U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K/A
(AMENDMENT NO. 2)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED DECEMBER 31, 2004
[ ] TRANSITION REPORT UNDER SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM_______ TO________
COMMISSION FILE NO. 01-13112
DHB INDUSTRIES, INC.
(Name of issuer in its charter)
DELAWARE 11-3129361
(State or other jurisdiction of incorporation) (I.R.S. Employer
Identification No.)
400 POST AVE SUITE 303, WESTBURY, NEW YORK 11590
(Address of principal executive offices) (Zip Code)
(516) 997-1155
Issuer's telephone number
Securities registered under Section 12(b) of the Exchange Act:
COMMON STOCK, $0.001 PAR VALUE
Securities registered under Section 12(g) of the Exchange Act:
NONE
Indicate by check mark whether the issuer (1) has filed all reports required to
be filed by section 13 or 15(d) of the Exchange Act during the past 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 [ X ] No [ ]
Indicate by check mark if disclosure of delinquent filers in response 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 the definitive proxy or information
statements incorporated by Reference in Part III of this Form 10-K/A or any
amendment to this Form 10-K/A [X ].
Aggregate market value of the voting stock held by non-affiliates computed by
reference to the price at which the stock sold, or the average bid and asked
price of such stock, as of June 30, 2004: $586,672,648.*
Number of shares outstanding of the issuer's common equity, as of March 1, 2005
(Exclusive of securities convertible into common equity): 45,282,536.
DOCUMENTS INCORPORATED BY REFERENCE: None
* Excludes 6,634,799 shares of Common Stock held by directors, executives
officers and stockholders whose beneficial ownership exceeds 10% of the shares
outstanding. Exclusion of shares held by any person should not be construed to
indicate that such person possesses the power, direct or indirect, to direct or
cause the direction of the management or policies of the Registrant, or that
such person is controlled by or under common control of the Registrant.
EXPLANATORY NOTE
This Amendment No. 2 on Form 10-K/A to the Annual Report on Form 10-K
of to DHB Industries, Inc. (the "Company") for the fiscal year ended December
31, 2004 (the "Original Filing"), which was filed with the Securities and
Exchange Commission on March 17, 2005, is being filed to further amend the
Original Filing as follows:
o Item 9A is amended to update Management Report on Internal Control
Over Financial Reporting to include management's assessment of the
effectiveness of the Company's internal control over financial
reporting;
o Item 9A is amended to include the related attestation report of the
independent registered public accounting firm; and
o Item 9A is amended to include certain additional information and
revise certain other information.
This Amendment No. 2 is filed pursuant to Securities and Exchange Commission
Release No. 34-50754 which provides up to 45 additional days beyond the date of
the Original Filing for the filing of the above.
As a result of these amendments, the certifications pursuant to Section 302 of
the Sarbanes-Oxley Act of 2002, filed as exhibits to the Original Filing, have
been re-executed and re-filed as of the date of this Form 10-K/A.
Except for the revisions to Item 9A and the other amendments described above,
this Form 10-K/A does not modify or update other disclosures in, or exhibits to,
the Original Filing.
ITEM 9A. CONTROLS AND PROCEDURES
Attached as exhibits to this Form 10-K/A are certifications of our
Chief Executive Officer (CEO) and Chief Financial Officer (CFO), which are
required in accordance with Rule 13a-14 of the Securities Exchange Act of 1934,
as amended (the Exchange Act). This "Controls and Procedures" section includes
information concerning the controls and controls evaluation referred to in the
certifications.
EVALUATION OF DISCLOSURE CONTROLS AND PROCEDURES
We conducted an evaluation of the effectiveness of the design and
operation of our disclosure controls and procedures as of the end of the period
covered by this report. The disclosure controls and procedures evaluation was
conducted under the supervision and with the participation of management,
including our CEO and CFO. Disclosure controls and procedures are controls and
procedures that are designed to ensure that information required to be disclosed
in our reports filed under the Exchange Act is recorded, processed, summarized
and reported within the time periods specified in the rules and forms of the
Securities and Exchange Commission (the "SEC"). Disclosure controls and
procedures are also designed to ensure that such information required to be
disclosed in our reports filed under the Exchange Act is accumulated and
communicated to our management, including the CEO and CFO, as appropriate to
allow timely decisions regarding required disclosure. Our quarterly evaluation
of disclosure controls and procedures includes an evaluation of some components
of our internal control over financial reporting, and internal control over
financial reporting is also separately evaluated on an annual basis for purposes
of providing the management report which is set forth below.
The evaluation of our disclosure controls and procedures included a
review of the controls' objectives and design, our implementation of the
controls and the effect of the controls on the information generated for use in
this report. This type of evaluation is performed on a quarterly basis so that
the conclusions of management, including the CEO and CFO, concerning the
effectiveness of the disclosure controls and procedures can be reported in our
periodic reports on Form 10-Q and Form 10-K. The overall goals of our evaluation
activities are to monitor our disclosure controls and procedures, and to modify
them as necessary. Our intent is to maintain our disclosure controls and
procedures as dynamic systems that change as conditions warrant.
Based upon the disclosure controls and procedures evaluation, our CEO
and CFO have concluded that, as of the end of the period covered by this report,
our disclosure controls and procedures were effective to ensure that information
required to be disclosed in our reports filed under the Exchange Act is
recorded, processed, summarized and reported within the time periods specified
in the SEC's rules and forms and that information required to be disclosed in
our reports filed under the Exchange Act is accumulated and communicated to our
management, including the CEO and CFO, as appropriate to allow timely decisions
regarding required disclosure.
MANAGEMENT REPORT ON INTERNAL CONTROL OVER FINANCIAL REPORTING
The management of the Company is responsible for establishing and
maintaining adequate internal control over financial reporting. Internal control
over financial reporting is defined in Rule 13a-15(f) promulgated under the
Exchange Act as a process designed by, or under the supervision of, the
Company's principal executive and principal financial officers and effected by
the Company's board of directors, management and other personnel, to provide
reasonable assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in accordance with
generally accepted accounting principles and includes those policies and
procedures that:
o Pertain to the maintenance of records that in reasonable detail
accurately and fairly reflect the transactions and dispositions of the
assets of the Company;
o Provide reasonable assurance that transactions are recorded as
necessary to permit preparation of financial statements in accordance
with generally accepted accounting principles and that receipts and
expenditures of the Company are being made only in accordance with
authorizations of management and directors of the Company; and
o Provide reasonable assurance regarding prevention or timely detection
of unauthorized acquisition, use or disposition of the Company's
assets that could have a material effect on the financial statements.
Because of its inherent limitations, internal control over financial
reporting may not prevent or detect misstatements. Projections of any evaluation
of effectiveness to future periods are subject to the risk that controls may
become inadequate because of changes in conditions, or that the degree of
compliance with the policies and procedures may deteriorate.
The Company's management, including the principal executive officer and
principal financial officer, has conducted an assessment of its internal control
over financial reporting as of December 31, 2004, based on criteria established
in Internal Control - Integrated Framework issued by the Committee of Sponsoring
Organizations of the Treadway Commission ("COSO").
As mentioned in the Company's filing on Form 8-K dated April 14, 2005,
as of December 31, 2004, there existed certain significant deficiencies in the
Company's systems of inventory valuation rendering it inadequate to accurately
capture cost of materials and labor components of certain work in progress and
finished goods inventory. Accordingly, management determined this control
deficiency constitutes a material weakness and therefore the Company did not
maintain effective internal controls over financial reporting as of December 31,
2004. This deficiency did not affect the Company's financial statements or
require any adjustment to the valuation of its inventory or any other item in
its financial statements.
Management is actively working to strengthen its internal controls
relating to the matters described above and such efforts include: instituting
additional controls, enforcing existing policies and providing oversight with
respect to insuring that the Company accurately captures the cost of materials
and labor components of certain work in process and finished good inventory,
hiring an additional inventory manager, and continuing to interview candidates
with the intention of hiring additional personnel to provide additional support
in implementing and improving the Company's system. Management, including the
Chief Executive Officer and the Chief Financial Officer, believes the results of
the corrective actions initiated by the Company will be effective in addressing
the deficiency in internal controls described above.
Weiser LLP, our independent registered public accounting firm that
audited the 2004 and 2003 financial statements included in this Annual Report on
Form 10-K, has issued an audit report on management's assessment of the
Company's internal control over financial reporting, which appears below.
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and
Stockholders of DHB Industries, Inc.
We have audited management's assessment, included in the accompanying
Management's Report On Internal Control Over Financial Reporting, that DHB
Industries, Inc and Subsidiaries (the "Company") did not maintain effective
internal control over financial reporting as of December 31, 2004, based on
criteria established in Internal Control - Integrated Framework issued by the
Committee of Sponsoring Organization of the Treadway Commission (COSO). The
Company's management is responsible for maintaining effective internal control
over financial reporting and for its assessment of the effectiveness of internal
control over financial reporting. Our responsibility is to express an opinion on
management's assessment and an opinion on the effectiveness of the Company's
internal control over financial reporting based on our audit.
We conducted our audit in accordance with the standards of the Public Company
Accounting Oversight Board (United States). Those standards require that we plan
and perform the audit to obtain reasonable assurance about whether effective
internal control over financial reporting was maintained in all material
respects. Our audit included obtaining an understanding of internal control over
financial reporting, evaluating management's assessment, testing and evaluating
the design and operating effectiveness of internal control, and performing such
other procedures as we considered necessary in the circumstances. We believe
that our audit provides a reasonable basis for our opinion.
A company's internal control over financial reporting is a process designed to
provide reasonable assurance regarding the reliability of financial reporting
and the preparation of financial statements for external purposes in accordance
with generally accepted accounting principles. A company's internal control over
financial reporting includes those policies and procedures that (1) pertain to
the maintenance of records that, in reasonable detail, accurately and fairly
reflect the transactions and dispositions of the assets of the company; (2)
provide reasonable assurance that transactions are recorded as necessary to
permit preparation of financial statements in accordance with generally accepted
accounting principles, and that receipts and expenditures of the company are
being made only in accordance with authorizations of management and directors of
the company; and (3) provide reasonable assurance regarding prevention or timely
detection of unauthorized acquisition, use, or disposition of the company's
assets that could have a material effect on the financial statements.
Because of its inherent limitations, internal control over financial reporting
may not prevent or detect misstatements. Also, projections of any evaluation of
effectiveness to future periods are subject to the risk that controls may become
inadequate because of the changes in conditions, or that the degree of
compliance with the policies or procedures may deteriorate.
A material weakness is a control deficiency, or combination of control
deficiencies, that results in more than a remote likelihood that a material
misstatement of the annual or interim financial statements will not be prevented
or detected. We have identified the following two material weaknesses that have
not been identified as material weaknesses in management's assessment:
o The Company transmitted its annual report on Form 10-K for the year
ended December 31, 2004 for filing via EDGAR with the Securities and
Exchange Commission having been informed by representatives of Weiser
LLP, its auditors, that it had not completed its final review of the
last revisions to the Form 10-K and accordingly had not yet released
its audit report for filing. Despite Weiser's call, the 2004 Form 10-K
was forwarded to the SEC for filing. Subsequently the Company amended
the Form 10-K by filing a Form 10-K/A to include revisions to its
financial statements and certain other changes. Such revisions were to
amend certain financial information including the Note Payable-Bank on
the consolidated balance sheet, and the related footnote, Note 6-Note
Payable-Bank, as well as the discussion of the Note Payable-Bank in
Liquidity and Capital Resources, Note 2 Supplemental Cash Flow
Information, Note 9 Stockholders' Equity, and to correct the omission
of the 2004 amount on the line titled "Accounts receivable" under the
caption "Cash Flows from Operating Activities" in the Consolidated
Statement of Cash Flows.
o The conduct of the audit committee did not demonstrate its
understanding of its oversight role of the Company's external
financial reporting and internal control over financial reporting
processes.
These material weaknesses were considered in determining the nature, timing, and
extent of audit tests applied in our audit of the 2004 financial statements, and
this report does not affect our report dated March 6, 2005 (except for Note 6,
as to which the date is March 15, 2005) on those financial statements.
In our opinion, because of the effect of the two material weaknesses described
above on the achievement of the objectives of the control criteria which were
not addressed in management's assessment, although we believe that management's
assessment that DHB Industries, Inc. and Subsidiaries did not maintain effective
internal control over financial reporting as of December 31, 2004 is correct, we
believe it is not fairly stated, in all material respects, based on criteria
established in Internal Control - Integrated Framework issued by the Committee
of Sponsoring Organizations of the Treadway Commission (COSO) in that it failed
to cite such two material weaknesses. Also, in our opinion, because of the
effect of the material weaknesses described above on the achievement of the
objectives of the control criteria, and the significant deficiencies in the
Company's systems of inventory valuation addressed in Management Report On
Internal Control Over Financial Reporting and determined by management to be a
material weakness, DHB Industries, Inc. and Subsidiaries has not maintained
effective internal control over financial reporting as of December 31, 2004,
based on criteria established in Internal Control - Integrated Framework issued
by the Committee of Sponsoring Organizations of the Treadway Commission (COSO).
Weiser LLP
New York, NY
March 16, 2005
DIFFERENCE OF OPINION ON MANAGEMENT'S ASSESSMENT OF INTERNAL CONTROLS.
The attestation report of Weiser LLP identifies what that firm
considers to be two additional material weaknesses in internal controls: (1)
failure of the Company to complete consultation with Weiser LLP prior to filing
Form 10-K for the year ended December 31, 2004 (an amended form 10-K was
promptly filed thereafter to include certain changes to the financial statements
as set forth in Form 8-K filed by the Company dated April 14, 2005); and (2) a
need to enhance and strengthen the Audit Committee to improve the Committee's
effectiveness. The Company believes that, to a significant degree, an evaluation
of these two issues involves subjective judgment and the Company does not agree
that either of these matters constitutes a material weakness in internal control
over financial reporting. The Company promptly took action to amend the 2004
Form 10-K when it learned that Weiser LLP identified issues that required
correction in connection with its final review of the Form 10-K, and the Form
10-KA was filed before the Form 10-K was disclosed to the public. Furthermore,
the Company believes that the members of its Audit Committee have consistently
fulfilled their duties and obligations responsibly and appropriately. Although
the Company does not believe that Weiser LLP has a proper basis for its
conclusions, the Company takes Weiser LLP's views seriously and intends to
explore opportunities to improve the process of preparing its filings with the
Securities and Exchange Commission and the effectiveness of its Audit Committee.
INHERENT LIMITATIONS ON EFFECTIVENESS OF CONTROLS
Our management, including our CEO and CFO, does not expect that our
disclosure controls and procedures or our internal control over financial
reporting will prevent or detect all error and all fraud. A control system, no
matter how well designed and operated, can provide only reasonable, not
absolute, assurance that the control system's objectives will be met. 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.
Further, because of the inherent limitations in all control systems, no
evaluation of controls can provide absolute assurance that misstatements due to
error or fraud will not occur or 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. Controls can also 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 is based in part on 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. Projections of any
evaluation of controls effectiveness to future periods are subject to risks.
Over time, controls may become inadequate because of changes in conditions or
deterioration in the degree of compliance with policies or procedures.
CHANGES IN INTERNAL CONTROL OVER FINANCIAL REPORTING.
There have not been any changes in the Company's internal control over
financial reporting, as such term is defined in Rules 13a-15(f) and 15d-15(f)
under the Exchange Act during the Company's fiscal quarter ended December 31,
2004 that have materially affected, or are reasonably likely to materially
affect, the Company's internal control over financial reporting. However, in
connection with the material weakness in internal control over financial
reporting discussed above, the Company has taken actions described above to
address this matter.
PRIOR IMPROVEMENTS IN INTERNAL CONTROLS
As disclosed in our Form 8-K filed on August 27, 2003, Grant Thornton,
our former independent accountants, informed us that they considered there to be
certain deficiencies in our internal control procedures that would be deemed to
be a material weakness under standards established by the American Institute of
Certified Public Accountants. Grant Thornton made this determination in
connection with the preparation of our consolidated financial statements as of
and for the fiscal year ended December 31, 2002 for inclusion in our Form
10-K/A, which was filed on July 24, 2003 to amend our Form 10-K for the fiscal
year ended December 31, 2002 filed on March 31, 2003. The opinion of Grant
Thornton in the Form 10-K/A did not contain an adverse opinion or disclaimer of
opinion and was not qualified or modified as to uncertainty, audit scope or
accounting principles.
Grant Thornton informed us and our Audit Committee of these
deficiencies in a letter delivered on August 20, 2003. These deficiencies
included the failure to disclose certain related party transactions in our Form
10-K for the fiscal year ended December 31, 2002, our reliance on substantial
outside assistance from outside professionals in preparing our financial
statements, and understaffing in our accounting and finance department. Our Form
10-K/A filed on July 24, 2003 fully disclosed the related party transactions.
Following receipt of the letter from Grant Thornton, the Audit
Committee directed management to dedicate resources and take additional steps to
strengthen its control processes and procedures to ensure that these internal
control deficiencies would not result in a material misstatement in our
financial statements. As of the end of March 2004, we had implemented the
following additional procedures:
o During 2003, our CFO explained in detail to our Chairman and CEO the
requirements with respect to disclosure of related party transactions.
o Our CFO distributed a questionnaire to each of our officers and
directors specific to related party transactions and our CFO has
pursued and will continue to pursue rigorous follow-up with our
directors and executive officers regarding their responses to annual
questionnaires used in preparing our Form 10-K and proxy materials.
o Our CFO has developed a financial statement disclosure checklist to be
completed by the CFO each time we prepare financial statements.
o We have begun the preparation of our quarterly and annual financial
statements sooner after the end of each fiscal quarter and fiscal
year. We have undertaken an additional layer of internal review prior
to delivering drafts to our outside professionals.
o Our Chairman and CEO and CFO continue to reinforce with our auditors
their ability to communicate with and obtain information from lower
level personnel in our accounting and finance department by fostering
direct contact with the accounting and financial personnel.
o We have evaluated and implemented further delegation and allocation of
responsibilities within our accounting and finance department to
facilitate prompt availability of financial information.
o We continue to review, confirm and clarify with our personnel their
specific functions and responsibilities to promote the orderly flow
and availability of financial data and information.
We will continue to: (a) evaluate the effectiveness of our internal
controls and procedures on an ongoing basis, (b) implement actions to enhance
our resources and training in the area of financial reporting and disclosure
responsibilities, and (c) review such actions with the Audit Committee and our
independent accountants.
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 to be signed on
its behalf by the undersigned, thereunto duly authorized on this 2nd day of May
2005.
DHB INDUSTRIES, INC.
/s/ DAVID H. BROOKS
_______________________
David H. Brooks
Chief Executive Officer