SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 10-K/A
Amendment No. 1
ý | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the fiscal year ended December 31, 2001
OR
| o | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
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.) |
585 Broadway
Redwood City, California 94063
(Address of Principal Executive Offices)(Zip Code)
(650) 261-5100
(Registrant's telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Act:
None
Securities registered pursuant to Section 12(g) of the Act:
Common Stock, $.0001 par value
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 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. o
Based on the closing sale price of the Company's Common Stock on April 22, 2002, the aggregate market value of the voting stock held by nonaffiliates of the registrant was $293,305,621.
As of April 22, 2002, registrant had outstanding 288,294,098 shares of Common Stock.
BroadVision, Inc. hereby amends its Annual Report on Form 10-K for the year ended December 31, 2001 (the "Form 10-K") to add the information required by Part III of Form 10-K.
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The following is certain information about the current members of the Company's Board of Directors.
| Name | Age | Principal Occupation/ Position Held With The Company | ||
|---|---|---|---|---|
| Pehong Chen | 44 | Chairman of the Board of Directors, President and Chief Executive Officer | ||
| David L. Anderson | 58 | Managing Director, Sutter Hill Ventures | ||
| Todd A. Garrett | 60 | Private Investor | ||
| Koh Boon Hwee | 51 | Executive Director, MediaRing.com Ltd | ||
| Klaus Luft | 60 | President, Market Access for Technology Services GmbH | ||
| Carl Pascarella | 59 | President and Chief Executive Officer, Visa U.S.A. |
Pehong Chen has served as Chairman of the Board, Chief Executive Officer and President of the Company since its incorporation in May 1993. From 1992 to 1993, Dr. Chen served as the Vice President of Multimedia Technology at Sybase, Inc., a supplier of client-server software products. Dr. Chen founded and, from 1989 to 1992, served as President of, Gain Technology, Inc., a provider of multimedia applications development systems, which was acquired by Sybase, Inc. Dr. Chen currently serves on the Board of Directors of SINA.com and Tumbleweed Communications Corp. He received a B.S. in Computer Science from National Taiwan University, an M.S. in Computer Science from Indiana University and a Ph.D. in Computer Science from the University of California at Berkeley.
David L. Anderson has served as a director of the Company since November 1993. Since 1974, Mr. Anderson has been a managing director of Sutter Hill Ventures, a venture capital investment firm. Mr. Anderson currently serves on the Board of Directors of Dionex Corporation and Molecular Devices Corporation. He holds a B.S. in Electrical Engineering from the Massachusetts Institute of Technology and an M.B.A. from Harvard University.
Todd A. Garrett has served as a director of the Company since January 1999. Mr. Garrett is currently a private investor. In 1999, Mr. Garrett retired from Procter & Gamble Company, where he held various key executive positions within the company since joining it in 1985. These positions included: Vice President, Asia/Pacific; Vice President, U.S. Beauty Care; Group President, President of Worldwide Strategic Planning, Beauty Care Products; Senior Vice President; and Chief Information Officer. Mr. Garrett holds a B.A. from the University of Rochester and an M.B.A. from Xavier University.
Koh Boon Hwee has served as a director of the Company since February 1996. Mr. Koh is Executive Director of MediaRing.com Ltd, a Singapore Stock Exchange-listed company focusing on the development of products and services based on voice-over Internet protocol technologies. He is also currently Chairman of Singapore Airlines Ltd and serves on the Board of Directors of QAD Inc. He was previously Chairman of Singapore Telecommunications Limited from 1986 to 2001, Chairman of Omni Industries Limited, a contract manufacturer, from 1997 to 2001, Chairman of the Wuthelam Group of Companies, a diversified Singapore company with subsidiaries engaged in, among other things, real estate development, hotel management and high technology, from 1991 to 2000 and Managing Director of Hewlett Packard Singapore from 1985 to 1990. Mr. Koh holds a B.S. in Mechanical Engineering from the University of London and an M.B.A. from Harvard University.
Klaus Luft has served as a director of the Company since February 2000. Mr. Luft is the founder, owner and President of MATCH - Market Access for Technology Services GmbH, a private company in Munich, Germany that provides sales and marketing services to high technology companies. He is also
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the founder and Chairman of the supervisory board of Artedona AG, a privately held e-commerce company established in 1999 and headquartered in Munich. Since August 1990, Mr. Luft has served as Vice Chairman and International Advisor to Goldman Sachs Europe Limited. He also serves on the Board of Directors of Dell Computer Corporation. Mr. Luft is a member of the International Advisory Board of the International University of Germany. Mr. Luft received his German Arbitur in Bruchsal, Germany.
Carl Pascarella has served as a director of the Company since September 1997. Since August 1993, Mr. Pascarella has been President and Chief Executive Officer of Visa U.S.A. From January 1983 to August 1993, he was Assistant Chief General Manager of the Asia-Pacific region of Visa U.S.A. Before joining Visa U.S.A., Mr. Pascarella was Vice President of the International Division of Crocker National Bank. He also served as Vice President of Metropolitan Bank at Bankers Trust Company. Mr. Pascarella holds a B.A. from the University of Buffalo and an M.B.A. from Harvard University.
The names of and certain information about the current executive officers of the Company are set forth under Item 1 of Part I of the Form 10-K under the heading "Employees; Executive Officers."
Section 16(a) Beneficial Ownership Reporting Compliance
Section 16(a) of the Exchange Act requires the Company's directors and executive officers, and persons who own more than ten percent of a registered class of the Company's equity securities, to file with the SEC initial reports of ownership and reports of changes in ownership of Common Stock and other equity securities of the Company. Directors, officers and greater than ten percent stockholders are required by SEC regulation to furnish the Company with copies of all Section 16(a) forms they file.
To the Company's knowledge, based solely on a review of the copies of such reports furnished to the Company and written representations that no other reports were required, during the fiscal year ended December 31, 2001, all Section 16(a) filing requirements applicable to its officers, directors and greater than ten percent beneficial owners were complied with, except that an initial report of ownership was filed late by Mr. Barton and Ms. Mills-Turner failed to file one report of one transaction.
ITEM 11. EXECUTIVE COMPENSATION
Directors currently do not receive any cash compensation from the Company for their services as members of the Board of Directors, although they are reimbursed for certain expenses incurred in connection with attendance of Board and Committee meetings in accordance with Company policy.
Each director of the Company is eligible to receive stock option grants under the Incentive Plan. As of December 31, 2001, non-employee directors held options to purchase an aggregate of 1,497,205 shares of the Company's Common Stock. Additionally, in May 2001, the Company announced a voluntary stock option exchange program for its employees, including its executive officers, and directors. Under the program, employees and directors of the Company had the opportunity, if they so chose, to elect to cancel outstanding stock options held by them in exchange for an equal number of new options to be granted at a future date at the fair market value on the date of grant. The offer remained outstanding until 5:00 p.m., Pacific Daylight Time, on May 25, 2001. These elections were required to include all options granted during the prior six-month period. Mr. Luft elected to participate in the offer and tendered options in return for the Company's promise to grant new options on November 27, 2001. On November 27, 2001, the Company granted an option to Mr. Luft to purchase 240,000 shares, at the fair market value of $3.89 per share, the opening price of the Company's Common Stock on such date.
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Compensation of Executive Officers
The following table shows for the fiscal years December 31, 1999, 2000 and 2001, compensation awarded or paid to, or earned by, the Company's Chief Executive Officer, its other three most highly compensated executive officers at December 31, 2001 and one former executive officer who resigned from his position during fiscal year 2001 (the "Named Executive Officers"):
| | | Annual Compensation (1) | Long Term Compensation Awards | |||||||
|---|---|---|---|---|---|---|---|---|---|---|
| Name and Principal Position | Year | Salary ($) | Annual Bonus ($) | Other Compensa- tion | Securities Underlying Options (#)(7) | |||||
| Pehong Chen (2) Chairman of the Board, President and Chief Executive Officer | 2001 2000 1999 | $204,167 341,667 250,000 | $150,000 25,000 106,250 | — — — | 4,540,000 — 4,500,000 | |||||
Randall C. Bolten (3) Former Chief Financial Officer and Executive Vice President, Operations | 2001 2000 1999 | 220,000 215,783 166,320 | 48,800 45,000 37,500 | — — — | 50,000 50,000 180,000 | |||||
Chris Grejtak (4) Executive Vice President, Worldwide Marketing and Business Development | 2001 2000 1999 | 202,031 — — | 24,900 — — | — — — | 440,798 — — | |||||
Nancy Mills-Turner (5) Former Executive Vice President and General Manager, Worldwide Professional Services | 2001 2000 1999 | 248,584 220,000 68,475 | 118,300 152,250 2,500 | — — — | 355,868 200,000 960,000 | |||||
James Thanos (6) Executive Vice President and General Manager, Worldwide Field Organization | 2001 2000 1999 | 283,750 220,000 218,000 | 108,529 460,894 85,000 | 82,336 116,275 299,677 | 658,309 300,000 600,000 | |||||
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STOCK OPTION GRANTS AND EXERCISES
The Company grants options to its executive officers under its Incentive Plan. As of March 31, 2002, options to purchase a total of 42,792,183 shares were outstanding under the Incentive Plan and options to purchase 12,043,958 shares remained available for grant thereunder.
In May 2001, the Company announced a voluntary stock option exchange program for its employees, including its executive officers and directors. Under the program, employees of the Company had the opportunity, if they so chose, to elect to cancel outstanding stock options held by them in exchange for an equal number of new options to be granted at a future date at the fair market value on the date of grant. The offer remained outstanding until 5:00 p.m., Pacific Daylight Time, on May 25, 2001. These elections were required to include all options granted during the prior six-month period. On November 27, 2001, the Company granted options under the Incentive Plan and Non-Officer Plan to those employees and directors who elected to participate in the program, at the fair market value of $3.89 per share, the opening price of the Company's Common Stock on such date. The options granted under the program vest over four years.
The following table shows for the fiscal year ended December 31, 2001, certain information regarding options granted to, exercised by, and held at year end by, the Named Executive Officers.
OPTION GRANTS IN LAST FISCAL YEAR
| | Individual Grants | | | |||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|
| | Potential Realizable Value At Assumed Annual Rates Of Stock Price Appreciation For Option Term(3) | |||||||||||
| | | Percent Of Total Options Granted to Employees In Fiscal 2001(%)(1) | | | ||||||||
| | Number of Securities Underlying Options Granted | | | |||||||||
| | Exercise Price Per Share ($/Sh)(2) | | ||||||||||
| | Expiration Date | |||||||||||
| Name | 5% ($) | 10% ($) | ||||||||||
| Pehong Chen (4) | 4,500,000 40,000 | 13.32 0.12 | % | $7.39 3.89 | 5/24/11 11/26/11 | $20,950,650 98,028 | $52,875,450 247,404 | |||||
| Randall C. Bolten (4) | 50,000 | 0.15 | 3.89 | 11/26/11 | 122,535 | 309,255 | ||||||
| Chris Grejtak(5) | 440,798 | 1.31 | 3.89 | 11/26/11 | 1,080,264 | 2,726,380 | ||||||
| Nancy Mills-Turner | 300,000 55,869 | 0.89 0.17 | 7.39 3.89 | 5/24/11 11/26/11 | 1,396,710 136,918 | 3,525,030 345,555 | ||||||
| James Thanos | 658,309 | 1.95 | 3.89 | 11/26/11 | 1,613,318 | 4,071,707 | ||||||
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FISCAL YEAR-END OPTION VALUES OF UNEXERCISED OPTIONS
| | | | Number of Securities Underlying Unexercised Options at December 31, 2001 (#)(2) | | | |||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|
| | | | Value of Unexercised In-The- Money Options at December 31, 2001($)(3) | |||||||||
| | Shares Acquired on Exercise (#) | Value Realized ($)(1) | ||||||||||
| Name | Exercisable | Unexercisable | Exercisable | Unexercisable | ||||||||
| Pehong Chen | 4,500,000 | $1,195,200 | 2,907,922 | 4,132,078 | — | — | ||||||
| Randall C. Bolten | — | — | 136,004 | 165,153 | $180,649 | $89,462 | ||||||
| Chris Grejtak | — | — | 12,909 | 427,889 | — | — | ||||||
| Nancy Mills-Turner | — | — | 332,373 | 943,495 | — | — | ||||||
| James Thanos | — | — | 1,118,324 | 1,661,039 | 1,090,821 | 834,914 | ||||||
EMPLOYMENT AND SEPARATION AGREEMENTS WITH EXECUTIVE OFFICERS
Separation Agreement between the Company and Chris M. Grejtak. Mr. Grejtak resigned from his position as Executive Vice President, Chief Marketing Officer and all other corporate offices and positions he held with the Company, effective April 12, 2002. The Company agreed to provide Mr. Grejtak with one year of severance and health benefits, payable over 12 months, and six months of additional stock option vesting. The Company and Mr. Grejtak executed a mutual release of claims. Nothing in the separation agreement affected the Company's indemnification or defense obligations to Mr. Grejtak that arose from his employment with the Company, and Mr. Grejtak agreed to cooperate with the Company with respect to any existing or future litigation or similar proceedings to the extent requested by the Company.
Separation Agreement between the Company and Nancy Mills-Turner. Ms. Mills-Turner resigned from her position as Executive Vice President, Worldwide Products & Services and General Manager and all other corporate offices she held with the Company, effective January 25, 2002, and became an employee advisor to the Company for one year. The Company agreed to pay Ms. Mills-Turner her regular salary during this one-year advisory period. Ms. Mills-Turner is also eligible to participate in the Company's benefit plans to the extent permitted by each plan during the one-year period. Ms. Mills-Turner's stock options will continue to vest for the first six months of the one-year period. In addition, Ms. Mills-Turner received her performance bonus for the third quarter of 2001. The Company and Ms. Mills-Turner each executed a mutual release of claims. The Company agreed to indemnify, hold harmless and defend Ms. Mills-Turner in various civil actions and future actions in which Ms. Mills-Turner is named as a defendant based on her employment with the Company.
Amended and Restated Separation Agreement between the Company and Randall Bolten. On June 29, 2001, the Company and Mr. Bolten entered into a separation agreement and, on September 28, 2001, the Company and Mr. Bolten amended and restated the agreement. Mr. Bolten resigned from his position as Executive Vice President and Chief Financial Officer and all other corporate offices he held with the Company, effective July 31, 2001, and became an employee advisor to the Company for one year. The Company agreed to pay Mr. Bolten his regular salary during this one-year advisory period. Mr. Bolten is also eligible to participate in the Company's benefit plans to the extent permitted by each plan during the one-year period. Mr. Bolten's stock options continued to
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vest for the first six months of the one-year period. In addition, Mr. Bolten received his performance bonus for the second and third quarters of 2001. The Company and Mr. Bolten each executed a mutual release of claims. The Company agreed to indemnify, hold harmless and defend Mr. Bolten in various civil actions and future actions in which Mr. Bolten is named as a defendant based on his employment with the Company.
Offer Letter from the Company to Francis Barton. On October 22, 2001, the Company offered Mr. Barton employment with the Company in the position of Executive Vice President and Chief Financial Officer, which offer Mr. Barton accepted. Pursuant to the offer letter, the Company will pay Mr. Barton $320,000 per year and a target bonus of 37.5% of his base salary paid quarterly. Mr. Barton is also receiving a sign-on bonus of $100,000 payable in four quarterly installments. Mr. Barton must be employed by the Company on the last day of the quarter in order to receive the applicable installment of the sign-on bonus. Mr. Barton is eligible to participate in the Company's employee benefit plans. Mr. Barton also received a stock option to purchase 2,100,000 shares of the Company's Common Stock with an exercise price equal to the fair market value of the stock underlying the option on the date of grant, which was $1.35. 25% of the shares subject to the option will vest on the first anniversary of Mr. Barton's date of hire and the remaining shares will vest in equal monthly installments over the subsequent three years.
In the event Mr. Barton's employment with the company is involuntarily terminated without cause at any time, Mr. Barton agrees to provide consulting services to the Company for up to one year. If Mr. Barton executes a release of claims upon such termination of employment without cause, Mr. Barton will receive that portion of his target bonus that would have been paid in the quarter in which his employment is terminated as if his employment had not terminated. During such consulting period, Mr. Barton will receive $26,666.67 per month as a consulting fee, and his outstanding stock options will continue to vest.
In the event of change of control of the Company, in addition to the benefits described above and upon execution of a release of claims, if Mr. Barton's employment with the Company is involuntarily terminated without cause or voluntarily terminated for good reason within 13 months of the effective date of such change of control, 50% of the unvested shares subject to his outstanding stock options shall vest and become exercisable. If any payment made to Mr. Barton would constitute a parachute payment under the Code, Mr. Barton will receive the entire payment or a reduced amount, whichever results in his receipt, on an after-tax basis, of the greater amount of the payment.
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ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth certain information regarding the ownership of the Company's Common Stock as of March 31, 2002 by: (a) each nominee for director; (b) each of the executive officers named in the Summary Compensation Table; (c) all executive officers and directors of the Company as a group; and (d) all those known by the Company to be beneficial owners of more than five percent of its Common Stock.
| | Beneficial Ownership(1) | ||||
|---|---|---|---|---|---|
| Beneficial Owner | Number of Shares (#) | Percent of Total (%) | |||
| Pehong Chen (2) | 56,635,005 | 19.4 | % | ||
| Randall C. Bolten (3) | 1,369,127 | * | |||
| Chris M. Grejtak (4) | 197,590 | * | |||
| Nancy Mills-Turner (5) | 491,521 | * | |||
| James Thanos (6) | 1,645,292 | * | |||
| David L. Anderson (7) | 1,618,513 | * | |||
| Koh Boon Hwee (8) | 1,702,742 | * | |||
| Todd A. Garrett (4) | 370,000 | * | |||
| Klaus Luft (4) | 64,770 | * | |||
| Carl Pascarella (9) | 450,883 | * | |||
| All Current Directors and Executive Officers as a group (11 persons)(10) | 62,801,464 | 21.5 | % | ||
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voting and investing power and 122,771 shares of Common Stock owned by Anvest L.P., over which Mr. Anderson exercises voting and investing power. Mr. Anderson disclaims beneficial ownership of the shares held by Anvest L.P., except to the extent of his pecuniary interest therein. Mr. Anderson disclaims beneficial ownership of the shares of Common Stock held by the other persons and entities associated with Sutter Hill Ventures, except to the extent of his pecuniary interest therein. Includes 180,223 shares of Common Stock issuable upon the exercise of a stock option exercisable within 60 days of March 31, 2002, subject to repurchase of unvested shares.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The Company has entered into indemnity agreements with certain officers and directors which provide, among other things, that the Company will indemnify such officer or director, under the circumstances and to the extent provided for in such agreement, for expenses, damages, judgments, fines and settlements he or she may be required to pay in actions or proceedings which he or she is or may be made a party be reason of his or her position as a director, officer or other agent of the Company, and otherwise to the full extent permitted under Delaware law and the Company's Bylaws.
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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 Amendment No. 1 to the Annual Report on Form 10-K for the year ended December 31, 2001 to be signed on its behalf by the undersigned, thereunto duly authorized.
| Date: April 30, 2002 | BROADVISION, INC. | |||
By: | /s/ PEHONG CHEN Pehong Chen Chairman of the Board, President and Chief Executive Officer | |||
Pursuant to the requirements of the Securities Exchange Act of 1934, this Amendment No. 1 to the Annual Report on Form 10-K for the year ended December 31, 2001 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 | ||
|---|---|---|---|---|
| /s/ PEHONG CHEN Pehong Chen | Chairman of the Board, President and Chief Executive Officer (Principal Executive Officer) | April 30, 2002 | ||
/s/ FRANCIS BARTON Francis Barton | Executive Vice President and Chief Financial Officer (Principal Financial and Accounting Officer) | April 30, 2002 | ||
* David L. Anderson | Director | April 30, 2002 | ||
* Todd A. Garrett | Director | April 30, 2002 | ||
* Koh Boon Hwee | Director | April 30, 2002 | ||
* Klaus Luft | Director | April 30, 2002 | ||
* Carl Pascarella | Director | April 30, 2002 |
*By: | /s/ PEHONG CHEN | |||||
Pehong Chen Attorney-in-Fact |
