**UNITEDSTATESSECURITIES AND EXCHANGE COMMISSION****Washington,D.C. 20549**

 

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**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, 2004**                                                                                                                                                                |
|                                                                                                                                                                                                                 | ** **                                                                                                              |
|                                                                                                                                                                                                                 | **OR**                                                                                                                  |
|                                                                                                                                                                                                                 | ** **                                                                                                              |
| **o**                                                                                                                                                                                                                | **Transition  Report Pursuant to Section 13 or 15(d) of the  Securities Exchange Act of 1934** |
| **For the  transition period  from                             to** |

 

**CommissionFile Number: 0-24081**

 

**EVOLVINGSYSTEMS, INC.**

(Exact name of registrant asspecified in its charter)

 
| **Delaware**                                                                                    | ** ** | **84-1010843**         |
|------------------------------------------------------------------------------------------------------|------------|-----------------------------|
| (State or other  jurisdiction of                                                                     | ** ** | (IRS Employer               |
| incorporation or  organization)                                                                      | ** ** | Identification Number)      |
|                                                                                                 | ** ** |                        |
| **9777  Pyramid Court, Suite 100 Englewood, Colorado** (Address of principal executive offices) | ** ** | **80112**   (Zip Code) |

 

**(303) 802-1000**

** **(Registrant’s telephone number)

 

Securities registered under Section 12(b) ofthe Exchange Act: **None**

 

Securities registered under Section 12(g) ofthe Exchange Act:

 

**CommonStock, par value $0.001 per share**

(Title of class)

 

Indicateby check mark whether the registrant (1) has filed all reports required tobe filed by Section 13 or 15(d) of the Securities Exchange Act of1934 during the preceding 12 months (or for such shorter period that theregistrant was required to file such reports), and (2) has been subject tosuch filing requirements for the past 90 days. Yes ý    No o

 

Indicateby check mark if disclosure of delinquent filers pursuant to Item 405 ofRegulation S-K is not contained herein, and will not be contained, to thebest of registrant’s knowledge, in definitive proxy or information statementsincorporated by reference in Part III of this Form 10-K or anyamendment to this Form 10-K. ý

 

Indicateby check mark whether the registrant is an accelerated filer (as defined in Rule 12b-2of the Exchange Act).Yes o    No ý

 

Indicate bycheck mark whether the registrant is a shell company (as defined in Rule 12b-2of the Exchange Act).o  Yes  ý  No

 

 

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Theapproximate aggregate market value of the Common Stock held by non-affiliatesof the registrant, based upon the last sale price of the Common Stock reportedon the National Association of Securities Dealers Automated Quotation NationalMarket System was approximately $29,915,819 as of August 19, 2005.

 

The number of shares ofCommon Stock outstanding was 16,056,566 as of August 19, 2005.

 

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**EXPLANATORYNOTE**

 

As a result of comments we received from the staff of the Securitiesand Exchange Commission following a review of our Form 10-K for the yearended December 31, 2004, we are filing this Form 10-K/A to revise Part II,Item 9A, Controls and Procedures, in order to clarify that our Chief ExecutiveOfficer and Chief Financial Officer concluded that our internal control overfinancial reporting was effective as of December 31, 2004, and to disclosethe changes we adopted in internal controls over financial reporting as aresult of our acquisition of Tertio Telecoms Limited.

 

All other information in the original filing, including the financialstatements, is unchanged.  This Form 10-K/Aamends only the item specified above and does not otherwise update thedisclosures in the original filing or reflect events occurring after theoriginal filing.

 

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**FORM 10-K/AINDEX**

 

 
| PART II                                         |   |
|------------------------------------------------------|--------|
|                                                 |   |
| Item 9A. Controls and Procedures                     |   |
|                                                 |   |
| PART IV                                         |   |
|                                                 |   |
| Item 15. Exhibits and Financial Statement  Schedules |   |

 

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**PART II**

 

**Item 9A.   Controls andProcedures**

 

*Evaluation of disclosure controls and procedures.*    We maintain “disclosurecontrols and procedures,” as such term is defined in Rule 13a-15(e) underthe Securities Exchange Act of 1934 (the “Exchange Act”), that are designed toprovide reasonable assurance that information required to be disclosed by us inreports that we file or submit under the Exchange Act is recorded, processed,summarized, and reported within the time periods specified in Securities andExchange Commission rules and forms, and that such information isaccumulated and communicated to our management, including our Chief ExecutiveOfficer and Chief Financial Officer, as appropriate, to allow timely decisionsregarding required disclosure.

 

Our management, with theparticipation of the Chief Executive Officer and Chief Financial Officer, hasevaluated the effectiveness of our disclosure controls and procedures as of theend of the period covered by this Annual Report on Form 10-K.  Based on that evaluation, our Chief ExecutiveOfficer and Chief Financial Officer have concluded that our disclosure controlsand procedures were effective as of the end of such period.

 

In designing and evaluatingour disclosure controls and procedures, management recognized that disclosurecontrols and procedures, no matter how well conceived and operated, can provideonly reasonable, not absolute, assurance that the objectives of the disclosurecontrols and procedures are met. Additionally, in designing disclosure controls and procedures, ourmanagement necessarily was required to apply its judgment in evaluating thecost-benefit relationship of possible disclosure controls and procedures. Thedesign of any disclosure controls and procedures also is based in part uponcertain assumptions about the likelihood of future events, and there can be noassurance that any design will succeed in achieving its stated goals under allpotential future conditions.

 

*Changes ininternal control over financial reporting.*    During 2004, weadapted our internal control over financial reporting to accommodate theconsolidation of Tertio.   Specifically,we:

 

•                  Implemented internal control procedures overthe translation of financial statements denominated in a foreign currency, aswe did not previously have subsidiaries with a functional currency other thanthe United States dollar;

 

•                  Implemented internal control procedures toensure that the Tertio financial statements were properly converted from UnitedKingdom generally accepted accounting principles to United States generallyaccepted accounting principles.

 

Other than as detailedabove, there has not been any change in our internal control over financialreporting that occurred during the fourth quarter of the period covered by thisAnnual Report on Form 10-K that has materially affected, or is reasonablylikely to materially affect, our internal control over financial reporting.

 

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**PART IV**

 

**ITEM 15. Exhibits and Financial Statement Schedules**

 

**Exhibits.**

 
| **Exhibit   Number**** ** | ** ** | **Description of Document**** **                                                                                                                                                                                                                                                                                          |
|--------------------------------|------------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|                           |       |                                                                                                                                                                                                                                                                                                                           |
| 3.1†*                     |       | Restated Certificate of Incorporation.                                                                                                                                                                                                                                                                                         |
|                           |       |                                                                                                                                                                                                                                                                                                                           |
| 3.2†*                     |       | Amended and Restated Bylaws.                                                                                                                                                                                                                                                                                                   |
|                           |       |                                                                                                                                                                                                                                                                                                                           |
| 4.1†*                     |       | Reference is made to Exhibits 3.1 and 3.2.                                                                                                                                                                                                                                                                                     |
|                           |       |                                                                                                                                                                                                                                                                                                                           |
| 4.2†*                     |       | Specimen stock certificate representing shares of Common Stock.                                                                                                                                                                                                                                                                |
|                           |       |                                                                                                                                                                                                                                                                                                                           |
| 10.1†*                    |       | Indemnification Agreement, entered into by the Registrant and each of  its directors and executive officers, dated as of January 1, 1998.                                                                                                                                                                                 |
|                           |       |                                                                                                                                                                                                                                                                                                                           |
| 10.2†*                    |       | Amended and Restated Stock Option Plan.                                                                                                                                                                                                                                                                                        |
|                           |       |                                                                                                                                                                                                                                                                                                                           |
| 10.3†*                    |       | Employee Stock Purchase Plan.                                                                                                                                                                                                                                                                                                  |
|                           |       |                                                                                                                                                                                                                                                                                                                           |
| 10.10†*                   |       | Software Development Agreement, by and between the Registrant and  American Telephone and Telegraph Company, dated as of May 1, 1993. (The  division of American Telephone & Telegraph Company responsible for  this Agreement has split off from AT&T and is now known as Lucent  Technologies, Inc.). |
|                           |       |                                                                                                                                                                                                                                                                                                                           |
| 21*                            |       | Subsidiaries of the Registrant                                                                                                                                                                                                                                                                                                 |
|                           |       |                                                                                                                                                                                                                                                                                                                           |
| 23.1*                          |       | Consent of KPMG LLP, Independent Registered Public Accounting Firm.                                                                                                                                                                                                                                                            |
|                           |       |                                                                                                                                                                                                                                                                                                                           |
| 23.2*                          |       | Consent of PricewaterhouseCoopers LLP, Independent Registered Public  Accounting Firm.                                                                                                                                                                                                                                         |
|                           |       |                                                                                                                                                                                                                                                                                                                           |
| 24.1*                          |       | Power of Attorney.                                                                                                                                                                                                                                                                                                             |
|                           |       |                                                                                                                                                                                                                                                                                                                           |
| 31.1                           |       | Certification of Chief Executive Officer pursuant to Section 302  of the Sarbanes-Oxley Act of 2002                                                                                                                                                                                                                       |
|                           |       |                                                                                                                                                                                                                                                                                                                           |
| 31.2                           |       | Certification of Chief Financial Officer pursuant to Section 302  of the Sarbanes-Oxley Act of 2002                                                                                                                                                                                                                       |
|                           |       |                                                                                                                                                                                                                                                                                                                           |
| 32.1*                          |       | Certification of Chief Executive Officer pursuant to 18 U.S.C.  Section 1350, as adopted pursuant to Section 906 of the  Sarbanes-Oxley Act of 2002                                                                                                                                                                  |
|                           |       |                                                                                                                                                                                                                                                                                                                           |
| 32.2*                          |       | Certification of Chief Financial Officer pursuant to 18 U.S.C.  Section 1350, as adopted pursuant to Section 906 of the  Sarbanes-Oxley Act of 2002                                                                                                                                                                  |

 

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| † | Incorporated by reference to the Registrant’s Registration Statement  on Form S-1 No. 333-43973. |
|--------|-----------------------------------------------------------------------------------------------------------------|
| *      | Previously Filed                                                                                                |

 

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Theexhibits listed on the accompanying index to exhibits, immediately followingthe financial statement schedule are filed as part of, or incorporated byreference into, this Form 10-K/A.

 

Pursuant to the requirements of Section 13or 15(d) of the Securities Exchange Act of 1934, as amended, theregistrant has duly caused this report to be signed on its behalf by the undersigned;thereunto duly authorized, on the 23rd day of August, 2005.

 
|     | EVOLVING SYSTEMS, INC. |
|----------|------------------------|
|     |                   |
|     | By:                    | /S/ STEPHEN K. GARTSIDE, JR. |
|     |                   | Stephen K. Gartside, Jr. |
| * * | * *               | *President and Chief Executive Officer* |
| * * | * *               | *(Principal Executive Officer)* |

 

Pursuant to the requirements of theSecurities Exchange Act of 1934, the following persons on behalf of theRegistrant and in the capacities and on the dates indicated have signed thisreport below.

 
| **Signature**                  | ** ** | **Title**                              | ** ** | **Date**             |
|--------------------------------|------------|----------------------------------------|------------|----------------------|
| ** **                     | ** ** | ** **                             | ** ** | ** **           |
| /S/ STEPHEN K. GARTSIDE, JR.   |       | President  and Chief Executive Officer |       | August 23, 2005 |
| Stephen K.  Gartside, Jr. |       | (Principal  Executive Officer)         |       |                 |
|                           |       |                                   |       |                 |
| /S/ BRIAN R.  ERVINE           |       | Executive  Vice President,             |       | August 23, 2005 |
| Brian R.  Ervine               |       | Chief  Financial Officer               |       |                 |
|                           |       | (Principal  Financial                  |       |                 |
|                           |       | and  Accounting Officer)               |       |                 |
|                           |       |                                   |       |                 |
| *                              |       | Chairman of  the Board of Directors    |       | August 23, 2005 |
| George A.  Hallenbeck          |       |                                   |       |                 |
|                           |       |                                   |       |                 |
| /S/ PHILIP  M. NECHES          |       | Director                               |       | August 23, 2005 |
| Philip M.  Neches              |       |                                   |       |                 |
|                           |       |                                   |       |                 |
| *                              |       | Director                               |       | August 23, 2005 |
| David J.  Nicol                |       |                                   |       |                 |
|                           |       |                                   |       |                 |
| *                              |       | Director                               |       | August 23, 2005 |
| Steve B.  Warnecke             |       |                                   |       |                 |

 

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| *      | By:                            | /s/ STEPHEN  K. GARTSIDE, JR. |   |
|--------|--------------------------------|-------------------------------|--------|
|   | Stephen K.  Gartside, Jr. |
|   | (Attorney-in-Fact)             |

 

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**Exhibit Index**

 
| **Exhibit  Number** | ** ** | **Description of Document**                                                                                                                                                                                                                                                                                                    |
|---------------------|------------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|                |       |                                                                                                                                                                                                                                                                                                                           |
| 3.1†*          |       | Restated Certificate of Incorporation.                                                                                                                                                                                                                                                                                         |
|                |       |                                                                                                                                                                                                                                                                                                                           |
| 3.2†*          |       | Amended and Restated Bylaws.                                                                                                                                                                                                                                                                                                   |
|                |       |                                                                                                                                                                                                                                                                                                                           |
| 4.1†*          |       | Reference is made to Exhibits 3.1 and 3.2.                                                                                                                                                                                                                                                                                     |
|                |       |                                                                                                                                                                                                                                                                                                                           |
| 4.2†*          |       | Specimen stock certificate representing shares of Common Stock.                                                                                                                                                                                                                                                                |
|                |       |                                                                                                                                                                                                                                                                                                                           |
| 10.1†*         |       | Indemnification Agreement, entered into by the Registrant and each of  its directors and executive officers, dated as of January 1, 1998.                                                                                                                                                                                 |
|                |       |                                                                                                                                                                                                                                                                                                                           |
| 10.2†*         |       | Amended and Restated Stock Option Plan.                                                                                                                                                                                                                                                                                        |
|                |       |                                                                                                                                                                                                                                                                                                                           |
| 10.3†*         |       | Employee Stock Purchase Plan.                                                                                                                                                                                                                                                                                                  |
|                |       |                                                                                                                                                                                                                                                                                                                           |
| 10.10†*        |       | Software Development Agreement, by and between the Registrant and  American Telephone and Telegraph Company, dated as of May 1, 1993. (The  division of American Telephone & Telegraph Company responsible for  this Agreement has split off from AT&T and is now known as Lucent  Technologies, Inc.). |
|                |       |                                                                                                                                                                                                                                                                                                                           |
| 21*                 |       | Subsidiaries of the Registrant                                                                                                                                                                                                                                                                                                 |
|                |       |                                                                                                                                                                                                                                                                                                                           |
| 23.1*               |       | Consent of KPMG LLP, Independent Registered Public Accounting Firm.                                                                                                                                                                                                                                                            |
|                |       |                                                                                                                                                                                                                                                                                                                           |
| 23.2*               |       | Consent of PricewaterhouseCoopers LLP, Independent Registered Public  Accounting Firm.                                                                                                                                                                                                                                         |
|                |       |                                                                                                                                                                                                                                                                                                                           |
| 24.1*               |       | Power of Attorney.                                                                                                                                                                                                                                                                                                             |
|                |       |                                                                                                                                                                                                                                                                                                                           |
| 31.1                |       | Certification of Chief Executive Officer pursuant to Section 302  of the Sarbanes-Oxley Act of 2002                                                                                                                                                                                                                       |
|                |       |                                                                                                                                                                                                                                                                                                                           |
| 31.2                |       | Certification of Chief Financial Officer pursuant to Section 302  of the Sarbanes-Oxley Act of 2002                                                                                                                                                                                                                       |
|                |       |                                                                                                                                                                                                                                                                                                                           |
| 32.1*               |       | Certification of Chief Executive Officer pursuant to 18 U.S.C.  Section 1350, as adopted pursuant to Section 906 of the  Sarbanes-Oxley Act of 2002                                                                                                                                                                  |
|                |       |                                                                                                                                                                                                                                                                                                                           |
| 32.2*               |       | Certification of Chief Financial Officer pursuant to 18 U.S.C.  Section 1350, as adopted pursuant to Section 906 of the  Sarbanes-Oxley Act of 2002                                                                                                                                                                  |

 

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| † | Incorporated by reference to the Registrant’s Registration Statement  on Form S-1 No. 333-43973. |
|--------|-----------------------------------------------------------------------------------------------------------------|
| *      | Previously Filed                                                                                                |

 

Theexhibits listed on the accompanying index to exhibits, immediately followingthe financial statement schedule are filed as part of, or incorporated byreference into, this Form 10-K/A.

 

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