form 10−k - annual report

FORM 10−KMERCURY INTERACTIVE CORP − MERQ

Filed: October 05, 2006 (period: December 31, 2005)

Annual report which provides a comprehensive overview of the company for the past year

Table of ContentsPART I

Item 1. Business 4

PART I

Item 1. BusinessItem 1A. Risk FactorsItem 1B. Unresolved Staff CommentsItem 2. PropertiesItem 3. Legal ProceedingsItem 4. Submission of Matters to a Vote of Security Holders

PART II

Item 5. Market for the Registrant s Common Equity, Related Stockholder Mattersand Issuer Purchases

Item 6. Selected Consolidated Financial DataItem 7. Management s Discussion and Analysis of Financial Condition and Results

of OperationsItem 7A. Quantitative and Qualitative Disclosures About Market RiskItem 8. Financial Statements and Supplementary DataItem 9. Changes in and Disagreements with Accountants on Accounting and

Financial DisclosureItem 9A. Controls and ProceduresItem 9B. Other Information

PART III

Item 10. Directors and Executive Officers of the RegistrantItem 11. Executive CompensationItem 12. Security Ownership of Certain Beneficial Owners and Management and

Related Stockholder MattItem 13. Certain Relationships and Related TransactionsItem 14. Principal Accountant Fees and Services

PART IV

Item 15. Exhibits and Financial Statement SchedulesSIGNATURESEX−10.19 (AGREEMENT AND PLAN OF MERGER)

EX−10.35 (SYSTINET CORPORATION 2001 STOCK OPTION AND INCENTIVE PLAN)

EX−21.1 (SUBSIDIARIES OF MERCURY)

EX−31.1 (CERTIFICATION OF CEO PURSUANT TO RULES 13A−14 AND 15D−14)

EX−31.2 (CERTIFICATION OF CFO PURSUANT TO RULES 13A−14 AND 15D−14)

EX−32.1 (CERTIFICATION OF CEO PURSUANT TO 18 USC SECTION 1350)

EX−32.2 (CERTIFICATION OF CFO PURSUANT TO 18 USC SECTION 1350)

Table of Contents

UNITED STATESSECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 10−K

⌧ ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the fiscal year ended December 31, 2005

OR

¨ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

FOR THE TRANSITION PERIOD FROM TO .

Commission File Number: 0−22350

MERCURY INTERACTIVE CORPORATION(Exact name of registrant as specified in its charter)

Delaware 77−0224776(State or other jurisdiction of

incorporation or organization)(I.R.S. Employer

Identification No.)

379 North Whisman Road, Mountain View, California 94043−3969(Address of principal executive offices, including zip code)

Registrant’s telephone number, including area code:(650) 603−5200

Securities registered pursuant to Section 12(b) of the Act:None

Securities registered pursuant to Section 12(g) of the Act:

Common Stock, $0.002 par valuePreferred Stock Purchase Rights

(Title of class)

Indicate by check mark if the Registrant is a well−known seasoned issuer, as defined in Rule 405 of the Securities Act. YES ¨ NO⌧

Indicate by check mark if the Registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. YES ¨ NO⌧

Indicate by check mark whether the Registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934during the preceding 12 months (or for such a shorter period that the Registrant was required to file such reports), and (2) has been subject to such filingrequirements for the past 90 days. YES ¨ NO⌧

Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S−K is not contained herein, and will not be contained, to thebest of Registrant’s knowledge, in definitive proxy information statements incorporated by reference in Part III of this Form 10−K/A or any amendment to thisForm 10−K. ⌧

Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer, or a non−accelerated filer. See definition of “acceleratedfiler and large accelerated filer” in Rule 12b−2 of the Exchange Act. (Check one)

Source: MERCURY INTERACTIVE , 10−K, October 05, 2006

Large accelerated filer ⌧ Accelerated filer̈ Non−accelerated filer̈

Indicate by check mark whether the Registrant is a shell company (as defined in Rule 12b−2 of the Exchange Act). YES ¨ NO⌧

The aggregate market value of the voting stock held by non−affiliates of the Registrant was approximately $ 2,234,772,660 as of June 30, 2005, basedupon the closing sale price reported for that date on The NASDAQ National Market. Shares of Common Stock held by each officer and director and by eachperson who owns 5% or more of the outstanding Common Stock have been excluded because such persons may be deemed to be affiliates. This determination ofaffiliate status is not necessarily conclusive for other purposes.

The number of shares of Registrant’s Common Stock outstanding as of September 19, 2006 was 89,197,029.


Table of ContentsTABLE OF CONTENTS

Page

PART IItem 1. Business 4

General 6Products and Services 10Research and Development 10Sales, Marketing, and Alliance Partners 11Licensing, Pricing, Deferred Revenue, and Seasonality 11Financial Information About Geographical Areas 12Competition 12Patents, Trademarks, and Licenses 13Personnel 14Available Information 14

Item 1A. Risk Factors 14Item 1B. Unresolved Staff Comments 33Item 2. Properties 33Item 3. Legal Proceedings 33Item 4. Submission of Matters to a Vote of Security Holders 36

PART IIItem 5. Market for the Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities 37Item 6. Selected Consolidated Financial Data 38Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations 38Item 7A. Quantitative and Qualitative Disclosures About Market Risk 70Item 8. Financial Statements and Supplementary Data 72Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure 73Item 9A. Controls and Procedures 73Item 9B. Other Information 78

PART IIIItem 10. Directors and Executive Officers of the Registrant 79Item 11. Executive Compensation 84Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters 92Item 13. Certain Relationships and Related Transactions 95Item 14. Principal Accountant Fees and Services 96

PART IVItem 15. Exhibits and Financial Statement Schedules 98Signatures 104

2


Table of ContentsThis Annual Report on Form 10−K contains forward−looking statements within the meaning of Section 21E of the Securities Exchange Act of 1934 and

Section 27A of the Securities Act of 1933. In some cases, forward−looking statements are identified by words such as “believes,” “anticipates,” “expects,”“intends,” “plans,” “will,” “may,” and similar expressions. In addition, any statements that refer to our plans, expectations, strategies or othercharacterizations of future events or circumstances are forward−looking statements. Our actual results could differ materially from those discussed in, orimplied by, these forward−looking statements. Factors that could cause actual results or conditions to differ from those anticipated by these and otherforward−looking statements include those more fully described in “Risk Factors”. Our business may have changed since the date hereof, and we undertake noobligation to update the forward−looking statements in this Annual Report on Form 10−K.

Mercury, Mercury Interactive, the Mercury logo, LoadRunner, ProTune, QuickTest Professional, SiteScope, TestDirector, and WinRunner are trademarksof Mercury Interactive Corporation in the United States and may be registered in certain jurisdictions. The absence of a trademark from this list does notconstitute a waiver of Mercury’s intellectual property rights concerning that trademark.

This Annual Report on Form 10−K contains references to other company, brand, and product names. These company, brand, and product names are usedherein for identification purposes only and may be the trademarks of their respective owners. Mercury Interactive Corporation disclaims any responsibility forspecifying which marks are owned by which companies or which organizations.

3


Table of Contents PART I

Item 1. Business

General

Industry Overview

The importance of enterprise software applications in today’s business environment cannot be overstated. Some analysts project that up to 90−percent ofbusiness processes are automated in enterprise applications. As a result, maximizing the value of enterprise software applications is a critical factor in overallbusiness success. Yet it is increasingly difficult for chief information officers (CIOs) to deliver business value while managing costs, risks, and complianceagainst a changing backdrop of increasing business and technology complexity. To address these challenges, many of our global customers are turning tobusiness technology optimization (BTO), the industry strategy for maximizing the business value of Information Technology (IT). BTO applies business andquality management practices coupled with software to optimize the business outcome of IT. Global 2000 companies use the principles and practices of BTO toautomate and optimize IT itself. BTO is about ensuring that every dollar invested in IT, every resource allocated, and every application in development or inproduction is fully aligned with business goals. BTO helps CIOs and IT executives achieve their top priorities, which include:

• maximize and demonstrate the business value of IT;

• align IT strategy with business priorities;

• reduce IT spending; and

• control risks and improve regulatory compliance.

Company Overview

We are a leading provider of software and services for the BTO marketplace. Mercury was incorporated in 1989, and began shipping software qualitytesting products in 1991. Since 1991, we have introduced a variety of BTO software and service offerings, including offerings in application delivery for testingsoftware quality and performance in pre−production, application management for monitoring and managing application availability in production, and ITgovernance for managing IT’s portfolio of projects, processes, priorities, and resources.

Our BTO offerings for application delivery, application management, and IT governance help customers maximize the business value of IT by optimizingapplication quality and performance as well as managing IT costs, risks, and compliance. The Mercury BTO offerings include:

• Our IT governance offerings help customers govern and manage the priorities, people, and processes required to run an IT organization like abusiness.

• Our application delivery offerings help customers optimize and test their custom and packaged business applications by improving the quality andperformance of those applications, while reducing the time and costs required to deploy them.

• Our application management offerings help customers optimize the performance and availability of applications in production and resolve problemsquickly and proactively.

• Most of our offerings are available as a managed service over the Internet. Our managed service is a “software as a service” offering that allows ourcustomers the flexibility of choosing which Mercury software to run themselves and which software will be outsourced to us.

• We also provide a wide range of customer support and professional service offerings that enable our global partners and customers to implement,customize, manage, and extend our BTO offerings.

4


Table of ContentsProposed Acquisition of Mercury Interactive by Hewlett−Packard Company

On July 25, 2006, we entered into an Agreement and Plan of Merger (the Merger Agreement) with Hewlett−Packard Company (HP) and Mars LandingCorporation, a wholly−owned subsidiary of HP (Merger Sub). Pursuant to the Merger Agreement, and upon the terms and subject to the conditions thereof, onAugust 17, 2006, Merger Sub commenced a cash tender offer (the Offer) for all of the issued and outstanding shares of our common stock, par value of $0.002per share, at a purchase price of $52.00 per share (the Offer Price). As soon as practicable after the consummation of the Offer, Merger Sub will merge with andinto us (the Merger) and we will become a wholly−owned subsidiary of HP. In the Merger, the remaining stockholders of Mercury, other than such stockholderswho have validly exercised their appraisal rights under the Delaware General Corporation Law, will be entitled to receive the Offer Price per share. As of thedate of this filing, the Offer is scheduled to expire on October 13, 2006.

The obligation of Merger Sub to accept for payment and pay for the shares tendered in the Offer is subject to a number of conditions described in theMerger Agreement, including among others, the expiration of the waiting period under the Hart−Scott−Rodino Antitrust Improvements Act and the receipt ofany other material antitrust or merger control approvals. In addition, HP’s acceptance of the tendered shares is subject to HP’s ownership, following suchacceptance, of at least a majority of all then outstanding shares of our common stock and the filing with the Securities and Exchange Commission of our AnnualReport on Form 10−K for the fiscal year ended December 31, 2005.

The closing of the Merger is subject to customary closing conditions (including those discussed above), and, depending on the number of shares held byHP after its acceptance of the shares properly tendered in connection with the Offer, approval of the Merger by the holders of our outstanding shares remainingafter the completion of the Offer also may be required.

Restatement of consolidated financial statements

In our Form 10−K/A (filed on July 3, 2006), we restated our consolidated financial statements for the years ended December 31, 2004, 2003 and 2002 andthe selected consolidated financial data as of and for the years ended December 31, 2004, 2003, 2002, 2001 and 2000. In addition, we restated our condensedconsolidated financial statements for the quarters ended March 31, 2005 and 2004 in our Form 10−Q/A filed on August 1, 2006. All financial informationincluded in this Annual Report on Form 10−K reflects our restatement.

2005 Business Acquisitions

On July 26, 2005, we acquired a wireless testing business unit from Intuwave Limited (Intuwave). The acquired technology helps to automate the testingof wireless services and applications running on smart phones. The acquisition enables us to continue to deepen our core BTO technology. Intuwave developedm−Test technology to help automate the testing of wireless services and applications running on Symbian OS−based smart phones. Currently, customers can usem−Test in conjunction with Mercury QuickTest Professional and Mercury Business Process Testing to connect directly to a mobile device, such as a smartphone, to test and confirm how the device and its applications will perform. m−Test has been used by device manufacturers and mobile network operators to helpensure the market−readiness of their wireless devices, wireless applications and services. We plan to utilize m−Test technology to bolster the wireless testingcapabilities of our Quality Center product.

On September 1, 2005, we completed our acquisition of BeatBox Technologies (BeatBox), formerly known as ClickCadence, LLC. BeatBox specializedin assisting companies to optimize the efficiency and effectiveness of their online presence. BeatBox technology is used to track and capture real user applicationbehavior such as clickstream traffic, page performance, application errors and visitor sessions on web based applications. BeatBox technology can helpcustomers identify, record and analyze how users interact with business applications in production. Mercury customers will be able to utilize BeatBox technologyand leverage real user information to

5


Table of Contentsimprove the accuracy of their testing scenarios. We plan to use BeatBox technology to extend the real user monitoring capabilities of our BTO software and toenhance our performance lifecycle offerings.

See Item 7, “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Liquidity and Capital Resources” for additionalinformation regarding cash outlays related to acquisitions.

Products and Services

Our portfolio of BTO products and services is strategically organized around three product lines: application delivery, application management, and ITgovernance. Our BTO offerings, called Mercury Optimization Centers, consist of integrated software, services, and best practices within each center that enablecompanies to use a center of excellence approach to govern the priorities, processes, and people of IT, while maximizing the quality, performance, andavailability of software applications. These Optimization Centers allow our existing customers to expand from tactical initiatives to an enterprise approach toBTO.

Application Delivery Offerings

Our application delivery offerings help customers optimize the quality and performance of both custom−built and pre−packaged software applicationsbefore the applications go into production. We offer two Mercury Optimization Centers for application delivery that automate critical delivery functions,including test management, business−process test design, functional and regression testing, load−testing, performance tuning, capacity planning, and diagnostics.These products and technologies are used to optimize the pre−production software development, customization, and integration processes. Our applicationdelivery offerings enable customers to make informed “go live” decisions, decrease software defects, reduce the time and cost of deploying new software orsoftware upgrades, and help ensure that software applications will produce their intended business outcomes. In addition, certain capabilities of our twooptimization centers are available through a managed service as application delivery services.

Mercury Quality Center

Mercury Quality Center is used by developers, quality assurance teams, and business analysts to perform automated software testing and quality assuranceacross a range of IT and application environments. It combines a suite of role−based applications, a business dashboard, and an application delivery foundation tooptimize and automate key quality activities, including test management, requirements and defects tracking, functional and regression testing, and businessprocess design validation. In addition, customers can choose to have Mercury Quality Center delivered as a managed service.

Mercury Quality Center core software products include:

• Mercury TestDirector is our global test management product that helps organizations deploy high−quality applications more quickly and effectively.Mercury TestDirector software integrates requirements management with test planning, test scheduling, test execution, and defect tracking in a singleapplication to accelerate the quality testing process. Customers can leverage Mercury TestDirector’s core modules either as a standalone solution orintegrated within a global Quality Center of Excellence.

• Mercury QuickTest Professional is our automated testing solution for building functional and regression test suites. It provides a keyword−drivenapproach to structured automation, so customers can use natural language to build tests that verify user interactions and ensure business processeswork as designed. Mercury QuickTest Professional supports a range of enterprise IT environments, including Web (HTML/DHTML), .NET,Java/J2EE, ERP/CRM, client/server, mainframe, and multimedia.

• Mercury WinRunner is our standard functional testing solution for enterprise IT applications. It captures, verifies, and replays user interactionsautomatically, so customers can identify defects and ensure that

6


Table of Contents

business processes, which might span across multiple applications and databases, work as designed upon deployment and remain reliable.

• Mercury Functional Testing combines our functional testing products, Mercury QuickTest Professional and Mercury WinRunner, to deliver acomplete solution for functional test and regression test automation—with support for nearly every software application and environment.

• Mercury Business Process Testing provides our automated functional testing capabilities to business analysts—enabling those people who are mostknowledgeable about business process and application functionality to become an integral part of the quality optimization process. Mercury BusinessProcess Testing is a web−based test automation solution designed to enable subject matter experts to build and execute test automation without anyprogramming knowledge.

Mercury Performance Center

Mercury Performance Center is used by developers and performance testing teams to optimize application performance in pre−production. It helps toensure applications will scale to support the right number of users, transaction volumes, and performance levels. Mercury Performance Center combinesintegrated software, services, best practices, and a business dashboard for key performance optimization activities, including load−testing, performance tuning,capacity planning, and diagnostics across complex, heterogeneous computing environments. In addition, customers can choose to have Mercury PerformanceCenter delivered as a managed service.

Mercury Performance Center core software products include:

• Mercury LoadRunner is our industry−leading load−testing solution for predicting system scalability, behavior, and performance. MercuryLoadRunner is used to obtain an accurate picture of end−to−end system performance, verify that new or upgraded applications meet specifiedperformance requirements, and identify and eliminate performance bottlenecks during the development lifecycle. It exercises an entire applicationinfrastructure by emulating thousands of virtual users and employs performance monitors to identify and isolate performance bottlenecks across andwithin each tier. By using Mercury LoadRunner, customers can minimize testing cycles, reduce defects, optimize application performance, andaccelerate application deployment.

• Mercury Capacity Planning provides simulation modeling of real−world production environments to help customers make informed decisions aboutthe optimal infrastructure requirements from an application end−user perspective, before going live. Mercury Capacity Planning uses HyPerformix’sIntegrated Performance Suite™ technology with Mercury LoadRunner, to build models of existing or future production environments and create“what−if” scenarios of infrastructure deployment alternatives. This helps customers forecast and plan the types and quantities of key IT resourcesrequired to meet cost, performance, and utilization objectives.

• Mercury Diagnostics is our lifecycle application diagnostics solution for J2EE, .NET, and ERP/CRM environments. It can be used in both pre− andpost−production environments to find deep code and configuration level issues in enterprise applications environments, including intermittentproblems, memory leaks, synchronization, deadlocks, and data dependent issues. In pre−production, Mercury Diagnostics allows customers toidentify, diagnose, and resolve application problems prior to deployment.

• Mercury Center Management for Performance Center delivers an out−of−the−box demand, project, and resource management solution for running aperformance testing Center of Excellence.

Application Management Offerings

Our application management offerings help customers optimize business availability and problem resolution. We offer one Mercury Optimization Centeras well as a managed service for application management

7


Table of Contentsthat facilitates a strategic, business−centric approach to ensure that production software performs at the levels required to meet business goals. Additionally, ourapplication management offerings enable customers to proactively manage and automate the repair of production problems, which reduces the businessramifications of downtime.

Mercury Business Availability Center

Mercury Business Availability Center is used by IT operations teams to maximize business availability, manage IT operations from a business perspective,minimize downtime, and ensure applications are meeting established service levels with customers. Comprised of integrated applications, a business dashboard,and an application management foundation, Mercury Business Availability Center is used to manage application performance and availability according toservice levels and business priorities, automatically discover and map the dynamic relationships between applications and underlying infrastructure, quantify thebusiness effect of application downtime, and prioritize problem resolution based on business effect and service−level compliance. In addition, customers canchoose to have Mercury Business Availability Center delivered as a managed service.

Mercury Business Availability Center core software products include:

• Mercury Service Level Management enables customers to proactively manage service levels from the business perspective. It provides service levelreporting for enterprises and service providers to measure application service levels against business objectives. By using Mercury Service LevelManagement, customers can define realistic, quantifiable service level objectives that reflect business goals, and track performance both on areal−time basis and for offline planning purposes.

• Mercury System Availability Management and Mercury SiteScope enable customers to seamlessly deploy and maintain an enterprise infrastructuremonitoring solution to achieve 100−percent coverage. They connect to existing Enterprise Management System (EMS) products or use SiteScopecapabilities to collect and monitor system availability and performance data from across the entire enterprise. Mercury System AvailabilityManagement, using SiteScope as its data collection engine, is based on a unique agentless architecture that enables centralized management andconfiguration, which ultimately lowers the total cost of ownership.

• Mercury Application Mapping provides real−time visibility into the dynamic relationships between enterprise applications and their underlyinginfrastructure. It continuously updates and maintains this topology map within a common relationship model, enabling customers to quickly assess thebusiness effect of IT issues. As a result, customers can reduce the costs and risks of managing new services and making changes to existing services.

• Mercury End User Management proactively monitors application availability in real−time and from the end−user perspective, so customers can fixissues before end−users experience problems. It proactively emulates end−user business processes against applications on a 24x7 basis. Plus, itenables customers to assess the business effect on real users across multiple domains and geographies, and manage end−user performance from awide number of supported desktops and handheld devices.

• Mercury Diagnostics is our lifecycle application diagnostics solution for J2EE, .NET, and ERP/CRM environments. It can be used in both pre− andpost−production environments to find deep code and configuration level issues in enterprise applications environments, including intermittentproblems, memory leaks, synchronization, deadlocks, and data dependent issues. In post−production, Mercury Diagnostics allows customers tomanage, monitor, diagnose, and resolve critical application problems before they affect business or end−user performance.

• Mercury Application Management Foundation offers an “agentless” monitoring architecture that includes our business process and end−usermonitoring infrastructure, as well as an infrastructure monitoring solution.

8


Table of ContentsIT Governance Offerings

Our IT Governance offerings are used by CIOs and IT executives to prioritize and automate IT business processes from demand through production. TheseIT Governance offerings help customers optimize and align IT strategy and execution with business goals, reduce the cost of day to day operations, and improvebusiness value and competitiveness.

Mercury IT Governance Center

Mercury IT Governance Center provides integrated capabilities for managing the strategic components of IT. It provides real−time data to consolidate keygovernance functions such as demand management, portfolio and project management, resource management, and a comprehensive system to help comply withregulations such as the Sarbanes−Oxley Act of 2002. It offers support for quality programs and process control frameworks such as Six−Sigma, CMMI, ITIL,ISO−9000, and COBiT. In addition, it integrates workflow, security, execution, and reporting services.

Mercury IT Governance Center core products include:

• Mercury Demand Management is used to manage all the demand placed on IT. It allows customers to consolidate, prioritize, and fulfill both strategicprojects and day−to−day activities. It also allows customers to manage service levels.

• Mercury Portfolio Management is used to govern IT portfolios by evaluating, prioritizing, balancing, and approving both new initiatives andcustomers’ existing portfolio; analyzing different what−if scenarios, and ensuring alignment with business strategy and IT resource constraints. It letsbusiness and IT stakeholders collaboratively govern their entire IT portfolio, with “apples−to−apples” comparisons and multiple levels of input,review, and approval.

• Mercury Program Management is used to collaboratively manage IT programs from concept to completion. It allows customers to automate and alignprocesses for managing scope, risk, quality, issues, and schedules. Customers can deliver complex programs with the highest quality and capabilities,on time and on budget.

• Mercury Project Management enables collaborative project management for both repetitive projects, such as installing a new release of an HRMSapplication, and one−time projects, such as developing a new e−commerce capability. It allows customers to accelerate project delivery whilereducing project costs.

• Mercury Change Management is used to plan, package, release, and deploy changes to customers’ applications portfolios. It delivers best practicesoftware change management processes across platforms (mainframe, UNIX, NT, Linux), databases (Oracle, DBZ, SQL server, Sybase), types ofchange (code, configurations, content), environments (Java, C, C++, COBOL, XML, HTML), or applications (Oracle, PeopleSoft, SAP, Siebel,custom, legacy).

• Mercury IT Service Management Accelerator provides a set of ITIL service management processes with built−in corporate internal controls based onCOBiT control objectives.

Mercury BTO Services

Mercury BTO Services provides a wide range of professional and educational services as well as customer support offerings that enable global partnersand customers to implement, customize, manage, and extend our BTO offerings. Many of our software offerings are available as a managed service over theInternet—giving customers the flexibility of choosing to deploy Mercury software in−house and/or outsource to us.

Mercury Professional and Educational Services

Our professional services organization offers the expertise, knowledge, and practices to help the customer implement an enterprise−wide BTO strategy.We help the customer measure the quality of their applications and

9


Table of Contentsautomated business processes from a business perspective, maximize technology and business performance at each stage of the application lifecycle, and useeffective governance strategies to manage IT operations for continuous improvement. Post−sales support is provided by our professional services organizationthrough training and consulting engagements. Our educational services provide a comprehensive curriculum for all of our products, using different methods ofdelivery at multiple locations in the U.S. and worldwide. Customers must take rigorous certifications to obtain “Mercury Certified Product Consultant” and“Mercury Certified Instructor” titles. As of December 31, 2005, our professional and educational services organization consisted of 279 employees.

Mercury Customer Support

Our customer support organization provides post−sales support through renewable maintenance contracts. These contracts provide for technical supportand software upgrades on an “if and when available” basis. Our customer support organization offers different customer support programs to suit varying needsof our global customers. Our development teams in Israel serve as an extension of our customer support organization to assist when local support centers areunable to solve a problem. We believe that a strong customer support organization is integral to both the initial marketing of our products and maintenance ofcustomer satisfaction, which in turn enhances our brand and improves opportunity for repeat orders. In addition, customer feedback received through our ongoingsupport function provides us with information on market trends and customer requirements that are strategic to ongoing product development efforts. As ofDecember 31, 2005, our customer support organization consisted of 286 employees.

Mercury Managed Services

Our managed services offerings are a critical part of our strategy to deliver rapid time−to−value for our customers. These services offer customers thechoice to run our software in−house or have us provide them with an outsourced offering. By deploying our software as a service over the Internet, our managedservices help our customers rapidly derive more value from their IT investments while minimizing costs and risks. Our managed services provide aninfrastructure that consists of server farms, a robust infrastructure for managing data, and more than 300 agent machines located in more than 80 locations aroundthe world. In addition, to help customers be successful in implementing our BTO products, our managed services can be augmented with on−going knowledgetransfer from our professional services. We believe that offering our customers the choice of whether to run our software internally or have us provide it as amanaged service is a significant competitive advantage over vendors who only offer one option. As of December 31, 2005, our managed services organizationconsisted of 135 employees.

From time to time, certain products and services discussed above may be offered as combined offerings to meet a customer’s specific needs or to positionus in a specific market segment.

Research and Development

Since our inception in 1989, we have made significant investments in research and product development. We believe our success will depend in large parton our ability to maintain and enhance our current product lines, develop new products and solutions, maintain technological competitiveness, extend ourtechnological leadership, and meet changing customer requirements. Our research and development organization maintains relationships with third−partysoftware vendors and with many major hardware vendors on whose platforms our products operate.

Our primary research and development facility is located near Tel Aviv, Israel. Performing research and development in Israel offers a lower cost structurethan the U.S. and has also allowed us to receive tax incentives from the government of Israel (see Note 12 to the consolidated financial statements for additionalinformation regarding our income tax provision). We also had engineering facilities in Boulder, Colorado; Bellevue, Washington; and Mountain View, Californiaas of December 31, 2005.

10


Table of ContentsFor the years ended December 31, 2005, 2004, and 2003, we incurred $83.7 million, $82.1 million, and $73.1 million in research and development

expenses, including stock−based compensation expense (benefit) of $(1.5) million, $8.2 million, and $16.4 million, respectively. As of December 31, 2005, ourresearch and development organization consisted of 653 employees.

Sales, Marketing, and Alliance Partners

Sales

We employ highly skilled enterprise sales professionals and systems engineers to understand our customers’ needs and to explain and demonstrate thevalue of our products and services. We sell our products primarily through our direct sales organization, which is supported by our pre−sales systems engineers.Our sales organization also includes our inside corporate sales professionals, who are primarily responsible for smaller transactions with existing customers. Asof December 31, 2005, our sales organization consisted of 944 employees.

Our subsidiaries and branches operate sales and support offices in the Americas; Europe, the Middle East and Africa (EMEA); Asia Pacific (APAC); andJapan. As of December 31, 2005, Americas included Brazil, Canada, Mexico, and the United States of America; EMEA included Austria, Belgium, Denmark,Finland, France, Germany, Holland, Israel, Italy, Luxembourg, Norway, Poland, South Africa, Spain, Sweden, Switzerland, and the United Kingdom; and APACincluded Australia, China, Hong Kong, India, Korea, and Singapore.

Marketing

Our marketing organization is primarily responsible for aligning the needs of our customers and partners with our BTO strategy, building the value of theMercury brand, marketing our product and service offerings, differentiating us from competitors, and enabling our global channel to sell and service ourcustomers. Our marketing activities include integrated marketing campaigns, BTO executive summits, business and trade press tours, industry analyst briefings,global advertising, and lead generation campaigns targeted at senior IT executives. Marketing activities included direct mailings to customers and prospects, aswell as attendance and sponsorship at strategic industry events and tradeshows. We also share BTO best practices with partners, existing customers and prospectsthrough a series of events, publications, and hosting a series of Internet seminars. These activities are designed to familiarize the market with the capabilities ofBTO and Mercury Optimization Center offerings. As of December 31, 2005, our marketing organization consisted of 176 employees.

Alliance Partners

We work with a wide range of partners around the world. Our strategy is to partner with global software vendors, systems integrators, and hardware andsoftware vendors to provide our customers with a wide breadth and depth of leading software and services to get the most value out of their initiatives. Thesecompanies include:

• global software vendors that provide enterprise applications, such as Oracle and SAP AG; and

• major systems integrators, including BearingPoint, Deloitte Consulting LLP, and Electronic Data Systems (EDS).

We derive a portion of our business from sales of our products through our alliance partners. We normally pay our alliance partners through our channelbusiness in the form of a discount or a fee for the referral of business, which is netted against the revenue we recognize.

Licensing, Pricing, Deferred Revenue, and Seasonality

We license our software to customers under non−exclusive license agreements on either subscription, perpetual, or multiple year term bases that generallyrestrict use of the products to internal purposes at a specified

11


Table of Contentssite. We typically license software products to either allow up to a set number of users to access the software on a network at any one time, using any workstationattached to that network, or to allow use of the software on designated computers or workstations. In addition, our managed services, application managementproducts, and some application delivery and IT governance products are licensed and priced based on usage, such as the number of transactions monitored,number of virtual users emulated per day, or period of usage.

We believe that offering customers the option to license our software using term and subscription contracts provides us with a unique differentiator. Termand subscription licensing enable our customers to license the software they need for the time period they use it, while providing us with the opportunity to earnrenewals and expand contracts over time.

Our products are priced to encourage customers to purchase multiple products and licenses and expand the usage of our technology. License fees dependon the product licensed, the term of the license, the number of users for the product licensed, and the locations in which such licenses are sold, as internationalprices tend to be higher than U.S. prices. Sales to our indirect sales channels, which are intended for resale to end−users, are made at discounts from our listprices based on the sales volume of the indirect sales channels. Original purchases of maintenance and renewal maintenance sales are priced at specifiedpercentages of the related license fees. Training and consulting revenues are generally generated on a time and expense basis.

We recognize revenue ratably for subscription contracts whose terms generally range from a period of one to three years. Revenue recognized from thesecontracts was $187.6 million, $152.2 million, and $98.8 million for the years ended December 31, 2005, 2004, and 2003, respectively. Our total deferred revenuebalance was $464.9 million at December 31, 2005. This includes deferred revenue associated with (a) license fees that have been billed but were not recognizableas revenue at that time; (b) subscription contracts; and (c) maintenance contracts for which revenue is recognized ratably over the term of the maintenance period.We expect $92.7 million of this balance to be recognized as revenue in periods after 2006.

We do not have any sales contracts that obligate our customers to buy any material products or services over future periods other than those sales recordedas either revenues or deferred revenues.

We have experienced seasonality in our orders and revenues which may result in seasonality in our earnings. The fourth quarter of the year typically hasthe highest orders and revenues for the year and higher orders and revenues than the first quarter of the following year. We believe that this seasonality resultsprimarily from our customers’ budgeting cycles, which are typically higher in the third and fourth fiscal quarters, from our application management andapplication delivery businesses being typically strongest in the fourth fiscal quarter and weakest in the first fiscal quarter, and to a lesser extent, from the structureof our sales commission program. We expect this seasonality to continue in the future.

Financial Information About Geographical Areas

Financial information about geographical areas is included in Note 17 to the consolidated financial statements.

Competition

We believe we compete favorably in each of the key components of BTO. However, the market for our business technology optimization products andservices is extremely competitive, dynamic, and subject to frequent technological change. There are few substantial barriers of entry in our market. The Internethas further reduced these barriers of entry, allowing other companies to compete with us in our markets. As a result of increased competition, our success willdepend, in large part, on our ability to identify and respond to the needs of current and potential customers and to new technological and market opportunitiesbefore our competitors identify and respond to these needs and opportunities. We may fail to respond quickly enough to these needs and opportunities.

12


Table of ContentsIn the market for application delivery solutions, our principal competitors include Compuware, Empirix, IBM Software Group, Parasoft, Worksoft, and

Segue Software. In the new and rapidly changing market for application management solutions, our principal competitors include BMC Software, ComputerAssociates (including its Wily Technology division), Compuware, HP OpenView (a division of Hewlett−Packard), Keynote Systems, Segue Software and Tivoli(a division of IBM). In the market for IT governance solutions, our principal competitors include enterprise application vendors such as SAP AG, Oracle,Lawson, and Compuware (with its acquisition of Changepoint), as well as point tool vendors such as Computer Associates (with its acquisition of Niku) andPrimavera.

We believe the principal competitive factors affecting our market are:

• price and cost effectiveness;

• product functionality;

• product performance, including scalability and reliability;

• quality of support and service;

• company reputation;

• depth and breadth of BTO offerings;

• research and development leadership;

• financial stability; and

• global capabilities.

Although we believe our products and services currently compete favorably with respect to these factors, the markets for application management,application delivery, and IT governance are new and rapidly evolving. We may not be able to maintain our competitive position, which could lead to a decreasein our revenues and adversely affect our results of operations. The software industry is increasingly experiencing consolidation and this could increase theresources available to our competitors and the scope of their product offerings. For example, our former IT governance competitor, PeopleSoft, was acquired byOracle, which has substantially greater financial and other resources than we have. Our competitors and potential competitors may develop more advancedtechnology, undertake more extensive marketing campaigns, adopt more aggressive pricing policies, or make more attractive offers to distribution partners and toemployees. We anticipate the market for our software and services will become increasingly more competitive over time.

Patents, Trademarks, and Licenses

We rely on a combination of patents, copyrights, trademarks, service marks, trade secret laws, and contractual restrictions to establish and protectproprietary rights in our products and services. The source code for our products is protected both as a trade secret and as an unpublished copyrighted work.Despite our precautions, it may be possible for a third party to copy or otherwise obtain and use our products or technology without authorization. In addition, thelaws of various countries in which our products are sold may not protect our products and intellectual property rights to the same extent as the laws of the U.S.Our competitors may independently develop technologies that are substantially equivalent or superior to our technology.

We rely on software we license from third parties for certain components of our products and services. In the future, we may license other third partytechnologies to enhance our products and services and meet evolving customer needs. The failure to license any necessary technology or maintain our existinglicenses could result in reduced demand for our products.

Because the software industry is characterized by rapid technological change, we believe factors such as the technological and creative skills of ourpersonnel, new product developments, frequent product enhancements,

13


Table of Contentsname recognition, and reliable product maintenance are more important to establishing and maintaining a technology leadership position than the various legalprotections of our technology.

As of December 31, 2005, we have been granted or own by assignment 32 patents, of which 29 were issued in the United States, and have 8 patentapplications on file with the United States Patent and Trademark Office (including continuation and divisional applications) for elements contained in ourproducts and services. Once granted, we expect the duration of each patent to be up to 20 years from the effective date of filing of the applications. We intend tocontinue to file patent applications as appropriate in the future. We cannot be sure, however, that any of our pending patent applications will be allowed, that anyissued patents will protect our intellectual property or will not be challenged by third parties, or that the patents of others will not seriously harm our ability to dobusiness. In addition, others may independently develop similar or competing technologies or design around any of our patents. We do not believe we aresignificantly dependent on any of our patents as we do not generally license our patents to other companies and do not receive any revenue as a direct result ofour patents.

Although we believe our products and services and other proprietary rights do not infringe upon the proprietary rights of third parties, third parties mayassert intellectual property infringement claims against us in the future. Any such claims may result in costly, time−consuming litigation and may require us toenter into royalty or cross−license arrangements.

Personnel

As of December 31, 2005, we had a total of 2,854 employees, of which 1,390 were based in the Americas and 1,464 were based outside the Americas. Ofthe total, 1,120 were engaged in marketing and selling, 700 were in services and support, 653 were in research and development, and 381 were in general andadministrative functions. Our success depends in significant part upon the performance of our senior management and certain key employees. Competition forhighly skilled employees, including sales, technical, and management personnel, is strong in the software and technology industry. We may not be able to recruitand retain key sales, technical, and managerial employees. Our failure to attract, assimilate, or retain highly qualified sales, technical, and managerial personnelcould seriously harm our business. Additionally, during 2005, we had changes in the roles, responsibilities, and personnel in our executive management. Anyfailures of our executive team to adapt and change to these new roles and responsibilities could have an adverse effect on our business. None of our employeesare represented by a labor union, we have never experienced any work stoppages, and we believe our employee relations are in good standing.

Available Information

We are subject to the informational requirements of the Securities Exchange Act of 1934 (the Exchange Act). Therefore, we file periodic reports, proxystatements, and other information with the Securities and Exchange Commission (SEC). Such reports, proxy statements and other information may be obtainedby visiting the Public Reference Room of the SEC at 450 Fifth Street, NW, Washington, DC 20549 or by calling the SEC at 1−800−SEC−0330. In addition, theSEC maintains an Internet website at www.sec.gov that contains reports, proxy, and information statements and other information regarding issuers that fileelectronically.

You can access financial and other information on our website at http://www.mercury.com/us/company/ir/. We make available on our website, free ofcharge, copies of our annual report on Form 10−K, quarterly reports on Form 10−Q, current reports on Form 8−K, and amendments to those reports filed orfurnished pursuant to Section 13(a) or 15(d) of the Exchange Act as soon as reasonably practicable after filing such material electronically or otherwisefurnishing it to the SEC.

Item 1A. Risk Factors

In addition to the other information included in this Annual Report on Form 10−K, you should carefully consider the risks described below before decidingto invest in us or maintain or increase your investment. The

14


Table of Contentsrisks and uncertainties described below are not the only ones we face. Additional risks and uncertainties not presently known to us or that we currently deem notsignificant may also affect our business operations. If any of these risks actually occur, our business, financial condition, or results of operations could beseriously harmed. In that event, the market price of our common stock could decline and you could lose all or part of your investment.

Risks Related to the Proposed Acquisition by Hewlett−Packard Company

Our business and results of operations are likely to be affected by our announced acquisition by Hewlett−Packard Company (HP). On July 25, 2006, weentered into an Agreement and Plan of Merger (the Merger Agreement) with HP and Mars Landing Corporation, a wholly−owned subsidiary of HP (MergerSub). Pursuant to the Merger Agreement, and upon the terms and subject to the conditions thereof, on August 17, 2006, Merger Sub commenced a cash tenderoffer (the Offer) for all of the issued and outstanding shares of our common stock, par value of $0.002 per share, at a purchase price of $52.00 per share (theOffer Price). As soon as practicable after the consummation of the Offer, Merger Sub will merge with and into us (the Merger) and we will become awholly−owned subsidiary of HP. In the merger, the remaining stockholders of Mercury, other than such stockholders who have validly exercised their appraisalrights under the Delaware General Corporation Law, will be entitled to receive the Offer Price per share. The announcement of the acquisition could have anadverse effect on our revenue in the near term if customers delay, defer or cancel purchases pending consummation of the planned acquisition. Although we areattempting to mitigate this risk through communications with our customers, current and prospective customers could be reluctant to purchase our products orservices due to uncertainty about the direction of the combined company’s product offerings and its support and service of existing products. To the extent thatour announcement of the acquisition creates uncertainty among customers such that one large customer, or a significant number of smaller customers, delaypurchase decisions pending consummation of the planned acquisition, our results of operations could be negatively affected. Decreased revenue could have avariety of adverse effects, including negative consequences to our relationships with customers, suppliers, resellers and others. In addition, our quarterly resultsof operations could be below the expectations of market analysts, which could cause a decline in our stock price. Finally, activities relating to the acquisition andrelated uncertainties could divert our management’s and our employees’ attention from our day−to−day business, cause disruptions among our relationships withcustomers and business partners, and cause employees to seek alternative employment, all of which could detract from our ability to generate revenue and controlcosts.

If the conditions to the proposed acquisition by HP set forth in the Merger Agreement are not met, the acquisition may not occur. The obligation of MergerSub to accept for payment and pay for the shares tendered in the Offer is subject to a number of conditions described in the Merger Agreement, including amongothers, the receipt of various material antitrust or merger control approvals. In addition, HP’s acceptance of the tendered shares is subject to HP’s ownership,following such acceptance, of at least a majority of all then−outstanding shares of our common stock. The closing of the merger is also subject to customaryclosing conditions, and, depending on the number of shares held by HP after its acceptance of the shares properly tendered in connection with the Offer, approvalof the merger by the holders of the Company’s outstanding shares remaining after the completion of the offer also may be required. These conditions are set forthin detail in the Merger Agreement, which we have previously filed with the Securities and Exchange Commission. We cannot assure you that each of theconditions will be satisfied. If the conditions are not satisfied or waived, the proposed merger will not occur or will be delayed, and the market price of commonstock could decline.

Failure to complete the proposed acquisition by HP would negatively affect our future business and operations. If the sale of Mercury to HP is notcompleted, we could suffer a number of consequences that may adversely affect our business, results of operations and stock price, including the following:

• activities relating to the acquisition and related uncertainties may lead to a loss of revenue and market position that we may not be able to regain if theacquisition does not occur;

• the market price of our common stock could decline following an announcement that the acquisition has been abandoned;

15


Table of Contents

• we could be required to pay HP a termination fee of $170.0 million under the circumstances described in the Merger Agreement;

• we would remain liable for our costs related to the acquisition, such as legal and accounting fees and a portion of our investment banking fees;

• we may not be able to take advantage of alternative business opportunities or effectively respond to competitive pressures;

• we may not be able to retain key employees; and

• we may not be able to maintain effective internal control over financial reporting due to employee departures.

In addition to the above risks, our recent announcement of the proposed sale of Mercury to HP may intensify the risks set forth below.

Risk Related to the Restatement of Our Prior Financial Results

The Special Committee investigation, our internal review of our historical financial statements, the restatement of our consolidated financial statements,investigations by the SEC and related events have had, and will continue to have, a material adverse effect on us. In November 2004, the Company wascontacted by the SEC as part of an informal inquiry entitled In the Matter of Certain Option Grants (SEC File No. MHO−9858) which was converted to a formalproceeding in the fall of 2005. In June 2005, we formed a Special Committee of disinterested directors to investigate and address the Company’s past stockoption practices. In August 2005, the Special Committee concluded that the actual dates of determination for certain past stock option grants differed from theoriginally stated grant dates for such awards. Because the prices at the originally stated grant dates were lower than the prices on the actual dates of thedetermination, we determined we should have recognized material amounts of stock−based compensation expense which were not accounted for in ourpreviously issued financial statements. Therefore, our Board of Directors concluded that our previously issued unaudited interim and audited annual consolidatedfinancial statements for the years ended December 31, 2004, 2003 and 2002, as well as the unaudited interim financial statements for the first quarter endedMarch 31, 2005, should no longer be relied upon because these financial statements contained misstatements and would need to be restated.

On November 2, 2005, we announced that the Special Committee had made certain determinations as a result of its review and that our Board of Directorshad accepted the resignations of our then CEO, CFO and General Counsel (Prior Management). In November 2005, following the resignation of PriorManagement, our Board of Directors expanded the mandate of the Special Committee. The Special Committee was requested to work in conjunction with theCompany to conduct a supplemental review of the principal financial reporting control areas of the Company and the key individuals functioning in these areasduring the relevant time periods. The purpose of the supplemental review was to determine whether the work previously performed by the Company could berelied upon with respect to matters other than the stock option related matters that were the subject of the Special Committee’s initial efforts (RecertificationProcedures). As a result of the Special Committee’s investigation and Recertification Procedures, as well as our internal review of our historical financialstatements, we have restated our financial statements for the three years ended December 31, 2004, and for the first quarter ended March 31, 2005. The restatedfinancial information, the changes made from the applicable originally filed financial information, and a summary of findings made by the Special Committeeand our review, are contained in our Amended Annual Report on Form 10−K/A for the year ended December 31, 2004, and our Amended Quarterly Report onForm 10−Q/A for the quarter ended March 31, 2005.

As a result of the events described above, we have become subject to the following significant risks, each of which is described in more detail below. Eachof these risks could have a material adverse effect on our business, financial condition and results of operations:

• we are subject to an ongoing investigation by the SEC which has required significant management time and attention and caused us to incursignificant accounting and legal expense and which could require us

16


Table of Contents

to pay substantial fines or other penalties. In addition, there are material proceedings against our directors and officers, as individuals, and Dr. Kohavi,Mr. Shamir, and Dr. Yaron have each received “Wells” notices from the SEC. See Note 18 “Subsequent Events” to the Notes to ConsolidatedFinancial Statements;

• we are subject to significant pending civil litigation, including shareholder class actions lawsuits and derivative claims made on behalf of us, thedefense of which will require us to devote significant management attention and to incur significant legal expense and which litigation, if decidedagainst us, could require us to pay substantial judgments, settlements or other penalties;

• we are subject to the risk of additional litigation and regulatory proceedings or actions;

• our restatement, related litigation, and related restructuring of our 4.75% Convertible Subordinated Notes due 2007 and Zero Coupon SeniorConvertible Notes due 2008 (together, the “Notes”) could result in substantial expenses and adversely affect our cash flows, and we may be unable togenerate sufficient cash from operations as such expenses arise;

• many members of our senior management team and our Board of Directors have been and will be required to devote a significant amount of time onmatters relating to the continuing SEC investigation, the restatement, our outstanding periodic reports, remedial efforts and related litigation;

• we may be unable to effectively implement our plan to remediate the material weaknesses disclosed in Item 9A, “Controls and Procedures”;

• we have been unable to remain current with the filing of our periodic reports with the SEC and our efforts to become current will require substantialmanagement time and attention as well as additional accounting and legal expense;

• as a result of the restatement and the delayed filing of our periodic reports, we were delisted from NASDAQ in January 2006 and there can be noassurance that we will be able to obtain listing of our common stock on a national securities exchange; and

• we face challenges in hiring and retaining qualified personnel due to the restatement, the related SEC and internal investigations and delisting fromNASDAQ.

We cannot predict the outcome of the SEC’s formal investigation of our past stock option practices. The investigation has required, and may continue torequire, significant management time and attention, as well as additional accounting and legal expense, and could result in civil and/or criminal actions seeking,among other things, injunctive and monetary relief from Mercury. The SEC’s formal investigation of our past stock option practices is ongoing. We continue tofully cooperate with the SEC and have provided the staff with extensive documentation relating to the Special Committee’s investigation and our internal reviewof our historical financial statements. The SEC investigation and requests for information have required significant management attention and resources. Theperiod of time necessary to resolve the SEC investigation is uncertain, and these matters could require significant additional attention and resources which couldotherwise be devoted to the operation of our business. We have incurred substantial expenses with third parties for legal, accounting, tax and other professionalservices in connection with these matters and expect to continue to incur significant expenses in the future, which may adversely affect our results of operationsand cash flows. On September 28, 2006, we announced that we had proposed a settlement to the staff of the SEC, which the staff has agreed to recommend to theSEC, to conclude for us the matters arising from the formal SEC investigation. We have proposed to pay a $35.0 million civil penalty and to consent to the entryof a final judgment by a federal court permanently enjoining the Company from violations of the antifraud and other provisions of the federal securitieslaws. The proposed settlement is contingent on the review and approval of final documentation by us and the staff of the SEC, and is subject to final approval bythe SEC. We have expensed the amount as “Costs of restatement and related legal activities” in our consolidated statement of operations against “Accrued andother liabilities” in our consolidated balance sheets for the year ended December 31, 2005. As provided in the Merger Agreement with us, Hewlett−Packard hasconsented to the settlement offer and will also be required to approve

17


Table of Contentsthe final settlement documentation. We continue to cooperate with the SEC and other government agencies regarding this matter. There can be no assurance thatour efforts to resolve the SEC’s investigation with respect to the Company will be successful, or that the amount reserved will be sufficient, and we cannotpredict the timing or the final terms of any settlement.

We have been named as a party to several class action and derivative action lawsuits arising from the Special Committee investigation and relatedrestatements, and we may be named in additional litigation, all of which could require significant management time and attention and result in significant legalexpenses and may result in an unfavorable outcome which could have a material adverse effect on our business, financial condition and results of operations. Inconnection with the Special Committee investigation and related restatements of our historical financial statements, a number of securities class actioncomplaints were filed on behalf of a class of our stockholders against us and certain of our current and former officers and directors, and a number of derivativeactions were also filed against certain current and former directors and officers of the Company. See Item 3 “Legal Proceedings” of this report.

The amount of time to resolve these lawsuits is unpredictable, and defending ourselves may divert management’s attention from the day−to−dayoperations of our business, which could adversely affect our business, financial condition and results of operations. In addition, an unfavorable outcome in suchlitigation could have a material adverse effect on our business, financial condition and results of operations.

Our insurance coverage may not be sufficient to cover our total liabilities in any of these actions. In addition, we may be obligated to indemnify (andadvance legal expenses to) former or current directors, officers or employees in accordance with the terms of our certificate of incorporation, bylaws, otherapplicable agreements, and Delaware law. We currently hold insurance policies for the benefit of our directors and officers, although our insurance coverage maynot be sufficient in some or all of these matters. Furthermore, the underwriters of our directors and officers insurance policy may seek to rescind or otherwisedeny coverage in some or all of these matters, in which case we may have to self−fund the indemnification amounts owed to such directors and officers.

We are subject to the risk of additional litigation and regulatory proceedings or actions in connection with the Special Committee investigation andrelated restatements. We have been responding to inquiries and providing information and documents related to stock option matters to the Internal RevenueService and the United States Department of Justice. We have provided information related to findings with tax implications to the Internal Revenue Service, andare presently discussing possible settlement terms. We are also cooperating fully with the Department of Justice and intend to continue to do so. There is noassurance that other regulatory inquiries will not be commenced by other U.S. federal, state or foreign regulatory agencies. In addition, we may in the future besubject to additional litigation or other proceedings or actions arising in relation to the Special Committee investigation and the restatement of our prior periodfinancial statements. Litigation and any potential regulatory proceeding or action may be time consuming, expensive and distracting from the conduct of ourbusiness. The adverse resolution of any specific lawsuit or any potential regulatory proceeding or action could have a material adverse effect on our business,financial condition and results of operations.

Our restatement, related litigation, and related restructuring of our Notes could result in substantial expenses and adversely affect our cash flows, andfailure to generate sufficient cash as such expenses arise may adversely affect our business, financial condition, and results of operations. We have incurredsubstantial expenses with third parties for legal, accounting, tax and other professional services in connection with the Special Committee investigation, ourinternal review of our historical financial statements, the preparation of the restated financial statements, the SEC investigation and inquiries from othergovernment agencies, the related class action and derivative litigation, and the amendments to the terms of our Notes as a result of our failure to timely file ourExchange Act reports with the SEC and the trustee for the Notes. During the year ended December 31, 2005, we incurred $84.0 million of expenses related tothese activities, including a proposed settlement of $35.0 million to the SEC, and we estimate that we incurred approximately $23.3 million of

18


Table of Contentsexpenses related to these activities in the six months ended June 30, 2006. We expect to continue to incur significant expenses in connection with these matters.Under the amendments to the terms of our Notes, if the put options granted to the holders of both series of Notes are exercised, we will be required to pay theface value of the Notes and an additional $36.3 million to the holders of the Zero Coupon Senior Convertible Notes due 2008 (2003 Notes) on October 31, 2006or November 30, 2006 and $3.9 million to the holders of the 4.75% Convertible Subordinated Notes due 2007 (2000 Notes) on March 1, 2007. In addition, inOctober 2005 we paid $7.1 million, in consideration for the waiver we obtained at that time, to the holders of the 2000 Notes. For further information about ourNotes, see “—Leverage and debt service obligations for $800.0 million in outstanding Notes may adversely affect our cash flow and financial position.”

We estimate that our available cash and cash flow from operations will be adequate to fund our operations and service our debt for at least the next twelvemonths. However, any settlement of the SEC investigation, the pending class action and derivative claims and potential taxes owed to the Internal RevenueService, and the costs of becoming current with our periodic reports, will cause us to incur substantial expenses and could adversely affect our cash and cash flowfrom operations. If these expenses are of such significance that we are unable to meet our cash requirements out of cash flow from operations, there can be noassurance that we will be able to obtain alternative funding on commercially reasonable terms, or at all. In the absence of such financing, our ability to respond tochanging business and economic conditions, to make future acquisitions, to absorb adverse results of operations or to fund capital expenditures or increasedworking capital requirements would be significantly reduced.

Many members of our senior management team and our Board of Directors have been and will be required to devote a significant amount of time onmatters relating to the continuing SEC investigation, the restatement, our outstanding periodic reports remedial efforts and related litigation. Our seniormanagement team and our Board of Directors have devoted a significant amount of time on matters relating to the continuing SEC investigation, the restatement,our outstanding periodic reports, remedial efforts and related litigation. In addition, certain members of our senior management team and our Board of Directorsare named defendants in a number of lawsuits alleging violations of federal securities laws related to the SEC investigation and restatement. Defending theseactions may require significant time and attention from members of our current senior management team and our Board of Directors. If our senior management isunable to devote a significant amount of time in the future developing and attaining our strategic business initiatives and running ongoing business operations,there may be a material adverse effect on our business, financial condition and results of operations.

In addition, on June 23, 2006, the SEC Staff, as part of the “Wells” process by which the SEC Staff affords individuals and companies the opportunity topresent their views regarding potential action by the SEC, advised counsel for directors Igal Kohavi, Yair Shamir and Giora Yaron that the SEC Staff isconsidering recommending that the Commission file a civil enforcement proceeding against each of these directors under applicable provisions of the federalsecurities laws. If charges are brought, the SEC may seek a permanent injunction against further violations of the securities laws, an order permanently barringthese directors from serving as officers or directors of any SEC registered company (including Mercury Interactive), and civil monetary penalties. The chargesunder consideration would allege that each of these directors knew or should have known about the manipulation of grant dates and that each knew, or wasreckless in not knowing, the impact that option backdating would have on our financial results. The directors have filed a Wells submission arguing that they didnot violate the federal securities laws, that they did not participate in or know of option backdating, and that the charges under consideration are legally andfactually without basis. Former officers are likely to receive or have received similar Wells notices. As described above, the formal SEC investigation of theCompany is continuing. In light of the Wells notice, the aforementioned directors offered to withdraw from their respective positions on the applicablecommittees of the Company’s Board of Directors, and the Board accepted that offer.

We may be unable to effectively implement our plan to remediate the material weaknesses which have been identified in our internal controls andprocedures. As described in more detail in Item 9A, our internal investigation and the investigation conducted by the Special Committee identified materialweaknesses in our

19


Table of Contentsinternal controls and procedures. A material weakness is a control deficiency, or combination of control deficiencies, that results in more than a remote likelihoodthat a material misstatement of the annual or interim financial statements will not be prevented or detected. Our management is committed to remediating thematerial weaknesses identified in Item 9A by implementing changes to the Company’s internal control over financial reporting. Management, along with ourBoard of Directors, has implemented, or is in the process of implementing, a number of changes to the Company’s internal control systems and procedures whichare described in detail in Item 9A. However, no assurance can be given that we will be able to successfully implement our revised internal controls andprocedures or that our revised controls and procedures will be effective in remedying all of the identified material weaknesses in our prior controls andprocedures. In addition, we may be required to hire additional employees to help implement these changes, and may experience higher than anticipated capitalexpenditures and operating expenses during the implementation of these changes and thereafter. If we are unable to implement these changes effectively or ifother material weaknesses develop and we are unable to effectively address these matters, there could be a material adverse effect on our business, financialcondition and results of operations.

We have been unable to remain current with the filing of our periodic reports with the SEC, and our efforts to become current may require substantialmanagement time and attention as well as additional accounting and legal expense. As a result of our restatement we experienced significant delays in the filingof our periodic reports, and following the filing of this Annual Report on Form 10−K, we may need to file our now delinquent quarterly reports on Form 10−Qfor the second and third quarters of 2005 and the first and second quarters of 2006. Should those filings be required, the completion of these outstanding reportswill require substantial management time and attention as well as additional accounting and legal expense. In addition, if we are unable to become current withour filings with the SEC, we may face several adverse consequences. If we are unable to remain current with our filings with the SEC, investors in our securitieswill not have information regarding our business and financial condition with which to make decisions regarding investment in our securities. In addition, we willnot be able to have a registration statement under the Securities Act of 1933, covering a public offering of securities, declared effective by the SEC, and will notbe able to make offerings pursuant to existing registration statements pursuant to certain “private placement” rules of the SEC under Regulation D to anypurchasers not qualifying as “accredited investors.” We also will not be eligible to use a “short form” registration statement on Form S−3 for a period of 12months after the time we become current in our filings. These restrictions could adversely affect our business, financial condition and results of operations.

We may be unable to obtain listing of our common stock on a national securities exchange. As a result of the restatement and the delayed filing of ourperiodic reports with the SEC, we were unable to comply with the listing standards of The NASDAQ National Market and were delisted from NASDAQ inJanuary 2006. Following the filing of this annual report on Form 10−K for the year ended December 31, 2005, we may be required to file now delinquentquarterly reports on Form 10−Q for the second and third quarters of 2005 and the first and second quarters of 2006. We likely will not apply to relist our commonstock on a national securities exchange until at the earliest the first quarter of 2007. There can be no assurance that we will be able to obtain listing of ourcommon stock on a national securities exchange. If we are not successful in listing our common stock on a national securities exchange, the price of our commonstock may be adversely affected.

We face challenges in hiring and retaining qualified personnel due to the restatement, the related SEC and internal investigations and delisting fromNASDAQ. We depend on our employees and on our ability to attract and retain highly qualified personnel. Given the lengthy restatement process, the relatedSEC and internal investigations and the delisting of our common stock from NASDAQ, it has become more difficult to retain key personnel, including membersof our finance team. In addition, we began to experience a higher attrition rate in the fourth quarter of 2005, which continued through the first six months of2006. Our inability to hire qualified personnel and retain existing key personnel has disrupted, and may continue to disrupt, our ability to effectively manage ourbusiness and to complete our outstanding periodic reports. In addition, the loss of the services of any of our key employees, the inability to attract or retainqualified personnel in the future, or delays in hiring required personnel, particularly engineers and sales personnel, could delay the development and introductionof, and negatively affect our ability to sell, our products.

20


Table of ContentsRisks Related To Our Business

We are experiencing slower growth in revenues and new orders which could cause our stock price to decline. In the past, we have been able to reportsignificant growth in revenues and new orders. However, our revenues and orders grew at a slower rate in 2005. Our total revenues grew 23% from the yearended December 31, 2004 to 2005 and 36% from the year ended December 31, 2003 to 2004. Accordingly, investors should not rely on the results of any priorquarterly or annual periods as an indication of our future performance. In addition, growth of our revenues from sales of our products in certain regions, such asEMEA and APAC, has slowed and we anticipate such slower growth to continue. International revenues for the year ended December 31, 2005 increased 23%,compared to a 40% increase in the year ended December 31, 2004. If we are unable to accelerate growth of our revenues and orders, or to accelerate our growthin certain regions, our stock price could decline.

We expect our quarterly revenue and results of operations to fluctuate, and it is difficult to predict our future revenue and results of operations. Ourrevenue and results of operations have varied in the past and are likely to vary significantly from quarter to quarter in the future. These fluctuations are due to anumber of factors, many of which are outside of our control, including:

• fluctuations in demand for, and sales of, our products and services;

• fluctuations in the number of large orders in a quarter, including changes in the length of term and subscription licenses;

• changes in the mix of perpetual, term, or subscription licenses, or other products or services sold in a quarter;

• the mix of our domestic and international sales, together with fluctuations in foreign currency exchange rates;

• our success in developing and introducing new products and services, the timing of new product and service introductions, and order realization;

• our ability to keep a sales force organization with an adequate number of sales and services personnel;

• our ability to introduce enhancements to our existing products and services in a timely manner;

• changes in economic conditions affecting our customers or our industry;

• uncertainties related to the integration of products, services, employees, and operations of acquired companies;

• the introduction of new or enhanced products and services by our competitors and changes in the pricing policies of these competitors;

• the discretionary nature of our customers’ purchase and budget cycles and changes in their budgets for software and related purchases;

• the amount and timing of operating costs and capital expenditures relating to the expansion of our business;

• deferrals by our customers of orders in anticipation of new products or services or product enhancements; and

• our continuing relationships with alliance partners.

In addition, the timing of our software product revenues is difficult to predict and can vary substantially from product to product and customer to customer.We base our operating expenses on our expectations of future revenue levels. The timing of larger orders and customer buying patterns are difficult to forecast,and therefore we may not learn of shortfalls in revenue or earnings or other failures to meet market expectations until late in a particular quarter.


21


Table of ContentsWe have experienced seasonality in our orders and revenues which may result in seasonality in our earnings. The fourth quarter of the year typically has

the highest orders and revenues for the year and higher orders and revenues than the first quarter of the following year. We believe that this seasonality resultsprimarily from our customers’ budgeting cycles being typically higher in the third and fourth quarters, from our application management and application deliverybusinesses being typically strongest in the fourth fiscal quarter and weakest in the first fiscal quarter, and to a lesser extent, from the structure of our salescommission program. We expect this seasonality to continue in the future.

Due to these factors, we believe that period−to−period comparisons of our results of operations are not necessarily meaningful and should not be reliedupon as indications of future performance. If our results of operations are below the expectations of investors or securities analysts, the market price of ourcommon stock could decline and you could lose all or part of your investment.

Our increasing efforts to sell enterprise−wide software products and services could expose us to revenue variations and higher operating costs. Weincreasingly focus our efforts on sales of enterprise−wide solutions, which consist of our Mercury Optimization Centers offerings and related professional andmanaged services, in addition to the sale of component products. As a result, each sale requires substantial time and effort from our sales and support staff as wellas involvement by our professional services and managed services organizations and our systems integrator partners. Large individual sales, or even small delaysin customer orders, can cause significant variation in our revenues and adversely affect our results of operations for a particular period. An increasing portion ofour revenues has been derived from large orders, generally with a value of greater than $1.0 million, as we focus our efforts on sales of enterprise−widesolutions. If we cannot generate a sufficient number of large customer orders or if customers delay or cancel such orders in a particular quarter, our revenues andresults of operations may be adversely affected. Moreover, a substantial portion of our orders, particularly our larger transactions, are typically received in thelast month of each fiscal quarter, with a concentration of such orders in the final week of the quarter. We may not learn of revenue shortfalls as a result of anydelay in the completion, or any cancellation, of a large order until very late in the quarter, and possibly on the final day or days of the quarter. Not only could anydelays or cancellations of large orders adversely affect our revenues, any resulting shortfalls could adversely affect our results of operations because they mayoccur after it is too late to reduce expenses for that quarter. Accordingly, if our results of operations are below the expectations of investors or securities analysts,the market price of our common stock could decline and you could lose all or part of your investment.

Our revenue targets are dependent on a projected mix of orders in a particular quarter and any failure to achieve revenue targets because of a shift in themix of orders could adversely affect our quarterly revenue and results of operations. Our product revenues in any given quarter are dependent upon the volumeof perpetual license orders delivered during the current quarter, the amount of subscription revenue amortized from deferred revenue from prior quarters and, to asmall degree, revenue recognized on subscription orders received during the current quarter. We set our revenue targets for any given period based, in part, uponan assumption that we will achieve a certain level of orders and a certain mix of perpetual licenses and subscription licenses. The mix of orders is subject tosubstantial fluctuation in any given quarter or multiple quarter periods and the actual mix of licenses sold affects the revenue we recognize in the period. If weachieve the target level of total orders, but are unable to achieve our target license mix, we may not meet our revenue targets (if we deliver more−than−expectedsubscription licenses) or we may exceed them (if we deliver more−than−expected perpetual licenses). If we achieve the target license mix, but the overall level oforders is below the target level, then we may not meet our revenue targets which may adversely affect our results of operations. Conversely, if our overall levelof orders is below the target level but our license mix is above our targets (if we deliver more−than−expected perpetual licenses), our revenues may still meet oreven exceed our revenue targets. Furthermore, if a perpetual license is sold within the same timeframe as a subscription based license to the same customer, thenthe two generally become bundled together and are recognized ratably over the term of the contract. This shift may cause us to experience a decrease inrecognized revenue in a given period, as well as continued growth of deferred revenue. In addition, while subscription and term based licenses represent apotential source of renewable license revenue, there is also the risk that customers will not renew their licenses at the end of a term.

22


Table of ContentsOur international sales and operations subject us to risks that could adversely affect our revenue and results of operations. International sales have

historically accounted for a significant percentage of our revenue and we anticipate that such sales will continue to be a significant percentage of our revenue. Asa percentage of our total revenues, international revenues were 40% for both of the years ended December 31, 2005 and 2004. We face risks associated with ourinternational operations, including:

• changes in foreign currency exchange rates;

• changes in tax laws and regulatory requirements;

• difficulties in staffing and managing foreign operations;

• reduced protection for intellectual property rights in some countries;

• the need to localize products for sale in international markets;

• longer payment cycles to collect accounts receivable in some countries;

• seasonal reductions in business activity in other parts of the world in which we operate;

• geographical turmoil, including terrorism and wars;

• country or regional political and economic instability;

• economic downturns in international markets; and

• the possibility of restrictions on repatriation of earnings or capital from foreign countries.

Any of these risks could harm our international operations and reduce our international sales. For example, some countries in Europe, the Middle East, andAfrica already have laws and regulations related to technologies used on the Internet that are more strict than those currently in force in the U.S. Any or all ofthese factors could cause our business and results of operations to be harmed.

In addition, as part of our efforts to improve our results of operations in Europe, we are in the process of rebuilding our sales organization in Europe. Wemay not be able to successfully integrate our new personnel into our business, and we cannot provide any assurance that our efforts to improve our results ofoperations in Europe will be successful.

If we fail to maintain our existing distribution channels and develop additional channels in the future, our revenue could decline. We derive a portion ofour business from sales of our products and services through distribution channels, such as global software vendors, systems integrators, or value−addedresellers. We generally expect that sales of our products through these channels will continue to account for a substantial portion of our revenue for theforeseeable future. We may not experience increased revenue from new channels and may see a decrease from our existing channels, which could harm ourbusiness.

The loss of one or more of our systems integrators or value−added resellers, or any reduction or delay in their sales of our products and services couldresult in reductions in our revenue in future periods. In addition, our ability to increase our revenue in the future depends on our ability to expand our indirectdistribution channels.

Our dependence on indirect distribution channels presents a number of risks, including:


• each of our global software vendors, systems integrators, or value−added resellers can cease marketing our products and services with limited or nonotice and with little or no penalty;

• our existing global software vendors, systems integrators, or value−added resellers may not be able to effectively sell any new products and servicesthat we may introduce;

• we may not be able to replace existing or recruit additional global software vendors, systems integrators, or value−added resellers, if we lose any ofour existing ones;

23


Table of Contents

• our global software vendors, systems integrators, or value−added resellers may also offer competitive products and services;

• we may face conflicts between the activities of our indirect channels and our direct sales and marketing activities; and

• our global software vendors, systems integrators, or value−added resellers may not give priority to the marketing of our products and services ascompared to our competitors’ products.

The continued growth of our business may be adversely affected if we fail to form and maintain strategic relationships and business alliances. Ourdevelopment, marketing, and distribution strategies rely increasingly on our ability to form strategic relationships with software and other technology companies.These business relationships often consist of cooperative marketing programs, joint customer seminars, lead referrals, and cooperation in product development.Many of these relationships are not contractual and depend on the continued voluntary cooperation of each party with us. Divergence in strategy or change infocus by, or competitive product offerings by, any of these companies may interfere with our ability to develop, market, sell, or support our products, which inturn could harm our business. Further, if these companies enter into strategic alliances with other companies or are acquired, they could reduce their support ofour products. Our existing relationships may be jeopardized if we enter into alliances with competitors of our strategic partners. In addition, one or more of thesecompanies may use the information they gain from their relationship with us to develop or market competing products.

If we do not adequately manage and evolve our financial reporting and managerial systems and processes, our ability to manage and grow our businessmay be harmed. Our ability to successfully implement our business plan and comply with regulations, including the Sarbanes−Oxley Act of 2002, requires aneffective planning and management system and process. We will need to continue to improve existing, and implement new, operational and financial systems,procedures and controls to manage our business effectively in the future. As a result, we have licensed software from SAP AG and have begun a process toexpand and upgrade our operational and financial systems. Any delay in the implementation of, or disruption in the transition to, our new or enhanced systems,procedures or controls, could harm our ability to accurately forecast sales demand, manage our supply chain, achieve accuracy in the conversion of electronicdata and record, and report financial and management information on a timely and accurate basis. In addition, as we add functionality, new problems that wehave not foreseen could arise. Such problems could adversely affect our ability to do the following in a timely manner: provide quotes; process customer orders;ship products; provide services and support to our customers; bill and track our customers; fulfill contractual obligations; and otherwise run our business. Failureto properly or adequately address these issues could result in the diversion of management’s attention and resources and affect our ability to manage our business.Accordingly, our results of operations, cash flows, and stock price could be negatively affected.

If we are unable to manage rapid changes, our results of operations could be adversely affected. We have, in the past, experienced significant growth inemployees and the number of our product and service offerings and we believe this growth may continue. This growth has placed a significant strain on ourmanagement and our financial, operational, marketing, and sales systems. We are implementing and plan to implement in the future a variety of new or expandedbusiness and financial systems, procedures, and controls, including the improvement of our sales and customer support systems. The implementation of thesesystems, procedures, and controls may not be completed successfully, or may disrupt our operations or our data may not be transitioned properly. Any failure byus to properly manage these transitions could impair our ability to attract and service customers and could cause us to incur higher operating costs and experiencedelays in the execution of our business plan.

We have also in the past experienced reductions in revenue that required us to rapidly reduce costs. If we fail to reduce staffing levels when necessary, ourcosts would be excessive and our business and results of operations could be adversely affected.

24


Table of ContentsThe success of our business depends on the efforts and abilities of our senior management and other key personnel, many of whom are new to Mercury or

their positions with Mercury. We depend on the continued services and performance of our senior management and other key personnel. The loss of any of ourexecutive officers or other key employees could hurt our business. The loss of senior personnel can result in significant disruption to our ongoing operations, andnew senior personnel must spend a significant amount of time learning our business and our systems in addition to performing their regular duties. Additionally,our inability to attract new senior executives and key personnel could significantly affect our business results.

Many of the individuals that comprise our senior management team are new to Mercury or to their positions with Mercury. On November 2, 2005, weannounced that Amnon Landan (our former chief executive officer and chairman of our Board of Directors), Douglas Smith (our former executive vice presidentand chief financial officer), and Susan Skaer (our former vice president and general counsel) had each resigned from the Company. On that same date, we alsoannounced that our Board of Directors had named Anthony Zingale as chief executive officer, David Murphy as chief financial officer and Giora Yaron aschairman of our Board of Directors, all of whom were existing officers or directors of Mercury, but who took on additional roles and responsibilities withinMercury as a result of such appointments. In addition, during the past year, we have hired a number of new members of our senior management team, includingin our finance and legal departments, and added two additional independent members to our Board of Directors. If we are unable to successfully integrate thenew members of our senior management team, there may be a material adverse effect on our business, financial condition and results of operations.

Because our research and development operations are primarily located in Israel, we may be affected by volatile political, economic, and militaryconditions in that country and by restrictions imposed by that country on the transfer of technology. Our research and development operations are primarilylocated in Israel, and these operations depend on the availability of highly skilled scientific and technical personnel in Israel. Our business also depends ontrading relationships between Israel and other countries. In addition to the risks associated with international sales and operations generally, our operations couldbe adversely affected if major hostilities involving Israel should occur or if trade between Israel and its current trading partners were interrupted or curtailed.

These risks are compounded due to the restrictions on our ability to manufacture or transfer outside of Israel any technology arising from research anddevelopment grants from the government of Israel without the prior written consent of the government of Israel. If we are unable to obtain the consent of thegovernment of Israel, we may not be able to take advantage of strategic manufacturing and other opportunities outside of Israel. Even if we were able to obtainthe consent of the government of Israel, there may be significant costs associated with transferring such technology or manufacturing outside of Israel.

We may be unable to repatriate funds from our non−U.S. subsidiaries without incurring significant taxation. During December 2005, we repatriated$500.0 million from our Israeli subsidiary under the American Jobs Creation Act of 2004. This was a one−time repatriation, and we do not expect to repatriateany additional funds in 2006. The repatriation is subject to taxes of approximately $117.5 million for Israeli taxes, approximately $20.6 million for U.S. federaltaxes, (which is a one−time tax incentive) and approximately $3.2 million for state taxes in accordance with tax laws existing at the time. We are currently undernegotiations with the Israeli government in an attempt to obtain approval to reduce a portion of the Israeli taxes. However, the likelihood that we will besuccessful in obtaining such approval remains uncertain.

We are subject to the risk of increased income taxes if income tax rate incentives in Israel are altered or if there are other changes in tax laws or rulings.Historically, our operations have generated a significant amount of income in Israel where income tax rate incentives have been extended to encourage foreigninvestments. Our income taxes could increase if these income tax rate incentives are not renewed upon expiration or income tax rates applicable to us areincreased. Tax authorities could challenge the manner in which profits are allocated between our subsidiaries and us, and we may not prevail in any suchchallenge. If the profits recognized by our

25


Table of Contentssubsidiaries in jurisdictions where income taxes are lower became subject to income taxes in other jurisdictions, our worldwide effective income tax rate wouldincrease. In addition, to the extent we are unable to continue to reinvest a substantial portion of our profits in our Israeli operations, we may be subject toadditional income tax rate increases in the future.

Other factors that could increase our effective income tax rate include the effect of changing economic conditions, business opportunities, and changes inincome tax laws and rulings. Merger and acquisition activities, if any, could result in nondeductible expenses, which may increase our effective income tax rate.In addition, we are currently evaluating the migration of the economic ownership of technology acquired from Performant and Kintana to a foreign subsidiary.The migration may lead to an increase in our effective income tax rate. In the event we do not migrate the technology, our effective income tax rate may alsoincrease due to a greater portion of U.S. source income associated with the technology acquired from Performant and Kintana.

Acquisitions may be difficult to integrate, disrupt our business, dilute stockholder value, or divert the attention of our management and may result infinancial results that are different than expected. In the second quarter of 2006, we completed the acquisition of service desk and ITIL−based technology andresearch and development resources from Vertical Solutions, Inc. (VSI) and Tefensoft Inc., and in the first quarter of 2006, we acquired Systinet Corporation. In2005, we acquired a wireless testing business unit owned by Intuwave, and acquired BeatBox Technologies (BeatBox), formerly known as ClickCadence, LLC.BeatBox specialized in helping companies to optimize the efficiency and effectiveness of their online presence. In July 2004, August 2003, May 2003 and May2001, we acquired Appilog, Kintana, Performant and Freshwater, respectively, and frequently consider additional possible acquisitions. In the event of any futureacquisitions, we could:

• pay with cash, which would reduce our available cash;

• issue stock that would dilute the ownership of our then−existing stockholders;

• incur debt;

• assume liabilities;

• incur expenses for the impairment of the value of acquired assets; or

• incur amortization expense related to intangible assets.

If we fail to achieve the financial and strategic benefits of past and future acquisitions, our results of operations will be negatively affected.

Acquisitions involve numerous other risks, including:

• difficulties in integrating or coordinating the different research and development, sales programs, facilities, operations, technologies, or products;

• failure to achieve targeted synergies;

• unanticipated costs and liabilities;

• diversion of management’s attention from our core business;

• adverse effects on our existing business relationships with suppliers and customers or those of the acquired organization;

• difficulties in entering markets in which we have no or limited prior experience; and


• potential loss of key employees, particularly those of the acquired organizations.

In addition, for acquisitions completed to date, the development of acquired technologies remains a significant risk due to the remaining efforts to achievetechnical feasibility, changing customer markets, and uncertainty of new product standards. Efforts to develop these acquired technologies into commerciallyviable

26


Table of Contentsproducts consist of planning, designing, experimenting, and testing activities necessary to determine that the technologies can meet market expectations,including functionality and technical requirements. Failure to bring these products to market in a timely manner could result in a loss of market share or a lostopportunity to capitalize on emerging markets, and could have a material adverse effect on our business and results of operations.

As a result of such transactions, our financial results may differ from the investment community’s expectations. Further, if market conditions or otherfactors lead us to change our strategic direction, we may not realize the expected value from such transactions. If we do not realize the expected benefits orsynergies of such transactions, our consolidated financial position, results of operations, cash flows, and stock price could be negatively affected.

Investments may become impaired and require us to reduce earnings. At December 31, 2005, our equity investments in non−consolidated companiesconsisted of investments in privately−held companies of $4.1 million, a private equity fund of $8.4 million, and a warrant to purchase common stock of Motiveof less than $0.1 million. At December 31, 2005, our total capital contributions to the private equity fund were $10.9 million, and we have committed to makeadditional capital contributions of up to $4.1 million to the private equity fund at its request. We may be required to incur expense for the impairment of value ofour investments. In determining whether investments in non−consolidated companies are impaired, we consider the latest valuation of each of the companiesbased on recent sales of equity securities to unrelated third party investors and whether the companies have sufficient funds and financing to continue as a goingconcern for at least twelve months. We closely monitor the financial health of the private companies in which we hold minority equity investments. We maycontinue to make investments in other companies. We cannot make any assurances that our investments will be successful and we may lose all or part of thevalue of any investment we make. If we determine in accordance with our standard accounting policies that impairment has occurred, then additional losseswould be recorded, which would have a negative effect on our financial position, results of operations and liquidity.

The Motive warrant is recorded at its fair value on each reporting date using the Black−Scholes option−pricing model. Estimating the fair value of thewarrant requires management judgment and may have an impact on our financial position and results of operations. The Motive warrant is treated as a derivativeinstrument due to a net settlement provision and is recorded at its fair value in each reporting period. Since the Motive warrant is marked to market at eachreporting date, fluctuations in the fair value of the warrant will have an effect on our financial position and results of operations. The fair value of the warrant wasless than $0.1 million as of December 31, 2005.

If we fail to adequately protect our proprietary rights and intellectual property, we may lose a valuable asset, experience reduced revenue, and incurcostly litigation to protect our rights. Our success depends in large part on our proprietary technology. We rely on a combination of patents, copyrights,trademarks, service marks, trade secrets, and contractual restrictions (including confidentiality provisions and licensing arrangements) to establish and protect ourproprietary rights in our products and services. We will not be able to protect our intellectual property if we are unable to enforce our rights or if we do not detectunauthorized use of our intellectual property. Despite our precautions, it may be possible for unauthorized third parties to copy our products and services and useinformation that we regard as proprietary to create products and services that compete with ours. Some license provisions protecting against unauthorized use,copying, transfers, and disclosures of our licensed programs may be unenforceable under the laws of certain jurisdictions and foreign countries. Further, the lawsof some countries do not protect proprietary rights to the same extent as the laws of the U.S. To the extent we increase our international activities, our exposure tounauthorized copying and use of our products and proprietary information will increase. If we fail to successfully enforce our intellectual property rights, ourcompetitive position could suffer, which could harm our results of operations.

In many cases, we enter into confidentiality or license agreements with our employees and consultants and with the customers and corporations with whomwe have strategic relationships and business alliances. No

27


Table of Contentsassurance can be given that these agreements will be effective in controlling access to and distribution of our products and proprietary information. Further, theseagreements do not prevent our competitors from independently developing technologies that are substantially equivalent or superior to our products.

Litigation may be necessary in the future to enforce our intellectual property rights and to protect our trade secrets. Litigation, whether successful orunsuccessful, could result in substantial costs and diversions of our management resources, which could result in lower revenue, higher operating costs, andadversely affect our results of operations.

Third parties could assert that our products and services infringe their intellectual property rights, which could expose us to litigation that, with or withoutmerit, could be costly to defend. We may from time to time be subject to claims of infringement of other parties’ proprietary rights. We could incur substantialcosts in defending ourselves and our customers against these claims. Parties making these claims may be able to obtain injunctive or other equitable relief thatcould effectively block our ability to sell our products in the U.S. and abroad and could result in an award of substantial damages against us. In the event of aclaim of infringement, we may be required to obtain licenses from third parties, develop alternative technology, or alter our products or processes or ceaseactivities that infringe the intellectual property rights of third parties. If we are required to obtain licenses, we cannot be sure that we will be able to do so at acommercially reasonable cost, or at all. Defense of any lawsuit or failure to obtain required licenses could delay shipment of our products and increase our costs.In addition, any such lawsuit could result in our incurring significant costs or the diversion of the attention of our management.

If we fail to obtain or maintain early access to third−party software, our future product development may suffer. Software developers have in the pastprovided us with early access to pre−generally available versions of their software in order to have input into the functionality and to ensure that we can adaptour software to exploit new functionality in these systems. Some companies, however, may adopt more restrictive policies in the future or impose unfavorableterms and conditions for such access. These restrictions may result in higher research and development costs for us in connection with the enhancement andmodification of our existing products and the development of new products or may prevent us from being able to develop products which will work with suchnew systems, which could harm our business.

Provisions in our charter documents and Delaware Law could delay or prevent an acquisition of our company, including an acquisition that would bebeneficial to our stockholders. Certain provisions of our Amended and Restated Certificate of Incorporation may have the effect of delaying or preventingchanges in our control or management, which could adversely affect the market price of our common stock. Our Board of Directors has the authority to issue upto 5,000,000 shares of preferred stock and to determine the price, rights, preferences, and privileges of those shares without any further vote or action by thestockholders. The rights of the holders of common stock will be subject to, and may be adversely affected by, the rights of the holders of any preferred stock thatmay be issued in the future. The issuance of preferred stock, while providing desirable flexibility in connection with possible acquisitions and other corporatepurposes, could have the effect of making it more difficult for a third party to acquire a majority of our outstanding voting stock. We have no present plans toissue shares of preferred stock. Our Agreement and Plan of Merger with HP prohibits us from issuing shares of preferred stock, so long as such agreement is ineffect.

In addition, we are subject to the provisions of Section 203 of the Delaware General Corporation Law, which will prohibit us from engaging in a businesscombination with an interested stockholder for a period of three years after the date that the person became an interested stockholder unless, subject to certainexceptions, the business combination or the transaction in which the person became an interested stockholder is approved in a prescribed manner. Section 203 ofthe Delaware General Corporation Law is not applicable to HP’s proposed acquisition of us.

Leverage and debt service obligations for $800.0 million in outstanding Notes may adversely affect our cash flow and financial position. On April 29,2003, we issued our 2003 Notes, with a principal amount of $500.0 million, in a private placement, and in July 2000, we completed the offering of the 2000Notes with a principal

28


Table of Contentsamount of $500.0 million. From December 2001 through December 2002, we repurchased $200.0 million face value of our 2000 Notes. We continue to carry asubstantial amount of outstanding indebtedness, primarily the remaining 2000 Notes and the 2003 Notes.

As a result of our failure to file our Form 10−Q for the period ended June 30, 2005, we violated provisions of the indentures related to our 2000 Notes andour 2003 Notes (together, the “Notes”) that require us to furnish such information promptly to the Notes trustee and received a notice of default on the Notes inAugust 2005. In October 2005, we solicited consents from the holders of the Notes. On October 26, 2005, we announced that holders of a majority of each seriesof the Notes had submitted consents which waived until March 31, 2006 any default or event of default under the indentures arising from our failure to timely filewith the SEC and provide to the trustee of the Notes, those reports required to be filed under the Securities Exchange Act of 1934 (Report Defaults). Inconsideration for the waiver, we (i) paid to the consenting holders of 2000 Notes a consent fee of $25.00 for each $1,000 principal amount of 2000 Notes,resulting in a $7.1 million payment that will be amortized to interest expense over the remaining term of the 2000 notes and (ii) entered into a supplement to theIndenture governing the 2003 Notes pursuant to which we will be required to repurchase the 2003 Notes, at the option of the holder, on November 30, 2006 at arepurchase price equal to 107.25% of the principal amount. If the put option is exercised by all holders, we will be required to pay the face value and anadditional $36.3 million to the 2003 Note holders on that date.

Because we failed to file our reports by March 31, 2006, as required by the waivers we obtained in October 2005, the trustee or the holders of 25% of eachseries of the Notes had the right as of April 1, 2006 to declare the principal and interest on the applicable series of Notes immediately due and payable. OnApril 21, 2006, we solicited additional consents from the holders of the Notes requesting a waiver until the stated maturity of the 2000 Notes and the 2003 Notes,as applicable, of any Report Defaults. On May 4, 2006, we announced that, as of May 3, 2006, holders of a majority of the outstanding aggregate principalamount of each series of the Notes had submitted consents and therefore the Report Defaults were waived for all holders. In consideration for the waiver, we(i) entered into a supplement to the Indenture governing the 2000 Notes requiring us to repurchase the 2000 Notes, at the option of the holder, on March 1, 2007at a repurchase price equal to 101.3% of the principal amount of the 2000 Notes, together with accrued and unpaid interest, if any, and providing that any 2000Notes redeemed pursuant to Article XI of the Indenture during the period from July 1, 2006 through March 5, 2007 shall be at a redemption price of 101.3% ofthe principal amount of the 2000 Notes, together with accrued and unpaid interest, if any, to the redemption date and (ii) entered into a supplement to theIndenture governing the 2003 Notes requiring us to repurchase the 2003 Notes, at the option of the holder, on October 31, 2006 (in addition to the existingoptional put date of November 30, 2006), at a repurchase price equal to 107.25% of the principal amount of the 2003 Notes. If the put options are exercised by allholders of both series of Notes, we will be required to pay the face value of the Notes and an additional $36.3 million to the holders of the 2003 Notes onOctober 31, 2006 or November 30, 2006 and $3.9 million to the holders of the 2000 Notes on March 1, 2007.

On October 2, 2006, we announced an offer to repurchase the 2003 Notes, pursuant to the contractual obligations described above, which we undertook inconnection with waivers obtained from holders of the 2003 Notes in May 2006. Each holder of 2003 Notes has the right to require us to purchase all or any partof such holder’s 2003 Notes at a price equal to $1,072.50 per $1,000 of principal amount. If all outstanding 2003 Notes are surrendered for purchase, theaggregate cash purchase price will be approximately $536.3 million. The repurchase offer will terminate on October 31, 2006.

There is a possibility that we may be unable to generate cash sufficient to pay the principal, interest and other amounts in respect of our indebtedness whendue. Our leverage could have significant negative consequences, including: increasing our vulnerability to general adverse economic and industry conditions;requiring the dedication of a substantial portion of our expected cash flow from operations to service our indebtedness, thereby reducing the amount of ourexpected cash flow available for other purposes, including capital expenditures and acquisitions; and limiting our flexibility in planning for, or reacting to,changes in our business and the industry in which we compete.

29


Table of ContentsThe price of our common stock may fluctuate significantly, which may result in losses for investors and possible lawsuits. The market price for our

common stock has been and may continue to be volatile. For example, during the 52−week period ended December 31, 2005, the closing sale prices of ourcommon stock as reported on The NASDAQ National Market ranged from a high of $48.94 to a low of $25.66. Our common stock has been trading on the PinkSheets since January 4, 2006. We expect our stock price to be subject to fluctuations as a result of a variety of factors, including factors beyond our control.These factors include:

• any announcements that our proposed merger with HP may not take place, or may be delayed;

• actual or anticipated variations in our quarterly results of operations and/or quarterly guidance;

• announcements of technological innovations or new products or services by us or our competitors;

• announcements related to strategic relationships, acquisitions or investments by us or our competitors;

• announcements related to the results of the ongoing SEC investigation, Special Committee investigation, or class action or derivative lawsuits;

• the filing of our outstanding periodic reports with the SEC;

• the trading of our common stock on the Pink Sheets and our ability to relist our common stock on a national securities exchange;

• changes in financial estimates or other statements by securities analysts;

• changes in general economic conditions;

• consolidation in the software industry;

• terrorist attacks, and the effects of war;

• conditions or trends affecting the software industry and the Internet;

• changes in the rating of our notes or other securities; and

• changes in the economic performance and/or market valuations of other software and high−technology companies.

Because of this volatility, we may fail to meet the expectations of our stockholders or of securities analysts at some time in the future, and the tradingprices of our securities could decline as a result. In addition, the stock market has experienced significant price and volume fluctuations that have particularlyaffected the trading prices of equity securities of many high−technology companies. These fluctuations have often been unrelated or disproportionate to theoperating performance of these companies. Any negative change in the public’s perception of software or internet software companies could depress our stockprice regardless of our results of operations. Because the 2000 Notes and 2003 Notes are convertible into shares of our common stock, volatility or depressedprices for our common stock could have a similar effect on the trading price of these Notes. Holders who receive common stock upon conversion also will besubject to the risk of volatility and depressed prices of our common stock.

Risk Associated with our Industry and Market Conditions


Our future success may be impaired and our results of operations could suffer if we cannot respond to rapid market and technological changes byintroducing new products and services and continually improving the performance, features, and reliability of our existing products and services and respondingto competitive offerings. The market for our software products and services is characterized by:

• rapidly changing technology;

• consolidation of the software industry;

• frequent introduction of new products and services and enhancements to existing products and services by our competitors;

30


Table of Contents

• increasing complexity and interdependence of our applications;

• changes in industry standards and practices;

• ability to attract and retain key personnel; and

• changes in customer requirements and demands.

To maintain our competitive position, we must continue to enhance our existing products, including our software products and services for our applicationmanagement and application delivery, and IT governance solutions. We must also continue to develop new products and services, functionality, and technologythat address the increasingly sophisticated and varied needs of our customers and prospective customers. The development of new products and services, andenhancement of existing products and services, entail significant technical and business risks and require substantial lead−time and significant investments inproduct development. In addition, many of the markets in which we operate are seasonal. If we fail to anticipate new technology developments, customerrequirements or industry standards, or if we are unable to develop new products and services that adequately address these new developments, requirements, andstandards in a timely manner, our products and services may become obsolete, our ability to compete may be impaired, our revenue could decline, and our resultsof operations could suffer.

Our financial results may be positively or negatively affected by foreign currency fluctuations. A substantial portion of our research and developmentactivities are performed in Israel. In addition, our foreign operations are generally transacted through our international sales subsidiaries and offices in theAmericas; Europe, the Middle East, and Africa (EMEA); Asia Pacific (APAC); and Japan. Sales and related expenses for our subsidiaries and offices outside theUnited States are typically denominated in currencies other than the U.S. dollar. Because our financial results are reported in U.S. dollars, our results ofoperations may be positively or adversely affected by fluctuations in the rates of exchange between the U.S. dollar and other currencies, including:

• a decrease in the value of currencies in certain countries of the Americas, EMEA, APAC, or Japan relative to the U.S. dollar, which would decreaseour sales and marketing costs in these countries and would decrease research and development costs in Israel;

• a decrease in the value of currencies in certain countries of the Americas, EMEA, APAC, or Japan relative to the U.S. dollar, which would decreaseour reported U.S. dollar revenue and deferred revenue, as we generate sales in these local currencies and report the related revenue and deferredrevenue in U.S. dollars;

• an increase in the value of currencies in certain countries of the Americas, EMEA, APAC, or Japan relative to the U.S. dollar, which would increaseour sales and marketing costs in these countries and would increase research and development costs in Israel; and

• an increase in the value of currencies in certain countries of the Americas, EMEA, APAC, or Japan relative to the U.S. dollar, which would increaseour reported U.S. dollar revenue, as we generate revenue and deferred revenue in these local currencies and report the related revenue in U.S. dollars.

Recent changes in accounting principles, including the expensing of stock options granted to our employees, could have a significant effect on ourreported financial results. The U.S. generally accepted accounting principles are subject to interpretation by the Financial Accounting Standards Board (FASB),the American Institute of Certified Public Accountants (AICPA), the Public Company Accounting Oversight Board (PCAOB), the SEC, and various bodiesformed to promulgate and interpret appropriate accounting principles. A change in these principles or interpretations could have a significant effect on ourreported financial results.

We currently record any compensation expense associated with stock option grants to employees using the intrinsic value method in accordance withAccounting Principles Board Opinion No. 25. On December 15, 2004, the FASB issued Statement of Financial Accounting Standards (SFAS) 123(R),Share−Based Payment, which will require us to measure compensation expense for employee stock options using the fair value method

31


Table of Contentsbeginning the first quarter of fiscal year 2006. SFAS No. 123(R) applies to all outstanding stock options that are not vested at the effective date and grants of newstock options made subsequent to the effective date. Due to the resources required to complete our restatement and become current with our SEC filings, we havenot yet implemented SFAS No. 123R and are unable to estimate the effect this adoption will have on our results of operations. However, we expect the adoptionof SFAS No. 123R to have a significant effect on our results of operations. In addition, our implementation of SFAS No. 123(R) may cause a delay of the filingof our quarterly report on Form 10−Q for the first quarter of 2006.

We expect to face increasing competition in the future, which could cause reduced sales levels and result in price reductions, reduced gross margins, orloss of market share. The market for our business technology optimization products and services is extremely competitive, dynamic, and subject to frequenttechnological change. There are few substantial barriers to entry in our market. The Internet has further reduced these barriers to entry, allowing other companiesto compete with us in our markets. As a result of the increased competition, our success will depend, in large part, on our ability to identify and respond to theneeds of current and potential customers, and to new technological and market opportunities, before our competitors identify and respond to these needs andopportunities. We may fail to respond quickly enough to these needs and opportunities.

In the market for application delivery solutions, our principal competitors include Compuware, Empirix, IBM Software Group, Parasoft, Worksoft, andSegue Software. In the new and rapidly changing market for application management solutions, our principal competitors include BMC Software, ComputerAssociates (including its Wily Technology division), Compuware, HP OpenView (a division of Hewlett−Packard), Keynote Systems, Segue Software and Tivoli(a division of IBM). In the market for IT governance solutions, our principal competitors include enterprise application vendors such as Compuware (with itsacquisition of Changepoint), Lawson, Oracle, and SAP AG, as well as point tool vendors such as Computer Associates (with its acquisition of Niku) andPrimavera.

We believe the principal competitive factors affecting our market are:

• price and cost effectiveness;

• product functionality;

• product performance, including scalability and reliability;

• quality of support and service;

• company reputation;

• depth and breadth of BTO offerings;

• research and development leadership;

• financial stability; and

• global capabilities.

Although we believe that our products and services currently compete favorably with respect to these factors, the markets for application management,application delivery, and IT governance are rapidly evolving. We may not be able to maintain our competitive position, which could lead to a decrease in ourrevenues and adversely affect our results of operations. The software industry is increasingly experiencing consolidation and this could increase the resourcesavailable to our competitors and the scope of their product offerings. For example, our former IT governance competitor, PeopleSoft, was acquired by Oracle,which has substantially greater financial and other resources than we have. Our competitors and potential competitors may develop more advanced technology,undertake more extensive marketing campaigns, adopt more aggressive pricing policies, or make more attractive offers to distribution partners and to employees.We anticipate the market for our software and services to become increasingly more competitive over time.

32


Table of ContentsEconomic, political, and market conditions may adversely affect demand for our products and services. Our customers’ decisions to purchase our products

and services are discretionary and subject to their internal budgets and purchasing processes. We believe that although the economy and business conditionsappear to be improving, customers may continue to reassess their immediate technology needs, lengthen their purchasing decision−making processes, requiremore senior level internal approvals of purchases, and defer purchasing decisions, and accordingly, could reduce demand in the future for our products andservices. In addition, the war on terrorism and the potential for other hostilities in various parts of the world have caused political uncertainties and volatility inthe financial markets. Under these circumstances, there is a risk that our existing and potential customers may decrease spending for our products and services. Ifdemand for our products and services is reduced, our revenue growth rates and results of operations will be adversely affected.

Item 1B. Unresolved Staff Comments

None.

Item 2. Properties

In the second quarter of 2004, we moved into four buildings in Mountain View, California that we leased in October 2003. The four leased buildings, witha total square footage of approximately 253,000, became our new headquarters. Prior to the move, we were headquartered in Sunnyvale, California in fourbuildings that we owned with a total square footage of approximately 156,000. In January 2004, we sold two of the three vacant buildings in Sunnyvale,California with a total square footage of approximately 50,000. On January 7, 2005, we sold one of the two buildings in Sunnyvale, California that becamevacant since April 2004 with a total square footage of approximately 55,000. As of December 31, 2005, we owned one building with a total square footage ofapproximately 50,500. In addition, we lease office buildings in other locations within the Americas. As of December 31, 2005, we leased approximately 654,000square feet of office buildings in other locations within the Americas.

Our primary research and development activities are conducted by our subsidiary in Israel in two buildings that we own with a total square footage of285,000. We also lease two other buildings, one of which is used for research and development activities and the other of which is used for manufacturingactivities. In February 2004, we purchased approximately 30,000 square feet of land near our existing offices in Israel to accommodate future expansion inresearch and development activities. During 2005, we have begun construction of a new building on this site. We expect the construction to be completed inDecember 2007.

As of December 31, 2005, we had a total of 71 sales and support offices throughout the world, of which 38 were in the Americas, 22 were in EMEA, 9were in APAC, and 2 were in Japan.

As of December 31, 2005, we leased office buildings in EMEA, APAC, and Japan with a total square footage of approximately 188,000, 53,000, and10,000, respectively.

We believe that our existing facilities are adequate for our current needs.

Item 3. Legal Proceedings

Regulatory Inquiries. We announced on October 4, 2005 that the informal inquiry initiated by the SEC in November 2004 had been converted to a formalinvestigation. We continue to fully cooperate with the SEC, and have provided the staff with extensive documentation relating to the Special Committee’s andour findings discussed above. On September 28, 2006, we announced that we had proposed a settlement to the staff of the SEC, which the staff has agreed torecommend to the SEC, to conclude for us the matters arising from the formal SEC investigation. We have proposed to pay a $35.0 million civil penalty and toconsent to the entry of a final judgment by a federal court permanently enjoining the Company from violations of the antifraud and other

33


Table of Contentsprovisions of the federal securities laws. The proposed settlement is contingent on the review and approval of final documentation by us and the staff of the SEC,and is subject to final approval by the SEC. We have expensed the amount as “Costs of restatement and related legal activities” in our consolidated statement ofoperations against “accrued and other liabilities” in our consolidated balance sheets for the year ended December 31, 2005. As provided in the Merger Agreementwith us, Hewlett−Packard has consented to the settlement offer and will also be required to approve the final settlement documentation. We continue to cooperatewith the SEC and other government agencies regarding this matter. There can be no assurance that our efforts to resolve the SEC’s investigation with respect tothe Company will be successful, or that the amount reserved will be sufficient, and we cannot predict the timing or the final terms of any settlement.

On June 23, 2006, the SEC Staff, as part of the “Wells” process by which the SEC Staff affords individuals and companies the opportunity to present theirviews regarding potential action by the SEC, advised counsel for directors Igal Kohavi, Yair Shamir and Giora Yaron that the SEC Staff is consideringrecommending that the Commission file a civil enforcement proceeding against each of these directors under applicable provisions of the federal securities laws.If charges are brought, the SEC may seek a permanent injunction against further violations of the securities laws, an order permanently barring these directorsfrom serving as officers or directors of any SEC registered company (including Mercury Interactive), and civil monetary penalties. The charges underconsideration would allege that each of these directors knew or should have known about the manipulation of grant dates and that each knew, or was reckless innot knowing, the impact that option backdating would have on our financial results. The directors have filed a Wells submission arguing that they did not violatethe federal securities laws, that they did not participate in or know of option backdating, and that the charges under consideration are legally and factually withoutbasis. Former officers are likely to receive or have received similar Wells notices. As described above, the formal SEC investigation of the Company iscontinuing. In light of the Wells notice, the aforementioned directors have offered to withdraw from their respective positions on the applicable committees of theCompany’s Board of Directors, and the Board has accepted that offer.

We have been responding to inquiries and providing information and documents relating to stock option matters to the Internal Revenue Service and theUnited States Department of Justice. We have provided information relating to findings with tax implications to the Internal Revenue Service, and are presentlydiscussing possible settlement terms. We are also cooperating fully with the Department of Justice and intend to continue to do so.

There is no assurance that other regulatory inquiries will not be commenced by other U.S. federal, state or foreign regulatory agencies.

Class Action Lawsuits. Beginning on or about August 19, 2005, several securities class action complaints were filed against us and certain of our currentand former officers and directors, on behalf of purchasers of our stock from October 2003 to November 2005. These class action lawsuits are consolidated in theU.S. District Court for the Northern District of California as In re Mercury Interactive Corporation Securities Litigation, Case No. C05−3395. The originalactions were Archdiocese of Milwaukee Supporting Fund, Inc. v. Mercury Interactive, et al (Case No. C05−3395), Johnson v. Mercury Interactive, et al. (CaseNo. 05−3864), Munao v. Mercury Interactive, et al. (Case No. C05−4031), and Public Employees’ Retirement System of Mississippi v. Mercury Interactive, etal. (Case No. 05−5157). On May 5, 2006, the Court appointed the Mercury Pension Fund Group, represented by Labaton Sucharow & Rudoff LLP and GlancyBinkow & Goldberg LLP, as lead plaintiff and counsel. The Lead Plaintiffs filed a Consolidated Complaint on September 8, 2006. The Consolidated Complaintalleges, among other things, violations of Section 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b−5 promulgated thereunder, based onallegations that we and the individual defendants and our auditors made false or misleading public statements regarding our business and operations during theputative class period of October 17, 2000 to November 1, 2005, and seeks unspecified monetary damages and other relief against the defendants. At this time, wehave not recorded any liabilities as we are unable to estimate the potential liabilities.

34


Table of ContentsDerivative Lawsuits. Beginning on or about October 14, 2005, several derivative actions were also filed against certain current and former directors and

officers. These derivative lawsuits were filed in: (1) the U.S. District Court for the Northern District of California, as In re Mercury Interactive CorporationDerivative Litigation, Lead Case No. 05−3395, which consolidates Korhely v. Boston, et al. (Case No. 05−4642), Gupta v. Boston, et al. (Case No. 05−4685),Casey v. Landan, et al. (Case No. 05−4690), Selig v. Landan, et al. (Case No. 05−4703) and City of New Orleans Employees’ Retirement System v. Landan, etal. (Case No. 05−4704); (2) California Superior Court, Santa Clara County, as In re Mercury Interactive Corporation Shareholder Derivative Litigation, LeadCase No. 1−05−CV−050710, which consolidates Conrardy v. Landan, et al. (Case No. 1−05−CV−050710), and Morillo v. Landan, et al. (CaseNo. 1−05−CV−051923); and (3) the Delaware Court of Chancery, as Schwartz v. Landan, et al. (Case No. Civ A 1755−N), and Cropper v. Landan, et al. (CaseNo. Civ A. 1938−N). The complaints allege that certain of our current and former directors and officers breached their fiduciary duties to us by engaging inalleged wrongful conduct complained of in the securities class action litigation described above. The Company is named solely as a nominal defendant againstwhom the plaintiffs seek no recovery.

In February 2006, our Board of Directors appointed a Special Litigation Committee consisting of two independent Board members authorized to conductan independent review and investigation of issues relating to these derivative matters, take any action, including the filing and prosecution of litigation on ourbehalf, that the Special Litigation Committee deems in our interests, and recommend to our Board any other appropriate action that we should take with respectto the derivative matters.

On June 7, 2006, we announced that the Special Litigation Committee issued a report which made the following determinations: (i) the claims againstAmnon Landan should be pursued by the Company using counsel retained by the Company; (ii) recommended that the Special Committee declare voidMr. Landan’s vested and unexercised options to the extent such options are found by the Special Committee to have been dated improperly; (iii) the derivativeclaims asserted against former Chief Operating Officer Ken Klein, former Chief Financial Officer Doug Smith and former General Counsel Susan Skaer shouldbe pursued by a shareholder plaintiff in the context of the derivative action in the Santa Clara County Superior Court, rather than in the Delaware Chancery Courtor the Northern District of California; (iv) the derivative claims against non−management directors Giora Yaron, Igal Kohavi and Yair Shamir should bedismissed because the Special Litigation Committee determined that the derivative claims against Dr. Yaron, Dr. Kohavi and Mr. Shamir will fail in the face ofthe provisions of the Company’s Certificate of Incorporation and the Delaware General Corporation Law which would permit damages claims against them onlyfor breach of their duty of loyalty or for actions taken in bad faith; (v) the derivative claims against current CEO and director Tony Zingale, outside directorsClyde Ostler and Brad Boston, and former principal accounting officer Bryan LeBlanc should be dismissed because none of these individuals was affiliated withus at the time of the principal events at issue; and (vi) the derivative claims against our independent registered public accounting firm, PricewaterhouseCoopersLLP, should be stayed at least six additional months. Also on June 7, 2006, we announced that the Special Committee determined to follow the Special LitigationCommittee’s recommendation and declared void and cancelled an aggregate of 2,625,416 vested and unexercised options granted to Mr. Landan between 1997and 2002.

On June 8, 2006, we filed a motion in the Santa Clara County Superior Court seeking to implement the conclusions reached by the Special LitigationCommittee. On July 12, the Court dismissed defendants Anthony Zingale, Brad Boston, Clyde Ostler and Bryan LeBlanc with prejudice, dismissed defendantsIgal Kohavi, Yair Shamir and Giora Yaron without prejudice, stayed all claims against Defendant Amnon Landan allowing the Company to pursue those claimsand stayed all claims against Defendant PricewaterhouseCoopers LLP for six months to allow the Special Litigation Committee to conclude its investigation ofthose claims. On September 22, 2006, the plaintiffs filed a consolidated complaint against former officers Sharlene Abrams, Kenneth Klein, Susan Skaer andDouglas Smith. On October 3, 2006, the Special Litigation Committee determined that, at that time, it would not be in the best interests of the Company to seekdismissal of the claims against Ms. Abrams.

35


Table of ContentsPursuant to stipulations of the parties, which were approved by the United States District Court for the Northern District of California and the Delaware

Chancery Court, the derivative action pending in the Northern District of California is stayed pending resolution of the California state court derivative litigation,and the derivative actions filed in the Chancery Court are stayed until the consummation of the merger with Hewlett−Packard or the termination of the mergeragreement. We are unable to predict the outcome of these matters at this time.

Section 16(b) Litigation: On May 5, 2006, a shareholder derivative lawsuit was filed against certain current and former officers and directors in the U.S.District Court for the Northern District of California, Klein v. Landan, et al., No. 06−2971 (JF). This action alleges that defendants violated Section 16(b) (theshort−swing profits provision) of the Securities Exchange Act of 1934. The Company is named solely as a nominal defendant against whom the plaintiffs seek norecovery. The plaintiffs have stipulated to file an Amended Complaint by October 6, 2006. We are unable to predict the outcome of this matter at this time.

On June 9, 2006, our Board received a shareholder letter demanding we bring suit for alleged Section 16(b) violations against a different group of currentand former officers that was set forth in the May 5, 2006 shareholder derivative lawsuit. After analysis of the allegations in this letter, it was determined thatthere is no basis to the allegations of section 16(b) violations, and a response setting forth this determination was sent to the stockholder and his counsel. Thestockholder may now decide to initiate an action on our behalf. We are unable to predict whether the stockholder will initiate such an action.

Item 4. Submission of Matters to a Vote of Security Holders

No matters were submitted during the fourth quarter of 2005 to a vote of the holders of our common stock through the solicitation of proxies or otherwise.

36


Table of Contents PART II

Item 5. Market for the Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities

(a) Market for Common Stock

At the time of filing of this Annual Report on Form 10−K, our common stock is traded over the counter on the Pink Sheets under the trading symbol“MERQ”. During the periods indicated below (the two−year period beginning January 1, 2004 and ending December 31, 2005), our common stock was tradedpublicly on The NASDAQ National Market under the trading symbols “MERQ” (from January 1, 2004 through August 14, 2005) and “MERQE” (fromAugust 15, 2005 through December 31, 2005). The following table presents, for the periods indicated, the high and low intra−day sale price per share of ourcommon stock as reported on The NASDAQ National Market.

High Low

Year Ended December 31, 2004:First Quarter $ 54.25 $ 41.21Second Quarter $ 50.94 $ 42.53Third Quarter $ 50.08 $ 31.05Fourth Quarter $ 47.44 $ 35.55

Year Ended December 31, 2005:First Quarter $ 49.58 $ 37.57Second Quarter $ 47.62 $ 38.21Third Quarter $ 40.54 $ 35.57Fourth Quarter $ 39.30 $ 22.62

Holders of Record

According to the records of our transfer agent, we had 240 stockholders of record as of September 19, 2006. Stockholders whose shares are held of recordby banks, brokers or other nominees are not included in this number; however, each of the banks, brokers or nominees is included as one holder of record.

Dividends

We have never declared or paid any cash dividends on our common stock. We currently intend to retain earnings for use in our business and do notanticipate paying any cash dividends in the foreseeable future.

(b) None.

(c) None.

37


Table of Contents

Item 6. Selected Consolidated Financial Data

The following selected financial data has been derived from our consolidated financial statements and should be read in conjunction with the consolidatedfinancial statements and notes thereto and with “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and other financialdata included elsewhere in this report. Our historical results of operations are not necessarily indicative of results to be expected for any future period.

Year Ended December 31,2005 2004 2003 2002 2001

(in thousands, except per share amounts)Consolidated Statements of Operations Data:Revenues $ 843,147 $ 686,071 $ 506,205 $ 399,953 $ 360,931Income (loss) from operations $ 70,817 $ 52,352 $ (58,853) $ 32,024 $ 206,491Net Income (loss) $ (99,929) $ 53,776 $ (62,586) $ 37,060 $ 225,389Net income (loss) per share—basic $ (1.15) $ 0.61 $ (0.72) $ 0.45 $ 2.77Net income (loss) per share—diluted

(1)

$ (1.15) $ 0.53 $ (0.72) $ 0.42 $ 2.57Weighted average common shares—basic 86,984 87,668 86,609 82,712 81,400Weighted average common shares and equivalents—diluted 86,984 103,237 86,609 87,214 87,655

(1) Diluted net income per share and weighted average diluted common shares and equivalents for 2004 include the effect of common stock issuable upon the conversion of the Zero CouponSenior Convertible Notes due 2008 issued in 2003. For the years ended December 31, 2005 and 2003, stock options outstanding were considered anti−dilutive due to our net loss andtherefore were not included in our diluted earnings per share computation. See Note 1 to the Consolidated Financial Statements for the basic and diluted net income per share computationfor these periods.

Year Ended December 31,2005 2004 2003 2002 2001

(in thousands)Consolidated Balance Sheet Data:Cash, cash equivalents, and short−term investments $ 1,113,540 $ 630,321 $ 717,360 $ 527,246 $ 427,781Working capital $ 116,753 $ 389,660 $ 515,739 $ 370,113 $ 338,634Total assets $ 2,295,432 $ 2,013,481 $ 1,983,720 $ 1,081,457 $ 925,914Convertible notes (current and non−current) $ 797,289 $ 804,483 $ 811,159 $ 316,972 $ 377,480Stockholders’ equity $ 564,636 $ 563,892 $ 697,715 $ 453,637 $ 353,264

Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations

The following discussion contains forward−looking statements within the meaning of Section 21E of the Securities Exchange Act of 1934 andSection 27A of the Securities Act of 1933. In some cases, forward−looking statements are identified by words such as “believes,” “anticipates,” “expects,”“intends,” “plans,” “will,” “may,” and similar expressions. In addition, any statements that refer to our plans, expectations, strategies or other characterizations offuture events or circumstances are forward−looking statements. Our actual results could differ materially from those discussed in, or implied by, theseforward−looking statements. Factors that could cause actual results or conditions to differ from those anticipated by these and other forward−looking statementsinclude those more fully described in “Risk Factors”. Our business may have changed since the date hereof, and we undertake no obligation to update theseforward−looking statements.

Restatement of Consolidated Financial Statements

In our Form 10−K/A (filed on July 3, 2006), we restated our consolidated financial statements for the years ended December 31, 2004, 2003 and 2002, andthe selected consolidated financial data as of and for the years

38


Table of Contentsended December 31, 2004, 2003, 2002, 2001 and 2000. In addition, we restated our condensed consolidated financial statements for the quarters ended March 31,2005 and 2004 in our Form 10−Q/A filed on August 1, 2006. All financial information included in this Annual Report on Form 10−K reflects our restatement.

Overview

We are the leading provider of software and services for the Business Technology Optimization (BTO) marketplace. BTO is a business strategy foraligning information technology (IT) and business goals while optimizing the quality, performance, and business availability of strategic software applicationsand systems. Our BTO offerings for application delivery, application management, and IT governance products and services, and the Mercury OptimizationCenters, are designed to help our customers maximize the business value of IT by optimizing application quality and performance as well as managing IT costs,risks, and compliance.

We have aligned our enterprise software business model with the way we believe customers want to license and deploy enterprise software today. Webelieve our customers value a choice between perpetual software licenses and flexible term or subscription based contracts. Customers have the choice betweenrunning our software in−house or having software delivered as a hosted or managed service. Our enterprise software business model enables our customers tolicense the right software, for the right period of time, and have it deployed the right way—while giving us the right financial incentives to expand and/or renewour relationships with customers must be considered.

To understand our financial results, it is important to understand our business model and its effect on the consolidated statements of operations andconsolidated balance sheets. We continue to offer many of our products, including the majority of our IT governance and application delivery products, on aperpetual license basis. We have in the past expanded the number of offerings structured as subscription based contracts. The majority of these subscriptioncontracts are required to be recorded initially as deferred revenue in the consolidated balance sheets and then recognized in subsequent periods over the term ofthe contract as subscription revenue in our consolidated statements of operations (see below under Business Model). Therefore, to understand the full growth ofour business, one must consider both revenue and the change in deferred revenue.

Business Model

Revenue consists of fees for the license and subscription of our software products, maintenance fees, and professional service fees. License revenueconsists of license fees charged for the use of our products under perpetual or multiple−year arrangements in which the license fee is separately determinablefrom undelivered items such as maintenance and/or professional services. Subscription revenue, including managed service revenue, consists of license fees touse one or more software products, and to receive maintenance support (such as customer support and product updates) for a limited period of time. Sincesubscription licenses include bundled products and services, which are sold as a combined offering and for which the value of the license fee is not separatelydeterminable from maintenance, both product and service revenue is generally recognized ratably over the term of the subscription. Maintenance revenueconsists of fees charged for post−contract customer support, which are determinable based upon substantive renewal rates quoted in the contracts and, in theabsence of stated renewal rates, upon the fair market value established by separate sales of renewals to other customers. Professional service revenue consists offees charged for product training and consulting services, the fair value of which is determinable based upon separate sales of these services to other customerswithout the bundling of other elements.

Due to the different treatment of subscription and perpetual licenses under applicable accounting rules, each type of license has a different effect on ourconsolidated financial statements. When a customer purchases a subscription license, the majority of the license fee revenue will be recorded as deferred revenuein our consolidated balance sheets. The amount recorded as deferred revenue is equal to the portion of the license fee

39


Table of Contentsthat has been invoiced or paid but not recognized as revenue. Deferred revenue is reduced as revenue is recognized. Under perpetual licenses (and somemultiple−year arrangements for which separate vendor specific objective evidence of fair value exists for undelivered elements), the license fee is recognized asrevenue in the quarter the product is delivered, with only the remaining term of maintenance revenue recorded as deferred revenue. Therefore, an order for asubscription license, or a perpetual license bundled with a subscription license, will result in significantly lower current−period revenue than an equal−sizedorder under a perpetual license. Conversely, an order for a subscription license will result in higher revenues recognized in future periods than an equal−sizedorder for a perpetual license. Furthermore, if a perpetual license is sold at the same time as a subscription−based license to the same customer, then generally thetwo are bundled together and the related revenue is recognized ratably over the term of the contract.

Our product revenues in any given quarter are dependent upon the volume of perpetual license orders delivered during the current quarter, and the amountof subscription revenue amortized from deferred revenue from prior quarters and, to a small degree, revenue recognized on subscription orders received duringthe current quarter. We set our revenue targets for any given period based, in part, upon an assumption that we will achieve a certain level of orders and a certainmix of perpetual licenses and subscription licenses. The mix of orders is subject to substantial fluctuation in any given quarter or multiple quarter periods and theactual mix of licenses sold affects the revenue we recognize in the period. If we achieve the target level of total orders but are unable to achieve our target licensemix, we may not meet our revenue targets (if we deliver more−than−expected subscription licenses) or may exceed them (if we deliver more−than−expectedperpetual licenses). If we achieve the target license mix but the overall level of orders is below the target level, then we may not meet our revenue targets whichmay adversely affect our results of operations. Conversely, if our overall level of orders is below the target level but our license mix is above our targets (if wedeliver more−than−expected perpetual licenses), our revenues may still meet or even exceed our revenue targets. Our ability to achieve our revenue targets isalso affected by the mix of domestic and international sales, together with fluctuations in foreign exchange rates. If there is an increase in value of othercurrencies relative to the U.S. dollar, our revenues from international sales may be positively affected. On the other hand, if there is a decrease in value of othercurrencies relative to the U.S. dollar, our revenues from international sales may be negatively affected.

Cost of license and subscription includes direct costs to produce and distribute our products, such as costs of materials, product packaging and shipping,equipment depreciation, production personnel, and outsourcing services. It also includes costs associated with our managed services business, includingpersonnel−related costs, fees to providers of internet bandwidth and the related infrastructure, and depreciation expense of managed services equipment. We havenot separately presented the costs associated with license and subscription because these costs cannot be reasonably allocated between license and subscriptioncost of revenue. Cost of maintenance includes direct costs of providing product customer support, largely consisting of personnel−related costs, and the cost ofproviding upgrades to our customers. Cost of professional services includes direct costs of providing product training and consulting, largely consisting ofpersonnel−related costs and costs of outsourcing service. License and subscription, maintenance, and professional services costs also include allocated facilityexpenses and allocated IT infrastructure expenses. Cost of revenue also includes a portion of amortization expenses for intangible assets that are associated withour current products. These amortization expenses have been recorded as “Cost of revenue—amortization of intangible assets” in our consolidated statements ofoperations.

Costs associated with subscription licenses, which include the cost of products and services, are expensed as incurred over the subscription term. Inaddition, we defer a portion of our commission expense related to subscription licenses and maintenance contracts and amortize the expense over the term of thesubscription or maintenance contract. See “Critical Accounting Policies and Estimates” for a full description of our estimation process for valuation allowances,accrued and other liabilities and deferred commissions.

40


Table of ContentsResults of Operations

The following table presents, as a percentage of total revenues, certain consolidated statements of operations data for the periods indicated. These results ofoperations are not necessarily indicative of the results of operations that will be achieved in any future period.

Year Ended December 31,2005 2004 2003

Revenues:License fees 36% 38% 40%Subscription fees 22 22 20

Total product revenues 58 60 60Maintenance fees 30 29 31Professional service fees 12 11 9

Total revenues 100 100 100Costs and expenses:

Cost of license and subscription 6 6 7Cost of maintenance 2 3 4Cost of professional services 11 9 8Cost of revenue—amortization of intangible assets 1 2 1Marketing and selling 41 49 60Research and development 10 12 14General and administrative 8 9 11Acquisition−related charges — — 2Costs of restatement and related legal activities 10 — — Restructuring, integration and other related expenses — — 1Amortization of intangible assets 1 1 1Loss on intangible and other assets 2 — — Excess facilities expense — 1 3

Total costs and expenses 92 92 112Income (loss) from operations 8 8 (12)Interest income 6 6 7Interest expense (4) (4) (4)Other income (expense), net (4) — (1)Income (loss) before provision for income taxes 6 10 (10)Provision for income taxes 18 2 2Net income (loss) (12)% 8% (12)%

Revenues

The following table presents license fees, subscription fees, maintenance fees, and professional service fees for the periods indicated (in thousands, exceptpercentages):

Year Ended December 31, Increase Year Ended December 31, Increase 2005 2004 $ % 2004 2003 $ %

License fees $ 304,470 $ 261,382 $ 43,088 16% $ 261,382 $ 200,839 $ 60,543 30%Subscription fees 187,607 152,199 35,408 23% 152,199 98,824 53,375 54%Maintenance fees 248,391 196,215 52,176 27% 196,215 159,023 37,192 23%Professional service fees 102,679 76,275 26,404 35% 76,275 47,519 28,756 61%

Total revenues $ 843,147 $ 686,071 $ 157,076 23% $ 686,071 $ 506,205 $179,866 36%

41


Table of ContentsLicense fees

The increase in license fees for the year ended December 31, 2005 was primarily due to an increase in license sales of application delivery products of$27.0 million, as well as an increase in application management license sales of $16.5 million, partially offset by a decrease in IT governance license sales of$0.5 million. We expect our license fees to increase in absolute dollars for fiscal year 2006.

The increase in license fees for the year ended December 31, 2004 was primarily due to an increase in license sales of application delivery products of$29.0 million, as well as an increase in IT governance license sales of $19.4 million and an increase in application management license sales of $12.1 million.

Subscription fees

The increase in subscription fees for the year ended December 31, 2005 was primarily due to an increase over the past two years in the license sales of ourapplication management products, which are primarily offered on a subscription basis, and continuous growth in subscription license sales of application deliveryproducts. The increase in subscription fees from application management products was $27.5 million, the increase in application delivery products was $6.0million, and the increase in IT governance was $1.9 million. We expect revenue from our subscription licenses to decrease in absolute dollars for fiscal year2006.

The increase in subscription fees for the year ended December 31, 2004 was primarily due to an increase in subscription license sales of applicationdelivery products of $30.7 million and an increase in the license sales of our application management products of $20.9 million. The increase was alsoattributable to an increase in IT governance license sales of $1.8 million.

Maintenance fees

The increase in maintenance fees for the year ended December 31, 2005 was primarily attributable to renewals of existing maintenance contracts and salesof first year maintenance contracts for application delivery, IT governance, and application management products. The increase in maintenance fees related toapplication delivery, IT governance, and application management products was $38.3 million, $7.0 million, and $6.9 million, respectively. We expectmaintenance fees to increase in absolute dollars for fiscal year 2006.

The increase in maintenance fees for the year ended December 31, 2004 was due to an increase in application delivery maintenance fees of $24.7 million,IT governance maintenance fees of $10.1 million, and application management maintenance fees of $2.4 million, respectively.

Professional service fees

The increase in professional service fees for the year ended December 31, 2005 was primarily attributable to an increase of $13.8 million for serviceengagements related to IT governance products, an increase in professional service fees associated with application delivery of $10.1 million, and an increase inprofessional service fees associated with application management of $2.5 million. We expect our professional service fees to remain flat or increase slightly inabsolute dollars for fiscal year 2006.

The increase in professional service fees for the year ended December 31, 2004 was primarily attributable to an increase of $12.8 million for serviceengagements related to IT governance products and an increase in professional service fees of $9.7 million and $6.2 million associated with applicationmanagement products and application delivery products, respectively.

International revenues

International revenues include sales from Europe, the Middle East, and Africa (EMEA), Asia Pacific (APAC), and Japan. International revenues alsoinclude sales from Brazil, Canada and Mexico, which are

42


Table of Contentsincluded in the Americas geographic segment. (See Note 1 to the consolidated financial statements for the countries included in each geographic segment.)International revenues for the year ended December 31, 2005, compared to the year ended December 31, 2004, increased $63.0 million, or 23%, to $336.5million, from $273.5 million for the year ended December 31, 2004. EMEA sales increased $43.6 million and APAC and Japan sales increased $14.2 million.Currency fluctuations had an insignificant effect on international revenues during the year. International sales represented 40% of our total revenues for each ofthe years ended December 31, 2005 and 2004.

International revenues for the year ended December 31, 2004, compared to the year ended December 31, 2003, were affected favorably by a weakening ofthe U.S. dollar relative to other currencies, primarily the Euro and British Pound. Total revenues from international sales for the year ended December 31, 2004were $273.5 million, an increase of $78.2 million, or 40%, from $195.3 million for the year ended December 31, 2003. The increase was primarily attributable toincreased sales in EMEA of $40.0 million and APAC and Japan of $15.7 million, as well as fluctuations in foreign exchange rates of $23.0 million. Internationalrevenues represented 40% and 39% of our total revenues for the years ended December 31, 2004 and 2003, respectively.

Costs and expenses

Costs of revenues

The following table presents costs of revenues for the periods indicated (in thousands, except percentages):

Year Ended December 31, Increase/(Decrease) Year Ended December 31, Increase 2005 2004 $ % 2004 2003 $ %

Cost of license and subscription $ 46,863 $ 41,799 $ 5,064 12% $ 41,799 $ 34,432 $ 7,367 21%Cost of maintenance 16,727 17,898 (1,171) (7)% 17,898 17,731 167 1%Cost of professional services 91,614 63,737 27,877 44% 63,737 40,321 23,416 58%Cost of revenue—amortization of intangible assets 10,141 10,019 122 1% 10,019 5,189 4,830 93%

Total cost of revenues $ 165,345 $ 133,453 $ 31,892 24% $ 133,453 $ 97,673 $ 35,780 37%Percentage of total revenues 20% 20% 20% 20%

Year Ended December 31, 2005 Year Ended December 31, 2004 Year Ended December 31, 2003Stock−basedcompensation

All OtherCosts Total

Stock−basedcompensation




Cost of license and subscription $(1,114) $ 47,977 $ 46,863 $1,201 $ 40,598 $ 41,799 $ 5,073 $ 29,359 $ 34,432Cost of maintenance (1,013) 17,740 16,727 1,725 16,173 17,898 5,433 12,298 17,731Cost of professional services (519) 92,133 91,614 798 62,939 63,737 3,180 37,141 40,321Cost of revenue—amortization of intangible assets — 10,141 10,141 — 10,019 10,019 — 5,189 5,189

Total costs of revenues $(2,646) $ 167,991 $165,345 $3,724 $ 129,729 $ 133,453 $ 13,686 $ 83,987 $ 97,673

Cost of license and subscription

The increase in cost of license and subscription for the year ended December 31, 2005 was primarily attributable to higher personnel−related costs,increased royalty expenses and increased allocated IT infrastructure and facilities expenses, partially offset by a decrease in stock−based compensation expenseand lower professional services costs. Personnel−related costs increased $4.4 million as a result of an increase in headcount. Royalty expenses increased by $2.3million due to new license agreements signed during 2005. Allocated IT infrastructure expenses increased by $0.9 million and allocated facilities expensesincreased by $0.8 million due primarily to headcount growth. These increases were partially offset by a decrease in stock−based compensation expense of $2.3million resulting primarily from changes in the market value of our common stock and a decrease in the number of outstanding stock options subject to variableaccounting due to exercises, forfeitures or cancellations, a decrease in the number of outstanding fixed awards due to cancellations and certain awards becomingfully expensed in 2004. Professional service costs declined $1.9 million due to a reduced level of both

43


Table of Contentsconsulting and outsourcing services. Excluding stock−based compensation expense, portions of which will fluctuate based on the changes in the market price ofour common stock, we expect cost of license and subscription to increase in absolute dollars for fiscal year 2006.

The increase in cost of license and subscription for the year ended December 31, 2004 was primarily attributable to higher personnel−related costs of $6.9million as a result of growth in headcount. Outsourcing expense related to delivery of one of our application delivery offerings increased by $1.3 million androyalty expense primarily associated with license agreements signed in 2004 for current products increased by $1.2 million. Allocated IT infrastructure expensesincreased by $0.6 million primarily due to the lease of our new headquarters. These increases in costs were partially offset by a net decrease in stock−basedcompensation expense of $3.9 million, resulting from a decrease in the number of outstanding stock options subject to variable accounting due to exercises,forfeitures or cancellations, and changes in the market value of our common stock.

Cost of maintenance

The decrease in cost of maintenance for the year ended December 31, 2005 was primarily the result of decreases in stock−based compensation expenseand professional services expense, partially offset by increases in personnel−related costs and allocated IT infrastructure and facilities expenses. Stock−basedcompensation expense decreased $2.7 million primarily as a result of a decrease in the number of outstanding fixed awards due to cancellations and certainawards becoming fully expensed in 2004, a decrease in the number of outstanding stock options subject to variable accounting due to exercises, forfeitures orcancellations, and changes in the market value of our common stock. Stock−based compensation expense also decreased as a result of expense recognized in2004 associated with the issuance of compensatory shares under our 1998 Employee Stock Purchase Plan (ESPP) priced at a discount greater than 15% from theapplicable closing price of our common stock. Personnel−related costs increased $1.0 million as a result of headcount growth and allocated IT infrastructurecosts increased $0.5 million primarily due to the implementation of new operational and financial systems and processes. Excluding stock−based compensationexpense, portions of which will fluctuate based on the changes in the market price of our common stock, we expect cost of maintenance to increase in absolutedollars for fiscal year 2006, consistent with our expected revenue growth discussed in “Revenues”.

The increase in cost of maintenance for the year ended December 31, 2004 was due to higher personnel−related costs, allocated facility expenses, allocatedIT infrastructure expenses and consulting fees of $1.2 million, $0.9 million, $0.8 million and $0.5 million, respectively. Facility expenses and IT infrastructureexpenses increased primarily due to the lease of our new headquarters. These increases in costs were partially offset by a net reduction in stock−basedcompensation expense of $3.7 million, resulting from a decrease in the number of outstanding stock options subject to variable accounting due to exercises,forfeitures or cancellations, and changes in the market value of our common stock.

Cost of professional services

The increase in cost of professional services for the year ended December 31, 2005 was primarily due to an increase in outsourcing activities resultingfrom the overall growth of our consulting business and higher personnel−related costs associated with growth in headcount. Outsourcing expenses increased$13.2 million, personnel related costs increased $12.4 million, allocated facilities expense increased $1.8 million, and allocated IT infrastructure expensesincreased $1.2 million. These costs were partially offset by a net decrease in stock−based compensation expense of $1.3 million, primarily as a result of changesin the market value of our common stock and a decrease in the number of outstanding stock options subject to variable accounting due to exercises, forfeitures orcancellations. Excluding stock−based compensation expense, portions of which will fluctuate based on the changes in the market price of our common stock, weexpect cost of professional services to increase in absolute dollars for fiscal year 2006.

44


Table of ContentsThe increase in cost of professional services for the year ended December 31, 2004 was primarily attributable to higher personnel−related costs of $13.3

million, of which $7.7 million was related to Kintana employees who joined us as part of that acquisition in 2003. Outsourcing expenses increased by $10.1million was primarily due to growth in professional services and our continuous efforts to offer more training and consulting services to customers who licenseour products. The increase was also attributable to higher allocated facility expenses of $1.6 million and higher allocated IT infrastructure expenses of $1.0million. Facility expenses and IT infrastructure expenses increased primarily as a result of the lease of our new headquarters. These increases in costs werepartially offset by a net decrease in stock−based compensation expense of $2.4 million, resulting from a decrease in the number of outstanding stock optionssubject to variable accounting due to exercises, forfeitures and cancellations, and changes in the market value of our common stock.

Cost of revenue—amortization of intangible assets

Cost of revenue—amortization of intangible assets includes amortization expenses for intangible assets that are associated with our current products. See“Amortization of intangible assets” in Management’s Discussion and Analysis of Financial Condition and Results of Operations and Note 6 of the Notes toConsolidated Financial Statements for detailed information.

The following table presents amortization of intangible assets recorded as cost of revenue for the periods indicated (in thousands):


Cost of license and subscription $ 8,856 $ 8,882 $4,808Cost of maintenance 1,285 1,137 381

$ 10,141 $10,019 $5,189

Operating expenses

The following table presents operating expenses for the periods indicated (in thousands, except percentages):

Year EndedDecember 31,

Increase/(Decrease)


Increase/(Decrease)

2005 2004 $ % 2004 2003 $ %Marketing and selling $ 345,235 $ 335,867 $ 9,368 3% $ 335,867 $ 303,865 $ 32,002 11%Research and development 83,675 82,122 1,553 2% 82,122 73,096 9,026 12%General and administrative 70,560 63,802 6,758 11% 63,802 55,904 7,898 14%Acquisition−related expenses — 900 (900) (100)% 900 11,968 (11,068) (92)%Cost of restatement and related legal activities 84,040 — 84,040 *% — — — * %Restructuring, integration and other related expenses 2,050 3,088 (1,038) (34)% 3,088 3,389 (301) (9)%Amortization of intangible assets 5,427 5,544 (117) (2)% 5,544 2,281 3,263 143%Loss on intangible and other assets 15,998 — 15,998 *% — — — * %Excess facilities expense — 8,943 (8,943) (100)% 8,943 16,882 (7,939) (47)%

Total operating expenses $ 606,985 $ 500,266 $ 106,719 21% $ 500,266 $ 467,385 $ 32,881 7%Percentage of total revenues 72% 72% 72% 92%

* Percentage change is not a meaningful measure

45


Table of Contents

Year Ended December 31, 2005 Year Ended December 31, 2004 Year Ended December 31, 2003Stock−basedcompensation

All OtherExpenses Total





Marketing and selling $ (3,592) $ 348,827 $ 345,235 $ 16,305 $ 319,562 $ 335,867 $ 60,425 $ 243,440 $ 303,865Research and development (1,484) 85,159 83,675 8,199 73,923 82,122 16,404 56,692 73,096General and administrative 401 70,159 70,560 6,232 57,570 63,802 15,148 40,756 55,904Acquisition−related expenses — — — — 900 900 — 11,968 11,968Costs of restatement and related legal activities — 84,040 84,040 — — — — — — Restructuring, integration, and other related

expenses — 2,050 2,050 — 3,088 3,088 — 3,389 3,389Amortization of intangible assets — 5,427 5,427 — 5,544 5,544 — 2,281 2,281Loss on intangible and other assets — 15,998 15,998 — — — — — — Excess facilities expense — — — — 8,943 8,943 — 16,882 16,882

Total operating expenses $ (4,675) $ 611,660 $ 606,985 $ 30,736 $ 469,530 $ 500,266 $ 91,977 $ 375,408 $ 467,385

Marketing and selling

Marketing and selling expense consists of employee salaries and related costs, sales commissions, marketing, sales training, campaigns, allocated facilityexpenses, allocated IT infrastructure expenses and stock−based compensation.

The increase in marketing and selling expense for the year ended December 31, 2005 was primarily attributable to an increase of $18.6 million inpersonnel−related costs resulting from growth in headcount and an increase in commission expense of $10.7 million associated with higher revenues and growthin headcount. Allocated facility expenses and allocated IT infrastructure expenses increased by $3.9 million and $3.3 million, respectively. These increases werepartially offset by decreases in stock−based compensation expense, and marketing research expenses. Stock−based compensation expense decreased $19.9million, primarily as a result of a decrease in the number of outstanding fixed awards due to cancellations and certain awards becoming fully expensed in 2004,as well as changes in the market value of our common stock and a decrease in the number of outstanding stock options subject to variable accounting due toexercises, forfeitures or cancellations. Stock−based compensation expense also decreased as a result of fewer modifications of stock options for employees intransition or advisory roles upon their termination of employment with us. Additionally, we recorded stock−based compensation expense in 2004, not in 2005, asa result of the issuance of compensatory shares under our 1998 ESPP priced at a discount greater than 15% from the applicable closing price of our commonstock. Marketing research expenses decreased by $3.7 million primarily due to reduced market research and advertising activities. The remaining fluctuationswere individually insignificant. Excluding stock−based compensation expense, portions of which will fluctuate based on changes in the market price of ourcommon stock and the number of stock options outstanding which are subject to variable accounting, we expect marketing and selling expense to increase inabsolute dollars for fiscal year 2006.

The increase in marketing and selling expense for the year ended December 31, 2004 was primarily attributable to higher personnel−related costs andcommission expense of $35.5 million and $21.6 million, respectively, of which personnel−related costs of $8.8 million and commission expense of $3.9 millionwere related to Kintana employees who joined us as part of that acquisition in 2003. In addition, consulting fees, spending on marketing programs and salestraining fees increased by $3.7 million, $2.8 million and $1.0 million, respectively. Allocated IT infrastructure expenses and allocated facility expenses increasedby $4.9 million and $3.5 million, respectively. These increases in costs were partially offset by a net decrease in stock−based compensation expense of $44.1million, resulting from a decrease in the number of outstanding stock options subject to variable accounting due to exercises, cancellations and repayments ofnotes receivable, as well as changes in the market value of our common stock. Further, the decrease in stock−based compensation was also attributable to adecrease in the number of outstanding fixed awards due to cancellations and certain awards

46


Table of Contentsbecoming fully expensed in 2003 and early 2004, and $5.1 million of stock−based compensation expense associated with the modification of stock options for aformer executive officer in connection with a severance agreement we entered into in December 2003.

Research and development

Research and development expense associated with the development of new products, enhancements of existing products and quality assurance proceduresconsists of employee salaries and related costs, consulting costs, equipment depreciation, allocated facility expenses, allocated IT infrastructure expenses andstock−based compensation expense.

The increase in research and development expense for the year ended December 31, 2005 was primarily attributable to an increase in personnel−relatedcosts of $6.8 million resulting from growth in headcount. In addition, allocated facility expenses and allocated IT infrastructure expenses increased by $1.7million and $1.6 million, respectively, primarily due to higher headcount and engineering project support requirements. These increases were partially offset by anet decrease in stock−based compensation expense of $9.7 million, primarily as a result of a decrease in the number of outstanding fixed awards due tocancellations and certain awards becoming fully expensed in 2004, a decrease in the number of outstanding stock options subject to variable accounting due toexercises, forfeitures or cancellations, as well as changes in the market value of our common stock. Stock−based compensation expense resulting frommodifications of stock options for employees in transition or advisory roles upon their termination of employment with us also decreased. Additionally, werecorded stock−based compensation expense in 2004, but not in 2005, as a result of the issuance of compensatory shares under our 1998 ESPP priced at adiscount greater than 15% from the applicable closing price of our common stock. The remaining fluctuations were individually insignificant. Excludingstock−based compensation expense, portions of which will fluctuate based on changes in the market price of our common stock and number of stock optionsoutstanding which are subject to variable accounting, based on our product development plan, we expect research and development expense to increase inabsolute dollars for fiscal year 2006.

The increase in research and development expense for the year ended December 31, 2004 was primarily attributable to higher personnel−related costs of$10.7 million resulting from growth in headcount, of which $5.8 million was related to Kintana employees who joined us as part of that acquisition in 2003. Theincrease was also attributable to higher allocated IT infrastructure expenses of $2.2 million, higher allocated facility expenses of $2.0 million and higherconsulting fees for research and development projects of $0.7 million. Facility expenses and IT infrastructure expenses increased primarily due to the lease of ournew headquarters. The increase was also attributable to a $1.0 million devaluation of the U.S. dollar to the Israeli Shekel since a substantial portion of ourresearch and development expense was incurred in Israeli Shekels. These increases in costs were partially offset by a net decrease in stock−based compensationexpense of $8.2 million, resulting from a decrease in the number of outstanding stock options subject to variable accounting due to exercises, forfeitures andcancellations, and changes in the market value of our common stock, somewhat offset by additional stock−based compensation expense due to modifications ofstock options for employees in transition or advisory roles upon their termination of employment with us.

General and administrative

General and administrative expense consists of employee salaries and related costs, allocated facility expenses, allocated IT infrastructure expenses andstock−based compensation expense. It also consists of fees for audit, tax, legal and consulting services primarily for compliance with Section 404 of theSarbanes−Oxley Act of 2002.

The increase in general and administrative expenses for the year ended December 31, 2005 was primarily attributable to an increase of $8.4 million inpersonnel−related costs resulting from growth an increase in headcount, an increase of $2.8 million for audit, tax and other consulting fees, an increase of $1.2million in

47


Table of Contentscharitable contributions primarily related to hurricane Katrina and an increase in allocated IT infrastructure expenses and facilities expenses of $0.6 million each.These increases were partially offset by a net decrease in stock−based compensation expense of $5.8 million, primarily as a result of certain fixed awardsbecoming fully expensed in 2004. Stock−based compensation expense resulting from modifications of stock options for employees in transition or advisory rolesupon their termination of employment with us also decreased. Additionally, we recorded stock−based compensation expense in 2004, but not in 2005, as a resultof the issuance of compensatory shares and as a result of the issuance of compensatory shares under our 1998 ESPP priced at a discount greater than 15% fromthe applicable closing price of our common stock. The remaining fluctuations were individually insignificant. Excluding stock−based compensation expense,portions of which will fluctuate based on changes in the market price of our common stock and the number of stock options outstanding which are subject tovariable accounting, we expect general and administrative expenses to increase in absolute dollars for fiscal year 2006 due to a projected growth in headcount.

The increase in general and administrative expense for the year ended December 31, 2004 was primarily attributable to higher personnel−related costs of$5.8 million resulting from due to growth in headcount and additional fees for audit, tax and other consulting services of $6.9 million, of which $3.3 million wasrelated to projects for compliance with Section 404 of the Sarbanes−Oxley Act of 2002. The increase was also attributable to higher allocated facility expenses of$0.8 million, higher allocated IT infrastructure expenses of $0.6 million and an increase in loss on disposal of assets of $0.5 million. Facility expenses and ITinfrastructure expenses increased primarily due to the lease of our new headquarters. These increases in costs were partially offset by a net decrease instock−based compensation expense of $8.9 million, resulting from a decrease in the number of outstanding stock options subject to variable accounting due toexercises, forfeitures or cancellations, and changes in the market value of our common stock. The decrease in stock−based compensation expense was alsoassociated with a decrease in the number of outstanding fixed awards due to cancellations and certain awards becoming fully expensed in 2003 and early 2004.The decrease was further offset by additional stock−based compensation expense resulting from modifications of stock options for employees in transition oradvisory roles upon their termination of employment with us.

Acquisition−related expenses

We did not incur significant acquisition−related expenses for the year ended December 31, 2005.

Acquisition−related expenses of $0.9 million for the year ended December 31, 2004 related to acquired in−process research and development (IPR&D)from the acquisition of Appilog in July 2004.

Acquisition−related expenses of $12.0 million for the year ended December 31, 2003, related to acquired in−process research and development fromacquisitions of Performant in May 2003 and Kintana in August 2003.

We expensed IPR&D because technological feasibility had not been established from the acquired in−process technology of Appilog, Kintana, andPerformant and no future alternative uses existed upon the acquisitions. The fair value of in−process research and development was determined using adiscounted cash flow approach with key assumptions for percentage of completion, future market demand, and product life cycle. Acquired IPR&D projects fromthese acquisitions had been completed as of December 31, 2004.

Also, see Notes 5 and 6 to the Notes to Consolidated Financial Statements for additional information regarding the acquisitions completed and the acquiredin−process research and development recorded, respectively.

Costs of restatement and related legal activities

We have incurred substantial expenses with third parties for legal, accounting, tax and other professional services in connection with the SpecialCommittee investigation, our review of our historical financial

48


Table of Contentsstatements, the preparation of the restated financial statements, the SEC investigation, inquiries from other government agencies, and the related class action andderivative litigation. During the year ended December 31, 2005, we incurred $84.0 million of expenses related to these activities, including a proposed settlementof $35.0 million to the SEC. We estimate that we incurred approximately $23.3 million of expenses related to these activities for the six months ended June 30,2006. On September 28, 2006, we announced that we had proposed a settlement to the staff of the SEC, which the staff has agreed to recommend to the SEC, toconclude for us the matters arising from the formal SEC investigation. We have proposed to pay a $35.0 million civil penalty and to consent to the entry of a finaljudgment by a federal court permanently enjoining the Company from violations of the antifraud and other provisions of the federal securitieslaws. The proposed settlement is contingent on the review and approval of final documentation by us and the staff of the SEC, and is subject to final approval bythe SEC. We have expensed the amount as “Costs of restatement and related legal activities” in our consolidated statement of operations against “Accrued andother liabilities” in our consolidated balance sheets for the year ended December 31, 2005. As provided in the Merger Agreement with us, Hewlett−Packard hasconsented to the settlement offer and will also be required to approve the final settlement documentation. We continue to cooperate with the SEC and othergovernment agencies regarding this matter. There can be no assurance that our efforts to resolve the SEC’s investigation with respect to the Company will besuccessful, or that the amount reserved will be sufficient, and we cannot predict the timing or the final terms of any settlement.

Restructuring, integration, and other related expenses

In July 2005, based upon a review of our operational effectiveness to better align our people, resources, and assets with our business objectives, our Boardof Directors approved a restructuring plan which solely included a global reduction in headcount. The restructuring expense incurred for headcount reductionsconsisted solely of one−time severance and termination benefits for approximately 65 individuals and was reported under “Restructuring, integration and otherrelated expenses” in our consolidated statements of operations. As of December 31, 2005, all employment separations were completed. We recordedrestructuring expense of $2.1 million, all of which had been paid as of December 31, 2005. There were no restructuring activities during the years endedDecember 31, 2004 and 2003.

Integration and other related expenses for the year ended December 31, 2004 were primarily attributable to a milestone bonus plan associated with certainresearch and development activities that was signed in conjunction with the acquisition of Performant in 2003. The plan entitles each eligible employee to receivebonuses, in the form of cash payments, based on the achievement of certain performance milestones by applicable target dates. The commitment will be earnedover time as milestones are achieved and recorded as an expense in the consolidated statement of operations as earned. The maximum total payment under theplan is $5.5 million, of which $5.2 million had been paid through December 31, 2004 and December 31, 2005.

Integration and other related expenses for the year ended December 31, 2003 resulted primarily from milestone achievements of $2.8 million related to themilestone bonus plan signed in conjunction with the acquisition of Performant and integration costs of $0.6 million associated with the Kintana acquisition,primarily for employee severance and consulting services.

Amortization of intangible assets

The decrease in amortization of intangible assets for the year ended December 31, 2005 was primarily due to having less than a full year’s expense forFreshwater intangibles that became fully amortized during the first half of the year, slightly offset by partial year amortization of BeatBox intangibles whichcommenced during the fourth quarter of 2005.

The increase in amortization of intangible assets for the year ended December 31, 2004 was primarily due to a full year’s amortization of intangible assetsrelated to the acquisitions of Performant in May 2003 and Kintana in August 2003, the purchase of existing technology in the third quarter of 2003, and theacquisition of a domain

49


Table of Contentsname in the fourth quarter of 2003. The increase was also attributable to amortization of expenses associated with intangible assets of $8.9 million acquired fromthe Appilog acquisition in July 2004.

We amortize intangible assets on a straight−line basis over their useful lives, which best represents the distribution of the economic value of the intangibleassets.

For the years ended December 31, 2005, 2004 and 2003, $5.4 million, $5.5 million, and $2.3 million, respectively, in intangible assets related to ourcurrent products was amortized to expense.

Future amortization of intangible assets at December 31, 2005 is as follows (in thousands):


2006 $ 12,3132007 6,2092008 5,0622009 1,954Thereafter —

$ 25,538

Also see Notes 5 and 6 to the Notes to Consolidated Financial Statements for additional information regarding the acquisitions completed in 2005, 2004and 2003 and the intangible assets acquired in each acquisition.

Loss on intangible and other assets

During the second quarter of 2005, as part of our review of our operational effectiveness to better align our people, resources and assets with our newbusiness objectives, management decided to discontinue development of technology we licensed from Motive. This decision resulted in an impairment review ofprepaid royalties of $15.4 million. Based upon management’s decision to discontinue development efforts, combined with the fact that Motive−based productshad not been available for sale, there were no projected revenues or cash flows associated with the Motive technology. Since we determined that we had noalternative use for the licensed technology, the prepaid royalties of $15.4 million were not recoverable and were expensed in the second quarter of 2005.

Also, as part of our second quarter review of operational effectiveness, management decided to discontinue development of technology we had purchasedfrom Allerez, resulting in an impairment loss associated with the purchased technology. As a result of management’s decision, we performed an impairmentreview in accordance with SFAS No. 144, Accounting for the Impairment or Disposal of Long−lived Assets, on the purchased technology from Allerez. Weevaluated the recoverability of the intangible asset by comparing its estimated fair value to its carrying value and recorded an impairment expense based on theamount by which the carrying value of the intangible asset exceeded its fair value. The estimated fair value was determined using a discounted cash flow method.Based on our impairment review, we reduced the carrying value of the intangible asset to zero resulting in an impairment loss of $0.6 million.

Excess facilities expense

We had no excess facilities expense for the year ended December 31, 2005.

Excess facilities expense for the years ended December 31, 2004 and 2003 was $8.9 million and $16.9 million, respectively, and was primarily related tothe write−down of three vacant buildings we owned in

50


Table of ContentsSunnyvale that had been placed for sale. In July 2003, the Board of Directors approved a plan to lease a new headquarters facility and to sell the existingbuildings we owned in our Sunnyvale headquarters. In September 2003, as a result of our decision to move to a new headquarters facility and to sell two vacantbuildings, we performed an impairment analysis of the vacant buildings. In the third quarter of 2003, we recognized a non−cash expense of $16.9 million to writedown the net book value of the two vacant buildings to their appraised market value. We considered the cost to maintain the facilities until sold and salescommissions related to the sale of the buildings when we calculated the expense. On January 30, 2004, we sold the two vacant buildings in Sunnyvale at carryingvalue to a third party for $2.5 million in cash, net of $0.2 million in transaction fees.

In April 2004, we completed the move from one of the two remaining buildings we owned and we placed the vacant building for sale. We recognized anon−cash expense to write down the net book value of the vacant building to its appraised market value. We included the cost to maintain the facility until soldand sales commissions related to the sale of the building when we calculated the expense. On January 7, 2005, we completed the sale of the third vacant buildingat carrying value to a third party for $4.9 million in cash, net of $0.3 million in transaction fees.

Excess facilities expense for the year ended December 31, 2004 also related to the remaining lease payments for two leased facilities from the Kintanaacquisition. In connection with our move into our consolidated headquarters, we vacated two leased facilities from the Kintana acquisition. We recognized anon−cash expense for the remaining lease payments, as well as the associated costs to protect and maintain the leased facilities prior to returning these leasedfacilities to the lessor. One of these lease agreements expired in September 2004 and the other expired in December 2005. The excess facilities expense alsoincluded the write−off of leasehold improvements and the disposal of fixed assets, net of cash proceeds, associated with these facilities.

Non−operating income (expense)

The following table presents non−operating income (expense) for the periods indicated (in thousands, except percentages):

Year Ended December 31, Change Year Ended December 31, Change 2005 2004 $ % 2004 2003 $ %

Interest income $ 53,296 $ 38,210 $ 15,086 39% $ 38,210 $ 34,399 $ 3,811 11%Interest expense (31,851) (24,627) (7,224) (29)% (24,627) (22,824) (1,803) (8)%Other income (expense), net (37,769) (1,261) (36,508) (2,895)% (1,261) (4,907) 3,646 74%

Total non−operating income (expense), net $ (16,324) $ 12,322 $(28,646) (232)% $ 12,322 $ 6,668 $ 5,654 85%Percentage of total revenues (2)% 2% 2% 2%

Interest income

The increase in interest income for the year ended December 31, 2005 was attributable to an improvement in the average yields of our investments andhigher average cash and investment balances as compared to 2004. The increase in interest income for the year ended December 31, 2004 was attributable to animprovement in the average yields of our cash and investments during 2004 compared to 2003, partially offset by a decrease in our average cash and investmentsbalances in 2004.

Interest expense

Interest expense for the year ended December 31, 2005 and 2004 primarily consisted of interest expense associated with our interest rate swap, the 2000Notes, and amortization of debt issuance costs associated with the issuance of our 2003 Notes and 2000 Notes. The increase in interest expense in 2005 wasprimarily due to an increase in the London Interbank Offering Rate (LIBOR) associated with our interest rate swap agreement and, to

51


Table of Contentsa lesser extent, the amortization of waiver fees incurred for amending the terms of the 2000 Notes. The increase in interest expense in 2004 was due to anincrease in the LIBOR associated with our interest rate swap agreement and a full year’s amortization of debt issuance costs associated with our 2003 Notesissued in April 2003.

In 2002, we entered into an interest rate swap with Goldman Sachs Capital Markets, L.P. (GSCM). The interest rate swap is designated as an effectivehedge of the change in the fair value attributable to LIBOR with respect to $300.0 million of our 2000 Notes. The objective of the swap is to convert the 4.75%fixed interest rate on the 2000 Notes to a variable interest rate based on the 3−month LIBOR plus 48.5 basis points. The interest rate swap qualifies for hedgeaccounting treatment in accordance with Statement of Financial Accounting Standard No. 133, Accounting for Derivative Instruments and Hedging Activitiesand the related amendment.

Also, see Notes 7, 13 and 18 to the Notes to Consolidated Financial Statements for additional information regarding our 2000 Notes and the related interestrate swap activities.

Other income (expense), net

Other income (expense), net for the year ended December 31, 2005 primarily consisted of the fair value of a put option associated with our 2003 Notes, netgains or losses on investments in non−consolidated companies, a warrant to purchase common stock of Motive, and currency gains and losses. The increase inother expense, net for the year ended December 31, 2005 was primarily due to the recording of a put option associated with an amendment to the terms of our2003 Notes in the fourth quarter of 2005. The fair value of the put feature related to the 2003 Notes of $34.2 million was recorded as an expense in ourconsolidated statements of operations in the fourth quarter of 2005 and will be marked−to−market through our consolidated statements of operations each perioduntil expiration of the put.

The decrease in other expense, net for the year ended December 31, 2004 was primarily attributable to a decrease of $2.9 million in losses on ourinvestments in privately−held companies and a private equity fund and a realized gain of $0.3 million on the sale of available−for−sale securities.

The fair value of the Motive warrant was calculated using the Black−Scholes option−pricing model, which requires subjective assumptions includingexpected stock price volatility. In June 2004, Motive completed an initial public offering and is listed in a U.S. stock market. A decline in the U.S. stock marketand the market price of Motive’s common stock could contribute to volatility in our reported results of operations. In determining the loss to be recorded on ourinvestments in privately−held companies and private equity funds, we consider the most recent valuation of each of the companies based on recent sales of equitysecurities to unrelated third party investors and whether the companies have sufficient funds and financing to continue as a going concern for at least twelvemonths.

Also, see Notes 7, 13 and 18 to the Notes to Consolidated Financial Statements for additional information regarding our 2000 Notes and 2003 Notes andthe related interest rate swap activities.

Provision for income taxes

Our future tax provisions will depend upon the mix of worldwide income and the tax rates in effect for various tax jurisdictions. Historically, ouroperations have generated a significant amount of income in Israel where tax rate incentives have been extended to encourage foreign investments. The taxholidays and rate reductions, which we will be able to realize under programs currently in effect, expire in 2006 through 2013. The effective tax rates for theyears ended December 31, 2005, 2004, and 2003 differ from statutory tax rates principally because of our participation in taxation programs in Israel and the2005 repatriation of foreign earnings under The American Jobs Creation Act of 2004. We intend to increase our investment in our Israeli operations consistentwith our overall tax strategy. Other factors that cause the effective tax rates and statutory tax rates to differ include differences between book and tax treatment ofexpenses for amortization of intangible

52


Table of Contentsassets, stock−based compensation, and in−process research and development. U.S. income taxes and foreign withholding taxes were not provided forundistributed earnings for certain non−U.S. subsidiaries. We intend to invest these earnings indefinitely in operations outside the U.S.

Our effective tax rate increased in 2005 from 2004, primarily due to the repatriation of earnings from our Israeli subsidiary under The American JobsCreation Act of 2004, which resulted in a significant amount of Israeli and U.S. taxes.

In 2002, we sold the economic rights of intellectual property acquired from Freshwater in 2001 to our Israeli subsidiary. As a result of this intellectualproperty sale, we recorded a current income tax payable and a prepaid tax asset in the amount of $25.5 million, which will be amortized to income tax expense inour consolidated statements of operations over eight years, which approximates the period over which the expected benefit is expected to be realized. AtDecember 31, 2005 and 2004, the prepaid tax asset was $12.7 million and $15.9 million, respectively. We are currently evaluating the migration of the economicownership of technology acquired from Performant and Kintana to our Israeli subsidiary. This migration may lead to an increase in our effective income tax rate.In the event we do not migrate the technology, our effective tax rate may also increase due to a greater portion of U.S. source income associated with technologyacquired from Performant and Kintana.

Factors that could increase our effective tax rate include changes to our intention to indefinitely reinvest earnings in operations outside the U.S., dividendsof earnings generated from our Israeli approved enterprise tax holiday, the effect of changing economic conditions, business opportunities, and changes in taxlaws and rulings. The Israeli reduced tax rates are conditional upon us fulfilling the terms stipulated under the Israeli law for the Encouragement of CapitalInvestments of 1959. Failure to comply with these conditions may result in cancellation of the benefits in whole or in part. We have in the past, and may in thefuture, retire amounts outstanding under our 2000 Notes. To the extent these repurchases are completed below the par value of our 2000 Notes, we may generatetaxable gains from these repurchases. These gains may result in an increase our effective tax rate. Merger and acquisition activities, if any, could result innondeductible expenses, which may increase our effective tax rate.

53


Table of Contents2005 and 2004 Unaudited Quarterly Financial Information

The following table presents consolidated statements of operations for the fiscal quarters during the years ended December 31, 2005 and 2004. Thestatements of operations for the 2004 fiscal quarters have been amended from such data as reported in our reports on Forms 10−Q for the fiscal quarters endedMarch 31, June 30 and September 30, 2004, to reflect our restated consolidated statements of operations for fiscal year 2004, as reported in and summarized inour Amended Annual Report on Form 10−K/A for year ended December 31, 2004, filed on July 3, 2006. The consolidated statement of operations for the firstquarter of 2005 reflects our restated financial statements presented in our Amended Quarterly Report on Form 10−Q/A for the three months ended March 31,2005, filed on August 1, 2006. This unaudited quarterly financial information has been prepared in accordance with generally accepted accounting principles inthe United States of America for interim financial information and with the instructions of Article 10 of Regulation S−X. In our opinion, all adjustments,consisting only of normal recurring adjustments, except as disclosed herein, that are considered necessary for a fair presentation of our consolidated financialstatements have been reflected in the interim financial information. Results of operations for the quarterly periods presented are not necessarily indicative of theresults that may be expected for any future period.

2005 2004Three Months ended Three Months ended

December 31 September 30 June 30 March 31 December 31 September 30 June 30 March 31Revenues:

License fees $ 87,487 $ 67,245 $ 78,671 $ 71,067 $ 84,831 $ 59,004 $ 59,958 $ 57,589Subscription fees 47,359 49,055 45,217 45,976 43,182 38,420 34,659 35,938

Total product revenues 134,846 116,300 123,888 117,043 128,013 97,424 94,617 93,527Maintenance fees 67,614 64,462 59,738 56,577 52,041 49,112 48,158 46,904Professional service fees 26,418 27,394 23,388 25,479 24,703 18,836 16,322 16,414

Total revenues 228,878 208,156 207,014 199,099 204,757 165,372 159,097 156,845Costs and expenses:

Cost of license and subscription (including stock−basedcompensation*) 12,304 12,351 11,010 11,198 11,982 8,844 10,728 10,245

Cost of maintenance (including stock−based compensation*) 3,943 4,714 3,562 4,508 5,263 3,342 4,908 4,385Cost of professional services (including stock−based

compensation*) 22,978 24,795 22,559 21,282 19,543 14,871 15,497 13,826Cost of revenue—amortization of intangible assets 2,631 2,498 2,506 2,506 2,506 2,506 2,402 2,605Marketing and selling (including stock−based

compensation*) 84,565 81,891 86,400 92,379 101,183 67,230 86,003 81,451Research and development (including stock−based

compensation *) 21,277 21,732 21,087 19,579 23,131 16,196 20,335 22,460General and administrative (including stock−based

compensation *) 17,273 18,837 16,500 17,950 18,609 14,644 13,909 16,640Acquisition−related expenses — — — — — 900 — — Costs of restatement and related legal activities 71,366 11,772 902 — — — — — Restructuring, integration and other related expenses 22 2,028 — — (7) 985 1,131 979Amortization of intangible assets 1,365 1,357 1,352 1,353 1,394 1,473 1,342 1,335Loss on intangible and other assets — — 15,998 — — — — — Excess facilities expenses — — — — (235) — 9,178 —

Total costs and expenses 237,724 181,975 181,876 170,755 183,369 130,991 165,433 153,926

54


Table of Contents

2005 2004Three Months ended Three Months ended

December 31 September 30 June 30 March 31 December 31 September 30 June 30 March 31Income (loss) from operations $ (8,846) $ 26,181 $ 25,138 $ 28,344 $21,388 $ 34,381 $(6,336) $ 2,919Interest income 15,969 13,974 12,565 10,788 9,753 9,609 9,699 9,149Interest expense (9,538) (7,856) (7,463) (6,994) (6,608) (6,252) (5,903) (5,864)Other income (expense), net (35,593) (346) (588) (1,242) 643 (770) (748) (386)Income (loss) before provision for income taxes (38,008) 31,953 29,652 30,896 25,176 36,968 (3,288) 5,818Provision for income taxes 145,268 2,451 2,022 4,681 1,562 3,946 107 5,283Net income (loss) $(183,276) $ 29,502 $ 27,630 $ 26,215 $23,614 $ 33,022 $(3,395) $ 535Net income (loss) per share—basic $ (2.08) $ 0.34 $ 0.32 $ 0.31 $ 0.28 $ 0.38 $ (0.04) $ 0.01Net income (loss) per share—diluted (1) $ (2.08) $ 0.30 $ 0.28 $ 0.26 $ 0.24 $ 0.33 $ (0.04) $ 0.01Weighted average common shares—basic 88,128 87,398 86,713 85,664 84,413 87,828 92,330 91,262Weighted average common shares and

equivalents—diluted (1) 88,128 100,434 101,063 100,712 99,528 101,611 92,330 98,489__________(1) For the periods when we have net income, diluted net income per share and weighted average diluted common shares and equivalents include the effect of common stock issuable

upon the conversion of the Zero Coupon Senior Convertible Notes due 2008 issued in 2003. For the periods when we have net loss, stock options outstanding were consideredanti−dilutive due to our net loss and therefore were not included in our diluted earnings per share computation. See Note 1 in the Notes to the Consolidated Financial Statements forthe basic and diluted net income per share computations for these periods.

* Stock−based compensation:Cost of license and subscription $ (752) $ 164 $ (793) $ 267 $ 1,310 $ (1,175) $ 789 $ 277Cost of maintenance (461) 179 (991) 260 1,137 (762) 836 514Cost of professional services (384) 115 (455) 205 945 (914) 621 146Marketing and selling (4,797) 2,282 (4,173) 3,096 11,381 (8,563) 8,476 5,011Research and development (1,370) 596 (1,487) 777 3,319 (2,383) 2,575 4,688General and Administrative (332) 293 (227) 667 1,664 (336) 1,646 3,258

Our results of operations for each of the fiscal quarters during the years ended December 31, 2005 and 2004 are predominantly consistent with theyear−over−year discussion under Item 7, “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” by each financialstatement category as presented in our consolidated statements of operations for the years ended December 31, 2005 and 2004, except for the followingsignificant quarterly changes:

• License fees for the three months ended September 30, 2005 were negatively affected by a reduction in customer orders of our application deliverylicense products and application management license products;

• Total costs and expenses are materially affected, on a quarter−by−quarter basis, by stock−based compensation expense primarily due to changes inthe market price of our common stock and the number of stock options outstanding which are subject to variable accounting;

• Costs of restatement and related legal activities increased from $0.9 million in the three months ended June 30, 2005 to $11.8 million for the threemonths ended September 30, 2005, and then to $71.4 million for the three months ended December 31, 2005, of which $35.0 million related to aproposed settlement with the SEC. See “—Results of Operations—Costs and Expenses—Costs of restatement and related legal activities” foradditional details; and

• The net loss for the three months ended December 31, 2005 was primarily due to the provision for income taxes principally related to the repatriationof earnings from our Israeli subsidiary under The American Jobs Creation Act of 2004.

55


Table of ContentsLiquidity and Capital Resources

At December 31, 2005, our principal source of liquidity consisted of $1,401.1 million of cash and investments, compared to $1,138.4 million atDecember 31, 2004. The December 31, 2005 balance included $240.4 million of short−term investments and $287.6 million of long−term investments, comparedto $447.5 million of short−term investments and $508.1 million of long−term investments in the December 31, 2004 balance. The increase in cash andinvestments during the year ended December 31, 2005 was due to overall growth of our business and cash received from issuance of common stock under ourstock option and employee stock purchase plans, partially offset by cash used for capital expenditures, the acquisitions of BeatBox and Intuwave, and debtwaiver fees. During the year ended December 31, 2005, we generated $195.5 million of cash from operating activities, compared to $212.4 million and $180.9million during the years ended December 31, 2004 and 2003, respectively.

During the year ended December 31, 2005, cash provided by our investing activities was $410.8 million, compared to $71.3 million during the year endedDecember 31, 2004. Cash proceeds from investing activities in 2005 consisted primarily of net proceeds of $428.3 million from maturities, purchases and sales ofour investments. Cash used for investing activities during the year ended December 31, 2005 was primarily for equipment, software and construction to supportour sales and research activities, as well as other purchases to support the growth of our business. During 2005, our investing activities included $1.1 million forthe construction of research and development facilities in Israel on land purchased in 2004 for $2.3 million. We expect to spend an additional $19.0 million onconstruction of the Israel facility which is expected to be completed in December 2007.

During the year ended December 31, 2005, our primary financing activities consisted of cash proceeds of $86.1 million from common stock issued underour employee stock option and stock purchase plans and net proceeds of $1.4 million from the collection of notes receivable for common stock, offset by $7.1million for payment of debt waiver fees. During the year ended December 31, 2004, cash used by financing activities was $226.1 million and was primarily forcommon stock repurchases of $332.2 million, offset by proceeds from common stock issuances under our employee stock option and stock purchase plans of$104.0 million.

As of December 31, 2005, we are committed to make additional capital contributions to a private equity fund in which we are a limited partner totaling$4.1 million. Such contributions may be made at the request of the general partner of the fund through fiscal year 2013 or until the fund is liquidated.

As of December 31, 2005, we had four outstanding irrevocable letter of credit agreements totaling $2.2 million with Wells Fargo & Company (WellsFargo). These letter of credit agreements were drawn from a $5.0 million letter of credit line issued in February 2005. Two of the letter of credit agreementsrelate to facility lease agreements assumed by us in conjunction with the acquisition of Kintana in 2003 and Freshwater in 2001. These agreements expired onMarch 1, 2006 and August 31, 2006, respectively. The third agreement relates to a facility lease agreement for our new headquarters in Mountain View,California. This agreement automatically renews annually unless we provide a termination notice to Wells Fargo. The fourth letter of credit agreement was issuedin connection with a new sublease agreement we executed to lease additional buildings at our Mountain View headquarters. This agreement expires on March 26,2013.

We lease facilities for our headquarters and sales offices in the U.S. and foreign locations primarily under non−cancelable operating leases that expirethrough 2015. Certain of these leases contain renewal options. In February 2005, we entered into a lease agreement to lease additional buildings at ourheadquarters in Mountain View, California. Under the terms of the lease, which expires in March 2013, we commenced occupying the buildings in May and July2005. On August 22, 2005, we entered into an agreement to sublease one of our buildings at our headquarters in Mountain View beginning in November 2005 fora term of three years. The contractual obligations presented in the table below represent our estimate of future minimum payments under contractual obligationsand commitments. Changes in business needs, cancellation provisions, changes in interest rates and other factors may result in actual payments differing from theestimates. Our contractual obligations,

56


Table of Contentsincluding two vacant facilities from our Kintana acquisition, are included in the following table at December 31, 2005 (in thousands):

Due in2006 2007 2008 2009 2010 Thereafter Total

Zero Coupon Senior Convertible Notes due 2008 (2003 Notes) $500,000(2) $ — $ —(2) $ — $ — $ — $500,000(2)4.75% Convertible Subordinated Notes due 2007 (2000 Notes) (1) — 300,000(2) — — — — 300,000(2)Non−cancelable operating leases, net (3) 20,744 16,143 12,301 10,775 8,935 24,289 93,187Royalty and license agreements 2,892 1,872 273 20 20 160 5,237Purchase obligations 864 — — — — — 864

$524,500 $318,015 $12,574 $10,795 $8,955 $ 24,449 $899,288

(1) The above table does not include contractual interest payments on the 2000 Notes. Assuming we do not retire additional 2000 Notes during 2006 and interest rates stay constant, weestimate that we will make interest payments, net of our interest rate swap, of approximately $15.8 million in 2006, and approximately $7.9 million during 2007. The face value of our2000 Notes differs from our carrying value. In May 2006, we terminated our $300.0 million receive fixed / pay floating interest rate swap. See Notes 7 and 18 of the Notes to ConsolidatedFinancial Statements for a full description of our long−term debt activities and related accounting policy.

(2) Although the 2003 Notes contractually mature on May 1, 2008, they have been included in 2006 contractual obligations and classified as a current liability on our Consolidated BalanceSheets as of December 31, 2005, since if the put option is exercised by the holders of all of the 2003 Notes, we will be required to pay $536.3 million on October 31, 2006 to the holders ofthe 2003 Notes. In addition, if the put option is exercised by the holders of all of the 2000 Notes, we will be required to pay $303.9 million on March 1, 2007 to the holders of the 2000Notes. See Note 18, “Subsequent Events,” of the Notes to Consolidated Financial Statements for further detail.

(3) Net of payments from sublease agreements.

In July 2000, we issued $500.0 million in 4.75% Subordinated Convertible Notes due July 1, 2007. The 2000 Notes bear interest at a rate of 4.75% perannum and are payable semiannually on January 1 and July 1 of each year. The 2000 Notes are subordinated in right of payment to all of our future senior debt.The 2000 Notes are convertible into shares of our common stock at any time prior to maturity at a conversion price of approximately $111.25 per share, subjectto adjustment under certain conditions. Additionally, the holders of the 2000 Notes have the right to require us, at their option, to repurchase the 2000 Notes priorto their maturity date (a) upon the occurrence of a change of control of Mercury at 100% of the principal amount thereof or (b) as described below, pursuant to aput option that allows holders to require us to repurchase their 2000 Notes on March 1, 2007 at 101.3% of the principal amount thereof. From December 2001through December 31, 2002, we retired $200.0 million face value of the 2000 Notes. We may redeem the 2000 Notes, in whole or in part, at any time on or afterJuly 1, 2003. If we redeem the 2000 Notes, we will pay accrued interest up to the redemption date. We have not redeemed any portion of the 2000 Notes sincethe original issuance through December 31, 2005.

In April 2003, we issued $500.0 million of Zero Coupon Senior Convertible Notes due 2008 in a private offering. The 2003 Notes mature on May 1, 2008,do not bear interest, have a zero yield to maturity and may be converted into our common stock. Holders of the 2003 Notes may convert their 2003 Notes prior tomaturity only if the sale price of our common stock reaches specified thresholds or if specified corporate transactions have occurred. Upon conversion, we havethe right to deliver cash instead of shares of our common stock. Additionally, the holders of the 2003 Notes have the right to require us, at their option, torepurchase the 2003 Notes prior to their maturity date (a) upon the occurrence of a change of control of Mercury at 100% of the principal amount thereof or (b)as described below, pursuant to a put option that allows holders to require us to repurchase their 2003 Notes on October 31, 2006 or November 30, 2006 at107.25% of the principal amount thereof.

As a result of our failure to file our Form 10−Q for the period ended June 30, 2005, we violated provisions of the indentures related to our 2000 Notes andour 2003 Notes (together, the “Notes”) that require us to furnish such information promptly to the trustee for the Notes. On August 26, 2005 we received fromthe trustee a notice of default on the Notes. On October 26, 2005, we announced that holders of a majority of each series of the

57


Table of ContentsNotes had submitted consents which waived, until March 31, 2006, any default or events of default under the indentures arising out of our failure to timely filewith the SEC and provide to the trustee those reports required to be filed under the Exchange Act (Report Defaults). In consideration for the waiver, we (1) paidto the consenting holders of the 2000 Notes a consent fee of $25.00 for each $1,000 principal amount of 2000 Notes, resulting in a $7.1 million payment, and(2) entered into a supplement to the indenture governing the 2003 Notes, pursuant to which we will be required to repurchase the 2003 Notes, at the option of theholder, on November 30, 2006 at a repurchase price equal to 107.25% of the principal amount. If this put option is exercised by all holders, we will be required topay the face value and an additional $36.3 million to the 2003 Note holders on that date.

Because we failed to file our SEC reports by March 31, 2006, as required by the waivers we obtained in October 2005, on April 21, 2006 we solicitedadditional consents from the holders of the Notes requesting a waiver until the stated maturity of the 2000 Notes and the 2003 Notes, as applicable, of any ReportDefaults. On May 4, 2006, we announced that, as of May 3, 2006, holders of a majority of each series of the Notes had submitted consents and therefore theReport Defaults were waived for all holders. In consideration for the waiver, we entered into (1) a supplement to the indenture governing the 2000 Notesrequiring us to repurchase the 2000 Notes at the option of the holder on March 1, 2007 at a repurchase price equal to 101.3% of the principal amount of the 2000Notes, together with accrued and unpaid interest, if any, and providing that any 2000 Notes redeemed pursuant to Article XI of the Indenture during the periodfrom July 1, 2006 through March 5, 2007 shall be at a redemption price of 101.3% of the principal amount of the 2000 Notes, together with accrued and unpaidinterest, if any, to the redemption date; and (2) a supplement to the indenture governing the 2003 Notes requiring us to repurchase the 2003 Notes at the option ofthe holder on October 31, 2006 (in addition to the existing optional put date of November 30, 2006) at a repurchase price equal to 107.25% of the principalamount of the 2003 Notes. If these put options are exercised by all holders of both series of Notes, we will be required to pay the face value of the Notes and anadditional $36.3 million to the holders of the 2003 Notes on October 31, 2006 or November 30, 2006 and $3.9 million to the holders of the 2000 Notes onMarch 1, 2007.


In 2002, we entered into an interest rate swap agreement of $300.0 million with GSCM to hedge the change in the fair value attributable to the LIBOR ofour 2000 Notes. The interest rate swap matures in July 2007. The value of the interest rate swap is determined using various inputs, including forward interestrates and time to maturity. Under the terms of the swap, we provided initial collateral in the form of cash or cash equivalents to GSCM in the amount of $6.0million as continuing security for our obligations under the swap (regardless of movements in the value of the swap) and from time to time additional collateralcan change hands between us and GSCM as swap rates and equity prices fluctuate. We classified the initial collateral as “Other assets, net” in our consolidatedbalance sheets at December 31, 2004. In May 2005, we substituted the collateral held in the form of cash with a fixed income security. The security waspreviously purchased and held as a long−term, held−to−maturity investment. At December 31, 2005, the security was recorded at its amortized cost of $7.5million in “Long−term investments” in our consolidated balance sheets. Our interest rate swap was recorded at its fair value of approximately $4.8 million in“Other assets, net” in our consolidated balance sheets as of December 31, 2004, but the swap value continues to fluctuate due to the volatility of interest rates.Our interest rate swap became a liability of $2.3 million at December 31, 2005. In the event we choose to terminate the swap before maturity, and the swap is aliability due to an unfavorable value, we would be obligated to pay to GSCM the market value of the swap at the termination date.

On May 22, 2006, we terminated our $300.0 million receive fixed / pay floating interest rate swap, with a fair value of approximately $3.9 million. As aresult, we made a cash payment to GSCM of approximately $0.4

58


Table of Contentsmillion. Our decision to terminate the swap resulted from various considerations, including the potential effect of the put option issued to the holders of the 2000Notes, which could effectively change the maturity of the 2000 Notes to March 1, 2007, the continued volatility and uncertainty of the interest rate environment,and the fact that the LIBOR exceeded our fixed coupon rate of 4.75%. In connection with the swap termination, we will record an expense of approximately $1.4million in the second quarter of 2006 resulting from the ineffectiveness primarily caused by the change in cash flows from issuance of the put option, which willbe substantially different from the previously anticipated cash flows. In addition, the excess of the face value of the debt that was subject to the swap over the fairvalue of the debt as of the date the swap was terminated was $2.5 million and will be amortized to expense on a straight−line basis until March 1, 2007, the putdate on the 2000 Notes. Interest expense on the 2000 Notes will be fixed at the stated coupon rate of 4.75% over the remaining life of the 2000 Notes.

We have incurred substantial expenses with third parties for legal, accounting, tax and other professional services in connection with the SpecialCommittee investigation, our review of our historical financial statements, the preparation of the restated financial statements, the SEC investigation, inquiriesfrom other government agencies, the related class action and derivative litigation, and the amendments to the terms of our Notes as a result of our failure totimely file our Exchange Act reports with the SEC and the trustee for the Notes. During the year ended December 31, 2005, we incurred $84.0 million ofexpenses related to these activities, and we estimate that we incurred approximately $23.3 million of expenses related to these activities in the six months endedJune 30, 2006. We expect to continue to incur significant expenses in connection with these matters.

In addition, we have acquired two companies and certain technology assets in the first half of 2006 and have incurred, or will be required to incur, cashoutlays of approximately $123.5 million.

During December 2005, we repatriated $500.0 million from our Israeli subsidiary under The American Jobs Creation Act of 2004. Significant taxpayments are required as a result of this repatriation. The repatriation is subject to taxes of approximately $117.5 million for Israeli taxes, approximately $20.6million for U.S. federal taxes and approximately $3.2 million for state taxes in accordance with tax laws existing at the time.

Historically, a significant amount of our income and cash flow has been generated in Israel where income tax rate incentives have been extended toencourage foreign investment. We may have to pay significantly more income taxes if these income tax rate incentives are not renewed upon expiration, tax ratesapplicable to us are increased, or we choose to repatriate cash balances from Israel to other tax jurisdictions. In addition, our future income tax provisions willdepend upon the mix of worldwide pre−tax income and the tax rates in effect for various tax jurisdictions. See Note 12, “Income Tax” for additional information.

For the years ended December 31, 2005, 2004 and 2003, our primary source of funding was cash generated by our operations. A decrease in customerdemand or a decrease in the acceptance of our future products and services may affect our ability to generate positive cash flow from operations.

A shift in the mix of license types does not affect our collections cycle as we typically invoice the customers up front for the full license amount and cashis generally received within 30−60 days from the invoice date. Our results of operations are affected by the mix of license types entered into in connection withthe sale of products. As revenue associated with our subscription licenses is generally recognized ratably over the term of the license, any increase in oursubscription business will also result in deferred revenue becoming a larger component of our cash provided by operations. Furthermore, if a perpetual license issold at the same time as a subscription−based license to the same customer, then the two generally are bundled together and revenue is recognized over the termof the contract. If our business was to shift to a greater percentage of revenue generated from a subscription revenue model, we may experience a decrease or alower rate of growth in recognized revenue in a given period. Deferred revenue at December 31, 2005 was $464.9 million, compared to $413.8 million atDecember 31, 2004. We expect the mix of licenses to fluctuate.

59


Table of ContentsOn July 25, 2006, we entered into an Agreement and Plan of Merger (the Merger Agreement) with Hewlett−Packard Company (HP) and Mars Landing

Corporation, a wholly−owned subsidiary of HP (Merger Sub). Pursuant to the Merger Agreement, and upon the terms and subject to the conditions thereof, onAugust 17, 2006, Merger Sub commenced a cash tender offer (the Offer) for all of the issued and outstanding shares of our common stock, par value of $0.002per share, at a purchase price of $52.00 per share. The closing of the Merger is subject to customary closing conditions, and, depending on the number of sharesheld by HP after its acceptance of the shares properly tendered in connection with the Offer, approval of the Merger by the holders of our outstanding sharesremaining after the completion of the Offer also may be required. Under terms specified in the Merger Agreement, if the sale of Mercury to HP is not completed,we could be required to pay HP a termination fee of $170.0 million in certain circumstances.

In the future, we expect cash will continue to be generated from our operations. For the year ending December 31, 2006, we expect to spend approximately$7.0 to $8.0 million on our customer management database and operational and financial reporting system that we purchased in December 2004. Also, we arenamed as a party to several class action and derivative action lawsuits arising from the Special Committee investigation and the SEC investigation. Anunfavorable outcome in such litigation could result in significant legal expenses. We have provided information relating to findings with tax implications of thestock option matters to the Internal Revenue Service, and are presently discussing possible settlement terms. In addition, on September 28, 2006, we announcedthat we had proposed a settlement to the staff of the SEC, which the staff has agreed to recommend to the SEC, to conclude for us the matters arising from theformal SEC investigation. We have proposed to pay a $35.0 million civil penalty and to consent to the entry of a final judgment by a federal court permanentlyenjoining the Company from violations of the antifraud and other provisions of the federal securities laws. The proposed settlement is contingent on the reviewand approval of final documentation by us and the staff of the SEC, and is subject to final approval by the SEC. We have expensed the amount as “Costs ofrestatement and related legal activities” in our consolidated statement of operations against “accrued and other liabilities” in our consolidated balance sheets forthe year ended December 31, 2005. As provided in the Merger Agreement with us, Hewlett−Packard has consented to the settlement offer and will also berequired to approve the final settlement documentation. We continue to cooperate with the SEC and other government agencies regarding this matter. There canbe no assurance that our efforts to resolve the SEC’s investigation with respect to the Company will be successful, or that the amount reserved will be sufficient,and we cannot predict the timing or the final terms of any settlement. We do not expect the level of cash used to acquire property and equipment in 2006 tochange significantly from 2005. We currently plan to reinvest our cash generated from operations in new short and long−term investments in high qualityfinancial, government, and corporate securities or other investments, consistent with past investment practices, and therefore net cash used in investing activitiesmay increase. Cash could be used in the future for acquisitions or strategic investments. Cash could also be used to repurchase additional shares of our commonstock or retire or redeem additional debt. For example, since the inception of the stock repurchase program on July 27, 2004 and through December 31, 2005,cash used to repurchase our common stock was $332.2 million.

Assuming there is no significant change in our business, we believe our current cash and investment balances and cash flow from operations will besufficient to fund our cash needs for at least the next twelve months.

Subsequent Events

For more information regarding events occurring after December 31, 2005, please refer to Note 18, “Subsequent Events” of the Notes to ConsolidatedFinancial Statements.

Critical Accounting Policies and Estimates

The methods, estimates, and judgments we use in applying our most critical accounting policies have a significant effect on the financial condition andresults of operations we report in our consolidated financial statements. The U.S. Securities and Exchange Commission has defined the most critical accountingpolicies as

60


Table of Contentsthe ones that are most important to the portrayal of our financial condition and results of operations, and require us to make our most difficult and subjectivejudgments, often as a result of the need to make estimates of matters that are inherently uncertain.

Our critical accounting policies are as follows:

• revenue recognition;

• estimating valuation allowances and accrued and other liabilities;

• accounting for sales commissions and deferred commissions;

• accounting for stock−based compensation;

• valuation of long−lived assets and other intangible assets;

• valuation of goodwill;

• accounting for income taxes; and

• accounting for investments in non−consolidated companies.

We also have other significant accounting policies. We believe that these other policies either do not generally require us to make estimates and judgmentsthat are as difficult or as subjective, or it is less likely that they would have a material effect on our reported financial condition or results of operations for agiven period. See Note 1 to the consolidated financial statements for the significant accounting policies used in the preparation of our consolidated financialstatements.

Revenue recognition

Our revenue recognition policy is detailed in Note 1 to the consolidated financial statements. We have made significant judgments related to revenuerecognition; specifically, in connection with each transaction involving our arrangements, we must evaluate whether our fee is “fixed or determinable” and wemust assess whether “collectibility is probable”. These judgments are discussed below.

Fee is fixed or determinable

With respect to each arrangement, we must determine whether the arrangement fee is fixed or determinable. If the fee is fixed or determinable, and allother revenue recognition criteria have been met, revenue is recognized upon delivery of software or over the period of arrangements with our customers. If thefee is not fixed or determinable, the revenue recognized in each quarter, subject to application of other revenue recognition criteria, will be the lesser of theaggregate of amounts due and payable or the amount of the arrangement fee that would have been recognized if the fees had been fixed or determinable based onour revenue recognition policy.

A determination of whether an arrangement fee is fixed or determinable also depends, in part, upon the payment terms relating to such an arrangement.Extended payment terms may indicate that future concessions are likely to occur. Our customary payment terms are generally within 30−60 days of the invoicedate. Arrangements with payment terms extending beyond our customary payment terms are generally considered not to be fixed or determinable. Additionally,provisions for rebates, price protection and similar items may result in arrangement fees that are not fixed or determinable. A determination of whether anarrangement fee is fixed or determinable is particularly relevant to revenue recognition on perpetual licenses. The amount and timing of our revenue recognizedin any period may differ materially if we make different judgments.

Collectibility is probable


In order to recognize revenue, we must make a judgment regarding collectibility of the arrangement fee. Our judgment of collectibility is applied on acustomer−by−customer basis. We generally sell to customers for which

61


Table of Contentswe have a history of successful collection. The amount and timing of revenue recognized in any period may differ materially if we make different judgments.

Estimating valuation allowances and accrued and other liabilities

The preparation of financial statements requires us to make estimates and assumptions that affect the reported amount of assets and disclosures ofcontingent assets and liabilities at the date of the financial statements and the reported amounts of revenue and expenses during the reported period. Use ofestimates and assumptions include, but are not limited to deferred commissions and sales reserve.

We are required to make significant judgments and estimates in conjunction with recording deferred commissions on our consolidated balance sheets,specifically as it relates to associated revenues that will be recognized in future periods. Future revenues and timing of revenue recognition may varysignificantly from period to period based on the application of the appropriate revenue recognition criteria. As a result, we are required to use estimates thatinclude, but are not limited to, the composition of future revenues and timing of revenue recognition, which if changed could affect the timing and recognition ofsales commissions as an expense in our consolidated statements of operations. Sales commissions are paid to employees in the month after we receive an order.Sales commissions are calculated as a percentage of the sales value of a signed contract or a customer signed purchase order. Deferred commissions arerealizable through the future revenue streams under the customer contracts. Material differences may result in the amount and timing of our sales commissionsexpense recognized for any period if we make different estimates related to future revenue and timing of revenue recognition.

We must make estimates of potential future credits, warranty cost of product and services, and write−offs of bad debts related to current period productrevenues. We analyze historical returns, historical bad debts, current economic trends, average deal size, changes in customer demand, and acceptance of ourproducts when evaluating the adequacy of the sales reserve. Revenue for the period is reduced to reflect the sales reserve provision. As a percentage of currentperiod revenues, charges against the sales reserve were insignificant in the years ended December 31, 2005, 2004, and 2003. Significant management judgmentsand estimates are made and used in connection with establishing the sales reserve in any reporting period. Material differences may result in the amount andtiming of our revenues for any period if we make different judgments or use different estimates. At December 31, 2005 and 2004, the provision for sales reservewas $7.0 million and $5.2 million, respectively.

Accounting for sales commissions and deferred commissions

Sales commissions are paid to employees in the month after we receive an order. We sell our products under non−cancelable perpetual, subscription, orterm contracts. Sales commissions are calculated as a percentage of the sales value of a signed contract or a customer signed purchase order. Sales commissionrates vary by position, title, and the extent to which employees achieve rate accelerators by exceeding their quotas. Our policy is that sales commissions paid toemployees are refundable to us when we are required to write off a customer accounts receivable because management has determined it has becomeuncollectible or in instances in which revenue may no longer be recognized.

Deferred commissions are incremental costs that are directly associated with non−cancelable subscription and term contracts with customers and consist ofsales commissions paid to our sales employees. Deferred commissions are recognized over the term of the related customer contracts. Deferred commissions arerealizable through the future revenue streams under the customer contracts. Recognition of deferred commissions is included in marketing and selling expense inthe consolidated statements of operations. Deferred commissions are included in other current assets and other non−current assets on the consolidated balancesheets based on the expected recognition period of such amounts.

62


Table of ContentsAt December 31, 2005, current and non−current deferred commissions were $26.1 million and $5.9 million, respectively. At December 31, 2004, current

and non−current deferred commissions were $23.1 million and $8.7 million, respectively.

Accounting for stock−based compensation

We account for stock−based compensation for options granted to our employees and members of our Board of Directors using Accounting PrinciplesBoard (APB) Statement No. 25, Accounting for Stock Issued to Employees, and related interpretations, including Financial Accounting Standard BoardInterpretation (FIN) No. 44, Accounting for Certain Transactions Involving Stock Compensation, An Interpretation of APB Opinion No. 25, and comply with thedisclosure provisions of SFAS No. 123, Accounting for Stock−Based Compensation, as amended by SFAS No. 148, Accounting for Stock−BasedCompensation—Transition and Disclosure Amendment of SFAS No. 123.

Under APB No. 25, compensation expense is measured as of the date on which the number of shares and exercise price become fixed. Generally, thisoccurs on the grant date, in which case the stock option is accounted for as a fixed award as of the date of grant. If the number of shares or exercise price is notfixed as of the grant date, the stock option is accounted for as a variable award until such time as the number of shares and/or exercise price becomes fixed, or thestock option is exercised, is cancelled or expires.

Compensation expense associated with fixed awards is measured as the difference between the fair market value of our stock on the date of grant and thegrant recipient’s exercise price, which is the intrinsic value of the award on that date. No compensation expense is recognized if the grant recipient’s exerciseprice equals the fair market value of our common stock on the date of grant. Stock compensation expense is recognized over the vesting period using the ratablemethod, whereby an equal amount of expense is recognized for each year of vesting.

Promissory notes used in the past to exercise stock options are non−recourse in nature, and therefore we account for such transactions in accordance withEmerging Issues Task Force Consensus No. 95−16, “Accounting for Stock Compensation Arrangements with Employer Loan Features Under APB OpinionNo. 25” (EITF 95−16) and FIN No. 44. The promissory notes are interest bearing and the accrued interest on promissory notes is included in “Notes receivablefrom issuance of common stock” on the consolidated balance sheets. Our determination that the promissory notes are non−recourse was based on a series offactors that, when assessed collectively, indicated the promissory note holders were not at risk, despite the recourse provisions of the notes. These factorsincluded, among other things: such loans were collateralized by the stock issued, loan interest in numerous circumstances was forgiven, and repurchase of sharesby us in instances in which the value of the stock pledged as security for the loan was less than the loan amount upon maturity of the note or the note holder’stermination of employment. Since interest associated with non−recourse promissory notes is considered part of the option’s exercise price, and our promissorynotes were subject to prepayment, the exercise prices of the awards were not fixed. Accordingly, stock options exercisable or exercised with non−recoursepromissory notes are subject to variable accounting under APB No. 25. Additionally, certain stock options for which evidence of authorization could not belocated are being accounted for as variable awards.

For variable awards, the intrinsic value of our stock options is remeasured each period based on the difference between the fair market value of our stockas of the end of the reporting period and the grant recipient’s exercise price. As a result, the amount of compensation expense or benefit to be recognized eachperiod fluctuates based on changes in our closing stock price from the end of the previous reporting period to the end of the current reporting period.Compensation expense in any given period is calculated as the difference between total earned compensation at the end of the period, less total earnedcompensation at the beginning of the period. Compensation expense for these awards is recognized over the vesting period using an accelerated method ofrecognition in accordance with FIN No. 28, Accounting for Stock Appreciation Rights and Other Variable Stock Option or Award Plan, An Interpretation ofAPB Opinions No. 15 and 25. Variable accounting is

63


Table of Contentsapplied until there is a measurement date, the award is exercised, forfeited or expires, or the related note is repaid.

We account for modifications to stock options under FIN No. 44, which was effective July 1, 2000. Modifications include, but are not limited to,acceleration of vesting, extension of the exercise period following termination of employment and/or continued vesting while not providing substantive services.Compensation expense is recorded in the period of modification for the intrinsic value of the vested portion of the award, including vesting that occurs while notproviding substantive services, on the date of modification. The intrinsic value of the award is the difference between the fair market value of our common stockon the date of modification and the optionee’s exercise price.

We account for stock options issued to non−employees in accordance with the provisions of SFAS No. 123 and EITF No. 96−18, Accounting for EquityInstruments That Are Issued to Other Than Employees for Acquiring, or in Conjunction with Selling, Goods or Services. In accordance with these accountingstandards, the fair value of stock options issued to non−employees is determined on the date of grant using the Black−Scholes option pricing model. If aperformance commitment exists, the fair value of the award is amortized to compensation expense over the service period using the ratable method. Aperformance commitment exists if performance by the counterparty to earn the equity instruments is probable because of sufficiently large disincentives fornonperformance, provided the Company has no history of not enforcing such terms. If a performance commitment does not exist, a measurement date does notoccur until performance is complete. In these instances, the fair value of the award is remeasured each period and compensation expense is recognized over theservice period using the accelerated method of amortization in accordance with FIN No. 28.

We value stock options assumed in conjunction with business combinations accounted for using the purchase method at fair value on the date ofacquisition using the Black−Scholes option pricing model, in accordance with FIN No. 44. The fair value of assumed options is included as a component of thepurchase price. The intrinsic value of unvested stock options is recorded as unearned stock−based compensation and amortized to expense over the remainingvesting period of the stock options using the straight−line method.

SFAS No. 123 established a fair value based method of accounting for stock−based plans. Companies that elect to account for stock−based compensationplans in accordance with APB No. 25 are required to disclose the pro forma net income (loss) that would have resulted from the use of the fair value basedmethod under SFAS No. 123.

We account for our ESPP in accordance with APB No. 25, SFAS No. 123 and FASB Technical Bulletins No. 97−1 (FTB 97−1), Accounting UnderStatement 123 for Certain Employee Stock Purchase Plans with Look−Back Option. We calculate stock−based compensation expense under the fair value basedmethod for shares issued pursuant to our 1998 ESPP based on an estimate of shares to be issued using estimated employee contributions.

Valuation of long−lived assets and other intangible assets (other than goodwill)

We assess the impairment of long−lived assets and certain identifiable intangible assets to be held and used whenever events or changes in circumstancesindicate that the carrying value may not be recoverable. Factors we consider important which could trigger an impairment review include the following:

• a significant decrease in the market price of a long−lived asset (asset group);

• a significant adverse change in the extent or manner in which a long−lived asset (asset group) is being used or in its physical condition;

• a significant adverse change in legal factors or in the business climate that could affect the value of a long−lived asset (asset group), including anadverse action or assessment by a regulator;

64


Table of Contents

• an accumulation of costs significantly in excess of the amount originally expected for the acquisition or construction of a long−lived asset (assetgroup);

• a current−period operating or cash flow loss combined with a history of operating or cash flow losses or a projection or forecast that demonstratescontinuing losses associated with the use of a long−lived asset (asset group); and

• a current expectation that, more likely than not, a long−lived asset (asset group) will be sold or otherwise disposed of significantly before the end ofits previously estimated useful life.

We determine the recoverability of long−lived assets and certain identifiable intangible assets based on an estimate of undiscounted future cash flowsresulting from the use of the asset and eventual disposition. Such estimation process is highly subjective and involves significant management judgment.Determination of impairment loss for long−lived assets and certain identifiable intangible assets that management expects to hold and use is based on the fairvalue of the asset. Long−lived assets and certain identifiable intangible assets to be disposed of are reported at the lower of carrying amount or fair value lesscosts to sell. During the year ended December 31, 2005, we wrote−off prepaid royalties of $15.4 million paid to Motive in conjunction with a technology licenseagreement as a result of our decision to discontinue development of technology we licensed from Motive. We also recorded an impairment expense of $0.6million to write−off the carrying value of technology acquired from Allerez. During the year ended December 31, 2004, we recorded an impairment expense of$6.7 million associated with a vacant building we owned that had been placed for sale. During the year ended December 31, 2003, we recorded an impairmentexpense of $16.9 million associated with two vacant buildings we owned. If our estimates or related assumptions change in the future, we may be required torecord an impairment expense on long−lived assets and certain intangible assets to reduce the carrying amount of these assets. Net intangible assets and propertyand equipment were $105.6 million and $116.7 million as of December 31, 2005 and 2004, respectively.

Valuation of goodwill

We assess the impairment of goodwill on an annual basis, and potentially more frequently if events or changes in circumstances indicate that the carryingvalue may not be recoverable. Factors we consider important which could trigger an impairment review include the following:

• significant underperformance relative to expected historical or projected future results of operations;

• significant changes in the manner of our use of the acquired assets or the strategy for our overall business;

• significant negative industry or economic trends;

• significant decline in our stock price for a sustained period; and

• our market capitalization relative to net book value.

When we determine that the carrying value of goodwill may not be recoverable based upon the existence of one or more of the above indicators ofimpairment, we further determine if an impairment exists based on projected discounted cash flow in accordance with SFAS No. 142, Goodwill and OtherIntangible Assets. We performed an annual impairment review in the fourth quarters of 2005, 2004, and 2003, and we did not record an impairment expensebased on our reviews. If our estimates or related assumptions change in the future, we may be required to record an impairment expense to reduce the carryingamount of goodwill to its estimated fair value.

Accounting for income taxes

As part of the process of preparing our consolidated financial statements, we are required to estimate our income tax expense in each of the jurisdictions inwhich we operate. This process involves estimating our actual

65


Table of Contentscurrent tax exposure together with assessing temporary differences resulting from differing treatment of items, such as deferred revenue, for tax and accountingpurposes. These differences result in deferred tax assets and liabilities, which are recorded in our consolidated balance sheets and presented in the related notesthereto. We must then assess the likelihood that our deferred tax assets will be recovered from future taxable income and, to the extent we believe that recovery isnot likely, we must establish a valuation allowance. To the extent we establish a valuation allowance or increase this allowance in a period, we must include anexpense within the tax provision in the statement of operations. In addition, to the extent that we are unable to continue to reinvest a substantial portion of ourprofits in our Israeli operations, we may be subject to additional tax rate increases in the future. Our taxes could increase if these tax rate incentives are notrenewed upon expiration, tax rates applicable to us are increased, authorities challenge our tax strategy, or our tax strategy is affected by new laws or rulings. Tothe extent we are able to continue to reinvest a substantial portion of our profits in lower tax jurisdictions, our tax rate may decrease in the future.

Significant management judgment is required in determining our provision for income taxes, our deferred tax assets and liabilities, and any valuationallowance recorded against our net deferred tax assets. We have recorded a valuation allowance for a substantial portion of our net operating losses related to theincome tax benefits arising from the exercise of employees’ stock options. In the event actual results differ from these estimates, or we adjust these estimates infuture periods, we may need to establish an additional valuation allowance, which could material affect our financial position and results of operations. If thesenet operating losses are ultimately recognized, the portion of these losses attributable to excess tax benefits arising from non−compensatory stock options will beaccounted for as a credit to stockholders’ equity rather than as a reduction of income tax expense, and the portion attributable to vested non−compensatory sharesof acquired companies will be accounted for as a credit to goodwill rather than as a reduction of income tax expense.

Accounting for investments in non−consolidated companies

From time to time, we hold equity investments in publicly traded companies, privately−held companies, and private equity funds for business and strategicpurposes. These investments are accounted for under the cost method, as we do not have the ability to exercise significant influence over these companies’operations. We periodically monitor our equity investments for impairment and will record reductions in carrying values if and when necessary. For equityinvestments in privately−held companies and private equity funds, our evaluation process is based on information we request from these companies and funds.This information is not subject to the same disclosure regulations as U.S. public companies, and as such, the basis for these evaluations is subject to the timingand accuracy of the data received from these companies and funds. As part of this evaluation process, our review includes, but is not limited to, a review of eachcompany’s cash position, recent financing activities, financing needs, earnings/revenue outlook, operational performance, management/ownership changes, andcompetition. If we determine that the carrying value of an investment is at an amount above fair value, or if a company has completed a financing with unrelatedthird party investors based on a valuation significantly lower than the carrying value of our investment, and the decline is other−than−temporary, it is our policyto record a loss in our consolidated statements of operations. Estimating the fair value of non−marketable equity investments in companies is inherentlysubjective and may contribute to significant volatility in our reported results of operations.

For equity investments in publicly traded companies, we record a loss on investment in our consolidated statements of operations when we determine adecline in fair value below our carrying value is other−than−temporary. The ultimate value realized on these equity investments is subject to market pricevolatility until they are sold. As part of this evaluation process, our review includes, but is not limited to, a review of each company’s cash position,earnings/revenue outlook, operational performance, management/ownership changes, competition, and stock price performance. Our on−going review may resultin additional impairment expenses in the future which could significantly affect our results of operations.

At December 31, 2005, our equity investments in non−consolidated companies consisted of investments in privately−held companies of $4.1 million, aprivate equity fund of $8.4 million and a warrant to purchase

66


Table of Contentscommon stock of Motive of less than $0.1 million. At December 31, 2005, our total capital contributions to the private equity fund were $10.9 million. We havecommitted to make additional capital contributions up to $4.1 million in the future. If the companies in which we have made investments do not complete initialpublic offerings or are not acquired by publicly traded companies, we may not be able to sell these investments. In addition, even if we are able to sell theseinvestments, we cannot be assured that we will be able to sell them at a gain or even recover our investment. A decline in the U.S. stock market and the marketprices of publicly traded technology companies will adversely affect our ability to realize gains or a return of our capital on many of these investments. For theyear ended December 31, 2005, we recorded a gain of $0.3 million on our investment in the private equity fund and a loss of $0.8 million related to a change infair value of our Motive warrant. For the year ended December 31, 2004, we recorded losses of $1.1 million on our investments in privately−held companies andon our investment in the private equity fund. The loss was partially offset by an unrealized gain of $0.5 million related to a change in fair value of our Motivewarrant. For the year ended December 31, 2003, we recorded losses of $2.4 million, $0.6 million and $0.5 million on three of our investments in privately−heldcompanies and a loss of $0.4 million on our investment in the private equity fund. The losses on our investments in privately−held companies and private equityfund for the year ended December 31, 2003 were partially offset by an unrealized gain of $0.4 million for the initial fair value of our Motive warrant. Indetermining losses on our investments, we considered the latest valuation of each of the companies based on recent sales of equity securities to unrelated thirdparty investors and whether the companies have sufficient funds and financing to continue as a going concern for at least twelve months.

The Motive warrant is treated as a derivative instrument due to a net settlement provision and is recorded at its fair value each reporting period. Wecalculate the fair value of our Motive warrant using the Black−Scholes option−pricing model. The option−pricing model requires the input of highly subjectiveassumptions such as the expected stock price volatility. In June 2004, Motive completed an initial public offering and is listed in the U.S. stock market. A declinein the U.S. stock market and the market price of Motive’s common stock could contribute to volatility in our reported results of operations.

Recent Accounting Pronouncements

On December 15, 2004, the FASB issued SFAS No. 123R, Share−Based Payment which requires public companies to value employee stock options andstock issued under employee stock purchase plans using a fair value based method on the option grant date and record it as stock−based compensation expense.Fair value based models, such as the Black−Scholes option−pricing model, require the input of highly subjective assumptions. Assumptions used under theBlack−Scholes option−pricing model that are highly subjective include expected stock price volatility and expected life of an option. On March 29, 2005, theSEC staff issued Staff Accounting Bulletin (SAB) No. 107 to provide further guidance on the valuation models, expected volatility, expected option term,income tax effects, classification of stock−based compensation costs, capitalization of compensation costs, and disclosure requirements. We currently use theBlack−Scholes option−pricing model to calculate the pro forma effect on net income and net income per share if we had applied SFAS No. 123 to employeeoption grants. (See Note 1 to our Consolidated Financial Statements for the disclosure of the pro forma information for the years ended December 31, 2005,2004, and 2003, if we had applied SFAS No. 123.) However, the actual effect on our results of operations upon adoption of the new standard could besignificantly different from the pro forma information included in Note 1 to our Consolidated Financial Statements due to variations in estimates and assumptionsused in the calculation. The effective date of SFAS No. 123R is for fiscal years beginning after June 15, 2005. SFAS No. 123R is effective on January 1, 2006.Due to the resources required to complete our restatement and become current with our SEC filings, we have not yet implemented SFAS No. 123R and areunable to estimate the effect this adoption will have on our results of operations. However, we expect the adoption of SFAS No. 123R to have a significant effecton our results of operations.

In March 2005, FASB issued FIN No. 47, Accounting for Conditional Asset Retirement Obligations (FIN No. 47). FIN No. 47 clarifies that a companyshould record a liability for a conditional asset retirement obligation when incurred if the fair value of the obligation can be reasonably estimated. Thisinterpretation further clarified

67


Table of Contentsconditional asset retirement obligation, as used in SFAS No. 143, Accounting for Asset Retirement Obligations, as a legal obligation to perform an assetretirement activity in which the timing and/or method of settlement are conditional on a future event that may or may not be within the control of the entity. FINNo. 47 is effective for companies no later than the end of their fiscal year ending after December 15, 2005. The adoption of FIN No. 47 did not have an effect onour financial position and results of operations.

In May 2005, the FASB issued SFAS No. 154, Accounting Changes and Error Corrections, a Replacement of APB No. 20 and FASB Statement No. 3.SFAS No. 154 changes the accounting and reporting requirements for a change in accounting principle that is either a voluntary change or as required by a newlyissued accounting pronouncement which does not include an explicit transition requirement. In accordance with SFAS No. 154, a change in accounting principleshould be reported through retrospective application to all prior periods. SFAS No. 154 also re−defines “restatement” as the revising of previously issuedfinancial statements to reflect the correction of an error. SFAS No. 154 does not change the current reporting requirement for correction of an error. A correctionof an error to previously issued financial statements should be reported as a prior period adjustment by restating the prior periods’ financial statements. SFASNo. 154 also provides guidance for determining whether retrospective application is impracticable and for reporting a change when retrospective application isimpracticable. SFAS No. 154 further clarifies the reporting requirement for a change in depreciation, amortization, or depletion method for long−lived assets,which should be accounted for as a change in accounting estimate in the period of change and/or future periods. SFAS No. 154 is effective for accountingchanges and corrections of errors made in fiscal years beginning after December 15, 2005. Early adoption is permitted. We do not expect the adoption of SFASNo. 154 to have a significant effect on our financial position or results of operations.

In June 2005, the EITF reached a consensus on EITF No. 05−02, The Meaning of Conventional Convertible Debt Instrument. EITF No. 05−02 providesthe definition of “conventional convertible debt instrument” for applying the exception provision in EITF No. 00−19, Accounting for Derivative FinancialInstruments Indexed to, and Potentially Settled in, a Company’s Own Stock. Under EITF No. 05−02, a conventional convertible debt includes, but is not limitedto, an instrument that provides the holder with an option to convert into a fixed number of shares (or equivalent amount of cash at the discretion of the issuer) forwhich the ability to exercise the option is based on the passage of time or a contingent event. EITF No. 05−02 is applicable to new instruments entered into andinstruments modified in periods beginning after June 29, 2005. The adoption of EITF No. 05−02 did not have a significant effect on our financial position orresults of operations.

In November 2005, the FASB issued Staff Position, or FSP, SFAS No. 115−1 and SFAS No. 124−1, The Meaning of Other−Than−Temporary Impairmentand Its Application to Certain Investments, which provides guidance on determining when investments in certain debt and equity securities are consideredimpaired, whether that impairment is other−than−temporary, and on measuring such impairment loss. FSP SFAS No. 115−1 also includes accountingconsiderations subsequent to the recognition of an other−than−temporary impairment and requires certain disclosures about unrealized losses that have not beenrecognized as other−than−temporary impairments. FSP SFAS No. 115−1 is required to be applied to reporting periods beginning after December 15, 2005. Weare currently evaluating the effect that the adoption of FSP SFAS No. 115−1 will have on our consolidated results of operations and financial condition, but donot expect it to have a material effect.

In November 2005, the FASB issued FSP SFAS 123R−3, “Transition Election Related to Accounting for the Tax Effects of Share−Based PaymentsAwards”. The alternative transition method includes simplified methods to establish the beginning balance of the additional paid−in capital pool, or the APICpool, related to the tax effects of employee stock−based compensation, and to determine the subsequent effect on the APIC pool and Consolidated Statements ofCash Flows of the tax effects of employee stock−based compensation awards that are outstanding upon adoption of SFAS No. 123R. We are currently evaluatingthe impact upon adoption of FSP SFAS No. 123R−3 and therefore are unable to estimate the effect on our overall results of the operations or financial position.

68


Table of ContentsIn July 2006, the FASB issued FIN No. 48, Accounting for Uncertainty in Income Taxes, an interpretation of FASB Statement No. 109. FIN No. 48

clarifies the accounting and reporting for uncertainties in income tax law. FIN No. 48 prescribes a comprehensive model for the financial statement recognition,measurement, presentation, and disclosure of uncertain tax positions taken or expected to be taken in income tax returns. FIN No. 48 is effective for fiscal yearsbeginning after December 15, 2006. We are currently in the process of evaluating the effect of FIN 48 on our financial position and results of operations andtherefore, are unable to estimate the effect on our overall results of operations or financial position.

In September 2006, the SEC Staff issued Staff Accounting Bulletin (SAB) No. 108, Considering the Effects of Prior Year Misstatements whenQuantifying Misstatements in Current Year Financial Statements, which addresses how the effects of prior−year uncorrected misstatements should be consideredwhen quantifying misstatements in current−year financial statements. The difference in approaches for quantifying the amount of misstatements primarily resultsfrom the effects of misstatements that were not corrected at the end of the prior year (prior year misstatements). SAB No. 108 will require companies to quantifymisstatements using both the balance sheet and income−statement approaches and to evaluate whether either approach results in quantifying an error that ismaterial in light of relevant quantitative and qualitative factors. When the effect of initial adoption is determined to be material, SAB No. 108 allows companiesto record that effect as a cumulative effect adjustment to beginning−of−year retained earnings. The requirements are effective for reporting periods ending afterNovember 15, 2006. We are currently in the process of evaluating the effect of SAB No. 108 on our financial position and results of operations and therefore, areunable to estimate the effect on our overall results of operations or financial position.

In September 2006, the FASB issued SFAS No. 157, Fair Value Measurements which defines fair value, establishes a framework for measuring fair valuein generally accepted accounting principles (GAAP), and expands disclosures about fair value measurements. Where applicable, SFAS No. 157 simplifies andcodifies related guidance within GAAP and does not require any new fair value measurements. SFAS No. 157 is effective for financial statements issued forfiscal years beginning after November 15, 2007, and interim periods within those fiscal years. Earlier adoption is encouraged. We do not expect the adoption ofSFAS No. 157 to have a significant effect on our financial position or results of operation.

69


Table of Contents Item 7A. Quantitative and Qualitative Disclosures About Market Risk

Our exposure to market rate risk includes risk of changes in interest rates, foreign exchange rate fluctuations, and loss in equity investments.

Interest Rate Risk:

We mitigate market risk associated with our investments by placing our investments with high quality issuers and, by policy, limit the amount of creditexposure to any one issuer or issue. We have classified all of our investments in debt securities as either held to maturity or available−for−sale. Marketableequity securities are classified as short−term investments. At December 31, 2005, we did not hold any marketable equity securities. At December 31, 2005,$873.1 million, or 62.7% of our cash, cash equivalents, and investment portfolio, had maturities of less than 90 days, and an additional $240.4 million, or 17.3%of our cash, cash equivalents, and cash investments portfolio, had maturities of less than one year. All debt securities classified as held−to−maturity investmentsmature in less than three years as required by our policy. From time to time, we also invest in auction rate securities, which we classify as available−for−saleinvestments. Information about our investment portfolio in debt securities is presented in the table below which states notional amounts and the relatedweighted−average interest rates. Amounts represent maturities from December 31, 2005 to the dates shown below for each of the twelve−month periods (inthousands, except percentages):

December 31,2006 2007 Total Fair Value

Investments maturing within 30 days at December 31, 2005:Fixed rate $ 621,587 $ — $ 621,587 $ 621,558Weighted average rate 4.25% — 4.25% —

Investments maturing more than 30 days after December 31, 2005:Fixed rate $ 354,205 $ 280,066 $ 634,271 $ 628,375Weighted average rate 3.31% 3.15% 3.24% —

Restricted InvestmentsFixed rate (1) $ — $ 7,521 $ 7,521 $ 7,400Weighted average rate — 3.01% 3.01% —

Total investments $ 975,792 $ 287,587 $1,263,379 $1,257,333Weighted average rate 3.91% 3.15% 3.74% —

(1) In May 2006, we terminated our $300.0 million receive fixed/pay floating interest rate swap. Due to the termination of the swap, we no longer hold collateral for the swap as a restrictedlong−term investment.

Our short−term and long−term investments include $505.3 million of government agency instruments, which have callable provisions and accordinglymay be redeemed by the agencies should interest rates fall below the coupon rate of the investments.

The fair value of our 2000 Notes fluctuates based upon changes in the price of our common stock, changes in interest rates, and changes in ourcreditworthiness. The fair market value of our 2000 Notes at December 31, 2005 was $279.0 million and the face value and carrying value were $300.0 millionand $297.3 million, respectively. To mitigate the risk of fluctuation in the fair value of our 2000 Notes, we entered into an interest rate swap arrangement. Thefair value of our 2003 Notes fluctuates based upon changes in the price of our common stock and changes in our creditworthiness. The fair market value of the2003 Notes at December 31, 2005 was $503.8 million and the face value and the carrying value were $500.0 million. See Note 7 to the consolidated financialstatements for transactions regarding our 2000 Notes and 2003 Notes.

In January and February, 2002, we entered into two interest rate swaps with respect to $300.0 million of our 2000 Notes. In November 2002, we mergedthe two interest rate swaps with GSCM into a single interest rate

70


Table of Contentsswap with GSCM to improve the overall effectiveness of our interest rate swap arrangement. The November interest rate swap of $300.0 million, with a maturitydate of July 2007, is designated as an effective hedge of the change in the fair value attributable to the LIBOR of our 2000 Notes. The objective of the swap is toconvert the 4.75% fixed interest rate on the 2000 Notes to a variable interest rate based on the 3−month LIBOR plus 48.5 basis points. The gain or loss fromchanges in the fair value of the interest rate swap is expected to be highly effective at offsetting the gain or loss from changes in the fair value attributable tochanges in the LIBOR throughout the life of the 2000 Notes. The interest rate swap creates a market exposure to changes in the LIBOR. If the LIBOR increasesor decreases by 1%, our interest expense would increase or decrease by $0.8 million quarterly on a pre−tax basis.

The value of our interest rate swap is determined using various inputs, including forward interest rates and time to maturity. Under the terms of the swap,we provided initial collateral in the form of cash or cash equivalents to GSCM in the amount of $6.0 million as continuing security for our obligations under theswap (regardless of movements in the value of the swap) and from time to time additional collateral can change hands between Mercury and GSCM as swaprates and equity prices fluctuate. In May 2005, we substituted the collateral held in the form of cash with a fixed income security. The security was previouslypurchased and held as a long−term, held−to−maturity investment and is included in “Long−term investments” in our consolidated balance sheets. In October2005, as the market value of the swap continued to decline, we provided additional collateral of $1.3 million in fixed income securities for our obligations underour interest rate swap agreement at the request of GSCM. Our interest rate swap of $4.8 million was recorded as an asset in our consolidated balance sheets as ofDecember 31, 2004; however, due to the volatility of interest rates, the value of the swap became a liability of $2.3 million as of December 31, 2005. On May 22,2006, we terminated the swap before its maturity. As a result, we made a cash payment to GSCM of approximately $0.4 million. See Note 18 to the Notes toConsolidated Financial Statements for further discussion.

We will classify any additional collateral as “Long−term investments” in our consolidated balance sheets. If the price of our common stock exceeds theoriginal conversion or redemption price of the 2000 Notes, we will be required to pay the fixed rate of 4.75% and receive a variable rate on the $300.0 millionprincipal amount of the 2000 Notes. If we call the 2000 Notes at a premium (in whole or in part), or if any of the holders of the 2000 Notes elected to convert the2000 Notes (in whole or in part), we will be required to pay a variable rate and receive the fixed rate of 4.75% on the principal amount of such called orconverted our 2000 Notes. We are exposed to credit exposure with respect to GSCM as counterparty under the swap. However, we believe that the risk of suchcredit exposure is limited because GSCM is an affiliate of a major U.S. investment bank and because its obligations under the swap are guaranteed by theGoldman Sachs Group L.P.

See Notes 7, 13 and 18 to the Notes to Consolidated Financial Statements for additional information regarding our 2000 Notes and the related interest rateswap activities.

Foreign exchange rate risk

A portion of our business is conducted in currencies other than the U.S. dollar. Our operating expenses in each of these countries are in the localcurrencies, which mitigates a significant portion of the exposure related to local currency revenue. We enter into foreign exchange forward contracts to minimizethe short−term effect of foreign currency fluctuations on foreign currency denominated intercompany balances attributable to subsidiaries and foreign offices inthe Americas; Europe, the Middle East, and Africa (EMEA); Asia Pacific (APAC); and Japan. As of December 31, 2005, the Americas included Brazil, Canada,Mexico, and the United States of America; EMEA included Austria, Belgium, Denmark, Finland, France, Germany, Holland, Israel, Italy, Luxembourg, Norway,Poland, South Africa, Spain, Sweden, Switzerland, and the United Kingdom; and APAC included Australia, China, Hong Kong, India, Korea, and Singapore. Wehad outstanding forward exchange contracts to buy various foreign currencies with notional amounts of $3.7 million and $8.9 million at December 31, 2005 and2004, respectively, and to sell various foreign currencies with notional amounts of $60.2 million and $40.1 million at December 31, 2005 and 2004, respectively.The forward contracts in effect at

71


Table of ContentsDecember 31, 2005 matured on January 23, 2006 and were fair value hedges of certain foreign currency exposures in the Australian Dollar, British Pound,Danish Kroner, Euro, Indian Rupee, Japanese Yen, Korean Won, Norwegian Kroner, Polish Zlotych, South African Rand, Swedish Kroner, and Swiss Franc.

We also utilize forward exchange contracts of one fiscal−month duration to offset various non−functional currency exposures. Currencies hedged underthis fair value hedge program include the Canadian Dollar, Hong Kong Dollar, Israeli Shekel, and Singapore Dollar. We had outstanding forward exchangecontracts to buy various foreign currencies with notional amounts of $20.2 million and $23.7 million at December 31, 2005 and 2004, respectively, and to sellvarious foreign currencies with notional amounts of $7.6 million at December 31, 2005.

Gains or losses on forward contracts are recognized as “Other income (expense), net” in our consolidated statement of operations in the same period asgains or losses on the underlying revaluation of intercompany balances and non−functional currency balances. Net gains or losses on forward contracts and theunderlying balances did not have a material effect on our financial position. We do not believe an immediate increase of 10% in the exchange rates of the U.S.dollar to other foreign currencies would have a material effect on our results of operations or cash flows.

Investment risk

From time to time, we make equity investments in public companies, privately−held companies, and private equity funds for business and strategicpurposes. At December 31, 2005, our investments in privately−held companies and a private equity fund were $4.1 million and $8.4 million, respectively.Through December 31, 2005, we made capital contributions to the private equity fund totaling $10.9 million and we have committed to pay up to $4.1 million inthe future.

If the companies in which we have made investments do not complete initial public offerings or are not acquired by publicly traded companies, we maynot be able to sell these investments. In addition, even if we are able to sell these investments, we cannot assure that we will be able to sell them at a gain or evenrecover our investment. The decline in the U.S. stock market and the market prices of publicly traded technology companies will adversely affect our ability torealize gains or a return of our capital on our investments in these public and private companies. We have a policy to review our equity investments portfolio. Ifwe determine that the decline in value in one of our equity investments is other−than−temporary, we record a loss on investment in our consolidated statement ofoperations to write down these equity investments to the market value.

For the year ended December 31, 2005, we recorded a gain of $0.3 million on our investment in the private equity fund and an unrealized loss of $0.8million related to a change in fair value of a warrant to purchase common stock of Motive, Inc., a publicly traded company. In determining the gain or loss on ourinvestments in non−consolidated companies, we considered the latest valuation of each of the companies based on recent sales of equity securities to unrelatedthird party investors and whether the companies have sufficient funds and financing to continue as a going concern for at least twelve months.

The Motive warrant is considered a derivative instrument due to a net settlement provision and is recorded at its fair value in each reporting period. Sincethe Motive warrant is marked−to−market at each reporting date, any fluctuations in the fair value of the warrant may have an effect on our financial position andresults of operations. The fair value of the warrant was less than $0.1 million and $0.9 million as of December 31, 2005 and December 31, 2004, respectively.

Item 8. Financial Statements and Supplementary Data

Financial statements required pursuant to this Item are presented beginning on page 90 of this report.

72


Table of Contents

Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure

None.

Item 9A. Controls and Procedures

Background Findings and Restatement

In November 2004, the Company was contacted by the Securities and Exchange Commission (SEC) as part of an informal inquiry entitled In the Matter ofCertain Option Grants (SEC File No. MHO−9858). The Company voluntarily produced documents in response to this request, which was followed by anadditional document request by the SEC in April 2005. In June 2005, in the course of responding to the SEC’s inquiry, we determined that there were potentialproblems with the dating and pricing of stock option grants and with the accounting for these option grants.

Our Board of Directors promptly formed a Special Committee of disinterested directors with broad authority to investigate and address the Company’spast stock option practices. The Special Committee was composed of two disinterested members of our Board of Directors and Audit Committee, Clyde Ostlerand Brad Boston. The Special Committee retained the law firm of O’Melveny & Myers LLP as its independent outside counsel. O’Melveny & Myers LLP hiredErnst & Young LLP as independent accounting experts to aid in its investigation. In August 2005, the Special Committee concluded that the actual dates ofdetermination for certain past stock option grants differed from the originally stated grant dates for such awards. Because the prices at the originally stated grantdates were lower than the prices on the actual dates of the determination, we determined we should have recognized material amounts of stock−basedcompensation expense which were not previously accounted for in our previously issued financial statements. Therefore, our Board of Directors concluded thatour previously issued unaudited interim and audited annual consolidated financial statements for the years ended December 31, 2004, 2003 and 2002, as well asthe unaudited interim financial statements for the first quarter ended March 31, 2005, should no longer be relied upon because these financial statementscontained misstatements and would need to be restated. In October 2005, we disclosed that the SEC inquiry had been converted to a formal investigation.

On November 2, 2005, we announced that the Special Committee had made certain determinations as a result of its review of the Company’s past stockoption practices. The Special Committee found that certain stock option grants utilized a grant date, the date used to determine the strike price of the option, thatdiffered from the date on which the option appeared to have been actually granted. In almost every such instance, the price on the actual grant date was higherthan the price on the stated grant date, meaning that the misdating had the effect of permitting the recipients of the options to exercise at a strike price lower thanthe price on the actual grant date. The Special Committee found that the intentional selection of a favorable price for option grants had occurred in numerousinstances, including the vast majority of stock option grants between January 1996 and April 2002, and occurred with respect to grants to all levels of employees.The Special Committee further found that our then Chief Executive Officer Amnon Landan, Chief Financial Officer Doug Smith, and General Counsel SusanSkaer (Prior Management) were each aware of and, to varying degrees, participated in these practices. Each of them also benefited personally from the practices.Although each of these officers asserts that he or she did not focus on the fact that the practices and their related accounting were improper, the SpecialCommittee concluded that each of them knew or should have known that the practices were contrary to the option plan and proper accounting. The SpecialCommittee also found that on at least three occasions, option exercises by Company executives including Mr. Landan appear to have been reported as havingoccurred on a date that differed from the date at which the exercise actually happened. This difference in reported versus actual dates reduced the executives’taxable income significantly and exposed the Company to possible penalties for failure to pay withholding taxes. After reviewing the results of the investigation,our Board of Directors determined that it would be appropriate to accept the resignations of the Prior Management tendered on November 1, 2005.

Other findings by the Special Committee issued in this report included the following: (a) Questions should have been raised in the minds of theCompensation Committee members from 1998 to 2002 (who included

73


Table of Contentspresent directors Igal Kohavi, Yair Shamir and Giora Yaron) as to whether grants they approved were properly dated. The Special Committee also concluded thatit appears that the Compensation Committee members reasonably, but mistakenly, relied on certain former members of senior management to prepare the properdocumentation for the option grants and to account for the options properly; (b) Five instances of stock option grants for which authorizing documents were notlocated; (c) Numerous instances in which employees terminating pursuant to separation agreements (with continued stock vesting) did not perform anysignificant duties during the separation period and were employees in name only; (d) Numerous factors that contributed to the administration of the stock optionplans in a manner that was inconsistent with their terms, and the failure of the Company to identify more promptly those deviations as well as the ramifications ofthose practices; and (e) A $1.0 million loan to Mr. Landan in 1999 (which has since been repaid) lacked documentation supporting its approval by our Board ofDirectors.

In November 2005, following the resignation of Prior Management, our Board of Directors expanded the mandate of the Special Committee. Specifically,the Special Committee was requested to work in conjunction with the Company to conduct a supplemental review of the principal financial reporting controlareas of the Company and the key individuals functioning in these areas during the relevant time periods. Specifically, the purpose of the supplemental reviewwas to determine whether the work previously carried out by the Company could be relied upon with respect to matters other than the stock option relatedmatters that were the subject of the Special Committee’s initial efforts (recertification procedures). These recertification procedures identified several instances inwhich other established controls appear to have been deliberately overridden between 1997 and early 2002 to permit certain former members of seniormanagement (including our then CEO Amnon Landan and then CFO Sharlene Abrams) at times to manage or influence the timing of quarter−end shipments andinfluence the timing and level at which certain expense items and accruals were recorded to achieve a desired consistency of reported financial results. While thepractice of influencing quarter−end shipments did not result in any misstatements of reported financial results or the need for any accounting adjustment, the lackof public disclosure of this practice was improper. In addition, the recertification procedures identified what appears to have been several instances of efforts toinfluence the timing and level at which certain expense items and accruals were recorded. These activities did not result in additional adjustments to the restatedconsolidated financial statements in our Annual Report on Form 10−K/A for the year ended December 31, 2004 filed on July 3, 2006 (Form 10−K/A) becausethey occurred in periods prior to the year ended December 31, 2002 and related principally to the timing of transactions. In addition, through our recertificationprocedures we also identified certain other errors in accounting determinations and judgments relating to transactions occurring in years 2004, 2003 and 2002which, although immaterial, have been reflected in the restated consolidated financial statements contained in our Form 10−K/A for the year ended December 31,2004.

Concurrent with the supplemental review, our management, under the oversight of the Audit Committee, completed a review in order to prepare therestated consolidated financial statements which included evaluations of the previously carried out accounting and led to adjustments for: (a) stock option grantsmade to persons before they became employees; (b) stock options exercised or exercisable with promissory notes; (c) modifications of stock options foremployees in transition or advisory roles; (d) tax treatment for the disqualification of incentive stock options and conversion to non−qualified stock options;(e) stock issued in connection with our Employee Stock Purchase Plan; and (f) the assumptions, models and data used in connection with our pro formadisclosures pursuant to SFAS No. 123. The review included the evaluation of information and a number of transactions from 1994 to the present. During thecourse of completing this work, we also identified certain other errors in accounting determinations and judgments related to transactions occurring in fiscal years2004, 2003 and 2002 that, although immaterial, current management included in the restated consolidated financial statements in our Form 10−K/A for the yearended December 31, 2004.

On June 23, 2006, the SEC Staff, as part of the “Wells” process by which the SEC Staff affords individuals and companies the opportunity to present theirviews regarding potential action by the SEC, advised counsel for directors Igal Kohavi, Yair Shamir and Giora Yaron that the SEC Staff is consideringrecommending that the Commission file a civil enforcement proceeding against each of these directors under applicable provisions of the

74


Table of Contentsfederal securities laws. If charges are brought, the SEC may seek a permanent injunction against further violations of the securities laws, an order permanentlybarring these directors from serving as officers or directors of any SEC registered company, and civil monetary penalties. The charges under consideration wouldallege that each of these directors knew or should have known about the manipulation of grant dates and that each knew, or was reckless in not knowing, theimpact that option backdating would have on our financial results. The directors have filed a Wells submission arguing that they did not violate the federalsecurities laws, that they did not participate in or know of option backdating, and that the charges under consideration are legally and factually without basis.Former officers are likely to receive or have received similar Wells notices. The formal SEC investigation of the Company is continuing. In light of the Wellsnotice, the aforementioned directors have offered to withdraw from their respective positions on the applicable committees of the Company’s Board of Directors,and the Board has accepted that offer.

Disclosure Controls and Procedures

Under the supervision and with the participation of our management, including our current Chief Executive Officer (CEO) and current Chief FinancialOfficer (CFO), we conducted an evaluation of the effectiveness of our disclosure controls and procedures, as such terms are defined in Rules 13a−15(e) and15d−15(e) promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act), as of December 31, 2005, the end of the period covered bythis Annual Report on Form 10−K. Disclosure controls and procedures are designed to ensure that information required to be disclosed by us in the reports wefile or submit under the Exchange Act is recorded, processed, summarized and reported on a timely basis and that such information is accumulated andcommunicated to management, including the CEO and CFO, as appropriate, to allow timely decisions regarding required disclosure.

Our management, including our current CEO and current CFO, concluded that our disclosure controls and procedures were not effective at a reasonablelevel of assurance as of December 31, 2005 because of the material weaknesses in our internal control over financial reporting discussed below. Notwithstandingthe material weaknesses described below, our current management has concluded that the Company’s consolidated financial statements for the periods coveredby and included in this Annual Report on Form 10−K are fairly stated in all material respects in accordance with generally accepted accounting principles in theUnited States of America for each of the periods presented herein.

Management’s Report on Internal Control Over Financial Reporting

Our management is responsible for establishing and maintaining adequate internal control over financial reporting as such term is defined in Exchange ActRule 13a−15(f). Our current CEO and current CFO conducted an evaluation of the effectiveness of our internal control over financial reporting as ofDecember 31, 2005 using the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission (COSO) in InternalControl−Integrated Framework. Internal control over financial reporting cannot provide absolute assurance of achieving financial reporting objectives becauseof its inherent limitations. Internal control over financial reporting is a process that involves human diligence and compliance and is subject to lapses in judgmentand breakdowns resulting from human failures. Internal control over financial reporting also can be circumvented by collusion or improper managementoverride. Because of such limitations, there is a risk that material misstatements may not be prevented or detected on a timely basis by internal control overfinancial reporting. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because ofchanges in conditions, or that the degree of compliance with the policies or procedures may deteriorate.

A material weakness is a control deficiency, or combination of control deficiencies, that results in more than a remote likelihood that a materialmisstatement of the annual or interim financial statements will not be prevented or detected.

75


Table of ContentsOur current management identified the following material weaknesses in our internal control over financial reporting as of December 31, 2005:

1. Control environment. We did not maintain an effective control environment based on criteria established in the COSO framework. Specifically, wedid not maintain controls adequate to prevent or detect instances of intentional override or intervention of our controls or intentional misconduct bycertain former members of senior management. Also, there was a lack of attention to identifying and responding to such instances. This lack of aneffective control environment permitted certain former members of senior management, including Prior Management, to deliberately overridecertain controls between 1992 through March 31, 2005 resulting in certain transactions not being properly accounted for in the Company’sconsolidated financial statements and contributing to the need to restate certain of our previously issued financial statements. Each of these formermembers of our senior management appears to have also personally benefited from these practices. In addition, the Compensation Committee of theCompany’s Board of Directors mistakenly relied on certain former members of senior management to appropriately discharge the duties delegatedto them. Furthermore, we did not adequately monitor certain of our control practices, demonstrate a commitment to integrity and objectivity andfoster a consistent and open flow of information and communication between those initiating transactions and those responsible for their financialreporting. Certain former members of senior management intentionally exploited this environment as follows:

a. Stock−based compensation. Certain former members of senior management (including our then CEO and then CFO) intentionally deviatedfrom our controls over the accounting for our stock option transactions, which resulted in the creation of misleading accounting records.Additionally, these certain former members of senior management either knew or should have known that the vast majority of our stockoptions transactions occurring between January 1996 and April 2002 were not appropriately accounted for in accordance with generallyaccepted accounting principles.

b. Earnings management. Between 1997 and 2002, we identified several instances where certain former members of senior management(including our then CEO and then CFO) appear to have deliberately overridden controls in order to manage or influence the timing ofquarter−end shipments, without public disclosure, and to influence the timing and level at which certain expense items and accruals weremade in order to inappropriately achieve a desired consistency of reported financial results, without appropriate public disclosure.

c. Executive compensation. In 1999, a loan was made to our former CEO (which has since been repaid) that lacked appropriate documentationincluding approval by the Company’s Board of Directors. The aforementioned loan was referred to in several of our periodic publicdisclosures but not all of its significant terms were clearly and completely disclosed. In addition, certain inappropriate expensereimbursements were made to our former CEO.

This control environment material weakness contributed to the override of controls by certain former members of senior management, which in turnresulted in the restatement of our consolidated financial statements for the years 2004, 2003, 2002, each of the quarters of 2004 and 2003, as well asthe first quarter of 2005. Additionally, this control environment material weakness could result in misstatements of any of our financial statementaccounts and disclosures that would result in a material misstatement to the annual or interim consolidated financial statements that would not beprevented or detected. Accordingly, our management has determined that this control deficiency constitutes a material weakness.

The material weakness in our control environment contributed to the existence of the following additional material weakness.

2. Controls over stock−based compensation expense. We did not maintain effective controls over the accounting for and disclosure of our stock−basedcompensation expense. Specifically, effective controls, including monitoring, were not maintained to ensure the existence, completeness, valuation

76


Table of Contents

and presentation of our stock−based compensation transactions related to the granting, modifying and exercising (including in certain instances withpromissory notes) of our stock options. In addition, effective controls were not maintained over the granting of stock purchase rights to employeesthrough our Employee Stock Purchase Plan. This control deficiency resulted in the misstatement of our stock−based compensation expense andadditional paid−in capital accounts and related financial disclosures, and in the restatement of the Company’s consolidated financial statements forthe years 2004, 2003, 2002, each of the quarters of 2004, and 2003, as well as the first quarter of 2005. Additionally, this control deficiency couldresult in misstatements of the aforementioned accounts and disclosures that would result in a material misstatement of the annual or interimconsolidated financial statements that would not be prevented or detected. Accordingly, our management has determined that this control deficiencyconstitutes a material weakness.

As a result of the material weaknesses described above, our current CEO and current CFO have concluded that we did not maintain effective internalcontrol over financial reporting as of December 31, 2005, based on the criteria in Internal Control−Integrated Framework issued by the COSO.

Our assessment of the effectiveness of our internal control over financial reporting as of December 31, 2005 has been audited by PricewaterhouseCoopersLLP, an independent registered public accounting firm, as stated in their report included in this Annual Report on Form 10−K.

Remediation of the Material Weaknesses in Internal Control Over Financial Reporting

It is important to note that based on the additional procedures performed as part of the Company’s restatement of its financial statements, currentmanagement has concluded that certain important improvements were made to the control environment commencing in mid−2002, including: (i) an improvedcommitment to competency manifested by the hiring of more experienced and senior finance and legal personnel, (ii) the implementation of additional financialcontrols that enhanced independent judgment and review, including as appropriate segregation of duties and increased employee responsibility and accountabilityfor the completeness of the Company’s disclosures, (iii) the establishment of processes and procedures to increase communications between the financialreporting and accounting functions and senior management, including our Audit Committee, and (iv) instituting a formal code of conduct and whistle−blowerpolicy. Although we believe that the improvements made to our control environment after mid−2002, if viewed on a stand−alone basis, could be sufficient for anadequate control environment in areas other than stock−based compensation and the intentional override of controls by Prior Management, the fact that the PriorManagement continued in their respective roles and in some instances exercised the ability to override stock option controls and proper accounting treatmentduring 2005, leads us to conclude that the material weaknesses described above existed as of December 31, 2005.

Management is committed to remediating the material weaknesses identified above by implementing changes to the Company’s internal control overfinancial reporting. Management along with our Board of Directors has implemented, or is in the process of implementing, the following changes to theCompany’s internal control over financial reporting:

• After reviewing the results of the investigation to date, our Board of Directors determined that it would be appropriate to accept the resignations ofour then CEO, CFO and General Counsel. Our Board of Directors has since appointed a new Chief Executive Officer, a new Chief Financial Officerand a new General Counsel, who together with other members of our senior management are committed to achieving transparency through effectivecorporate governance, a strong control environment, the business standards reflected in our Code of Business Conduct and Ethics, and financialreporting and disclosure completeness and integrity.

• We have established an Internal Audit function, which reports to our Audit Committee, and created the role of the Chief Compliance Officer. Throughthese functions we will implement enhancements to our independent monitoring of controls and expanded education, compliance training and reviewprograms

77


Table of Contents

to strengthen employees’ competency, independent judgment and intolerance for questionable practices and emphasize the importance of improvedcommunication among the Company’s various internal departments and regional operations—focused initially on the identified control weaknesses,but over time with a commitment to make efforts to continuously improve our broader control environment.

• We have changed our stock−based compensation transaction procedures and approval policies to require additional and more systematic authorizationto ensure that all stock option transactions adhere to the Company’s approved plans and stated policies, and that all such transactions are reflected inthe Company’s stock administration systems and have appropriate supporting documentation. In addition, we have modified the CEO expensereimbursement and other CEO payment procedures to be consistent with our standard control practices and subject to periodic review by our InternalAudit function.

• Our Board of Directors has adopted certain further enhancements to our corporate governance and oversight, including a formal separation of theroles of Chairman and CEO, strengthening the independence of our Board of Directors by adding two additional independent members to provideadditional expertise and independence, reconstituting the membership of our Board Committees and making additional advisory resources available toour Board of Directors and its committees, including the Compensation Committee.

Additionally, management is investing in ongoing efforts to continuously improve the control environment and has committed considerable resources tothe continuous improvement of the design, implementation, documentation, testing and monitoring of our internal controls. Although we have not fullyremediated the material weaknesses described above, we believe we have made substantial progress.

Changes in Internal Control Over Financial Reporting

There have been no changes in our internal control over financial reporting during the most recently completed fiscal quarter that have materially affected,or are reasonably likely to materially affect, our internal control over financial reporting.

Item 9B. Other Information

None.

78


Table of Contents PART III

Item 10. Directors and Executive Officers of the Registrant

Set forth below are the name, age and position of each of our directors and executive officers as of August 1, 2006:

NAME AGE POSITION(S)

Giora Yaron 57 Chairman of the BoardAnthony Zingale 50 President, Chief Executive Officer and DirectorBrad Boston 52 DirectorJoseph Costello 52 DirectorStanley Keller 67 DirectorIgal Kohavi 66 DirectorClyde Ostler 59 DirectorYair Shamir 60 DirectorDavid J. Murphy 44 Senior Vice President and Chief Financial OfficerJames Larson 47 Senior Vice President of Worldwide Field OperationsYuval Scarlat 43 Senior Vice President, ProductsBrian A. Stein 46 Chief Accounting OfficerSandra Escher 46 Senior Vice President, Global General Counsel and Secretary

The following are brief biographies of each of our current directors and executive officers (including present principal occupation or employment, andmaterial occupations, positions, offices or employments for the past five years). Unless otherwise indicated, to our knowledge, no current director or executiveofficer of the Company has been convicted in a criminal proceeding during the last five years, and no director or executive officer of the Company was a party toany judicial or administrative proceeding during the last five years (except for any matters that were dismissed without sanction or settlement) that resulted in ajudgment, decree or final order enjoining the person from future violations of, or prohibiting activities subject to, federal or state securities laws, or a finding ofany violation of federal or state securities laws. There are no family relationships between directors and executive officers of the Company.

Giora Yaron has been one of our directors since February 1996 and has served as Chairman of our Board of Directors since December 2005. From January2001 to January 2005, Dr. Yaron served as Chief Executive Officer of ExaNet Inc., a provider of storage networks. Dr. Yaron continues to serve as Chairman ofExaNet. From January 1997 until November 2000, Dr. Yaron served as Chief Executive Officer and Chairman of Itamar Medical (CM). Dr. Yaron continues toserve as Co−Chairman of Itamar Medical (CM). Dr. Yaron is also Chairman of Comsys Communications and Signal Processing Ltd. and has served in thatcapacity since January 1996. Prior to that, Dr. Yaron served as President of Indigo NV, a vendor of digital color press products, from August 1992 to November1995. From April 1979 to July 1992, Dr. Yaron was with National Semiconductor Corporation where he served as General Manager of its Israeli operations andCorporate Vice President of Office Products. Dr. Yaron also serves as a director of Prolify, Inc., a provider of real−time visibility and control software solutionsfor non−automated IT processes; Qumranet, Inc., a company focused on infrastructure for the next generation data center; Yissum Research & DevelopmentCompany of the Hebrew University; and a member of the Board of Governors and the Executive Committee of the Hebrew University.

Anthony Zingale has served as our Chief Executive Officer since November 2005. He has served as our President and Chief Operating Officer sinceDecember 2004 and has been a member of our Board of Directors since July 2002. Mr. Zingale was retired from April 2001 to November 2004. From March1998 to March 2000, Mr. Zingale served as President and Chief Executive Officer of Clarify, Inc., a supplier of front−office software and service solutions, andfrom March 2000 to March 2001, he served as president of the eBusiness Solutions Group of Nortel Networks, Inc., a telecommunications equipment company,following its acquisition of Clarify

79


Table of Contentsin March 2000. From January 1996 to December 1997, Mr. Zingale was Senior Vice President of Worldwide Marketing at Cadence Design Systems, Inc., anelectronic design automation company, and he served in various other management roles at Cadence from 1989 to January 1996.

Brad Boston has been one of our directors since May 2004. Mr. Boston has served as Senior Vice President and CIO of Cisco Systems, Inc. since August2001. From July 2000 to July 2001, Mr. Boston was Executive Vice President of Operations at Corio, Inc., an enterprise−focused Internet application serviceprovider. From June 1996 to July 2000, Mr. Boston served as Executive Vice President of product development and delivery at the Sabre Group in Dallas, Texas.He has also held executive positions at American Express, Visa, United Airlines/Covia and at American National Bank and Trust Company of Chicago, where hebegan his career. Mr. Boston serves on the board of directors of NetNumber, Inc., a provider of ENUM technology tools for use by mobile operators, fixed−linecarriers, and equipment vendors on a global basis, the Harvard Group Board of Advisors, and the E−business Advisory Board for Texas Christian UniversityM.J. Neeley School of Business.

Joseph Costello has been one of our directors since February 2006. Mr. Costello has been President and Chief Executive Officer of Think3, aprivately−held supplier of mechanical computer−aided design technology, since January 1999, and was named Chairman of the Board of Think3 in November1998. Prior to joining Think3, Mr. Costello was Chief Executive Officer of Cadence Design Systems, Inc., a supplier of electronic design automation softwareand services, from May 1988 to October 1997. Mr. Costello also serves as the Chairman of the boards of directors for Orb Networks (formerly BravoBrava!), aprivately funded company that develops and integrates information technologies; abazab, Inc., a VOIP vendor; Readio, an educational technology company andSpeaKESL, a developer of language software.

Stanley Keller has been one of our directors since February 2006. Mr. Keller is a partner at the law firm of Edwards Angell Palmer & Dodge LLP, havingjoined its predecessor firm, Palmer & Dodge, in June 1962 and becoming a partner in that firm in January 1969. Mr. Keller has extensive, high−level experiencein business and securities law matters involving emerging and public companies and financial transactional work involving public and private entities, includingrepresenting issuers, underwriters, financial institutions and investors; and mergers and acquisition transactions. Mr. Keller advises companies, boards, boardcommittees and special committees on corporate governance issues, transactional matters and special investigations. He has been Chair of the American BarAssociation’s Business Law Section Committee on Federal Regulation of Securities, a special adviser to the ABA Task Force on Corporate Responsibility andreporter for the ABA Task Force on Implementation of the Section 307 Attorney Professional Conduct Rules.

Igal Kohavi has been one of our directors since January 1994. Dr. Kohavi is currently retired. Dr. Kohavi served as Chairman of the board of directors ofNeat Group, Inc., an Internet travel services company, from March 2000 to December 2000, and as Chairman of the board of DSP Group, Inc., a developer ofdigital signal processing technology, from September 1995 to January 2000. From 1996 to December 1997, he served as Chairman of Polaris, an Israeli−basedventure capital fund. From October 1994 to March 1996, Dr. Kohavi served as the President and Chief Executive Officer of Dovrat−Schrem & Co., Ltd., anIsraeli investment bank. Prior to that, Dr. Kohavi served as President of Clal Electronics Industries Ltd., from May 1993 until September 1994. From April 1986to May 1993, Dr. Kohavi served as President of Clal Computers and Technology Ltd., an electronics company and a subsidiary of Clal.

Clyde Ostler has been one of our directors since May 2002 and served as our lead director from December 2004 to November 2005. Mr. Ostler has servedas the head of Internet Services of Wells Fargo & Company since June 2005 and head of Private Client Services of Wells Fargo & Company since January 2003.Mr. Ostler has been associated with Wells Fargo & Company and its affiliates since 1971 and has held various positions of responsibility including that ofGeneral Auditor from 1983 to 1985, Chief Financial Officer from 1986 to 1990, Branch Banking Group Head from 1990 to 1993, Vice Chair of the Business &Investment Group from 1993 to 1997, Group Executive Vice President, Investment Group, Online Financial Services from 1998 to 1999 and Group ExecutiveVice President, Internet Services Group from 1999 to 2003. Mr. Ostler has been a member of

80


Table of Contentsnumerous charitable boards external to Wells Fargo & Company and business boards for affiliates of Wells Fargo & Company. He is also on the Director’sAdvisory Counsel for Scripps Institution of Oceanography.

Yair Shamir has been one of our directors since August 1994. Mr. Shamir has served as Chairman of Catalyst Investment, L.P., an Israeli Europeanventure capital fund investing in late−stage companies, since April 2000. Mr. Shamir also has served as Chairman of VCON Telecommunications, Ltd., adeveloper of videoconferencing solutions that sold substantially all of its assets to Emblaze VCON Ltd. in November 2005, since March 1997. From March 1997to January 2005, Mr. Shamir served as Chief Executive Officer of VCON Telecommunications, Ltd. Mr. Shamir served as Executive Vice President of theventure capital firm The Challenge Fund−Etgar L.P. from August 1995 to March 1997. From January 1994 until July 1995, he was Chief Executive Officer ofElite Industries Ltd., a food products company. Prior to that, Mr. Shamir was Executive Vice President and General Manager, Israel of Scitex Corporation, anelectronics company, from January 1987 through January 1994. Mr. Shamir is the Chairman of Shamir Optical Industry Ltd., a producer and distributor ofprogressive optical lenses and related products and services, and Chairman of Israel Aircraft Industries (IAI), a developer of military and commercial aerospacetechnology. Mr. Shamir also serves on the boards of directors of DSP Group, Inc., a developer of digital signal processing technology; Orckit CommunicationsLtd., a provider of telecommunications equipment; and InfraCom, a privately−held provider of wireless communication and technologies. Mr. Shamir is also onthe advisory board of The Technion Institute of Management, Beer Sheva University and The Bilateral Institution.

David J. Murphy has served as our Senior Vice President and Chief Financial Officer since November 2005. Prior to that, from January 2005 to November2005, he served as our Senior Vice President, Corporate Development and Business Transformation, and from January 2003 to December 2004, he served as ourVice President of Corporate Development and Business Transformation. From May 2001 to December 2002, he was President and Chief Executive Officer ofAsera Inc., a provider of business process enterprise solutions. Before joining Asera, from March 1998 to May 2001, Mr. Murphy was President and GeneralManager of Tivoli Systems at IBM, a division of IBM and leading provider of systems management solutions. Prior to joining Tivoli, he was head of the privateequity investments group at Perot Systems and a partner at McKinsey & Company.

James Larson has served as our Senior Vice President of Worldwide Field Operations since January 2005. From March 2004 to December 2004,Mr. Larson served as Vice President of Americas’ Field Operations and from July 2000 to February 2004, he served as Vice President, Americas’ Sales. FromOctober 1998 to December 1999, Mr. Larson was Vice President, Western Area and from January 2000 to June 2000, he was Vice President, U.S. Sales, PGPSecurity Division for Network Associates. Prior to that Mr. Larson held various sales and management positions at various technology companies, includingSiebel Systems Inc. and Oracle Corporation.

Yuval Scarlat has served as our Senior Vice President, Products since January 2005, and from January 2004 to December 2004, he served as our VicePresident of Products. From January 2002 to January 2004, he was Vice President and General Manager of Testing & Deployment. From January 2000 toJanuary 2002, he served as our President of Managed Services. From July 1996 to December 2000, he served as our Vice President of Technical Services. From1990 to July 1996, he served with us in various technical and marketing positions.

Brian Stein has served as our Chief Accounting Officer since June 2005 and as our Principal Accounting Officer since November 2005. Prior to joining us,Mr. Stein spent 19 years with Applied Materials where he held various executive accounting and finance positions, culminating in his role as Vice President,Finance Policies and Administration.

Sandra Escher has served as our Senior Vice President and Global General Counsel since February 2006 and as our Corporate Secretary since March2006. Prior to joining us, from July 1993 to February 2006, Ms. Escher held various positions within Silicon Graphics, Inc., a leader in high−performancecomputing,

81


Table of Contentsculminating in her role as Senior Vice President and General Counsel. On May 8, 2006, Silicon Graphics, Inc. filed for Chapter 11 bankruptcy in the UnitedStates Bankruptcy Court for the Southern District of New York, which is within two years of Ms. Escher serving as an executive officer of Silicon Graphics, Inc.

For a description of material proceedings to which our directors or officers are a party, and the “Wells” notices received by each of Dr. Kohavi,Mr. Shamir and Dr. Yaron from the SEC, see Note 18, “Subsequent Events” to the Notes to Consolidated Financial Statements.

AUDIT COMMITTEE INFORMATION

The Audit Committee of our Board of Directors, which also constitutes our Qualified Legal Compliance Committee, is responsible for:

• oversight of the quality and integrity of our financial statements, and the compliance of such financial statements with legal and regulatoryrequirements;

• qualifications and independence of our independent auditors; and

• performance of our internal audit function and independent auditors.

In February 2005, the Audit Committee amended and restated the current Audit Committee and Qualified Legal Compliance Committee Charter, a copy ofwhich can be accessed electronically on our website at http://www.mercury.com/us/pdf/company/Audit_Committee_Charter.pdf. In discharging its duties, theAudit Committee has the sole authority to appoint, retain, compensate, oversee and terminate the independent auditors and is expected to:

• review and approve the scope of the annual internal and external audit;

• review and pre−approve the engagement of our independent auditors to perform audit and non−audit services and the related fees;

• review the integrity of our financial reporting process;

• review our financial statements and disclosures and SEC filings;

• review funding and investment policies; and

• review disclosures from our independent auditors regarding Independence Standards Board Standard No. 1.

During their tenure, the members of the Audit Committee who served in fiscal 2005 were “independent” as defined under Rule 4200(a)(15) of the NationalAssociation of Securities Dealers listing standards, and met the independence requirements of Rule 10A−3(b)(i) of the Exchange Act, as well as the requirementsof NASDAQ Marketplace Rule 4350(d)(2). Mr. Ostler serves as Chairman of the Audit Committee, and our Board of Directors has determined that Mr. Ostlerqualifies as an “audit committee financial expert” as defined by the rules of the SEC. Our Corporate Governance Guidelines provide that no member of the AuditCommittee may simultaneously serve on the Audit Committees of more than three public companies, including Mercury.

SECTION 16(a) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE

Section 16(a) of the Exchange Act requires our officers and directors and persons who own more than 10% of a registered class of our equity securities tofile certain reports regarding ownership of, and transactions in, our securities with the SEC. Such officers, directors and 10% stockholders are also required bySEC rules to furnish us with copies of all Section 16(a) forms that they file.

82


Table of ContentsBased solely on our review of such forms furnished to us and written representations from certain reporting persons, we believe that all filing requirements

applicable to our executive officers, directors and more than 10% stockholders were complied with during the fiscal year ended December 31, 2005.

CODE OF BUSINESS CONDUCT AND ETHICS

In December 2005, the Nominating and Corporate Governance Committee and our Board of Directors amended our Code of Business Conduct and Ethicsthat applies to all of our employees, officers and directors (including our principal executive officer, principal financial officer, principal accounting officer,controller and senior financial officers) to address various recommendations of the Special Committee of our Board of Directors, including the addition ofprovisions regarding (i) screening of certain supervisory employees, officers and directors for criminal background and regulatory violations, (ii) corporate recordkeeping guidelines, (iii) guidelines for doing business with the government, (iv) foreign corrupt practice guidelines, (v) compliance with economic sanctions andexport controls, and (vi) ethics obligations for employees with financial reporting obligations. Our Code of Business Conduct and Ethics is posted on our websiteand can be accessed electronically at http://www.mercury.com/us/pdf/company/code−business−conduct−ethics−final.pdf. We will post amendments to orwaivers from a provision of the Code of Business Conduct and Ethics on our website at http://www.mercury.com/us/company/ir/corp−governance under “Codeof Business Conduct and Ethics”. Stockholders may request free printed copies of our Code of Business Conduct and Ethics from: Mercury InteractiveCorporation, Attn: Investor Relations, 379 North Whisman Road, Mountain View, California 94043.

83


Table of Contents

Item 11. Executive Compensation

EXECUTIVE COMPENSATION

Summary Compensation Table

The following table sets forth certain summary information for the years ended December 31, 2005, 2004, and 2003, respectively, concerning thecompensation paid and awarded to (a) our Chief Executive Officer, (b) our four most highly compensated executive officers whose salaries and bonusesexceeded $100,000 and who were serving as executive officers as of December 31, 2005, and (c) former executive officers who, if they were serving as executiveofficers of the Company as of December 31, 2005, would have been included in the below table pursuant to the rules of the SEC. These individuals are referredto collectively as the “Named Executive Officers.”

Annual CompensationLong−Term

Compensation

Name and Principal Position Year Salary ($) Bonus ($)

OtherAnnual

Compensation($)

SecuritiesUnderlyingOptions (#)

All OtherCompensation

($)

Anthony ZingaleChief Executive Officer and President

200520042003

$501,92341,667

—

$660,000— —

(1) $ 1,000,00044,20058,750

(4)(5)(6)

50,000410,00010,000

$ 47048

—

(19)(19)

David J. MurphySenior Vice President andChief Financial Officer

200520042003

333,333268,750259,968

400,000138,000100,000

(1)(2)(3)

25,000— —

(7) 125,00025,000

—

1,4701,5761,484

(20)(20)(20)

James LarsonSenior Vice President of Worldwide FieldOperations

200520042003

300,000250,000220,000

300,00025,000

—

(1)(2)

40,941223,320257,546

(8)(9)(10)

25,000150,000100,000

1,4701,5761,484

(20)(20)(20)

Yuval ScarlatSenior Vice President,Products

200520042003

321,115286,250275,000

250,000145,000100,000

(1)(2)(3)

— — —

25,000—

125,000

1,4701,5761,484

(20)(20)(20)

Brian A. SteinChief Accounting Officer

200520042003

171,730— —

155,000— —

(11) — — —

75,000— —

1,277— —

(20)

Amnon LandanFormer Chairman and Chief ExecutiveOfficer

200520042003

742,448750,000750,000

— 800,000400,000

(2)(3)

78,47273,01651,120

(12)(13)(14)

100,000—

600,000

1,4701,5761,484

(20)(20)(20)

Douglas SmithFormer Chief Financial Officer

200520042003

362,498350,000350,000

(15) — 350,000250,000

(2)(3)

95,82698,99984,111

(16)(17)(18)

30,000—

200,000

13,3911,5761,461

(21)(20)(20)

(1) Represents bonuses earned in 2005 and paid in 2006.(2) Represents bonuses earned in 2004 and paid in 2005.(3) Represents bonuses earned in 2003 and paid in 2004.(4) Represents a bonus in connection with Mr. Zingale’s appointment as Chief Executive Officer in November 2005.(5) Represents non−employee director fees of $37,500 and legal expenses of $6,700 paid by us on behalf of Mr. Zingale in connection with the negotiation of Mr. Zingale’s employment

agreement in 2004.(6) Represents non−employee director fees of $28,750 and a cash bonus in connection with the acquisition of Kintana, Inc. of $30,000.(7) Represents a retention bonus paid in January 2005.(8) Represents commissions paid in 2005.(9) Represents commissions paid in 2004.(10) Represents commissions of $232,488 paid in 2003, as well as a vehicle allowance of $17,566 and premiums, claim amounts and administrative fees paid by us on behalf of Mr. Larson

during 2003 for supplemental medical reimbursement insurance in an aggregate amount of $7,492.

84


Table of Contents

(11) Represents a bonus of $80,000 earned in 2005 and paid in 2006, as well as a sign−on bonus of $75,000 paid to Mr. Stein in three installments during 2005.(12) Represents premiums, claim amounts and administrative fees paid by us on behalf of Mr. Landan during 2005 for supplemental medical reimbursement insurance in an aggregate amount

of $50,158, as well as a vehicle allowance of $18,667, legal expenses of $7,500 paid by us during 2005 on behalf of Mr. Landan in connection with the negotiation of Mr. Landan’semployment agreement, and an executive trip valued at $2,147 for which we paid.

(13) Represents premiums, claim amounts and administrative fees paid by us on behalf of Mr. Landan during 2004 for supplemental medical reimbursement insurance in an aggregate amountof $34,126, as well as a vehicle allowance of $28,000 and legal expenses of $10,890 paid by us during 2004 on behalf of Mr. Landan in connection with the negotiation of Mr. Landan’semployment agreement.

(14) Represents premiums, claim amounts and administrative fees paid by us on behalf of Mr. Landan during 2003 for supplemental medical reimbursement insurance in an aggregate amountof $23,120, as well as a vehicle allowance of $28,000.

(15) Includes an aggregate payment of $54,806 to Mr. Smith made in November 2005 for accrued vacation and accrued paid time off in connection with his resignation.(16) Represents premiums, claim amounts and administrative fees paid by us on behalf of Mr. Smith during 2005 for supplemental medical reimbursement insurance in an aggregate amount of

$7,826, as well as car service arrangements (and tax reimbursement related to such car service) in an aggregate amount of $88,000.(17) Represents premiums, claim amounts and administrative fees paid by us on behalf of Mr. Smith during 2004 for supplemental medical reimbursement insurance in an aggregate amount of

$9,826, as well as car service arrangements (and tax reimbursement related to such car service) in an aggregate amount of $89,173.(18) Represents premiums, claim amounts and administrative fees paid by us on behalf of Mr. Smith during 2003 for supplemental medical reimbursement insurance in an aggregate amount of

$11,841, as well as car service arrangements (and tax reimbursement related to such car service) in an aggregate amount of $72,270.(19) Represents term life insurance premiums.(20) Represents $1,000 in matching contributions to our employee 401(k) Plan, as well as term life insurance premiums.(21) Represents a transition payment of $12,000 made to Mr. Smith in December 2005 following his resignation as required by the terms of his employment agreement, as well as $1,000 in

matching contributions to our employee 401(k) Plan. The remainder represents term life insurance premiums.

The foregoing executive compensation table does not include certain fringe benefits generally made available on a non−discriminatory basis to all of ouremployees such as health insurance, which we consider to be ordinary and incidental business costs and expenses. We also have not included in the table theaggregate value of perquisites and other personal benefits (including car allowances and supplemental medical reimbursement insurance) received by theexecutive officers named above for any period in which the aggregate value of such perquisites and other personal benefits is less than the lesser of (a) 10% ofthe total of salary and bonus reported for such executive officer during such period or (b) $50,000.

Option Grants in Last Fiscal Year

The following table sets forth each grant of stock options made during the year ended December 31, 2005 to each of the Named Executive Officers:

Name

Individual Grants

Potential Realizable Value atAssumed Annual Rates of StockPrice Appreciation for Option

Term (2)

Number ofSecurities

UnderlyingOptions

Granted (#)

Percent of TotalOptions

Granted toEmployees inFiscal Year

(%) (1)

Exercise orBase Price

($/SH))Expiration

Date 5% ($) 10% ($)

Anthony Zingale 50,000 1.61 $ 48.94 02/03/2015 $ 1,538,905 $ 3,899,888David J. Murphy 25,000 0.81 48.94 02/03/2015 769,453 1,949,944

100,000 3.22 35.00 11/01/2015 2,201,131 5,578,099James Larson 25,000 0.81 48.94 02/03/2015 769,453 1,949,944Yuval Scarlat 25,000 0.81 48.94 02/03/2015 769,453 1,949,944Brian A. Stein 75,000 2.42 38.80 07/15/2015 1,830,083 4,637,791Amnon Landan 100,000 3.22 48.94 02/03/2015 3,077,810 7,799,776Douglas Smith 30,000 0.97 48.94 02/03/2015 923,343 2,339,933

85


Table of Contents

(1) An aggregate of 3,105,340 options to purchase shares of our common stock were granted to employees during 2005 under the Amended and Restated 2000 Supplemental Stock OptionPlan and the Amended and Restated 1999 Stock Option Plan.

(2) These columns show the hypothetical gains or “option spreads” of the options granted based on assumed annual compound stock appreciation rates of 5% and 10% over the full ten yearterm of the option. The 5% and 10% assumed rates of appreciation are mandated by the rules of the SEC and do not represent any estimate or projection of future common stock prices.

Aggregate Option Exercises in Last Fiscal Year and Fiscal Year−End Option Values

The following table provides certain information concerning the exercises of options by each of the Named Executive Officers during the year endedDecember 31, 2005, including the aggregate value of gains on the date of exercise:

Name

Number ofShares

Acquired onExercise (#)

Value Realized($) (1)

Number of SecuritiesUnderlying Unexercised

Options at Fiscal Year End(#) (1)

Value of Unexercised In−the−Money Options at Fiscal Year

End ($) (2)Exercisable Unexercisable Exercisable Unexercisable

Anthony Zingale — — 470,000 40,000 $ 134,600 $ 134,600David J. Murphy 25,000 $ 359,531 145,000 100,000 — — James Larson — — 669,729 27,084 227,868 — Yuval Scarlat — — 356,145 33,855 — — Brian A. Stein — — — 75,000 — — Amnon Landan — — 3,762,916(3) — 21,303,109(3) — Douglas Smith — — 272,708 — — —

(1) Under the Amended and Restated 1999 Stock Option Plan and Amended and Restated 1989 Stock Option Plan, certain options listed in this table are immediately exercisable whether ornot vested. Shares purchased upon exercise of unvested options are subject to repurchase by us, at our option, at cost, upon the optionee’s termination of employment.

(2) Calculated by determining the difference between the closing price of our common stock on the NASDAQ Global Market on the date of exercise, or year−end ($27.79), as the case may be,and the exercise price of the in−the−money options. Such numbers do not reflect amounts actually realized upon sale of the shares by such officers.

(3) As disclosed in our Current Report on Form 8−K filed with the SEC on February 2, 2006, we entered into an amendment agreement with Mr. Landan dated January 27, 2006, pursuant towhich we and Mr. Landan agreed, among other things, that Mr. Landan would return to the Company for cancellation his option to acquire 700,000 shares of our common stock with arecord grant date of January 8, 2001, and that the exercise prices of certain of Mr. Landan’s options would be increased (which repricing occurred after fiscal 2005). In addition, asdisclosed in our Current Report on Form 8−K filed with the SEC on June 8, 2006, the Special Committee of our Board of Directors declared void and cancelled options to purchase anadditional 2,625,416 shares of our common stock granted to Mr. Landan between 1997 and 2002. Since these cancelled and voided options were outstanding as of December 31, 2005, theyare included in the table above pursuant to SEC disclosure rules. However, none of Mr. Landan’s options were exercised during 2006 prior to their termination or cancellation.

NON−EMPLOYEE DIRECTOR COMPENSATION

On February 23, 2005, the Nominating and Corporate Governance Committee recommended, and our Board of Directors approved, an increase in theannual retainer for non−employee directors from $40,000 to $70,000 and an additional annual retainer of $20,000 to be paid to the lead director, effectiveFebruary 23, 2005. On December 14, 2005, the Nominating and Corporate Governance Committee eliminated the position of lead director and determined thatthe Chairman of our Board of Directors will receive an additional annual retainer of $30,000, effective November 1, 2005. Our employee directors do not receiveany additional compensation for their services on the board. In addition, our directors are reimbursed for their expenses in attending out−of−town meetings.

Under our 1994 Directors’ Stock Option Plan, as amended, non−employee directors are automatically granted an initial option to purchase 50,000 sharesof our common stock when they first join our Board of Directors, and thereafter receive annual grants to purchase 10,000 shares of our common stock on theirdate of re−election to our Board of Directors. The initial option grant vests as to 20% of the shares on the date of each of

86


Table of Contentsthe first five annual meetings of stockholders after the date of grant, and the annual option grant vests in whole on the fifth anniversary of the date of grant, ineach case if the director has continually served as a director until the vesting date. Options granted under the Directors’ Plan have a ten−year term and terminate30 days after the director ceases to be one of our directors, or six months after such time, if the termination of board service is due to death or disability.

The following table sets forth the compensation earned in fiscal 2005 for each of our non−employee directors:

Name Cash Retainer ($)Lead DirectorRetainer ($)

ChairmanRetainer ($)

Total CashCompensation ($) Equity Grants (#) (3)

Brad Boston $ 65,644 — — $ 65,644 10,000Joseph Costello (1) — — — — — Stanley Keller (1) — — — — — Igal Kohavi 65,644 — — 65,644 10,000Clyde Ostler (2) 65,644 $ 13,753 — 79,397 10,000Yair Shamir 65,644 — — 65,644 10,000Giora Yaron (2) 65,644 — $ 5,014 70,658 10,000

(1) Messrs. Costello and Keller were appointed to our Board of Directors in February 2006, at which time they each received an initial option to purchase 50,000 shares of our common stock.(2) Mr. Ostler served as lead director until November 1, 2005 when the position of lead director was eliminated. Also on November 1, 2005, Dr. Yaron, a non−employee director, was

appointed as Chairman of our Board of Directors in place of Mr. Landan.(3) These options were granted on May 19, 2005 with an exercise price per share of $44.50, representing the fair market value of our common stock on such date.

EMPLOYMENT AND CHANGE OF CONTROL AGREEMENTS

Current Named Executive Officers

Anthony Zingale

On February 8, 2006, we entered into an employment agreement with Mr. Zingale providing for an annual base salary, effective as of November 1, 2005,of $800,000 and eligibility for an annual performance bonus with a target of 100% of his base salary. Mr. Zingale received a $1 million sign−on bonus.Mr. Zingale would be eligible for an additional $1 million bonus payable in the second quarter of fiscal year 2007 subject to milestones to be determined by ourBoard of Directors. The employment agreement also provides that Mr. Zingale’s previously issued stock option grants for 400,000 shares of our common stock(issued in connection with Mr. Zingale’s original employment agreement) and 50,000 shares of our common stock (issued as part of our annual refresh grantsduring 2005) would remain exercisable until the fifteenth day of the tenth month or the December 31st, whichever is later, that follows the termination ofMr. Zingale’s employment for any reason (subject to earlier termination under the terms of our Amended and Restated 1999 Stock Option Plan or the expirationdate or maximum term defined in the applicable award agreement evidencing the option). In addition, the employment agreement provides that Mr. Zingalewould, in the event our Board of Directors grants annual refresh grants to other executives during 2006, be eligible to receive an option to purchase 500,000shares of our common stock, which option would have an exercise price equal to the fair market value of our common stock on the date of grant, would vest at1/48 per month over four years and would remain exercisable for a period of twelve months following the termination of Mr. Zingale’s employment for anyreason (subject to earlier termination under the terms of the our Amended and Restated 1999 Stock Option Plan or the expiration date or maximum term definedin the applicable award agreement evidencing the option). Mr. Zingale would also participate in other employee benefit programs and receive any perquisitesavailable to our other executives.

If Mr. Zingale’s employment is terminated by us without cause or by Mr. Zingale for good reason (as those terms are defined in his employmentagreement) before a change of control, Mr. Zingale would receive (i) a severance payment equal to one year (or two years, if he has been employed for more thanfour years from the

87


Table of Contentseffective date of his employment agreement at the time of termination) of base salary and target bonus in effect as of the date of termination, (ii) continuedcoverage under our health, life, dental and other insurance programs for the one− or two−year (as applicable) severance pay period, and (iii) accelerated vestingof his outstanding options that would have vested, absent the end of employment, during the one− or two−year (as applicable) severance pay period followingtermination.

Mr. Zingale is also party to an amended and restated change of control agreement with us dated February 8, 2006, providing that upon the involuntarytermination of Mr. Zingale’s employment (including resigning for good reason) or the termination of Mr. Zingale’s employment as a result of disability or deathwithin 18 months following a change of control of the Company, Mr. Zingale will be entitled to (i) severance pay equal to 24 months of his base salary and targetbonus in effect as of the date his employment ceases, (ii) continued coverage under our health, life, dental and other insurance programs for the 24−monthseverance pay period, (iii) accelerated vesting of all stock options and other forms of long−term compensation held by Mr. Zingale at the time of termination, and(iv) reimbursement for excise taxes that may be due by Mr. Zingale as a result of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”).In addition, all outstanding vested stock options granted prior to January 1, 2006, will remain exercisable until the later of the fifteenth day of the tenth month orthe December 31st that follows the termination of Mr. Zingale’s employment, and all outstanding vested options granted on or after January 1, 2006, will remainexercisable for a period of twelve months following the termination of Mr. Zingale’s employment (in each case, subject to earlier termination under the terms ofthe option plan under which a particular option is granted or the expiration date or maximum term defined in the applicable award agreement evidencing theoption). The consummation of the current tender offer by Hewlett−Packard Company to purchase our common stock and the related merger would constitute achange of control under Mr. Zingale’s change of control agreement. The description of Mr. Zingale’s change of control agreement is qualified in its entirety byreference to the same agreement filed as Exhibit 10.38 hereto, which is incorporated herein by reference.

David Murphy

On March 16, 2006, we entered into an employment agreement with Mr. Murphy providing for an annual base salary, effective as of April 1, 2006, of$400,000, and eligibility for an annual performance bonus with a target of 100% of his base salary. The employment agreement also provides that Mr. Murphy’spreviously issued stock option grants for (i) 240,000 shares of our common stock (issued in December 2002), (ii) 25,000 shares of our common stock (issued inDecember 2004), (iii) 25,000 shares of our common stock (issued in February 2005) and (iv) 100,000 shares of our common stock (issued in November 2005),would remain exercisable until the later of the fifteenth day of the third month following the date at which the option would otherwise have expired under theterms of the option at its original grant date, or the December 31st that follows the termination of Mr. Murphy’s employment for any reason (subject to earliertermination under the terms of our Amended and Restated 1999 Stock Option Plan or the expiration date or maximum term defined in the applicable awardagreement evidencing the option). In addition, the employment agreement provides that our Board of Directors or its Compensation Committee would, as part ofour annual refresh grants to executives during 2006, approve the grant of an option to Mr. Murphy to purchase 100,000 shares of our common stock, whichoption would have an exercise price equal to the fair market value of the common stock on the date of grant, would vest at 1/48 per month over four years andwould remain exercisable for a period of twelve months following the termination of Mr. Murphy’s employment for any reason (subject to earlier terminationunder the terms of our Amended and Restated 1999 Stock Option Plan and the expiration date and maximum term defined in the applicable award agreementevidencing the option). Mr. Murphy would also participate in other employee benefit programs and receive any perquisites available to our other executives.

If Mr. Murphy’s employment is terminated by us without cause or by Mr. Murphy for good reason (as those terms are defined in the EmploymentAgreement) before a change of control, Mr. Murphy would receive (i) a severance payment equal to one year (or two years, if termination of his employmentoccurs after November 1, 2009) of base salary and target bonus in effect as of the date of termination, (ii) continued coverage under our

88


Table of Contentshealth, life, dental and other insurance programs for up to the one− or two−year (as applicable) severance pay period, and (iii) accelerated vesting of hisoutstanding options (and any other equity compensation awards then outstanding) that would have vested, absent the end of employment, during the one− ortwo−year (as applicable) severance pay period following termination.

On June 15, 2006, we entered into an amendment to Mr. Murphy’s employment agreement. The amendment provides that Mr. Murphy is eligible toreceive a retention bonus in the aggregate amount of $1,500,000, payable in two installments if Mr. Murphy remains employed with us on each such date, with$500,000 payable on January 15, 2007 and $1,000,000 payable on January 15, 2008. If before a change of control, Mr. Murphy resigns without good reason orhis employment is terminated by us for “cause,” he will forfeit the full amount of the bonus previously paid to him. He will receive any remaining unpaid portionof the bonus (and will not be required to repay any previously paid portion of the bonus) if his employment is terminated by us without cause or by Mr. Murphyfor good reason (as those terms are defined in Mr. Murphy’s employment agreement), or if after a change of control, his employment terminates for any reason.

Mr. Murphy is also party to an amended and restated change of control agreement with us dated March 16, 2006, providing that upon the involuntarytermination of Mr. Murphy’s employment (including resigning for good reason) or the termination of Mr. Murphy’s employment as a result of disability or deathwithin 18 months following a change of control of the Company, Mr. Murphy will be entitled to (i) severance pay equal to 24 months of his base salary andtarget bonus in effect as of the date his employment ceases, (ii) continued coverage under our health, life, dental and other insurance programs for the 24−monthseverance pay period, and (iii) accelerated vesting of all stock options and other forms of equity and long−term compensation held by Mr. Murphy at the time oftermination. In addition, all outstanding vested stock options granted prior to January 1, 2006 will remain exercisable until the later of the fifteenth day of thethird month following the date at which the option would otherwise have expired under the terms of the option at its original grant date, or the December 31st thatfollows the termination of Mr. Murphy’s employment, and all outstanding vested options granted on or after January 1, 2006, will remain exercisable for a periodof twelve months following the termination of Mr. Murphy’s employment (in each case, subject to earlier termination under the terms of the option plan underwhich a particular option is granted and the expiration date or maximum term defined in the applicable award agreement evidencing the option). Theconsummation of the current tender offer by Hewlett−Packard Company to purchase our common stock and the related merger would constitute a change ofcontrol under Mr. Murphy’s change of control agreement and his employment agreement amendment. The description of Mr. Murphy’s change of controlagreement is qualified in its entirety by reference to the same agreement filed as Exhibit 10.40 hereto, which is incorporated herein by reference. In addition, asdiscussed in greater detail above, Mr. Murphy is eligible to receive a retention bonus in the aggregate amount of $1.5 million payable in installments.Mr. Murphy will receive promptly any unpaid portion of the $1.5 million retention bonus if his employment is terminated by us without cause or by Mr. Murphyfor good reason, or if his employment terminates for any reason after a change of control (including consummation of the current tender offer byHewlett−Packard Company to purchase our common stock and the related merger).

Other Current Named Executive Officers

None of Messrs. Larson, Scarlat or Stein has an employment agreement with us. Each of Messrs. Larson, Scarlat and Stein entered a change of controlagreement with us, dated February 4, 2005, February 4, 2005, and June 29, 2006, respectively, providing that upon the involuntary termination (includingresignation for good reason) or termination of such officer’s employment as a result of disability or death within 18 months following a change of control of theCompany, such officer will be entitled to (i) severance pay equal to 12 months of his or her base salary and target bonus in effect as of the date his or heremployment ceases, (ii) continued coverage under our health, life, dental and other insurance programs for the 12−month severance pay period, and(iii) accelerated vesting of all stock options and other forms of equity and long−term compensation held by him or her at the time of termination. Theconsummation of the current tender offer by Hewlett−Packard Company to purchase our common stock and the related merger would constitute a change ofcontrol under each of these

89


Table of Contentsofficers’ change of control agreements. The change of control agreement entered into by each of Messrs. Larson, Scarlat and Stein is substantially similar to theform of change of control agreement filed as Exhibit 10.49 hereto, and the above description of their change of control agreements is qualified in its entirety byreference to such exhibit, which is incorporated herein by reference.

Former Named Executive Officers

In accordance with SEC disclosure requirements, below are descriptions of the employment agreements of Mr. Amnon Landan, our former ChiefExecutive Officer, and Mr. Douglas Smith, our former Chief Financial Officer, because they are deemed to be Named Executive Officers for fiscal 2005.However, both Messrs. Landan and Smith resigned from their positions on November 1, 2005. As a result, neither of their employment agreements is currently ineffect. We also entered into certain agreements with each of Messrs. Landan and Smith in connection with their departures from the Company, as describedbelow.

Amnon Landan

On February 11, 2005, we entered into an employment agreement with Mr. Landan, with a term through December 31, 2007. Under the agreement,Mr. Landan would receive an initial annual base salary of $750,000 and be eligible for an annual performance bonus with a target of 100% of his base salary. Ifduring the term of the agreement, Mr. Landan’s employment ended because of an involuntary termination (including termination by us without cause orresignation by Mr. Landan for certain reasons defined in the agreement), he would receive: (i) severance payment equal to 75% of his annual base salary andtarget bonus; (ii) present value lump sum payment of a long−term service bonus, based on his term of service; (iii) 36 months of Company−paid health carecoverage; (iv) pro−rated target bonus for the year of termination; (v) 24 months’ accelerated vesting of his stock options or other equity awards; (vi) 12 months toexercise any options granted after the date of the agreement or any options that had exercise prices above the fair market value of our common stock on the dateof the employment agreement; and (vii) vesting of any outstanding award under any long−term incentive plan (or, for any award for which the performanceperiod has not been completed, vesting of a pro rata portion of the award). In the event an involuntary termination occurred (or Mr. Landan died while employedby us) within 18 months after a change of control of the Company, Mr. Landan would receive all of the severance benefits described above, except that all of hisstock options would become fully vested and his severance payment would be equal to 175% of his annual base salary and target bonus.

On November 1, 2005, we entered into an agreement with Mr. Landan, pursuant to which Mr. Landan resigned from his positions as Chief ExecutiveOfficer and member of our Board of Directors effective immediately. On May 15, 2006, the Special Committee of our Board of Directors determined thatMr. Landan should be treated as having been terminated for cause under the terms of his employment agreement. As a result, he was not paid any severancebenefits due under his employment agreement.

We entered into an amendment dated January 27, 2006 to the November 1, 2005 agreement with Mr. Landan. Pursuant to the amendment, we andMr. Landan agreed that Mr. Landan would not exercise his then outstanding and vested options prior to June 15, 2006 without prior notice from the SpecialCommittee of our Board of Directors. We and Mr. Landan also agreed that Mr. Landan would return to the Company for cancellation the option to acquire700,000 shares of our common stock with a record grant date of January 8, 2001, and that the exercise prices of certain of Mr. Landan’s options would beincreased. On June 7, 2006, we declared void and cancelled an additional 2,625,416 options granted to Mr. Landan between 1997 and 2002.

We entered into a second amendment dated July 28, 2006 to the November 1, 2005 agreement with Mr. Landan. Pursuant to the second amendment, weand Mr. Landan agreed that Mr. Landan would not exercise his options to acquire 437,500 shares of our common stock that were granted with a grant date ofJanuary 3, 2003 and that he no longer would have any right to or interest in, or any value from, these options. We and Mr. Landan further agreed that if, on orbefore the cutoff date (as defined below), we and Mr. Landan reach a settlement of

90


Table of Contentsour pending claims against Mr. Landan, Mr. Landan will receive against any amount that he agrees to pay to us a credit of the lesser of (i) the settlement amountor (ii) $2,817,500 (which was the difference between the exercise price of the 2003 options and the closing price of an equivalent number of shares of ourcommon stock on July 14, 2006 of $37.85 per share). The cutoff date means the later of March 15, 2007 or such other date on which such credit can be grantedwithout subjecting Mr. Landan to liability for additional taxes under Section 409A of the Internal Revenue Code. Other than as set forth above, we andMr. Landan agreed that the execution of the November 1, 2005 agreement, and all amendments thereafter, did not constitute a release of any claims that eitherparty may have against the other, and each party reserved all of their rights under these agreements.

Douglas Smith

On August 28, 2000, we entered into an employment agreement with Mr. Smith. The terms of the employment agreement provided for an initial annualbase salary of $350,000 and eligibility to receive specified target bonuses. If Mr. Smith’s full−time employment was terminated for any reason, other than death,Mr. Smith would have the right to remain a part−time employee of the Company for up to one year from the date of termination of full−time employment with apart−time salary of at least $1,000 per month.

On October 31, 2005, we entered into an agreement with Mr. Smith pursuant to which the parties agreed that Mr. Smith’s existing stock options datedNovember 2, 2001 would be repriced to the closing price of our common stock on the day in November 2001 that these grants were actually determined. Inaddition the parties agreed that, to the extent Mr. Smith had previously exercised options, he would pay to us the difference between the exercise price of theoptions and the closing price of our common stock on the day in November 2001 that the grants were actually determined. On November 30, 2005, we andMr. Smith agreed to increase the exercise price of Mr. Smith’s options to purchase 120,000 shares of our common stock underlying his option agreement datedNovember 2, 2001 from $24.29 per share to $28.05 per share, and Mr. Smith agreed to pay to us the difference between Mr. Smith’s original exercise price andthe agreed−upon exercise price of $28.05 for each share he previously acquired upon exercise of that option.

COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION

The Compensation Committee of our Board of Directors is currently composed of Messrs. Boston, Costello, and Ostler. No member of the CompensationCommittee is an officer or employee of the Company. No member of the Compensation Committee or executive officer of the Company served as a member ofthe board of directors or compensation committee of any entity that has an executive officer serving as a member of our board of directors or CompensationCommittee. Mr. Zingale is excluded from discussions regarding his own salary and incentive compensation.

During fiscal 2005, the members of the Compensation Committee were Dr. Yaron and Messrs. Boston and Shamir. Dr. Yaron served as Chairman of theCompensation Committee until December 15, 2005, at which time Mr. Boston replaced him as Chairman of the Compensation Committee. Dr. Yaron andMr. Shamir resigned from the committee on June 29, 2006, and were replaced by Messrs. Costello and Ostler. No member of the Compensation Committeeduring fiscal 2005 was an officer or employee of the Company during his time of service on such committee.

For information regarding certain relationships and related transactions, please see Item 13, “Certain Relationships and Related Transactions.”

91


Table of Contents

Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters

EQUITY COMPENSATION PLAN INFORMATION

Summary Table

The following table sets forth certain information as of December 31, 2005 with respect to compensation plans under which shares of our common stockmay be issued:

(a) (b) (c)

Plan Category

Number of Securities to beIssued upon Exercise ofOutstanding Options,Warrants and Rights

Weighted AverageExercise Price

ofOutstanding Options,

Warrants andRights

Number of SecuritiesRemaining Available forFuture Issuance under

Equity Compensation Plans(Excluding Securities

Reflected in Column (a))

Equity Compensation Plans Approved bySecurity Holders (1) 16,205,670 $ 38.63 9,745,763(2)

Equity Compensation Plans Not Approvedby Security Holders 3,593,098(3) $ 39.16(3) 843,053

Total 19,798,768 $ 38.72 10,588,816

(1) Excludes purchase rights accruing under the Amended and Restated 1998 Employee Stock Purchase Plan. Under the Amended and Restated 1998 Employee Stock Purchase Plan, eacheligible employee may purchase shares of common stock at semi−annual intervals on February 15 and September 15 each year at a purchase price per share equal to 85% of the lower of(i) the closing selling price per share of common stock on the employee’s entry date into the two−year offering period in which that semi−annual purchase date occurs or (ii) the closingselling price per share on the semi−annual purchase date.

(2) Includes 4,192,001 shares available for issuance under the Amended and Restated 1998 Employee Stock Purchase Plan.(3) Excludes information for options assumed by us in connection with acquisitions of companies. As of December 31, 2005, a total of 606,140 shares of our common stock were issuable

upon exercise of outstanding options assumed in those acquisitions and issued under the following plans, which have not been approved by our stockholders: Conduct, Ltd. 1998 ShareOption Plan, Freshwater Software, Inc. 1997 Stock Plan, Performant, Inc. 2000 Stock Option/Restricted Stock Plan, Kintana, Inc. 1997 Equity Incentive Plan, Chain Link TechnologiesLimited Company Share Option Scheme and Appilog, Inc. 2003 Stock Option Plan. The weighted average exercise price of those outstanding options is $38.67 per share. No additionaloptions may be granted under the plans under which these options were assumed.

We maintain the Amended and Restated 1989 Stock Option Plan, Amended and Restated 1999 Stock Option Plan, 1994 Directors’ Stock Option Plan, andAmended and Restated 1998 Employee Stock Purchase Plan, each of which was approved by our stockholders, and the 1996 Supplemental Stock Option Planand the Amended and Restated 2000 Supplemental Stock Option Plan, each of which were not subject to stockholder approval.

Equity Compensation Plans Not Approved By Stockholders

1996 Supplemental Stock Option Plan. In May 1996, our board adopted the 1996 Supplemental Stock Option Plan which allowed grants of options only toany employees who were not U.S. citizens and who were not one of our executive officers or directors. This plan was not approved by our stockholders. Optionsare no longer granted under this plan; however, as of December 31, 2005, options to purchase a total of 2,006 shares of common stock were outstandingthereunder. Option grants under this plan have exercise prices of not less than 85% of the fair market value of the stock on the date of grant. All options grantedunder this plan expire 10 years from the date of grant. In the event a participant’s employment or service with us terminates prior to this expiration date, theparticipant’s option may thereafter be exercised (to the extent it was vested on the date of termination), for a period of either six months (in the case of death ordisability) or 30 days (for other terminations). Outstanding options under this plan generally vest over a period of four years. If the Company were to be acquiredand the acquiring corporation did not assume, replace or substitute the awards granted under this plan, all outstanding awards would become fully vested andwould terminate to the extent unexercised at the time the acquisition closed.

92


Table of Contents2000 Supplemental Stock Option Plan. In July 2000, our board adopted the 2000 Supplemental Stock Option Plan which allows options and stock

purchase rights to be granted only to any employee who is not a U.S. citizen and who is not one of our executive officers or directors. This plan has not beenapproved by our stockholders. A total of 6,000,000 shares have been reserved for issuance upon exercise of stock options under this plan, and as of December 31,2005, options to purchase a total of 3,591,092 shares of common stock were outstanding under this plan and 843,053 options were available for grant. Optiongrants under this plan must be at exercise prices not less than 100% of the fair market value of the stock on the date of grant. The other material provisions of thisplan are identical to those of the 1996 Supplemental Stock Option Plan, except that all the term of options granted in certain European countries may be differentand this plan provides for the grant of stock purchase rights.

SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT

The following table sets forth certain information with respect to beneficial ownership of our common stock as of August 1, 2006 for:

• each person who we know beneficially owns more than 5% of our common stock;

• each of our directors;

• each executive officer named in the Summary Compensation Table below; and

• all of our directors and executive officers as a group.

Name and Address of Beneficial Owner (2)Shares of Common

Stock Beneficially Owned (1)PercentageOwnership

UBS AG (3)Bahnhofstrasse 45PO Box CH−8021Zurich, Switzerland

9,178,710 10.29%

S.A.C. Capital Advisors, LLC (4)72 Cummings Point RoadStamford, Connecticut 06902

5,690,000 6.38%

Wellington Management Company, LLP (5)75 State StreetBoston, MA 02109

5,308,504 5.95%

J. & W. Seligman & Co. Incorporated (6)100 Park AvenueNew York, New York 10017

4,935,400 5.53%

Massachusetts Financial Services Company (7)500 Boylston StreetMassachusetts, MA 02116

4,771,272 5.35%

Anthony Zingale (8)(9) 480,000 *David J. Murphy (8)(10) 145,000 *James Larson (8)(11) 692,754 *Yuval Scarlat (8)(12) 383,230 *Brian A. Stein (13) 23,437 *Amnon Landan 35,572 *Douglas Smith 4,059 *Giora Yaron (14) 20,000 *Brad Boston (15) 20,000 *Joseph Costello — *Stanley Keller — *Igal Kohavi (16) 20,000 *Clyde Ostler (17) 42,500 *Yair Shamir (18) 60,000 *All directors and officers as a group (15 persons) (19) 1,926,552 2.12%

93


Table of Contents

* Less than 1%.(1) Except as otherwise indicated in the footnotes to this table, percentage ownership is based on 89,197,029 shares of our common stock outstanding as of August 1, 2006. Shares of our

common stock subject to options that are currently exercisable or exercisable within 60 days of August 1, 2006 are deemed to be outstanding for the purpose of computing the percentageownership of a person or entity in this table, but are not treated as outstanding for the purpose of computing the percentage ownership of any other person or entity. All references toexercisable or vested options below exclude any accelerated vesting that may occur as a result of the consummation of the current tender offer by Hewlett−Packard Company to purchaseour common stock and the related merger.

(2) Except as otherwise indicated in the footnotes to this table and pursuant to applicable community property laws, the persons named in the table have sole voting and investment power withrespect to all shares of our common stock.

(3) Beneficial ownership information is based on information reported on Schedule 13G/A filed with the SEC on February 14, 2006, by UBS AG (for the benefit and on behalf of theTraditional Investments division of the UBS Global Asset Management business group of UBS AG). Of the reported shares, UBS AG reports that it has sole voting power with respect to5,341,210 shares and shared dispositive power with respect to 9,178,710 shares. UBS AG disclaims beneficial ownership of such securities and further states that the filing reflects thesecurities beneficially owned by the Traditional Investments division of the UBS Global Asset Management business group of UBS AG and its subsidiaries and affiliates.

(4) Beneficial ownership information is based on information reported on Schedule 13G filed with the SEC on July 5, 2006, by S.A.C. Capital Advisors, LLC and certain of its affiliates. TheSchedule was jointly filed by (i) S.A.C. Capital Advisors, LLC, (“SAC Capital Advisors”) with respect to shares of our common stock beneficially owned by S.A.C. Capital Associates,LLC (“SAC Capital Associates”); (ii) S.A.C. Capital Management, LLC, (“SAC Capital Management”) with respect to shares of our common stock beneficially owned by SAC CapitalAssociates; (iii) SAC Capital Associates with respect to shares of our common stock beneficially owned by it; (iv) CR Intrinsic Investors, LLC (“CR Intrinsic Investors”) with respect toshares of our common stock beneficially owned by CR Intrinsic Investments, LLC (“CR Intrinsic Investments”); (v) Canvas Capital Management, LP (“Canvas Capital Management”) withrespect to shares of our common stock beneficially owned by Canvas Capital Associates, LLC (“Canvas Capital Associates”); and (iv) Steven A. Cohen with respect to shares of ourcommon stock beneficially owned by SAC Capital Advisors, SAC Capital Management, SAC Capital Associates, CR Intrinsic Investors, CR Intrinsic Investments, Canvas CapitalManagement and Canvas Capital Associates. The principal business addresses for the S.A.C. affiliates are as follows: (i) S.A.C. Capital Advisors, LLC, C.R. Intrinsic Investors, LLC,Steven A. Cohen 72 Cummings Point Road, Stamford, Connecticut 06902, (ii) S.A.C. Capital Management, LLC 540 Madison Avenue, New York, New York 10022, (iii) S.A.C. CapitalAssociates, LLC P.O. Box 58, Victoria House, The Valley, Anguilla British West Indies, and (iv) Canvas Capital Management, LP 101 California Street, Suite 4225, San Francisco,California 94111. The Schedule reports shared voting and dispositive power of 5,290,000 shares for SAC Capital Advisors, SAC Capital Associates and SAC Capital Management. TheSchedule reports shared voting and dispositive power of 200,000 shares for CR Intrinsic Investors and Canvas Capital Management. The Schedule reports Steven A. Cohen may be deemedto beneficially own 5,690,000 shares.

(5) Beneficial ownership information is based on information reported on Schedule 13G/A filed with the SEC on July 10, 2006, by Wellington Management Company, LLP. Of the reportedshares, Wellington Management Company, LLP reports that it has shared voting power with respect to 3,340,854 shares and shared dispositive power with respect to 5,308,504 shares.

(6) Beneficial ownership information is based on information reported on Schedule 13G filed with the SEC on February 13, 2006, by J. & W. Seligman & Co., Incorporated (“JWS”). Of thereported shares, JWS reports that it has shared voting and shared dispositive power with respect to 4,935,400 shares. William C. Morris, as the owner of a majority of the outstandingvoting securities of JWS, may be deemed to beneficially own the shares reported by JWS.

(7) Beneficial ownership information is based on information reported on Schedule 13G filed with the Securities and Exchange Commission on August 10, 2005, by Massachusetts FinancialServices Company. Massachusetts Financial Services Company is reported as the beneficial owner with sole voting and investment power over the shares reported as beneficially owned bythem.

(8) Includes shares subject to outstanding options that are currently exercisable or exercisable within 60 days of August 1, 2006. Because certain options granted by us pursuant to ourAmended and Restated 1999 Stock Option Plan and Amended and Restated 1989 Stock Option Plan to the executive officers listed above are immediately exercisable whether or notvested, those immediately exercisable options have been treated as currently exercisable for purposes of the table above. However, we have a right to repurchase, upon the optionee’stermination of employment, any shares acquired by the optionee through the exercise of any unvested options. This repurchase right lapses over time.

(9) Represents 480,000 shares subject to stock options held by Mr. Zingale that are exercisable within 60 days of August 1, 2006, of which 233,124 shares will be vested as of such date.(10) Represents 145,000 shares subject to stock options held by Mr. Murphy that are exercisable within 60 days of August 1, 2006, of which 100,832 shares will be vested as of such date.(11) Includes 688,479 shares subject to stock options held by Mr. Larson that are exercisable within 60 days of August 1, 2006, of which 588,999 shares will be vested as of such date.(12) Includes 379,583 shares subject to stock options held by Mr. Scarlat that are exercisable within 60 days of August 1, 2006, of which 364,478 shares will be vested as of such date.(13) Represents 23,437 shares subject to stock options held by Mr. Stein that are exercisable within 60 days of August 1, 2006, all of which will be vested as of such date.(14) Represents 20,000 shares subject to stock options held by Dr. Yaron that are exercisable within 60 days of August 1, 2006, all of which will be vested as of such date.

94


Table of Contents

(15) Represents 20,000 shares subject to stock options held by Mr. Boston that are exercisable within 60 days of August 1, 2006, all of which will be vested as of such date.(16) Represents 20,000 shares subject to stock options held by Dr. Kohavi that are exercisable within 60 days of August 1, 2006, all of which will be vested as of such date.(17) Includes 40,000 shares subject to stock options held by Mr. Ostler that are exercisable within 60 days of August 1, 2006, all of which will be vested as of such date.(18) Includes 20,000 shares registered in the name of Goldfarb & Levy and held on behalf of Mr. Shamir and 40,000 shares subject to stock options held by Mr. Shamir that are exercisable

within 60 days of August 1, 2006, all of which will be vested as of such date.(19) Includes one additional executive officer not listed above, who possesses no shares subject to stock options that are exercisable within 60 days of August 1, 2006.

On July 25, 2006, we entered into an Agreement and Plan of Merger (the Merger Agreement) with Hewlett−Packard Company (HP) and Mars LandingCorporation, a wholly−owned subsidiary of HP (Merger Sub). Pursuant to the Merger Agreement, and upon the terms and subject to the conditions thereof, onAugust 17, 2006, Merger Sub commenced a cash tender offer (the Offer) for all of the issued and outstanding shares of our common stock, par value of $0.002per share, at a purchase price of $52.00 per share (the Offer Price). As soon as practicable after the consummation of the Offer, Merger Sub will merge with andinto us (the Merger) and we will become a wholly−owned subsidiary of HP. In the Merger, the remaining stockholders of Mercury, other than such stockholderswho have validly exercised their appraisal rights under the Delaware General Corporation Law, will be entitled to receive the Offer Price per share. The Offer, ifconsummated, would constitute a change of control of the Company.


Item 13. Certain Relationships and Related Transactions

Anthony Zingale, one of our directors, and our Chief Executive Officer and President, served as a director of Interwoven, Inc. until July 2006. Duringfiscal 2005, we entered into two transactions with Interwoven for the license of our products and maintenance services to Interwoven for an aggregate ofapproximately $33,200. In addition, we entered into four transactions with Interwoven for the license of Interwoven products or the renewal of maintenanceservices for Interwoven products licensed to us for an aggregate of $435,463. We believe that the transactions with Interwoven were on terms no more favorablethan those with unrelated parties and that Mr. Zingale had no direct or indirect material interest in these transactions.

Clyde Ostler, one of our directors, is an executive officer of Wells Fargo & Company, a financial company and a company with which we do business. In2005, we entered into transactions for the license of products and the sale of services to Wells Fargo & Company and its affiliates of approximately $8.2 million.We also have a $5.0 million credit facility with Wells Fargo Bank. During 2005 and 2004, we maintained cash deposit accounts and an investment accountrelated to investments in our Israeli research and development facility with Wells Fargo. As of December 31, 2005 and 2004, the total cash deposit balance atWells Fargo was $14.3 million and $2.5 million, respectively. As of December 31, 2005, there were no investment account balances at Wells Fargo. AtDecember 31 2004, our investment account balance at Wells Fargo was $102.7 million. We believe that our transactions with Wells Fargo & Company were onterms no more favorable than those with unrelated parties and that Mr. Ostler has not had and will not have a direct or indirect material interest in thesetransactions.

Brad Boston, one of our directors, is the Senior Vice President and Chief Information Officer for Cisco Systems, Inc. In 2005 we entered into transactionsfor the license of products and the sale of services to Cisco for an aggregate of approximately $1.8 million. We believe that these transactions with Cisco were onterms no more

95


Table of Contentsfavorable than those with unrelated parties and that Mr. Boston had no direct or indirect material interest in these transactions.

Yair Shamir, one of our directors, is the Chairman of the Board of Israel Aircraft Industries (IAI). During fiscal year 2005, we entered into threetransactions with IAI for the license of our products and maintenance services for an aggregate of approximately $50,850. We believe that the transactions withIAI were on terms no more favorable than those with unrelated parties and that Mr. Shamir had no direct or indirect material interest in these transactions.

We have entered into indemnification agreements with our former and current directors and executive officers. The indemnification agreements require usto indemnify our former and current directors and officers to the fullest extent permitted by Delaware law and require us to advance to them expenses incurred asa result of any proceeding against them as to which they could be indemnified pursuant to the terms of the indemnification agreements. In connection therewith,we have advanced, and will continue to advance, some of our current and former directors and executive officers expenses they incurred as a result ofproceedings against them as to which they could be indemnified. If any such director or executive officer is subsequently determined not to be eligible forindemnification in accordance with the terms of his or her indemnification agreement, the amount of the expenses that we have advanced to such director orexecutive officer are to be repaid by such director or executive officer.

Item 14. Principal Accountant Fees and Services

Fees Paid to PricewaterhouseCoopers LLP

The following table sets forth the aggregate fees billed by PricewaterhouseCoopers LLP for audit services rendered in connection with the consolidatedfinancial statements and reports for fiscal 2005 and 2004 and for other services rendered during fiscal years 2005 and 2004 on behalf of Mercury and itssubsidiaries, as well as all out−of−pocket costs incurred in connection with these services (in thousands):

Fiscal 2005 Fiscal 2004

Fee Category: Amount% ofTotal Amount

% ofTotal

Audit Fees $6,364 86% $3,196 73%Audit−Related Fees 44 1 60 1Tax Fees 974 13 1,123 26All Other Fees 6 — 18 — Total Fees $7,388 100% $4,397 100%

Audit Fees: Consists of fees for professional services rendered for the audit of Mercury’s consolidated financial statements and review of the interimcondensed consolidated financial statements included in quarterly reports and services that are normally provided by PricewaterhouseCoopers LLP in connectionwith statutory and regulatory filings or engagements, and attest services, except those not required by statute or regulation. For fiscal years 2005 and 2004, thisfee category also includes $1.4 million and $1.8 million, respectively, in fees for audit of management’s assessment of the effectiveness of internal control overfinancial reporting under Section 404 of the Sarbanes−Oxley Act of 2002 and the effectiveness of internal control over financial reporting.

Audit−Related Fees: Consists of fees for assurance and related services that are reasonably related to the performance of the audit or review of Mercury’sconsolidated financial statements and that are not reported under “Audit Fees”. These services include accounting consultations in connection with acquisitionsand professional services concerning financial accounting and reporting standards.

Tax Fees: Consists of fees for tax compliance/preparation and other tax services. Tax compliance/preparation consists of fees billed for professionalservices related to federal, state and international tax

96


Table of Contentscompliance, assistance with tax audits and appeals, assistance with customs and duties audits, expatriate tax services, and assistance related to the impact ofmergers, acquisitions and divestitures on tax return preparation. Other tax services consist of fees billed for other miscellaneous tax consulting and planningprojects. For fiscal years 2005 and 2004, these fees consisted of approximately $88,000 and $282,000, for tax compliance and approximately $886,000 and$841,000 for other tax services, respectively.

All Other Fees: Consists of fees for all other services other than those reported above. For fiscal 2005 and 2004, this fee category includes a license feefor the use of PricewaterhouseCoopers LLP’s online accounting research tool. For fiscal 2004, it also includes other specialized consulting services.

Audit Committee Pre−Approval of Audit and Permissible Non−Audit Services of Independent Registered Public Accounting Firm

The audit committee pre−approves all audit and permissible non−audit services provided by the independent registered public accounting firm. Theseservices may include audit services, audit−related services, tax services and other services. The audit committee has adopted a policy for the pre−approval ofservices provided by the independent registered public accounting firm. Under the policy, pre−approval is generally provided for up to one year and anypre−approval is detailed as to the particular service or category of services and is subject to a specific budget. In addition, the audit committee may alsopre−approve particular services on a case−by−case basis. For each proposed service, the independent registered public accounting firm is required to providedetailed back−up documentation at the time of approval. The audit committee may delegate pre−approval authority to one or more of its members. Such amember must report any decisions to the audit committee at the next scheduled meeting.

97


Table of Contents PART IV

Item 15. Exhibits and Financial Statement Schedules

(a) The following documents are filed as a part of this report:

1. Financial Statements.

The following financial statements of Mercury Interactive Corporation are filed as a part of this report:

Page

Report of Independent Registered Public Accounting Firm 106Consolidated Balance Sheets at December 31, 2005 and 2004 109Consolidated Statements of Operations for the years ended December 31, 2005, 2004 and 2003 110Consolidated Statements of Stockholders’ Equity for the years ended December 31, 2005, 2004 and 2003 111Consolidated Statements of Cash Flows for the years ended December 31, 2005, 2004 and 2003 113Notes to Consolidated Financial Statements 114

2. Schedules

Financial statement schedules not listed above have been omitted because they are not applicable or the required information is shownin the financial statements or notes thereto.

3. Exhibits

ExhibitNumber Description

Incorporated by ReferenceForm File No. Exhibit(s) Filing Date

2.1 Agreement and Plan of Merger, dated as of July 25, 2006, by and amongHewlett−Packard Company, Mars Landing Corporation, and MercuryInteractive Corporation. 8−K 000−22350 2.1 July 25, 2006

3.1 Certificate of Incorporation of Mercury, as amended and restated to date. S−1 33−68554 3.3 October 29, 1993

3.2 Certificate of Amendment of Restated Certificate of Incorporation datedMay 20, 1998. 10−Q 000−22350 3.1 November 16, 1998

3.3 Certificate of Amendment of Restated Certificate of Incorporation datedMay 26, 1999. S−3 333−95097 4.1 January 20, 2000

3.4 Certificate of Amendment of Restated Certificate of Incorporation datedMay 24, 2000. 10−K 000−22350 3.2 March 29, 2001

3.5 Certificate of Amendment of Restated Certificate of Incorporation datedMay 19, 2004. 10−Q 000−22350 3.1 August 9, 2004

98


Table of Contents



3.6 Corrected Certificate of Amendment of Restated Certificate of Incorporationdated June 4, 2004. 10−Q 000−22350 3.2 August 9, 2004

3.7 Amended and Restated Bylaws of Mercury. 8−K 000−22350 3.7 February 14, 2006

4.1 Form of Tender and Voting Agreements, by and between Hewlett−PackardCompany and each director and executive officer of Mercury InteractiveCorporation. 8−K 000−22350 4.1 July 25, 2006

10.1 Preferred Shares Rights Agreement dated July 5, 1996. 8−A12G 000−22350 1 July 9, 1996

10.2 Amendment to Rights Agreement dated March 31, 1999. 8−A12G/A 000−22350 1 April 2, 1999

10.3 Amendment No. Two to Rights Agreement, dated May 19, 2000. 8−A12G/A 000−22350 1 May 22, 2000

10.4 Amendment No. 3 to Preferred Shares Rights Agreement dated April 23, 2003. 10−Q 000−22350 4.3 April 30, 2003

10.5 Form of Note for Mercury’s 4.75% Convertible Subordinated Notes dueJuly 1, 2007. 10−Q 000−22350 4.1 August 14, 2000

10.6 Indenture between Mercury, as Issuer and State Street Bank and TrustCompany of California, National Association, as Trustee dated July 3, 2000related to Mercury’s 4.75% Convertible Subordinated Notes due July 1, 2007. 10−Q 000−22350 4.2 August 14, 2000

10.7 First Supplemental Indenture between Mercury, as Issuer and U.S. BankNational Association, as Trustee dated October 26, 2005 related to Mercury’s4.75% Convertible Subordinated Notes due July 1, 2007. 8−K 000−22350 10.45 October 28, 2005

10.8 Registration Rights Agreement among Mercury and Goldman, Sachs & Co.,Chase Securities Inc. and Deutsche Banc Securities Inc. dated July 3, 2000related to Mercury’s 4.75% Convertible Subordinated Notes due July 1, 2007. 10−Q 000−22350 4.3 August 14, 2000

10.9 Confirmation regarding Swap Transaction from Goldman Sachs CapitalMarkets, L.P. dated January 17, 2002 (as revised on January 31, 2002), andConfirmation regarding Swap Transaction from Goldman Sachs CapitalMarkets, L.P. dated February 26, 2002. 10−K 000−22350 10.18 March 27, 2002

99


Table of Contents



10.10 Indenture between Mercury, as Issuer and U.S. Bank National Association, asTrustee dated April 29, 2003 related to Mercury’s Zero Coupon SeniorConvertible Notes due 2008. 10−Q 000−22350 4.1 April 30, 2003

10.11 First Supplemental Indenture between Mercury, as Issuer and U.S. BankNational Association, as Trustee dated October 26, 2005 related to Mercury’sZero Coupon Senior Convertible Notes due 2008. 8−K 000−22350 10.46 October 28, 2005

10.12 Form of Second Supplemental Indenture between the Company and U.S. BankNational Association relating to the 4.75% Convertible Subordinated Notes due2007 8−K 000−22350 10.56 May 4, 2006

10.13 Form of Second Supplemental Indenture between the Company and U.S. BankNational Association relating to the Zero Coupon Senior Convertible Notes due2008 8−K 000−22350 10.57 May 4, 2006

10.14 Form of Note for Mercury’s Zero Coupon Senior Convertible Notes due 2008.10−Q 000−22350 4.1 April 30, 2003

10.15 Registration Rights Agreement, dated as of April 23, 2003, by and betweenMercury and UBS Warburg LLC related to Zero Coupon Senior ConvertibleNotes due 2008. 10−Q 000−22350 4.2 April 30, 2003

10.16 Confirmation regarding Swap Transaction from Goldman Sachs CapitalMarkets, L.P. dated November 5, 2002. 10−Q 000−22350 10.1 April 30, 2003

10.17 Agreement and Plan of Merger among Freshwater Software, Inc., Mercury andAqua Merger Company dated as of May 21, 2001. 10−Q 000−22350 10.1 August 14, 2001

10.18 Agreement and Plan of Merger dated as of June 9, 2003, among Kintana, Inc.,Mercury, Kanga Merger Corporation, Kanga Acquisition L.L.C. and Raj Jain asStockholders’ Representative. 10−Q 000−22350 10.1 August 14, 2003

10.19‡ Agreement and Plan of Merger dated as of January 8, 2006, by and amongMercury, Systinet Corporation, Shark Corporation and Warburg Pincus PrivateEquity VIII, L.P., as Stockholders Representative, as amended January 31, 2006.

10.20 Purchase and Sale Agreement by and between WHSUM Real Estate LimitedPartnership and Mercury dated December 1, 2000. 10−K 000−22350 10.12 March 29, 2001

10.21 Lease Agreement by and between 369 Whisman Associates, L.P. and Mercury,dated as of December 15, 2003. 10−K 000−22350 10.19 March 5, 2004

100


Table of Contents



10.22 Agreement of Sublease dated February 28, 2005, by and between NetscapeCommunications Corporation and Mercury. 10−K 000−22350 10.44 March 14, 2005

10.23* 401(k) Plan. S−1 33−68554 10.12 October 29, 1993

10.24* Amended and Restated 1989 Stock Option Plan. S−8 333−62125 4.1 August 24, 1998

10.25* 1994 Directors’ Stock Option Plan and Forms of Notice of Grant and StockOption Agreement. S−8 33−95178 10.1 July 31, 1995

10.26* Amended and Restated 2000 Supplemental Stock Option Plan and Forms ofNotice of Grant and Stock Option Agreement. S−8 333−56316 4.2 February 28, 2001

10.27* Amended and Restated 1998 Employee Stock Purchase Plan and Form ofSubscription Agreement. S−8 333−111915 4.2 January 14, 2004

10.28* Amended and Restated 1999 Stock Option Plan and Forms of Notice ofGrant and Stock Option Agreement. S−8 333−111915 4.1 January 14, 2004

10.29* Conduct Ltd. 1998 Share Option Plan. S−8 333−94837 4.1 January 18, 2000

10.30* Freshwater Software, Inc. 1997 Stock Plan. S−8 333−61786 4.1 May 29, 2001

10.31* Performant, Inc. 2000 Stock Option/Restricted Stock Plan. S−8 333−106646 4.1 June 30, 2003

10.32* Kintana, Inc. 1997 Equity Incentive Plan. S−8 333−108266 4.1 August 27, 2003

10.33* Chain Link Technologies Limited Company Share Option Scheme. S−8 333−108266 4.2 August 27, 2003

10.34* Appilog, Inc. 2003 Stock Option Plan. S−8 333−117599 4.1 July 23, 2004

10.35*‡ Systinet Corporation 2001 Stock Option and Incentive Plan.

10.36* Letter Agreement by and between Mercury and Kenneth Klein, effective asof December 30, 2003. 10−K 000−22350 10.20 March 5, 2004

10.37* Employment Agreement by and between Mercury and Anthony Zingaleeffective as of November 1, 2005. 8−K 000−22350 10.51 February 14, 2006

10.38* Change of Control Agreement by and between Mercury and AnthonyZingale dated February 8, 2006. 8−K 000−22350 10.52 February 14, 2006

10.39* Employment Agreement by and between Mercury and David Murphy datedMarch 13, 2006. 8−K 000−22350 10.53 March 16, 2006

101


Table of Contents



10.40* Change of Control Agreement by and between Mercury and David Murphydated March 13, 2006. 8−K 000−22350 10.54 March 16, 2006

10.41* Amendment No. 1 to Employment Agreement by and between theCompany and David Murphy dated June 20, 2006 8−K 000−22350 10.58 June 21, 2006

10.42* Amended and Restated Employment Agreement dated August 28, 2000 byand between Mercury and Douglas Smith. 10−K 000−22350 10.16 March 29, 2001

10.43* Agreement by and between Mercury and Doug Smith dated October 31,2005. 8−K 000−22350 10.48 November 3, 2005

10.44* Amendment Agreement by and between Mercury and Doug Smith datedNovember 30, 2005. 8−K 000−22350 10.49 December 2, 2005

10.45* Employment Agreement dated February 11, 2005 by and between Mercuryand Amnon Landan. 10−K 000−22350 10.37 March 14, 2005

10.46* Agreement by and between Mercury and Amnon Landan datedNovember 1, 2005. 8−K 000−22350 10.47 November 3, 2005

10.47* Amendment to Agreement by and between Mercury and Amnon Landaneffective as of January 27, 2006. 8−K 000−22350 10.50 February 2, 2006

10.48* Second Amendment to Agreement by and between the Company andAmnon Landan dated July 28, 2006 8−K 000−22350 10.59 July 31, 2006

10.49* Form of Change of Control Agreement entered into by Mercury withcertain officers. 8−K 000−22350 10.2 December 21, 2004

10.50* Form of Directors’ and Officers’ Indemnification Agreement. 10−Q 000−22350 10.2 August 14, 2003

10.51* Form of Notice of Grant and Stock Option Agreement between Mercuryand Anthony Zingale. 8−K 000−22350 10.3 December 3, 2004

10.52* Form of Notice of Grant and Stock Option Agreement between Mercuryand Amnon Landan. 8−K 000−22350 10.2 February 9, 2005

10.53* Form of Notice of Grant and Stock Option Agreement between Mercuryand Executive Officers. 8−K 000−22350 10.3 February 9, 2005

10.54* Mercury Long−Term Incentive Plan. 8−K 000−22350 10.1 December 21, 2004

10.55* Form of Mercury Long−Term Incentive Plan Participation Notice. 8−K 000−22350 10.1 February 9, 2005

10.56* Amended and Restated Mercury Long−Term Incentive Plan. 10−K 000−22350 10.42 March 14, 2005

102


Table of Contents



10.57* Mercury 2005 Annual Executive Incentive Plan. 10−K 000−22350 10.43 March 14, 2005

10.58* Form of Mercury Executive Annual Incentive Bonus Plan and Form ofParticipation Notice 8−K 000−22350 10.55 March 31, 2006

14.1** Code of Business Conduct and Ethics.

21.1‡ Subsidiaries of Mercury.

24.1 Power of Attorney (see page 104).

31.1‡ Certification of the Chief Executive Officer pursuant to Securities Exchange ActRules 13a−14 and 15d−14 as adopted pursuant to Section 302 of theSarbanes−Oxley Act of 2002.

31.2‡ Certification of the Chief Financial Officer pursuant to Securities Exchange ActRules 13a−14 and 15d−14 as adopted pursuant to Section 302 of theSarbanes−Oxley Act of 2002.

32.1† Certification of the Chief Executive Officer pursuant to 18 U.S.C. Section 1350, asadopted pursuant to Section 906 of the Sarbanes−Oxley Act of 2002.

32.2† Certification of the Chief Financial Officer pursuant to 18 U.S.C. Section 1350, asadopted pursuant to Section 906 of the Sarbanes−Oxley Act of 2002.

* Designates management contract or compensatory plan arrangements required to be filed as an exhibit of this Annual Report on Form 10−K.** See Item 10, Directors and Executive Officers of Registrant of this Annual Report on Form 10−K.‡ Filed herewith.† Furnished herewith.

103


Table of Contents SIGNATURES

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant, Mercury Interactive Corporation, a corporationorganized and existing under the laws of the State of Delaware, has duly caused this Report to be signed on its behalf by the undersigned, thereunto dulyauthorized.

Dated: October 5, 2006

MERCURY INTERACTIVE CORPORATION

(Registrant)

By: /S/ DAVID J. MURPHY

David J. MurphySenior Vice President and Chief Financial Officer

(Principal Financial Officer)

By: /S/ BRIAN STEIN

Brian SteinChief Accounting Officer

(Principal Accounting Officer)

104


Table of ContentsKNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints jointly and severally, Anthony

Zingale and/or David J. Murphy and each one of them, his attorneys−in−fact, each with the power of substitution, for him in any and all capacities, to sign anyand all amendments to this Annual Report on Form 10−K and to file the same, with exhibits thereto and other documents in connection therewith, with theSecurities and Exchange Commission, hereby ratifying and confirming all that each of said attorneys−in−fact, or his substitute or substitutes, may do or cause tobe done by virtue hereof.

Signature Title Date

/S/ ANTHONY ZINGALE

Anthony ZingalePresident and Chief Executive Officer(Principal Executive Officer) and Director

October 5, 2006

/S/ DAVID J. MURPHY

David J. MurphySenior Vice President andChief Financial Officer(Principal Financial Officer)

October 5, 2006

/S/ BRIAN STEIN

Brian SteinChief Accounting Officer(Principal Accounting Officer)

October 5, 2006

/S/ BRAD BOSTON

Brad BostonDirector October 5, 2006

/S/ JOSEPH COSTELLO

Joseph CostelloDirector October 5, 2006

/S/ STANLEY KELLER

Stanley KellerDirector October 5, 2006

/S/ IGAL KOHAVI

Igal KohaviDirector October 5, 2006

/S/ CLYDE OSTLER

Clyde OstlerDirector October 5, 2006

/S/ YAIR SHAMIR

Yair ShamirDirector October 5, 2006

/S/ GIORA YARON

Giora YaronChairman of the Board of Directors October 5, 2006

105


Table of ContentsREPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

To the Board of Directors and Stockholders ofMercury Interactive Corporation:

We have completed integrated audits of Mercury Interactive Corporation’s 2005 and 2004 consolidated financial statements and of its internal control overfinancial reporting as of December 31, 2005, and an audit of its 2003 consolidated financial statements in accordance with the standards of the Public CompanyAccounting Oversight Board (United States). Our opinions, based on our audits, are presented below.

Consolidated financial statements

In our opinion, the consolidated financial statements listed in the index appearing under Item 15 present fairly, in all material respects, the financialposition of Mercury Interactive Corporation and its subsidiaries (the “Company”) at December 31, 2005 and December 31, 2004, and the results of theiroperations and their cash flows for each of the three years in the period ended December 31, 2005 in conformity with accounting principles generally accepted inthe United States of America. These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion onthese financial statements based on our audits. We conducted our audits of these statements in accordance with the standards of the Public Company AccountingOversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financialstatements are free of material misstatement. An audit of financial statements includes examining, on a test basis, evidence supporting the amounts anddisclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, and evaluating the overallfinancial statement presentation. We believe that our audits provide a reasonable basis for our opinion.

As discussed in Note 1 to the consolidated financial statements, effective October 1, 2004, the Company changed its method of accounting for contingentlyconvertible equity securities in accordance with Emerging Issues Task Force Issue No. 04−8, The Effect of Contingently Convertible Debt on Diluted EarningsPer Share.

Internal control over financial reporting

Also, we have audited management’s assessment, included in “Management’s Report on Internal Control Over Financial Reporting,” appearing underItem 9A, that Mercury Interactive Corporation did not maintain effective internal control over financial reporting as of December 31, 2005, because of the effectof not maintaining (1) an effective control environment and (2) effective controls over the accounting for and disclosure of its stock−based compensationexpense, based on criteria established in Internal Control—Integrated Framework issued by the Committee of Sponsoring Organizations of the TreadwayCommission (“COSO”). The Company’s management is responsible for maintaining effective internal control over financial reporting and for its assessment ofthe effectiveness of internal control over financial reporting. Our responsibility is to express opinions on management’s assessment and on the effectiveness ofthe Company’s internal control over financial reporting based on our audit.

We conducted our audit of internal control over financial reporting in accordance with the standards of the Public Company Accounting Oversight Board(United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether effective internal control over financialreporting was maintained in all material respects. An audit of internal control over financial reporting includes obtaining an understanding of internal control overfinancial reporting, evaluating management’s assessment, testing and evaluating the design and operating effectiveness of internal control, and performing suchother procedures as we consider necessary in the circumstances. We believe that our audit provides a reasonable basis for our opinions.

A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reportingand the preparation of financial statements for external purposes in

106


Table of Contentsaccordance with generally accepted accounting principles. A company’s internal control over financial reporting includes those policies and procedures that(i) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company;(ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally acceptedaccounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors ofthe company; and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company’sassets that could have a material effect on the financial statements.

Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation ofeffectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliancewith the policies or procedures may deteriorate.

A material weakness is a control deficiency, or combination of control deficiencies, that results in more than a remote likelihood that a materialmisstatement of the annual or interim financial statements will not be prevented or detected. The following material weaknesses have been identified andincluded in management’s assessment as of December 31, 2005.

1. Control environment. The Company did not maintain an effective control environment based on criteria established in the COSO framework.Specifically, the Company did not maintain controls adequate to prevent or detect instances of intentional override or intervention of their controlsor intentional misconduct by certain former members of senior management. Also, there was a lack of attention to identifying and responding tosuch instances. This lack of an effective control environment permitted certain former members of senior management, including Prior Management(as defined in Item 9A), to deliberately override certain controls between 1992 through March 31, 2005 resulting in certain transactions not beingproperly accounted for in the Company’s consolidated financial statements and contributing to the need to restate certain of the Company’spreviously issued financial statements. Each of these former members of their senior management appears to have also personally benefited fromthese practices. In addition, the Compensation Committee of the Company’s Board of Directors mistakenly relied on certain former members ofsenior management to appropriately discharge the duties delegated to them. Furthermore, the Company did not adequately monitor certain of theircontrol practices, demonstrate a commitment to integrity and objectivity and foster a consistent and open flow of information and communicationbetween those initiating transactions and those responsible for their financial reporting. Certain former members of senior management intentionallyexploited this environment as follows:

a. Stock−based compensation. Certain former members of senior management (including the Company’s then CEO and then CFO)intentionally deviated from the Company’s controls over the accounting for stock option transactions, which resulted in the creation ofmisleading accounting records. Additionally, these certain former members of senior management either knew or should have known thatthe vast majority of Company’s stock options transactions occurring between January 1996 and April 2002 were not appropriatelyaccounted for in accordance with generally accepted accounting principles.

b. Earnings management. Between 1997 and 2002, the Company identified several instances where certain former members of seniormanagement (including Company’s then CEO and then CFO) appear to have deliberately overridden controls in order to manage orinfluence the timing of quarter−end shipments, without public disclosure, and to influence the timing and level at which certain expenseitems and accruals were made in order to inappropriately achieve a desired consistency of reported financial results, without appropriatepublic disclosure.

c. Executive compensation. In 1999, a loan was made to the Company’s former CEO (which has since been repaid) that lacked appropriatedocumentation including approval by the Company’s

107


Table of Contents

Board of Directors. The aforementioned loan was referred to in several of the Company’s periodic public disclosures but not all of itssignificant terms were clearly and completely disclosed. In addition, certain inappropriate expense reimbursements were made to theCompany’s former CEO.

This control environment material weakness contributed to the override of controls by certain former members of senior management, which in turnresulted in the restatement of the Company’s consolidated financial statements for the years 2004, 2003, 2002, each of the quarters of 2004, and2003, as well as the first quarter of 2005. Additionally, this control environment material weakness could result in misstatements of any of theCompany’s financial statement accounts and disclosures that would result in a material misstatement to the annual or interim consolidated financialstatements that would not be prevented or detected. Accordingly, the Company’s management has determined that this control deficiency constitutesa material weakness.

The material weakness in the Company’s control environment contributed to the existence of the following additional material weakness.

2. Controls over stock−based compensation expense. The Company did not maintain effective controls over the accounting for and disclosure of itsstock−based compensation expense. Specifically, effective controls, including monitoring, were not maintained to ensure the existence,completeness, valuation and presentation of the Company’s stock−based compensation transactions related to the granting, modifying andexercising (including in certain instances with promissory notes) of the Company’s stock options. In addition, effective controls were not maintainedover the granting of stock purchase rights to employees through the Company’s Employee Stock Purchase Plan. This control deficiency resulted inthe misstatement of the Company’s stock−based compensation expense and additional paid−in capital accounts and related financial disclosures,and in the restatement of the Company’s consolidated financial statements for the years 2004, 2003, 2002, each of the quarters of 2004, and 2003, aswell as the first quarter of 2005. Additionally, this control deficiency could result in misstatements of the aforementioned accounts and disclosuresthat would result in a material misstatement of the annual or interim consolidated financial statements that would not be prevented or detected.Accordingly, the Company’s management has determined that this control deficiency constitutes a material weakness.

These material weaknesses were considered in determining the nature, timing, and extent of audit tests applied in our audit of the 2005 consolidatedfinancial statements, and our opinion regarding the effectiveness of the Company’s internal control over financial reporting does not affect our opinion on thoseconsolidated financial statements.

In our opinion, management’s assessment that Mercury Interactive Corporation did not maintain effective internal control over financial reporting as ofDecember 31, 2005, is fairly stated, in all material respects, based on criteria established in Internal Control—Integrated Framework issued by the COSO. Also,in our opinion, because of the effects of the material weaknesses described above on the achievement of the objectives of the control criteria, Mercury InteractiveCorporation has not maintained effective internal control over financial reporting as of December 31, 2005, based on the criteria established in InternalControl—Integrated Framework issued by the COSO.

/s/ PRICEWATERHOUSECOOPERS LLP

San Jose, CaliforniaOctober 5, 2006

108


Table of ContentsMERCURY INTERACTIVE CORPORATION

CONSOLIDATED BALANCE SHEETS(in thousands, except per share amounts)

December 31,2005

December 31,2004

ASSETSCurrent assets:

Cash and cash equivalents $ 873,138 $ 182,868Short−term investments 240,402 447,453Trade accounts receivable, net of sales reserve of $7,032 and $5,157, respectively 269,150 223,410Deferred tax assets, net 10,392 3,445Prepaid expenses and other assets 59,090 72,999

Total current assets 1,452,172 930,175Long−term investments 287,587 508,120Property and equipment, net 80,032 78,233Investments in non−consolidated companies 12,541 13,031Goodwill 400,122 396,329Intangible assets, net 25,538 38,452Long−term deferred tax assets, net 5,666 3,503Other assets, net 31,774 45,638

Total assets $ 2,295,432 $ 2,013,481LIABILITIES AND STOCKHOLDERS’ EQUITY

Current liabilities:Accounts payable $ 9,024 $ 20,008Accrued and other liabilities 242,810 143,815Income taxes 211,348 65,114Deferred tax liabilities, net — 2Short−term deferred revenue 372,237 311,576Convertible notes 500,000 —

Total current liabilities 1,335,419 540,515Convertible notes, non−current 297,289 804,483Long−term deferred revenue 92,668 102,205Other long−term liabilities 5,420 2,386

Total liabilities 1,730,796 1,449,589Commitments and contingencies (Notes 8, 9 and 18)Stockholders’ equity:

Preferred stock: par value $0.002 per share, 5,000 shares authorized; no shares issued and outstanding — — Common stock: par value $0.002 per share, 560,000 shares authorized; 88,286 and 85,011 shares issued and

outstanding, respectively 177 170Additional paid−in capital 1,199,206 1,118,753Treasury stock: at cost; 10,459 shares and 10,459 shares, respectively (348,249) (348,249)Notes receivable from issuance of common stock (1,510) (5,456)Unearned stock−based compensation (4,282) (9,822)Accumulated other comprehensive loss (2,455) (13,182)Accumulated deficit (278,251) (178,322)

Total stockholders’ equity 564,636 563,892Total liabilities and stockholders’ equity $ 2,295,432 $ 2,013,481

The accompanying notes are an integral part of these consolidated financial statements.

109



CONSOLIDATED STATEMENTS OF OPERATIONS(in thousands, except per share amounts)


Revenues:License fees $304,470 $261,382 $200,839Subscription fees 187,607 152,199 98,824

Total product revenues 492,077 413,581 299,663Maintenance fees 248,391 196,215 159,023Professional service fees 102,679 76,275 47,519

Total revenues 843,147 686,071 506,205Costs and expenses:

Cost of license and subscription (including stock−based compensation*) 46,863 41,799 34,432Cost of maintenance (including stock−based compensation*) 16,727 17,898 17,731Cost of professional services (including stock−based compensation*) 91,614 63,737 40,321Cost of revenue—amortization of intangible assets 10,141 10,019 5,189Marketing and selling (including stock−based compensation*) 345,235 335,867 303,865Research and development (including stock−based compensation*) 83,675 82,122 73,096General and administrative (including stock−based compensation*) 70,560 63,802 55,904Acquisition−related expenses — 900 11,968Costs of restatement and related legal activities 84,040 — — Restructuring, integration and other related expenses 2,050 3,088 3,389Amortization of intangible assets 5,427 5,544 2,281Loss on intangible and other assets 15,998 — — Excess facilities expense — 8,943 16,882

Total costs and expenses 772,330 633,719 565,058Income (loss) from operations 70,817 52,352 (58,853)Interest income 53,296 38,210 34,399Interest expense (31,851) (24,627) (22,824)Other income (expense), net (37,769) (1,261) (4,907)Income (loss) before provision for income taxes 54,493 64,674 (52,185)Provision for income taxes 154,422 10,898 10,401Net income (loss) $ (99,929) $ 53,776 $(62,586)Net income (loss) per share—basic $ (1.15) $ 0.61 $ (0.72)Net income (loss) per share—diluted $ (1.15) $ 0.53 $ (0.72)Weighted average common shares—basic 86,984 87,668 86,609Weighted average common shares and equivalents—diluted 86,984 103,237 86,609* Stock−based compensation included above:

Cost of license and subscription $ (1,114) $ 1,201 $ 5,073Cost of maintenance (1,013) 1,725 5,433Cost of professional services (519) 798 3,180Marketing and selling (3,592) 16,305 60,425Research and development (1,484) 8,199 16,404General and administrative 401 6,232 15,148


110



CONSOLIDATED STATEMENTS OF STOCKHOLDERS’ EQUITY(in thousands, except for share amounts)

Common stock

Additionalpaid−inCapital Treasury

stock

Notesreceivable

fromissuance ofcommon

stock Unearnedstock−based

compensation

Accumulatedother

comprehensivegain/(loss)

Accumulateddeficit

Totalstockholders’

equityComprehensive

income/(loss)

Shares Amount

Balance at December 31, 2002 84,716 $ 170 $ 741,775 $ (16,082) $ (12,149) $ (88,840) $ (1,725) $ (169,512) $ 453,637Unearned stock−based

compensation — — 49,317 — — (49,317) — — — Amortization of stock−based

compensation expense — — — — — 90,995 — — 90,995Stock−based compensation

expense — — 14,668 — — — — — 14,668Reversal of unearned stock−based

compensation — — (8,425) — — 8,425 — — — Collection of notes receivable — — — — 4,186 — — — 4,186Repurchase of shares upon

cancellation of notesreceivable (20) — (289) — 289 — — — —

Interest on notes receivable — — (100) — (255) — — — (355)Stock options assumed in

conjunction with acquisitions — — 39,923 — — (1,571) — — 38,352Issuance of stock in conjunction

with acquisitions 2,237 4 88,529 — — — — — 88,533Stock issued under stock option

and employee stock purchaseplans 3,560 7 74,772 — — — — — 74,779

Currency translation adjustments — — — — — — (4,494) — (4,494) $ (4,494)Net loss — — — — — — — (62,586) (62,586) (62,586)Balance at December 31, 2003 90,493 181 1,000,170 (16,082) (7,929) (40,308) (6,219) (232,098) 697,715 $ (67,080)Unearned stock−based

compensation — — (7,073) — — 7,073 — — — Amortization of stock−based

compensation expense — — — — — 18,454 — — 18,454Stock−based compensation

expense — — 16,006 — — — — — 16,006Reversal of unearned stock−based

compensation — — (4,959) — — 4,959 — — — Tax benefit from stock options — — 339 — — — — — 339Collection of notes receivable — — — — 1,689 — — — 1,689Repurchase of shares upon

cancellation of notesreceivable (3) — (718) — 718 — — — —

Interest on notes receivable — — 304 — 66 — — — 370Purchase of treasury stock (9,675) (19) — (332,167) — — — — (332,186)Stock options assumed in

conjunction with acquisition — — 10,401 — — — — — 10,401Stock issued under stock option

and employee stock purchaseplans 4,196 8 104,283 — — — — — 104,291

Currency translation adjustments — — — — — — (6,963) — (6,963) $ (6,963)Net income — — — — — — — 53,776 53,776 53,776Balance at December 31, 2004 85,011 170 1,118,753 (348,249) (5,456) (9,822) (13,182) (178,322) 563,892 $ 46,813

111



CONSOLIDATED STATEMENTS OF STOCKHOLDERS’ EQUITY—(Continued)(in thousands, except for share amounts)

Common stock

Additionalpaid−inCapital Treasury

stock

Notesreceivable

fromissuance ofcommon

stock Unearnedstock−based

compensation

Accumulatedother

comprehensivegain/(loss)

Accumulateddeficit

Totalstockholders’

equityComprehensive

income/(loss)

Shares Amount

Unearned stock−based compensation — — (11,742) — — 11,742 — — — Amortization of stock−based

compensation expense — — — — — (8,063) — — (8,063)Stock−based compensation expense — — 742 — — — — — 742Reversal of unearned stock−based

compensation — — (1,861) — — 1,861 — — — Tax benefit from stock options — — 9,925 — — — — — 9,925Collection of notes receivable — — — — 650 — — — 650Repurchase of shares upon

cancellation of notes receivable (43) — (2,469) — 2,469 — — — — Interest on notes receivable — — (117) — 827 — — — 710Stock issued under stock option and

employee stock purchase plans 3,318 7 85,975 — — — — — 85,982Currency translation adjustments — — — — — — 10,727 — 10,727 $ 10,727Net loss — — — — — — — (99,929) (99,929) (99,929)Balance at December 31, 2005 88,286 $ 177 $ 1,199,206 $ (348,249) $ (1,510) $ (4,282) $ (2,455) $ (278,251) $ 564,636 $ (89,202)


112



CONSOLIDATED STATEMENTS OF CASH FLOWS(in thousands)


Cash flows from operating activities:Net income (loss) $ (99,929) $ 53,776 $ (62,586)Adjustments to reconcile net income (loss) to net cash provided by operating activities:

Depreciation and amortization 25,473 21,691 17,869Sales reserve 2,971 1,873 1,193Marked−to−market of the put option on 2003 Notes 34,204 — — Amortization of intangible assets 15,568 15,563 7,470Stock−based compensation expense (benefit) (7,321) 34,460 105,663(Gains) losses from investments, sales of assets and others (715) 993 3,532Loss on intangible and other assets 15,998 — — Write−off of in−process research and development — 900 11,968Excess facilities expense — 8,943 16,882Tax benefit from employee stock options 9,925 339 — Deferred income taxes (4,211) (6,504) 1,928Changes in assets and liabilities, net of effect of acquisitions:

Trade accounts receivable (55,154) (76,186) (40,878)Prepaid expenses and other assets (1,611) (13,617) (18,309)Accounts payable (10,477) 1,152 3,167Accrued liabilities 62,703 30,975 20,018Income taxes payable 143,918 10,645 201Deferred revenue 63,391 125,579 112,212Other long−term liabilities 719 1,845 541

Net cash provided by operating activities 195,452 212,427 180,871Cash flows from investing activities:

Maturities of investments 76,452 364,008 453,142Purchases of held−to−maturity investments (3,852) (362,799) (809,395)Decrease in restricted cash, net 5,765 — — Purchases of available−for−sale investments (52,375) (1,034,438) (1,687,095)Proceeds from sale of available−for−sale investments 408,045 1,185,294 1,498,549Distributions from non−consolidated companies 1,782 — — Proceeds from return on investment in non−consolidated company 350 1,525 — Purchases of investments in non−consolidated companies (1,875) (2,625) (1,500)Acquisitions of intangible assets — — (1,920)Acquisitions of businesses, net of cash acquired (9,640) (49,706) (158,681)Net proceeds from sale of assets and vacant facilities 4,863 2,684 — Acquisitions of property and equipment, net (18,681) (32,684) (17,093)

Net cash provided by (used in) investing activities 410,834 71,259 (723,993)Cash flows from financing activities:

Proceeds from issuance of convertible notes, net — — 488,056Proceeds from issuance of common stock under stock option and employee stock purchase plans 86,079 103,981 74,779Purchases of treasury stock — (332,186) — Payment of debt waiver fees (7,118) — — Collection of notes receivable from issuance of common stock 1,360 2,059 3,830

Net cash provided by (used in) financing activities 80,321 (226,146) 566,665Effect of exchange rate changes on cash 3,663 (2,643) (194)Net increase in cash and cash equivalents 690,270 54,897 23,349Cash and cash equivalents at beginning of year 182,868 127,971 104,622Cash and cash equivalents at end of year $873,138 $ 182,868 $ 127,971


113



NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

NOTE 1—OUR SIGNIFICANT ACCOUNTING POLICIES

We were incorporated in 1989 and began shipping testing products in 1991. Since 1991, we have introduced a variety of software products and services forBusiness Technology Optimization (BTO) including application delivery and application management. With our acquisition of Kintana in August 2003, wecommenced sales of Information Technology (IT) governance products. Our software products and services for BTO help customers maximize the businessvalue of IT by optimizing application quality and performance as well as managing IT costs, risks, and compliance.

In July and September 2005, we acquired Intuwave Limited and BeatBox Technologies, respectively. In July 2004, we acquired Appilog, Inc. and in Mayand August of 2003, we acquired Performant, Inc. and Kintana, Inc., respectively. These transactions were accounted for as purchases, and accordingly, theirresults of operations have been included in our consolidated financial statements since the date of the acquisitions. See Note 5 for a full description of theacquisitions.

Basis of presentation

We have wholly−owned sales subsidiaries in the Americas; Europe, the Middle East and Africa (EMEA); Asia Pacific (APAC); and Japan for marketing,distribution and support of products and services. As of December 31, 2005, the Americas included Brazil, Canada, Mexico, and the United States of America(the U.S.); EMEA included Austria, Belgium, Denmark, Finland, France, Germany, Holland, Israel, Italy, Luxembourg, Norway, Poland, South Africa, Spain,Sweden, Switzerland, and the United Kingdom (the U.K.); and APAC included Australia, China, Hong Kong, India, Korea, and Singapore. Research anddevelopment activities are primarily conducted in our Israel subsidiary. The consolidated financial statements include our accounts and those of ourwholly−owned subsidiaries. All intercompany accounts and transactions have been eliminated.

Certain reclassifications have been made to the prior period balances to conform to the current year’s presentation. The financial data presented for prioryears has been restated as discussed in our Form 10−K/A for the year ended December 31, 2004 and may not be comparable to discussions and data for periodspresented in our previously filed Annual Reports. These reclassifications have no effect on our net income (loss), total assets, or stockholders’ equity.

Use of estimates

The preparation of financial statements in conformity with accounting principles generally accepted in the U.S. requires management to make estimatesand assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statementsand the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates.

Foreign currency translation

In preparing our consolidated financial statements, we are required to translate the financial statements of our foreign subsidiaries from their functionalcurrency, generally the local currency, into U.S. dollars, the reporting currency. This process results in exchange gains or losses which, under the relevantaccounting guidance, are either included within the consolidated statements of operations or as a separate component of stockholders’ equity under the caption“Accumulated other comprehensive gain (loss)”. If a subsidiary’s functional currency is deemed to be the local currency, then gains or losses associated with thetranslation of that subsidiary’s financial statements are recorded as cumulative translation adjustments and included in accumulated other comprehensive income(loss). However, if the functional currency is deemed to be the U.S. dollar, gains or losses associated with the remeasurement of these financial statements arereported as “Other income (expense), net” in our consolidated statements of operations.

114



NOTES TO CONSOLIDATED FINANCIAL STATEMENTS—(Continued)

The functional currency of our subsidiary in Israel is the U.S. dollar. Assets and liabilities in Israel are remeasured at year−end exchange rates, except forproperty and equipment, which is remeasured at historical rates. Revenues and expenses are remeasured at average exchange rates in effect during the year.Foreign currency remeasurement gains or losses are included in the consolidated statements of operations. See Note 2 for foreign currency remeasurement gainsor losses recognized for the years ended December 31, 2005, 2004, and 2003.

The functional currencies of all other subsidiaries are the local currencies. Accordingly, all assets and liabilities of these subsidiaries are translated at thecurrent exchange rate at the end of the period and revenues and expenses at average exchange rates in effect during the period. The gains or losses fromtranslation of these subsidiaries’ financial statements are recorded as accumulated other comprehensive income or loss and included as a separate component ofstockholders’ equity.

Derivative financial instruments

We enter into derivative financial instrument contracts to hedge certain foreign currency exchange and interest rate exposures. We report these instrumentsin accordance with Statement of Financial Accounting Standards (SFAS) No. 133, Accounting for Derivative Instruments and Hedging Activities and SFASNo. 149, Amendment of Statement 133 on Derivative Instruments Hedging Activities.

Under SFAS No. 133, as amended, we are required to recognize all derivatives in our consolidated balance sheets at fair value. Derivatives that are nothedges must be adjusted to fair value through the consolidated statements of operations. If a derivative is a hedge, depending on the nature of the hedge, changesin its fair value will either be offset against the change in fair value of the hedged assets, liabilities or firm commitments through earnings, or recognized in othercomprehensive income (loss) until the hedged item is recognized in earnings. The ineffective portion of a derivative’s change in fair value will be immediatelyrecognized in earnings. The accounting for gains or losses from changes in fair value of a derivative instrument depends on whether it has been designated andqualifies as part of a hedging relationship, as well as on the type of hedging relationship. See Note 13 for a full description of our derivative financial instrumentsand related accounting policies.

Losses resulting from the early termination of interest rate swap agreements are deferred as an adjustment to the carrying amount of the outstanding debtand amortized to interest expense over the remaining term of the outstanding debt.

Cash and cash equivalents

We consider all highly−liquid debt instruments purchased with an original maturity of three months or less to be cash equivalents.

Short−term and long−term investments

We have categorized our debt securities as either held−to−maturity or available−for−sale securities in accordance with SFAS No. 115, Accounting forCertain Investments in Debt and Equity Securities. We classify all securities with remaining maturities of less than one year as short−term investments and allsecurities with remaining maturities greater than one year as long−term investments, with the exception of auction rate securities which are classified asshort−term investments regardless of their contractual maturities, based on the fact that they are priced and traded as short−term investments because of theinterest rate reset feature. As required by our policy, debt securities categorized as held−to−maturity have contractual maturities of less than three years and arecarried on our consolidated balance sheets at amortized cost. We categorize auction rate securities as available−for−sale investments. Available−for−salesecurities are reported on our consolidated balance sheets at

115




cost, which approximates fair market value due to the interest rate reset feature of these securities. As such, no unrealized gains or losses related to thesesecurities were reported during the years ended December 31, 2005, 2004, and 2003. Gross realized gains and losses on sales of available−for−sale debtsecurities were not material for the years ended December 31, 2005, 2004, and 2003. The cost basis of securities sold is based on the specific identificationmethod.

We review our investments in debt securities for potential impairment on a regular basis. As part of the review process, we consider the credit ratings ofthe issuers of these securities and our intent and ability to hold the investment for a period of time sufficient to allow for any anticipated improvement of theinvestee’s financial condition. We will record an impairment loss on investments for any other−than−temporary decline in fair value of these debt securitiesbelow their cost basis. For the years ended December 31, 2005, 2004, and 2003, we did not record any impairment losses related to other−than−temporarydeclines in fair value of our debt securities. At December 31, 2005, we did not record any unrealized losses on our debt securities related to an impairmentdetermined to be temporary.

Our portfolio of short−term and long−term investments consisted of the following (in thousands):

December 31,Available−for−Sale Securities 2005 2004

Auction rate securities $ 16,000 $ 371,001

Held−to−Maturity Securities

Corporate debt securities $ 6,666 $ 52,347U.S. treasury and agency securities* 505,323 532,225

$ 511,989 $ 584,572Investments in marketable securities $ 527,989 $ 955,573

* As of December 31, 2005, $7.5 million of securities were pledged as collateral for our obligations under our interest rate swap. See Note 13 for furtherdiscussion.

Our portfolio of short−term and long−term investments by contractual maturities as of December 31, 2005 was included in the following captions in theconsolidated balance sheets (in thousands):

December 31,2006 2007 Total Fair Value

Available−for−Sale Securities $ 16,000 $ — $ 16,000 $ 16,000Held−to−Maturity Securities $ 224,402 $ 287,587 $ 511,989 $ 505,888

Concentration of credit risks

Financial instruments which potentially subject us to concentrations of credit risk consist principally of cash, cash equivalents, investments, and accountsreceivable. We invest primarily in marketable securities and place our investments with high quality financial, government, or corporate institutions. Accountsreceivable are derived from sales to customers located primarily in the U.S., EMEA, and APAC. We perform ongoing credit evaluations of our customers and todate have not experienced any material losses. For the years ended December 31, 2005, 2004, and 2003, no customer accounted for more than 10% of revenue.

116




Fair value of financial instruments

The carrying amount of our financial instruments, including cash, cash equivalents, investments, accounts receivable, and accounts payable, approximatestheir respective fair values due to the short maturities of these financial instruments. Other financial instruments, such as foreign currency forward contracts,interest rate swaps, put options on our convertible debt instruments, and warrants are carried on our consolidated balance sheets at fair value. The fair value offoreign currency forward contracts has been estimated using market quoted rates of foreign currencies at the applicable balance sheet dates. The fair value of ourinterest rate swap is determined using various inputs, including forward interest rates and time to maturity. The fair value of the put option on our convertibledebt is determined using the net present value of the repayment required upon exercise of the put option. Warrants are valued using the Black−Scholesoption−pricing model.

The fair market value of our 4.75% Convertible Subordinated Notes due July 1, 2007 issued in 2000 (2000 Notes) was $279.0 million and $301.5 millionat December 31, 2005 and 2004, respectively, based on a quoted market price. The fair market value of our Zero Coupon Senior Convertible Notes due 2008issued in 2003 (2003 Notes) was $503.8 million and $525.2 million at December 31, 2005 and 2004, respectively, based on a quoted market price.

Property and equipment

Property and equipment are stated at cost less accumulated depreciation. Depreciation and amortization are provided using the straight−line method overthe estimated economic lives of assets, which are five to seven years for office furniture and equipment, two to three years for computers and related equipment,three years for internal use software, ten years for building improvements, and thirty years for buildings. Leasehold improvements are depreciated using thestraight−line method over the shorter of the estimated economic lives or the remaining lease terms. Costs incurred in connection with capital assets that are beingdeveloped or readied for their intended use are capitalized and included in property and equipment as construction in progress. Such costs remain in constructionin progress until the related assets are placed in service, at which time the assets will become subject to depreciation.

Internal use software

We recognize software development costs in accordance with the Statement of Position (SOP) No. 98−1, Accounting for the Costs of Computer SoftwareDeveloped or Obtained for Internal Use. Software development costs, including costs incurred to purchase third party software, are capitalized beginning whencertain factors are present including, among others, that technology exists to achieve the performance requirements and/or buy versus internal developmentdecisions have been made. Capitalization of software costs ceases when the software is substantially complete and is ready for its intended use, and is amortizedover its estimated useful life of generally three years using the straight−line method. At December 31, 2005 and 2004, we have capitalized internal use softwareof $29.1 million and $24.9 million, respectively. For the years ended December 31, 2005, 2004, and 2003, we incurred amortization expense of $7.2 million, $4.8million, and $2.8 million, respectively.

When events or circumstances indicate the carrying value of internal use software might not be recoverable, we assess the recoverability of these assets bydetermining whether the amortization of the asset balance over its remaining life can be recovered through undiscounted future operating cash flows. The amountof impairment, if any, is recognized to the extent an asset’s carrying value exceeds projected discounted future operating cash flows. In addition, when it is nolonger probable that computer software being developed will be placed in service, the asset will be recorded at the lower of its carrying value or fair value, lessdirect selling costs. We did not write down any internal use software during the years ended December 31, 2005, 2004, and 2003.

117




Software costs

We account for research and development costs in accordance with SFAS No. 86, Accounting for Costs of Computer Software to be Sold, Leased orOtherwise Marketed. Costs incurred in the research and development of new software products are expensed as incurred until technological feasibility isestablished. Development costs are capitalized beginning when a product’s technological feasibility has been established and ending when the product isavailable for general release to customers. Technological feasibility is reached when the product reaches the working model stage. To date, products andenhancements have generally reached technological feasibility and have been released for sale at substantially the same time and all research and developmentcosts have been expensed. Consequently, no research and development costs were capitalized in the years ended December 31, 2005, 2004, and 2003.

Investments in non−consolidated companies

Investments in non−consolidated companies consist of a warrant to purchase common stock of a publicly traded company and minority equity investmentsin privately−held companies and private equity funds. We make these investments for business and strategic purposes. Investments in privately−held companiesand private equity funds are accounted for under the cost method, as we do not have the ability to exercise significant influence over these companies’ operations.We record the warrant at its fair value at each balance sheet date using the Black−Scholes option−pricing model because it is considered a derivative instrumentunder SFAS No. 133. We periodically monitor our investments for impairment and will record reductions in carrying values of investments in privately−heldcompanies and private equity funds, if and when necessary. Our evaluation process is based on information we request from these privately−held companies.This information is not subject to the same disclosure regulations as U.S. public companies, and as such, the basis for these evaluations is subject to the timingand the accuracy of the data received from these companies. As part of this evaluation process, our review includes, but is not limited to, a review of eachcompany’s cash position, recent financing activities, financing needs, earnings/revenue outlook, operational performance, management/ownership changes, andcompetition. If we determine that the carrying value of an investment is at an amount above its estimated fair value, or if a company has completed a financingwith new third−party investors based on a valuation significantly lower than the carrying value of our investment and the decline is deemed to beother−than−temporary, it is our policy to record a loss on investment in our consolidated statements of operations. In determining the loss on our investments, weconsider the most recent valuation of each of the companies based on recent sales of equity securities to unrelated third party investors and whether thecompanies have sufficient funds and financing to continue as a going concern for at least twelve months.

Goodwill

Goodwill represents the excess of the purchase price of an acquired company over the fair value of tangible and intangible assets acquired. In January2002, we adopted SFAS No. 142, Goodwill and Other Intangible Assets, and as a result, we ceased to amortize goodwill and reclassified certain intangible assetsto goodwill. We are also required to perform an impairment review of goodwill on an annual basis or more frequently if circumstances change.

Our impairment review involves a two−step process as follows:

• Step 1—We compare the fair value of our reporting units to the carrying value, including goodwill, of each of these units. For each reporting unit forwhich the carrying value, including goodwill, exceeds the reporting unit’s fair value, we proceed to Step 2. If a reporting unit’s fair value exceeds itscarrying value, no impairment expense would be necessary.

118




• Step 2—We perform an allocation of the fair value of the reporting unit to our identifiable tangible and non−goodwill intangible assets and liabilities.This derives an implied fair value for the reporting unit’s goodwill, which is then compared to the carrying amount of the reporting unit’s goodwill. Ifthe carrying amount of the reporting unit’s goodwill is greater than the implied fair value of its goodwill, an impairment loss would be recognized forthe excess.

Intangible assets

Intangible assets are carried at cost less accumulated amortization. We amortize intangible assets on a straight−line basis over their estimated useful lives.The range of estimated useful lives for our identifiable intangible assets is three months to six years.

Impairment of long−lived assets

We assess the recoverability of long−lived assets in accordance with SFAS No. 144, Accounting for the Impairment or Disposal of Long−Lived Assets.The impairment of long−lived assets held for sale is measured at the lower of book value or fair value less cost to sell. The recoverability of long−lived assetsheld and used is assessed based on the carrying amount of the asset and its fair value, which is generally determined using undiscounted cash flows expected toresult from the use and eventual disposal of the asset, as well as specific appraisal in certain instances.

We assess the impairment of long−lived assets and certain identifiable intangible assets to be held and used whenever events or changes in circumstancesindicate that the carrying value may not be recoverable. Factors we consider important which could trigger an impairment review include the following:

• a significant decrease in the market price of a long−lived asset (asset group);

• a significant adverse change in the extent or manner in which a long−lived asset (asset group) is being used or in its physical condition;

• a significant adverse change in legal factors or in the business climate that could affect the value of a long−lived asset (asset group), including anadverse action or assessment by a regulator;

• an accumulation of costs significantly in excess of the amount originally expected for the acquisition or construction of a long−lived asset (assetgroup);

• a current−period operating or cash flow loss combined with a history of operating or cash flow losses or a projection or forecast that demonstratescontinuing losses associated with the use of a long−lived asset (asset group); and

• a current expectation that, more likely than not, a long−lived asset (asset group) will be sold or otherwise disposed of significantly before the end ofits previously estimated useful life.

No excess facilities expense was recorded in the year ended December 31, 2005. See Note 3 for excess facilities expenses recorded during the years endedDecember 31, 2004 and 2003.

Income taxes

We account for income taxes in accordance with the liability method of accounting for income taxes. Under the liability method, deferred assets andliabilities are recognized based upon anticipated future tax consequences attributable to differences between financial statement carrying amounts of assets andliabilities and their respective tax bases. The provision for income taxes is comprised of the current tax liability and the change in

119




deferred tax assets and liabilities. We have recorded a valuation allowance for the entire portion of our net operating losses related to the income tax benefitsarising from the exercise of employees’ stock options.

Treasury stock

We account for treasury stock under the cost method. To date, we have not reissued or retired any of our treasury stock.

Stock−based compensation

We account for stock−based compensation for options granted to our employees and members of our Board of Directors using Accounting PrinciplesBoard (APB) Statement No. 25, Accounting for Stock Issued to Employees, and related interpretations, including Financial Accounting Standard BoardInterpretation (FIN) No. 44, Accounting for Certain Transactions Involving Stock Compensation, An Interpretation of APB Opinion No. 25, and comply with thedisclosure provisions of SFAS No. 123, Accounting for Stock−Based Compensation, as amended by SFAS No. 148, Accounting for Stock−BasedCompensation—Transition and Disclosure Amendment of SFAS No. 123.

Under APB No. 25, compensation expense is measured as of the date on which the number of shares and exercise price become fixed. Generally, thisoccurs on the grant date, in which case the stock option is accounted for as a fixed award as of the date of grant. If the number of shares or exercise price is notfixed as of the grant date, the stock option is accounted for as a variable award until such time as the number of shares and/or exercise price becomes fixed, or thestock option is exercised, is cancelled or expires.

Compensation expense associated with fixed awards is measured as the difference between the fair market value of our stock on the date of grant and thegrant recipient’s exercise price, which is the intrinsic value of the award on that date. No compensation expense is recognized if the grant recipient’s exerciseprice equals the fair market value of our common stock on the date of grant. Stock compensation expense is recognized over the vesting period using the ratablemethod, whereby an equal amount of expense is recognized for each year of vesting.

Promissory notes used in the past to exercise stock options are non−recourse in nature, and therefore we account for such transactions in accordance withEmerging Issues Task Force (EITF) Consensus No. 95−16, “Accounting for Stock Compensation Arrangements with Employer Loan Features Under APBOpinion No. 25,” EITF 95−16, and FIN No. 44. The promissory notes are interest bearing and the accrued interest on promissory notes is included in “Notesreceivable from issuance of common stock” on the consolidated balance sheets. Our determination that the promissory notes are non−recourse was based on aseries of factors that, when assessed collectively, indicated the promissory note holders were not at risk, despite the recourse provisions of the notes. Thesefactors included, among other things; such loans were collateralized by the stock issued, loan interest in numerous circumstances was forgiven, and repurchase ofshares by us in instances in which the value of the stock pledged as security for the loan was less than the loan amount upon maturity of the note or the noteholder’s termination of employment. Since interest associated with non−recourse promissory notes is considered part of the option’s exercise price, and ourpromissory notes were and are subject to prepayment, the exercise prices of the awards were not fixed. Accordingly, stock options exercisable or exercised withnon−recourse promissory notes are subject to variable accounting under APB No. 25. Additionally, certain stock options for which evidence of authorizationcould not be located are being accounted for as variable awards.

For variable awards, the intrinsic value of our stock options is remeasured each period based on the difference between the fair market value of our stockas of the end of the reporting period and the grant

120




recipient’s exercise price. As a result, the amount of compensation expense or benefit to be recognized each period fluctuates based on changes in our closingstock price from the end of the previous reporting period to the end of the current reporting period. Compensation expense in any given period is calculated as thedifference between total earned compensation at the end of the period, less total earned compensation at the beginning of the period. Compensation expense forthese awards is recognized over the vesting period using an accelerated method of recognition in accordance with FIN No. 28, Accounting for StockAppreciation Rights and Other Variable Stock Option or Award Plan, An Interpretation of APB Opinions No. 15 and 25. Variable accounting is applied untilthere is a measurement date, the award is exercised, forfeited or expires, or the related note is repaid.

We account for modifications to stock options under FIN No. 44, which was effective July 1, 2000. Modifications include, but are not limited to,acceleration of vesting, extension of the exercise period following termination of employment and/or continued vesting while not providing substantive services.Compensation expense is recorded in the period of modification for the intrinsic value of the vested portion of the award, including vesting that occurs while notproviding substantive services, on the date of modification. The intrinsic value of the award is the difference between the fair market value of our common stockon the date of modification and the optionee’s exercise price.

We account for stock options issued to non−employees in accordance with the provisions of SFAS No. 123 and EITF No. 96−18, Accounting for EquityInstruments That Are Issued to Other Than Employees for Acquiring, or in Conjunction with Selling, Goods or Services. In accordance with these accountingstandards, the fair value of stock options issued to non−employees is determined on the date of grant using the Black−Scholes option pricing model. If aperformance commitment exists, the fair value of the award is amortized to compensation expense over the service period using the ratable method. Aperformance commitment exists if performance by the counterparty to earn the equity instruments is probable because of sufficiently large disincentives fornonperformance, provided the Company has no history of not enforcing such terms. If a performance commitment does not exist, a measurement date does notoccur until performance is complete. In these instances, the fair value of the award is remeasured each period and compensation expense is recognized over theservice period using the accelerated method of amortization in accordance with FIN No. 28.

We value stock options assumed in conjunction with business combinations accounted for using the purchase method at fair value on the date ofacquisition using the Black−Scholes option pricing model, in accordance with FIN No. 44. The fair value of assumed options is included as a component of thepurchase price. The intrinsic value of unvested stock options is recorded as unearned stock−based compensation and amortized to expense over the remainingvesting period of the stock options using the straight−line method.

SFAS No. 123 established a fair value based method of accounting for stock−based plans. Companies that elect to account for stock−based compensationplans in accordance with APB No. 25 are required to disclose the pro forma net income (loss) that would have resulted from the use of the fair value basedmethod under SFAS No. 123.

121




The following table presents the effect on net income (loss) and net income (loss) per share as if we had applied the fair value recognition provisions underSFAS No. 123 to options granted under our stock option plans and rights to acquire stock granted under our 1998 Employee Stock Purchase Plan (ESPP). Forpurposes of this pro forma disclosure, the value of the options and rights to acquire stock granted under the 1998 ESPP are estimated using a Black−Scholesoption pricing model and amortized to expense ratably over the vesting periods of the awards. Because the estimated value is determined as of the date of grant,the actual value ultimately realized by the employee may be significantly different.


(In thousands, except per share amounts)Net income (loss), as reported $ (99,929) $ 53,776 $ (62,586)Add:

Stock−based employee compensation expense (benefit) included in reported netincome (7,321) 34,460 105,663

Deduct:Stock−based employee compensation expense determined under fair value based

method for all awards, net of related tax effects (90,511) (145,750) (221,993)Pro forma net loss $(197,761) $ (57,514) $(178,916)

Net income (loss) per share—basic, as reported $ (1.15) $ 0.61 $ (0.72)Net loss per share—basic, pro forma $ (2.27) $ (0.66) $ (2.07)Net income (loss) per share—diluted, as reported $ (1.15) $ 0.53 $ (0.72)Net loss per share—diluted, pro forma $ (2.27) $ (0.66) $ (2.07)

We account for our ESPP in accordance with APB No. 25, SFAS No. 123 and FASB Technical Bulletin No. 97−1 (FTB 97−1), Accounting UnderStatement 123 for Certain Employee Stock Purchase Plans with a Look−Back Option. We calculate stock−based compensation expense under the fair valuebased method for shares issued pursuant to our 1998 ESPP based on an estimate of shares to be issued using estimated employee contributions.

We recognize stock−based compensation expense using the ratable method over the vesting period of the related options, which is generally a four−yearperiod. We have not provided an income tax benefit for stock−based compensation expense for the years ended December 31, 2005, 2004 and 2003, since it ismore likely than not that deferred tax assets associated with this expense will not be realized. To the extent we realize the deferred tax assets associated with thestock−based compensation expense in the future, the income tax effects of such an event may be recognized at that time.

The Black−Scholes option−pricing model was developed for use in estimating the fair value of traded options that have no vesting restrictions and are fullytransferable. In addition, option−pricing models require the input of highly subjective assumptions including expected stock price volatility and the expected lifeof an option. We estimate expected option lives and volatility rates based upon historical exercise patterns and volatility rates. Changes in these subjective inputassumptions can materially affect our estimate of fair value. In the first quarter of 2005, we modified our approach to estimate the expected volatility by alsoconsidering the implied volatility in market−traded options on our common stock, which we believe is more indicative of future trends.

122




The fair value of stock options and shares issued pursuant to the stock option plans and the 1998 ESPP at the grant date were estimated using the followingweighted average assumptions for the years ended December 31, 2005, 2004 and 2003:

Option plans ESPP2005 2004 2003 2005 2004 2003

Expected life (years) 3.0 to 6.5 3.0 to 6.5 2.5 to 6.5 0.5 to 2.0 0.5 to 2.0 0.5 to 2.0Risk−free interest rate 3.67% to 4.37% 1.99% to 4.03% 1.66% to 3.37% 1.21% to 3.80% 1.00% to 2.98% 1.06% to 3.75%Volatility 39% to 82% 55% to 87% 70% to 99% 26% to 89% 35% to 113% 44% to 120%Dividend yield 0.00% 0.00% 0.00% 0.00% 0.00% 0.00%

Based upon the above assumptions, the weighted average fair value of options granted under stock option plans during the years ended December 31,2005, 2004 and 2003 was $17.78, $24.16, and $21.75 per share, respectively. The weighted average fair value of rights to acquire shares under the 1998 ESPPduring the years ended December 31, 2005, 2004 and 2003 was $12.19, $13.75, and $15.92 per share, respectively. The following table presents the weightedaverage exercise price and fair value of options with exercise prices relative to market value on the grant date:

Year Ended December 31, Year Ended December 31,2005 2004 2003 2005 2004 2003

Weightedaverage fair

value


value


value

Weightedaverage

exercise price

Weightedaverage

exercise price

Weightedaverage

exercise price

Options with exercise price:At market value $17.45 $ 24.62 $ 22.43 $40.45 $ 41.63 $ 35.75Below market value $18.41 $ 22.85 $ 20.06 $43.77 $ 46.94 $ 32.50

Comprehensive income (loss)

We comply with SFAS No. 130, Reporting Comprehensive Income. SFAS No. 130 requires that all items recognized under accounting standards ascomponents of comprehensive income (loss) be reported in an annual financial statement that is displayed with the same prominence as other annual financialstatements. Comprehensive income (loss) has been included in the consolidated statements of stockholders’ equity for all periods presented.

Revenue recognition

Revenue consists of fees for license and subscription licenses of our software products, maintenance fees, and professional service fees. We apply theprovisions of SOP No. 97−2, Software Revenue Recognition, as amended by SOP No. 98−9, Modification of SOP No. 97−2, Software Revenue Recognition,With Respect to Certain Transactions, to all transactions involving the sale of software products and services. In addition, we apply the provisions of the EITFNo. 00−03, Application of American Institute of Certified Public Accountants (AICPA) SOP No. 97−2 to Arrangements that Include the Right to Use SoftwareStored on Another Entity’s Hardware, to our managed services software transactions. We also apply EITF No. 01−09, Accounting for Consideration Given byVendor to a Customer or a Reseller of the Vendor’s Products to account for transaction related sales incentives.

In the second quarter of 2003, we adopted EITF No. 00−21, Revenue Arrangements with Multiple Deliverables. EITF No. 00−21 addresses certain aspectsof the accounting by a vendor for arrangements under which the vendor will perform multiple revenue−generating activities. The adoption of this EITF did nothave a material effect on our consolidated financial statements and we continue to account for our revenues in accordance with SOP 97−2, Software RevenueRecognition.

123




License revenue consists of license fees charged for the use of our products licensed under perpetual or multiple year arrangements in which the license feeis separately determinable from undelivered items such as maintenance and/or professional services. We recognize revenue from the sale of software licenseswhen persuasive evidence of an arrangement exists, the product has been delivered, the fee is fixed or determinable, and collection of the resulting receivable isprobable. Delivery generally occurs when product is delivered to a common carrier or the software is made available for download. At the time of the transaction,we assess whether the fee associated with our revenue transaction is fixed or determinable based on the payment terms associated with the transaction andwhether collection is probable. If a significant portion of a fee is due after our normal payment terms, which are generally within 30−60 days of the invoice date,we account for the fee as not being fixed or determinable. In these cases, we recognize revenue at the earlier of cash collection or as the fees become due. Weassess the probability of collection based on a number of factors, including past transaction history with the customer. We do not request collateral from ourcustomers. For all sales, except those completed over the Internet, we use either a customer order document or signed license or service agreement as evidence ofan arrangement. For sales over the Internet, we use a credit card authorization as evidence of an arrangement.

Subscription revenue, including managed service revenue, consists of license fees to use one or more software products and to receive maintenancesupport (such as customer support and product updates) for a limited period of time. Since subscription licenses include bundled products and services which aresold as a combined offering and for which the value of the license fee is not separately determinable from maintenance, both product and service revenue aregenerally recognized ratably over the term of the subscription. Customers do not pay a set up fee associated with a subscription arrangement. Furthermore, if aperpetual license is sold at the same time as a subscription−based license to the same customer, then the two generally are bundled together and are recognizedover the term of the contract.

Maintenance revenue consists of fees charged for post−contract customer support, which are determinable based upon vendor specific evidence of fairvalue. Maintenance fee arrangements include ongoing customer support and rights to product updates if−and−when available. Payments for maintenance aregenerally made in advance and are nonrefundable. Revenue is recognized ratably over the period of the maintenance contract.

Professional service revenue consists of fees charged for product training and consulting services, which are determinable based upon vendor specificevidence of fair value. Professional service revenue is recognized as professional services are delivered, provided all other revenue recognition requirements aremet.

For arrangements with multiple elements (for example, undelivered maintenance and support), we allocate revenue using the residual value method basedon the fair value of the undelivered elements, which is specific to us. This means that we defer revenue from the arrangement fee equivalent to the fair value ofthe undelivered elements. Fair values for the ongoing maintenance and support obligations within an arrangement are based upon substantive renewal ratesquoted in the contracts, and in the absence of stated renewal rates, upon separate sales of renewals to other customers. Fair value of services, such as training orconsulting, is based upon separate sales of these services to other customers without the bundling of other elements. Most of our arrangements involve multipleelements. Our arrangements do not generally include acceptance clauses. However, if an arrangement includes an acceptance clause, revenue is deferred until theearlier of receipt of a written customer acceptance or expiration of the acceptance period.

We derive a portion of our business from sales of our products through our alliance partners, which include value−added resellers, and major systemsintegration firms.

Sales commissions and deferred commissions

Sales commissions are paid to employees in the month after we receive an order. We sell our products under non−cancelable perpetual, subscription, orterm contracts. Sales commissions are calculated as a percentage of the

124




sales value of a signed contract or a customer signed purchase order. Sales commission rates vary by position, title, and the extent to which employees achieverate accelerators by exceeding their quotas. Our policy is that sales commissions paid to employees are refundable to us when we are required to write off acustomer accounts receivable because management has determined it has become uncollectible or in instances in which the revenue may no longer be recognized.

Deferred commissions are the incremental costs that are directly associated with non−cancelable subscription and term contracts with customers andconsist of sales commissions paid to our sales employees. The deferred commissions are recognized over the term of the related customer contracts. The deferredcommissions are realizable through the future revenue streams under the customer contracts. Recognition of deferred commissions is included in marketing andselling expense in the consolidated statements of operations. Deferred commissions are included in other current assets and non−current deferred commissionsare included in other non−current assets on the consolidated balance sheets.

Sales reserve

Our license agreements and reseller agreements do not offer our customers or vendors the unilateral right to terminate or cancel the contract and receive acash refund. In addition, the terms of our license agreements do not offer customers price protection.

We provide for sales returns based upon estimates of potential future credits, warranty cost of product and services, and write−offs of bad debts related tocurrent period product revenues. We analyze historical credits, historical bad debts, current economic trends, average deal size, changes in customer demand, andacceptance of our products when evaluating the adequacy of the sales reserve. Revenues for the period are reduced to reflect the sales reserve provision. See Note2 for a summary of changes in our sales reserve during the years ended December 31, 2005 and 2004.

Cost of license and subscription, maintenance, and professional services

Cost of license and subscription includes direct costs to produce and distribute our products, such as costs of materials, product packaging and shipping,equipment depreciation, production personnel, and outsourcing services. It also includes costs associated with our managed services business, includingpersonnel−related costs, fees to providers of internet bandwidth and the related infrastructure, and depreciation expense of managed services equipment. Cost ofmaintenance includes direct costs of providing product customer support, largely consisting of personnel−related costs, and the cost of providing upgrades to ourcustomers. We have not segregated costs associated with license and subscription because these costs cannot be reasonably separated. Cost of professionalservices includes direct costs of providing product training and consulting, largely consisting of personnel−related costs and outsourcing service costs. Licenseand subscription, maintenance, and professional services costs also include allocated facility expenses and allocated IT infrastructure expenses. Cost of revenuealso includes amortization of intangible assets associated with our current products. These amortization expenses were recorded as “Cost ofrevenue—amortization of intangible assets” in our consolidated income statement. See Note 6 for amortization expenses related to cost of license andsubscription and cost of maintenance.

Research and development

Research and development costs are expensed as incurred. See ”—Software costs”, for additional details.

Acquisition−related expenses

We expense as incurred all costs associated with in−process research and development (IPR&D), provided that technological feasibility of IPR&D has notbeen established and there are no future alternative uses for the technology.

125




Advertising expense

We expense the costs of producing advertisements at the time production occurs and expense the cost of communicating advertising in the period duringwhich the advertising space or airtime is used. For the years ended December 31, 2005, 2004, and 2003, advertising expenses were $7.1 million, $8.3 million,and $9.2 million, respectively.

Net income (loss) per share

Net income (loss) per share is calculated in accordance with the provisions of SFAS No. 128, Earnings per Share, and EITF No. 04−08, The Effect ofContingently Convertible Debt on Diluted Earnings per Share. Under these accounting standards, public companies are required to report both basic and dilutednet income (loss) per share. Basic net income (loss) per share consists of the weighted−average number of common shares outstanding. Diluted net income (loss)per share includes the weighted−average number of common shares outstanding, incremental common stock from assumed exercise of dilutive stock options anddilutive common stock issuable upon the conversion of our 2003 Notes as required by EITF 04−08.

The following table presents our net income (loss) per share computations for the years ended December 31, 2005, 2004, and 2003 (in thousands, exceptper share amounts):

Income (Loss) SharesPer ShareAmount

Year Ended December 31, 2005Basic net income per share:

Net loss $ (99,929) 86,984 $ (1.15)Effect of dilutive securities:

Incremental common shares attributable to shares issuable under employee stock option plans andemployee stock purchase plan — —

Potential common stock issuable upon conversion of the 2003 Notes — — $ (99,929) 86,984 $ (1.15)

Year Ended December 31, 2004Basic net income per share:

Net income $ 53,776 87,668 $ 0.61Effect of dilutive securities:

Incremental common shares attributable to shares issuable under employee stock option plans andemployee stock purchase plan — 5,896

Potential common stock issuable upon conversion of the 2003 Notes 1,433 9,673$ 55,209 103,237 $ 0.53

Year Ended December 31, 2003Basic net loss per share:

Net loss $ (62,586) 86,609 $ (0.72)Effect of dilutive securities:

Incremental common shares attributable to shares issuable under employee stock option plans andemployee stock purchase plan — —

Potential common stock issuable upon conversion of the 2003 Notes — — $ (62,586) 86,609 $ (0.72)

126




For the years ended December 31, 2005 and 2003, stock options outstanding of 15,423,000 and 15,072,000, respectively, were considered anti−dilutivedue to our net loss and therefore were not included in our diluted earnings per share computation. For the year ended December 31, 2004, options to purchase6,786,000 shares of common stock were considered anti−dilutive and therefore were not included in the computation of diluted earnings per share. In addition,for each of the years ended December 31, 2005, 2004 and 2003, 2,697,000 shares of common stock reserved for issuance upon conversion of the outstanding2000 Notes were not included in our diluted earnings per share computation because the conversion would be anti−dilutive. Upon our adoption of EITFNo. 04−08 in the fourth quarter of 2004, 9,673,050 shares issuable from the conversion of the 2003 Notes have been included in our diluted net income per sharecomputation for all periods presented unless these shares were deemed to be anti−dilutive.

Segment reporting

We comply with SFAS No. 131, Disclosures about Segments of an Enterprise and Related Information. SFAS No. 131 establishes standards for themanner in which public companies report information about operating segments in annual and interim financial statements. We have four reportable operatingsegments: the Americas, EMEA, APAC, and Japan. These segments are organized, managed, and analyzed geographically and operate in one industry segment:the development, marketing, and selling of integrated application delivery, application management, and IT governance solutions. Our chief operating decisionmaker makes financial decisions and allocates resources based on internal management reports with financial information presented by geographic locations.Information related to geographic segments is included in Note 17.

Recent accounting pronouncements

On December 15, 2004, the FASB issued SFAS No.123R, Share−Based Payment which requires companies to value employee stock options and stockissued under employee stock purchase plans using a fair value based method on the option grant date and record it as stock−based compensation expense. Fairvalue based models, such as the Black−Scholes option−pricing model, require the input of highly subjective assumptions. Assumptions used under theBlack−Scholes option−pricing model that are highly subjective include expected stock price volatility and expected life of an option. On March 29, 2005, theSecurities and Exchange Commission (SEC) staff issued Staff Accounting Bulletin (SAB) No. 107 to provide further guidance on the valuation models, expectedvolatility, expected option term, income tax effects, classification of stock−based compensation costs, capitalization of compensation costs, and disclosurerequirements. We currently use the Black−Scholes option−pricing model to calculate the pro forma effect on net income and net income per share if we hadapplied SFAS No. 123 to employee option grants. However, the actual effect on our results of operations upon adoption of the new standard could besignificantly different from the pro forma information included in Note 1 to our Consolidated Financial Statements due to variations in estimates and assumptionsused in the calculation. The effective date of SFAS No. 123R is for fiscal years beginning after June 15, 2005. SFAS No. 123R is effective on January 1, 2006.Due to the resources required to complete our restatement and become current with our SEC filings, we have not yet implemented SFAS No. 123R and areunable to estimate the effect this adoption will have on our results of operations. However, we expect the adoption of SFAS No. 123R to have a significant effecton our results of operations.

In March 2005, FASB issued FIN No. 47, Accounting for Conditional Asset Retirement Obligations. FIN No. 47 clarifies that a company should record aliability for a conditional asset retirement obligation when incurred if the fair value of the obligation can be reasonably estimated. This interpretation furtherclarified conditional asset retirement obligation, as used in SFAS No. 143, Accounting for Asset Retirement Obligations, as a legal obligation to perform an assetretirement activity in which the timing and/or method of settlement are

127




conditional on a future event that may or may not be within the control of the entity. FIN No. 47 is effective for companies no later than the end of their fiscalyear ending after December 15, 2005. The adoption of FIN No. 47 did not have an effect on our financial position and results of operations.

In May 2005, the FASB issued SFAS No. 154, Accounting Changes and Error Corrections, a Replacement of APB No. 20 and FASB Statement No. 3.SFAS No. 154 changes the accounting and reporting requirements for a change in accounting principle that is either a voluntary change or is required by a newlyissued accounting pronouncement which does not include an explicit transition requirement. In accordance with SFAS No. 154, a change in accounting principleshould be reported through retrospective application to all prior periods. SFAS No. 154 also re−defines “restatement” as the revising of previously issuedfinancial statements to reflect the correction of an error. SFAS No. 154 does not change the current reporting requirement for correction of an error. A correctionof an error to previously issued financial statements should be reported as a prior period adjustment by restating the prior periods’ financial statements. SFASNo. 154 also provides guidance for determining whether retrospective application is impracticable and for reporting a change when retrospective application isimpracticable. SFAS No. 154 further clarifies the reporting requirement for a change in depreciation, amortization, or depletion method for long−lived assets,which should be accounted for as a change in accounting estimate in the period of change and/or future periods. SFAS No. 154 is effective for accountingchanges and corrections of errors made in fiscal years beginning after December 15, 2005. Early adoption is permitted. We do not expect the adoption of SFASNo. 154 to have a significant effect on our financial position or results of operations.

In June 2005, the EITF reached a consensus on EITF No. 05−02, The Meaning of Conventional Convertible Debt Instrument. EITF No. 05−02 providesthe definition of “conventional convertible debt instrument” for applying the exception provision in EITF No. 00−19, Accounting for Derivative FinancialInstruments Indexed to, and Potentially Settled in, a Company’s Own Stock. Under EITF No. 05−02, a conventional convertible debt includes, but is not limitedto, an instrument that provides the holder with an option to convert into a fixed number of shares (or equivalent amount of cash at the discretion of the issuer) forwhich the ability to exercise the option is based on the passage of time or a contingent event. EITF No. 05−02 is applicable to new instruments entered into andinstruments modified in periods beginning after June 29, 2005. The adoption of EITF No. 05−02 did not have a significant effect on our financial position orresults of operations.

In November 2005, the FASB issued Staff Position, or FSP, SFAS No. 115−1 and SFAS No. 124−1, The Meaning of Other−Than−Temporary Impairmentand Its Application to Certain Investments, which provides guidance on determining when investments in certain debt and equity securities are consideredimpaired, whether that impairment is other−than−temporary, and on measuring such impairment loss. FSP SFAS No. 115−1 also includes accountingconsiderations subsequent to the recognition of an other−than−temporary impairment and requires certain disclosures about unrealized losses that have not beenrecognized as other−than−temporary impairments. FSP SFAS No. 115−1 is required to be applied to reporting periods beginning after December 15, 2005. Weare currently evaluating the effect that the adoption of FSP SFAS No. 115−1 will have on our consolidated results of operations and financial condition but donot expect it to have a material effect.

In November 2005, the FASB issued FSP, SFAS No. 123R−3, “Transition Election Related to Accounting for the Tax Effects of Share−Based PaymentsAwards”. The alternative transition method includes simplified methods to establish the beginning balance of the additional paid−in capital pool, or the APICpool, related to the tax effects of employee stock−based compensation, and to determine the subsequent impact on the APIC pool and Consolidated Statements ofCash Flows of the tax effects of employee stock−based compensation awards that are outstanding upon adoption of SFAS No. 123R. We are currently evaluatingthe impact upon adoption of FSP SFAS No. 123R−3 and therefore are unable to estimate the effect on our overall results of the operations or financial position.

128




In July 2006, the FASB issued FIN No. 48, Accounting for Uncertainty in Income Taxes, an interpretation of FASB Statement No. 109. FIN No. 48clarifies the accounting and reporting for uncertainties in income tax law. FIN No. 48 prescribes a comprehensive model for the financial statement recognition,measurement, presentation, and disclosure of uncertain tax positions taken or expected to be taken in income tax returns. FIN No. 48 is effective for fiscal yearsbeginning after December 15, 2006. We are currently in the process of evaluating the effect of FIN 48 on our financial position and results of operations andtherefore, are unable to estimate the effect on our overall results of operations or financial position.

In September 2006, the SEC Staff issued Staff Accounting Bulletin (SAB) No. 108, Considering the Effects of Prior Year Misstatements whenQuantifying Misstatements in Current Year Financial Statements, which addresses how the effects of prior−year uncorrected misstatements should be consideredwhen quantifying misstatements in current−year financial statements. The difference in approaches for quantifying the amount of misstatements primarily resultsfrom the effects of misstatements that were not corrected at the end of the prior year (prior year misstatements). SAB No. 108 will require companies to quantifymisstatements using both the balance sheet and income−statement approaches and to evaluate whether either approach results in quantifying an error that ismaterial in light of relevant quantitative and qualitative factors. When the effect of initial adoption is determined to be material, SAB No. 108 allows companiesto record that effect as a cumulative effect adjustment to beginning−of−year retained earnings. The requirements are effective for reporting periods ending afterNovember 15, 2006. We are in the process of evaluating the effect of SAB No. 108 on our financial position and results of operations and therefore, are unable toestimate the effect on our overall results of operations or financial position.

In September 2006, the FASB issued SFAS No. 157, Fair Value Measurements which defines fair value, establishes a framework for measuring fair valuein generally accepted accounting principles (GAAP), and expands disclosures about fair value measurements. Where applicable, SFAS No. 157 simplifies andcodifies related guidance within GAAP and does not require any new fair value measurements. SFAS No. 157 is effective for financial statements issued forfiscal years beginning after November 15, 2007, and interim periods within those fiscal years. Earlier adoption is encouraged. We do not expect the adoption ofSFAS No. 157 to have a significant effect on our financial position or results of operation.

Restatement of consolidated financial statements

In November 2004, the Company was contacted by the Securities and Exchange Commission (SEC) as part of an informal inquiry entitled In the Matter ofCertain Option Grants (SEC File No. MHO−9858). In June 2005, in the course of responding to the SEC’s inquiry, we determined that there were potentialproblems with the dating and pricing of stock option grants and with the accounting for these option grants. In August 2005, a Special Committee of disinteresteddirectors with broad authority to investigate these issues concluded that the actual dates of determination for certain past stock option grants differed from theoriginally stated grant dates for such awards. As a result of that determination, we determined that we should have recognized material amounts of stock−basedcompensation expense which were not accounted for in our previously issued financial statements. Therefore, we concluded that our previously filed unauditedinterim and audited annual consolidated financial statements for the years ended December 31, 2004, 2003 and 2002, as well as the unaudited interim financialstatements for the first quarter ended March 31, 2005, should no longer be relied upon because these financial statements contained misstatements and wouldneed to be restated.

On July 3, 2006, with the oversight of the Audit Committee, we completed a review and filed restated consolidated financial statements as part of the 2004Form 10−K/A which restated our financial statements for the years ended December 31, 2004, 2003 and 2002 and included the cumulative impact of the errors asof

129




December 31, 2001, represented as a reduction to beginning retained earnings as of January 1, 2002, resulting in an accumulated deficit as of that date. The errorsalso impacted our quarterly financial statements for the period ended March 31, 2005, which we have restated in our Form 10−Q/A for that period, which wefiled on August 1, 2006.

These restated consolidated financial statements include adjustments that are primarily related to the stock option matters and adjustments that are othermatters resulting from our review and the preparation of these restated consolidated financial statements. The primary components of the restatement of ourhistorical consolidated financial statements related to stock−based compensation are as follows:

• We determined that, from 1994 through the quarter ended March 31, 2005, there were fifty−four instances in which the exercise price of stock optionswas established based on a stated grant date that was different from the actual grant date.

• We determined that, from 1998 through the quarter ended March 31, 2005, we had not properly accounted for stock options exercisable or exercisedwith promissory notes, including exercises by certain executive officers, and should have been accounted for as variable awards since the promissorynotes were deemed non−recourse in nature for accounting purposes.

• We determined that, from 1997 through the quarter ended March 31, 2005, we had not maintained accurate documentation, and had not properlyaccounted for stock−based compensation, for stock options issued to or modified for certain individuals who held consulting, transition or advisoryroles with us either preceding or following their full−time employment with us.

• We determined that, on several occasions between 1998 and 2001, exercise dates for options exercised by certain executives appear to have beenincorrectly reported. In each case, the price of our common stock was substantially lower on the reported exercise date than on the date the option wasactually exercised, and as a result the Company underreported liabilities associated with respect to such individuals’ withholding taxes.

• We identified a previously undetected error relating to the price used for Employee Stock Purchase Plan (ESPP) stock purchases for certainemployees between August 2002 and August 2004.

As a result of the findings described above, our restated consolidated financial statements reflect a decrease in income before provision for taxes ofapproximately $574.6 million for the periods 1992 through March 31, 2005, consisting principally of non−cash adjustments to stock−based compensationexpense resulting from the stock option grant and exercise practices discussed above.

In addition, our consolidated financial statements also reflect tax−related adjustments due to the following: (1) certain options formerly classified asIncentive Stock Option (ISO) grants were determined to not qualify for ISO tax treatment, and as a result we recorded an additional tax liability of $10.9 millionin connection with the disqualification of such ISO tax treatment; (2) the ESPP plan error in August of 2002 exposed us to possible withholding taxes andpenalties and interest for failing to properly withhold taxes, and as a result we recorded an additional tax liability of $6.1 million; (3) we also determined that wefailed to properly withhold the appropriate employment taxes associated with Canadian employee ESPP purchases and stock option exercises, and as a result werecorded an additional tax liability of $1.7 million; and (4) we were unable to record additional deferred tax assets related to stock−based compensation inaccordance with limits required under section 162(m) of the Internal Revenue Code on certain executive compensation and were required to reduce our availabletax net operating loss carry−forwards arising from certain exercised stock options. We are currently in discussions with the IRS to settle these additionalliabilities to a lesser amount; however, there is no assurance that we will be able to settle on favorable terms.

130




For explanatory purposes, we have classified the stock option and other adjustments that were affected by the restatement into the aforementionedcategories as presented below. The classified amounts involve certain subjective judgments by management to the extent particular stock option relatedaccounting errors may fall within more than one category to avoid double counting the adjustment amounts between categories (e.g., a stock option that is subjectto date changes, combined with expenses resulting from the exercise of promissory notes, and/or combined with expenses resulting from consulting, transition oradvisory roles). As such, the table below should be considered a reasonable representation of the magnitude of expenses in each category.

Year Ended December 31,(in thousands)

Three months endedMarch 31,

(in thousands)

Increase (Decrease) 2004 2003 2002

1992through

2001 2005 2004

Stock option grant date changes $ (17,789) $ (79,518) $ (47,636) $ (113,400) $ (4,571) $ (1,088)Stock options exercisable with promissory notes 582 (9,425) 12,653 (255,640) (73) 711Stock options involved in consulting, transitions or advisory roles (7,196) (3,039) (2,337) (6,889) (511) (6,778)Other matters related to stock−based compensation (15,311) (13,617) (164) (376) (1,132) (9,612)

Total stock option related accounting adjustments (39,714) (105,599) (37,484) (376,305) (6,287) (16,767)Other miscellaneous accounting adjustments (2,757) (4,281) 1,374 (1,923) (1,579) (1,889)

Total adjustment to income (loss) before provision for incometaxes (42,471) (109,880) (36,110) (378,228) (7,866) (18,656)

Income tax impact of restatement adjustments 11,647 5,781 7,966 15,921 2,642 283Total adjustments to net income $ (30,824) $ (104,099) $ (28,144) $ (362,307) $ (5,224) $ (18,373)

131




The effect of these adjustments to our previously reported Consolidated Statements of Operations is (in thousands):

Year Ended December 31,Three months ended

March 31,

Increase (Decrease) 2004 2003 2002

1992through

2001 2005 2004

Adjustments to:Revenue $ 524 $ (268) $ (169) $ (71) $ 337 $ 39

Cost and expensesStock−based compensation:

Cost of license and subscription 1,201 5,073 2,517 5,644 267 277Cost of maintenance 1,725 5,433 2,926 23,696 260 514Cost of professional services 690 3,127 1,174 5,429 185 109Marketing and selling 15,868 54,816 22,093 168,045 3,033 4,924Research and development 7,944 16,108 9,453 22,661 748 4,608General and administrative 6,211 15,114 (917) 150,243 662 3,253

Sales and marketing expenses 900 1,084 119 — 1,082 243Severance & benefits expenses (323) (62) (413) 669 391 655Interest income (reclassified to Additional paid−in capital) 404 1,766 178 535 70 111Employment tax related other expenses 7,299 6,739 321 708 1,444 3,506Other 1,076 414 (1,510) 527 61 495Income before provision for income taxes $ (42,471) $ (109,880) $ (36,110) $ (378,228) $ (7,866) $ (18,656)

These adjustments, along with the stock−based items referenced above, did not affect our previously reported cash and cash equivalents and investmentsbalances in prior periods.

132




The vast majority of the items for which we restated relate solely to fiscal years included within the restated and amended financial statements completedand filed in July 2006. Certain items, however, impact the consolidated statements of operations in subsequent periods based on the accounting treatmentassociated with these outstanding options and other items from our restatement. The effect of these adjustments in the current Consolidated Statements ofOperations is (in thousands):

Increase (Decrease)


2005

Adjustments to:Revenue $ 18

Cost and expensesStock−based compensation:

Cost of license and subscription (1,114)Cost of maintenance (1,013)Cost of professional services (593)Marketing and selling (3,943)Research and development (1,570)General and administrative 386

Sales and marketing expenses 1,082Employment tax related other expenses 3,674Other 11

Income before provision for income taxes $ 3,098

NOTE 2—FINANCIAL STATEMENT COMPONENTS

The following table presents changes in our sales reserve during the years ended December 31, 2005 and 2004 (in thousands):

Year Ended December 31, 2005 2004

Beginning balance $ 5,157 $ 6,117Sales reserve provision 2,971 1,873Write−off of accounts receivable (1,074) (2,853)Currency translation adjustments (22) 20Ending balance $ 7,032 $ 5,157

Property and equipment is stated at cost and consisted of the following (in thousands):

December 31,2005 2004

Land and buildings $ 44,155 $ 44,084Computers and equipment 46,115 43,067Internal use software 29,126 24,887Office furniture and equipment 21,425 20,041Leasehold improvements 13,634 11,320

154,455 143,399Less: Accumulated depreciation and amortization (87,025) (68,819)

67,430 74,580Construction in progress 12,602 3,653

$ 80,032 $ 78,233

133




Construction in progress primarily represents the capitalized costs of software development projects for internal use and construction costs of newfacilities. Depreciation and amortization expense of property and equipment for the three years ended December 31, 2005, 2004, and 2003 was $20.0 million,$17.6 million, and $14.4 million, respectively.

Other assets, net consisted of the following (in thousands):

December 31,2005 2004

Debt issuance costs, net $ 13,437 $ 11,258Interest rate swap — 4,832Restricted cash 221 6,000Long−term deferred commissions 5,894 8,695Long−term prepaid taxes 9,551 12,735Other 2,671 2,118

$ 31,774 $ 45,638

Accrued and other liabilities consisted of the following (in thousands):

December 31,2005 2004

Compensation and related benefits $ 95,097 $ 89,987Interest on convertible subordinated notes 7,125 7,125Sales tax and related items 15,081 12,930Swap interest expense 3,508 1,929Cost of restatement and related legal activities 53,210 — Fair value of put option 34,204 — Other 34,585 31,844

$ 242,810 $ 143,815

Other income (expense), net consisted of the following (in thousands):


Change in fair value of put option $(34,204) $ — $ — Foreign exchange gains (losses) (2,502) 85 (214)Net loss on investments in non−consolidated companies and warrant (583) (636) (3,524)Bank fees (732) (895) (698)Other 252 185 (471)

$(37,769) $(1,261) $(4,907)

NOTE 3—CONSOLIDATION OF FACILITIES

In July 2003, the Board of Directors approved a plan to lease a new headquarters facility and to sell the existing buildings we owned in our Sunnyvaleheadquarters. In September 2003, as a result of our decision to move to a new headquarters facility and to sell two vacant buildings, we performed an impairmentanalysis of the

134




vacant buildings. In the third quarter of 2003, we recognized a non−cash expense of $16.9 million to write down the net book value of the two vacant buildingsto their appraised market value. We considered the cost to maintain the facilities until sold and sales commissions related to the sale of the buildings when wecalculated the expense. On January 30, 2004, we sold the two vacant buildings in Sunnyvale, California at carrying value to a third party for $2.5 million in cash,net of $0.2 million in transaction fees.

In April 2004, we completed our move from one of the two remaining buildings. As such, we placed the vacant building we owned for sale. As a result ofour move and our decision to sell the vacant building, we reclassified the building to “Prepaid expenses and other assets” and recognized a non−cash charge towrite down the net book value of the vacant building to its appraised market value. We considered the cost to maintain the facility until sold and salescommissions related to the sale of the building when we calculated the charge. On January 7, 2005, we sold the vacant building for $4.9 million in cash, net of$0.3 million in transaction fees, and recognized a gain of $0.3 million. The vacant building had been previously written down to its fair value and was recordedas an asset held for sale.

In connection with our move into our consolidated headquarters, we also vacated two leased facilities from the Kintana acquisition. In the second quarterof 2004, we recognized a non−cash expense for the remaining lease payments, as well as the associated costs to protect and maintain the leased facilities prior toreturning these leased facilities to the lessor. One of these lease agreements expired in September 2004 and the other expired in December 2005. Due to the shortduration of the remaining lease terms, it was not likely that we could sublease the facilities; as such, no sublease income was included in the facilities lease costscalculation. We also wrote off leasehold improvements and recorded the disposal of fixed assets, net of cash proceeds, associated with these facilities. The totalexcess facilities expense recorded in 2004 was $8.9 million.

NOTE 4—INVESTMENTS IN NON−CONSOLIDATED COMPANIES

The carrying value of investments in non−consolidated companies was as follows (in thousands):

December 31,2005 2004

Privately−held companies $ 4,083 $ 4,083Private equity fund 8,369 8,010Motive warrant 89 938Total $ 12,541 $ 13,031

Through December 31, 2005, we have made total capital contributions to the private equity fund of $10.9 million, and we have committed to makeadditional capital contributions of up to $4.1 million in the future. Such contributions may be made at the request of the general partner of the fund through 2013or until the fund is liquidated.

As of December 31, 2005, there were no impairment losses that were considered to be temporary and as such, there were no unrealized losses associatedwith our investments in privately−held companies or the private equity fund as of such date. Based on our review of the investments in privately−held companiesand the private equity fund for the years ended December 31, 2005, 2004 and 2003, impairment losses were considered to be other−than temporary. Unrealizedgains or losses associated with the Motive warrant primarily resulted from changes in fair value of the warrant.

135




The following table summarizes our gains (losses) on investments in non−consolidated companies (in thousands):


Privately−held companies $ — $(557) $(3,550)Private equity fund 266 (582) (409)Motive warrant (849) 503 435Total $(583) $(636) $(3,524)

In determining whether there is an other−than−temporary impairment loss on our investments, we considered the most recent valuation of each of thecompanies based on recent sales of equity securities to unrelated third party investors and whether the companies have sufficient funds and financing to continueas a going concern for at least twelve months. We believe the carrying value of our investments in non−consolidated companies approximated their fair value atDecember 31, 2005 and 2004.

We had not exercised the Motive warrant as of December 31, 2005. The fair value of the Motive warrant was calculated using the Black−Scholesoption−pricing model with the following inputs:

December 31, 2005 2004

Contractual life (years) 3 4Risk−free interest rate 4.37% 3.69%Volatility 75% 75%Dividend yield 0% 0%

In February 2004, one of the privately−held companies in which we had an equity investment was acquired by a public company. We received $1.5million in cash and common stock of that company. In May 2004, we sold this common stock for $1.7 million and recognized a gain of approximately $0.3million. In March 2005, we received additional cash of $0.4 million and common stock from the public company as a result of a distribution made from theescrow account in connection with the acquisition. We recorded a gain of $1.0 million upon receipt of the cash proceeds and common stock. In April 2005, wesold the remaining common stock of the public company for $0.6 million in cash, which approximated its cost. At December 31, 2005, we did not hold anyequity investments in public companies.

NOTE 5—ACQUISITIONS

2005

Intuwave and BeatBox

On July 26, 2005, we acquired a wireless testing business unit from Intuwave Limited (Intuwave) which includes the exclusive rights to the Intuwaveintellectual property for the “m−Test” product line related to smart phone testing, and assumed majority of the workforce from Intuwave. The acquisition enablesus to continue to deepen our core BTO technology. We accounted for the acquisition as a purchase transaction and paid initial cash consideration of less than$0.1 million on the closing date. Direct acquisition costs, which consisted of external service providers and consultants, totaled $0.1 million. Pursuant to thepurchase agreement, we are obligated to make contingent payments to Intuwave subsequent to the acquisition. Contingent payments of less than $0.1 millionwere made through the first quarter of 2006 and recorded as additional goodwill based upon

136




post−closing sales of our products using the acquired technology from the date of acquisition through March 31, 2006. The purchase price was allocated to theintangible assets acquired based on their respective fair values at the acquisition date. The value of combining the acquired technology contributed to a purchaseprice in excess of the fair market value of Intuwave’s amortizable intangible assets acquired, and as such, we have recorded goodwill associated with thetransaction of less than $0.1 million. In addition, we have recorded existing technology and other intangible assets of $0.1 million. Goodwill is not deductible fortax purposes and will not be amortized to expense. We will test goodwill for impairment at least annually. The weighted average amortization period of existingtechnology is 36 months, and maintenance agreements is 48 months. The weighted average amortization period of all intangible assets is 37 months. Allintangible assets are amortized on a straight−line basis over their useful lives which best represents the distribution of the economic value of the intangible assets.Amortization expense for the year ended December 31, 2005 was less than $0.1 million.

We have also entered into a royalty agreement with Intuwave to license a technology that will be sold together with the technology purchased fromIntuwave. Results of operations and balance sheets for Intuwave have been included in our consolidated financial statements from the date of acquisition throughDecember 31, 2005.

On September 1, 2005, we completed our acquisition of all capital stock of BeatBox Technologies (BeatBox), formerly known as ClickCadence, LLC.BeatBox specialized in assisting companies to optimize the efficiency and effectiveness of their online presence. We accounted for the acquisition as a purchasetransaction and paid cash consideration of $9.7 million, including $0.2 million of acquisition−related costs. Cash assumed in the acquisition was $0.3 million. Weare also obligated to make contingent payments to BeatBox subsequent to the acquisition. Contingent consideration includes a cash continuity payment of$2.7 million and cash success payments of up to $1.5 million. The continuity payment will be earned through the continued employment of a key employee for18 months after the date of acquisition, payable on February 28, 2007, and will be recognized as compensation expense when earned. Success payments areearned and expensed upon the achievement of certain technical milestones. Success payments earned prior to February 28, 2007 will be paid on February 28,2007. Success payments earned by a key employee after that date will be paid within 10 business days after the technical milestone is achieved. The value ofcombining the acquired technology contributed to a purchase price in excess of the fair market value of BeatBox’s net tangible and amortizable intangible assetsacquired, and as such, we have recorded goodwill associated with the transaction of $6.2 million. In addition, we have recorded existing technology of $2.8million, and other intangible assets totaling $0.4 million. Goodwill is not deductible for tax purposes and will not be amortized to expense. We will test goodwillfor impairment at least annually. Results of operations and balance sheets for BeatBox have been included in our consolidated financial statements from the dateof acquisition through December 31, 2005.

The total purchase price was as follows (in thousands):

Cash paid $9,537Direct transaction costs 152

Total purchase price $9,689

137




The purchase price of the acquisition was allocated as follows (in thousands):

Cash $ 251Tangible assets 15Maintenance contracts 240Customer relationships 150Existing technology 2,800Goodwill 6,238

Total assets acquired $9,694Liabilities assumed (5)

$9,689

We recognized intangible assets acquired from the BeatBox acquisition as assets apart from goodwill because they arose either from contractual or otherlegal rights, or they were separable from the acquired entity and could be sold or licensed separately. These intangible assets were identified through interviewswith BeatBox management and our analysis of financial information provided by BeatBox. We valued identifiable assets related to maintenance contracts,customer relationships and existing technology using discounted cash flow as estimated by management knowledgeable in the technologies and commercialapplications of these assets. We applied discount rates of 36%, 36%, and 38% for BeatBox’s identifiable assets related to existing technology, maintenancecontracts, and customer relationships, respectively. To value maintenance contracts, customer relationships, and existing technology, we considered the projectedrevenues and expenses that could be generated over the estimated useful life of the technologies or contracts. The weighted average amortization period ofexisting technology is 48 months, and the customer relationships and maintenance agreements are 36 months. The weighted average amortization period of allintangible assets is 47 months. All intangible assets are amortized on a straight−line basis over their useful lives which best represents the distribution of theeconomic value of the intangible assets. Amortization expense for the year ended December 31, 2005 was $0.3 million.

2004

Appilog

On July 1, 2004, we completed the acquisition of all capital stock of Appilog, a provider of auto−discovery and application mapping software. Appilog’sadvanced technology automatically manages the complex and dynamic dependencies between enterprise applications and their supporting infrastructure.Appilog’s technology, when combined with our application management products, optimizes business results from applications by managing relationshipsbetween users, applications, and the supporting infrastructures for the applications. The value of combining the auto−discovery technology acquired fromAppilog with our existing application management products contributed to a purchase price in excess of the fair market value of Appilog’s net tangible andamortizable intangible assets acquired, and as such, we have recorded goodwill associated with the transaction in the amount of $49.6 million. Goodwill is notdeductible for tax purposes and will not be amortized to expense. We will test goodwill for impairment at least annually.

The total purchase price of the Appilog acquisition was as follows (in thousands):

Cash $ 50,791Fair value of Appilog options assumed by Mercury 10,401Direct acquisition costs incurred by Mercury 725

Total purchase price $ 61,917

138




We also assumed Appilog’s vested options outstanding as of the date of the acquisition, which were converted into options to purchase approximately229,000 shares of our common stock. The fair value of Appilog options assumed by us was determined using the Black−Scholes option−pricing model with thefollowing inputs: risk−free interest rate of 3.74%, expected life of 4 years, volatility of 84%, zero dividend rate, and the fair value of our common stock as ofJuly 1, 2004.

The purchase price was allocated to the following tangible and intangible assets acquired and liabilities assumed (in thousands):

Cash $ 1,973Tangible assets 455Deferred tax assets 2,290In−process Research and Development (IPR&D) 900Non−compete agreements 400Patents/core technology 1,200Maintenance contracts 1,200Customer relationships 1,300Existing technology 4,800Goodwill 49,579

Total assets acquired 64,097Liabilities assumed (2,180)

$61,917

We recorded deferred tax assets of $2.3 million related to post−acquisition recognition of acquired company stock option exercise benefits which havebeen allocated directly to reduce goodwill. We recognized intangible assets acquired from the Appilog acquisition as assets apart from goodwill because theyarose either from contractual or other legal rights, or they were separable from the acquired entity and could be sold or licensed separately. These intangibleassets were identified through interviews with Appilog management and our analysis of financial information provided by Appilog. We valued identifiable assetsrelated to non−compete agreements, patents/core technology, maintenance contracts, and existing technology using the discounted cash flow as estimated bymanagement knowledgeable in the technologies and commercial applications of these assets with discount rates of 21%, 21%, 19%, and 19%, respectively. Tovalue patents/core technology, maintenance contracts, and existing technology, we considered the projected revenues and expenses that could be generated overthe estimated useful life of the technologies or contracts. To value the acquired non−compete agreements, we considered the potential loss in revenues andadditional expenses to Mercury if the signatories to the agreements were to enter into competition. We valued identifiable asset related to customer relationshipsusing the cost approach under which the fair value of the identified asset was estimated based on the cost to replace the existing customer relationshipsestablished by Appilog management.

The weighted average amortization period of non−compete agreements is 18 months, and patents/core technology, maintenance contracts, customerrelationships, and existing technology are 60 months. The weighted average amortization period of all intangible assets is 58 months. All intangible assets areamortized on a straight−line basis over their useful lives which best represents the distribution of the economic value of the intangible assets. Amortizationexpense for the years ended December 31, 2005 and 2004 was $2.0 million and $1.0 million, respectively.

139




In conjunction with the acquisition of Appilog, we recorded a $0.9 million expense for acquired IPR&D during the third quarter of 2004 becausefeasibility of the acquired technology had not been established and no future alternative uses existed. The acquired IPR&D expense is included as“Acquisition−related expenses” in our consolidated statements of operation for the year ended December 31, 2004. The acquired IPR&D is related to thedevelopment of a more advanced version of auto discovery and application mapping software. The value of acquired IPR&D was determined using thediscounted cash flow approach. The expected future cash flow attributable to the in−process technology was discounted at approximately 30%, taking intoaccount the percentage of completion of approximately 87%, the rate technology changes in the industry, the future markets, and the risk that the technology isnot competitive with other products using alternative technologies with comparable functionalities. As of December 31, 2004, acquired IPR&D projects werecompleted.

The results of operations of Appilog have been included in our consolidated statements of operations since the completion of the acquisition on July 1,2004.

2003

Kintana

On August 15, 2003, we acquired Kintana, a leading provider of IT governance software and services. Kintana’s IT governance software and servicesexpands our product line to include products which enable our customers to improve the management of information technology performance. The ability tooffer additional products to our customers contributed to a purchase price in excess of the fair market value of Kintana’s net tangible assets acquired, and as such,we have recorded goodwill associated with the transaction of $212.8 million. Goodwill is not deductible for tax purposes and will not be amortized. We will testthe goodwill for impairment at least annually.

The total purchase price of the Kintana merger was as follows (in thousands):

Cash $ 130,900Fair value of Mercury common stock issued 88,533Fair value of Mercury options issued 39,654Direct merger costs incurred by Mercury 3,714Direct merger costs incurred by Kintana and paid by Mercury 4,646

Total purchase price $ 267,447

The fair value of our common stock issued was determined using the average closing price of our common stock for the 15 trading days up to andincluding August 13, 2003. The fair value of our options issued was determined using the Black−Scholes option−pricing model with the following inputs:risk−free interest rate of 3.37%, expected life of 4 years, volatility of 89%, zero dividend rate, and the fair value of our common stock as of August 14, 2003. Weissued 2,236,926 shares of common stock based upon the number of shares of Kintana stock outstanding as of August 15, 2003, and the exchange ratio inaccordance with the merger agreement. We also issued options to purchase 1,493,066 shares of our common stock in exchange for all Kintana optionsoutstanding as of August 15, 2003.

140




The purchase price was allocated to the following tangible and intangible assets acquired and liabilities assumed (in thousands):

Cash $ 1,283Tangible assets 10,182Deferred tax assets 16,125IPR&D 10,688Non−compete agreements 13,863Current products and technology 13,376Core technology 10,930Maintenance and support contracts 6,106Goodwill 212,779

Total assets acquired 295,332Liabilities assumed (11,492)Deferred tax liability (17,710)Unearned stock−based compensation 1,317

$267,447

We recorded total deferred tax asset of $15.3 million primarily relating to net operating loss and tax credit carryforwards acquired as part of theacquisition. We have also recorded additional deferred tax assets of $0.8 million related to post−acquisition recognition of acquired company stock optionexercise benefits which have been allocated directly to reduce goodwill. In addition, a deferred tax liability of $17.7 million was recorded for the differencebetween the assigned values and the tax bases of the intellectual property assets acquired in the acquisition. In 2004, we increased the accounts receivablebalance acquired from Kintana by $1.2 million since, based on additional information requested and received by management, we collected payments fromcustomers of these accounts receivable. As a result, we reduced goodwill by $1.2 million.

We recognized intangible assets acquired from the Kintana acquisition as assets apart from goodwill because they arose either from contractual or otherlegal rights, or they were separable from the acquired entity and could be sold or licensed separately. These intangible assets were identified through interviewswith Kintana management. We valued these identifiable intangible assets using the discounted cash flow as estimated by management knowledgeable in thetechnologies and commercial applications of these assets with a discount rate of 20%. To value current product and technology, core technology, andmaintenance and support contracts, we considered the projected revenues and expenses that could be generated over the estimated useful life of the technologiesor contracts. To value the acquired non−compete agreements, we considered the effect on our earnings if the signatories to the agreements were to enter intocompetition.

The weighted average amortization period of non−compete agreements and current products and technology are 36 months, core technology is 60 months,and maintenance and support contracts are 72 months. The total weighted average amortization period of all intangible assets is 47 months. All intangible assetsare amortized on a straight−line basis over their useful lives which best represents the distribution of the economic value of the intangible assets. Amortizationexpense for intangible assets acquired from Kintana was $12.3 million, $12.3 million and $4.6 million for each of the years ended December 31, 2005, 2004 and2003, respectively.

In conjunction with the acquisition of Kintana, we recorded a $10.7 million expense for acquired IPR&D during the third quarter of 2003 becausetechnological feasibility of the IPR&D had not been established and no future alternative uses existed. The acquired IPR&D expense was recorded as“Acquisition−related expenses” in our consolidated statement of operations for the year ended December 31, 2003. Acquired IPR&D is related to

141




the next generation of Kintana’s IT governance software products including changes to existing applications and the addition of new applications. The value ofacquired IPR&D was determined using the discounted cash flow approach. The expected future cash flow attributable to in−process technology was discountedat 23%. This rate considers that the product leverages core and current technology found in the versions of the software, the increasing complexity and criticalityof distributed software applications, the demand for faster turnaround of new distributed applications and enhancements, the expected growth in the industry, thecontinuing introduction of new functionality into the products, and the percentage of completion of approximately 35%. As of December 31, 2004, the acquiredIPR&D projects were completed.

In conjunction with the acquisition of Kintana, we recorded unearned stock−based compensation of $1.3 million, which represents the intrinsic value of1,493,066 options to purchase our common stock that we issued in exchange for Kintana unvested stock options. This amount is included in the total fair value ofour options issued of $39.6 million. Unearned stock−based compensation is amortized over the remaining vesting period of the related options on a straight−linebasis. During the years ended December 31, 2005, 2004 and 2003 amortization of unearned stock−based compensation associated with these options was $0.2million, $0.4 million and $0.2 million, respectively.

We did not record any integration costs related to the Kintana acquisition during the years ended December 31, 2005 and 2004. During the year endedDecember 31, 2003, we recorded $0.6 million in integration costs related to the Kintana acquisition, primarily for severance and consulting services.

The transaction was accounted for as a purchase and, accordingly, the results of operations of Kintana have been included in our consolidated statementsof operations from the date of acquisition. The following unaudited pro forma information presents the combined results of Mercury and Kintana as if theacquisition had occurred as of the beginning of 2003, after applying certain adjustments, including amortization of intangible assets, amortization of unearnedstock−based compensation, rent expense adjustment associated with unfavorable operating leases assumed by us, and interest income, net of related tax effects.The acquired IPR&D of $10.7 million has been excluded from the following presentation as it is a non−recurring expense (in thousands, except per shareamounts):


2003(unaudited)

Net revenues $ 534,646Net loss $ (65,658)Net loss per share (basic) $ (0.76)Net loss per share (diluted) $ (0.76)

Performant

On May 5, 2003, we acquired all of the outstanding stock and assumed the unvested stock options of Performant, a provider of Java 2 Enterprise Edition(J2EE) diagnostics software. Performant’s technology pinpoints performance problems at the application code level. The Performant acquisition allows ourcustomers to diagnose J2EE performance issues across the application delivery and management cycle from pre−production testing to production operations. Theability to offer our customers software products with additional functions contributed to a purchase price in excess of the fair market value of Performant’s nettangible assets acquired, and as such, we have recorded goodwill associated with the transaction of $16.4 million. Goodwill is not deductible for tax purposes andwill not be amortized. We will test the goodwill for impairment at least annually.

142




The fair value of our options issued was determined using the Black−Scholes option−pricing model with the following inputs: risk−free interest rate of2.43%, expected life of 4 years, volatility of 89%, zero dividend rate, and the fair value of our common stock as of May 5, 2003. We issued options to purchaseapproximately 9,300 shares of our common stock in exchange for all Performant unvested options outstanding as of May 2, 2003.

The total purchase price was $23.1 million and consisted of cash consideration of $22.2 million, fair value of stock options assumed for $0.3 million, andtransaction costs of $0.6 million. The purchase price was allocated to the following tangible and intangible assets acquired and liabilities assumed (in thousands):

Cash $ 309Tangible assets (net of cash acquired) 270Deferred tax asset 3,552IPR&D 1,280Existing technology 1,620Patents and core technology 800Employment agreements 720Customer contracts and related relationships 150Order backlog 80Goodwill 16,430

Total assets acquired 25,211Liabilities assumed (1,191)Deferred tax liability (1,180)Unearned stock−based compensation 254

$23,094

We recorded a deferred tax asset of $3.6 million relating to net operating loss and tax credit carryforwards acquired as part of the acquisition. In addition, adeferred tax liability of $1.2 million was recorded for the difference between the assigned values and the tax bases of the intellectual property assets acquired inthe acquisition.

We recognized intangible assets acquired from the Performant acquisition as assets apart from goodwill because they arose either from contractual or otherlegal rights, or they were separable from the acquired entity and could be sold or licensed separately. These intangible assets were identified through interviewswith Performant management and our analysis of financial information provided by Performant. We valued identifiable assets related to existing technology andpatents and core technology using the discounted cash flow as estimated by management knowledgeable in the technologies and commercial applications of theseassets with discount rates of 17% and 22%, respectively. To value these identified intangible assets, we considered the projected revenues and expenses thatcould be generated over the estimated useful life of the technologies or contracts. We valued identifiable asset related to employment agreements, customercontract and related relationships, and order backlog using the cost approach under which the fair values of the identified assets were estimated based on the costto replace the existing agreements, relationships or transactions previously established by Performant management.

The weighted average amortization period of existing technology, patents and core technology, and customer contracts and related relationships is 48months, employment agreements is 18 months, and order backlog is 3 months. The total weighted average amortization period of all intangible assets is 41months. All intangible assets are amortized on a straight−line basis over their useful lives. Amortization expense for intangible assets acquired from Performantfor the years ended December 31, 2005, 2004 and 2003 was $0.6 million, $1.0 million and $0.8 million, respectively.

143




In conjunction with the acquisition of Performant, we recorded a $1.3 million expense for acquired IPR&D during the second quarter of 2003 becausefeasibility of the acquired technology had not been established and no future alternative uses of the technology existed. The acquired IPR&D expense wasrecorded as “Acquisition−related expenses” in our consolidated statement of operations for the year ended December 31, 2003. Acquired IPR&D is related to thedevelopment of the Microsoft version of the diagnostics software or .NET version. The value of IPR&D was determined using the discounted cash flowapproach. The expected future cash flow attributable to the in−process technology was discounted at 29%, considering the percentage of completion ofapproximately 46%, the rate technology changes in the industry, product life cycles, the future markets, and various projects’ stage of development. As ofDecember 31, 2004, the acquired IPR&D projects were completed.

In conjunction with the acquisition of Performant, we recorded unearned stock−based compensation of $0.3 million associated with approximately 9,300unvested stock options that we assumed. The options assumed were valued using the Black− Scholes option−pricing model. During each of the years endedDecember 31, 2005, 2004 and 2003, amortization of unearned stock−based compensation associated with these options was less than $0.1 million.

The transaction was accounted for as a purchase and, accordingly, the results of operations of Performant have been included in our accompanyingconsolidated statements of operations from the date of acquisition. The following unaudited pro forma information presents the combined results of Mercury andPerformant as if the acquisition had occurred as of the beginning of 2003, after applying certain adjustments, including amortization of intangible assets andamortization of unearned stock−based compensation and interest income, net of related tax effects. The acquired IPR&D of $1.3 million has been excluded fromthe following presentation as it was a non−recurring expense (in thousands, except per share amounts):


2003(unaudited)

Net revenues $ 506,336Net loss $ (63,947)Net loss per share (basic) $ (0.74)Net loss per share (diluted) $ (0.74)

In conjunction with the acquisition of Performant, we committed to a license agreement for certain technology. The agreement was entered into in August2000 and remains in effect until April 2018. The total estimated commitment is approximately $0.2 million, although the maximum commitment could reachapproximately $0.8 million. We have paid $0.1 million through December 31, 2005.

In conjunction with the acquisition of Performant, we entered into a milestone bonus plan related to certain research and development activities. The planentitles each eligible employee to receive bonuses, in the form of cash payments, based on the achievement of certain performance milestones by applicabletarget dates. The commitment will be earned equally over time as milestones are achieved and will be expensed as earned. The maximum payment under the planis $5.5 million, of which $5.2 million has been paid through December 31, 2004. For the years ended December 31, 2004 and 2003, we recorded $3.1 million and$2.8 million, respectively, as “Restructuring, integration, and other related expenses” in our consolidated statements of operations associated with the milestonebonus plan.

144




NOTE 6—GOODWILL AND OTHER INTANGIBLE ASSETS

In July and September 2005, we recorded goodwill and intangible assets in conjunction with our acquisitions of Intuwave and BeatBox. In July 2004, werecorded goodwill and intangible assets in conjunction with our acquisition of Appilog. In May and August 2003, in conjunction with our acquisitions ofPerformant and Kintana, respectively, we recorded goodwill and intangible assets. See Note 5 for a full description of our acquisition activities. In addition, wepurchased existing technology from Allerez in July 2003 and the Mercury.com domain name in October 2003.

Changes in the carrying amount of goodwill were as follows (in thousands):

Freshwater Performant Kintana Appilog Beatbox Intuwave Total

Balance at December 31, 2003 $ 115,006 $ 16,430 $ 214,052 $ — $ — $ — $ 345,488Acquisitions — — — 51,835 — — 51,835Adjustments — — (1,028) 34 — — (994)

Balance at December 31, 2004 115,006 16,430 213,024 51,869 — — 396,329Acquisitions — — — — 6,238 90 6,328Adjustments — — (245) (2,290) — — (2,535)

Balance at December 31, 2005 $ 115,006 $ 16,430 $ 212,779 $ 49,579 $ 6,238 $ 90 $ 400,122

The weighted average amortization period and carrying amount of intangible assets were as follows (in thousands):

December 31, 2005 December 31, 2004WeightedAverage

Amortizationperiod

GrossCarryingAmount

AccumulatedAmortization Net

WeightedAverage

Amortizationperiod

GrossCarryingAmount

AccumulatedAmortization Net

Intangible assets:Existing technology 42 $27,868 $ 18,526 $ 9,342 42 $24,966 $ 11,649 $13,317Patents and core technology 57 14,530 7,685 6,845 57 14,530 5,059 9,471Maintenance and support contracts 69 7,557 2,805 4,752 70 7,306 1,519 5,787Employment agreements 18 1,120 1,120 — 18 1,120 853 267Customer contracts and other 38 15,543 11,562 3,981 38 15,393 6,626 8,767Domain name 60 1,122 504 618 60 1,124 281 843

Total 47 $67,740 $ 42,202 $25,538 47 $64,439 $ 25,987 $38,452

In July 2003, we purchased existing technology from Allerez for $1.3 million. This technology enables our customers to leverage their investment in theirexisting information technology infrastructure. The valuation of the intangible assets acquired was based upon our estimates. The intangible assets are amortizedon a straight−line basis over their useful lives which best represent the allocation of the economic value of the intangible assets. During the second quarter of2005, as part of our review of operational effectiveness and to better align our people, resources, and assets with our new business objectives, managementdecided to discontinue selling products using the technology purchased from Allerez. The related maintenance renewal offerings will also be discontinued. As aresult of management’s decision, we performed an impairment review in accordance with SFAS No. 144, Accounting for the Impairment or Disposal ofLong−lived Assets, on the purchased technology

145




from Allerez. We evaluated the recoverability of the intangible asset by comparing its estimated fair value to its carrying value and recorded an impairmentexpense based on the amount by which the carrying value of the intangible asset exceeded its fair value. The estimated fair value was determined using adiscounted cash flow method. Based upon our impairment review, the entire carrying value of the purchased technology of $0.6 million was written off in June2005. The expense is included in “Loss on intangible and other assets” in the consolidated statements of operations.

In October 2003, we purchased the Mercury.com domain name for $1.1 million. The total consideration consisted of $0.7 million in cash and $0.4 millionin costs to provide certain customer support service and sales and technical training to the seller. The non−cash consideration was determined based upon ourestimated costs to provide such services to third parties. The intangible asset will be amortized on a straight−line basis.

The aggregate amortization expense of intangible assets was $15.6 million, $15.6 million, and $7.5 million for the years ended December 31, 2005, 2004,and 2003, respectively. Amortization of intangible assets related to our current products is recorded as “Cost of revenue—amortization of intangible assets” inour consolidated statements of operations. The following table presents the breakdown of amortization of intangible assets recorded in the consolidatedstatements of operations for the periods indicated (in thousands):


Cost of license and subscription $ 8,856 $ 8,882 $4,808Cost of maintenance 1,285 1,137 381

Total cost of revenue 10,141 10,019 5,189Operating expenses 5,427 5,544 2,281

$ 15,568 $15,563 $7,470

Future amortization of intangible assets at December 31, 2005 is as follows (in thousands):


2006 $ 12,3132007 6,2092008 5,0622009 1,954Thereafter —

$ 25,538

NOTE 7—CONVERTIBLE NOTES

In July 2000, we issued $500.0 million in 4.75% Convertible Subordinated Notes due July 1, 2007 (2000 Notes). The 2000 Notes mature on July 1, 2007and bear interest at a rate of 4.75% per annum, payable semiannually on January 1 and July 1 of each year. The 2000 Notes are subordinated in right of paymentto all of our future senior debt. The 2000 Notes are convertible into shares of our common stock at any time prior to maturity at a conversion price ofapproximately $111.25 per share, subject to adjustment under certain conditions. We may redeem the 2000 Notes, in whole or in part, at any time on or afterJuly 1, 2003. If we redeem the 2000 Notes, we will pay accrued interest to the redemption date. We did not redeem any portion of the 2000 Notes since theoriginal issuance through December 31, 2005. Additionally, the holders of the 2000

146




Notes have the right to require us, at their option, to repurchase the 2000 Notes prior to their maturity date (a) upon the occurrence of a change of control ofMercury at 100% of the principal amount thereof or (b) as described below, pursuant to a put option that allows holders to require us to repurchase their 2000Notes on March 1, 2007 at 101.3% of the principal amount thereof.

From December 2001 through December 31, 2002, we repurchased $200.0 million face value of the 2000 Notes.

In April 2003, we issued $500.0 million in Zero Coupon Senior Convertible Notes due 2008 (2003 Notes) in a private offering. The 2003 Notes mature onMay 1, 2008, do not bear interest, have a zero yield to maturity, and may be convertible into shares of our common stock. Holders of the 2003 Notes may converttheir 2003 Notes prior to maturity only if:

• during any fiscal quarter (beginning with the third fiscal quarter of 2003) the closing sale price of our common stock for at least 20 trading days in the30 trading−day period ending on the last trading day of the immediately preceding fiscal quarter exceeds 110% of the conversion price of the 2003Notes on that 30

th trading day; or

• during the period beginning January 1, 2008 through the maturity of the 2003 Notes, the closing sale price of our common stock on the previoustrading day was 110% or more of the conversion price of the 2003 Notes on that previous trading day; or

• specified corporate transactions have occurred; specified corporate transactions include:

i. we distribute to all holders of our common stock rights entitling them to purchase common stock at less than the average sale price of the common stockfor the 10 trading days preceding the declaration date for such distribution; or

ii. we elect to distribute to all holders of our common stock, cash or other assets, debt securities, or rights to purchase our securities, which distribution has aper share value exceeding 15% of the sale price of the common stock on the business day preceding the declaration date for the distribution, then at least20 days prior to the ex−dividend date for the distribution we must notify the holders of the 2003 Notes in writing of the occurrence of such event. Once wehave given that notice, holders may surrender their 2003 Notes for conversion at any time until the earlier of the close of business on the business dayimmediately prior to the ex−dividend date or the date of our announcement that the distribution will not take place, in the case of a distribution. Noadjustment to the ability of a holder of 2003 Notes to convert will be made if the holder may participate in the distribution without conversion; or

iii. in addition and notwithstanding, if we are party to a consolidation, merger or binding share exchange pursuant to which our common stock would beconverted into cash, securities or other property, a holder may surrender 2003 Notes for conversion at any time from and after the date which is 15 daysprior to the anticipated effective date of the transaction until 15 days after the actual date of the transaction.

Upon conversion, we have the right to deliver cash instead of shares of our common stock. Additionally, the holders of the 2003 Notes have the right torequire us, at their option, to repurchase the 2003 Notes prior to their maturity date (a) upon the occurrence of a change of control of Mercury at 100% of theprincipal amount thereof or (b) as described below, pursuant to a put option that allows holders to require us to repurchase their 2003 Notes on October 31, 2006or November 30, 2006 at 107.25% of the principal amount thereof. Accordingly, the carrying value of the 2003 Notes has been classified as a current liability of$500.0 million in our consolidated balance sheets as of December 31, 2005.

In connection with the issuance of our 2000 Notes and 2003 Notes, we incurred $14.6 million and $11.9 million of issuance costs, respectively, whichprimarily consisted of investment banking, legal, and other

147




professional fees. In conjunction with the retirement of a portion of our 2000 Notes in the year ended December 31, 2002, we wrote off $3.8 million of debtissuance costs. The remaining costs are being amortized to interest expense over the remaining term of the 2000 Notes. Further, as a result of our failure to fileour Form 10−Q for the period ended June 30, 2005, we violated provisions of the indentures related to our 2000 Notes and our 2003 Notes (together, the“Notes”) that require us to furnish such information promptly to the Notes trustee and received a notice of default on the Notes in August 2005. In October 2005,we solicited consents from the holders of the Notes. On October 26, 2005, we announced that holders of a majority of each series of the Notes had submittedconsents which waived until March 31, 2006 any default or event of default under the indentures arising from our failure to timely file with the SEC and provideto the trustee of the Notes, those reports required to be filed under the Securities Exchange Act of 1934 (Report Defaults). In consideration for the waiver, we(i) paid to the consenting holders of 2000 Notes a consent fee of $25.00 for each $1,000 principal amount of 2000 Notes, resulting in a $7.1 million payment thatwill be amortized to interest expense over the remaining term of the 2000 notes and (ii) entered into a supplement to the Indenture governing the 2003 Notespursuant to which we will be required to repurchase the 2003 Notes, at the option of the holder, on November 30, 2006 at a repurchase price equal to 107.25% ofthe principal amount. If the put option is exercised by all holders, we will be required to pay the face value and an additional $36.3 million to the 2003 Noteholders on that date. Additionally, since the put option more than doubled the initial rate of return to the Note holders, it is not considered to be clearly or closelyrelated to the original terms of the 2003 indenture governing the 2003 Notes for accounting purposes, and is therefore accounted for separately. Accordingly, thefair value of this put option was recorded as a current liability of $34.2 million in our consolidated balance sheets as of December 31, 2005 and an expense of$34.2 million in our consolidated statements of operations in the fourth quarter of 2005, and will be marked−to−market through our consolidated statements ofoperations each period until expiration or exercise of the put. In addition, the remaining unamortized debt issuance costs associated with the 2003 Notes will berecognized over the period ending October 31, 2006. Legal and other third party costs incurred in connection with these transactions were expensed as incurred.

Amortization expense related to our 2000 Notes was $2.0 million, $1.3 million, and $1.4 million for the years ended December 31, 2005, 2004, and 2003,respectively. At December 31, 2005 and 2004, net debt issuance costs associated with our 2000 Notes were $8.4 million and $3.3 million, respectively.Amortization expense related to our 2003 Notes was $2.9 million, $2.4 million and $1.6 million for the years ended December 31, 2005, 2004 and 2003,respectively. At December 31, 2005 and 2004, net debt issuance costs associated with our 2003 Notes were $5.0 million and $8.0 million, respectively.

See Note 18, “Subsequent Events”, for additional information related to the modification of our 2000 Notes and 2003 Notes.

NOTE 8—COMMITMENTS AND CONTINGENCIES

Royalty agreement

On June 30, 2003, we entered into a non−exclusive agreement (amended in February 2004) to license technology from Motive. The agreement isnon−transferable, except in the case of a merger, acquisition, spin−out, or other transfer of all or substantially all of the business, stock, or assets to which theagreement relates. The agreement is in effect until December 31, 2006 with a right to renew and an option to purchase a fully paid up, perpetual license to thetechnology prior to July 1, 2008. During the second quarter of 2005, as part of our review of our operational effectiveness to better align our people, resourcesand assets with our new business objectives, management decided to discontinue development of the technology we licensed from Motive. This decision resultedin an impairment review of prepaid royalties of $15.4 million, of which $15.0 million had been paid as of December 31, 2004. Based upon management’sdecision to discontinue development efforts, combined with

148




the fact that Motive−based products had not been available for sale, there were no projected revenues or cash flows associated with the Motive technology. Sincewe determined that we had no alternative use for the licensed technology, the prepaid royalties of $15.4 million were not recoverable and were expensed in thesecond quarter of 2005. The expense is included in “loss on intangible and other assets” in the Consolidated Statement of Operations.

Executive severance

In December 2003, we entered into a severance agreement with a former executive officer. In accordance with the agreement, the former executive officeris entitled to salary and bonus through October 3, 2005. Under the agreement, we also accelerated the vesting of options to purchase 374,479 shares of commonstock with exercise prices ranging from $29.29 to $60.88. The exercise period of these accelerated options and the vested portion of options to purchase 255,208shares of common stock with an exercise price of $60.88 was extended through October 3, 2005. As a result, we recorded $5.1 million of stock−basedcompensation expense associated with the modification of these stock options. Severance expense related to accrued salaries and bonuses of $1.5 million wasrecorded as “Marketing and selling expense” in our consolidated statement of operations for the year ended December 31, 2003.

Lease commitments

We lease our headquarters facility and facilities for sales offices in the U.S. and foreign locations under non−cancelable operating leases that expirethrough 2015. Certain of these leases contain renewal options. In addition, we lease certain equipment under various lease agreements with lease terms up untilAugust 2010. In February 2005, we entered into a lease agreement to lease additional buildings at our headquarters in Mountain View, California. Under theterms of this lease, we commenced occupying the buildings in May and July 2005. The lease expires in March 2013. On August 22, 2005, we entered into anagreement to sublease one of our buildings at our headquarters in Mountain View beginning in November 2005 for a term of three years at an average annualrental rate of $0.7 million.

Future minimum payments under facilities, including two vacant facilities from the Kintana acquisition, equipment, and other leases with non−cancelableterms in excess of one year were as follows at December 31, 2005 (in thousands):


Non−CancelableOperating Leases, Net *

Royalty andLicense Agreements Total

2006 $ 20,744 $ 2,892 $ 23,6362007 16,143 1,872 18,0152008 12,301 273 12,5742009 10,775 20 10,7952010 8,935 20 8,955Thereafter 24,289 160 24,449

$ 93,187 $ 5,237 $ 98,424

* Net of payments from sublease agreements

Total rent expense under operating leases amounted to $17.4 million, $13.7 million, and $8.4 million for the years ended December 31, 2005, 2004, and2003, respectively.

149




Letters of credit

As of December 31, 2005, we had four irrevocable letter of credit agreements totaling $2.2 million with Wells Fargo & Company (Wells Fargo). See Note16 for a full description of the letters of credit.

SEC settlement

On September 28, 2006, we announced that we had proposed a settlement to the staff of the SEC, which the staff has agreed to recommend to the SEC, toconclude for us the matters arising from the formal SEC investigation. We have proposed to pay a $35.0 million civil penalty and to consent to the entry of a finaljudgment by a federal court permanently enjoining the Company from violations of the antifraud and other provisions of the federal securitieslaws. The proposed settlement is contingent on the review and approval of final documentation by us and the staff of the SEC, and is subject to final approval bythe SEC. We have expensed the amount as “Costs of restatement and related legal activities” in our consolidated statement of operations against “accrued andother liabilities” in our consolidated balance sheets for the year ended December 31, 2005. As provided in the Merger Agreement with us, Hewlett−Packard hasconsented to the settlement offer and will also be required to approve the final settlement documentation. We continue to cooperate with the SEC and othergovernment agencies regarding this matter. There can be no assurance that our efforts to resolve the SEC’s investigation with respect to the Company will besuccessful, or that the amount reserved will be sufficient, and we cannot predict the timing or the final terms of any settlement.

Contingencies

From time to time, we may have certain contingent liabilities that arise in the ordinary course of our business activities. We accrue for contingent liabilitieswhen it is probable that future expenditures will be made and such expenditures can be reasonably estimated. In the opinion of management, as of December 31,2005, there were no pending claims of which the outcome was expected to result in a material adverse effect on our financial position, results of operations, orcash flows.

For additional details of ongoing litigations, see Note 18, “Subsequent Events”.

NOTE 9—GUARANTEES

FASB Interpretation No. 45, Guarantor’s Accounting and Disclosure Requirements for Guarantees, Including Indirect Guarantees of Indebtedness ofOthers, an Interpretation of FASB Statements No. 5, 57, and 107 and rescission of FIN No. 34 (FIN No. 45) requires that a guarantor recognize, at the inceptionof a guarantee, a liability for the fair value of the obligation undertaken by issuing the guarantee. FIN No. 45 also requires additional disclosures to be made by aguarantor in its interim and annual financial statements about its obligations under certain guarantees it has issued. The accounting requirements for the initialrecognition of guarantees are applicable on a prospective basis for guarantees issued or modified after December 31, 2002. The following is a summary of theagreements we have determined are within the scope of FIN No. 45.

We warrant that our software products will perform in all material respects in accordance with our standard published specifications in effect at the time ofdelivery of the licensed products to the customer for the life of the product. Additionally, we warrant that our maintenance services will be performed consistentwith generally accepted industry standards through completion of the agreed upon services. If necessary, we provide for the estimated cost of product and servicewarranties based on specific warranty claims and claim history. We have not incurred significant expense under our product or services warranties. As a result,we believe the estimated fair value of our product and service warranties is minimal. Accordingly, we have no liabilities recorded for product or servicewarranties at December 31, 2005 or December 31, 2004.

150




When, as part of an acquisition, we acquire all of the stock or all of the assets and liabilities of a company, we assume liabilities for certain events andoccurrences that took place prior to the date of acquisition. We are not aware of any potential obligations arising as a result of our acquisitions completed prior toDecember 31, 2005 that were not included as a component of the purchase price. Accordingly, we have no liabilities recorded for these types of agreements as ofDecember 31, 2005 or December 31, 2004.

As permitted under Delaware law, we have agreements whereby our officers and directors are indemnified for certain events or occurrences while theofficer or director is, or was serving, at our request in such capacity. The term of the indemnification period is for the officer’s or director’s term in such capacity.The maximum potential amount of future payments we could be required to make under these indemnification agreements is unlimited. We have a directors andofficers insurance policy that limits our exposure and enables us to recover a portion of any future amounts paid. As a result of our insurance policy coverage, webelieve the estimated fair value of these indemnification agreements in excess of applicable insurance coverage is minimal. Accordingly, we have no liabilitiesrecorded for these agreements as of December 31, 2005 or December 31, 2004.

We enter into standard indemnification agreements in the ordinary course of business. Pursuant to these agreements, we indemnify, hold harmless, andagree to reimburse the indemnified party for losses suffered or incurred by the indemnified party, generally our business partners, subsidiaries and/or customers,in connection with any U.S. patent or any copyright or other intellectual property infringement claim by any third party with respect to our products. The term ofthese indemnification agreements is generally perpetual any time after execution of the agreement. The maximum potential amount of future payments we couldbe required to make under these indemnification agreements is unlimited. We have not incurred significant costs to defend lawsuits or settle claims related tothese indemnification agreements. As a result, we believe the estimated fair value of these agreements is insignificant. Accordingly, we have no liabilitiesrecorded for these agreements as of December 31, 2005 or December 31, 2004.

We may, at our discretion and in the ordinary course of business, subcontract the performance of any of our services. Accordingly, we enter into standardindemnification agreements with our customers, whereby our customers are indemnified for other acts, such as personal property damage, of our subcontractors.The maximum potential amount of future payments we could be required to make under these indemnification agreements is unlimited; however, we havegeneral and excess insurance policies that enable us to recover a portion of any amounts paid. We have not incurred significant costs to defend lawsuits or settleclaims related to these indemnification agreements. As a result, we believe the estimated fair value of these agreements is insignificant. Accordingly, we have noliabilities recorded for these agreements as of December 31, 2005 or December 31, 2004.

We also have arrangements with certain vendors whereby we guarantee the expenses incurred by certain of our employees. The term is from execution ofthe arrangement until cancellation and payment of any outstanding amounts. We would be required to pay any unsettled employee expenses upon notificationfrom the vendor. The maximum potential amount of future payments we could be required to make under these indemnification agreements is insignificant. As aresult, we believe the estimated fair value of these agreements is minimal. Accordingly, we have no liabilities recorded for these agreements as of December 31,2005 or December 31, 2004.

NOTE 10—STOCKHOLDERS’ EQUITY

Preferred Stock

Under the terms of our Amended and Restated Certificate of Incorporation, the Board of Directors may determine the rights, preferences, and terms of ourauthorized but unissued shares of preferred stock.

151




Common Stock

At the 2004 Annual Meeting of the stockholders held in May 2004, the stockholders approved an increase in the number of authorized shares of commonstock of Mercury from 240 million to 560 million shares.

In accordance with a Preferred Shares Rights Agreement or Shareholder Rights Plan, as amended, which we adopted on July 5, 1996, our commonstockholders receive a preferred stock purchase right for each share of common stock issued after July 15, 1996.

Stock Repurchase Programs

During the third quarter of 2001, our Board of Directors authorized the repurchase of 1.0 million shares of our common stock in the open market, subjectto normal trading restrictions, at a price no greater than $25.00. At December 31, 2005 and 2004, we had 0.8 million shares of treasury stock at a cost of $16.1million under this stock repurchase program.

On July 27, 2004, our Board of Directors approved a program to repurchase up to $400.0 million of our common stock over the next two years. Thespecific timing and amount of repurchases will vary based on market conditions, securities law limitations, and other factors. During 2004, we repurchased9,675,000 shares of our common stock at an average price of $34.33 for an aggregate purchase price of $332.2 million. There were no repurchases of sharesduring the year ended December 31, 2005. At December 31, 2005 and 2004, we had 9.7 million shares of treasury stock at a cost of $332.2 million under thisstock repurchase program.

Repurchased shares under our stock repurchase programs will be used for general corporate purposes, including share issuance requirements under ouremployee stock option and purchase plans. Treasury stock is accounted using the cost method. To date, we have not reissued or retired our treasury stock.

Unearned Stock−Based Compensation

Unearned stock−based compensation relates to stock options assumed in conjunction with acquisitions, stock options that were granted with an exerciseprice less than fair market value on the date of grant and are being accounted for as fixed awards and stock options accounted for as variable awards.

The intrinsic value of unvested stock options assumed in conjunction with acquisitions is recorded as unearned stock−based compensation expense andamortized to expense over the remaining vesting period of the stock options using the straight−line method. Intrinsic value is determined based on the differencebetween the fair market value of our stock on the date of acquisition and the price the optionee is required to pay to exercise their stock options. As ofDecember 31, 2005 and 2004, we had unearned stock−based compensation of $0.2 million and $0.6 million, respectively, related to stock options assumed inconjunction with acquisitions. Upon an employee’s termination, any remaining unearned stock−based compensation expense is reduced, with an offset toadditional paid−in capital. For the years ended December 31, 2005, 2004 and 2003, stock−based compensation expense related to acquisitions was $0.3 million,$0.7 million, and $0.8 million, respectively.

Upon grant of a stock option with an exercise price less than the fair market value of our stock on the date of grant, we record unearned stock−basedcompensation expense for the difference between the fair market value of our stock and the employee’s exercise price if the option will be accounted for as afixed award. Unearned stock−based compensation expense is amortized to stock−based compensation expense over the vesting period using the ratable method,whereby an equal amount of expense is recognized for each year of vesting. Upon an employee’s termination, any remaining unearned stock−basedcompensation is reduced, with an offset to additional paid−in

152




capital. As of December 31, 2005 and 2004, we had unearned stock−based compensation of $4.0 million and $8.9 million, respectively, related to fixed awardswith an exercise price less than the fair market value of our stock on the date of grant. Stock−based compensation expense related to these awards was $7.2million, $23.0 million, and $43.0 million for the years ended December 31, 2005, 2004, and 2003, respectively.

Additionally, we record unearned stock−based compensation for the difference between the fair market value of our stock as of each balance sheet dateand the cumulative amount of expense recognized for stock options accounted for as variable awards. As of December 31, 2005 and 2004, we had unearnedstock−based compensation of less than $0.1 million and $0.3 million, respectively, related to variable awards. Stock−based compensation expense related tothese awards was a credit of $15.6 million and $5.2 million for the years ended December 31, 2005 and 2004, respectively, and was $47.3 million for the yearended December 2003.

NOTE 11—EMPLOYEE BENEFIT PLANS

As a result of its investigation, the Special Committee determined that certain practices with respect to certain stock option grants and exercises werecontrary to the terms of our applicable option plans. Based on information currently available, we believe that, although certain options may have been granted inviolation of our applicable option plans, and although certain of the options were authorized by a Stock Option Committee that included a non−director, thoseoptions are valid and enforceable obligations of ours, at least with respect to options granted to employees not culpably involved in improper grant practices. TheSpecial Committee has determined that we should honor options granted to employees not culpably involved in improper grant practices. Accordingly, we intendto honor the options granted to such employees, but we do not intend to allow persons culpably involved in the mispricing to exercise the options at the misstatedprices.

Stock Option Plans

As of December 31, 2005, a total of 26,802,000 shares of common stock were reserved for issuance upon the exercise of stock options and for future grantof stock options or awards under Mercury’s equity incentive plans.

1989 Stock Option Plan

In August 1989, our Board of Directors (Board) adopted the 1989 Stock Option Plan (1989 Plan). The 1989 Plan provided for the grant of incentive stockoptions to employees and non−statutory stock options to employees and / or consultants. Stock options granted under this plan generally have a term of ten years(except that for holders of 10% or more of the total combined voting power of all classes of our stock, the option term of incentive stock options may not exceedfive years), vest over a period of four years and are exercisable while such person continues to provide services to us and for a specified period after their serviceterminates. As of December 31, 2005, there were options to purchase 2,160,000 shares of our common stock outstanding under the 1989 Plan. Options are nolonger granted under the 1989 Plan.

1994 Directors’ Stock Option Plan

In August 1994, our Board adopted the 1994 Directors’ Stock Option Plan (1994 Directors’ Plan). Only members of the Board may be granted optionsunder the 1994 Directors’ Plan. The 1994 Directors’ Plan currently provides for a stock option grant of 50,000 shares to our outside directors upon initial electionto the Board and automatic annual grants of 10,000 shares upon re−election of the individual to the Board. Stock options granted under this plan have a term often years, and are exercisable while such person remains a director and for a specified period after their service terminates. Initial stock option grants andone−time stock option

153




grants vest 20% each year. Annual stock option grants vest in full on the fifth anniversary following each individual’s re−election to the Board. The exerciseprice of stock options granted under this plan may not be less than 100% of fair market value on the date of grant. As of December 31, 2005, there were optionsto purchase 400,000 shares of our common stock outstanding under the 1994 Directors’ Plan, and 650,000 shares were available for future grant.

1996 Supplemental Plan

In May 1996, our Board adopted the 1996 Supplemental Stock Plan (1996 Supplemental Plan) a stock option plan solely for grants to employees of oursubsidiaries located outside the U.S. Stock options granted under this plan generally have a term of ten years (except that for holders of 10% or more of the totalcombined voting power of all classes of our stock, the option term of incentive stock options may not exceed five years), vest over a period of four years and areexercisable while such person continues to provide services to us and for a specified period after their service terminates. As of December 31, 2005, there wereoptions to purchase 2,000 shares of our common stock outstanding under the 1996 Supplemental Plan. Options are no longer granted under the 1996Supplemental Plan.

1999 Plan

The 1999 Stock Option Plan (1999 Plan) provides for the grant of incentive stock options and / or non−statutory stock options to employees. Theprovisions of the 1999 Plan regarding option term, grant price, exercise price, and vesting period are identical to those of the 1989 Plan except that all optionsgranted under the 1999 Plan must be at exercise prices not less than 100% of the fair market value on the date of grant (except that for holders of 10% or more ofthe total combined voting power of all classes of our stock, incentive stock options may not be granted at less than 110% of the fair value of the common stock atthe date of grant). As of December 31, 2005, there were options to purchase 13,646,000 shares of our common stock outstanding under the 1999 Plan, and4,904,000 shares were available for future grant.

2000 Supplemental Stock Option Plan

The 2000 Supplemental Stock Option Plan (2000 Plan) which allows non−statutory stock options and / or stock purchase rights to be granted to anyemployee who is not a U.S. citizen or resident and who is not an executive officer or director. Stock options granted under this plan generally have a term of tenyears (subject to local law, which in certain cases require a different term), vest over a period of four years and are exercisable while such person continues toprovide services to us and for a specified period after their service terminates. The exercise prices for all options granted under the 2000 Plan must be equal to atleast 100% of the fair market value of the date of grant. As of December 31, 2005, there were options to purchase 3,591,000 shares of our common stockoutstanding under the 2000 Plan, and 843,000 shares were available for future grant. No stock purchase rights were ever granter under these plans.

Other Stock Option Plans

In addition to the option plans described above, as of December 31, 2005, we had also assumed the following stock option plans (collectively, the “OtherPlans”): the Freshwater 1997 Stock Option Plan; the Conduct Ltd. 1998 Share Option Plan (1998 Conduct Plan); the Kintana 1997 Equity Incentive Plan (forU.S. residents); the Kintana Share Option Scheme (for residents of the United Kingdom); the Performant 2000 Stock Option/Restricted Stock Plan; and theAppilog 2003 Stock Option Plan. Stock options granted under the Other Plans generally have a term of ten years (except that for holders of 10% or more of thetotal combined voting power of all classes of our stock, the option term of incentive stock options granted under any of the Other Plans (other than the 1998Conduct Plan) may not exceed five years), vest over a period of four years and are exercisable while such person continues to

154




provide services to us and for a specified period after their service terminates. As of December 31, 2005, in aggregate, there were options to purchaseapproximately 606,000 shares of our common stock outstanding under the Other Plans. Options are no longer granted under any of the Other Plans.

In addition, in connection with our acquisition of Systinet Corporation on January 3, 2006, we assumed the Systinet Corporation 2001 Stock Plan andIncentive Plan. As of immediately following the closing of the acquisition, giving effect to the conversion of the unvested options outstanding under that Plan,there were options to purchase approximately 429,000 shares of our common stock outstanding under that Plan.

Option plans summary

The following table presents the combined activity of all our option plans for the years ended December 31, 2005, 2004, and 2003 (shares in thousands):

2005 2004 2003Options outstanding Options outstanding Options outstanding

Optionsavailablefor grant

Number ofshares

Weightedaverageexercise

price


Number ofshares


price


Number ofshares


price

Balance at beginning of year 6,053 23,695 $ 38.18 7,599 25,474 $ 35.95 5,157 22,524 $ 34.76Additional shares authorized — — $ — — — $ — 7,125 — $ — Options assumed in acquisition — — $ — — 229 $ 4.82 — 1,502 $ 36.42Options granted (3,155) 3,155 $ 41.66 (3,095) 3,366 $ 45.61 (6,234) 6,235 $ 34.43Options canceled and repurchased 3,849 (3,806) $ 49.42 1,888 (1,885) $ 41.72 1,773 (1,754) $ 41.56Options exercised — (2,639) $ 24.86 — (3,489) $ 24.98 — (3,033) $ 20.99Options expired (350) — $ — (339) — $ — (222) — $ — Balance at end of year 6,397 20,405 $ 38.70 6,053 23,695 $ 38.18 7,599 25,474 $ 35.95Options exercisable, end of year 14,344 15,492 13,851

The following table presents weighted average price and remaining contractual life information for significant option groups outstanding under the aboveplans at December 31, 2005 (shares in thousands):

Options outstanding Options vested

Range ofexercise prices

Numberoutstanding

Weighted averageremaining contractual

life (years)Weighted average

exercise priceNumber

exercisableWeighted average

exercise price

$0.13 – $18.25 2,172 2.67 $ 9.47 2,154 $ 9.41$18.74 – $29.29 2,244 6.28 $ 27.24 1,911 $ 27.17$29.65 – $31.41 2,347 7.17 $ 31.21 1,626 $ 31.28$31.55 – $39.81 3,886 7.03 $ 36.19 2,573 $ 35.57$40.72 – $45.50 4,313 6.81 $ 42.64 2,177 $ 41.34$45.55 – $63.06 3,772 7.15 $ 51.98 2,232 $ 55.03$63.06 – $67.88 1,440 4.82 $ 63.49 1,440 $ 63.49$85.13 – $125.45 231 4.61 $ 98.77 231 $ 98.77 $0.13 – $125.45 20,405 6.29 $ 38.70 14,344 $ 37.76

155




As of December 31, 2005, 4.9 million options were outstanding and subject to variable accounting primarily as a result of a lack of evidence ofauthorization for certain stock option grants. As such, the exercise price of the stock options is not considered fixed on the date of grant and therefore these stockoptions are being accounted for as variable awards. When variable accounting is applied, we remeasure the intrinsic value of the options at the end of eachreporting period until there is a measurement date, the options are exercised, forfeited or expired. Compensation expense in any given period is calculated as thedifference between total earned compensation at the end of the period, less total earned compensation at the beginning of the period. As a result, changes in stockprices will change the intrinsic value of the stock options and compensation expense or benefit recognized in any given period. Compensation expense isrecognized over the vesting period using an accelerated vesting method of recognition in accordance with FIN No. 28.

Employee Stock Purchase Plan

In August 1998, our stockholders ratified and approved the 1998 ESPP, which had been adopted by our Board of Directors in June 1998. Since adoption,an aggregate of 7,300,000 shares of common stock have been reserved for issuance thereunder. Under the 1998 ESPP, employees are granted the right topurchase shares of common stock at a price per share that is the lesser of (i) 85% of the fair market value of the shares at the participant’s entry date into theoffering period, or (ii) 85% of the fair market value of the shares at the end of the offering period. For the period August 2002 through August 2004, our ESPPoffering period allowed a two−year look back with rollover provisions and multiple purchase periods. In May 2005, the Compensation Committee of our Boardof Directors approved a change to the maximum offering period under the 1998 ESPP from two years to six months, effective from the beginning of the nextoffering period on August 16, 2005. During 2005, 2004, and 2003, approximately 679,000, 707,000, and 527,000 shares, respectively, were purchased under the1998 ESPP at an average purchase price of $29.82, $24.22, and $21.23, respectively.

From August 2002 to August 2004, we inadvertently issued shares under our 1998 ESPP priced at a discount greater than 15% from the applicable closingprice of our common stock. Accordingly, these shares were treated as compensatory in accordance with APB No. 25, and compensation expense was recognizedon the purchase date when the actual purchase price could be determined. As a result, we recognized $9.4 million and $8.0 million of stock−based compensationexpense for the years ended December 31, 2004 and 2003, respectively. There was no stock−based compensation expense related to shares issued under our 1998ESPP for the year ended December 31, 2005.

Long−Term Incentive Plan

In the first quarter of 2005, certain employees, including our named executive officers, became participants in the Mercury Long−Term Incentive Plan(Incentive Plan). The Incentive Plan was previously adopted by the Compensation Committee of our Board of Directors in December 2004 and amended inFebruary 2005. The amounts and payments of cash awards under the Incentive Plan are based on the attainment of financial goals set for 2005, the performanceperiod, and the completion of a two−year vesting period subsequent to the performance period. We recognize expenses related to cash awards over a three−yearperiod. We have not recognized any expense for cash rewards under the Incentive Plan for the year ended December 31, 2005 as we determined in the fourthquarter of 2005 that the specific financial goals set for 2005 would not be attained and, therefore, no cash awards under the Incentive Plan would be made for2005.

401(k) Plan

We have a qualified 401(k) plan available to eligible employees. Participants may contribute up to 60% of their annual compensation to the plan, limited toa maximum annual amount set by the Internal Revenue Service.

156




We match employee contributions dollar for dollar up to a maximum of $1,000 per year per person. Matching contributions vest according to the number of yearsof employee service. We contributed and expensed $1,127,000, $955,000, and $793,000 to the 401(k) plan for the years ended December 31, 2005, 2004, and2003, respectively.

NOTE 12—INCOME TAXES

The provision for income taxes consisted of (in thousands):


Federal:Current $ 28,016 $ 7,575 $ 2,838Deferred (1,411) (5,451) 2,074

26,605 2,124 4,912State:

Current 3,941 1,082 674Deferred (28) (779) 296

3,913 303 970Foreign:

Current 126,676 8,745 4,961Deferred (2,772) (274) (442)

123,904 8,471 4,519$154,422 $10,898 $10,401

Income (loss) before provision for income taxes consisted of (in thousands):


Domestic $(67,254) $ 92,044 $(125,763)Foreign 121,747 (27,370) 73,578

$ 54,493 $ 64,674 $ (52,185)

157




The provision for income taxes differs from the amount obtained by applying the statutory federal income tax rate to income before taxes as follows (inthousands):


Provision at federal statutory rate of 35% $ 19,073 $ 22,636 $(18,265)State tax, net of federal benefit 3,913 303 970Foreign rate differentials (35,298) (14,830) (10,405)Tax−exempt interest (99) (244) (671)Non−deductible in−process research and development — 315 4,189Non−deductible stock−based compensation 7,343 4,712 16,452Imputed interest 1,262 — — Penalties 12,253 209 194American Jobs Creation Act—tax expense on repatriation of foreign earnings 141,559 — — Bond repurchase premium 787 — — Change in valuation allowance 1,869 (2,388) 16,324Other 1,760 185 1,613

$154,422 $ 10,898 $ 10,401

U.S. income taxes and foreign withholding taxes were not provided for on a cumulative total of $196.1 million of undistributed earnings for certainnon−U.S. subsidiaries. We intend to invest these earnings indefinitely in operations outside the U.S.

The American Jobs Creation Act of 2004 (the Jobs Act), enacted on October 22, 2004, provided for a temporary 85% dividends received deduction oncertain foreign earnings repatriated in 2004 or 2005. The deduction would result in an approximate 5.25% federal tax rate on a portion of the foreign earningsrepatriated. State, local and foreign taxes could apply as well. To qualify for the federal tax deduction, the earnings must be reinvested in the United Statespursuant to a domestic reinvestment plan established by our chief executive officer and approved by the Board of Directors. Certain other criteria in the Jobs Actmust be satisfied as well. The maximum amount of our foreign earnings that qualify for the deduction is $500.0 million.

During December 2005, we repatriated $500.0 million from our Israeli subsidiary under the Jobs Act. The repatriation is subject to taxes of approximately$117.5 million for Israeli taxes, approximately $20.6 million for U.S. federal taxes and approximately $3.2 million for state taxes in accordance with tax lawsexisting at the time. We are currently under negotiations with the Israeli government in an attempt to obtain approval to reduce a portion of the $117.5 millionIsraeli taxes. However, the likelihood that we will be successful in obtaining such approval remains uncertain. In calculating the U.S. tax impacts of the $500.0million distribution from our Israeli subsidiary, we did not isolate the indirect benefits derived from stock option deductions and treat them as increases toshareholders’ equity. This treatment of the indirect impacts of stock option deductions is consistent with our method of accounting for the indirect stock optiondeduction impacts in other areas and in prior periods.

Historically, we have considered undistributed earnings of our foreign subsidiaries to be indefinitely reinvested and, accordingly, had not provided U.S.taxes thereon. As a result of the Jobs Act, we have re−evaluated our intentions regarding a portion of our foreign earnings to take advantage of the special benefitavailable under the Jobs Act. However, this distribution from previously indefinitely reinvested earnings does not change our position going forward that futureearnings of certain of our foreign subsidiaries will be indefinitely reinvested.

158




The components of deferred tax assets (liabilities) were as follows (in thousands):

Year Ended December 31,2005 2004

Deferred tax assets:Other reserves and accruals $ 7,955 $ 1,871Depreciation and amortization 8,243 2,887Sales reserve 1,964 2,120Accrued vacation 3,194 2,546Tax credit carryovers 18,284 3,5202003 Notes waiver costs 10,448 — Net operating loss and capital loss carryforwards 8,532 12,998Non−deductible stock−based compensation 16,362 31,531Less: Valuation allowance (50,748) (38,973)

24,234 18,500Deferred tax liabilities:

Acquired intangible assets (5,688) (11,554)2000 Notes waiver costs (2,488) —

(8,176) (11,554)Net deferred tax assets $ 16,058 $ 6,946

At December 31, 2005 and 2004, our U.S. net operating loss carryforwards for income tax purposes were approximately $224.5 million and $236.8million, respectively. If not utilized, the Federal net operating loss carryforwards will expire in various years through 2024, and the State net operating losscarryforwards will expire in various years through 2014. The net operating losses are primarily attributable to stock option compensation deductions.

During the year ended December 31, 2005, we decreased our valuation allowance by $11.8 million. The cumulative valuation allowance has been placedagainst the gross deferred tax assets because, in our best assessment, it is more likely than not, that we will not recognize all of the tax benefit related to ourdeferred tax assets on which a valuation was recorded. The valuation will be reduced in the period when we are able to utilize the deferred tax assets on its taxreturn, resulting in a reduction in income taxes payable.

If these net operating losses are ultimately recognized, the portion of these losses attributable to excess tax benefits arising from non−compensatory stockoptions will be accounted for as a credit to stockholders’ equity rather than a reduction of income tax expense, and the portion attributable to vestednon−compensatory shares of acquired companies will be accounted for as a reduction to goodwill rather than as a reduction to income tax expense.

In the event of a change in ownership, our U.S. federal and state net operating loss carryovers will be subject to statutory limitations. These limitations,provided under U.S. Internal Revenue Code section 382 and various state statutes would restrict the amount of net operating loss carryovers that we could use toreduce future taxable income.

In 2005 and 2004, we recognized a tax benefit of $9.9 million and $0.3 million, respectively, relating to stock option deductions which was directlyallocated to contributed capital. Prior to the 2004 financial statement restatement, the windfall tax benefit from stock options deductions was recorded directly toadditional paid−in−capital. As a result of the restatement, a portion of this tax benefit no longer constituted windfall benefit and was therefore credited to reducethe provision for income taxes instead of contributed capital.

159




During 2005, we recognized a tax benefit of $2.3 million relating to post−acquisition recognition of acquired company stock option exercise benefitsrelated to Appilog which have been allocated directly to reduce goodwill. We also recognized a similar tax benefit for Kintana during 2005 totaling $0.3 million.

As a result of ownership changes in Performant, approximately $10.0 million of net operating loss carryovers that relate to the Performant acquisition aresubject to certain limitations under the U.S. Internal Revenue Code and State tax laws.

Earnings from foreign operations in Israel are subject to a lower tax rate pursuant to “Approved Enterprise” incentives effective through 2013. Theincentives provide for certain tax relief if certain conditions are met. We believe we continued to be in compliance with these conditions at December 31, 2005.The aggregate amount of our tax holiday received for the year ended December 31, 2005 was $45.9 million, resulting in a $0.53 benefit to earnings per share.

In 2002, we sold the economic rights of Freshwater’s intellectual property to our Israeli subsidiary. As a result of this intellectual property sale, werecorded a current tax payable and a prepaid tax asset in the amount of $25.5 million, which will be amortized to income tax expense on a straight−line basis overeight years, which approximates the period over which the expected benefit is expected to be realized. At December 31, 2005, we had a prepaid tax asset of $3.2million included in prepaid expenses and other assets and $9.6 million included in other assets, net on our consolidated balance sheets.

NOTE 13—DERIVATIVE FINANCIAL INSTRUMENTS

We enter into forward contracts to hedge foreign currency exposures related to certain foreign currency denominated intercompany balances attributable tosubsidiaries and foreign offices in the Americas, EMEA, APAC, and Japan. Additionally, we may adjust our foreign currency hedging position by taking outadditional contracts, terminating, or offsetting existing forward contracts. These adjustments may result from changes in the underlying foreign currencyexposures. We do not enter into forward contracts for speculative or trading purposes. The criteria used for designating a forward contract as a hedge considersits effectiveness in reducing risk by matching hedging instruments to intercompany balances. Gains or losses on forward contracts are recognized as other incomeor expense in the same period as gains or losses on the underlying revaluation of intercompany balances. We had outstanding forward exchange contracts to buyvarious foreign currencies with notional amounts of $3.7 million and $8.9 million at December 31, 2005 and 2004, respectively, and to sell various foreigncurrencies with notional amounts of $60.2 million and $40.1 million at December 31, 2005 and 2004, respectively. The forward contracts in effect atDecember 31, 2005 matured on January 23, 2006 and were fair value hedges of certain foreign currency exposures in the Australian Dollar, British Pound,Danish Kroner, Euro, Indian Rupee, Japanese Yen, Korean Won, Norwegian Kroner, Polish Zlotych, South African Rand, Swedish Kroner, and Swiss Franc.

We also utilize forward exchange contracts of one fiscal−month duration to offset translation gains and losses of various non−functional currencyexposures that occur with foreign currency market fluctuations. Currencies hedged under this fair value hedge program include the Canadian Dollar, Hong KongDollar, Israeli Shekel, and Singapore Dollar. Increases or decreases in the value of these non−functional currency assets are offset by gains or losses on theforward contracts. We had outstanding forward exchange contracts to buy various foreign currencies with notional amounts of $20.2 million and $23.7 million atDecember 31, 2005 and 2004, respectively, and to sell various foreign currencies with notional amounts of $7.6 million at December 31, 2005.

These forward contracts contain credit risk in that the counterparties may be unable to meet the terms of the agreements. However, we minimize such riskof loss by limiting these agreements to major financial institutions.

160




We also monitor closely the potential risk of loss with any one financial institution. We do not expect any material losses as a result of default by counterparties.

In January and February 2002, we entered into two interest rate swaps with respect to $300.0 million of our 2000 Notes. In November 2002, we mergedthe two interest rate swaps with Goldman Sachs Capital Markets, L.P. (GSCM) into a single interest rate swap with GSCM to improve the overall effectivenessof our interest rate swap arrangement. The November interest rate swap of $300.0 million, with a maturity date of July 2007, is designated as an effective hedgeof the change in the fair value attributable to the London Interbank Offering Rate (LIBOR) of our 2000 Notes. The objective of the swap is to convert the 4.75%fixed interest rate on the 2000 Notes to a variable interest rate based on the 3−month LIBOR plus 48.5 basis points. The gain or loss from changes in the fairvalue of the interest rate swap is expected to be highly effective at offsetting the gain or loss from changes in the fair value attributable to changes in the LIBORthroughout the life of the 2000 Notes. The interest rate swap creates a market exposure to changes in the LIBOR. Under the terms of the swap, we providedinitial collateral in the form of cash or cash equivalents to GSCM in the amount of $6.0 million as continuing security for our obligations under the swap(irrespective of movements in the value of the swap) and from time to time additional collateral can change hands between Mercury and GSCM as swap ratesand equity prices fluctuate. We classified the initial collateral as “Other assets, net” in our consolidated balance sheets at December 31, 2004. In May 2005, wesubstituted the collateral held in the form of cash with a fixed income security. In October 2005, as the market value of the swap continued to decline, weprovided additional collateral of $1.3 million in fixed income securities for our obligations under our interest rate swap agreement at the request of GSCM. Thesecurities were previously purchased and held as a long−term, held−to−maturity investment. Since GSCM does not have the right to sell or repledge thecollateral, these securities have been classified as long−term investments as of December 31, 2005. If the price of our common stock exceeds the originalconversion or redemption price of the 2000 Notes, we will be required to pay the fixed rate of 4.75% and receive a variable rate on the $300.0 million principalamount of the 2000 Notes. If we call the 2000 Notes at a premium (in whole or in part), or if any of the holders of the 2000 Notes elected to convert the 2000Notes (in whole or in part), we will be required to pay a variable rate and receive the fixed rate of 4.75% on the principal amount of such called or converted2000 Notes.

Our interest rate swap qualifies under SFAS No. 133 as a fair−value hedge. We record the fair value of our interest rate swap and the change in fair valueof the underlying 2000 Notes attributable to changes in the LIBOR in our consolidated balance sheets. We record the ineffectiveness arising from the differencebetween the two fair values in our consolidated statements of operations as “Other income (expense), net.” Our interest rate swap of $4.8 million was recorded asan asset in our consolidated balance sheets as of December 31, 2004; however, due to the volatility of interest rates, the value of the swap became a liability of$2.3 million as of December 31, 2005.

The changes in the LIBOR resulted in a decrease in the carrying value of our 2000 Notes of $7.2 million and $6.7 million at December 31, 2005 and 2004,respectively. Unrealized gains or losses on the interest rate swap were less than $0.1 million for the years ended December 31, 2005, 2004 and 2003,respectively. At December 31, 2005 and 2004, collateral held under the terms of the swap agreement was $7.5 million and $6.0 million, respectively.

We are exposed to credit exposure with respect to GSCM as counterparty under the swap. However, we believe that the risk of such credit exposure islimited because GSCM is an affiliate of a major U.S. investment bank and because its obligations under the swap are guaranteed by the Goldman Sachs GroupL.P.

161




The following table presents interest income and interest expense resulting from our interest rate swap (in thousands):


Interest income $ 14,298 $ 14,269 $ 14,250Interest expense $ 11,622 $ 6,057 $ 5,256

Our net interest expense, including interest paid on our 2000 Notes, was $11.6 million, $6.0 million, and $5.3 million for the years ended December 31,2005, 2004, and 2003, respectively.

See Note 18, “Subsequent Events”, for additional information on the termination of our interest rate swap and the modification of our 2000 Notes and2003 Notes.

In connection with the modification of our 2003 Notes, we have entered into a supplement to the Indenture governing the 2003 Notes pursuant to whichwe will be required to repurchase the 2003 Notes, at the option of the holder, on November 30, 2006 at a repurchase price equal to 107.25% of the principalamount. Because the put option on our 2003 Note is not considered to be clearly and closely related to the original items of the 2003 indenture governing the2003 Notes for accounting purposes, it is accounted for separately. The fair value of this put option was recorded as a current liability of $34.2 million on ourconsolidated balance sheets as of December 31, 2005 and as an expense of $34.2 million in our consolidated statements of operations in the fourth quarter of2005, and will be marked−to−market through our consolidated statements of operations each period until expiration or exercise of the put. See Note 7,“Convertible Notes” for additional information on the put option on our 2003 Notes.

NOTE 14—RESTRUCTURING, INTEGRATION AND OTHER RELATED EXPENSES

During the second quarter of 2005, we began a plan to review our operational effectiveness and better align our people, resources, and assets with ourbusiness objectives. In July 2005, as a result of the review, our Board of Directors approved a restructuring plan which primarily included a global reduction inheadcount. The restructuring expense, consisting solely of one−time termination benefits, was $2.1 million, all of which had been paid as of December 31, 2005.The following table presents the restructuring expenses on each of our operating segments for the year ended December 31, 2005 (in thousands):

Year EndedDecember 31, 2005

Americas $ 920EMEA 995APAC 135

$ 2,050

162




Restructuring expense incurred for headcount reductions consisted solely of one−time severance and termination benefits for approximately 65 formeremployees and was reported under “Restructuring, integration and other related expenses” in our consolidated statements of operations. As of December 31,2005, all employment separations were completed. There were no restructuring activities during the years ended December 31, 2004 and 2003. The followingtable presents restructuring accrual activity for the year ended December 31, 2005 (in thousands):

Year EndedDecember 31, 2005

Beginning balance $ — Accruals 2,050Payments (2,050)Ending balance $ —

See Note 5 for additional details on integration and other related expenses.

NOTE 15—SUPPLEMENTAL CASH FLOW DISCLOSURES

Supplemental cash flow disclosures for the years ended December 31, 2005, 2004, and 2003 are as follows (in thousands):

Year ended December 31,2005 2004 2003

Supplemental disclosure:Cash paid during the year for income taxes, net of refunds of $3,730, $1,257, and $882,

respectively $ 1,480 $ 4,234 $ 6,546Cash paid during the year for interest $ 24,296 $ 19,553 $ 22,005

Supplemental non−cash investing activities:Issuance of common stock and stock options in conjunction with acquisitions $ — $ 10,401 $ 128,456Purchase of domain name in exchange for customer support service, and sales and technical

training $ — $ — $ 491Common stock received in exchange for equity investment in a privately−held company $ — $ 1,360 $ —

The fair value of assets acquired and liabilities assumed from acquisitions are disclosed in Note 5.

NOTE 16—RELATED PARTIES

Notes receivable from issuance of common stock

At December 31, 2005 and 2004, we held non−recourse notes receivable collateralized by common stock from our employees totaling $1.5 million and$5.5 million, respectively, for purchases of our common stock. Accrued interest is due quarterly or at the end of the term of the note. Principal amount is due twoto five years from the anniversary of the notes, when the employee terminates or when the underlying common stock is sold. We have the right to collect on thenote and repurchase an employee’s unvested shares of common stock upon the employee’s termination of employment. We account for notes receivable from ouremployees and officers using variable accounting under APB No. 25.

163




Business with Wells Fargo & Company

Sale of products and services

We sell products and services to Wells Fargo & Company (Wells Fargo), a financial company, as part of the normal course of business. One of themembers of our Board is an executive officer of Wells Fargo. We recorded total revenues from the sale of products and services to Wells Fargo of $7.0 million,$5.5 million, and $2.1 million for the years ended December 31, 2005, 2004, and 2003, respectively. Accounts receivable due from Wells Fargo was $1.0 millionand $2.6 million as of December 31, 2005 and 2004, respectively.

Banking services

In addition, we obtain banking services from Wells Fargo. As of December 31, 2005, we had four irrevocable letters of credit agreements totaling $2.2million with Wells Fargo. These letter of credit agreements were issued from a $5.0 million letter of credit line issued in February 2005. Two of the letter ofcredit agreements relate to facility lease agreements assumed by us in conjunction with the acquisitions of Kintana in 2003 and Freshwater in 2001. Theseagreements expire on March 1, 2006 and August 31, 2006, respectively. The third agreement relates to the facility lease agreement for our new headquarters inMountain View, California. This agreement automatically renews annually unless we provide a termination notice to Wells Fargo. The fourth letter of creditagreement was issued in connection with the new sublease agreement we executed to lease additional buildings at our Mountain View headquarters. Thisagreement expires on March 26, 2013. At December 31, 2005 and 2004, no amounts had been drawn on the letters of credit. During 2005 and 2004, wemaintained cash deposit accounts and an investment account related to investments in our Israeli research and development facility with Wells Fargo. As ofDecember 31, 2005 and 2004, the total cash deposit balance at Wells Fargo was $14.3 million and $2.5 million, respectively. As of December 31, 2005, therewere no investment account balances at Wells Fargo. At December 31 2004, our investment account balance at Wells Fargo was $102.7 million.

Business with Cisco Systems, Inc.

We sell products and services to Cisco Systems, Inc. (Cisco), a networking and communication equipment manufacturer and service provider for theInternet, as part of the normal course of business. In May 2004, the Chief Information Officer of Cisco became a member of our Board. We recorded totalrevenues from the sale of products and services to Cisco of $1.6 million and $4.3 million for the year ended December 31, 2005 and 2004, respectively. As ofDecember 31, 2005, we had no accounts receivable due from Cisco, nor did we have any significant outstanding payables due to Cisco. Prior to May 2004, wepurchased phone equipment from Cisco. For the year ended December 31, 2005, total payments made to Cisco were de minimus.

164




NOTE 17—SEGMENT AND GEOGRAPHIC REPORTING

We organize, manage, and analyze our business geographically. The reportable operating segments are: the Americas, EMEA, APAC, and Japan. Weoperate in one industry segment: the development, marketing, and selling of integrated application delivery, application management, and IT governancesolutions. Our chief operating decision maker relies on internal management reports, which provide contribution margin analysis by geographic locations, tomake financial decisions and allocate resources. Contribution margin consists of revenues from third parties less costs and expenses over which management ofthe geographic regions can directly control. These costs and expenses are primarily personnel−related costs for supporting our customer service, professionalservice, managed service, and sales organizations. Other operating segment costs and expenses are excluded from the internal management reporting as our chiefoperating decision maker does not use the information to evaluate the operating segment performance. Other operating segment costs and expenses includeresearch and development costs, general and administrative expenses, marketing costs, information technology infrastructure expenses, stock−basedcompensation expense and other costs not allocated to the geographic locations. Revenues from third parties are attributed to a country primarily based on thelocation where the invoice is issued. The following table presents the financial performance of our operating segments (in thousands):


Revenues from third parties by segment:Americas (including U.S. of $506,673, $412,589, and $310,910, respectively) $523,152 $423,843 $321,885EMEA (including U.K. of $82,047, $79,607, and $58,377, respectively) 251,701 208,122 149,251APAC 53,786 38,973 23,830Japan 14,508 15,133 11,239

843,147 686,071 506,205Direct costs and expenses by segment:

Americas 248,653 207,742 156,325EMEA 133,743 119,720 80,852APAC 27,802 21,762 13,781Japan 6,901 6,937 6,130

417,099 356,161 257,088Contribution margin by segment:

Americas 274,499 216,101 165,560EMEA 117,958 88,402 68,399APAC 25,984 17,211 10,049Japan 7,607 8,196 5,109

426,048 329,910 249,117Corporate and other unallocated costs and expenses (income):

Research and development (1) 69,281 60,861 47,069General and administrative (1) 62,793 52,041 35,856Stock−based compensation (7,321) 34,460 105,663Cost of restatement and related legal activities 84,040 — — Other (2) 146,438 130,196 119,382Interest income (53,296) (38,210) (34,399)Interest expense 31,851 24,627 22,824Other expense, net 37,769 1,261 4,907

371,555 265,236 301,302Income (loss) before income taxes $ 54,493 $ 64,674 $ (52,185)

(1) Facility expenses are included in the contribution margin calculation. Unallocated information technology infrastructure expenses are included in other expenses.(2) Other unallocated costs and expenses include restructuring, integration, and other related expenses, amortization of intangible assets, marketing expense, loss on intangible and other assets,

unallocated information technology infrastructure expenses, and other costs not allocated to the geographic locations. For the years ended December 31, 2004 and 2003, acquisition−relatedexpenses and excess facilities expenses are also included.

165




The following table presents the percentages of third party revenue from countries that contributed greater than 10% of total revenues and internationalrevenues as a percentage of total revenue from third parties for the periods indicated:


United States 60% 60% 61%International (excluding U.K.) 30% 28% 27%United Kingdom 10% 12% 12%International 40% 40% 39%

Long−lived assets, which primarily consist of property and equipment, are attributed to a country primarily based on the physical location of the assets.Property and equipment, net of accumulated depreciation, summarized by our operating segment was as follows (in thousands):

December 31,2005 2004

Americas (including U.S. of $41,665 and $41,682, respectively) $ 42,059 $ 41,717EMEA (including Israel of $30,532 and $31,061, respectively) 35,372 34,677APAC 1,851 1,575Japan 750 264

$ 80,032 $ 78,233

Operations located in the U.S. accounted for 77 % and 67% of the consolidated identifiable assets at December 31, 2005 and 2004, respectively.Operations located in Israel accounted for 15% and 25% of the consolidated identifiable assets at December 31, 2005 and 2004, respectively.

Although we operate in one industry segment, our chief operating decision maker evaluates revenues based on the components of application delivery,application management, and IT governance. With the acquisition of Kintana in August 2003, we began recognizing revenue from sales of IT governanceproducts. Accordingly, the following tables present revenues for application delivery, application management, and IT governance (in thousands):

Year Ended December 31, 2005Application

DeliveryApplication

ManagementIT

Governance Total

Revenues:License fees $237,281 $ 40,571 $ 26,618 $304,470Subscription fees 80,126 103,688 3,793 187,607

Total product revenues 317,407 144,259 30,411 492,077Maintenance fees 212,711 16,968 18,712 248,391Professional service fees 53,164 16,387 33,128 102,679

$583,282 $ 177,614 $ 82,251 $843,147

166





DeliveryApplication

ManagementIT

Governance Total

Revenues:License fees $210,244 $ 24,048 $ 27,090 $261,382Subscription fees 74,133 76,222 1,844 152,199


$501,859 $ 124,188 $ 60,024 $686,071


DeliveryApplication

ManagementIT

Governance Total

Revenues:License fees $181,207 $ 11,988 $ 7,644 $200,839Subscription fees 43,461 55,334 29 98,824


$411,225 $ 79,083 $ 15,897 $506,205

NOTE 18—SUBSEQUENT EVENTS (UNAUDITED)

Proposed Acquisition of Mercury Interactive by Hewlett−Packard Company

On July 25, 2006, we entered into an Agreement and Plan of Merger (the Merger Agreement) with Hewlett−Packard Company (HP) and Mars LandingCorporation, a wholly−owned subsidiary of HP (Merger Sub). Pursuant to the Merger Agreement, and upon the terms and subject to the conditions thereof, onAugust 17, 2006, Merger Sub commenced a cash tender offer (the Offer) for all of the issued and outstanding shares of our common stock, par value of $0.002per share, at a purchase price of $52.00 per share (the Offer Price). As soon as practicable after the consummation of the Offer, Merger Sub will merge with andinto us (the Merger) and we will become a wholly−owned subsidiary of HP. In the Merger, the remaining stockholders of Mercury, other than such stockholderswho have validly exercised their appraisal rights under the Delaware General Corporation Law, will be entitled to receive the Offer Price per share. As of thedate of this filing, the Offer is scheduled to expire on October 13, 2006.


The closing of the Merger is subject to customary closing conditions (including those discussed above), and, depending on the number of shares held byHP after its acceptance of the shares properly tendered in connection with the Offer, approval of the Merger by the holders of our outstanding shares remainingafter the completion of the Offer also may be required.

167




Events Related to the Special Committee and Company Investigations and the Restatement

For events that occurred prior to January 1, 2005 related to the investigations by the Special Committee and the Company and the restatement of ourhistorical financial statements, see our amended Annual Report on Form 10−K/A for the year ended December 31, 2004, as well as Note 1, Our SignificantAccounting Policies, Restatement of Consolidated Financial Statements.

On January 3, 2006 we announced that our common stock was delisted from The NASDAQ National Market as a result of our noncompliance with theNASDAQ listing requirements and that our common stock would be traded on the Pink Sheets effective as of January 4, 2006.

On February 2, 2006, we announced that we had entered into an agreement effective January 27, 2006 with Amnon Landan pursuant to which his stockoption with a record grant date of January 8, 2001 to acquire 700,000 shares of our common stock was cancelled. Additionally, the exercise prices of certain ofMr. Landan’s stock options were increased. The exercise price of his option to purchase 120,000 shares with a record grant date of July 15, 1999 was increasedfrom $18.25 to $21.94 per share, the exercise price of his option to purchase 700,000 shares with a record grant date of January 22, 2002 was increased from$29.29 to $36.43 per share, and the exercise price of his option to purchase 322,680 shares with a record grant date of January 9, 1998 was increased from $6.315to $8.75 per share. It was also agreed that Mr. Landan’s vested options would remain exercisable until July 15, 2006. As a result of the modification, we arerequired to record stock−based compensation expense based on the fair value of the modified options in excess of the fair value of the original vested optionsimmediately before modification in accordance with the provisions of SFAS No. 123(R). Due to the resources required to complete our restatement and becomecurrent with our SEC filings, we have not yet implemented SFAS No. 123R and are unable to estimate the effect this adoption will have on our results ofoperations. However, we expect the adoption of SFAS No. 123R to have a significant effect on our results of operations.

In February 2006, we also added Stanley Keller and Joseph Costello as new independent members of our Board of Directors. Mr. Keller also currentlyserves as the chair of the Special Litigation Committee and the Nominating and Corporate Governance Committee, and as a member of the Audit Committee.Mr. Costello currently serves as a member of the Compensation Committee and the Audit Committee. Also in February, Sandra Escher joined the company as itsgeneral counsel and secretary.

On May 5, 2006, a shareholder derivative lawsuit was filed against certain current and former officers and directors in the U.S District Court for theNorthern District of California, Klein v. Landan, et al., No. 06−2971 (JF). This action alleges that defendants violated Section 16(b) (the short−swing profitsprovision) of the Securities Exchange Act of 1934. The Company is named solely as a nominal defendant against whom the plaintiffs seek no recovery. Theplaintiffs have stipulated to file an Amended Complaint by October 6, 2006. We are unable to predict the outcome of this matter at this time.

On May 19, 2006, we announced that the Special Committee had determined on May 15, 2006 that Amnon Landan should be treated as having beenterminated for cause under his employment agreement dated February 11, 2005. The Special Committee concluded that there was a material breach byMr. Landan of his fiduciary obligations as an officer due to his actions and omissions in connection with option grants, option exercises and loans to him whilehe was our CEO. We had previously disclosed that Mr. Landan is not entitled to receive severance benefits under this employment agreement in the event he isterminated for cause.

On May 26, 2006, Douglas Smith paid us approximately $0.5 million, which represents the difference between his option’s exercise price of $24.29 pershare and the agreed−upon exercise price of $28.05 per share for 120,000 shares he previously acquired on exercise of the option. Mr. Smith’s stock optiongranted on November 2, 2001, to the extent vested and exercisable on the date his employment terminated, remained

168




exercisable until March 15, 2006, which was beyond the expiration date set forth in his stock option agreement. This modification to extend the exercise periodfor his vested stock options did not result in any effect on our consolidated financial statements.

On June 7, 2006, we announced that the Special Litigation Committee of our Board of Directors had issued a report which made the followingdeterminations: (i) the claims against Amnon Landan should be pursued by the Company using counsel retained by the Company; (ii) a recommendation that theSpecial Committee declare void Mr. Landan’s vested and unexercised options to the extent such options are found by the Special Committee to have been datedimproperly; (iii) the derivative claims asserted against former Chief Operating Officer Ken Klein, former Chief Financial Officer Doug Smith and formerGeneral Counsel Susan Skaer should be pursued by a shareholder plaintiff in the context of the derivative action in the Santa Clara County Superior Court, ratherthan in the Delaware Chancery Court or the Northern District of California; (iv) the derivative claims against non−management directors Giora Yaron, IgalKohavi and Yair Shamir should be dismissed because the Special Litigation Committee determined that the derivative claims against Dr. Yaron, Dr. Kohavi andMr. Shamir will fail in the face of the provisions of the Company’s Certificate of Incorporation and the Delaware General Corporation Law which would permitdamages claims against them only for breach of their duty of loyalty or for actions taken in bad faith; (v) the derivative claims against current CEO and directorTony Zingale, outside directors Clyde Ostler and Brad Boston, and former principal accounting officer Bryan LeBlanc should be dismissed because none of theseindividuals was affiliated with us at the time of the principal events at issue; and (vi) the derivative claims against our independent registered public accountingfirm, PricewaterhouseCoopers LLP, should be stayed at least six additional months. Also on June 7, 2006, we announced that the Special Committee determinedto follow the Special Litigation Committee’s recommendation and declared void and cancelled an aggregate of 2,625,416 vested and unexercised options grantedto Mr. Landan between 1997 and 2002.

On June 8, 2006, we filed a motion in the Santa Clara County Superior Court seeking to implement the conclusions reached by the Special LitigationCommittee. On July 12, the Court dismissed defendants Anthony Zingale, Brad Boston, Clyde Ostler and Bryan LeBlanc with prejudice, dismissed defendantsIgal Kohavi, Yair Shamir and Giora Yaron without prejudice, stayed all claims against Defendant Amnon Landan allowing the Company to pursue those claimsand stayed all claims against Defendant PricewaterhouseCoopers LLP for six months to allow the Special Litigation Committee to conclude its investigation ofthose claims. On September 22, 2006, the plaintiffs filed a consolidated complaint against former officers Sharlene Abrams, Kenneth Klein, Susan Skaer andDouglas Smith. On October 3, 2006, the Special Litigation Committee determined that, at that time, it would not be in the best interests of the Company to seekdismissal of the claims against Ms. Abrams.

On June 9, 2006, our Board of Directors received a shareholder letter demanding we bring suit for alleged Section 16(b) violations against a differentgroup of current and former officers than was set forth in the May 5, 2006 shareholder derivative lawsuit. After analysis of the allegations in this letter, it wasdetermined that there is no basis to the allegations of section 16(b) violations, and a response setting forth this determination was sent to the stockholder and hiscounsel. The stockholder may now decide to initiate an action on our behalf. We are unable to predict whether the stockholder will initiate such an action.

On June 23, 2006, the SEC Staff, as part of the “Wells” process by which the SEC Staff affords individuals and companies the opportunity to present theirviews regarding potential action by the SEC, advised counsel for directors Igal Kohavi, Yair Shamir and Giora Yaron that the SEC Staff is consideringrecommending that the Commission file a civil enforcement proceeding against each of these directors under applicable provisions of the federal securities laws.If charges are brought, the SEC may seek a permanent injunction against further violations of the securities laws, an order permanently barring these directorsfrom serving as officers or directors of any SEC registered company, and civil monetary penalties. The charges under consideration would allege that

169




each of these directors knew or should have known about the manipulation of grant dates and that each knew, or was reckless in not knowing, the impact thatoption backdating would have on our financial results. The directors have filed a Wells submission arguing that they did not violate the federal securities laws,that they did not participate in or know of option backdating, and that the charges under consideration are legally and factually without basis. Former officers arelikely to receive or have received similar Wells notices. The formal SEC investigation of the Company is continuing. In light of the Wells notice, theaforementioned directors have offered to withdraw from their respective positions on the applicable committees of the Company’s Board of Directors, and theBoard has accepted that offer.

Pursuant to stipulations of the parties, which were approved by the United States District Court for the Northern District of California and the DelawareChancery Court, the derivative action pending in the Northern District of California is stayed pending resolution of the California state court derivative litigation,and the derivative actions filed in the Chancery Court are stayed until the consummation of the merger with Hewlett−Packard or the termination of the mergeragreement. We are unable to predict the outcome of these matters at this time.

On July 28, 2006, we entered into an agreement (the Second Amendment) with Amnon Landan (amending the November 1, 2005 agreement by andbetween the Company and Mr. Landan, as previously amended by the amendment effective January 27, 2006). Pursuant to the Second Amendment, we andMr. Landan agreed that Mr. Landan will not exercise his options to acquire 437,500 shares of our common stock that were granted with a record grant date ofJanuary 3, 2003 and that he no longer will have any right to or interest in, or any value from, those options, except as specifically set forth in the SecondAmendment. We and Mr. Landan further agreed that if, on or before the cutoff date (as defined below), we and Mr. Landan reach a settlement as to theCompany’s pending claims against Mr. Landan, Mr. Landan will receive against any amount that he agrees to pay to us a credit of the lesser of (i) the settlementamount or (ii) $2,817,500 (which represents the difference between the exercise price of the 2003 options ($31.41 per share) and the closing price of theCompany’s common stock on July 14, 2006 ($37.85 per share)). For purposes of the Second Amendment, the cutoff date means the later of March 15, 2007 orsuch other date on which such credit can be granted without subjecting Mr. Landan to liability for additional tax under Section 409A of the Internal RevenueCode.

On September 28, 2006, we announced that we had proposed a settlement to the staff of the SEC, which the staff has agreed to recommend to the SEC, toconclude for us the matters arising from the formal SEC investigation relating to the Company’s historical stock option practices. We have proposed to pay a$35.0 million civil penalty and to consent to the entry of a final judgment by a federal court permanently enjoining the Company from violations of the antifraudand other provisions of the federal securities laws. The proposed settlement is contingent on the review and approval of final documentation by us and the staff ofthe SEC, and is subject to final approval by the SEC. We have expensed the amount as “Costs of restatement and related legal activities” in our consolidatedstatement of operations against “Accrued and other liabilities” in our consolidated balance sheets for the year ended December 31, 2005. As provided in theMerger Agreement with us. Hewlett−Packard has consented to the settlement offer and will also be required to approve the final settlement documentation. Wecontinue to cooperate with the SEC and other government agencies regarding this matter. There can be no assurance that our efforts to resolve the SEC’sinvestigation with respect to the Company will be successful, or that the amount reserved will be sufficient, and we cannot predict the timing or the final terms ofany settlement.

Amendments to the Terms of Our 2000 Notes and Our 2003 Notes

Because we failed to file our SEC reports by March 31, 2006, as required by the waivers we obtained in October 2005, the trustee or the holders of 25% ofeach series of the Notes had the right as of April 1, 2006 to declare the principal and interest on the applicable series of Notes immediately due and payable. OnApril 21,

170




2006 we solicited additional consents from the holders of the Notes requesting a waiver until the stated maturity of the 2000 Notes and the 2003 Notes, asapplicable, of any Report Defaults. On May 4, 2006, we announced that as of May 3, 2006, holders of a majority of the outstanding aggregate principal amountof each series of the Notes had submitted consents and therefore the Report Defaults were waived for all holders. In consideration of the waiver, we (i) enteredinto a supplement to the Indenture governing the 2000 Notes requiring us to repurchase the 2000 Notes, at the option of the holder, on March 1, 2007 at arepurchase price equal to 101.3% of the principal amount of the 2000 Notes, together with accrued and unpaid interest, if any, and providing that any 2000 Notesredeemed pursuant to Article XI of the Indenture during the period from July 1, 2006 through March 5, 2007 shall be at a redemption price of 101.3% of theprincipal amount of the 2000 Notes, together with accrued and unpaid interest, if any, to the redemption date and (ii) entered into a supplement to the Indenturegoverning the 2003 Notes requiring us to repurchase the 2003 Notes, at the option of the holder, on October 31, 2006 (in addition to the existing optional put dateof November 30, 2006), at a repurchase price equal to 107.25% of the principal amount of the 2003 Notes. If the put options are exercised by all holders of bothseries of Notes, we will be required to pay the face value of the Notes and an additional $36.3 million to the holders of the 2003 Notes on October 31, 2006 orNovember 30, 2006 and $3.9 million to all holders of the 2000 Notes on March 1, 2007.

Because the 2003 Notes were originally issued as non−interest bearing, zero coupon notes, and the issuance of the put option effectively doubled the initialrate of return on these Notes, the put option is not considered clearly or closely related to the original terms of the Indenture governing the 2003 Notes foraccounting purposes, and will be accounted for separately. As a result, the fair value of the put option was recorded as an expense in our condensed consolidatedstatements of operations in the second quarter of 2006 and will be marked−to−market through our condensed consolidated statements of operations each perioduntil exercise or expiration of the put. We have estimated the current fair value of the November 30, 2006 put option to be zero as a result of the low probabilityof exercise, given the proximity of the October 31, 2006 put option at the same repurchase price. We will re−evaluate the probability of exercise quarterly, andshould future probability assessments indicate that there is a change in likelihood of exercise for any of the put options, we will re−evaluate our valuation of theput options. The put option issued to the holders of the 2000 Notes did not more than double the initial rate of return on the Notes and is therefore considered tobe clearly and closely related to the Indenture governing the 2000 Notes for accounting purposes. Accordingly, this put option will not be accounted forseparately, and the difference between the repurchase price and carrying value of the Notes will be expensed upon exercise of the put. The remainingunamortized debt issuance costs associated with both series of Notes will also be accelerated and expensed in full through the period ending October 31, 2006 forthe 2003 Notes and ending March 1, 2007 for the 2000 Notes. Legal and other third party costs incurred in connection with these transactions will be expensed asincurred.

On May 22, 2006 we terminated our $300 million receive fixed / pay floating interest rate swap with a fair value of approximately $3.9 million. As aresult, we made a cash payment to GSCM of approximately $0.4 million. Our decision to terminate the swap resulted from various considerations, including thepotential effect of the put option issued to the holders of the 2000 Notes, which could effectively change the maturity of the 2000 Notes to March 1, 2007, thecontinued volatility and uncertainty of the interest rate environment, and the fact that the LIBOR exceeds our fixed coupon rate of 4.75%. In connection with theswap termination, we will record an expense of approximately $1.4 million in the second quarter of 2006 resulting from the ineffectiveness primarily caused bythe change in cash flows from issuance of the put option, which will be substantially different from the previously anticipated cash flows. In addition, the excessof the face value of the debt that was subject to the swap over the fair value of the debt as of the date the swap was terminated was $2.5 million and will beamortized to expense on a straight−line basis until March 1, 2007, the put date on the 2000 Notes. Interest expense on the 2000 Notes will be fixed at the statedcoupon rate of 4.75% over the remaining life of the 2000 Notes.

171





Acquisitions

On January 31, 2006, we completed our acquisition of Systinet Corporation (Systinet). The technology of Systinet, a leading provider of service−orientedarchitecture (SOA) governance and lifecycle management software and services, when combined with Mercury BTO Enterprise™ offerings, will help enablecustomers to take a lifecycle approach to optimizing the quality, performance and availability of SOA business services. We accounted for the acquisition as apurchase transaction and paid cash of approximately $105.0 million, plus the exercise price of all vested and outstanding Systinet options and warrants, that hadnot been exercised prior to closing, less certain of Systinet’s net liabilities as calculated in accordance with the acquisition agreement. In addition, we agreed toassume Systinet’s unvested stock options, which were converted into options to purchase our common stock at an exchange ratio based in part on the per sharemerger consideration. Pursuant to the purchase agreement, we entered into a milestone bonus plan related to certain technical and operational activities. Thismilestone bonus plan of up to $5.0 million is payable to certain key employees for their achievement of specific milestones through June 30, 2007, and will berecognized as compensation expense when earned.

On June 7, 2006, we completed the acquisition of service desk and ITIL−based technology and research and development resources from VerticalSolutions, Inc. (VSI) and Tefensoft Inc. for an aggregate cash purchase price of $18.5 million, less certain of Tefensoft’s net liabilities as calculated inaccordance with the acquisition agreement, less the exercise price of all outstanding Tefensoft warrants that had not been exercised prior to closing, plus we alsoassumed certain net liabilities. The transaction was structured as an acquisition of technology assets from VSI and the purchase of all of the outstanding capitalstock of Tefensoft Inc. VSI is a developer of service management and sales force automation software based in Cincinnati, Ohio. Tefensoft Ltd., a wholly ownedsubsidiary of Tefensoft Inc., is a software development company based in Tefen, Israel. Pursuant to the purchase agreement related to Tefensoft, we entered intoa milestone bonus and non−competition plan related to certain technical and operational activities and, in some cases, compliance with non−competitionprovisions. This milestone bonus and non−competition plan of up to $1.8 million is payable to certain key employees of Tefensoft for their achievement ofspecific milestones through May 31, 2009, and will be recognized as compensation expense when earned.

Modifications of stock options

On February 8, 2006, we entered into an Employment Agreement with Anthony Zingale, our president and chief executive officer, effective as ofNovember 1, 2005, to set forth his compensation terms. In addition, the agreement provides that certain options to purchase an aggregate of 450,000 shares ofcommon stock previously granted to him will remain exercisable until the fifteenth day of the tenth month or December 31st, whichever is later, following histermination of employment for any reason. As a result of the modification, we are required to record stock−based compensation expense based on the fair valueof the modified options in excess of the fair value of the original vested options immediately before modification in accordance with the provisions of SFASNo. 123(R). Due to the resources required to complete our restatement and become current with our SEC filings, we have not yet implemented SFAS No. 123Rand are unable to estimate the effect this adoption will have on our results of operations. However, we expect the adoption of SFAS No. 123R to have asignificant effect on our results of operations. In addition, on February 8, 2006, we entered into a revised Change of Control Agreement with Mr. Zingale thatprovides upon the involuntary termination (including resigning for good reason), or termination of

172




his employment as a result of disability or death, within 18 months following a change of control of us, he will be entitled to, among other things, acceleratedvesting of all stock options and other forms of long−term compensation held by him at the time of termination, with all outstanding vested stock options grantedprior to January 1, 2006 remaining exercisable until the fifteenth day of the tenth month or the December 31st, whichever is later, that follows the termination ofhis employment, and all options granted on or after January 1, 2006 remaining exercisable for a period of twelve months following the termination of hisemployment.

On March 16, 2006, we entered into an Employment Agreement with David Murphy, our chief financial officer, effective as of April 1, 2006, to set forthhis compensation terms. In addition, the agreement provides that certain options to purchase an aggregate of 390,000 shares of common stock previously grantedto him will remain exercisable until the fifteenth day of the third month or December 31st, whichever is later, following the date, for each option, on which theapplicable option would have expired under the terms at its original grant date. As a result of the modification, we are required to record stock−basedcompensation expense based on the fair value of the modified options in excess of the fair value of the original vested options immediately before modification inaccordance with the provisions of SFAS No. 123(R). Due to the resources required to complete our restatement and become current with our SEC filings, wehave not yet implemented SFAS No. 123R and are unable to estimate the effect this adoption will have on our results of operations. However, we expect theadoption of SFAS No. 123R to have a significant effect on our results of operations. In addition, on March 16, 2006, we entered into a revised Change of ControlAgreement with Mr. Murphy that provides upon the involuntary termination (including resigning for good reason), or termination of his employment as a resultof disability or death, within 24 months following a change of control of us, he will be entitled to, among other things, accelerated vesting of all stock options andother forms of equity and long−term compensation held by him at the time of termination, with all outstanding vested stock options granted prior to January 1,2006 remaining exercisable until the later of the fifteenth day of the third month following the date at which the option would otherwise have expired under theterms of the option at its original grant date, or the December 31st that follows the termination of his employment, and all outstanding vested options granted onor after January 1, 2006 remaining exercisable for a period of twelve months following the termination of his employment.

1998 ESPP

On July 31, 2006, we announced that the 1998 ESPP will not accept any further contributions after the offering period of February 16, 2006 to August 15,2006 (Offering Period). Rather than issuing shares under the 1998 ESPP, employees who contributed to the plan during the Offering Period will receive a cashpayment equal to the difference between 85% of the fair value of our common stock on February 16, 2006 and the proposed cash tender offer price of $52.00 pershare from Hewlett−Packard Company, subject to the closing of the merger. Due to the resources required to complete our restatement and become current withour SEC filings, we have not yet implemented SFAS No. 123R and are unable to estimate the effect this adoption will have on our results of operations.However, we expect the adoption of SFAS No. 123R to have a significant effect on our results of operations.

Commitments and Obligations

In February 2006, at the request of GSCM, we provided additional collateral of $1.7 million in fixed income securities for our obligations under ourinterest rate swap agreement.

Expiration of Preferred Shares Rights Agreement

On July 5, 2006, our Preferred Shares Rights Agreement dated July 5, 1996, under which we had issued preferred stock purchase rights to our stockholdersthat entitled the holders, under certain circumstances, to purchase from us one one−thousandth of a share of our Series A Participating Preferred Stock, expired inaccordance with its terms.

173


Table of ContentsUNAUDITED QUARTERLY FINANCIAL DATA

The following table presents unaudited selected quarterly information for all quarters of fiscal years 2005 and 2004 from previously reported informationfiled on Form 10−Q/A and Form 10−K/A, as a result of the restatement of our financial results:

Quarter endedDec. 31,

2005Sept. 30,

2005June 30,

2005March 31,

2005Dec. 31,

2004Sept. 30,

2004June 30,

2004March 31,

2004(in thousands, except per share amounts)

Total revenues $ 228,878 $208,156 $207,014 $ 199,099 $204,757 $165,372 $159,097 $ 156,845Income (loss) from operations $ (8,846) $ 26,181 $ 25,138 $ 28,344 $ 21,388 $ 34,381 $ (6,336) $ 2,919Net income (loss) $(183,276) $ 29,502 $ 27,630 $ 26,215 $ 23,614 $ 33,022 $ (3,395) $ 535Net income (loss) per share—basic $ (2.08) $ 0.34 $ 0.32 $ 0.31 $ 0.28 $ 0.38 $ (0.04) $ 0.01Net income (loss) per share—diluted (1) $ (2.08) $ 0.30 $ 0.28 $ 0.26 $ 0.24 $ 0.33 $ (0.04) $ 0.01Weighted average common shares—basic 88,128 87,398 86,713 85,664 84,413 87,828 92,330 91,262Weighted average common shares and equivalents—diluted (1) 88,128 100,434 101,063 100,712 99,528 101,611 92,330 98,489

(1) For the periods when we have net income, diluted net income per share and weighted average diluted common shares and equivalents include the effect of common stock issuable upon theconversion of the Zero Coupon Senior Convertible Notes due 2008 issued in 2003. For the periods when we have net loss, stock options outstanding were considered anti−dilutive due toour net loss and therefore were not included in our diluted earnings per share computation. See Note 1 in the Notes to the Consolidated Financial Statements for the basic and diluted netincome per share computations for these periods.

174


Exhibit 10. 19

AGREEMENT AND PLAN OF MERGER

BY AND AMONG

MERCURY INTERACTIVE CORPORATION,

SYSTINET CORPORATION,

SHARK CORPORATION,

AND

WARBURG PINCUS PRIVATE EQUITY VIII, L.P.,

AS STOCKHOLDERS REPRESENTATIVE

JANUARY 8, 2006


TABLE OF CONTENTS

Page

Article 1 THE MERGER 1

1.1 The Merger 1 1.2 Closing 2 1.3 Effects of the Merger 2 1.4 Effects on Capital Stock 2 1.5 Exchange of Certificates 4 1.6 Stock Options and Warrants 6 1.7 Dissenting Shares 7 1.8 Determination of Actual Net Liabilities and Aggregate Exercise Price 7

Article 2 REPRESENTATIONS AND WARRANTIES OF SYSTINET 9

2.1 Organization, Standing and Power 9 2.2 Capital Structure 10 2.3 Authority; Noncontravention 11 2.4 Financial Statements 12 2.5 Absence of Certain Changes; Undisclosed Liabilities 12 2.6 Litigation 13 2.7 Restrictions on Business Activities 13 2.8 Intellectual Property 13 2.9 Taxes 18 2.10 Employee Benefit Plans 20 2.11 Employee Matters 22 2.12 Related Party Transactions 23 2.13 Insurance 23 2.14 Compliance With Laws 23 2.15 Minute Books 23 2.16 Brokers’ and Finders’ Fees 23 2.17 Board Approval 23 2.18 Stockholder Approval 23 2.19 Material Customers 24 2.20 Contracts 24 2.21 Title of Properties; Absence of Encumbrances 25 2.22 Representations Complete 25

Article 3 REPRESENTATIONS AND WARRANTIES OF MERCURY AND MERGER SUB 25

3.1 Organization, Standing and Power 25 3.2 Authority; Noncontravention 26 3.3 Board Approval 26 3.4 Required Financing 26 3.5 Brokers 27 3.6 Litigation 27

−ii−


TABLE OF CONTENTS(cont’d)

Page

Article 4 COVENANTS AND OTHER AGREEMENTS 27

4.1 Conduct of Business of Systinet and Subsidiaries 27 4.2 Restrictions on Conduct of Business of Systinet and Subsidiaries 28 4.3 Access to Information 30 4.4 Confidentiality 31 4.5 Public Disclosure 31 4.6 Consents; Cooperation 31 4.7 Legal Requirements 32 4.8 Employees; Benefits 33 4.9 Stock Options 33 4.10 Form S−8 34 4.11 Spreadsheet 34 4.12 Expenses 35 4.13 Further Assurances 35 4.14 Information Statement 35 4.15 No Solicitation 36 4.16 Milestone Bonus Plan 36 4.17 Section 280G Matters 37 4.18 Comerica Credit Facility 37 4.19 Additional Systinet Options 37 4.20 Systinet 401(k) Plan 37

Article 5 CONDITIONS TO THE MERGER 38

5.1 Conditions to Obligations of Each Party to Effect the Merger 38 5.2 Additional Conditions to Obligations of Systinet 38 5.3 Additional Conditions to the Obligations of Mercury and Merger Sub 38

Article 6 TERMINATION, AMENDMENT AND WAIVER 40

6.1 Termination 40 6.2 Effect of Termination 41 6.3 Amendment 41 6.4 Extension; Waiver 42

Article 7 ESCROW FUND AND INDEMNIFICATION 42

7.1 Escrow Fund 42 7.2 Indemnification 42 7.3 Limitations on Indemnification; Exclusive Remedy 43 7.4 Claim Period 44 7.5 Claims upon Escrow Fund 44 7.6 Objections to Claims 45 7.7 Resolution of Objections to Claims 45 7.8 Third−Party Claims 46

iii


TABLE OF CONTENTS(cont’d)

Page

7.9 Stockholders Representative 467.10 Actions of the Stockholders Representative 477.11 Purchase Price Adjustment 48

Article 8 GENERAL PROVISIONS 48

8.1 Survival of Representations and Warranties 488.2 Notices 488.3 Interpretation 508.4 Definitions 518.5 Counterparts 548.6 Entire Agreement; No Third Party Beneficiaries 548.7 Assignment 548.8 Severability 548.9 Failure or Indulgence Not Waiver; Remedies Cumulative 558.10 GOVERNING LAW 558.11 Binding Arbitration 558.12 IP Litigation; Jurisdiction; Venue 568.13 WAIVER OF JURY TRIAL 568.14 Enforcement 56

* * * * *

Exhibit A Form of Stockholder Action by Written Consent A−1Exhibit B Form of Certificate of Merger B−1Exhibit C Form of Escrow Agreement C−1Exhibit D Form of Letter of Transmittal D−1Exhibit E Milestone Bonus Plan E−1Exhibit F Closing Deliveries F−1Exhibit G−1 Form of Jones Day Opinion (G−1)−1Exhibit G−2 Form of Goodwin Procter LLP Opinion (G−2)−1Exhibit H Form of Offer Letter H−1Exhibit I Form of Proprietary Information and Inventions Agreement I−1Exhibit J−1 Form of U.S. Non−Competition Agreement (J−1)−1Exhibit J−2 Form of Czech Non−Competition Agreement (J−2)−1Exhibit K Form of Termination and Waiver K−1Exhibit L−1 Form of Investment Letter (L−1)−1Exhibit L−2 Form of Investment Letter (L−2)−2

iv


AGREEMENT AND PLAN OF MERGER

This AGREEMENT AND PLAN OF MERGER, dated as of January 8, 2006 (this “Agreement”), is by and among Mercury Interactive Corporation, aDelaware corporation (“Mercury”), Systinet Corporation, a Delaware corporation (“Systinet”), Shark Corporation, a Delaware corporation and a wholly ownedsubsidiary of Mercury (“Merger Sub”), and Warburg Pincus Private Equity VIII, L.P., as a representative of Systinet’s stockholders (the “StockholdersRepresentative”).

BACKGROUND

A. Mercury, Merger Sub and Systinet wish to effect a business combination through a Merger (as defined in Section 1.1) of Merger Sub with and intoSystinet on the terms and conditions, set forth in this Agreement;

B. The Board of Directors of Systinet (the “Systinet Board”) has approved this Agreement, the Merger and the other transactions contemplated by thisAgreement and determined that this Agreement, the Merger and the other transactions contemplated by this Agreement are advisable and in the best interest of itsstockholders;

C. The Boards of Directors of Mercury and Merger Sub have approved this Agreement, the Merger and the other transactions contemplated by thisAgreement and determined that this Agreement, the Merger and the other transactions contemplated by this Agreement are in the best interest of their respectivestockholders;

D. Immediately after the execution and delivery of this Agreement, stockholders of Systinet holding at least 85% of the combined voting power of the thenoutstanding shares of Systinet Capital Stock (as defined in Section 1.4) will execute and deliver a written consent in the form of Exhibit A (the “SystinetStockholders Written Consent”) approving and adopting this Agreement; and

E. Mercury, Merger Sub and Systinet desire to make certain representations, warranties, covenants and agreements in connection with the Merger, and alsoto prescribe various conditions to the Merger.

AGREEMENT

The parties to this Agreement, intending to be legally bound, agree as follows:

ARTICLE 1THE MERGER

1.1 The Merger. Upon the terms and subject to the conditions in this Agreement, and in accordance with the General Corporation Law of the State ofDelaware (the “DGCL”), Merger Sub shall be merged with and into Systinet (the “Merger”) at the effective time of the Merger (the “Effective Time”) whichshall be the time of the filing of the certificate of merger, substantially in the form of Exhibit B (the “Certificate of Merger”) or at such later time as is agreed byMercury and Systinet as set forth in the Certificate of Merger. The Certificate of


Merger shall be filed if, as and when the Closing occurs with the Secretary of State of the State of Delaware (the “Delaware Secretary”). Systinet shall be thesurviving corporation (sometimes referred to as the “Surviving Corporation”) in the Merger and shall succeed to and assume all the rights and obligations ofMerger Sub in accordance with the DGCL.

1.2 Closing. The closing of the transactions contemplated by this Agreement (the “Closing”) shall take place no more than three business days after thesatisfaction or waiver of each of the conditions set forth in Article 5 or at such other time as the parties agree in writing. The Closing shall take place at theoffices of Jones Day, 2882 Sand Hill Road, Suite 240, Menlo Park, California or at such other location as the parties agree. The date on which the Closingactually occurs is herein referred to as the “Closing Date.”

1.3 Effects of the Merger.

(a) At the Effective Time, the effect of the Merger shall be as provided in this Agreement, the Certificate of Merger and the applicable provisions ofthe DGCL.

(b) At the Effective Time, the certificate of incorporation of Merger Sub, as in effect immediately prior to the Effective Time, shall be the certificateof incorporation of the Surviving Corporation until thereafter amended as provided by the DGCL and such certificate of incorporation; provided, however, that atthe Effective Time the certificate of incorporation of the Surviving Corporation shall be amended so that the name of the Surviving Corporation shall be“Systinet Corporation.”

(c) At the Effective Time, the bylaws of Merger Sub, as in effect immediately prior to the Effective Time, shall be the bylaws of the SurvivingCorporation until thereafter amended as provided by the DGCL, the certificate of incorporation of the Surviving Corporation and such bylaws.

(d) At the Effective Time, the directors and officers of Merger Sub, as constituted immediately prior to the Effective Time, shall be the directors andofficers of the Surviving Corporation, for so long as provided under the DGCL, the certificate of incorporation of the Surviving Corporation and the bylaws ofthe Surviving Corporation.

1.4 Effects on Capital Stock. As of the Effective Time, by virtue of the Merger and without any action on the part of Merger Sub, Mercury or Systinet, orany holder of shares of capital stock of Systinet (the “Systinet Capital Stock”) or any shares of capital stock of Merger Sub, the following shall occur:

(a) Each share of Systinet Capital Stock that is owned by Systinet, Mercury, Merger Sub or any of their respective Subsidiaries shall automaticallybe canceled and shall cease to exist, and no consideration shall be delivered or deliverable in exchange therefor.

(b) Each share of Common Stock of Merger Sub (the “Merger Sub Common Stock”) issued and outstanding immediately prior to the EffectiveTime shall be converted into one validly issued, fully paid and nonassessable share of common stock of the Surviving Corporation. Each certificate evidencingownership of Merger Sub Common Stock shall evidence ownership of shares of common stock of the Surviving Corporation.

2


(c) Each issued and outstanding share of Systinet Capital Stock (other than shares to be canceled in accordance with Section 1.4(a) and DissentingShares (as defined in Section 1.7(a))) shall be converted into the right to receive the Merger Consideration (as defined in Section 1.4(d)) as specified andallocated in this Section 1.4. As of the Effective Time, all such shares of Systinet Capital Stock shall no longer be outstanding and shall automatically becanceled and shall cease to exist, and each holder of a certificate formerly representing any such shares of Systinet Capital Stock (the “Certificates”) shall ceaseto have any rights with respect thereto, except the right to receive the Merger Consideration as allocated in this Section 1.4 upon surrender of such Certificate inaccordance with Section 1.5 or, with respect to Dissenting Shares, the rights set forth in Section 1.7 and the DGCL.

(d) “Merger Consideration” means an aggregate amount of cash in immediately available funds equal to (i) $105,000,000 plus (ii) the amount of theaggregate exercise price of all vested and unexercised Systinet Options (as defined in Section 1.6(a)) and all Systinet Warrants (as defined in Section 1.6(c)) as of12:01 a.m. on the Closing Date (the “Aggregate Exercise Price”) minus (iii) the amount of the Actual Net Liabilities (as defined in Section 1.8(e)). At or beforethe Closing, Mercury shall deliver in cash in immediately available funds:

(x) A portion of the Merger Consideration equal to $10,750,000 (the “Escrow Fund”) to U.S. Bank National Association, as escrow agent(the “Escrow Agent”), in accordance with an Escrow Agreement, dated as of the Closing Date, substantially in the form of Exhibit C (the “Escrow Agreement”),by and among Mercury, the Escrow Agent and the Stockholders Representative, which Escrow Fund will be held and distributed in accordance with the terms ofthe Escrow Agreement and Section 1.8(f) and Article 7 of this Agreement; and

(y) An amount equal to the Merger Consideration less the amount of the Escrow Fund to the Exchange Agent (as defined in Section 1.5(a))for distribution in accordance with this Section 1.4 and Sections 1.5 and 1.6.

(e) For purposes of the Closing, Systinet shall make a good−faith estimate of (i) the consolidated balance sheet of Systinet as of 12:01 a.m. on theClosing Date (the “Closing Date Balance Sheet”), which shall be prepared in accordance with GAAP (as defined in Section 2.4) applied in a manner consistentwith the accounting principles used in the preparation of the Audited Financial Statements (as defined in Section 2.4), (ii) the consolidated balance sheet ofSystinet as of December 31, 2005 (the “December 31 Balance Sheet”), which shall be prepared in accordance with GAAP applied in a manner consistent withthe accounting principles used in the preparation of the Audited Financial Statements (as defined in Section 2.4), (iii) the Net Liabilities (as defined inSection 8.4(j)) (or, for accounts receivable, as of December 5, 2005) (the “Estimated Net Liabilities”), and (iv) the Aggregate Exercise Price as of December 31,2005 (the “Estimated Aggregate Exercise Price”), each of which shall be based upon the most recent ascertainable financial information of Systinet and itsSubsidiaries, and each of which shall be delivered to Mercury at least three business days prior to the Closing. For purposes of payments of the MergerConsideration before a final determination of the Actual Net Liabilities and the Aggregate Exercise Price in accordance with Section 1.8, the MergerConsideration shall be calculated using the Estimated Net Liabilities and the Estimated Aggregate Exercise Price, with any adjustment to be made in accordancewith Section 1.8(f).

3


(f) The Merger Consideration shall be allocated as follows: (i) each share of Systinet Common Stock (as defined in Section 8.4(o)) issued andoutstanding immediately prior to the Effective Time shall be converted into the right to receive, and become exchangeable for, an amount of cash equal to theCommon Price Per Share, and (ii) each share of Systinet Preferred Stock (as defined in Section 8.4(p)) issued and outstanding immediately prior to the EffectiveTime shall be converted into the right to receive, and become exchangeable for, an amount in cash equal to the product of (x) the Common Price Per Sharemultiplied by (y) the number of shares (including fractions of a share) of Systinet Common Stock issuable upon conversion of such share of Systinet PreferredStock in accordance with Systinet’s certificate of incorporation, as amended and as in effect immediately prior to the Effective Time (the “Systinet Charter”).The “Common Price Per Share” shall equal the Merger Consideration divided by the Systinet Participating Capitalization, rounded to six decimal places.“Systinet Participating Capitalization” means, as of immediately prior to the Effective Time, the aggregate number of outstanding shares of Systinet CommonStock (including all (i) shares of Systinet Common Stock issuable upon conversion of all shares of Systinet Preferred Stock and (ii) shares of Systinet CommonStock issuable upon exercise of (A) all vested and unexercised Systinet Options and (B) all Systinet Warrants).

(g) If there is a stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into capital stock),reorganization, reclassification, combination, recapitalization or other like change with respect to shares of Systinet Capital Stock occurring after the date of thisAgreement and before the Effective Time, all references in this Agreement to specified numbers of shares of any class or series affected thereby, and allcalculations provided for that are based upon numbers of shares of any class or series (or trading prices therefor) affected thereby, shall be equitably adjusted tothe extent necessary to provide the parties the same economic effect as contemplated by this Agreement prior to such stock split, reverse stock split, stockdividend, reorganization, reclassification, combination, recapitalization or other like change.

1.5 Exchange of Certificates.

(a) At or prior to the Closing, Mercury shall enter into an agreement with Mellon Investor Services LLC (or such other bank or trust company in theUnited States as may be designated by Mercury and reasonably acceptable to Systinet, the “Exchange Agent”), which shall provide that Mercury shall makeavailable to the Exchange Agent cash in the amount necessary for the payment of the Merger Consideration as specified and allocated in Section 1.4 uponsurrender of Certificates and thereafter.

(b) At the Closing or as soon as reasonably practicable after the Closing, Mercury shall cause the Exchange Agent to deliver or mail to each holderof record of a Certificate (i) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, onlyupon delivery of the Certificates to the Exchange Agent and shall be substantially in the form of Exhibit D, together with changes reasonably requested by theExchange Agent) and (ii) instructions for use in surrendering Certificates in exchange for consideration specified and allocated in Section 1.4. Upon surrender ofa Certificate for cancellation to the Exchange Agent, together with such letter of transmittal, duly completed and executed, and such other documents as mayreasonably be required by the

4


Exchange Agent, the holder of such Certificate shall receive in exchange therefor the Merger Consideration into which the shares formerly represented by suchCertificate shall have been converted in accordance with Section 1.4 (less any cash deposited into the Escrow Fund), and the Certificate so surrendered shall becanceled. If a transfer of ownership of shares of Systinet Capital Stock has not been registered in Systinet’s transfer records, payment may be made to a Person(as defined in Section 8.4(k)) other than the Person in whose name the Certificate so surrendered is registered if such Certificate is properly endorsed orotherwise is in proper form for transfer and the Person requesting such issuance shall pay any transfer or other Tax (as defined in Section 2.9(a)) required byreason of the payment to a Person other than the registered holder of such Certificate or establish to the satisfaction of Mercury that such Tax has been paid or isnot applicable. Other than interest earned that becomes part of the Escrow Fund, no interest shall be paid or will accrue on the cash payable to holders ofCertificates in accordance with the provisions of this Article 1.

(c) All cash paid upon the surrender of Certificates in accordance with the terms of this Article 1 (including cash deposited into the Escrow Fund)shall be deemed to have been paid in full satisfaction of all rights pertaining to the shares of Systinet Capital Stock represented by such Certificates, and thereshall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the shares of Systinet Capital Stock which wereoutstanding immediately prior to the Effective Time.

(d) None of Mercury, the Surviving Corporation or the Exchange Agent shall be liable to any Person with respect to any cash delivered to a publicofficial in accordance with any applicable abandoned property, escheat or similar law. If any Certificate shall not have been surrendered immediately prior to thedate on which any amounts payable in accordance with this Article 1 would otherwise escheat to or become the property of any Governmental Entity (as definedin Section 2.3), any such amounts shall, to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claimsor interest of any Person previously entitled thereto.

(e) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate tobe lost, stolen or destroyed and, if required by Mercury, the posting by such Person of a bond in such reasonable amount as Mercury may direct as indemnityagainst any claim that may be made against it with respect to such Certificate, the Exchange Agent shall issue in exchange for such lost, stolen or destroyedCertificate the applicable Merger Consideration with respect thereto.

(f) To the extent required by law, the Surviving Corporation or the Exchange Agent shall be entitled to deduct and withhold from amounts otherwisepayable in accordance with this Agreement to any former holder of shares of Systinet Capital Stock, Systinet Options or Systinet Warrants such amounts as theSurviving Corporation or the Exchange Agent reasonably believes is required to be deducted and withheld with respect to the making of such payment under theInternal Revenue Code of 1986 (the “Code”) or any provision of state, local or foreign Tax law. To the extent that amounts are so withheld and paid over to theappropriate taxing authority by the Surviving Corporation or the Exchange Agent, such withheld amounts shall be treated for all purposes of this Agreement ashaving been paid to the holder of the shares of Systinet Capital Stock, Systinet Options or Systinet Warrants in respect of which such deduction and withholdingwas made by the Surviving Corporation or the Exchange Agent.

5


1.6 Stock Options and Warrants.

(a) Systinet shall use its commercially reasonable efforts to obtain from each holder of a then outstanding option to purchase shares of SystinetCommon Stock (the “Systinet Options”) granted under the Systinet Option Plan (as defined in Section 2.2) that is then exercisable and vested (including thosethat become exercisable and vested as a result of the consummation of the Merger) an agreement, to be effective upon consummation of the Merger, to cancelsuch Systinet Option to the extent it is then exercisable and vested (including those that become exercisable and vested as a result of the consummation of theMerger) in consideration of payment to such holder of an amount in cash in respect thereof equal to the product of (i) the excess, if any, of the Common Price PerShare over the per share exercise price thereof and (ii) the number of then exercisable and vested (including those that become exercisable and vested as a resultof the consummation of the Merger) shares of Systinet Common Stock subject thereto (such payment to be net of applicable withholding taxes). The SystinetOptions subject to the agreements described in the preceding sentence shall be referred to as the “Cash Out Options.”

(b) Upon consummation of the Merger, each then outstanding Systinet Option granted under the Systinet Stock Plan that is not a Cash Out Optionshall be assumed by Mercury in accordance with Section 4.9 hereof.

(c) Systinet shall use its reasonable efforts to obtain from each holder of a then outstanding warrant issued by Systinet (the “Systinet Warrants”) anagreement, to be effective upon consummation of the Merger, to cancel such Systinet Warrant in consideration of payment to such holder of an amount in cash inrespect thereof equal to the product of (i) the excess, if any, of the Common Price Per Share over the per share exercise price thereof and (ii) the number of sharesof Systinet Common Stock subject thereto (such payment to be net of applicable withholding taxes). The Systinet Warrants subject to the agreement described inthe preceding sentence shall be referred to as the “Cash Out Warrants.”

(d) Payment of the consideration for each Cash Out Option and Cash Out Warrant shall be made as follows:

(i) At the Closing, a portion of such consideration (before any required tax withholding) equal to the product obtained by multiplying(x) such consideration by (y) a fraction, the numerator of which shall be the amount of the Escrow Fund and the denominator of which shall be the MergerConsideration shall be included in the Escrow Fund delivered by Mercury to the Escrow Agent as contemplated by Section 1.4(d)(x); and

(ii) Within 10 business days after Closing, Mercury shall deliver to the holder of such Cash Out Option and Cash Out Warrant the remainderof such consideration.

6


1.7 Dissenting Shares.

(a) Notwithstanding anything in this Agreement to the contrary and unless otherwise provided by applicable law, shares of Systinet Capital Stockthat are issued and outstanding immediately prior to the Effective Time and that are owned by stockholders who have properly perfected their rights of appraisalin accordance with the provisions of applicable law (“Dissenting Shares”) shall not be converted into the right to receive the Merger Consideration, unless anduntil such stockholders shall have failed to perfect or shall have effectively withdrawn or lost their right of payment under applicable law, but, instead, theholders thereof shall be entitled to payment of the fair value of such Dissenting Shares in accordance with the applicable provisions of law. If any such holdershall have failed to perfect or shall have effectively withdrawn or lost such right of appraisal, each share of Systinet Capital Stock held by such stockholder shallthereupon be deemed to have been converted into the right to receive and become exchangeable for, at the Effective Time, the Merger Consideration specifiedand allocated in Section 1.4.

(b) Systinet shall give Mercury (i) prompt notice of any objections filed in accordance with applicable law received by Systinet, withdrawals of suchobjections and any other instruments served in connection with such objections in accordance with applicable law and received by Systinet or its representativesand (ii) the opportunity to direct all negotiations and proceedings with respect to objections under applicable law consistent with Systinet’s obligationsthereunder. Systinet shall not, except with the prior written consent of Mercury, (i) voluntarily make any payment, admission or statement against interest withrespect to any such objection, (ii) offer to settle or settle any such objection or (iii) waive any failure by a former Systinet stockholder to timely deliver a writtenobjection or other act perfecting appraisal rights in accordance with applicable law.

1.8 Determination of Actual Net Liabilities and Aggregate Exercise Price.

(a) Mercury may, at its option, prepare a calculation of (i) the actual Net Liabilities (or, for accounts receivable, as of December 5, 2005) (the “FinalNet Liabilities”), and (ii) the actual Aggregate Exercise Price as of December 31, 2005 (the “Final Aggregate Exercise Price”), which shall be delivered to theStockholders Representative, if at all, within 45 days after the Closing. In addition, if it is determined in accordance with such calculation that the EstimatedAmount (as defined in Section 1.8(f)) is greater than the Actual Amount (as defined in Section 1.8(f)), Mercury may, at its option, prepare a statement settingforth the amount equal to the difference between the Actual Amount and the Estimated Amount (an “Adjustment Certificate”), which shall be delivered to theStockholders Representative and the Escrow Agent, if at all, within 45 days after the Closing. The Stockholders Representative shall have 45 days after the dateof the delivery of the Final Net Liabilities, the Final Aggregate Exercise Price and the Adjustment Certificate (the “Dispute Period”) to dispute any of theelements of Mercury’s calculation of the Final Net Liabilities, the Final Aggregate Exercise Price or the amount set forth in the Adjustment Certificate (a“Dispute”). The Stockholders Representative shall have reasonable access during normal business hours to all documents, records, work papers, facilities andpersonnel necessary for it to review the Final Net Liabilities, the Final Aggregate Exercise Price and the amount set forth in the Adjustment Certificate.

7


(b) If the Stockholders Representative does not give written notice of a Dispute (a “Dispute Notice”) within the Dispute Period to Mercury and theEscrow Agent, the determination of the Final Net Liabilities, the Final Aggregate Exercise Price and the amount set forth in the Adjustment Certificate shall betreated as if it had been accepted and agreed to by the Stockholders Representative in the form in which it was delivered, and shall be final and binding upon theparties hereto.

(c) If the Stockholders Representative has a Dispute, the Stockholders Representative shall give Mercury and the Escrow Agent a Dispute Noticewithin the Dispute Period, setting forth the elements and amounts with which it disagrees. Within 30 days after delivery of the Dispute Notice, Mercury and theStockholders Representative shall attempt to resolve the Dispute and agree in writing upon the final content of the disputed Final Net Liabilities, the FinalAggregate Exercise Price and any adjustment to be made in accordance with Section 1.8(f).

(d) If Mercury and the Stockholders Representative are unable to resolve any Dispute within the 30−day period after the StockholderRepresentative’s delivery of a Dispute Notice, the Stockholder Representative and Mercury shall jointly engage BDO Seidman, or if such firm declines to act insuch capacity, by such other firm of independent nationally recognized accountants having no material relationship with Mercury or Systinet and reasonablyacceptable to both the Stockholder Representative and Mercury (the “Arbitrating Accountant”) as arbitrator. In connection with the resolution of any Dispute,the Arbitrating Accountant shall have access to all documents, records, work papers, facilities and personnel necessary to perform its function as arbitrator. TheArbitrating Accountant’s function shall be to conform the Final Net Liabilities, the Final Aggregate Exercise Price and the amount set forth in the AdjustmentCertificate to the principles of preparation set forth in this Section 1.8. The Arbitrating Accountant shall allow Mercury and the Stockholders Representative topresent their respective positions regarding the Dispute. The Arbitrating Accountant may, at its discretion, conduct a conference concerning the Dispute, at whichconference each party shall have the right to present additional documents, materials and other information and to have present its advisors, counsel andaccountants. In connection with such process, there shall be no hearings or any oral examinations, testimony, depositions, discovery or other similar proceedingsother than the conference referred to in the preceding sentence. The Arbitrating Accountant shall thereafter promptly render its decision on the question inwriting and finalize the Final Net Liabilities, the Final Aggregate Exercise Price and the amount set forth in the Adjustment Certificate to reflect the resolution ofall Disputes. Such written determination shall be final and binding upon the parties hereto with respect to the Dispute, and judgment may be entered on theaward. The fees and expenses of the Arbitrating Accountant shall be allocated between the former holders of Systinet Capital Stock, the Cash Out Options andthe Cash Out Warrants, on the one hand, and Mercury, on the other hand, so that share of the former holders of Systinet Capital Stock, the Cash Out Options andthe Cash Out Warrants of such fees and expenses shall be equal to the product of (i) and (ii), where (i) is the aggregate amount of such fees and expenses, andwhere (ii) is a fraction, the numerator of which is the amount in dispute that is ultimately unsuccessfully disputed by the Stockholders Representative (asdetermined by the Arbitrating Accountant), and the denominator of which is the total amount in dispute.

8


(e) For purposes of this Agreement, (i) the “Actual Net Liabilities” shall be either the Estimated Net Liabilities if Mercury does not deliver thecalculation contemplated by Section 1.8(a) or, if Mercury delivers such calculation, the Final Net Liabilities, and (ii) the “Aggregate Exercise Price” shall beeither the Estimated Exercise Price if Mercury does not deliver the calculation contemplated by Section 1.8(a) or, if Mercury does deliver such calculation, theFinal Aggregate Exercise Price, in each case as determined and adjusted after resolution of all Disputes in accordance with Sections 1.8(b), 1.8(c) or 1.8(d), asapplicable.

(f) If the Aggregate Exercise Price minus the Actual Net Liabilities (the “Actual Amount”) is greater than the Estimated Aggregate Exercise Priceminus the Estimated Net Liabilities (the “Estimated Amount”), an amount equal to difference between the Actual Amount and the Estimated Amount shall bedistributed to the holders of shares of Systinet Capital Stock, vested and unexercised Systinet Options and Systinet Warrants outstanding immediately prior to theEffective Time as contemplated by Sections 1.4 and 1.5. If the Estimated Amount is greater than the Actual Amount, an amount equal to difference between theActual Amount and the Estimated Amount shall be distributed from the Escrow Fund to Mercury in accordance with the Escrow Agreement.

ARTICLE 2REPRESENTATIONS AND WARRANTIES OF SYSTINET

Subject to the exceptions set forth in the Disclosure Letter of Systinet delivered concurrently with the execution of this Agreement (the “SystinetDisclosure Letter”) (which disclosures shall delineate the section or subsection to which they apply but shall also qualify such other sections or subsections inthis Article 2 to the extent it is reasonably apparent on its face from a reading of the disclosure item that such disclosure is applicable to such other section orsubsection, Systinet represents and warrants to Mercury and Merger Sub as follows:

2.1 Organization, Standing and Power. Each of Systinet and each of its Subsidiaries (as defined in Section 8.4(n)) is a company duly organized, validlyexisting and in good standing under the laws of its jurisdiction of organization. Each of Systinet and each of its Subsidiaries has the corporate power to own itsproperties and to conduct its business as now being conducted and as currently proposed by it to be conducted and is duly qualified to do business and is in goodstanding in each jurisdiction where the failure to be so qualified and in good standing, individually or in the aggregate with any such other failures, couldreasonably be expected to have a Material Adverse Effect (as defined in Section 8.4(i)) on Systinet. Neither Systinet nor any of its Subsidiaries is in violation ofany of the provisions of its organizational documents. Other than the Persons (as defined in Section 8.4(k)) listed on Section 2.1 of the Systinet Disclosure Letter,Systinet does not (and has not) directly or indirectly own any equity or similar interest in, or any interest convertible or exchangeable or exercisable for, anyequity or similar interest in, any Person. Section 2.1 of the Systinet Disclosure Letter sets forth a true, correct and complete list of each of its Subsidiariesindicating (i) its officers and directors and (ii) the record and beneficial owner of all of its issued and outstanding shares of capital stock. All the outstandingcapital stock of each of Systinet’s Subsidiaries is duly authorized, validly issued, fully paid and nonassessable. There are no options, warrants, calls, rights,commitments or agreements of any character, written or oral, to which any of Systinet’s Subsidiaries is a party or by which it is bound obligating any ofSystinet’s Subsidiaries to issue, deliver, sell, repurchase or

9


redeem, or cause to be issued, sold, repurchased or redeemed, any shares of the capital stock of such Subsidiary or obligating such Subsidiary to grant, extend,accelerate the vesting of, change the price of, otherwise amend or enter into any such option, warrant, call right, commitment or agreement. There are nooutstanding or authorized stock appreciation, phantom stock, profit participation, or other similar rights with respect to any of Systinet’s Subsidiaries.

2.2 Capital Structure.

(a) The authorized capital stock of Systinet consists of 145,000,000 shares of Systinet Common Stock, and 82,940,000 shares of Systinet PreferredStock. As of the date hereof there are issued and outstanding 5,056,635 shares of Common Stock, 3,640,000 shares of Convertible Preferred Stock par value$0.01 per share (the “Convertible Preferred Stock”), 17,666,667 shares of Series A Convertible Preferred Stock par value $0.01 per share (the “Series APreferred Stock”), 16,562,496 shares of Series B Convertible Preferred Stock par value $0.01 per share ( the “Series B Preferred Stock”) and 43,948,741 sharesof Series C Convertible Preferred Stock par value $0.01 per share (the “Series C Preferred Stock”). Assuming (x) the Closing takes place on January 31, 2006and (y) no additional Systinet Capital Stock is issued after the date hereof except upon conversion of outstanding Systinet Preferred Stock and the exercise of theSystinet Options and Systinet Warrants, on a fully diluted as converted into Systinet Common Stock basis (assuming, with respect to Systinet Options, onlyexercise of vested Systinet Options on such date), there would be 133,108,272 shares of Systinet Common Stock outstanding on January 31, 2006. There are notoutstanding any adjustments made or required to be made to the conversion rates applicable to Systinet Preferred Stock set forth in the Systinet Charter. Otherthan the accruing dividends set forth in the terms of the Systinet Preferred Stock contained in the Systinet Charter, there are no declared or accrued but unpaiddividends with respect to any shares of Systinet Common Stock or Systinet Preferred Stock. As of the date hereof, the outstanding shares of Systinet PreferredStock convert into the aggregate number of shares of Systinet Common Stock set forth in Section 2.2(a) of the Systinet Disclosure Letter. Other than the sharesof Systinet Capital Stock listed above, as of the date hereof, there are no other issued and outstanding shares of Systinet Capital Stock. Section 2.2(a) of theSystinet Disclosure Letter sets forth a true, correct and complete list (with names and record addresses) of all of Systinet’s security holders, the number of shares,options, warrants or other rights to acquire shares of Systinet Capital Stock owned and any Persons with rights to acquire Systinet securities (including all holdersof outstanding Systinet Options, whether or not granted under the Systinet Option Plan, the exercise or vesting schedule, exercise price, and tax status of suchoptions under Section 422 of the Code). All issued and outstanding shares of Systinet Capital Stock are duly authorized, validly issued, fully paid andnon−assessable and are free of preemptive rights, rights of first refusal and “put” or “call” rights created by statute, Systinet’s organizational documents or anyagreement to which Systinet is a party or by which it is bound or of which it has knowledge. Except as set forth in the Systinet Charter or in Section 2.2(a) of theSystinet Disclosure Letter, as of the date hereof, there are no options, warrants, calls, rights, commitments or (written or oral) Contracts (as defined inSection 8.4(c)), to which Systinet is a party, or by which it is bound, obligating Systinet to issue, deliver, sell, repurchase (other than Contracts set forth inSection 2.2(a) of the Systinet Disclosure Letter granting Systinet the right to purchase unvested shares upon termination of employment or service) or redeem, orcause to be issued, delivered, sold, repurchased or redeemed, any shares of any Systinet Capital Stock and/or Systinet Options or obligating Systinet to grant,extend,

10


accelerate the vesting and/or repurchase rights of, change the price of, or otherwise amend or enter into any such option, warrant, call, right, commitment oragreement. Section 2.2(a) of the Systinet Disclosure Letter sets forth the number of shares of Systinet Common Stock underlying Systinet Options that willbecome exercisable upon consummation of the Merger and the number of additional shares underlying Systinet Options that may become exercisable upon achange in the holder’s employment circumstances after consummation of the Merger. Except as set forth in Section 2.2(a) of the Systinet Disclosure Letter, thereare no Contracts relating to voting, purchase or sale of any Systinet Capital Stock (1) between or among Systinet and any of its security holders, other than theSystinet Options, the Systinet Warrants and written contracts granting Systinet the right to purchase unvested shares upon termination of employment or service,and (2) to Systinet’s knowledge, between or among any of Systinet’s security holders. All outstanding Systinet securities were issued in compliance with allapplicable foreign, federal and state securities laws.

(b) Except for the Systinet Corporation 2001 Stock Option and Incentive Plan (the “Systinet Option Plan”), Systinet has never adopted ormaintained any stock option plan or other plan providing for equity compensation of any person. As of the date hereof, Systinet has reserved 30,699,885 sharesof Systinet Common Stock for issuance to employees and directors of, and consultants to Systinet, upon the exercise of options granted under the Systinet OptionPlan, of which 26,812,847 shares are issuable, as of the date hereof, upon the exercise of outstanding, unexercised options. As of the Effective Time, all issuedand outstanding options to purchase Systinet Capital Stock shall be duly authorized by all necessary corporate action.

(c) As of the Effective Time, none of the outstanding Systinet Common Stock will be subject to vesting, and no holder of Systinet Options will beentitled to exercise such options before they become vested.

2.3 Authority; Noncontravention. (a) Systinet has all requisite corporate power and authority to enter into this Agreement and, subject to Systinet’sreceipt of the Required Vote (as defined in Section 2.18) from Systinet’s stockholders, to consummate the transactions contemplated hereby. The execution anddelivery of this Agreement and, subject to Systinet’s receipt of the Required Vote from Systinet’s stockholders, the consummation of the transactionscontemplated hereby have been duly authorized by all necessary corporate action on the part of Systinet. This Agreement has been duly executed and deliveredby Systinet and, assuming the due authorization, execution and delivery by Mercury and Merger Sub, constitutes the valid and binding obligation of Systinetenforceable against Systinet in accordance with its terms, subject to the effect of (a) applicable bankruptcy, insolvency, reorganization, moratorium or similarlaws now or hereafter in effect relating to rights of creditors generally and (b) rules of law and equity governing specific performance, injunctive relief and otherequitable remedies. The execution and delivery of this Agreement by Systinet does not, and the consummation of the transactions contemplated hereby will not,(i) result in the creation of a material lien on any properties or assets of Systinet or any of its Subsidiaries or (ii) conflict with, or result in any violation of, ordefault under (with or without notice or lapse of time, or both), or give rise to a right of termination, cancellation, renegotiation or acceleration of any obligationor loss of any benefit under, or require any consent, approval or waiver from any Person in accordance with, (A) any provision of the organizational documentsof Systinet or any of its Subsidiaries or (B) any material Contract, instrument, permit, judgment, order, decree, statute, law, rule or regulation

11


applicable to Systinet or any of its Subsidiaries or any of their respective properties or assets. Except as set forth in Section 2.3 of the Systinet Disclosure Letter,no consent, approval, order or authorization of, or registration, declaration or filing with, any government, any court, tribunal, arbitrator, administrative agency,commission or other governmental official, authority or instrumentality, in each case whether domestic or foreign, any stock exchange or similar self−regulatoryorganization or any quasi−governmental or private body exercising any regulatory, taxing or other governmental or quasi−governmental authority (each a“Governmental Entity”) or third party is required by or with respect to Systinet or any of its Subsidiaries in connection with the execution and delivery of thisAgreement or the consummation of the transactions contemplated hereby, except for (1) the filing of the Certificate of Merger, (2) such filings as may berequired under the Hart−Scott−Rodino Antitrust Improvements Act of 1976 (the “HSR Act”) or any other Antitrust Laws (as defined in Section 4.6(b)), (3) theRequired Vote, or (4) such other consents, approvals, orders, authorizations, registrations, declarations or filings which if not obtained or made, would notreasonably be expected to cause, individually or in the aggregate, a material liability for Systinet and its Subsidiaries taken as a whole.

(b) On the date hereof, this Agreement and the transactions contemplated hereby shall be approved by the Required Vote of the Systinetstockholders, the Systinet Stockholders Written Consent shall be delivered to the Secretary of Systinet, and a copy of the Systinet Stockholders Written Consentshall be delivered to Mercury.

2.4 Financial Statements. Except as set forth in Section 2.4 of the Systinet Disclosure Letter, Systinet has delivered to Mercury its audited consolidatedfinancial statements as at and for the years ended December 31, 2003 and 2004 (including balance sheets, statements of operations and statements of cash flows)(the “Audited Financial Statements”) and its unaudited consolidated financial statements as at and for the eleven−month period ended November 30, 2005(including balance sheets, statements of operations and statements of cash flows, the “November 30 Financial Statements,” and, together with the AuditedFinancial Statements, the “Financial Statements”). The Financial Statements (a) have been prepared in accordance with United States generally acceptedaccounting principles (“GAAP”) (except that the unaudited financial statements do not have notes thereto) applied on a consistent basis throughout the periodsindicated, and (b) present fairly the consolidated financial condition and results of operations and cash flows of Systinet as of the dates, and for the periods,indicated therein (subject, in the case of interim period financial statements, to normal recurring year−end audit adjustments, none of which individually or in theaggregate are material). There has been no change in Systinet accounting policies since December 31, 2004 (the “Systinet Balance Sheet Date”), except asdescribed in the Financial Statements.

2.5 Absence of Certain Changes; Undisclosed Liabilities.

(a) Since the Systinet Balance Sheet Date, Systinet and each of its Subsidiaries has conducted its business only in the ordinary course of businessand there has not occurred any change, event or condition (whether or not covered by insurance) that, individually or in the aggregate with any other changes,events and conditions, has resulted in, or would reasonably be expected to result in, a Material Adverse Effect on Systinet.

12


(b) Neither Systinet nor any of its Subsidiaries has any indebtedness, obligations or liabilities of any nature whether matured or unmatured, fixed orcontingent (whether or not required to be reflected in the Financial Statements in accordance with GAAP) other than (i) those set forth or adequately provided forin the balance sheet as of November 30, 2005, included in the Financial Statements (the “November 30 Balance Sheet”), (ii) those incurred in the conduct ofSystinet’s business since the date of the November 30 Balance Sheet (the “November 30 Balance Sheet Date”) in the ordinary course of business (except asdisclosed in Section 2.5(b) of the Systinet Disclosure Letter), (iii) those imposed pursuant to the terms of Contracts disclosed in the Systinet Disclosure Letter orimposed pursuant to the terms of Contracts that are not required to be disclosed in the Systinet Disclosure Letter, (iv) the Systinet Expenses (as defined inSection 4.12) and (v) those which, individually or in the aggregate, are not material in nature or amount and would not reasonably be expected to have a MaterialAdverse Effect on Systinet.

2.6 Litigation. There is no private or governmental action, suit, proceeding, claim, arbitration or, to the knowledge of Systinet, investigation pendingbefore any Governmental Entity or arbitrator, or, to the knowledge of Systinet, threatened against Systinet or any of its Subsidiaries or any of their respectiveassets or properties, including any Systinet Intellectual Property (as defined in Section 8.4(q)), or any of their respective officers or directors (in their capacitiesas such). There is no judgment, decree or order against Systinet or any of its Subsidiaries, any of their respective assets or properties, or, to the knowledge ofSystinet, any of their respective directors or officers (in their capacities as such), that could prevent, enjoin or materially alter or delay any of the transactionscontemplated by this Agreement, or that, individually or in the aggregate with any such other judgments, decrees and orders, would reasonably be expected tohave a Material Adverse Effect on Systinet.

2.7 Restrictions on Business Activities. There is no Contract (including covenants not to compete), judgment, injunction, order or decree binding uponSystinet or any of its Subsidiaries which has or would reasonably be expected to have, whether before or after consummation of the Merger, the effect ofprohibiting or impairing any current or future business practice of Systinet or any of its Subsidiaries, any acquisition of property (tangible or intangible) bySystinet or any of its Subsidiaries or the conduct of business by Systinet or any of its Subsidiaries, in each case, as currently conducted or as currently proposedto be conducted by Systinet or any of its Subsidiaries. Without limiting the generality of the foregoing, neither Systinet nor any of its Subsidiaries has enteredinto any agreement under which Systinet or any of its Subsidiaries is restricted from selling, licensing or otherwise distributing any of their respective technologyor products to, or from providing services to, customers or potential customers or any class of customers, in any geographic area, during any period of time or inany segment of the market.

2.8 Intellectual Property.

(a) Section 2.8(a)(1) of the Systinet Disclosure Letter (i) contains a complete and accurate list (by name and version number) of (A) all products andservice offerings, including all Software, of Systinet and each of its Subsidiaries that have been sold, licensed, distributed or otherwise disposed of, as applicable,and (B) all products related to the “Blizzard” product line that are currently under development by Systinet or any of its Subsidiaries and

13


identified on Section 2.8(a)(1) of the Systinet Disclosure Letter (collectively, “Systinet Products”), and (ii) identifies, for each such Systinet Product, whetherSystinet or any of its Subsidiaries provides support or maintenance for such Systinet Product. Section 2.8(a)(2) of the Systinet Disclosure Letter includes a trueand complete list of support and maintenance agreements for the Systinet Products to which Systinet or any of its Subsidiaries is a party, including the identity ofthe parties and the respective dates of such agreements (other than, in each case, support or maintenance provided by Systinet or any of its Subsidiaries to endusers of Systinet Products in the ordinary course of business pursuant to Systinet’s standard license agreements previously provided to Mercury).

(b) Section 2.8(b) of the Systinet Disclosure Letter sets forth a complete and accurate list of (i) all Systinet Intellectual Property that is RegisteredIntellectual Property (as defined in Section 8.4(l)), including all Patents, registered Copyrights, registered Trademarks and Domain Names (the “SystinetRegistered Intellectual Property”), and (ii) all material unregistered Trademarks included among the Systinet Intellectual Property. For each listed item,Section 2.8(b) of the Systinet Disclosure Letter shall indicate, as applicable, the owner of such Intellectual Property, the countries in which such IntellectualProperty is patented or registered or in which an application for same has been filed, the patent, registration or application number, the filing and expiration datesthereof.

(c) Except as expressly stated in Section 2.8(c)(1) of the Systinet Disclosure Letter, all of the Systinet Intellectual Property is either (i) wholly andexclusively owned by Systinet free and clear of all options, rights to purchase, restrictions or liens or (ii) duly, validly, wholly and exclusively licensed toSystinet. Except as expressly stated in Section 2.8(c)(2) of the Systinet Disclosure Letter, with respect to any Systinet Intellectual Property which Systinet is ajoint owner or co−owner, there are no restrictions (by agreement with any third party joint owner or co−owner of the Systinet Intellectual Property or otherwise)on Systinet’s exercise of the full scope of rights afforded a joint owner or co−owner of that type of Intellectual Property right under the laws of the jurisdiction inwhich the Intellectual Property right exists.

(d) Section 2.8(d)(1) of the Systinet Disclosure Letter contains a true and complete list of all Contracts (other than licenses for commercialoff−the−shelf Software and nondisclosure and inventions agreements with employees and consultants) to which Systinet or any of its Subsidiaries is a party withrespect to any Intellectual Property, specifying the (i) name of the Contract, (ii) the identity of all parties to the Contract and (iii) the date of the Contract. Exceptas set forth in Section 2.8(d)(2) of the Systinet Disclosure Letter, no Person who has licensed Intellectual Property to Systinet or any of its Subsidiaries hasownership rights or license rights to improvements, enhancements or other modifications or derivative works made by Systinet or any of its Subsidiaries in suchIntellectual Property.

(e) Section 2.8(e) of the Systinet Disclosure Letter lists all Contracts (other than licenses for commercial off−the−shelf Software or Systinet’scustomer agreements) between Systinet or any of its Subsidiaries and any other Person wherein or whereby Systinet or any of its Subsidiaries has agreed to, orassumed, any obligation or duty to indemnify or hold harmless, or any material obligation or duty to warrant, reimburse, guaranty or provide a right of rescissionin connection with the Systinet Intellectual Property or Systinet Products. Section 2.8(e) of the Systinet Disclosure Letter lists all warranty, indemnity, holdharmless, reimbursement, recission or guaranty claims (including any such claims pending) made by any Person relating to the Systinet Products and the natureof such claims.

14


(f) Except as set forth in Section 2.8(f) of the Systinet Disclosure Letter, the Systinet Products and the Systinet Intellectual Property do not containany Software code that (A) contains, or is derived in any manner (in whole or in part) from, any Software that is distributed under any of the following licenses ordistribution models, or licenses or distribution models similar to any of the following: GNU’s not Unix General Public License (GPL) or Lesser/Library GPL(LGPL); or (B) is licensed under any terms or conditions that impose any requirement that any Software using, linked with, incorporating, distributed with, basedon, derived from or accessing the Software code: (i) be made available or distributed in source code form; (ii) be licensed for the purpose of making derivativeworks; (iii) be licensed under terms that allow reverse engineering, reverse assembly or disassembly of any kind; or (iv) be redistributable at no charge (any ofthe foregoing referred to as “Open Source Materials”). Section 2.8(f) of the Disclosure Letter lists all Open Source Materials used by Systinet or any of itsSubsidiaries in any way. Except as set forth in Section 2.8(f) of the Disclosure Letter, no Systinet Product or Systinet Intellectual Property is subject to the termsof license of any such Open Source Materials, and neither Systinet nor any of its Subsidiaries is in breach of any of the material terms of the GPL, LGPL,Mozilla Public License, Common Public License or Eclipse Public License, as applicable, or the material terms of any other license, to any such Open SourceMaterials. Except as set forth in Section 2.8(f) of the Systinet Disclosure Letter, to the knowledge of Systinet, neither Systinet nor any of its Subsidiaries has usedSoftware code that includes the Linux kernel version 2.4 or any later version. Systinet Products that link with works distributed under the LGPL link to suchworks using a shared library mechanism as described in the LGPL.

(g) Except for the Intellectual Property licensed pursuant to the licenses set forth in Section 2.8(d) of the Systinet Disclosure Letter and except as setforth in Section 2.8(g) of the Systinet Disclosure Letter, all Systinet Products were created solely by either (i) employees of Systinet or one of its Subsidiariesacting within the scope of their employment who have validly and irrevocably assigned all of their rights, including Intellectual Property rights therein, toSystinet or such Subsidiary or (ii) other Persons who have validly and irrevocably assigned all of their rights, including Intellectual Property rights therein, toSystinet or such Subsidiary, and except as set forth in Section 2.8(b) and 2.8(d) of the Systinet Disclosure Letter, no other Person owns or has any rights to anyportion of such Systinet Products, including Intellectual Property rights therein.

(h) Except as set forth in Section 2.8(h) of the Systinet Disclosure Letter, neither Systinet nor any of its Subsidiaries has transferred ownership of, orgranted any exclusive license of or exclusive right to use, or authorized the retention of any exclusive rights in or to joint ownership of, any Systinet IntellectualProperty to any other Person.

(i) The operation of the business of Systinet and each of its Subsidiaries as it currently is conducted or is currently contemplated to be conducted bySystinet and such Subsidiary, including the design, development, use, import, manufacture and sale of Systinet Products (excluding those Systinet Productsidentified in Section 2.8(i) of the Systinet Disclosure Letter), does not and will not infringe or misappropriate the Intellectual Property rights of any

15


Person. Neither Systinet nor any of its Subsidiaries has received any written notice from any Person claiming that such operation or any Systinet Product(including products, technology or services currently under development) infringes or misappropriates the Intellectual Property rights of any Person or constitutesunfair competition or trade practices under the laws of any jurisdiction (nor does Systinet have knowledge of any basis therefor). Neither Systinet nor any of itsSubsidiaries has received any written offer for a license of Intellectual Property, including but not limited to Patent rights, from any Person in connection with anallegation by such Person that Systinet or any of its Subsidiaries has infringed or misappropriated any of the Intellectual Property of such Person. Neither Systinetnor any of its Subsidiaries has received any written opinion of counsel that any third party Patent has been, would be or is being directly or indirectly infringed bythe operation of the business of Systinet and each of its Subsidiaries as previously conducted, currently conducted or contemplated to be conducted by Systinetand each of its Subsidiaries, including with respect to any Systinet Product.

(j) Except as set forth in Section 2.8(j) of the Systinet Disclosure Letter, each item of Systinet Registered Intellectual Property is subsisting and, tothe knowledge of Systinet, valid, and all necessary registration, maintenance and renewal fees in connection with such Systinet Registered Intellectual Propertyhave been paid and all necessary documents and articles in connection with such Systinet Registered Intellectual Property have been filed with the relevantpatent, copyright, trademark or other authorities in the United States or foreign jurisdictions, as the case may be, for the purposes of maintaining such RegisteredIntellectual Property. Except as set forth in Section 2.8(j) of the Systinet Disclosure Letter, there are no actions that must be taken by Systinet or any of itsSubsidiaries within 180 days of the Closing Date, including the payment of any registration, maintenance or renewal fees or the filing of any documents,applications or articles for the purposes of maintaining, perfecting or preserving or renewing any Systinet Registered Intellectual Property.

(k) Neither Systinet nor any of its Subsidiaries is infringing or otherwise violating, and has not infringed or otherwise violated, any IntellectualProperty right of any Person or any law relating to Intellectual Property. There is no pending, decided or settled opposition, interference, reexamination,cancellation, injunction, lawsuit, proceeding, hearing investigation, complaint, arbitration, mediation, demand, decree, or any other dispute or claim related to theSystinet Intellectual Property (“IP Dispute”), nor, to the knowledge of Systinet, has any IP Dispute been threatened, challenging the legality, validity,enforceability or ownership of any Systinet Intellectual Property. Except as set forth in Section 2.8(k) of the Systinet Disclosure Letter, to the knowledge ofSystinet, no circumstances or grounds exist that would give rise to an IP Dispute, other than immaterial disagreements with customers arising in the ordinarycourse of business. Neither Systinet nor any of its Subsidiaries has sent any notice of any IP Dispute. No Systinet Intellectual Property is subject to anyoutstanding injunction, judgment, order, decree, ruling charge, settlement or other disposition of any IP Dispute. To the knowledge of Systinet, no Person hasinfringed, misappropriated or otherwise violated any Systinet Intellectual Property.

(l) Except as set forth in Section 2.8(l) of the Systinet Disclosure Letter, none of the Systinet Registered Intellectual Property has been adjudgedinvalid or unenforceable, in whole or in part, and Systinet has no knowledge of any facts or circumstances that would render any Systinet Registered IntellectualProperty invalid or unenforceable. Without limiting the

16


foregoing, Systinet has no knowledge of any information, materials, facts, or circumstances, including any information or fact that would constitute prior art, thatwould render any of the Systinet Registered Intellectual Property invalid or unenforceable and neither Systinet nor any of its Subsidiaries has misrepresented, orfailed to disclose, and Systinet has no knowledge of any misrepresentation or failure to disclose, any fact or circumstance in any application for any SystinetRegistered Intellectual Property that would constitute fraud or an intentional misrepresentation with respect to such application or that would otherwise affect thevalidity or enforceability of any such Registered Intellectual Property.

(m) There are no Contracts between Systinet or any of its Subsidiaries and any other Person with respect to Systinet Intellectual Property underwhich there is currently any dispute regarding the scope of such Contract, or performance under such Contract including with respect to any payments to be madeor received by Systinet or any of its Subsidiaries thereunder.

(n) Systinet and each of its Subsidiaries has taken commercially reasonable steps that are required to protect Systinet’s or such Subsidiaries’ rights inTrade Secrets of Systinet or such Subsidiary, or provided by any other Person to Systinet or such Subsidiary. Without limiting the foregoing, Systinet and each ofits Subsidiaries has, and enforces, a policy requiring each employee, consultant and contractor to execute proprietary information, confidentiality and assignmentagreements substantially in Systinet’s standard forms, which forms are set forth in Section 2.8(o) of the Systinet Disclosure Letter, and all current and formeremployees, consultants and contractors of Systinet and each of its Subsidiaries have executed such an agreement in substantially such corresponding standardform.

(o) None of the Systinet Intellectual Property owned by Systinet and, to the knowledge of Systinet, none of the Systinet Intellectual Propertylicensed to Systinet was developed by or on behalf of, or using grants or any other subsidies of, any governmental entity or any university, and no governmentfunding, facilities, faculty or students of a university, college, other educational institution or research center or third party fee−for−service funding. No currentor former employee, consultant or independent contractor of Systinet or any of its Subsidiaries, who was involved in, or who contributed to, the creation ordevelopment of any Systinet Intellectual Property, has performed services for a government, university, college, or other educational institution or research centerduring a period of time during which such employee, consultant or independent contractor was also performing services for Systinet or such Subsidiary with aresult that such government, university, college or other educational institution or research center has rights in or has placed limits on the practice or transfer ofsuch Systinet Intellectual Property.

(p) None of the Systinet Products contains any computer code: (i) designed to intentionally harm in any manner the operation of such Software, orany other associated Software, firmware, hardware, computer system or network (sometimes referred to as “viruses” or “worms”); (ii) that would intentionallydisable such Software or impair in any way its operation based on the elapsing of a period of time or advancement of a particular date (sometimes referred to as“time bombs,” “time locks,” or “drop dead” devices) in a manner intended to harm the operation of such Software; or (iii) that would permit Systinet, any of itsSubsidiaries or any third party to access such Software to intentionally cause any harmful, malicious procedures, routines or mechanisms which would cause theSoftware to cease

17


functioning or to damage or corrupt data, storage media, programs, equipment or communications. Except as set forth in Section 2.8(p) of the Systinet DisclosureLetter, none of the existing Systinet Products contains any bug, problem, flaw or similar issue that may materially adversely affect the value, functionality orfitness for the intended purposes of such Systinet Products.

(q) Except as set forth in Section 2.8(q) of the Systinet Disclosure Letter, none of Systinet, any of its Subsidiaries or any other party acting on behalfof Systinet or any of its Subsidiaries has disclosed or delivered to any third party, or permitted the disclosure or delivery to any escrow agent or other party of,any Systinet Source Code (as defined below). No event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time, orboth) shall, or would reasonably be expected to, require the disclosure or delivery by Systinet, any of its Subsidiaries or any other party acting on behalf ofSystinet or any of its Subsidiaries to any third party of any Systinet Source Code. Section 2.8(q) of the Systinet Disclosure Letter identifies each Contract underwhich Systinet or any of its Subsidiaries has deposited, or is or may be required to deposit, with an escrow agent or other third party, any Systinet Source Code,and describes whether the execution of this Agreement or the consummation of any of the transactions contemplated by this Agreement, in and of itself, wouldreasonably be expected to result in the release of any Systinet Source Code from escrow. “Systinet Source Code” means, collectively, any human readableSoftware source code, or any material portion or aspect of the Software source code, or any material proprietary information or algorithm contained in orembedded in or combined with, in any manner, any Software source code, in each case for any Systinet Product, but excluding Open Source Material.

(r) Except as set forth in Section 2.8(r) of the Systinet Disclosure Letter, there are no, and the consummation of the transactions contemplated by thisAgreement will not trigger any, royalties, fees, honoraria or other payments payable by Systinet or any of its Subsidiaries to any Person by reason of theownership, development, use, license, sale or disposition of the Systinet Intellectual Property, including any Systinet Product, other than salaries, salescommissions and other forms of compensation paid to employees and sales agents in the ordinary course of business.

(s) Systinet and each of its Subsidiaries has been and is in compliance with the Export Administration Act of 1979, as amended, and all regulationspromulgated thereunder

(t) Systinet and each of its Subsidiaries has the right to use all Software development tools, library functions, compilers and all other third partySoftware that are used in the operation of the business of Systinet and each of its Subsidiaries or that are required to create, modify, compile, operate or supportany Software that is incorporated into any Systinet Product.

2.9 Taxes.

(a) “Tax” means any net income, alternative or add−on minimum tax, gross income, gross receipts, sales, use, ad valorem, transfer, franchise,profits, license, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, environmental or windfall profit tax, custom duty orother tax, governmental fee or other like assessment or charge of any kind whatsoever, together with any interest or any penalty, addition to tax or additional

18


amount imposed by any Governmental Entity responsible for the imposition of any such tax (domestic or foreign) (each, a “Tax Authority”). “Tax Return”means any return, statement, report or form (including estimated tax returns and reports, withholding tax returns and reports and information returns and reports)required to be filed with respect to Taxes.

(b) Systinet and each of its Subsidiaries, and any consolidated, combined, unitary or aggregate group for Tax purposes of which Systinet or any ofits Subsidiaries is or has been a member, have properly completed and timely filed all Tax Returns required to be filed by them. Except as set forth onSection 2.9(b) of the Systinet Disclosure Letter, all such Tax Returns are true and correct in all material respects and have been completed in all material respectsin accordance with applicable law, and Systinet and each of its Subsidiaries have paid or withheld for payment to the appropriate Tax Authority all Taxes due(whether or not shown to be due on such Tax Returns). The Systinet November 30 Balance Sheet reflects all unpaid Taxes of Systinet and each of its Subsidiariesfor periods (or portions of periods) through the Systinet Balance Sheet Date. Neither Systinet nor any of its Subsidiaries has any liability for unpaid Taxesincurred or accrued outside the ordinary course of business after the Systinet November 30 Balance Sheet Date.

(c) There is (i) no claim for Taxes being asserted against Systinet or any of its Subsidiaries that has resulted in a lien against the property of Systinetor any of its Subsidiaries other than liens for Taxes not yet due and payable, (ii) no audit of any Tax Return of Systinet or any of its Subsidiaries being conductedby a Tax Authority, and (iii) no extension of any statute of limitations on the assessment of any Taxes granted by Systinet or any of its Subsidiaries currently ineffect. Neither Systinet nor any of its Subsidiaries has been informed by any jurisdiction that the jurisdiction believes that such entity was required to file any TaxReturn that was not filed.

(d) Neither Systinet nor any of its Subsidiaries has (i) been or will be required to include any material adjustment in Taxable income for any Taxperiod (or portion thereof) in accordance with Section 481 or 263A of the Code or any comparable provision under state or foreign Tax laws as a result oftransactions, events or accounting methods employed prior to the Merger, (ii) filed any disclosures under Section 6662 of the Code or comparable provisions ofstate, local or foreign law to prevent the imposition of penalties with respect to any Tax reporting position taken on any Tax Return, (iii) engaged in a “reportabletransaction,” as set forth in Treasury Regulation Section 1.6011−4(b), or any transaction that is the same as or substantially similar to one of the types oftransactions referred to as “listed transactions” in Treasury Regulation Section 1.6011−4(b)(2), (iv) ever been a member of a consolidated, combined, unitary oraggregate group of which Systinet was not the ultimate parent company, (vi) been the “distributing company” or the “controlled company” (in each case, withinthe meaning of Section 355(a)(1) of the Code) with respect to a transaction described in Section 355 of the Code (A) within the two−year period ending as of thedate of this Agreement, or (B) in a distribution that could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning ofSection 355(e) of the Code) that includes the transactions contemplated by this Agreement, (vii) ever been a “United States real property holding company”within the meaning of Section 897 of the Code, or (viii) any actual liability under Treasury Regulations Section 1.1502−6 (or any comparable or similarprovision of federal, state, local or foreign law), as a transferee or successor, in accordance with any contractual obligation, or otherwise for any Taxes of anyperson other than Systinet or any of its Subsidiaries.

19


(e) Neither Systinet nor any of its Subsidiaries is a party to or bound by any Tax sharing or Tax allocation agreement nor does Systinet or any of itsSubsidiaries have any liability or potential liability to another party under any such agreement.

(f) Each of Systinet and each of its Subsidiaries has withheld or collected and paid over to the appropriate Tax authorities (or are properly holdingfor such timely payment) all Taxes required by law to be withheld or collected.

(g) Neither Systinet nor any of its Subsidiaries will be required to include any item of income in, or exclude any item of deduction from, taxableincome for any period (or any portion thereof) ending after the Closing Date as a result of any: (i) installment sale or other open transaction disposition made onor prior to the Closing Date; or (ii) prepaid amount received on or prior to the Closing Date.

(h) Section 2.9(h) of the Systinet Disclosure Letter lists all income, franchise and similar Tax Returns (federal, state, local and foreign) filed withrespect to each of Systinet and its Subsidiaries for taxable periods ended on or after January 1, 2002, indicates the most recent income, franchise or similar TaxReturn for each relevant jurisdiction for which an audit has been completed or the statute of limitations has lapsed and indicates all Tax Returns that currently arethe subject of audit.

(i) None of the assets of Systinet or any of its Subsidiaries is “tax−exempt use property” within the meaning of Section 168(h) of the Code.

2.10 Employee Benefit Plans.

(a) Section 2.10(a) of the Systinet Disclosure Letter sets forth a complete list of all “employee benefit plans,” as defined in Section 3(3) of theEmployee Retirement Income Security Act of 1974, as amended (“ERISA”) sponsored or maintained by Systinet (“Employee Benefit Plans”). Systinet has noliability with respect to any plan of the type described in the preceding sentence other than the Employee Benefit Plans.

(b) Each Employee Benefit Plan has been maintained, operated, and administered in material compliance with its terms and any related documentsor agreements and in material compliance with all applicable laws. There have been no non−exempt prohibited transactions or breaches of any of the dutiesimposed on “fiduciaries” (within the meaning of Section 3(21) of ERISA) by ERISA with respect to the Employee Benefit Plans that could reasonably beexpected to result in any material liability or material excise tax under ERISA or the Code being imposed on Systinet.

(c) Each Employee Benefit Plan intended to be qualified under Section 401(a) of the Code is so qualified and has heretofore been determined by theInternal Revenue Service (the “IRS”) to be so qualified, and each trust created thereunder has heretofore been determined by the IRS to be exempt from taxunder the provisions of Section 501(a) of the Code, and nothing has occurred since the date of any such determination that could reasonably be expected to resultin the IRS revoking such determination.

20


(d) Systinet (i) has no obligation to contribute to a “defined benefit plan” as defined in Section 3(35) of ERISA (except under agreements, plans orarrangements set forth in the Systinet Disclosure Letter), and (ii) does not currently have and at no time in the past has had an obligation to contribute to apension plan subject to the funding standards of Section 302 of ERISA or Section 412 of the Code, a “multiemployer plan” as defined in Section 3(37) of ERISAor Section 414(f) of the Code or a “multiple employer plan” within the meaning of Section 210(a) of ERISA or Section 413(c) of the Code.

(e) No Employee Benefit Plan is or at any time was funded through a “welfare benefit fund” as defined in Section 419(e) of the Code, and nobenefits under any Employee Benefit Plan are or at any time have been provided through a voluntary employees’ beneficiary association (within the meaning ofsubsection 501(c)(9) of the Code) or a supplemental unemployment benefit plan (within the meaning of Section 501(c)(17) of the Code).

(f) Contributions, transfers and payments in respect of any Employee Benefit Plan for any period for which a Tax Return has not been filed, otherthan transfers incident to an incentive stock option plan within the meaning of Section 422 of the Code, are deductible under the Code on a basis consistent withthe treatment of such contributions, transfers and payments on the most recent Tax Return.

(g) There is no pending, or to the knowledge of the Company, threatened assessment, complaint, proceeding, or investigation of any kind in anycourt or government agency with respect to any Employee Benefit Plan (other than routine claims for benefits).

(h) All (i) insurance premiums required to be paid with respect to, (ii) benefits, expenses and other amounts due and payable under, and(iii) contributions, transfers or payments required to be made to, any Employee Benefit Plan prior to the Closing Date will have been paid, made or accrued on orbefore the Closing Date.

(i) No Employee Benefit Plan provides benefits, including, without limitation, death or medical benefits, beyond termination of service or retirementother than (i) coverage mandated by law, (ii) death or retirement benefits under any Employee Benefit Plan that is intended to be qualified under Section 401(a)of the Code or (iii) deferred compensation benefits reflected on the books of Systinet.

(j) There is no Contract covering any employee or former employee of Systinet that, individually or collectively, will give rise as of the Closing tothe payment of any amount that would not be deductible in accordance with the terms of Section 280G of the Code.

(k) As of the Effective Time, all Employee Benefit Plans and employee benefit Contracts that are subject to Section 409A of the Code will be incompliance with the requirements of Section 409A of the Code.

21


2.11 Employee Matters.

(a) Neither Systinet nor any of its Subsidiaries is liable for any payment to any trust or other fund or to any Governmental Entity, with respect tounemployment compensation benefits, social security or other benefits or obligations for employees (other than routine payments to be made in the normalcourse of business and consistently with past practice and other than payments relating to any Employee Benefit Plan). There are no pending claims againstSystinet and/or any of its Subsidiaries that have been received by Systinet in writing under any workers compensation plan or policy or for long term disability.

(b) Section 2.11(b) of the Systinet Disclosure Letter sets forth a true, correct and complete list of all severance Contracts and employment Contractsto which Systinet and/or any of its Subsidiaries is a party or by which Systinet and/or any of its Subsidiaries is bound. Neither Systinet nor any of its Subsidiariesis a party to or bound by any collective bargaining agreement or other labor union contract. No collective bargaining agreement is being negotiated by Systinet orany of its Subsidiaries and neither Systinet nor any of its Subsidiaries has any duty to bargain with any labor organization. Neither Systinet nor any of itsSubsidiaries is aware of any activities or proceedings of any labor union or to organize their respective employees. There is no labor dispute, strike or workstoppage against Systinet or any of its Subsidiaries pending, or to Systinet’s knowledge threatened, which may interfere with the respective business activities ofSystinet or any of its Subsidiaries.

(c) Systinet has previously provided to Mercury a true, correct and complete list of the names, positions and rates of compensation of all currentofficers, directors, and employees (permanent, temporary or otherwise) of Systinet and each of its Subsidiaries showing each such person’s name, position, statusas exempt/non−exempt and bonuses for fiscal year 2005. No employee of Systinet or any of its Subsidiaries has given written notice to Systinet or any of itsSubsidiaries, nor does Systinet have knowledge, that any such employee intends to terminate his or her employment with Systinet, any of its Subsidiaries or theSurviving Corporation. Except as disclosed in Section 2.11(b), the employment of each of the employees of Systinet or any of its Subsidiaries is “at will” andneither Systinet nor any of its Subsidiaries has any obligation to provide any particular form or period of notice prior to terminating the employment of any oftheir respective employees.

(d) Except as provided in Section 2.11(d) of the Systinet Disclosure Letter, none of the execution and delivery of this Agreement or theconsummation of any transaction contemplated hereby or any termination of employment or service in connection therewith or subsequent thereto will (i) resultin any payment (including severance, unemployment compensation, golden parachute, bonus or otherwise) becoming due to any Person, (ii) materially increaseany employee benefits otherwise payable by Systinet or any of its Subsidiaries (other than COBRA and similar benefit related obligations required by law and asrequired by such laws), (iii) result in the acceleration of the time of payment or vesting of any such benefits, except as required under Section 411(d)(3) of theCode, (iv) increase the amount of compensation due to any Person, or (v) result in the forgiveness in whole or in part of any outstanding loans made by Systinetor any of its Subsidiaries to any Person.

22


2.12 Related Party Transactions. Except as set forth in Section 2.12 of the Systinet Disclosure Letter, no officer or director or, to the knowledge ofSystinet, any stockholder holding 5% or more of the outstanding Systinet Capital Stock (nor any immediate family member of any of such Persons, or any trust,partnership or company in which any of such Persons has or has had an interest), has or has had, directly or indirectly, (i) an interest in any third party whichfurnished, sold or licensed, or furnishes, sells or licenses, services, products or technology that Systinet or any of its Subsidiaries furnishes, sells or licenses, orproposes to furnish, sell or license, or (ii) any interest in any third party that purchases from or sells or furnishes or licenses to Systinet or any of its Subsidiaries,any goods or services, provided, however, that ownership of no more than five percent (5%) of the outstanding voting stock of a publicly traded company shallnot be deemed to be an “interest in any entity” for purposes of this Section 2.12.

2.13 Insurance. Section 2.13 of the Systinet Disclosure Letter is a true, correct and complete listing of all current policies of insurance and bonds issued atthe request or for the benefit of Systinet or any of its Subsidiaries. There is no material claim pending under any of such policies or bonds as to which coveragehas been questioned, denied or disputed by the underwriters of such policies or bonds. Systinet and each of its Subsidiaries is in compliance with the terms ofsuch policies and bonds. Systinet has no knowledge of any threatened termination of, or material premium increase with respect to, any of such policies.

2.14 Compliance With Laws. Except as set forth on Section 2.14 of the Systinet Disclosure Letter, each of Systinet and each of its Subsidiaries hascomplied in all material respects with, is not in material violation of, and has not received any notices of material violation with respect to, any federal, state,local or foreign statute, law, regulations or permits or licenses issued under such laws with respect to the conduct of its business, or the ownership or operation ofits business.

2.15 Minute Books. The minute books of Systinet and Systinet’s Subsidiary in the Czech Republic made available to Mercury contain a complete andaccurate summary of all meetings of directors and stockholders or actions by written consent since the time of incorporation of such entities.

2.16 Brokers’ and Finders’ Fees. Systinet has not incurred, nor will it incur, directly or indirectly, any liability for brokerage or finders’ fees or agents’commissions or investment bankers’ fees or any similar charges in connection with this Agreement or any transaction contemplated hereby.

2.17 Board Approval. Systinet’s board of directors, by resolutions duly adopted (and not thereafter modified or rescinded) by unanimous vote (with noabstentions) at a meeting duly called and held, has (a) approved this Agreement and the Merger, (b) determined that this Agreement and the terms and conditionsof the Merger are advisable and in the best interests of Systinet and its stockholders, and (c) recommended that all of the stockholders of Systinet approve thisAgreement.

2.18 Stockholder Approval. The affirmative vote or action by written consent of (a) the holders of a majority of the outstanding shares of Systinet CapitalStock, voting together as a single class, and (b) the holders of a majority of the outstanding shares of the Series A

23


Preferred Stock, Series B Preferred Stock and Series C Preferred Stock, voting together as a single class, are the only votes (or consents) required of Systinet’sstockholders under the DGCL, the Systinet Charter, Systinet’s bylaws or any Contract to which Systinet is a party to approve and adopt this Agreement andapprove the Merger ((a) and (b) together, the “Required Vote”). Systinet’s stockholders representing the Required Vote, by and through the execution anddelivery to Systinet of the Systinet Stockholders Written Consent on the date of this Agreement (and not thereafter modified or rescinded) in accordance with theapplicable provisions of the DGCL, will approve this Agreement and the Merger.

2.19 Material Customers. Section 2.19 of the Systinet Disclosure Letter sets forth Systinet’s top ten customers (the “Material Customers”) for the yearended December 31, 2004 and the eleven months ended November 30, 2005.

2.20 Contracts. Except for Contracts listed in Section 2.20 of the Systinet Disclosure Letter and those Contracts listed or required to be listed under thisAgreement in other sections of the Systinet Disclosure Letter (each a “Material Contract”), as of the date hereof, neither Systinet nor any of its Subsidiaries iscurrently a party to or currently bound by any of the following Contracts:

(a) any distributor, reseller, advertising, agency, manufacturer’s representative, joint marketing, joint development, joint venture or originalequipment manufacturing Contract;

(b) any Contract for the purchase of materials, supplies, equipment or services that (i) involves payments of more than $10,000 over the remaininglife of the Contract and is not cancelable without penalty on no more than 30 days’ notice or (ii) involves payments of more than $50,000 over the remaining lifeof the Contract, whether or not cancelable without penalty on no more than 30 days’ notice;

(c) any Contract that expires (or may be renewed at the option of any Person other than Systinet) so as to expire more than one year after the date ofthis Agreement;

(d) any trust indenture, mortgage, promissory note, loan agreement or other contract for the borrowing of money, any currency exchange,commodities or other hedging arrangement or any leasing transaction of the type required to be capitalized in accordance with GAAP;

(e) any Contract for any capital expenditure in excess of $50,000 individually or $100,000 in the aggregate;

(f) any Contract in accordance with which Systinet or any of its Subsidiaries is a lessor or lessee of any machinery, equipment, motor vehicles,office furniture, fixtures or other personal property or real property involving lease obligations in excess of $10,000 individually or $50,000 in the aggregate;

(g) any agreement of guarantee, assumption or endorsement of, or any similar commitment with respect to, the obligations, liabilities (whetheraccrued, absolute, contingent or otherwise) or indebtedness of any other Person; or

24


(h) any Contract relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of Systinet’sbusiness.

All Material Contracts are in executed written form, and Systinet or the applicable Subsidiary of Systinet has performed all of the material obligationsrequired to be performed by it and is entitled to all material benefits under, and is not alleged in writing to be in default in respect of any Material Contract. Eachof the Material Contracts is in full force and effect, and there exists no default or event of default or event, occurrence, condition or act, which would reasonablybe expected to result in the Surviving Corporation not enjoying all material economic benefits that Systinet or the applicable Subsidiary of Systinet enjoyed priorto the Closing and to which they are entitled post−Closing under any Material Contract. Following the Effective Time, the Surviving Corporation and any of itsSubsidiaries will be permitted to exercise all of their rights under the Material Contracts without the payment of any additional amounts of consideration otherthan ongoing fees, royalties or payments which Systinet and any of its Subsidiaries would otherwise be required to pay in accordance with the terms of suchContracts had the transactions contemplated by this Agreement not occurred.

2.21 Title of Properties; Absence of Encumbrances.

(a) Neither Systinet nor any of its Subsidiaries owns any real property, nor has either Systinet or any of its Subsidiaries ever owned any realproperty.

(b) Each of Systinet and any of its Subsidiaries has good and marketable title to, or, in the case of leased properties and assets, valid leaseholdinterests in, all of its tangible properties and assets, real, personal and mixed, used or held for use in its business, free and clear of any Encumbrances, except(i) as reflected in the November 30 Balance Sheet, (ii) liens for Taxes not yet due and payable, (iii) such imperfections of title and encumbrances, if any, whichdo not detract materially from the value or interfere materially with the present use of the property subject thereto or affected thereby, and (iv) the securityinterests granted under the Comerica Credit Facility (as defined in Section 8.4(b)).

2.22 Representations Complete. The representations or warranties made by Systinet in this Agreement, as modified by the Systinet Disclosure Letter, anyexhibit or schedule to this Agreement or any other document required to be delivered to Mercury in accordance with any provision of this Agreement, when allsuch documents are read together in their entirety, do not contain any untrue statement of a material fact, or, to the knowledge of Systinet, omit to state anymaterial fact necessary in order to make the statements contained herein or therein, in the light of the circumstances under which made, not misleading.

ARTICLE 3REPRESENTATIONS AND WARRANTIES OF MERCURY AND MERGER SUB

Mercury and Merger Sub represent and warrant to Systinet as follows:

3.1 Organization, Standing and Power. Each of Mercury and Merger Sub is duly organized, validly existing and in good standing under the laws of theState of Delaware. Each of Mercury and Merger Sub has the corporate power to own its properties and to conduct its business as now being conducted and asproposed to be conducted by it. Merger Sub was

25


formed by Mercury to effect the Merger, all of Merger Sub’s outstanding capital stock is owned by Mercury, and, since its date of incorporation, Merger Sub hasnot owned any assets or engaged in any activities other than in connection with the transactions contemplated hereby.

3.2 Authority; Noncontravention. Each of Mercury and Merger Sub has all requisite corporate power and authority to enter into this Agreement, performits obligations hereunder, and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation of thetransactions contemplated hereby have been duly authorized by all necessary corporate action on the part of Mercury and Merger Sub and no other action on thepart of Mercury or Merger Sub is necessary to authorize the execution and delivery by Mercury or Merger Sub of this Agreement and the consummation of thetransactions contemplated hereby. This Agreement has been duly executed and delivered by Mercury and Merger Sub and, assuming due authorization, executionand delivery by Systinet, constitutes the valid and binding obligation of each of Mercury and Merger Sub enforceable against each of Mercury and Merger Sub inaccordance with its terms, subject to the effect of (a) applicable bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effectrelating to rights of creditor generally and (b) rules of law and equity governing specific performance, injunctive relief and other equitable remedies. Theexecution and delivery of this Agreement by Mercury and Merger Sub does not, and the consummation of the transactions contemplated hereby will not, conflictwith, or result in any violation of, or default under (with or without notice or lapse of time, or both), or give rise to a right of termination, cancellation,renegotiation or acceleration of any obligation or loss of any benefit under, or require any consent, approval or waiver from any Person in accordance with,(A) any provision of the organizational documents of Mercury or Merger Sub, (B) any Contract filed as an exhibit to Mercury’s reports filed with the Securitiesand Exchange Commission pursuant to the Securities Exchange Act of 1934, or (C) material permit, judgment, order, decree, statute, law, rule or regulationapplicable to Mercury, Merger Sub or any of their Subsidiaries or any of their respective properties or assets. No consent, approval, order or authorization of, orregistration, declaration or filing with, any Governmental Entity or third party is required by or with respect to Mercury and Merger Sub in connection with theexecution and delivery of this Agreement or the consummation of the transactions contemplated hereby, except for (A) the filing of the Certificate of Merger,(B) such filings as may be required under the HSR Act or any other Antitrust Laws, (C) such filings as are required with the Securities and ExchangeCommission or the Nasdaq National Market, and (D) such other consents, approvals, orders, authorizations, registrations, declarations or filings which if notobtained or made, would not reasonably be expected to cause, individually or in the aggregate, a material liability for Mercury and its Subsidiaries taken as awhole.

3.3 Board Approval. The Board of Directors of each of Mercury and Merger Sub (or a duly authorized committee thereof) has approved this Agreement.No vote of Mercury’s stockholders is required in order to consummate the transactions contemplated by this Agreement.

3.4 Required Financing. Mercury and Merger Sub have, and at the Closing will have, sufficient currently−available funds on hand to consummate theMerger, including, without limitation, to (a) pay the aggregate Merger Consideration pursuant to this Agreement, (b) pay the indebtedness of the Company owingunder the Comerica Credit Facility, and (c) pay the Systinet Expenses.

26


3.5 Brokers. No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission from Systinet in connection with theMerger based upon arrangements made by or on behalf of Mercury, Merger Sub or either of their Affiliates (as defined in Section 8.4(a)).

3.6 Litigation. As of the date hereof, there is no litigation, action, suit, proceeding, claim, arbitration or, to the knowledge of Mercury, investigationpending or, to the knowledge of Mercury and Merger Sub, threatened in writing, against Mercury or Merger Sub and neither Mercury nor Merger Sub is subjectto any outstanding order, writ, judgment, injunction or decree of any Governmental Authority that, in either case, would be reasonably likely, individually or inthe aggregate, to prevent or materially delay the consummation of the Merger.

ARTICLE 4COVENANTS AND OTHER AGREEMENTS

4.1 Conduct of Business of Systinet and Subsidiaries. Except as expressly provided or permitted herein, or set forth in Section 4.1 of the SystinetDisclosure Letter or as consented to in writing by Mercury, during the period from the date hereof and continuing until the earlier of the termination of thisAgreement and the Effective Time:

(a) Systinet shall, and shall cause each of its Subsidiaries to, conduct its business in the usual, regular and ordinary course and in substantially thesame manner as heretofore conducted (except to the extent expressly provided otherwise in this Agreement or as consented to in writing by Mercury);

(b) Systinet shall, and shall cause each of its Subsidiaries to, (i) continue to pay all of its debts and Taxes when due, subject to good faith disputesover such debts or Taxes, (ii) continue to pay or perform its other obligations when due consistent with past practice, and (iii) use commercially reasonableefforts to preserve intact its present business organizations, keep available the services of its present officers and key employees and preserve its relationshipswith customers, suppliers, distributors, licensors, licensees, and others having business dealings with it, with the purpose of preserving unimpaired its goodwilland ongoing businesses at the Effective Time;

(c) Systinet shall promptly notify Mercury of any change, occurrence or event not in the ordinary course of its or any of its Subsidiaries’ business,and of any change, occurrence or event which, individually or in the aggregate with any other changes, occurrences and events, would reasonably be expected tohave a Material Adverse Effect on Systinet or any of its Subsidiaries or which is reasonably likely to cause any of the conditions to closing set forth in Article 5not to be satisfied; and

(d) Systinet shall, and shall cause each of its Subsidiaries to, assure that each of its Contracts entered into on or after the date hereof will not requirethe procurement of any consent, waiver or novation or provide for any material change in the obligations of any party in connection with, or terminate as a resultof the consummation of, the transactions contemplated by this Agreement.

27


4.2 Restrictions on Conduct of Business of Systinet and Subsidiaries. Without limiting the generality or effect of the provisions of Section 4.1, duringthe period from the date hereof and continuing until the earlier of the termination of this Agreement and the Effective Time, Systinet shall not, and shall causeeach of its Subsidiaries not to, do, cause or permit any of the following (except to the extent expressly provided or permitted herein or set forth in Section 4.2 ofthe Systinet Disclosure Letter or as expressly consented to in writing by Mercury):

(a) Cause or permit any amendments to its organizational documents;

(b) Declare or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any of its capital stock, orsplit, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares ofits capital stock (with the exception of conversion of shares of Systinet Preferred Stock into shares of Systinet Common Stock pursuant to the terms thereof or theissuance of Systinet Common Stock upon the exercise of outstanding Systinet Options or Systinet Warrants), or repurchase, redeem or otherwise acquire, directlyor indirectly, any shares of its capital stock except from former employees, non−employee directors and consultants in accordance with agreements existing atthe date hereof providing for the repurchase of shares in connection with any termination of service;

(c) Accelerate, amend or change the period of exercisability or vesting of options or other rights granted under its stock plans or the vesting of thesecurities purchased or purchasable under such options or other rights, amend or change any other terms of such options or rights or authorize cash payments inexchange for any options or other rights granted under any of such plans or the securities purchased or purchasable under those options or rights or waive oramend the right of repurchase applicable to any outstanding shares of Systinet Capital Stock;

(d) Enter into any Material Contract, enter into any other Contract or commitment in an amount greater than $25,000 (other than customer Contractsfor the licenses of Systinet Products entered into in the ordinary course of business), enter into any Contract that would be required to be listed as an exception toSection 2.7, or violate, amend or otherwise modify or waive any of the terms of any of its Material Contracts;

(e) Issue or grant any securities or agree to issue or grant any securities other than (i) the issuance of shares of Systinet Common Stock upon theconversion of Systinet Preferred Stock issued and outstanding on the date hereof, or (ii) the issuance of shares of Systinet Common Stock upon exercise ofSystinet Options or Systinet Warrants outstanding on the date hereof;

(f) Hire any additional employees, consultants or independent contractors or enter into, or extend the term of, any employment or consultingagreement with any Person;

28


(g) Make any loans or advances to, or any investments in or capital contributions to, any Person, or forgive or discharge in whole or in part anyoutstanding loans or advances payable to Systinet or its Subsidiaries;

(h) Transfer or license to any Person any rights to any Systinet Intellectual Property (other than in the ordinary course of business consistent withpast practice in connection with the sale of any of Systinet’s products or services; provided that, notwithstanding past practice, in no event shall Systinet or any ofits Subsidiaries disclose, provide or license any Systinet Source Code to any third party or include in any such transfer or license any obligation, right or option todeposit the Systinet Source Code in escrow);

(i) Enter into or amend outside of the ordinary course of business of Systinet and its Subsidiaries, any agreement pursuant to which any other partyis granted marketing or other distribution rights of any type or scope with respect to any of Systinet’s products or technology;

(j) Sell, lease, license or otherwise dispose of or encumber any of its properties or assets (other than in the ordinary course of business consistentwith past practice in connection with the sale of any of Systinet’s products or services; provided that, notwithstanding past practice, in no event shall Systinet orany of its Subsidiaries disclose, provide or license any Systinet Source Code to any third party or include in any such transfer or license any obligation, right oroption to deposit the Systinet Source Code in escrow);

(k) Incur any indebtedness for borrowed money or guarantee any such indebtedness (other than borrowings under the Comerica Credit Facility inthe ordinary course of business) or issue or sell any debt securities or guarantee any debt securities of others;

(l) Enter into any operating lease;

(m) Pay, discharge or satisfy, in an amount in excess of $25,000 in any one case or $100,000 in the aggregate, any claim, liability or obligation(absolute, accrued, asserted or unasserted, contingent or otherwise) arising otherwise than in the ordinary course of business and not in violation of thisAgreement, other than the payment, discharge or satisfaction of Systinet Expenses and liabilities reflected or reserved against in the Financial Statements(including repayments under the Comerica Credit Facility);

(n) Make any capital expenditures or commitments, capital additions or capital improvements except in the ordinary course of business;

(o) Materially reduce the amount of any insurance coverage provided by existing insurance policies;

(p) Terminate or waive any right of substantial value;

(q) Except as set forth in Section 4.2(q) of the Systinet Disclosure Letter, adopt or amend any employee or compensation benefit plan, including anystock purchase, stock issuance or stock option plan, or amend any compensation, benefit, entitlement, grant or award provided or made under any such plan,except in each case as required under ERISA or as

29


necessary to maintain the qualified status of such plan under the Code, or hire any new officer−level or other management−level employee, pay any specialbonus or special remuneration to any employee or non−employee director or increase the salaries or wage rates of its employees, or add any new non−employeemembers to the board of directors of Systinet or any of its Subsidiaries;

(r) Unless required by applicable law, enter into any employment contract or any collective bargaining agreement;

(s) Grant any severance or termination pay to any Person, except payments made in accordance with written agreements listed in Section 2.11(b) ofthe Systinet Disclosure Letter or payments disclosed in Section 4.2(s) of the Systinet Disclosure Letter, or to amend or modify any existing severance ortermination agreement with any Person;

(t) Commence a lawsuit other than (i) for the routine collection of bills, (ii) in such cases where it in good faith determines that failure to commencesuit would result in the material impairment of a valuable aspect of its business, provided that it consults with Mercury prior to the filing of such a suit, or (iii) fora breach of or to otherwise enforce or protect its rights under this Agreement;

(u) Acquire or agree to acquire by merging or consolidating with, or by purchasing the assets of, or by any other manner, any business or anycompany, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets which are material,individually or in the aggregate, to its and its Subsidiaries’ business, taken as a whole;

(v) Make or change any material election in respect of Taxes, adopt or change any accounting method in respect of Taxes unless required byapplicable law, file any material Tax Return or any amendment to a material Tax Return Tax Return, enter into any closing agreement, settle any claim orassessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;

(w) Enter into any Contract or transaction in which any officer or non−employee director of Systinet or any of its Subsidiaries (or any member ofthe immediate family of such officer or director) has an interest under circumstances that would require disclosure under Item 404 of Regulation S−K if Systinetor any of its Subsidiaries were subject to the reporting requirements of Section 13(a) of the Securities Exchange Act of 1934, as amended; and

(x) Take or agree in writing or otherwise to take, any of the actions described in the foregoing clauses of this Section 4.2.

4.3 Access to Information.

(a) Until the earlier of the termination of this Agreement and the Effective Time, upon reasonable notice and without undue disruption to itsbusiness, (i) Systinet shall afford Mercury and its accountants, counsel and other representatives, reasonable access during normal business hours at timesmutually convenient to Mercury and Systinet to (A) all of Systinet’s and each of its Subsidiaries’ properties, books, contracts, commitments and records

30


and (B) all other information concerning the business, properties and personnel of Systinet or any of its Subsidiaries in each case as Mercury may reasonablyrequest, and (ii) Systinet shall provide to Mercury and its accountants, counsel and other representatives true, correct and complete copies of internal financialstatements promptly upon Mercury’s reasonable request.

(b) Subject to compliance with applicable law, until the earlier of the termination of this Agreement and the Effective Time, Systinet shall conferfrom time to time as requested by Mercury with one or more representatives of Mercury to discuss any material changes or developments in the operationalmatters of Systinet and its Subsidiaries and the general status of the ongoing business and operations of Systinet and its Subsidiaries.

(c) No information or knowledge obtained in any investigation in accordance with this Section 4.3 shall affect or be deemed to modify anyrepresentation or warranty contained herein or the conditions to the obligations of the parties hereto to consummate the Merger.

(d) In the event the Closing has not occurred by January 15, 2006, Systinet shall use its commercially reasonable efforts to deliver to Mercury on orabout such date Systinet’s unaudited consolidated financial statements as at and for the twelve−month period ended December 31, 2005 (including, in each case,balance sheets, statements of operations and statements of cash flows) (collectively, the “December Financial Statements”). The December Financial Statements(a) shall be prepared in accordance with GAAP (except for the exclusion of notes thereto) applied on a consistent basis throughout the period indicated, and(b) shall present fairly the consolidated financial condition and results of operations and cash flows of Systinet as of the date, and for the period, indicated therein(subject to normal recurring year−end audit adjustments, none of which individually or in the aggregate are material).

4.4 Confidentiality. The parties acknowledge that Mercury and Systinet have previously executed a non−disclosure agreement dated July 19, 2005 (the“Confidentiality Agreement”), which shall continue in full force and effect in accordance with its terms.

4.5 Public Disclosure. Prior to the Effective Time, Mercury and Systinet will consult with each other, and to the extent practicable, agree, before issuingany press release or otherwise making any public statement with respect to the Merger, this Agreement or any material transaction involving Mercury or Systinetand will not issue any such press release or make any such public statement prior to such consultation, except as may be required by law or any listing agreementwith a national securities exchange. With respect to the initial press release announcing the Merger and this Agreement, Systinet will be afforded an opportunityto comment on the text of the press release that Mercury will use to announce the Merger and this Agreement.

4.6 Consents; Cooperation.

(a) Each of Mercury, Merger Sub and Systinet shall promptly after the execution of this Agreement, and in any event no later than ten business daysfrom the date of this Agreement, apply for or otherwise seek, and use its commercially reasonable efforts to obtain, all consents and approvals required to beobtained by it for the consummation of the

31


Merger. Without limiting the generality or effect of the foregoing, each of Mercury, Merger Sub and Systinet shall, as soon as practicable, and in any event nolater than five business days from the date of this Agreement, make or cause to be made any initial filings required under the HSR Act. Mercury shall pay allfiling and related fees in connection with any filings that are required under the HSR Act. Systinet shall cause any of its Affiliates required to make any filingsrequired under the HSR Act to make any initial filings it is required to make under the HSR Act in connection with the Merger as soon as practicable and in anyevent no later than five business days from the date of this Agreement. The parties hereto shall consult and cooperate with one another, and consider in good faiththe views of one another, in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submittedby or on behalf of any party hereto in connection with proceedings under or relating to the HSR Act or any other federal or state antitrust or fair trade law.

(b) Each of Mercury, Merger Sub and Systinet shall use commercially reasonable efforts to resolve such objections, if any, as may be asserted byany Governmental Entity with respect to the transactions contemplated by this Agreement under the HSR Act or any other federal, state or foreign statutes, rules,regulations, orders or decrees that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade(collectively, “Antitrust Laws”). Neither Mercury nor Systinet shall have any obligation to litigate or contest any administrative or judicial action or proceedingor any Order beyond the earlier of (i) 90 days after the date of this Agreement and (ii) the date of a ruling preliminarily enjoining the Merger issued by a court ofcompetent jurisdiction. Each of Mercury and Systinet shall use commercially reasonable efforts to take such action as may be required to cause the expiration ofthe notice periods under the Antitrust Laws with respect to such transactions as promptly as possible after the execution of this Agreement. Mercury and Systinetshall take any and all of the following actions to the extent necessary to obtain the approval of any Governmental Entity with jurisdiction over the enforcement ofany applicable laws regarding the transactions contemplated hereby: (i) entering into negotiations; (ii) providing information required by law or governmentalregulation; and (iii) substantially complying with any second request for information in accordance with the Antitrust Laws.

(c) Notwithstanding anything herein to the contrary, (i) Mercury shall not be required to (y) divest any of its or any of its subsidiaries’ businesses,product lines or assets, or to agree to any divestiture of Systinet’s businesses, product lines or assets, or (z) to take or agree to take any other action or agree toany limitation that individually or in the aggregate could reasonably be expected to have a Material Adverse Effect on the Surviving Corporation after theEffective Time, and (ii) neither Systinet nor any of its Subsidiaries shall be required to (A) divest any of their respective businesses, product lines or assets, or(B) to take or agree to take any other action or agree to any limitation that individually or in the aggregate could reasonably be expected to have a MaterialAdverse Effect on Systinet.

4.7 Legal Requirements. Each of Mercury, Merger Sub and Systinet shall, and shall cause its Subsidiaries, if any, to, (a) take commercially reasonableactions necessary to comply promptly with all legal requirements which may be imposed on it with respect to the consummation of the transactions contemplatedby this Agreement, (b) promptly cooperate with and furnish information to any party hereto necessary in connection with any such requirements imposed uponsuch other party in connection with the consummation of the transactions

32


contemplated by this Agreement, and (c) take commercially reasonable actions necessary to obtain (and shall cooperate with the other parties hereto in obtaining)any consent, approval, order or authorization of, or any registration, declaration or filing with, any Governmental Entity, or other Person, required to be obtainedor made in connection with the taking of any action contemplated by this Agreement.

4.8 Employees; Benefits.

(a) Employees of Systinet who remain employed by Systinet after the Merger shall receive compensation and benefits (other than stock and options)that are in the aggregate comparable to those afforded to similarly−situated employees of Mercury, subject to the terms and conditions of the relevant benefitsplans.

(b) To the extent that service is relevant for purposes of eligibility, vesting, calculation of any benefit, or benefit accrual under any employee benefitplan, program or arrangement established or maintained by Mercury or the Surviving Corporation (other than any defined benefit pension plan or stock incentiveplan) following the Closing Date for the benefit of Systinet Employees (or Mercury’s other employees), such plan, program or arrangement shall credit suchSystinet Employees for service on or prior to the Closing Date that was recognized by Systinet or its Subsidiaries, as the case may be, for purposes of employeebenefit plans, programs or arrangements maintained by Systinet, provided that in no event shall such crediting of service result in any duplication of benefits. Inaddition, with respect to any welfare benefit plan (as defined in Section 3(1) of ERISA) established or maintained by Mercury and the Surviving Corporationfollowing the Closing Date for the benefit of Systinet Employees (or Mercury’s other employees), such plan shall waive any pre−existing condition exclusions(to the extent that no pre−existing condition exclusion applied under a comparable plan of Systinet prior to the Closing) and provide that any covered expensesincurred on or before the Closing Date by any Systinet Employee or by a covered dependent shall be taken into account for purposes of satisfying applicabledeductible coinsurance and maximum out−of−pocket provisions after the Closing Date.

(c) The individuals previously identified by Mercury and approved by Systinet shall be terminated from their employment with Systinet on or priorto the Closing. Systinet shall use its commercially reasonable efforts to assist Mercury in obtaining a contractor agreement with each of those terminatedemployees of Systinet designated by Mercury, the terms of which agreement shall be mutually acceptable to Mercury and such individual.

4.9 Stock Options.

(a) At the Effective Time, each portion of a then outstanding Systinet Option that is unvested will be assumed by Mercury. Each portion of aSystinet Option so assumed by Mercury under this Agreement will continue to have, and be subject to, the same terms and conditions set forth in the SystinetOption Plan and the related option agreement immediately prior to the Effective Time (including, without limitation, any repurchase rights or vesting provisions),except that (i) each such portion of a Systinet Option will be exercisable (or will become exercisable in accordance with its terms) for that number of wholeshares of the common stock of Mercury, par value $0.002 per share (“Mercury Common Stock”), equal to the product

33


of the number of shares of Systinet Common Stock that were issuable upon exercise of such portion of a Systinet Option immediately prior to the Effective Timemultiplied by the Exchange Ratio, rounded down to the nearest whole number of shares of Mercury Common Stock and (ii) the per share exercise price for theshares of Mercury Common Stock issuable upon exercise of such portion of an assumed Systinet Option will be equal to the quotient determined by dividing theexercise price per share of Systinet Common Stock at which such portion of a Systinet Option was exercisable immediately prior to the Effective Time by theExchange Ratio, rounded up to the nearest whole cent. For purposes of this Section 4.9, “Exchange Ratio” shall mean the Systinet Price divided by the MercuryPrice, rounded to six decimal places, where the “Systinet Price” equals the Common Price Per Share, and the “Mercury Price” equals the average for the 15trading days ended two trading days prior to the Closing Date (the “Trailing Average Period”) of (A) for any trading day during the Trailing Average Period onwhich the Mercury Common Stock is listed on the National Association of Securities Dealers Automated Quotation (“NASDAQ”) National Market System, theclosing price per share of the Mercury Common Stock, or (B) for any trading day during the Trailing Average Period on which the Mercury Common Stock isnot listed on the NASDAQ National Market System, but there is a public market for the Mercury Common Stock, the mean of the closing bid and asked prices ofthe Mercury Common Stock, in each case as reported in the Wall Street Journal (or, if not so reported, as otherwise reported by NASDAQ).

(b) It is intended that Systinet Options assumed by Mercury pursuant to Section 4.9(a) shall qualify following the Effective Time as incentive stockoptions as defined in Section 422 of the Code to the extent such Systinet Options qualified as incentive stock options immediately prior to the Effective Time,and the provisions of Section 4.9(a) shall be applied consistent with such intent.

(c) At the Effective Time, each portion of a then outstanding Systinet Option that is vested (other than the Cash Out Options) will be assumed byMercury. Each such portion of a Systinet Option so assumed by Mercury under this Agreement will continue to have, and be subject to, the same terms andconditions set forth in the Systinet Option Plan and the related option agreement immediately prior to the Effective Time (including, without limitation, anyrepurchase rights or vesting provisions), except that such portion of a Systinet Option will be exercisable (or will become exercisable in accordance with itsterms) for an amount of cash equal to the product of (i) number of shares of Systinet Common Stock underlying such Systinet Option and (ii) the Common PricePer Share.

4.10 Form S−8. Mercury shall file a registration statement on Form S−8 for the shares of Mercury Common Stock issuable with respect to assumedSystinet Options as soon as is reasonably practicable after the Closing and after Mercury is eligible to file a Form S−8, which Form S−8 shall include a “reofferprospectus” (as defined in General Instruction C.1. of Form S−8) if any person has exercised a Systinet Option before the filing of the Form S−8 contemplated bythis Section 4.10 and shares have been issued upon such exercise in accordance with the terms of the Systinet Option Plan.

4.11 Spreadsheet. Systinet shall prepare and deliver to Mercury, at or prior to the Closing, a spreadsheet in form acceptable to Mercury and the ExchangeAgent, which spreadsheet shall be dated as of the Closing Date and shall set forth, as of the Closing Date, the

34


following information relating to holders of Systinet Capital Stock, Systinet Options and Systinet Warrants: (a) the names of all Systinet stockholders,optionholders and warrant holders and their respective addresses of record, (b) the number and kind of shares of Systinet Capital Stock held by, or subject to theSystinet Options or Systinet Warrants held by such Persons and, in the case of shares, the respective certificate numbers, (c) cash Merger Consideration (less theEscrow Fund) issuable to each holder of Systinet Capital Stock, Systinet Options and Systinet Warrants, (d) the interest of each former holder of Systinet CapitalStock, Systinet Options or Systinet Warrants in the Escrow Fund and any amount payable pursuant to Section 1.8(f) and (e) the exercise price per share in effectfor each Systinet Option and Systinet Warrant immediately prior to the Closing Date (the “Spreadsheet”).

4.12 Expenses. If the Merger is not consummated, all costs and expenses incurred in connection with this Agreement and the transactions contemplatedhereby (including legal, accounting, investment banking, finders and advisory fees and expenses) shall be paid by the party incurring such expense. If the Mergeris consummated, all fees and expenses of Systinet (including legal, accounting, investment banking, finders and advisory fees and expenses) incurred inconnection with this Agreement and transactions contemplated hereby (the “Systinet Expenses”) shall be paid by the Surviving Corporation and included in thecalculation of Net Liabilities.

4.13 Further Assurances. On the terms and subject to the conditions set forth in this Agreement, each of the parties hereto shall use commerciallyreasonable efforts, and shall cooperate with each other party hereto, to take, or cause to be taken, such actions, and to do, or cause to be done, such thingsreasonably necessary, appropriate or desirable to consummate and make effective the Merger and the other transactions contemplated hereby, including thesatisfaction of the respective conditions set forth in Article 5. Without limiting the generality or effect of the foregoing and subject to the terms of thisAgreement, in the event an injunction or other order preventing the consummation of the Merger shall have been issued by a court of competent jurisdiction, eachparty hereto shall use its commercially reasonable efforts to have such injunction or other order lifted. Each party hereto, at the reasonable request of the otherparty hereto, shall execute and deliver such other instruments and do and perform such other acts and things as may be reasonably necessary or reasonablydesirable for effecting completely the consummation of the Merger and the other transactions contemplated hereby.

4.14 Information Statement. As promptly as practicable after the date of this Agreement, Systinet shall prepare an information statement in form andsubstance reasonably satisfactory to Mercury which shall include a description of the approval of the Merger Agreement, the Merger, and the transactionscontemplated by the Merger Agreement and the increase in the number of shares subject to the Systinet Option Plan by Systinet’s board of directors andSystinet’s stockholders and a description of the Systinet stockholders’ appraisal rights in regard to the Merger under the DGCL, a description of the payments (ifany) that are the subject of the Section 280G Stockholder Approval (as defined in Section 8.4(m)) and a description of the Merger Agreement, the Merger and thetransactions contemplated by the Merger (the “Information Statement”). Systinet shall: (i) use commercially reasonable efforts to cause the InformationStatement to comply with applicable legal requirements; (ii) provide Mercury with a reasonable opportunity to review and comment on any draft of theInformation Statement, and include in the Information Statement all changes reasonably proposed by

35


Mercury; and (iii) cause the Information Statement to be mailed to Systinet’s stockholders as promptly as practicable following the date of this Agreement.Mercury will cooperate with Systinet in the preparation of the Information Statement and will provide all information reasonably required to be provided by it forinclusion in the Information Statement.

4.15 No Solicitation. From the date hereof until termination of this Agreement pursuant to its terms, Systinet shall not and shall cause its officers,directors, employees, financial advisors, representatives, agents, stockholders, Subsidiaries or Affiliates not to, directly or indirectly: (i) solicit, initiate, facilitate,seek, entertain, encourage or support any inquiry, proposal or offer from any Person (other than Mercury) in respect of an Acquisition Transaction; (ii) participatein any discussions or negotiations or enter into any agreement with, or provide any non−public information or other information that Systinet believes or shouldreasonably know could be used for purposes of formulating any inquiry, proposal or offer to, any Person (other than Mercury) in respect of an AcquisitionTransaction; or (iii) accept any proposal or offer from any Person (other than Mercury) in respect of an Acquisition Transaction. Upon execution of thisAgreement, Systinet shall immediately cease and cause to be terminated any existing direct or indirect discussions with any Person (other than Mercury) that arein respect of an Acquisition Transaction. Systinet shall promptly (and in no event later than 24 hours after receipt thereof) notify Mercury orally and in writing ofany proposal or offer concerning an Acquisition Transaction, or any request for information from a Person in respect of an Acquisition Transaction (including theidentity of the Person making or submitting such proposal, offer or request, and the material terms thereof (including a copy of any written proposal, offer orrequest)) that is received by Systinet or any Affiliate or representative of Systinet. Systinet shall keep Mercury informed on a reasonably current basis (and, inany event, within 24 hours) of the status and details of any material modifications to any such proposal, offer or request. “Acquisition Transaction” means anytransaction involving: (x) the sale, license, disposition or acquisition of all or a substantial portion of the business or assets of Systinet; (y) the issuance,disposition or acquisition of (A) any capital stock or other equity security of Systinet (other than issuances of Systinet Capital Stock upon conversion of SystinetPreferred Stock, exercise of Systinet Options or Systinet Warrants or in routine transactions in accordance with Systinet’s past practices), (B) except as expresslycontemplated by Section 4.19 of this Agreement, any option, call, warrant or right (whether or not immediately exercisable) to acquire any capital stock or otherequity security of Systinet, or (C) any security, instrument or obligation that is or may become convertible into or exchangeable for any capital stock or otherequity security of Systinet; in each of clauses (A) through (C), representing in the aggregate 10% or more of the voting power of Systinet; or (z) any merger,consolidation, share exchange, business combination, reorganization, recapitalization or similar transaction involving Systinet that if consummated would resultin any Person (other than Mercury) beneficially owning 10% or more of any class of equity securities of Systinet.

4.16 Milestone Bonus Plan. Prior to the Closing, Mercury will adopt a Milestone Bonus Plan in the form attached hereto as Exhibit E and immediatelyafter Closing grant bonuses thereunder to, and enter into agreements in connection therewith with, the individuals previously identified by Mercury and approvedby Systinet in the amounts previously identified by Mercury and approved by Systinet.

36


4.17 Section 280G Matters.

(a) Systinet shall obtain and deliver to Mercury, prior to the initiation of the procedure described in Section 4.17(b), an excess parachute paymentwaiver, in substantially the form contained in Section 4.17(a) of the Systinet Disclosure Letter, from each Person who Systinet reasonably believes is, withrespect to Systinet, any Subsidiary and/or any ERISA Affiliate, a “disqualified individual” (within the meaning of Section 280G of the Code), as determinedimmediately prior to the initiation of the procedure described in Section 4.17(b), and who would otherwise have, receive or have the right or entitlement toreceive a parachute payment from Systinet, Mercury or any ERISA Affiliate of Systinet or Mercury under Section 280G of the Code as a result of the Closing orthe consummation of the Merger (including in connection with certain changes in any such Person’s employment circumstances following the consummation ofthe Merger).

(b) Systinet shall use commercially reasonable efforts to obtain the written consent of such a number of stockholders of Systinet as is required by theterms of Section 280G(b)(5)(B) so as to comply with the stockholder approval requirements of Section 280G of the Code with respect to any and all paymentsand/or benefits provided in accordance with agreements, contracts or arrangements that, in the absence of the executed waivers described in Section 4.17(a),would be subject to such parachute payment requirements (in a manner which satisfies all applicable requirements of such Section 280G(b)(5)(B) of the Codeand the Treasury Regulations thereunder, including Q−7 of Section 1.280G−1 of such Treasury Regulations).

4.18 Comerica Credit Facility. Systinet shall use commercially reasonable efforts to take any action prior to Closing that is necessary to enable theSurviving Corporation immediately after Closing to (i) pay off in full the Comerica Credit Facility, (ii) terminate the Comerica Credit Facility and (iii) release allliens made in connection with the Comerica Credit Facility.

4.19 Additional Systinet Options. Prior to the Closing, Systinet agrees to grant Systinet Options exercisable for an aggregate of 9,959,160 shares ofSystinet Common Stock to the individuals and amounts previously agreed to by Mercury and Systinet. Such options shall vest over four years from the date ofgrant with the first 25% of the shares subject to the option vesting on the first anniversary of the date of grant and the remaining 75% of the shares subject to theoption vesting 1/36th per month over the remaining 36 months. Systinet agrees to amend the Systinet Option Plan and obtain the approval of the stockholders ofSystinet as necessary to effect such grants. In addition, (i) none of the Systinet Options granted shall contain a provision allowing the exercise of such optionsbefore they become vested, and (ii) such options will be issued with an exercise price equal to the Common Price Per Share.

4.20 Systinet 401(k) Plan. Systinet shall terminate, or cause to be terminated its 401(k) plan, effective no later than the day immediately preceding theClosing Date.

37


ARTICLE 5CONDITIONS TO THE MERGER

5.1 Conditions to Obligations of Each Party to Effect the Merger. The respective obligations of each party to consummate the transactionscontemplated hereby shall be subject to the satisfaction at or prior to the Closing of each of the following conditions, which to the maximum extent permitted bylaw may be waived in a written agreement of Systinet and Mercury (for itself or Merger Sub) (each such condition is solely for the benefit of the parties heretoand may be waived without notice, liability or obligation to any Person):

(a) No Injunctions or Restraints; Illegality. No temporary restraining order, preliminary or permanent injunction or other order issued by any courtof competent jurisdiction or other legal or regulatory restraint or prohibition preventing the consummation of the Merger shall be in effect, nor shall anyproceeding brought by a Governmental Entity seeking any of the foregoing be pending. No statute, rule, regulation or order shall have been enacted, entered,enforced or deemed applicable to the transactions contemplated by this Agreement, which makes the consummation of the transactions contemplated by thisAgreement illegal.

(b) Governmental Approvals. Mercury and Systinet and their respective Subsidiaries shall have timely obtained from each Governmental Entity allapprovals, waivers and consents, if any, necessary for consummation of, or in connection with, the transactions contemplated hereby. Without limiting thegenerality of the foregoing all applicable waiting periods under any Antitrust Laws shall have expired or been terminated.

5.2 Additional Conditions to Obligations of Systinet. The obligations of Systinet to consummate the transactions contemplated hereby shall be subject tothe satisfaction at or prior to the Closing of each of the following conditions, any of which may be waived, in writing, by Systinet (each such condition is solelyfor the benefit of Systinet and may be waived in its sole discretion without notice, liability or obligation to any Person):

(a) Representations, Warranties and Covenants. Each of the representations and warranties made by each of Mercury and Merger Sub in thisAgreement, disregarding all materiality or Material Adverse Effect qualifications and exceptions, shall be true and correct, in each case as of the date of thisAgreement and at and as of the Closing Date as if made on that date, except (i) in any case that representations and warranties that expressly speak as of aspecified date or time need only be true and correct as of such specified date or time or (ii) where the failure to be true and correct would not, in the aggregate,have a Material Adverse Effect on Mercury. Each of Mercury and Merger Sub shall have performed and complied in all material respects with all covenants,obligations and conditions of this Agreement required to be performed and complied with by it at or prior to the Closing.

(b) Receipt of Closing Deliveries. Systinet shall have received each of the agreements, instruments and other documents required to have beendelivered to Systinet at or prior to the Closing as set forth in Exhibit F.

5.3 Additional Conditions to the Obligations of Mercury and Merger Sub. The obligations of Mercury and Merger Sub to consummate thetransactions contemplated hereby

38


shall be subject to the satisfaction at or prior to the Closing of each of the following conditions, any of which may be waived, in writing, by Mercury (each suchcondition is solely for the benefit of Mercury and Merger Sub and may be waived, for itself and Merger Sub, by Mercury in its sole discretion without notice,liability or obligation to any Person):

(a) Representations, Warranties and Covenants. Each of the representations and warranties made by Systinet in this Agreement, disregarding allmateriality or Material Adverse Effect qualifications and exceptions (other than such qualifications and exceptions when used in the definition of, or to modify,the terms Systinet Products and Systinet Intellectual Property and “Material Contract” and “Material Customers”), shall be true and correct, in each case as of thedate of this Agreement and at and as of the Closing Date as if made on that date, except (i) in any case that representations and warranties that expressly speak asof a specified date or time need only be true and correct as of such specified date or time, or (ii) where the failure to be true and correct would not, in theaggregate, have a Material Adverse Effect on Systinet; provided, however, that such Material Adverse Effect qualifier shall be inapplicable with respect torepresentations and warranties contained in Section 2.2(a) and (b), each of which individually shall have been true and correct in all respects as of the date of thisAgreement and shall be true and correct in all respects on and as of the Closing Date (except in any case that representations and warranties that expressly speaksas of a specified date or time need only be true and correct of such specified date or time). Systinet shall have performed and complied in all material respectswith all covenants, obligations and conditions of this Agreement required to be performed and complied with by it at or prior to the Closing.

(b) Receipt of Closing Deliveries. Mercury shall have received each of the agreements, instruments and other documents required to have beendelivered to Mercury and Merger Sub at or prior to the Closing as set forth in Exhibit F.

(c) Injunctions or Restraints on Conduct of Business. No temporary restraining order, preliminary or permanent injunction or other order issued byany court of competent jurisdiction or other legal or regulatory restraint provision limiting or restricting Mercury’s ownership, conduct or operation of thebusiness of Systinet and/or any of its Subsidiaries, following the Effective Time shall be in effect, nor shall any suit, investigation, request for additionalinformation, action or proceeding before any Governmental Entity seeking any of the foregoing, seeking to obtain from Mercury or Systinet or any of theirrespective Affiliates in connection with the Merger any damages, or seeking any other relief that following the Merger, in the sole judgment of Mercury, couldreasonably be expected to materially limit or restrict the ability of the Surviving Corporation and/or its Subsidiaries to own and conduct both (i) the assets andbusinesses owned and conducted by Mercury and/or its Subsidiaries prior to the Merger and (ii) the assets and businesses owned and conducted by Systinetand/or each of its Subsidiaries prior to the Merger, be pending or threatened (and in the case of any of the foregoing initiated or sought by a non−governmentalentity, threatened in writing).

(d) No Material Adverse Effect. There shall not have occurred any event or condition of any character that has had or is reasonably likely to have aMaterial Adverse Effect on Systinet since the date of this Agreement.

39


(e) Section 280G Stockholder Approval. Any agreements, contracts or arrangements that, before giving effect to any waiver described below, wouldresult, separately or in the aggregate, in the payment of any amount or the provision of any benefit that would not be deductible by reason of Section 280G of theCode shall have been approved by such number of stockholders of Systinet as is required by the terms of Sections 280G in order for such payments and benefitsnot to be deemed parachute payments under Section 280G of the Code, with such approval to be obtained in a manner which satisfies all applicable requirementsof Sections 280G(b)(5)(B) of the Code and the Treasury Regulations thereunder, including Q−7 of such Treasury Regulations, or in the absence of suchstockholder approval, none of those payments or benefits shall be paid or provided, in accordance with the waiver of those payments and benefits to be executedby the affected individuals in accordance with Section 4.17.

(f) Systinet Options. The holders of at least 95% of the vested and unexercised Systinet Options outstanding as of the Closing shall have agreed inwriting to cancel such Systinet Options held by such Person in exchange for the payment of cash in accordance with the provisions of Section 1.6(a).

(g) Option Arrangements. The Systinet Option grants that are listed on Schedule 5.3(g) shall have been amended such that the exercise price of theunvested portion of each such grant equals the Common Price Per Share. Systinet shall have provided to Mercury the consent of each holder of such SystinetOptions to the amendment of such holder’s Systinet Options.

ARTICLE 6TERMINATION, AMENDMENT AND WAIVER

6.1 Termination. At any time prior to the Effective Time, whether before or after adoption of this Agreement by Systinet’s and Merger Sub’sstockholders, this Agreement may be terminated and the Merger and the other transactions contemplated hereby may be abandoned, as follows:

(a) by mutual written consent duly authorized by the respective boards of directors of Mercury (or a committee thereof) (on behalf of Mercury andMerger Sub) and Systinet;

(b) by either Mercury or Systinet, if the Closing shall not have occurred on or before March 31, 2006 (the “Termination Date”) provided, however,that the right to terminate this Agreement under this Section 6.1(b) shall not be available to any party who is in material breach of this Agreement and suchbreach of this Agreement has resulted in the failure of the Closing to occur on or before the Termination Date;

(c) by either Systinet or Mercury, if any permanent injunction or other order of a court or other competent Government Entity preventing theconsummation of the transactions contemplated by this Agreement shall have become final and nonappealable;

(d) by Mercury, if Systinet shall have materially breached any representation, warranty or covenant contained herein and (i) such breach shall nothave been cured within thirty days after receipt by Systinet of written notice of such breach (provided, however, that no such

40


cure period shall be available or applicable to any such breach which by its nature cannot be cured) and (ii) if not cured at or prior to the Closing, such breachwould result in the failure of any of the conditions set forth in Section 5.1 or 5.3(a) or (d) to be satisfied (provided, however, that the termination right underSection 6.1(d) shall not be available to Mercury if Mercury is at that time in material breach of this Agreement); or

(e) by Systinet, if Mercury or Merger Sub shall have materially breached any representation, warranty or covenant contained herein and (i) suchbreach shall not have been cured within thirty days after receipt by Mercury of written notice of such breach (provided, however, that no such cure period shall beavailable or applicable to any such breach which by its nature cannot be cured) and (ii) if not cured at or prior to the Closing, such breach would result in thefailure of any of the conditions set forth in Section 5.1 or 5.2(a) to be satisfied; provided, however, that the right to terminate this Agreement under thisSection 6.1(e) shall not be available to Systinet if Systinet is at that time in material breach of this Agreement).

6.2 Effect of Termination. If this Agreement is terminated in accordance with Section 6.1, this Agreement shall forthwith become void and there shall beno liability or obligation on the part of Mercury, Merger Sub or Systinet or their respective officers, directors, stockholders or Affiliates; provided, however, thateach party hereto shall remain liable for willful breaches of this Agreement prior to its termination, provided, further, that notwithstanding the foregoing proviso,Systinet shall remain liable for any breaches or inaccuracies of Sections 2.3(b), 2.17, 2.18 and 4.15 prior to the termination of this Agreement; and provided,further, that the Confidentiality Agreement and the provisions of Sections 4.12 and 6.2 and Article 8 shall remain in full force and effect and survive anytermination of this Agreement.

6.3 Amendment. Subject to the provisions of applicable law, the parties hereto may amend this Agreement at any time in accordance with an instrumentin writing signed on behalf of each of the parties hereto; provided, however, that an amendment made subsequent to adoption of this Agreement by thestockholders of Systinet shall not (a) alter or change the amount or kind of consideration to be received on conversion of the Systinet Capital Stock or (b) alter orchange any of the terms or conditions of this Agreement if such alteration or change would materially and adversely affect the holders of Systinet Capital Stock.Subject to the provisions of applicable law, Mercury and the Stockholders Representative (on behalf of all of the holders of Systinet Capital Stock, vested andunexercised Systinet Options and Systinet Warrants immediately prior to the Effective Time) may cause this Agreement to be amended at any time after theEffective Time by execution of an instrument in writing signed on behalf of Mercury and the Stockholders Representative (on behalf of all of the holders ofSystinet Capital Stock, vested and unexercised Systinet Options and Systinet Warrants immediately prior to the Effective Time); provided, however, that anyamendment made in accordance with this sentence shall not (i) alter or change the amount or kind of consideration to be received on conversion of the SystinetCapital Stock or for the vested and unexercised Systinet Options or Systinet Warrants or (ii) alter or change any of the terms or conditions of this Agreement ifsuch alteration or change would materially and adversely affect the stockholders of Systinet immediately prior to the Effective Time.

41


6.4 Extension; Waiver. Any party hereto may, to the extent legally allowed, (a) extend the time for the performance of any of the obligations or other actsof the other parties, (b) waive any inaccuracies in the representations and warranties made to such party herein or in any document delivered pursuant hereto, and(c) waive compliance with any of the agreements or conditions for the benefit of such party contained herein. At any time after the Effective Time, theStockholders Representative or Mercury may, to the extent legally allowed, (i) extend the time for the performance of any of the obligations or other acts ofSystinet (in the case of a waiver by Mercury) or Mercury, Merger Sub or Surviving Corporation (in the case of a waiver by the Stockholders Representative),(ii) waive any inaccuracies in the representations and warranties made to Mercury (in the case of a waiver by Mercury) or made to Systinet (in the case of awaiver by the Stockholders Representative) herein or in any document delivered pursuant hereto and (iii) waive compliance with any of the agreements orconditions for the benefit of Mercury or Merger Sub (in the case of a waiver by Mercury) or for the benefit of Systinet (in the case of a waiver by theStockholders Representative). Any agreement on the part of a party hereto or the Stockholders Representative to any such extension or waiver shall be valid onlyif set forth in an instrument in writing signed on behalf of such party. Without limiting the generality or effect of the preceding sentence, no delay in exercisingany right under this Agreement shall constitute a waiver of such right, and no waiver of any breach or default shall be deemed a waiver of any other breach ordefault of the same or any other provision in this Agreement.

ARTICLE 7ESCROW FUND AND INDEMNIFICATION

7.1 Escrow Fund. The Escrow Fund shall be available to compensate Mercury and the Surviving Corporation (on behalf of itself or any other IndemnifiedPerson (as defined in Section 7.2)) for Losses (as defined in Section 7.2) in accordance with this Article 7.

7.2 Indemnification. The Escrow Fund shall be available from and after the Effective Time to indemnify and hold harmless Mercury and the SurvivingCorporation and their respective officers, directors, agents and employees, subsidiaries, directors and employees of subsidiaries, and each person, if any, whocontrols or may control Mercury and the Surviving Corporation within the meaning of the Securities Act of 1933, as amended (each of the foregoing, an“Indemnified Person”) from and against any and all losses, liabilities, damages, claims, suits, settlements, royalties, costs and expenses, including costs ofinvestigation, settlement, and defense and reasonable legal fees, court costs, and any interest costs or penalties (collectively, “Losses”), arising out of, related toor otherwise by virtue of (a) any breach of or inaccuracy in any representation or warranty made by Systinet in this Agreement or any other document required tobe delivered to Mercury or Merger Sub in accordance with any provision of this Agreement, (b) any breach of or default in connection with any of the covenantsor agreements made by Systinet in this Agreement, (c) any appraisal or similar action with respect to shares of Systinet Capital Stock (provided, that Lossesarising under this Section 7.2(c) shall equal (i) the excess of any consideration awarded in any appraisal action over (ii) the value of the Merger Considerationallocable to the former Systinet stockholders whose shares of Systinet Capital Stock were the subject of such appraisal action), and (d) those matters listed onSchedule 7.2(d). In determining (A) whether any representation and warranty was inaccurate or breached (except for the second sentence of Section 2.8(p)), or(B) the amount of any Losses in respect of

42


any inaccuracy in or any breach of any representation and warranty, any materiality or Material Adverse Effect qualification contained in such representation orwarranty will in all respects be ignored.

7.3 Limitations on Indemnification; Exclusive Remedy.

(a) The Indemnified Persons may not recover from the Escrow Fund in respect of any claim for indemnification in accordance with Section 7.2(a)unless and until Losses in accordance with Section 7.2(a) have been incurred, paid or properly accrued in an aggregate amount greater than $1,000,000 (the“Indemnification Threshold”). Notwithstanding the foregoing, the Indemnified Persons shall be entitled to recover for, and the Indemnification Threshold shallnot apply as a threshold to, any Losses with respect to any breach of or inaccuracy in any representation or warranty made by Systinet in Section 2.2 (a) or (b),Section 2.9 or Section 2.10(j) (the “Excepted Representations”). Once the Indemnification Threshold has been exceeded, the Indemnified Persons shall beentitled to recover only Losses in excess of the Indemnification Threshold.

(b) No indemnification liability under this Article 7 shall attach to any party under this Agreement in respect of any claim:

(i) to the extent that any provision or reserve in respect of the matter giving rise to such claim has been provided for on the face of theNovember 30 Balance Sheet;

(ii) to the extent that the matter giving rise to such claim resulted in an adjustment to the Merger Consideration based on the Actual NetLiabilities;

(iii) to the extent that such claim relates to any Loss for which any Indemnified Person is insured and actually recovers thereunder, but onlyto the extent of net insurance proceeds actually recovered; and

(iv) to the extent that such claim relates to any Loss for which any of any Indemnified Person collects a recovery from any third party, butonly to the extent of collections actually received.

(c) Except for claims based on fraud, recovery from the Escrow Fund in accordance with this Article 7 and the Escrow Agreement shall be the soleand exclusive remedy after the Effective Time for any Losses arising out of, related to or otherwise by virtue of any breach or claim in connection with thisAgreement or any certificate or writing delivered in connection with this Agreement or any transaction contemplated hereby, regardless of the cause of action;provided, however, that this Section 7.3(c) shall not limit the liability of any party for Losses arising out of, related to or otherwise by virtue of any breach orclaim in connection with the agreements described on Schedule 7.3(c). No Indemnified Person shall be entitled to make any claim directly against any formerholder of Systinet Capital Stock, vested but unexercised Systinet Options or Systinet Warrants after the Effective Time for any Losses arising out of, related to orotherwise by virtue of any breach or claim in connection with this Agreement or any certificate or writing delivered in connection with this Agreement or anytransaction contemplated hereby, regardless of the cause of action, except for (A) claims based on fraud or (B) claims directly against a former holder of SystinetCapital Stock, vested but unexercised

43


Systinet Options or Systinet Warrants after the Effective Time for any Losses arising out of, related to or otherwise by virtue of any breach or claim inconnection with the agreements described on Schedule 7.3(c). In the event of fraud, no former holder of Systinet Capital Stock, vested but unexercised SystinetOptions or Systinet Warrants shall be liable for any Losses that, together with such Person’s share, based on such Person’s contribution to the Escrow Fund, of allother Losses, in the aggregate exceed the actual proceeds received by such Person with respect to its Systinet Capital Stock, vested but unexercised SystinetOptions or Systinet Warrants pursuant to Article 1, other than the Person who committed such fraud, whose liability shall not be limited.

(d) No holder of Systinet Capital Stock, Systinet Options or Systinet Warrants shall have any right of contribution, right of indemnity or other rightor remedy against Mercury or the Surviving Corporation in connection with any indemnification obligation or any other liability to which such holder of SystinetCapital Stock, Systinet Options or Systinet Warrants may become subject under or in connection with this Agreement.

7.4 Claim Period. The period during which claims for indemnification from the Escrow Fund may be initiated shall commence at the Effective Time andterminate at the date that is eighteen months after the Effective Time (the “Claim Period”). The indemnification obligations under this Article 7 shall terminateon the date that is eighteen months after the Effective Time, except for matters as to which an Indemnified Person has made a claim for indemnity on or beforesuch date, which claim shall survive the expiration of such period until such claim is finally resolved in accordance with the terms of this Article 7 and theEscrow Agreement and any obligations with respect thereto are fully satisfied. Notwithstanding anything contained in this Agreement to the contrary, at theconclusion of the Claims Period such portion of the Escrow Fund as may be necessary in the reasonable judgment of Mercury to satisfy any unresolved orunsatisfied claims for Losses specified in any Officer’s Certificate (as defined in Section 7.5(a)) delivered to the Escrow Agent and the StockholderRepresentative prior to expiration of the Claims Period shall remain in the Escrow Fund until such claims for Losses have been resolved or satisfied provided,however, that such amount shall not exceed the aggregate amount specified in all unresolved or unsatisfied claims for Losses specified in all such Officer’sCertificates or any Adjustment Certificate.

7.5 Claims upon Escrow Fund.

(a) Upon receipt by the Escrow Agent on or before the last day of the Claims Period of a certificate signed by any officer of Mercury (an “Officer’sCertificate”):

(i) stating that an Indemnified Person has incurred, paid or properly accrued, or reasonably anticipates that it may incur, pay or properlyaccrue, Losses;

(ii) stating the amount of such Losses (which, in the case of Losses not yet incurred, paid or properly accrued, may be the maximum amountin good faith anticipated to be incurred, paid or properly accrued); and

44


(iii) specifying in reasonable detail (based upon the information then possessed by Mercury) the individual items of such Losses included inthe amount so stated and the nature of the claim to which such Losses are related;

subject to and in accordance with the provisions of Sections 7.3, 7.6 and 7.7, Mercury (on behalf of itself or any other Indemnified Person) shall be entitled toreceive, and the Escrow Agent shall deliver to Mercury, out of the Escrow Fund funds comprising the Escrow Fund having a value equal to such Losses;provided, however, that, to the extent that such Losses have not then been incurred or paid by such Indemnified Person, Mercury (on behalf of itself or any otherIndemnified Person) shall not be so entitled to receive, and the Escrow Agent shall not deliver, funds in respect thereof unless and until such Losses are actuallyincurred or paid by such Indemnified Person.

7.6 Objections to Claims. At the time of delivery of any Officer’s Certificate to the Escrow Agent, a duplicate copy of such Officer’s Certificate shall bedelivered to the Stockholders Representative by or on behalf of Mercury (on behalf of itself or any other Indemnified Person) and for a period of thirty days aftersuch delivery to the Escrow Agent of such Officer’s Certificate, the Escrow Agent shall not release any portion of the Escrow Fund in accordance withSection 7.5 unless the Escrow Agent shall have received written authorization from the Stockholders Representative to make such delivery. After the expirationof such thirty−day period, the Escrow Agent shall release all or a portion of the Escrow Fund in accordance with Section 7.5; provided, however, that no suchpayment or delivery may be made if and to the extent the Stockholders Representative shall object in a written statement to any claim or claims made in theOfficer’s Certificate, and such statement shall have been delivered to the Escrow Agent and to Mercury prior to the expiration of such thirty−day period.

7.7 Resolution of Objections to Claims.

(a) If the Stockholders Representative shall so object in writing to any claim or claims by Mercury made in any Officer’s Certificate, Mercury shallhave thirty days after its receipt of such writing to respond in a written statement to the objection of the Stockholders Representative. If after such thirty−dayperiod there remains a dispute as to any claims, the Stockholders Representative and Mercury shall attempt in good faith for twenty days thereafter to agree uponthe rights of the respective parties with respect to each of such claims. If an agreement is reached with respect to such claims, the Stockholders Representativeand Mercury shall each execute a memorandum setting forth their agreement, which shall be furnished to the Escrow Agent. The Escrow Agent shall be entitledto rely on any such memorandum and shall distribute the cash from the Escrow Fund in accordance with the terms thereof.

(b) If no such agreement can be reached after good faith negotiation, the Stockholders Representative and a senior representative of Mercury shallmeet within ten days of the expiration of such twenty−day period and negotiate in good faith for one day with an impartial mediator in San Francisco, California.If an agreement is reached through mediation, the Stockholders Representative and Mercury shall each execute a memorandum setting forth their agreement,which shall be furnished to the Escrow Agent. The Escrow Agent shall be entitled to rely on any such memorandum and shall distribute the cash from the EscrowFund in accordance with the terms thereof. The mediator shall be an individual mutually agreed to by Mercury and the Stockholders Representative.

45


(c) If no agreement can be reached after good faith mediation, the arbitration provisions of Section 8.11 shall be followed and the decision of thearbitrator regarding such claim shall be binding and conclusive upon the parties to this Agreement; provided, however, that any dispute or claim regardingSection 2.8 or in connection with any Systinet Intellectual Property, shall not be subject to the arbitration provisions of Section 8.11 and in lieu thereof suchdisputes shall be resolved as provided in Section 8.12. The Escrow Agent shall be entitled to act in accordance with the decision of such Arbitrator, or in the casethat Section 8.12 applies, in accordance with the final non−appealable decision of the court, and make or withhold payments out of the Escrow Fund inaccordance therewith.

7.8 Third−Party Claims. If Mercury becomes aware of a third−party claim which Mercury believes may result in a claim by or on behalf of anIndemnified Person, Mercury shall promptly notify the Stockholders Representative of such third−party claim, and provide the Stockholders Representative theopportunity to participate at its own cost in any defense of such claim. Mercury shall have the right in its sole discretion to settle any such claim; provided,however, that without the written consent of the Stockholders Representative, no settlement of any such claim with third−party claimants shall be determinativeof the amount of Losses relating to such matter; and further provided, however, that, except for amounts satisfied in full from the Escrow Fund, no IndemnifiedParty shall have the right or authority to settle any such claim with third−party claimants if such settlement would subject any former holder of Systinet CapitalStock, vested but unexercised Systinet Options or Systinet Warrants (excluding any individual who is a then−current or former employee of Mercury or any of itsSubsidiaries, but only in his or her capacity as an employee) to any monetary or non−monetary relief or any criminal or quasi−criminal sanctions, penalties orfines or admit that any former holder of Systinet Capital Stock, vested but unexercised Systinet Options or Systinet Warrants has any liability or responsibilityfor such claim without the written consent of such holder. If the Stockholders Representative consents to any such settlement referred to in the first proviso of thepreceding sentence, neither the Stockholders Representative nor current or former holder of Systinet Capital Stock, vested but unexercised Systinet Options orSystinet Warrants immediately prior to the Effective Time shall have any power or authority to object to the amount or validity of any claim by or on behalf ofany Indemnified Person for indemnity with respect to such settlement. Notwithstanding any other provision of this Agreement, any Losses incurred or sufferedby the Indemnified Persons, directly or indirectly, as a result of such claim, shall constitute Losses subject to indemnities under Section 7.2.

7.9 Stockholders Representative.

(a) At the Effective Time, Warburg Pincus Private Equity VIII, L.P. shall be constituted and appointed as the Stockholders Representative. TheStockholders Representative shall be the exclusive agent for and on behalf of the current or former holder of Systinet Capital Stock, vested but unexercisedSystinet Options or Systinet Warrants immediately prior to the Effective Time to: (i) give and receive notices and communications to or from Mercury (on behalfof itself or any other Indemnified Person) and/or the Escrow Agent relating to this Agreement, the Escrow Agreement or any of the transactions and other matterscontemplated

46


hereby or thereby; (ii) authorize deliveries to Mercury of cash from the Escrow Fund in satisfaction of claims asserted by Mercury (on behalf of itself or anyother Indemnified Person, including by not objecting to such claims); (iii) object to such claims in accordance with Section 7.6; (iv) consent or agree to,negotiate, enter into settlements and compromises of, and demand mediation and arbitration and comply with orders of courts and awards of arbitrators withrespect to, such claims; and (v) take all actions necessary or appropriate in the judgment of the Stockholders Representative for the accomplishment of theforegoing, in each case without having to seek or obtain the consent of any Person under any circumstance. The Stockholders Representative shall be the sole andexclusive means of asserting or addressing any of the above and no current or former holder of Systinet Capital Stock, vested but unexercised Systinet Options orSystinet Warrants immediately prior to the Effective Time shall have any right to act on its own behalf with respect to any such matters, other than any claim ordispute against the Stockholders Representative. The Person serving as the Stockholders Representative may be replaced from time to time by the holders of amajority in interest of the shares or other property then on deposit in the Escrow Fund upon not less than ten days’ prior written notice to Mercury. No bond shallbe required of the Stockholders Representative, and the Stockholders Representative shall receive no compensation for his services. Notices or communicationsto or from the Stockholders Representative shall constitute notice to or from each of the holders of Systinet Capital Stock, Systinet Options and Systinet Warrantsimmediately prior to the Effective Time.

(b) The Stockholders Representative shall not be liable to any holder of Systinet Capital Stock, Systinet Options or Systinet Warrants immediatelyprior to the Effective Time for any act done or omitted hereunder as the Stockholders Representative while acting in good faith and any act done or omitted inaccordance with the advice of counsel or other expert shall be conclusive evidence of such good faith. The holders of Systinet Capital Stock, Systinet Options orSystinet Warrants immediately prior to the Effective Time shall severally indemnify the Stockholders Representative and hold it harmless against any loss,liability or expense incurred without gross negligence or bad faith on the part of the Stockholders Representative and arising out of or in connection with theacceptance or administration of its duties hereunder.

(c) The Stockholders Representative shall have reasonable access to information about Systinet and the reasonable assistance of Systinet’s formerofficers and employees for purposes of performing his duties and exercising its rights hereunder, provided that the Stockholders Representative shall treatconfidentially and not disclose any nonpublic information from or about Systinet to anyone (except on a need to know basis to individuals who agree to treatsuch information confidentially).

7.10 Actions of the Stockholders Representative. Any notice or communication given or received by, and any decision, action, failure to act within adesignated period of time, agreement, consent, settlement, resolution or instruction of, the Stockholders Representative that is within the scope of theStockholders Representative’s authority under Section 7.7(a) shall constitute a notice or communication to or by, or a decision, action, failure to act within adesignated period of time, agreement, consent, settlement, resolution or instruction of all holders of Systinet Capital Stock, Systinet Options and SystinetWarrants immediately prior to the Effective Time and shall be final, binding and conclusive upon each such holder; and each Indemnified Person and the EscrowAgent shall be entitled to rely upon any such notice,

47


communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction as being a notice orcommunication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, eachand every such holder. Except for their gross negligence and willful misconduct, each Indemnified Person and the Escrow Agent are unconditionally andirrevocably relieved from any liability to any person for any acts done by them in accordance with any such notice, communication, decision, action, failure toact within a designated period of time, agreement, consent or instruction of the Stockholders Representative.

7.11 Purchase Price Adjustment. All indemnification payments made under this Agreement shall be treated as adjustments to the Merger Considerationto the extent permitted under applicable law.

ARTICLE 8GENERAL PROVISIONS

8.1 Survival of Representations and Warranties. The representations and warranties made by Systinet in this Agreement or in any other documentrequired to be delivered in accordance with any provision of this Agreement shall survive the Effective Time and remain in full force and effect until the date thatis eighteen months after the Effective Time; provided, however, that the representations and warranties concerning outstanding Systinet Capital Stock, options,warrants and other securities set forth in Section 2.2(a) and (b) shall survive the Effective Time and remain in full force and effect indefinitely; provided, further,that no right to indemnification in accordance with Article 7 in respect of any claim based upon any breach of or inaccuracy in a representation or warranty that isset forth in an Officer’s Certificate delivered to the Escrow Agent prior to the expiration of the Claims Period shall be affected by the expiration of suchrepresentations and warranties as applied to such claim. The representations and warranties made by Mercury in this Agreement or in any other documentsrequired to be delivered to Systinet in accordance with any provision of this Agreement shall terminate at the Effective Time. Nothing in this Section 8.1 or anyother provision of this Agreement shall be construed to limit the survival of any covenant or agreement of the Mercury, Merger Sub, Systinet or the SurvivingCorporation contained in this Agreement or any of the ancillary agreements, which shall survive the Merger and continue for the time periods set forth therein(or, if no time period is set forth therein, for the applicable statute of limitations), other than covenants and agreements of Mercury, Merger Sub or Systinet whichby their terms are to be wholly performed prior to the Effective Time.

8.2 Notices. All notices and other communications hereunder shall be in writing and shall be deemed given if delivered personally or sent via facsimile(with confirmation of receipt) to the parties hereto at the following address (or at such other address for a party as shall be specified by like notice):

48


(i) if to Mercury or Merger Sub, to:

Mercury Interactive Corporation379 North Whisman RoadMountain View, CA 94043Attention: David MurphyFacsimile No.: 650.603.5300Telephone No.: 650.603.5200

with a copy (which shall not constitute notice) to:

Jones Day2882 Sand Hill Road, Suite 240Menlo Park, California 94025Attention: Daniel R. Mitz Stephen E. GilletteFacsimile No.: 650.739.3939Telephone No.: 650.739.3900

(ii) if to Systinet, to:

Systinet CorporationOne Van De Graaff Drive, 5th FloorBurlington, MA 01803Attention: Tom EricksonFacsimile No.: 781.362.1413Telephone No.: 781.362.1313


Goodwin Procter LLPExchange Place53 State StreetBoston, MA 02109Attention: Mark BurnettFacsimile No.: 617.523.1231Telephone No.: 617.570.1031

(iii) if to the Stockholders Representative, to:

Warburg Pincus Private Equity VIII, L.P.466 Lexington Avenue, 10th FloorNew York, NY 10017Attention: Cary J. Davis Scott A. Arenare, Esq.Facsimile No.: 212.878.9200Telephone No.: 212.878.0600

49



Goodwin Procter LLPExchange Place53 State StreetBoston, MA 02109Attention: Mark BurnettFacsimile No.: 617.523.1231Telephone No.: 617.570.1031

And

Willkie Farr & Gallagher LLP787 Seventh AvenueNew York, NY 10019Attention: Steven J. GartnerFacsimile No.: 212.728.8111Telephone No.: 212.728.8000

8.3 Interpretation. When a reference is made in this Agreement to a section or article, such reference shall be to a section or article of this Agreement,unless otherwise clearly indicated to the contrary. Whenever the words “include,” “includes” or “including” are used in this Agreement they shall be deemed tobe followed by the words “without limitation.” The words “hereof,” “herein” and “herewith” and words of similar import shall, unless otherwise stated, beconstrued to refer to this Agreement as a whole and not to any particular provision of this Agreement, and annex, article, section, paragraph, exhibit and schedulereferences are references to the annex, articles, sections, paragraphs, exhibits and schedules of this Agreement, respectively, unless otherwise specified. Theplural of any defined term shall have a meaning correlative to such defined term and words denoting any gender shall include all genders and the neuter. Where aword or phrase is defined herein, each of its other grammatical forms shall have a corresponding meaning. Any reference to a party to this Agreement or anyother agreement or document contemplated hereby shall include such party’s successors and permitted assigns. A reference to any legislation or to any provisionof any legislation shall include any modification, amendment, re−enactment thereof, any legislative provision substituted therefor and all rules, regulations andstatutory instruments issued or related to such legislation. The headings and captions in this Agreement are for reference only and shall not be used in theconstruction or interpretation of this Agreement. The parties have participated jointly in the negotiation and drafting of this Agreement. If any ambiguity orquestion of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arisefavoring or disfavoring any party by virtue of the authorship of any provision of this Agreement. No prior draft of this Agreement nor any course of performanceor course of dealing shall be used in the interpretation or construction of this Agreement. No parole evidence shall be introduced in the construction orinterpretation of this Agreement unless the ambiguity or uncertainty in issue is plainly discernable from a reading of this Agreement without consideration of anyextrinsic evidence. Although the same or similar subject matters may be addressed in different provisions of this Agreement, the parties intend that, except asreasonably apparent on the face of the Agreement or as expressly provided in this Agreement, each such

50


provision shall be read separately, be given independent significance and not be construed as limiting any other provision of this Agreement (whether or not moregeneral or more specific in scope, substance or content). The doctrine of election of remedies shall not apply in constructing or interpreting the remediesprovisions of this Agreement or the equitable power of a court considering this Agreement or the transactions contemplated hereby.

8.4 Definitions.

For purposes of this Agreement:

(a) an “Affiliate,” when used with reference to any Person, means another Person that directly or indirectly, through one or more intermediaries,controls, is controlled by, or is under common control with such first Person;

(b) “Comerica Credit Facility” means that certain credit facility between Comerica Bank and Systinet pursuant to that certain Loan and SecurityAgreement, dated as of June 28, 2005 and as amended on November 30, 2005, and the other documents, agreements, notes and certificates entered into inconnection therewith.

(c) “Contract” means any contract, commitment, agreement or other business arrangement (whether oral or written).

(d) “Deferred Revenue” means the following agreed upon cost of delivery of items included in the deferred revenues reflected on Systinet’s balancesheet as of December 31, 2005 to be included in the calculation of Net Liabilities, where the agreed upon cost of delivering license revenue is 0%, the agreedupon cost of delivering revenue related to maintenance obligations is 20%, and the agreed upon cost of delivering revenue related to service obligations is 80%;for example, if there is $100 of deferred revenue, of which $50 is license revenue, $20 is revenue related to maintenance obligations and $30 is revenue related toservice obligations, the amount of Deferred Revenue would be $28, which is determined by adding 0% of the $50 of license revenue ($0), plus 20% of the $20 ofrevenue related to maintenance obligations (or $4), plus 80% of the $30 of revenue related to service obligations (or $24).

(e) “in the ordinary course of business,” with respect to any action, means such action is:

(i) consistent with the recent past practices of such Person and is taken in the ordinary course of the normal day−to−day operations of suchPerson; and

(ii) not required to be authorized by the board of directors of such Person;

(f) “Intellectual Property” means the rights associated with or arising out of any of the following: (i) domestic and foreign patents and patentapplications, together with all reissuances, divisionals, continuations, continuations−in−part, revisions, renewals, extensions, and reexaminations thereof, and anyidentified invention disclosures (“Patents”); (ii) trade secret rights and corresponding rights in confidential information and other non−public information(whether or not patentable), including ideas, formulas, compositions, inventor’s notes,

51


discoveries and improvements, know−how, manufacturing and production processes and techniques, testing information, research and development information,inventions, invention disclosures, unpatented blueprints, drawings, specifications, designs, plans, proposals and technical data, business and marketing plans,market surveys, market know−how and customer lists and information (“Trade Secrets”); (iii) all copyrights, copyrightable works, rights in databases, datacollections, “moral” rights, mask works, copyright registrations and applications therefor and corresponding rights in works of authorship (“Copyrights”); (iv) alltrademarks, service marks, logos, trade dress and trade names and domain names indicating the source of goods or services, and other indicia of commercialsource or origin (whether registered, common law, statutory or otherwise), all registrations and applications to register the foregoing anywhere in the world andall goodwill associated therewith (“Trademarks”); (v) all computer software and code, including assemblers, applets, compilers, source code, object code,development tools, design tools, user interfaces and data, in any form or format, however fixed (“Software”); (vi) all Internet electronic addresses, uniformresource locators and alphanumeric designations associated therewith and all registrations for any of the foregoing (“Domain Names”); and (vii) any similar,corresponding or equivalent rights to any of the foregoing any where in the world;

(g) any reference to the “knowledge” of Systinet shall mean the actual knowledge on the date hereof and on the Closing Date, as applicable, after thereasonable inquiry within the scope of their respective business responsibilities of Thomas Erickson, Roman Stanek, Radovan Jane ek, George Chamberlain andPeter Davin; provided that in the event that no such inquiry is made by such individual, such individual will be deemed to have the knowledge obtained if suchindividual had made a reasonable inquiry within the scope of such individual’s business responsibilities. Any reference to the “knowledge” of Mercury shallmean the actual knowledge on the date hereof and on the Closing Date, as applicable, after reasonable inquiry within the scope of their responsibilities of theChief Financial Officer and VP, Legal of Mercury; provided that in the event that no such inquiry is made by such individual, such individual will be deemed tohave the knowledge obtained if such individual had made a reasonable inquiry within the scope of such individual’s business responsibilities;

(h) any reference to an event, change, condition or effect being “material” with respect to any Person means any event, change, condition or effectthat is material in relation to the condition (financial or otherwise), properties, assets (including intangible assets), liabilities, business, operations or results ofoperations of such Person and its Subsidiaries, taken as a whole;

(i) a “Material Adverse Effect” with respect to any Person means any effect that is materially adverse in relation to the condition (financial orotherwise), properties, assets, liabilities, business, operations or results of operations of such Person and its Subsidiaries, taken as a whole; provided, however,that none of the following shall be deemed either alone or in combination to constitute, and none of the following shall be taken into account in determiningwhether there has been, or would reasonably be expected to be, a Material Adverse Effect with respect to such Person: (1) any change, event, occurrence or stateof facts relating to the U.S. or global economy, financial markets or political conditions in general or any of the industries in which such Person operates ingeneral, including such changes thereto as are caused by terrorist activities, entry into or material worsening of war or armed hostilities, or other national or

52


international calamity (in each case under this clause (1) to the extent not disproportionately affecting such Person and its Subsidiaries taken as a whole); (2) anychange, event, occurrence or state of facts that directly arises out of or results from the announcement or pendency of this Agreement or any of the transactionscontemplated by this Agreement; (3) any change, event, occurrence or state of facts directly arising out of or resulting from any action taken, or failure to take anaction, by such Person or its Subsidiaries with Mercury’s express written consent or in accordance with the express written instructions of Mercury or asotherwise expressly required or specifically permitted to be taken by such Person or its Subsidiaries pursuant to the terms of this Agreement; (4) the incurrence orpayment of the Systinet Expenses; and (5) any change, event, occurrence or state of facts arising out of any change in GAAP or applicable accountingrequirements or principles which occur or become effective after the date of this Agreement;

(j) “Net Liabilities” means the amount of Systinet’s total liabilities as of December 31, 2005 less the amount of Systinet’s total assets as ofDecember 31, 2005, in each case calculated in accordance with GAAP applied in a manner consistent with accounting principles used in the preparation of theAudited Financial Statements, except that (i) cash received for revenue booked after December 5, 2005 shall be excluded, (ii) accounts receivable for revenuebooked after December 5, 2005 shall be excluded, (iii) Deferred Revenue shall be used in lieu of deferred revenue determined in accordance with GAAP, and(iv) all unpaid Systinet Expenses through the Closing Date shall be accrued and included in Systinet’s total liabilities;

(k) a “Person” means any individual, firm, corporation, partnership, company, limited liability company, division, trust, joint venture, association,Governmental Entity or other entity or organization;

(l) “Registered Intellectual Property” means any Intellectual Property that is the subject of an application, certificate, filing, registration or otherdocument issued, filed with, or recorded by any state, government or other public legal authority, including any of the following: (i) issued Patents and Patentapplications; (ii) Trademark registrations, renewals and applications; (iii) Copyright registrations and applications; and (iv) Domain Name registrations;

(m) “Section 280G Stockholder Approval” means the approval of any agreements, contracts or arrangements that may result, separately or in theaggregate, in the payment of any amount or the provision of any benefit that would not be deductible by reason of Section 280G of the Code by such number ofstockholders of Systinet as is required by the terms of Section 280G in order for such payments and benefits not to be deemed parachute payments underSection 280G of the Code;

(n) a “Subsidiary” of any Person means any other Person in which an amount of voting securities, other voting ownership or voting partnershipinterests sufficient to elect at least 50% of its board of directors or other governing body (or, if there are no such voting interests, 50% or more of the equityinterests of such Person) is owned directly or indirectly by such first Person;

(o) “Systinet Common Stock” means the Common Stock of Systinet par value $0.01 per share;

53


(p) “Systinet Preferred Stock” means, collectively, the Convertible Preferred Stock, the Series A Preferred Stock, the Series B Preferred Stock andthe Series C Preferred Stock;

(q) “Systinet Intellectual Property” means any Intellectual Property that is owned by or exclusively licensed to Systinet or any of its Subsidiaries;

(r) “Systinet Stockholders Written Consent” means a written consent in the form of Exhibit A approving and adopting this Agreement andapproving the Merger; and

(s) a reference to a “third party” in this Agreement shall exclude Mercury, Systinet and Merger Sub and their respective Affiliates.

8.5 Counterparts. This Agreement may be executed in one or more counterparts (whether delivered by facsimile or otherwise), each of which shall beconsidered one and the same instrument and shall become effective when one or more counterparts have been signed by each of the parties hereto and deliveredto the other parties hereto; it being understood that all parties hereto need not sign the same counterpart.

8.6 Entire Agreement; No Third Party Beneficiaries. This Agreement and the documents and instruments and other agreements specifically referred toherein or delivered pursuant hereto, including all the exhibits attached hereto, the Systinet Disclosure Letter and the Mercury Disclosure Letter, (a) constitute theentire agreement among the parties with respect to the subject matter hereof and supersede all prior agreements and understandings, both written and oral, amongthe parties with respect to the subject matter hereof, except for the Confidentiality Agreement, which shall continue in full force and effect, and shall survive anytermination of this Agreement, in accordance with its terms, and (b) are not intended to confer, and shall not be construed as conferring, upon any Person otherthan the parties hereto any rights or remedies hereunder.

8.7 Assignment. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties (whether byoperation of law or otherwise) without the prior written content of the other parties, except that Merger Sub may assign this Agreement of any its respectiverights, interest or obligations hereunder to a direct or indirect, wholly−owned Subsidiary of Mercury without prior written consent of the other parties. Subject tothe preceding sentence, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.

8.8 Severability. Any term or provision of this Agreement that is held by a court of competent jurisdiction or arbitrator to be invalid, void orunenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity orenforceability of the invalid, void or unenforceable term or provision in any other situation or in any other jurisdiction. If the final judgment of such court orarbitrator declares that any term or provision hereof is invalid, void or unenforceable, the parties agree to reduce the scope, duration, area or applicability of theterm or provision, to delete specific words or phrases, or to replace any invalid, void or unenforceable term or provision with a term or provision that is valid andenforceable and that comes closest to expressing the original intention of the invalid or unenforceable term or provision.

54


8.9 Failure or Indulgence Not Waiver; Remedies Cumulative. No failure or delay on the part of either party hereto in the exercise of any righthereunder shall impair such right or be construed to be a waiver of, or acquiescence in, any breach of any representation, warranty or agreement herein, nor shallany single or partial exercise of any such right preclude other or further exercise thereof or of any other right. All rights and remedies existing under thisAgreement are cumulative to, and not exclusive of, any rights or remedies otherwise available.

8.10 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITHTHE LAWS OF THE STATE OF DELAWARE, IRRESPECTIVE OF THE CHOICE OF LAWS PRINCIPLES OF THE STATE OF DELAWARE, AS TOALL MATTERS, INCLUDING MATTERS OF VALIDITY, CONSTRUCTION, EFFECT, ENFORCEABILITY, PERFORMANCE AND REMEDIES.

8.11 Binding Arbitration. Except as provided in Sections 1.8, 7.6, 7.7 and 8.12, all disputes, controversies or claims (whether in contract, tort orotherwise) arising out of, relating to or otherwise by virtue of this Agreement, breach of this Agreement or the transactions contemplated by this Agreementsubsequent to the Effective Time shall be resolved as follows:

(a) Any disputes shall be settled under the applicable rules of arbitration (except as set forth below) of Judicial Arbitration and Mediation Servicesas amended from time to time and as modified in this Section.

(b) The arbitration shall take place in San Francisco, California and shall be the exclusive forum for resolving such disputes, controversies or claims.The arbitrator shall have the power to order hearings and meetings to be held in such place or places as he or she deems in the interests of reducing the total costto the parties of the arbitration.

(c) The arbitration shall be held before a single arbitrator. The arbitrator shall have the power to order equitable remedies. The arbitrator may hearand rule on dispositive motions as part of the arbitration proceeding (e.g. motions for judgment on the pleadings, summary judgment and partial summaryjudgment).

(d) The arbitrator may appoint an expert only with the consent of all of the parties to the arbitration.

(e) The arbitrator’s fees and the administrative expenses of the arbitration shall be paid equally by the parties. Each party to the arbitration shall payits own costs and expenses (including attorney’s fees) in connection with the arbitration.

(f) The award rendered by the arbitrator shall be executory, final and binding on the Parties. The award rendered by the arbitrator may be enteredinto any court having jurisdiction, or application may be made to such court for judicial acceptance of the award and an order of enforcement, as the case may be.Such court proceeding shall disclose only the minimum amount of information concerning the arbitration as is required to obtain such acceptance or order.

55


(g) Except as required by law, neither any party nor the arbitrator may disclose the existence, content or results of an arbitration brought inaccordance with this Agreement.

(h) Notwithstanding the foregoing, any party may apply to any US court or administrative body of competent jurisdiction to obtain a temporaryrestraining order, preliminary injunction, permanent injunction or other injunctive relief to protect its interests, without breach of this Section and without anyabridgment of the powers of the arbitrator set forth above.

(i) Each party to this Agreement hereby agrees that in connection with any such action process may be served in the same manner as notices may bedelivered under Section 8.2 and irrevocably waives any defenses it may have to service in such manner.

(j) The arbitration shall be conducted in accordance with the Federal Rules of Evidence and the Federal Rules of Civil Procedure as applicable in theNorthern District of California (except that where under such rules the court has discretion to waive or extend provisions thereof or deadlines therein, thearbitrator shall not exercise that right without the written consent of Mercury and the Stockholders Representative).

8.12 IP Litigation; Jurisdiction; Venue. Notwithstanding anything to the contrary in this Agreement, the sole jurisdiction, venue and dispute resolutionprocedure for actions related to Losses based upon, arising out of or otherwise by virtue of, in whole or in part, Section 2.8 or Systinet Intellectual Property shallbe the United States District Court for the District of Delaware, and the parties to this Agreement hereby consent to the jurisdiction of such court. Each of theparties agrees that process may be served upon it in the manner specified in Section 8.2 and irrevocably waives and covenants not to assert or plead any objectionwhich it might otherwise have to such jurisdiction and such process.

8.13 WAIVER OF JURY TRIAL. WHETHER IN ACCORDANCE WITH SECTION 8.11 OR 8.12, EACH PARTY HERETO HEREBYIRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ONCONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF ANY PARTY HERETO INTHE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT HEREOF.

8.14 Enforcement. The parties agree that irreparable damage would occur if any of the provisions of this Agreement were not performed in accordancewith their specific terms. Therefore, the parties shall be entitled to specific performance of the terms hereof, this being in addition to any other remedy to whichthey are entitled under this Agreement, at law or in equity.

[Signatures begin on the next page]

56


Each of Mercury, Systinet, Merger Sub and the Stockholders Representative have caused this Agreement to be executed and delivered as of the date firstwritten above.


By: /s/ David J. MurphyName: David J. MurphyTitle: SVP and CFO

SYSTINET CORPORATION

By: /s/ Thomas N. EricksonName: Thomas N. EricksonTitle: President and CEO

SHARK CORPORATION

By: /s/ David J. MurphyName: David J. MurphyTitle: Vice President

WARBURG PINCUS PRIVATE EQUITY VIII, L.P., ASSTOCKHOLDERS REPRESENTATIVE

By: Warburg, Pincus & Co General Partner

By: /s/ Cary DavisName: Cary Davis


AMENDMENT TO AGREEMENT AND PLAN OF MERGER

This AMENDMENT TO AGREEMENT AND PLAN OF MERGER, dated as of January 31, 2006 (this “Amendment”), is by and among MercuryInteractive Corporation, a Delaware corporation (“Mercury”), Systinet Corporation, a Delaware corporation (“Systinet”), Shark Corporation, a Delawarecorporation and a wholly owned subsidiary of Mercury (“Merger Sub”), and Warburg Pincus Private Equity VIII, L.P., as a representative of Systinet’sstockholders (the “Stockholders Representative”).

BACKGROUND

A. Mercury, Systinet, Merger Sub and the Stockholders Representative have entered into the Agreement and Plan of Merger, dated as of January 8, 2006(“Merger Agreement”), pursuant to which the Company will become a wholly owned subsidiary of Mercury;

B. Systinet, Mercury and the Stockholder Representative desire to amend the Merger Agreement to increase the Escrow Fund (as defined in the MergerAgreement) and to provide for certain other changes to the Merger Agreement.

AGREEMENT

The parties to this Amendment, intending to be legally bound, agree as follows:

1. Certain Definitions. Capitalized terms not otherwise defined herein have the respective meanings given to them in the Merger Agreement.

2. Escrow Fund. The amount of the Escrow Fund shall be increased by $600,000 to $11,350,000. At the Closing, notwithstanding anything to the contraryin Section 1.4(d) of the Merger Agreement, Mercury shall deliver $11,350,000 (the amount of the increased Escrow Fund) to the Escrow Agent as contemplatedby clause (x) of the second sentence of Section 1.4(d) of the Merger Agent.

3. Certain Disclosure Matters. (a) Schedule 2.2(a) which constitutes a part of Section 2.2 of the Systinet Disclosure Letter be and is herebyreplaced in its entirety by Schedule 2.2(a) to this Amendment.

(b) Schedule 5.3(g) to the Merger Agreement be and is hereby replaced in its entirety by Schedule 5.3(g) to this Amendment.

4. Other Provisions Confirmed. Except as otherwise specifically set forth in this Amendment or in another instrument entered into by the undersigned,the parties hereby ratify and affirm all of the terms and provisions of the Merger Agreement, which shall remain in full force and effect.

5. Counterparts. This Amendment may be executed in one or more counterparts (whether delivered by facsimile or otherwise), each of which shall beconsidered one and the


Amendment to Agreement and Plan of Merger – Page 3

same instrument and shall become effective when one or more counterparts have been signed by each of the parties hereto and delivered to the other partieshereto; it being understood that all parties hereto need not sign the same counterpart.

6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITHTHE LAWS OF THE STATE OF DELAWARE, IRRESPECTIVE OF THE CHOICE OF LAWS PRINCIPLES OF THE STATE OF DELAWARE, AS TOALL MATTERS, INCLUDING MATTERS OF VALIDITY, CONSTRUCTION, EFFECT, ENFORCEABILITY, PERFORMANCE AND REMEDIES.

[Signatures begin on the next page]


Each of Mercury, Systinet, Merger Sub and the Stockholders Representative have caused this Amendment to be executed and delivered as of the date firstwritten above.


By: /s/ David J. MurphyName: David J. MurphyTitle: SVP and CFO

SYSTINET CORPORATION

By: /s/ G. A. ChamberlainName: G. A. ChamberlainTitle: CFO

SHARK CORPORATION

By: /s/ David J. MurphyName: David J. MurphyTitle: VP and Secretary

WARBURG PINCUS PRIVATE EQUITY VIII, L.P., ASSTOCKHOLDERS REPRESENTATIVE

By: Warburg, Pincus & Co.General Partner

By: /s/ Cary DavisName: Cary Davis


Exhibit 10.35

Systinet Corporation

2001 Stock Option and Incentive Plan

1. Purpose and Eligibility

The purpose of this 2001 Stock Option and Incentive Plan (the “Plan”) of Systinet Corporation (the “Company”) is to provide stock options and otherequity interests in the Company (each an “Award”) to employees, officers, directors, consultants and advisors of the Company and its Subsidiaries, all of whomare eligible to receive Awards under the Plan. Any person to whom an Award has been granted under the Plan is called a “Participant”. Additional definitions arecontained in Section 8.

2. Administration

a. Administration by Board of Directors. The Plan will be administered by the Board of Directors of the Company (the “Board”). The Board, in its solediscretion, shall have the authority to grant and amend Awards, to adopt, amend and repeal rules relating to the Plan and to interpret and correct the provisions ofthe Plan and any Award. All decisions by the Board shall be final and binding on all interested persons. Neither the Company nor any member of the Board shallbe liable for any action or determination relating to the Plan.

b. Appointment of Committees. To the extent permitted by applicable law, the Board may delegate any or all of its powers under the Plan to one or morecommittees or subcommittees of the Board (a “Committee”). All references in the Plan to the “Board” shall mean such Committee or the Board.

c. Delegation to Executive Officers. To the extent permitted by applicable law, the Board may delegate to one or more executive officers of the Companythe power to grant Awards and exercise such other powers under the Plan as the Board may determine, provided that the Board shall fix the maximum number ofAwards to be granted and the maximum number of shares issuable to any one Participant pursuant to Awards granted by such executive officers.

3. Stock Available for Awards

a. Number of Shares. Subject to adjustment under Section 3(c), the aggregate number of shares of Common Stock of the Company (the “Common Stock”)that may be issued pursuant to the Plan is 42,800,000 shares. If any Award expires, or is terminated, surrendered or forfeited, in whole or in part, the unissuedCommon Stock covered by such Award shall again be available for the grant of Awards under the Plan. If shares of Common Stock issued pursuant to the Planare repurchased by, or are surrendered or forfeited to, the Company at no more than cost, such shares of Common Stock shall again be available for the grant ofAwards under the Plan; provided, however, that the cumulative number of


such shares that may be so reissued under the Plan will not exceed 42,800,000 shares. Shares issued under the Plan may consist in whole or in part of authorizedbut unissued shares or treasury shares.

b. Per−Participant Limit. Subject to adjustment under Section 3(c), no Participant may be granted Awards during any one fiscal year to purchase more than2,000,000 shares of Common Stock.

c. Adjustment to Common Stock. In the event of any stock split, stock dividend, extraordinary cash dividend, recapitalization, reorganization, merger,consolidation, combination, exchange of shares, liquidation, spin−off, split−up, or other similar change in capitalization or event, (i) the number and class ofsecurities available for Awards under the Plan and the per−Participant share limit, (ii) the number and class of securities, vesting schedule and exercise price pershare subject to each outstanding Option, (iii) the repurchase price per security subject to repurchase, and (iv) the terms of each other outstanding stock−basedAward shall be adjusted by the Company (or substituted Awards may be made) to the extent the Board shall determine, in good faith, that such an adjustment (orsubstitution) is appropriate. If Section 7(e)(i) applies for any event, this Section 3(c) shall not be applicable.

4. Stock Options

a. General. The Board may grant options to purchase Common Stock (each, an “Option”) and determine the number of shares of Common Stock to becovered by each Option, the exercise price of each Option and the conditions and limitations applicable to the exercise of each Option and the Common Stockissued upon the exercise of each Option, including vesting provisions, repurchase provisions and restrictions relating to applicable federal or state securities laws,as it considers advisable.

b. Incentive Stock Options. An Option that the Board intends to be an “incentive stock option” as defined in Section 422 of the Code (an “Incentive StockOption”) shall be granted only to employees of the Company and shall be subject to and shall be construed consistently with the requirements of Section 422 ofthe Code. The Board and the Company shall have no liability if an Option or any part thereof that is intended to be an Incentive Stock Option does not qualify assuch. An Option or any part thereof that does not qualify as an Incentive Stock Option is referred to herein as a “Nonstatutory Stock Option.”

c. Exercise Price. The Board shall establish the exercise price (or determine the method by which the exercise price shall be determined) at the time eachOption is granted and specify it in the applicable option agreement.

d. Duration of Options. Each Option shall be exercisable at such times and subject to such terms and conditions as the Board may specify in the applicableoption agreement.


e. Exercise of Option. Options may be exercised only by delivery to the Company of a written notice of exercise signed by the proper person together withpayment in full as specified in Section 4(f) for the number of shares for which the Option is exercised.

f. Payment Upon Exercise. Common Stock purchased upon the exercise of an Option shall be paid for by one or any combination of the following forms ofpayment:

(i) by check payable to the order of the Company;

(ii) except as otherwise explicitly provided in the applicable option agreement, and only if the Common Stock is then publicly traded, delivery of anirrevocable and unconditional undertaking by a creditworthy broker to deliver promptly to the Company sufficient funds to pay the exercise price, or delivery bythe Participant to the Company of a copy of irrevocable and unconditional instructions to a creditworthy broker to deliver promptly to the Company cash or acheck sufficient to pay the exercise price; or

(iii) to the extent explicitly provided in the applicable option agreement, by (x) delivery of shares of Common Stock owned by the Participant valuedat fair market value (as determined by the Board or as determined pursuant to the applicable option agreement), (y) delivery of a promissory note of theParticipant to the Company (and delivery to the Company by the Participant of a check in an amount equal to the par value of the shares purchased), or(z) payment of such other lawful consideration as the Board may determine.

5. Restricted Stock

a. Grants. The Board may grant Awards entitling recipients to acquire shares of Common Stock, subject to (i) delivery to the Company by the Participantof a check in an amount at least equal to the par value of the shares purchased, and (ii) the right of the Company to repurchase all or part of such shares at theirissue price or other stated or formula price from the Participant in the event that conditions specified by the Board in the applicable Award are not satisfied priorto the end of the applicable restriction period or periods established by the Board for such Award (each, a “Restricted Stock Award”).

b. Terms and Conditions. The Board shall determine the terms and conditions of any such Restricted Stock Award. Any stock certificates issued in respectof a Restricted Stock Award shall be registered in the name of the Participant and, unless otherwise determined by the Board, deposited by the Participant,together with a stock power endorsed in blank, with the Company (or its designee). After the expiration of the applicable restriction periods, the Company (orsuch designee) shall deliver the certificates no longer subject to


such restrictions to the Participant or, if the Participant has died, to the beneficiary designated by a Participant, in a manner determined by the Board, to receiveamounts due or exercise rights of the Participant in the event of the Participant’s death (the “Designated Beneficiary”). In the absence of an effective designationby a Participant, Designated Beneficiary shall mean the Participant’s estate.

6. Other Stock−Based Awards

The Board shall have the right to grant other Awards based upon the Common Stock having such terms and conditions as the Board may determine,including, without limitation, the grant of shares based upon certain conditions, the grant of securities convertible into Common Stock and the grant of stockappreciation rights, phantom stock awards or stock units.

7. General Provisions Applicable to Awards

a. Transferability of Awards. Except as the Board may otherwise determine or provide in an Award, Awards shall not be sold, assigned, transferred,pledged or otherwise encumbered by the person to whom they are granted, either voluntarily or by operation of law, except by will or the laws of descent anddistribution, and, during the life of the Participant, shall be exercisable only by the Participant. References to a Participant, to the extent relevant in the context,shall include references to authorized transferees.

b. Documentation. Each Award under the Plan shall be evidenced by a written instrument in such form as the Board shall determine or as executed by anofficer of the Company pursuant to authority delegated by the Board. Each Award may contain terms and conditions in addition to those set forth in the Planprovided that such terms and conditions do not contravene the provisions of the Plan.

c. Board Discretion. The terms of each type of Award need not be identical, and the Board need not treat Participants uniformly. d. Termination of Status.The Board shall determine the effect on an Award of the disability, death, retirement, authorized leave of absence or other change in the employment or otherstatus of a Participant and the extent to which, and the period during which, the Participant, or the Participant’s legal representative, conservator, guardian orDesignated Beneficiary, may exercise rights under the Award.

e. Acquisition of the Company

(i) Consequences of an Acquisition.

(A) Disposition of Awards. Unless otherwise expressly provided in the applicable Option or Award, upon the occurrence of an


Acquisition the Board or the board of directors of the surviving or acquiring entity (as used in this Section 7(e)(i)(A), also the “Board”), shall, as to outstandingAwards (on the same basis or on different bases, as the Board shall specify):

(1) make appropriate provision for the continuation of such Awards by the Company or the assumption of such Awards by the surviving or acquiringentity and by substituting on an equitable basis for the shares then subject to such Awards either (a) the consideration payable with respect to the outstandingshares of Common Stock in connection with the Acquisition, (b) shares of stock of the surviving or acquiring corporation or (c) such other securities as the Boarddeems appropriate, the fair market value of which (as determined by the Board in its sole discretion) shall not materially differ from the fair market value of theshares of Common Stock subject to such Awards immediately preceding the Acquisition;

(2) upon written notice to the affected optionees, provide that all Options then outstanding shall become fully exercisable and must be exercised within aspecified number of days of the date of such notice, at the end of which period such Options shall terminate; or

(3) upon written notice to the affected optionees, provide that all Options then outstanding shall be terminated in exchange for a cash payment equal to the excessof the fair market value (as determined by the Board in its sole discretion) of the shares subject to such Options over the exercise price thereof.

(B) Acquisition Defined. “Acquisition” means: (x) a merger, consolidation or other reorganization of the outstanding voting securities of theCompany in which the holders of the outstanding voting securities of the Company immediately prior to the consummation of such event, shall, immediatelyfollowing such event, hold, as a group, less than a majority of the outstanding voting securities of the surviving or successor entity; (y) an acquisition (other thanby merger or consolidation) of more than 50% of the outstanding voting securities of the Company in one or a series of related transactions by any person orgroup that beneficially owned less than 20% of the voting securities of the Company prior to such acquisition; or (z) a sale, lease, transfer or other disposition(other than by merger or consolidation) of all or substantially all of the assets of the Company (other than in a spin−off or similar transaction to the Company’sexisting voting securityholders).

(ii) Assumption of Options Upon Certain Events. In connection with a merger or consolidation of an entity with the Company or the acquisition bythe Company of property or stock of an entity, the Board may grant Awards under the Plan in substitution for stock and stock−based awards issued by such entityor an affiliate thereof. The substitute Awards shall be granted on such terms and conditions as the Board considers appropriate in the circumstances.


(iii) Pooling−of Interests−Accounting. If the Company proposes to engage in an Acquisition intended to be accounted for as a pooling−of−interests,and in the event that the provisions of this Plan or of any Award hereunder, or any actions of the Board taken in connection with such Acquisition, aredetermined by the Company’s or the acquiring company’s independent public accountants to cause such Acquisition to fail to be accounted for as apooling−of−interests, then such provisions or actions shall be amended or rescinded by the Board, without the consent of any Participant, to be consistent withpooling−of−interests accounting treatment for such Acquisition.

(iv) Parachute Awards. If, in connection with an Acquisition, a tax under Section 4999 of the Code would be imposed on the Participant (aftertaking into account the exceptions set forth in Sections 280G(b)(4) and 280G(b)(5) of the Code), then the number of Awards which shall become exercisable,realizable or vested as provided in such section shall be reduced (or delayed), to the minimum extent necessary, so that no such tax would be imposed on theParticipant (the Awards not becoming so accelerated, realizable or vested, the “Parachute Awards”).

f. Withholding. Each Participant shall pay to the Company, or make provisions satisfactory to the Company for payment of, any taxes required by law tobe withheld in connection with Awards to such Participant no later than the date of the event creating the tax liability. The Board may allow Participants tosatisfy such tax obligations in whole or in part by transferring shares of Common Stock, including shares retained from the Award creating the tax obligation,valued at their fair market value (as determined by the Board or as determined pursuant to the applicable option agreement). The Company may, to the extentpermitted by law, deduct any such tax obligations from any payment of any kind otherwise due to a Participant.

g. Amendment of Awards. The Board may amend, modify or terminate any outstanding Award including, but not limited to, substituting therefor anotherAward of the same or a different type, changing the date of exercise or realization, and converting an Incentive Stock Option to a Nonstatutory Stock Option,provided that, except as otherwise provided in Section 7(e)(iii), the Participant’s consent to such action shall be required unless the Board determines that theaction, taking into account any related action, would not materially and adversely affect the Participant.

h. Conditions on Delivery of Stock. The Company will not be obligated to deliver any shares of Common Stock pursuant to the Plan or to removerestrictions from shares previously delivered under the Plan until (i) all conditions of the Award have been met or removed to the satisfaction of the Company,(ii) in the opinion of the Company’s counsel, all other legal matters in connection with the issuance and delivery of such shares have been satisfied, including anyapplicable securities laws and any applicable stock exchange or stock market rules and regulations, and (iii) the Participant has executed and


delivered to the Company such representations or agreements as the Company may consider appropriate to satisfy the requirements of any applicable laws, rulesor regulations.

i. Acceleration. The Board may at any time provide that any Options shall become immediately exercisable in full or in part, that any Restricted StockAwards shall be free of some or all restrictions, or that any other stock−based Awards may become exercisable in full or in part or free of some or all restrictionsor conditions, or otherwise realizable in full or in part, as the case may be, despite the fact that the foregoing actions may (i) cause the application of Sections280G and 4999 of the Code if a change in control of the Company occurs, or (ii) disqualify all or part of the Option as an Incentive Stock Option. In the event ofthe acceleration of the exercisability of one or more outstanding Options, the Board may provide, as a condition of full exercisability or any or all such Options,that the Common Stock as to which exercisability has been accelerated shall be restricted stock subject to forfeiture and repurchase at the option of the Companyat the cost thereof upon termination of employment or other relationship, with the timing and other terms of the vesting of such restricted stock being equivalentto the timing and other terms of the superseded exercise schedule of the related Option.

8. Miscellaneous

a. Definitions.

(i) “Company,” for purposes of eligibility under the Plan, shall include any present or future subsidiary corporations of Systinet Corporation, asdefined in Section 424(f) of the Code (a “Subsidiary”), and any present or future parent corporation of Systinet Corporation, as defined in Section 424(e) of theCode. For purposes of Awards other than Incentive Stock Options, the term “Company” shall include any other business venture in which the Company has adirect or indirect significant interest, as determined by the Board in its sole discretion.

(ii) “Code” means the Internal Revenue Code of 1986, as amended, and any regulations promulgated thereunder.

(iii) “employee” for purposes of eligibility under the Plan (but not for purposes of Section 4(b)) shall include a person to whom an offer ofemployment has been extended by the Company.

b. No Right To Employment or Other Status. No person shall have any claim or right to be granted an Award, and the grant of an Award shall not beconstrued as giving a Participant the right to continued employment or any other relationship with the Company. The Company expressly reserves the right atany time to dismiss or otherwise terminate its relationship with a Participant free from any liability or claim under the Plan.


c. No Rights As Stockholder. Subject to the provisions of the applicable Award, no Participant or Designated Beneficiary shall have any rights as astockholder with respect to any shares of Common Stock to be distributed with respect to an Award until becoming the record holder thereof.

d. Effective Date and Term of Plan. The Plan shall become effective on the date on which it is adopted by the Board. No Awards shall be granted under thePlan after the completion of ten years from the date on which the Plan was adopted by the Board, but Awards previously granted may extend beyond that date.

e. Amendment of Plan. The Board may amend, suspend or terminate the Plan or any portion thereof at any time.

f. Governing Law. The provisions of the Plan and all Awards made hereunder shall be governed by and interpreted in accordance with the laws of theCommonwealth of Massachusetts, without regard to any applicable conflicts of law.


EXHIBIT 21.1

SUBSIDIARIES OF MERCURY INTERACTIVE CORPORATION

Subsidiary Legal NameJURISDICTION OFINCORPORATION

Mercury Interactive Austria GesmbH Austria

Mercury Interactive Brasil Ltda.1

Brazil

Mercury Interactive Canada, Inc. Canada

Mercury Interactive A/S Denmark

Mercury Interactive Oy Finland

Mercury Interactive France2

France

Mercury Interactive (Hong Kong) Ltd.3

Hong Kong

Mercury Interactive (HK) Ltd. Beijing Beijing

Mercury Interactive Sales and Service India Private Limited4

India

Mercury Interactive (Israel) Ltd. Israel

Mercury Interactive (Australia) Pty. Limited5

Australia

Mercury Interactive S.r.L (Italy)6

Italy

Mercury Interactive Japan KK Japan

Mercury Interactive Luxembourg SA7

Luxembourg

Mercury Interactive Mexico S. de R.L. de C.V.8

Mexico

Mercury Interactive (Europe) B.V. Netherlands

Mercury Interactive GmbH Germany

Mercury Interactive (UK) Limited UK

Mercury Interactive B.V. Netherlands

Mercury Interactive Poland Sp z oo Poland

Mercury Interactive (Singapore) Pte. Ltd. Singapore

Mercury Interactive (Shanghai) Company Ltd. China

Mercury Interactive India Liaison Office India

Mercury Interactive SA (Pty) Limited South Africa

Mercury Interactive (Korea) Co. Ltd. South Korea

Mercury Interactive, S.L. Unipersonal Spain

Mercury Interactive Nordic AB Sweden

Mercury Interactive (Switzerland) GmbH Switzerland

Mercury Interactive Freshwater, Inc. Delaware

Mercury Interactive Government Solutions, Inc. Delaware

Mercury Interactive Partners LLC Delaware

Mercury Interactive Ventures LP9

Delaware

Double B Acquisition Corp. Delaware

ClickCadence, LLC Pennsylvania

Kanga Acquisition LLC Delaware

Kintana SARL France

Kintana GmbH Germany

Kintana Limited UK


SUBSIDIARY LEGAL NAMEJURISDICTION OFINCORPORATION

Performant, Inc. Delaware

Systinet Corporation Delaware

Systinet S.R.O. Czechoslovakia

Systinet SAS France

Systinet Nederland B.V. Netherlands

Tefensoft Inc. Delaware

Tefensoft Ltd. Israel

(1) 99% interest owned by Mercury Interactive Corporation and 1% interest owned by Mercury Interactive Canada, Inc.(2) 81% interest owned by Mercury Interactive Corporation and 19% interest owned by Mercury Interactive (Europe) B.V.(3) 99% interest owned by Mercury Interactive Corporation and 1% interest owned by Mercury Interactive B.V.(4) 99% interest owned by Mercury Interactive Corporation and 1% interest owned by Mercury Interactive (Singapore) Pte. Ltd.(5) 50% interest owned by Mercury Interactive Corporation and 50% interest owned by Mercury Interactive (Israel) Limited(6) 95% interest owned by Mercury Interactive Corporation and 5% interest owned by Mercury Interactive B.V.(7) 75% interest owned by Mercury Interactive Corporation and 25% interest owned by Mercury Interactive B.V.(8) 99% interest owned by Mercury Interactive Corporation and 1% interest owned by Mercury Interactive Freshwater, Inc.(9) 99% interested owned by limited partner Mercury Interactive Corporation and 1% interest owned by general partner Mercury Interactive Partners LLC


Exhibit 31.1

CERTIFICATION OF CEO PURSUANT TO SECURITIES EXCHANGE ACTRULES 13A − 14 AND 15D − 14 AS ADOPTED

PURSUANT TO SECTION 302 OF THE SARBANES−OXLEY ACT OF 2002

I, Anthony Zingale, certify that:

1. I have reviewed this annual report on Form 10−K of Mercury Interactive Corporation;

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make thestatements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects thefinancial condition, results of operations and cash flows of the company as of, and for, the periods presented in this report;

4. The company’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined inExchange Act Rules 13a−15(e) and 15d−15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a−15(f) and 15d−15(f)) for thecompany and have:

(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, toensure that material information relating to the company, including its consolidated subsidiaries, is made known to us by others within those entities,particularly during the period in which this report is being prepared;

(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under oursupervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for externalpurposes in accordance with generally accepted accounting principles;

(c) Evaluated the effectiveness of the company’s disclosure controls and procedures and presented in this report our conclusions about theeffectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

(d) Disclosed in this report any change in the company’s internal control over financial reporting that occurred during the company’s most recentfiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect,the company’s internal control over financial reporting; and

5. The company’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to thecompany’s auditors and the audit committee of the company’s board of directors (or persons performing the equivalent functions):

(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonablylikely to adversely affect the company’s ability to record, process, summarize and report financial information; and

(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal controlover financial reporting.

Date: October 5, 2006

/S/ ANTHONY ZINGALE

Anthony ZingaleChief Executive Officer


Exhibit 31.2

CERTIFICATION OF CFO PURSUANT TO SECURITIES EXCHANGE ACTRULES 13A − 14 AND 15D − 14 AS ADOPTED

PURSUANT TO SECTION 302 OF THE SARBANES−OXLEY ACT OF 2002

I, David J. Murphy, certify that:

1. I have reviewed this annual report on Form 10−K of Mercury Interactive Corporation;

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make thestatements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects thefinancial condition, results of operations and cash flows of the company as of, and for, the periods presented in this report;

4. The company’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined inExchange Act Rules 13a−15(e) and 15d−15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a−15(f) and 15d−15(f)) for thecompany and have:

(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, toensure that material information relating to the company, including its consolidated subsidiaries, is made known to us by others within those entities,particularly during the period in which this report is being prepared;

(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under oursupervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for externalpurposes in accordance with generally accepted accounting principles;

(c) Evaluated the effectiveness of the company’s disclosure controls and procedures and presented in this report our conclusions about theeffectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

(d) Disclosed in this report any change in the company’s internal control over financial reporting that occurred during the company’s most recentfiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect,the company’s internal control over financial reporting; and

5. The company’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to thecompany’s auditors and the audit committee of the company’s board of directors (or persons performing the equivalent functions):

(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonablylikely to adversely affect the company’s ability to record, process, summarize and report financial information; and

(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal controlover financial reporting.


/S/ DAVID J. MURPHY



Exhibit 32.1

CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350,AS ADOPTED PURSUANT TO

SECTION 906 OF THE SARBANES−OXLEY ACT OF 2002

The certification set forth below is being submitted in connection with this annual report on Form 10−K of Mercury Interactive Corporation (the Report)for the purpose of complying with Rule 13a−14(b) or Rule 15d−14(b) of the Securities Exchange Act of 1934 (the Exchange Act) and Section 1350 of Chapter63 of Title 18 of the United States Code.

I, Anthony Zingale, Chief Executive Officer of Mercury Interactive Corporation, certify that, to the best of my knowledge:

(1) the Report fully complies with the requirements of Section 13(a) or 15(d) of the Exchange Act; and

(2) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of MercuryInteractive Corporation.


/S/ ANTHONY ZINGALE

Anthony ZingaleChief Executive Officer


Exhibit 32.2

CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350,AS ADOPTED PURSUANT TO

SECTION 906 OF THE SARBANES−OXLEY ACT OF 2002

The certification set forth below is being submitted in connection with this annual report on Form 10−K/A of Mercury Interactive Corporation (the Report)for the purpose of complying with Rule 13a−14(b) or Rule 15d−14(b) of the Securities Exchange Act of 1934 (the Exchange Act) and Section 1350 of Chapter63 of Title 18 of the United States Code.

I, David J. Murphy, Chief Financial Officer of Mercury Interactive Corporation, certify that, to the best of my knowledge:

(1) the Report fully complies with the requirements of Section 13(a) or 15(d) of the Exchange Act; and

(2) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of MercuryInteractive Corporation.


/S/ DAVID J. MURPHY


_______________________________________________Created by 10KWizard www.10KWizard.com


http://www.10KWizard.com

form 10−k - annual report

Documents