-----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, As1DTcvfuVLEVauN4pxvPNQSTaNrnPO4GiII7ILdiFcl9w03aohZxEnxY76iwnaQ elaLlgo3WmvvQ/VhNetnVA== 0000950135-05-000550.txt : 20050209 0000950135-05-000550.hdr.sgml : 20050209 20050209172303 ACCESSION NUMBER: 0000950135-05-000550 CONFORMED SUBMISSION TYPE: 10-Q PUBLIC DOCUMENT COUNT: 6 CONFORMED PERIOD OF REPORT: 20041231 FILED AS OF DATE: 20050209 DATE AS OF CHANGE: 20050209 FILER: COMPANY DATA: COMPANY CONFORMED NAME: MRO SOFTWARE INC CENTRAL INDEX KEY: 0000920354 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 042448516 STATE OF INCORPORATION: MA FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: 10-Q SEC ACT: 1934 Act SEC FILE NUMBER: 000-23852 FILM NUMBER: 05589773 BUSINESS ADDRESS: STREET 1: 100 CROSBY DRIVE CITY: BEDFORD STATE: MA ZIP: 01730 BUSINESS PHONE: 7812802000 MAIL ADDRESS: STREET 1: 100 CROSBY DRIVE CITY: BEDFORD STATE: MA ZIP: 01730 FORMER COMPANY: FORMER CONFORMED NAME: PROJECT SOFTWARE & DEVELOPMENT INC DATE OF NAME CHANGE: 19940315 10-Q 1 b53453mse10vq.txt MRO SOFTWARE, INC. 10-Q UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 10-Q FOR THE QUARTERLY PERIOD ENDED DECEMBER 31, 2004 (mark one) [X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 [ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES AND EXCHANGE ACT OF 1934 For the transition period from __________ to __________ Commission File Number 0-23852 MRO SOFTWARE, INC. (Exact name of registrant as specified in its charter) MASSACHUSETTS 04-2448516 (State or other jurisdiction (I.R.S employer incorporation or organization) identification number)
100 CROSBY DRIVE, BEDFORD MASSACHUSETTS 01730 (Address of principal executive offices, including zip code) (781) 280-2000 (Registrant's telephone number, including area code) Indicate by check mark whether the Registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes X No ----- ----- Indicate by check mark whether the registrant is an accelerated filer (as defined in Rule 12b-2 of the Exchange Act) Yes X No ----- ----- Number of shares outstanding of the Registrant's common stock as of the latest practicable date: 25,256,852 shares of common stock, $.01 par value per share, as of February 4, 2005. Page 1 MRO SOFTWARE, INC. 10-Q INDEX
PAGE ---- PART I. FINANCIAL INFORMATION ITEM 1. FINANCIAL STATEMENTS Consolidated Balance Sheets (unaudited) as of December 31, 3 2004 and September 30, 2003. Consolidated Statements of Operations (unaudited)for the three 4 months ended December 31, 2004 and 2003. Consolidated Statements of Cash Flows (unaudited) for the 5 three months ended December 31, 2004 and 2003. Notes to Consolidated Financial Statements (unaudited). 6 ITEM 2. Management's Discussion and Analysis of Financial Condition 11 and Results of Operations ITEM 3. Quantitative and Qualitative Disclosures about Market Risk 22 ITEM 4. Controls and Procedures 22 PART II. OTHER INFORMATION Item 1. Legal Proceedings 23 Item 2. Changes in Securities 23 Item 3. Defaults upon Senior Executives 23 Item 4. Submission of Matter to a Vote of Security Holders 23 Item 5. Other Information 23 Item 6. Exhibits and Reports on Form 8-K 23 SIGNATURE 26
Page 2 MRO SOFTWARE, INC. CONSOLIDATED BALANCE SHEETS (UNAUDITED)
DECEMBER 31, SEPTEMBER 30, (IN THOUSANDS, EXCEPT PER SHARE DATA) 2004 2004 ------------ ------------- ASSETS Current assets: Cash and cash equivalents $ 64,200 $ 56,982 Marketable securities 37,510 36,152 Accounts receivable, trade, less allowance for doubtful accounts of $2,371 at December 31, 2004 and $2,324 at September 30, 2004, respectively 35,940 36,636 Prepaid expenses and other current assets 5,404 5,072 Deferred income taxes 1,422 1,470 -------- -------- Total current assets 144,476 136,312 -------- -------- Marketable securities 12,984 15,273 Property and equipment, net 7,520 7,227 Goodwill 46,337 46,768 Intangible assets, net 4,930 5,541 Deferred income taxes 7,761 7,611 Other assets 3,873 3,989 -------- -------- Total assets $227,881 $222,721 ======== ======== LIABILITIES AND STOCKHOLDERS' EQUITY Current liabilities: Accounts payable and accrued expenses $ 12,445 $ 12,871 Accrued compensation 9,465 10,142 Income taxes payable 6,033 5,473 Deferred revenue 28,407 29,373 Deferred lease obligation 238 292 -------- -------- Total current liabilities 56,588 58,151 -------- -------- Deferred lease obligation 2,285 2,210 Deferred revenue 728 900 Other long term liabilities 303 325 Stockholders' equity Preferred stock, $.01 par value;1,000 authorized, none issued and outstanding Common stock, $.01 par value;50,000 authorized; 25,246 and 24,983 issued and outstanding at December 31, 2004 and September 30, 2004, respectively 252 250 Additional paid-in capital 121,343 118,903 Deferred compensation (322) (370) Retained earnings 44,666 41,503 Accumulated other comprehensive income 2,038 849 ------- -------- Total stockholders' equity 167,977 161,135 ------- -------- Total liabilities and stockholders' equity $227,881 $222,721 ======== ========
The accompanying notes are an integral part of the consolidated financial statements. 3 MRO SOFTWARE, INC. CONSOLIDATED STATEMENTS OF OPERATIONS (UNAUDITED)
THREE MONTHS ENDED DECEMBER 31, ------------------ (IN THOUSANDS, EXCEPT PER SHARE DATA) 2004 2003 ------- -------- Revenues: Software $14,824 $12,210 Support and services 32,532 32,692 ------- ------- Total revenues 47,356 44,902 ------- ------- Cost of revenues: Software 1,280 1,812 Support and services 15,615 14,773 ------- ------- Total cost of revenues 16,895 16,585 ------- ------- Gross profit 30,461 28,317 Operating expenses: Sales and marketing 15,231 13,710 Product development 6,780 7,006 General and administrative 4,478 4,465 Amortization of other intangibles 92 205 ------- ------- Total operating expenses 26,581 25,386 ------- ------- Income from operations 3,880 2,931 Interest income 471 204 Other income/(expense), net 570 (440) ------- ------- Income before income taxes 4,921 2,695 Provision for income taxes 1,758 943 ------- ------- Net income $ 3,163 $ 1,752 ======= ======= Net income per share, basic $ 0.13 $ 0.07 ------- ------- Net income per share, diluted $ 0.12 $ 0.07 ------- ------- Shares used to calculate net income per share Basic 25,041 24,629 Diluted 25,392 25,200
The accompanying notes are an integral part of the consolidated financial statements. 4 MRO SOFTWARE, INC. CONSOLIDATED STATEMENTS OF CASH FLOWS (UNAUDITED)
THREE MONTHS ENDED DECEMBER 31, ------------------ (in thousands) 2004 2003 ------- -------- Cash flows from operating activities: Net income $ 3,163 $ 1,752 Adjustments to reconcile net income to net cash provided by/(used in) operating activities: Depreciation 775 1,193 Amortization of other intangibles 611 957 --- Amortization of premium on marketable securities 66 Stock-based compensation 48 50 Deferred income taxes 664 129 Changes in operating assets and liabilities: Accounts receivable 1,789 (1,952) Prepaid expenses and other assets 142 (1,483) Accounts payable, accrued expenses and other liabilities (1,002) (4,209) Accrued compensation (896) (681) Income taxes payable 281 (373) Deferred revenue (1,806) (1,084) ------- -------- Net cash provided by/(used in) by operating activities 3,891 (5,701) ------- -------- Cash flows from investing activities: Acquisitions of property and equipment and other capital expenditures (1,105) (622) --- Sale of marketable securities 3,429 Purchase of marketable securities (2,420) (20,007) ------- -------- Net cash used in investing activities (96) (20,629) ------- -------- Cash flows from financing activities: Proceeds from exercise of employee stock options and stock purchases 2,299 956 ------- -------- Net cash provided by financing activities 2,299 956 ------- -------- Effect of exchange rate changes on cash 1,124 1,207 ------- -------- Net increase/(decrease) in cash and cash equivalents 7,218 (24,167) Cash and cash equivalents, beginning of period 56,982 73,662 ------- -------- Cash and cash equivalents, end of period $64,200 $ 49,495 ======= ========
The accompanying notes are an integral part of the consolidated financial statements. 5 MRO SOFTWARE, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED) A. BASIS OF PRESENTATION The accompanying unaudited consolidated financial statements include the accounts of MRO Software, Inc. ("MRO") and its majority-owned subsidiaries (collectively, the "Company"), as of December 31, 2004 and have been prepared by the Company in accordance with generally accepted accounting principles for interim reporting and with the instructions to Form 10-Q and Article 10 of Regulation S-X. All intercompany accounts and transactions have been eliminated. In the opinion of management, the accompanying unaudited consolidated financial statements contain all adjustments, consisting only of those of a normal recurring nature, necessary for a fair presentation of the Company's financial position, results of operations and cash flows at the dates and for the periods indicated. The results of operations for the periods presented herein are not necessarily indicative of the results of operations to be expected for the entire fiscal year, which ends on September 30, 2005, or for any other future period. These consolidated financial statements should be read in conjunction with the consolidated financial statements and notes thereto for the year ended September 30, 2004 included in the Company's Annual Report on Form 10-K filed with the Securities and Exchange Commission on December 14, 2004. The preparation of financial statements in conformity with generally accepted accounting principles requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities 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. Actual results could differ from those estimates. Certain prior year financial statement items have been reclassified to conform to the current year's format. B. INCOME PER SHARE Basic income per share is computed by dividing income or loss available to common shareholders by the weighted average number of common shares outstanding. Diluted income per share is computed by dividing income or loss available to common shareholders by the weighted average number of common shares outstanding plus dilutive potential common shares. For purposes of this calculation, stock options are considered dilutive potential common shares in periods in which they have a dilutive effect. All potential dilutive common shares are excluded from the computation of net loss per share because they are anti-dilutive. Basic and diluted income per share are calculated as follows:
THREE MONTHS ENDED ------------------- (in thousands, except per share data) 12/31/04 12/31/03 -------- -------- Net income $ 3,163 $ 1,752 Denominator: Weighted average common shares outstanding-basic 25,041 24,629 Effect of dilutive securities (1) 351 571 ------- ------- Weighted average common shares outstanding-diluted 25,392 25,200 ======= ======= Net income per share, basic $ 0.13 $ 0.07 Net income per share, diluted $ 0.12 $ 0.07
Page 6 (1) Options to purchase 1,764,959 shares and 1,555,792 shares of the Company's Common Stock for the three months ended December 31, 2004 and 2003, respectively were outstanding but were not included in the computations of diluted net income per share because the exercise price of the options was greater than the weighted average market price of the common stock during the period. Common stock equivalents of 351,000 shares and 571,000 shares were included in the computation of diluted net income per share for the three months ended December 31, 2004 and 2003, respectively. C. ACCOUNTING POLICIES STOCK-BASED COMPENSATION AND PRO FORMA INFORMATION The Company complies with the pro forma disclosure requirements of the Financial Accounting Standards Board ("FASB") SFAS No. 123 as amended by SFAS No. 148. The fair value of the Company's stock options was estimated using the Black-Scholes option-pricing model. This model was developed for use in estimating fair value of traded options that have no vesting restrictions and are fully transferable. This model requires the input of highly subjective assumptions including the expected stock price volatility. Because the Company's stock options have characteristics significantly different from those of traded options, and because changes in the subjective input assumptions can materially affect the fair value estimates, in management's opinion, the Black-Scholes model does not necessarily provide a reliable single measure of the fair value of its stock options. The following table illustrates the effect on net income and earnings per share on a pro forma basis as if the Company had applied the fair value recognition provisions of SFAS No.123 to stock-based employee compensation.
THREE MONTHS ENDED ------------------- (in thousands, except per share amounts) 12/31/04 12/31/03 -------- -------- Net income As reported $ 3,163 $ 1,752 Add: Stock-based employee compensation expense included in net income 48 50 Deduct: Stock-based employee compensation expense determined under the fair value based method for all awards, net of related tax effects (1,299) (2,573) Pro forma net income/(loss) $ 1,912 $ (771) Earnings/(loss) per share: Basic - as reported $ 0.13 $ 0.07 Basic-pro forma $ 0.08 $ (0.03) Diluted-as reported $ 0.12 $ 0.07 Diluted-pro forma $ 0.08 $ (0.03)
With the exception of restricted stock awards to non-employee members of the board of directors, no stock-based compensation cost is reflected in net income, as all stock-based awards granted under the Company's plans consist of stock options that have an exercise price equal to the market value of the underlying common stock on the date of grant. Page 7 D. COMPREHENSIVE INCOME: The following table reflects the components of comprehensive net income:
THREE MONTHS ENDED ------------------- (in thousands) 12/31/04 12/31/03 -------- -------- Net income $3,163 $1,752 Other comprehensive net income, Net of tax: Unrealized gain/(loss) on securities arising during period 143 (82) Foreign currency translation adjustment 1,046 886 ------ ------ Comprehensive income $4,352 $2,556 ====== ======
E. SEGMENT INFORMATION, GEOGRAPHIC DATA AND MAJOR CUSTOMERS: The Company reports revenues and income under one reportable industry segment, Strategic Asset Management. Our Strategic Asset Management software products and services include MAXIMO EAM and MAXIMO ITAM. The Company does not allocate expenses to these product groups and all operating results are assessed on an aggregate basis to make decisions about the allocation of resources. The Company manages its business in the following geographic areas: United States, Other Americas (Canada and Latin America), Europe/Middle East and Africa, and Asia Pacific. A summary of the Company's revenues by geographical area is as follows:
THREE MONTHS ENDED ------------------- (in thousands) 12/31/04 12/31/03 -------- -------- Revenues: United States $26,495 $27,502 Other Americas 2,805 2,197 Intercompany 3,478 3,859 ------- ------- Subtotal $32,778 $33,558 Europe/Middle East and Africa 14,437 12,572 Asia/Pacific 3,619 2,631 Intercompany (3,478) (3,859) ------- ------- Total revenues $47,356 $44,902 ======= =======
The Company has subsidiaries in foreign countries, which sell the Company's products and services in their respective geographic areas. Intercompany revenues reflect our transfer pricing policies and primarily represent shipments of software to international subsidiaries. Intercompany revenues are eliminated from consolidated revenues. F. GOODWILL AND OTHER INTANGIBLE ASSETS Changes in the amount of goodwill for the quarter ended December 31, 2004 are as follows: Balance as of September 30, 2004 $46,768 Utilization of acquired net operating losses (431) ------- Balance as of December 31, 2004 $46,337 =======
Page 8 Intangible assets as of December 31, 2004 and September 30, 2004 consist of the following:
(in thousands) 12/31/04 09/30/04 -------- -------- Goodwill, net $ 46,337 $ 46,768 Acquired technology 16,654 16,654 Accumulated amortization (12,192) (11,673) -------- -------- Sub-total acquired technology 4,462 4,981 -------- -------- Other intangibles 2,611 2,711 Accumulated amortization (2,143) (2,151) -------- -------- Sub-total other intangibles 468 560 -------- -------- Total intangible assets, net $ 51,267 $ 52,309 ======== ========
Other intangibles consist of customer contracts, customer lists and non-compete agreements. Amortization expense of intangible assets was $611 thousand and $957 thousand for the three months ended December 31, 2004 and 2003, respectively. As of December 31, 2004, remaining amortization expense on existing intangibles for the next five years is as follows:
(in thousands) 2005 (remaining 9 mos) $1,811 2006 1,565 2007 659 2008 659 2009 236 ------ Total $4,930 ------
G. RECENT ACCOUNTING PRONOUNCEMENTS In December 2004, the FASB issued SFAS No. 123 (revised 2004), "Share-Based Payments" ("SFAS 123(R)"). SFAS 123(R) replaces FASB Statement No. 123, "Accounting for Stock-Based Compensation", supersedes APB Opinion No. 25, "Accounting for Stock Issued to Employees" and amends SFAS No. 95, "Statement of Cash Flows." SFAS 123(R) requires compensation costs related to share-based payment transactions to be recognized in the financial statements. We are required to adopt SFAS 123(R) in the fourth quarter of fiscal 2005. SFAS 123(R) applies to all awards granted after June 30, 2005 and to previously granted awards unvested as of the adoption date. We are currently assessing the impact of SFAS 123(R) on our financial statements. H. GUARANTOR ARRANGEMENTS We warrant that our software products will perform substantially in accordance with the product specifications as contained in certain associated documentation, which is provided with the products, for a Page 9 period of ninety days from initial delivery of the products to the customer. Our sole obligation under this warranty is to use reasonable efforts to correct a verified problem that is brought to our attention during the warranty period, or if we are unable to provide a correction, we are obligated to accept the return of the product and refund the license fee paid. We warrant that our professional services will be provided in accordance with good professional practice, and that any software developed by our services organization will perform substantially in accordance with its approved specifications for a period of thirty days from initial delivery of the services to the customer. Our sole obligation under this warranty is to use reasonable efforts to correct a verified problem that is brought to our attention during the warranty period, or if we are unable to provide a correction, we are obligated to accept the return of the deliverables and refund the fee paid for the services. If necessary, we would provide for the estimated cost of product and services warranties based on specific warranty claims and claim history. However, we have never incurred significant expense under our product or services warranties, our liability for breach of warranty is limited to the amount of the license or services fees actually paid, and we maintain insurance covering such claims in an amount sufficient to cover a refund of the license or services fees paid by any particular customer during the last 12 months. As a result, we believe the estimated fair value of these warranty obligations is minimal. Accordingly, we have no liabilities recorded for these warranty obligations as of December 31, 2004. Under our standard end-user license agreement, we agree to indemnify our customers against infringement claims that may be brought by third parties asserting that our products infringe on certain intellectual property rights. In our services agreements with customers, we will also, as a matter of standard practice, agree to indemnify customers (a) against claims that may be brought by third parties asserting that the results of our services infringe on certain intellectual property rights, (b) against damages caused by our breach of certain confidentiality provisions in the contract, and (c) against damages to personal property, and death, caused by our services personnel while on-site at customer premises. These indemnification provisions are generally based on our standard contractual terms. All such provisions, whether based on our standard contracts or negotiated with a given customer, are entered into in the normal course of business based on an assessment that the risk of loss is remote. The terms of the indemnifications as negotiated may vary in duration and nature, and our obligations to indemnify may be unlimited as to amount. There have been no demands for indemnity and the contingencies triggering the obligation to indemnify have not occurred to our knowledge and are not expected to occur. The Company maintains insurance that covers such indemnification obligations, and the amount of coverage that we maintain is sufficient to cover a refund of the license and services fees received from any particular customer during the last 12 months. Historically, the Company has not made any material payments pursuant to any such indemnity obligations. Accordingly, we have no liabilities recorded for any such indemnity obligations as of December 31, 2004. When we acquire a business or a company, we may assume liability for certain events or occurrences that took place prior to the date of acquisition. The maximum potential amount of future payments we could be required to make for such obligations is undeterminable at this time. All of these obligations were grand fathered under the provisions of FIN No. 45 as they were in effect prior to December 31, 2002. Accordingly, we have no liabilities recorded for the assumption of any such liabilities as of December 31, 2004. I. PROVISION FOR INCOME TAXES The Company is currently undergoing an income tax audit with the Internal Revenue Service. We believe that we have provided sufficiently for all audit exposures. A favorable settlement of this audit or the expiration of the statute of limitations on the assessment of income taxes for any tax year may result in a reduction of future tax provisions, which could be significant. Any such benefit would be recorded upon final resolution of the audit or expiration of the statute. Page 10 ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS FORWARD-LOOKING STATEMENTS In addition to historical information, this Quarterly Report on Form 10-Q, as well as documents incorporated herein by reference, may contain forward-looking statements (within the meaning of section 27A of the Securities Act of 1933, as amended, and section 21E of the Securities Exchange Act of 1934, as amended). The following and similar expressions identify forward-looking statements: "expects," "anticipates," and "estimates." Forward-looking statements include, without limitation, statements related to: the Company's plans, objectives, expectations and intentions; the timing of, availability and functionality of products under development or recently introduced; and market and general economic conditions. Important factors that could cause actual results to differ materially from those suggested by the forward-looking statements for various reasons, include those discussed under the heading "Factors Affecting Future Performance" below. These forward-looking statements speak only as of the date of this Quarterly Report, and the Company disclaims any obligation to update such forward looking statements as a result of any change in circumstances or otherwise. OVERVIEW MRO Software is a leading global provider of Strategic Asset Management solutions, software and related services. Strategic Asset Management is the management and optimization of the business processes required to keep our customers' critical assets productive. Critical assets are those that have a significant impact on operations and performance, including assets used in production, facilities, transportation and information technology (IT) operations. The Company's Strategic Asset Management software products and services allow our customers to manage the complete life cycle of their critical assets, including: planning, procurement, deployment, tracking, maintenance and retirement. Our Strategic Asset Management software products and services include MAXIMO for the Enterprise Asset Management (EAM) market and MAXIMO MainControl for the IT Asset Management (ITAM) market. Using MRO Software's products and services, our customers improve production reliability, labor efficiency, material optimization, software license compliance, lease management, warranty and service management and provisioning across their critical asset base. In March 2005, the Company will be releasing its new generation of products, Maximo Enterprise Suite (MXES). MXES will incorporate the Company's current EAM and ITAM capabilities, delivered on a common platform along with new functionality that will include IT Help Desk and Service Desk capabilities as well as a greatly enhanced application set for the EAM market. The Company reports all its revenues in one reportable business segment, the Strategic Asset Management segment. The Company's management assesses operating results on an aggregate basis to make decisions about the allocation of resources. Our actual results are reported in United States dollars. International revenues accounted for 44% and 39% of total revenues for the three months ended December 31, 2004 and 2003, respectively, and, therefore, the fluctuation in exchange rates can have a significant impact on our results of operations. In the three months ended December 31, 2004, the fluctuation in the Euro dollar and the British pound, in particular, had a favorable impact on our revenue results. We assess the impact of foreign currency exchange rates on our business, primarily revenues, by recalculating the current period's financial results using the comparable period's exchange rates to devise a constant currency rate in order to compare period over period results. We believe that this non-GAAP financial measure provides useful information to management and investors since it reflects performance of our international territories without the effect of exchange rates. Total actual revenues increased 5% in the three months ended December 31, 2004 compared to the three months ended December 31, 2003, however, in constant currency terms the increase is estimated to be 2%. The exchange rates had a similar impact on direct and operating expenses, and, therefore, the overall impact on net income was immaterial for the three months ended December 31, 2004. Page 11 CRITICAL ACCOUNTING POLICIES AND ESTIMATES The Company's discussion and analysis of its financial condition and results of operations are based upon its consolidated financial statements, which have been prepared in accordance with accounting principles generally accepted in the United States of America (U.S.). The preparation of these financial statements requires that management make estimates and judgments that affect the reported amounts of assets, liabilities, revenues and expenses. These estimates and assumptions are affected by management's application of accounting policies. Critical accounting policies, in which different judgments and estimates by our management could materially affect our reported condition and results of operations, include revenue recognition, estimating the allowance for doubtful accounts, deferred tax assets, and the valuation of long-lived assets. These critical accounting policies and estimates should be read in conjunction with the critical accounting policies and estimates included in the Company's Annual Report on Form 10-K filed with the Securities and Exchange Commission on December 14, 2004. The Company includes and updates critical accounting policies and estimates in interim periods if a new critical accounting policy is adopted or amended or if there are material changes in related judgments or conditions underlying the Company's estimates in the interim period. RESULTS OF OPERATIONS REVENUES
Three Three Months Months Ended Change Ended (in thousands) 12/31/04 % 12/31/03 -------- ------ -------- Software licenses revenues $14,824 21% $12,210 Percentage of total revenues 31% 27% Support revenues $18,590 8% $17,243 Percentage of total revenues 39% 38% Services revenues $13,942 (10)% $15,449 Percentage of total revenues 29% 34% Total revenues $47,356 5% $44,902
The Company's revenues are derived primarily from two sources: (i) software licenses, and (ii) fees for support and services. Software license revenues increased 21% for the three months ended December 31, 2004 compared to the three months ended December 31, 2003 and increased approximately 17% using constant currency rates. MAXIMO EAM software license revenues comprised 98% of total software revenues for the three months ended December 31, 2004. MAXIMO EAM software license revenues increased 26% for the three months ended December 31, 2004 compared to the three months ended December 31, 2003. The increase was attributable to enhancements to the product, namely MAXIMO Industry Solutions that target specific vertical markets. MAXIMO ITAM software license revenues declined 64% for the three months ended December 31, 2004 compared to the three months ended December 31, 2003. Historically, MAXIMO ITAM software licenses have fluctuated from quarter to quarter; and we expect that this trend will continue over the next few quarters as a result of the Company's plans to replace this product in conjunction with the release of its new generation of products, MAXIMO, Maximo Enterprise Suite (MXES) in March 2005. The Company expects little or no revenue impact from this new release until the second half of fiscal year 2005. Page 12 Support revenues increased 8% to $18.6 million for the three months ended December 31, 2004 from $17.2 million for the three months ended December 31, 2003 and increased approximately 5% using constant currency rates. Support revenues have increased as a result of a cumulative increase in the number of MAXIMO EAM customers and a strong renewal rate (90%) for support contracts. MAXIMO EAM support revenues comprised 96% of total support revenues for the three months ended December 31, 2004 and increased 11% for the three months ended December 31, 2004 compared to the three months ended December 31, 2003. MAXIMO ITAM support revenues decreased 37% for the three months ended December 31, 2004 compared to the three months ended December 31, 2003 due to termination of contracts without commensurate replacements from new customers. Service revenues decreased 10% to $13.9 million for the three months ended December 31, 2004 from $15.5 million for the three months ended December 31, 2003 and decreased 14% using constant currency rates. The decrease in service revenues for the three months ended December 31, 2004 compared to the three months ended December 31, 2003 was comprised of the following: (1) a decline of 26% in MAXIMO ITAM service revenues related to the decrease in software licenses sold and (2) a decline of 10% in MAXIMO EAM service revenues due to the conclusion of a multi-year engagement that had been generating $1 to $2 million of revenue per quarter for the previous two years. Overall, our services business operates in a highly competitive industry and there are numerous independent consulting firms who implement our MAXIMO products and compete for our services business. COST OF REVENUES
Three Three Months Months Ended Change Ended (in thousands) 12/31/04 % 12/31/03 -------- ------ -------- Cost of software licenses revenues $ 1,280 (29)% $ 1,812 Percentage of software licenses revenues 9% 15% Cost of support revenues $ 2,881 14% $ 2,522 Percentage of support revenues 15% 15% Cost of services revenues $12,734 4% $12,251 Percentage of services revenues 91% 79% Total cost of revenues $16,895 2% $16,585 Percentage of total revenues 36% 37%
Cost of software license revenues consists of software purchased for resale, royalties paid to vendors of third-party software, the cost of software product packaging and media, certain employee costs related to software duplication, packaging and shipping and amortization of acquired technology. The decrease in the cost of software license revenues for the three months ended December 31, 2004 compared to the three months ended December 31, 2003 was primarily attributable to decrease in the amortization of acquired technology due to the cessation of amortization of fully amortized assets. Amortization of acquired technology was $519 thousand and $752 thousand for the three months ended December 31, 2004 and 2003, respectively. Also contributing to the decrease was a decline in royalties paid to third-party software vendors and a decrease in purchases of third-party software related to our MAXIMO Mobile Suite product. Cost of support and services consists primarily of personnel costs for employees and the related costs of benefits and facilities, costs for utilization of third-party consultants and costs to support the MRO Operations Center. Cost of support revenues increased 14% to $2.9 million for the three months ended December 31, 2004 from $2.5 million for the three months ended December 31, 2003. The increase in the three months ended December 31, 2004 as compared to the three months ended December 31, 2003 was primarily attributable to general increases in salaries and related benefits and increases in renewals of third-party Page 13 support contracts related to the MAXIMO Mobile Suite product. Cost of support revenues, as a percentage of total support revenues, was 15% for both the three months ended December 31, 2004 and 2003, respectively. Cost of service revenues increased 4% to $12.7 million for the three months ended December 31, 2004 from $12.3 million for the three months ended December 31, 2003. Cost of service revenues, as a percentage of total service revenues was 91% and 79% for the three months ended December 31, 2004 and 2003, respectively. The increase for the three months ended December 31, 2004 compared to the three months ended December 31, 2003 was attributable to an increase in salaries and related benefits and travel and entertainment expenses related to a worldwide professional services meeting. The completion of a large multi-year, multi-million dollar engagement without commensurate reallocation of personnel on new assignments also affected the service margin. OPERATING EXPENSES
Three Three Months Months Ended Change Ended (in thousands) 12/31/04 % 12/31/03 -------- ------ -------- Sales and marketing $15,231 11% $13,710 Percentage of total revenues 32% 31% Product development $ 6,780 (3)% $ 7,006 Percentage of total revenues 14% 16% General and administrative $ 4,478 1% $ 4,465 Percentage of total revenues 9% 10% Amortization of other intangibles $ 92 (55)% $ 205 Percentage of total revenues 1% 1%
Sales and marketing expenses increased 11% for the three months ended December 31, 2004 compared to the three months ended December 31, 2003. The increase was primarily attributable to an increase in salaries and related benefits, an increase in advertising expenses, an increase in sales commissions due to an increase in software license sales and costs to recruit a new Executive Vice President of Worldwide Sales. Product development expenses decreased 3% for the three months ended December 31, 2004 compared to the three months ended December 31, 2003. Product development expense as a percentage of total revenues was 14% and 16% for the three months ended December 31 2004 and 2003, respectively. The decrease was primarily attributable to a decrease in the costs to translate our products into foreign languages. Expenditures for translation of our products are dependent on the release cycles of our foreign language versions. We have completed the majority of the translations for MAXIMO Version 5. The decrease was partially offset by an increase in product development salaries and related benefits and headcount for a new research and development group in Brazil. The Company has focused the majority of its development on a new generation of products, MXES. MXES will incorporate the Company's current EAM and ITAM capabilities, delivered on a common platform along with new functionality that will include IT Help Desk and Service Desk capabilities as well as a greatly enhanced application set for the EAM market to be released in March 2005. General and administrative expenses increased 1% for the three months ended December 31, 2004 as compared to the three months ended December 31, 2003. General and administrative expenses as a percentage of total revenues was 9% and 10% for the three months ended December 31, 2004 and 2003, Page 14 respectively. The slight increase is attributable to general increases for salaries and related benefits, offset by general decreases in overall operating expenses. The decrease in amortization of other intangibles expense for the three months ended December 31, 2004 compared to the three months ended December 31, 2003 was due to cessation of amortization for fully amortized assets. NON-OPERATING EXPENSES
Three Three Months Months Ended Change Ended (in thousands) 12/31/04 % 12/31/03 -------- ------ -------- Interest income $471 131% $ 204 Other income/(expense), net $570 (230)% $(440)
Interest income is attributable to interest earned on marketable securities and cash and cash equivalents. The Company invests a large portion of its cash in marketable securities such as United States treasury and treasury-backed instruments, municipal bonds and highly rated conservative corporate bonds. We were able to earn more income in the three months ended December 31, 2004 as compared to the three months ended December 31, 2003 because we invested more cash into higher yielding securities and the overall U.S. bond market improved over the previous comparable period. The change in other income was primarily due to a swing in foreign currency transaction gains and losses. Due to the favorable impact of exchange rates, the Company reported net currency transaction gains of $672 thousand for the three months ended December 31, 2004 compared to net currency transaction losses of $446 thousand for the three months ended December 31, 2003. The Company has no foreign exchange contracts at the present time. INCOME TAXES The Company's effective tax rate was 36% and 35% for the three months ended December 31, 2004 and 2003, respectively. The tax provision was calculated on income generated in domestic and foreign tax jurisdictions and on changes in the Company's net deferred tax assets and liabilities. During the first quarter of 2005, the President of the United States signed into law both the American Jobs Creation Act of 2004 and the Working Families Tax Relief Act of 2004. This legislation contains numerous corporate tax changes, including eliminating a tax benefit relating to U.S. product exports, a new deduction relating to U.S. manufacturing, a lower U.S. tax rate on non-U.S. dividends and an extension of the research and experimentation credit. The impact of these new laws may have an impact on the Company's tax rate for 2005 and future years and we are currently evaluating the potential effect of these new laws on our effective tax rate, but we have not determined what that effect is at this time. LIQUIDITY AND CAPITAL RESOURCES As of December 31, 2004, the Company had cash and cash equivalents of $64.2 million and marketable securities of $50.5 million and working capital of $87.9 million. Cash provided by operations was $3.9 million for the three months ended December 31, 2004 primarily attributable to income generated from operations. Cash used in investing activities was $96 thousand for the three months ended December 31, 2004 and was primarily used in the purchase of marketable securities and capital expenditures, funded by the maturities of marketable securities. Cash provided by financing activities was $2.3 million for the three months ended December 31, 2004 and represents proceeds from the Company's Employee Stock Option and Purchase Plans. Page 15 As of December 31, 2004, the Company's principal commitments consist primarily of office space and equipment operating leases for its U.S. and European headquarters. The Company's corporate headquarters are under lease through December 31, 2009. The Company leases its other facilities and certain equipment under non-cancelable operating lease agreements that expire at various dates through June 30, 2019. The Company may use a portion of its cash to acquire additional businesses, products or technologies complementary to its business. The Company also plans to make investments over the next year in its products and technology. The Company expects that its cash flow from operations, together with its current cash and marketable securities, will be sufficient to meet its working capital and capital expenditure requirements through at least December 31, 2006. The Company's liquidity and working capital requirements, including the current portions of any long-term commitments, are satisfied through its cash flow from operations, leaving its cash reserves available for acquisitions, other investments and unanticipated expenditures. The Company has no long-term debt obligations. The factors that might impact the Company's cash flows include those that might impact the Company's business and operations generally, as described below under the heading "Factors Affecting Future Performance." FACTORS AFFECTING FUTURE PERFORMANCE The nature of forward-looking information is that such information involves significant assumptions, risks and uncertainties. Certain public documents of the Company, and statements made by our authorized officers, directors, employees, agents and representatives acting on behalf of the Company, may include forward-looking information which will be influenced by the factors described below and by other assumptions, risks and uncertainties. Forward-looking information is based on assumptions, estimates, forecasts and projections regarding the Company's future results as well as the future effectiveness of the Company's strategic plans and its operational decisions. Forward-looking statements made by or on behalf of the Company are subject to the risk that the forecasts, projections and expectations of management, or assumptions underlying such forecasts, projections and expectations, may prove to be inaccurate. Accordingly, actual results and the Company's implementation of its plans and operations may differ materially from forward-looking statements made by or on behalf of the Company. The following discussion identifies certain important factors that could affect the Company's actual results and actions and could cause such results and actions to differ materially from forward-looking statements. WE DEPEND SUBSTANTIALLY ON OUR MAXIMO EAM PRODUCT. Most of our revenues are derived from the licensing of our MAXIMO EAM family of products and sales of related services and support. Our financial performance depends largely on continued market acceptance of these products. We believe that continued market acceptance and our revenue stability and growth will largely depend on our ability to continue to enhance and broaden the capabilities of these products. If we are unable to continue to enhance and improve MAXIMO EAM so that it delivers the capabilities required by existing and potential customers and remains competitive with other products in the market, or if a trend emerges such that customers decide to consolidate their IT systems and eliminate their standalone or "best-of-breed" EAM application software altogether, our revenues, margins and results of operations and financial condition may be materially and adversely affected. THE TRADITIONAL MARKET FOR OUR MAXIMO EAM PRODUCT IS MATURE AND SATURATED AND PRESENTS LIMITED OPPORTUNITY FOR GROWTH. MAXIMO has been the industry-leading plant floor capital asset maintenance product for a number of years, and we have acquired a large number of customers in this market. However, most large industrial organizations have made significant investments in systems that support the maintenance of their capital assets, and opportunities for new MAXIMO sales in the EAM market are in a state of continuous decline. In addition, the emergence and growth of this market have attracted a large number of competitors, and most of the largest software companies that sell into complementary markets have developed competing Page 16 asset maintenance products. It is likely that this market will continue to mature, there will be fewer sales opportunities for the Company, and competitive forces will put downward pressure on our average sales prices and rates of success. To be competitive in the EAM market, we have made significant investments in MAXIMO EAM to meet the needs of specific industries in which the Company has a presence, such as the nuclear, transportation, power generation, transmission and distribution, and other industries. We refer to these industry-specific MAXIMO offerings as "Industry Solutions." While we continue to strengthen our MAXIMO EAM offering, these efforts may not be sufficient to overcome the effects of maturity and saturation in our traditional market, and our revenues, margins, results of operation and financial condition may be materially and adversely affected. OUR EFFORTS TO REACH INTO NEW MARKETS WITH NEW PRODUCTS MAY NOT BE SUCCESSFUL. Given the maturity and saturation of the traditional EAM market, in order to maintain revenues at their current levels and to grow our business, we are attempting to broaden our product offerings and find additional sources of revenues. We are attempting, through acquisitions and internal development, to deliver products that address markets that are new to the Company, such as the ITAM and Help Desk and Service Desk markets. The culmination of these efforts will be embodied in Maximo Enterprise Suite (MXES), which is scheduled for release in March 2005. Our development of MXES and of our MAXIMO EAM Industry Solutions, and our ability to derive revenue and grow the Company, is subject to the following risks, among others: - We may not be able to develop and market our new products (including MXES) on time, with acceptable quality or with functions and features that meet the requirements of customers in these markets. - Current potential customers who are considering the purchase of our MAXIMO EAM or MAXIMO ITAM products may decide to postpone their purchase in anticipation of the release of MXES. - The MXES Help Desk and Service Desk products may not contain all of the functionality deemed necessary by prospective buyers in these markets. - It is possible that the Company's sales, service or support personnel may not be adequately trained and/or staffed to sell, implement or support the new products. Newly developed products require a higher level of development, distribution and support expenditures in the early stages of their product life cycles. - In the event that our development efforts are not progressing as intended, or if our new product releases or technologies are not successful in the markets they are intended to address, we may increase our rate of expenditure in this area over and above the level of investment experienced in the past or previously projected, which could have a material adverse affect on our results of operation or financial condition. - The launch of MXES may not result in any new revenues while serving as a major distraction from our efforts to maintain revenues at current levels in our traditional EAM market. - Our positioning of the combination of our traditional EAM products and our new ITAM, Help Desk and Service Desk products in a single offering as a logical suite of products may not be accepted in the marketplace. As a result of this and other factors, we may not be able to benefit from the trend among customers to consolidate their information technology (IT) systems, and we may not be successful in our attempts to sell our new products into our existing accounts, or our traditional EAM products to customers primarily interested in our new products. Page 17 If any of our newly developed products do not gain market acceptance and generate revenues from new industries or markets, we may not be able to grow our business or maintain revenues at current levels, and our revenues, margins, results of operations and financial condition may be materially and adversely affected. IF WE ARE UNABLE TO KEEP PACE WITH THE RAPID CHANGES IN TECHNOLOGY AND CUSTOMER DEMAND THAT CHARACTERIZE OUR INDUSTRY, OUR COMPETITIVE POSITION COULD BE IMPAIRED. The computer software industry is characterized by rapid technological advances, changes in customer requirements and frequent product introductions and enhancements by us and by our competitors. Our success depends on our abilities to enhance our current products, to develop and introduce new products that keep pace with technological developments, to respond to evolving customer requirements and changing industry standards, to offer functionality and other innovations that are unique to our products and superior to those of our competitors, and ultimately to achieve market acceptance. In particular, we believe that we must continue to innovate and develop new functionality, to respond quickly to users' needs for new functionality and to advances in hardware and operating systems, and that we must continue to create products that conform to industry standards regarding the communication and interoperability among software, hardware and communications products of many different vendors. If we fail to anticipate or respond adequately to technological developments and changes in market definitions or changes in customer requirements within particular market segments, or if we have any significant delays in product development or introduction, then we could lose competitiveness and revenues. OUR SALES EFFORTS DEPEND IN PART ON STRATEGIC RELATIONSHIPS WITH OTHER COMPANIES. We have entered into strategic relationships with various larger companies, such as HP, IBM, SAIC and others. In order to generate revenue through these relationships, each party must coordinate with and support the other's sales and marketing efforts, and each party must make significant sales and marketing investments. Our ability to generate revenues through these relationships depends in large part upon the efforts of these other companies, which are outside of our control. The efforts of these companies may in turn be influenced by factors internal to these companies, or by developments in their respective industries or markets, that we fail to anticipate. OUR QUARTERLY OPERATING RESULTS ARE SUBJECT TO FLUCTUATIONS AND TO SEASONAL VARIATION. We have experienced, and may in the future experience, significant period-to-period fluctuations in revenues and operating results. In addition, our quarterly revenues and operating results have fluctuated historically due to the number and timing of product introductions and enhancements, customers delaying their purchasing decisions in anticipation of new product releases, the budgeting and purchasing cycles of customers, the timing of product shipments and the timing of marketing and product development expenditures. We typically realize a significant portion of our revenue from sales of software licenses in the last two weeks of each quarter, frequently even in the last few days of a quarter. Failure to close a small number of large software license contracts may have a significant impact on revenues for the quarter and could, therefore, result in significant fluctuations in quarterly revenues and operating results, and divergence of those results from our expectations. Accordingly, we believe that period-to-period comparisons of results of operations are not necessarily meaningful and should not be relied upon as an indication of future performance. WE FACE INTENSE COMPETITION IN THE MARKETS WE SERVE. The markets for strategic asset management software such as MAXIMO EAM, MAXIMO ITAM and Maximo Enterprise Suite (MXES) are fragmented by geography, by market and industry segments, by hardware platform and by industry orientation, and are characterized by a large number of competitors including both independent software vendors and certain ERP vendors. Independent software vendors include DataStream Systems, Inc. and Indus International, Inc. We also compete with integrated ERP systems, which include integrated maintenance modules offered by several large vendors, such as SAP, Oracle, and others. In the ITAM market we compete with companies such as Peregrine Systems, Computer Associates and BMC Software. MXES will compete with all of these companies, plus additional Page 18 companies in the Help Desk and Service Desk markets, such as HP. MAXIMO also encounters competition from vendors of low cost maintenance management systems designed initially for use by a single user or limited number of users as vendors of these products upgrade their functionality and performance to enter the enterprise market. Certain of our competitors have greater financial, marketing, service and support and technological resources than we do. To the extent that such competitors increase their focus on the asset maintenance or planning and cost systems markets, or on the industrial supply chain market, we could be at a competitive disadvantage. Current or potential competitors may make strategic acquisitions, thereby increasing their ability to deliver products that better address the needs of our customers. There is no assurance that we will be able to compete successfully should this occur and this could have a material adverse effect on our financial condition and results of operations. OUR INTERNATIONAL OPERATIONS SUBJECT US TO SPECIAL RISKS. A significant portion of our total revenues and expenses are derived and incurred from operations outside the U.S. 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. Exposure to currency fluctuations and greater difficulty in collecting accounts receivable could affect our sales. We could be affected by the need to comply with a wide variety of foreign import laws, U.S. export laws and regulatory requirements. 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. OUR SOFTWARE PRODUCTS ARE DEPENDENT ON THIRD-PARTY PROVIDERS OF SOFTWARE AND SERVICES, AND FAILURE OF THESE PARTIES TO PERFORM AS EXPECTED, OR TERMINATION OF OUR RELATIONSHIPS WITH THEM, COULD HARM OUR BUSINESS. We have entered into nonexclusive license agreements with other software vendors, pursuant to which we incorporate into our products and solutions software providing certain application development, hardware and network discovery, user interface, mobile technology, report writing, application servers, business intelligence, content and graphics capabilities developed by these companies. If we cannot renew these licenses (at all or on commercially reasonable terms), or if any of such vendors were to become unable to support and enhance their products, we could be required to devote additional resources to the enhancement and support of these products or to acquire or develop software providing equivalent capabilities, which could cause delays in the development and introduction of products incorporating such capabilities. WE MAY HAVE EXPOSURE TO ADDITIONAL INCOME TAX LIABILITIES. We are subject to income taxes in both the U.S. and various foreign jurisdictions. The amount of taxes paid is subject to our interpretation of applicable tax laws in the jurisdictions in which we file. We are subject to continuous examinations of our income tax returns by the Internal Revenue Service and other tax authorities. We regularly assess the likelihood of adverse outcomes resulting from these examinations to determine the adequacy of our provision for income taxes. While we believe that we have complied with all applicable tax laws, there can be no assurance that a governing tax authority will not have a different interpretation of the law and assess us with additional taxes. Should we be assessed with additional taxes, there could be a material and adverse effect on our results of operations or financial condition. CHANGES IN REGULATIONS OR CRITICAL ACCOUNTING POLICIES COULD MATERIALLY AND ADVERSELY AFFECT US. New laws, regulations or standards related to the Company or our products, and new accounting pronouncements, could be implemented or changed in a manner that could adversely affect our business, results of operations or financial condition. In particular, the FASB recently enacted SFAS 123 (R) which requires compensation costs related to share-based payment transactions to be recognized in the financial statements. We believe that SFAS 123(R) Page 19 will have a significant adverse effect on our reported financial results and may impact the way in which we conduct our business. The Company may be eligible for several tax benefits provided for under the American Jobs Creation Act of 2004, which was signed into law on October 22, 2004. The potential tax benefits include a temporary 85% foreign dividends received deduction for certain dividends received from controlled foreign corporations. There are several statutory requirements, which must be met if the Company determines that the 85% dividends received deduction is advantageous. However, if the Company does not appropriately comply with the statutory requirements then the 85% foreign dividends received deduction could be forfeited resulting in a potentially adverse affect on the results of operations. WE MAY PERFORM MORE FIXED PRICE SERVICES CONTRACTS. A trend has emerged and is continuing among customers in our market towards demanding consulting and implementation services on a fixed-price basis, whereby the Company agrees to deliver the contract requirements for a fixed fee regardless of the number of person-hours actually provided, as opposed to our traditional services arrangements where we deliver services on a time-and-materials basis. In cases where services are provided either for the future delivery of functionality or on a fixed price basis and our standard software is licensed at the same time, and if the services are essential to the overall solution desired by the customer or if the Company cannot determine the fair value of the services being delivered, then the Company may not be able to recognize the software license revenue from such transactions at the time the agreements are signed, but rather may be required to recognize such license revenue under the contract method of accounting, or to recognize a greater portion (or all) of the revenue from these transactions as services revenue. This would likely result in a postponement of recognition of, or even a reduction in, software license revenues, and have an adverse affect on the results of our operations. WE MAY BE UNABLE TO EFFECTIVELY PROTECT OUR INTELLECTUAL PROPERTY. Our success is dependent upon our proprietary technology. We currently have two U.S. patents (and other corresponding patents or applications pending in various foreign countries), and we protect our technology primarily through copyrights, trademarks, trade secrets and employee and third-party nondisclosure agreements. Our software products are sometimes licensed to customers under "shrink-wrap" or "click- wrap" licenses included as part of the product packaging or acknowledged by customers who register online. Although, in larger sales, our shrink-wrap and click-wrap licenses may be accompanied by specifically negotiated agreements signed by the licensee, in many cases our shrink-wrap and click-wrap licenses are not negotiated with or signed by individual licensees. Certain provisions of our shrink-wrap and click-wrap licenses, including provisions protecting against unauthorized use, copying, transfer and disclosure of the licensed program, and limitations or liabilities and exclusions of remedies, may be unenforceable under the laws of certain jurisdictions. In addition, the laws of some foreign countries do not protect our proprietary rights to the same extent as do the laws of the U.S. Finally, we sell our products through distributors and resellers, and are therefore dependent on those companies to take appropriate steps to adequately implement our contractual protections and to enforce and protect our rights. We cannot give any assurance that the steps that we have taken to protect our proprietary rights will be adequate to prevent misappropriation of our technology or development by others of similar technology. Although we believe that our products and technology do not infringe on any valid claim of any patent or any other proprietary rights of others, we cannot give any assurance that third parties will not assert infringement claims in the future. Litigation may be necessary to enforce our intellectual property rights, to protect our trade secrets, to determine the validity and scope of the proprietary rights of others, or to defend against claims of infringement or invalidity. Such litigation could result in substantial costs and diversion of resources, could result in the deterioration or outright loss of our patent rights, copyrights or other intellectual property, and could potentially have a material adverse affect on our operating results and financial condition. LOSS OF THE SERVICES OF ONE OR MORE OF OUR KEY EXECUTIVE OFFICERS OR INABILITY TO RECRUIT NEEDED SALES, SERVICES AND TECHNICAL PERSONNEL COULD ADVERSELY AFFECT OUR BUSINESS. We are highly dependent on certain key executive officers, technical and sales employees, and the loss of one or more of such employees could have an adverse impact on our future operations. We do not have Page 20 employment contracts with any personnel, and we do not maintain any so-called "key person" life insurance policies on any personnel. We continue to hire additional sales, services and technical personnel. Competition for hiring of such personnel in the software industry is intense, and from time to time we may experience difficulty in locating candidates with the appropriate qualifications within the desired geographic locations, or with certain industry specific expertise. There can be no assurance that we will be able to retain our existing personnel or attract additional qualified employees. WE ARE EXPOSED TO FLUCTUATIONS IN THE MARKET VALUES OF OUR PORTFOLIO INVESTMENTS AND IN INTEREST RATES. We invest a significant portion of our cash in marketable securities. These securities are classified as available-for-sale and are recorded at fair value on the Consolidated Balance Sheet with unrealized gains or losses reported as a separate component of accumulated other comprehensive income (loss), net of tax. Economic downturns and other factors subject these securities to volatility in the market place. As a result, we may recognize the decline in fair value of these investments. OTHER RISKS The foregoing is not a complete description of all risks relevant to our future performance, and the foregoing should be read and understood together with and in the context of similar discussions which may be contained in the documents that we file with the SEC in the future. We undertake no obligation to release publicly any revision to the foregoing or any update to any forward-looking statements to reflect events or circumstances after the date of such statements or to reflect the occurrence of anticipated or unanticipated events. Page 21 ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK The Company's primary exposures to market risk are the effect of fluctuations in interest rates earned on its cash equivalents and marketable securities and exposures to foreign currency exchange rate fluctuations. At December 31, 2004, the Company held $114.7 million in cash equivalents and marketable securities consisting of taxable and tax exempt municipal securities. Interest rate movements affect the interest income we earn. The Company places its investments with high quality issuers and limits risk by purchasing only investment-grade securities. A hypothetical 10 percent increase in interest rates would not have a material impact on the fair market value of these instruments due to their short maturity. The Company develops its products in the United States and markets them in North America, Europe, Middle East and Africa, Australia, Asia Pacific and Latin America. As a result, our financial results could be affected by factors such as changes in foreign currency exchange rates or weak economic conditions in foreign markets. As of December 31 2004, the Company did not engage in foreign currency hedging activities. ITEM 4. CONTROLS AND PROCEDURES MRO Software carries out periodic evaluations, under the supervision of the Company's management, including our Chief Executive Officer and Chief Financial Officer, of the effectiveness of the design and operation of our disclosure controls and procedures pursuant to Exchange Act Rule 13a-15. Based upon such evaluations, the Chief Executive Officer and the Chief Financial Officer concluded that, as of December 31, 2004, our disclosure controls and procedures were effective to timely alert them to any material information relating to the Company (including its consolidated subsidiaries) that would be required to be included in our periodic filings with the Securities and Exchange Commission. While there have been no significant changes in the Company's internal controls or in other factors that could significantly affect internal controls subsequent to their evaluation, the Company is currently undergoing a comprehensive effort to comply with Section 404 of the Sarbanes-Oxley Act of 2002. Compliance is required for our fiscal year ended September 30, 2005. This effort includes documenting and testing of internal controls. To date, the Company has not identified any material weaknesses in its internal control as defined by the Public Company Accounting Oversight Board. The Company will continue with its efforts of compliance and will modify or improve its controls as needed. The matters noted herein have been discussed with the Company's Audit Committee. Page 22 PART II. OTHER INFORMATION ITEM 1. LEGAL PROCEEDINGS NONE ITEM 2. RECENT SALES OF UNREGISTERED SECURITIES, USE OF PROCEEDS FROM REGISTERED SECURITIES CHANGES IN SECURITIES NONE ITEM 3. DEFAULTS UPON SENIOR SECURITIES NONE ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS NONE ITEM 5. OTHER INFORMATION CERTIFICATION UNDER SARBANES-OXLEY ACT OUR CHIEF EXECUTIVE OFFICER AND CHIEF FINANCIAL OFFICER HAVE FURNISHED TO THE SEC THE CERTIFICATION WITH RESPECT TO THIS REPORT THAT IS REQUIRED BY SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002. ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K (a) Exhibits 3. Instruments Defining the Rights of Security-Holders 3.1 Amended and Restated Articles of Organization of the Company (included as Exhibit 3.3 to the Company's Registration Statement on Form S-1, Registration No. 33-76420, and incorporated herein by reference) 3.2 Restated By-Laws of the Company, as amended (included as Exhibit 3.2 to the Company's Annual Report on Form 10-K for the fiscal year ended September 30, 1996, File No. 0-23852, and incorporated herein by reference) 3.3 Amendment to By-Laws adopted on February 1, 2001 (included as Exhibit 3.3 to the Company's Current Report on Form 10-Q for the quarter ended March 31, 2001, File No. 0-23852 and incorporated herein by reference) 3.4 Form of Certificate of Designation of Series A Junior Participating Preferred Stock of MRO Software, Inc. (which is attached as Exhibit A to the Rights Agreement included as Exhibit 4 (b) to the Company's Current Report on Form 8-K dated February 2, 1998, File No. 0-23852, and incorporated herein by reference) 3.5 Amendment to Articles of Organization adopted on December 15, 1999 (included as Exhibit 3.4 to the Company's Form 10-Q for the quarter ended December 31, 1999, File No. 0-23852, and incorporated herein by reference) 3.6 Amendment to Articles of Organization, dated March 6, 2001 (included as Exhibit 3.4 to the Company's Current Report on Form 8-K dated March 9, 2001, File No. 0-23852, and incorporated herein by reference) Page 23 3.7 Nonstatutory Stock Option Agreement Form (included as Exhibit 3.7 to the Company's Annual Report on Form 10-K for the fiscal year ended September 30, 2004, File No. 0-23852, and incorporated herein by reference) 3.8 Stock Option Agreement Form for Employees (included as Exhibit 3.8 to the Company's Annual Report on Form 10-K for the fiscal year ended September 30, 2004, File No. 0-23852, and incorporated herein by reference) 4. Instruments Defining the Rights of Security Holders, Including Indentures 4.1 Specimen certificate for the Common Stock, $.01 par value, of the Company (included as Exhibit 4.1 to the Company's Current Report on Form 10-Q for the quarter ended December 31, 2001, File No. 0-23852 and incorporated herein by references) 4.2 Article 4B of the Amended and Restated Articles of Organization of the Company (included as Exhibit 4.1 to the Company's Registration Statement on Form S-1, Registration No. 33-76420, and incorporated herein by reference) 4.3 Rights Agreement dated as of January 27, 1998, between the Company and BankBoston, N.A. as Rights Agent (included as Exhibit 4 (a) to the Company's Current Report on Form 8-K dated February 2, 1998, File No. 0-23852, and incorporated herein by reference) 4.4 Form of Certificate of Designation of Series A Junior Participating Preferred Stock of the Company (included as Exhibit 4 (b) to the Company's Current report on Form 8-K dated February 2, 1998, File No. 0-23852, and incorporated herein by reference) 4.5 Form of Rights Certificate (included as Exhibit 4 (c) to the Company's Current Report on Form 8-K dated February 2, 1998, File No. 0-23852, and incorporated herein by reference) 9. Voting Trust Agreements 9.1 Shareholders Agreement between Robert L. Daniels and Susan H. Daniels dated August 1, 2001 (included as Exhibit 9.1 to the Company's Annual Report on Form 10-K for the fiscal year ended September 30, 2001 File No. 0-23852, and incorporated herein by reference) 10. Material Contracts 10.1 MRO Software, Inc., & Subsidiaries Executive Bonus Plan Fiscal Year Ended September 30, 2005 10.2 Contract of Employment Incorporating Statutory Terms and Conditions of Employment As Required by Section 1(1) Employment Rights Act 1996 31. Rule 13a-14(a)/15(d)-14(a) Certifications 31.1 Certification of Chief Executive Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 31.2 Certification of Chief Financial Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 32. Section 1350 Certifications 32.1 Certification of Chief Executive Officer and Chief Financial Officer Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. Page 24 (b) Reports on Form 8-K On January 20, 2005, the Company filed a current report on Form 8-K disclosing its results of operations for the quarter ended December 31, 2004. The Company will furnish a copy of any exhibit listed to requesting stockholders upon payment of the Company's reasonable expense in furnishing those materials. Page 25 SIGNATURES Pursuant to the requirements 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. MRO SOFTWARE, INC. Date: February 9, 2005 By: /s/ Peter J. Rice ------------------------------------ Peter J. Rice Executive Vice President - Finance and Administration, Chief Financial Officer and Treasurer (Principal Financial Officer) Page 26 EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION PAGE - ------- ----------- ---- 3.1 Amended and Restated Articles of Organization of the Company (included as Exhibit 3.3 to the Company's Registration Statement on Form S-1, Registration No. 33-76420, and incorporated herein by reference) 3.2 Restated By-Laws of the Company, as amended (included as Exhibit 3.2 to the Company's Annual Report on Form 10-K for the fiscal year ended September 30, 1996 File No. 0-23852 and incorporated herein by reference) 3.3 Amendment to By-Laws adopted on February 1, 2001 (included as Exhibit3.3to the Company's Current Report on Form 10-Q for the quarter ended March 31, 2001, File No. 0-23852 and incorporated herein by reference) 3.4 Form of Certificate of Designation of Series A Junior Participating Preferred Stock of MRO Software, Inc. (which is attached as Exhibit A to the Rights Agreement included as Exhibit 4 (b) to the Company's Current Report on Form 8-K dated February 2, 1998, File No. 0-23852, and incorporated herein by reference) 3.5 Amendment to Articles of Organization adopted on December 15, 1999 (included as Exhibit 3.4 to the Company's Form 10-Q for the quarter ended December 31, 1999, File No. 0-23852, and incorporated herein by reference) 3.6 Amendment to Articles of Organization dated March 6, 2001 (included as Exhibit 3.4 to the Company's Current Report on Form 8-K dated March 9, 2001, File No. 0-23852, and incorporated herein by reference) 3.7 Nonstatutory Stock Option Agreement Form (included as Exhibit 3.7 to the Company's Annual Report on Form 10-K for the fiscal year ended September 30, 2004, File No. 0-23852, and incorporated herein by reference) 3.8 Stock Option Agreement Form for Employees (included as Exhibit 3.8 to the Company's Annual Report on Form 10-K for the fiscal year ended September 30, 2004, File No. 0-23852, and incorporated herein by reference) 4.1 Specimen certificate for the Common Stock, $.01, of the Company (included as Exhibit 4.1 to the Company's Current Report on Form 10-Q for the quarter ended December 31, 2001, File No. 0-23852 and incorporated herein by reference) 4.2 Article 4B of the Amended and Restated Articles of Organization of the Company (included as Exhibit 4.1 to the Company's Registration Statement on Form S-1, Registration No. 33-76420, and incorporated herein by reference) 4.3 Rights Agreement dated as of January 27, 1998, between the Company and BankBoston, N.A. as Rights Agent (included as Exhibit 4 (a) to the Company's Current Report on Form 8-K dated February 2, 1998, File No.0-23852, and incorporated herein by reference) 4.4 Form of Certificate of Designation of Series A Junior Participating Preferred Stock of MRO Software, Inc. (included as Exhibit 4 (b) to the Company's Current Report on Form 8-K dated February 2, 1998, File No. 0-23852, and incorporated herein by reference) 4.5 Form of Rights Certificate (included as Exhibit 4 (c) to the Company's Current Report on Form 8-K dated February 2, 1998, File No. 0-23852, and incorporated herein by reference) 9.1 Shareholders Agreement between Robert L. Daniels and Susan H. Daniels dated August 1, 2001 (included as Exhibit 9.1 to the Company's Annual Report on Form 10-K for the fiscal year ended September 30, 2001 File No. 0-23852, and incorporated herein by reference) 10.1 MRO Software Inc., and Subsidiaries Executive Bonus Plan Fiscal Year Ended September 30, 2005 10.2 Contract of Employment Incorporating Statutory Terms and Conditions of Employment As Required by Section 1(1) Employment Rights Act 1996 31.1 Certification of Chief Executive Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 31.2 Certification of Chief Financial Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. 32.1 Certification of Chief Executive Officer and Chief Financial Officer Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
Page 27 EX-10.1 2 b53453msexv10w1.txt BONUS PLAN FISCAL YEAR ENDED SEPTEMBER 30, 2005 Exhibit 10.1 MRO SOFTWARE, INC. YEAR ENDED SEPTEMBER 30, 2005 EXECUTIVE BONUS PLAN 1. PURPOSE The purpose of the FY2005 Executive Bonus Plan ("Plan") is to provide key management employees of MRO Software, Inc. with an incentive to make significant and extraordinary contributions to the long-term performance and growth of the Company, to promote the common interest of the Company, its stockholders and key executives, and to attract and retain executives of exceptional ability. 2. ADMINISTRATION 2.1 The Plan shall be adopted and administered by the Compensation Committee of the Board of Directors of the Company (the "Committee"). The Committee will base all decisions and awards on quarterly and annual financial statements filed with the Securities and Exchange Commission. 2.2 The Committee shall have full and complete authority and discretion to make binding decisions on the administration of the Plan and shall adopt such rules and regulations and make all other determinations deemed by it necessary or desirable for the administration of the Plan. 2.3 The Committee and the Board of Directors of the Company shall have the authority to amend or terminate the Plan, provided, however, that if the Plan is amended or terminated, the Company shall be required to complete payment to each Participant of the amount which that Participant otherwise would have received based on the provisions set forth in paragraph 7.2. 3. DEFINITIONS 3.1 Plan Year means the fiscal year ended September 30, 2005. 3.2 Plan Quarter means each of the three-month periods ended December 31, 2004, March 31, 2005, June 30, 2005, and September 30, 2005. 3.3 Participant means any executive of the Company who is designated in Appendix I. 3.4 Permanent Disability, means a Participant's inability, as a result of illness, incapacity, disease or calamity to perform a substantial part of his primary job responsibilities as set forth in his employment contract or job description for any concurrent six month period. 3.5 Plan means this FY 2005 Executive Bonus Plan. 3.6 Except as otherwise indicated by the context, any masculine term used herein also shall include the feminine; the plural shall include the singular and the singular shall include the plural. 3.7 Company means MRO Software, Inc. and its subsidiaries included in its consolidated financial statements. 3.8 Earnings and EPS mean pro-forma earnings per share as disclosed by the Company, consisting of earnings per share determined under GAAP, adjusted for the amortization of goodwill and other intangibles on an after-tax basis in accordance with past practice of the Company. Earnings may also be adjusted to reflect such deductions and additions of extraordinary items and one-time expenses as may be approved by the Committee for purposes of administering this Plan. Earnings and EPS are calculated after giving effect to any bonus that is paid or proposed to be paid under this Plan. 3.9 Revenue means total revenues as disclosed in the consolidated quarterly financial statements of the Company. 4. ELIGIBILITY AND PARTICIPATION Executives eligible for bonuses under the Plan shall be those individuals specified in Appendix I. 5. BONUS MECHANISM 5.1 The amount of on-target bonus that is paid will be determined as follows: (a) Each participant is eligible to earn forty (40%) percent of the on-target bonus based on the achievement of quarterly goals and sixty (60%) percent based on the achievement of annual goals. The quarterly and annual Revenue and EPS goals are stated in Appendix II. (b) The percentage of the on-target bonus described in Appendix I earned by each Participant on achievement of the amounts stated in Appendix II in respect of each Plan Quarter is: (i) Q1 5% based on Revenue, 5% based on Earnings (ii) Q2 5% based on Revenue, 5% based on Earnings (iii) Q3 5% based on Revenue, 5% based on Earnings (iv) Q4 5% based on Revenue, 5% based on Earnings 40% in total In the event that the achievement for Revenue in any quarter is less than the amount stated in Appendix II for that quarter, but is equal to or greater than 97.5% of such amount, then a partial bonus shall be paid to each Participant. The partial bonus shall be equal to the actual amount of Revenue achieved for the quarter divided by the amount of the Revenue goal for the quarter as stated in Appendix II times the on-target bonus the participant would otherwise have earned for the Revenue component (i.e. 5% of total on-target bonus). Achievement for Earnings must be at 100% to be eligible for payout on that component. No incremental bonus is payable to any participant for achievement above 100% in any quarter. (c) The percentage of the on-target bonus described in Appendix I earned by each Participant on achievement of the amounts stated in Appendix II in respect of year end performance is: (i) 24% based on revenue (ii) 36% based on earnings 60% in total As stated in Appendix II, there is a minimum, target and maximum achievement level for payout based on annual performance, for both the Revenue and the Earnings component, subject to the following: (i) No annual bonus payments will be made for either component if the minimum Earnings number is not achieved (for fiscal 2005 this is .55); and (ii) Actual payment for performance between minimum, target and maximum achievement will be prorated accordingly. 6. PAYMENT OF BONUSES Funded bonus will be payable (and restricted stock issued) not later than sixty days after the end of the period in which the bonus was earned provided that the results for the period have been issued to the public. The foregoing notwithstanding, if a participant's employment by the Company is terminated for any reason prior to the actual issuance of stock, the Company may in its discretion elect to make such payment in cash in lieu of stock. All shares of Company stock issued hereunder shall be issued pursuant and subject to the terms and conditions of the Company's Amended and Restated 1999 Equity Incentive Plan. 7. TERMINATION OF EMPLOYMENT If a Participant's employment by the Company is terminated, the participant's entitlement to payment under this Plan shall be as determined under the terms of the Company's Severance Pay Plan, as amended to and in effect as of the date of termination. 8. BENEFICIARY DESIGNATIONS 8.1 If a Participant's employment with the Company is terminated by his death or if he dies after termination of his employment but prior to the distribution to him of all amounts payable to him under the Plan, any amounts otherwise payable to him hereunder shall be distributed to his designated beneficiary or beneficiaries. For the purposes of this plan a Participant's beneficiary will be the beneficiary designated under Company provided life insurance coverage. However, a Participant may from time to time revoke or change any beneficiary designation on file with the Company. If there is no effective beneficiary designation on file with the Company at the time of a Participant's death, distribution of amounts otherwise payable to the deceased Participant under this Plan shall be made to the Participant's estate. If a beneficiary designated by the Participant to receive his benefits shall survive the Participant but die before receiving all distributions hereunder, the balance thereof shall be paid to such deceased beneficiary's estate, unless the deceased beneficiary designation provides otherwise. 8.2 The Company shall deduct from the distributions to be made to a Participant or his designated beneficiary or beneficiaries under this Plan any federal, state or local withholding or other taxes or charges which the Company is from time to time required to deduct under applicable law and all amounts distributable under this Plan are stated herein before any such deductions. The Company may rely on a written opinion from its legal counsel regarding any questions which may arise in connection with any such deductions. 9. RIGHTS, PRIVILEGES AND DUTIES OF PARTICIPATION 9.1 No participant or other person shall have any interest in any fund or in any specific asset or assets of the Company and its Subsidiaries by reason of being a Participant under this Plan nor any right to receive any distributions under the Plan except as and to the extent expressly provided in the Plan. 9.2 The Company shall have the right, but shall be under no obligation, to segregate cash to fund bonuses payable under the Plan. However, any such segregated amounts shall at all times remain Company assets, subject to the claims of its creditors. 9.3 Each Participant shall be entitled to receive a current copy of the Plan upon his designation as a Participant if a written request for a copy of the Plan is provided to the Chief Executive Officer or the Chairman of the Board. Thereafter, as long as he remains a Participant, he shall be entitled to receive copies of any amendments to the Plan within sixty (60) days after their adoption. 9.4 The designation of any employee as a Participant under this Plan shall not be construed as conferring upon such employee any right to remain in the employ of the Company and each such Participant shall remain an employee at will. The right of the Company to discipline or discharge an employee shall not be affected in any manner by reason of such employee's designation as a Participant under this Plan. 9.5 To the extent permitted by law, the right of any Participant or any beneficiary to receive any payment hereunder shall not be subject to alienation, transfer, sale, assignment, pledge, attachment, garnishment or encumbrance of any kind. Any attempt to alienate, transfer, sell, assign, pledge or otherwise encumber any such payment whether presently or thereafter payable, shall be void. Any payment due hereunder shall not in any manner be subject to any debts or liabilities of any Participant or his beneficiary. EX-10.2 3 b53453msexv10w2.txt EMPLOYMENT AGREEMENT RICHARD A CAHILL (MRO(TM) SOFTWARE LOGO) EXHIBIT 10.2 CONTRACT OF EMPLOYMENT INCORPORATING STATUTORY TERMS AND CONDITIONS OF EMPLOYMENT AS REQUIRED BY SECTION 1(1) EMPLOYMENT RIGHTS ACT 1996 EMPLOYER: MRO SOFTWARE, UK LTD OF BROOK HOUSE, 88 - 100 CHERTSEY ROAD, WOKING, SURREY, GU21 5BJ ("THE COMPANY") EMPLOYEE: RICHARD A. CAHILL 33 PRINCE CONSORT DRIVE ASCOT, BERKSHIRE, SL5-8AW UNITED KINGDOM ("THE EMPLOYEE") 1. JOB TITLE AND DUTIES You are employed as Executive Vice-President Worldwide Sales, reporting to Chip Drapeau, President and CEO. Your normal work duties will be specified in the job description which will be amended from time to time as applicable to your position. You agree to perform all acts, duties and obligations that are reasonably consistent with your position and to comply with all reasonable orders given to you by the Company. 2. SERVICE Your employment with the Company under this contract will commence on your first day of active employment with the Company. Your continuous employment with the Company will commence on the same date. 3. PLACE OF EMPLOYMENT 3.1 Your normal place of work will be the Company's premises at Brook House, 88 - 100 Chertsey Road, Woking, Surrey GU21 5JB. However, the Company reserves the right to require you to work at any other premises of the Company within a twenty mile radius of Woking. 3.2 In the performance of your duties, you will also be required to travel on a worldwide basis throughout and outside the UK to client sites and the premises of any Group Company. The employee has the right to refuse work in any country where the UK Foreign Office advises against all travel. Page 1 (MRO(TM) SOFTWARE LOGO) 4. NORMAL WORKING HOURS 4.1 The Company reserves the right to vary your normal working hours on reasonable prior notice to you. 4.2 You may be required to work such hours outside normal working hours as the Company considers necessary and is reasonable for you to discharge your duties and to meet the needs of the business and you shall not be paid for such further hours. 4.3 You consent to work more than an average of 48 hours per week in any relevant statutory reference period (currently 17 weeks) to the extent that in exceptional circumstances necessary for you to discharge your duties. You shall not withdraw the consent otherwise than by giving 3 months notice. 5. SALARY, INCENTIVE PAY, STOCK OPTIONS AND CAR ALLOWANCE 5.1.1 Your basic salary is L145,000 gross per annum payable in equal monthly instalments in arrears. In addition, as an Executive of the Company you are eligible to participate in the Executive Bonus Plan. This plan is based upon attainment of budgeted revenue and earnings. Under the plan, you are eligible to receive an on target annualized bonus equal to 100% of your base salary (L145,000) which will provide total annualized earnings at plan of L290,000. This plan will be reviewed on an annual basis and any changes notified to you. As discussed, we will work with you to include in your incentive plan an accelerator based on overachievement of license revenue. In addition to salary, we will provide to you a sign-on bonus of L10,000. This bonus will be paid upon the commencement of your employment. If within one year from your date of hire you voluntarily resign, or if you are terminated for cause, the sign-on bonus amount will be owed to MRO Software. This would include withholding any monies owed to you including salary, bonus or expenses. Please be aware that the bonus amount may be viewed as income and will be treated accordingly. We will recommend to the Compensation Committee of the Board of Directors that you be granted an incentive stock option of 100,000 shares of common stock of MRO Software at the fair market value on the date of the grant. Our options vest 25% one year from the date of grant and them monthly in equal increments over the Page 2 (MRO(TM) SOFTWARE LOGO) next thirty-six (36) months, and will be subject to the terms and conditions of the 1999 Equity Incentive Plan as amended. Additional grants may be given at the discretion of the Board and will be based on your performance and the total number of shares available for grants. 5.2 No payment is made in respect of any overtime worked. 5.3 Your salary will be subject to annual review. You will be advised in writing of any increase in your salary and such written advice will be deemed to be incorporated as an express term of this contract. Increases are not automatic and will be based upon individual merit and overall corporate performance. 5.4 Your car allowance is L1,250 per month and you will also be reimbursed for all business mileage plus personal mileage in the UK for a nominated main business car. 5.5 The Company will reimburse to you all reasonable out-of-pocket expenses necessarily incurred by you on its behalf. Full details of the Company policy on Travel and Entertainment expenses are set out in the Employee Handbook. 5.6 You agree that the Company is entitled to deduct from your basic salary or incentive pay at any time during your employment or upon the termination of your employment, however arising, any money you may owe to the Company, including but not limited to any outstanding loans, advances of salary or commission, including where anticipated commission figures are not achieved, relocation expenses, the costs of repairing any damage or loss to the Company's property caused by you, excess holiday pay and any other monies owed by you. You must reimburse the Company immediately for any amounts still outstanding after such deduction or deductions. 6. PENSION 6.1 You will be entitled to participate in a Group Personal Pension Scheme. The Company will make a maximum contribution of 3% of your basic salary provided that you make an equivalent contribution. You may make unlimited contributions up to Inland Revenue limits. A contracting out certificate is in force for this scheme and if you join you may chose to contract out or into the State Second Pension (SP2). Full details of the scheme are available from Human Resources. 6.2 The Company has also registered its stakeholder pension with the Occupational Pension Regulation Authority as required by the Welfare Reform and Pension Act 1999. The stakeholder pension is administered by Norwich Union. The payroll Page 3 (MRO(TM) SOFTWARE LOGO) deduction facilities have been put in place which will allow you to contribute to the stakeholder pension if and when you so wish. Full details of the scheme are available from Human Resources. 7. HEALTH CARE BENEFITS For the duration of your employment the Company will pay subscriptions to a private health care scheme for you. Full details of the scheme are available from Human Resources. The provision of this benefit is purely discretionary and the Company reserves the right to amend or withdraw the benefit at any time. 8. LIFE ASSURANCE The Company maintains a paid life assurance plan for all employees. Full details of the plan are available from Human Resources. The provision of this benefit is purely discretionary and the Company reserves the right to amend or withdraw the benefit at any time. 9. ANNUAL HOLIDAY ENTITLEMENT 9.1 You are entitled in addition to the normal statutory and public holidays to take 25 working days as holidays in each holiday year, which runs from 1st January to 31st December, and you will be paid your normal basic remuneration during such holidays. 9.2 5 days of annual holiday entitlement may be carried forward to the next holiday year but must be taken by 31st March of that year or your entitlement will lapse. You are not entitled to a cash payment in lieu of untaken holiday. 9.3 You are required to give two week's advance notice in writing to your Manager for each period of holiday you plan to take. Full details of the Holiday Regulations are given in the Employee Handbook. 9.4 On the start and termination of your employment you will be treated as having accrued holiday on a pro-rata basis for each complete month of service in the holiday year, calculated by reference to your first or last day of work as appropriate. Holiday entitlement accrues at the rate of 2 days per completed month. For the purpose of this calculation your employment ends on the day you cease to work and it is not extended by any statutory holiday, unused holiday entitlement, payment in lieu of notice or notice period not worked by agreement with the Company. 9.5 If, on the termination of your employment, you have holiday entitlement still owing the Company may require you to take some or all of this entitlement during any Page 4 (MRO(TM) SOFTWARE LOGO) notice period or pay you a sum in lieu of accrued holiday. Payment in lieu will be 1/260 of annual basic salary per working day. 9.6 If, on the termination of your employment, you have taken holiday entitlement in excess of your holiday entitlement as calculated under clause 9.4 above, you consent to the Company making a deduction from your final salary in respect of the excess holiday entitlement. The deduction will be 1/260 of annual basic salary per each excess holiday taken. 10. SICKNESS 10.1 You do not have the right to payment while absent from work through sickness or injury. However you may receive pay while off sick at the Company's discretion. In deciding whether to award you contractual sick pay, the Company will take into account factors such as your length of service, the nature of your illness and your previous performance. Qualification for contractual sick pay is also dependent on you complying with the notification provisions set out in the Company's Sickness Policy contained in the Employee Handbook. 10.2 If the Company exercises its discretion to pay you contractual sick pay, the contractual sick pay will be equal to your normal basic salary. 10.3 The maximum number of weeks' sickness in a calendar year for which contractual sick pay will be paid is as follows: LENGTH OF SERVICE First Six Months of Full Employment - Nil From 6 Months to 2 Years Full Employment - 4 Weeks From 2 years full employment to 6 years full employment - 12 weeks After 6 years full employment - 24 Weeks 10.4 Additional payments of contractual sick pay may be made at the Company's sole discretion. 10.5 Irrespective of whether you receive contractual sick pay, you will receive statutory sick pay where you qualify for it. Qualification for statutory sick pay is subject to the same notification provisions as for contractual sick pay. Where contractual sick Page 5 (MRO(TM) SOFTWARE LOGO) pay and statutory sick pay are payable for the same day of sickness you will receive the higher of the two sums. 10.6 The Company reserves the right to terminate your employment at any time during your absence from work even though at the time of giving notice you may be eligible to receive or continue to receive contractual sick pay. 10.7 In the event that you are incapable of attending work by reason of injuries sustained wholly or partly as a result of actionable negligence, nuisance or breach of any statutory duty on the part of any third party, all payments made to you by the Company whether of salary or contractual sick pay shall to the extent that compensation is recoverable from that third party constitute loans by the Company to you (notwithstanding that as an interim measure income tax has been deducted from the payments as if they were emoluments of employment) and shall be repaid when and to the extent that you recover compensation for loss of earnings from that third party by action or otherwise. 11. APPROVED ABSENCES 11.1 The Company's policies on maternity and parental leave, family emergencies and compassionate leave are contained in the Employee Handbook. 11.2 JURY SERVICE The Company encourages you to fulfil your civic responsibilities by serving as jurors and witnesses. If you are called for jury or witness duty you are given time off for as long as your services are needed. The Company will pay the difference between your jury duty pay and basic salary during your absence. Please notify your Manager immediately you receive the summons. 12. IT STANDARDS AND POLICIES 12.1 The Company aims to help you understand the proper and accepted use of IT-related tools and technologies. You consent to follow the Company's corporate IT Standards and Policies which form part of the Employee Handbook. 13. MONITORING EMPLOYEE COMMUNICATIONS 13.1 You consent to the Company monitoring all of your correspondence, e-mails and telephone calls generated or received in the work place. 13.2 Full details of the Company's policy on monitoring employee communications are contained in the Company's Data Protection and E-mail policies, which form part of the Employee Handbook. Page 6 (MRO(TM) SOFTWARE LOGO) 14. DATA PROTECTION 14.1 For the purposes of the Data Protection Act 1998 you consent to the Company or any Group Company holding and processing personal data relating to you for all purposes relating to your employment with the Company, including, but not limited to: - Administering and maintaining personnel records; - Paying and reviewing salary and other remuneration and benefits; - Providing and administering employee benefits including life assurance, permanent health insurance and pension scheme; - Undertaking performance appraisals and reviews; - Maintaining sickness and other absence records; - Maintaining disciplinary records; - Taking decisions as to your physical or mental fitness for work; - Taking disciplinary decisions; - Providing references and information to future employers; - Providing information, if necessary, to governmental and quasi governmental bodies for social security and other purposes, the Inland Revenue and the Contributions Agency; - Providing information to future purchasers of the Company or any Group Company. - Taking management decisions in relation to reorganisation/restructuring of the Company or any Group Company. 14.2 Some of the personal data held or processed may fall within the definition of "sensitive " personal data for the purposes of the Data Protection Act 1998. This is personal data relating to your ethnic or racial origin; political opinions, religious or similar beliefs; Trade Union membership; physical or mental health and sex life. The Company will not hold or process such data unless relevant and necessary in the circumstances. You expressly consent to the Company or any Group Company holding or processing sensitive personal data relating to you. 14.3 You consent to the transfer of personal data relating to you to a country or territory outside of the European Economic Area. 14.4 The Company's Data Protection Policy is contained in the Employee Handbook. 15. HEALTH AND SAFETY 15.1 In accordance with the Company's policy statement issued under the provisions of the Health and Safety at Work etc Act 1974, all members of staff are expected to have regard to the requirements of the Act while they are at work by taking reasonable care for the health and safety of themselves and of other persons who may be affected by their acts or omissions and by co-operating with the Company so far as is necessary to Page 7 (MRO(TM) SOFTWARE LOGO) enable it to perform or comply with any duty laid upon it by the Act or otherwise to fulfil its responsibilities adequately. 15.2 The Company's Health and Safety Policy is contained in the Employee Handbook. Any breach of the policy may result in disciplinary action being taken against you. 16. EQUAL OPPORTUNITIES 16.1 The Company is committed to being an equal opportunities employer and to the creation of an entirely non-discriminatory working environment. There shall be no discrimination on the grounds of an individual's nationality, sex, race, colour, ethnic or national origin, religion, sexual orientation, marital status or disability. The Company's Equal Opportunities Policy is contained in the Employee Handbook. Any breach of the policy may result in disciplinary action being taken against you. 17. DISCIPLINARY RULES 17.1 Full details of the Company's disciplinary procedures are set out in the Employee Handbook. 18. GRIEVANCE PROCEDURE 18.1 Full details of the Company's grievance procedures are set out in the Employee Handbook. 19 RESTRICTIONS DURING EMPLOYMENT 19.1 While you are employed by the Company, you may not, except with the Company's prior written consent, whether directly or indirectly, paid or unpaid be engaged or concerned in the conduct of any other actual or prospective business or profession or be or become an employee, agent, partner, consultant or director of any other company or firm or assist or have any financial interest in any other such business or profession save that nothing in this clause shall prevent you holding a shareholding of up to 5% in another company. 20. INVENTIONS 20.1. If at any time during your employment with the Company you (whether alone or with any other person or persons) make any invention which relates either directly or indirectly to the business of the Company or any Group Company, you shall promptly disclose to the Company and no-one else full details, including drawings and models, of such invention so that the Company may determine whether or not it is a Company Invention. Page 8 (MRO(TM) SOFTWARE LOGO) 20.2 If the invention is a Company Invention, you shall hold it in trust for the Company and, at the request and expense of the Company, shall do all things necessary or desirable to enable the Company or its nominees to obtain for itself the full benefit of and to secure patent or other appropriate forms of protection for the Company Invention throughout the world, including without limitation assistance in preparing all necessary specifications and drawings, and shall give both during and after the termination of your employment every assistance in your power to procure the grant of letters patent or the equivalent and their maintenance in force and their extension. 20.3 Decisions as to the patenting and exploitation of any Company Invention shall be at the sole discretion of the Company. 20.4 You hereby irrevocably appoint the Company to be your attorney in your name and on your behalf to execute documents, to use your name and to do all things which may be necessary or desirable for the Company to obtain for itself or its nominees the full benefit of the provisions of clause 20.3 and a certificate in writing, signed by any director or the Secretary of the Company, that any instrument or act which falls within the authority hereby conferred shall be conclusive evidence that such is the case as far as any third party is concerned. 21. COPYRIGHT 21.1 You shall promptly disclose to the Company and no-one else all copyright works or designs originated, conceived, written or made by you alone or with others (except only those works originated, conceived, written or made by you wholly outside your normal working hours and which are wholly unconnected with your employment) and shall hold them in trust for the Company until such rights shall be fully and absolutely vested in the Company. 21.2 You hereby assign to the Company, by way of future assignment, all copyright, design rights and other proprietary rights (if any) for the full terms thereof throughout the world in respect of all copyright works and designs originated, conceived, written or made by you (except only those works or designs originated, conceived, written or made by you wholly outside your normal working hours which are wholly unconnected with your employment during the period of your employment by the Company). 21.3 You hereby irrevocably and unconditionally waive in favour of the Company any and all moral rights conferred on you by Chapter IV of Part 1 of the Copyright Designs and Patents Act 1988 for any work in which copyright or design right is vested in the Company whether by clause 21.2. or otherwise. Page 9 (MRO(TM) SOFTWARE LOGO) 21.4 You shall, at the request and expense of the Company, do all things necessary or desirable to substantiate the rights of the Company under paragraph 21.2. and 21.3. 22. CONFIDENTIAL INFORMATION 22.1 For the purposes of clause 22, "CONFIDENTIAL INFORMATION" includes any information which may be imparted in confidence or be of a confidential nature relating to the business or prospective business or internal affairs of the Company or any Group Company and in particular any information relating to: - the marketing or sales or any products or services of the Company or any Group Company (including lists of customers' and suppliers' names, addresses and contacts, sales targets and statistics, market share and pricing statistics, marketing surveys, research and reports, incentive arrangements, current and future promotions, new product ranges, service and product information, contractual arrangements with customers and advertising and promotional material); - know-how; - trade secrets; - unpublished information relating to the intellectual property of the Company or any Group Company and any other commercial, financial or technical information relating to the business of the Company or any Group Company or to any customer or supplier, officer or employee of the Company or any Group Company or to any member or person interested in the share capital of the Company or any Group Company. 22.2 For the purposes of clause 22 "DOCUMENTS" means recorded information whether or not in documentary form containing or referring to Confidential Information. 22.3 You shall not either during your employment (other than in the proper course of your duties and for the benefit of the Company) or after your employment has ended for any reason whatsoever: (a) use, disclose or communicate to any person any Confidential Information which you shall have come to know or have received or obtained at any time (before or after the date of this Contract) by reason of or in connection with your service with the Company or any Group Company or its predecessors in business; or (b) copy or reproduce in any form or by or on any media or device or allow others access to or to copy or reproduce Documents containing or referring to Confidential Information. Page 10 (MRO(TM) SOFTWARE LOGO) 22.4 All Documents containing or referring to Confidential Information at any time in your control or possession shall at all times remain the absolute property of the Company and you undertake, both during your employment and afterwards: (a) to exercise due care and diligence to avoid any unauthorised publication, disclosure or use of Confidential Information and any Documents containing or referring to it; (b) to deliver up any Confidential Information (including all copies of all Documents whether or not lawfully made or obtained) or to delete Confidential Information from any re-usable medium; and (c) to do such things and sign such documents at the expense of the Company as shall be reasonably necessary to give effect to this clause and/or to provide evidence that it has been complied with. 22.5 The restrictions in clause 22: (a) will not restrict you from disclosing (but only to the proper recipient) any Confidential Information which you are required to disclose by law or any order of Court or any relevant regulatory body provided that you shall (unless required by law) have given prior written notice to the Company of the requirement and of the information to be disclosed and allowed the Company an opportunity to comment on the requirement before making the disclosure; and (b) will not apply to Confidential Information which is or which comes into the public domain otherwise than as a result of an unauthorised disclosure by you or any other person who owes the Company an obligation of confidentiality in relation to the information disclosed. 22.6 You agree that the restrictions set out in clause 22 are without prejudice to any other duties of confidentiality owed to the Company whether express or implied and are to survive the termination of your employment. Page 11 (MRO(TM) SOFTWARE LOGO) 23. NOTICE AND TERMINATION OF EMPLOYMENT 23.1 Your employment may be terminated: (a) By you on giving the Company not less than 3 month's written notice of termination; (b) By the Company giving you not less than 3 months written notice of termination. (c) The Company reserves the right to terminate your employment without any notice or payment in lieu of notice if you are guilty of gross misconduct (as defined in the Company's Disciplinary Procedures contained in the Employee Handbook) or other serious breach of this contract of employment. (d) The Company in any event reserves the right to pay basic salary in lieu of any notice of termination of employment which it is required to give under this contract. (e) If termination occurs, for whatever reason and by whichever side, no guaranteed commission payments will be made after notice of termination has been given. 23.2 If Executive terminates his employment for Good Reason, Executive shall be deemed to have been terminated by the Company other than for justifiable cause and shall be entitled to receive severance pay and benefits equal to current annual salary, benefits, plus the average of his bonuses from the Company with respect to the three preceding full fiscal years or such shorter number of full years as he may have worked for the Company. For purposes of this paragraph, "Good Reason" for termination by Executive of his employment shall be deemed to exist if (1) within two years after a Change in Control the Company, or any successor entity then employing the Executive, shall materially diminish the responsibilities and authority of the Executive, or reduce the rate of compensation of the Executive (including by way of change in the method of determining the eligibility of such Executive to earn bonus or incentive compensation), in either case as compared with his responsibilities and authority or rate of compensation, as the case may be, in effect immediately prior to such Change in Control, and (2) within thirty (30) days following such diminution or reduction the Executive shall resign from his employment by the Company or such successor entity. Page 12 (MRO(TM) SOFTWARE LOGO) 23.3 Where notice of termination is served (whether by the Company or by you) the Company shall be entitled in its discretion to require you to take 'garden leave' for all or part of your remaining period of employment. During a period of garden leave the Company is under no obligation to supply work to you. You will continue your duties of good faith and fidelity. You may not, however, undertake employment with a different employer during a period of garden leave. If you are asked to take garden leave the Company may: (a) impose conditions on you in relation to contacting employees, customers or suppliers of the Company and in relation to attending at or remaining away from the place or places of business of the Company during all of any part of the unexpired period of the notice; (b) assign you to specific projects or to other duties which may differ from those normally carried out by you; or (c) withdraw any duties or responsibilities assigned to you. (d) require you to return to the Company all property in your possession or control belonging to the Company. 24. OBLIGATIONS ON TERMINATION Upon termination of your employment for any reason whatever you must immediately return to the Company all of the Company's property or any Group Company's property under your possession or under your control including (but not limited to you) all documents (including, but not limited to, correspondence, lists of clients or customers, plans, drawings, accounts and other documents of whatsoever nature and all copies thereof, whether on paper, computer memory or otherwise) made or compiled or acquired by you during your employment with the Company and concerning the business, finances or affairs of the Company or its clients or any Group Company or its Clients. You must also return to the Company all office keys, credit cards, and any other property whatsoever of the Company or any Group Company. 25. RESTRICTIONS AFTER EMPLOYMENT 25.1 You shall not for a period of 6 months from the Termination Date either on your own behalf or on behalf of any person, firm or company in relation to the business activities of the Company or any Group Company in which you have been directly or indirectly engaged or involved, approach, offer goods or services to or entice away from the Company or any Group Company any person, firm or company who at the Termination Date (or at any time during the 12 months prior to that date) was Page 13 (MRO(TM) SOFTWARE LOGO) a client, customer, supplier, agent or distributor of the Company or any Group Company and with whom you (or any other person on your behalf or under your instruction) have been actively engaged or involved by virtue of your duties under this contract provided that nothing contained in this clause shall prohibit you from carrying out any activities which are not in competition with any part of the business of the Company with which you were involved in the 12 months prior to the Termination Date. 25.2 You shall not for a period of 6 months from the Termination Date either on your own behalf or on behalf of any person, firm or company in relation to the business activities of the Company or any Group Company in which you have been directly or indirectly engaged or involved, deal with or accept custom from any person, firm or company who at the Termination Date (or at any time during the 12 months prior to that date) was a client, customer, supplier, agent or distributor of the Company or any Group Company with whom you (or any other person on your behalf or under your instruction) have been actively engaged or involved by virtue of your duties under this contract provided that nothing contained in this clause shall prohibit you from carrying out any activities which are not in competition with any part of the business of the Company or any Group Company with which you were involved in the 12 months prior to the Termination Date. 25.3 You shall not for a period of 6 months from the Termination Date either on your own behalf or on behalf of any person, firm or company in relation to the business activities of the Company or any Group Company in which you have been directly or indirectly engaged or involved, approach, solicit, or endeavour to entice away from the Company or any Group Company any person who, at the Termination Date (or at any time during 12 months prior to that date), is or was employed or engaged as a consultant or employed as a director or other senior employee with managerial responsibility by the Company or any Group Company, (in each case being a person with whom you or any other employee on your behalf or under your instruction has had dealings within a period of 12 months prior to the Termination Date) whether or not such person would commit any breach of his contract of employment or engagement by reason of so leaving the service of the Company or any Group Company or otherwise. 25.4 You shall not for a period of 6 months from the Termination Date either on your own behalf or on behalf of any person, firm or company in relation to the business activities of the Company or any Group Company in which you have been directly or indirectly engaged or involved, employ, offer employment to or procure the employment of any person who, at the Termination Date (or at any time during 12 months prior to that date), is or was employed or engaged as a consultant or employed as a director or other senior employee with managerial responsibility by the Company or any Group Company, (in each case being a person with whom you or any other employee on your behalf or under your instruction has had dealings within a period of 12 months prior to the Termination Date) whether or not such Page 14 (MRO(TM) SOFTWARE LOGO) person would commit any breach of his contract of employment or engagement by reason of so leaving the service of the Company or any Group Company or otherwise. 25.5 You acknowledge that during the course of your employment you are likely to have dealings with the clients, customers, suppliers and other contacts of the Company and Group Companies and you agree that each of the restrictions in clauses 25.1, 25.2, 25.3 and 25.4 is separate and distinct, is to be construed separately from the other restrictions, and is reasonable as regards its duration, extent and application for the protection of the legitimate business interests of the Company and any Group Companies. However, in the event that any such restriction shall be found to be void or unenforceable but would be valid or enforceable if some part or parts of it were deleted or the period of area of application reduced, you agree that such restriction shall apply with such modification(s) as may be necessary to make it valid and effective. 26. AMENDMENTS 26.1 The Company reserves the right to make reasonable changes to any of these terms and conditions of employment. You will be notified of minor changes of detail by way of a general notice to all employees and any such changes will take immediate effect. 26.2 You will be given not less than one month's written notice of any significant changes, which may be given by way of an individual notice or a general notice to all employees. Such changes will be deemed to be accepted unless you notify the Human Resources Department of any objection in writing before the expiry of the notice period. 27. GROUP COMPANY 27.1 For the purposes of this contract, "Group Company" means the Company's holding company and any subsidiary and associated companies of the holding company. DATED THE TENTH DAY OF JANUARY 2005. SIGNED FOR AND BEHALF OF MRO SOFTWARE, UK LTD: NAME: DATE: SIGNED BY THE EMPLOYEE: NAME: DATE: Page 15 EX-31.1 4 b53453msexv31w1.txt SECTION 302 CERTIFICATION CEO EXHIBIT 31.1 CERTIFICATION I, NORMAN E. DRAPEAU, JR., certify that: 1. I have reviewed this quarterly report on Form 10-Q of MRO Software, Inc., a Massachusetts Corporation; 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; and 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: February 9, 2005 By: /s/ Norman E. Drapeau, Jr. - ---------------------------------------- Norman E. Drapeau, Jr. President and Chief Executive Officer (Principal Executive Officer) EX-31.2 5 b53453msexv31w2.txt SECTION 302 CERTIFICATION OF CFO EXHIBIT 31.2 CERTIFICATION I, PETER J. RICE, certify that: 1. I have reviewed this quarterly report on Form 10-Q of MRO Software, Inc., a Massachusetts Corporation; 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; and 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: February 9, 2005 By: /s/ Peter J. Rice - -------------------------------------------------- Peter J. Rice Executive Vice President, Finance & Administration Chief Financial Officer and Treasurer (Principal Financial and Accounting Officer) EX-32.1 6 b53453msexv32w1.txt SECTION 906 CERTIFICATION OF CEO & CFO 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 Quarterly Report on Form 10-Q of MRO Software, Inc., (the "Company") for the quarter ended December 31, 2004, as filed with the Securities and Exchange Commission on the date hereof (the "Report"), each of the undersigned President & Chief Executive Officer, and Executive Vice President of Finance & Administration, CFO & Treasurer of the Company, certifies, to the best knowledge and belief of the signatory, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that: The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. /s/ Norman E. Drapeau, Jr. /s/ Peter J. Rice - ------------------------------------- ---------------------------------------- Norman E. Drapeau, Jr. Peter J. Rice President & Chief Executive Officer Executive Vice President, Finance & Date: February 9, 2005 Administration, CFO & Treasurer Date: February 9, 2005 -----END PRIVACY-ENHANCED MESSAGE-----