SECURITIES AND EXCHANGE COMMISSION
____________________
FORM 10-K/A
FOR ANNUAL AND TRANSITION REPORTS PURSUANT TO SECTIONS 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
(Mark One)
| þ | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the fiscal year ended December 31, 2003
OR
| o | 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: 0-19395
SYBASE, INC.
| Delaware | 94-2951005 | |
| (State or Other Jurisdiction of Incorporation or Organization) | (I.R.S. Employer Identification No.) |
One Sybase Drive, Dublin, California 94568
(Address of principal executive offices and Zip Code)
Registrant’s telephone number, including area code: (925) 236-5000
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act:
Common Stock, $.001 par value
Preferred Share Purchase Rights
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. YESþ NOo
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 the best of 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 an accelerated filer (as defined in Rule 12b-2 of the Act). YESþ NOo
The aggregate market value of the voting and non-voting common equity held by non-affiliates computed by reference to the price at which the common equity was last sold as of the last business day of the Registrant’s most recently completed second fiscal quarter was $1.3 million. As of March 1, 2004, the Registrant had 97,270,355 shares of Common Stock outstanding.
| PART IV | ||||||||
| ITEM 15. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K | ||||||||
| SIGNATURES | ||||||||
| EXHIBIT INDEX | ||||||||
| Exhibit 31.1 | ||||||||
| Exhibit 31.2 | ||||||||
| Exhibit 32 | ||||||||
FORM 10-K/A
AMENDMENT NO. 1
TO
ANNUAL REPORT ON FORM 10-K
FOR FISCAL YEAR 2003
The sole purpose of this amendment is to correct the following errors in the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2003, as filed with the SEC on March 15, 2004 (“Form 10-K”):
1. Part II, Item 7, “MD&A – Critical Accounting Policies and Estimates,” page 12. The cross-reference in the last sentence of the paragraph that reads “Future Operating Results – Financial Accounting Related Matters,” is changed to “Future Operating Results — Changing Legal and Accounting Environment,” as shown below (revised language in bold type, underlined).
Critical Accounting Policies and Estimates
We prepare our financial statements in accordance with U.S. generally accepted accounting principles (GAAP). These accounting principals require us to make estimates and assumptions that affect the reported amounts of assets and liabilities, and the disclosure of contingent assets and liabilities at the date of our financial statements. We also are required to make certain judgments that affect the reported amounts of revenues and expenses during each reporting period. We periodically evaluate our estimates including those relating to revenue recognition, impairment of goodwill and intangible assets, the allowance for doubtful accounts, capitalized software, restructuring, income taxes, stock-based compensation and contingencies and litigation. We base our estimates on historical experience and various other assumptions that we believe to be reasonable based on specific circumstances. Our management has reviewed the development, selection, and disclosure of these estimates with the Audit Committee of our Board of Directors. These estimates and assumptions form the basis for our judgments about the carrying value of certain assets and liabilities that are not readily apparent from other sources. Actual results could differ from these estimates. See also “Future Operating Results –Changing Legal and Accounting Environment,”below.
2. Part II, Item 8, “Consolidated Financial Statements,” page 36. The table below replaces the table on page 36, a portion of which was inadvertently omitted due to a technical error.
Consolidated Statements of Stockholders’ Equity
| (Dollars and shares in thousands) | Three years ended December 31, 2003 | |||||||||||||||||||||||||||||||
| Common stock | Additional | Accumulated Other | Unearned | |||||||||||||||||||||||||||||
| Outstanding | Par | paid-in | Accumulated | Comprehensive | Treasury | Stock | ||||||||||||||||||||||||||
| Shares | Value | capital | Deficit | Income/(Loss) | Stock | Compensation | Total | |||||||||||||||||||||||||
| Balances at January 1, 2001 | 87,656 | $ | 91 | $ | 582,972 | $ | (6,940 | ) | $ | (22,305 | ) | $ | (63,066 | ) | $ | — | $ | 490,752 | ||||||||||||||
| Common stock issued in connection with business combinations | 14,567 | 14 | 336,124 | — | — | — | (1,166 | ) | 334,972 | |||||||||||||||||||||||
| Common stock issued and treasury Stock reissued under stock option And stock purchase plans | 2,494 | — | 3 | (27,143 | ) | — | 53,665 | — | 26,525 | |||||||||||||||||||||||
| Treasury stock reissued under Restricted stock option plan | 384 | 5,571 | (9,118 | ) | — | 9,156 | (5,571 | ) | 38 | |||||||||||||||||||||||
| Acquisition of treasury stock | (6,376 | ) | — | — | — | — | (106,930 | ) | (106,930 | ) | ||||||||||||||||||||||
| Amortization of unearned Stock compensation | — | — | — | — | 1,334 | 1,334 | ||||||||||||||||||||||||||
| Tax benefit of exercise of stock options | — | — | 1,039 | — | — | — | — | 1,039 | ||||||||||||||||||||||||
| Subtotal | 98,725 | 105 | 925,709 | (43,201 | ) | (22,305 | ) | (107,175 | ) | (5,403 | ) | 747,730 | ||||||||||||||||||||
| Net loss | — | — | — | (25,522 | ) | — | — | — | (25,522 | ) | ||||||||||||||||||||||
| Foreign currency translation adjustments | — | — | — | — | (6,257 | ) | — | — | (6,257 | ) | ||||||||||||||||||||||
| Unrealized gains/(losses) on Marketable securities | — | — | — | — | 568 | — | — | 568 | ||||||||||||||||||||||||
| Comprehensive loss | (31,211 | ) | ||||||||||||||||||||||||||||||
| (Dollars and shares in thousands) | Three years ended December 31, 2003 | |||||||||||||||||||||||||||||||
| Common stock | Additional | Accumulated Other | Unearned | |||||||||||||||||||||||||||||
| Outstanding | Par | paid-in | Accumulated | Comprehensive | Treasury | Stock | ||||||||||||||||||||||||||
| Shares | Value | capital | Deficit | Income/(Loss) | Stock | Compensation | Total | |||||||||||||||||||||||||
| Balances at December 31, 2001 | 98,725 | 105 | 925,709 | (68,723 | ) | (27,994 | ) | (107,175 | ) | (5,403 | ) | 716,519 | ||||||||||||||||||||
| Common stock issued and treasury Stock reissued under stock option, Stock purchase plans and other | 2,633 | — | — | (26,690 | ) | — | 50,332 | — | 23,642 | |||||||||||||||||||||||
| Treasury stock repurchased due to Forfeiture in restricted stock Option plan | (6 | ) | (95 | ) | 146 | — | (147 | ) | 95 | (1 | ) | |||||||||||||||||||||
| Acquisition of treasury stock | (6,692 | ) | — | — | — | — | (89,826 | ) | (89,826 | ) | ||||||||||||||||||||||
| Amortization of unearned stock Compensation | — | — | — | — | 1,938 | 1,938 | ||||||||||||||||||||||||||
| Tax benefit of exercise of stock options | — | — | 3,450 | — | — | — | — | 3,450 | ||||||||||||||||||||||||
| Subtotal | 94,660 | 105 | 929,064 | (95,267 | ) | (27,994 | ) | (146,816 | ) | (3,370 | ) | 655,722 | ||||||||||||||||||||
| Net loss | — | — | — | (94,669 | ) | — | — | — | (94,669 | ) | ||||||||||||||||||||||
| Foreign currency translation adjustments | — | — | — | — | 18,826 | — | — | 18,826 | ||||||||||||||||||||||||
| Unrealized gains/(losses) on Marketable securities | — | — | — | — | 495 | — | — | 495 | ||||||||||||||||||||||||
| Comprehensive loss | (75,348 | ) | ||||||||||||||||||||||||||||||
| �� | ||||||||||||||||||||||||||||||||
| Balances at December 31, 2002 | 94,660 | 105 | 929,064 | (189,936 | ) | (8,673 | ) | (146,816 | ) | (3,370 | ) | 580,374 | ||||||||||||||||||||
| Common stock issued and treasury Stock reissued under stock option, Stock purchase plans and other | 5,148 | — | (3 | ) | (20,054 | ) | — | 75,938 | — | 55,881 | ||||||||||||||||||||||
| Treasury stock reissued under Restricted stock option plan | 353 | 5,012 | (5,915 | ) | — | 5,949 | (5,012 | ) | 34 | |||||||||||||||||||||||
| Treasury stock reissued for certain Services | 721 | — | 1,720 | — | 8,676 | — | 10,396 | |||||||||||||||||||||||||
| Treasury stock repurchased due to Forfeiture in restricted stock Option plan | (24 | ) | (416 | ) | 534 | — | (536 | ) | 415 | (3 | ) | |||||||||||||||||||||
| Acquisition of treasury stock | (2,333 | ) | — | — | — | — | (30,883 | ) | (30,883 | ) | ||||||||||||||||||||||
| Amortization of unearned stock Compensation | — | — | — | — | 2,882 | 2,882 | ||||||||||||||||||||||||||
| Subtotal | 98,525 | 105 | 933,657 | (213,651 | ) | (8,673 | ) | (87,672 | ) | (5,085 | ) | 618,681 | ||||||||||||||||||||
| Net income | — | — | — | 87,266 | — | — | — | 87,266 | ||||||||||||||||||||||||
| Foreign currency translation adjustments | — | — | — | — | 36,100 | — | — | 36,100 | ||||||||||||||||||||||||
| Unrealized gains/(losses) on Marketable securities | — | — | — | — | (578 | ) | — | — | (578 | ) | ||||||||||||||||||||||
| Comprehensive loss | 122,788 | |||||||||||||||||||||||||||||||
| Balances at December 31, 2003 | 98,525 | $ | 105 | $ | 933,657 | $ | (126,385 | ) | $ | 26,849 | $ | (87,672 | ) | $ | (5,085 | ) | $ | 741,469 | ||||||||||||||
See accompanying notes.
PART IV
ITEM 15. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
(c) Exhibits. The exhibits required under Item 601 of Regulation S-K that must be filed with this Amendment No. 1 pursuant to Rule 12b-15 promulgated under the Securities Exchange Act of 1934, as amended, are listed in the Exhibit Index to this Report on Form 10-K/A, and are incorporated here by reference.
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this Report on Form 10-K/A to be signed on its behalf of the undersigned, thereunto duly authorized.
| SYBASE, INC. | ||
| By: /S/ TERESA D. CHUH | ||
| March 23, 2004 | Teresa D. Chuh | |
| Vice President, Associate General Counsel and Assistant Secretary |
Pursuant to the requirements of the Securities Exchange Act of 1934, this Report on 10-K/A has been signed by Teresa D. Chuh, attorney-in-fact of each of the following individuals, in the capacities and on the dates indicated:
| Signature | Title | Date | ||
| * (John S. Chen) | Chairman of the Board, Chief Executive Officer (Principal Executive Officer), President and Director | March 23, 2004 | ||
| * (Pieter A. Van der Vorst) | Senior Vice President and Chief Financial Officer (Principal Financial Officer) | March 23, 2004 | ||
| * (Martin J. Healy) | Vice President and Corporate Controller (Principal Accounting | March 23, 2004 | ||
| * (Richard C. Alberding) | Director | March 23, 2004 | ||
| * (Cecilia Claudio) | Director | March 23, 2004 | ||
| * (L. William Krause) | Director | March 23, 2004 | ||
| * (Alan B. Salisbury) | Director | March 23, 2004 | ||
| * (Jack E. Sum) | Director | March 23, 2004 | ||
| * (Robert P. Wayman) | Director | March 23, 2004 | ||
| * (Linda K. Yates) | Director | March 23, 2004 | ||
| * /S/ TERESA D. CHUH (Teresa D. Chuh) | Attorney-in-Fact | March 23, 2004 |
EXHIBIT INDEX
| 31.1 | Certification of Chief Executive Officer pursuant to Securities Exchange Act Rule 13a-14 or 15d-14, as adopted pursuant to Section 302(a) of the Sarbanes-Oxley Act of 2002 | |
| 31.2 | Certification of Chief Financial Officer pursuant to Securities Exchange Act Rule 13a-14 or 15d-14, as adopted pursuant to Section 302(a) of the Sarbanes-Oxley Act of 2002 | |
| 32 | Certification of Chief Executive Officer and Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 |
