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authorizing the issuance of shares of undesignated preferred stock without a vote of stockholders;
a prohibition on stockholder action by written consent; and
limitations on stockholders' ability to call special stockholder meetings.
In addition, we have an agreement with America Online that provides them the right of first negotiation in the event that we receive an
unsolicited proposal from a third party regarding a sale, merger or other disposition of our assets that would result in a change of control. If we
receive this type of proposal, America Online will have the first opportunity to negotiate with us regarding a disposition. This agreement could
make us less attractive to a potential acquiror.
Technological Risks Related to Our Business
Our systems could fail or become unavailable, which would harm our reputation, result in a loss of current and potential customers
and could cause us to breach existing agreements.
Our success depends, in part, on the performance, reliability and availability of our services. We have data centers in Bellevue,
Washington; Papendrecht, The Netherlands; and Rio de Janeiro, Brazil. None of our data centers are currently redundant. Our systems and
operations could be damaged or interrupted by fire, flood, power loss, telecommunications failure, Internet breakdown, break in, earthquake
and similar events. We would face significant damage as a result of these events because we do not have a formal disaster recovery plan, and
we do not carry business interruption insurance that is adequate to compensate us for all the losses that may occur. In addition, our systems use
sophisticated software which may contain bugs that could interrupt service. For these reasons we may be unable to develop or successfully
manage the infrastructure necessary to meet current or future demands for reliability and scalability of our systems.
If the volume of traffic on our Web sites or our customers' Web sites increases substantially, we must respond in a timely fashion by
expanding and upgrading our technology, transaction processing systems and network infrastructure. Due to the expansion in the number of
our customers and the products and application services that we offer, we could experience periodic capacity constraints which may cause
temporary unanticipated system disruptions, slower response times and lower levels of customer service. Our business could be harmed if we
are unable to accurately project the rate or timing of increases, if any, in the use of our products and application services or expand and upgrade
our systems and infrastructure to accommodate these increases in a timely manner.
Furthermore, we have entered into service level agreements with certain merchant services distributors, including merchant banks, portal
sites and most of our wireless customers. These agreements call for system up times and 24/7 support, and include penalties for non
performance. We may be unable to fulfill these commitments, which could subject us to penalties under our agreements, harm our reputation
and result in the loss of customers and distributors.
We rely heavily on our technology, but we may be unable to adequately protect or enforce our intellectual property rights thus
weakening our competitive position and negatively impacting our financial results.
Our success significantly depends upon our patented and patent pending technology. In particular, we believe that our core technology
platform provides us with a significant competitive advantage because it is protocol and device agnostic, enabling us to provide our services
through a variety of platforms, formats and devices. We have achieved and are able to maintain our current competitive position due to the
unique nature of our technology.
To protect our rights, we rely on a combination of copyright and trademark laws, patents, trade secrets, confidentiality agreements with
employees and third parties and protective contractual provisions. Despite our efforts to protect our proprietary rights, unauthorized parties may
copy aspects of our products or services or