UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K/A
(Amendment No. 1)
(Mark One)
| x | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the fiscal year ended June 30, 2009
| ¨ | 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 0-15086
SUN MICROSYSTEMS, INC.
(Exact name of registrant as specified in its charter)
| Delaware | 94-2805249 | |
| (State of incorporation) | (I.R.S. Employer Identification No.) |
| 4150 Network Circle Santa Clara, CA 95054 |
(650) 960-1300 | |
| (Address of principal executive offices, including zip code) |
(Registrant’s telephone number, including area code) |
Securities registered pursuant to Section 12(b) of the Act:
| Title of Each Class |
Name of Each Exchange on Which Registered | |
| Common Stock | The NASDAQ Stock Market, LLC |
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 x 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 ¨ NO x
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 x 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 (§229.405 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 ¨ NO ¨
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. x
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 definition of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
| Large accelerated filer | x | Accelerated filer | ¨ | |||
| Non-accelerated filer | ¨ | Smaller reporting company | ¨ | |||
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). YES ¨ NO x
The aggregate market value of the voting stock (Common Stock) held by non-affiliates of the registrant, as of December 26, 2008 (the last business day of registrant’s second quarter of fiscal 2009), was approximately $2 billion based upon the last sale price reported for such date on The NASDAQ Global Select Market. For purposes of this disclosure, shares of Common Stock held by persons who hold more than 5% of the outstanding shares of Common Stock and shares held by officers and directors of the Registrant have been excluded because such persons may be deemed to be affiliates. This determination is not necessarily conclusive.
The number of shares of the registrant’s Common Stock (par value $0.001) outstanding as of August 21, 2009 was 753,363,885.
DOCUMENTS INCORPORATED BY REFERENCE
Parts of the Proxy Statement for the 2009 Annual Meeting of Stockholders are incorporated by reference into Items 10, 11, 12, 13 and 14 hereof.
EXPLANATORY NOTE
This Amendment No. 1 on Form 10-K/A (“Amendment No. 1”) amends the Annual Report of Sun Microsystems, Inc. (the “Company”) on Form 10-K for the fiscal year ended June 30, 2009, as filed with the Securities and Exchange Commission on August 28, 2009 (the “Original Filing”). This Amendment No. 1 is being filed solely for the purpose of correcting an inadvertent omission of the conformed signature of Ernst & Young, LLP, our independent registered public accounting firm, in (i) each “Report of Independent Registered Public Accounting Firm” in Part II, Item 8 of the Original Filing and (ii) the “Consent of Independent Registered Public Accounting Firm” in Exhibit 23.1 to the Original Filing.
This Amendment No. 1 does not reflect events occurring after the Original Filing, or modify or update the disclosures therein in any way other than as required to reflect the amendment set forth below.
Report of Independent Registered Public Accounting Firm
The Board of Directors and Stockholders of Sun Microsystems, Inc.
We have audited the accompanying consolidated balance sheets of Sun Microsystems, Inc. as of June 30, 2009 and 2008, and the related consolidated statements of operations, stockholders’ equity, and cash flows for each of the three years in the period ended June 30, 2009. These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these financial statements based on our audits.
We conducted our audits 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 the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in all material respects, the consolidated financial position of Sun Microsystems, Inc. at June 30, 2009 and 2008, and the consolidated results of its operations and its cash flows for each of the three years in the period ended June 30, 2009, in conformity with U.S. generally accepted accounting principles.
As discussed in Note 10 to the consolidated financial statements, in fiscal year 2008, Sun Microsystems, Inc. changed its method of accounting for uncertain tax positions in accordance with guidance provided in Financial Accounting Standards Board Interpretation No. 48, “Accounting for Uncertainty in Income Taxes — an interpretation of FASB Statement No. 109”.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), Sun Microsystems, Inc.’s internal control over financial reporting as of June 30, 2008, based on criteria established in Internal Control — Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission and our report dated August 28, 2009 expressed an unqualified opinion thereon.
| /s/ ERNST & YOUNG LLP |
| San Jose, California |
| August 28, 2009 |
Report of Independent Registered Public Accounting Firm
The Board of Directors and Stockholders of Sun Microsystems, Inc.
We have audited Sun Microsystems, Inc.’s internal control over financial reporting as of June 30, 2009, based on criteria established in Internal Control — Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (the COSO criteria). Sun Microsystems, Inc.’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 included in the accompanying Management’s Report on Internal Control over Financial Reporting. Our responsibility is to express an opinion on 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, assessing the risk that a material weakness exists, testing and evaluating the design and operating effectiveness of internal control based on the assessed risk, 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 changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
In our opinion, Sun Microsystems, Inc. maintained, in all material respects, effective internal control over financial reporting as of June 30, 2009, based on the COSO criteria.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the consolidated balance sheets of Sun Microsystems, Inc. as of June 30, 2009 and 2008, and the related consolidated statements of operations, stockholders’ equity, and cash flows for each of the three years in the period ended June 30, 2009 and our report dated August 28, 2009 expressed an unqualified opinion thereon.
| /s/ ERNST & YOUNG LLP |
| San Jose, California |
| August 28, 2009 |
PART IV
| ITEM 15. | EXHIBITS AND FINANCIAL STATEMENT SCHEDULES |
The following exhibits are filed as part of this report:
| Exhibit |
Exhibit Description |
Management Contract or Compensatory Plan or |
Incorporated by Reference | |||||||
| Arrangement |
Form | Exhibit | Filing Date | |||||||
| 23.1 |
Consent of Independent Registered Public Accounting Firm. | No | ||||||||
| 31.1 |
Rule 13a-14(a) Certification of Chief Executive Officer. | No | ||||||||
| 31.2 |
Rule 13a-14(a) Certification of Chief Financial Officer. | No | ||||||||
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this Annual Report on Form 10-K/A to be signed on its behalf by the undersigned, thereunto duly authorized.
| October 6, 2009 | SUN MICROSYSTEMS, INC. Registrant | |||
| By: | /s/ MICHAEL E. LEHMAN | |||
| (Michael E. Lehman) | ||||
| Chief Financial Officer and Executive Vice President, Corporate Resources | ||||
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 | ||
| * (Scott G. McNealy) |
Chairman of the Board of Directors |
October 6, 2009 | ||
| /s/ JONATHAN I. SCHWARTZ (Jonathan I. Schwartz) |
Chief Executive Officer, President and Director (Principal Executive Officer) |
October 6, 2009 | ||
| /s/ MICHAEL E. LEHMAN (Michael E. Lehman) |
Chief Financial Officer and Executive Vice President, Corporate Resources (Principal Financial Officer) |
October 6, 2009 | ||
| /s/ V. KALYANI CHATTERJEE-TANDON (V. Kalyani Chatterjee-Tandon) |
Vice President and Corporate Controller (Principal Accounting Officer) |
October 6, 2009 | ||
| * (James L. Barksdale) |
Director |
October 6, 2009 | ||
| * (Stephen M. Bennett) |
Director |
October 6, 2009 | ||
| * (Peter L.S. Currie) |
Director |
October 6, 2009 | ||
| * (Robert J. Finocchio, Jr.) |
Director |
October 6, 2009 | ||
| * (James H. Greene, Jr.) |
Director |
October 6, 2009 | ||
| * (Michael E. Marks) |
Director |
October 6, 2009 | ||
| * (Rahul N. Merchant) |
Director |
October 6, 2009 | ||
| * (Patricia E. Mitchell) |
Director |
October 6, 2009 | ||
| Signature |
Title |
Date | ||
| * (M. Kenneth Oshman) |
Director |
October 6, 2009 | ||
| * (P. Anthony Ridder) |
Director |
October 6, 2009 | ||
| *By: |
/s/ JONATHAN I. SCHWARTZ | |
| (Jonathan I. Schwartz) Attorney-in-Fact |