UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K/A
(Amendment No. 1)
(Mark One)
| ☑ | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the fiscal year ended December 31, 2014
| ☐ | 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 001-33691
PROCERA NETWORKS, INC.
(Exact name of registrant as specified in its charter)
| Delaware | 33-0974674 | |
| (State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) | |
| 47448 Fremont Boulevard | 94538 | |
| Fremont, California | (Zip Code) | |
| (Address of principal executive offices) |
Registrant’s telephone number, including area code: (510) 230-2777
Securities registered pursuant to Section 12(b) of the Act
| Title of Each Class | Name of Each Exchange on Which Registered | |
| Common Stock par value $0.001 per share | The NASDAQ Global Select Market |
Securities registered pursuant to Section 12(g) of the Act:
None
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes o 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 o 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 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 þ No ☐
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes þ No ☐
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (§232.405 of this chapter) 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. þ
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule12b-2 of the Exchange Act. (Check one):
Large accelerated filer o | Accelerated filer þ | |
Non-accelerated filer o (Do not check if a smaller reporting company) | Smaller reporting o |
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes o No ☑
The aggregate market value of the voting stock held by non-affiliates of the registrant on June 30, 2014, based upon the closing price of the common stock on such date as reported on the NASDAQ Global Market, was approximately $155,061,041. Shares of voting stock held by directors, officers and stockholders or stockholder groups whose beneficial ownership exceeds 5% of the registrant’s common stock outstanding have been excluded in that such persons may be deemed to be affiliates. The number of shares owned by stockholders whose beneficial ownership exceeds 5% was determined based upon information supplied by such persons and upon Schedules 13D and 13G, if any, filed with the Securities and Exchange Commission. This assumption regarding affiliate status is not necessarily a conclusive determination for other purposes.
The number of shares of common stock outstanding as of March 10, 2015 was 20,767,968.
DOCUMENTS INCORPORATED BY REFERENCE
None.
EXPLANATORY NOTE
This Amendment No. 1 to Annual Report on Form 10-K (this “Amendment No. 1”) amends the registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2014 that was originally filed with the Securities and Exchange Commission (the “SEC”) on March 13, 2015 (the “Original Form 10-K”). This Amendment No. 1 is being filed to include the information required in Part III, Item 14 of Form 10-K that was previously omitted from the Original Form 10-K in reliance upon General Instruction G(3) to Form 10-K. General Instruction G(3) to Form 10-K allows such omitted information to be filed as an amendment to the Original Form 10-K or incorporated by reference from the registrant’s definitive proxy statement which involves the election of directors not later than 120 days after the end of the fiscal year covered by the Original Form 10-K. The registrant is filing this amendment to include such omitted information as part of the Original Form 10-K.
The reference on the cover of the Original Form 10-K to the incorporation by reference to certain portions of the registrant’s Definitive Proxy Statement for its 2015 Annual Stockholders’ Meeting into Part III of the Original Form 10-K is hereby deleted.
In accordance with Rule 12b-15 under the Securities Exchange Act of 1934, as amended, Part III, Item 14 of the Original Form 10-K is hereby amended and restated in its entirety, Part IV, Item 15 of the Original Form 10-K is hereby amended and restated in its entirety, and new certifications filed by the Chief Executive Officer and Chief Financial Officer pursuant to Rule 13a-14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002, are filed as exhibits to this Amendment No. 1 under Part IV, Item 15. Except as described in this explanatory note, no other information in the Original Form 10-K is being modified or amended by this Amendment No. 1, and this Amendment No. 1 does not otherwise reflect events occurring after March 13, 2015, which is the filing date of the Original Form 10-K. Accordingly, this amendment should be read in conjunction with the Original Form 10-K and the registrant’s other filings with the SEC. All capitalized terms used but not defined herein shall have the meanings ascribed to them in the Original Form 10-K.
PROCERA NETWORKS, INC.
FISCAL YEAR 2014
Amendment No. 1 to Form 10-K
ANNUAL REPORT
| PART III | |
| 1 | |
| PART IV | |
| 2 | |
| 4 | |
| 5 | |
PART III
Principal Accountant Fees and Services
In connection with the audit of our 2014 financial statements, we entered into an engagement agreement with McGladrey LLP, which sets forth the terms by which McGladrey LLP would perform audit services for us.
In connection with the audit of our 2013 financial statements, we entered into an engagement agreement with Ernst & Young LLP, which sets forth the terms by which Ernst & Young LLP would perform audit services for us.
The following table represents aggregate fees billed to us for the year ended December 31, 2014 by McGladrey LLP, our principal independent registered public accounting firm during such year, as well as the aggregate fees billed to us for the year ended December 31, 2013 by Ernst & Young LLP, our principal independent registered public accounting firm during such year.
Fiscal Year Ended December 31, | ||||||||
| 2014 | 2013 | |||||||
| Audit Fees (1) | $ | 729,942 | $ | 985,419 | ||||
| Audit-Related Fees (2) | — | 160,401 | ||||||
| Tax Fees | — | 5,699 | ||||||
| All Other Fees | — | — | ||||||
| Total Fees | $ | 729,942 | $ | 1,151,519 | ||||
| (1) | Includes fees for the audit of the annual financial statements and our internal control over financial reporting included in our Annual Report on Form 10-K, the review of interim financial statements included in our Quarterly Reports on Forms 10-Q, and statutory audits performed by our principal independent registered public accounting firm. |
| (2) | Audit-related fees principally include due diligence costs in connection with evaluating acquisitions. |
All fees described above were approved by the Audit Committee.
Pre-Approval Policies and Procedures.
The Audit Committee has adopted a policy that all audit, review and attest services, audit-related, tax and any other non-audit services to be performed by our independent registered public accounting firm must be pre-approved by the Audit Committee. Our policy is that all such services must be approved prior to the commencement of the engagement to render the services. The Audit Committee is also required to pre-approve the scope of and plans for the audit or the scope of the non-audit services, the adequacy of staffing, and the compensation to be paid at our expense, as well as any subsequent changes to the terms of the engagement. Additionally, the Audit Committee has the responsibility of negotiating and executing, on our behalf, the engagement letters of our independent registered public accounting firm, which such approval must be pursuant to pre-approval policies and procedures established by the Audit Committee consistent with applicable laws and rules. The Audit Committee may delegate the preapproval authority to one or more members of the Audit Committee as long as the pre-approval decisions are presented to the full Audit Committee at the next scheduled meeting.
The Audit Committee will only approve those services that would not impair the independence of the independent registered public accounting firm and which are consistent with the rules of the SEC and the PCAOB.
Under this policy, the Audit Committee meets at least annually to review and where appropriate approve the audit and non-audit services to be performed by our independent registered public accounting firm. Any subsequent requests to have the independent registered public accounting firm perform additional services must be submitted in writing to the Audit Committee by our chief financial officer, together with the independent registered public accounting firm, which written request must include an affirmation from each that the requested services are consistent with SEC and PCAOB rules on auditor independence.
Moreover, prior to the engagement of any prospective independent registered public accounting firm, the Audit Committee reviews a written disclosure provided by the independent registered public accounting firm of all relationships between the prospective independent registered public accounting firm, or their affiliates, and Procera, or persons in financial oversight roles, which may reasonably be thought to bear on independence. The Audit Committee discusses with the proposed independent registered public accounting firm the potential effects on independence of any such relationship.
All fees paid to McGladrey LLP and Ernst & Young LLP for 2014 and 2013, respectively, were pre-approved by the Audit Committee.
PART IV
| (a)(1) | Financial Statements |
The financial statements filed as part of this report are listed on the index to financial statements on page 50.
| (b)(2) | Financial Statement Schedules |
PROCERA NETWORKS, INC.
SCHEDULE II: VALUATION AND QUALIFYING ACCOUNTS
| (in thousands) | Balance at Beginning of Year | Additions Charged to Expense or Other Accounts | Deductions | Balance at End of Year | ||||||||||||
| Allowance for doubtful accounts: | ||||||||||||||||
| Year ended December 31, 2014 | $ | 129 | $ | - | $ | (82 | ) | $ | 47 | |||||||
| Year ended December 31, 2013 | 96 | 40 | (7 | ) | 129 | |||||||||||
| Year ended December 31, 2012 | 98 | 6 | (8 | ) | 96 | |||||||||||
All other schedules have been omitted because the required information is not present or not present in the amounts sufficient to require submission of the schedule or because the information required is included in the consolidated financial statements or notes thereto.
| (a)(3) | Exhibits |
The following exhibits are incorporated by reference or filed herewith.
| 2.1*# Share Purchase Agreement, by and among the Company, Procera Networks Kelowna ULC, Vineyard Networks Inc., the shareholders of Vineyard Networks Inc. and John Drope & Associates Ltd., as representative of the shareholders of Vineyard Networks Inc., dated January 7, 2013, filed as Exhibit 2.1 to our current report on Form 8-K/A filed on February 13, 2013 and incorporated herein by reference. |
| 3.1* Certificate of Incorporation filed on June 13, 2013, included as Exhibit 3.3 to our current report on Form 8-K filed on June 14, 2013 and incorporated herein by reference. |
| 3.2* Amended and Restated Bylaws, effective March 11, 2014, included as Exhibit 3.1 to our current report on Form 8-K filed on March 13, 2014 and incorporated herein by reference. |
| 4.1* Form of Common Stock Certificate, included as Exhibit 4.1 to our current report on Form 8-K filed on June 14, 2013 and incorporated herein by reference. |
| 10.1*‡ 2003 Stock Option Plan, included as Exhibit 10.1 to our registration statement on Form SB-2 filed on January 8, 2004 and incorporated herein by reference. |
| 10.2*‡ Amended 2004 Stock Option Plan, included as Exhibit 99.3 to our current report on Form 8-K filed on October 13, 2005 and incorporated herein by reference. |
| 10.3*‡ Restated Executive Employment Agreement for James F. Brear, dated as of December 4, 2012, included as Exhibit 10.1 to our current report on Form 8-K filed on December 5, 2012 and incorporated herein by reference. |
| 10.4*‡ Restated Executive Employment Agreement for Charles Constanti, dated as of December 3, 2012, included as Exhibit 10.2 to our current report on Form 8-K filed on December 5, 2012 and incorporated herein by reference. |
| 10.5*‡ Form of Indemnity Agreement, included as Exhibit 10.1 to our current report on Form 8-K filed on June 14, 2013 and incorporated herein by reference. |
| 10.6* Amended and Restated Loan and Security Agreement by and between the Company and Silicon Valley Bank, dated February 3, 2012, included as Exhibit 10.1 to our current report on Form 8-K filed on February 8, 2012 and incorporated herein by reference. |
| 10.7*‡ Form of Restricted Stock Bonus Grant Notice (2007 Equity Incentive Plan, as amended), included as Exhibit 10.2 to our quarterly report on Form 10-Q filed on May 10, 2011 and incorporated herein by reference. |
| 10.8*‡ Form of Restricted Stock Bonus Agreement (2007 Equity Incentive Plan, as amended), included as Exhibit 10.3 to our quarterly report on Form 10-Q filed on May 10, 2011 and incorporated herein by reference. |
| 10.9*‡ 2007 Equity Incentive Plan, as amended, included as Exhibit 10.1 to our current report on Form 8-K filed on June 3, 2013 and incorporated herein by reference. |
| 10.10*‡ Form of Inducement Grant Option Agreement entered into between the Company and certain Canadian employees, included as Exhibit 4.3 to our registration statement on Form S-8 filed on February 13, 2013 and incorporated herein by reference. |
| 10.11*‡ Form of Inducement Grant Option Agreement entered into between the Company and certain U.S. employees, included as Exhibit 4.4 to our registration statement on Form S-8 filed on February 13, 2013 and incorporated herein by reference. |
| 10.12*‡ Form of Restricted Stock Unit Award Agreement for United States residents (2007 Equity Incentive Plan, as amended), included as Exhibit 10.12 to our annual report on Form 10-K filed on March 11, 2014 and incorporated herein by reference. |
| 10.13*‡ Form of Restricted Stock Unit Award Agreement for Swedish residents (2007 Equity Incentive Plan, as amended) included as Exhibit 10.13 to our annual report on Form 10-K filed on March 11, 2014 and incorporated herein by reference. |
| 10.14*‡ Form of Restricted Stock Unit Award Agreement for Canadian residents (2007 Equity Incentive Plan, as amended) included as Exhibit 10.14 to our annual report on Form 10-K filed on March 11, 2014 and incorporated herein by reference. |
| 10.15*‡ Form of Restricted Stock Unit Award Agreement for residents outside the United States, Sweden and Canada (2007 Equity Incentive Plan, as amended), included as Exhibit 10.15 to our annual report on Form 10-K filed on March 11, 2014 and incorporated herein by reference. |
| 21.1** List of Subsidiaries. |
| 23.1** Consent of Registered Public Accounting Firm – McGladrey LLP. |
| 23.2** Consent of Registered Public Accounting Firm – Ernst & Young LLP. |
| 24.1** Power of Attorney (included on signature page hereto). |
| 31.1** Certification of Principal Executive Officer pursuant to Rule 13a-14(a) and 15d-14(a) of the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. |
| 31.2** Certification of Principal Financial Officer pursuant to Rule 13a-14(a) and 15d-14(a) of the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. |
| 31.3 Certification of Principal Executive Officer pursuant to Rule 13a-14(a) and 15d-14(a) of the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. |
| 31.4 Certification of Principal Financial Officer pursuant to Rule 13a-14(a) and 15d-14(a) of the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. |
| 32.1** Certification of Principal Executive Officer and Principal Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. |
| 101.INS XBRL Instance Document. |
| 101.SCH XBRL Taxonomy Extension Schema. |
| 101.CAL XBRL Taxonomy Extension Calculation Linkbase. |
| 101.DEF XBRL Taxonomy Extension Definition Linkbase. |
| 101.LAB XBRL Taxonomy Extension Label Linkbase. |
| 101.PRE XBRL Taxonomy Extension Presentation Linkbase. |
* Previously filed.
** Previously filed with our annual report on Form 10-K filed on March 13, 2015, which is being amended hereby.
# The schedules and certain exhibits to the Share Purchase Agreement have been omitted pursuant to Item 601(b) of Regulation S-K. A copy of the omitted schedules and exhibits will be furnished to the U.S. Securities and Exchange Commission supplementally upon request.
‡ Indicates management contract or compensatory plan or arrangement.
| (b) | Exhibits |
See Item 15(a)(3) above.
| (c) | Financial Statement Schedules |
See Item 15(a)(2) above.
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, the Registrant has duly caused this Amendment No. 1 to Annual Report on Form 10-K to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Fremont, State of California, on this 21 day of April 2015.
| Procera Networks, Inc. | ||
| Date: April 21, 2015 | By: | /s/ James Brear |
| James Brear | ||
| President and Chief Executive Officer | ||
| Date: April 21, 2015 | By: | /s/ Charles Constanti |
| Charles Constanti | ||
| Chief Financial Officer | ||
| 2.1*# Share Purchase Agreement, by and among the Company, Procera Networks Kelowna ULC, Vineyard Networks Inc., the shareholders of Vineyard Networks Inc. and John Drope & Associates Ltd., as representative of the shareholders of Vineyard Networks Inc., dated January 7, 2013, filed as Exhibit 2.1 to our current report on Form 8-K/A filed on February 13, 2013 and incorporated herein by reference. |
| 3.1* Certificate of Incorporation filed on June 13, 2013, included as Exhibit 3.3 to our current report on Form 8-K filed on June 14, 2013 and incorporated herein by reference. |
| 3.2* Amended and Restated Bylaws, effective March 11, 2014, included as Exhibit 3.1 to our current report on Form 8-K filed on March 13, 2014 and incorporated herein by reference. |
| 4.1* Form of Common Stock Certificate, included as Exhibit 4.1 to our current report on Form 8-K filed on June 14, 2013 and incorporated herein by reference. |
| 10.1*‡ 2003 Stock Option Plan, included as Exhibit 10.1 to our registration statement on Form SB-2 filed on January 8, 2004 and incorporated herein by reference. |
| 10.2*‡ Amended 2004 Stock Option Plan, included as Exhibit 99.3 to our current report on Form 8-K filed on October 13, 2005 and incorporated herein by reference. |
| 10.3*‡ Restated Executive Employment Agreement for James F. Brear, dated as of December 4, 2012, included as Exhibit 10.1 to our current report on Form 8-K filed on December 5, 2012 and incorporated herein by reference. |
| 10.4*‡ Restated Executive Employment Agreement for Charles Constanti, dated as of December 3, 2012, included as Exhibit 10.2 to our current report on Form 8-K filed on December 5, 2012 and incorporated herein by reference. |
| 10.5*‡ Form of Indemnity Agreement, included as Exhibit 10.1 to our current report on Form 8-K filed on June 14, 2013 and incorporated herein by reference. |
| 10.6* Amended and Restated Loan and Security Agreement by and between the Company and Silicon Valley Bank, dated February 3, 2012, included as Exhibit 10.1 to our current report on Form 8-K filed on February 8, 2012 and incorporated herein by reference. |
| 10.7*‡ Form of Restricted Stock Bonus Grant Notice (2007 Equity Incentive Plan, as amended), included as Exhibit 10.2 to our quarterly report on Form 10-Q filed on May 10, 2011 and incorporated herein by reference. |
| 10.8*‡ Form of Restricted Stock Bonus Agreement (2007 Equity Incentive Plan, as amended), included as Exhibit 10.3 to our quarterly report on Form 10-Q filed on May 10, 2011 and incorporated herein by reference. |
| 10.9*‡ 2007 Equity Incentive Plan, as amended, included as Exhibit 10.1 to our current report on Form 8-K filed on June 3, 2013 and incorporated herein by reference. |
| 10.10*‡ Form of Inducement Grant Option Agreement entered into between the Company and certain Canadian employees, included as Exhibit 4.3 to our registration statement on Form S-8 filed on February 13, 2013 and incorporated herein by reference. |
| 10.11*‡ Form of Inducement Grant Option Agreement entered into between the Company and certain U.S. employees, included as Exhibit 4.4 to our registration statement on Form S-8 filed on February 13, 2013 and incorporated herein by reference. |
| 10.12*‡ Form of Restricted Stock Unit Award Agreement for United States residents (2007 Equity Incentive Plan, as amended), included as Exhibit 10.12 to our annual report on Form 10-K filed on March 11, 2014 and incorporated herein by reference. |
| 10.13*‡ Form of Restricted Stock Unit Award Agreement for Swedish residents (2007 Equity Incentive Plan, as amended) included as Exhibit 10.13 to our annual report on Form 10-K filed on March 11, 2014 and incorporated herein by reference. |
| 10.14*‡ Form of Restricted Stock Unit Award Agreement for Canadian residents (2007 Equity Incentive Plan, as amended) included as Exhibit 10.14 to our annual report on Form 10-K filed on March 11, 2014 and incorporated herein by reference. |
| 10.15*‡ Form of Restricted Stock Unit Award Agreement for residents outside the United States, Sweden and Canada (2007 Equity Incentive Plan, as amended), included as Exhibit 10.15 to our annual report on Form 10-K filed on March 11, 2014 and incorporated herein by reference. |
| 21.1** List of Subsidiaries. |
| 23.1** Consent of Registered Public Accounting Firm – McGladrey LLP. |
| 23.2** Consent of Registered Public Accounting Firm – Ernst & Young LLP. |
| 24.1** Power of Attorney (included on signature page hereto). |
| 31.1** Certification of Principal Executive Officer pursuant to Rule 13a-14(a) and 15d-14(a) of the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. |
| 31.2** Certification of Principal Financial Officer pursuant to Rule 13a-14(a) and 15d-14(a) of the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. |
31.3 Certification of Principal Executive Officer pursuant to Rule 13a-14(a) and 15d-14(a) of the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. |
31.4 Certification of Principal Financial Officer pursuant to Rule 13a-14(a) and 15d-14(a) of the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. |
| 32.1** Certification of Principal Executive Officer and Principal Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. |
| 101.INS XBRL Instance Document. |
| 101.SCH XBRL Taxonomy Extension Schema. |
| 101.CAL XBRL Taxonomy Extension Calculation Linkbase. |
| 101.DEF XBRL Taxonomy Extension Definition Linkbase. |
| 101.LAB XBRL Taxonomy Extension Label Linkbase. |
| 101.PRE XBRL Taxonomy Extension Presentation Linkbase. |
* Previously filed.
** Previously filed with our annual report on Form 10-K filed on March 13, 2015, which is being amended hereby.
# The schedules and certain exhibits to the Share Purchase Agreement have been omitted pursuant to Item 601(b) of Regulation S-K. A copy of the omitted schedules and exhibits will be furnished to the U.S. Securities and Exchange Commission supplementally upon request.
‡ Indicates management contract or compensatory plan or arrangement.
6