NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
March 31, 2007
(Unaudited)
1. SIGNIFICANT ACCOUNTING POLICIES
Description of Business
Immersion Corporation (the Company) was incorporated in 1993 in
California and reincorporated in Delaware in 1999 and develops, manufactures, licenses, and
supports a wide range of hardware and software technologies and products that enhance digital
devices with touch interaction.
Principles of Consolidation and Basis of Presentation
The condensed consolidated financial
statements include the accounts of Immersion Corporation and its majority-owned subsidiaries. All
intercompany accounts, transactions, and balances have been eliminated in consolidation.
The accompanying condensed consolidated financial statements have been prepared in accordance
with accounting principles generally accepted in the United States of America (GAAP) for interim
financial information and with the instructions for Form 10-Q and Article 10 of Regulation S-X and,
therefore, do not include all information and footnotes necessary for a complete presentation of
the financial position, results of operations, and cash flows, in conformity with accounting
principles generally accepted in the United States of America. These condensed consolidated
financial statements should be read in conjunction with the Companys audited consolidated
financial statements included in the Companys Annual Report on Form 10-K for the fiscal year ended
December 31, 2006. In the opinion of management, all adjustments consisting of only normal
recurring items necessary for the fair presentation of the financial position and results of
operations for the interim periods have been included.
The results of operations for the interim periods ended March 31, 2007 are not necessarily
indicative of the results to be expected for the full year.
Revenue Recognition
The Company recognizes revenues in accordance with applicable accounting
standards, including Staff Accounting Bulletin (SAB) No. 104, Revenue Recognition (SAB No.
104), Emerging Issues Task Force (EITF) No. 00-21, Accounting for Revenue Arrangements with
Multiple Deliverables (EITF No. 00-21), and the American Institute of Certified Public
Accountants (AICPA) Statement of Position (SOP) 97-2, Software Revenue Recognition, as
amended. Revenue is recognized when persuasive evidence of an arrangement exists, delivery has
occurred or service has been rendered, the fee is fixed and determinable, and collectibility is
probable. The Company derives its revenues from three principal sources: royalty and license fees,
product sales, and development contracts.
Royalty and license revenue
The Company recognizes royalty and license revenue based on
royalty reports or related information received from the licensee as well as time-based licenses of
its intellectual property portfolio. Up-front payments under license agreements are deferred and
recognized as revenue based on either the royalty reports received or amortized over the license
period depending on the nature of the agreement. Advance payments under license agreements that
also require the Company to provide future services to the licensee are deferred and recognized
over the service period when vendor-specific objective evidence (VSOE) related to the value of
the services does not exist.
The Company generally recognizes revenue from its licensees under one or a combination of the
following models:
License revenue model
Revenue recognition
Perpetual license of intellectual
property portfolio based on per unit
royalties, no services contracted.
Based on royalty reports received
from licensees. No further
obligations to licensee exist.
Time-based license of intellectual
property portfolio with up-front
payments and/or annual minimum
royalty requirements, no services
contracted. Licensees have certain
rights to updates to the intellectual
property portfolio during the
contract period.
Based on straight-line amortization
of annual minimum/up-front payment
recognized over contract period or
annual minimum period.
Perpetual license of intellectual
property portfolio or technology
license along with contract for
development work.
Based on cost-to-cost
percentage-of-completion accounting
method over the service period.
Obligation to licensee exists until
development work is complete.
License of software or technology, no
modification necessary, no services
contracted.
Up-front revenue recognition based
on SOP 97-2 criteria or EITF No.
00-21, as applicable.
Individual contracts may have characteristics that do not fall within a specific license model
or may have characteristics of a combination of license models. Under those circumstances, the
Company recognizes revenue in accordance with SAB No. 104, EITF No. 00-21, and SOP 97-2, as
amended, to guide the accounting treatment for each individual contract. See also the discussion
regarding Multiple element arrangements below. If the information received from the Companys
licensees regarding royalties is incorrect or inaccurate, the Companys revenues in future periods
may be adversely affected. To date, none of the information the Company has received from its
licensees has caused any material adjustment to period revenues.
Product sales
The Company recognizes revenues from product sales when the product is
shipped, provided that collection is determined to be probable and no significant obligation
remains. The Company sells the majority of its products with warranties ranging from 3 to 24
months. The Company records the estimated warranty costs during the quarter the revenue is
recognized. Historically, warranty-related costs and related accruals have not been significant.
The Company offers a general right of return on the MicroScribe
®
product line for 14 days after
purchase. The Company recognizes revenue at the time of shipment of a MicroScribe digitizer and
provides an accrual for potential returns based on historical experience. The Company offers no
other general right of return on its products.
Development contracts and other revenue
Development contracts and other revenue is comprised
of professional services (consulting services and/or development contracts), customer support, and
extended warranty contracts. Development contract revenues are recognized under the cost-to-cost
percentage-of-completion accounting method based on physical completion of the work to be
performed. Losses on contracts are recognized when determined. Revisions in estimates are reflected
in the period in which the conditions become known. Customer support and extended warranty contract
revenue is recognized ratably over the contractual period.
Multiple element arrangements
The Company enters into revenue arrangements in which the
customer purchases a combination of patent, technology, and/or software licenses, products,
professional services, support, and extended warranties (multiple element arrangements). When VSOE
of fair value exists for all elements, the Company allocates revenue to each element based on the
relative fair value of each of the elements. The price charged when the element is sold separately
generally determines the fair value or VSOE.
The Companys revenue recognition policies are significant because the Companys revenues are
a key component of its results of operations. In addition, the Companys revenue recognition
policies determine the timing of certain expenses, such as commissions and royalties.
Recent Accounting Pronouncements
In June 2006, the Financial Accounting Standards Board
(FASB) issued Financial Interpretation No. 48, Accounting for Uncertainty in Income Taxes (FIN
48). FIN 48 clarifies the accounting for uncertainty in income taxes recognized in an enterprises
financial statements in accordance with Statement of Financial Accounting Standard (SFAS) No. 109
Accounting for Income Taxes
,
(SFAS No. 109). FIN 48 prescribes a two-step process to determine
the amount of benefit to be recognized. First, the tax position must be evaluated to determine the
likelihood that it will be sustained upon examination. If the tax position is deemed
more-likely-than-not to be sustained, the tax position is then measured to determine the amount
of benefit to recognize in the financial statements. The tax position is measured at the largest
amount of benefit that is greater than 50 percent likely of being realized upon ultimate
settlement. The Company adopted the provisions of FIN 48 on January 1, 2007. The adoption of FIN
48 resulted in no adjustment to beginning retained earnings as the Company had a full valuation
allowance on the deferred tax assets as of the adoption date. See Note 11.
In September 2006, the FASB issued Statement No. 157, Fair Value Measurements, (SFAS No.
157). SFAS No. 157 establishes a framework for measuring fair value by providing a standard
definition for fair value as it applies to assets and liabilities. SFAS No. 157, which does not
require any new fair value measurements, clarifies the application of other accounting
pronouncements that require or permit fair value measurements. The effective date for the Company
is January 1, 2008. The Company is currently evaluating the effect that the adoption of SFAS No.
157 will have on its financial position and results of operations.
In February 2007, the FASB issued Statement No. 159, The Fair Value Option for Financial
Assets and Financial Liabilities (SFAS No. 159). The new Statement allows entities to choose, at
specified election dates, to measure eligible financial assets and liabilities at fair value in
situations in which they are not otherwise required to be measured at
fair value. If a company elects the fair value option for an eligible item, changes in that
items fair value in subsequent reporting periods must be recognized in current earnings. SFAS No.
159 also establishes presentation and disclosure requirements designed to draw comparison between
entities that elect different measurement attributes for similar assets and liabilities. SFAS No.
159 is effective for fiscal years beginning after November 15, 2007. Early adoption is permitted
subject to specific requirements outlined in the new Statement. The Company is currently evaluating
the effect that the adoption of SFAS No. 159 will have on its financial position and results of
operations.
Accumulated amortization of patents and technology
(5,973
)
(5,731
)
Intangibles and other assets, net
$
8,758
$
7,385
The estimated annual amortization expense for intangible assets as of March 31, 2007 is
$937,000 in 2007, $830,000 in 2008, $827,000 in 2009, $756,000 in
2010, $714,000 in 2011, and $3.6
million thereafter.
5. COMPONENTS OF OTHER CURRENT LIABILITIES AND DEFERRED REVENUE AND CUSTOMER ADVANCES
March 31,
December 31,
2007
2006
(In thousands)
Accrued legal
$
412
$
256
Other current liabilities
1,722
1,494
Total other current liabilities
$
2,134
$
1,750
Deferred revenue
$
4,770
$
1,646
Customer advances
49
70
Total current deferred revenue and customer advances
$
4,819
$
1,716
Deferred revenue at March 31, 2007 includes $3.0 million representing the current portion of
deferred revenue from Sony Computer Entertainment. See Note 10 for further discussion.
6. LONG-TERM DEBT
5% Senior Subordinated Convertible Debenture (5% Convertible Debenture)
On December 23,
2004, the Company issued an aggregate principal amount of $20.0 million of 5% Convertible
Debentures. The 5% Convertible Debentures will mature on December 22, 2009. The amount payable at
maturity of each 5% Convertible Debenture is the initial principal plus all accrued but unpaid
interest thereon, to the extent such principal amount and interest have not been converted into
common shares or previously paid in cash. The Company cannot prepay the 5% Convertible Debenture
except as described below in Mandatory Conversion and Mandatory Redemption of 5% Convertible
Debentures at the Companys Option. Interest accrues daily on the principal amount of the 5%
Convertible Debenture at a rate of 5% per year and is payable on the last day of each calendar
quarter. Interest will cease to accrue on that portion of the 5% Convertible Debenture that is
converted or paid, including pursuant to conversion rights or rights of redemption. The holder of
a 5% Convertible Debenture has the right to convert the outstanding principal amount and accrued
and unpaid interest, in whole or in part, into the Companys common shares at a price of $7.0265
per common share, the Conversion Price. In the event of a change of control, a holder may require
the Company to redeem all or a portion of its 5% Convertible Debenture. This is referred to as the
Put Option. The redeemed portion shall be redeemed at a price equal to the redeemed amount
multiplied by 100% of the principal amount of the 5% Convertible Debenture. The Conversion Price
will be reduced in certain instances when the Company sells, or is deemed to have sold shares of
common stock at a price less than the applicable Conversion Price, including the issuance of
certain options, the issuance
of convertible securities, or the change in exercise price or rate of
conversion for options or convertible securities. The Conversion Price will be proportionately
adjusted if the Company subdivides (by stock split, stock dividend, recapitalization, or otherwise)
or combines (by combination, reverse stock split, or otherwise) one or more classes of its common
stock. So long as any 5% Convertible Debentures are outstanding, the Company will not, nor will
the Company permit any of its subsidiaries to directly or indirectly incur or guarantee, assume or
suffer to exist, any indebtedness other than permitted indebtedness under the 5% Convertible
Debenture agreement. If an event of default occurs, and is continuing with respect to any of the
Companys 5% Convertible Debentures, the holder may, at its option, require the Company to redeem
all or a portion of the 5% Convertible Debenture.
Mandatory Conversion and Mandatory Redemption of 5% Convertible Debentures at the Companys
Option
If the daily volume-weighted average price of the Companys common shares is at or above
200% of the Conversion Price
for at least 20 consecutive trading days and certain other conditions are met, the Company has
the right to (i) require the holder of a 5% Convertible Debenture to convert the 5% Convertible
Debenture in whole, including interest, into shares of the Companys common stock at a price of
$7.0265 per common share, as may be adjusted under the debenture, as set forth and subject to the
conditions in the 5% Convertible Debenture, or (ii) redeem the 5% Convertible Debenture. If the
Company makes either of the foregoing elections with respect to any 5% Convertible Debenture, the
Company must make the same election with respect to all 5% Convertible Debentures.
Warrants
On December 23, 2004, in connection with the issuance of the 5% Convertible
Debentures, the Company issued warrants to purchase an aggregate of 426,951 shares of its common
stock at an exercise price of $7.0265. The warrants may be exercised at any time prior to 5:00 p.m.
Eastern time, on December 23, 2009. Any warrants not exercised prior to such time will expire.
The exercise price will be reduced in certain instances where shares of common stock are sold or
deemed to be sold at a price less than the applicable exercise price, including the issuance of
certain options, the issuance of convertible securities, or the change in exercise price or rate of
conversion for option or convertible securities. The exercise price will be proportionately
adjusted if the Company subdivides (by stock split, stock dividend, recapitalization, or otherwise)
or combines (by combination, reverse stock split, or otherwise) one or more classes of its common
stock.
Registration Rights
On April 18, 2005, the Companys registration statement relating to the
5% Convertible Debentures and the shares of common stock issuable upon conversion of the debentures
and exercise of the warrants was declared effective by the Securities and Exchange Commission
(SEC). The Company expects to keep this registration statement effective until the earlier of
(i) such time as all of the shares covered by the prospectus have been disposed of pursuant to and
in accordance with the registration statement, or (ii) the date on which the shares may be sold
pursuant to Rule 144(k) of the Securities Act.
The Company incurred approximately $1.3 million in issuance costs and other expenses in
connection with the offering. This amount has been deferred and is being amortized to interest
expense over the term of the 5% Convertible Debenture. Additionally, the Company evaluated the
various instruments included in the agreements entered into on December 22, 2004 and allocated the
relative fair values to be as follows: warrants $1.7 million, Put Option $0.1 million,
Registration Rights $0.1 million, issuance costs $1.3 million, 5% Convertible Debenture $16.8
million. The 5% Convertible Debentures will be accreted to $20.0 million over their five-year
life, resulting in additional interest expense. The value of the warrants has been included in
Stockholders Equity (Deficit); the value of the Put Option and Registration Rights have been
recorded as a liability and are subject to future value adjustments; and the value of the 5%
Convertible Debentures has been recorded as long-term debt.
Annual maturities of long-term debt as of March 31, 2007 are $20.0 million due on December 23,
2009.
7. LONG-TERM DEFERRED REVENUE
On March 31, 2007, long-term deferred revenue was $12.2 million and included approximately
$8.5 million of deferred revenue from Sony Computer Entertainment. On December 31, 2006, long-term
deferred revenue was $31.8 million and included approximately $27.9 million of compulsory license
fees and interest from Sony Computer Entertainment pursuant to Court orders dated January 10 and
February 9, 2005. See Note 10 for further discussion.
8. LONG-TERM CUSTOMER ADVANCE FROM MICROSOFT
On July 25, 2003, the Company contemporaneously executed a series of agreements with Microsoft
Corporation (Microsoft) that (1) settled the Companys lawsuit against Microsoft, (2) granted
Microsoft a worldwide royalty-free, irrevocable license to the Companys portfolio of patents (the
License Agreement) in exchange for a payment of $19.9 million, (3) provided Microsoft with
sublicense rights to pursue certain license arrangements directly with third
parties including Sony
Computer Entertainment which, if consummated, would result in payments to the Company (the
Sublicense Rights), and conveyed to Microsoft the right to a payment of cash in the event of a
settlement within certain parameters of the Companys patent litigation against Sony Computer
Entertainment of America Inc. and Sony Computer Entertainment Inc. (the Participation Rights) in
exchange for a payment of $0.1 million, (4) issued Microsoft shares of the Companys Series A
Redeemable Convertible Preferred Stock (Series A Preferred Stock) for a payment of $6.0 million,
and (5) granted the Company the right to sell up to $9.0 million of debentures to Microsoft under
the terms and conditions established in newly authorized 7% Debentures with annual draw down rights
over a 48-month period. The sublicense rights provided to Microsoft to contract directly with Sony
Computer Entertainment expired in July 2005. None of the 7% Debentures had been sold at March 31,
2007, and as of that date, none were available after the litigation with Sony Computer
Entertainment was concluded.
Under these agreements, in the event that the Company elects to settle the action in the
United States District Court for the Northern District of California entitled
Immersion Corporation
v. Sony Computer Entertainment of America, Inc., Sony Computer Entertainment Inc. and Microsoft
Corporation
, Case No. C02-00710 CW (WDB), as such action pertains to Sony Computer Entertainment,
the Company would be obligated to pay Microsoft a minimum of $15.0 million for amounts up to $100.0
million received from Sony Computer Entertainment on account of the Companys granting certain
rights, plus 25% of amounts over $100.0 million up to $150.0 million, and 17.5% of amounts over
$150.0 million. As of December 31, 2006, the Company reflected a liability of $15.0 million in its
financial statements, being the minimum amount the Company would be obliged to pay to Microsoft
upon a settlement with Sony Computer Entertainment.
In March 2007, the Company concluded its patent infringement litigation against Sony Computer
Entertainment at the U.S. Court of Appeals for the Federal Circuit. Additionally, the Company and
Sony Computer Entertainment entered into a new business agreement to explore the inclusion of the
Companys technology in PlayStation format products. The Company has determined that the
conclusion of its litigation with Sony Computer Entertainment does not trigger any payment
obligations under its Microsoft agreements. Accordingly, the liability of $15.0 million that was in
the Companys financial statements at December 31, 2006 has been extinguished and the Company has
accounted for this sum as litigation conclusions and patent license income in the three months
ended March 31, 2007. See Note 15, Contingencies. As the patent infringement litigation with Sony
Computer Entertainment has concluded, the Companys right to sell 7% Debentures has expired.
9. STOCK-BASED COMPENSATION
On January 1, 2006, the Company adopted the provisions of, and accounted for stock-based
compensation in accordance with, SFAS No. 123revised 2004, Share-Based Payment (SFAS No.
123R) which replaced SFAS No. 123, Accounting for Stock-Based Compensation (SFAS No. 123) and
supersedes Accounting Principles Board (APB) Opinion No. 25, Accounting for Stock Issued to
Employees (APB No. 25). Under the fair value recognition provisions of SFAS No. 123R,
stock-based compensation cost is measured at the grant date based on the fair value of the award
and is recognized as expense on a straight-line basis over the requisite service period, which is
the vesting period. The valuation provisions of SFAS No. 123R apply to new grants and to grants
that were outstanding as of the effective date and are subsequently modified. Estimated
compensation for grants that were outstanding as of the effective date will be recognized over the
remaining service period using the compensation cost estimated for the SFAS No. 123 pro forma
disclosures. Prior to the adoption of SFAS No. 123R, the Company used the Black-Scholes-Merton
option-pricing model (Black-Scholes model), multi-option approach to determine the fair value of
stock options and employee stock purchase plan shares for pro forma disclosures.
Stock Options
The Companys stock option program is a long-term retention program that is
intended to attract, retain, and provide incentives for talented employees, officers, and
directors, and to align stockholder and employee interests. The Company considers its option
programs critical to its operation and productivity; essentially all of its employees participate.
Since inception, under the Companys stock option plans, the Company may grant options to purchase
up to 17,577,974 shares of its common stock to employees, directors, and consultants at prices not
less than the fair market value on the date of grant for incentive stock options and not less than
85% of fair market value on the date of grant for nonstatutory stock options. These options
generally vest over 4 years and expire 10 years from the date of grant. At March 31, 2007, options
to purchase 2,815,280 shares of common stock were available for grant, and options to purchase
7,389,467 shares of common stock were outstanding.
Employee Stock Purchase Plan
The Company has an employee stock purchase plan (ESPP). Under
the ESPP, eligible employees may purchase common stock through payroll deductions at a purchase
price of 85% of the lower of the fair market value of the Companys stock at the beginning of the
offering period or the purchase date. Participants may not purchase more than 2,000 shares in a
six-month offering period or purchase stock having a value greater than
$25,000 in any calendar
year as measured at the beginning of the offering period. A total of 500,000 shares of common stock
are reserved for the issuance under the ESPP plus an automatic annual increase on January 1, 2001
and on each January 1 thereafter through January 1, 2010 by an amount equal to the lesser of
500,000 shares per year or a number of shares determined by the Board of Directors. As of March 31,
2007, 322,367 shares had been purchased under the ESPP. Under SFAS No. 123R, the ESPP is considered
a compensatory plan and the Company is required to recognize compensation cost for sales made under
the ESPP.
The Company did not modify its stock option or employee stock purchase plans in the quarter
ended March 31, 2007.
General Stock Option Information
The following table sets forth the summary of option
activity under the Companys stock option program for the three months ended March 31, 2007:
Weighted
Average
Weighted
Remaining
Aggregate
Number
Average
Contractual
Intrinsic
of Shares
Exercise Price
Term
Value
Outstanding at December 31, 2006 (5,403,314 exercisable at
a weighted
average price of $7.65 per share)
7,585,423
$
7.40
Granted (weighted average fair value of $5.45 per share)
991,208
8.91
Exercised
(1,089,353
)
4.02
Canceled
(97,811
)
6.67
Outstanding at March 31, 2007
7,389,467
$
8.11
6.53
$15.6 million
Exercisable at March 31, 2007
4,696,682
$
8.40
5.18
$11.7 million
The expected to vest balance as of March 31, 2007 is equal to the outstanding balance at that
date without consideration of forfeitures.
The aggregate intrinsic value is calculated as the difference between the exercise price of
the underlying awards and the quoted price of the Companys common stock for the options that were
in-the-money at March 31, 2007. The aggregate intrinsic value of options exercised under the
Companys stock option plans, determined as of the date of option exercise was $4.5 million for the
quarter ended March 31, 2007.
Additional information regarding options outstanding as of March 31, 2007 is as follows:
Options Outstanding
Options Exercisable
Weighted
Average
Weighted
Weighted
Range of
Remaining
Average
Average
Exercise
Number
Contractual
Exercise
Number
Exercise
Prices
Outstanding
Life (Years)
Price
Exercisable
Price
$
1.20 - $ 2.35
913,608
5.50
$
1.63
913,191
$
1.63
2.74 - 6.11
770,147
6.76
5.47
482,109
5.42
6.20 - 6.87
754,874
7.35
6.49
446,131
6.41
6.89 - 6.98
1,103,699
8.47
6.96
403,895
6.97
7.00 - 7.50
818,512
7.43
7.09
502,215
7.08
7.60 - 8.98
978,832
3.63
8.66
871,654
8.69
9.04 - 9.04
917,308
9.93
9.04
9.24 - 17.13
852,353
4.18
11.67
797,353
11.84
23.13 - 34.75
255,248
2.94
31.42
255,248
31.42
43.25 - 43.25
24,886
3.03
43.25
24,886
43.25
$
1.20 - $43.25
7,389,467
6.53
$
8.11
4,696,682
$
8.40
Stock-based Compensation
Valuation and amortization method
The Company uses the Black-Scholes model, single-option
approach to determine the fair value of stock options and employee stock purchase plan shares. All
share-based payment awards are amortized on a straight-line basis over the requisite service
periods of the awards, which are generally the vesting
periods. Prior to the adoption of SFAS No.
123R, the Company used the Black-Scholes model, multiple-option approach to determine the fair
value of stock options and employee stock purchase plan shares and amortization of resulting
stock-based compensation amounts included in its pro forma disclosures of SFAS No. 123. The
determination of the fair value of stock-based payment awards on the date of grant using an
option-pricing model is affected by the Companys stock price as well as assumptions regarding a
number of complex and subjective variables. These variables include actual and projected employee
stock option exercise behaviors, the Companys expected stock price volatility over the term of the
awards, risk-free interest rate, and expected dividends.
Expected term
The Company estimates the expected term of options granted by using the
simplified method as prescribed by SAB No. 107. The expected term of employee stock purchase plan
shares is the length of the offering period.
Expected volatility
The Company estimates the volatility of its common stock taking into
consideration its historical stock price movement, the volatility of stock prices of companies of
similar size with similar businesses, if any, and its expected future stock price trends based on
known or anticipated events.
Risk-free interest rate
The Company bases the risk-free interest rate that it uses in the
option pricing model on U.S. Treasury zero-coupon issues with remaining terms similar to the
expected term on the options.
Expected dividend
The Company does not anticipate paying any cash dividends in the
foreseeable future and therefore uses an expected dividend yield of zero in the option-pricing
model.
Forfeitures
The Company is required to estimate future forfeitures at the time of grant and
revise those estimates in subsequent periods if actual forfeitures differ from those estimates. The
Company uses historical data to estimate pre-vesting option forfeitures and records stock-based
compensation expense only for those awards that are expected to vest.
The assumptions used to value option grants and shares under the employee stock purchase plan
are as follows:
Options
Employee Stock Purchase Plan
Three Months Ended
Three Months Ended
March 31,
March 31,
2007
2006
2007
2006
Expected term (in years)
6.25
6.25
0.5
0.5
Volatility
60
%
62
%
45
%
34
%
Interest rate
4.6
%
4.8
%
5.2
%
4.6
%
Dividend yield
Total stock-based compensation recognized in the condensed consolidated statements of
operations is as follows:
Three Months Ended
March 31,
Income Statement Classifications
2007
2006
(In thousands)
Cost of product sales
$
20
$
19
Sales and marketing
160
286
Research and development
186
129
General and administrative
268
289
Total
$
634
$
723
SFAS No. 123R requires the benefits of tax deductions in excess of recognized compensation
expense to be reported as a financing cash flow, rather than as an operating cash flow. This
requirement will reduce net operating cash flows and increase net financing cash flows in periods
after adoption. For the three months ended March 31, 2007, the Company recorded $2.9 million of
excess tax benefits from stock-based compensation.
The Company has calculated an additional paid-in capital (APIC) pool pursuant to the
provisions of SFAS No. 123R. The APIC pool represents the excess tax benefits related to
stock-based compensation that are available to absorb future tax deficiencies. The Company includes
only those excess tax benefits that have been realized in accordance with
SFAS No. 109, Accounting
for Income Taxes. If the amount of future tax deficiencies is greater than the available APIC
pool, the Company will record the excess as income tax expense in its consolidated statements of
operations.
As of March 31, 2007, there was $5.5 million of unrecognized compensation cost, adjusted for
estimated forfeitures, related to non-vested stock options granted to the Companys employees and
directors. This cost will be recognized over an estimated weighted-average period of approximately
1.5 years. Total unrecognized compensation cost will be adjusted for future changes in estimated
forfeitures.
10. LITIGATION CONCLUSIONS AND PATENT LICENSE
In March 2007,
the Companys patent infringement litigation with Sony Computer Entertainment
concluded. Sony Computer Entertainment
satisfied the District Court judgment against it, which included damages, pre-judgment
interest, costs and interest totaling $97.3 million, along with compulsory license fees already
paid to the Company of $30.6 million and interest earned on these fees of $1.8 million. See Note 15
for further discussion of this litigation. As of March 19, 2007, the Company and Sony Computer
Entertainment entered into an agreement whereby the Company granted Sony Computer
Entertainment and its affiliates a worldwide, non-transferable, non-exclusive license of the
Companys patents for the on-going use, development, manufacture, sale, lease, importation, and
distribution of its current and past PlayStation and related products. The license does not cover adult, foundry,
medical, automotive, industrial, mobility, or gambling products. The Company also granted to Sony
Computer Entertainment a license of the Companys patents for the use, development, manufacture,
sale, lease, importation, and distribution, by Sony Computer Entertainment and through third
parties, of haptic game devices for use on those Sony PlayStation consoles. The Company also granted Sony
Computer Entertainment certain other licenses, an option to obtain licenses in the future with
respect to future gaming products, certain releases and covenants not to sue. Sony Computer
Entertainment granted the Company certain covenants not to sue and agreed to pay the Company twelve
quarterly installments of $1.875 million (for a total of $22.5 million) beginning on March 31, 2007
and ending on December 31, 2009, and may pay the Company certain other fees and royalty amounts. In
total, the Company will receive a minimum of $152.2 million through the conclusion of the
litigation and the business agreement. The Company engaged an independent firm of financial
advisors to assist with the determination of the fair value of all the elements of both the litigation conclusion and the
patent license. In accordance with EITF No. 00-21, the Company has allocated the present value of
the total payments, equal to $149.9 million, between each element based on their relative fair
values. Under this allocation, the Company recorded $119.9 million as litigation conclusions and
patent license income and the remaining $30.0 million is
allocated to deferred license revenue. The Company
recorded $107,000 as revenue, in the three-month period ended March 31, 2007. The Company will
record the remaining $29.9 million as revenue, on a straight-line basis, over the remaining capture
period of the patents licensed, ending March 19, 2017. The
Company has accounted for future payments in
accordance with APB No. 21 Interest on Receivables and Payables. Under APB No. 21, the Company
determined the present value of the $22.5 million future payments to equal $20.2 million. The
Company will account for the difference of $2.3 million as interest income as each $1.875 million
payment installment becomes due.
In 2003, the Company executed a series of agreements with Microsoft as described in Note 8
that provided for settlement of its lawsuit against Microsoft as well as various licensing,
sublicensing, and equity and financing arrangements. Under the terms of these agreements, in the
event that the Company elects to settle the action in the United States District Court for the
Northern District of California entitled
Immersion Corporation v. Sony Computer Entertainment of
America, Inc., Sony Computer Entertainment Inc. and Microsoft Corporation
, Case No. C02-00710 CW
(WDB), as such action pertains to Sony Computer Entertainment, the Company would be obligated to
pay Microsoft a minimum of $15.0 million for amounts up to $100.0 million received from Sony
Computer Entertainment on account of the Companys granting certain rights, plus 25% of amounts
over $100.0 million up to $150.0 million, and 17.5% of amounts over $150.0 million. The Company has
determined that the conclusion of its litigation with Sony Computer Entertainment does not trigger
any payment obligations under its Microsoft agreements. Accordingly, the liability of $15.0 million
that was in the financial statements at December 31, 2006 has been extinguished, and the Company
has accounted for this sum as litigation conclusions and patent license income in the three-month
period ended March 31, 2007. However, in a letter sent to the Company dated May 1, 2007, Microsoft
disputed the Companys position and stated that it believes the Company owes Microsoft at least
$27.5 million.
If Microsoft brings a lawsuit to further dispute the Companys position, the Company intends to oppose
Microsofts claims and vigorously defend the Companys position. The results of any litigation are
inherently uncertain, and there can be no assurance that the Companys position will prevail.
On September 24, 2004, the Company filed in the United States District Court for the Northern
District of California a complaint for patent infringement against Electro Source LLC (Electro
Source). On February 28, 2006, the Company announced that it had settled its legal differences
with Electro Source and the Company and Electro Source agreed to dismiss all claims and
counterclaims relating to this matter. In addition to the Confidential Settlement Agreement,
Electro Source entered into a worldwide license to the Companys patents for vibro-tactile devices
in the consumer gaming peripheral field of use under which Electro Source makes royalty payments to
the Company based on sales by
Electro Source of spinning mass vibro-tactile gamepads, steering
wheels, and other game controllers for dedicated gaming consoles. Electro Source paid the Company
litigation settlement payments of $650,000 during the three-month period ended March 31, 2006, and
the Company recorded this amount as litigation conclusions and patent license income during that
period.
11. INCOME TAXES
For the three months ended March 31, 2007 and 2006, the Company recorded provisions for income
taxes of $8.5 million and $102,000, yielding effective tax rates of 6.5% and (3.6)%, respectively.
During the first quarter of 2007, the Company generated $131.0 of taxable income and based upon
these earnings and projected future taxable earnings the Company released $47.6 million of the valuation
allowance previously recorded against the deferred tax assets. Although the Company incurred
pre-tax losses for the three months ended March 31, 2006, sums received from Sony Computer
Entertainment and interest thereon included in long-term deferred revenue, approximating $5.3
million during the period, created federal and state alternative minimum taxable income.
On January 1, 2007, the Company adopted FIN 48, Accounting for Uncertainty in Income
Taxes. FIN 48 prescribes a recognition threshold that a tax position is required to meet
before being recognized in the financial statements and provides guidance on derecognition,
measurement, classification, interest and penalties, accounting in interim periods, disclosure and
transition issues.
The application of FIN 48 would have resulted in a decrease in retained earnings of $628,000,
except that the decrease was fully offset by the application of a valuation allowance. Future
changes in the unrecognized tax benefit will have impact on the effective tax rate due. Accrued
interest on tax positions will be recorded as a component of income tax provision but is not
significant at March 31, 2007. No interest or penalties were
recorded upon the adoption of FIN 48 as of January
1, 2007 or in the first quarter ended March 31, 2007. The Company does not reasonably estimate that
the unrecognized tax benefit will change significantly within the next twelve months.
The Company files its tax returns as prescribed by the tax laws of the jurisdictions in which
it operates. The Company is currently open to audit under the statute of limitations by the
Internal Revenue Service for the years ending December 31, 1993 through 2006. The Company and its
subsidiaries state income tax returns are open to audit under the statute of limitations for the
years ending December 31, 1993 through 2006. The Companys foreign operations in Canada are open to
audit under statute of limitation for the years ending December 31, 1998 through 2006.
Net deferred income taxes were $5.5 million as of March 31, 2007 and are primarily timing
differences between book and tax and federal net operating loss carryforwards of $2.8 million (net
of $1.0 million) that are limited in utilization to approximately $1.1 million annually, which
expire in 2020. During 2005, the Company evaluated ownership changes from 1999 to 2004 and
determined that there were no further limitations on the Companys net operating loss
carryforwards.
The following is a reconciliation of the numerators and denominators used in computing basic
and diluted net income (loss) per share (in thousands, except per share amounts):
Three Months Ended
March 31,
2007
2006
Numerator:
Net income (loss) used in computing basic net income (loss) per share
$
122,433
$
(2,906
)
Interest on 5% Convertible Debentures
148
Net income (loss) used in computing diluted net income (loss) per share
$
122,581
$
(2,906
)
Denominator:
Shares used in computation of basic net income (loss) per share
(weighted average common shares outstanding)
25,343
24,419
Dilutive potential common shares:
Stock options
1,260
Warrants
234
5% Convertible Debentures
2,846
Shares used in computation of diluted net income (loss) per share
29,683
24,419
Basic net income (loss) per share
$
4.83
$
(0.12
)
Diluted net income (loss) per share
$
4.13
$
(0.12
)
For the three months ended March 31, 2007, options and warrants to purchase approximately 3.6
million and 28,743 shares of common stock, respectively, with exercise prices greater than the
average fair market value of the Companys stock of $7.67 were not included in the calculation
because the effect would have been anti-dilutive. For the three months ended March 31, 2006, the
Company had securities outstanding that could potentially dilute basic earnings per share, but were
excluded from the computation of diluted net loss per share since their effect would have been
anti-dilutive. These outstanding securities consisted of the following:
March 31,
2006
Outstanding stock options
7,724,588
Warrants
808,762
5% Convertible Debentures
2,846,363
13. COMPREHENSIVE INCOME (LOSS)
The following table sets forth the components of comprehensive income (loss):
14. SEGMENT REPORTING, GEOGRAPHIC INFORMATION, AND SIGNIFICANT CUSTOMERS
The Company develops, manufactures, licenses, and supports a wide range of hardware and
software technologies that more fully engage users sense of touch when operating digital devices.
The Company focuses on five application areas gaming, mobility, 3D, touch interface, and
medical. The Company manages these application areas under two operating and reportable segments:
1) Immersion Computing, Entertainment, and Industrial, and 2) Immersion Medical. The Company
determines its reporting segments in accordance with criteria outlined in SFAS No. 131,
Disclosures about Segments of an Enterprise and Related Information. The gaming, mobile devices,
3D, and touch interface areas do not individually meet the criteria for segment reporting as set
out in SFAS No. 131.
The Companys chief operating decision maker (CODM) is the Chief Executive Officer. The CODM
allocates resources to and assesses the performance of each operating segment using information
about its revenue and operating profit before interest and taxes. A description of the types of
products and services provided by each operating segment is as follows:
Immersion Computing, Entertainment, and Industrial develops and markets touch feedback
technologies that enable software and hardware developers to enhance realism and usability in their
computing, entertainment, and industrial
applications. Immersion Medical develops, manufactures, and markets medical training
simulators that recreate realistic healthcare environments.
The following tables display information about the Companys reportable segments:
Three Months Ended
March 31,
2007
2006
(In thousands)
Revenues:
Immersion Computing, Entertainment, and Industrial
$
3,758
$
3,448
Immersion Medical
2,657
2,601
Intersegment eliminations
(1
)
(17
)
Total
$
6,414
$
6,032
Net Income (Loss):
Immersion Computing, Entertainment, and Industrial
$
123,290
$
(2,638
)
Immersion Medical
(862
)
(278
)
Intersegment eliminations
5
10
Total
$
122,433
$
(2,906
)
March 31,
December 31,
2007
2006
(In thousands)
Total Assets:
Immersion Computing, Entertainment, and Industrial
Intersegment eliminations represent eliminations for intercompany sales and cost of sales
and intercompany receivables and payables between Immersion Computing, Entertainment, and
Industrial and Immersion Medical segments.
The Company operates primarily in the United States and in Canada where it operates through
its wholly owned subsidiary, Immersion Canada, Inc. Segment assets and expenses relating to the
Companys corporate operations are not allocated but are included in Immersion Computing,
Entertainment, and Industrial as that is how they are considered for management evaluation
purposes. As a result, the segment information may not be indicative of the financial position or
results of operations that would have been achieved had these segments operated as unaffiliated
entities. Management measures the performance of each segment based on several metrics, including
net loss. These results are used, in part, to evaluate the performance of, and allocate resources
to, each of the segments.
Revenue
by Product Lines
Information regarding revenue from external customers by product
lines is as follows:
Three Months Ended
March 31,
2007
2006
(In thousands)
Revenues:
Consumer, Computing, and Entertainment
$
1,774
$
1,408
3D
991
1,177
Touch Interface Products
992
846
Subtotal Immersion Computing, Entertainment, and Industrial
3,757
3,431
Immersion Medical
2,657
2,601
Total
$
6,414
$
6,032
Revenue
by Region
The following is a summary of revenues by geographic areas. Revenues
are broken out geographically by the ship-to location of the customer. Geographic revenue as a
percentage of total revenue was as follows:
Three Months Ended
March 31,
2007
2006
North America
67
%
74
%
Europe
17
%
15
%
Far East
14
%
10
%
Rest of the world
2
%
1
%
Total
100
%
100
%
The Company derived 66% and 72% of its total revenues from the United States for the three
months ended March 31, 2007 and 2006, respectively. The Company derived 10% of its revenue from
Japan for the three months ended March 31, 2007. Revenues from other countries represented less
than 10% individually for the periods presented.
The majority of the Companys long-lived assets are located in the United States. Long-lived
assets include net property and equipment and long-term investments and other assets. Long-lived
assets that were outside the United States constituted less than 10% of the total at March 31, 2007
and December 31, 2006.
Significant Customers
Customers comprising 10% or greater of the Companys net revenues are
summarized as follows:
Three Months Ended
March 31,
2007
2006
Customer A
10
%
*
Customer B
12
%
*
Total
22
%
*
*
Revenue derived from customer represented less than 10% for the period.
No customer accounted for more than 10% of the Companys accounts receivable at March 31, 2007
or December 31, 2006.
15. CONTINGENCIES
In re Immersion Corporation
The Company is involved in legal proceedings relating to a class action lawsuit filed on
November 9, 2001, In re Immersion Corporation Initial Public Offering Securities Litigation, No.
Civ. 01-9975 (S.D.N.Y.), related to In re Initial Public Offering Securities Litigation, No. 21 MC
92 (S.D.N.Y.). The named defendants are the Company and three of its current or former officers or
directors (the Immersion Defendants), and certain underwriters of the Companys November 12, 1999
initial public offering (IPO). Subsequently, two of the individual defendants stipulated to a
dismissal without prejudice.
The operative amended complaint is brought on purported behalf of all persons who purchased
the common stock of the Company from the date of the IPO through December 6, 2000. It alleges
liability under Sections 11 and 15 of the Securities Act of 1933 and Sections 10(b) and 20(a) of
the Securities Exchange Act of 1934, on the grounds that the registration statement for the IPO did
not disclose that: (1) the underwriters agreed to allow certain customers to purchase shares in the
IPO in exchange for excess commissions to be paid to the underwriters; and (2) the underwriters
arranged for certain customers to purchase additional shares in the aftermarket at predetermined
prices. The complaint also appears to allege that false or misleading analyst reports were issued.
The complaint does not claim any specific amount of damages.
Similar allegations were made in other lawsuits challenging over 300 other initial public
offerings and follow-on offerings conducted in 1999 and 2000. The cases were consolidated for
pretrial purposes. On February 19, 2003, the Court ruled on all defendants motions to dismiss. The
motion was denied as to claims under the Securities Act of 1933 in the case involving Immersion as
well as in all other cases (except for 10 cases). The motion was denied as to the claim under
Section 10(b) as to the Company, on the basis that the complaint alleged that the Company had made
acquisition(s) following the IPO. The motion was granted as to the claim under Section 10(b), but
denied as to the claim under Section 20(a), as to the remaining individual defendant.
The Company and most of the issuer defendants have settled with the plaintiffs. In this
settlement, plaintiffs have dismissed and released all claims against the Immersion Defendants, in
exchange for a contingent payment by the insurance companies collectively responsible for insuring
the issuers in all of the IPO cases, and for the assignment or surrender of certain claims the
Company may have against the underwriters. The Immersion Defendants will not be required to make
any cash payments in the settlement, unless the pro rata amount paid by the insurers in the
settlement exceeds the amount of the insurance coverage, a circumstance which the Company believes
is remote. The settlement will require approval of the Court, which cannot be assured, after class
members are given the opportunity to object to the settlement or opt out of the settlement.
In September 2005, the Court granted preliminary approval of the settlement. The Court held a
hearing to consider final approval of the settlement on April 24, 2006, and took the matter under
submission. The court will resume consideration of whether to grant final approval to the
settlement following further appellate review, if any, of the decision in In re Initial Public
Offering Securities Litigation, 471 F.3d 24, 2006 WL 3499937 (2d Cir. Dec. 5, 2006). Subsequently,
the Second Circuit vacated the class certification of plaintiffs claims against the underwriters
in six cases designated as focus or test cases.
Miles v. Merrill Lynch & Co. (In re Initial Public
Offering Securities Litigation)
, 471 F.3d 24 (2d Cir. 2006). Thereafter, the District Court ordered
a stay of all proceedings in all of the lawsuits pending the outcome of plaintiffs petition to the
Second Circuit for rehearing en banc and resolution of the class certification issue. On April 6,
2007, the Second Circuit denied plaintiffs petition for rehearing, but clarified that the
plaintiffs may seek to
certify a more limited class in the District Court. Accordingly, the stay
remains in place and the plaintiffs and issuers have stated that they are prepared to discuss how
the settlement might be amended or renegotiated to comply with the Second Circuit decision. There
is no guarantee that the settlement will become effective as it is subject to a number of
conditions which cannot be assured, including final court approval.
Immersion Corporation vs. Microsoft Corporation, Sony Computer Entertainment Inc. and Sony Computer Entertainment of America, Inc.
On February 11, 2002, the Company filed a complaint against Microsoft Corporation, Sony
Computer Entertainment, Inc., and Sony Computer Entertainment of America, Inc. in the U.S. District
Court for the Northern District Court of California alleging infringement of U.S. Patent Nos.
5,889,672 and 6,275,213. The case was assigned to United States District Judge Claudia Wilken. On
April 4, 2002, Sony Computer Entertainment and Microsoft answered the complaint by denying the
material allegations and alleging counterclaims seeking a judicial declaration that the asserted
patents were invalid, unenforceable, or not infringed. Under the counterclaims, the defendants were
also seeking damages for
attorneys fees. On October 8, 2002, the Company filed an amended complaint, withdrawing the
claim under the U.S. Patent No. 5,889,672 and adding claims under a new patent, U.S. Patent No.
6,424,333.
On July 28, 2003, the Company announced that it had settled its legal differences with
Microsoft, and both parties agreed to dismiss all claims and counterclaims relating to this matter
as well as assume financial responsibility for their respective legal costs with respect to the
lawsuit between the Company and Microsoft.
On August 16, 2004, the trial against Sony Computer Entertainment commenced. On September 21,
2004, the jury returned its verdict in favor of the Company. The jury found all the asserted claims
of the patents valid and infringed. The jury awarded the Company damages in the amount of $82.0
million. On January 10, 2005, the Court awarded the Company prejudgment interest on the damages the
jury awarded at the applicable prime rate. The Court further ordered Sony Computer Entertainment to
pay the Company a compulsory license fee at the rate of 1.37%, the ratio of the verdict amount to
the amount of sales of infringing products, effective as of July 1, 2004 and through the date of
Judgment. On February 9, 2005, the Court ordered that Sony Computer Entertainment provide the
Company with sales data 15 days after the end of each quarter and clarified that Sony Computer
Entertainment will make the ordered payment 45 days after the end of the applicable quarter. Sony
Computer Entertainment has made quarterly payments to the Company pursuant to the Courts orders.
On February 9, 2005, Sony Computer Entertainment filed a Notice of Appeal to the United States
Court of Appeals for the Federal Circuit to appeal the Courts January 10, 2005 order, and on
February 10, 2005 Sony Computer Entertainment filed an Amended Notice of Appeal to include an
appeal from the Courts February 9, 2005 order.
On January 5 and 6, 2005, the Court held a bench trial on Sony Computer Entertainments
remaining allegations that the 333 patent was not enforceable due to alleged inequitable conduct.
On March 24, 2005, the Court resolved this issue, entering a written order finding in the Companys
favor.
On March 24, 2005, Judge Wilken also entered judgment in the Companys favor and awarded the
Company $82.0 million in past damages, and pre-judgment interest in the amount of $8.9 million, for
a total of $90.9 million. The Company was also awarded certain court costs. Court costs do not
include attorneys fees. Additionally, the Court issued a permanent injunction against the
manufacture, use, sale, or import into the United States of the infringing Sony PlayStation system
consisting of the PlayStation consoles, Dual Shock controllers, and the 47 games found by the jury
to infringe the Companys patents. The Court stayed the permanent injunction pending appeal to the
United States Court of Appeals for the Federal Circuit. The Court further ordered Sony Computer
Entertainment to pay a compulsory license fee at the rate of 1.37% for the duration of the stay of
the permanent injunction at the same rate and conditions as previously awarded in its interim
January 10, 2005 and February 9, 2005 Orders. On April 7, 2005, pursuant to a stipulation of the
parties, the Court entered an Amended Judgment to clarify that the Judgment in favor of the Company
and against Sony Computer Entertainment also encompassed Sony Computer Entertainments
counterclaims for declaratory relief on invalidity and unenforceability, as well as
non-infringement.
Sony Computer Entertainment had filed further motions seeking judgment as a matter of a law
(JMOL) or for a new trial, and a motion for a stay of an accounting and execution of the Judgment.
On May 17, 2005, Judge Wilken denied these motions.
On April 27, 2005, the Court granted Sony Computer Entertainments request to approve a
supersedeas bond, secured by a cash deposit with the Court in the amount of $102.5 million, to
obtain a stay of enforcement of the Courts Amended Judgment pending appeal. On May 17, 2005, the
Court issued a minute order stating that in lieu of the
supersedeas bond the Court would allow Sony
Computer Entertainment to place the funds on deposit with the Court in an escrow account subject to
acceptable escrow instructions. The parties negotiated escrow instructions, and on June 12, 2006,
the Court granted the parties stipulated request to withdraw the funds from the Court and deposit
them in an escrow account with JP Morgan Chase. Sony Computer Entertainment has withdrawn the funds
from the Court and deposited them in the JP Morgan Chase escrow account.
On June 16, 2005, Sony Computer Entertainment filed a Notice of Appeal from the District Court
Judgment to the United States Court of Appeals for the Federal Circuit. The appeals of the January
and February orders regarding the compulsory license have been consolidated with the appeal of the
Judgment. Sony Computer Entertainments Opening Brief was filed on October 21, 2005; the Company
filed an Opposition Brief on December 5, 2005. Due to the cross appeal by Internet Services LLC
(ISLLC) (see below), the Federal Circuit allowed the Company to file a Substitute Opposition
Brief on February 17, 2006 responding to the briefs filed by both Sony Computer Entertainment and
ISLLC. On March 15, 2006, the Company filed a further substitute brief in response to a Federal
Circuit order clarifying the
maximum number of words the Company was allowed given ISLLCs cross appeal. Sony Computer
Entertainment filed its Reply Brief on April 27, 2006 and ISLLCs Reply Brief was filed on May 15,
2006. On October 3, 2006, a hearing for oral argument was held before a three-judge panel of the
United States Court of Appeals for the Federal Circuit.
On July 21, 2005, Sony Computer Entertainment filed a motion in the District Court before
Judge Wilken seeking relief from the final judgment under Rule 60(b) of the Federal Rules of Civil
Procedure on the grounds of alleged fraud and newly discovered evidence of purported prior art,
which Sony Computer Entertainment contends the Company concealed and withheld attributable to Mr.
Craig Thorner, a named inventor on three patents that Sony Computer Entertainment urged as a basis
for patent invalidity during the trial. A hearing on this motion was held before Judge Wilken on
January 20, 2006. On March 8, 2006, the Court entered an Order which denied Sony Computer
Entertainments motion pursuant to Rule 60(b) of the Federal Rules of Civil Procedure in its
entirety. On April 7, 2006, Sony Computer Entertainment filed a Notice of Appeal to the United
States Court of Appeals for the Federal Circuit to appeal this ruling and filed its opening brief
on June 16, 2006. The Companys opposition brief was filed on August 30, 2006, and Sony Computer
Entertainment filed its reply brief on October 2, 2006. On January 8, 2007, a hearing for oral
argument was held before a three-judge panel of the United States Court of Appeals for the Federal
Circuit.
On May 17, 2005, Sony Computer Entertainment filed a Request for Inter Partes Reexamination of
the 333 Patent with the United States Patent and Trademark Office (PTO). On May 19, 2005, Sony
Computer Entertainment filed a similar Request for reexamination of the 213 Patent. On July 6,
2005, the Company filed a Petition to dismiss, stay, or alternatively to suspend both of the
requests for reexamination, based at least on the grounds that a final judgment has already been
entered by a United States District Court, and that the PTOs current inter partes reexamination
procedures deny due process of law. The PTO denied the first petition, and the Company filed a
second petition on September 9, 2005. On November 17, 2005, the PTO granted the Companys petition,
and suspended the inter partes reexaminations until such time as the parallel court proceedings
warrant termination or resumption of the PTO examination and prosecution proceedings. On December
13, 2005, Sony Computer Entertainment filed a third petition requesting permission to file an
additional inter partes reexamination on the claims of the 333 and 213 Patents for which
reexamination was not requested in Sony Computer Entertainments original requests for
reexamination. The PTO dismissed this third petition on March 22, 2006. On December 13, 2005, Sony
Computer Entertainment also filed ex parte reexamination requests on a number of claims of the 213
and 333 patents, including all of the claims litigated in the District Court action, in addition
to others. On March 13, 2006, the PTO granted the ex parte reexam request only with respect to the
requested claims that were not litigated, and the ex parte reexamination is proceeding with respect
to the claims that were not the subject of litigation. On April 11, 2006, Sony Computer
Entertainment filed a fourth petition to the PTO requesting that the currently suspended inter
partes proceeding and the ex parte proceeding be merged into a single proceeding. The Company
filed its opposition to this petition on May 3, 2006, and the PTO denied the fourth petition on
July 3, 2006. On March 27, 2007, the Company notified the PTO that the appeal proceedings of the
District Court judgment have concluded rendering the judgment final and non-appealable, and the
Company filed a petition to terminate the inter partes proceedings.
On December 13, 2005, Sony Computer Entertainment filed a lawsuit against the PTO in the U.S.
District Court for the Eastern District of Virginia claiming that the PTO erred in suspending the
inter partes reexamination on November 17, 2005. The case was assigned to U.S. District Judge
Ellis. The Company moved to intervene in the lawsuit, and on March 31, 2006, the Court granted the
Companys motion to intervene of right. The Court entered a scheduling order which precluded
discovery and set an expedited briefing schedule for motions for summary judgment. After briefing,
Judge Ellis held a hearing on the summary judgment motions on April 21, 2006. The Court granted
summary judgment in the Companys and the PTOs favor on all grounds on May 22, 2006. Sony
Computer Entertainment has not appealed this judgment.
On March 1, 2007, Sony Computer Entertainment withdrew and moved to dismiss its appeals from
the District Courts April 7, 2005 Amended Judgment (and all interlocutory orders merged in the
Amended Judgment). On March 2, 2007, Sony Computer Entertainment withdrew and moved to dismiss its
appeal from the District Courts March 8, 2006 order denying Sony Computer Entertainments motion
for relief from final judgment under Rule 60(b) of the Federal Rules of Civil Procedure. On March
8, 2007, the Federal Circuit ordered the dismissal of the Sony Computer Entertainment Rule 60(b)
appeal. On March 14, 2007, the Federal Circuit dismissed the Sony Computer Entertainment appeal of
the Amended Judgment (and all interlocutory orders merged in the Amended Judgment). In accordance
with the Amended Judgment, the Company received funds totaling $97.3 million in satisfaction of the
judgment for past damages for sales and other activities with respect to the infringing Sony
PlayStation system consisting of the PlayStation consoles, Dual Shock controllers, and the 47 games
found by the jury to infringe the Companys patents, pre-judgment interest and costs, and
post-judgment interest. Additionally, the Company retained $32.4 million of compulsory license fees
and interest thereon previously paid to the Company by Sony Computer Entertainment ($27.9 million
in long-term
deferred revenue on December 31, 2006 and $4.5 million received subsequent to year end.) On
March 19, 2007, the Company filed with the court a Notice of Satisfaction of Judgment, indicating
that Sony Computer Entertainment had satisfied and discharged the judgment that the court had
entered. On March 19, 2007, pursuant to a Stipulation filed with the court, Judge Wilken entered an
order dissolving the permanent injunction.
Internet Services LLC Litigation
On October 20, 2004, ISLLC, the Companys licensee and the cross-claim defendant against whom
Sony Computer Entertainment had filed a claim seeking declaratory relief, filed claims against the
Company in its lawsuit against Sony Computer Entertainment, alleging that the Company breached a
contract with ISLLC by suing Sony Computer Entertainment for patent infringement relating to
haptically-enabled software whose topics or images are allegedly age-restricted, for judicial
apportionment of damages between ISLLC and the Company of the damages awarded by the jury, and for
a judicial declaration with respect to ISLLCs rights and duties under agreements with the Company.
On December 29, 2004, the Court issued an order dismissing ISLLCs claims against Sony Computer
Entertainment with prejudice and dismissing ISLLCs claims against the Company without prejudice to
ISLLC filing a new complaint if it can do so in good faith without contradicting, or repeating the
deficiency of, its complaint.
On January 12, 2005, ISLLC filed Amended Cross-Claims and Counterclaims against the Company
that contained similar claims. ISLLC also realleged counterclaims against Sony Computer
Entertainment. On January 28, 2005, the Company filed a motion to dismiss ISLLCs Amended
Cross-Claims and a motion to strike ISLLCs Counterclaims against Sony Computer Entertainment. On
March 24, 2005 the Court issued an order dismissing ISLLCs claims with prejudice as to ISLLCs
claim seeking a declaratory judgment that it is an exclusive licensee under the 213 and 333
patents and as to ISLLCs claim seeking judicial apportionment of the damages verdict in the Sony
Computer Entertainment case. The Courts order further dismissed ISLLCs claims without prejudice
as to ISLLCs breach of contract and unjust enrichment claims.
ISLLC
filed a notice of appeal of the District Court orders with the United States Court of Appeals for the
Federal Circuit on April 18, 2005. ISLLCs appeal has been consolidated with Sony Computer
Entertainments appeal. ISLLC filed its Opening Brief in December 2005. As noted above, the United
States Court of Appeals for the Federal Circuit allowed the Company to file a Substitute Opposition
Brief on March 15, 2006 responding to the briefs filed by both Sony Computer Entertainment and
ISLLC. Briefing for the appeal was completed upon ISLLCs filing of its Reply Brief on May 15,
2006. As noted above, on October 3, 2006, a hearing for oral argument was held before a
three-judge panel of the United States Court of Appeals for the Federal Circuit. On April 4, 2007,
the Federal Circuit issued its opinion, affirming those District
Court orders.
On February 8, 2006, ISLLC filed a lawsuit against the Company in the Superior Court of Santa
Clara County. ISLLCs complaint seeks a share of the damages awarded to the Company in the March
24, 2005 Judgment and of the Microsoft settlement proceeds, and generally restates the claims
already adjudicated by the District Court. On March 16, 2006, the Company answered the complaint,
cross claimed for breach of contract by ISLLC and rescission of the contract, and removed the
lawsuit to federal court. The case was assigned to Judge Wilken as a case related to the previous
proceedings involving Sony Computer Entertainment and ISLLC. ISLLC filed its answer to the
Companys cross claims on April 27, 2006. ISLLC also moved to remand the case to Superior Court.
On July 10, 2006, Judge Wilken issued an order denying ISLLCs motion to remand. On September 5,
2006, Judge Wilken granted the stipulated request by the parties to stay discovery and other
proceedings in the case pending the disposition of ISLLCs appeal from the Courts previous orders.
The case was stayed from December 1, 2006 pending the Federal Circuits disposition on the appeal.
As noted above, the Federal Circuit issued its opinion on April 4, 2007. A case management
conference was held on May 1, 2007.
On April 23, 2007, ISLLC filed in the Federal Circuit in Appeal No. 05-1358 a Petition for
Panel Rehearing and A Motion To Extend Time. ISLLC argued that the Court should rehear the matter
or correct and/or clarify the April 4, 2007 opinion. On April 25, 2007, the Company opposed the
motion. ISLLC filed a reply on April 30, 2007.
The Company intends to defend itself vigorously against ISLLCs allegations. The parties
participated in a court ordered mediation on March 12, 2007, but were unsuccessful in resolving the
matter.
Immersion Corporation vs. Thorner
On March 24, 2006, the Company filed a lawsuit against Mr. Craig Thorner in Santa Clara County
Superior Court. The complaint alleges claims for breach of contract with respect to Thorners
license to a third party of U.S. Patent No. 5,684,722, which the Company has alleged is in violation of contractual obligations to it.
The case was removed to federal court by Mr. Thorner, and has been assigned to Judge Jeremy Fogel.
On May 1, 2006, Mr. Thorner filed an answer to the Companys claims and asserted counterclaims
against the Company seeking, among other things, a portion of the proceeds from the Companys
license with Microsoft, under theories of alleged breach of contract, breach of the implied
covenant of good faith and fair dealing, fraud, promissory fraud, breach of fiduciary duty, and
negligent misrepresentation. On July 28, 2006, the Company filed a motion for judgment on the
pleadings seeking the dismissal of Mr. Thorners breach of contract and fraud claims which allege a
right to a portion of the proceeds from the Companys license with Microsoft. On
September 1, 2006, the Court held a hearing on the Companys motion. On September 12, 2006, the
Court issued an order granting the Companys motion for judgment on the pleadings as to Mr.
Thorners alleged claims for breach of contract and fraud. The Court dismissed Mr. Thorners
breach of contract and fraud claims, and allowed Mr. Thorner leave to amend his claim for alleged
breach of contract with respect to alleged violations of the Companys reporting requirements that
do not flow from the failure to report the Microsoft Settlement Agreement.
The parties participated in a court-ordered mediation on November 7, 2006, but were not
successful in resolving the matter. The parties are in the process of conducting discovery.
On November 22, 2006, Thorner brought a motion for summary judgment arguing that the Companys
breach of contract claim was barred by the doctrine of judicial estoppel as a result of a statement
made in connection with the Sony Computer Entertainment Rule 60 (b) motion. On January 26, 2007,
the Court held a hearing on Thorners motion. On January 29, 2007, the Court issued an order
denying Thorners summary judgment motion, ruling that the Companys breach of contract claim was
not barred by judicial estoppel. On February 5, 2007, with leave of Court, the Company filed a
First Amended Complaint in the action to add Thorners company, Virtual Reality Feedback
Corporation (VRF), as a party-defendant. On February 9, 2007, Thorner filed an Amended Answer
and Counterclaims. The Amended Counterclaims against the Company dropped the previously-dismissed
counterclaims based on Thorners claims for a share of the Companys settlement with Microsoft, but
alleged other counterclaims for alleged Breach of Contract, Breach of the Implied Covenant of Good
Faith and Fair Dealing, Promissory Fraud, Breach of Fiduciary Duty, Negligent Misrepresentation and
Rescission. Thorner alleged in part that the Company breached its agreement with Thorner by
failing to pay royalties for Vibetonz Studio SDK and Immersion Studio for Gaming; that the Company
breached alleged duties to Thorner to license the 722 patent; and that Thorners agreement with
the Company should be rescinded. Thorners Amended Counterclaim does not specify an amount of
damages sought but alleges that Thorner has been damaged in an amount to be proven at trial. The
Company disputes Thorners allegations and intends to vigorously oppose them.
Microsoft
In March 2007, the Company announced the conclusion of its patent infringement litigation
against Sony Computer Entertainment at the U.S. Court of Appeals for the Federal Circuit.
Sony Computer Entertainment
satisfied the District Court judgment against it. As of March 19,
2007, the Company and Sony Computer
Entertainment entered into a new business agreement to explore the inclusion of the Companys
technology in PlayStation format products. The Company has determined that the conclusion of its
litigation with Sony Computer Entertainment does not trigger any payment obligations under its
Microsoft agreements. However, in a letter sent to the Company dated May 1, 2007, Microsoft
disputed the Companys position and stated that it believes the Company owes Microsoft at least
$27.5 million.
If Microsoft brings a lawsuit to further dispute the Companys position, the Company intends to oppose
Microsofts claims and vigorously defend the Companys position. The results of any litigation are
inherently uncertain, and there can be no assurance that the Companys position will prevail.
On May 3, 2007, Faro Technologies, Inc. (Faro) sued the Company in the Eastern District of
Pennsylvania. The complaint alleges patent infringement of Faros 5,402,582 patent by the
Companys Microscribe X product. The Company has not yet been served with the complaint, and has
not yet had an opportunity to analyze Faros claim.
Other Contingencies
From time to time, the Company receives claims from third parties asserting that the Companys
technologies, or those of its licensees, infringe on the other parties intellectual property
rights. Management believes that these claims are without merit. Additionally, periodically, the
Company is involved in routine legal matters and contractual disputes incidental to its normal
operations. In managements opinion, the resolution of such matters will not have a material
adverse effect on the Companys consolidated financial condition, results of operations, or
liquidity.
In the normal course of business, the Company provides indemnifications of varying scope to
customers against claims of intellectual property infringement made by third parties arising from
the use of the Companys intellectual property, technology, or products. Historically, costs
related to these guarantees have not been significant, and the Company is unable to estimate the
maximum potential impact of these guarantees on its future results of operations.
As permitted under Delaware law, the Company has agreements whereby it indemnifies its
officers and directors for certain events or occurrences while the officer or director is, or was,
serving at its request in such capacity. The term of the indemnification period is for the
officers or directors lifetime. The maximum potential amount of future payments the Company could
be required to make under these indemnification agreements is unlimited; however, the Company
currently has director and officer insurance coverage that limits its exposure and enables it to
recover a portion of any future amounts paid. Management believes the estimated fair value of these
indemnification agreements in excess of applicable insurance coverage is minimal.
See also Note 6 regarding contingencies relating to the 5% Convertible Debenture.
ITEM 2. MANAGEMENTS DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
This Quarterly Report on Form 10-Q includes forward-looking statements within the meaning of
Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange
Act of 1934, as amended. The forward-looking statements involve risks and uncertainties.
Forward-looking statements are identified by words such as anticipates, believes, expects,
intends, may, will, and other similar expressions. However, these words are not the only
way we identify forward-looking statements. In addition, any statements, which refer to
expectations, projections, or other characterizations of future events, or circumstances, are
forward-looking statements. Actual results could differ materially from those projected in the
forward-looking statements as a result of a number of factors, including those set forth below in
Managements Discussion and Analysis of Financial Condition and Results of Operations and Risk
Factors, those described elsewhere in this report, and those described in our other reports filed
with the SEC. We caution you not to place undue reliance on these forward-looking statements,
which speak only as of the date of this report, and we undertake no obligation to update these
forward-looking statements after the filing of this report. You are urged to review carefully and
consider our various disclosures in this report and in our other reports publicly disclosed or
filed with the SEC that attempt to advise you of the risks and factors that may affect our
business.
OVERVIEW
We develop, manufacture, license, and support a wide range of hardware and software
technologies that enhance touch interaction with digital devices. We focus on five application
areas gaming, mobility, 3D, touch interface, and medical. We manage these application areas
under two operating and reportable segments: 1) Immersion Computing, Entertainment, and Industrial,
and 2) Immersion Medical.
In markets where our touch technology is a small piece of a larger system (such as mobile
phones, consumer gaming peripherals, and automotive interfaces), we license our technologies to
third-party manufacturers who integrate our technology into their products and resell it under
their own brand names. In other markets, where our touch technology is a complete system (like
medical simulation systems and three-dimensional and professional products) or electronic
components (like electronic arcade gaming boards, rotary encoders, and lateral actuators for
tactile touchscreens), we manufacture and sell products under our own Immersion brand name, through
direct sales, distributors, and value added