UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K/A
(Amendment No. 1)
| FOR ANNUAL AND TRANSITION REPORTS PURSUANT TO SECTIONS 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 | |
| (Mark one) | |
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ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the Year Ended December 31, 2003 |
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OR |
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TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the transition period from to |
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Commission File Number 0-28252
BROADVISION, INC.
(Exact Name of Registrant as Specified in its Charter)
| Delaware (State or Other Jurisdiction of Incorporation or Organization) |
94-3184303 (I.R.S. Employer Identification No.) |
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585 Broadway, Redwood City, California (Address of principal executive offices) |
94063 (Zip Code) |
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(650) 542-5100 (Registrant's telephone number, including area code) |
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Securities registered pursuant to Section 12(b) of the Act: None |
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Securities registered pursuant to Section 12(g) of the Act: Common Stock, $.0001 par value (Title of Class) |
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Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes ý No o
Indicate by check mark if the disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of the registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. ý
Indicate by check mark whether the registrant is an accelerated filer (as defined in Exchange Act Rule 12b-2). Yes ý No o
As of June 30, 2003, based on the closing sales price as quoted by the Nasdaq, 32,845,905 shares of Common Stock, having an aggregate market value of approximately $182.0 million were held by non-affiliates. For purposes of the above statement only, all directors and executive officers of the registrants are assumed to be affiliates.
As of March 5, 2004, the registrant had 33,347,140 shares of common stock outstanding.
DOCUMENTS INCORPORATED BY REFERENCE
Parts of the Proxy Statement for Registrant's 2004 Annual Meeting of Stockholders to be held June 11, 2004 are incorporated by reference to Part III of this Form 10-K Report.
BROADVISION, INC.
ANNUAL REPORT ON FORM 10-K/A
YEAR ENDED DECEMBER 31, 2003
| Part II | ||||
| Item 9A. | Controls and Procedures | 4 | ||
| Part IV | ||||
| Item 15. | Exhibits, Financial Statement Schedules, and Reports on Form 8-K | 4 | ||
| SIGNATURES | 6 | |||
BroadVision®, Broad Vision One-to-One®, iGuide® and Interleaf® are trademarks and registered trademarks of BroadVision in the United States of America and other countries and BroadVision Process™, Click-to-Create™, Commerce™, Enterprise™, Command Center™, Portal™, One-to-One Content™, Publishing Center™, Deployment Center™, Integration Services™, Multi-Touchpoint Services™, QuickSilver™ and LiveCycle™, are trademarks of BroadVision.
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This Amendment No. 1 to our Annual Report on Form 10-K/A (this "Amendment") amends our Annual Report on Form 10-K for the year ended December 31, 2003 filed on March 15, 2004 (the "Initial Filing"). We have filed this Amendment to amend Item 9A of Part II. No other information contained in the Initial Filing, including our financial statements and the notes thereto, has been modified or updated in any way.
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ITEM 9A. CONTROLS AND PROCEDURES
Our Chief Executive Officer and our Chief Financial Officer are responsible for establishing and maintaining "disclosure controls and procedures" (as defined in the rules promulgated under the Securities Exchange Act of 1934, as amended) for our company. Based on their evaluation of our disclosure controls and procedures (as defined in the rules promulgated under the Securities Exchange Act of 1934), our Chief Executive Officer and our Chief Financial Officer concluded that our disclosure controls and procedures were effective as of December 31, 2003, the end of the period covered by this report.
Changes in Internal Control Over Financial Reporting
As reported in our quarterly report on Form 10-Q for the third quarter ended September 30, 2003, during the fourth quarter ended December 31, 2003 we implemented the following changes to our internal control over financial reporting:
These additional procedures were implemented, in part, due to a material weakness letter we received from our independent accountants in October 2003. Management believes the new controls address the key issues raised in the material weakness letter. We will continue to monitor the effectiveness of our internal controls and procedures on an ongoing basis and will take further action, as appropriate.
Limitations on the Effectiveness of Controls
Our management, including our Chief Executive Officer and Chief Financial Officer, does not expect that our disclosure controls and procedures or our internal controls will prevent all error and fraud. A control system, no matter how well conceived and operated, can provide only reasonable, not absolute, assurance that the objectives of the control system are met. Further, the design of a control system must reflect the fact that there are resource constraints, and the benefits of controls must be considered relative to their costs. Because of the inherent limitations in all control systems, no evaluation of controls can provide absolute assurance that all control issues and instances of fraud, if any, within the company have been detected. These inherent limitations include the realities that judgments in decision-making can be faulty, and that breakdowns can occur because of simple error or mistake. Additionally, controls can be circumvented by the individual acts of some persons, by collusion of two or more people, or by management override of the controls. The design of any system of controls also is based in part upon certain assumptions about the likelihood of future events, and there can be no assurance that any design will succeed in achieving its stated goals under all potential future conditions; over time, controls may become inadequate because of changes in conditions, or the degree of compliance with the policies or procedures may deteriorate. Because of the inherent limitations in a cost-effective control system, misstatements due to error or fraud may occur and not be detected. Our disclosure controls and procedures are designed to provide reasonable assurance of achieving their objectives, and our Chief Executive Officer and the Chief Financial Officer have concluded that these controls and procedures are effective at the "reasonable assurance" level.
ITEM 15. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K
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Reports of Independent Public Accountants
Consolidated Balance Sheets as of December 31, 2003 and 2002
Consolidated Statements of Operations for each of the years in the three-year period ended December 31, 2003
Consolidated Statements of Stockholders' Equity for each of the years in the three-year period ended December 31, 2003
Consolidated Statements of Cash Flows for each of the years in the three-year period ended December 31, 2003
Notes to Consolidated Financial Statements
Reports on Financial Statement Schedule
Schedule II—Valuation and Qualifying Accounts
On October 22, 2003, the Company filed a current report on Form 8-K related to the announcement of its financial results for the quarter ended September 30, 2003.
On January 22, 2004, the Company filed a current report on Form 8-K related to the announcement of its financial results for the quarter ended December 31, 2003.
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Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this Report to be signed on its behalf by the undersigned, thereunto duly authorized, in Redwood City, State of California, on this 4th day of February 2005.
| BROADVISION, INC. | ||||
By: |
/s/ PEHONG CHEN Pehong Chen Chairman of the Board, Chief Executive Officer and President |
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Pursuant to the requirements of the Securities Exchange Act of 1934, this Report has been signed below by the following persons on behalf of the Registrant and in the capacities and on the dates indicated.
| Signature |
Title |
Date |
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|---|---|---|---|---|
| /s/ PEHONG CHEN Pehong Chen |
Chairman of the Board, Chief Executive Officer and President (Principal Executive Officer) |
February 4, 2005 | ||
/s/ WILLIAM E. MEYER* William E. Meyer |
Executive Vice President and Chief Financial Officer |
February 4, 2005 |
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/s/ DAVID L. ANDERSON* David L. Anderson |
Director |
February 4, 2005 |
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/s/ TODD A. GARRETT* Todd A. Garrett |
Director |
February 4, 2005 |
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/s/ KOH BOON HWEE* Koh Boon Hwee |
Director |
February 4, 2005 |
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/s/ JAMES D. DIXON* James D. Dixon |
Director |
February 4, 2005 |
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/s/ CARL PASCARELLA* Carl Pascarella |
Director |
February 4, 2005 |
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/s/ T. MICHAEL NEVENS* T. Michael Nevens |
Director |
February 4, 2005 |
*By: |
/s/ PEHONG CHEN Pehong Chen, as Attorney-in-fact |
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BROADVISION, INC. ANNUAL REPORT ON FORM 10-K/A DECEMBER 31, 2003
INDEX TO EXHIBITS
| Exhibit |
Description |
|
|---|---|---|
| 3.1(1) | Amended and Restated Certificate of Incorporation. | |
| 3.2(13) | Certificate of Amendment of Certificate of Incorporation. | |
| 3.3(1) | Amended and restated Bylaws. | |
| 4.1(1) | References are hereby made to Exhibits 3.1 to 3.2. | |
| 4.3(1) | Second Amended and Restated Investor's Rights Agreement dated April 15, 1996 among the Company and certain of its stockholders. | |
| 10.1(16)(a) | Equity Incentive Plan as amended May 1, 2002 (the "Equity Incentive Plan"). | |
| 10.2(1)(a) | Form of Incentive Stock Option under the Equity Incentive Plan. | |
| 10.3(1)(a) | Form of Nonstatutory Stock Option under the Equity Incentive Plan. | |
| 10.4(1)(a) | Form of Nonstatutory Stock Option (Performance-Based). | |
| 10.5(16)(a) | 1996 Employee Stock Purchase Plan as amended May 1, 2002 (the "Employee Stock Purchase Plan"). | |
| 10.6(1)(a) | Employee Stock Purchase Plan Offering (Initial Offering). | |
| 10.7(1)(a) | Employee Stock Purchase Plan Offering (Subsequent Offering). | |
| 10.8(1)(b) | Terms and Conditions dated January 1, 1995 between IONA Technologies LTD and the Company. | |
| 10.9(1) | Series D Preferred Stock Option Agreement dated February 27, 1996 between the Company and Pehong Chen. | |
| 10.10(1)(a) | Stock Option Plan. | |
| 10.11(1)(a) | Form of Incentive Stock Option under the Stock Option Plan. | |
| 10.12(1)(a) | Form of Nonstatutory Stock Option under the Stock Option Plan. | |
| 10.13(2) | Lease dated February 5, 1997 between the Company and Martin/Campus Associates, L.P. | |
| 10.14(3) | Loan and Security Agreement dated July 2, 1997 between the Company and Silicon Valley Bank. | |
| 10.15(4) | First Amendment to Loan and Security Agreement dated February 5, 1998 between the Company and Silicon Valley Bank. | |
| 10.16(5) | Agreement and Plan of Merger and Reorganization dated January 26, 2000 among the Company, Infiniti Acquisition Sub, Inc. and Interleaf, Inc. | |
| 10.17(6) | Triple Net Building Lease dated April 12, 2000 between Pacific Shores Development LLC, as Lessor, and the Company, as Lessee, for Premises at Pacific Shores Center, Building 4, Redwood City, California. | |
| 10.18(6) | Triple Net Building Lease dated February 15, 2000 between Pacific Shores Development LLC, as Lessor, and the Company, as Lessee, for Premises at Pacific Shores Center, Building 5, Redwood City, California. | |
| 10.19(6) | Triple Net Building Lease dated February 15, 2000 between Pacific Shores Development LLC, as Lessor, and the Company, as Lessee, for Premises at Pacific Shores Center, Building 6, Redwood City, California. | |
| 10.20(7)(a) | 2000 Non-Officer Incentive Plan. | |
| 10.21(8) | Lease dated March 21, 2000 between VEF III Funding LLC, as Landlord, and Interleaf, Inc., as Tenant, for premises located at 400 Fifth Avenue, Waltham, Massachusetts. | |
| 10.22(8) | Amendment of Lease dated April 26, 2000 between VEF III Funding LLC, as Landlord, and Interleaf, Inc., as Tenant, for premises located at 400 Fifth Avenue, Waltham, Massachusetts. | |
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| 10.23(9)(b) | Independent Software Vendor Agreement dated June 30, 1998 between the Company and IONA Technologies, PLC, as amended. | |
| 10.24(10) | Fourth Loan Modification Agreement dated August 3, 2001 between the Company and Silicon Valley Bank. | |
| 10.25(11) | Loan Modification Agreement dated November 1, 2001 between the Company and Silicon Valley Bank. | |
| 10.26(11)(a) | Offer Letter dated October 19, 2001 between the Company and Francis Barton. | |
| 10.27(12) | Amended and Restated Loan and Security Agreement dated March 31, 2002 between the Company and Silicon Valley Bank. | |
| 10.28(14) | Agreement to Resolve Certain Tenant Improvement Disputes with Respect to B-4, B-5 & B-6 dated January 8, 2002 between the Company and Pacific Shores Development LLC. | |
| 10.29(14) | First Amendment to Lease (Building 4 and 5—1700 and 1800 Seaport Boulevard) (Lease Termination and Mutual General Release Agreement) dated May 9, 2002 between the Company and Pacific Shores Development LLC. | |
| 10.30(14) | First Amendment to Lease (Building 6—1600 Seaport Boulevard) dated May 9, 2002 between the Company and Pacific Shores Development LLC. | |
| 10.31(14) | Offer Letter dated May 14, 2002 between the Company and Andrew Nash. | |
| 10.32(15) | Offer Letter dated September 3, 2002 between the Company and Philip L. Oreste. | |
| 10.33(15) | Form of Indemnity Agreement between the Company and each of its directors and executive officers. | |
| 10.34(17) | Offer letter dated March 4, 2003 by and between the Company and William Meyer. | |
| 10.35(18) | First Amendment to the Amended and Restated Loan and Security Agreement dated February 28, 2003 between the Company and Silicon Valley Bank. | |
| 10.36(18) | Second Amendment to the Amended and Restated Loan and Security Agreement dated June 30, 2003 between the Company and Silicon Valley Bank. | |
| 10.37(18) | BroadVision, Inc. Change in Control Severance Benefit Plan, established effective May 22, 2003. | |
| 10.38(18) | BroadVision, Inc. Executive Severance Benefit Plan, established effective May 22, 2003. | |
| 10.39(18) | Third Amendment to the Amended and Restated Loan and Security Agreement dated June 30, 2003 between the Company and Silicon Valley Bank. | |
| 10.40(19) | Offer Letter dated June 28, 2002 between the Company and Warren Utt. | |
| 10.41(19) | Offer Letter dated September 23, 2002 between the Company and Alex Kormushoff. | |
| 10.42(19) | Fourth Amendment to the Amended and Restated Loan and Security Agreement dated January 21, 2004 between the Company and Silicon Valley Bank. | |
| 10.43(19) | Fifth Modification to Amended and Restated Loan and Security Agreement dated February 27, 2004 between the Company and Silicon Valley Bank. | |
| 21.1(19) | Subsidiaries of the Company. | |
| 23.2(19) | Consent of BDO Seidman, LLP. | |
| 24.1(19) | Power of Attorney, pursuant to which amendments to this Annual Report on 10-K may be filed, is included on the signature pages hereto. | |
| 31.1 | Certification of the Chief Executive Officer of BroadVision | |
| 31.2 | Certification of the Chief Financial Officer of BroadVision | |
| 32.1(19) | Certification of the Chief Executive Officer and Chief Financial Officer of BroadVision pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 CEO Certification pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (18 U.S.C.§ 1350, as adopted) |
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