreement, dated as of the date hereof, among the Company and the Purchasers. (g) "SEC" shall mean the Securities and Exchange Commission. (h) "Securities Act" shall mean the Securities Act of 1933, as amended, and all of the rules and regulations promulgated there under. (i) "Unterberg" means C.E. Unterberg, Towbin, a California limited partnership. 2. Purchase and Sale of the Shares. 2.1 Purchase and Sale. Subject to and upon the terms and conditions set forth in this Agreement, the Company agrees to issue and sell to the Purchasers severally and not jointly, and each Purchaser hereby agrees to purchase from the Company severally and not jointly, at the Closing, at a purchase price per Share of $17.50 (the "Purchase Price"), the number of Shares obtained by dividing (a) the amount set forth on such Purchaser's signature page hereto under the heading "Aggregate Subscription Amount" by (b) the Purchase Price. In the event that, with respect to any Purchaser, a fraction results from such calculation, the Company shall issue and sell to such Purchaser the greatest number of whole Shares obtained from such calculation and shall return to the Purchaser the difference between such Purchaser's Aggregate Subscription Amount and the actual aggregate Purchase Price for the Shares so purchased by such Purchaser. 2.2 Closing. Subject to the satisfaction or waiver of the conditions set forth in Section 5 of this Agreement, the purchase and sale of the Shares shall take place at an initial closing (the "Initial Closing") and, if necessary, one or more additional closings subsequent to the Initial Closing (each a "Subsequent Closing," and together with the Initial Closing, each a "Closing") at the offices of the Company's counsel, McCausland, Keen & Buckman, Radnor Court, Suite 160, 259 Radnor-Chester Road, Radnor, Pennsylvania, 19087, upon the acceptance by the Company of each Purchaser's purchase of the Shares; provided, however, that, at the Initial Closing, the Company shall be required to receive gross proceeds of a minimum of $17,500,000 from sales of the Shares to all Purchasers in connection with the Offering. On or prior to the applicable Closing, each Purchaser shall (a) execute this Agreement and the Registration Rights Agreement, together with such other documents relating to the purchase of the Shares as the Company may reasonably request, and deliver the same to EGE to be held in escrow pending the Closing, and (b) deliver, by wire transfer or other form of payment in same day funds the amount of such Purchaser's Aggregate Subscription Amount, to the escrow account established by EGE at Wachovia Bank as escrow agent (the "Escrow Agent") pursuant to the terms of that certain Escrow Agreement (the "Escrow Agreement"), dated as of July 9, 2003, by and among the Company, the Escrow Agent and the Placement Agents in the form attached as Exhibit A hereto. Upon each Closing, (i) the Company shall execute this Agreement and the Registration Rights Agreement, together with such other documents relating to the purchase of the Shares as the Purchasers may reasonably request, and deliver the same to each Purchaser in such Closing, (ii) Placement Agents shall release each such Purchaser's executed Agreement, Registration Rights Agreement and other documents to the Company and (iii) the Escrow Agent shall release the funds in the escrow account to the Company. Within three business days after the Closing, the Company shall deliver to each Purchaser a stock certificate registered in the name of the Purchaser, representing the number of Shares purchased by the Purchaser, as computed pursuant to Section 2.1 hereof. 3. Representations and Warranties of the Company. The Company hereby represents and warrants to the Purchasers as of the Closing Date as follows: 3.1 Incorporation. The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and is qualified to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification, except where the failure to so qualify would not have a material adverse effect upon the Company taken as a whole. The Company has all requisite corporate power and authority to carry on its business as now conducted. 3.2 Capitalization. The authorized capital stock of the Company consists of 50,000,000 shares of Common Stock, of which 13,911,447 shares are outstanding on the date hereof, and 1,000,000 shares of Preferred Stock, $0.001 par value per share, of which no shares are outstanding on the date hereof. Except as set forth in Schedule 3.2 hereto, there are no existing options, warrants, calls, preemptive (or similar) rights, subscriptions or other rights, agreements, arrangements or commitments of any character obligating the Company to issue, transfer or sell, or cause to be issued, transferred or sold, any shares of the capital stock of the Company or other equity interests in the Company or any securities convertible into or exchangeable for such shares of capital stock or other equity interests, and there are no outstanding contractual obligations of the Company to repurchase, redeem or otherwise acquire any shares of its capital stock or other equity interests. 3.3 Authorization. All corporate action on the part of the Company and its officers, directors and stockholders necessary for the authorization, execution, delivery and performance of this Agreement and the Registration Rights Agreement and the consummation of the transactions contemplated herein and therein has been taken. When executed and delivered by the Company, each of this Agreement and the Registration Rights Agreement shall constitute the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as such may be limited by bankruptcy, insolvency, reorganization or other laws affecting creditors' rights generally and by general equitable principles. The Company has all requisite corporate power to enter into this Agreement and the Registration Rights Agreement and to carry out and perform its obligations under the terms of this Agreement, and the Registration Rights Agreement. 3.4 Valid Issuance of the Shares. The Shares being purchased hereunder will, upon issuance pursuant to the terms hereof, be duly authorized and validly issued, fully paid and nonassessable. 3.5 Offering. No form of general solicitation or general advertising was used by the Company or its representatives in connection with the offer, sale or issuance of the Shares. In reliance on, and assuming the accuracy of, the representations and warranties of the Purchasers in Section 4 hereof, the offer, sale and issuance of the Shares in conformity with the terms of this Agreement will not result in a violation of the requirements of Section 5 of the Securities Act. 3.6 Financial Statements. The Company has furnished or otherwise made available to each Purchaser its audited Statements of Operations, Stockholders' Equity and Cash Flows for the fiscal year ended June 30, 2002, its audited Balance Sheet as of June 30, 2002, and its unaudited Statements of Operations, Stockholders' Equity and Cash Flows for the nine months ended March 31, 2003 and its unaudited Balance Sheet as of March 31, 2003. All such financial statements are hereinafter referred to collectively as the "Financial Statements." The Financial Statements have been prepared in accordance with generally accepted accounting principles applied on a consistent basis during the periods involved, and fairly present, in all material respects, the financial position of the Company and the results of its operations as of the date and for the periods indicated thereon, except that the unaudited financial statements may not be in accordance with generally accepted accounting principles because of the absence of footnotes normally contained therein and are subject to normal year-end audit adjustments which, individually, and in the aggregate, will not be material. Since March 31, 2003, to the Company's knowledge, there has been no material adverse change (actual or threatened) in the assets, liabilities (contingent or other), affairs, operations, prospects or condition (financial or other) of the Company. Notwithstanding anything to the contrary in this Agreement, the Company's current financial performance may vary materially from expectations disclosed in the Company's SEC Documents (as such term is defined below) and other publicly released information by the Company due to corporate response to recent market volatility, the timing of the receipt of customer orders, customer seasonality and uncertainty in global markets and the Company's markets, and such other factors as are set forth in the SEC Documents and other publicly released information by the Company. 3.7 SEC Documents. The Company has furnished or otherwise made available to each Purchaser a true and complete copy of the Company's Annual Report on Form 10-K for the fiscal year ended June 30, 2002, the Company's Quarterly Reports on Form 10-Q for the quarters ended September 30, 2002, December 31, 2002, and March 31, 2003 and any other statement, report, registration statement (other than registration statements on Form S-8) or definitive proxy statement filed by the Company with the SEC during the period commencing June 30, 2002, and ending on the date hereof (all such materials being called, collectively, the "SEC Documents"). As of their respective filing dates, the SEC Documents complied as to form in all material respects with the requirements of the Exchange Act or the Securities Act, as applicable, and none of the SEC Documents contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading, as of their respective filing dates, except to the extent corrected by a subsequently filed SEC Document. 3.8 Consents. All consents, approvals, orders and authorizations required on the part of the Company in connection with the execution, delivery or performance of this Agreement and the Registration Rights Agreement and the consummation of the transactions contemplated herein, other than for Regulation D and state blue sky filings with respect to the sale of Shares which will be made post-closing in accordance with such laws, and therein have been obtained and will be effective as of the Closing Date, provided that this representation and warranty is made in reliance on, and assuming the accuracy of, the representations and warranties of the Purchasers in Section 4 hereof to the extent that the accuracy of such representations and warranties are relevant to the determination of whether any such consent, approval, order or authorization is required. 3.9 No Conflict. The execution and delivery of this Agreement and the Registration Rights Agreement by the Company and the consummation of the transactions contemplated hereby and thereby will not conflict with or result in any violation of or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation or to a loss of a material benefit under (i) any provision of the Certificate of Incorporation or Bylaws of the Company or (ii) any agreement or instrument, permit, franchise, license, judgment, order, statute, law, ordinance, rule or regulations applicable to the Company or its properties or assets, except in the case of clause (ii) to the extent that such violations and defaults would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the Company and its properties and assets. 3.10 Placement Agents. In consideration for services rendered by the Placement Agents in placing the Shares, the Company has agreed to pay the Placement Agents an aggregate cash commission equal to six percent (6%) of the gross proceeds of the sale of the Shares sold under this Agreement. Other than as set forth herein, the Company has no obligation to pay brokers' fees or commissions by virtue of the sale of the Shares. 3.11 Absence of Litigation. There is no action, suit, proceeding or, to the Company's knowledge, investigation, pending, or, to the Company's knowledge, threatened by or before any governmental body against the Company and in which an unfavorable outcome, ruling or finding in any said matter, or for all matters taken as a whole, might have a material adverse effect on the Company. The foregoing includes, without limitation, any such action, suit, proceeding or investigation that questions this Agreement or the Registration Rights Agreement or the right of the Company to execute, deliver and perform under same. 4. Representations and Warranties of the Purchasers. Each Purchaser, severally and not jointly, represents and warrants to the Company as of the Closing Date as follows: 4.1 Authorization. All action on the part of the Purchaser and, if applicable, its officers, directors and shareholders necessary for the authorization, execution, delivery and performance of this Agreement and the Registration Rights Agreement and the consummation of the transactions contemplated herein and therein has been taken. When executed and delivered, each of this Agreement and the Registration Rights Agreement will constitute the legal, valid and binding obligation of the Purchaser, enforceable against the Purchaser in accordance with its terms, except as such may be limited by bankruptcy, insolvency, reorganization or other laws affecting creditors' rights generally and by general equitable principles. The Purchaser has all requisite power or corporate power, whichever is applicable, to enter into each of this Agreement and the Registration Rights Agreement and to carry out and perform its obligations under the terms of this Agreement and the Registration Rights Agreement. 4.2 Purchase Entirely for Own Account. The Purchaser is acquiring the Shares being purchased by it hereunder for investment, for its own account, and not for resale or with a view to distribution thereof in violation of the Securities Act. 4.3 Investor Status; Etc. The Purchaser is an "Accredited Investor" as defined in Rule 501 of Regulation D promulgated under the Securities Act and was not organized for the purpose of acquiring the Shares. The Purchaser's financial condition is such that it is able to bear the risk of holding the Shares for an indefinite period of time and the risk of loss of its entire investment. The Purchaser has been afforded the opportunity to ask questions of and receive answers from the management of the Company concerning this investment and has sufficient knowledge and experience in investing in companies similar to the Company in terms of the Company's stage of development so as to be able to evaluate the risks and merits of its investment in the Company. The Purchaser has carefully read the SEC Documents and has relied solely on the information contained therein and herein and on any additional information provided to the Purchaser by the Company. 4.4 Shares Not Registered. The Purchaser understands that the Shares have not been registered under the Securities Act or the securities laws of any state, by reason of their issuance by the Company in a transaction exempt from the registration requirements of the Securities Act and applicable state securities laws, and that the Shares must continue to be held by the Purchaser unless a subsequent disposition thereof is registered under the Securities Act or is exempt from such registration. The Purchaser understands that the exemptions from registration afforded by Rule 144 (the provisions of which are known to it) promulgated under the Securities Act depend on the satisfaction of various conditions, and that, if applicable, Rule 144 may afford the basis for sales only in limited amounts. The Purchaser further understands that, except as provided in the Registration Rights Agreement, the Company is under no obligation to register any of the Shares on the Purchaser's behalf or to assist the Purchaser in complying with any exemption under the Securities Act or applicable state securities laws. 4.5 No Conflict. The execution and delivery of this Agreement and the Registration Rights Agreement by the Purchaser and the consummation of the transactions contemplated hereby and thereby will not conflict with or result in any violation of or default by the Purchaser (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation or to a loss of a material benefit under (i) any provision of the organizational documents of the Purchaser or (ii) any agreement or instrument, permit, franchise, license, judgment, order, statute, law, ordinance, rule or regulations, applicable to the Purchaser or its respective properties or assets. 4.6 Consents. All consents, approvals, orders and authorizations required on the part of the Purchaser in connection with the execution, delivery or performance of this Agreement and the consummation of the transactions contemplated herein have been obtained and are effective as of the Closing Date. 4.7 Company Representations and Warranties. No representations or warranties have been made to the Purchaser by the Company, or any officer, employee, agent, affiliate or subsidiary of the Company, other than the representations and warranties of the Company contained herein, and in purchasing the Shares the Purchaser is not relying on any representations relating to the Company other than those contained herein. 4.8 No Recommendation. The Purchaser understands that no federal or state agency has made any findings or determination as to the fairness of the offering of the Shares hereunder (or any part thereof) for public investment, or any recommendation or endorsement of the Shares (or any part thereof). 5. Conditions Precedent. 5.1 Conditions to the Obligation of the Purchasers to Consummate the Closing. The obligation of each Purchaser to consummate the Closing and to purchase and pay for the Shares being purchased by it pursuant to this Agreement is subject to the satisfaction of the following conditions precedent: (a) The representations and warranties contained herein of the Company shall be true and correct on and as of the Closing Date with the same force and effect as though made on and as of the Closing Date (it being understood and agreed by the Purchasers that, in the case of any representation and warranty of the Company contained herein which is not hereinabove qualified by application thereto of a materiality standard, such representation and warranty need be true and correct only in all material respects in order to satisfy as to such representation or warranty the condition precedent set forth in the foregoing provisions of this Section 5.1(a)). (b) The Registration Rights Agreement shall have been executed and delivered by the Company. (c) The Company shall have performed all obligations and conditions herein required to be performed or observed by the Company on or prior to the Closing Date. (d) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending. (e) The purchase of and payment for the Shares by the Purchasers shall not be prohibited by any law or governmental order or regulation. All necessary consents, approvals, licenses, permits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of any other person with respect to any of the transactions contemplated hereby, other than for Regulation D and state blue sky filings with respect to the sale of the Shares, shall have been duly obtained or made and shall be in full force and effect. (f) The Company shall have received gross proceeds of a minimum of $17,500,000 from sales of the Shares to all Purchasers in connection with the Offering. (g) The Company shall have filed an application for listing of the Shares on the NASDAQ National Market on or before the Closing. (h) All instruments and corporate proceedings in connection with the transactions contemplated by this Agreement to be consummated at the Closing shall be satisfactory in form and substance to the Purchasers, and the Purchasers shall have received copies (executed or certified, as may be appropriate) of all documents which the Purchasers may have reasonably requested in connection with such transactions. 5.2 Conditions to the Obligation of the Company to Consummate the Closing. The obligation of the Company to consummate the Closing and to issue and sell to the Purchasers the Shares to be purchased at the Closing is subject to the satisfaction of the following conditions precedent: (a) The representations and warranties contained herein of each Purchaser shall be true and correct on and as of the Closing Date with the same force and effect as though made on and as of the Closing Date (it being understood and agreed by the Company that, in the case of any representation and warranty of a Purchaser contained herein which is not hereinabove qualified by application thereto of a materiality standard, such representation and warranty need be true and correct only in all material respects in order to satisfy as to such representation or warranty the condition precedent set forth in the foregoing provisions of this Section 5.2(a)). (b) The Registration Rights Agreement shall have been executed and delivered by the Purchasers. (c) The Purchasers shall have performed all obligations and conditions herein required to be performed or observed by the Purchasers on or prior to the Closing Date. (d) No proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted before any court, arbitrator or governmental body, agency or official and shall be pending. (e) The sale of the Shares by the Company shall not be prohibited by any law or governmental order or regulation. All necessary consents, approvals, licenses, permits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of any other person with respect to any of the transactions contemplated hereby, other than for Regulation D and state blue sky filings with respect to the sale of the Shares, shall have been duly obtained or made and shall be in full force and effect. (f) All instruments and corporate proceedings in connection with the transactions contemplated by this Agreement to be consummated at the Closing shall be satisfactory in form and substance to the Company, and the Company shall have received counterpart originals, or certified or other copies of all documents, including without limitation records of corporate or other proceedings, which it may have reasonably requested in connection therewith. 6. Transfer, Legends. 6.1 Securities Law Transfer Restrictions. No Purchaser shall sell, assign, pledge, transfer or otherwise dispose or encumber any of the Shares being purchased by it hereunder, except (i) pursuant to an effective registration statement under the Securities Act or (ii) pursuant to an available exemption from registration under the Securities Act and applicable state securities laws and, if requested by the Company, upon delivery by the Purchaser of an opinion of counsel reasonably satisfactory to the Company and its counsel to the effect that the proposed transfer is exempt from registration under the Securities Act and applicable state securities laws. Any transfer or purported transfer of the Shares in violation of this Section 6.1 shall be voidable by the Company. The Company shall not register any transfer of the Shares in violation of this Section 6.1. The Company may, and may instruct any transfer agent for the Company, to place such stop transfer orders as may be required on the transfer books of the Company in order to ensure compliance with the provisions of this Section 6.1. 6.2 Legends. Each certificate representing any of the Shares shall be endorsed with the legends set forth below, and each Purchaser covenants that, except to the extent such restrictions are waived by the Company, it shall not transfer the Shares represented by any such certificate without complying with the restrictions on transfer described in this Agreement and the legends endorsed on such certificate: "THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND MAY NOT BE OFFERED, SOLD, ASSIGNED, PLEDGED TRANSFERRED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER SAID ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM REGISTRATION UNDER SAID ACT AND, IF REQUESTED BY THE COMPANY, UPON DELIVERY OF AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY AND ITS COUNSEL THAT THE PROPOSED TRANSFER IS EXEMPT FROM SAID ACT." 7. Escrow Agreement. In connection with and in consideration of this Agreement, each Purchaser severally and not jointly hereby adopts and agrees to be bound by the terms and conditions of the Escrow Agreement, as if the Purchaser had executed such Escrow Agreement. 8. Miscellaneous Provisions. 8.1 Public Statements or Releases. None of the parties to this Agreement shall make, issue, or release any announcement, whether to the public generally, or to any of its suppliers or customers, with respect to this Agreement or the transactions provided for herein, or make any statement or acknowledgment of the existence of, or reveal the status of, this Agreement or the transactions provided for herein, without the prior consent of the other parties, which shall not be unreasonably withheld or delayed, provided, that nothing in this Section 8.1 shall prevent any of the parties hereto from making such public announcements as it may consider necessary in order to satisfy its legal obligations, but to the extent not inconsistent with such obligations, it shall provide the other parties with an opportunity to review and comment on any proposed public announcement before it is made. The parties hereto agree that upon Closing the Company may issue a press release in substantially the forth attached hereto as Exhibit B. 8.2 Further Assurances. Each party agrees to cooperate fully with the other party and to execute such further instruments, documents and agreements and to give such further written assurances, as may be reasonably requested by the other party to better evidence and reflect the transactions described herein and contemplated hereby, and to carry into effect the intents and purposes of this Agreement. 8.3 Rights Cumulative. Each and all of the various rights, powers and remedies of the parties shall be considered to be cumulative with and in addition to any other rights, powers and remedies which such parties may have at law or in equity in the event of the breach of any of the terms of this Agreement. The exercise or partial exercise of any right, power or remedy shall neither constitute the exclusive election thereof nor the waiver of any other right, power or remedy available to such party. 8.4 Pronouns. All pronouns or any variation thereof shall be deemed to refer to the masculine, feminine or neuter, singular or plural, as the identity of the person, persons, entity or entities may require. 8.5 Notices. (a) Any notices, reports or other correspondence (hereinafter collectively referred to as "correspondence") required or permitted to be given hereunder shall be sent by postage prepaid first class mail, courier or telecopy or delivered by hand to the party to whom such correspondence is required or permitted to be given hereunder. The date of giving any notice shall be the date of its actual receipt. (b) All correspondence to the Company shall be addressed as follows: Neoware Systems, Inc. 400 Feheley Drive King of Prussia, PA 19406 Attention: Keith D. Schneck, Executive Vice President & CFO Telecopier: (610) 275-5739 with a copy to: McCausland, Keen & Buckman Radnor Court, Suite 160 259 North Radnor-Chester Road Radnor, PA 19087 Attention: Nancy D. Weisberg, Esq. Telecopier: (610) 341-1099 (c) All correspondence to the Purchasers shall be addressed to each Purchaser at its address set forth on its signature page hereto. (d) Any party may change the address to which correspondence to it is to be addressed by notification as provided for herein. 8.6 Captions. The captions and paragraph headings of this Agreement are solely for the convenience of reference and shall not affect its interpretation. 8.7 Severability. Should any part or provision of this Agreement be held unenforceable or in conflict with the applicable laws or regulations of any jurisdiction, the invalid or unenforceable part or provisions shall be replaced with a provision which accomplishes, to the extent possible, the original business purpose of such part or provision in a valid and enforceable manner, and the remainder of this Agreement shall remain binding upon the parties hereto. 8.8 Governing Law. This Agreement shall be governed by and construed in accordance with the internal and substantive laws of Delaware and without regard to any conflicts of laws concepts which concepts, which would apply the substantive law of some other jurisdiction. 8.9 Waiver. No waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or be construed as, a further or continuing waiver of any such term, provision or condition or as a waiver of any other term, provision or condition of this Agreement. 8.10 Expenses. Each party will bear its own costs and expenses in connection with this Agreement. 8.11 Assignment. The rights and obligations of the parties hereto shall inure to the benefit of and shall be binding upon the authorized successors and permitted assigns of each party. No Purchaser may assign its rights or obligations under this Agreement or designate another person (i) to perform all or part of its obligations under this Agreement or (ii) to have all or part of its rights and benefits under this Agreement, in each case without the prior written consent of the Company. The Company may not assign its rights or obligations under this Agreement without the prior written consent of the Purchasers holding a majority of the Shares then outstanding. In the event of any assignment in accordance with the terms of this Agreement, the assignee shall specifically assume and be bound by the provisions of the Agreement by executing and agreeing to an assumption agreement reasonably acceptable to the other party. 8.12 Survival. The respective representations and warranties given by the parties hereto, and the other covenants and agreements contained herein, shall survive the Closing Date and the consummation of the transactions contemplated herein for a period of one year. 8.13 Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto respecting the subject matter hereof and supersedes all prior agreements, negotiations, understandings, representations and statements respecting the subject matter hereof, whether written or oral. No modification, alteration, waiver or change in any of the terms of this Agreement shall be valid or binding upon the parties hereto unless made in writing and duly executed by the Company and the Purchasers. 8.14 Counterparts. This Agreement may be executed in a number of counterparts, each of which together, shall for all purposes constitute one Agreement, binding on all of the parties hereto, notwithstanding that all such parties have not signed the same counterpart. IN WITNESS WHEREOF, the parties hereto have executed this Securities Purchase Agreement as of the day and year first above written. NEOWARE SYSTEMS, INC. By:__________________________________ Name: Keith D. Schneck Title: Executive Vice President & CFO PURCHASER: Print Name of Purchaser: ______________________________________ By:___________________________________ Name: Title: Purchaser's Address and Fax Number for Notice: ______________________________________ ______________________________________ ______________________________________ Aggregate Subscription Amount: ___________________________________ Email Address or Fax Number for Notification of Purchase Price Calculation: ______________________ All funds should be delivered to the Escrow Agent for the benefit of the Company by bank wire transfer or other form of payment in same day funds as follows: Wachovia Bank Charlotte, North Carolina ABA# 053000219 WB# 5000000016439 Attn: CT1870 Jerry Arleth FFC: Neoware Systems, Inc. Escrow A/C# 1572008740 Notify: (215) 670-6305 [SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT] Schedule 3.2 Capitalization 1. Options to purchase an aggregate of 1,760,625 shares of the Company's Common Stock are outstanding under the Company's 1995 Stock Option Plan and the 2002 Non-Qualified Stock Option Plan as of the date of the Agreement. 2. Warrants to purchase 13,000 shares of the Company's Common Stock are outstanding as of the date of the Agreement. EX-10 4 ex10-16.txt EXHIBIT 10.16 EXHIBIT 10.16 REGISTRATION RIGHTS AGREEMENT This REGISTRATION RIGHTS AGREEMENT ("Agreement") is made as of July 10, 2003 by and among Neoware Systems, Inc., a Delaware corporation (the "Company") and the persons listed as the Investors on the signature pages hereto (the "Investors"), and each person or entity that subsequently becomes a party to this Agreement pursuant to, and in accordance with, the provisions of Section 11 hereof (collectively, the "Permitted Transferees" and each individually a "Permitted Transferee"). WHEREAS, pursuant to a securities purchase agreement (the "Securities Purchase Agreement"), dated as of the date hereof, the Company has agreed to issue and sell to the Investors, and each Investor has agreed to purchase from the Company, shares (the "Shares") of the Company's authorized but unissued common stock, $0.001 par value per share (the "Common Stock"); and WHEREAS, the terms of the Securities Purchase Agreement provide that it shall be a condition precedent to the closing of the transactions thereunder for the Company and the Investors to execute and deliver this Agreement. NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein, the parties hereto hereby agree as follows: 1. DEFINITIONS. As used in this Agreement, the following terms shall have the following respective meanings: "Board" shall mean the board of directors of the Company. "Closing" shall mean the Initial Closing under the Securities Purchase Agreement. "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended, and all of the rules and regulations promulgated thereunder. "Holder" shall mean, collectively, the Investors and the Permitted Transferees; provided, however, that the term "Holder" shall not include any of the foregoing that ceases to own or hold any Registrable Securities. "Qualifying Holder" shall have the meaning ascribed thereto in Section 11 hereof. "Registrable Securities" shall mean the Shares issued to the Investors pursuant to the Securities Purchase Agreement, and shall include any shares of the Company's Common Stock issued with respect to the Registrable Securities as a result of any stock split, stock dividend, recapitalization, exchange or similar event; provided, however, that all Registrable Securities shall cease to be Registrable Securities once they have been sold pursuant to a registration statement. "Rule 144" shall mean Rule 144 promulgated under the Securities Act and any successor or substitute rule, law or provision. "SEC" shall mean the Securities and Exchange Commission. "Securities Act" shall mean the Securities Act of 1933, as amended, and all of the rules and regulations promulgated there under. 2. EFFECTIVENESS. This Agreement shall become effective and legally binding upon the Closing. 3. MANDATORY REGISTRATION. (a) Within thirty (30) days after the Closing (or, if the date that is thirty (30) days after the Closing is not a business day, the next business day immediately following such date), the Company will prepare and file with the SEC a registration statement on Form S-3 or any successor form (except that if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, then such registration shall be on Form S-1 or any successor form) for the purpose of registering under the Securities Act all of the Registrable Securities for resale by, and for the account of, the Holders as selling stockholders thereunder (the "Registration Statement"). The Registration Statement shall permit the Holders to offer and sell, on a delayed or continuous basis pursuant to Rule 415 under the Securities Act, any or all of the Registrable Securities. The Company agrees to use commercially reasonable efforts to cause the Registration Statement to become effective as soon as practicable (which shall include using commercially reasonable efforts to respond to any comments of the SEC in respect of the Registration Statement within fifteen (15) business days following receipt thereof). The Company shall use its best efforts to keep the Registration Statement effective until such date that is the earlier of (i) the date when all of the Registrable Securities registered thereunder shall have been sold or (ii) two (2) years after the Closing, subject to extension as set forth below (such date is referred to herein as the "Mandatory Registration Termination Date"). Thereafter, the Company shall be entitled to withdraw the Registration Statement and the Holders shall have no further right to offer or sell any of the Registrable Securities pursuant to the Registration Statement (or any prospectus relating thereto). In the event the right of the selling Holders to use the Registration Statement (and the prospectus relating thereto) is delayed or suspended pursuant to Sections 4(c) or 10 hereof, if the events described in subsection (a)(i) or (ii) have not yet occurred, the Company shall be required to extend the Mandatory Registration Termination Date by the same number of days as such delay or Suspension Period (as defined in Section 10 hereof), provided that such delay is not the result of the Holders' failure or delay to furnish information required under Section 5 hereof. (b) In the event that the Registration Statement is not filed with the SEC within thirty (30) days after the Closing (or, if the date that is thirty (30) days after the Closing is not a business day, the next business day immediately following such date), or the Company fails to use its commercially reasonable efforts to respond to any comments of the SEC in respect of the Registration Statement within fifteen (15) business days following receipt thereof, the Company will issue to all Investors, for no additional consideration, an additional 1.0% of the Shares sold to each such Investor. For every additional thirty (30) days that the Company continues to be delayed from filing the Registration Statement with the SEC or continues to fail to use its commercially reasonable efforts to respond to any comments of the SEC in respect of the Registration Statement, the Company will issue to all Investors, for no additional consideration, an additional 1.0% of the Shares sold to each such Investor; provided, however, that in no event shall the amount of additional shares issued by the Company to the Investors pursuant to this Section 3(b) exceed a maximum of an additional 3.0% of the Shares sold to each such Investor. (c) Within three (3) business days after a Registration Statement that covers applicable Registrable Securities is declared effective by the SEC, the Company shall deliver, or shall cause legal counsel to deliver, to the transfer agent for such Registrable Securities (with copies to the Holders whose Registrable Securities are included in such Registration Statement) confirmation that such Registration Statement has been declared effective by the SEC in substantially the form attached hereto as Exhibit B. 4. OBLIGATIONS OF THE COMPANY. In connection with the Company's obligation under Section 3 hereof to file the Registration Statement with the SEC and to use commercially reasonable efforts to cause the Registration Statement to become effective, the Company shall: (a) Prepare and file with the SEC, as expeditiously as reasonably practicable, such amendments and supplements to the Registration Statement and the prospectus used in connection therewith as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by the Registration Statement; (b) Promptly furnish to the selling Holders such number of copies of a prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents (including, without limitation, prospectus amendments and supplements as are prepared by the Company in accordance with Section 4(a) above) as the selling Holders may reasonably request in order to facilitate the disposition of such selling Holder's Registrable Securities; (c) Promptly notify the selling Holders, at any time when a prospectus relating to the Registration Statement is required to be delivered under the Securities Act, of the occurrence of any event as a result of which the prospectus included in or relating to the Registration Statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading in light of the circumstances in which they are made; and, thereafter, the Company will promptly prepare (and, when completed, give notice to each selling Holder) a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus will not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading in light of the circumstances in which they are made; provided that upon such notification by the Company, the selling Holders will not offer or sell Registrable Securities until the Company has notified the selling Holders that it has prepared a supplement or amendment to such prospectus and delivered copies of such supplement or amendment to the selling Holders (it being understood and agreed by the Company that the foregoing proviso shall in no way diminish or otherwise impair the Company's obligation to promptly prepare a prospectus amendment or supplement as above provided in this Section 4(c) and deliver copies of same as above provided in Section 4(b) hereof); (d) Use commercially reasonable efforts to register and qualify the Registrable Securities covered by the Registration Statement under such other securities or Blue Sky laws of such jurisdictions as shall be reasonably appropriate in the opinion of the Company and the managing underwriters, if any, provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business, to file a general consent to service of process or to become subject to any material tax in any such states or jurisdictions, and provided further that (notwithstanding anything in this Agreement to the contrary with respect to the bearing of expenses) if any jurisdiction in which any of such Registrable Securities shall be qualified shall require that expenses incurred in connection with the qualification therein of any such Registrable Securities be borne by the selling Holder, then the selling Holders shall, to the extent required by such jurisdiction, pay their pro rata share of such qualification expenses; and (e) Promptly after a sale of Registrable Securities pursuant to the Registration Statement (assuming that no stop order is in effect with respect to the Registration Statement at the time of such sale), the Company shall cooperate with the selling Holder and provide the transfer agent for the Common Stock with such instructions and legal opinions as may be required in order to facilitate the issuance to the purchaser (or the selling Holder's broker) of new unlegended certificates for such Registrable Securities. 5. FURNISH INFORMATION. It shall be a condition precedent to the obligations of the Company to take any action pursuant to this Agreement that the selling Holders shall furnish to the Company such information regarding them and the securities held by them as the Company shall reasonably request and as shall be required in order to effect any registration by the Company pursuant to this Agreement. 6. EXPENSES OF REGISTRATION. All expenses incurred in connection with the registration of the Registrable Securities pursuant to this Agreement (excluding underwriting, brokerage and other selling commissions and discounts), including without limitation all registration and qualification and filing fees, printing, and fees and disbursements of counsel for the Company, shall be borne by the Company. 7. DELAY OF REGISTRATION. The Holders shall not take any action to restrain, enjoin or otherwise delay any registration as the result of any controversy which might arise with respect to the interpretation or implementation of this Agreement. 8. INDEMNIFICATION AND CONTRIBUTION. (a) To the extent permitted by law, the Company will indemnify and hold harmless each selling Holder, any investment banking firm acting as an underwriter for the selling Holder, any broker/dealer acting on behalf of any selling Holder and each officer and director of such selling Holder, such underwriter, such broker/dealer and each person, if any, who controls such selling Holder, underwriter or broker/dealer within the meaning of the Securities Act, against any losses, claims, damages or liabilities, joint or several, to which they may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue or alleged untrue statement of any material fact contained in the Registration Statement, in any preliminary prospectus or final prospectus relating thereto or in any amendments or supplements to the Registration Statement or any such preliminary prospectus or final prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading in light of the circumstances in which they are made; and will reimburse such selling Holder, such underwriter, broker/dealer or such officer, director or controlling person for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the indemnity agreement contained in this Section 8(a) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld), nor shall the Company be liable in any such case for any such loss, damage, liability or action to the extent that it arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in connection with the Registration Statement, any preliminary prospectus or final prospectus relating thereto or any amendments or supplements to the Registration Statement or any such preliminary prospectus or final prospectus, in reliance upon and in conformity with written information furnished expressly for use in connection with the Registration Statement or any such preliminary prospectus or final prospectus by the selling Holder, any underwriter for them or controlling person with respect to them. This Section 8(a) shall not inure to the benefit of any selling Holder with respect to any person asserting loss, damage, liability or action as a result of a selling Holder selling Registrable Securities during a Suspension Period (as defined in Section 10 hereof) or selling in violation of Section 5(c) of the Securities Act. (b) To the extent permitted by law, each selling Holder will severally and not jointly indemnify and hold harmless the Company, each of its officers and directors, each person, if any, who controls the Company within the meaning of the Securities Act, any investment banking firm acting as underwriter for the Company or the selling Holder, or any broker/dealer acting on behalf of the Company or any other selling Holder, and all other selling Holders against any losses, claims, damages or liabilities to which the Company or any such director, officer, controlling person, underwriter, or broker/dealer or other selling Holder may become subject to, under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereto) arise out of or are based upon any untrue or alleged untrue statement of any material fact contained in the Registration Statement or any preliminary prospectus or final prospectus, relating thereto or in any amendments or supplements to the Registration Statement or any such preliminary prospectus or final prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances in which they are made, in each case to the extent and only to the extent that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, in any preliminary prospectus or final prospectus relating thereto or in any amendments or supplements to the Registration Statement or any such preliminary prospectus or final prospectus, in reliance upon and in conformity with written information furnished by such selling Holder expressly for use in connection with the Registration Statement or any preliminary prospectus or final prospectus related thereto; and such selling Holders will reimburse any legal or other expenses reasonably incurred by the Company or any such director, officer, controlling person, underwriter, broker/dealer or other selling Holder in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the liability of each selling Holder hereunder shall be limited to the gross proceeds (net of underwriting discounts and commissions, if any) received by such selling Holder from the sale of Registrable Securities covered by the Registration Statement; and provided, further, however, that the indemnity agreement contained in this Section 8(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without the consent of those selling Holder(s) against which the request for indemnity is being made (which consent shall not be unreasonably withheld). (c) Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against any indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof and the indemnifying party shall have the right to participate in and, to the extent the indemnifying party desires, jointly with any other indemnifying party similarly noticed, to assume at its expense the defense thereof with counsel mutually satisfactory to the indemnifying parties with the consent of the indemnified party (which consent will not be unreasonably withheld, conditioned or delayed). In the event that the indemnifying party assumes any such defense, the indemnified party may participate in such defense with its own counsel and at its own expense, provided, however, that the counsel for the indemnifying party shall act as lead counsel in all matters pertaining to such defense or settlement of such claim and the indemnifying party shall only pay for such indemnified party's expenses for the period prior to the date of its participation on such defense. The failure to notify an indemnifying party promptly of the commencement of any such action, if materially prejudicial to his ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 8 to the extent of such prejudice, but the omission so to notify the indemnifying party will not relieve him of any liability which he may have to any indemnified party otherwise other than under this Section 8. (d) Notwithstanding anything to the contrary herein, without the prior written consent of the indemnified party, the indemnifying party shall not be entitled to settle any claim, suit or proceeding unless in connection with such settlement the indemnified party receives an unconditional release with respect to the subject matter of such claim, suit or proceeding and such settlement does not contain any admission of fault by the indemnified party. (e) In order to provide for just and equitable contribution under the Securities Act in any case in which (i) the indemnified party makes a claim for indemnification pursuant to Section 8 hereof but is judicially determined (by the entry of a final judgment or decree by a court of competent jurisdiction and the expiration of time to appeal or the denial of the last right of appeal) that such indemnification may not be enforced in such case notwithstanding the fact that the express provisions of Section 8 hereof provide for indemnification in such case, or (ii) contribution under the Securities Act may be required on the part of any indemnified party, then the Company and the applicable selling Holder shall contribute to the aggregate losses, claims, damages or liabilities to which they may be subject (which shall, for all purposes of this Agreement, include, but not be limited to, all reasonable costs of defense and investigation and all reasonable attorneys' fees), in either such case (after contribution from others) on the basis of relative fault as well as any other relevant equitable considerations. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or the applicable selling Holder on the other hand, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Holders agree that it would not be just and equitable if contribution pursuant to this Section 8(e) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in this Section 8(e). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 8 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. Notwithstanding any other provision of this Section 8(e), in no event shall (i) any selling Holder be required to undertake liability to any person under this Section 8(e) for any amounts in excess of the dollar amount of the gross proceeds to be received by the selling Holder from the sale of such selling Holder's Registrable Securities (after deducting any fees, discounts and commissions applicable thereto) pursuant to any Registration Statement under which such Registrable Securities are or were to be registered under the Securities Act and (ii) any underwriter be required to undertake liability to any person hereunder for any amounts in excess of the aggregate discount, commission or other compensation payable to such underwriter with respect to the Registrable Securities underwritten by it and distributed pursuant to the Registration Statement. 9. REPORTS UNDER THE EXCHANGE ACT. With respect to each Holder, from the date of Closing until the date on which all of the Registrable Securities that such Holder owns or has the right to acquire become freely transferable under Rule 144(k) promulgated under the Securities Act, the Company agrees to use its best efforts: (i) to make and keep public information available, as those terms are understood and defined in the General Instructions to Form S-3, or any successor or substitute form, and in Rule 144, (ii) to file with the SEC all reports and other documents required to be filed by an issuer of securities registered under Sections 13 or 15(d) of the Exchange Act, and (iii) if such filings are not available via EDGAR, to furnish to such Holder as long as the Holder owns or has the right to acquire any Registrable Securities prior to the applicable termination date described above, a copy of the most recent annual or quarterly report of the Company, and such other reports and documents so filed by the Company under Sections 13 or 15(d) of the Exchange Act as may be reasonably requested in availing such Holder of any rule or regulation of the SEC permitting the selling of any such Registrable Securities without registration. 10. DEFERRAL AND LOCK-UP. Notwithstanding anything in this Agreement to the contrary, if the Company shall furnish to the selling Holders a certificate signed by the President and Chief Executive Officer of the Company stating that the Board has made the good faith determination (i) that continued use by the selling Holders of the Registration Statement for purposes of effecting offers or sales of Registrable Securities pursuant thereto would require, under the Securities Act, disclosure in the Registration Statement (or the prospectus relating thereto) of material, nonpublic information concerning the Company, its business or prospects or any proposed transaction involving the Company, (ii) that such disclosure would be premature and would be adverse to the Company, its business or prospects or any such proposed transaction or would make the successful consummation by the Company of any such transaction significantly less likely and (iii) that it is therefore essential to suspend the use by the Holders of such Registration Statement (and the prospectus relating thereto) for purposes of effecting offers or sales of Registrable Securities pursuant thereto, then the right of the selling Holders to use the Registration Statement (and the prospectus relating thereto) for purposes of effecting offers or sales of Registrable Securities pursuant thereto shall be suspended for a period (the "Suspension Period") of not more than 60 days after delivery by the Company of the certificate referred to above in this Section 10. During the Suspension Period, none of the Holders shall offer or sell any Registrable Securities pursuant to or in reliance upon the Registration Statement (or the prospectus relating thereto). The Company may not exercise this right more than two times in each year after the Closing. 11. TRANSFER OF REGISTRATION RIGHTS. None of the rights of any Holder under this Agreement shall be transferred or assigned to any person unless (i) such person is a Qualifying Holder (as defined below), (ii) such person agrees to become a party to, and bound by all of the terms and conditions of, this Agreement by duly executing and delivering to the Company an Instrument of Adherence in the form attached as Exhibit A hereto, (iii) the transfer or assignment is made in accordance with the applicable requirements of the Securities Purchase Agreement and (iv) following the transfer or assignment, the further disposition of the Registrable Securities by such person is restricted under the Securities Act and applicable state securities laws. For purposes of this Section 11, the term "Qualifying Holder" shall mean, with respect to any Holder, (a) any corporation, partnership or other affiliated entity controlling, controlled by, or under common control with, such Holder, or any partner or former partner, if such Holder is a partnership, or (b) any other direct transferee from such Holder of at least 50% of those Registrable Securities held or that may be acquired by such Holder. None of the rights of any Holder under this Agreement shall be transferred or assigned to any person (including, without limitation, a Qualifying Holder) that acquires Registrable Securities in the event that and to the extent that such Person is eligible to resell such Registrable Securities pursuant to Rule 144(k) of the Securities Act. 12. ENTIRE AGREEMENT. This Agreement constitutes and contains the entire agreement and understanding of the parties with respect to the subject matter hereof, and it also supersedes any and all prior negotiations, correspondence, agreements or understandings with respect to the subject matter hereof. 13. MISCELLANEOUS. (a) This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware, and shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, personal representatives, successors or assigns, provided that the terms and conditions of Section 11 hereof are satisfied. This Agreement shall also be binding upon and inure to the benefit of any transferee of any of the Registrable Securities provided that the terms and conditions of Section 11 hereof are satisfied. Notwithstanding anything in this Agreement to the contrary, if at any time any Holder shall cease to own all of its Registrable Securities, all of such Holder's rights under this Agreement shall immediately terminate. (b) (i) Any notices, reports or other correspondence (hereinafter collectively referred to as "correspondence") required or permitted to be given hereunder shall be sent by courier (overnight or same day) or telecopy or delivered by hand to the party to whom such correspondence is required or permitted to be given hereunder. The date of giving any notice shall be the date of its actual receipt. (ii) All correspondence to the Company shall be addressed as follows: Neoware Systems, Inc. 400 Feheley Drive King of Prussia, PA 19406 Attention: Keith D. Schneck, Executive Vice President & CFO Telecopier: (610) 275-5739 with a copy to: McCausland, Keen & Buckman Radnor Court, Suite 160 259 North Radnor-Chester Road Radnor, PA 19087 Attention: Nancy D. Weisberg, Esq. Telecopier: (610) 341-1099 (iii) All correspondence to any Holder shall be sent to the address set forth on such Holder's signature page hereto (or, in the case of a Permitted Transferee, such Permitted Transferee's Instrument of Adherence hereto). (iv) Any party may change the address to which correspondence to it is to be addressed by notification as provided for herein. (c) The parties acknowledge and agree that in the event of any breach of this Agreement, remedies at law may be inadequate, and each of the parties hereto shall be entitled to seek specific performance of the obligations of the other parties hereto and such appropriate injunctive relief as may be granted by a court of competent jurisdiction. (d) This Agreement may be executed in a number of counterparts, each of which together shall for all purposes constitute one Agreement, binding on all the parties hereto notwithstanding that all such parties have not signed the same counterpart. IN WITNESS WHEREOF, the parties hereto have executed this Registration Rights Agreement as of the date and year first above written. NEOWARE SYSTEMS, INC. By:__________________________________ Name: Keith D. Schneck Title: Executive Vice President & CFO [SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT] IN WITNESS WHEREOF, the parties hereto have executed this Registration Rights Agreement as of the date and year first above written. NEOWARE SYSTEMS, INC. By:___________________________________ Name: Keith D. Schneck Title: Executive Vice President & CFO INVESTOR: Print Name of Investor: _______________________________________ By:____________________________________ Name: Title: Investor's Address and Fax Number for Notice: _______________________________________ _______________________________________ _______________________________________ [SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT] EXHIBIT A INSTRUMENT OF ADHERENCE Reference is hereby made to that certain Registration Rights Agreement, dated as of July 9, 2003, among Neoware Systems, Inc., a Delaware corporation (the "Company") and the Investors and the Permitted Transferees, as amended and in effect from time to time (the "Registration Rights Agreement'). Capitalized terms used herein without definition shall have the respective meanings ascribed thereto in the Registration Rights Agreement. The undersigned, in order to become the owner or holder of, or have the right to acquire, _______ shares of Registrable Securities, hereby agrees that, from and after the date hereof, the undersigned has become a party to the Registration Rights Agreement in the capacity of a Permitted Transferee, and is entitled to all of the benefits under, and is subject to all of the obligations, restrictions and limitations set forth in, the Registration Rights Agreement that are applicable to Permitted Transferees. This Instrument of Adherence shall take effect and shall become a part of the Registration Rights Agreement immediately upon execution. Print Name of Permitted Transferee: _______________________________________ By:____________________________________ Name: Title: Permitted Transferee's Address and Fax Number for Notice: _______________________________________ _______________________________________ _______________________________________ Accepted: Neoware Systems, Inc. By:_____________________________________ Name: Title: Date:___________________________________ EXHIBIT B FORM OF NOTICE OF EFFECTIVENESS OF REGISTRATION STATEMENT [Transfer Agent] Re: Neoware Systems, Inc. Ladies and Gentlemen: We are counsel to Neoware Systems, Inc., a Delaware corporation (the "Company"), and have represented the Company in connection with: (i) that certain Securities Purchase Agreement (the "Securities Purchase Agreement") entered into by and among the Company and the Purchasers named therein (the "Purchasers") pursuant to which the Company issued the Purchasers shares of the Company's Common Stock, par value $0.001 per share. Pursuant to the Securities Purchase Agreement, the Company has also entered into a Registration Rights Agreement with the Holders named therein (the "Registration Rights Agreement") pursuant to which the Company has agreed, among other things, to register the Registrable Securities (as defined in the Registration Rights Agreement), under the Securities Act of 1933, as amended (the "1933 Act"). In connection with the Company's obligations under the Registration Rights Agreement, on July 9, 2003, the Company filed a Registration Statement on Form [S-3/S-1] (File No. 333-____) (the "Registration Statement") with the Securities and Exchange Commission (the "SEC") relating to the Registrable Securities which names each of the Holders as a selling stockholder thereunder. In connection with the foregoing, we advise you that a member of the SEC's staff has advised us by telephone that the SEC has entered an order declaring the Registration Statement effective under the 1933 Act at [time of effectiveness] on [date of effectiveness] and we have no knowledge, after telephonic inquiry of a member of the SEC's staff, that any stop order suspending its effectiveness has been issued or that any proceedings for that purpose are pending before, or threatened by, the SEC and the Registrable Securities are available for resale under the 1933 Act pursuant to the Registration Statement. Very truly yours, MCCAUSLAND, KEEN & BUCKMAN cc: [Holders] EX-10 5 ex10-18.txt EXHIBIT 10.18 EXHIBIT 10.18 [LOGO] April 11, 2003 Mr. Keith D. Schneck 1211 Browning Court Lansdale, PA 19446 Dear Keith: Neoware is pleased to offer you the position of Executive Vice President/Chief Financial Officer, reporting to me. In your capacity as EVP/CFO, you will be responsible for Neoware's Finance, Corporate Development, and Investor Relations functions. The base salary for this position is $7115.39 payable every two weeks, and you will be eligible for four weeks of vacation annually. Because we believe that all employees should work toward the same goals and benefit from the Company's success, Neoware will grant to you options to purchase 75,000 shares of stock in the Company with an exercise price equal to the closing price on your date of hire, as detailed in your Stock Option Agreement. These will consist of a combination of ISO and non-qualified options, which are ten-year options, and will vest over four years, with twenty-five percent of the options vesting on each of the first four anniversaries subsequent to your start date. As we discussed, we expect your first date of employment to be April 28, 2003. In addition to your base salary, you will be eligible for an executive bonus of up to 50% of your base salary annually based upon the Company meeting its quarterly and annual revenue and profitability goals, as determined by Neoware's CEO and its Compensation Committee, provided that you are an employee of the Company on the day that bonuses are paid. For the fiscal year ending June 30, 2003, you will be eligible for a pro-rated bonus based upon the time that you are employed, which is expected to be 2 months. This annual executive bonus amount can be increased at the option of the Compensation Committee should the Company significantly exceed its goals. These goals may be adjusted from time to time at the discretion of the Company's CEO and Compensation Committee. You understand that this letter is not an employment agreement, and that you are an employee at will. This means that employment and compensation can be terminated with or without "cause," and with or without notice, at any time, at the option of either Neoware or you, except as otherwise provided by law. Should your employment be terminated by the Company as a result of a "change in control" of the Company, Neoware will agree to a) continue to pay your base salary for a period of nine months from the date of termination, and b) your options to purchase Neoware common stock shall become fully exercisable. For the purposes of this offer letter, "change in control" shall have the meaning set forth in Section 14 of the Company's 1995 Stock Option Plan. A copy of the plan is attached hereto. Mr. Schneck April 14, 2003 Page 2 In connection with this offer of employment, you agree to sign Neoware's standard non-disclosure and non-solicitation agreement at the time of your acceptance of this offer, which is attached. We are very excited about the possibility of you joining Neoware as EVP and Chief Financial Officer, and believe that you'll be a great asset to the Company in this position as we continue to build our business Please feel free to contact me with any questions. Very truly yours, /S/Michael Kantrowitz Michael Kantrowitz Chairman and CEO Neoware Systems, Inc. Accepted: /S/Keith D. Schneck Keith D. Schneck Date: April , 2003 EX-10 6 ex10-19.txt EXHIBIT 10.19 EXHIBIT 10.19 June 30, 2003 By Hand Delivery - ---------------- Vincent T. Dolan 265 Aldrin Drive Ambler, Pennsylvania 19002 Re: Separation Agreement and General Release of Claims -------------------------------------------------- Dear Vince: This letter is to confirm your voluntary resignation from your position as Chief Financial Officer of Neoware Systems, Inc. (the "Company") effective April 28, 2003, your agreement to remain as a non-executive officer employee of the Company until October 31, 2003, which may be extended to December 31, 2003 upon the mutual agreement of you and the Company in writing (the "Full-time Termination Date") and your agreement to remain as a part-time employee of the Company until April 30, 2004 (the "Termination Date"). In an effort to provide you with certain benefits relating to your termination of employment, the Company proposes the following agreement ("Separation Agreement") and General Release of Claims: 1. In consideration for your general release and your fulfillment of the various undertakings set forth in this Separation Agreement, the Company agrees as follows: (a) During the period from April 28, 2003 until October 31, 2003, or if mutually agreed upon in writing by you and the Company, until December 31, 2003, the Company will employ you as a full-time non-executive officer employee of the Company and will pay you your current base salary and continue to provide your current benefits, at regular pay intervals and less taxes and other deductions required by law to be withheld. For the fiscal year ended June 30, 2003, you will be eligible for the payment of a bonus award under the 2003 Executive Compensation Plan without pro-ration for the portion of the fiscal year during which you did not serve as an executive officer, subject to approval of the Stock Option and Compensation Committee. (b) During the period from the Full-time Termination Date until April 30, 2004 (Termination Date), the Company will employ you as a part-time employee of the Company and will pay you $125.00 per hour at regular pay intervals and less taxes and other deductions required by law to be withheld. Vincent T. Dolan June 30, 2003 Page 2 (c) Notwithstanding your release under paragraph 2(c) below, the Company acknowledges that the provisions of the Company's 1995 Stock Option Plan ("Plan") and your option agreements thereunder (including the vesting schedule) will continue to apply to your options in accordance with the terms of the Plan and your option agreements until April 30, 2004, provided that you comply with your obligations under this Agreement and remain an employee of the Company as of such date, on which date all of your options, other than those vested and exercisable on April 30, 2004, shall be canceled. (d) The Company agrees to pay you an additional bonus (the "Additional Bonus") equal to three (3) months' pay based upon your current base salary, less taxes and other deductions required to by law to be withheld, which amount will be paid in the first payroll period in January 2004. (e) The Company agrees to pay you severance in an amount equal to six (6) months' pay based on your current base salary, less taxes and other deductions required by law to be withheld, which amount will be paid during the first payroll period in January 2004. 2. In consideration for the Company's promises in paragraph 1, and intending to be legally bound, you represent, warrant and agree as follows: (a) You confirm that you voluntarily resigned as Chief Financial Officer of the Company effective as of April 28, 2003. (b) Subject to paragraph 3, you agree that from and after April 28, 2003 until October 31, 2003, or such later Full-time Termination Date mutually agreed upon by you and the Company, you will serve as a full-time employee of the Company and will provide such services as may be reasonably requested by the Company. You agree that in such position, you will no longer be an executive officer of the Company. (c) Subject to paragraph 3, from and after the Full-time Termination Date until your Termination Date, you will serve as a part-time employee of the Company and be available to work at least 1 day per week, with the exact number of hours subject to the Company's discretion but shall be a minimum of 1 day per week, and provide such services as may reasonably be requested by the Company, including but not limited to services relating to significant finance-related assignments reporting to the Chief Financial Officer. (d) You agree that you will give the Company forty-five days (45) prior written notice of your intention to terminate your full-time employment and your part-time employment. Vincent T. Dolan June 30, 2003 Page 3 (e) By your signature on this Separation Agreement, you hereby fully and forever release and discharge the Company and its parents, affiliates and subsidiaries, including all predecessors and successors, assigns, officers, directors, trustees, employees, agents and attorneys, past and present ("the Released Parties"), from any and all claims, demands, liens, agreements, contracts, covenants, actions, suits, causes of action, obligations, controversies, debts, costs, expenses, damages, judgments, orders and liabilities, of whatever kind or nature, direct or indirect, in law, equity or otherwise, whether known or unknown, arising out of your employment by the Company or the termination thereof, including, but not limited to, any claims for relief or causes of action under any Federal, state or local statute, ordinance or regulation regarding discrimination in employment and any claims, demands or actions based upon alleged wrongful or retaliatory discharge or breach of contract under any state or Federal law. This release shall include a release of all claims for attorneys' fees. You agree that this release specifically includes a release of any and all claims arising under the Age Discrimination in Employment Act of 1967, as amended ("ADEA"), and any state or local discrimination laws. You acknowledge that you are being given twenty-one (21) days in which to consider whether you wish to sign this Separation Agreement, including this release. Moreover, you agree that, once you sign the Separation Agreement, including this release, you shall then have seven (7) days in which to change your mind and revoke it (the "Revocation Period"). If you wish to revoke this release, you must send the revocation in writing by certified mail to Keith D. Schneck, Executive Vice President and Chief Financial Officer, 400 Feheley Drive, King of Prussia, Pennsylvania 19406. Notwithstanding anything contained in this Agreement to the contrary, you do not release, remise or discharge the Company of or from any claims which you may have under: (i) the Company's 401(k) plan, said plan being governed by its plan documents and any amendments thereto; (ii) the indemnification provisions contained in the Company's Articles of Incorporation and/or Bylaws, and/or any indemnification agreement in your favor, relating to indemnification of employees, officers and/or directors; (iii) the General Corporation Law of the State of Delaware, the Pennsylvania Business Corporation Law or any other applicable law or any insurance policy pursuant to which you are indemnified or held harmless by reason of any action or failure to act as an employee and/or officer; and, (iv) this Agreement. Furthermore, it is our intention that you retain all rights you have to be insured, defended, indemnified and held harmless in connection with any action or failure to act as an employee and/or officer of the Company. You agree that, while this release does not prevent you from filing a charge with the Equal Employment Opportunity Commission ("EEOC") and/or participating in any such proceedings to challenge the knowing and voluntary nature of this Agreement, you acknowledge that you have not filed any such claims or commenced any action with any administrative agency or court regarding any claims released in this Agreement. Vincent T. Dolan June 30, 2003 Page 4 In consideration of the promises in this Agreement, the Company, and its agents, representatives, administrators, insurers, attorneys, employees, successors and assigns ("Company Releasors") do hereby release, remise and forever discharge you and your agents, representatives, heirs, executors, administrators, insurers, attorneys, successors and assigns of and from any and all claims, demands, causes of action, actions, rights, damages, judgments, costs, compensation, suits, debts, dues, accounts, bonds, covenants, agreements, expenses, attorneys' fees, damages, penalties, punitive damages and liability of any nature whatsoever, in law or in equity or otherwise, which the Company Releasors have had, now have, shall or may have, whether known or unknown, foreseen or unforeseen, suspected or unsuspected, by reason of any cause, matter or thing whatsoever, including those relating to your employment with the Company and the termination of that employment to the date of this Agreement. (f) Intentionally left blank. (g) You shall not at any time after the date of this letter disparage or deprecate the Company or its affiliates or any of their officers, directors, employees, stockholders or principals, or any of their operations, assets, services, work product, character, motives or financial standing. Further, you agree to keep the terms and conditions of this Separation Agreement secret and confidential and not to disclose them voluntarily to any third party, except to the extent required by law, to enforce the Separation Agreement or to obtain confidential legal, tax or financial advice. The Company's management agrees to abide by the same such requirement contained in this section as it relates to you. (h) You agree that you will return to the Company on your Termination Date, all memoranda, notes, records, reports, manuals, drawings and other documents (and all copies thereof whether in written form or on computer disk or tape) relating to the business of the Company and/or its affiliates and all property associated therewith, which you possess or have under your control on such termination date. Without limiting the generality of the foregoing, you agree to return to the Company all copies of all data bases containing information about the Company and/or its affiliates, regardless of whether such information is in hard copy or stored electronically or on tape. You agree that on and after your Termination Date, you will not seek to access the information systems of the Company or its affiliates for any purpose whatsoever. (i) At all times after your Termination Date, you agree to keep secret and retain in the strictest confidence all Confidential Information and Trade Secrets of the Company learned by you heretofore or hereafter, and not to use them for your own benefit or disclose them to anyone outside of the Company, except as required for the performance of your duties as an employee of the Company or with the Company's express written consent. Vincent T. Dolan June 30, 2003 Page 5 For purposes of this Agreement, "Confidential Information" shall mean information disclosed to you or learned or made known to you as a consequence of or through your employment by the Company, not generally known in the industry in which the Company is or may become engaged, about the Company's clients, customers, products, processes, and services, including, but not limited to: information relating to research, development, source codes, object codes or other technology-based information or products, inventions, manufacturing, purchasing, accounting, engineering, marketing, merchandising, and selling as well as lists of actual or prospective customers, customer contacts, pricing strategy, sources of suppliers and materials, accounting records, operating and cost data or other company financial information, compilations of information, drawings, proposals, job notes, reports, records and specifications, inventions, technology, patent applications and/or any other proprietary information as may exist or be developed from time to time by the Company or its affiliates. For purposes of this Agreement, "Trade Secret" means the whole or any portion or phase of any scientific or technical information, design, process, formula, or improvement which is secret and is not generally available to the public, and which gives one who uses it an advantage over competitors who do not know of or use it. You shall not disclose or use in any manner, directly or indirectly, and shall use your best efforts and shall take all reasonable precautions to prevent the disclosure of, any such Trade Secrets or other Confidential Information, except to the extent required in the performance of your duties or obligations to the Company hereunder or by express prior written consent of a duly authorized officer or director of the Company (other than you). (j) You agree that for a period of one (1) year after your Termination Date, you shall not either directly or indirectly, on your own behalf or in the service or on behalf of others, solicit, divert, or appropriate, or attempt to solicit, divert, or appropriate, to any Competing Business, any person or entity that was a customer or client of the Company at any time during the 12-month period preceding such solicitation. For purposes of this paragraph 2(i), a "Competing Business" is any business engaged in the sale or provision of products and/or services comparable to the products and/or services offered by the Company at any time during the term of your employment by the Company. (k) You agree that for a period of one (1) year after your Termination Date, you shall not, either directly or indirectly, on your own behalf or in the service or on behalf of others, solicit, divert or hire away, or attempt to solicit, divert, or hire away, to any other business, any person employed by the Company, whether or not such employee is a full-time employee or a temporary employee of the Company and whether or not such employment is pursuant to a written agreement and whether or not such employment is for a determined period or is at will. Vincent T. Dolan June 30, 2003 Page 6 3. If you terminate your employment with the Company prior to October 31, 2003, your salary and benefits will terminate as of the date of your termination, however, your right to the payments under paragraph 1(d) and (e) above will remain unchanged. In addition, you understand that if you terminate your employment before April 17, 2004, you will not be entitled to exercise any of your options to acquire any shares of the Company's common stock, except for any options that were vested and exercisable as of the date of such termination in accordance with the terms of the stock option plan. 4. In order to receive the benefits contained in this Separation Agreement, you will be required to sign and not revoke this Separation Agreement. If you do not sign this Separation Agreement and/or if you revoke this Separation Agreement, your employment will be deemed terminated effective June 30, 2003 and you will not be entitled to any of the benefits described in this Separation Agreement, including but not limited to any options to acquire shares of the Company's common stock. In such event, you will be paid only those wages and benefits earned through June 30, 2003. 5. Consistent with Company policy, and notwithstanding anything to the contrary in this Separation Agreement, you understand that your final paycheck for full-time employment will include payment for all accrued and unused vacation. 6. This Separation Agreement sets forth our complete understanding and agreement and supersedes all prior agreements between us, oral or written, express or implied. 7. This Separation Agreement is being offered for the purpose of assisting the Company and you in the transition. This Separation Agreement should not be construed as an admission or concession of liability or wrongdoing by the Company or by you. Vincent T. Dolan June 30, 2003 Page 7 8. If any provision of this Separation Agreement is deemed unlawful or unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. 9. By your execution of this Separation Agreement, your represent, warrant and agree to the following, each of which is material to the Company's willingness to enter into this Separation Agreement: (a) You have read carefully the terms of this Separation Agreement, including the general release. (b) You have had an opportunity to and have been encouraged to review this Separation Agreement, including the general release, with an attorney. (c) You understand the meaning and effect of the terms of this Separation Agreement, including the general release. (d) You were given twenty-one days to determine whether you wished to enter into this Separation Agreement, including the general release. (e) The entry into and execution of this Separation Agreement, including the general release, is your own free and voluntary act without compulsion of any kind. (f) No promise or inducement not expressed herein has been made to you. (g) This Separation Agreement shall be binding upon and inure to the benefit of the Company's successors and assigns. This Agreement shall not be assignable by you. You have twenty-one (21) days to consider this offer. You are encouraged to review this Separation Agreement with an attorney. If you agree with the proposed terms as set forth above, please sign this Separation Agreement indicating your understanding and agreement and the attached Acknowledgment of Rights under the Older Workers Benefit Protection Act and return them to me. The additional copies are for your records. Please note that if you sign this Separation Agreement, you will retain the right to revoke it for seven (7) days. To revoke the Separation Agreement, you must send a certified letter to my attention. This letter must be post-marked within seven (7) days of you execution of this Separation Agreement. Vincent T. Dolan June 30, 2003 Page 8 We wish you the best in the future. Sincerely, Neoware Systems, Inc By: /S/Keith D. Schneck Name: Keith D. Schneck Title: Executive Vice President and Chief Financial Officer Understood and Agreed, intending to be legally bound: Vincent T. Dolan /S/Vincent T. Dolan Witness:______________________________ ACKNOWLEDGMENT OF RIGHTS UNDER OLDER WORKERS BENEFIT PROTECTION ACT I, VINCENT T. DOLAN, acknowledge that I have read and understand the attached separation agreement and general release ("Separation Agreement"). I further understand that this Separation Agreement is revocable by me for a period of seven (7) days following execution thereof, and that this Separation Agreement shall not become effective or enforceable until this seven-day revocation period has ended. I am aware that federal, state and local laws prohibit discrimination against employees because of their race, color, religion, sex, age, national origin, veterans status and disability and that any employee who believes that he has been discharged or otherwise discriminated against for any of these reasons has a right to file a lawsuit in court or initiate other proceedings against the Released Parties and recover damages if it is proved that the Released Parties violated any one of these laws. I acknowledge that I have been encouraged to discuss the release language in the Separation Agreement with an attorney prior to executing the agreement and that I have thoroughly reviewed and understand the effect of the release. I further acknowledge that I have been given twenty-one (21) days in which to consider the Separation Agreement and that, if I sign the Separation Agreement before the end of the twenty-one day period, I am doing so freely, voluntarily and after having had full and fair opportunity to consult with my retained counsel. /S/Vincent T. Dolan Date:_______________ Vincent T. Dolan EX-21 7 ex-21.txt EXHIBIT 21 EXHIBIT 21 Subsidiaries Neoware Licensing, Inc. Delaware Neoware Investments, Inc. Delaware Neoware Systems, GmbH Germany Neoware Systems, BV Netherlands Neoware UK Limited. Emgland EX-23 8 ex23-1.txt EXHIBIT 23.1 Exhibit 23.1 Consent of Independent Auditors The Board of Directors Neoware Systems, Inc.: We consent to the incorporation by reference in the registration statements (Nos. 33-93942, 333-20185, 333-56298, 333-102878, 333-107970, and 333-107974) on Form S-8 and (Nos. 333-85490 and 333-107858) on Form S-3 of Neoware Systems, Inc. of our report dated August 21, 2003, relating to the consolidated balance sheet of Newoare Systems, Inc. and subsidiaries (the Company) as of June 30, 2003 and 2002, and the related consolidated statements of operations, stockholders' equity and other comprehensive income (loss) and cash flows for the years then ended, which report appears in the June 30, 2003 annual report on Form 10-K of Neoware Systems, Inc. /s/ KPMG LLP Philadelphia, Pennsylvania September 15, 2003 EX-23 9 ex23-2.txt EXHIBIT 23.2 EXHIBIT 23.2 NOTICE REGARDING CONSENT OF ARTHUR ANDERSEN LLP Section 11(a) of the Securities Act of 1933, as amended (the Securities Act), provides that if any part of a registration statement at the time such part becomes effective contains an untrue statement of a material fact or an omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, any person acquiring a security pursuant to such registration statement (unless it is proved that at the time of such acquisition such person knew of such untruth or omission) may sue, among others, every accountant who has consented to be named as having prepared or certified any part of the registration statement, or as having prepared or certified any report or valuation which is used in connection with the registration statement, with respect to the statement in such registration statement, report or valuation which purports to have been prepared or certified by the accountant. This Form 10-K is incorporated by reference into Neoware Systems, Inc filings on Form S-8 Nos. 33-93942, 333-20185, 333-56298, 333-102878, 333-107970 and 333-107974 and on Form S-3 Nos. 333-85490 and 333-107858 (collectively, the Registration Statements) and, for purposes of determining any liability under the Securities Act, is deemed to be a new registration statement for each Registration Statement into which it is incorporated by reference. On July 23, 2002, Neoware dismissed Arthur Andersen LLP as its independent auditor and appointed KPMG LLP to replace Arthur Andersen. Andersen has informed us that its policy is not to provide consents if the engagement partner and the manager for the company's audit are no longer with Andersen. Both the engagement partner and the manager for the Neoware audit are no longer with Andersen. As a result, Neoware has been unable to obtain Andersen's written consent to the incorporation by reference into the Registration Statements of its audit report with respect to Neoware's financial statements as of June 30, 2001 and for the year then ended. Under these circumstances, Rule 437a under the Securities Act permits Neoware to file this Form 10-K without a written consent from Arthur Andersen. As a result, however, Arthur Andersen will not have any liability under Section 11(a) of the Securities Act for any untrue statements of a material fact contained in the financial statements audited by Andersen or any omissions of a material fact required to be stated therein. Accordingly, you would be unable to assert a claim against Andersen under Section 11(a) of the Securities Act for any purchases of securities under the Registration Statements made on or after the date of this Form 10-K. To the extent provided in Section 11(b)(3)(C) of the Securities Act, however, other persons who are liable under Section 11(a) of the Securities Act, including the Company's officers and directors, may still rely on Andersen's original audit reports as being made by an expert for purposes of establishing a due diligence defense under Section 11(b) of the Securities Act. EX-31 10 ex31-1.txt EXHIBIT 31.1 Exhibit 31.1 Certification I, Michael Kantrowitz, certify that: 1. I have reviewed this annual report on Form 10-K of Neoware Systems, Inc.; 2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; 3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; 4. The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have: a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; b) Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and c) Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; 5. The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions): a) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and b) any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting. Date: September 15, 2003 /s/ Michael Kantrowitz ---------------------------------------------- Michael Kantrowitz Chairman, President and Chief Executive Officer (Principal Executive Officer) EX-31 11 ex31-2.txt EXHIBIT 31.2 Exhibit 31.2 Certification I, Keith D. Schneck, certify that: 1. I have reviewed this annual report on Form 10-K of Neoware Systems, Inc.; 2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; 3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; 4. The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have: a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; b) Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and c) Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; 5. The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions): a) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and b) any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting. Date: September 15, 2003 /s/ Keith D. Schneck ---------------------------------------------------- Keith D. Schneck Executive Vice President and Chief Financial Officer (Principal Financial Officer) EX-32 12 ex32-1.txt EXHIBIT 32.1 Exhibit 32.1 CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002 In connection with the annual report of Neoware Systems, Inc. (the "Company") on Form 10-K for the year ended June 30, 2003 as filed with the Securities and Exchange Commission on the date hereof (the "Report"), I, Michael Kantrowitz, Chairman, President and Chief Executive Officer of the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that, to such officer's knowledge: (1) The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and (2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company as of the dates and for the periods expressed in the Report. /s/ Michael Kantrowitz - ---------------------- Michael Kantrowitz Chairman, President and Chief Executive Officer (Principal Executive Officer) September 15, 2003 The foregoing certification is being furnished to the Securities and Exchange Commission pursuant to 18 U.S.C. Section 1350 as an exhibit to the Report and is not being filed as part of the Report or as a separate disclosure document. EX-32 13 ex32-2.txt EXHIBIT 32.2 Exhibit 32.2 CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002 In connection with the annual report of Neoware Systems, Inc. (the "Company") on Form 10-K for the year ended June 30, 2003 as filed with the Securities and Exchange Commission on the date hereof (the "Report"), I, Keith D. Schneck, Executive Vice President and Chief Executive Officer of the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that, to such officer's knowledge: (1) The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and (2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company as of the dates and for the periods expressed in the Report. /s/ Keith D. Schneck - -------------------- Keith D. Schneck Executive Vice President and Chief Financial Officer (Principal Financial Officer) September 15, 2003 The foregoing certification is being furnished to the Securities and Exchange Commission pursuant to 18 U.S.C. Section 1350 as an exhibit to the Report and is not being filed as part of the Report or as a separate disclosure document. -----END PRIVACY-ENHANCED MESSAGE-----