UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a) of
the Securities Exchange Act of 1934 (Amendment No. )
Filed by the Registrant ý
Filed by a Party other than the Registrant ¨
Check the appropriate box:
¨ Preliminary Proxy Statement
¨ Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))
¨ Definitive Additional Materials
¨ Soliciting Material Pursuant to §240.14a-12
BROADVISION, INC.
(Name of Registrant as Specified In Its Charter)
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
ý No fee required.
¨ Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
(1) Title of each class of securities to which transaction applies:
(2) Aggregate number of securities to which transaction applies:
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¨Fee paid previously with preliminary materials.
¨ Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing.
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April 25, 2012
Dear Stockholder:
On behalf of BroadVision, Inc. (“BroadVision”), I cordially invite you to attend the Annual Meeting of Stockholders, which will begin at 10:00 a.m. local time on Thursday, June 7, 2012, at our headquarters located at 1600 Seaport Boulevard, Suite 550, North Building, Redwood City, California. At the meeting, stockholders will be asked:
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To elect the Board of Directors’ nominees, Dr. Pehong Chen, James D. Dixon, Robert Lee and François Stieger, to the Board of Directors to serve for the ensuing year and until their successors are elected.
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To ratify the selection of OUM & Co. LLP as our independent registered public accounting firm for the fiscal year ending December 31, 2012.
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To transact such other business as may properly come before the meeting or any adjournment or postponement thereof.
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The accompanying Notice of Annual Meeting of Stockholders and Proxy Statement describes these proposals in detail.
Our directors and officers hope that as many stockholders as possible will be present at the meeting. Because the vote of each stockholder is important, we ask that you submit your proxy whether or not you plan to attend the meeting. This will not limit your right to change your vote prior to or at the meeting.
We appreciate your interest in BroadVision. To assist us in preparation for the meeting, please submit your proxy at your earliest convenience.
Very truly yours,
/s/ Pehong Chen
DR. PEHONG CHEN
Chairman of the Board, President and Chief Executive Officer
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BROADVISION, INC.
1600 Seaport Boulevard
Suite 550, North Building
Redwood City, California 94063
NOTICE OF ANNUAL MEETING OF STOCKHOLDERS
TO BE HELD ON JUNE 7, 2012
TO THE STOCKHOLDERS OF BROADVISION, INC.:
NOTICE IS HEREBY GIVEN that the Annual Meeting of Stockholders of BROADVISION, INC., a Delaware corporation, will be held on Thursday, June 7, 2012, at 10:00 a.m. local time at our headquarters located at 1600 Seaport Boulevard, Suite 550, North Building, Redwood City, California for the following purposes:
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To elect the Board of Directors’ nominees, Dr. Pehong Chen, James D. Dixon, Robert Lee and François Stieger, to the Board of Directors to serve for the ensuing year and until their successors are elected.
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To ratify the selection of OUM & Co. LLP as our independent registered public accounting firm for the fiscal year ending December 31, 2012.
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To transact such other business as may properly come before the meeting or any adjournment or postponement thereof.
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The foregoing items of business are more fully described in the Proxy Statement for the Annual Meeting.
The record date for the Annual Meeting is April 18, 2012. Only stockholders of record at the close of business on that date may vote at the meeting, any adjournment or postponement thereof.
By Order of the Board of Directors
/s/ Sandra Adams
SANDRA ADAMS
Secretary and General Counsel
Redwood City, California
April 25, 2012
ALL STOCKHOLDERS ARE CORDIALLY INVITED TO ATTEND THE MEETING IN PERSON. WHETHER OR NOT YOU EXPECT TO ATTEND THE MEETING, PLEASE SUBMIT YOUR PROXY AS PROMPTLY AS POSSIBLE IN ORDER TO ENSURE YOUR REPRESENTATION AT THE MEETING. EVEN IF YOU HAVE VOTED BY PROXY, YOU MAY STILL VOTE IN PERSON IF YOU ATTEND THE MEETING. PLEASE NOTE, HOWEVER, THAT IF YOUR SHARES ARE HELD OF RECORD BY A BROKER, BANK OR OTHER NOMINEE AND YOU WISH TO VOTE AT THE MEETING, YOU MUST OBTAIN FROM THE RECORD HOLDER A PROXY ISSUED IN YOUR NAME.
BROADVISION, INC.
1600 Seaport Boulevard
Suite 550, North Building
Redwood City, California 94063
PROXY STATEMENT FOR
ANNUAL MEETING OF STOCKHOLDERS
April 25, 2012
INFORMATION CONCERNING SOLICITATION AND VOTING
GENERAL
The Board of Directors of BroadVision, Inc., a Delaware corporation, is soliciting your proxy to vote at the Annual Meeting of Stockholders to be held on June 7, 2012, at 10:00 a.m. local time (the “Annual Meeting”), or at any adjournment or postponement thereof, for the purposes set forth herein. The Annual Meeting will be held at our headquarters located at 1600 Seaport Boulevard, Suite 550, North Building, Redwood City, California. Information on how to vote in person at the Annual Meeting is discussed below.
Pursuant to rules adopted by the Securities and Exchange Commission (the “SEC”), we have elected to provide access to our proxy materials over the internet. Accordingly, we are sending a Notice of Internet Availability of Proxy Materials (the “Notice”) to our stockholders of record. All stockholders will have the ability to access the proxy materials on the website referred to in the Notice or request to receive a printed set of the proxy materials. Instructions on how to access the proxy materials over the internet or to request a printed copy may be found in the Notice.
We intend to mail the Notice on or about April 25, 2012 to all stockholders of record entitled to vote at the Annual Meeting. We may send you a proxy card, along with a second Notice, on or after April 30, 2012.
SOLICITATION
We will bear the entire cost of solicitation of proxies, including preparation of this proxy statement and mailing of the Notice. Solicitation materials will be made available to banks, brokerage houses, fiduciaries and custodians holding in their names shares of Common Stock beneficially owned by others to forward to such beneficial owners. We may reimburse persons representing beneficial owners of Common Stock for their costs of forwarding solicitation materials to such beneficial owners. Original solicitation of proxies may be supplemented by telephone, telegram, electronic mail or personal solicitation by our directors, officers or other regular employees. No additional compensation will be paid to our directors, officers or other regular employees for such services.
VOTING RIGHTS AND OUTSTANDING SHARES
Only holders of record of Common Stock at the close of business on April 18, 2012 will be entitled to notice of and to vote at the Annual Meeting. At the close of business on April 18, 2012, we had outstanding and entitled to vote 4,640,432 shares of Common Stock.
Each holder of record of Common Stock on such date will be entitled to one vote for each share held on all matters to be voted upon at the Annual Meeting.
A quorum of stockholders is necessary to hold a valid meeting. A quorum will be present if a majority of the outstanding shares are represented by stockholders present at the meeting in person or by proxy. Votes will be counted by the inspector of election appointed for the meeting, who will separately count “For” and (with respect to proposals other than the election of directors) “Against” votes, abstentions and broker non-votes. (A “broker non-vote” occurs when a nominee holding shares for a beneficial owner does not vote on a particular proposal because the nominee does not have discretionary voting power with respect to that proposal and has not received instructions with respect to that proposal from the beneficial owner despite voting on at least one other proposal for which it does have discretionary authority or for which it has received instructions.) Abstentions and broker non-votes will be counted in determining whether a quorum is present. Abstentions will be counted towards the vote totals for all proposals and will have the same effect as “Against” votes. Broker non-votes have no effect and will not be counted towards the vote totals for any proposal.
VOTING PROCEDURES
Stockholders may either vote “For” all the nominees to the Board of Directors or may abstain from voting for any nominee specified. For each of the other matters to be voted on, stockholders may vote “For” or “Against” or abstain from voting.
Stockholder of Record: Shares Registered in the Stockholder’s Name
Stockholders of record may vote in person at the Annual Meeting or vote by proxy using our online portal, or by a proxy card that you may request or that we may elect to deliver at a later time. Whether or not stockholders plan to attend the meeting, we urge stockholders to vote by proxy to ensure each vote is counted. Stockholders may still attend the meeting and vote in person even if they have already voted by proxy.
To vote in person, stockholders of record should attend the Annual Meeting and will receive a ballot when they arrive.
Beneficial Owner: Shares Registered in the Name of Broker or Bank
If the stockholder is a beneficial owner of shares registered in the name of a broker, bank or other agent, the stockholder should have received a Notice containing voting instructions from that organization rather than from BroadVision. Simply follow the voting instructions in the Notice to ensure that your vote is counted. To vote in person at the Annual Meeting, the stockholder must obtain a valid proxy from the broker, bank or other agent. Without a valid proxy from the record holder, a beneficial owner will not be able to vote in person at the Annual Meeting. The stockholder should follow the instructions from the broker, bank or other agent included with these proxy materials, or contact the broker, bank or other agent to request a proxy form.
REVOCABILITY OF PROXIES
Any person giving a proxy pursuant to this solicitation has the power to revoke it at any time before it is voted. It may be revoked by filing with our Secretary at our principal executive office, 1600 Seaport Boulevard, Suite 550, North Building, Redwood City, California 94063, a written notice of revocation or a duly executed proxy bearing a later date, or it may be revoked by attending the meeting and voting in person. Attendance at the meeting will not, by itself, revoke a proxy.
STOCKHOLDER PROPOSALS
The deadline for submitting a stockholder proposal for inclusion in our proxy statement and form of proxy for our 2013 annual meeting of stockholders pursuant to Rule 14a-8 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), is December 27, 2012. Stockholders wishing to submit proposals or director nominations that are not to be included in such proxy statement and proxy must do so no later than the close of business on the 90th day nor earlier than the close of business on the 120th day prior to the first anniversary of this year’s Annual Meeting. Stockholders are also advised to review our Bylaws, which contain additional requirements with respect to advance notice of stockholder proposals and director nominations.
RESULTS OF VOTING
Preliminary voting results will be announced at the annual meeting. In addition, final voting results will be published in a current report on Form 8-K that we expect to file within four business days after the date of the annual meeting. If final voting results are not available to us in time to file a Form 8-K within four business days after the date of the meeting, we intend to file a Form 8-K to publish preliminary results and, within four business days after the final results are known to us, file an additional Form 8-K to publish the final results.
PROPOSAL 1
ELECTION OF DIRECTORS
There are four nominees for the eight Board of Director positions presently authorized pursuant to our Bylaws. Proxies will not be voted for a greater number of persons than the four named nominees. There are four authorized seats on the Board of Directors that will remain vacant. The Company has not reduced the number of authorized positions so that in the future we may add additional directors if we believe the Company would benefit from additional expertise, experience or other capabilities. Each director to be elected will hold office until the next annual meeting of stockholders and until his successor has been duly elected and qualified, or until such director’s earlier death, resignation or removal. Each of the nominees listed below is currently one of our directors and was previously elected by the stockholders. It is our policy to invite nominees for directors to attend the annual meeting. None of the current members of the Board of Directors attended the 2011 annual meeting of stockholders.
Directors are elected by a plurality of the votes properly cast in person or by proxy. The four nominees receiving the highest number of affirmative votes will be elected. Shares represented by executed proxies will be voted, if authority to do so is not withheld, for the election of the four nominees named below. If any nominee becomes unavailable for election as a result of an unexpected occurrence, shares will be voted for the election of a substitute nominee proposed by our management. Each person nominated for election has agreed to serve if elected. Our management has no reason to believe that any nominee will be unable to serve.
THE BOARD OF DIRECTORS RECOMMENDS
A VOTE IN FAVOR OF EACH NAMED NOMINEE.
NOMINEES
The names of the nominees, a brief biography and a discussion of the specific experience, qualifications, attributes or skills of each nominee that led the Nominating Committee to recommend that person as a nominee for director, as of the date of this proxy statement is set forth below.
The Nominating Committee seeks to assemble a board that, as a whole, possesses the appropriate balance of professional and industry knowledge, financial expertise and high-level management experience necessary to oversee and direct the Company’s business. To that end, the Nominating Committee has historically identified and evaluated nominees in the context of the board’s overall composition, with the goal of recruiting members who complement and strengthen the skills of other members and who also exhibit integrity, collegiality, sound business judgment and other qualities that the Nominating Committee views as critical to effective functioning of the board. The brief biographies below include information, as of the date of this proxy statement, regarding the specific and particular experience, qualifications, attributes or skills of each nominee that led the Nominating Committee to believe that each nominee should continue to serve on the Board of Directors. However, each of the members of the Nominating Committee may have a variety of reasons why he believes a particular person would be an appropriate nominee for the Board of Directors, and these views may differ from the views of other members.
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Principal Occupation/
Position Held With The Company
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Pehong Chen
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Chairman, President and Chief Executive Officer
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James D. Dixon
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Formerly an executive with bankofamerica.com
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Robert Lee
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Formerly an executive with Pacific Bell
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François Stieger
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62 |
Chief Executive Officer, Intentional Software International Sarl
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Pehong Chen has served as our Chairman of the Board, Chief Executive Officer and President since our incorporation in May 1993. Dr. Chen served as Interim Chief Financial Officer during the period between William Meyer’s departure in June 2006 and Shin-Yuan Tzou’s appointment as Chief Financial Officer in January 2008. From 1992 to 1993, Dr. Chen served as the Vice President of Multimedia Technology at Sybase, Inc., a supplier of client-server software products. Dr. Chen founded and, from 1989 to 1992, served as President of Gain Technology, Inc., a provider of multimedia applications development systems, which was acquired by Sybase, Inc. Dr. Chen currently serves on the board of directors of SINA.com, HiSoft Ltd., and Fortinet Inc. He received a B.S. in Computer Science from National Taiwan University, an M.S. in Computer Science from Indiana University and a Ph.D. in Computer Science from the University of California at Berkeley. We believe Dr. Chen’s qualifications to sit on our Board of Directors include his decades of experience in the technology industry, including as our founder, and our Chairman, President and Chief Executive Officer for the past 17 years. The Committee believes that Dr. Chen’s extensive experience with the Company brings necessary historical knowledge, industry experience and continuity to the board.
James D. Dixon has served as one of our directors since January 2003. Prior to his retirement from Bank of America in January 2002, Mr. Dixon served as an executive with bankofamerica.com. From September 1998 to February 2000, Mr. Dixon was Group Executive and Chief Information Officer of Bank of America Technology & Operations. From 1990 to 1998, before the merger of NationsBank Corporation and BankAmerica Corporation, Mr. Dixon was President of NationsBank Services, Inc. From 1986 to 1990, he also served as Chief Financial Officer for Citizens and Southern Bank/Sovran, a predecessor company to NationsBank. Mr. Dixon holds a B.A. from Florida State University, a J.D. from the University of Florida School of Law, and he is a graduate of the executive M.B.A. program at Stanford University. Mr. Dixon also previously served on the board of directors of CheckFree Corporation, a provider of financial electronic commerce services and products, 724 Solutions Inc., a provider of mobile internet, mobile broadband and IP messaging solutions and Rare Hospitality International, Inc., a restaurant operator and franchisor. Mr. Dixon’s employment within the technology sector of the banking industry and his leadership role with several major national corporations give him the background to provide strategic financial guidance and leadership to the Company and the Board. Additionally, his extensive service on other boards of directors in the technology industry gives him substantial insight into the issues that arise in a technology-based business.
Robert Lee has served as one of our directors since August 2004. Mr. Lee was a corporate Executive Vice President and President of Business Communications Services at Pacific Bell, where he established two new subsidiaries: Pacific Bell Internet Services and Pacific Bell Network Integration. During his 26 year career at Pacific Bell, Mr. Lee managed groups in operations, sales and marketing. Mr. Lee served as Executive Vice President of Marketing and Sales from 1987 to 1992. Mr. Lee is the Vice Chairman of the board of directors of Blue Shield of California, which provides health insurance to members in California, and a member of the board of Corinthian Colleges, which operates as a post-secondary education company in North America. Mr. Lee also previously served on the board of directors of Web.com, a provider of online marketing services for small businesses, from April 1999 until September 2007 and Netopia, a provider of voice and data solutions, from November 2001 until February 2007. Mr. Lee holds a B.S. in Electrical Engineering from the University of Southern California and an M.B.A. from the University of California at Berkeley. The Company believes that Mr. Lee’s extensive operations, sales and marketing expertise make him a valuable member of the board. His executive experience, along with his experience serving on other boards and his historical knowledge of our company, give him the qualifications and skills to serve as a director.
François Stieger has served as one of our directors since August 2006. Mr. Stieger is cofounder and Managing Partner of Eurofin Ventures SA. From January 2006 until October 2011 he led Intentional Software’s international group as CEO of Intentional Software International Sarl. From April 2003 until January 2006, Mr. Stieger was senior vice president and general manager for Europe, Middle East and Africa for Verisign, the leading provider of critical infrastructure security services for the Internet and telecommunication markets. Mr. Stieger was responsible for Verisign’s business throughout that region. Prior to joining Verisign, Mr. Stieger was a partner of Amadeus Capital, a leading European venture capital firm based in London. Mr. Stieger served as our Director, Worldwide Marketing Organization, from 1996 to 2001. While serving in that capacity, in 1996, he established our European operations. Under his management through mid 2001, these operations grew to more than 400 employees and US$104 million annual revenues. He was also personally involved in our initial public offering in June 1996, and our public offering on the Neuer Markt in Frankfurt in November 1999. From 1987-1992, as vice president, Mr. Stieger established and managed operations of Oracle Corporation for southern and central Europe. Mr. Stieger is a graduate of the University of Strasbourg’s Institute of Technology. Mr. Steiger’s experience as an executive of several international technology companies provides the board with a global perspective. Additionally, his experiences as a former Company executive provide him with a deep understanding of the Company that we believe to be valuable to the board.
Board Leadership Structure
The board of directors has chosen to combine the chief executive officer and board chairman positions and has not appointed a separate lead director. Dr. Pehong Chen has served as the Chief Executive Officer and Chairman of the Board since he founded the Company in 1993. At the present time, the independent directors believe that Dr. Chen's in-depth knowledge of our operations and vision for its development make him the best-qualified director to serve as Chairman.
Role of the Board in Risk Oversight
One of the key functions of our Board of Directors is informed oversight of our risk management process. The board does not have a standing risk management committee, but rather it takes on an active role, as a whole and also at the committee level, in overseeing risk management. The Board regularly reviews information regarding our credit, liquidity and operations, as well as the risks associated with each. Our Compensation Committee is responsible for overseeing the management of risks relating to our executive compensation plans and arrangements. The Audit Committee oversees management of financial risks. The Nominating Committee manages risks associated with the independence of the Board of Directors and potential conflicts of interest. While each committee is responsible for evaluating certain risks and overseeing the management of such risks, the entire Board of Directors is regularly informed through committee and management reports about such risks.
INFORMATION ABOUT THE BOARD OF DIRECTORS
Independence of the Board of Directors
As required under Nasdaq listing standards, a majority of the members of a listed company’s board of directors must qualify as “independent,” as affirmatively determined by the board of directors. The Board consults with our company counsel to ensure that the Board’s determinations are consistent with all relevant securities and other laws and regulations regarding the definition of “independent,” including those set forth in pertinent listing standards of Nasdaq, in effect from time to time.
Consistent with these considerations, after review of all relevant identified transactions or relationships between each director, or any of his family members, and us, our senior management and our independent registered public accounting firm, the Board affirmatively has determined that three of our current directors are independent directors within the meaning of the applicable Nasdaq listing standards. Dr. Chen, our Chairman, Chief Executive Officer, President and largest stockholder, is not “independent” within the meaning of the applicable Nasdaq listing standards.
As required under applicable Nasdaq listing standards, our independent directors meet in regularly scheduled executive sessions at which only independent directors are present, in conjunction with regularly scheduled Board meetings and otherwise as needed. In 2011, our independent directors met four times at sessions at which only independent directors were present.
Code of Business Ethics and Conduct
We have adopted a Code of Business Ethics and Conduct (the “Code of Conduct”) that applies to all of our directors, officers and employees. The text of the Code of Conduct is posted on our website at www.broadvision.com. If we make any substantive amendment to the Code of Conduct or grant any waiver from a provision of the Code of Conduct to any executive officer or director, we will promptly disclose the nature of the amendment or waiver on our website.
Stockholder Communications with the Board of Directors
Our Board has adopted a formal process by which stockholders may communicate directly with the members of the Board, and stockholders are encouraged to do so. Stockholders interested in communicating with the directors may do so by addressing correspondence to a particular director, or to the Board generally, in our care at 1600 Seaport Boulevard, Suite 550, North Building, Redwood City, California 94063. If no particular director is named, letters will be forwarded, depending on the subject matter, to the Chair of the Audit, Compensation or Nominating Committee. Our personnel will not screen or edit such communications and will forward them directly to the Board or the intended member of the Board.
BOARD COMMITTEES AND MEETINGS
During the fiscal year ended December 31, 2011, the Board met six times. During the fiscal year ended December 31, 2011, each Board member attended 75% or more of the aggregate number of meetings of the Board and of the committees on which he served, held during the portion of the last fiscal year for which he was a director or committee member, respectively.
The Board has an Audit Committee, a Compensation Committee and a Nominating Committee. Copies of the charters of all three of the Board’s standing committees are available on our website at www.broadvision.com. Each committee has authority to obtain advice and assistance from consultants and advisors, as it deems appropriate, to carry out its responsibilities. The Board has determined that each member of its committees meets the applicable rules and regulations regarding “independence” and that each member of its committees is free of any relationship that would interfere with his individual exercise of independent judgment with regard to us.
Below is a description of each of these committees.
The Audit Committee
The Audit Committee of the Board of Directors oversees our corporate accounting and financial reporting process. For this purpose, the Audit Committee performs several functions. The Audit Committee evaluates the performance of and assesses the qualifications of the independent auditors; determines and approves the engagement of the independent auditors; determines whether to retain or terminate the existing independent auditors or to appoint and engage new auditors; reviews and approves the retention of the independent auditors to perform any proposed permissible non-audit services; monitors the rotation of partners of the auditors on our audit engagement team as required by law; confers with management and the independent auditors regarding the effectiveness of internal control over financial reporting; establishes procedures, as required under applicable law, for the receipt, retention and treatment of complaints received by us regarding accounting, internal accounting controls or auditing matters and the confidential and anonymous submission by employees of concerns regarding questionable accounting or auditing matters; reviews the financial statements to be included in our Annual Report on Form 10-K; and discusses with management and the independent auditors the results of the annual audit and the results of our quarterly financial statements.
The Audit Committee is presently composed of three non-employee directors: Messrs. Dixon (Chairman), Lee and Stieger. The Board has determined that all members of our Audit Committee are independent (as independence is currently defined in Rule 5605(a)(2) of the Nasdaq listing standards). The Board has determined that Mr. Dixon qualifies as an “audit committee financial expert,” as defined in applicable Securities and Exchange Commission (“SEC”) rules. The Board made a qualitative assessment of Mr. Dixon’s level of knowledge and experience based on a number of factors, including his formal education and experience as a chief financial officer for Citizens and Southern Bank/Sovran, a predecessor company to NationsBank.
The Audit Committee is also vested with oversight of corporate governance matters and, in that regard, makes determinations as to all aspects of our corporate governance functions on behalf of the Board and makes recommendations to the Board regarding corporate governance issues. The Audit Committee is responsible for periodically reviewing and assessing our governance principles to determine their adherence to the Code of Conduct, and recommending any changes deemed appropriate to the Board for its consideration.
In 2011, the Audit Committee met four times. See “Report of the Audit Committee of the Board of Directors” below.
The Compensation Committee
The Compensation Committee of the Board of Directors reviews and approves our overall compensation strategy and policies. The Compensation Committee reviews and approves corporate performance goals and objectives relevant to the compensation of our executive officers and other senior management; reviews and approves the compensation and other terms of employment of our Chief Executive Officer; reviews and approves the compensation and other terms of employment of the other executive officers; and administers our stock option and purchase plans, pension and profit sharing plans, stock bonus plans, deferred compensation plans and other similar programs. We also have a Non-Officer Option Committee, established in May 1997, which has the power to award stock options to non-officer employees and consultants. The Compensation Committee is presently composed of two non-employee directors: Messrs. Dixon and Lee (Chairman). All members of our Compensation Committee are independent (as independence is currently defined in Rule 5605(a)(2) of the Nasdaq listing standards). The sole member of the Non-Officer Option Committee is Dr. Chen. In 2011, the Compensation Committee met seven times.
The Nominating Committee
The Nominating Committee makes determinations as to the individuals who are to be nominated for membership to the Board. Candidates for nomination to the Board of Directors are reviewed in the context of the current composition of the Board, our operating requirements and the long-term interests of our stockholders. In conducting this review, the Nominating Committee considers diversity, age, skills, and such other factors as it deems appropriate given the current needs of the Board, to maintain a balance of expertise, experience and capability. In considering diversity, the Nominating Committee focuses on the current composition of the Board, and on how it could strengthen the Board’s diversity by adding individuals who could add to the Board’s collective knowledge and perspectives. This process may include selecting candidates with gender, ethnic, national or other backgrounds that are different from those already represented on the Board at the time of consideration. The effectiveness of the Board’s diverse mix of skills, experiences and perspectives is considered as part of the Board’s periodic self-assessment.
The Nominating Committee has a long standing practice of considering any qualified director candidates that are recommended by our stockholders. Stockholders who wish to recommend a director candidate for consideration by the Nominating Committee may do so in writing to the Chairman of the Nominating Committee at the following address: BroadVision, Inc., 1600 Seaport Boulevard, Suite 550, North Building, Redwood City, California 94063.
If a stockholder wishes the Nominating Committee to consider a director candidate for nomination at our next annual meeting, then our Bylaws require that stockholder to send written notice of the recommendation no sooner than 120 days and no later than 90 days prior to the first anniversary of the preceding year’s annual meeting, which notice is otherwise in accordance with the requirements for stockholder nominations described in our Bylaws. Submissions must include the candidate’s name and sufficient biographical information concerning the candidate, including age, five-year employment history with employer names and a description of the employers’ businesses, whether such candidate can read and understand basic financial statements, and board memberships, if any. The submission must be accompanied by a written consent of the individual to stand for election if nominated by the Board of Directors and to serve if elected by the stockholders. The Nominating Committee is presently composed of two non-employee directors: Messrs. Lee (Chairman) and Stieger. All members of our Nominating Committee are independent (as independence is currently defined in Rule 5605(a)(2) of the Nasdaq listing requirements). In 2011, the Nominating Committee met once.
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REPORT OF THE AUDIT COMMITTEE OF THE BOARD OF DIRECTORS*
The Audit Committee has reviewed and discussed with management the audited consolidated financial statements of the Company for the year ended December 31, 2011 (the “Audited Financial Statements”) and management’s assessment of the effectiveness of the Company’s internal control over financial reporting. Management has the primary responsibility for the financial statements and the internal control over financial reporting.
In this context, the Audit Committee has reviewed and discussed with management and OUM & Co. LLP (“OUM”), the independent registered public accounting firm, the Audited Financial Statements and the internal control over financial reporting. The Audit Committee has discussed with OUM the matters required to be discussed by Statement on Auditing Standards No. 61, as amended (AICPA, Professional Standards, Vol. 1. AU section 380), as adopted by the Public Company Accounting Oversight Board (“PCAOB”) in Rule 3200T. In addition, the Audit Committee has received from OUM the written disclosures and the letter required by applicable requirements of the PCAOB regarding OUM’s communications with the audit committee concerning independence, and has discussed with them their independence from the Company and its management. The Audit Committee considered whether the rendering of non-audit services by OUM to the Company is compatible with maintaining the independence of OUM from the Company.
Following the foregoing review and discussions, the Audit Committee recommended to the Board of Directors that the Audited Financial Statements be included in the Company’s Annual Report on Form 10-K for the year ended December 31, 2011 for filing with the SEC.
AUDIT COMMITTEE
James D. Dixon, Chairman
Robert Lee
François Stieger
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The material in this report is not “soliciting material,” is not deemed “filed” with the SEC, and is not incorporated by reference into any filing of the Company under the Securities Act of 1933, as amended (the “Securities Act”), or the Exchange Act.
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PROPOSAL 2
RATIFICATION OF SELECTION OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
The Audit Committee has selected OUM & Co. LLP (“OUM”) as our independent registered public accounting firm for the fiscal year ending December 31, 2012. The Board of Directors has directed that management submit the selection of our independent registered public accounting firm for ratification by the stockholders at the Annual Meeting. OUM has audited our financial statements beginning with the fiscal year ended December 31, 2006. Representatives of OUM are expected to be present at the Annual Meeting, will have an opportunity to make a statement if they so desire, and will be available to respond to appropriate questions.
Stockholder ratification of the selection of OUM as our independent registered public accounting firm is not required by our Bylaws or otherwise; however, the Board is submitting the selection of OUM to the stockholders for ratification as a matter of good corporate practice. If the stockholders fail to ratify the selection, the Audit Committee will reconsider whether or not to retain that firm. Even if the selection is ratified, the Audit Committee in its discretion may direct the appointment of a different independent registered public accounting firm at any time during the year if it determines that such a change would be in our best interests and those of our stockholders.
The affirmative vote of the holders of a majority of the shares present in person or represented by proxy and entitled to vote at the Annual Meeting will be required to ratify the selection of OUM. Abstentions will be counted toward the tabulation of votes cast on proposals presented to the stockholders and will have the same effect as negative votes. Broker non-votes are counted towards a quorum, but are not counted for any purpose in determining whether this matter has been approved.
PRINCIPAL ACCOUNTANT FEES AND SERVICES
The following presents aggregate fees billed to us by OUM, our principal accountant for the years ended December 31, 2011 and 2010. All fees described were pre-approved by the Audit Committee.
Audit Fees. Audit fees billed were $278,801 for the year ended December 31, 2011 and $316,941 for the year ended December 31, 2010. The fees were for professional services rendered for the audit of our consolidated financial statements as of December 31, 2011, and the audit of our consolidated financial statements as of December 31, 2010, reviews of the financial statements included in our quarterly reports, consultations on matters that arose during our audit and reviews of SEC registration statements.
Audit-Related Fees. No audit-related fees were billed in the years ended December 31, 2011 and December 31, 2010.
Tax Fees. No tax fees were billed for the years ended December 31, 2011 and 2010.
All Other Fees. There were no other fees billed in the years ended December 31, 2011 and 2010.
The Audit Committee has determined that the rendering of certain services other than audit services by OUM is compatible with maintaining the principal accountant’s independence.
PRE-APPROVAL POLICIES AND PROCEDURES
The Audit Committee has adopted a policy and procedures for the pre-approval of audit and non-audit services rendered by our independent registered public accounting firm. The policy generally pre-approves specified services in the defined categories of audit services, audit-related services, and tax services up to specified amounts. Pre-approval may also be given as part of the Audit Committee’s approval of the scope of the engagement of our independent registered public accounting firm or on an individual explicit case-by-case basis before the independent registered public accounting firm is engaged to provide each service. The pre-approval of services may be delegated to one or more of the Audit Committee’s members, but the decision must be reported to the full Audit Committee at its next scheduled meeting.
THE BOARD OF DIRECTORS RECOMMENDS
A VOTE IN FAVOR OF PROPOSAL 2.
.
Equity Compensation Plan Information
|
Number of Securities
|
||||||||||||
|
Remaining Available
|
||||||||||||
|
Number of Securities
|
Weighted-Average
|
for Issuance Under
|
||||||||||
|
to be Issued Upon
|
Exercise Price of
|
Equity Compensation
|
||||||||||
|
Exercise of
|
Outstanding
|
Plans (Excluding Securities
|
||||||||||
|
Outstanding Options
|
Options
|
Reflected in Column (a))
|
||||||||||
|
Plan Category
|
(a)
|
(b)
|
(c)
|
|||||||||
|
Equity compensation plans approved by security holders (1)
|
497,139
|
$ |
19.52
|
185,397
|
||||||||
|
Equity compensation plans not approved by security holders (2)
|
15,675
|
$ |
35.78
|
63,250
|
||||||||
|
Total
|
512,814
|
$ |
20.01
|
248,647
|
||||||||
|
(1)
|
Includes the following: Employee Stock Purchase Plan, 1993 Interleaf Stock Option Plan, 1994 Interleaf Employee Stock Option Plan and Amended and Restated 2006 Equity Incentive Plan.
|
|
(2)
|
Includes the following: the 2000 Non-Officer Equity Incentive Plan (the “2000 Non-Officer Plan”) and non-plan grants. For more information - see Notes 1 and 8 to the Consolidated Financial Statements contained in our Annual Report on Form 10-K for the fiscal year ended December 31, 2011.
|
.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
Beneficial Ownership of BroadVision Common Stock
The following table sets forth certain information regarding the ownership of our common stock as of February 15, 2012 by: (a) each current director and each nominee for director; (b) each of the executive officers named in the Summary Compensation Table; (c) all of our current executive officers and directors as a group; and (d) all those known by us to be beneficial owners of more than five percent of its common stock.
|
Beneficial Ownership (1)
|
||||||||
|
Beneficial Owner
|
Number of
Shares(#)
|
Percent of Total(%)
|
||||||
|
Pehong Chen (2)
|
1,640,776 | 35.5 | % | |||||
|
James D. Dixon (3)
|
9,222 | * | ||||||
|
Robert Lee (4)
|
7,557 | * | ||||||
|
François Stieger (5)
|
4,956 | * | ||||||
|
Shin-Yuan Tzou (6)
|
35,364 | * | ||||||
|
Honu Holdings, LLC (2)
1600 Seaport Blvd., North Bldg., Suite 550,
Redwood City, CA 94063
|
1,380,000 | 30.1 | % | |||||
|
Funds Associated with Palo Alto Investors LLC (7)
470 University Avenue
Palo Alto, CA 94301
|
283,761 | 6.2 | % | |||||
|
All Current Directors and Executive Officers as a group (5 persons) (8)
|
1,697,875 | 36.5 | % | |||||
____________________
*Less than one percent
|
|
(1)
|
This table is based upon information supplied by officers, directors and principal stockholders and Schedules 13D and 13G filed with the SEC. Unless otherwise indicated in the footnotes to this table and subject to community property laws where applicable, we believe that each of the stockholders named in this table has sole voting and investment power with respect to the shares indicated as beneficially owned. Applicable percentages are based on 4,590,199 shares outstanding on February 15, 2012, adjusted as required by rules promulgated by the SEC. Our directors and executive officers can be reached at BroadVision, Inc., 1600 Seaport Blvd., Suite 550, North Bldg., Redwood City, California 94063.
|
|
|
(2)
|
Includes 234,999 shares held in trust by Dr. Chen and his wife for their benefit and 25,777 shares of common stock issuable upon the exercise of stock options exercisable within 60 days of February 15, 2012. Also includes 1,380,000 shares held by Honu Holdings, LLC, of which Dr. Chen is the sole member. Excludes 45,815 shares of common stock held in trust by independent trustees for the benefit of Dr. Chen’s children.
|
|
|
(3)
|
Includes 2,400 shares of common stock issuable upon the exercise of stock options exercisable within 60 days of February 15, 2012.
|
|
|
(4)
|
Includes 2,400 shares of common stock issuable upon the exercise of stock options exercisable within 60 days of February 15, 2012. Also includes 41 shares held in trust by Mr. Lee and his wife for their benefit.
|
|
|
(5)
|
Includes 800 shares of common stock issuable upon the exercise of stock options exercisable within 60 days of February 15, 2012.
|
|
|
(6)
|
Includes 23,124 shares of common stock issuable upon the exercise of stock options exercisable within 60 days of February 15, 2012.
|
|
|
(7)
|
Based on Form 13F filed with the SEC on February 13, 2012, Palo Alto Investors, LLC and Palo Alto Investors have shared voting and dispositive power with respect to 283,761 shares of common stock.
|
|
|
(8)
|
Includes the information contained in the notes above, as applicable, for our directors and executive officers as of February 15, 2012.
|
SECTION 16(A) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section 16(a) of the Exchange Act requires our directors and executive officers, and persons who own more than ten percent of a registered class of our equity securities, to file with the SEC initial reports of ownership and reports of changes in ownership of our Common Stock and other equity securities. Directors, officers and greater than ten percent stockholders are required by SEC regulations to furnish us with copies of all Section 16(a) forms they file.
To our knowledge, based solely on a review of the copies of such reports furnished to us and written representations that no other reports were required, during the fiscal year ended December 31, 2011 all Section 16(a) filing requirements applicable to its officers, directors and greater than ten percent beneficial owners were complied with.
EXECUTIVE COMPENSATION
SUMMARY COMPENSATION TABLE FOR FISCAL 2011 AND 2010
The following table shows for the fiscal years ended December 31, 2011 and 2010, compensation awarded to or paid to, or earned by, Pehong Chen, the Company’s Chief Executive Officer and Shin-Yuan Tzou, the Company’s Chief Financial Officer (the “Named Executive Officers”). We do not consider any officer or other employee of the Company or any subsidiary of the Company, other than Pehong Chen and Shin-Yuan Tzou, to be an executive officer of the Company.
|
Name and Principal Position
|
Year
|
Salary
($)
|
Bonus
($)
|
Stock Awards ($)
|
Option Awards ($)
|
Non-Equity Incentive Plan Compensation ($)
|
Nonqualified Deferred Compensation Earnings ($)
|
All Other Compensation ($)(1)
|
Total
|
||||||||||||||||||
|
Pehong Chen, CEO
|
2010
|
$ | 350,000 | $ | – | $ | – | $ | – | $ | 10,600 | $ | – | $ | 18,665 | $ | 379,265 | ||||||||||
|
2011
|
$ | 350,000 | $ | – | $ | – | $ | – | $ | – | $ | – | $ | 19,148 | $ | 369,148 | |||||||||||
|
Shin-Yuan Tzou, CFO
|
|||||||||||||||||||||||||||
|
2010
|
$ | 212,500 | $ | – | $ | – | $ | – | $ | 5,780 | $ | – | $ | 12,167 | $ | 230,447 | |||||||||||
|
2011
|
$ | 215,000 | $ | – | $ | – | $ | – | $ | – | $ | – | $ | 12,820 | $ | 227,820 | |||||||||||
|
(1)
|
Consists of company contributions for health insurance coverage, long term disability, short term disability and life insurance paid by the company in the same proportion as paid for all of our employees.
|
Employment, Severance and Change-in-Control
Each executive officer serves at the discretion of our board of directors. Our executive officers are employees-at-will and have not entered into written employment contracts with the Company. In connection with our employment practices, each executive officer is entitled to participate in the 2010 Bonus Plan, the 2011 Bonus Plan and the Amended and Restated 2006 Equity Incentive Plan and to benefits offered to other similarly situated employees as established by the Board from time to time.
Dr. Pehong Chen
Dr. Chen founded the Company in 1993 and has been our President and Chief Executive Officer since our founding. His base salary was set at $350,000 in 2002 and has not been increased or decreased since that time. In each of fiscal year 2010 and fiscal year 2011 the compensation committee decided not to change the base salary for Dr. Chen. Although we have been successful in controlling our expenses (which have been reduced through conscientious expense management and non-essential employee layoffs), the compensation committee did not feel that an increase in base salary or the grant of a stock or option award to Dr. Chen was appropriate given our operating performance. Additionally, the compensation committee has believed that a change in Dr. Chen’s base salary or equity award, is unnecessary to appropriately incentivize Dr. Chen, as his 35.5% ownership of the Company’s common stock adequately incentivizes Dr. Chen to maximize stockholder value. In 2010, Dr. Chen earned an incentive based bonus in the amount of $10,600, in connection with the achievement of certain operating results, as more fully described below. The decisions with regard to Dr. Chen’s salary were not based in any material respect on a comparison to a peer group.
Dr. Shin-Yuan Tzou
Dr. Tzou joined us in 1995. At that time, we entered into our standard offer letter with Dr. Tzou. He was subsequently promoted multiple times, most recently in January 2008 when he became our Chief Financial Officer. His base salary was set at $200,000 in fiscal year 2000 and was not increased in connection with any promotion. Although we have been successful in controlling our expenses (which have been reduced through conscientious expense management and non-essential employee layoffs), the compensation committee did not feel that an increase in base salary, a payment of a bonus or the grant of a stock or option award to Dr. Tzou was appropriate given our operating performance. Through the first quarter of 2010, the compensation committee believed that based on his long-term employment with us, Dr. Tzou’s compensation package was adequate to retain and incentivize him. In the Spring of 2010, at Dr. Tzou’s request, we approved a modest increase to Dr. Tzou’s base salary to $212,500 in order to continue to retain and incentivize him. Additionally, in 2010, Dr. Tzou earned an incentive based bonus in the amount of $5,780, in connection with the achievement of certain operating results, as more fully described below. The decisions with regard to Dr. Tzou’s salary were not based in any material respect on a comparison to a peer group. In fiscal year 2011, the compensation committee determined that no additional increases to Dr. Tzou’s base salary were necessary to retain and incentivize him.
Cash Bonuses, Stock Awards and Option Awards
In both 2010 and 2011, the compensation committee concluded that although we had been successful in managing operating costs, in light of the uncertainties created by (a) our increased reliance on new products and a new software as a service pricing structure and (b) the continued concerns regarding a slow economic recovery no awards would be made to Named Executive Officers pursuant to our Employee Profit Sharing Plan (the “EPSP”).
The EPSP is designed to reward the achievement of certain shorter-term performance objectives (including the achievement of certain levels of EBITDA). The determination to fund the EPSP and the subsequent determination of whether to pay any award from such fund, including to the Named Executive Officers, is entirely at the discretion of the compensation committee and although the committee takes into account such performance metrics such as EBITDA, there is no fixed or stated corporate performance target or targets that trigger either the funding or any payments from the EPSP. Similarly, decisions regarding other compensation components for the Named Executive Officers are at the discretion of the compensation committee and are not based on set corporate performance targets. Specific, set quantitative performance targets are not used in the determination of the funding or payment of the EPSP or other compensation components. With regard to the qualitative performance factors considered in awarding each component of compensation to the Named Executive Officers, the compensation committee may take into account a range of qualitative factors, such as our achievement of profitability, our external reputation and the global economic condition, generally, but it has historically not set a defined list of qualitative criteria that comprise the sum total of criteria that are considered.
In early 2011 we paid incentive-based bonuses to our Named Executive Officers, as well as to other employees. These incentive-based bonuses were paid based on quantitative and qualitative criteria for 2010 relating primarily to corporate profitability, meeting product release schedules, business development goals and maintenance contract bookings, all as set by our CEO. Our CEO did not set specific performance targets, nor did it communicate specific performance targets to potential bonus recipients. In early 2011 our CEO determined what amounts to pay out based on a general assessment of individual and corporate performance and corporate priorities.
For fiscal 2011, the compensation committee paid no performance-based bonus to the Named Executive Officers and otherwise determined that no new incentive-based or equity-based compensation was needed for the Named Executive Officers.
The material terms of Dr. Chen’s and Dr. Tzou’s severance arrangements are described in the Section below entitled “Potential Payments Upon Termination or Change of Control”.
Perquisites
The perquisites we provided in fiscal 2011 are as follows: All employees, including Drs. Chen and Tzou are eligible to participate in the 401(k) retirement plan if they so choose. Our 401(k) plan is administered by Fidelity Investments and brokered by the NWK Group. In fiscal year 2010 and fiscal year 2011 we did not make any payments to match any funds contributed by our employees, including to our Named Executive Officers. In July 2011 a discretionary match was introduced for all employees participating in the 401(k) retirement plan, including our Named Executive Officers. The match was paid in January 2012. Our health and insurance plans for Drs. Chen and Tzou are the same plans that we provide to all employees. Each of Dr. Chen and Dr. Tzou pay 20% of the health premium due. We do not provide other perquisites such as country club memberships, use of jet aircraft, limousine service, estate or financial planning services to Dr. Chen or Dr. Tzou. We do not provide pension arrangements or post-retirement health coverage for our executives, except in connection with the Severance Benefit Plan which is described below.
.
OUTSTANDING EQUITY AWARDS AT DECEMBER 31, 2011
The following table shows for the fiscal year ended December 31, 2011, certain information regarding outstanding equity awards at fiscal year end for our Named Executive Officers:
|
Option Awards
|
Stock Awards
|
||||||||||||||||||||||||||
|
Name
|
Number of Securities Underlying Unexercised Options (#) Exercisable
|
Number of Securities Underlying Unexercised Options (#) Unexercisable
|
Equity Incentive Plan Awards: Number of Securities Underlying Unexercised Unearned Options (#) (1)
|
Option Exercise Price ($)
|
Option Expiration Date
|
Number of Shares or Units of Stock That Have Not Vested (#)
|
Market Value of Shares or Units of Stock That Have Not Vested ($)
|
Equity Incentive Plan Awards: Number of Unearned Shares, Units or Other Rights That Have Not Vested (#)
|
Equity Incentive Plan Awards: Market or Payout Value of Unearned Shares, Units or Other Rights That Have Not Vested ($)
|
||||||||||||||||||
| Pehong Chen | 2,222 | – | – | $ | 465.75 |
2/19/2012 (2)
|
– | $ | – | – | $ | – | |||||||||||||||
| 25,777 | – | – | $ | 54.00 |
10/30/2012 (3)
|
– | $ | – | – | $ | – | ||||||||||||||||
| Shin-Yuan Tzou | 266 | – | – | $ | 198.00 | 5/30/2012 (4) | – | $ | – | – | $ | – | |||||||||||||||
| 2,920 | – | – | $ | 37.50 |
10/23/2012 (5)
|
– | $ | – | – | $ | – | ||||||||||||||||
| 12,480 | – | – | $ | 14.25 |
3/3/2016 (6)
|
– | $ | – | – | $ | – | ||||||||||||||||
| 6,000 | – | – | $ | 29.25 |
4/16/2018 (7)
|
– | $ | – | – | $ | – | ||||||||||||||||
| 833 | 9,167 | – | $ | 9.31 |
8/24/2021 (8)
|
– | $ | – | – | $ | – | ||||||||||||||||
____________________
|
(1)
|
We do not issue stock options in any direct formulaic performance based plan.
|
|
(2)
|
The option was granted on February 19, 2002 and has a 10 year term. The option vested monthly over 48 consecutive months and was fully vested on February 1, 2006.
|
|
(3)
|
The option was granted on October 30, 2002 and has a 10 year term. The option vested monthly over 48 consecutive months and was fully vested on October 1, 2006.
|
|
(4)
|
The option was granted on May 30, 2002 and has a 10 year term. The 111 shares subject to such option were fully vested on May 30, 2003. The remaining 155 shares of this option vested monthly over 48 consecutive months and were fully vested on May 1, 2006.
|
|
(5)
|
The option was granted on October 23, 2002 and has a 10 year term. The option vested monthly over 48 consecutive months and was fully vested on October 1, 2006.
|
|
(6)
|
The option was granted on March 3, 2006 and has a 10 year term. The option vested monthly over 24 consecutive months and was fully vested on March 3, 2008.
|
|
(7)
|
The option was granted on April 16, 2008 and has a 10 year term. The option vested monthly over 36 consecutive months and was fully vested on April 16, 2011.
|
|
(8)
|
The option was granted on August 24, 2011 and has a 10 year term. The option vested monthly over 48 consecutive months and will be fully vested on August 24, 2015.
|
POTENTIAL PAYMENTS UNDER SEVERANCE BENEFIT PLAN AND CHANGE OF CONTROL PLAN
The table below describes the amounts of current and future compensation benefits that our Named Executive Officers would receive under various change of control or termination scenarios as of December 31, 2011. Under our 2011 benefit plan the benefits are the same for a voluntary termination, early retirement, or normal retirement on December 31, 2011. Our Change of Control Plan, in the context of an Involuntary Termination Without Cause or a Constructive Termination (each as defined therein), only provides for benefits intended to compensate management for lost wages and longer term health and displacement benefits. There are certain graduated levels of benefits for the executives depending upon their responsibility levels and seniority with the company. Under the Involuntary Termination Without Cause scenario the benefits are reduced, while a For Cause Termination would result in little or no benefits beyond those earned up to the termination date, assumed for purposes of this table to be midnight December 31, 2011. This means the For Cause terminated employee would be entitled to only shares and stock options vested, profit sharing and accrued vacation earned through December 31, 2011 and no further compensation. In the case of disability on December 31, 2011, the employee would be entitled to the additional benefits of long-term disability insurance payouts for up to one year. In the case of death on December 31, 2011, the benefit additional to the employee would include the present value of all life insurance proceeds until normal retirement age of 65.
Under our Severance Benefit Plan (the “Plan”), Dr. Chen’s Involuntary Termination Without Cause severance consists of (i) payment of twelve months of his base salary; (ii) payment of the same portion of the premiums for continued medical and any other applicable health insurance coverage under COBRA as the Company paid prior to such termination; and (iii) the vesting of a pro-rata portion of any unvested equity compensation awards that would have vested within twelve months of his termination date. Under our Change of Control Plan, Dr. Chen’s severance consists of (i) payment of twenty-four months of his base salary; (ii) payment of the same portion of the premiums for continued medical and any other applicable health insurance coverage under COBRA as the Company paid prior to the Change of Control; and (iii) the vesting of a pro-rata portion of any unvested equity compensation awards that would have vested within twelve months of his termination date.
Under the Plan, Dr. Tzou’s Involuntary Termination Without Cause severance consists of (i) payment of six months of his base salary; (ii) payment of the same portion of the premiums for continued medical and any other applicable health insurance coverage under COBRA as the Company paid prior to such termination; and (iii) the vesting of a pro-rata portion of any unvested equity compensation awards that would have vested within twelve months of his termination date. Under our Change of Control Plan, Dr. Tzou’s severance consists of (i) payment of fifteen months of his base pay; (ii) payment of the same portion of the premiums for continued medical and any other applicable health insurance coverage under COBRA as the Company paid prior to the Change of Control; and (iii) the vesting of a pro-rata portion of any unvested equity compensation awards that would have vested within twelve months of his termination date.
.
TERMINATION OR CHANGE OF CONTROL
|
Executive Benefits and Payments Upon Separation
|
Voluntary Termination on 12/31/11 ($)
|
Early Retirement on 12/31/11 ($)
|
Normal Retirement on 12/31/11 ($)
|
Involuntary Not For Cause Termination on 12/31/11 ($)
|
For Cause Termination on 12/31/11 ($)
|
Involuntary For Good Reason Termination (Change in Control) on 12/31/11 ($)
|
Disability on 12/31/11 ($)
|
Death on 12/31/11 ($)
|
|||||||||||||||||
|
Pehong Chen
|
|||||||||||||||||||||||||
|
Compensation:
|
|||||||||||||||||||||||||
|
Short-Term Incentive Compensation
|
$ | - | $ | - | $ | - | $ | - | $ | - | $ | - | $ | - | $ | - | |||||||||
|
Stock Options
|
$ | - | $ | - | $ | - | $ | - | $ | - | $ | - | $ | - | $ | - | |||||||||
|
Benefits & Perquisites:
|
|||||||||||||||||||||||||
|
Deferred Compensation Program
|
$ | - | $ | - | $ | - | $ | - | $ | - | $ | - | $ | - | $ | - | |||||||||
|
Health & Welfare Benefits
|
$ | 1,545 | $ | 1,545 | $ | 1,545 | $ | 18,540 | $ | - | $ | 37,080 | $ | - | $ | - | |||||||||
|
Disability Income
|
$ | - | $ | - | $ | - | $ | - | $ | - | $ | - | $ | 1,245,199 | $ | - | |||||||||
|
Life Insurance Benefits
|
$ | - | $ | - | $ | - | $ | - | $ | - | $ | - | $ | - | $ | 500,000 | |||||||||
|
Cash Severance
|
$ | - | $ | - | $ | - | $ | 350,000 | $ | - | $ | 700,000 | $ | - | $ | - | |||||||||
|
Accrued Vacation Pay
|
$ | 41,057 | $ | 41,057 | $ | 41,057 | $ | 41,057 | $ | 41,057 | $ | 41,057 | $ | 41,057 | $ | 41,057 | |||||||||
|
Shin-Yuan Tzou
|
|||||||||||||||||||||||||
|
Compensation:
|
|||||||||||||||||||||||||
|
Short-Term Incentive Compensation
|
$ | - | $ | - | $ | - | $ | - | $ | - | $ | - | $ | - | $ | - | |||||||||
|
Stock Options
|
$ | - | $ | - | $ | - | $ | - | $ | - | $ | - | $ | - | $ | - | |||||||||
|
Benefits & Perquisites:
|
|||||||||||||||||||||||||
|
Deferred Compensation Program
|
$ | - | $ | - | $ | - | $ | - | $ | - | $ | - | $ | - | $ | - | |||||||||
|
Health & Welfare Benefits
|
$ | 1,065 | $ | 1,065 | $ | 1,065 | $ | 6,390 | $ | - | $ | 15,975 | $ | - | $ | - | |||||||||
|
Disability Income
|
$ | - | $ | - | $ | - | $ | - | $ | - | $ | - | $ | 1,245,199 | $ | - | |||||||||
|
Life Insurance Benefits
|
$ | - | $ | - | $ | - | $ | - | $ | - | $ | - | $ | - | $ | 430,000 | |||||||||
|
Cash Severance
|
$ | - | $ | - | $ | - | $ | 107.500 | $ | - | $ | 268,750 | $ | - | $ | - | |||||||||
|
Accrued Vacation Pay
|
$ | 19,292 | $ | 19,292 | $ | 19,292 | $ | 19,292 | $ | 19,292 | $ | 19,292 | $ | 19,292 | $ | 19,292 | |||||||||
Disability Income:
Assumes Present Value of all Future Benefits Until Normal Retirement Age
|
Name
|
Age on
12/31/11
|
Years to
Age 65
|
Discount Rate
1.1%
|
Present Value
of the Annuity
|
||||||||||||
|
Pehong Chen
|
54 | 11 | 1.1 | % | $ | 1,245,199 | ||||||||||
|
Shin-Yuan Tzou
|
54 | 11 | 1.1 | % | $ | 1,245,199 | ||||||||||
Severance Benefit Plan
On March 26, 2007, our Board approved the Plan for certain of our eligible employees. The Plan provides for the payment of certain benefits to employees if (i) the employee has been continuously employed for a period of one year or more; (ii) if we terminate the employee’s employment pursuant to (a) an Involuntary Termination Without Cause or (b) Constructive Termination within one month prior to or 24 months following a Change of Control; and (iii) we notify the employee in writing that he or she is eligible for participation in the Plan. Such notification will include details of the level(s) of participation applicable to the Eligible Employee. We, in our sole discretion, will make determinations as to whether employees are “Eligible Employees.” We have made no such determinations to date. Undefined capitalized terms in this description are defined in the Plan. The Plan is meant to replace all prior arrangements and plans we previously have maintained, other than local plans for specific subsidiaries or countries.
The Plan provides for the following benefits:
No change of control
Designated Eligible Employees involuntarily terminated without cause shall receive a cash severance benefit (in addition to certain other benefits as detailed in the Plan) in accordance with our then-current payroll practices as follows:
|
Employee Designation
|
Base
|
Accrual/Yr
|
Maximum
|
|||
|
CEO
|
6.00 Mo.
|
1.00 Mo./Yr.
|
12.00 Mo.
|
|||
|
EVP
|
3.00 Mo.
|
0.50 Mo./Yr.
|
6.00 Mo.
|
|||
|
SVP
|
2.00 Mo.
|
0.50 Mo./Yr.
|
4.00 Mo.
|
|||
|
VP
|
1.00 Mo.
|
0.50 Mo./Yr.
|
2.00 Mo.
|
|||
|
All Other
|
0.50 Mo.
|
0.08 Mo./Yr.
|
1.00 Mo.
|
Change of control
There are three categories of Eligible Employees covered in a Change of Control situation: Level I, Level II and Level III as hereinafter defined. Level I Eligible Employees are defined as those Company Executive Officers designated by the Compensation Committee as Level I Eligible Employees. Level II Eligible Employees are defined as those Non-Executive Company Officers who report directly to the CEO and who are designated by the CEO as Level II Eligible Employees. Level III Eligible Employees are defined as those Non-Executive Company Officers and Department Managers who report either directly to the CEO or to Level II Eligible Employees and who are designated by the CEO as Level III Eligible Employees.
Designated Eligible Employees terminated shall receive a cash severance benefit (in addition to certain other benefits as detailed in the Plan) in accordance with our then-current payroll practices as follows:
|
Employee Level
|
Base (Number of Mo. Base Salary After 1 Year Tenure)
|
Accelerator (Number of Mo. Base Salary Accrued Per Each Yr. of Additional Tenure)
|
Maximum Years Tenure Accelerator Applied
|
Maximum Months Base Salary Accrual Allowed
|
||||
|
Level I
|
9
|
1.25
|
12
|
24
|
||||
|
Level II
|
6
|
1.00
|
9
|
15
|
||||
|
Level III
|
3
|
0.75
|
8
|
9
|
The vesting and exercisability of unvested stock options held by an Eligible Employee that are outstanding as of the Eligible Employee’s termination date, beginning with the earliest unvested installments, shall be accelerated according to the following chart:
|
Employee Level
|
Base (Percentage
of Unvested Stock Options Accelerated After
1 Year Tenure)
|
Accelerator (Percentage
of Unvested Stock Options Accelerated Per Each Yr.
of Additional Tenure)
|
Maximum (Total % of Unvested Stock Options Allowed to be Accelerated)
|
|||
|
Level I
|
30%
|
7.8%
|
100%
|
|||
|
Level II
|
25%
|
6.1%
|
80%
|
|||
|
Level III
|
20%
|
4.4%
|
60%
|
.
DIRECTOR COMPENSATION FOR FISCAL 2011
The following table shows for the fiscal year ended December 31, 2011 certain information with respect to the compensation of all non-employee directors of the Company:
|
Name
|
Earned or Paid in Cash
|
Stock Awards
|
Option Awards
|
Non-Equity Incentive Plan Compensation
|
Nonqualified Deferred Compensation Earnings
|
All Other Compensation
|
Total
|
|||||||||||||||
|
($)
|
($)
|
($)
|
($)
|
($)
|
($)
|
($)
|
||||||||||||||||
|
Robert Lee
|
-
|
$
|
9,987
|
-
|
-
|
-
|
-
|
$
|
9,987
|
|||||||||||||
|
James Dixon
|
-
|
$
|
14,988
|
-
|
-
|
-
|
-
|
$
|
14,988
|
|||||||||||||
|
François Stieger
|
-
|
$
|
9,987
|
-
|
-
|
-
|
-
|
$
|
9,987
|
|||||||||||||
Overview of Director Compensation and Procedures
We compensate non-employee members of the board through grants of restricted common stock. We do not pay our non-employee directors any cash remuneration other than reimbursement of travel expenses and deminimus items.
Equity Compensation for Non-Employee Directors. Pursuant to the 2006 Equity Incentive Plan, in 2011 each non-employee director was granted restricted Common Stock in an amount equal to $10,000 ($15,000, in the case of the individual serving as the audit committee chairman as of immediately following the Annual Meeting) divided by the last trading price of the Company’s common stock on the trading day immediately prior to the date of the annual meeting of stockholders as quoted on the principal trading market for the common stock. Each such grant vests over a one-year period measured from the date of the Annual Meeting, with one quarter of the shares included in each such grant vesting on each of the dates that are three months, six months, nine months and twelve months from the Annual Meeting, so long as the recipient continues to serve as a member of the Company’s board. These restricted shares are granted at 100% of the fair market value of the Common Stock on the date of grant. The annual grants are discretionary and are granted upon action by the Company’s Board.
.
CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS
Except as set forth below, since January 1, 2011, there has not been, nor is there currently proposed, any transaction or series of similar transactions to which we were or are a party in which the amount involved exceeds or exceeded $120,000 or 1% of the average of the Company’s total assets at the end of the last two completed fiscal years and in which any director, executive officer or beneficial holder of more than 5% of any class of our voting securities or members of such person’s immediate family had or will have a direct or indirect material interest other than as described below. It is our policy that future transactions between us and any of our directors, executive officers or related parties will be subject to the review and approval of our Audit Committee or other committee comprised of independent, disinterested directors.
On November 14, 2008, BroadVision (Delaware) LLC, a Delaware limited liability company (“BVD”), which was then our wholly owned subsidiary, entered into a Share Purchase Agreement with CHRM LLC, a Delaware limited liability company, that is controlled by Dr. Pehong Chen, our CEO and largest stockholder. We and CHRM LLC then entered into an Amended and Restated Operating Agreement of BroadVision (Delaware) LLC dated as of November 14, 2008 (the “BVD Operating Agreement”). Under these agreements, CHRM LLC received, in exchange for the assignment of certain intellectual property rights, 20 Class B Shares of BVD, representing the right to receive 20% of any “net profit” from a “capital transaction” (as such terms are defined in the BVD Operating Agreement) of BroadVision (Barbados) Limited (“BVB”), an entity wholly owned by BVD. A “capital transaction” under that agreement is any merger or sale of substantially all of the assets of BVB as a result of which the members of BVB will no longer have an interest in BVB or the assets of BVB will be distributed to its members. BVB is the sole owner of BroadVision On Demand, a Chinese entity (“BVOD”). We have invested approximately $5.4 million in BVOD (directly and through BVD and BVB) to date and expect to continue to make additional investments in BVOD of approximately $400,000 per quarter for the foreseeable future.
Director and Officer Indemnification
Our revised and restated certificate of incorporation contains provisions limiting the liability of directors. In addition, we have entered into agreements to indemnify our directors and executive officers to the fullest extent permitted under Delaware law.
We have entered into indemnity agreements with certain officers and directors that provide, among other things, that we will indemnify such officer or director, under the circumstances and to the extent provided for in such agreement, for expenses, damages, judgments, fines and settlements he or she may be required to pay in actions or proceedings to which he or she is or may be made a party be reason of his or her position as a director, officer or other agent of BroadVision, and otherwise to the full extent permitted under Delaware law and our Bylaws.
.
HOUSEHOLDING OF PROXY MATERIALS
The SEC has adopted rules that permit companies and intermediaries (e.g., brokers) to satisfy the delivery requirements for Notices of Internet Availability of Proxy Materials or other Annual Meeting materials with respect to two or more stockholders sharing the same address by delivering a single Notice of Internet Availability of Proxy Materials or other Annual Meeting materials addressed to those stockholders. This process, which is commonly referred to as “householding,” potentially means extra convenience for stockholders and cost savings for companies.
This year, a number of brokers with account holders who are our stockholders will be “householding” our proxy materials. A single Notice of Internet Availability of Proxy Materials will be delivered to multiple stockholders sharing an address unless contrary instructions have been received from the affected stockholders. Once a stockholder has received a broker notice that it will be “householding” communications to that stockholder’s address, “householding” will continue until the stockholder is notified otherwise or until consent is revoked. If, at any time, the stockholder no longer wishes to participate in “householding” and would prefer to receive a separate Notice of Internet Availability of Proxy Materials, that stockholder should notify the broker or direct a written request to: Corporate Secretary, BroadVision, Inc., 1600 Seaport Boulevard, Suite 550, North Building, Redwood City, California 94063 or contact Investor Relations at (650) 331-1000. Stockholders who currently receive multiple copies of the Notice of Internet Availability of Proxy Materials at their address and would like to request “householding” of their communications should contact their broker.
OTHER MATTERS
The Board of Directors knows of no other matters that will be presented for consideration at the Annual Meeting. If any other matters are properly brought before the meeting, it is the intention of the persons named in the accompanying proxy to vote on such matters in accordance with their best judgment.
By Order of the Board of Directors
/s/ Sandra Adams
Sandra Adams
Secretary and General Counsel
April 25, 2012
A copy of our Annual Report to the Securities and Exchange Commission on Form 10-K for the fiscal year ended December 31, 2011 is available without charge upon written request to: Corporate Secretary, BroadVision, Inc., 1600 Seaport Boulevard, Suite 550, North Building, Redwood City, California 94063.
.
