Back to GetFilings.com
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 10-Q
| |
|
|
|
þ
|
|
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934 |
| |
| |
|
For the quarterly period ended March 31, 2005 |
| |
|
o
|
|
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934 |
| |
|
For the transition period
from to |
Commission File Number 000-26521
ASK JEEVES, INC.
(Exact name of registrant as specified in its charter)
| |
|
|
|
Delaware
|
|
94-3334199 |
(State or other jurisdiction of
Incorporation or organization) |
|
(IRS Employer
Identification No.) |
555 12th Street, Suite 500, Oakland, CA 94607-4046
(Address of principal executive offices, including zip
code)
(510) 985-7400
(Registrants 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 þ No o
Indicate by check mark whether the registrant is an accelerated
filer (as defined in Rule 12b-2 of the Exchange
Act). Yes þ No o
The number of shares outstanding (excluding treasury shares) of
the registrants Common Stock as of May 2, 2005 was
59,151,387.
The Exhibit Index begins on page 54.
ASK JEEVES, INC.
TABLE OF CONTENTS
1
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
In addition to historical information, this Quarterly Report on
Form 10-Q contains forward-looking statements within the
meaning of Section 27A of the Securities Act and
Section 21E of the Exchange Act. Forward-looking statements
are those that predict or describe future events or trends and
that do not relate solely to historical matters. You can
generally identify forward-looking statements as statements
containing the words believe, expect,
will, anticipate, intend,
estimate, project, assume or
other similar expressions, although not all forward-looking
statements contain these identifying words. Our forward-looking
statements in this report include those relating to our expected
establishment of additional European sites; our planned
investments in marketing and in developing new features for our
search sites, portals and Fun Web Products; our planned research
and development expenditures to improve our Teoma algorithm and
computer infrastructure; our planned expansion of
AJinteractives delivery, billing and tracking systems; our
expectations regarding monetization; and our proposed
acquisition by IAC. All other statements in this report
regarding our future strategy, future operations, projected
financial position, estimated future revenues, anticipated
seasonality, projected costs, future prospects, and results that
might be obtained by pursuing managements current plans
and objectives are also forward looking statements. You should
not place undue reliance on our forward-looking statements
because the matters they describe are subject to known and
unknown risks, uncertainties and other unpredictable factors,
many of which are beyond our control. Our forward-looking
statements are based on the information currently available to
us and speak only as of the date on which this report was filed
with the SEC. We expressly disclaim any obligation to issue any
updates or revisions to our forward-looking statements, even if
subsequent events cause our expectations to change regarding the
matters discussed. Over time, our actual results, performance or
achievements will likely differ from the anticipated results,
performance or achievements that are expressed or implied by our
forward-looking statements, and such differences might be
significant and materially adverse to our stockholders. Many
important factors that could cause such a difference are
described in this Quarterly Report under the caption Risk
Factors as well as in our most recent Annual Report under
the captions Competition, Intellectual
Property Rights, Regulation of the Internet
and Risk Factors, all which you should review
carefully. Please consider our forward-looking statements in
light of those risks as you read this report.
PRELIMINARY NOTE REGARDING OUR TRADEMARKS
Our registered trademarks in the United States include Ask
Jeeves; the Ask! button design; Ask.com; Excite; the
Excite design; iWon; the iWon design;
the Jeeves design (a stylized depiction of our
butler logo); Teoma; the Teoma design (a stylized
depiction of the Teoma word trademark) and Search with
Authority (a phrase we use on the Teoma.com Web site). The
trademarks Ask Jeeves and the Jeeves
design are registered in Australia, Canada, China, the European
Community, France, Germany, Japan, Korea, Mexico, Norway, Spain,
and the United Kingdom. The trademarks Excite and the
Excite design are registered in Argentina, Chile,
Mexico and Venezuela. In addition, the trademark iWon is
registered in the European Community and the iWon
design is registered in Canada, Hong Kong, Japan, Mexico and
Singapore. This quarterly report also contains trademarks and
trade names of third parties.
2
PART I. FINANCIAL INFORMATION
|
|
| Item 1. |
Unaudited Condensed Consolidated Financial
Statements |
ASK JEEVES, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
| |
|
|
|
|
|
|
|
|
| |
|
March 31, | |
|
December 31, | |
| |
|
2005 | |
|
2004 | |
| |
|
| |
|
| |
| |
|
(Unaudited) | |
|
(Note 1) | |
| |
|
(In thousands, except share | |
| |
|
and per share data) | |
|
ASSETS |
|
Current assets:
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents
|
|
$ |
64,777 |
|
|
$ |
80,452 |
|
|
Marketable securities
|
|
|
45,102 |
|
|
|
29,250 |
|
| |
|
|
|
|
|
|
|
Total cash, cash equivalents and marketable securities
|
|
|
109,879 |
|
|
|
109,702 |
|
|
Accounts receivable, net
|
|
|
54,444 |
|
|
|
44,911 |
|
|
Prepaid expenses and other current assets
|
|
|
12,088 |
|
|
|
8,535 |
|
| |
|
|
|
|
|
|
|
Total current assets
|
|
|
176,411 |
|
|
|
163,148 |
|
|
Property and equipment, net
|
|
|
33,751 |
|
|
|
22,761 |
|
|
Goodwill
|
|
|
264,898 |
|
|
|
264,898 |
|
|
Intangible assets, net
|
|
|
90,824 |
|
|
|
87,887 |
|
|
Deferred tax asset, net
|
|
|
295 |
|
|
|
295 |
|
|
Other long-term assets, net
|
|
|
5,309 |
|
|
|
5,420 |
|
| |
|
|
|
|
|
|
|
Total assets
|
|
$ |
571,488 |
|
|
$ |
544,409 |
|
| |
|
|
|
|
|
|
| |
|
LIABILITIES AND STOCKHOLDERS EQUITY |
|
Current liabilities:
|
|
|
|
|
|
|
|
|
|
Accounts payable and other accrued liabilities
|
|
$ |
47,729 |
|
|
$ |
38,566 |
|
|
Accrued compensation and related expenses
|
|
|
7,173 |
|
|
|
8,245 |
|
|
Accrued restructuring costs
|
|
|
195 |
|
|
|
383 |
|
|
Deferred revenue
|
|
|
1,782 |
|
|
|
2,583 |
|
|
Current portion of capital lease obligation
|
|
|
661 |
|
|
|
710 |
|
| |
|
|
|
|
|
|
|
Total current liabilities
|
|
|
57,540 |
|
|
|
50,487 |
|
|
Convertible subordinated notes
|
|
|
115,000 |
|
|
|
115,000 |
|
|
Capital lease obligations, less current portion
|
|
|
326 |
|
|
|
460 |
|
|
Other liabilities
|
|
|
326 |
|
|
|
326 |
|
| |
|
|
|
|
|
|
|
Total liabilities
|
|
|
173,192 |
|
|
|
166,273 |
|
|
Commitments and contingencies
|
|
|
|
|
|
|
|
|
|
Stockholders equity:
|
|
|
|
|
|
|
|
|
|
Convertible preferred stock, $.001 par value;
5,000,000 shares authorized; no shares issued or outstanding
|
|
|
|
|
|
|
|
|
|
Common stock, $.001 par value: 150,000,000 shares
authorized 59,004,788 and 54,480,762 shares issued and
outstanding at March 31, 2005 and December 31, 2004,
respectively
|
|
|
997,295 |
|
|
|
994,971 |
|
|
Deferred stock compensation
|
|
|
(3,392 |
) |
|
|
(3,722 |
) |
|
Accumulated deficit
|
|
|
(599,384 |
) |
|
|
(617,525 |
) |
|
Accumulated other comprehensive income
|
|
|
3,777 |
|
|
|
4,412 |
|
| |
|
|
|
|
|
|
|
Total stockholders equity
|
|
|
398,296 |
|
|
|
378,136 |
|
| |
|
|
|
|
|
|
|
Total liabilities and stockholders equity
|
|
$ |
571,488 |
|
|
$ |
544,409 |
|
| |
|
|
|
|
|
|
See accompanying notes to condensed consolidated financial
statements.
3
ASK JEEVES, INC.
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
| |
|
|
|
|
|
|
|
|
| |
|
Three Months Ended | |
| |
|
| |
| |
|
March 31, | |
|
March 31, | |
| |
|
2005 | |
|
2004 | |
| |
|
| |
|
| |
| |
|
(Unaudited) | |
| |
|
(In thousands, except share and | |
| |
|
per share data) | |
|
Revenues
|
|
$ |
94,861 |
|
|
$ |
39,229 |
|
|
Cost of revenues
|
|
|
29,709 |
|
|
|
6,070 |
|
| |
|
|
|
|
|
|
|
Gross profit
|
|
|
65,152 |
|
|
|
33,159 |
|
|
Operating expenses:
|
|
|
|
|
|
|
|
|
|
Product development
|
|
|
8,625 |
|
|
|
4,753 |
|
|
Sales and marketing
|
|
|
26,256 |
|
|
|
9,164 |
|
|
General and administrative
|
|
|
8,968 |
|
|
|
5,344 |
|
|
Amortization of intangible assets
|
|
|
3,329 |
|
|
|
|
|
| |
|
|
|
|
|
|
|
Total operating expenses
|
|
|
47,178 |
|
|
|
19,261 |
|
| |
|
|
|
|
|
|
|
Operating income
|
|
|
17,974 |
|
|
|
13,898 |
|
|
Interest income, net
|
|
|
347 |
|
|
|
442 |
|
|
Interest expense
|
|
|
(47 |
) |
|
|
(3 |
) |
|
Other income, net
|
|
|
396 |
|
|
|
142 |
|
| |
|
|
|
|
|
|
|
Income before income tax provision
|
|
|
18,670 |
|
|
|
14,479 |
|
|
Income tax provision
|
|
|
529 |
|
|
|
1,100 |
|
| |
|
|
|
|
|
|
|
Net income
|
|
$ |
18,141 |
|
|
$ |
13,379 |
|
| |
|
|
|
|
|
|
|
Earnings per share Basic
|
|
|
|
|
|
|
|
|
|
Net income per share
|
|
$ |
0.31 |
|
|
$ |
0.29 |
|
| |
|
|
|
|
|
|
|
Weighted average shares outstanding used in computing basic net
income per share
|
|
|
58,784,772 |
|
|
|
46,885,863 |
|
| |
|
|
|
|
|
|
|
Earnings per share Diluted
|
|
|
|
|
|
|
|
|
|
Net income per share
|
|
$ |
0.26 |
|
|
$ |
0.23 |
|
| |
|
|
|
|
|
|
|
Weighted average shares outstanding used in computing diluted
net income per share
|
|
|
69,119,378 |
|
|
|
59,370,727 |
|
| |
|
|
|
|
|
|
|
Revenues from related parties
|
|
$ |
|
|
|
$ |
1,131 |
|
| |
|
|
|
|
|
|
See accompanying notes to condensed consolidated financial
statements.
4
ASK JEEVES, INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
| |
|
|
|
|
|
|
|
|
| |
|
Three Months Ended | |
| |
|
March 31, | |
| |
|
| |
| |
|
2005 | |
|
2004 | |
| |
|
| |
|
| |
| |
|
(Unaudited) | |
| |
|
(In thousands) | |
|
Operating activities
|
|
|
|
|
|
|
|
|
|
Net income
|
|
$ |
18,141 |
|
|
$ |
13,379 |
|
|
Adjustment to reconcile net income to net cash provided by
operating activities:
|
|
|
|
|
|
|
|
|
|
Depreciation and amortization
|
|
|
3,210 |
|
|
|
1,732 |
|
|
Stock compensation
|
|
|
421 |
|
|
|
191 |
|
|
Amortization of other assets
|
|
|
7,241 |
|
|
|
464 |
|
|
Income tax benefit from stock option exercises
|
|
|
82 |
|
|
|
|
|
|
Changes in operating assets and liabilities:
|
|
|
|
|
|
|
|
|
|
Accounts receivable
|
|
|
(9,533 |
) |
|
|
(2,224 |
) |
|
Prepaid expenses and other assets
|
|
|
(3,620 |
) |
|
|
(2,127 |
) |
|
Accounts payable and other accrued liabilities
|
|
|
9,163 |
|
|
|
4,016 |
|
|
Accrued compensation and related expenses
|
|
|
(1,072 |
) |
|
|
(71 |
) |
|
Accrued restructuring costs
|
|
|
(188 |
) |
|
|
(188 |
) |
|
Deferred revenue
|
|
|
(801 |
) |
|
|
(1,220 |
) |
| |
|
|
|
|
|
|
|
Net cash provided by operating activities
|
|
|
23,044 |
|
|
|
13,952 |
|
|
Investing activities
|
|
|
|
|
|
|
|
|
|
Purchases of property and equipment
|
|
|
(14,200 |
) |
|
|
(5,186 |
) |
|
Purchases of marketable securities
|
|
|
(22,777 |
) |
|
|
(33,100 |
) |
|
Maturities of marketable securities
|
|
|
6,907 |
|
|
|
30,407 |
|
|
Redemption of marketable securities
|
|
|
(6 |
) |
|
|
20,749 |
|
|
Acquisitions of developed technology
|
|
|
(10,000 |
) |
|
|
|
|
| |
|
|
|
|
|
|
|
Net cash (used in) provided by investing activities
|
|
|
(40,076 |
) |
|
|
12,870 |
|
|
Financing activities
|
|
|
|
|
|
|
|
|
|
Issuance of common stock
|
|
|
2,151 |
|
|
|
3,536 |
|
|
Repayment of capital lease obligations
|
|
|
(183 |
) |
|
|
|
|
| |
|
|
|
|
|
|
|
Net cash provided by financing activities
|
|
|
1,968 |
|
|
|
3,536 |
|
|
Effect of exchange rate changes on cash and cash equivalents
|
|
|
(611 |
) |
|
|
668 |
|
| |
|
|
|
|
|
|
|
(Decrease) increase in cash and cash equivalents
|
|
|
(15,675 |
) |
|
|
31,026 |
|
|
Cash and cash equivalents at beginning of period
|
|
|
80,452 |
|
|
|
36,673 |
|
| |
|
|
|
|
|
|
|
Cash and cash equivalents at end of period
|
|
$ |
64,777 |
|
|
$ |
67,699 |
|
| |
|
|
|
|
|
|
See accompanying notes to condensed consolidated financial
statements.
5
ASK JEEVES, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
|
|
| 1. |
SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES |
The Company
Ask Jeeves, Inc. (Ask Jeeves or the
Company) provides information search and retrieval
services to users through a diverse portfolio of Web sites,
downloadable applications and distribution networks. On the
Companys Ask Jeeves brand sites Ask.com
in the U.S., Ask.co.uk in the U.K., es.Ask.com
in Spain and Ask.jp (a joint venture) in
Japan users submit queries and the Companys
algorithmic search engine, Teoma, responds by generating a list
of Web sites likely to offer the most authoritative content. The
Companys proprietary Web brands also include three
content-rich portals (Excite.com, iWon.com and
MyWay.com), a Web log, or blog, and RSS
aggregation service (Bloglines.com) and several other
search sites. The Company earns revenue primarily by displaying
paid listings and other advertisements on its proprietary sites;
and also generates advertising receipts by distributing ads and
search services across two networks of third-party Web sites:
the MaxOnline advertising network and the Ask Jeeves syndication
network. The Company pays fees to these network sites in order
to reach their users with its ads and services. The
Companys proprietary technologies include Teoma, natural
language processing software, portal technology and ad-serving
processes.
Ask Jeeves strategic goal is to become a leading provider
of differentiated search solutions to users, advertisers,
publishers and partners. The Company is pursuing this goal using
a multiple brand strategy.
On May 6, 2004, Ask Jeeves acquired Interactive Search
Holdings, Inc. (ISH), which became a wholly-owned
subsidiary of the Company. ISH operates several portals and
search sites and develops and distributes desktop applications.
See Note 3 Acquisitions.
On March 21, 2005 Ask Jeeves signed an agreement to be
acquired by IAC/InterActiveCorp (IAC). Under the
agreement, which is subject to approval by Ask Jeeves
stockholders and other customary conditions, Ask Jeeves will
merge with a newly formed subsidiary of IAC and Ask Jeeves
stockholders will receive 1.2668 shares of IAC common stock
for each share they hold of Ask Jeeves common stock at the time
of the merger. Ask Jeeves will survive the merger as a
wholly-owned subsidiary of IAC. The transaction is currently
expected to close late in the second quarter or early in the
third quarter. More information about the proposed merger will
be set forth in a combined proxy statement/prospectus that Ask
Jeeves will use to solicit stockholders approval. That
proxy statement/prospectus will be mailed to Ask Jeeves
stockholders prior to a special meeting of Ask Jeeves
stockholders at which stockholder approval of the merger will be
sought.
Basis of Presentation
The accompanying unaudited condensed consolidated financial
statements have been prepared in accordance with generally
accepted accounting principals for interim financial
information. Accordingly, they do not include all of the
information and footnotes required by generally accepted
accounting principles for complete financial statements. In the
opinion of management, all adjustments (consisting of normal
recurring adjustments and accruals) considered necessary for a
fair presentation have been included. Operating results for the
three months ended March 31, 2005 are not necessarily
indicative of the results that may be expected for the year
ended December 31, 2005 or for any other future period.
The condensed consolidated balance sheet at December 31,
2004 has been derived from the audited consolidated financial
statements at that date but does not include all of the
information and footnotes required by generally accepted
accounting principles for complete financial statements.
The accompanying unaudited condensed consolidated financial
statements include the accounts of the Company and its
wholly-owned subsidiaries. The investment in the Ask Jeeves
Japan joint venture in which the Company has significant
influence but does not have a controlling voting interest or a
majority interest in
6
ASK JEEVES, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
the assets, obligations or results of operations is accounted
for under the equity method. Investments in which the Company
does not have the ability to exert significant influence are
accounted for at cost. All significant intercompany transactions
and balances have been eliminated upon consolidation.
For further information, refer to the consolidated financial
statements and footnotes thereto included in the Companys
annual report on Form 10-K for the year ended
December 31, 2004.
Certain prior period balances have been reclassified to conform
to the current year presentation. The reclassifications did not
affect previously reported net income.
Use of Estimates
The preparation of financial statements in conformity with
accounting principles generally accepted in the United States
requires management to make estimates and assumptions that
affect the reported amounts of assets and liabilities at the
date of the financial statements and the reported amounts of
revenue and expenses during the reporting period. For the
Company, such estimates include but are not limited to revenue
recognition, allowances for doubtful accounts, legal
contingencies, accounting for income taxes, impairment of
goodwill, and impairment of long-lived assets. Actual results
could differ materially from those estimates.
Concentrations of
Revenue
During the three months ended March 31, 2005 and 2004, paid
listing revenues from one provider accounted for 74% and 69% of
revenues, respectively. This provider accounted for 47% and 38%
of gross accounts receivable as of March 31, 2005 and
December 31, 2004, respectively. The Companys paid
listing agreements with this provider are scheduled to terminate
on December 31, 2007, unless renewed by mutual agreement.
Net Income per Share
Basic net income per share is computed by dividing net income
for the period by the weighted average number of common shares
outstanding during the period. Diluted net income per share is
computed by dividing net income by the weighted average number
of common shares outstanding during the period, plus the
dilutive effect of outstanding stock options, warrants, and
convertible subordinated notes. Potentially dilutive securities
have been excluded from the computation of diluted net loss per
share as their effect is anti-dilutive.
Stock-Based
Compensation
The Company accounts for employee stock options using the
intrinsic value method and makes the required pro forma
disclosures as if the fair value method had been used.
Compensation expense based on the difference, if any, on the
measurement date (generally the date of grant), between the fair
value of the Companys stock and the exercise price of
options to purchase that stock is amortized over the vesting
period of the related option using the graded vesting method.
7
ASK JEEVES, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
Had compensation cost for the Companys stock-based
compensation plans been determined using the fair value at the
grant dates for awards under those plans calculated using the
Black Scholes valuation model, the Companys net income and
basic and diluted net income per share would have been decreased
to the pro forma amounts indicated below (in thousands, except
per share amounts):
| |
|
|
|
|
|
|
|
|
| |
|
Three Months Ended | |
| |
|
| |
| |
|
March 31, | |
|
March 31, | |
| |
|
2005 | |
|
2004 | |
| |
|
| |
|
| |
|
Net income, as reported
|
|
$ |
18,141 |
|
|
$ |
13,379 |
|
|
Add:
|
|
|
|
|
|
|
|
|
|
Stock compensation expense included in reported net income
|
|
|
330 |
|
|
|
|
|
|
Deduct:
|
|
|
|
|
|
|
|
|
|
Total stock-based employee compensation expense determined under
fair value based method for Employee Stock Purchase Plan
|
|
|
(191 |
) |
|
|
(139 |
) |
|
Total stock-based employee compensation expense determined under
fair value based method for stock options
|
|
|
(10,432 |
) |
|
|
(3,539 |
) |
| |
|
|
|
|
|
|
|
Net income, pro forma
|
|
$ |
7,848 |
|
|
$ |
9,701 |
|
| |
|
|
|
|
|
|
|
Net income per share:
|
|
|
|
|
|
|
|
|
|
Basic, as reported
|
|
$ |
0.31 |
|
|
$ |
0.29 |
|
|
Basic, pro forma
|
|
$ |
0.13 |
|
|
$ |
0.21 |
|
|
Diluted, as reported
|
|
$ |
0.26 |
|
|
$ |
0.23 |
|
|
Diluted, pro forma
|
|
$ |
0.11 |
|
|
$ |
0.16 |
|
|
|
| 2. |
COMMITMENTS AND CONTINGENCIES |
Legal Proceedings
From time to time, the Company is subject to legal proceedings
and claims in the ordinary course of business, including claims
of alleged infringement of patents, trademarks, copyrights and
other intellectual property rights, and a variety of claims
arising in connection with its services, such as claims alleging
defamation or invasion of privacy.
On October 25, 2001, a putative class action lawsuit
captioned Leonard Turroff, et al. v. Ask Jeeves,
Inc., et al. was filed against the Company and two of
the Companys officers and directors (collectively the
Individual Defendants) in the United States District
Court for the Southern District of New York. Also named as
defendants were Morgan Stanley & Co., Inc., FleetBoston
Robertson Stephens, Goldman Sachs & Co.,
U.S. Bancorp Piper Jaffray, and Dain Rauscher, Inc., the
underwriters of the Companys initial public offering, or
IPO. The complaint alleges violations of Section 11 of the
Securities Act of 1933 against all defendants, and violations of
Section 15 of the Securities Act against the Individual
Defendants in connection with the Companys IPO. An amended
complaint was filed on December 6, 2001, which includes the
same allegations in connection with Ask Jeeves second
public offering in March 2000. The complaints seek unspecified
damages on behalf of a purported class of purchasers of common
stock between June 30, 1999 and December 6, 2000. This
case is similar to, and has been coordinated with, over three
hundred other cases filed in the Southern District Court of New
York concerning the IPO market of the late 1990s. In June
2003, a proposed settlement of this litigation was structured
between the plaintiffs, the issuer defendants in the
consolidated actions, the issuer officers and directors named as
defendants, and the issuers insurance companies. On
June 24, 2003, a special committee of the Companys
board of directors approved the Companys participation in
this settlement and on July 9, 2003, the Individual
Defendants approved the settlement. In June 2004, the proposed
settlement was submitted to the court for preliminary approval.
The
8
ASK JEEVES, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
underwriter defendants formally objected to the settlement on
July 14, 2004. The plaintiffs and issuer defendants
separately filed replies to the underwriter defendants
objections on August 4, 2004. The court granted the
preliminary approval motion on February 15, 2005, subject
to certain modifications and directed the parties to report back
to the court regarding the modifications. If the parties are
able to agree upon the required modifications, and such
modifications are acceptable to the court, notice will be given
to all class members of the settlement, a fairness
hearing will be held and if the court determines that the
settlement is fair to the class members, the settlement will be
approved. If the settlement is ultimately approved by the court,
the Company expects that the costs and expenses of the
settlement will be paid by the Companys insurers, who will
be reimbursed by the Company up to the amount of the
Companys $1.0 million insurance retention.
Accordingly, the Company has accrued that amount on its
consolidated balance sheet. Any payments beyond that amount will
be made by the Companys insurance carriers up to the
limits of the relevant policies.
On July 29, 2003, Focus Interactive filed a legal action
against InfoSpace, Inc. in New York State court, Westchester
County captioned Focus Interactive, Inc. v. InfoSpace,
Inc., Index No. 03/11873 (Sup. Court Westchester County
New York) (NY Action) seeking a declaration as to
the respective rights and obligations of the parties under an
Internet Services Agreement (ISA) between Focus
Interactive and InfoSpace and seeking damages as a result of
InfoSpaces ISA-related demands. (The Company acquired
Focus Interactive, Inc., formerly known as The Excite Network,
Inc., on May 6, 2004 upon its acquisition of ISH.) On
September 22, 2003, InfoSpace filed a lawsuit against Focus
Interactive in Washington State captioned InfoSpace Sales
LLC v. Focus Interactive, Inc., Index No. 03-2-36
176-3SEA (Sup. Court Wash., King County) (Washington
Action) asserting claims and seeking damages for
(i) breach of contract (the ISA); (ii) breach of the
duty of good faith and fair dealing in performing the ISA;
(iii) unfair business practices under Washington Rev. Code
§ 19.86.020 that affect the public interest;
(iv) misrepresentation and fraud in the inducement; and
(v) a declaratory judgment seeking a declaration that Focus
Interactives threatened actions would constitute breaches
of Focus Interactives obligations to InfoSpace under the
ISA, the covenant of good faith and fair dealing recognized by
Washington law, and the Wash. Rev. Code § 19.86.020.
Focus motion to dismiss the Washington Action was granted,
and was upheld by the Court of Appeals Division I State of
Washington on April 4, 2005. On September 29, 2003,
InfoSpace moved to dismiss the NY Action on the grounds that a
declaratory judgment was improper and on forum non conveniens
grounds. Focus opposed the motion and on January 7, 2004,
the New York trial court denied InfoSpaces motion to
dismiss in its entirety. On January 23, 2004, InfoSpace
answered the Complaint in the NY Action and filed counterclaims
similar to the claims asserted in the Washington Action. On
February 11, 2004, InfoSpace appealed the trial
courts denial of its motion to dismiss by filing a Notice
of Appeal with the Appellate Division of the New York Supreme
Court for the Second Judicial Department. The appeal has been
fully briefed and is under judicial consideration. The
underlying NY Action has not proceeded as the parties have been
engaged in settlement negotiations, though the settlement
negotiations might not be successful.
On January 27, 2004, a lawsuit was filed in the United
States District Court for the Southern District of New York
captioned American Blind and Wallpaper, Inc. v. Google,
Inc., et al., in which Ask Jeeves, Inc., America
Online, Inc., Netscape Communications Corporation, Compuserve
Interactive Services, Inc., and EarthLink, Inc. were also named
as defendants. On February 27, 2004, the Company was served
with an Amended Complaint in the matter. The Complaint alleges
trademark infringement, false representation, and dilution under
the Lanham Act, tortious interference with prospective business
advantage and other claims arising from defendants alleged
unlawful use of plaintiffs trademarks. Plaintiffs
claims are based on the allegations that defendants sell
keywords identical to plaintiffs marks to various third
parties and by manipulating search results, consumers are
unwittingly diverted to competitors products and services.
The plaintiff seeks injunctive relief and an unspecified amount
of damages. The Company has tendered this suit to Google for
indemnification pursuant to the terms of the Advertising
Services Agreement, dated July 17, 2002, between Ask Jeeves
and Google, and Google has agreed to assume the defense and to
indemnify the Company
9
ASK JEEVES, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
to the extent the claims relate to Google paid listings. Google
filed a motion to dismiss the case on the grounds that the
plaintiffs have failed to state a valid claim upon which relief
could be granted, the plaintiffs filed an opposing brief and, on
September 17, 2004, the court held a hearing on the motion,
at which the judge took the parties arguments under
submission. On March 30, 2005, the court issued an order
granting Googles motion to dismiss with respect to the
tortious interference with prospective business advantage claim
and denied the motion to dismiss with respect to the trademark
infringement claims.
On August 3, 2004, a lawsuit was filed in the Superior
Court of the State of California, County of San Francisco
captioned Mario Cisneros et al. vs. Yahoo! Inc.,
et al., in which Ask Jeeves, Inc., Google, Inc., Yahoo!
Inc., and several other Internet media companies are named as
defendants. The complaint alleges that the defendants engaged in
unfair business practices and aided, abetted and conspired with
operators of illegal online gambling enterprises by selling and
displaying ads for online gambling operations that allegedly
violate California law. The complaint purports to be brought on
behalf of the general public and a class of all California
residents who incurred losses in the prior four years at any
illegal Internet gambling site allegedly advertised on
defendants Web pages. The complaint seeks declaratory and
injunctive relief prohibiting Ask Jeeves and the other
defendants from selling or displaying such ads. The complaint
also seeks to hold Ask Jeeves and the other defendants liable
for an unspecified amount of monetary restitution equal to
(i) all of the revenue that defendants allegedly earned by
displaying ads for illegal gambling operations; (ii) all of
the gambling losses suffered by persons using computers in
California to access the advertised sites; (iii) all other
revenues received by the gambling site operators from such
computer users; and (iv) certain State taxes and fees
allegedly avoided by the gambling site operators. The complaint
was filed against Internet media companies and does not
specifically name the gambling site operators themselves as
defendants. Defendants, including Ask Jeeves, filed a motion to
strike plaintiffs claims for restitution of gambling
losses and also filed a demurrer to the entire complaint (which
is a motion to dismiss the case on the grounds that the
plaintiffs have failed to state a valid claim upon which relief
could be granted) based on defendants belief that
plaintiffs lack standing to bring the action. The court denied
the demurrer. Defendants filed a reply brief in support of
their motion to strike monetary remedies on April 29, 2005.
A hearing on the motion to strike the restitution claims is
currently scheduled for May 9, 2005.
On February 17, 2005, a lawsuit was filed in the Circuit
Court of Miller County, Arkansas captioned Lanes Gifts
and Collectibles et al. vs. Yahoo! Inc. et al., in
which Ask Jeeves, Inc., Google Inc., Yahoo! Inc., America Online
and several other Internet media companies are named as
defendants. The complaint alleges that the defendants
overcharged advertisers by billing and collecting fees for
price-per-click (PPC) advertising in response to clicks
that defendants knew were not generated by bona fide consumers.
It further alleges that defendants engaged in an industry-wide
conspiracy to conceal the alleged overcharges from advertisers
in order to increase the size of the PPC advertising market. The
complaint purports to be a nationwide class action on behalf of
all advertisers that have been overcharged for PPC advertising.
The complaint seeks to hold Ask Jeeves and the other defendants
liable for the amount of the alleged overcharges, together with
prejudgment interest, attorneys fees and such other
amounts as the court may determine. The Company has tendered
this suit to Google for indemnification pursuant to the terms of
the Advertising Services Agreement between Ask Jeeves and
Google, and Google has agreed to assume the defense and to
indemnify the Company to the extent the claims relate to paid
listings provided to the Company by Google. Ask Jeeves retains
any liability for ads it sold.
The following two purported class action lawsuits have been
filed relating to the Companys pending acquisition by IAC:
|
|
|
| |
|
Benjamin Parris v. A. George Battle, Steven Berkowitz,
Garrett Gruener, David S. Carlick, James Casella, Joshua C.
Goldman, James D. Kirsner, Geoffrey Y. Yang and Ask Jeeves,
Inc. was filed in the Court of Chancery of the State of
Delaware on March 21, 2005. The complaint is brought on
behalf of a purported class of Ask Jeeves stockholders and
alleges that the IAC transaction fails to fully value |
10
ASK JEEVES, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
|
|
|
| |
|
Ask Jeeves and that the transaction was timed to place an
artificial cap on the market price of Ask Jeeves stock. The
complaint seeks to enjoin the merger, have the merger rescinded
if completed, obtain an award of damages to the purported class
and obtain an award of attorneys fees, experts fees
and costs. |
| |
| |
|
Richard D. Wiltsie 1 v. A. George Battle, Steven
Berkowitz, David Carlick, James Casella, Joshua Goldman, Garrett
Gruener, James Kirsner, Geoffrey Y. Yang, IAC/ InterActiveCorp,
and Ask Jeeves, Inc. was filed in the Court of Chancery of
the State of Delaware on March 23, 2005. The complaint is
brought on behalf of a purported class of Ask Jeeves
stockholders, and alleges that the board of Ask Jeeves breached
its fiduciary duty by entering into the merger agreement without
conducting an auction, obtaining the best price possible, or
informing itself of and investigating other available
transactions, while IACs stock was overvalued because of
its repurchase programs, and while Ask Jeeves stock was
undervalued. The complaint also alleges that IAC knowingly
participated in and benefited from the Ask Jeeves director
defendants breaches of their fiduciary duties. The
complaint seeks to enjoin the merger, rescind it if completed,
obtain an award of damages for the purported class, direct the
Ask Jeeves board to use corporate management devices to
ensure the best available transaction and obtain an award
of attorneys fees, experts fees and costs. |
Ask Jeeves believes that these claims are without merit and
intends to defend vigorously against them.
Although management does not expect resolution of these matters
to have a material adverse impact on the Companys results
of operations, cash flows or financial position, an unfavorable
resolution of these matters could materially and adversely
affect the Companys future results of operations, cash
flows or financial position.
Indemnifications
In the ordinary course of business, the Company provides
indemnifications of varying scope and terms to customers,
vendors, lessors, business partners and other parties with
respect to certain matters, including, but not limited to,
losses arising out of the Companys breach of such
agreements, services to be provided by the Company, or from
intellectual property infringement claims made by third parties.
In addition, the Company has entered into indemnification
agreements with its directors and certain officers that will
require the Company, among other things, to indemnify them
against certain liabilities that may arise by reason of their
status or service as directors or officers. The Company
maintains director and officer insurance, which may cover
certain liabilities arising from its obligation to indemnify its
directors, and officers and former directors, officers and
employees of acquired companies, in certain circumstances.
It is not possible to determine the maximum potential amount
payable under these indemnification agreements due to the
Companys limited history of prior indemnification claims
and the unique facts and circumstances involved in each
particular agreement. Many such indemnification agreements are
not subject to maximum loss clauses. Historically, the Company
has not incurred material costs as a result of obligations under
these agreements and it has not accrued any liabilities related
to such indemnification obligations in its financial statements.
Trustic Inc.
On February 8, 2005, Ask Jeeves acquired Trustic Inc., the
company that owns and operates Bloglines. Bloglines is a free
online service for searching, subscribing, publishing and
sharing RSS (Real Simple Syndication) feeds, blogs and rich web
content. The acquisition brings together complementary
technology assets and the Company plans to leverage these
technologies across its search and portal brands. The cost of
the technology will be amortized on a straight-line basis over a
three-year period.
11
ASK JEEVES, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
Interactive Search
Holdings
On May 6, 2004, the Company completed its acquisition of
all of the outstanding capital stock of Interactive Search
Holdings, Inc. (ISH), an online search and media company. The
acquisition significantly increased the Companys market
share and provided additional channels of distribution for the
Companys search services. These factors contributed to a
purchase price in excess of the fair value of ISHs net
tangible and intangible assets acquired, and as a result, the
Company has recorded goodwill in connection with this
transaction.
The total purchase cost for ISH of approximately
$395.1 million consists of the following (in thousands,
except share data):