UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
__________________
FORM
10-K
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(Mark
One)
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S
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ANNUAL
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934
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For
the fiscal year ended December 31,
2009
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£
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TRANSITION
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934
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For
the transition period from
__________ to __________
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Commission
File Number: 0-21174
__________________
Avid
Technology, Inc.
(Exact Name of Registrant as
Specified in Its Charter)
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Delaware
(State
or Other Jurisdiction of
Incorporation
or Organization)
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04-2977748
(I.R.S.
Employer
Identification
No.)
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One
Park West
Tewksbury,
Massachusetts 01876
(Address
of Principal Executive Offices, Including Zip Code)
(978)
640-6789
(Registrant’s
Telephone Number, Including Area Code)
Securities
Registered Pursuant to Section 12(b) of the Act:
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Title of Each
Class
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Name of Exchange on
which registered
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Common
Stock, $.01 Par Value
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NASDAQ
Global Select Market
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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 £ No
S
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
S
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 S No
£
Indicate
by check mark whether the registrant has submitted 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 during the preceding 12 months (or
for such shorter period that the registrant was required to submit and post such
files). Yes o 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. S
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
the definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act.
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Large
Accelerated Filer £
Non-accelerated
Filer £
(Do
not check if smaller reporting company)
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Accelerated
Filer S
Smaller
Reporting Company £
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Indicate
by check mark whether the registrant is a shell company (as defined in Rule
12b-2 of the Exchange Act). Yes £ No
S
The
aggregate market value of the voting stock held by non-affiliates of the
registrant was approximately $379,742,000 based on the closing price of the
Common Stock on the NASDAQ National Market on June 30, 2009. The
number of shares outstanding of the registrant’s Common Stock as of March 11,
2010 was 37,668,506.
Documents Incorporated by
Reference
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Document
Description
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10-K
Part
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Portions
of the Registrant’s Proxy Statement for the 2010 Annual Meeting of
Stockholders
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III
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AVID
TECHNOLOGY, INC.
FORM
10-K
FOR
THE FISCAL YEAR ENDED DECEMBER 31, 2009
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F-1
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This
annual report on Form 10-K includes forward-looking statements within the
meaning of Section 21E of the Securities Exchange Act of 1934, as amended, or
the Exchange Act, and Section 27A of the Securities Act of 1933, as amended, or
the Securities Act. For this purpose, any statements contained in this annual
report regarding our strategy, future plans or operations, financial position,
future revenues, projected costs, prospects, and objectives of management, other
than statements of historical facts, may be deemed to be forward-looking
statements. Without limiting the foregoing, the words “believes,” “anticipates,”
“plans,” “expects” and similar expressions are intended to identify
forward-looking statements, although not all forward-looking statements contain
these identifying words. We cannot guarantee that we actually will achieve the
plans, intentions or expectations expressed or implied in forward-looking
statements. There are a number of factors that could cause actual events or
results to differ materially from those indicated or implied by forward-looking
statements, many of which are beyond our control, including the risk factors
discussed in Item 1A of this annual report. In addition, the forward-looking
statements contained in this annual report represent our estimates only as of
the date of this filing and should not be relied upon as representing our
estimates as of any subsequent date. While we may elect to update these
forward-looking statements at some point in the future, we specifically disclaim
any obligation to do so, whether to reflect actual results, changes in
assumptions, changes in other factors affecting such forward-looking statements
or otherwise.
The
information included under the heading “Stock Performance Graph” in Item 5 of
this annual report is “furnished” and not “filed” and shall not be deemed to be
“soliciting material” or subject to Regulation 14A, shall not be deemed “filed”
for purposes of Section 18 of the Exchange Act or otherwise subject to the
liabilities of that section, nor shall it be deemed incorporated by reference in
any filing under the Securities Act or the Exchange Act.
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ITEM
1.
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BUSINESS
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OVERVIEW
We are a
leading provider of digital media content-creation solutions for film, video,
audio and broadcast professionals, as well as artists and home enthusiasts. Our
mission is to inspire passion, unleash creativity and enable our customers to
realize their dreams in a digital world. Anyone who enjoys movies, television or
music has almost certainly experienced the work of content creators who use our
solutions to bring their creative visions to life. Around the globe, feature
films, primetime television shows, commercials and chart-topping music hits are
made using one or more of our solutions.
We have
been honored over time for our technological innovation with twelve EmmyÒ
awards, a GrammyÒ
award and two OscarÒ
statuettes, one for the concept, design and engineering of our Avid Film
Composer system for motion picture editing and the other for the design,
development and implementation of our Pro Tools digital audio workstation. Most
recently, on February 14, 2010, we were honored to receive the first-ever
Technical Excellence award presented by the American Cinema Editors, or A.C.E.,
for our Media Composer professional video-editing solution. Additionally, on
February 27, 2010, we received a Technical Achievement award from the Cinema
Audio Society for our Pro Tools 8 professional recording and mixing
software.
Although
we take pride in the honors bestowed upon us, greater satisfaction comes from
awards given to our customers for the films, music and television shows they
create using our solutions. The 2010 awards season once again marked tremendous
accomplishment for our customers across the music, film and television
industries. Collectively, Avid customers took home more than 50 top honor awards
at the 2010 Grammy, A.C.E. and Oscar Awards in categories that included: Grammy
wins for Record of the Year and Album of the Year, A.C.E. Eddie wins for Best
Edited Feature Film, Best Edited One Hour Commercial Television and Best Edited
Reality Series, and Oscar wins for Best Motion Picture, Achievement in Sound
Mixing, Achievement in Sound Editing and Achievement in Film Editing, among
others.
BUSINESS
TRANSFORMATION
We have
customers throughout the world who rely on us to develop products tailored to
their unique needs and requirements that will help their businesses to succeed.
For their long-term success and our own, we committed in July 2008 to becoming a
more efficient, innovative and customer-centric company. We initiated a
significant transformation of our business that included, among other things,
establishing a new management team, developing a new corporate strategy,
reorganizing our internal structure, improving operational efficiencies,
divesting non-core product lines and reducing the size of our workforce. We
believe our efforts over the last 18 months have established a strategic and
organizational foundation from which we are positioned to build momentum in our
core business.
CORPORATE
STRATEGY
We
operate our business based on the following five customer-centric strategic
principles:
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Drive
customer success. We are
committed to making each and every customer successful. Period. It’s that
simple.
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From
enthusiasts to the enterprise. Whether performing live
or telling a story to sharing a vision or broadcasting the news – we
create products to support our customers at all
stages.
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Fluid,
dependable workflows. Reliability.
Flexibility. Ease of Use. High Performance. We provide best-in-class
workflows to make our customers more productive and
competitive.
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Collaborative
support. For the
individual user, the workgroup, a community or the enterprise, we enable a
collaborative environment for
success.
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Avid
optimized in an open ecosystem. Our
products are innovative, reliable, integrated and best-of-breed. We work
in partnership with a third-party community resulting in superior
interoperability.
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1
CUSTOMER
MARKET SEGMENTS
We
provide digital media content-creation solutions to customers in the six market
segments listed below. We actively listen to and work with our customers in each
market segment to provide comprehensive solutions that are tailored to their
unique needs and requirements.
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Education. This
market segment consists of elementary and secondary schools, career
technical education programs in high schools, colleges and universities,
post-secondary vocational schools, and all teachers and students. We offer
customers in this market segment industry-leading tools and technologies
for video, audio and music that enable students to unleash their
creativity and be prepared to succeed in a digital workplace. Our
solutions support the diverse technical environments found in schools and
on campuses. We sell directly into this market segment using our dedicated
education sales force and via e-commerce, as well as through distributors
and resellers.
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Creative
Enthusiasts. This market
segment is made up of individuals who are music, film or video enthusiasts
with varying degrees of involvement in content creation, ranging from
casual users to dedicated hobbyists, including amateur musicians, disc
jockeys and “prosumers.” For individuals in this market segment, we offer
powerful, user-friendly video and audio solutions at an affordable price.
These solutions are specifically designed for the home desktop or studio
and have rich feature sets but minimal learning curves. We sell into this
market segment through storefront and on-line retailers, through
specialized resellers and directly via
e-commerce.
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Independent
Professionals. This market
segment is made up of artists and independent professionals who earn or
aspire to make a full- or part-time living by engaging in filmmaking,
composing, video or music production, live sound performances, or
disc-jockeying. We provide scalable, innovative solutions to this market
segment that allow creative independents to pursue their artistic visions
with professional-grade tools at affordable prices. These powerful,
feature-rich solutions are accessible to persons of varying skill and
sophistication levels. We sell into this market segment through storefront
and on-line retailers, through specialized resellers and directly via
e-commerce.
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Government
and Commercial. This market
segment comprises corporate and industrial users, government agencies,
houses of worship and live sound managers. We offer
comprehensive, integrated and professional product solutions to these
customers, whether media creation is their primary business or only an
ancillary activity. We also provide a complementary array of professional
and consulting services that draw upon our deep domain expertise. We
primarily sell into the Commercial market segment through resellers and
directly to Government agencies.
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Post
Facilities. This market
segment consists of both enterprise-class and boutique, independent post
production facilities that offer services for the creation of music, film
and television content. For this market segment, we offer a wide range of
innovative products and solutions, including hardware
and software-based creative production tools, scalable media storage
options and collaborative workflows. Our extensive domain expertise also
allows us to provide customers in this market segment with a broad range
of professional services. We sell into this market segment through
our direct sales force and
resellers.
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Broadcast. This market
segment comprises both large- and small-scale public and private
broadcasters and media groups. For customers in this market segment, we
offer an array of broadcast production, content creation, automation and
graphics solutions. These solutions provide leading, open-architecture
technologies that enable efficient and flexible end-to-end workflows. We
sell into this market segment through our direct sales force, system
integrators and value-added
resellers.
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PRODUCTS
AND SERVICES
We
provide a broad range of software and hardware solutions, as well as services
offerings, to address the diverse needs, skills and sophistication levels found
within our customer market segments. Information about our reportable segments,
including revenues from external customers, contribution margin and total
assets, as well as a geographic breakdown of our revenues and long-lived assets,
can be found in Note O to our Consolidated Financial Statements in Item
8.
2
Video
Products
Professional
Video-Editing Solutions
We offer
a wide range of professional digital, nonlinear software and hardware
video-editing solutions. Our Media Composer product line is widely used to edit
television programs, commercials and films, while our NewsCutter and iNews
Instinct editors are designed for the fast-paced world of news production. Avid
Symphony Nitris DX and Avid DS are used during the “online” or “finishing” stage
of post production, during which the final program is assembled in high
resolution with finished graphics, visual effects, color grading and audio
tracks.
Our
professional video-editing solutions accounted for approximately 13%, 14% and
15% of our consolidated net revenues for 2009, 2008 and 2007,
respectively.
Consumer
Video-Editing Software
Our consumer video-editing
products, including Pinnacle Studio and Dazzle, provide consumers and
entry-level videographers with the ability to easily create professional-looking
videos. Our Pinnacle Studio product line is available in three
configurations, Pinnacle Studio, Pinnacle Studio Plus and Pinnacle Studio
Ultimate. Pinnacle Studio is designed for entry-level storytellers looking for a
quick and easy way to enhance and share their projects with family and friends.
Pinnacle Studio Plus and Pinnacle Studio Ultimate offer additional features such
as high-definition editing and output that are intended for advanced video
enthusiasts who require greater power, control and quality to create more
professional looking results.
Broadcast
Newsroom Solutions
Our
broadcast newsroom graphics, ingest, play-to-air and automation device control
solutions are designed to assist broadcasters as they bring programs from
concept to air. These products accelerate the production process by enabling
broadcasters to automate the control of ingest devices, manage teams of
broadcast journalists and editors, assemble stories into news programs, develop
and deliver real-time graphics for broadcast television, and automate the
process of playing television programming to air. Our on-air solutions include
our Deko, iNews, Sundance Digital and AirSpeed product lines.
Storage
and Workflow Solutions
Avid
Interplay is our scalable production asset management solution, designed to
enable large-scale collaboration and workflow automation for our post production
and broadcast customers. Interplay provides the core infrastructure that links
creative content production teams by integrating asset management, workflow
automation and security control. Interplay's modular architecture connects our
editing solutions, storage solutions and ingest and playout devices to automate
complex workflow processes, so that users can focus on creating content rather
than spending resources on technical administration.
Our Avid
Unity shared storage systems are modular and scalable and enable creative
professionals to collaborate on a wide range of digital formats. This product
line includes the enterprise-class Avid Unity ISIS system, which provides high
capacity, redundant storage to large numbers of users based on industry-standard
networking, and Avid Unity MediaNetwork, which is optimized for smaller
workgroups requiring high-performance collaboration.
On January 5, 2010, the
Company acquired Blue Order Solutions AG. Blue Order’s enterprise media
asset management platform, Media Archive, provides users with the ability to
easily access and use a wide range of media content, establish collaborative and
automated workflows, and manage intellectual property assets more
efficiently.
Our video
storage and workflow solutions accounted for approximately 16%, 16% and 15% of
our consolidated net revenues in 2009, 2008 and 2007,
respectively.
3
Audio
Products
Digital
Audio Software and Workstation Solutions
Our Pro
Tools digital audio software and workstation solutions facilitate the audio
production process, including music and sound creation, recording, editing,
signal processing, integrated surround mixing and mastering, and reference video
playback. The Pro Tools platform supports a wide variety of internally developed
and third-party software plug-ins and integrated hardware. Pro Tools solutions
are offered at a range of price points and are used by professionals or aspiring
professionals in music, film, television, radio, multimedia and
Internet production environments.
Aspiring or working
professionals can combine our Pro Tools LE or M-Powered software with our
musical instrument digital interface, or MIDI, keyboards/controllers, desktop
studio monitor speakers and a wide variety of third-party products to create
music and record and mix audio on their personal computers. Our Pro Tools|HD
workstations are designed for the environments in which established
professionals work — creative music production, broadcast, post production and
commercial business settings. These systems combine the processing power
available from integrated digital signal processor hardware and a computer’s
internal processor core to provide scalable power on demand.
Pro Tools
solutions accounted for approximately 17%, 14% and 15% of our consolidated net
revenues in 2009, 2008 and 2007, respectively.
Control
Surfaces
In the
large-format digital mixing console category, our ICON (Integrated Console
System) system features the D-Control and D-Command mixing surfaces, our
high-end, expandable hardware control surfaces for tactile control of Pro Tools
software and hardware. ICON systems can be customized to provide a solution for
any studio, providing from 16 to 80 channels of simultaneous control. An ICON
system, integrated with a Pro Tools|HD workstation, input-output and
pre-amplification peripherals, and studio reference monitors (speakers) options,
provides an end-to-end solution for audio professionals.
Audio
Interfaces
We offer
a wide range of audio interfaces that allow users to get high-quality sound in
and out of their computers. Our interfaces enable users to create audio
recordings on their personal computers using our Pro Tools software or
third-party product offerings.
Live
Systems Products
Our VENUE
product family includes products for mixing audio for live sound reinforcement
for concerts, theater performances and other public address events. We offer a
range of VENUE solutions that are designed for large performance settings, such
as stadium concerts, as well as medium-sized theatres and houses of worship.
VENUE systems allow the direct integration of Pro Tools systems to create and
playback live recordings.
Our MIDI
keyboards/controllers and our digital pianos are used by musicians in the
recording studio and for live performances.
Desktop
and Studio Monitors
We
provide a wide range of speakers for use with desktop computer systems and in
the studios of creative independents, established professionals, commercial
businesses, post production facilities and broadcasters. These monitors provide
high quality audio output at reasonable prices for those engaged in audio
production or simply personal listening.
Other
Software
Our
Sibelius-branded software allows users to electronically create, edit and
publish musical scores. Sibelius software is used by composers, arrangers and
other music professionals. Student versions are also available to assist in the
teaching of music composition and score writing.
4
We also provide the Torq computer-based
disc jockey performance software package. When combined with our purpose-built
M-Audio branded disc jockey hardware interfaces, Torq offers the flexibility and
immediacy of digital music with the traditional interaction model and
improvisational potential of vinyl recordings on turntables.
Customer
Support and Professional Services
Our
customer success and professional services organizations provide software and
application support and professional services. Our teams of in-house and
contract professionals are dedicated to helping our customers improve
efficiencies and realize the full potential of our products and solutions. Our
customer success team provides online and telephone support and access to
software upgrades for customers whose products are under warranty or covered by
a maintenance contract. Our professional services team provides installation,
integration, planning, consulting and training services. Our services revenues
are derived primarily from sales of maintenance contracts.
Customer
support and professional services revenues accounted for approximately 19%, 15%
and 13% of our consolidated net revenues in 2009, 2008 and 2007,
respectively.
COMPETITION
Our
customer market segments are highly competitive and subject to rapid change. Our
competition is fragmented with a large number of companies providing different
types of products in different market segments and geographic areas. We provide
integrated solutions that compete based on features, quality, service and price.
Companies with which we compete in some contexts may also act as partners in
other contexts, such as large enterprise customer environments. We compete
across multiple business units and market segments with companies such as Apple
Inc., Adobe Systems Incorporated and Sony Corporation.
Our
professional Video products compete with products offered by Apple, Autodesk,
Inc., Bit Central, Inc., Harris Corporation, Quantel Inc., Sony and Thomson
Grass Valley in most of our markets. Our consumer video-editing products compete
with software products offered by Adobe and Sony, as well as Corel Corporation,
Sonic Solutions and Magic AG.
Our Audio
products compete with products offered by Apple and Yamaha Corporation in many
of our market segments. Other companies
that compete with our Audio offerings include Loud Technologies, Inc. and Roland
Corporation.
SALES
AND SERVICE CHANNELS
We market
and sell our solutions through a combination of direct and indirect sales
channels, the latter of which include a global network of independent
distributors, value-added resellers, dealers and retailers. Our direct sales
channel consists of internal sales representatives serving select customers and
market segments, as well as our e-commerce sales programs. Net revenues derived
through indirect channels were approximately 67% for 2009, compared to 70% for
both 2008 and 2007.
We have
significant international operations with offices in 22 countries around the
world. Revenues from our international operations accounted for 58%, 61% and
58%, respectively, of our consolidated net revenues for 2009, 2008 and
2007.
We
generally ship our products shortly after the receipt of an order, which is
typical for our industry. Historically, a high percentage of our revenues has
been generated in the third month of each fiscal quarter and concentrated in the
latter part of that month. Accordingly, orders may exist at the end of a quarter
that have not been shipped and have not been recognized as revenues. Backlog
that may exist at the end of any quarter is not a reliable indicator of future
sales levels.
We have
historically experienced increased sales for our consumer video-editing products
and certain of our Audio products in the fourth quarter due to holiday season
demand. In the fourth quarter of 2008, we did not experience a sequential
increase in these sales, which we believe was largely the result of unfavorable
macroeconomic conditions. In the fourth quarter of 2009, coincident with a
modest improvement in the macroeconomic conditions, we once again experienced a
sequential increase in sales for certain of these products. The historical
patterns should not be considered a reliable indicator of future sales
levels.
5
We provide customer
service and support directly through regional support centers and major-market
field service representatives and indirectly through dealers, value-added
resellers and authorized third-party service providers. Depending on the
solution, customers may choose from a variety of support offerings, including
telephone and online technical support, on-site assistance, hardware replacement
and extended warranty, and software upgrades. In addition to support services,
we offer a broad array of professional services and customer training. Training
is also available at Avid-certified training centers around the
world.
MANUFACTURING
AND SUPPLIERS
Our
manufacturing operations consist primarily of the testing of subassemblies and
components purchased from third parties, the duplication of software, and the
configuration, assembly and testing of board sets, software, related hardware
components and complete systems. In addition to our internal manufacturing
operations, we rely on a network of contractors around the globe to manufacture
some of our products, components and subassemblies. Our products undergo testing
and quality assurance at the final assembly stage. We depend on sole-source
vendors for certain key hardware components. For the risks associated with our
use of contractors and sole-source vendors, see “Risk Factors” in Item 1A of
this annual report.
Our
company-operated manufacturing operations are currently located in: Tewksbury,
Massachusetts; Dublin, Ireland; and Mountain View, California. During 2010, our
Tewksbury manufacturing operations will relocate to newly leased facilities in
Burlington, Massachusetts.
Avid
Green Initiative
We
provide for the recycling of our products and removal of specific toxic
substances that may be found in our products as required by environmental
regulations. During 2007, we hired a corporate environmental manager, who
initially focused on the Waste Electrical and Electronic Equipment Directive, or
WEEE, and Restriction of the use of certain Hazardous Substances in electrical
and electronic equipment, or RoHS, compliance initiatives. Since that time, we
have continued to develop our “Design for Environment” program, which
incorporates environmental considerations into products from initial concept to
end-of-life, as well as our Corporate Environment Management
System.
In early
2010, we released our Avid Environmental Policy, which is based on the principle
that it is our responsibility to minimize our impact on the environment and
establishes the following environmental goals:
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·
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Endorse
product stewardship by adopting and integrating Design for Environment
practices to ensure minimal environmental impact throughout the product
lifecycle.
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Promote
environmental responsibility in our supply
chain.
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Adopt
the principles of reduce, reuse, and recycle while promoting
waste-reduction programs in our global
operations.
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Build
an Environmental Management System that
ensures:
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·
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goals
are established and monitored;
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processes
and technologies are continually reviewed for best
practices;
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·
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process
improvements are continuously championed;
and
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·
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all
employees are aware of and responsible for maintaining environmentally
sound business practices.
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·
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Continue
compliance with global laws and directives affecting our products and
operations.
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In 2009,
2008 and 2007, we incurred costs of approximately $0.7 million, $0.7 million and
$0.6 million, respectively, directly related to our environmental programs. We
expect our 2010 environmental costs to remain approximately the same as our 2009
costs.
6
INTELLECTUAL
PROPERTY
We regard
our software and hardware as proprietary and protect our proprietary interests
under the laws of patents, copyrights, trademarks and trade secrets, as well as
through contractual provisions.
We have
obtained patents and have registered copyrights, trademarks and service marks in
the United States and in many foreign countries. At December 31, 2009, we held
201 U.S. patents, with expiration dates through 2027, and had 49 patent
applications pending with the U.S. Patent and Trademark Office. We have also
registered or applied to register various trademarks and service marks in the
United States and a number of foreign countries, including Avid, Media Composer,
NewsCutter, Digidesign, Pro Tools, M-Audio and Sibelius. As a technology
company, we regard our patents, copyrights, trademarks, service marks and trade
secrets as being among our most valuable assets, together with the innovative
skills, technical competence and marketing abilities of our
personnel.
Our
software is licensed to end users pursuant to shrink-wrap, embedded,
click-through or signed paper license agreements. Our products generally contain
copy-protection and/or copy-detection features to guard against unauthorized
use. Policing unauthorized use of computer software is difficult, and software
piracy is a persistent problem for us, as it is for the software industry in
general. This problem is particularly acute in some of the international markets
in which we operate.
RESEARCH
AND DEVELOPMENT
We are
committed to delivering best-in-class digital media content-creation solutions
market-tailored to the unique needs, skills and sophistication levels of our
target customer market segments. We are known as a pioneer and innovator of
digital media content-creation solutions with research and development, or
R&D, centers around the globe. Our R&D efforts are focused on the
development of digital media content-creation tools and workgroup solutions that
operate primarily on the Macintosh and Windows platforms. Our R&D efforts
also include networking and storage initiatives intended to deliver
standards-based media transfer and media asset management tools, as well as
stand-alone and network-attached media storage systems for workgroups. In
addition to our internal R&D efforts, we are offshoring an increasing
portion of certain R&D projects to internationally based partners. Our
R&D expenditures for 2009, 2008 and 2007 were $121.0 million, $148.6 million
and $150.7 million, respectively. For the risks associated with our use of
partners for R&D projects, see “Risk Factors” in Item 1A of this annual
report.
Our
company-operated R&D operations are located in: Tewksbury, Massachusetts;
Daly City, California; Mountain View, California; Irwindale, California;
Madison, Wisconsin; Munich, Germany; Kaiserslautern, Germany; and London,
England. During 2010, our Tewksbury R&D operations will be relocated to
newly leased facilities in Burlington, Massachusetts.
OPERATIONS
We are
currently headquartered in Tewksbury, Massachusetts, with operations in the
United States, Canada, South America, Europe, Asia and Australia. During 2010,
our headquarters will be relocated to recently leased facilities in Burlington,
Massachusetts. We employed 2,142 people worldwide at December 31,
2009.
WEB
SITE ACCESS
We make
available free of charge on our website, www.avid.com, copies
of our annual reports on Form 10-K, our quarterly reports on Form 10-Q, our
current reports on Form 8-K and all amendments to those reports as soon as
practicable after filing with the Securities and Exchange Commission.
Additionally, we will provide paper copies of all of these filings free of
charge upon request. Alternatively, these reports can be accessed at the SEC’s
Internet website at www.sec.gov.
7
Investing
in our common stock involves a high degree of risk. You should carefully
consider the risks and uncertainties described below in addition to the other
information included or incorporated by reference in this annual report before
making an investment decision regarding our common stock. If any of the
following risks were to actually occur, our business, financial condition or
operating results would likely suffer, possibly materially, the trading price of
our common stock could decline, and you could lose part or all of your
investment.
Our
success depends in significant part on our ability to provide innovative
solutions in response to dynamic and rapidly evolving market
demand.
To
succeed in our market, we must deliver innovation. Innovation requires both that
we accurately predict future market trends and customer expectations and that we
possess the flexibility and nimbleness to quickly adapt our product roadmap and
development efforts in response. Predicting market trends is difficult, as our
market is dynamic and rapidly evolving. Additionally, given the complex,
sophisticated nature of our solutions and our typically lengthy product
development cycles, we may not be able to rapidly change our product direction
or strategic course. If we are unable to accurately predict market trends or
adapt to evolving market conditions, our ability to innovate and capture
customer demand will suffer and our financial performance and market reputation
will be negatively affected. Even to the extent we make accurate predictions and
possess the requisite flexibility to adapt, we may be able to pursue only a
handful of possible innovations as a result of limited resources. Our success,
therefore, further depends on our ability to identify and focus on the most
promising innovations. We additionally have the challenge of protecting our
product roadmap and new product initiatives from leaks to competitors that might
reduce or eliminate any innovative edge that we seek to gain.
Our
revenues and operating results depend on several variables and may fluctuate
from period to period.
Our
revenues and operating results depend on several variables, which include, but
are not limited to:
|
·
|
timing
and market acceptance of new product introductions by us and our
competitors;
|
|
·
|
competitive
pressure on product pricing;
|
|
·
|
mix
of products and services sold;
|
|
·
|
our
ability to recognize revenues from large or enterprise-wide
sales;
|
|
·
|
length
of sales cycles and associated
costs;
|
|
·
|
global
macroeconomic conditions;
|
|
·
|
changes
in operating expenses;
|
|
·
|
changes
in foreign currency exchange rates;
|
|
·
|
reliance
on third-party reseller and distribution
channels;
|
|
·
|
remedial
costs and reputational harm associated with product defects or
errors;
|
|
·
|
cost
of third-party technology or components incorporated into or bundled with
products sold;
|
|
·
|
seasonal
factors, such as higher consumer demand at year-end;
and
|
|
·
|
price
protections and provisions for inventory obsolescence extended to
resellers and distributors.
|
The
occurrence and interaction of these variables may cause our revenues and
operating results to fluctuate from period to period. As a result,
period-to-period comparisons of our revenues and operating results may not
provide a good indication of our future performance.
8
We
expect the global economic downturn to continue to have a negative impact on our
business, although the magnitude of that impact is uncertain.
We
believe that the global economic downturn negatively affected our revenues and
operating results in 2009. Although we are unable to predict future economic
conditions or the magnitude of the downturn’s impact on our business, global
economic activity is expected to remain slow. To the extent our customers’
businesses have been or expect to be negatively impacted by the economic
downturn, we anticipate that they may delay or postpone purchases of our
solutions. Of additional concern, certain of our professional customers rely on
credit to finance purchases of our solutions, including through third-party
leasing arrangements that we offer. Credit markets remain constrained by
historic standards; to the extent credit is unavailable, even customers
otherwise willing to proceed with purchases might be unable to do so unless or
until they are able to arrange for alternative financing. Additionally, certain
of our customers have become insolvent, and others may become so in the future.
To the extent our customers suffer from lack of liquidity or become insolvent,
our sales cycles may lengthen and our accounts receivable collection rates may
suffer, which would negatively affect our revenues, or, in some circumstances,
we may have to consider extended or alternative payment arrangements, which
could delay revenue recognition.
We may
also be affected to the extent the economic downturn continues to negatively
impact our resellers and distributors. Our resellers and distributors have in
some cases, and may in the future, reduce on-hand inventory of our products as a
precaution. The downturn has also caused certain of our resellers and
distributors, and may cause others, particularly in the retail sector, to seek
bankruptcy protection. With respect to any reseller or distributor that enters
bankruptcy, we may be unable to collect from that reseller or distributor monies
due to us or arrange for the return of unsold inventory.
As
the media industry evolves, our customers’ needs, businesses and revenue models
will change in ways that may deviate from our traditional strengths, making our
existing products and solutions less relevant.
The media
content creation industry is rapidly transforming. Content distribution models
and consumption habits have changed dramatically in just the last five years.
With increasing amounts of free content and minimal entry costs for creation and
distribution, our traditional customers’ industries and businesses are changing,
and consequently their relationships with us may change significantly. Our
business customers require vendors that can provide them with tools to help
manage a growing number of media assets and distribution channels, while also
reducing their costs. Our consumer customers increasingly look to participate in
new ways in this media revolution. Our future success depends on our ability to
develop products that effectively satisfy these demands. Our customers may also
seek to pool or share facilities and resources with others in their industry and
engage with providers of software as a service. Open platforms, online
collaboration tools, and cloud computing are replacing the traditional business
infrastructures and maintenance, which we currently provide to them. Traditional
advertising channels face competition from web and mobile platforms. Diminished
revenue from traditional advertising will cause some customers’ budgets for
purchase of our solutions to decline; this may be particularly true among local
television stations, which in the past have been an important customer segment
for us. If we are unable to stay ahead of or adapt to the changes in our
customers’ businesses, our future financial performance will
suffer.
The
market segments in which we operate are highly competitive, and our competitors
may be able to draw upon a greater depth and breadth of resources than those
that are available to us.
We
operate in highly competitive market segments characterized by pressure to
innovate, expand feature sets and functionality, accelerate new product releases
and reduce prices. Markets for certain of our products also have limited
barriers to entry. Customers consider many factors when evaluating our products
relative to those of our competitors, including innovation, ease of use, feature
sets, functionality, reliability, performance, reputation, and training and
support, and we may not compare favorably against our competitors in all
respects. Some of our current and potential competitors have longer operating
histories, greater brand recognition and substantially greater financial,
technical, marketing, distribution and support resources than we do. As a
result, they may be able to deliver greater innovation, respond more quickly to
new or emerging technologies and changes in market demand, devote more resources
to the development, marketing and sale of their products, or price their
products more aggressively than we can.
9
Our
efforts to transform our business may not yield the intended results of improved
financial performance and increased returns for our stockholders.
We are in
the process of a significant transformation that began in 2008 and includes,
among other things, a new corporate strategy, reorganization of our internal
structure, the improvement of operational efficiencies and a reduction in the
size of our workforce. Although the majority of our transformation activities
are complete, the effects of the transformation are yet to be fully determined.
While we undertook these activities with the goals of improving our financial
performance and creating greater returns for our stockholders, they may
ultimately prove to be misdirected and insufficient or ill-timed, and we cannot
be certain that they will yield the intended results.
Our
engagement of contractors for product development and manufacturing may reduce
our control over those activities, provide uncertain cost savings and expose our
proprietary assets to greater risk of misappropriation.
We
outsource a portion of our software development and our hardware design and
manufacturing to contractors, both domestic and offshore. These relationships
provide us with more flexible resource capabilities, access to global talent and
cost savings, but also expose us to risks that may not exist or may be less
pronounced with respect to our internal operations. We are able to exercise only
limited oversight of our contractors, including with respect to their
engineering and manufacturing processes, resource allocations, delivery
schedules, security procedures and quality control. Language, cultural and time
zone differences further complicate effective management of contractors that are
located offshore. Additionally, competition for talent in certain locations may
lead to high turnover rates that disrupt development or manufacturing
continuity. Pricing terms offered by certain contractors may be highly variable
over time reflecting, among other things, order volume, local inflation and
exchange rates. Some of our contractor relationships are based in contract,
while others operate on a purchase order basis, where we do not have the benefit
of written protections with respect to pricing or other critical
terms.
Many of
our contractors require access to our intellectual property and confidential
information to perform their services. Protection of these assets in relevant
offshore locations is significantly less robust than in the United States. We
must rely on policies and procedures we have instituted with our contractors and
certain confidentiality and contractual provisions in our written agreements, to
the extent they exist, for protection. Although these various safeguards provide
reasonable assurance of protection, they may be inadequate to prevent breaches
in all circumstances. If a breach were to occur, available legal or other
remedies may be limited or otherwise insufficient to compensate us for any
resulting damages.
Certain
of our contractor relationships involve complex and mission-critical
dependencies. If any of the preceding risks were to occur, we might not be able
to rapidly wind down these relationships or quickly transition to alternative
providers.
We
have incurred net losses in each of our three most recently completed fiscal
years and we may continue to incur net losses in future periods.
We have
incurred, on the basis of U.S. generally accepted accounting principles, net
losses in each of the past three fiscal years: $68.4 million in 2009, $198.2
million in 2008, and $8.0 million in 2007. These losses, among other things,
adversely affect our stockholders’ equity and working capital. These losses, and
the principal factors or components underlying them, are discussed in
“Management’s Discussion and Analysis of Financial Condition and Results of
Operations” in Item 7 of this annual report. Although, as discussed above, we
have undertaken efforts to transform our operations, we cannot be certain when,
or if, our operations will return to profitability.
Our
success depends in part on our ability to retain competent and skilled
management and technical personnel.
As part
of our recent and ongoing transformation efforts, we have established a new
management team and continue to restructure our internal organization. Although
we believe that we have the competencies and skill sets necessary to succeed
long term, our ability to do so will depend in part upon our ability to retain
our management and technical personnel in competitive job markets. We rely on
cash bonuses and equity awards as significant compensation and retention tools
for key personnel. The value of these bonuses and awards are typically tied to
our financial performance or stock price. To the extent our financial
performance or stock price declines, the value of these bonuses or awards,
together with their usefulness as retention mechanisms, may be diminished or
eliminated. In addition to compensation, we seek to foster an innovative work
culture to retain employees. We also rely on the attractiveness of developing
technology for the film, television and music industries as a means of
retention. Nonetheless, our competitors may in some instances be able to offer a
more dynamic work environment or more opportunities to work with cutting-edge
technology.
10
Potential
acquisitions could be difficult to integrate, disrupt our business, dilute
stockholder value or impair our financial results.
As part
of our business strategy, we periodically acquire companies, technologies and
products that we believe can improve our ability to compete in our existing
customer market segments or will allow us to enter new markets. The potential
risks associated with any acquisition include, but are not limited
to:
|
·
|
failure
to realize anticipated returns on investment, cost savings and
synergies;
|
|
·
|
difficulty
in assimilating the operations, policies and personnel of the acquired
company;
|
|
·
|
distraction
of management’s attention from normal business
operations;
|
|
·
|
potential
loss of key employees of the acquired
company;
|
|
·
|
impairment
of relationships with customers or
suppliers;
|
|
·
|
possibility
of incurring impairment losses related to goodwill and other intangible
assets;
|
|
·
|
unidentified
issues not discovered in due diligence, which may include product quality
issues or legal contingencies; and
|
|
·
|
potential
dilution to existing stockholders if we issue common stock or other equity
rights in the acquisition.
|
We
obtain certain hardware product components under sole-source supply
arrangements, and any disruptions to these arrangements could jeopardize the
manufacturing or distribution of certain of our hardware products.
Although
we generally prefer to establish multi-source supply arrangements for our
hardware product components, multi-source arrangements are not always possible
or cost-effective. We consequently depend on sole-source suppliers for certain
hardware product components, including some critical items. We do not generally
carry significant inventories of, and may not in all cases have guaranteed
supply arrangements for, these sole-sourced components. If any of our
sole-source suppliers were to cease, suspend or otherwise limit production or
shipment of components, or adversely modify supply terms or pricing, our ability
to manufacture, distribute and service our finished hardware products may be
impaired. We cannot be certain that we will be able to obtain sole-sourced
components, or acceptable substitutes, from alternative suppliers or that we
will be able to do so on commercially reasonable terms. We may also be required
to expend significant development resources to redesign our products to work
around the exclusion of any sole-sourced component or accommodate the inclusion
of any substitute component.
We
depend on the availability and proper functioning of certain third-party
technology that we incorporate into or bundle with our products.
We
license third-party technology for incorporation into or bundling with our
products. This technology may provide us with critical or strategic feature sets
or functionality. The profit margin for each of our products depends in part on
the royalty, license and purchase fees we pay in connection with third-party
technology. To the extent we add additional third-party technology to our
products and we are unable to offset associated costs, our profit margins may
decline and our operating results may suffer. In addition to cost implications,
third-party technology may include defects or errors that could adversely affect
the performance of our products, which may harm our market reputation or
adversely affect our product sales. Third-party technology may also include
certain open source software code that if used in combination with our own
software may jeopardize our intellectual property rights. If any third-party
technology license expires, is terminated or ceases to be available on
commercially reasonable terms, we may be required to expend considerable
resources integrating alternative third-party technology or developing our own
substitute technology. In the interim, sales of our products may be delayed or
suspended or we may be forced to distribute our products with reduced feature
sets or functionality.
11
Our
future results could be materially adversely affected if we are accused of or
found to be infringing third parties’ intellectual property rights.
Because
of technological change in our industry, extensive and sometimes uncertain
patent coverage, and the rapid issuance of new patents, it is possible that
certain of our products or business methods may inadvertently infringe the
patents or other intellectual property rights of third parties. Third parties
contact us from time to time alleging that our products infringe their
intellectual property rights. Allegations from opportunistic patent owners often
lack merit and are undertaken with the goal of inducing the alleged infringer
into a quick settlement to thereby spare the alleged infringer the nuisance and
expense of legal discovery and a trial. Our general practice is to mount a
vigorous defense against any claim that we believe lacks merit and eschew a
quick settlement. This practice may cause us to incur significant legal defense
costs that could have a negative impact on our operating results. With respect
to legitimate allegations, our general practice is to negotiate licenses to the
patented inventions as appropriate, which may include back-royalties to
compensate for past use or distribution of the patented invention. Additional
royalties will increase our cost-of-goods-sold and reduce our operating results.
To the extent licenses are not available to us on commercially reasonable terms
or at all, we may be required to expend considerable time and resources to
develop a non-infringing alternative. In the interim, sales of our products may
be delayed or suspended or we may be forced to distribute our products with
reduced feature sets or functionality.
In
addition to allegations made directly against us, in some cases we have
indemnification obligations with respect to claims of infringement made against
our customers and other related parties. A broadly targeted claim of
infringement made against our customers or other related parties may result in
significant defense costs for us.
Our
intellectual property and trade secrets are valuable assets that may be subject
to third-party infringement and misappropriation.
As a
technology company, our intellectual property and trade secrets are among our
most valuable assets. Infringement or misappropriation of these assets results
in lost revenues to us and thereby ultimately reduces their value. We rely on a
combination of patent, copyright, trademark and trade secret laws, as well as
confidentiality procedures, contractual provisions and anti-piracy technology in
certain of our products to protect our intellectual property and trade secrets.
Most of these tools require vigilant monitoring of competitor and other
third-party activities and of end-user usage of our products to be effective.
These tools may not provide adequate protection in all instances, may be subject
to circumvention, or may require a vigilance that in some cases exceeds our
capabilities or resources. Additionally, the legal regimes of certain countries
in which we operate may not protect our intellectual property or trade secrets
to the same extent as do the laws of the United States. Regardless of
jurisdiction, assuming legal protection exists and infringement or
misappropriation is detected, any enforcement action that we may pursue could be
costly and time-consuming, the outcome will be uncertain, and the alleged
offender in some cases may seek to have our intellectual property rights
invalidated.
Our
revenues and operating results depend significantly on our third-party reseller
and distribution channels.
We
distribute many of our products indirectly through third-party resellers and
distributors. Relatively few resellers and distributors account for a
significant portion of our consumer revenues. The loss of one or more of these
or other key resellers or distributors may significantly reduce our revenues. To
the extent we distribute our products directly to end-user customers, we may be
in competition with our resellers and distributors. In response to our direct
sales strategies or for other business reasons, our current resellers and
distributors may from time to time choose to resell our competitors’ products in
addition to, or in place of, ours. Certain of our resellers and distributors
have limited rights of return, as well as inventory stock rotation and price
protection. Accordingly, reserves for estimated returns and exchanges, and
credits for price protection, are recorded as a reduction of revenues upon
applicable product shipment, and are based upon our historical experience. To
date, actual returns of relevant products have not differed materially from our
management’s estimates. To the extent that returns exceed estimates, our
revenues and operating results may be adversely affected.
12
A
catastrophic event may significantly limit our ability to conduct business as
normal.
We
operate a complex, geographically dispersed business, which includes a
significant personnel and facilities presence in California near major
earthquake fault lines. We may not have a sufficiently comprehensive
enterprise-wide disaster recovery plan in place, and we are predominantly
uninsured for losses and disruptions caused by catastrophic events. Disruption
or failure of our networks or systems, or injury or damage to our personnel or
physical infrastructure, caused by a natural disaster, public health crisis,
terrorism, cyber attack, act of war or other catastrophic event may
significantly limit our ability to conduct business as normal, including our
ability to communicate and transact with our customers, suppliers, distributors
and resellers, and negatively affect our revenues and operating results.
Additionally, a catastrophic event could cause us to suspend all or a portion of
our operations for a significant period of time, result in a permanent loss of
resources, and require the relocation of personnel and materiel to alternate
facilities that may not be available or adequate. A prolonged disruption of our
business could damage our reputation, particularly among our global news
organization customers who are likely to require our solutions and support
during such time.
Our
products may experience quality issues that could negatively impact our customer
relationships, our market reputation and our operating results.
Our
software products, as is typical of sophisticated, complex software,
occasionally include coding defects or errors (commonly referred to as “bugs”),
which in some cases may interfere with or impair a customer’s ability to operate
or use the software. Similarly, our hardware products could include design or
manufacturing defects that could cause them to malfunction. Although we employ
quality control measures, those measures are not designed or intended to detect
and remedy all defects. The time and resources available to devote to quality
control measures are, in part, dependent on other business considerations, such
as meeting customer expectations with respect to release schedules. Any product
defects could result in loss of customers or revenues, delays in revenue
recognition, increased product returns, damage to our market reputation and
significant warranty or other expense.
Our
global brand alignment effort could affect customer acceptance of certain
rebranded products, thereby impacting our future success.
We have
undergone an effort to achieve global brand alignment as part of the effort to
transform our business that is discussed above. This effort is still underway,
and brand migration poses risks of both business disruption and customer
acceptance, particularly with respect to acquired legacy brands that we are
assimilating into the Avid brand. Our customer outreach and similar efforts may
not mitigate fully the risks of our branding efforts, which may lead to
reductions in revenues in some markets, which may adversely affect our business,
financial position and results of operations, and could cause the market value
of our common stock to decline.
We
may incur financial and operational risk in connection with the move of our
headquarters from Tewksbury, Massachusetts to Burlington,
Massachusetts.
In
November 2009, we announced plans to move our corporate headquarters to
Burlington, Massachusetts from Tewksbury, Massachusetts. In connection with the
move, we have signed three lease agreements for approximately 200,000 square
feet of space in three existing structures. We anticipate that the move will
occur in the second quarter of 2010, and will require the significant build-out,
both within and without the existing structures, of customer-facing, training,
office, and research and development space. Risks associated with the relocation
include delays in receiving necessary permits and approvals, the failure of
contractors to meet agreed construction milestones, the disruption of our
ongoing business, distraction of management and employees, and the possible loss
of key employees who may be unable or unwilling to work in the new location.
Additionally, while we expect the relocation to result in estimated annual cash
savings, savings from relocating a facility can be highly variable and
uncertain. Furthermore, under the terms of the lease of our current
headquarters, prior to vacating the premises we are obligated to cover certain
campus restoration costs, the scope of which is currently
uncertain.
13
Lengthy
procurement lead times and unpredictable life cycles and customer demand for
some of our products may result in significant inventory risks.
With
respect to many of our products, we must procure component parts and build
finished inventory far in advance of product shipments. Certain of these
products may have unpredictable life cycles and encounter rapid technological
obsolescence as a result of dynamic market conditions. We procure product
components and build inventory based upon our forecasts of product life cycle
and customer demand. If we are unable to accurately forecast product life cycle
and customer demand or unable to manage our inventory levels in response to
shifts in customer demand, the result may be insufficient, excess or obsolete
product inventory. Insufficient product inventory may impair our ability to
fulfill product orders and negatively affect our revenues, while excess or
obsolete inventory may require a write-down on products and components to their
net realizable value, which would negatively affect our results of
operations.
Qualifying
and supporting our products on multiple computer platforms is time-consuming and
expensive.
Hardware
and operating systems change rapidly in our industry, and changes made by our
suppliers can adversely affect the operation of our products. We devote
significant time and resources to support state of the art computer platforms.
These efforts may add significantly to our development expenses and adversely
affect our operating results. Failure to achieve qualification on a timely basis
may additionally adversely affect our operating results.
Our
international operations expose us to significant exchange rate fluctuations, as
well as regulatory, intellectual property and other risks that may adversely
affect our operating results.
We derive
more than half of our revenues from customers outside of the United States. Our
international sales are, for the most part, transacted through foreign
subsidiaries and generally in the currency of the end-user customers. We
consequently are exposed to currency exchange risks that may adversely affect
our revenues, operating results and cash flow. To hedge against the
international exchange exposure of certain forecasted receivables, payables and
cash balances of our foreign subsidiaries, we enter into foreign currency
forward-exchange contracts. The success of our hedging program depends on the
accuracy of our forecasts of transaction activity in the various currencies. To
the extent that these forecasts are over- or understated during periods of
currency volatility, we may experience currency gains or losses.
In
addition to exposing us to currency and exchange risks, our international
operations require us to comply with myriad environmental, tax and export laws,
as well as other business regulations. The risks associated with these laws and
regulations may from time to time include, among other things, high compliance
costs, rapid adoption requirements, inconsistencies among jurisdictions, and a
lack of administrative or judicial interpretative guidance. We additionally tend
to encounter in our international operations longer collection cycles for
accounts receivable and, as discussed in a previous risk factor, greater
difficulties in protecting our intellectual property.
The
market price of our common stock has been and may continue to be
volatile.
The
market price of our common stock has experienced volatility in the past and may
continue to fluctuate substantially in the future in response to various
factors, some of which are beyond our control. These factors include, but are
not limited to:
|
·
|
period-to-period
variations in our revenues or operating
results;
|
|
·
|
market
reaction to significant corporate initiatives or
announcements;
|
|
·
|
our
ability to innovate;
|
|
·
|
our
relative competitive position within our
markets;
|
|
·
|
shifts
in markets or demand for our
solutions;
|
|
·
|
changes
in our relationships with suppliers, resellers, distributors or
customers;
|
|
·
|
our
failure to accurately forecast revenues or operating
results;
|
14
|
·
|
our
commencement of, or involvement in,
litigation;
|
|
·
|
short
sales, hedging or other derivative transactions involving shares of our
common stock; and
|
|
·
|
shifts
in financial markets.
|
Additionally,
broader financial market and global economic trends may negatively affect the
market price of our common stock, regardless of our operating
performance.
None.
Our
principal corporate and administrative offices, as well as significant Video
R&D and manufacturing activities, are located in three adjacent buildings in
an office park located in Tewksbury, Massachusetts. Our leases on these
buildings expire in June 2010. In November 2009, we signed leases for new
corporate office space in Burlington, Massachusetts. The leases for these
facilities expire in May 2020. We plan to relocate our Tewksbury operations to
the Burlington, Massachusetts facilities during 2010.
We also
lease office space in Daly City, California, primarily for R&D and sales and
marketing activities, and in Mountain View, California, primarily for R&D,
product management and manufacturing activities. We lease facilities in Iver
Heath, United Kingdom for our European headquarters, which includes
administrative, sales and support functions, and a facility in Dublin, Ireland
for the manufacture and distribution of our products in Europe. We also lease a
facility in Singapore for our Asian headquarters.
The above
descriptions of our properties are based on the primary functions located at
each facility based on our historical business structure. Effective January 1,
2009, as a result of changes in our business unit structure and consolidation of
operations, several of our facilities began to increasingly support more than
one of our reporting segments.
We are
involved in legal proceedings from time to time arising from the normal course
of business activities, including claims of alleged infringement of intellectual
property rights and commercial, employment, piracy prosecution and other
matters. We do not believe these matters will have a material adverse effect on
our financial position or results of operations. However, our financial position
or results of operations may be negatively affected by the unfavorable
resolution of one or more of these proceedings.
None.
15
|
MARKET
FOR REGISTRANT’S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS AND ISSUER
PURCHASES OF EQUITY SECURITIES
|
Our
common stock is listed on the NASDAQ Global Select
Market under the symbol AVID. The table below shows the high and low sales
prices of the common stock for each calendar quarter of the fiscal years ended
December 31, 2009 and 2008.
|
2009
|
2008
|
||||||||
|
High
|
Low
|
High
|
Low
|
||||||
|
First
Quarter
|
$12.18
|
$8.40
|
$28.38
|
$17.61
|
|||||
|
Second
Quarter
|
$15.48
|
$9.00
|
$25.61
|
$16.97
|
|||||
|
Third
Quarter
|
$15.29
|
$10.81
|
$29.91
|
$16.60
|
|||||
|
Fourth
Quarter
|
$15.42
|
$11.52
|
$25.00
|
$9.68
|
|||||
On March
11, 2010, the last reported sale price of our common stock on the NASDAQ Global
Select Market was $14.51 per share. The approximate number of holders of record
of our common stock at March 2, 2010 was 432. This number does not include
shareholders for whom shares were held in a “nominee” or “street”
name.
We have
never declared or paid cash dividends on our capital stock, and we do not
anticipate paying any cash dividends in the foreseeable future.
Issuer
Purchases of Equity Securities
The
following table is a summary of our stock repurchases during the quarter ended
December 31, 2009:
|
Period
|
Total
Number
of
Shares
Repurchased(a)
|
Average
Price
Paid
Per Share
|
Total
Number of
Shares
Repurchased
as
Part of the
Publicly
Announced
Program
|
Dollar
Value of
Shares
That May
Yet
be Purchased
Under
the Program(b)
|
|||||
|
October
1 – October 31, 2009
|
–
|
–
|
–
|
$80,325,905
|
|||||
|
November
1 – November 30, 2009
|
–
|
–
|
–
|
$80,325,905
|
|||||
|
December
1 – December 31, 2009
|
1,982
|
$12.46
|
–
|
$80,325,905
|
|||||
|
1,982
|
$12.46
|
–
|
$80,325,905
|
|
(a)
|
In
December 2009, we repurchased 1,982 shares of restricted stock for $12.46
per share from an employee to pay required withholding taxes upon the
vesting of restricted stock. The purchase price of a share of stock used
for tax withholding is determined based on the market price of the stock
on the date of vesting of the restricted
stock.
|
|
(b)
|
In
April 2007, we initiated a stock repurchase program which ultimately
authorized the repurchase of up to $200 million of our common stock
through transactions on the open market, in block trades or otherwise. At
December 31, 2009, $80.3 million remained available for future stock
repurchases under the program. The stock repurchase program is funded
through working capital and has no expiration date. No shares of common
stock were repurchased under this program in
2009.
|
16
Stock
Performance Graph
The
following graph compares the cumulative stockholder return on our common stock
during the period from December 31, 2004 through December 31, 2009 with the
cumulative return during the period for:
|
·
|
the
NASDAQ Computer, Data Processing Index,
and
|
|
·
|
the
NASDAQ Index (all companies traded on NASDAQ Capital, Global or Global
Select Markets).
|
This
comparison assumes the investment of $100 on December 31, 2004 in our common
stock, the NASDAQ Market Index and the NASDAQ Computer, Data Processing Index
and assumes that dividends, if any, were reinvested.
17
The
following table sets forth our selected condensed consolidated financial data.
The selected condensed consolidated financial data below should be read in
conjunction with “Management’s Discussion and Analysis of Financial Condition
and Results of Operations” and the consolidated financial statements and notes
thereto included elsewhere in this filing. See Note G to our Consolidated
Financial Statements in Item 8 for information regarding our acquisitions and
divestitures that affect the comparability of the selected condensed
consolidated financial data presented.
CONSOLIDATED STATEMENTS OF OPERATIONS
DATA:
(in
thousands except per share data)
|
For
the Year Ended December 31,
|
||||||||||||||||||||||||
|
2009
|
2008
|
2007
|
2006
|
2005
|
||||||||||||||||||||
|
Net
revenues
|
$
|
628,970
|
$
|
844,901
|
$
|
929,570
|
$
|
910,578
|
$
|
775,443
|
||||||||||||||
|
Cost
of revenues
|
305,948
|
452,476
|
480,427
|
465,894
|
364,687
|
|||||||||||||||||||
|
Gross
profit
|
323,022
|
392,425
|
449,143
|
444,684
|
410,756
|
|||||||||||||||||||
|
Operating
expenses:
|
||||||||||||||||||||||||
|
Research
and development
|
120,989
|
148,598
|
150,707
|
141,363
|
111,334
|
|||||||||||||||||||
|
Marketing
and selling
|
173,601
|
208,735
|
210,456
|
203,967
|
170,787
|
|||||||||||||||||||
|
General
and administrative
|
61,087
|
78,591
|
77,463
|
63,250
|
47,147
|
|||||||||||||||||||
|
Amortization
of intangible assets
|
10,511
|
12,854
|
13,726
|
14,460
|
9,194
|
|||||||||||||||||||
|
Impairment
of goodwill and intangible assets
|
—
|
129,972
|
—
|
53,000
|
—
|
|||||||||||||||||||
|
Restructuring
costs, net
|
26,873
|
25,412
|
9,410
|
2,613
|
3,155
|
|||||||||||||||||||
|
In-process
research and development
|
—
|
—
|
—
|
879
|
32,390
|
|||||||||||||||||||
|
Gain
on sale of assets
|
(155
|
)
|
(13,287
|
)
|
—
|
—
|
—
|
|||||||||||||||||
|
Total
operating expenses
|
392,906
|
590,875
|
461,762
|
479,532
|
374,007
|
|||||||||||||||||||
|
Operating
income (loss)
|
(69,884
|
)
|
(198,450
|
)
|
(12,619
|
)
|
(34,848
|
)
|
36,749
|
|||||||||||||||
|
Interest
and other income, net
|
(123
|
)
|
2,936
|
7,637
|
7,274
|
5,586
|
||||||||||||||||||
|
Income
(loss) before income taxes
|
(70,007
|
)
|
(195,514
|
)
|
(4,982
|
)
|
(27,574
|
)
|
42,335
|
|||||||||||||||
|
(Benefit
from) provision for income taxes
|
(1,652
|
)
|
2,663
|
2,997
|
15,353
|
8,355
|
||||||||||||||||||
|
Net
income (loss)
|
$
|
(68,355
|
)
|
$
|
(198,177
|
)
|
$
|
(7,979
|
)
|
$
|
(42,927
|
)
|
$
|
33,980
|
||||||||||
|
Net
income (loss) per common share – basic
|
$
|
(1.83
|
)
|
$
|
(5.28
|
)
|
$
|
(0.19
|
)
|
$
|
(1.03
|
)
|
$
|
0.90
|
||||||||||
|
Net
income (loss) per common share – diluted
|
$
|
(1.83
|
)
|
$
|
(5.28
|
)
|
$
|
(0.19
|
)
|
$
|
(1.03
|
)
|
$
|
0.86
|
||||||||||
|
Weighted-average
common shares outstanding - basic
|
37,293
|
37,556
|
40,974
|
41,736
|
37,762
|
|||||||||||||||||||
|
Weighted-average
common shares outstanding - diluted
|
37,293
|
37,556
|
40,974
|
41,736
|
39,517
|
|||||||||||||||||||
CONSOLIDATED
BALANCE SHEET DATA:
(in
thousands)
|
As
of December 31,
|
||||||||||||||||||||||||
|
2009
|
2008
|
2007
|
2006
|
2005
|
||||||||||||||||||||
|
Cash,
cash equivalents and marketable securities
|
$
|
108,877
|
$
|
147,694
|
$
|
224,460
|
$
|
172,107
|
$
|
238,430
|
||||||||||||||
|
Working
capital
|
143,499
|
191,838
|
308,589
|
287,757
|
299,276
|
|||||||||||||||||||
|
Total
assets
|
611,038
|
703,585
|
1,005,953
|
997,034
|
1,062,046
|
|||||||||||||||||||
|
Long-term
liabilities
|
14,483
|
11,823
|
17,495
|
20,471
|
20,048
|
|||||||||||||||||||
|
Total
stockholders' equity
|
443,118
|
492,655
|
779,783
|
780,381
|
839,597
|
|||||||||||||||||||
18
EXECUTIVE
OVERVIEW
Our
Company
We are a
leading provider of digital media content-creation solutions for film, video,
audio and broadcast professionals, as well as artists and home enthusiasts. Our
mission is to inspire passion, unleash creativity and enable our customers to
realize their dreams in a digital world. Anyone who enjoys movies, television or
music has almost certainly experienced the work of content creators who use our
solutions to bring their creative visions to life. Around the globe, feature
films, primetime television shows, commercials and chart-topping music hits are
made using one or more of our solutions.
We have
customers throughout the world who rely on us to develop products tailored to
their unique needs and requirements that will allow their businesses to succeed.
For their long-term success and our own, we committed in 2008 to becoming a more
efficient, innovative and customer-centric company. We initiated a significant
transformation of our business that included, among other things, establishing a
new management team, developing a new corporate strategy, reorganizing our
internal structure, improving operational efficiencies, divesting non-core
product lines and reducing the size of our workforce.
Prior to
2009 and since our acquisition of Pinnacle in 2005, our organizational structure
was based on three strategic business units: Professional Video,
Audio and Consumer Video. As part of our transformation, we combined our
Professional Video and Consumer Video business units into one Video reporting
unit and consolidated our sales and marketing team into a single customer-facing
organization, which better aligns our business structure with the realities of
many of our customers who either depend on, or would benefit from, an integrated
solution that encompasses multiple Avid product and brand families. These
changes also enable us to leverage our deep domain expertise, brand recognition
and technology synergies across customer market segments. Our reporting
structure in 2009 was based on two strategic business units Video and Audio,
which equated to our reporting units. We are reporting our financial results in
this annual report with reference to these two reportable segments to reflect
the way we operated in 2009.
In the
later part of 2009, we completed the reorganization of our business around
functional groups rather than product categories. Based on a preliminary
assessment of our segment reporting for 2010, we expect to report based on one
reportable segment starting January 1, 2010.
19
Financial
Summary
The
following table sets forth certain items from our consolidated statements of
operations as a percentage of net revenues for the periods
indicated:
|
For
the Year Ended December 31,
|
|||||||||||
|
2009
|
2008
|
2007
|
|||||||||
|
Net
revenues:
|
|||||||||||
|
Product
revenues
|
81.0
|
%
|
84.5
|
%
|
86.7
|
%
|
|||||
|
Services
revenues
|
19.0
|
%
|
15.5
|
%
|
13.3
|
%
|
|||||
|
Total
revenues
|
100.0
|
%
|
100.0
|
%
|
100.0
|
%
|
|||||
|
Cost
of revenues
|
48.6
|
%
|
53.6
|
%
|
51.7
|
%
|
|||||
|
Gross
margin
|
51.4
|
%
|
46.4
|
%
|
48.3
|
%
|
|||||
|
Operating
expenses:
|
|||||||||||
|
Research
and development
|
19.2
|
%
|
17.6
|
%
|
16.2
|
%
|
|||||
|
Marketing
and selling
|
27.6
|
%
|
24.7
|
%
|
22.7
|
%
|
|||||
|
General
and administrative
|
9.7
|
%
|
9.3
|
%
|
8.3
|
%
|
|||||
|
Amortization
of intangible assets
|
1.7
|
%
|
1.5
|
%
|
1.5
|
%
|
|||||
|
Impairment
of goodwill and intangible assets
|
—
|
15.4
|
%
|
—
|
|||||||
|
Restructuring
costs, net
|
4.3
|
%
|
3.0
|
%
|
1.0
|
%
|
|||||
|
Gain
on sale of assets
|
(0.0
|
%)
|
(1.6
|
%)
|
—
|
||||||
|
Total
operating expenses
|
62.5
|
%
|
69.9
|
%
|
49.7
|
%
|
|||||
|
Operating
loss
|
(11.1
|
%)
|
(23.5
|
%)
|
(1.4
|
%)
|
|||||
|
Interest
and other income (expense), net
|
(0.0
|
%)
|
0.3
|
%
|
0.8
|
%
|
|||||
|
Loss
before income taxes
|
(11.1
|
%)
|
(23.2
|
%)
|
(0.6
|
%)
|
|||||
|
(Benefit
from) provision for income taxes
|
(0.2
|
%)
|
0.3
|
%
|
0.3
|
%
|
|||||
|
Net
loss
|
(10.9
|
%)
|
(23.5
|
%)
|
(0.9
|
%)
|
|||||
Total net
revenues for the year ended December 31, 2009 were $629.0 million, a decrease of
$215.9 million, or 26%, compared to the year ended December 31, 2008. Compared
to 2008, Video revenues decreased 32% and Audio revenues decreased 13%. Of the
$176.7 million decrease in 2009 Video revenues, $59.6 million was attributable
to divested or exited product lines, including our Softimage 3D animation and
PCTV product lines divested in the fourth quarter of 2008. We believe the
remaining Video decrease of $117.1 million and the Audio decrease of $39.2
million, both primarily due to lower sales volumes, were largely attributable to
unfavorable macroeconomic conditions. The revenues of each business unit are
discussed in further detail in the section titled “Results of Operations”
below.
Our gross
margin for the year ended December 31, 2009 improved to 51.4%, compared to 46.4%
for 2008. This improvement was largely the result of our transition to a single
company-wide production and delivery organization and the divestiture of
lower-margin products discussed above. Revised estimates for royalty accruals
resulting in favorable adjustments in 2009 were also a significant contributing
factor to the gross margin improvement.
For the
year ended December 31, 2009, we incurred a net loss of $68.4 million, compared
to a net loss of $198.2 million for 2008. The net loss for 2009 included charges
of $12.5 million for acquisition-related intangible asset amortization, $27.7
million for restructuring costs and $4.2 million related to acquisition
activities. The net loss for 2008 included charges of $130.0 million for
impairment of acquisition-related goodwill and intangible assets, $20.4 million
for acquisition-related intangible asset amortization and $27.3 million for
restructuring costs, partially offset by gains related to product divestitures
totaling $13.3 million. The 2008 charges of $130.0 million for impairment of
acquisition-related goodwill and intangible assets were composed of goodwill
impairment losses of $54.6 million and $64.3 million for our former Consumer
Video segment and Audio segment, respectively, and impairment losses for
Consumer Video intangible assets of $11.1 million. See Note G to our
Consolidated Financial Statements in Item 8 for further information regarding
our 2008 impairment losses.
20
During
the fourth quarter of 2008, we initiated a company-wide restructuring plan that,
through the second quarter of 2009, resulted in a reduction in force of more
than 500 positions, including employees associated with product line
divestitures, and the closure of all or parts of twelve facilities worldwide.
During the third and fourth quarters of 2009, as a result of the expanded use of
our internationally based partners for R&D projects and our desire to better
align our 2010 cost structure with revenue expectations, we broadened the
restructuring plan to include additional reductions in force of approximately
320 positions and the closure of one floor of our Audio segment’s Daly City,
California facility.
In
connection with restructuring actions initiated in the fourth quarter of 2008
and throughout 2009, we have incurred or expect to incur total restructuring
charges of approximately $53 million, which primarily represent cash
expenditures. We expect annual cost savings of approximately $80 million to
result from these actions, some of which are already reflected in our 2009
results. Cash expenditures resulting from restructuring obligations totaled
approximately $25.8 million during 2009. We may engage in
additional cost reduction programs, including restructuring actions, in the
future as a result of changing economic conditions as well as our ongoing
business transformation.
We derive
a significant percentage of our revenues from sales to customers outside the
United States. International sales accounted for 58% of our consolidated net
revenues in 2009, compared to 61% and 58% of our consolidated net revenues for
2008 and 2007, respectively. Our international business is, for the most part,
transacted through international subsidiaries and generally in the currency of
the customers. Changes in foreign currency exchange rates often materially
affect, either positively or adversely, our revenues, net income and cash
flow.
See “Risk
Factors” in Item 1A of this annual report for additional risk factors that may
cause our future results to differ materially from our current
expectations.
CRITICAL
ACCOUNTING POLICIES AND ESTIMATES
Our
consolidated financial statements have been prepared in accordance with
accounting principles generally accepted in the United States of America. The
preparation of these financial statements requires us to make estimates and
assumptions that affect the reported amounts of assets and liabilities and the
disclosures of contingent assets and liabilities as of the date of the financial
statements, and the reported amounts of revenues and expenses during the
reporting period. We regularly reevaluate our estimates and judgments, including
those related to the following: revenue recognition and allowances
for product returns and exchanges; stock-based compensation; the valuation of
business combinations, goodwill and other intangible assets; divestitures; and
income tax assets and liabilities. We base our estimates and judgments on
historical experience and various other factors we believe to be reasonable
under the circumstances, the results of which form the basis for judgments about
the carrying values of assets and liabilities and the amounts of revenues and
expenses that are not readily apparent from other sources. Actual results may
differ from these estimates.
We
believe the following critical accounting policies most significantly affect the
portrayal of our financial condition and involve our most difficult and
subjective estimates and judgments.
Revenue
Recognition and Allowances for Product Returns and Exchanges
We
generally recognize revenues from sales of software and software-related
products upon receipt of a signed purchase order or contract and product
shipment to distributors or end users, provided that collection is reasonably
assured, the fee is fixed or determinable and all other revenue recognition
criteria of Financial Accounting Standards Board, or FASB, Accounting Standards
Codification, or ASC, subtopic 985-605, Software – Revenue
Recognition (formerly Statement of Position 97-2, Software Revenue
Recognition), are met. However, determining whether and when some of
these criteria have been satisfied often involves assumptions and judgments that
can have a significant impact on the timing and amount of revenue we report. For
example, we often receive multiple purchase orders or contracts from a single
customer or a group of related parties that are evaluated to determine if they
are, in effect, parts of a single arrangement. If they are determined to be
parts of a single arrangement, revenues are recorded as if a single
multiple-element arrangement exists. In addition, for certain transactions where
we consider our services to be non-routine or essential to the delivered
products, we record revenues upon satisfying the criteria of ASC subtopic
985-605 and obtaining customer acceptance. Within our Video segment and much of
our Audio segment, we follow the guidance of ASC subtopic 985-605 for revenue
recognition because our products and services are software or
software-related.
21
However,
for certain offerings in our Audio segment, software is incidental to the
delivered products and services. For these products, we record revenues based on
satisfying the criteria in ASC subtopic 605-25, Revenue Recognition –
Multiple-Element Arrangements (formerly Emerging Issues Task Force, or
EITF, Issue 00-21, Revenue
Arrangements with Multiple Deliverables), and Securities and Exchange
Commission Staff Accounting Bulletin, or SAB, No. 104, Revenue
Recognition.
We use
the residual method to recognize revenues when an order includes one or more
elements to be delivered at a future date and evidence of the fair value of all
undelivered elements exists. Under the residual method, the fair values of the
undelivered elements, typically professional services, maintenance or both, are
deferred and the remaining portion of the total arrangement fee is recognized as
revenues related to the delivered element. If evidence of the fair value of one
or more undelivered elements does not exist, we defer all revenues and only
recognize them when delivery of those elements occurs or when fair value can be
established. Fair value is typically based on the price charged when the same
element is sold separately to customers. However, for certain transactions, fair
value of maintenance is based on the renewal price that is offered as a
contractual right to the customer, provided that the renewal price is
substantive. Our current pricing practices are influenced primarily by product
type, purchase volume, term and customer location. We review services revenues
sold separately and corresponding renewal rates on a periodic basis and update,
when appropriate, the fair value for services used for revenue recognition
purposes to ensure that it reflects our recent pricing experience. We are
required to exercise judgment in determining whether fair value exists for each
undelivered element based on whether our pricing for these elements is
sufficiently consistent.
In most
cases, the products we sell do not require significant production, modification
or customization of software. Installation of the products is generally routine,
requires minimal effort and does not have to be performed by us. However,
certain transactions for our Video products, typically complex solution sales
that include a significant number of products and that may involve multiple
customer sites, require us to perform an installation effort that we deem to be
complex and non-routine. In these situations, we do not recognize revenues for
either the products shipped or the services performed until the installation is
complete. In addition, if these orders include a customer acceptance provision,
no revenues are recognized until the customer’s formal acceptance of the
products and services has been received or the acceptance period has
lapsed.
Technical
support, enhancements and unspecified upgrades typically are provided at no
additional charge during an initial warranty period (generally between 30 days
and twelve months), which precedes commencement of any maintenance contracts. We
defer the fair value of this support and recognize the related revenues ratably
over the initial warranty period. We also from time to time offer certain
customers free upgrades or specified future products or enhancements. For each
of these elements that is undelivered at the time of product shipment, and
provided that we have vendor-specific objective evidence of fair value for the
undelivered element, we defer the fair value of the specified upgrade, product
or enhancement and recognize those revenues only upon later delivery or at the
time at which the remaining contractual terms relating to the upgrade have been
satisfied.
In 2009,
approximately 67% of our revenues were derived from indirect sales channels,
including authorized resellers and distributors. Within our Video segment, our
resellers and distributors are generally not granted rights to return products
to us after purchase, and actual product returns from them have been
insignificant to date. However, certain Video and many of our Audio channel
partners are offered limited rights of return, stock rotation and price
protection. In accordance with ASC subtopic 605-15, Revenue Recognition –
Products (formerly Statement of Financial Accounting Standards, or SFAS,
No. 48, Revenue Recognition
When Right of Return Exists), we record a provision for estimated returns
and other allowances as a reduction of revenues in the same period that related
revenues are recorded. Management estimates must be made and used in connection
with establishing and maintaining a sales allowance for expected returns and
other credits. In making these estimates, we analyze historical returns and
credits and the amounts of products held by major resellers and consider the
impact of new product introductions, changes in customer demand, current
economic conditions and other known factors. While we believe we can make
reliable estimates regarding these matters, these estimates are inherently
subjective. The amount and timing of our revenues for any period may be affected
if actual product returns or other reseller credits prove to be materially
different from our estimates.
22
A portion
of our revenues from sales of consumer video-editing and audio products is
derived from transactions with channel partners who have unlimited return rights
and from whom payment is contingent upon the product being sold through to their
customers. Accordingly, revenues for these channel partners are recognized when
the products are sold through to the customer instead of being recognized at the
time products are shipped to the channel partners.
At the
time of a sales transaction, we make an assessment of the collectibility of the
amount due from the customer. Revenues are recognized only if it is probable
that collection will occur in a timely manner. In making this assessment, we
consider customer credit-worthiness and historical payment experience. If it is
determined from the outset of the arrangement that collection is not probable
based on our credit review process, revenues are recognized on a cash-collected
basis to the extent that the other criteria of ASC subtopic 985-605 and SAB 104
are satisfied. At the outset of the arrangement, we assess whether the fee
associated with the order is fixed or determinable and free of contingencies or
significant uncertainties. In assessing whether the fee is fixed or
determinable, we consider the payment terms of the transaction, our collection
experience in similar transactions without making concessions, and our
involvement, if any, in third-party financing transactions, among other factors.
If the fee is not fixed or determinable, revenues are recognized only as
payments become due from the customer, provided that all other revenue
recognition criteria are met. If a significant portion of the fee is due after
our normal payment terms, which are generally 30 days, but can be up to 90 days,
after the invoice date, we evaluate whether we have sufficient history of
successfully collecting past transactions with similar terms. If that collection
history is successful, revenues are recognized upon delivery of the products,
assuming all other revenue recognition criteria are satisfied. If we were to
change any of these assumptions and judgments, it could cause a material
increase or decrease in the amount of revenue reported in a particular
period.
In
October 2009, the FASB issued Accounting Standards Update No. 2009-13, Multiple-Deliverable Revenue
Arrangements, an amendment to ASC topic 605, Revenue Recognition, and
Accounting Standards Update No. 2009-14, Certain Revenue Arrangements That
Include Software Elements, an amendment to ASC subtopic 985-605, Software – Revenue
Recognition (the “Updates”). The Updates provide guidance on arrangements
that include software elements, including tangible products that have software
components that are essential to the functionality of the tangible product and
will no longer be within the scope of the software revenue recognition guidance,
and software-enabled products that will now be subject to other relevant revenue
recognition guidance. The Updates also provide authoritative guidance on revenue
arrangements with multiple deliverables that are outside the scope of the
software revenue recognition guidance. Under the new guidance, when
vendor-specific objective evidence or third-party evidence of fair value for
deliverables in an arrangement cannot be determined, a best estimate of the
selling price is required to separate deliverables and allocate arrangement
consideration using the relative selling price method. The Updates also include
new disclosure requirements on how the application of the relative selling price
method affects the timing and amount of revenue recognition. The Updates must be
adopted in the same period using the same transition method and are effective
prospectively, with retrospective adoption permitted, for revenue arrangements
entered into or materially modified in fiscal years beginning on or after June
15, 2010, or January 1, 2011 for us. Early adoption is also permitted; however,
early adoption during an interim period requires retrospective application from
the beginning of the fiscal year. We are currently assessing the timing and
method of adoption, as well as the possible impact of this guidance on our
revenue recognition policies.
Stock-Based
Compensation
We
account for stock-based compensation in accordance with ASC topic 718, Compensation – Stock
Compensation (formerly SFAS No. 123 (revised 2004), Share-Based Payment), which
requires the application of a fair-value-based measurement method in accounting
for share-based payment transactions with employees. During 2009, we granted
stock options as part of our key performer stock-based compensation program, as
well as stock options and restricted stock units to newly hired employees.
During 2008, we granted both stock options and restricted stock units as part of
our key performer stock-based compensation program. The vesting of stock option
grants may be based on time, performance, market conditions, or a combination of
performance and market conditions. In the future, we may grant stock awards,
options, or other equity-based instruments allowed by our stock-based
compensation plans, or a combination thereof, as part of our overall
compensation strategy.
23
The fair
values of restricted stock awards with time-based vesting, including restricted
stock and restricted stock units, are generally based on the intrinsic values of
the awards at the date of grant. As permitted under ASC topic 718, we generally
use the Black-Scholes option pricing model to estimate the fair value of stock
option grants. The Black-Scholes model relies on a number of key assumptions to
calculate estimated fair values. Our assumed dividend yield of zero is based on
the fact that we have never paid cash dividends and have no present intention to
pay cash dividends. Our expected stock-price volatility assumption is based on
recent (six-month trailing) implied volatility calculations. These calculations
are performed on exchange-traded options of our common stock. We believe that
using a forward-looking market-driven volatility assumption will result in the
best estimate of expected volatility. The assumed risk-free interest rate is the
U.S. Treasury security rate with a term equal to the expected life of the
option. The assumed expected life is based on company-specific historical
experience. With regard to the estimate of the expected life, we consider the
exercise behavior of past grants and model the pattern of aggregate
exercises.
In
December 2007, we began issuing options to purchase shares of our common stock
that had vesting based on market conditions, specifically Avid’s stock price, or
a combination of performance and market conditions. The compensation costs and
derived service periods for stock option grants with vesting based on market
conditions or a combination of performance and market conditions are estimated
using the Monte Carlo valuation method. For stock option grants with vesting
based on a combination of performance and market conditions, the compensation
costs are also estimated using the Black-Scholes valuation method factored for
the estimated probability of achieving the performance goals, and compensation
costs for these grants are recorded based on the higher estimate for each
vesting tranche.
We
estimate forfeiture rates at the time awards are made based on historical and
estimated future turnover rates and apply these rates in the calculation of
estimated compensation cost. The estimation of forfeiture rates includes a
quarterly review of historical turnover rates and an update of the estimated
forfeiture rates to be applied to employee classes for the calculation of
stock-based compensation. During 2009, forfeiture rates for the
calculation of stock-based compensation were estimated and applied based on
three classes, non-employee directors, executive management staff and other
employees. At December 31, 2009, our annualized estimated forfeiture rates were
0% for non-employee director awards and 10% for both executive management staff
and other employee awards. Then-current estimated forfeiture rates are also
applied quarterly to all outstanding stock options and non-vested restricted
stock awards, which may result in a revised estimate of compensation costs
related to these stock-based grants.
If
factors change and we employ different assumptions for estimating stock-based
compensation expense in future periods, or if we decide to use a different
valuation model, the stock-based compensation expense we recognize in future
periods may differ significantly from what we have recorded in the current
period and could materially affect our operating income, net income and earnings
per share. It may also result in a lack of comparability with other companies
that use different models, methods and assumptions. See Note B to our
Consolidated Financial Statements in Item 8 for further information regarding
stock-based compensation.
Business
Combinations
When we
acquire new businesses, we allocate the purchase price to the acquired assets,
including intangible assets, and the liabilities assumed based on their
estimated fair values, with any amount in excess of such allocations designated
as goodwill. Significant management judgments and assumptions are required in
determining the fair value of acquired assets and liabilities, particularly
acquired intangible assets. For example, it is necessary to estimate the portion
of development efforts that are associated with technology that is in process
and has no alternative future use. The valuation of purchased intangible assets
is based on estimates of the future performance and cash flows from the acquired
business. The use of different assumptions could materially impact the purchase
price allocation and our financial position and results of
operations.
24
Goodwill
and Intangible Assets
We assess
the impairment of goodwill and identifiable intangible assets on at least an
annual basis and whenever events or changes in circumstances indicate that the
carrying value of the asset may not be fully recoverable. Factors we consider
important that could trigger an impairment review include significant
underperformance relative to the historical or projected future operating
results, significant negative industry or economic trends, unanticipated
competition, loss of key personnel, a more-likely-than-not expectation that a
reporting unit or component thereof will be sold or otherwise disposed of,
significant changes in the manner of use of the acquired assets or the strategy
for our overall business, a significant decline in our stock price for a
sustained period, a reduction of our market capitalization relative to our net
book value and other similar circumstances.
In
accordance with ASC subtopic 350-20, Intangibles – Goodwill and Others –
Goodwill (formerly SFAS No. 142, Goodwill and Other Intangible
Assets), we do not amortize goodwill. The goodwill impairment test
prescribed by ASC 350-20 requires us to identify reporting units and to
determine estimates of the fair values of our reporting units at the date we
test for impairment. Our organizational structure in 2009 was based on two
strategic business units, Video and Audio, which equated to our reporting units.
Both reporting units include goodwill.
In our
annual goodwill impairment analysis, the fair value of each reporting unit is
compared to its carrying value, including goodwill. We generally use a
discounted cash flow valuation model to determine the fair values of our
reporting units. This model focuses on estimates of future revenues and profits
for each reporting unit and also assumes a terminal value for the unit based on
a constant growth valuation formula. We estimate these amounts by evaluating
historical trends, current budgets, operating plans and industry data. The model also includes
assumptions for, among others, working capital cash flow, growth rates, income
tax rates, expected tax benefits and long term discount rates, all of which
require significant judgments by management. We estimate the long-term discount
rates based on our review of the weighted-average cost of capital and
appropriate equity risk premium for each reporting unit. We also consider the
reconciliation of our market capitalization to the total fair value of our
reporting units. If a reporting unit’s carrying value exceeds its fair
value, we record an impairment loss equal to the difference between the carrying
value of the goodwill and its implied fair value.
We
perform our annual goodwill impairment tests as of the end of the fourth quarter
of each year. Our annual goodwill impairment testing in the fourth quarter of
2009 determined that no goodwill impairment existed. At December 31, 2009, the fair values of our
Video and Audio reporting units exceeded their carrying values by 28% and 21%,
respectively.
When events or
circumstances exist that indicate the carrying value
of a reporting unit’s goodwill may not be recoverable, we perform an interim
goodwill impairment analysis. The interim analysis
includes calculating the fair value of the reporting unit being tested using a
model similar to that used for the annual goodwill impairment testing. The
reporting unit’s calculated fair value is then allocated among its
tangible and intangible assets and liabilities to determine the implied
fair value of the reporting unit’s
goodwill.
The fair values of the intangible assets are estimated using various
valuation models based on different approaches, such as the multi-period excess
cash flows approach, royalty savings approach and avoided-cost approach. These
approaches include assumptions for, among others, customer retention rates,
trademark royalty rates, costs to complete in-process technology and long-term
discount rates, all of which require significant judgments by management. If
the carrying
value of the
reporting unit’s goodwill exceeds the implied fair value,
we record an impairment loss equal to the difference between the carrying value
of the goodwill and its implied fair value.
Identifiable
intangible assets are also tested for impairment in accordance with ASC section
360-10-35, Property, Plant and
Equipment – Overall – Subsequent Measurement, (formerly SFAS No. 144,
Accounting for the Impairment
or Disposal of Long-Lived Assets), if events or
circumstances exist that indicate the carrying value of an asset may not be
recoverable. The fair value of each asset is compared to its carrying value, and
if the asset’s carrying value is not recoverable and exceeds its fair value, we
record an impairment loss equal to the difference between the carrying value of
the asset and its fair value. The carrying value of an asset is not recoverable
if it exceeds the sum of the undiscounted cash flows expected to result from the
use and eventual disposition of the asset. Changes in business conditions or our
assumptions could require that we record impairment charges related to our
identifiable intangible assets.
25
Assumptions,
judgments and estimates of future values are complex and often subjective. They
can be affected by a variety of factors, including external factors such as
industry and economic trends, and internal factors such as changes in our
business strategy or forecasts. Although we believe our past assumptions,
judgments and estimates used in calculating fair values for goodwill and
identifiable intangible asset impairment testing are reasonable and appropriate,
different assumptions, judgments and estimates could materially affect our
reported financial results.
Divestitures
When we
measure the gain (loss) on sale of a disposal group that is part of a reporting
unit, we determine whether a portion of the goodwill of the reporting unit
should be allocated to the disposal group if it constitutes a business, under
the guidance of ASC topic 805, Business Combinations. In
determining whether a disposal group constitutes a business, we consider whether
the integrated set of activities and assets has the required inputs and
processes to create outputs, and whether it’s capable of being conducted and
managed as a business. If the disposal group is considered a business, the
goodwill of the reporting unit is allocated based on the relative fair values of
the disposal group and the portion of the reporting unit remaining.
As discussed in Note G
to our Consolidated Financial Statements in Item 8, we completed the sales
of the Softimage 3D animation and PCTV product lines in the fourth quarter of
2008. We determined that the Softimage 3D animation product line constituted a
business; therefore, the gain on sale of this business includes an allocation of
$15.8 million of goodwill from the former Professional Video reporting unit.
Even though it was determined that the Softimage 3D animation product line
constituted a business, we concluded that this business did not represent a
component of our company that would require the presentation of the divestiture
as a discontinued operation. We made this determination based on the fact
that the Softimage 3D animation product line did not have operations or cash
flows that were clearly distinguishable and largely independent from the rest of
the Professional Video reporting unit. Also in the fourth quarter of 2008, we
determined that the PCTV product line was not a business and, therefore, should
not be reported as a discontinued operation based on the fact that the asset
group sold would not be able to continue to conduct normal, self-sustaining
operations. The application of different judgments or assumptions may have
resulted in a material increase or decrease in the amount of gains or losses
recorded for the sale of these assets.
In
accordance with ASC section 360-10-45,
Property, Plant and Equipment – Overall – Other Presentation Matters,
(formerly SFAS No. 144, Accounting for the Impairment or
Disposal of Long-Lived Assets), we classify the assets and liabilities of
a business as held-for-sale when management approves and commits to a formal
plan of sale and it is probable that the sale will be completed. The carrying
value of the net assets of the business held-for-sale are then recorded at the
lower of their carrying value or fair market value, less costs to sell, and we
cease
to record depreciation and
amortization expense associated with assets
held-for-sale.
Income
Tax Assets and Liabilities
We record
deferred tax assets and liabilities based on the net tax effects of tax credits,
operating loss carryforwards and temporary differences between the carrying
amounts of assets and liabilities for financial reporting purposes compared to
the amounts used for income tax purposes. We regularly review our deferred tax
assets for recoverability with consideration for such factors as historical
losses, projected future taxable income and the expected timing of the reversals
of existing temporary differences. ASC topic 740, Income Taxes (formerly SFAS
No. 109, Accounting for Income
Taxes), requires us to record a valuation allowance when it is more
likely than not that some portion or all of the deferred tax assets will not be
realized. Based on our level of deferred tax assets at December 31, 2009 and our
level of historical U.S. losses, we have determined that the uncertainty
regarding the realization of these assets is sufficient to warrant the need for
a full valuation allowance against our U.S. net deferred tax
assets.
Our
assessment of the valuation allowance on our U.S. deferred tax assets could
change in the future based on our levels of pre-tax income and other tax-related
adjustments. Reversal of the valuation allowance in whole or in part would
result in a non-cash reduction in income tax expense during the period of
reversal. To the extent some or all of our valuation allowance is reversed,
future financial statements would reflect an increase in non-cash income tax
expense until such time as our deferred tax assets are fully
utilized.
26
The
amount of income taxes we pay is subject to our interpretation of applicable tax
laws in the jurisdictions in which we file. We have taken and will continue to
take tax positions based on our interpretation of such tax laws. There can be no
assurance that a taxing authority will not have a different interpretation of
applicable law and assess us with additional taxes. Should we be assessed with
additional taxes, it could have a negative impact on our results of operations
or financial condition.
ASC topic
740 requires that a
tax position must be more likely than not to be sustained before being
recognized in the financial statements. It also requires the accrual of
interest and penalties as applicable on our unrecognized tax positions.
At December 31, 2009 and 2008, we had gross unrecognized tax benefits, including
interest, of $2.3 million and $3.7 million, respectively. At December 31, 2009
and 2008, $2.3 million and $1.4 million, respectively, represented the amount of
unrecognized tax benefits that, if recognized, would have resulted in a
reduction of our effective tax rate.
We
conduct operations through manufacturing and distribution subsidiaries in
numerous tax jurisdictions around the world. Our transfer pricing methodology is
based on economic studies. The price charged for products, services and
financing among our companies could be challenged by the various tax authorities
resulting in additional tax liability, interest and/or penalties.
RESULTS
OF OPERATIONS
Net
Revenues
Comparison
of 2009 to 2008
|
Years
Ended December 31, 2009 and 2008
|
|||||||||||
|
(dollars
in thousands)
|
|||||||||||
|
2009
Net
Revenues
|
%
of Consolidated Net Revenues
|
2008
Net
Revenues
|
%
of Consolidated Net Revenues
|
Change
|
%
Change
in
Revenues
|
||||||
|
Video:
|
|||||||||||
|
Product
revenues
|
$259,151
|
41.2%
|
$425,719
|
50.4%
|
($166,568)
|
(39.1%)
|
|||||
|
Services
revenues
|
115,859
|
18.4%
|
125,987
|
14.9%
|
(10,128)
|
(8.0%)
|
|||||
|
Total
|
375,010
|
59.6%
|
551,706
|
65.3%
|
(176,696)
|
(32.0%)
|
|||||
|
Audio:
|
|||||||||||
|
Product
revenues
|
250,064
|
39.8%
|
288,513
|
34.1%
|
(38,449)
|
(13.3%)
|
|||||
|
Services
revenues
|
3,896
|
0.6%
|
4,682
|
0.6%
|
(786)
|
(16.8%)
|
|||||
|
Total
|
253,960
|
40.4%
|
293,195
|
34.7%
|
(39,235)
|
(13.4%)
|
|||||
|
Total
net revenues:
|
$628,970
|
100.0%
|
$844,901
|
100.0%
|
($215,931)
|
(25.6%)
|
|||||
Excluding
a decrease of $53.4 million related to divested or exited product lines, Video
product revenues for 2009 decreased $113.2 million. This decrease was the result
of decreases in Video product revenues for all products in all geographic
regions largely due to lower sales volumes, which we believe was largely the
result of unfavorable macroeconomic conditions. Throughout 2009 for example,
broadcasters were challenged by decreasing advertising revenues, and capital
expenditure budgets for many of our customers have been reduced as a result of
tight credit markets. Internationally, changes in currency exchange rates also
contributed to the decrease in Video product revenues.
Video
services revenues are derived primarily from maintenance contracts, professional
and installation services, and training. Excluding a decrease of $6.2 million
related to divested or exited product lines, Video services revenues for 2009
decreased $3.9 million. This decrease was primarily due to a decrease in
maintenance revenues, which was primarily the result of lower average
maintenance contract values. The decrease in maintenance revenues was partially
offset by an increase in professional services revenues.
27
The
decrease in Audio product revenues for 2009 was primarily due to lower revenues
on lower volumes of our higher-end audio product lines, which we believe largely
resulted from decreased capital expenditure budgets for our customers in this
market segment. A proportionally larger decrease in Audio product revenues in
Europe, which we believe were largely attributable to unfavorable macroeconomic
conditions and changes in currency exchange rates, was also a significant
contributing factor to the decrease in Audio product revenues.
Net
revenues derived through indirect channels were approximately 67% and 70% of our
consolidated net revenues for 2009 and 2008, respectively.
Sales to
international customers accounted for 58% of our consolidated net revenues in
2009, compared to 61% in 2008. International sales decreased by $150.2 million,
or 29%, from 2008 to 2009, which is reasonably consistent with our worldwide
decrease of 26%. The decrease in international sales occurred in all geographic
regions.
Comparison
of 2008 to 2007
|
Years
Ended December 31, 2008 and 2007
|
|||||||||||
|
(dollars
in thousands)
|
|||||||||||
|
2008
Net
Revenues
|
%
of Consolidated Net Revenues
|
2007
Net
Revenues
|
%
of Consolidated Net Revenues
|
Change
|
%
Change
in
Revenues
|
||||||
|
Video:
|
|||||||||||
|
Product
revenues
|
$425,719
|
|
50.4%
|
$489,371
|
|
52.6%
|
($63,652)
|
(13.0%)
|
|||
|
Services
revenues
|
125,987
|
14.9%
|
121,206
|
13.1%
|
4,781
|
3.9%
|
|||||
|
Total
|
551,706
|
65.3%
|
610,577
|
65.7%
|
(58,871)
|
(9.6%)
|
|||||
|
Audio:
|
|||||||||||
|
Product
revenues
|
288,513
|
34.1%
|
316,732
|
34.1%
|
(28,219)
|
(8.9%)
|
|||||
|
Services
revenues
|
4,682
|
0.6%
|
2,261
|
0.2%
|
2,421
|
107.1%
|
|||||
|
Total
|
293,195
|
34.7%
|
318,993
|
34.3%
|
(25,798)
|
(8.1%)
|
|||||
|
Total
net revenues:
|
$844,901
|
100.0%
|
$929,570
|
100.0%
|
($84,669)
|
(9.1%)
|
|||||
The
decrease in Video product revenues in 2008 was primarily due to lower revenues
from our video-editing products and, to a lesser extent, decreased revenues from
large broadcast deals and consumer video products. We believe unfavorable
macroeconomic conditions contributed significantly to the overall decrease in
Video product revenues in 2008. In addition, the decrease in video-editing
revenues was the result of both the slowdown in sales in early 2008 in
anticipation of our new editor product set, which was released in June 2008, and
the price reductions for our video editors announced in the first quarter of
2008. The effect of the price reductions was partially offset by higher unit
volume sales for these products. The timing of customer acceptance and revenue
recognition was also a contributing factor for the decrease in revenues from
large broadcast deals in 2008. The decrease in consumer video product revenues
in 2008 was primarily the result of decreased revenues from our PCTV products,
largely due to changes in product mix, and lower overall revenues from consumer
video products in the fourth quarter of 2008. The divestiture of our PCTV
product line during the fourth quarter of 2008 caused a disruption in our
consumer video distribution channels that not only affected revenues for our
PCTV product line but for our consumer video-editing products as
well.
Video
services revenues are derived primarily from maintenance contracts, professional
and installation services, and training. The increase in services revenues in
2008 was due to increased revenues generated from maintenance contracts sold in
connection with our products, as well as increased revenues from professional
and installation services. Maintenance revenues increased starting in the second
quarter of 2007 due to an increase in new large deals that included maintenance
contracts.
28
The
decrease in Audio product revenues in 2008 was primarily the result of decreased
revenues from our home studio products, as well as a slowdown in sales of our
professional integrated mixing console products. The decrease in revenues from
our home studio products was due to increased competitive pressure and the
lingering effects of temporary delays in the release of products compatible with
a new version of the Mac OS X Leopard operating system. Products compatible with
the new operating system were released late in the second quarter of 2008. We
believe unfavorable macroeconomic conditions also contributed to the decrease in
revenues for our home studio products and were the most significant factor in
the slowdown in sales of our professional integrated mixing console
products.
Net
revenues derived through indirect channels were approximately 70% of our
consolidated net revenues for both 2008 and 2007.
Sales to
international customers accounted for 61% of our consolidated net revenues in
2008, compared to 58% in 2007. International sales decreased by $29.4 million,
or 5.4%, from 2007 to 2008. The decrease in international sales occurred
primarily in Europe and was partially offset by increased sales in
Asia.
Gross
Margin
Cost of
revenues consists primarily of costs associated with:
|
·
|
the
procurement of components;
|
|
·
|
the
assembly, testing and distribution of finished
products;
|
|
·
|
warehousing;
|
|
·
|
customer
support costs related to maintenance contract revenues and other services;
and
|
|
·
|
royalties
for third-party software and hardware included in our
products.
|
Cost of
revenues also includes amortization of technology, which represents the
amortization of developed technology assets acquired as part of the acquisitions
that have taken place since 2004 and is described further in the Amortization of
Intangible Assets section below. For 2009 and 2008, cost of revenues included
restructuring charges of $0.8 million and $1.9 million, respectively, related to
the write-down of inventory resulting from our decision to exit the PCTV product
line. Similarly, for 2007, cost of revenues included a charge of $4.3 million
related to the write-down of inventory resulting from our decision to exit the
transmission server product line.
Gross
margin fluctuates based on factors such as the mix of products sold, the cost
and proportion of third-party hardware and software included in the systems
sold, the offering of product upgrades, price discounts and other
sales-promotion programs, the distribution channels through which products are
sold, the timing of new product introductions, sales of aftermarket hardware
products such as disk drives, and currency exchange-rate
fluctuations.
Comparison
of 2009 to 2008
|
Years
Ended December 31, 2009 and 2008
|
|||||||||
|
(dollars
in thousands)
|
|||||||||
|
2009
Costs
|
Gross
Margin
|
2008
Costs
|
Gross
Margin
|
Change
in
Gross
Margin %
|
|||||
|
Cost
of products revenues
|
$243,362
|
52.2%
|
$369,186
|
48.3%
|
3.9%
|
||||
|
Cost
of services revenues
|
59,754
|
50.1%
|
73,888
|
43.5%
|
6.6%
|
||||
|
Amortization
of intangible assets
|
2,033
|
—
|
7,526
|
—
|
—
|
||||
|
Restructuring
costs
|
799
|
—
|
1,876
|
—
|
—
|
||||
|
Total
|
$305,948
|
51.4%
|
$452,476
|
46.4%
|
5.0%
|
||||
Our
transition to a single company-wide production and delivery organization and the
divestiture of lower-margin product lines were the most significant contributing
factors to our improved product gross margins for 2009. In addition, revised
estimates for royalty accruals resulting in favorable adjustments in 2009 were
also a contributing factor. These improvements were partially offset by the
impact on revenues of changes in foreign currency exchange rates.
29
The
increase in services gross margin for 2009 primarily resulted from improved
efficiencies in our customer success and professional services organizations
related to our business transformation. The improved efficiencies were the
result of the reorganization and consolidation of services activities and the
related reductions in headcount.
Comparison
of 2008 to 2007
|
Years
Ended December 31, 2008 and 2007
|
|||||||||
|
(dollars
in thousands)
|
|||||||||
|
2008
Costs
|
Gross
Margin
|
2007
Costs
|
Gross
Margin
|
Change
in
Gross
Margin %
|
|||||
|
Cost
of products revenues
|
$369,186
|
48.3%
|
$390,725
|
51.5%
|
(3.2%)
|
||||
|
Cost
of services revenues
|
73,888
|
43.5%
|
68,529
|
44.5%
|
(1.0%)
|
||||
|
Amortization
of intangible assets
|
7,526
|
—
|
16,895
|
—
|
—
|
||||
|
Restructuring
costs
|
1,876
|
—
|
4,278
|
—
|
—
|
||||
|
Total
|
$452,476
|
46.4%
|
$480,427
|
48.3%
|
(1.9%)
|
||||
Significant
contributing factors for our decreased product gross margin percentages for 2008
were increased royalty expenses, accrued duties related to an unfavorable tariff
ruling in Europe and inventory write-downs largely related to discontinued or
divested products. The decrease in product gross margin attributable to these
items was 3.2%, of which approximately one-half was related to our divested
Consumer Video products.
The
decrease in services gross margin for 2008 primarily resulted from increased
services infrastructure costs, primarily for facilities and information
technology, partially offset by the effect of an overall increase in services
revenues.
Research
and Development
Research
and development expenses include costs associated with the development of new
products and the enhancement of existing products, and consist primarily of
employee salaries and benefits, facilities costs, depreciation, costs for
consulting and temporary employees, and prototype and other development
expenses.
Comparison
of 2009 to 2008
|
Years
Ended December 31, 2009 and 2008
|
|||||||
|
(dollars
in thousands)
|
|||||||
|
2009
Expenses
|
2008
Expenses
|
Change
|
%
Change
|
||||
|
Research
and development
|
$120,989
|
$148,598
|
(27,609)
|
(18.6%)
|
|||
|
As
a percentage of net revenues
|
19.2%
|
17.6%
|
1.6%
|
||||
The
decrease in research and development expenses during 2009 was primarily due to
decreased personnel-related costs of $23.3 million, resulting from reduced
headcount. In addition, a $2.1 million decrease in computer hardware and
supplies expenses was a contributing factor to the decrease. The increase in
research and development expenses as a percentage of revenues in 2009 was the
result of lower 2009 revenues.
Comparison
of 2008 to 2007
|
Years
Ended December 31, 2008 and 2007
|
|||||||
|
(dollars
in thousands)
|
|||||||
|
2008
Expenses
|
2007
Expenses
|
Change
|
%
Change
|
||||
|
Research
and development
|
$148,598
|
$150,707
|
(2,109)
|
(1.4%)
|
|||
|
As
a percentage of net revenues
|
17.6%
|
16.2%
|
1.4%
|
||||
30
The
decrease in research and development expenses during 2008 was primarily due to
lower hardware development and computer equipment costs, partially offset by
higher facility and information technology infrastructure costs. Hardware
development and computer equipment costs decreased $3.4 million, due to our
increased focus on the development of high-end video-editing products during
2007, and the facility and information technology infrastructure costs increased
by $1.4 million. The increase in research and development expenses as a
percentage of revenues in 2008 was the result of lower 2008
revenues.
Marketing
and Selling
Marketing
and selling expenses consist primarily of employee salaries and benefits for
selling, marketing and pre-sales customer support personnel; commissions; travel
expenses; advertising and promotional expenses; and facilities
costs.
Comparison
of 2009 to 2008
|
Years
Ended December 31, 2009 and 2008
|
|||||||
|
(dollars
in thousands)
|
|||||||
|
2009
Expenses
|
2008
Expenses
|
Change
|
%
Change
|
||||
|
Marketing
and selling
|
$173,601
|
$208,735
|
($35,134)
|
(16.8%)
|
|||
|
As
a percentage of net revenues
|
27.6%
|
24.7%
|
2.9%
|
||||
The
decrease in marketing and selling expenses during 2009 was largely due to lower
personnel-related costs; decreased advertising, tradeshow and other promotional
expenses; lower facility and information technology infrastructure costs;
decreased travel and entertainment expenses; and favorable foreign exchange
translations in 2009. Personnel-related costs decreased $16.3 million, primarily
due to decreased headcount; advertising, tradeshow and other promotional
expenses decreased $7.7 million; facility and information technology
infrastructure costs decreased $3.8 million, primarily resulting from the
closure of certain facilities and improved operating efficiencies related to our
corporate transformation initiated in 2008; and travel and entertainment
expenses decreased $2.9 million. Also during 2009, net foreign exchange gains
(specifically, remeasurement gains and losses on net monetary assets denominated
in foreign currencies, offset by non-designated foreign currency hedging gains
and losses), which are included in marketing and selling expenses, were $1.4
million, compared to net foreign exchange losses of ($1.0) million in 2008. The
increase in marketing and selling expense as a percentage of revenues for 2009
was the result of lower 2009 revenues.
Comparison
of 2008 to 2007
|
Years
Ended December 31, 2008 and 2007
|
|||||||
|
(dollars
in thousands)
|
|||||||
|
2008
Expenses
|
2007
Expenses
|
Change
|
%
Change
|
||||
|
Marketing
and selling
|
$208,735
|
$210,456
|
($1,721)
|
(0.8%)
|
|||
|
As
a percentage of net revenues
|
24.7%
|
22.7%
|
2.0%
|
||||
The
decrease in marketing and selling expenses during 2008 was largely due to
lower advertising, tradeshow and other promotional expenses and lower facility
and information technology infrastructure costs, partially offset by increased
bad debt expenses and unfavorable foreign exchange translations in 2008. The
decrease in advertising, tradeshow and other promotional expenses was $3.7
million, largely attributable to decreased spending on trade shows, while the
decrease in facility and information technology infrastructure costs was $2.0
million. The increase in bad debt expense was $2.6 million, primarily due to
increased payment defaults. Also during 2008, net foreign exchange losses
(specifically, remeasurement gains and losses on net monetary assets denominated
in foreign currencies, offset by non-designated foreign currency hedging gains
and losses), which are included in marketing and selling expenses, were ($1.0)
million, compared to net foreign exchange gains of $1.3 million in 2007. The
increase in marketing and selling expense as a percentage of revenues for 2008
was the result of lower 2008 revenues.
31
General
and Administrative
General
and administrative expenses consist primarily of employee salaries and benefits
for administrative, executive, finance and legal personnel; audit, legal and
strategic consulting fees; and insurance, information systems and facilities
costs. Information systems and facilities costs reported within general and
administrative expenses are net of allocations to other expenses
categories.
Comparison
of 2009 to 2008
|
Years
Ended December 31, 2009 and 2008
|
|||||||
|
(dollars
in thousands)
|
|||||||
|
2009
Expenses
|
2008
Expenses
|
Change
|
%
Change
|
||||
|
General
and administrative
|
$61,087
|
$78,591
|
($17,504)
|
(22.3%)
|
|||
|
As
a percentage of net revenues
|
9.7%
|
9.3%
|
0.4%
|
||||
The
decrease in general and administrative expenditures during 2009 was primarily
due to lower
personnel-related costs of $12.9 million, resulting from reduced headcount, and
decreases in consulting and outside
services costs of $9.3 million. The decrease in consulting costs was
largely the result of the absence of consulting costs related to the strategic
review and transformation of our business, which were present in 2008. These
decreases were partially offset by increases of $4.2 million for mergers and
acquisitions, or M&A, expenses and $2.7 million related to a revenue
recognition investigation, both occurring in 2009. Starting in 2009 due to a
change in accounting rules, we were required to expense diligence and
transaction expenses related to M&A activities as they were incurred. The
increase in general and administrative expense as a percentage of revenues for
2009 was the result of lower 2009 revenues.
Comparison
of 2008 to 2007
|
Years
Ended December 31, 2008 and 2007
|
|||||||
|
(dollars
in thousands)
|
|||||||
|
2008
Expenses
|
2007
Expenses
|
Change
|
%
Change
|
||||
|
General
and administrative
|
$78,591
|
$77,463
|
$1,128
|
1.5%
|
|||
|
As
a percentage of net revenues
|
9.3%
|
8.3%
|
1.0%
|
||||
The
increase in general and administrative expenditures during 2008 was primarily
due to higher
consulting and outside services costs of $1.3 million, largely the result
of consulting costs related to the strategic review and transformation of our
business. The increase in general and administrative expense as a percentage of
revenues for 2008 was the result of our decrease in revenues and, to a lesser
extent, the spending increases noted.
Amortization
of Intangible Assets
Intangible
assets result from acquisitions and include developed technology,
customer-related intangibles, trade names and other identifiable intangible
assets with finite lives. With the exception of developed technology, these
intangible assets are amortized using the straight-line method. Developed
technology is amortized over the greater of (1) the amount calculated using the
ratio of current quarter revenues to the total of current quarter and
anticipated future revenues over the estimated useful life of the developed
technology, and (2) the straight-line method over each developed technology’s
remaining useful life. Amortization of developed technology is recorded within
cost of revenues. Amortization of customer-related intangibles, trade names and
other identifiable intangible assets is recorded within operating
expenses.
32
Comparison
of 2009 to 2008
|
Years
Ended December 31, 2009 and 2008
|
||||||||
|
(dollars
in thousands)
|
||||||||
|
2009
|
2008
|
Change
|
%
Change
|
|||||
|
Amortization
of intangible assets recorded in cost of revenues
|
$ 2,033
|
$ 7,526
|
($5,493)
|
(73.0%)
|
||||
|
Amortization
of intangible assets recorded in operating expenses
|
10,511
|
12,854
|
(2,343)
|
(18.2%)
|
||||
|
Total
amortization of intangible assets
|
$12,544
|
$20,380
|
($7,836)
|
(38.4%)
|
||||
|
As
a percentage of net revenues
|
2.0%
|
2.4%
|
(0.4%)
|
|||||
The decrease in
amortization of intangible assets recorded in cost of revenues was primarily the
result of the completion during 2008 and early 2009 of the amortization of
certain developed technologies related to our past acquisitions of Pinnacle,
Sundance and M-Audio; partially offset by amortization resulting from the
acquisition of MaxT Systems Inc. in the third quarter of 2009. The decrease in
amortization recorded in operating expenses for the same period was primarily
the result of the impairments of intangible assets recorded in
2008.
The
unamortized balance of the identifiable intangible assets related to all
acquisitions was $29.2 million at December 31, 2009. We expect amortization of
these intangible assets to be approximately $9 million in 2010, $7 million in
2011, $4 million in 2012, $3 million in 2013, $2 million in 2014, and $4 million
thereafter. See Note G to our Consolidated Financial Statements in Item 8
regarding identifiable intangible assets related to acquisitions.
Comparison
of 2008 to 2007
|
Years
Ended December 31, 2008 and 2007
|
||||||||
|
(dollars
in thousands)
|
||||||||
|
2008
|
2007
|
Change
|
%
Change
|
|||||
|
Amortization
of intangible assets recorded in cost of revenues
|
$ 7,526
|
$16,895
|
($9,369)
|
(55.5%)
|
||||
|
Amortization
of intangible assets recorded in operating expenses
|
12,854
|
13,726
|
(872)
|
(6.4%)
|
||||
|
Total
amortization of intangible assets
|
$20,380
|
$30,621
|
($10,241)
|
(33.4%)
|
||||
|
As
a percentage of net revenues
|
2.4%
|
3.3%
|
(0.9%)
|
|||||
The
decrease in amortization of intangible assets for 2008 was primarily the result
of the completion during 2008 and 2007 of the amortization of certain developed
technologies related to our acquisitions of Pinnacle, M-Audio and Medea, as well
as lower amortization expenses due to the decrease and resulting write-down of
the fair values of the former Consumer Video reporting unit’s trade name and
customer relationships intangible assets during 2008.
Impairment
of Goodwill and Intangible Assets
We perform our annual
goodwill impairment analysis in the fourth quarter of each year in
accordance with ASC subtopic 350-20 (formerly SFAS No. 142). Our annual
goodwill analysis performed in the fourth quarter of 2009 determined that the
fair values of our Video and Audio reporting units exceeded their carrying
values by 28% and 21%, respectively, indicating there was no goodwill impairment
for either reporting unit at December 31, 2009. The goodwill assigned to our
Video and Audio reporting units totaled $150.3 million and $76.9 million,
respectively, at December 31, 2009.
Goodwill is also tested
for impairment when events and circumstances occur that indicate that the
recorded goodwill may be impaired. At March 31, 2009 as a result of a
decline in our stock price since our fourth quarter 2008 goodwill impairment
testing, lower than expected first quarter 2009 revenues, and a reduction in our
forecasted 2009 results, we performed an interim step one goodwill impairment
test. The step one test indicated that no goodwill impairment existed at March
31, 2009.
33
In the
fourth quarter of 2008 due to the significant decline in our stock price,
increased uncertainty of future revenue levels due to unfavorable macroeconomic
conditions and the divestiture of our PCTV product line, our annual goodwill
testing determined that the carrying
values of the
Audio and former Consumer Video reporting
units
exceeded their fair values,
indicating possible goodwill impairments for these reporting units. The fair values of these
reporting units were then allocated among their respective tangible and
intangible assets and liabilities to determine the implied fair value of each
reporting unit’s goodwill. Because the book values of the Audio and
Consumer Video goodwill exceeded their implied fair values by approximately
$64.3 million and $8.0 million, respectively, we recorded these amounts as
impairment losses during the quarter ended December 31, 2008.
In
September 2008, as a result of a decrease in market value for, and the expected
sale of, our PCTV product line, which had historically accounted for a
significant portion of former Consumer Video reporting unit revenues, we
performed an interim impairment test on the goodwill assigned to our Consumer
Video reporting unit. Because the book value of the Consumer Video goodwill
exceeded the implied fair value by $46.6 million, we recorded this amount as an
impairment loss during the quarter ended September 30, 2008.
In
connection with the goodwill impairment loss taken for the Audio and former
Consumer Video reporting units in the fourth quarter of 2008, we also reviewed
the Audio and Consumer Video identifiable intangible assets for possible
impairment in accordance with SFAS No. 144 (now ASC subtopic 360-10). This
analysis included grouping the intangible assets with other operating assets and
liabilities in the Consumer Video reporting unit that would not otherwise be
subject to impairment testing because the grouped assets and liabilities
represent the lowest level for which cash flows are largely independent of the
cash flows of other groups of assets and liabilities within our company. The
result of this analysis determined that the Consumer Video customer
relationships and trade name intangible assets were impaired, and we recorded
impairment losses of $5.6 million and $0.8 million, respectively, to write these
assets down to their then-current fair values. The analysis for the Audio
reporting unit determined that no impairment existed for that reporting unit’s
identifiable intangible assets.
In
connection with the goodwill impairment loss taken for the former Consumer Video
reporting unit in the third quarter of 2008, we also tested the Consumer Video
reporting unit’s identifiable intangible assets for impairment. As a result, we
determined that the trade name intangible asset was impaired, and we recorded an
impairment loss of $4.7 million to write this asset down to its then-current
fair value.
See Note G to our
Consolidated Financial Statements in Item 8 for further information on
the goodwill assigned to each of our reporting segments and details of our
identifiable intangible assets. For further information regarding our policy for
testing goodwill and intangible asset impairment, including the methodologies,
assumptions and estimates applied to our 2009 and 2008 impairment testing,
please see our critical accounting policy for “Goodwill and Intangible Assets”
found previously in this Item 7 under the heading “Critical Accounting Policies
and Estimates.”
Restructuring
Costs, Net
In
October 2008, we initiated a company-wide restructuring plan that included a
reduction in force of approximately 500 positions, including employees related
to our product line divestitures, and the closure of all or parts of some of our
worldwide facilities. The restructuring plan is intended to improve operational
efficiencies and bring our costs in line with expected revenues. In connection
with the plan, during the fourth quarter of 2008, we recorded restructuring
charges of $20.4 million related to employee termination costs and $0.5 million
for the closure of three small facilities. In addition, as a result of the
decision to sell the PCTV product line, we recorded a non-cash restructuring
charge of $1.9 million in cost of revenues related to the write-down of
inventory.
34
During
2009, we recorded restructuring charges of $27.7 million, of which $27.9 million
related to this plan and a recovery of ($0.2) million was the result of revised
estimates for amounts recorded under previous restructuring plans. Charges under
the plan included new restructuring charges of $27.1 million and revisions to
previously recorded estimates under the plan of $0.8 million. The new
restructuring charges included $14.8 million related to employee termination
costs, including those for approximately 320 additional employees; $11.5 million
related to the closure of all or part of eleven facilities; and $0.8 million,
recorded in cost of revenues, related to the write-down of PCTV inventory. The
charges resulting from the reduction in force of 320 additional employees were
recorded in the third and fourth quarters and were primarily the result of the
expanded use of our internationally based partners for R&D projects and our
desire to better align our 2010 cost structure with revenue
expectations.
During
the first nine months of 2008, we initiated restructuring plans within our
former Professional Video business unit as well as corporate operations to
eliminate duplicative business functions and improve operational efficiencies.
In connection with these actions, we recorded restructuring charges of $4.2
million related to employee termination costs for approximately 90 employees,
primarily in the research and development, marketing and selling, and general
and administrative teams. Also during 2008, we recorded restructuring charges
totaling $0.2 million for revised estimates of previously initiated
restructuring plans.
During
2007, we implemented restructuring programs within our former Professional Video
and Consumer Video business units, as well as corporate operations, resulting in
restructuring charges of $10.1 million, $1.8 million and $0.3 million,
respectively. In connection with these actions, we recorded charges totaling
$5.2 million related to employee termination costs for approximately 125
employees, primarily from the research and development teams and marketing and
selling teams. Actions under these restructuring programs also included the
closure of all or parts of five facilities, resulting in restructuring charges
totaling $2.6 million, and our exit from the transmission server product line.
As a result of exiting the transmission server product line, we recorded
non-cash charges totaling $4.3 million in cost of revenues for the write-down of
inventory. We also recorded a non-cash restructuring charge of $0.1 million
related to the disposal of fixed assets. The purpose of these restructuring
programs was to eliminate duplicative business functions, improve operational
efficiencies and align key business skill sets with future opportunities. Also
during 2007, we recorded restructuring charges totaling $0.8 million as a result
of our increased estimates for the facilities restructuring costs related to our
Pinnacle and Medea acquisitions, and $0.4 million primarily as a result of our
increased estimate for the restructuring costs associated with the vacated
portion of our Montreal facility that was part of a restructuring that took
place in December 2005.
Gain
on Sales of Assets
In the
fourth quarter of 2008, we sold our Softimage 3D animation product line, which
was part of our former Professional Video segment, and our PCTV product line,
which was part of our former Consumer Video segment. The Softimage 3D animation
product line was sold to Autodesk, Inc., and $26.5 million of the $33.5 million
dollar purchase price was received in the fourth quarter of 2008, with the
remaining balance held in escrow with scheduled distribution dates in 2009 and
2010. During 2008, we recognized a gain of approximately $11.5 million as a
result of this transaction, which does not include the proceeds held in escrow.
During 2009, we recorded a further gain of $3.5 million as a result of the
release of 50% of the funds from the escrow holdings, in accordance with the
terms of the purchase and sale agreement. The remaining escrow holdings of $3.5
million, subject to possible adjustment, are scheduled to be released during the
fourth quarter of 2010.
The PCTV
product line was sold to Hauppauge Digital, Inc. for total proceeds of
approximately $4.7 million, which included $2.2 million in cash and a note
valued at $2.5 million. During 2008, we recognized a gain of approximately $1.8
million as a result of this transaction. PCTV inventory valued at
$7.5 million was classified as held-for-sale in accordance with ASC
section 360-10-45,
Property, Plant and Equipment – Overall – Other Presentation Matters (formerly
SFAS No.
144), and included in “other current assets” in our consolidated balance sheet
at December 31, 2008. Under the terms of the asset purchase agreement, we are
reimbursed for the cost of PCTV inventory sold by the buyer. During 2009, the
buyer’s sell through of inventory classified as held-for-sale was lower than
anticipated, and, as a result, we recorded a loss on the sale of assets
of $3.2 million related to our sale of the PCTV product line. At December 31,
2009, the remaining value of inventory classified as held-for-sale was $0.4
million.
35
Interest
and Other Income (Expense), Net
Interest
and other income (expense), net, generally consists of interest income, interest
expense and equity in income of a non-consolidated company.
Comparison
of 2009 to 2008
|
Years
Ended December 31, 2009 and 2008
|
|||||||
|
(dollars
in thousands)
|
|||||||
|
2009
|
2008
|
Change
|
%
Change
|
||||
|
Interest
and other income (expense), net
|
($123)
|
$2,936
|
($3,059)
|
(104.2%)
|
|||
|
As
a percentage of net revenues
|
(0.0%)
|
0.3%
|
(0.3%)
|
||||
The
change in interest and other income (expense), net, from net income in 2008 to
net expense in 2009, was primarily the result of a significant decrease in
interest income due to lower interest rates paid on cash balances, as well as
lower average cash balances.
Comparison
of 2008 to 2007
|
Years
Ended December 31, 2008 and 2007
|
|||||||
|
(dollars
in thousands)
|
|||||||
|
2008
|
2007
|
Change
|
%
Change
|
||||
|
Interest
and other income (expense), net
|
$2,936
|
$7,637
|
($4,701)
|
(61.6%)
|
|||
|
As
a percentage of net revenues
|
0.3%
|
0.8%
|
(0.5%)
|
||||
The decrease in interest
and other income, net, for 2008 was primarily due to decreased interest
income earned due to decreased rates of return on cash and marketable securities
balances, as well as decreased average cash and marketable securities balances
resulting from our stock repurchases in early 2008.
(Benefit
from) Provision for Income Taxes, Net
Comparison
of 2009 to 2008
|
Years
Ended December 31, 2009 and 2008
|
|||||
|
(dollars
in thousands)
|
|||||
|
2009
|
2008
|
Change
|
|||
|
(Benefit
from) provision for income taxes, net
|
($1,652)
|
$2,663
|
($4,315)
|
||
|
As
a percentage of net revenues
|
(0.3%)
|
0.3%
|
(0.6%)
|
||
Comparison
of 2008 to 2007
|
Years
Ended December 31, 2008 and 2007
|
|||||
|
(dollars
in thousands)
|
|||||
|
2008
|
2007
|
Change
|
|||
|
(Benefit
from) provision for income taxes, net
|
$2,663
|
$2,997
|
($334)
|
||
|
As
a percentage of net revenues
|
0.3%
|
0.3%
|
0.0%
|
||
36
The net
tax benefit of $1.7 million for 2009 reflected a current tax benefit of $0.1
million and a deferred tax benefit of $1.6 million mostly related to the foreign
amortization of non-deductible acquisition-related intangible assets and the
release of a valuation allowance on a portion of the deferred tax assets in our
Canadian entity. The net tax provision of $2.7 million for 2008 reflected a
current tax provision of $6.9 million and a deferred tax benefit of $4.2 million
mostly related to the foreign amortization of non-deductible acquisition-related
intangible assets, as well as the write-down of deferred tax liabilities due to
goodwill and intangible asset impairments. The net tax provision of $3.0 million
for 2007 reflected a current tax provision of $6.3 million and a deferred tax
benefit of $3.3 million mostly related to the foreign amortization of
non-deductible acquisition-related intangible assets and to a release of a
deferred tax liability in our German entity.
Our
effective tax rate, which represents our tax (benefit) provision as a percentage
of profit or loss before tax, was (2%), 1% and 60%, respectively, for 2009, 2008
and 2007. Our (benefit from) provision for income taxes and effective tax rate
both changed from net provisions in 2008 to net benefits in 2009. The changes
were the result of discrete tax benefits of $2.9 million primarily related to
the completion of a foreign tax audit, $2.0 million for cumulative adjustments
of prior year provisions to actual tax return filings and $1.0 million from the
utilization of unused R&D tax credits, all occurring in 2009. The slight
decrease in our provision for income taxes in 2008, compared to 2007, resulted
primarily from a discrete tax benefit of $2.3 million resulting from the
write-down of deferred tax liabilities due to goodwill and intangible asset
impairments and an expected $0.6 million benefit from a provision of the Housing
and Economic Recovery Act of 2008, which allows for the utilization of unused
R&D tax credits. We generally recognize no significant U.S. tax benefit from
acquisition-related amortization. Our federal tax benefit was primarily related
to the discrete tax items mentioned above. Our state tax provision was the
result of minimal state tax payments.
The tax
rate in each year is affected by net changes in the valuation allowance against
our deferred tax assets. Excluding the impact of the valuation allowance, our
effective tax rate would have been (35%), (14%) and (187%), respectively, for
the years 2009, 2008 and 2007. These rates differ from the Federal statutory
rate of 35% primarily due to the mix of income and losses in foreign
jurisdictions, which have tax rates that differ from the statutory rate,
non-deductible impairment of goodwill expenses, and non-deductible
acquisition-related expenses.
We file
in multiple tax jurisdictions and from time to time are subject to audit in
certain tax jurisdictions, but we believe that we are adequately reserved for
these exposures. See
Note H to our Consolidated Financial Statements in Item 8 for further
information on our unrecognized tax benefits
at December 31, 2009 and 2008.
LIQUIDITY
AND CAPITAL RESOURCES
Current
Cash Flows and Commitments
We have
funded our operations in recent years through cash flows from operations as well
as from the proceeds of the issuance of common stock under our employee stock
plans. At December 31, 2009, our principal sources of liquidity included cash,
cash equivalents and marketable securities totaling $108.9 million.
Net cash
of ($13.5) million was used in our operating activities in 2009, compared to
$10.2 million and $94.1 million provided by our operating activities in 2008 and
2007, respectively. In 2009, net cash used in operating activities primarily
reflected our net loss adjusted for depreciation, amortization and stock-based
compensation expense, as well as changes in working capital items, in particular
decreases in accounts receivable and inventories, offset by decreases in
deferred revenues and accrued expenses including restructuring accruals. In
2008, net cash provided by operating activities primarily reflected our net loss
adjusted for depreciation and amortization, goodwill and intangible asset
impairment losses, stock-based compensation expense, and the gain on the sale of
our Softimage 3D animation and PCTV product lines, as well as changes in working
capital items, in particular decreases in accounts receivable and inventories
and an increase in accrued expenses. In 2007, cash provided by operating
activities primarily reflected non-cash adjustments to our net loss for
depreciation and amortization and stock-based compensation
expense, as well as a decrease in inventories and an increase in deferred
revenues.
37
Accounts
receivable decreased by $23.8 million to $79.7 million at December 31, 2009,
from $103.5 million at December 31, 2008, driven by the decrease in net revenues
of 15% in the fourth quarter of 2009, when compared to the same period of 2008,
as well as improved collections reflected by a decrease in days sales
outstanding. These balances are net of allowances for sales returns, bad debts
and customer rebates, all of which we estimate and record based primarily on
historical experience. Days sales outstanding in accounts receivable was 41 days
at December 31, 2009, compared to 45 days at December 31, 2008.
At
December 31, 2009 and 2008, we held inventory in the amounts of $77.2 million
and $95.8 million, respectively. These balances include stockroom, spare parts
and demonstration equipment inventories at various locations and inventory at
customer sites related to shipments for which we have not yet recognized
revenues. The
decrease in inventory of $18.6 million from December 31, 2008 to December 31,
2009 was primarily due to improved efficiencies resulting from the consolidation
of operations in connection with our business transformation. We review
all inventory balances regularly for excess quantities or potential obsolescence
and make appropriate adjustments as needed to write-down the inventories to
reflect their estimated realizable value. We source inventory products and
components pursuant to purchase orders placed from time to time.
Deferred revenues
decreased by $29.5 million to $39.1 million at December 31, 2009, from
$68.6 million at December 31, 2008. This decrease was primarily the result of
the recognition of deferred revenue related to large broadcast deals accepted in
the fourth quarter of 2009 and, to a lesser extent, a reduction in deferrals
related to maintenance contracts resulting from lower
average maintenance contract values and the timing of contract
renewals.
Restructuring
accruals decreased by $1.1 million to $17.0 million at December 31, 2009, from
$18.1 million at December 31, 2008. This decrease was primarily the result of
restructuring-related cash payments of $25.8 million and non-cash write-offs of
$3.1 million, offset by 2009 restructuring charges of $27.7 million. In
connection with restructuring activities during 2009 and prior periods, at
December 31, 2009, we had restructuring accruals of $9.2 million and $7.7
million related to severance and lease obligations, respectively. Our future
cash obligations for leases for which we have vacated the underlying facilities
total approximately $13.4 million. The lease accruals represent the present
value of the excess of our lease commitments on the vacated space over expected
payments to be received on subleases of the relevant facilities. The lease
payments will be made over the remaining terms of the leases, which have varying
expiration dates through 2017, unless we are able to negotiate earlier
terminations. The severance payments will be made during the next twelve months.
All payments related
to restructuring actions are expected to be funded through working capital. See
Note N to our Consolidated Financial Statements in Item 8 for the activity in
the restructuring and other costs accrual for 2009.
Net cash
flow used in investing activities was ($20.0) million and ($1.2) million in 2009
and 2008, respectively, compared to $35.6 million provided by investing
activities in 2007. We hold our excess cash in
short-term marketable securities and convert them to cash as needed. The net
cash flow used in investing activities for 2009 primarily reflected purchases of
property and equipment and a $10 million facility-related escrow deposit into a
long-term asset account, partially offset by net proceeds of $8.6 million
resulting from the timing of the sale and purchase of marketable securities and
the release of escrow holdings totaling $3.5 million related to the 2008 sale of
our Softimage 3D animation product line. The remaining escrow holdings of $3.5
million, subject to possible adjustment, are scheduled to be released during the
fourth quarter of 2010. The $10 million
facility-related escrow deposit was related to our recently signed leases for
facilities in Burlington, Massachusetts. The net cash flow used in investing
activities for 2008 primarily reflected purchases of property and equipment and
net purchases of $10.1 million resulting from the timing of the sale and
purchase of marketable securities, partially offset by proceeds, net of
transaction costs, of $26.3 million from the sale of our Softimage 3D animation
and PCTV product lines. The net cash flow
provided by investing activities for 2007 primarily reflected net proceeds of
$63.6 million resulting from the timing of the sale and purchase of
marketable securities, partially offset by purchases of property and
equipment. We purchased
$18.7 million of property and equipment during 2009, compared to $15.4 million
during 2008 and $26.1 million in 2007. Purchases of property and equipment in
all years consisted primarily of computer hardware and software to support
R&D activities and our information systems. Our cash requirements for
capital spending in 2010 are expected to total approximately $32 million. This
amount could increase in the event we enter into strategic business acquisitions
or for other reasons. On January 5, 2010, we acquired all the outstanding shares
of Blue Order Solutions AG for approximately $16 million.
38
Net cash flow provided by
financing activities was $0.1 million in 2009, compared to ($92.4) million and
($15.3) million used in financing activities in 2008 and 2007, respectively.
The cash provided by financing activities in 2009 reflected proceeds of
$0.6 million from the issuance of stock related
to the exercise of stock options and purchases under our employee stock
purchase plan, partially offset by $0.5 million used to repurchase stock options
during the second quarter of 2009. The cash used in financing activities in 2008
was the result of $93.2 million used for our stock repurchase program, slightly
offset by proceeds of $1.1 million from the exercise of stock options and
purchases under our employee stock purchase plan.The cash used in financing
activities in 2007 reflected a $26.6 million repurchase of our common stock,
partially offset by proceeds of $11.1 million from the issuance of stock related
to the exercise of stock options and our employee stock purchase plan.
A stock
repurchase program was approved by our board of directors in April 2007, which
authorized the repurchase of up to $100 million of our common stock through
transactions on the open market, in block trades or otherwise. In February 2008,
our board of directors approved a $100 million increase in authorized funds for
the repurchase of our common stock under this program. During 2007, we
repurchased 809,236 shares of our common stock under the program for a total
purchase price, including commissions, of $26.6 million. During 2008, we
repurchased an additional 4,254,397 shares of our common stock for a total
purchase price, including commissions, of $93.2 million, leaving $80.3 million
authorized for future repurchases. No shares of our common stock were
repurchased under this program in 2009. The stock repurchase program is being
funded through working capital and has no expiration date.
Our cash
requirements vary depending on factors such as our growth, capital expenditures,
acquisitions of businesses or technologies and obligations under restructuring
programs. We believe that our existing cash, cash equivalents, marketable
securities and funds generated from operations will be sufficient to meet our
operating cash requirements for at least the next twelve months. In the event
that we require additional financing, we believe that we will be able to obtain
such financing; however, there can be no assurance that we would be successful
in doing so or that we could do so on favorable terms.
Fair
Value Measurements
We value
our cash and investment instruments using quoted market prices, broker or dealer
quotations, or alternative pricing sources with reasonable levels of price
transparency. See Note B to our Condensed Consolidated Financial Statements
included in Item 8 of this annual report for disclosure of the fair values
and the inputs used to determine the fair values of our financial assets and
financial liabilities.
CONTRACTUAL
AND COMMERCIAL OBLIGATIONS
The
following table sets forth future payments that we were obligated to make at
December 31, 2009 under existing lease agreements and commitments to purchase
inventory (in thousands):
|
Total
|
Less
than
1
Year
|
1
– 3 Years
|
3
– 5 Years
|
After
5
Years
|
|||||||
|
Operating
leases
|
$124,798
|
$21,303
|
$35,525
|
$28,341
|
$39,629
|
||||||
|
Unconditional
purchase obligations
|
49,522
|
49,522
|
—
|
—
|
—
|
||||||
|
$174,320
|
$70,825
|
$35,525
|
$28,341
|
$39,629
|
Other
contractual arrangements or unrecognized tax positions that may result in cash
payments consisted of the following at December 31, 2009 (in
thousands):
|
Total(a)
|
Less
than
1
Year
|
1
– 3 Years
|
3
– 5 Years
|
After
5
Years
|
|||||||
|
Transactions
with recourse
|
$2,493
|
$2,493
|
—
|
—
|
—
|
||||||
|
Unrecognized
tax positions and related interest
|
2,300
|
—
|
—
|
—
|
—
|
||||||
|
Stand-by
letters of credit
|
3,316
|
—
|
—
|
—
|
$3,316
|
||||||
|
$8,109
|
$2,493
|
—
|
—
|
$3,316
|
|
|
(a)
|
At
December 31, 2009, liability related to unrecognized tax positions and
related interest was $2.3 million, and we were unable to reasonably
estimate the timing of the liability in individual years due to
uncertainties in the timing of the effective settlement of the
positions.
|
39
Through
third parties, we offer lease financing options to our customers. During the
terms of these financing arrangements, which are generally for three years, we
may remain liable for a portion of the unpaid principal balance in the event of
a default on the lease by the end user, but our liability is limited in the
aggregate based on a percentage of initial amounts funded or, in certain cases,
amounts of unpaid balances. At December 31, 2009, our maximum exposure under
these programs was $2.5 million.
We have
three letters of credit at a bank that are used as security deposits in
connection with our recently leased Burlington, Massachusetts office space. In
the event of default on the underlying leases, the landlords would, at December
31, 2009, be eligible to draw against the letters of credit to a maximum of
approximately $2.6 million in the aggregate. The letters of credit are subject
to aggregate reductions of approximately $0.4 million at the end of each of the
second, third and fifth years, provided the Company is not in default of the
underlying leases and meets certain financial performance conditions. In no case
will the letters of credit amounts be reduced to below $1.3 million in the
aggregate throughout the lease periods, all of which extend to May 2020. At
December 31, 2009, the Company was not in default of any of the underlying
leases.
We also
have a stand-by letter of credit at a bank that is used as a security deposit in
connection with our Daly City, California office space lease. In the event of a
default on this lease, the landlord would be eligible to draw against this
letter of credit to a maximum, at December 31, 2009, of $750 thousand. The
letter of credit will remain in effect at this amount throughout the remaining
lease period, which runs through September 2014. At December 31, 2009, we were
not in default of this lease.
We
operate our business globally and, consequently, our results from operations are
exposed to movements in foreign currency exchange rates. We enter into forward
exchange contracts, which generally have one-month maturities, to reduce
exposures associated with the foreign exchange risks of certain forecasted
third-party and intercompany receivables, payables and cash balances. At
December 31, 2009, we had foreign currency forward contracts outstanding with an
aggregate notional value of $46.2 million, denominated in the euro, British
pound, Japanese yen and Canadian dollar, as a hedge against forecasted foreign
currency denominated receivables, payables and cash balances.
OFF-BALANCE
SHEET ARRANGEMENTS
Other
than operating leases, we do not engage in off-balance sheet financing
arrangements or have any variable-interest entities. At December 31, 2009, we
did not have any off-balance sheet arrangements as defined in Item 303(a)(4)(ii)
of SEC Regulation S-K.
RECENT
ACCOUNTING PRONOUNCEMENTS
In
October 2009, the FASB issued Accounting Standards Update No. 2009-13, Multiple-Deliverable Revenue
Arrangements, an amendment to ASC topic 605, Revenue Recognition, and
Accounting Standards Update No. 2009-14, Certain Revenue Arrangements That
Include Software Elements, an amendment to ASC subtopic 985-605, Software – Revenue
Recognition (the “Updates”). See our critical accounting policy for
“Revenue Recognition and Allowances for Product Returns and Exchanges” found
previously in this Item 7 under the heading “Critical Accounting Policies and
Estimates” for a further discussion of this guidance.
In June
2009, the FASB issued SFAS No. 167, Amendments to FASB Interpretation
No. 46(R) (now codified within ASC topic 810, Consolidation). This guidance
requires an enterprise to perform an analysis to determine whether the
enterprise’s variable interest or interests give it a controlling financial
interest in a variable interest entity. This analysis identifies the primary
beneficiary of a variable interest entity as one with the power to direct the
activities of a variable interest entity that most significantly impact the
entity’s economic performance and the obligation to absorb losses of the entity
that could potentially be significant to the variable interest. The guidance is
effective as of the beginning of the annual reporting period commencing after
November 15, 2009, or January 1, 2010 for us, with early adoption
prohibited. Adoption is not expected to have a significant impact on our
financial position or results of operations.
40
Foreign
Currency Exchange Risk
We have
significant international operations and, therefore, our revenues, earnings,
cash flows and financial position are exposed to foreign currency risk from
foreign currency denominated receivables, payables, sales transactions and net
investments in foreign operations.
We derive
more than half of our revenues from customers outside the United States. This
business is, for the most part, transacted through international subsidiaries
and generally in the currency of the end-user customers. Therefore, we are
exposed to the risks that changes in foreign currency could adversely impact our
revenues, net income and cash flow. To hedge against the foreign exchange
exposure of certain forecasted receivables, payables and cash balances, we enter
into short-term foreign currency forward contracts. There are two objectives of
our foreign currency forward-contract program: (1) to offset any foreign
exchange currency risk associated with cash receipts expected to be received
from our customers over the next 30-day period and (2) to offset the impact of
foreign currency exchange on our net monetary assets denominated in currencies
other than the functional currency of the legal entity. These forward contracts
typically mature within 30 days of execution. We record gains and losses
associated with currency rate changes on these contracts in results of
operations, offsetting gains and losses on the related assets and liabilities.
The success of this hedging program depends on forecasts of transaction activity
in the various currencies and contract rates versus financial statement rates.
To the extent these forecasts are overstated or understated during periods of
currency volatility, we could experience unanticipated currency gains or
losses.
At
December 31, 2009, we had foreign currency forward contracts outstanding with an
aggregate notional value of $46.2 million, denominated in the euro, British
pound, Japanese yen and Canadian dollar, as a hedge against actual and
forecasted foreign currency denominated receivables, payables and cash balances.
The mark-to-market effect associated with foreign currency forward contracts was
a net unrealized gain of $0.6 million at December 31, 2009. For the year ended
December 31, 2009, net gains of $1.2 million resulting from forward contracts
and $0.2 million of net transaction and remeasurement gains on the related
assets and liabilities were included in our results of operations.
As it
relates to our use of foreign currency forward contracts, a hypothetical 10%
change in foreign currency rates would not have a material impact on our
financial position, assuming the above-mentioned forecast of foreign currency
exposure is accurate, because the impact on the forward contracts as a result of
a 10% change would at least partially offset the impact on the asset and
liability positions of our foreign subsidiaries.
Interest
Rate Risk
At
December 31, 2009, we held $108.9 million in cash, cash equivalents and
marketable securities, including short-term certificates of deposit, commercial
paper, asset-backed securities, discount notes, and corporate, municipal, agency
and foreign bonds. Marketable securities are classified as “available for sale”
and are recorded on the balance sheet at market value, with any unrealized gain
or loss recorded in other comprehensive income (loss). A hypothetical 10%
increase or decrease in interest rates would not have a material impact on the
fair market value of these instruments due to their short
maturities.
41
|
ITEM
8.
|
FINANCIAL
STATEMENTS AND SUPPLEMENTARY FINANCIAL
INFORMATION
|
AVID
TECHNOLOGY, INC.
INDEX
TO CONSOLIDATED FINANCIAL STATEMENTS
AND
FINANCIAL STATEMENT SCHEDULE
|
Page
|
|
|
CONSOLIDATED
FINANCIAL STATEMENTS INCLUDED IN ITEM 8:
|
|
|
43
|
|
|
44
|
|
|
46
|
|
|
47
|
|
|
48
|
|
|
49
|
|
|
50
|
|
|
CONSOLIDATED
FINANCIAL STATEMENT SCHEDULE INCLUDED IN ITEM 15(d):
|
|
|
F-1
|
|
|
Schedules
other than those listed above have been omitted since the required
information is not present, or not present in amounts sufficient to
require submission of the schedule, or because the information is included
in the consolidated financial statements or the notes
thereto.
|
|
42
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 Rules 13a-15(f) and 15d-15(f) promulgated
under the Securities Exchange Act of 1934, as amended, 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:
|
·
|
pertain
to the maintenance of records that in reasonable detail accurately and
fairly reflect the transactions and dispositions of the assets of the
Company;
|
|
·
|
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
|
|
·
|
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.
The
Company’s management assessed the effectiveness of the Company’s internal
control over financial reporting as of December 31, 2009. In making this
assessment, the Company’s management used the criteria set forth by the
Committee of Sponsoring Organizations of the Treadway Commission (COSO) in
Internal Control-Integrated Framework.
Based on
this assessment, management has concluded that as of December 31, 2009 the
Company’s internal control over financial reporting is effective based on the
criteria set forth by the COSO.
Ernst
& Young LLP, the independent registered public accounting firm that audited
the Company’s financial statements included in this annual report on Form 10-K,
has issued an attestation report on the Company’s internal controls over
financial reporting as of December 31, 2009. Please see page 44.
43
Report
of Independent Registered Public Accounting Firm
The Board
of Directors and Shareholders of Avid Technology, Inc.
We have
audited Avid Technology, Inc.’s internal control over financial reporting as of
December 31, 2009, based on criteria established in Internal Control—Integrated
Framework issued by the Committee of Sponsoring Organizations of the Treadway
Commission (the COSO criteria). Avid Technology, 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, Avid Technology, Inc. maintained, in all material respects, effective
internal control over financial reporting as of December 31, 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 Avid
Technology, Inc. as of December 31, 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 December 31, 2009 of Avid Technology, Inc. and
our report dated March 16, 2010 expressed an unqualified opinion
thereon.
/s/ Ernst
& Young LLP
Boston,
Massachusetts
March 16,
2010
44
Report
of Independent Registered Public Accounting Firm
The Board
of Directors and Shareholders of Avid Technology, Inc.
We have
audited the accompanying consolidated balance sheets of Avid Technology, Inc. as
of December 31, 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 December 31, 2009. Our audit also included the
financial statement schedule listed in the index in Item 15(a)
2. 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 Avid Technology, Inc.
at December 31, 2009 and 2008, and the consolidated results of its operations
and its cash flows for each of the three years in the period ended December 31,
2009, in conformity with U.S. generally accepted accounting
principles. Also, in our opinion the related financial statement
schedule, when considered in relation to the basic financial statements taken as
a whole, present fairly in all material respects the information set forth
therein.
As
discussed in Note G to the consolidated financial statements, Avid Technology,
Inc. changed its method of accounting for business combinations with the
adoption of the guidance originally issued in FASB Statement No. 141(R), Business Combinations
(codified in FASB ASC Topic 805, Business Combinations)
effective January 1, 2009.
We also
have audited, in accordance with the standards of the Public Company Accounting
Oversight Board (United States), Avid Technology, Inc.’s internal control over
financial reporting as of December 31, 2009, based on criteria established in
Internal Control-Integrated Framework issued by the Committee of Sponsoring
Organizations of the Treadway Commission and our report dated March 16, 2010
expressed an unqualified opinion thereon.
/s/ Ernst
& Young LLP
Boston,
Massachusetts
March 16,
2010
45
AVID
TECHNOLOGY, INC.
(in
thousands, except per share data)
|
For
the Year Ended December 31,
|
||||||||||||||
|
2009
|
2008
|
2007
|
||||||||||||
|
Net
revenues:
|
||||||||||||||
|
Products
|
$
|
509,215
|
$
|
714,232
|
$
|
806,103
|
||||||||
|
Services
|
119,755
|
130,669
|
123,467
|
|||||||||||
|
Total
net revenues
|
628,970
|
844,901
|
929,570
|
|||||||||||
|
Cost
of revenues:
|
||||||||||||||
|
Products
|
243,362
|
369,186
|
390,725
|
|||||||||||
|
Services
|
59,754
|
73,888
|
68,529
|
|||||||||||
|
Amortization
of intangible assets
|
2,033
|
7,526
|
16,895
|
|||||||||||
|
Restructuring
costs
|
799
|
1,876
|
4,278
|
|||||||||||
|
Total
cost of revenues
|
305,948
|
452,476
|
480,427
|
|||||||||||
|
Gross
profit
|
323,022
|
392,425
|
449,143
|
|||||||||||
|
Operating
expenses:
|
||||||||||||||
|
Research
and development
|
120,989
|
148,598
|
150,707
|
|||||||||||
|
Marketing
and selling
|
173,601
|
208,735
|
210,456
|
|||||||||||
|
General
and administrative
|
61,087
|
78,591
|
77,463
|
|||||||||||
|
Amortization
of intangible assets
|
10,511
|
12,854
|
13,726
|
|||||||||||
|
Impairment
of goodwill and intangible assets
|
—
|
129,972
|
—
|
|||||||||||
|
Restructuring
costs, net
|
26,873
|
25,412
|
9,410
|
|||||||||||
|
Gain
on sales of assets
|
(155
|
)
|
(13,287
|
)
|
—
|
|||||||||
|
Total
operating expenses
|
392,906
|
590,875
|
461,762
|
|||||||||||
|
Operating
loss
|
(69,884
|
)
|
(198,450
|
)
|
(12,619
|
)
|
||||||||
|
Interest
income
|
848
|
3,435
|
8,256
|
|||||||||||
|
Interest
expense
|
(906
|
)
|
(570
|
)
|
(603
|
)
|
||||||||
|
Other
income (expense), net
|
(65
|
)
|
71
|
(16
|
)
|
|||||||||
|
Loss
before income taxes
|
(70,007
|
)
|
(195,514
|
)
|
(4,982
|
)
|
||||||||
|
(Benefit
from) provision for income taxes, net
|
(1,652
|
)
|
2,663
|
2,997
|
||||||||||
|
Net
loss
|
$
|
(68,355
|
)
|
$
|
(198,177
|
)
|
$
|
(7,979
|
)
|
|||||
|
Net
loss per common share – basic and diluted
|
$
|
(1.83
|
)
|
$
|
(5.28
|
)
|
$
|
(0.19
|
)
|
|||||
|
Weighted-average
common shares outstanding – basic and diluted
|
37,293
|
37,556
|
40,974
|
|||||||||||
The
accompanying notes are an integral part of the consolidated financial
statements.
46
AVID
TECHNOLOGY, INC.
(in
thousands, except par value)
|
December
31,
|
December
31,
|
||||||||
|
2009
|
2008
|
||||||||
|
ASSETS
|
|||||||||
|
Current
assets:
|
|||||||||
|
Cash
and cash equivalents
|
$
|
91,517
|
$
|
121,792
|
|||||
|
Marketable
securities
|
17,360
|
25,902
|
|||||||
|
Accounts
receivable, net of allowances of $16,347 and $23,182 at December 31, 2009
and 2008, respectively
|
79,741
|
103,527
|
|||||||
|
Inventories
|
77,243
|
95,755
|
|||||||
|
Deferred
tax assets, net
|
770
|
612
|
|||||||
|
Prepaid
expenses
|
7,789
|
9,274
|
|||||||
|
Other
current assets
|
22,516
|
34,083
|
|||||||
|
Total
current assets
|
296,936
|
390,945
|
|||||||
|
Property
and equipment, net
|
37,217
|
38,321
|
|||||||
|
Intangible
assets, net
|
29,235
|
38,143
|
|||||||
|
Goodwill
|
227,195
|
225,375
|
|||||||
|
Other
assets
|
20,455
|
10,801
|
|||||||
|
Total
assets
|
$
|
611,038
|
$
|
703,585
|
|||||
|
LIABILITIES
AND STOCKHOLDERS’ EQUITY
|
|||||||||
|
Current
liabilities:
|
|||||||||
|
Accounts
payable
|
$
|
30,230
|
$
|
29,419
|
|||||
|
Accrued
compensation and benefits
|
25,281
|
27,346
|
|||||||
|
Accrued
expenses and other current liabilities
|
55,591
|
64,511
|
|||||||
|
Income
taxes payable
|
3,228
|
9,250
|
|||||||
|
Deferred
revenues
|
39,107
|
68,581
|
|||||||
|
Total
current liabilities
|
153,437
|
199,107
|
|||||||
|
Long-term
liabilities
|
14,483
|
11,823
|
|||||||
|
Total
liabilities
|
167,920
|
210,930
|
|||||||
|
Commitments
and contingencies (Notes H and J)
|
|||||||||
|
Stockholders’
equity:
|
|||||||||
|
Preferred
stock, $0.01 par value, 1,000 shares authorized; no shares issued or
outstanding
|
—
|
—
|
|||||||
|
Common
stock, $0.01 par value, 100,000 shares authorized; 42,339 shares and
42,339 shares issued and 37,486 and 37,131 outstanding at December 31,
2009 and 2008, respectively
|
423
|
423
|
|||||||
|
Additional
paid-in capital
|
992,489
|
980,563
|
|||||||
|
Accumulated
deficit
|
(444,661
|
)
|
(365,431
|
)
|
|||||
|
Treasury
stock at cost, net of reissuances, 4,853 shares and 5,208 shares at
December 31, 2009 and 2008, respectively
|
(112,389
|
)
|
(124,852
|
)
|
|||||
|
Accumulated
other comprehensive income
|
7,256
|
1,952
|
|||||||
|
Total
stockholders’ equity
|
443,118
|
492,655
|
|||||||
|
Total
liabilities and stockholders’ equity
|
$
|
611,038
|
$
|
703,585
|
|||||
The
accompanying notes are an integral part of the consolidated financial
statements.
47
AVID
TECHNOLOGY, INC.
(in
thousands)
|
Shares
of
Common
Stock
|
Additional
|
Accumulated
Other
|
Total
|
|||||||
|
Issued
|
In
Treasury
|
Common
Stock
|
Paid-in
Capital
|
Accumulated
Deficit
|
Treasury
Stock
|
Comprehensive
Income
|
Stockholders’
Equity
|
|||
|
Balances
at December 31, 2006
|
42,339
|
(1,244)
|
$423
|
$952,763
|
($134,708)
|
($43,768)
|
$5,671
|
$780,381
|
||
|
Stock
repurchased
|
(809)
|
(24)
|
(26,615)
|
(26,639)
|
||||||
|
Stock
issued pursuant to employee stock plans
|
810
|
(639)
|
(13,035)
|
24,617
|
10,943
|
|||||
|
Stock-based
compensation
|
15,949
|
15,949
|
||||||||
|
Tax
benefit associated with stock option exercises and
forfeitures
|
290
|
290
|
||||||||
|
Recovery
of common stock in connection with acquisitions
|
(1)
|
(34)
|
(34)
|
|||||||
|
Stock
recovery for payment of withholding tax
|
(1)
|
(23)
|
(23)
|
|||||||
|
Comprehensive
loss:
|
||||||||||
|
Net
loss
|
(7,979)
|
(7,979)
|
||||||||
|
Net
change in unrealized gain (loss) on marketable securities
|
11
|
11
|
||||||||
|
Translation
adjustment
|
6,884
|
6,884
|
||||||||
|
Other
comprehensive income
|
6,895
|
|||||||||
|
Comprehensive
loss
|
(1,084)
|
|||||||||
|
Balances
at December 31, 2007
|
42,339
|
(1,245)
|
423
|
968,339
|
(155,722)
|
(45,823)
|
12,566
|
779,783
|
||
|
Stock
repurchased
|
(4,254)
|
(128)
|
(93,059)
|
(93,187)
|
||||||
|
Stock
issued pursuant to employee stock plans
|
292
|
(1,333)
|
(11,532)
|
14,055
|
1,190
|
|||||
|
Stock-based
compensation
|
14,074
|
14,074
|
||||||||
|
Tax
benefit associated with stock option exercises and
forfeitures
|
(389)
|
(389)
|
||||||||
|
Stock
recovery for payment of withholding tax
|
(1)
|
(25)
|
(25)
|
|||||||
|
Comprehensive
loss:
|
||||||||||
|
Net
loss
|
(198,177)
|
(198,177)
|
||||||||
|
Net
change in unrealized gain (loss) on marketable securities
|
(352)
|
(352)
|
||||||||
|
Translation
adjustment
|
(10,262)
|
(10,262)
|
||||||||
|
Other
comprehensive loss
|
(10,614)
|
|||||||||
|
Comprehensive
loss
|
(208,791)
|
|||||||||
|
Balances
at December 31, 2008
|
42,339
|
(5,208)
|
423
|
980,563
|
(365,431)
|
(124,852)
|
1,952
|
492,655
|
||
|
Stock
issued pursuant to employee stock plans
|
369
|
(942)
|
(10,875)
|
12,635
|
818
|
|||||
|
Stock-based
compensation
|
13,394
|
13,394
|
||||||||
|
Stock
option purchase
|
(526)
|
(526)
|
||||||||
|
Stock
recovery for payment of withholding tax
|
(14)
|
(172)
|
(172)
|
|||||||
|
Comprehensive
loss:
|
||||||||||
|
Net
loss
|
(68,355)
|
(68,355)
|
||||||||
|
Net
change in unrealized gain (loss) on marketable securities
|
31
|
31
|
||||||||
|
Translation
adjustment
|
5,273
|
5,273
|
||||||||
|
Other
comprehensive loss
|
5,304
|
|||||||||
|
Comprehensive
loss
|
(63,051)
|
|||||||||
|
Balances
at December 31, 2009
|
42,339
|
(4,853)
|
$423
|
$992,489
|
($444,661)
|
($112,389)
|
$7,256
|
$443,118
|
||
The
accompanying notes are an integral part of the consolidated financial
statements.
48
AVID
TECHNOLOGY, INC.
(in
thousands)
|
For
the Year Ended December 31,
|
||||||||||||||
|
2009
|
2008
|
2007
|
||||||||||||
|
Cash
flows from operating activities:
|
||||||||||||||
|
Net
loss
|
$
|
(68,355
|
)
|
$
|
(198,177
|
)
|
$
|
(7,979
|
)
|
|||||
|
Adjustments
to reconcile net loss to net cash (used in) provided by operating
activities:
|
||||||||||||||
|
Depreciation
and amortization
|
32,130
|
42,842
|
53,186
|
|||||||||||
|
Provision
for doubtful accounts
|
1,930
|
2,583
|
220
|
|||||||||||
|
Impairment
of goodwill and intangible assets
|
—
|
129,972
|
—
|
|||||||||||
|
Non-cash
provision for restructuring
|
3,140
|
1,893
|
4,440
|
|||||||||||
|
Gain
on sales of assets
|
(155
|
)
|
(13,287
|
)
|
—
|
|||||||||
|
Loss
(gain) on disposal of fixed assets
|
43
|
17
|
(88
|
)
|
||||||||||
|
Compensation
expense from stock grants and options
|
13,394
|
13,941
|
15,949
|
|||||||||||
|
Equity
in loss of non-consolidated company
|
—
|
—
|
130
|
|||||||||||
|
Changes
in deferred tax assets and liabilities, excluding initial effects of
acquisitions
|
(1,634
|
)
|
(4,173
|
)
|
(2,980
|
)
|
||||||||
|
Changes
in operating assets and liabilities, excluding initial effects of
acquisitions:
|
||||||||||||||
|
Accounts
receivable
|
24,771
|
23,992
|
3,574
|
|||||||||||
|
Inventories
|
17,766
|
11,539
|
23,899
|
|||||||||||
|
Prepaid
expenses and other current assets
|
8,980
|
(64
|
)
|
(5,882
|
)
|
|||||||||
|
Accounts
payable
|
739
|
(5,445
|
)
|
496
|
||||||||||
|
Accrued
expenses, compensation and benefits and other liabilities
|
(13,517
|
)
|
15,069
|
3,826
|
||||||||||
|
Income
taxes payable
|
(6,330
|
)
|
(1,709
|
)
|
(1,398
|
)
|
||||||||
|
Deferred
revenues
|
(26,373
|
)
|
(8,842
|
)
|
6,693
|
|||||||||
|
Net
cash (used in) provided by operating activities
|
(13,471
|
)
|
10,151
|
94,086
|
||||||||||
|
Cash
flows from investing activities:
|
||||||||||||||
|
Purchases
of property and equipment
|
(18,689
|
)
|
(15,436
|
)
|
(26,129
|
)
|
||||||||
|
Payments
for other long-term assets
|
(11,432
|
)
|
(2,024
|
)
|
(1,344
|
)
|
||||||||
|
Payments
for business acquisitions, net of cash acquired
|
(4,413
|
)
|
—
|
(529
|
)
|
|||||||||
|
Proceeds
from sales of assets, net
|
3,502
|
26,307
|
—
|
|||||||||||
|
Proceeds
from notes receivable
|
2,500
|
—
|
—
|
|||||||||||
|
Purchases
of marketable securities
|
(55,741
|
)
|
(56,907
|
)
|
(10,185
|
)
|
||||||||
|
Proceeds
from sales of marketable securities
|
64,318
|
46,855
|
73,790
|
|||||||||||
|
Net
cash (used in) provided by investing activities
|
(19,955
|
)
|
(1,205
|
)
|
35,603
|
|||||||||
|
Cash
flows from financing activities:
|
||||||||||||||
|
Payments
on capital lease obligations
|
—
|
—
|
(51
|
)
|
||||||||||
|
Payments
related to stock option purchase
|
(526
|
)
|
—
|
—
|
||||||||||
|
Purchases
of common stock for treasury
|
—
|
(93,187
|
)
|
(26,639
|
)
|
|||||||||
|
Proceeds
from issuance of common stock under employee stock plans,
net
|
646
|
1,133
|
11,059
|
|||||||||||
|
Tax
benefits (deficiencies) from stock option exercises
|
—
|
(389
|
)
|
290
|
||||||||||
|
Net
cash provided by (used in) financing activities
|
120
|
(92,443
|
)
|
(15,341
|
)
|
|||||||||
|
Effect
of exchange rate changes on cash and cash equivalents
|
3,031
|
(3,330
|
)
|
(2,008
|
)
|
|||||||||
|
Net
(decrease) increase in cash and cash equivalents
|
(30,275
|
)
|
(86,827
|
)
|
112,340
|
|||||||||
|
Cash
and cash equivalents at beginning of period
|
121,792
|
208,619
|
96,279
|
|||||||||||
|
Cash
and cash equivalents at end of period
|
$
|
91,517
|
$
|
121,792
|
$
|
208,619
|
||||||||
See
Notes F, H and R for supplemental disclosures.
The
accompanying notes are an integral part of the consolidated financial
statements.
49
AVID
TECHNOLOGY, INC.
|
A.
|
ORGANIZATION
AND OPERATIONS
|
Avid
Technology, Inc. (“Avid” or the “Company”) develops, markets, sells and supports
a wide range of software and hardware for digital media content production,
management and distribution. Digital media are video, audio or graphic elements
in which the image, sound or picture is recorded and stored as digital values,
as opposed to analog, or tape-based, signals. The Company’s products are used
worldwide in production and post-production facilities; film studios; network,
affiliate, independent and cable television stations; recording studios;
live-sound performance venues; advertising agencies; government and educational
institutions; corporate communication departments; and by Internet professionals
and consumers. Projects produced using Avid’s products include major motion
pictures, prime-time television programs, music, video and other
recordings.
|
B.
|
SUMMARY
OF SIGNIFICANT ACCOUNTING POLICIES
|
A summary
of the Company’s significant accounting policies follows:
Basis
of Presentation
The
consolidated financial statements include the accounts of the Company and its
wholly owned subsidiaries. Intercompany balances and transactions have been
eliminated.
The
Company’s preparation of financial statements in conformity with accounting
principles generally accepted in the United States of America requires
management to make estimates and assumptions that affect the reported amounts of
assets and liabilities and disclosures of contingent assets and liabilities at
the dates of the financial statements and the reported amounts of revenues and
expenses during the reported periods. Actual results could differ from those
estimates. The most significant estimates reflected in these financial
statements include revenue recognition, stock-based compensation, accounts
receivable and sales allowances, inventory valuation, goodwill and intangible
asset valuation, divestitures, fair value measurements and income tax valuation
allowances.
Beginning
in 2009, the Company transitioned to a new business structure that combined the
former Professional Video and Consumer Video business units into a single Video
reporting segment and consolidated its sales and marketing teams into a single
customer-facing organization. The Company excludes certain corporate
infrastructure costs and expenses, including marketing and selling, finance,
human resources, legal and some information technology expenses, when evaluating
reportable segment performance and measuring the profitability of each operating
segment. Such expenses are managed outside the segments and are not controllable
at the segment level, and the Company believes that excluding these costs
provides a better measure of each segment’s performance. The Company also
excludes certain other costs and expenses when evaluating segment performance
and profitability, including the amortization and impairment of acquired
intangible assets, stock-based compensation expenses, restructuring expenses,
gains or losses on sales of assets, and legal settlements. For 2009, the Company
evaluated performance and measured profitability for two reportable segments,
Video and Audio. The Company has revised its segment reporting for prior periods
to conform to the 2009 presentation. The change to the current presentation did
not affect the Company’s consolidated operating results. See Note O for a
summary of the Company’s revenues and contribution margin by reportable segment
for the years ended December 31, 2009, 2008 and 2007. In the later part of 2009,
the Company completed the reorganization of its business around functional
groups rather than product categories. Based on a preliminary assessment of its
segment reporting for 2010, the Company expects to report based on one
reportable segment starting January 1, 2010.
During
the preparation of its financial statements for the three- and nine-month
periods ended September 30, 2009, the Company’s management uncovered certain
business practices that it believed could potentially affect the timing of
revenue recognition for certain product sales. As a result, the Company’s Audit
Committee initiated an investigation into the business and accounting practices
with regard to the shipment of products and recognition of product revenue from
certain distribution centers outside the United States. Based on the preliminary
results of the investigation, the Company determined that it had, in certain
instances, erroneously recognized revenue prior to transfer of title and risk of
loss to customers. The Company recorded the estimated errors related to this
matter in the financial statements for the three- and nine-month periods ended
September 30, 2009 prior to issuance of those financial statements. The Company
completed its investigation during the fourth quarter of 2009 and determined
that no changes to previously filed financial statements were deemed
necessary.
50
The
Company evaluated subsequent events to determine if any event since December 31,
2009, the date of these financial statements, required disclosure in these
statements. The evaluation determined that the Company’s acquisition of Blue
Order Solutions AG on January 5, 2010 (see Note T) should be disclosed in these
financial statements. The Company further determined that no other recognized or
unrecognized subsequent events required recognition or disclosure.
Translation
of Foreign Currencies
The
functional currency of each of the Company’s foreign subsidiaries is the local
currency, except for the Irish manufacturing branch whose functional currency is
the U.S. dollar due to the extensive interrelationship of the operations of the
Irish branch and the U.S. parent and the high volume of intercompany
transactions between that branch and the parent. The assets and liabilities of
the subsidiaries whose functional currencies are other than the U.S. dollar are
translated into U.S. dollars at the current exchange rate in effect at the
balance sheet date. Income and expense items for these entities are translated
using rates that approximate those in effect during the period. Cumulative
translation adjustments are included in accumulated other comprehensive income
(loss), which is reflected as a separate component of stockholders’
equity.
The U.S.
parent company and its Irish manufacturing branch, both of whose functional
currency is the U.S. dollar, carry monetary assets and liabilities denominated
in currencies other than the U.S. dollar. These assets and liabilities typically
include cash, accounts receivable and intercompany operating balances
denominated in the euro, pound sterling, Japanese yen, Swedish krona, Danish
kroner, Norwegian krone, Canadian dollar, Singapore dollar, Australian dollar
and Korean won. These assets and liabilities are remeasured into the U.S. dollar
at the current exchange rate in effect at the balance sheet date. Foreign
currency transaction and remeasurement gains and losses are included within
marketing and selling expenses in the results of operations.
The U.S.
parent company and various other wholly owned subsidiaries have long-term
intercompany loan balances denominated in foreign currencies that are remeasured
into the U.S. dollar at the current exchange rate in effect at the balance sheet
date. Any gains and losses relating to these loans are included in the
cumulative translation adjustment account in the balance sheet.
Cash,
Cash Equivalents and Marketable Securities
Cash
equivalents consist primarily of commercial paper, money market investments and
certificates of deposit. The Company considers all debt instruments purchased
with an original maturity of three months or less to be cash equivalents.
Marketable securities consist of certificates of deposit, commercial paper,
asset-backed securities, discount notes, and corporate, municipal, agency and
foreign bonds. The Company generally invests in securities that mature within
one year from the date of purchase. The Company classifies its cash equivalents
and marketable securities as “available for sale” and reports them at fair
value, with unrealized gains and losses excluded from earnings and reported as
an adjustment to other comprehensive income (loss), which is reflected as a
separate component of stockholders’ equity. Amortization or accretion of premium
or discount is included in interest income (expense) in the results of
operations. See Note C for costs (amortized costs of debt instruments) and fair
values of the Company’s available-for-sale securities.
Concentration
of Credit Risk and Fair Value Measurements
Financial
instruments that potentially subject the Company to concentrations of credit
risk consist of cash investments and trade receivables. The Company places its
excess cash in marketable investment grade securities. There are no significant
concentrations in any one issuer of debt securities. The Company places its
cash, cash equivalents and investments with financial institutions with high
credit standing. Concentrations of credit risk with respect to trade receivables
are limited due to the large number of customers that make up the Company’s
customer base and their dispersion across different regions. No individual
customer accounted for more than 10% of the Company’s net accounts receivable at
December 31, 2009 or 2008. The Company also maintains reserves for potential
credit losses and such losses have been within management’s
expectations.
In
September 2006, the Financial Accounting Standards Board (“FASB”) issued
Statement of Financial Accounting Standards (“SFAS”) No. 157, Fair Value Measurements (now
FASB Accounting Standards Codification (“ASC”) topic 820, Fair Value Measurements and
Disclosure. ASC topic 820 defines fair value, establishes a framework for
measuring fair value in accordance with generally accepted accounting
principles. As required, the Company adopted SFAS No. 157 for its financial
assets on January 1, 2008 and for its non-financial assets and liabilities on
January 1, 2009. Adoption did not have a material impact on the Company’s
financial position or results of operations.
51
ASC topic
820 also establishes a fair value hierarchy that requires the use of observable
market data, when available, and prioritizes the inputs to valuation techniques
used to measure fair value in the following categories:
|
·
|
Level
1 – Quoted unadjusted prices for identical instruments in active
markets.
|
|
·
|
Level
2 – Quoted prices for similar instruments in active markets, quoted prices
for identical or similar instruments in markets that are not active and
model-derived valuations in which all observable inputs and significant
value drivers are observable in active
markets.
|
|
·
|
Level
3 – Model derived valuations in which one or more significant inputs or
significant value drivers are unobservable, including assumptions
developed by the Company.
|
On a
recurring basis, the Company measures certain financial assets and liabilities
at fair value, including cash equivalents, marketable securities and
foreign-currency forward contracts. All of the Company’s financial assets and
liabilities were classified as either Level 1 or Level 2 in the fair value
hierarchy at December 31, 2009. Instruments valued using quoted market prices in
active markets and classified as Level 1 are primarily money market securities
and deferred compensation investments. Investments valued based on other
observable inputs and classified as Level 2 include commercial paper;
certificates of deposit; asset-backed obligations; discount notes; foreign
currency contracts; and corporate, municipal, agency and foreign
bonds.
The
following table summarizes the Company’s fair value hierarchy for its financial
assets and liabilities measured at fair value on a recurring basis at December
31, 2009 (in thousands):
|
Fair
Value Measurements at Reporting Date Using
|
|||||||||||||||||||
|
December
31,
2009
|
Quoted
Prices in
Active
Markets for
Identical
Assets
(Level
1)
|
Significant
Other
Observable
Inputs
(Level
2)
|
Significant
Unobservable
Inputs
(Level
3)
|
||||||||||||||||
|
Financial
Assets:
|
|||||||||||||||||||
|
Available
for sale securities
|
$
|
30,586
|
$
|
10,977
|
$
|
19,609
|
$
|
—
|
|||||||||||
|
Deferred
compensation plan investments
|
808
|
808
|
—
|
—
|
|||||||||||||||
|
Foreign
currency forward contracts
|
1,162
|
—
|
1,162
|
—
|
|||||||||||||||
|
Financial
Liabilities:
|
|||||||||||||||||||
|
Deferred
compensation plan
|
$
|
808
|
$
|
808
|
$
|
—
|
$
|
—
|
|||||||||||
|
Foreign
currency forward contracts
|
546
|
—
|
546
|
—
|
|||||||||||||||
The
Company uses the following valuation techniques to determine fair values of its
investment instruments
|
·
|
Money
Market: The fair value of the Company’s money market
fund investment is determined using the unadjusted quoted price from an
active market of identical
assets.
|
|
·
|
Commercial
Paper and Certificates of Deposit: The fair values for
the Company’s commercial paper holdings and certificates of deposit are
derived from a pricing model, using the straight-line amortized cost
method, and incorporating observable inputs including maturity date, issue
date, credit rating of the issuer, current commercial paper rate and
settlement date.
|
|
·
|
Corporate,
Municipal and Foreign Bonds: The determination of the
fair value of corporate, municipal and foreign bonds includes the use of
observable inputs from market sources and incorporating relative credit
information, observed market movements and sector news into a pricing
model.
|
|
·
|
Asset-Backed
Obligations: The fair value of asset-backed obligations
is determined using a pricing methodology based on observable market
inputs including an analysis of pricing, spread and volatility of similar
asset-backed obligations. Using the market inputs, cash flows
are generated for each tranche, the benchmark yield is determined and deal
collateral performance and other market information is incorporated to
determine the appropriate spreads.
|
|
·
|
Agency
Bonds & Discount Notes: The fair value of agency
bonds and discount note investments is determined using observable market
inputs for benchmark yields, base spreads, yield to maturity and relevant
trade data.
|
The fair
values of our foreign currency forward contracts are measured at fair value on
a recurring basis based on the changes in fair value of the foreign
currency forward contracts. See Note P for information
on the Company’s foreign currency forward contracts.
52
The
following table summarizes the Company’s fair value hierarchy for assets and
liabilities measured at fair value on a nonrecurring basis during the year ended
December 31, 2009 (in thousands):
|
Fair
Value Measurements Using
|
||||||||||||||||
|
Year
Ended
December
31,
2009
|
Quoted
Prices in
Active
Markets
for
Identical
Assets
(Level 1)
|
Significant
Other
Observable
Inputs
(Level 2)
|
Significant
Unobservable
Inputs
(Level
3)
|
Total
Related
Expenses
|
||||||||||||
|
Assets:
|
||||||||||||||||
|
Assets
held-for-sale
|
$
|
408
|
$
|
—
|
$
|
408
|
$
|
—
|
$
|
3,198
|
||||||
|
Liabilities:
|
||||||||||||||||
|
Facilities-related
restructuring accruals
|
$
|
11,495
|
$
|
—
|
$
|
11,495
|
$
|
—
|
$
|
11,495
|
||||||
The
Company typically uses the following valuation techniques to determine fair
values of assets and liabilities measured on a nonrecurring basis:
|
·
|
Goodwill: When
performing goodwill impairment tests, the Company estimates the fair value
of its reporting units using an income approach, which is generally a
discounted cash flow methodology that includes assumptions for, among
other things, forecasted revenues, gross profit margins, operating profit
margins, working capital cash flow, growth rates, income tax rates,
expected tax benefits and long-term discount rates, all of which require
significant judgments by management. The Company also considers comparable
market data based on multiples of revenue as well as the reconciliation of
the Company’s market capitalization to the total fair value of its
reporting units. If the estimated fair value of any reporting unit is less
that its carrying value, an impairment
exists.
|
|
·
|
Intangible
Assets: When performing an intangible asset impairment
test, the Company estimates the fair value of the asset using a discounted
cash flow methodology, which includes assumptions for, among other things,
budgets and economic projections, market trends, product development
cycles and long-term discount rates. If the estimated fair value of the
asset is less that its carrying value, an impairment
exists.
|
|
·
|
Assets
Held-for-Sale: A disposal group classified as
held-for-sale is measured at the lower of its carrying amount or fair
value less the cost to sell. The Company estimates the fair value of
assets held-for-sale at the lower of cost or the average selling price in
available markets. The assets held-for-sale are related to the Company’s
sale of the PCTV product line in
2008.
|
|
·
|
Facilities-Related
Restructuring Accruals: During the year ended December
31, 2009, the Company recorded accruals associated with exiting all or
portions of certain leased facilities. The Company estimates the fair
value of such liabilities, which are discounted to net present value at an
assumed risk-free interest rate, based on observable inputs, including the
remaining payments required under the existing lease agreements, utilities
costs based on recent invoice amounts, and potential sublease receipts
based on quoted market prices for similar sublease
arrangements.
|
Inventories
Inventories
are stated at the lower of cost (determined on a first-in, first-out or
moving-average basis) or market value. Management regularly reviews inventory
quantities on hand and writes down inventory to its realizable value to reflect
estimated obsolescence or lack of marketability based on assumptions about
future inventory demand (generally for the following twelve months) and market
conditions. Inventory in the digital-media market, including the Company’s
inventory, is subject to rapid technological change or obsolescence; therefore,
utilization of existing inventory may differ from the Company’s
estimates.
Property
and Equipment
Property
and equipment is recorded at cost and depreciated using the straight-line method
over the estimated useful life of the asset. Leasehold improvements are
amortized over the shorter of the useful life of the improvement or the
remaining term of the lease. Expenditures for maintenance and repairs are
expensed as incurred. Upon retirement or other disposition of assets, the cost
and related accumulated depreciation are eliminated from the accounts and the
resulting gain or loss is reflected in other income (expense) in the results of
operations. A significant portion of the property and equipment is subject to
rapid technological obsolescence; as a result, the depreciation and amortization
periods could ultimately be shortened to reflect changes in future
technology.
53
Acquisition-Related Intangible Assets
and Goodwill
Acquisition-related
intangible assets, which consist primarily of customer relationships, developed
technology, and trade names, resulted from the Company’s acquisitions (see Note
G). These assets were accounted for under the purchase method. Finite-lived
acquisition-related intangible assets are reported at fair value, net of
accumulated amortization. Identifiable intangible assets, with the exception of
developed technology, are amortized on a straight-line basis over their
estimated useful lives of two years to twelve years. Straight-line amortization
is used because no other pattern over which the economic benefits will be
consumed can be reliably determined. Acquired developed technology is generally
amortized on a product-by-product basis over the greater of the amount
calculated using the ratio of current quarter revenues to the total of current
quarter and anticipated future revenues over the estimated useful lives of two
years to four years, or the straight-line method over each product’s remaining
respective useful life.
Goodwill
is the amount by which the cost of acquired net assets exceeded the fair value
of those net assets on the date of acquisition. The Company assesses goodwill
for impairment on a reporting unit basis annually during the fourth quarter of
each year, or more frequently when events and circumstances occur indicating
that the recorded goodwill may be impaired. In accordance with ASC subtopic
350-20, Intangibles – Goodwill
and Others – Goodwill (formerly SFAS No. 142, Goodwill and Other Intangible
Assets), the
goodwill impairment analysis compares the fair value of each reporting unit to
its carrying value, including goodwill. The Company generally uses a discounted
cash flow valuation model, reconciled to quoted market prices adjusted for a
control premium, to determine the fair values of its reporting units. The
discounted cash flow valuation model focuses on estimates of future revenues and
profits for each reporting unit and also assumes a terminal value for the unit
using a constant growth valuation formula. These amounts are estimated by
evaluating historical trends, current budgets, operating plans and industry
data. The model also
includes assumptions for, among others, working capital cash flow, growth rates,
income tax rates, expected tax benefits and long term discount rates, all of
which require significant judgments by management. The Company also considers
the reconciliation of the Company’s market capitalization to the total fair
value of its reporting units. If a reporting unit’s carrying value
exceeds its fair value, an impairment loss equal to the difference between the
carrying value of the goodwill and its implied fair value is
recorded.
Assets
Held-for-Sale and Gain on Sales of Assets
Assets
and liabilities of a business are classified as held-for-sale when the Company
approves and commits to a formal plan of sale and it is probable that the sale
will be completed. Depreciation and amortization expense associated with assets
held-for-sale is ceased at that time.
When we
measure the gain (loss) on sale of a disposal group that is part of a reporting
unit, we determine whether a portion of the goodwill of the reporting unit
should be allocated to the disposal group if it constitutes a business, under
the guidance of ASC topic 805, Business Combinations. If the
disposal group is considered a business, the goodwill of the reporting unit is
allocated based on the relative fair values of the disposal group and the
portion of the reporting unit remaining.
Long-Lived
Assets
The
Company periodically evaluates its long-lived assets, other than goodwill, for
events and circumstances that indicate a potential impairment. A long-lived
asset is assessed for impairment when the undiscounted expected future cash
flows derived from that asset are less than its carrying value. The cash flows
used for this analysis take into consideration a number of factors including
past operating results, budgets and economic projections, market trends and
product development cycles. The amount of any impairment would be equal to the
difference between the estimated fair value of the asset, based on a discounted
cash flow analysis, and its carrying value.
54
Revenue
Recognition and Allowance for Doubtful Accounts
The
Company generally recognizes revenues from sales of software and
software-related products upon receipt of a signed purchase order or contract
and product shipment to distributors or end users, provided that collection is
reasonably assured, the fee is fixed or determinable and all other revenue
recognition criteria of ASC subtopic 985-605, Software – Revenue
Recognition (formerly Statement of Position 97-2, Software Revenue
Recognition), are met. The Company often receives multiple purchase
orders or contracts from a single customer or a group of related parties that
are evaluated to determine if they are, in effect, parts of a single
arrangement. If they are determined to parts of a single arrangement, revenues
are recorded as if a single multiple-element arrangement exists. In addition,
for certain transactions where the Company's services are non-routine or
essential to the delivered products, the Company records revenues upon
satisfying the criteria of ASC subtopic 985-605 and obtaining customer
acceptance. Within the Video segment and much of the Audio segment, the Company
follows the guidance of ASC subtopic 985-60 for revenue recognition on most of
its product and services transactions since they are software or
software-related. However, for certain offerings in the Company’s Audio segment,
software is incidental to the delivered products and services. For these
products, the Company records revenues based on satisfying the criteria in ASC
subtopic 605-25, Revenue
Recognition – Multiple Element Arrangements (formerly EITF Issue 00-21,
Revenue Arrangements with
Multiple Deliverables), and Securities and Exchange Commission (“SEC”)
Staff Accounting Bulletin (“SAB”) No. 104, Revenue
Recognition.
In
connection with many of the Company’s product sale transactions, customers may
purchase a maintenance and support agreement. The Company generally recognizes
revenues from maintenance contracts on a ratable basis over their term and from
training, installation and other services as the services are
performed.
The
Company uses the residual method to recognize revenues when an order includes
one or more elements to be delivered at a future date and evidence of the fair
value of all undelivered elements exists. Under the residual method, the fair
values of the undelivered elements, typically professional services, maintenance
or both, are deferred and the remaining portion of the total arrangement fee is
recognized as revenues related to the delivered elements. If evidence of the
fair value of one or more undelivered elements does not exist, revenues are
deferred and recognized when delivery of those elements occurs or when fair
value can be established. Fair value is typically based on the price charged
when the same element is sold separately to customers. However, for certain
transactions, fair value of maintenance is based on the renewal price that is
offered as a contractual right to the customer, provided that such renewal price
is substantive. The Company’s current pricing practices are influenced primarily
by product type, purchase volume, term and customer location. Management reviews
services revenues sold separately and corresponding renewal rates on a periodic
basis and updates, when appropriate, the fair value for services used for
revenue recognition purposes to ensure that it reflects the Company’s recent
pricing experience.
In most
cases, the products the Company sells do not require significant production,
modification or customization of software. Installation of the products is
generally routine, requires minimal effort and does not have to be performed by
the Company. However, certain transactions for the Company’s Video products,
typically those orders that include a significant number of products and may
involve multiple customer sites, require that the Company perform an
installation effort that is deemed to be non-routine and complex. In these
situations, the Company does not recognize revenues for either the products
shipped or the services performed until the installation is complete. In
addition, if such orders include a customer acceptance provision, no revenues
are recognized until the customer’s formal acceptance of the products and
services has been received or the acceptance period has lapsed.
Technical
support, enhancements and unspecified upgrades typically are provided at no
additional charge during an initial warranty period (generally between 30 days
and twelve months), which precedes commencement of any maintenance contracts.
The Company defers the fair value of this support and recognizes the related
revenues ratably over the initial warranty period. The Company also from time to
time offers certain customers free upgrades or specified future products or
enhancements. For each of these elements that are undelivered at the time of
product shipment, and provided that the Company has vendor-specific objective
evidence of fair value for the undelivered element, the Company defers the fair
value of the specified upgrade, product or enhancement and recognizes the
related revenues only upon later delivery or at the time at which the remaining
contractual terms relating to the upgrade have been satisfied.
55
A
significant portion of the Company’s revenues are derived from indirect sales
channels, including authorized resellers and distributors. Within the Company’s
Video segment, resellers and distributors are generally not granted rights to
return products to the Company after purchase, and actual product returns from
them have been insignificant to date. However, certain Video and many of our
Audio channel partners are offered limited rights of return, stock rotation and
price protection. In accordance with ASC subtopic 605-15, Revenue Recognition –
Products (formerly SFAS No. 48, Revenue Recognition When Right of
Return Exists), the Company records a provision for estimated returns and
other allowances as a reduction of revenues in the same period that related
revenues are recorded. Management estimates must be made and used in connection
with establishing and maintaining a sales allowance for expected returns and
other credits. In making such estimates, the Company analyzes historical returns
and credits and the amounts of products held by major resellers and considers
the impact of new product introductions, changes in customer demand, current
economic conditions and other known factors. The amount and timing of the
Company’s revenues for any period may be affected if actual product returns or
other reseller credits prove to be materially different from the Company’s
estimates. To date actual returns and other allowances have not differed
materially from management's estimates.
A portion
of the Company’s revenues from sales of consumer video-editing and audio
products is derived from transactions with channel partners who have unlimited
return rights and from whom payment is contingent upon the product being sold
through to their customers. Accordingly, revenues for these channel partners are
recognized when the products are sold through to the customer instead of being
recognized at the time products are shipped to the channel
partners.
The
Company from time to time offers rebates on purchases of certain products or
rebates based on purchasing volume that are accounted for as reductions to
revenues upon shipment of related products or expected achievement of purchasing
volumes. In accordance with ASC subtopic 605-50, Revenue Recognition – Customer
Payments and Incentives (formerly EITF Issue 01-09, Accounting for Consideration Given
by a Vendor to a Customer (including a Reseller of the Vendor’s
Products), consideration given to customers or resellers under a rebate
program is recorded as a reduction to revenues because the Company does not
receive an identifiable benefit that is sufficiently separable from the sale of
the Company’s products.
At the
time of a sale transaction, the Company makes an assessment of the
collectibility of the amount due from the customer. Revenues are recognized only
if it is probable that collection will occur. In making this assessment, the
Company considers customer credit-worthiness and historical payment experience.
If the Company determines from the outset of the arrangement that collection is
not probable based on the Company’s credit review process, revenues are
recognized on a cash-collected basis to the extent that the other criteria of
ASC subtopic 985-605 and SAB 104 are satisfied. At the outset of the
arrangement, the Company assesses whether the fee associated with the order is
fixed or determinable and free of contingencies or significant uncertainties. In
assessing whether the fee is fixed or determinable, the Company considers the
payment terms of the transaction, collection experience in similar transactions
without making concessions and the Company’s involvement, if any, in third-party
financing transactions, among other factors.
If the
fee is not fixed or determinable, revenues are recognized only as payments
become due from the customer, provided that all other revenue recognition
criteria are met. If a significant portion of the fee is due after the Company’s
normal payment terms, which are generally 30 days, but can be up to 90 days,
after the invoice date, the Company evaluates whether there is sufficient
history of successfully collecting past transactions with similar terms. If that
collection history is successful, then revenues are recognized upon delivery of
the products, assuming all other revenue recognition criteria are
satisfied.
The
Company maintains allowances for estimated bad debt losses resulting from the
inability of its customers to make required payments for products or services.
When evaluating the adequacy of the allowances, the Company analyzes accounts
receivable balances, historical bad debt experience, customer concentrations,
customer credit worthiness and current economic trends. To date, actual bad
debts have not differed materially from management's estimates. If the financial
condition of certain customers were to deteriorate, resulting in an impairment
of their ability to make payments, additional allowances could be
required.
The
Company records as revenues all amounts billed to customers for shipping and
handling costs and records its actual shipping costs as a component of cost of
revenues. Reimbursements received from customers for out-of-pocket expenses are
recorded as revenues, with related costs recorded as cost of revenues. The
Company presents revenues net of any taxes collected from
customers and remitted to a government authority.
56
In
October 2009, the FASB issued Accounting Standards Update No. 2009-13, Multiple-Deliverable Revenue
Arrangements, an amendment to ASC topic 605, Revenue Recognition, and
Accounting Standards Update No. 2009-14, Certain Revenue Arrangements That
Include Software Elements, an amendment to ASC subtopic 985-605, Software – Revenue
Recognition (the “Updates”). The Updates provide guidance on arrangements
that include software elements, including tangible products that have software
components that are essential to the functionality of the tangible product and
will no longer be within the scope of the software revenue recognition guidance,
and software-enabled products that will now be subject to other relevant revenue
recognition guidance. The Updates also provide authoritative guidance on revenue
arrangements with multiple deliverables that are outside the scope of the
software revenue recognition guidance. Under the new guidance, when
vendor-specific objective evidence or third-party evidence of fair value for
deliverables in an arrangement cannot be determined, a best estimate of the
selling price is required to separate deliverables and allocate arrangement
consideration using the relative selling price method. The Updates also include
new disclosure requirements on how the application of the relative selling price
method affects the timing and amount of revenue recognition. The Updates must be
adopted in the same period using the same transition method and are effective
prospectively, with retrospective adoption permitted, for revenue arrangements
entered into or materially modified in fiscal years beginning on or after June
15, 2010, or January 1, 2011 for Avid. Early adoption is also permitted;
however, early adoption during an interim period requires retrospective
application from the beginning of the fiscal year. The Company is currently
assessing the timing and method of adoption, as well as the possible impact of
this guidance on its financial position and results of operations.
Advertising
Expenses
All
advertising costs are expensed as incurred and are classified as marketing and
selling expenses. Advertising expenses during 2009, 2008 and 2007 were $6.3
million, $10.0 million and $10.7 million, respectively.
As part
of its advertising initiatives, the Company maintains a cooperative marketing
program for certain of its resellers. Participating resellers can earn
reimbursement credits of up to 1% of qualified purchases from Avid.
Consideration given to these resellers is included in marketing and selling
expenses in accordance with ASC subtopic 605-50 as the Company receives an
identifiable benefit that is sufficiently separable from the sale of the
Company’s products and can reasonably estimate the fair value of that benefit.
The Company records the cooperative marketing credit earned by the reseller at
the date the related revenue is recognized based on an estimate of claims to be
made. To date, actual claims have not differed materially from management’s
estimates.
Research
and Development Costs
Research
and development (“R&D”) costs are expensed as incurred, except for costs of
internally developed or externally purchased software that qualify for
capitalization. Development costs for software to be sold that are incurred
subsequent to the establishment of technological feasibility, but prior to the
general release of the product, are capitalized in accordance with ASC subtopic
985-20, Software – Costs of
Software to be Sold, Leased or Marketed (formerly FAS No. 86,
Accounting
for the Costs of Computer Software to Be Sold, Leased, or Otherwise
Marketed).
Upon general release, these costs are amortized using the straight-line method
over the expected life of the related products, generally 12 to 36 months. The
straight-line method generally results in approximately the same amount
of expense as that calculated using the ratio that current period gross product
revenues bear to total anticipated gross product revenues. Capitalized software
development costs amortized to cost of product revenues were $1.4 million, $1.6
million and $1.5 million, respectively, for the years ended December 31, 2009,
2008 and 2007. The Company evaluates the net realizable value of capitalized
software at each balance sheet date, considering a number of business and
economic factors. Unamortized capitalized software development costs were $1.5
million and $1.2 million at December 31, 2009 and 2008,
respectively.
Income
Taxes
The
Company accounts for income taxes under ASC topic 740, Income Taxes, (formerly SFAS
No. 109, Accounting for Income
Taxes). ASC topic 740 defines an asset and liability approach that
requires the recognition of deferred tax assets and liabilities for the expected
future tax consequences of events that have been recognized in the Company’s
financial statements or tax returns. ASC topic 740 further requires that a tax
position must be more likely than not to be sustained before being recognized in
the financial statements, as well as the accrual of interest and
penalties as applicable on unrecognized tax positions.
57
Computation
of Net Income (Loss) Per Common Share
Net
income (loss) per common share is presented for both basic earnings per share
(“Basic EPS”) and diluted earnings per share (“Diluted EPS”). Basic EPS is based
on the weighted-average number of common shares outstanding during the period,
excluding non-vested restricted stock held by employees. Diluted EPS is based on
the weighted-average number of common and potential common shares outstanding
during the period. Potential common shares result from the assumed exercise of
outstanding stock options and warrants as well as non-vested restricted stock
and restricted stock units, the proceeds and remaining unrecorded compensation
expense of which are then assumed to have been used to repurchase outstanding
common stock using the treasury stock method. For periods when the
Company reports a loss, all potential common stock is considered anti-dilutive.
For periods when the Company reports net income, potential common shares with
combined purchase prices and unamortized compensation cost in excess of the
Company’s average common stock fair value for the related period or that are
contingently issuable are considered anti-dilutive. The contingently
issuable potential common shares result from certain stock options and
restricted stock units granted to the Company’s executive officers that vest
based on performance and market conditions (see Note Q).
Comprehensive
Income (Loss)
Comprehensive
income (loss) consists of net income (loss) and other comprehensive income
(loss), which includes foreign currency translation adjustments and unrealized
gains and losses on certain investments. For the purposes of comprehensive
income disclosures, the Company does not record tax provisions or benefits for
the net changes in the foreign currency translation adjustment, as the Company
intends to permanently reinvest undistributed earnings in its foreign
subsidiaries. Accumulated other comprehensive income at December 31, 2009 and
2008 is composed of cumulative translation adjustments of $7.6 million and $2.3
million, respectively, and net unrealized losses on debt securities of ($0.4)
million and ($0.4) million, respectively.
Accounting
for Stock-Based Compensation
The
Company’s stock-based employee compensation plans, which are described more
fully in Note L, allow the Company to grant stock awards, options, or other
equity-based instruments, or a combination thereof, as part of its overall
compensation strategy. For stock-based awards granted, the Company records
stock-based compensation cost based on the fair value estimated in accordance
with ASC topic 718, Compensation – Stock
Compensation (formerly SFAS No. 123 (revised 2004), Share-Based Payment), over the requisite
service periods for the individual awards, which generally equals the vesting
period. The vesting of stock-based award grants may be based on time,
performance, market conditions or a combination of performance and market
conditions.
The fair
values of restricted stock awards with time-based vesting, including restricted
stock and restricted stock units, are generally based on the intrinsic values of
the awards at the date of grant. As permitted under ASC topic 718, the Company
generally uses the Black-Scholes option pricing model to estimate the fair value
of stock option grants with time-based vesting. The Black-Scholes model relies
on a number of key assumptions to calculate estimated fair values. The assumed
dividend yield of zero is based on the fact that the Company has never paid cash
dividends and has no present intention to pay cash dividends. The expected
stock-price volatility assumption is based on recent (six-month trailing)
implied volatility calculations. These calculations are performed on exchange
traded options of the Company’s common stock, based on the implied volatility of
long-term (9- to 39-month term) exchange-traded options, which is consistent
with the requirements of ASC topic 718. The
Company believes that using a forward-looking market-driven volatility
assumption will result in the best estimate of expected volatility. The assumed
risk-free interest rate is the U.S. Treasury security rate with a term equal to
the expected life of the option. The assumed expected life is based on
company-specific historical experience. With regard to the estimate of the
expected life, the Company considers the exercise behavior of past grants and
models the pattern of aggregate exercises.
The
following table sets forth the weighted-average key assumptions and fair value
results for stock options with time-based vesting granted during the years ended
December 31, 2009, 2008 and 2007:
|
2009
|
2008
|
2007
|
|||
|
Expected
dividend yield
|
0.00%
|
0.00%
|
0.00%
|
||
|
Risk-free
interest rate
|
1.94%
|
2.49%
|
4.48%
|
||
|
Expected
volatility
|
55.6%
|
41.0%
|
32.8%
|
||
|
Expected
life (in years)
|
4.58
|
4.47
|
4.26
|
||
|
Weighted-average
fair value of options granted (per share)
|
$6.12
|
$7.95
|
$10.76
|
58
In
December 2007, the Company began issuing options to purchase shares of Avid
common stock that had vesting based on market conditions, specifically Avid’s
stock price, or a combination of performance and market conditions. The
compensation costs and derived service periods for stock option grants with
vesting based on market conditions or a combination of performance and market
conditions are estimated using the Monte Carlo valuation method. For stock
option grants with vesting based on a combination of performance and market
conditions, the compensation costs are also estimated using the Black-Scholes
valuation method factored for the estimated probability of achieving the
performance goals, and compensation costs for these grants are recorded based on
the higher estimate for each vesting tranche. At December 31, 2009, the Company
had 1,668,760 options outstanding that had vesting based on either market
conditions or a combination of performance and market conditions.
The
following table sets forth the weighted-average key assumptions and fair value
results for stock options with vesting based on market conditions or a
combination of performance and market conditions granted during the years ended
December 31, 2009, 2008 and 2007:
|
2009
|
2008
|
2007
|
|||
|
Expected
dividend yield
|
0.00%
|
0.00%
|
0.00%
|
||
|
Risk-free
interest rate
|
3.25%
|
3.53%
|
3.93%
|
||
|
Expected
volatility
|
54.3%
|
40.3%
|
32.8%
|
||
|
Expected
life (in years)
|
3.79
|
4.33
|
4.44
|
||
|
Weighted-average
fair value of options granted (per share)
|
$5.41
|
$6.44
|
$6.60
|
The
Company estimates forfeiture rates at the time awards are made based on
historical and estimated future turnover rates and applies these rates in the
calculation of estimated compensation cost. The estimation of forfeiture rates
includes a quarterly review of historical turnover rates and an update of the
estimated forfeiture rates to be applied to employee classes for the calculation
of stock-based compensation. During 2009, forfeiture rates for the calculation
of stock-based compensation were estimated and applied based on three classes,
non-employee directors, executive management staff and other employees. At
December 31, 2009, the Company’s annualized estimated forfeiture rates were 0%
for non-employee director awards and 10% for both executive management staff and
other employee awards. Then-current estimated forfeiture rates are also applied
quarterly to all outstanding stock options and non-vested restricted stock
awards, which may result in a revised estimate of compensation costs related to
these stock-based grants.
If
factors change and the Company employs different assumptions for estimating
stock-based compensation expense in future periods, or if the Company decides to
use a different valuation model, the stock-based compensation expense recognized
in future periods may differ significantly from what has been recorded in the
current period and could materially affect the Company’s operating income, net
income and earnings per share. It may also result in a lack of comparability
with other companies that use different models, methods and assumptions. The
Black-Scholes option-pricing model was developed for use in estimating the fair
value of traded options that have no vesting restrictions and are fully
transferable. These characteristics are not present in the Company’s option
grants.
Stock-based
compensation expense of $13.4 million, $14.2 million and $15.9 million, was
included in the following captions in the Company’s consolidated statements of
operations for the years ended December 31, 2009, 2008 and 2007, respectively
(in thousands):
|
2009
|
2008
|
2007
|
||||||||
|
Cost
of products revenues
|
$
|
859
|
$
|
616
|
$
|
679
|
||||
|
Cost
of services revenues
|
1,154
|
539
|
829
|
|||||||
|
Research
and development expenses
|
2,454
|
2,820
|
4,521
|
|||||||
|
Marketing
and selling expenses
|
3,596
|
4,005
|
4,470
|
|||||||
|
General
and administrative expenses
|
5,331
|
6,221
|
5,450
|
|||||||
|
$
|
13,394
|
$
|
14,201
|
$
|
15,949
|
|||||
At December 31, 2009,
there was $26.6 million of total unrecognized compensation cost, before
forfeitures, related to non-vested stock-based compensation awards
granted under the Company’s stock-based compensation plans. The Company expects
this amount to be amortized as follows: $12.6 million in 2010,
$9.2 million in 2011, $3.9 million in 2012 and $0.9 million in 2013. The
weighted-average recognition period of the total unrecognized compensation cost
is 1.34 years.
59
Recent
Accounting Pronouncements
In
October 2009, the FASB issued Accounting Standards Update No. 2009-13, Multiple-Deliverable Revenue
Arrangements, an amendment to ASC topic 605, Revenue Recognition, and
Accounting Standards Update No. 2009-14, Certain Revenue Arrangements That
Include Software Elements, an amendment to ASC subtopic 985-605, Software – Revenue
Recognition. See the section titled “Revenue Recognition and Allowance
for Doubtful Accounts” in this note for a further discussion of this
guidance.
In June
2009, the FASB issued SFAS No. 167, Amendments to FASB Interpretation
No. 46(R) (now codified within ASC topic 810, Consolidation). This guidance
requires an enterprise to perform an analysis to determine whether the
enterprise’s variable interest or interests give it a controlling financial
interest in a variable interest entity. This analysis identifies the primary
beneficiary of a variable interest entity as one with the power to direct the
activities of a variable interest entity that most significantly impact the
entity’s economic performance and the obligation to absorb losses of the entity
that could potentially be significant to the variable interest. The guidance is
effective as of the beginning of the annual reporting period commencing after
November 15, 2009, or January 1, 2010 for Avid, with early adoption
prohibited. Adoption is not expected to have a significant impact on the
Company’s financial position or results of operations.
|
C.
|
CASH,
CASH EQUIVALENTS AND MARKETABLE
SECURITIES
|
Cash
and Cash Equivalents
The costs
(amortized costs of debt instruments) and fair values of the Company’s available
for sale securities classified as cash equivalents at December 31, 2009 were as
follows (in thousands):
|
Costs
|
Net
Unrealized Gains (Losses)
|
Fair
Values
|
||||||||||
|
Money
market
|
$
|
10,977
|
$
|
—
|
$
|
10,977
|
||||||
|
Certificates
of deposit
|
750
|
—
|
750
|
|||||||||
|
Commercial
paper
|
1,500
|
(1
|
)
|
1,499
|
||||||||
|
$
|
13,227
|
$
|
(1
|
)
|
$
|
13,226
|
||||||
Marketable
Securities
The costs
(amortized cost of debt instruments) and fair values of marketable securities at
December 31, 2009 and 2008 were as follows (in thousands):
|
Costs
|
Net
Unrealized Gains (Losses)
|
Fair
Values
|
||||||||||
|
2009
|
||||||||||||
|
Certificates
of deposit
|
$
|
3,400
|
$
|
1
|
$
|
3,401
|
||||||
|
Commercial
paper
|
1,000
|
(1
|
)
|
999
|
||||||||
|
Municipal
bonds
|
7,465
|
1
|
7,466
|
|||||||||
|
Corporate
bonds
|
1,256
|
3
|
1,259
|
|||||||||
|
Foreign
bonds
|
2,477
|
—
|
2,477
|
|||||||||
|
Asset-backed
securities
|
6
|
—
|
6
|
|||||||||
|
Agency
bonds
|
1,001
|
1
|
1,002
|
|||||||||
|
Agency
discount notes
|
750
|
—
|
750
|
|||||||||
|
$
|
17,355
|
$
|
5
|
$
|
17,360
|
|||||||
60
|
Cost
|
Net
Unrealized Gains (Losses)
|
Fair
Value
|
||||||||||
|
2008
|
||||||||||||
|
Certificates
of deposit
|
$
|
6,255
|
$
|
8
|
$
|
6,263
|
||||||
|
Commercial
paper
|
13,474
|
14
|
13,488
|
|||||||||
|
Asset-backed
securities
|
2,224
|
(73
|
)
|
2,151
|
||||||||
|
Agency
bonds
|
1,000
|
—
|
1,000
|
|||||||||
|
Agency
discount notes
|
2,994
|
6
|
3,000
|
|||||||||
|
$
|
25,947
|
$
|
(45
|
)
|
$
|
25,902
|
||||||
All fixed
income securities held at December 31, 2009 and 2008 had an effective maturity
of less than one year. All income generated from these investments has been
recorded as interest income.
The
Company calculates realized gains and losses on a specific identification basis.
Realized gains and losses from the sale of marketable securities were not
material for the years ended December 31, 2009, 2008 and 2007.
At
December 31, 2009, there were no securities whose unrealized losses
were deemed by the Company to be
other-than-temporary impairments. The primary factors the Company considers in
classifying an impairment as temporary or other-than-temporary include the
extent and the time the fair value of an investment has been below cost, the
expected holding and recovery period for each investment, and the Company’s
intent and ability to hold each investment until recovery.
|
D.
|
ACCOUNTS
RECEIVABLE
|
Accounts
receivable, net of allowances, consisted of the following at December 31, 2009
and 2008 (in thousands):
|
2009
|
2008
|
||||||||
|
Accounts
receivable
|
$
|
96,088
|
$
|
126,709
|
|||||
|
Less:
|
|||||||||
|
Allowance
for doubtful accounts
|
(3,219
|
)
|
(3,504
|
)
|
|||||
|
Allowance
for sales returns and rebates
|
(13,128
|
)
|
(19,678
|
)
|
|||||
|
$
|
79,741
|
$
|
103,527
|
The accounts receivable
balances at December 31, 2009 and 2008, exclude approximately $17.3 million and
$8.4 million, respectively, for large solution sales and certain
distributor sales that were invoiced, but for which revenues had not been
recognized and payments were not then due.
|
E.
|
INVENTORIES
|
Inventories
consisted of the following at December 31, 2009 and 2008 (in
thousands):
|
2009
|
2008
|
||||||||
|
Raw
materials
|
$
|
14,592
|
$
|
22,067
|
|||||
|
Work
in process
|
5,624
|
9,296
|
|||||||
|
Finished
goods
|
57,027
|
64,392
|
|||||||
|
$
|
77,243
|
$
|
95,755
|
||||||
At December 31, 2009 and
2008, the finished goods inventory included inventory at customer
locations of $10.6
million and $18.1 million, respectively, associated with products shipped
to customers for which revenues had not yet been recognized.
61
|
F.
|
PROPERTY
AND EQUIPMENT
|
Property
and equipment consisted of the following at December 31, 2009 and 2008 (in
thousands):
|
Depreciable
Life
|
2009
|
2008
|
||||||||
|
Computer
and video equipment and software
|
2
to 5 years
|
$
|
115,248
|
$
|
102,457
|
|||||
|
Manufacturing
tooling and testbeds
|
3
to 5 years
|
6,428
|
6,601
|
|||||||
|
Office
equipment
|
3
to 5 years
|
3,404
|
3,172
|
|||||||
|
Furniture
and fixtures
|
3
to 5 years
|
10,378
|
10,714
|
|||||||
|
Leasehold
improvements
|
1
to 10 years
|
31,777
|
30,655
|
|||||||
|
167,235
|
153,599
|
|||||||||
|
Less
accumulated depreciation and amortization
|
130,018
|
115,278
|
||||||||
|
$
|
37,217
|
$
|
38,321
|
|||||||
Depreciation
and amortization expense related to property and equipment was $18.2 million,
$20.9 million and $21.1 million for the years ended December 31, 2009, 2008 and
2007, respectively. The Company wrote off fully depreciated assets with gross
values of $2.2 million, $27.6 million and $19.4 million in 2009, 2008 and 2007,
respectively.
|
G.
|
DIVESTITURES,
ACQUISITIONS, GOODWILL AND INTANGIBLE
ASSETS
|
Divestitures
In
November 2008, the Company sold its Softimage 3D animation product line, which
was part of its former Professional Video segment, to Autodesk, Inc. The Company
received $26.5 million of the $33.5 million dollar purchase price in the fourth
quarter of 2008, with the remaining balance to be held in escrow with scheduled
distribution dates in 2009 and 2010. Goodwill of $15.8 million and amortizing
intangible assets of $0.2 million were included in the assets sold as part of
this divestiture. In 2008, the Company recognized a gain of approximately $11.5
million as a result of this transaction, which does not include the proceeds
held in escrow. In 2009, the Company recorded a further gain of $3.5 million as
a result of the release of funds from the escrow holdings. Under the terms of
the purchase agreement, the remaining escrow holdings of $3.5 million, subject
to possible adjustment, will remain in escrow until the fourth quarter of
2010.
In accordance with the
guidance of EITF Issue 98-3, Determining Whether a Nonmonetary
Transaction Involves Receipt of Productive Assets or of a Business (now
ASC topic 805, Business
Combinations), the Company determined that the Softimage 3D animation
product line constituted a business, and, therefore, the gain on sale of this
business included an allocation of $15.8 million of goodwill from the former
Professional Video reporting unit. Even though the Softimage 3D animation
product line constituted a business, the Company determined that this business
did not represent a component of the Company that would require the presentation
of the divestiture as a discontinued operation. This decision was based on the
fact that the
Softimage 3D animation product line did not have operations or cash flows that
were clearly distinguishable and largely independent from the rest of the
Professional Video reporting unit.
In
December 2008, the Company sold its PCTV product line, which was part of its
former Consumer Video segment, to Hauppauge Digital, Inc. for total proceeds of
approximately $4.7 million comprised of $2.2 million in cash and a note valued
at $2.5 million. The note was fully paid in 2009. Amortizing intangible assets
with a value of $1.6 million were included in the assets sold as part of this
divestiture. In 2008, the Company recognized a gain of approximately $1.8
million as a result of this transaction. In accordance with the guidance of
EITF Issue 98-3 (now
ASC topic 805 ),
the Company determined that the divested PCTV product line assets would not be
able to continue as a normal, self-sustaining operation and, therefore, did not
constitute a business and also should not be reported as a discontinued
operation.
At the
time of the divestiture, PCTV inventory valued at $7.5 million was classified as
held-for-sale by the Company in accordance with SFAS No. 144, Accounting
for the Impairment or Disposal of Long-Lived Assets (now ASC section
360-10-45, Property,
Plant and Equipment – Overall – Other Presentation Matters), and included in
“other current assets” in the Company’s consolidated balance sheet at December
31, 2008. As a condition of the sale, the buyer was required to reimburse the
Company for any PCTV inventory sold by the buyer. During 2009, the Company
recorded a loss on the sale of assets of $3.2 million related to the Company’s
sale of the PCTV product line as a result of the write-down of PCTV inventory
classified as held-for-sale. At December 31, 2009, the Company had inventory
classified as held-for-sale of $0.4 million that was included in “other current
assets” in the Company’s consolidated balance sheets.
62
Acquisitions
On
January 1, 2009, the Company adopted ASC topic 805, Business Combinations
(formerly SFAS No. 141 (revised 2007), Business Combinations), which
made significant changes to the accounting and reporting standards for business
acquisitions. ASC topic 805 establishes principles and requirements for an
acquirer’s financial statement recognition and measurement of the assets
acquired; the liabilities assumed, including those arising from contractual
contingencies; any contingent consideration; and any noncontrolling interest in
the acquiree at the acquisition date. It also requires the acquirer to recognize
direct acquisition costs as an expense in the statement of operations and to
recognize changes in the amount of its deferred tax benefits that are
recognizable as a result of a business combination either in income from
continuing operations in the period of the combination or directly in
contributed capital, depending on the circumstances. Additionally, ASC topic 805
provides guidance for, among other things, the impairment testing of acquired
research and development intangible assets and assets that the acquirer intends
not to use. The Company applied the accounting provisions of ASC topic 805 to
acquisitions completed during 2009, and the impact of adoption of ASC topic 805
is reflected in the Company’s consolidated financial statements as of and for
the year ended December 31, 2009.
On July
31, 2009, the Company acquired all the outstanding shares of MaxT Systems Inc.
(“MaxT”), a Canada-based developer of server-based media management and editing
technology, for cash, net of cash acquired, of $4.4 million. The Company’s allocation of the purchase
price resulted in $3.3 million allocated to amortizable identifiable
intangible assets and the remaining $1.1 million to goodwill. In addition, the
Company recorded related net deferred tax liabilities of $0.8 million,
increasing the goodwill to $1.9 million. The goodwill, which reflects the value
of the assembled workforce and the synergies the Company expects to realize by
incorporating MaxT’s media management and editing technology into future solutions offered to
customers, is reported within the Video segment and is not deductible for
tax purposes.
The
amortizable identifiable intangible assets acquired include developed technology
of $2.3 million, customer relationships of $0.5 million, a patent of $0.3
million, non-compete agreements of $0.1 million and trade names of $0.1 million.
The Company used the income approach to determine the values of the identifiable
intangible assets. The income approach presumes that the value of an asset can
be estimated by the net economic benefit to be received over the life of the
asset discounted to present value. The weighted-average discount rate (or rate
of return) used to determine the value of MaxT’s intangible assets was
22% and the effective tax rate used was 35%.
The
values of the customer relationships and trade names are both being amortized on
a straight-line basis over their estimated useful lives of one-half year, and
the non-compete agreements and patent are being amortized over their estimated
useful lives of one year and four and one-half years, respectively. The value of
the developed technology is being amortized over the greater of the amount
calculated using the ratio of current quarter revenues to the total of current
quarter and anticipated future revenues, and the straight-line method, over the
estimated useful life of four and one-half years. The weighted-average
amortization period for the amortizable identifiable intangible assets is
approximately three and one-half years. Amortization expense for MaxT
intangibles totaled $0.9 million in 2009.
The
results of operations of MaxT have been included in the results of operations of
the Company since the date of acquisition. The Company’s results of operations
giving effect to the MaxT acquisition as if it had occurred at the beginning of
2008 would not differ materially from reported results.
Goodwill
Goodwill
resulting from the Company’s acquisitions consisted of the following at December
31, 2009, 2008 and 2007 (in thousands):
|
2009
|
2008
|
2007
|
||||||||||||||||||||||||||||||||||
|
Video
|
Audio
|
Total
|
Video
|
Audio
|
Total
|
Video
|
Audio
|
Total
|
||||||||||||||||||||||||||||
|
Goodwill
|
$
|
257,890
|
$
|
141,205
|
$
|
399,095
|
$
|
256,070
|
$
|
141,205
|
$
|
397,275
|
$
|
272,168
|
$
|
141,416
|
$
|
413,584
|
||||||||||||||||||
|
Accumulated
impairment losses
|
(107,600
|
)
|
(64,300
|
)
|
(171,900
|
)
|
(107,600
|
)
|
(64,300
|
)
|
(171,900
|
)
|
(53,000
|
)
|
—
|
(53,000
|
)
|
|||||||||||||||||||
|
$
|
150,290
|
$
|
76,905
|
$
|
227,195
|
$
|
148,470
|
$
|
76,905
|
$
|
225,375
|
$
|
219,168
|
$
|
141,416
|
$
|
360,584
|
|||||||||||||||||||
63
Changes
in the carrying amount of the Company’s goodwill consisted of the following (in
thousands):
|
Video
|
Audio
|
Total
|
||||||||||
|
Goodwill
balance at December 31, 2007
|
$
|
219,168
|
$
|
141,416
|
$
|
360,584
|
||||||
|
Goodwill
impairment
|
(54,600
|
)
|
(64,300
|
)
|
(118,900
|
)
|
||||||
|
Allocated
to Softimage 3D animation product line divestiture
|
(15,780
|
)
|
—
|
(15,780
|
)
|
|||||||
|
Revised
restructuring estimates
|
(131
|
)
|
(211
|
)
|
(342
|
)
|
||||||
|
Tax
liability adjustments, net
|
(187
|
)
|
—
|
(187
|
)
|
|||||||
|
Goodwill
balance at December 31, 2008
|
148,470
|
76,905
|
225,375
|
|||||||||
|
MaxT
acquisition purchase accounting allocation
|
1,919
|
—
|
1,919
|
|||||||||
|
Foreign
exchange and other adjustments
|
(99
|
)
|
—
|
(99
|
)
|
|||||||
|
Goodwill
balance at December 31, 2009
|
$
|
150,290
|
$
|
76,905
|
$
|
227,195
|
As described in Note B,
the Company performs its annual goodwill impairment analysis in the
fourth quarter of each year. In accordance with ASC subtopic 350-20,
Intangibles
– Goodwill and Others – Goodwill (formerly SFAS No.
142,
Goodwill and Other Intangible Assets),
a two step process is used to test for goodwill impairment. The first step
determines if there is an indication of impairment by comparing the estimated
fair value of each reporting unit to its carrying value including existing
goodwill. Goodwill is considered impaired if the carrying value of a reporting
unit exceeds the estimated fair value. Upon an indication of impairment from the
first step, a second step is performed to determine the amount of the
impairment. To estimate the fair value of the reporting units for step one, the
Company utilized a combination of income and market approaches. The income
approach, specifically a discounted cash flow methodology, included assumptions
for, among others, forecasted revenues, gross profit margins, operating profit
margins, working capital cash flow, growth rates, income tax rates, expected tax
benefits and long term discount rates, all of which require significant
judgments by management. The market approach also considers the reconciliation
of the Company’s market capitalization to the total fair value of its reporting
units. The Company’s annual goodwill analysis performed in the fourth quarter of
2009 determined that the fair values of our Video and Audio reporting units
exceeded their carrying values by 28% and 21%, respectively, indicating there
was no goodwill impairment for either reporting unit at December 31, 2009.
Goodwill is also tested
for impairment when events and circumstances occur that indicate that the
recorded goodwill may be impaired. At March 31, 2009 as a result of a
decline in the Company’s stock price since its fourth quarter 2008 goodwill
impairment testing, lower than expected first quarter 2009 revenues, and a
reduction in forecasted 2009 results, the Company performed an interim step one
goodwill impairment test. The step one test indicated that no goodwill
impairment existed at March 31, 2009.
In the
fourth quarter of 2008, due to the significant decline in the Company’s stock
price, increased uncertainty of future revenue levels due to unfavorable
macroeconomic conditions and the divestiture of the PCTV product line, the
Company’s step one testing determined that the carrying
values of the
Audio and former Consumer Video reporting
units
exceeded their fair values,
indicating possible goodwill impairments for these reporting units. No impairment was
indicated for the former Professional Video reporting unit. As required, the
Company initiated step two of the goodwill impairment test for the Audio and
Consumer Video reporting units. The fair values of these
reporting units were then allocated among their respective tangible and
intangible assets and liabilities to determine the implied fair value of each
reporting unit’s goodwill. The fair values of the intangible assets were
estimated using various valuation models based on different approaches,
including the multi-period excess cash flows approach, royalty savings approach
and avoided-cost approach. These approaches include assumptions for, among
others, customer retention rates, trademark royalty rates, costs to complete
in-process technology and long-term discount rates, all of which require
significant judgments by management. Because the book values of the Audio
and Consumer Video reporting units’ goodwill exceeded the implied fair values by
approximately $64.3 million and $8.0 million, respectively, the Company recorded
these amounts as impairment losses during the quarter ended December 31,
2008.
In
September 2008, as a result of a decrease in market value for, and the expected
sale of, the Company’s PCTV product line, which had historically accounted for a
significant portion of the former Consumer Video segment revenues, the Company
tested the goodwill assigned to its Consumer Video reporting unit for
impairment. An estimate of the fair value of the Consumer Video reporting unit
was calculated using a discounted cash flow valuation model similar to that used
in valuing the 2005 acquisition of Pinnacle and updated for then-current revenue
projections. The fair value was then allocated among the Consumer Video tangible
and intangible assets and liabilities to determine the implied fair value of the
goodwill. Because the book value of the Consumer Video goodwill exceeded the
implied fair value by $46.6 million, the Company recorded this amount as an
impairment loss during the quarter ended September 30, 2008.
64
Amortizing
Identifiable Intangible Assets
Amortizing
identifiable intangible assets related to the Company’s acquisitions consisted
of the following at December 31, 2009 and 2008 (in thousands):
|
2009
|
2008
|
||||||||||||||||||||||||||||
|
Gross
|
Accumulated
Amortization
|
Net
|
Gross
|
Accumulated
Amortization
|
Net
|
||||||||||||||||||||||||
|
Completed
technologies and patents (a)
|
$
|
68,186
|
$
|
(64,609)
|
$
|
3,577
|
$
|
65,357
|
$
|
(62,003)
|
$
|
3,354
|
|||||||||||||||||
|
Customer
relationships (a)
|
63,653
|
(40,221)
|
23,432
|
63,072
|
(32,964)
|
30,108
|
|||||||||||||||||||||||
|
Trade
names (a)
|
13,800
|
(11,668)
|
2,132
|
13,714
|
(9,102)
|
4,612
|
|||||||||||||||||||||||
|
License
agreements
|
560
|
(560)
|
—
|
560
|
(491)
|
69
|
|||||||||||||||||||||||
|
Non-compete
covenants (a)
|
162
|
(68)
|
94
|
—
|
—
|
—
|
|||||||||||||||||||||||
|
$
|
146,361
|
$
|
(117,126)
|
$
|
29,235
|
$
|
142,703
|
$
|
(104,560)
|
$
|
38,143
|
||||||||||||||||||
|
(a)
|
The
December 31, 2009 amounts include the intangible assets related to the
July 2009 acquisition of MaxT translated at the December 31, 2009 foreign
currency exchange rate. See the “Acquisition” section in this note for
further information regarding the identifiable intangible assets acquired
from MaxT.
|
Amortization
expense related to all intangible assets in the aggregate was $12.5 million,
$20.4 million and $30.6 million, respectively, for the years ended December 31,
2009, 2008 and 2007. The Company expects amortization of these intangible assets
to be approximately $9 million in 2010, $7 million in 2011, $4 million in 2012,
$3 million in 2013, $2 million in 2014, and $4 million thereafter.
In
connection with the goodwill impairment loss taken for the Audio and former
Consumer Video reporting units in the fourth quarter of 2008, the Company
reviewed the Audio and Consumer Video identifiable intangible assets for
possible impairment in accordance with SFAS No. 144, Accounting for the Impairment or
Disposal of Long-Lived Assets (now ASC section 360-10-35, Property, Plant and Equipment –
Overall – Subsequent Measurement). This analysis included grouping the
intangible assets with other operating assets and liabilities in the Consumer
Video reporting unit that would not otherwise be subject to impairment testing
because the grouped assets and liabilities represent the lowest level for which
cash flows are largely independent of the cash flows of other groups of assets
and liabilities within the Company. The Audio analysis determined that the
undiscounted cash flows of the long-lived assets were greater than their
carrying value, indicating no impairment existed. The Consumer Video analysis
determined that the undiscounted cash flows of that reporting unit’s net asset
groups were less than the carrying value, indicating that a possible impairment
loss had occurred. The current fair values of the identifiable intangible assets
were then determined using the income approach based on revised cash flows
discounted to present value. As a result of this analysis, it was determined
that the Consumer Video customer relationships and trade name intangible assets
were impaired, and the Company recorded impairment losses of $5.6 million and
$0.8 million, respectively.
In
September 2008, as a result of a decrease in market value for, and the then
expected sale of, the Company’s PCTV product line, the Company tested the former
Consumer Video reporting unit’s identifiable intangible assets for impairment.
The Company’s analysis determined that the undiscounted cash flows of the
Consumer Video net asset groups were less than the carrying value, indicating
that a possible impairment loss had occurred. The current fair values of the
identifiable intangible assets were then determined using the income approach
based on revised cash flows discounted to present value. As a result, the
Company determined that the trade name intangible asset was impaired and
recorded an impairment loss of $4.7 million to write this asset down to its
current fair value.
65
|
H.
|
INCOME
TAXES
|
Income
(loss) before income taxes and the components of the income tax provision
(benefit) consisted of the following for the years ended December 31, 2009, 2008
and 2007 (in thousands):
|
2009
|
2008
|
2007
|
||||||||||||
|
Loss
before income taxes:
|
||||||||||||||
|
United
States
|
$
|
(91,090
|
)
|
$
|
(204,796
|
)
|
$
|
(23,324
|
)
|
|||||
|
Foreign
|
21,083
|
9,282
|
18,342
|
|||||||||||
|
Total
loss before income taxes
|
$
|
(70,007
|
)
|
$
|
(195,514
|
)
|
$
|
(4,982
|
)
|
|||||
|
(Benefit
from) provision for income taxes:
|
||||||||||||||
|
Current
tax expense (benefit):
|
||||||||||||||
|
Federal
|
$
|
(1,490
|
)
|
$
|
(404
|
)
|
$
|
(2,779
|
)
|
|||||
|
State
|
89
|
250
|
250
|
|||||||||||
|
Foreign
benefit of net operating losses
|
(636
|
)
|
(1,777
|
)
|
(1,270
|
)
|
||||||||
|
Other
foreign
|
1,940
|
8,835
|
10,099
|
|||||||||||
|
Total
current tax (benefit) expense
|
(97
|
)
|
6,904
|
6,300
|
||||||||||
|
Deferred
tax expense (benefit):
|
||||||||||||||
|
Federal
|
(7
|
)
|
(1,058
|
)
|
318
|
|||||||||
|
Other
foreign
|
(1,548
|
)
|
(3,183
|
)
|
(3,621
|
)
|
||||||||
|
Total
deferred tax expense benefit
|
(1,555
|
)
|
(4,241
|
)
|
(3,303
|
)
|
||||||||
|
Total
(benefit from) provision for income taxes
|
$
|
(1,652
|
)
|
$
|
2,663
|
$
|
2,997
|
Net cash
payments for income taxes in 2009, 2008 and 2007 were approximately $4.3
million, $5.5 million, and $6.0 million, respectively.
The
cumulative amount of undistributed earnings of foreign subsidiaries, which is
intended to be permanently reinvested and for which U.S. income taxes have not
been provided, totaled approximately $117.6 million at December 31, 2009. It is
not practical to estimate the amount of additional taxes that might be payable
upon repatriation of foreign earnings.
Net
deferred tax assets (liabilities) consisted of the following at December 31,
2009 and 2008 (in thousands):
|
2009
|
2008
|
||||||||
|
Deferred
tax assets:
|
|||||||||
|
Tax
credit and net operating loss carryforwards
|
$
|
119,098
|
$
|
98,376
|
|||||
|
Allowances
for bad debts
|
1,807
|
|
729
|
||||||
|
Difference
in accounting for:
|
|||||||||
|
Revenue
|
3,037
|
6,146
|
|||||||
|
Costs
and expenses
|
53,402
|
53,256
|
|||||||
|
Inventories
|
7,530
|
9,128
|
|||||||
|
Acquired
intangible assets
|
37,413
|
45,636
|
|||||||
|
Other
|
—
|
3
|
|||||||
|
Gross
deferred tax assets
|
222,287
|
213,274
|
|||||||
|
Valuation
allowance
|
(207,209
|
)
|
(195,027
|
)
|
|||||
|
Deferred
tax assets after valuation allowance
|
15,078
|
18,247
|
|||||||
|
Deferred
tax liabilities:
|
|||||||||
|
Difference
in accounting for:
|
|||||||||
|
Costs
and expenses
|
(2,449
|
)
|
(3,066
|
)
|
|||||
|
Acquired
intangible assets
|
(10,439
|
)
|
(14,261
|
)
|
|||||
|
Gross
deferred tax liabilities
|
(12,888
|
)
|
(17,327
|
)
|
|||||
|
Net
deferred tax assets
|
$
|
2,190
|
$
|
920
|
66
Deferred
tax assets and liabilities reflect the net tax effects of the tax credits and
net operating loss carryforwards and the temporary differences between the
carrying amounts of assets and liabilities for financial reporting purposes and
the amounts used for income tax purposes. The ultimate realization of the net
deferred tax assets is dependent upon the generation of sufficient future
taxable income in the applicable tax jurisdictions.
For U.S.
federal and state income tax purposes at December 31, 2009, the Company has tax
credit carryforwards of approximately $64.9 million, which will expire between
2011 and 2029, and net operating loss carryforwards of approximately $314.3
million, which will expire between 2019 and 2029. The federal net operating loss
and tax credit amounts are subject to annual limitations under Section 382
change of ownership rules of the U.S. Internal Revenue Code of 1986, as amended
(the “Internal Revenue Code”). The Company is assessing
whether there may have been a Section 382 ownership change in 2009. If it is
determined that there was an ownership change during that year, the annual
amount of net operating loss and tax credit carryforwards that could be used to
offset future taxable income and income tax liability would be limited.
Based on the level of the deferred tax assets at December 31, 2009 and
the level of historical U.S. losses, management has determined that the
uncertainty regarding the realization of these assets warranted a full valuation
allowance at December 31, 2009.
The
Company’s assessment of the valuation allowance on the U.S. deferred tax assets
could change in the future based on its levels of pre-tax income and other tax
related adjustments. Removal of the valuation allowance in whole or in part
would result in a non-cash reduction in income tax expense during the period of
removal. On July 31,
2009, the Company purchased all the outstanding shares of MaxT Systems Inc. As a
result of the acquisition of MaxT, the Company was able to remove $0.6 million
of valuation allowance on previously existing deferred tax
assets.
Excluded
from the above deferred tax schedule at December 31, 2009 are tax assets
totaling $68.5 million resulting from the exercise of employee stock options. In
accordance with ASC topic 740, Income Taxes (formerly SFAS No. 109,
Accounting for Income
Taxes) and ASC topic 718, Compensation – Stock Compensation
(formerly SFAS No. 123 (revised 2004), Share-Based Payment),
recognition of these assets would occur upon utilization of these deferred tax
assets to reduce taxes payable and would result in a credit to additional
paid-in capital within stockholders’ equity rather than the provision for income
taxes. As a result of the exercise of employee stock options, the Company
recorded increases to additional paid-in capital of $0.3 million in 2007. In
2008, the Company recorded a decrease of $0.4 million to additional paid in
capital as a cumulative catch-up for prior year amounts recorded in excess of
the final deductions reflected on tax returns. In 2009, no adjustment to
additional paid-in-capital related to exercises of employee stock options was
required.
The
following table sets forth a reconciliation of the Company's income tax
provision (benefit) to the statutory U.S. federal tax rate for the years ended December 31, 2009,
2008 and 2007:
|
2009
|
2008
|
2007
|
||||||||||
|
Statutory
rate
|
(35
|
)%
|
(35
|
)%
|
(35
|
)%
|
||||||
|
Tax
credits
|
(7
|
)
|
(3
|
)
|
(51
|
)
|
||||||
|
Foreign
operations
|
5
|
-
|
(114
|
)
|
||||||||
|
State
taxes, net of federal benefit
|
-
|
-
|
3
|
|||||||||
|
Other
|
2
|
-
|
10
|
|||||||||
|
Goodwill
impairment
|
-
|
21
|
-
|
|||||||||
|
Divestiture
of Softimage 3D animation product line
|
-
|
3
|
-
|
|||||||||
|
Increase
(decrease) in valuation allowance
|
33
|
15
|
247
|
|||||||||
|
Effective
tax rate
|
(2
|
)%
|
1
|
%
|
60
|
%
|
||||||
67
ASC topic
740 requires that a
tax position must be more likely than not to be sustained before being
recognized in the financial statements. It also requires the accrual of
interest and penalties as applicable on unrecognized tax positions. At January
1, 2007, the Company had $6.9 million of unrecognized tax benefits, of which
$4.7 million would affect the Company's effective tax rate if recognized. In
March 2007, a Canadian R&D tax credit audit for the years ended December 31,
2004 and 2005 was completed. As a result, the Company recognized $3.0 million of
previously unrecognized tax benefits. This amount was included in the tax
benefits for the year ended December 31, 2007. In 2008, the statute of
limitations expired on previously open tax years related to certain tax filings
in the U.S. and Germany. As a result, the Company recognized $0.4 million of
previously unrecognized tax benefits and recorded reductions to goodwill and
translation adjustment of $0.5 million and $0.2 million, respectively. The
Company also settled tax audits in both Canada and the U.K. resulting in the
recognition of $0.6 million of previously unrecognized tax benefits and a $0.1
million reduction in translation adjustment. At December 31, 2008, the Company's
unrecognized tax benefits and related accrued interest and penalties totaled
$3.7 million, of which $1.4 million would affect the Company's effective tax
rate if recognized. In 2009, there was a
decrease in the previously unrecognized tax benefits, primarily related to the
settlement of tax audits in Germany. At December 31, 2009, the Company’s
unrecognized tax benefits and related accrued interest and penalties totaled
$2.3 million, all of which would affect the Company’s effective tax rate if
recognized. The Company anticipates that in the next twelve months the
liability for unrecognized tax benefits for uncertain tax positions could
decrease by as much as $0.4 million due to the expiration of statutes of
limitations and other factors.
The
following table sets forth a reconciliation of the beginning and ending amounts
of unrecognized tax benefits, excluding the impact of interest and penalties,
for the years ended December 31, 2009, 2008 and 2007 (in
thousands):
|
Unrecognized
tax benefits at January 1, 2007
|
$
|
6,200
|
||
|
Increases
for tax positions taken during a prior period
|
400
|
|||
|
Increases
for tax positions taken during the current period
|
200
|
|||
|
Decreases
for tax positions taken during a prior period
|
—
|
|||
|
Decreases
related to settlements
|
(2,800
|
)
|
||
|
Unrecognized
tax benefits at December 31, 2007
|
4,000
|
|||
|
Increases
for tax positions taken during a prior period
|
900
|
|||
|
Increases
for tax positions taken during the current period
|
—
|
|||
|
Decreases
for tax positions taken during a prior period
|
(1,100
|
)
|
||
|
Decreases
related to settlements
|
(700
|
)
|
||
|
Unrecognized
tax benefits at December 31, 2008
|
3,100
|
|||
|
Increases
for tax positions taken during a prior period
|
2,000
|
|||
|
Increases
for tax positions taken during the current period
|
—
|
|||
|
Decreases
for tax positions taken during a prior period
|
(2,600
|
)
|
||
|
Decreases
related to settlements
|
(200
|
)
|
||
|
Decreases
related to the lapse of applicable statutes of limitations
|
(300
|
)
|
||
|
Unrecognized
tax benefits at December 31, 2009
|
$
|
2,000
|
The
Company recognizes interest and penalties related to uncertain tax positions in
income tax expense. At December 31, 2009, 2008 and 2007, respectively, the
Company had approximately $0.3 million, $0.6 million and $0.7 million of accrued
interest related to uncertain tax positions.
The tax
years 2003 through 2008 remain open to examination by taxing authorities in the
jurisdictions in which the Company operates.
|
I.
|
LONG-TERM
LIABILITIES
|
Long-term
liabilities consisted of the following at December 31, 2009 and 2008 (in
thousands):
|
2009
|
2008
|
||||||||
|
Long-term
deferred tax liabilities, net
|
$
|
2,519
|
$
|
4,002
|
|||||
|
Long-term
deferred revenue
|
7,296
|
4,081
|
|||||||
|
Long-term
deferred rent
|
1,974
|
2,436
|
|||||||
|
Long-term
accrued restructuring
|
2,694
|
1,304
|
|||||||
|
$
|
14,483
|
$
|
11,823
|
||||||
68
|
J.
|
COMMITMENTS
AND CONTINGENCIES
|
Operating
Lease Commitments
The
Company leases its office space and certain equipment under non-cancelable
operating leases. The future minimum lease commitments under these
non-cancelable leases at December 31, 2009 were as follows (in thousands):
|
Year
|
||||
|
2010
|
$
|
21,303
|
||
|
2011
|
19,662
|
|||
|
2012
|
15,863
|
|||
|
2013
|
15,042
|
|||
|
2014
|
13,299
|
|||
|
Thereafter
|
39,629
|
|||
|
Total
|
$
|
124,798
|
Included
in the operating lease commitments above are obligations under leases for which
the Company has vacated the underlying facilities as part of various
restructuring plans. These leases expire at various dates through 2017 and
represent an aggregate obligation of $13.4 million through 2017. The Company
currently has sublease income related to portions of the restructured space. The
total of future minimum rentals to be received by the Company under
non-cancelable subleases related to the above leases was $1.4 million at
December 31, 2009. Such sublease income amounts are not reflected in the
schedule of minimum lease payments above. The Company has
restructuring accruals of $7.7 million at December 31, 2009, which represents
the difference between this aggregate future obligation and expected future
sublease income under actual or estimated potential sublease agreements, on a
net present value basis, as well as other facilities-related obligations (see
Note N).
The
Company's recently signed leases for corporate office space in Burlington,
Massachusetts, which expire in May 2020, contain renewal options to extend the
respective terms of each lease for up to two additional five year periods. The
Company has some leases for office space that have early termination options,
which, if exercised by the Company, would result in penalties of approximately
$1.6 million in the aggregate. The future minimum lease commitments above
include the Company’s obligations through the original lease terms and do not
include these penalties.
The
accompanying consolidated results of operations reflect rent expense on a
straight-line basis over the term of the leases. Total rent expense under
operating leases, net of operating subleases, was approximately $19.2 million,
$22.9 million and $22.6 million for the years ended December 31, 2009, 2008 and
2007, respectively. Total rent received from the Company’s operating subleases
was approximately $1.8 million, $2.6 million and $3.2 million for the years
ended December 31, 2009, 2008 and 2007, respectively.
The
Company has three letters of credit at a bank that are used as security deposits
in connection with the Company’s recently leased Burlington, Massachusetts
office space. In the event of default on the underlying leases, the landlords
would, at December 31, 2009, be eligible to draw against the letters of credit
to a maximum of $2.6 million in the aggregate. The letters of credit are subject
to aggregate reductions of approximately $0.4 million at the end of each of the
second, third and fifth years, provided the Company is not in default of the
underlying leases and meets certain financial performance conditions. In no case
will the letters of credit amounts be reduced to below $1.3 million in the
aggregate throughout the lease periods, all of which extend to May 2020. At
December 31, 2009, the Company was not in default of any of the underlying
leases.
The
Company also has a standby letter of credit at a bank that is used as a security
deposit in connection with the Company’s Daly City, California office space
lease. In the event of default on this lease, the landlord would, at December
31, 2009, be eligible to draw against this letter of credit to a maximum of $750
thousand. The letter of credit will remain in effect at $750 thousand throughout
the remaining lease period, which extends to September 2014. At December 31,
2009, the Company was not in default of this lease.
Purchase
Commitments and Sole-Source Suppliers
At
December 31, 2009, the Company had entered into non-cancelable purchase
commitments for certain inventory components used in its normal operations. The
purchase commitments covered by these agreements are generally less than one
year and in the aggregate total approximately $49.5 million.
69
The
Company depends on sole-source suppliers for certain key hardware components of
its products. If any of these sole-source suppliers cease, suspend or otherwise
limit production or shipment of their hardware components, or adversely modify
purchasing terms or pricing structures, the Company's ability to sell and
service its products may be impaired. The Company procures product components
and builds inventory based on forecasts of product life cycle and customer
demand. If the Company is unable to provide accurate forecasts or manage
inventory levels in response to shifts in customer demand, the Company may have
insufficient, excess or obsolete product inventory.
Transactions
with Recourse
The
Company, through third parties, provides lease financing options to its
customers, including end users and, on a limited basis, resellers. During the
terms of these leases, which are generally three years, the Company may remain
liable for any unpaid principal balance upon default by the customer, but such
liability is limited in the aggregate based on a percentage of initial amounts
funded or, in certain cases, amounts of unpaid balances. At December 31, 2009 and
2008, the Company’s maximum recourse exposure totaled approximately $2.5 million
and $4.6 million, respectively. The Company records revenues from these
transactions upon the shipment of products, provided that all other revenue
recognition criteria, including collectibility being reasonably assured, are
met. Because the Company has been providing financing options to its customers
for many years, the Company has a substantial history of collecting under these
arrangements without providing significant refunds or concessions to the end
user, reseller or financing party. To date, the payment default rate has
consistently been between 2% and 4% per year of the original funded amount. The
Company maintains a reserve for estimated losses under recourse lease programs
based on these historical default rates applied to the funded amount outstanding
at period end. At December 31, 2009 and 2008, the Company’s accruals for
estimated losses were $1.3 million and $0.8 million, respectively.
Contingencies
The
Company receives inquiries from time to time claiming possible patent
infringement by the Company. If any infringement is determined to exist, the
Company may seek licenses or settlements. In addition, as a normal incidence of
the nature of the Company’s business, various claims, charges and litigation
have been asserted or commenced from time to time against the Company arising
from or related to contractual or employee relations, intellectual property
rights or product performance. Settlements related to any such claims are
generally included in the “general and administrative expenses” caption in the
Company’s consolidated statements of operations. Management does not believe
these claims will have a material adverse effect on the financial position or
results of operations of the Company.
On May
24, 2007, David Engelke and Bryan Engelke filed a complaint against our Pinnacle
subsidiary in Pinellas County (Florida) Circuit Court, claiming that the
Engelkes are entitled to indemnification for damages and accrued interest
awarded against them in litigation with a third party of $9 million, currently
under appeal. In addition, the Engelkes are seeking damages for the alleged
breach of certain contracts by Pinnacle and attorneys’ fees estimated to be
approximately $6 million. The Engelkes’ suit against Pinnacle is expected to go
to trial in September 2010. We believe that the Engelkes’ claims are without
merit and intend to vigorously defend these claims. Because we cannot predict
the outcome of this action at this time, no costs have been accrued for any loss
contingency.
From time
to time, the Company provides indemnification provisions in agreements with
customers covering potential claims by third parties of intellectual property
infringement. These agreements generally provide that the Company will indemnify
customers for losses incurred in connection with an infringement claim brought
by a third party with respect to the Company’s products. These indemnification
provisions generally offer perpetual coverage for infringement claims based upon
the products covered by the agreement. The maximum potential amount of future
payments the Company could be required to make under these indemnification
provisions is theoretically unlimited; however, to date, the Company has not
incurred material costs related to these indemnification provisions. As a
result, the Company believes the estimated fair value of these indemnification
provisions is minimal.
As
permitted under Delaware law and pursuant to the Company’s Third Amended and
Restated Certificate of Incorporation, as amended, the Company is obligated to
indemnify its current and former officers and directors for certain events that
occur or occurred while the officer or director is or was serving in such
capacity. The term of the indemnification period is for each respective
officer’s or director’s lifetime. The maximum potential amount of future
payments the Company could be required to make under these indemnification
obligations is unlimited; however, the Company has mitigated the exposure
through the purchase of directors and officers insurance, which is intended to
limit the risk and, in most cases, enable the Company to recover all or a
portion of any future amounts paid. As a result of this insurance coverage, the
Company believes the estimated fair value of these indemnification obligations
is minimal.
70
The
Company provides warranties on externally sourced and internally developed
hardware. For internally developed hardware and in cases where the warranty
granted to customers for externally sourced hardware is greater than that
provided by the manufacturer, the Company records an accrual for the related
liability based on historical trends and actual material and labor costs. The
warranty period for all of the Company’s products is generally 90 days to one
year, but can extend up to five years depending on the manufacturer’s warranty
or local law.
The
following table sets forth the activity in the product warranty accrual account
for the years ended December 31, 2009 and 2008 (in thousands):
|
Accrual
balance at December 31, 2007
|
$
|
5,803
|
||
|
Allocated
to PCTV divestiture
|
(832
|
)
|
||
|
Accruals
for product warranties
|
8,147
|
|||
|
Cost
of warranty claims
|
(7,925
|
)
|
||
|
Accrual
balance at December 31, 2008
|
5,193
|
|||
|
Accruals
for product warranties
|
5,694
|
|||
|
Cost
of warranty claims
|
(6,433
|
)
|
||
|
Accrual
balance at December 31, 2009
|
$
|
4,454
|
|
K.
|
CAPITAL
STOCK
|
Preferred
Stock
The
Company has authorized up to one million shares of preferred stock, $0.01 par
value per share, for issuance. Each series of preferred stock shall have such
rights, preferences, privileges and restrictions, including voting rights,
dividend rights, conversion rights, redemption privileges and liquidation
preferences, as may be determined by the Company's board of
directors.
Common
Stock
A stock
repurchase program was approved by the Company’s board of directors in April
2007, which authorized the Company to repurchase up to $100 million of the
Company’s common stock through transactions on the open market, in block trades
or otherwise. In February 2008, the Company’s board of directors approved a $100
million increase in the authorized funds for the repurchase of the Company’s
common stock. During 2007, the Company repurchased 809,236 shares of the
Company’s common stock under the program for a total purchase price, including
commissions, of $26.6 million, or $32.92 per share. During 2008, the Company
repurchased an additional 4,254,397 shares of the Company’s common stock for a
total purchase price, including commissions, of $93.2 million. The average price
per share paid for the shares repurchased during the 2008, including
commissions, was $21.90. At December 31, 2009, $80.3 million remained available
for future stock repurchases under the program. This stock repurchase program is
being funded through working capital and has no expiration date.
Under
some of the Company's equity compensation plans, employees have the option or
may be required to satisfy any withholding tax obligations by tendering to the
Company a portion of the common stock received under the award. During the years
ended December 31, 2009, 2008 and 2007, the Company received approximately
14,447 shares, 1,373 shares and 684 shares, respectively, of its common stock in
exchange for $172 thousand, $25 thousand and $23 thousand, respectively, of
employee withholding liabilities paid by the Company.
71
|
L.
|
STOCK
PLANS
|
Stock
Incentive Plan
At the
Company’s 2008 Annual Stockholder Meeting held on May 21, 2008, the Company’s
stockholders approved the Company’s Amended and Restated 2005 Stock Incentive
Plan (the “Plan”). Under the Plan, the Company is authorized to issue, subject
to adjustment in the event of stock splits and other similar events, up to
8,000,000 shares of the Company’s common stock plus:
|
Ÿ
|
an
aggregate of 168,143 shares that remained available for issuance at May
21, 2008 under the Company’s 1993 Director Stock Option Plan, as amended;
the Company’s 1998 Stock Option Plan; the Company’s Amended and Restated
1999 Stock Option Plan; and the Company’s Midiman, Inc. 2002 Stock
Option/Stock Issuance Plan (the “Existing Plans”);
and
|
|
Ÿ
|
any
shares subject to awards granted under the Existing Plans, which awards
expire, terminate or are otherwise surrendered, canceled, forfeited or
repurchased by the Company at their original issuance price pursuant to a
contractual repurchase right.
|
No
further awards can be granted under the Existing Plans from and after May 21,
2008. Under the Plan, the Company may grant stock awards or options to purchase
the Company’s common stock to employees, officers, directors (subject to certain
restrictions) and consultants, generally at the market price on the date of
grant. The options become exercisable over various periods, typically four years
for employees and one year for non-employee directors, and have a maximum term
of seven years. Restricted stock and restricted stock unit awards typically vest
over four years. At December 31, 2009, 5,495,144 shares were available for
issuance under the Plan or the Existing Plans, including 1,115,986 shares that
may alternatively be issued as awards of restricted stock or restricted stock
units.
Information
with respect to options granted under all stock option plans for the year ended
December 31, 2009 is as follows:
|
Shares
|
Weighted-
Average
Exercise
Price
|
Weighted-
Average
Remaining
Contractual
Term
|
Aggregate
Intrinsic
Value
(in
thousands)
|
||||||
|
Options
outstanding at December 31, 2008
|
4,450,286
|
$30.03
|
|||||||
|
Granted
|
1,413,040
|
$12.84
|
|||||||
|
Exercised
|
(51,346
|
)
|
$9.68
|
||||||
|
Forfeited
or canceled (a)
|
(1,521,558
|
)
|
$37.95
|
||||||
|
Options
outstanding at December 31, 2009
|
4,290,422
|
$21.80
|
5.66
|
$611
|
|||||
|
Options
vested at December 31, 2009 or expected to vest
|
3,667,381
|
$22.33
|
5.62
|
$505
|
|||||
|
Options
exercisable at December 31, 2009
|
1,161,135
|
$29.69
|
4.67
|
$93
|
|
|
(a)
|
Forfeited
or expired shares includes options to purchase 419,042 shares canceled as
a result of the tender offer to purchase certain employee stock options
completed in June 2009. See the “Stock Option Purchase” section in this
note for further information on the tender
offer.
|
The
aggregate intrinsic value of stock options exercised during the years ended
December 31, 2009, 2008 and 2007 was approximately $0.2 million, $0.8 million
and $8.1 million, respectively. Cash received from the exercise of stock options
for the years ended December 31, 2009, 2008 and 2007 was approximately $0.5
million, $1.2 million and $10.5 million, respectively. The Company did not
realize any actual tax benefit from the tax deductions for stock option
exercises during the years ended December 31, 2009, 2008 or 2007 due to the full
valuation allowance on the Company’s U.S. deferred tax assets.
72
Information
with respect to non-vested restricted stock units for the year ended December
31, 2009 is as follows:
|
Non-Vested
Restricted Stock Units
|
|||||||||
|
Shares
|
Weighted-
Average
Grant-Date
Fair
Value
|
Weighted-
Average
Remaining
Contractual
Term
|
Aggregate
Intrinsic
Value
(in
thousands)
|
||||||
|
Non-vested
at December 31, 2008
|
989,772
|
$27.28
|
|||||||
|
Granted
(a)
|
86,500
|
$12.20
|
|||||||
|
Vested
|
(284,634
|
)
|
$28.38
|
||||||
|
Forfeited
|
(148,283
|
)
|
$25.84
|
||||||
|
Non-vested
at December 31, 2009
|
643,355
|
$25.14
|
1.01
|
$8,203
|
|||||
|
Expected
to vest
|
580,163
|
$25.30
|
0.96
|
$7,397
|
|||||
|
|
(a)
|
The
restricted stock units granted during 2009 include 24,500 that vest at the
earlier of one year from the grant date or the first fiscal quarter
certain performance-based criteria are met. The performance-based criteria
were met during the three months ended December 31, 2009, and the shares
will vest during the first quarter of 2010 in accordance with the terms of
the grant.
|
The
weighted-average grant date fair value of restricted stock units granted during
the years ended December 31, 2008 and 2007 was $22.96 and $33.76, respectively.
The total fair value of restricted stock units vested during the years ended
December 31, 2009, 2008, and 2007, was $2.8 million, $4.3 million, and $1.9
million, respectively.
Information
with respect to non-vested restricted stock for the year ended December 31, 2009
is as follows:
|
Non-Vested
Restricted Stock
|
|||||||||
|
Shares
|
Weighted-
Average
Grant-Date
Fair
Value
|
Weighted-
Average
Remaining
Contractual
Term
|
Aggregate
Intrinsic
Value
(in
thousands)
|
||||||
|
Non-vested
at December 31, 2008
|
100,000
|
$25.41
|
|||||||
|
Granted
|
—
|
—
|
|||||||
|
Vested
|
(50,000
|
)
|
$25.41
|
||||||
|
Forfeited
|
—
|
—
|
|||||||
|
Non-vested
at December 31, 2009
|
50,000
|
$25.41
|
1.97
|
$638
|
|||||
The
weighted-average grant date fair value of restricted stock granted during the
year ended December 31, 2007 was $25.41. There were no grants of restricted
stock during the years ended December 31, 2009 and 2008. The total fair value of
restricted stock vested during the years ended December 31, 2009, 2008 and 2007,
was $0.6 million, $0.1 million, and $0.1 million, respectively.
Stock
Option Purchase
In June
2009, the Company completed a cash tender offer for certain employee stock
options. The tender offer applied to 547,133 outstanding stock options having an
exercise price equal to or greater than $40.00 per share and granted under the
Company’s Amended and Restated 2005 Stock Incentive Plan, Amended and Restated
1999 Stock Option Plan (including the U.K. sub-plan), 1998 Stock Option Plan,
1997 Stock Option Plan, 1997 Stock Incentive Plan, as amended, and 1994 Stock
Option Plan, as amended. Members of the Company’s
Board of Directors, officers who file reports under Section 16(a) of the
Securities Exchange Act of 1934 and members of the Company’s executive staff
were not eligible to participate in this offer. Under the offer, eligible
options with exercise prices equal to or greater than $40.00 and less than
$50.00 per share were eligible to receive a cash payment of $1.50 per share, and
eligible options with exercise prices equal to or greater than $50.00 per share
were eligible to receive a cash payment of $1.00 per share.
Options
to purchase a total of 419,042 shares of the Company’s common stock, of which
366,769 shares are available for future grant, were tendered under the offer for
an aggregate purchase price of approximately $0.5 million paid in exchange for
the cancellation of the eligible options. As a result of the tender offer, the
Company incurred stock-based compensation charges of approximately $0.1 million
in its condensed consolidated statements of operations during the second quarter
of 2009. This is the first time the Company has offered to purchase outstanding
stock options in exchange for cash, and there is no current intent to make
another such offer in the future.
73
Employee
Stock Purchase Plans
On
February 27, 2008, the Company’s board of directors approved the Company’s
Second Amended and Restated 1996 Employee Stock Purchase Plan (as amended, the
“ESPP”). The amended plan became effective May 1, 2008, the first day of the
next offering period under the plan, and offers shares for purchase at a price
equal to 85% of the closing price on the applicable offering termination date.
Shares issued under the ESPP are considered compensatory under ASC subtopic
718-50, Compensation – Stock
Compensation – Employee Share Purchase Plans (formerly SFAS No.
123(revised 2004), Share-Based
Payment). Accordingly, the Company was required to assign fair value to,
and record compensation expense for, shares issued from the ESPP starting May 1,
2008. Prior to May 1, 2008, shares were authorized for issuance at a price equal
to 95% of the closing price on the applicable offering termination date, and
shares offered under this arrangement were considered
noncompensatory.
The
Company uses the Black-Scholes option pricing model to calculate the fair value
of shares issued under the ESPP. The Black-Scholes model
relies on a number of key assumptions to calculate estimated fair values.
The following table sets forth the weighted-average key assumptions and
fair value results for shares issued under the ESPP starting for the year ended
December 31, 2009 and the eight months ended December 31, 2008:
|
Year
Ended
December
31, 2009
|
Eight
Months Ended
December
31, 2008
|
||||
|
Expected
dividend yield
|
0.00%
|
0.00%
|
|||
|
Risk-free
interest rate
|
1.40%
|
2.21%
|
|||
|
Expected
volatility
|
54.4%
|
45.1%
|
|||
|
Expected
life (in years)
|
0.25
|
0.25
|
|||
|
Weighted-average
fair value of shares issued (per share)
|
$1.94
|
$3.11
|
At the
2008 Annual Stockholder Meeting held on May 21, 2008, the Company’s stockholders
authorized an additional 800,000 shares for issuance under the ESPP. At December
31, 2009, 844,474 shares remained available for issuance under the
ESPP.
|
M.
|
EMPLOYEE
BENEFIT PLANS
|
Employee
Benefit Plans
The
Company has a defined contribution employee benefit plan under section 401(k) of
the Internal Revenue Code covering substantially all U.S. employees. The 401(k)
plan allows employees to make contributions up to a specified percentage of
their compensation. The Company may, upon resolution by the Company's board of
directors, make discretionary contributions to the plan. The Company’s
contribution to the plan, which was suspended for much of 2009, is generally 50%
of up to the first 6% of an employee’s salary contributed to the plan by the
employee. The Company’s contributions to the plan totaled $1.3 million, $3.5
million and $3.5 million in 2009, 2008 and 2007, respectively.
In
addition, the Company has various retirement and post-employment plans covering
certain international employees. Certain of the plans allow the Company to match
employee contributions up to a specified percentage as defined by the plans. The
Company made contributions to these plans of $0.9 million, $2.1 million and $2.1
million in 2009, 2008 and 2007, respectively.
Nonqualified
Deferred Compensation Plan
The
Company's board of directors has approved a nonqualified deferred compensation
plan (the “Deferred Plan”). The Deferred Plan covers senior management and
members of the Company's board of directors as approved by the Company's
Compensation Committee. The plan provides for a trust to which participants
can contribute varying percentages or amounts of eligible compensation for
deferred payment. Payouts are generally made upon termination of employment with
the Company. The benefits payable under the Deferred Plan represents an unfunded
and unsecured contractual obligation of the Company to pay the value of the
deferred compensation in the future, adjusted to reflect the trust's investment
performance. The assets of the trust, as well as the corresponding obligations,
were approximately $0.8 million and $0.7 million at December 31, 2009 and 2008,
respectively, and were recorded in other current assets and accrued compensation
and benefits at those dates.
74
|
N.
|
RESTRUCTURING
COSTS AND ACCRUALS
|
In
October 2008, the Company initiated a company-wide restructuring plan (the
“Plan”) that included a reduction in force of approximately 500 positions,
including employees related to product line divestitures, and the closure of all
or parts of some facilities worldwide. The Plan is intended to improve
operational efficiencies and bring costs in line with expected revenues. In
connection with the Plan, during the fourth quarter of 2008 the Company recorded
restructuring charges of $20.4 million related to employee termination costs and
$0.5 million for the closure of three small facilities. In addition, as a result
of the decision to sell the PCTV product line, the Company recorded a non-cash
restructuring charge of $1.9 million in cost of revenues related to the
write-down of inventory. Of the total restructuring charge of $22.8 million
recorded in the fourth quarter of 2008, $16.9 million related to the Video
segment, $3.3 million related to the Audio segment and $2.6 million related to
corporate operations.
During
the first six months of 2009, the Company recorded new restructuring charges
totaling $8.2 million under the Plan, of which $3.1 million related to employee
termination costs; $4.3 million related to the closure of all or part of nine
facilities; and $0.8 million, recorded in cost of revenues, related to the
write-down of PCTV inventory not included in assets held-for-sale. During the
third and fourth quarters of 2009, as a result of the expanded use of the
Company’s internationally based partners for R&D projects and our desire to
better align our 2010 cost structure with revenue expectations, the Company
initiated new restructuring actions under the Plan resulting in additional
restructuring charges totaling $18.9 million. The third and fourth quarter
charges included $11.7 million related to an additional reduction in force of
approximately 320 positions and $7.2 million, including non-cash charges of $2.2
million for the write-off of fixed assets, primarily related to the closure of
one floor of the Audio segment’s Daly City, California facility. Also during
2009, the Company recorded revisions of $0.8 million to previously recorded
restructuring estimates for additional severance obligations related to the
Plan. Of the total Plan restructuring charges of $27.9 million recorded in 2009,
$13.3 million related to corporate operations, $5.5 million related to the Video
segment and $9.1 million related to the Audio segment. In connection with
restructuring actions taken under the Plan, the Company has incurred or expects
to incur total restructuring charges of approximately $53 million. Also during
2009, restructuring recoveries totaling ($0.2) million were recorded for revised
estimates of previously initiated restructuring plans.
During
the first nine months of 2008, the Company initiated restructuring plans within
its former Professional Video business unit as well as corporate operations to
eliminate duplicative business functions and improve operational efficiencies.
In connection with these actions, the Company recorded restructuring charges of
$4.2 million related to employee termination costs for approximately 90
employees, primarily in the research and development, marketing and selling
team, and general and administrative teams. Also during 2008, restructuring
charges totaling $0.2 million were recorded for revised estimates of previously
initiated restructuring plans.
During
2007, the Company implemented restructuring plans within the former Professional
Video and Consumer Video business units, as well as corporate operations,
resulting in restructuring charges of $10.1 million, $1.8 million and $0.3
million, respectively. In connection with these actions, the Company terminated
the employment of approximately 125 employees, primarily from the research and
development teams and marketing and selling teams. The purpose of these plans
was to eliminate duplicative business functions, improve operational
efficiencies and align business skills with future opportunities. The charges
for the estimated costs for the employee terminations totaled $5.2 million.
Actions under these restructuring plans also included the closure of facilities
in Munich, Germany and Chicago, Illinois and portions of facilities in
Tewksbury, Massachusetts; Montreal, Canada; and Mountain View, California, and
the Company’s exit from the transmission server product line. The costs for the
facility closures totaled $2.6 million. As a result of exiting the transmission
server product line, the Company recorded non-cash charges totaling $4.3 million
in cost of revenues for the write-down of inventory. The Company also recorded a
non-cash restructuring charge of $0.1 million related to the disposal of fixed
assets.
75
The
Company recorded the facility-related restructuring charges and, prior to the
fourth quarter of 2008, the employee-related restructuring charges in accordance
with the guidance of SFAS No. 146, Accounting for Costs Associated with
Exit or Disposal Activities (now ASC topic 420, Liabilities: Exit or Disposal Cost
Obligations). Since the fourth quarter of 2008, as a result of changes in
the Company’s policies related to the calculation and payment of severance
benefits, the Company has accounted for employee-related restructuring charges
as an ongoing benefit arrangement in accordance with ASC topic 712, Compensation – Nonretirement
Postemployment Benefits (formerly SFAS No. 112, Employers’ Accounting for
Postemployment Benefits). Restructuring charges and accruals require
significant estimates and assumptions, including sub-lease income assumptions.
These estimates and assumptions are monitored on at least a quarterly basis for
changes in circumstances and any corresponding adjustments to the accrual are
recorded in the Company’s statement of operations in the period when such
changes are known.
In
connection with the 2005 Pinnacle acquisition, the Company recorded
restructuring accruals related to severance agreements and lease or other
contract terminations in accordance with the then current accounting guidance of
EITF Issue No. 95-3, Recognition of Liabilities in
Connection with a Purchase Business Combination. During the third quarter
of 2007, the Company recorded a $0.7 million increase in the estimate for the
Pinnacle accrual and a corresponding restructuring charge in the Company’s
statement of operations. At December 31, 2009, the restructuring accrual balance
related to the Pinnacle acquisition totaled approximately $0.5
million.
The
following table sets forth the activity in the restructuring accruals for the
years ended December 31, 2009, 2008 and 2007 (in thousands):
|
Non-Acquisition-Related
Restructuring
Liabilities
|
Acquisition-Related
Restructuring
Liabilities
|
|||||||||||||||||||||||
|
Employee-
Related
|
Facilities-
Related
&
Other
|
Employee-
Related
|
Facilities-
Related
|
Total
|
||||||||||||||||||||
|
Accrual
balance at December 31, 2006
|
$
|
2,433
|
$
|
1,594
|
$
|
932
|
$
|
1,504
|
$
|
6,463
|
||||||||||||||
|
New
restructuring charges – operating expenses
|
5,247
|
2,681
|
—
|
—
|
7,928
|
|||||||||||||||||||
|
New
restructuring charges – cost of revenues
|
—
|
4,278
|
—
|
—
|
4,278
|
|||||||||||||||||||
|
Revisions
of estimated liabilities
|
320
|
324
|
(370
|
)
|
1,193
|
1,467
|
||||||||||||||||||
|
Accretion
|
—
|
122
|
—
|
44
|
166
|
|||||||||||||||||||
|
Cash
payments for employee-related charges
|
(6,916
|
)
|
—
|
(570
|
)
|
—
|
(7,486
|
)
|
||||||||||||||||
|
Cash
payments for facilities, net of sublease income
|
—
|
(1,467
|
)
|
—
|
(671
|
)
|
(2,138
|
)
|
||||||||||||||||
|
Non-cash
write-offs
|
—
|
(4,387
|
)
|
—
|
(53
|
)
|
(4,440
|
)
|
||||||||||||||||
|
Foreign
exchange impact on ending balance
|
102
|
111
|
10
|
24
|
247
|
|||||||||||||||||||
|
Accrual
balance at December 31, 2007
|
1,186
|
3,256
|
2
|
2,041
|
6,485
|
|||||||||||||||||||
|
New
restructuring charges – operating expenses
|
24,413
|
690
|
—
|
—
|
25,103
|
|||||||||||||||||||
|
New
restructuring charges – cost of revenues
|
—
|
1,876
|
—
|
—
|
1,876
|
|||||||||||||||||||
|
Revisions
of estimated liabilities
|
(85
|
)
|
450
|
(2
|
)
|
(186
|
)
|
177
|
||||||||||||||||
|
Accretion
|
—
|
88
|
—
|
52
|
140
|
|||||||||||||||||||
|
Cash
payments for employee-related charges
|
(11,274
|
)
|
—
|
—
|
—
|
(11,274
|
)
|
|||||||||||||||||
|
Cash
payments for facilities, net of sublease income
|
—
|
(2,054
|
)
|
—
|
(739
|
)
|
(2,793
|
)
|
||||||||||||||||
|
Non-cash
write-offs
|
—
|
(1,892
|
)
|
—
|
—
|
(1,892
|
)
|
|||||||||||||||||
|
Foreign
exchange impact on ending balance
|
849
|
(215
|
)
|
—
|
(339
|
)
|
295
|
|||||||||||||||||
|
Accrual
balance at December 31, 2008
|
15,089
|
2,199
|
—
|
829
|
18,117
|
|||||||||||||||||||
|
New
restructuring charges – operating expenses
|
14,835
|
11,496
|
—
|
—
|
26,331
|
|||||||||||||||||||
|
New
restructuring charges – cost of revenues
|
—
|
799
|
—
|
—
|
799
|
|||||||||||||||||||
|
Revisions
of estimated liabilities
|
593
|
(4
|
)
|
—
|
(47
|
)
|
542
|
|||||||||||||||||
|
Accretion
|
—
|
239
|
—
|
38
|
277
|
|||||||||||||||||||
|
Cash
payments for employee-related charges
|
(20,726
|
)
|
—
|
—
|
—
|
(20,726
|
)
|
|||||||||||||||||
|
Cash
payments for facilities, net of sublease income
|
—
|
(4,611
|
)
|
—
|
(425
|
)
|
(5,036
|
)
|
||||||||||||||||
|
Non-cash
write-offs
|
—
|
(3,140
|
)
|
—
|
—
|
(3,140
|
)
|
|||||||||||||||||
|
Foreign
exchange impact on ending balance
|
(557
|
)
|
283
|
—
|
77
|
(197
|
)
|
|||||||||||||||||
|
Accrual
balance at December 31, 2009
|
$
|
9,234
|
$
|
7,261
|
$
|
—
|
$
|
472
|
$
|
16,967
|
||||||||||||||
76
The
employee-related accruals at December 31, 2009 represent severance and
outplacement costs to former employees that will be paid out within the next
twelve months and are, therefore, included in the caption “accrued expenses and
other current liabilities” in the Company’s consolidated balance sheet at
December 31, 2009.
The
facilities-related accruals at December 31, 2009 represent estimated losses, net
of subleases, on space vacated as part of the Company’s restructuring actions.
The leases, and payments against the amounts accrued, extend through 2017 unless
the Company is able to negotiate earlier terminations. Of the total
facilities-related accruals, $5.0 million is included in the caption “accrued
expenses and other current liabilities” and $2.7 million is included in the
caption “long-term liabilities” in the Company’s consolidated balance sheet at
December 31, 2009.
|
O.
|
SEGMENT
INFORMATION
|
The
Company’s organizational structure is based on strategic business units aligned
with the principal product segments in which the Company’s products are sold.
ASC section 280-10-50, Segment
Reporting – Overall – Disclosure, (formerly SFAS No. 131, Disclosures about Segments of an
Enterprise and Related Information), defines operating segments as
components of an enterprise about which separate financial information is
available that is evaluated regularly by the chief operating decision maker, or
decision-making group, in deciding how to allocate resources and in assessing
performance. In July 2008, the Company announced several changes to its
historical business unit structure to be implemented for 2009. The new business
structure, which includes a single customer-facing organization, was used to
evaluate segment performance and measure segment profitability beginning January
1, 2009. Also beginning January 1, 2009,
the Company’s former Consumer Video segment was combined with the former
Professional Video segment to form a single Video segment. The Company’s
evaluation of the discrete financial information that is regularly reviewed by
the chief operating decision makers determined that for 2009 the Company’s two
business units, Video and Audio, also equated to its reportable
segments.
The
Company excludes certain corporate infrastructure costs and expenses, including
marketing and selling, finance, human resources, legal and some information
technology expenses, when evaluating reportable segment performance and
measuring the profitability of each operating segment. Such expenses are managed
outside the segments and are not controllable at the segment level, and the
Company believes that excluding these costs provides a better measure of each
segment’s performance. The Company also excludes certain other costs and
expenses when evaluating segment performance and profitability, including the
amortization and impairment of acquired intangible assets, stock-based
compensation expenses, restructuring expenses, gains or losses on sales of
assets, and legal settlements. The Company reports a contribution margin for
each business unit that excludes these costs. The Company has revised the prior
period segment disclosures to conform to the current presentation.
The Video
segment provides digital nonlinear hardware and software solutions designed to
improve the productivity of video and film editors and broadcasters by enabling
them to edit video, film and sound; manage media assets and automate workflows
in a faster, easier, and more cost-effective manner. This segment’s professional
digital nonlinear editing software and hardware products include the Media
Composer product line widely used to edit television programs, commercials and
films; the NewsCutter and Instinct editors designed for the fast-paced world of
news production; and Avid Symphony Nitris DX and Avid DS, which are used during
the “online” or “finishing” stage of post production. Professional video-editing
solutions accounted for approximately 13%, 14% and 15% of the Company’s
consolidated net revenues for 2009, 2008 and 2007, respectively. The Video
segment also includes shared storage and workflow solutions that provide
complete network, storage and database solutions based on the Company’s Avid
Unity MediaNetwork technology and enable users to simultaneously share and
manage media assets throughout a project or organization. Video storage and
workflow solutions accounted for approximately 16%, 16% and 15% of the Company’s
consolidated net revenues in 2009, 2008 and 2007, respectively. This segment’s products
also include the Pinnacle Studio video-editing product line, previously reported
in the Company’s former Consumer Video segment, that allows users to create,
edit, view and distribute video media using a personal computer. The 2008 and 2007
reporting for the Video segment also includes the Company’s former Softimage 3D
animation and PCTV product lines that
were sold in the fourth quarter of 2008 (see Note G).
The Audio
segment hardware and software for digital audio production systems and live
sound systems provide music creation; audio recording, editing, and mixing; and
live performance solutions for a broad range of customers. This segment includes
the Company’s Pro Tools products, which accounted for approximately 17%, 14% and
15% of the Company’s consolidated net revenues in 2009, 2008 and 2007,
respectively.
77
The
following is a summary of the Company’s revenues and contribution margin by
reportable segment for the years ended December 31, 2009, 2008 and 2007 and a
reconciliation of segment contribution margin to total consolidated operating
loss for each period (in thousands):
|
2009
|
2008
|
2007
|
||||||||||||
|
Revenues:
|
||||||||||||||
|
Video
(a)
|
$
|
375,010
|
$
|
551,706
|
$
|
610,577
|
||||||||
|
Audio
|
253,960
|
293,195
|
318,993
|
|||||||||||
|
Total
revenues
|
$
|
628,970
|
$
|
844,901
|
$
|
929,570
|
||||||||
|
Contribution
Margin:
|
||||||||||||||
|
Video
|
$
|
113,524
|
$
|
144,639
|
$
|
195,926
|
||||||||
|
Audio
|
91,534
|
101,489
|
116,373
|
|||||||||||
|
Segment
contribution margin
|
205,058
|
246,128
|
312,299
|
|||||||||||
|
Less
unallocated costs and expenses:
|
||||||||||||||
|
Research
and development expenses
|
(6,918
|
)
|
(7,170
|
)
|
(6,317
|
)
|
||||||||
|
Marketing
and selling expenses
|
(158,812
|
)
|
(191,948
|
)
|
(191,784
|
)
|
||||||||
|
General
and administrative expenses
|
(51,598
|
)
|
(66,906
|
)
|
(64,957
|
)
|
||||||||
|
Amortization
of acquisition-related intangible assets
|
(12,544
|
)
|
(20,380
|
)
|
(30,621
|
)
|
||||||||
|
Impairment
of goodwill and intangible assets
|
—
|
(129,972
|
)
|
—
|
||||||||||
|
Stock-based
compensation
|
(13,394
|
)
|
(14,201
|
)
|
(15,949
|
)
|
||||||||
|
Restructuring
costs, net
|
(27,672
|
)
|
(27,288
|
)
|
(13,688
|
)
|
||||||||
|
Legal
settlements and other costs
|
(4,159
|
)
|
—
|
(1,602
|
)
|
|||||||||
|
Gain
on sales of assets
|
155
|
13,287
|
—
|
|||||||||||
|
Consolidated
operating loss
|
$
|
(69,884
|
)
|
$
|
(198,450
|
)
|
$
|
(12,619
|
)
|
|||||
|
(a)
|
Video
revenues for the years ended December 31, 2009, 2008 and 2007 include
revenues of $1.9 million, $61.5 million and $68.7 million, respectively,
attributable to divested or exited product
lines.
|
Certain
assets, including cash and marketable securities and acquisition-related
intangible assets, are not included in the assets of the reportable segments
because management does not consider them in evaluating operating results of the
segments. The following table reconciles assets for reportable segments to total
consolidated amounts at December 31, 2009, 2008 and 2007 (in
thousands):
|
2009
|
2008
|
2007
|
||||||||||||
|
Assets:
|
||||||||||||||
|
Video
|
$
|
162,984
|
$
|
202,431
|
$
|
253,803
|
||||||||
|
Audio
|
82,747
|
89,942
|
95,679
|
|||||||||||
|
Total
assets for reportable segments
|
245,731
|
292,373
|
349,482
|
|||||||||||
|
Unallocated
amounts:
|
||||||||||||||
|
Cash,
cash equivalents and marketable securities
|
108,877
|
147,694
|
224,460
|
|||||||||||
|
Acquisition-related
intangible assets and goodwill
|
256,430
|
263,518
|
432,011
|
|||||||||||
|
Total
assets
|
$
|
611,038
|
$
|
703,585
|
$
|
1,005,953
|
||||||||
The
following is a summary of depreciation and capital expenditures by reportable
segment for the years ended December 31, 2009, 2008 and 2007 (in
thousands):
|
2009
|
2008
|
2007
|
||||||||||||
|
Video:
|
||||||||||||||
|
Depreciation
|
$
|
13,561
|
$
|
14,704
|
$
|
16,579
|
||||||||
|
Capital
expenditures
|
13,639
|
12,791
|
17,508
|
|||||||||||
|
Audio:
|
||||||||||||||
|
Depreciation
|
$
|
4,643
|
$
|
6,175
|
$
|
4,523
|
||||||||
|
Capital
expenditures
|
5,625
|
4,338
|
8,642
|
|||||||||||
78
The
following table summarizes the Company’s revenues by country for the years ended
December 31, 2009, 2008 and 2007 (in thousands). The categorization of revenues
is based on the country in which the customer resides.
|
2009
|
2008
|
2007
|
||||||||||||
|
Revenues:
|
||||||||||||||
|
United
States
|
$
|
266,271
|
$
|
331,983
|
$
|
387,243
|
||||||||
|
Other
countries
|
362,699
|
512,918
|
542,327
|
|||||||||||
|
Total
revenues
|
$
|
628,970
|
$
|
844,901
|
$
|
929,570
|
||||||||
The
following table summarizes the Company’s long-lived assets by country at
December 31, 2009 and 2008 (in thousands):
|
2009
|
2008
|
||||||||
|
Long-lived
assets:
|
|||||||||
|
United
States
|
$
|
42,064
|
$
|
33,512
|
|||||
|
Other
countries
|
15,608
|
15,610
|
|||||||
|
Total
long-lived assets
|
$
|
57,672
|
$
|
49,122
|
|||||
|
P.
|
FOREIGN
CURRENCY FORWARD CONTRACTS
|
The
Company has significant international operations and, therefore, the Company’s
revenues, earnings, cash flows and financial position are exposed to foreign
currency risk from foreign currency denominated receivables, payables and sales
transactions, as well as net investments in foreign operations. The Company
derives more than half of its revenues from customers outside the United States.
This business is, for the most part, transacted through international
subsidiaries and generally in the currency of the end-user customers. Therefore,
the Company is exposed to the risks that changes in foreign currency could
adversely affect its revenues, net income and cash flow. To hedge against the
foreign exchange exposure of certain forecasted receivables, payables and cash
balances of foreign subsidiaries, the Company enters into short-term foreign
currency forward contracts. There are two objectives of the Company’s foreign
currency forward contract program: (1) to offset any foreign exchange currency
risk associated with cash receipts expected to be received from the Company’s
customers over the next 30-day period and (2) to offset the impact of foreign
currency exchange on the Company’s net monetary assets denominated in currencies
other than the functional currency of the legal entity. These forward contracts
typically mature within 30 days of execution.
The
changes in fair value of the foreign currency forward contracts intended to
offset foreign currency exchange risk on forecasted cash flows and net monetary
assets are recorded as gains or losses in the Company’s statement of operations
in the period of change, because they do not meet the criteria of ASC topic 815,
Derivatives and Hedging
(formerly SFAS No. 133, Accounting for Derivative
Instruments and Hedging Activities), to be treated as hedges for
accounting purposes.
The
following table sets forth the effect of the Company’s foreign currency forward
contracts recorded as marketing and selling expenses in the Company’s statements
of operations during the years ended December 31, 2009, 2008 and 2007 (in
thousands):
|
Net
Gain (Loss) Recorded in Operating Expenses
|
|||||||
|
Derivatives
Not Designated as Hedging Instruments under ASC Topic 815
|
2009
|
2008
|
2007
|
||||
|
Foreign
currency forward contracts
|
$1,416
|
($984)
|
$1,308
|
||||
79
At
December 31, 2009 and 2008, the Company had foreign currency forward contracts
outstanding with notional values of $46.2 million and $39.7 million,
respectively, as hedges against forecasted foreign currency denominated
receivables, payables and cash balances. The following tables set forth the
balance sheet location and fair values of the Company’s foreign currency forward
contracts at December 31, 2009 and 2008 (in thousands):
|
Derivatives
Not Designated as Hedging
Instruments
under ASC Topic 815
|
Balance
Sheet Location
|
Fair
Value at
December
31, 2009
|
Fair
Value at
December
31, 2008
|
||||
|
Financial
assets:
|
|||||||
|
Foreign
currency forward contracts
|
Other
current assets
|
$1,162
|
—
|
||||
|
Financial
liabilities:
|
|||||||
|
Foreign
currency forward contracts
|
Accrued
expenses and other current liabilities
|
$546
|
$45
|
See Note
B for additional information on the fair value measurements for all financial
assets and liabilities, including derivative assets and derivative liabilities,
that are measured at fair value on a recurring basis.
|
Q.
|
NET
INCOME (LOSS) PER SHARE
|
The
following table sets forth (in thousands) potential common shares, on a
weighted-average basis, that were considered anti-dilutive securities and
excluded from the Diluted EPS calculations either because the sum of the
exercise price per share and the unrecognized compensation cost per share was
greater than the average market price of the Company’s common stock for the
relevant period, or because they were considered contingently issuable. The
contingently issuable potential common shares result from certain stock options
and restricted stock units granted to the Company’s executive officers that vest
based on performance and market conditions.
|
Year
Ended December 31,
|
|||||
|
2009
|
2008
|
2007
|
|||
|
Options
|
4,308
|
4,121
|
2,816
|
||
|
Warrant
(a)
|
—
|
679
|
1,155
|
||
|
Non-vested
restricted stock and restricted stock units
|
707
|
1,075
|
37
|
||
|
Anti-dilutive
potential common shares
|
5,015
|
5,875
|
4,008
|
||
|
|
(a)
|
In
connection with the acquisition of Softimage Inc. in 1998, the Company
issued a ten-year warrant to purchase 1,155,235 shares of the Company’s
common stock at a price of $47.65 per share. The weighted-average
potential common share amount for 2008 reflects expiration of the warrant
on August 3, 2008.
|
During
periods of net loss, certain potential common shares that would otherwise be
included in the Diluted EPS calculation are excluded because the effect would be
anti-dilutive. The following table sets forth (in thousands) common stock
equivalents that were excluded from the calculation of Diluted EPS due to the
net loss for the relevant period.
|
Year
Ended December 31,
|
|||||
|
2009
|
2008
|
2007
|
|||
|
Options
|
12
|
128
|
445
|
||
|
Non-vested
restricted stock and restricted stock units
|
15
|
11
|
31
|
||
|
Total
anti-dilutive common stock equivalents
|
27
|
139
|
476
|
||
80
|
R.
|
SUPPLEMENTAL
CASH FLOW INFORMATION
|
The
following table reflects supplemental cash flow investing activities related to
the acquisition of MaxT during the year ended December 31, 2009 and a
contingency payment related to the 2005 acquisition of Wizoo Sound Design GmbH
(“Wizoo”) during the year ended December 31, 2007 (in thousands). There were no
supplemental cash flow investing activities during the year ended December 31,
2008.
|
2009
|
2008
|
2007
|
||||||||||||
|
Fair
value of:
|
||||||||||||||
|
Assets
acquired and goodwill
|
$
|
7,332
|
$
|
—
|
$
|
—
|
||||||||
|
Payment
for contingent obligations
|
—
|
—
|
529
|
|||||||||||
|
Liabilities
assumed
|
(2,152
|
)
|
—
|
—
|
||||||||||
|
Total
consideration
|
5,180
|
—
|
529
|
|||||||||||
|
Less:
cash acquired
|
(767
|
)
|
—
|
—
|
||||||||||
|
Net
cash paid for acquisitions
|
$
|
4,413
|
$
|
—
|
$
|
529
|
||||||||
As part
of the purchase agreement for Wizoo, the Company was contingently obligated to
make additional payments to the former shareholders of Wizoo of up to €1.0
million, dependent upon Wizoo achieving certain engineering milestones through
January 2008. During 2007, the final engineering milestone was met and €0.4
million was recorded as additional purchase price and allocated to
goodwill.
Cash paid
for interest was $0.9 million, $0.6 million and $0.5 million for the years ended
December 31, 2009, 2008 and 2007, respectively.
81
|
S.
|
QUARTERLY
RESULTS (UNAUDITED)
|
The
following information has been derived from unaudited consolidated financial
statements that, in the opinion of management, include all normal recurring
adjustments necessary for a fair presentation of such information.
|
(In
thousands, except per share data)
|
Quarters
Ended
|
||||||||
|
2009
|
2008
|
||||||||
|
Dec.
31
|
Sept.
30
|
June
30
|
Mar.
31
|
Dec.
31
|
Sept.
30
|
June
30
|
Mar.
31
|
||
|
Net
revenues
|
$174,679
|
$152,119
|
$150,543
|
$151,629
|
$206,706
|
$217,066
|
$222,863
|
$198,266
|
|
|
Cost
of revenues
|
82,827
|
70,683
|
72,519
|
77,087
|
115,310
|
113,047
|
112,257
|
102,460
|
|
|
Amortization
of intangible assets
|
568
|
519
|
426
|
520
|
753
|
1,249
|
2,270
|
3,254
|
|
|
Restructuring
costs
|
—
|
—
|
—
|
799
|
1,876
|
—
|
—
|
—
|
|
|
Gross
profit
|
91,284
|
80,917
|
77,598
|
73,223
|
88,767
|
102,770
|
108,336
|
92,552
|
|
|
Operating
expenses:
|
|||||||||
|
Research
& development
|
30,015
|
29,262
|
30,661
|
31,051
|
33,291
|
37,825
|
38,972
|
38,510
|
|
|
Marketing
& selling
|
46,121
|
44,705
|
41,994
|
40,781
|
49,511
|
53,638
|
55,259
|
50,327
|
|
|
General
& administrative
|
21,322
|
12,093
|
12,559
|
15,113
|
17,422
|
19,734
|
19,492
|
21,943
|
|
|
Amortization
of intangible assets
|
2,732
|
2,782
|
2,622
|
2,375
|
2,837
|
3,307
|
3,323
|
3,387
|
|
|
Impairment
of goodwill and intangible assets
|
—
|
—
|
—
|
—
|
78,715
|
51,257
|
—
|
—
|
|
|
Restructuring
costs, net
|
9,741
|
7,891
|
5,019
|
4,222
|
21,305
|
2,107
|
937
|
1,063
|
|
|
(Gain)
loss on sale of assets
|
(3,553)
|
3,398
|
—
|
—
|
(13,287)
|
—
|
—
|
—
|
|
|
Total
operating expenses
|
106,378
|
100,131
|
92,855
|
93,542
|
189,794
|
167,868
|
117,983
|
115,230
|
|
|
Operating
loss
|
(15,094)
|
(19,214)
|
(15,257)
|
(20,319)
|
(101,027)
|
(65,098)
|
(9,647)
|
(22,678)
|
|
|
Other
income (expense), net
|
(94)
|
(240)
|
58
|
153
|
331
|
507
|
617
|
1,481
|
|
|
Loss
before income taxes
|
(15,188)
|
(19,454)
|
(15,199)
|
(20,166)
|
(100,696)
|
(64,591)
|
(9,030)
|
(21,197)
|
|
|
Provision
for (benefit from) income taxes, net
|
2,733
|
(2,246)
|
750
|
(2,889)
|
(443)
|
1,800
|
1,355
|
(49)
|
|
|
Net
loss
|
($17,921)
|
($17,208)
|
($15,949)
|
($17,277)
|
($100,253)
|
($66,391)
|
($10,385)
|
($21,148)
|
|
|
Net
loss per share – basic and diluted
|
($0.48)
|
($0.46)
|
($0.43)
|
($0.47)
|
($2.71)
|
($1.80)
|
($0.28)
|
($0.54)
|
|
|
Weighted-average
common shares outstanding – basic and diluted
|
37,415
|
37,341
|
37,282
|
37,130
|
37,012
|
36,960
|
36,904
|
39,362
|
|
|
High
common stock price
|
$15.42
|
$15.29
|
$15.48
|
$12.18
|
$25.00
|
$29.91
|
$25.61
|
$28.38
|
|
|
Low
common stock price
|
$11.52
|
$10.81
|
$9.00
|
$8.40
|
$9.68
|
$16.60
|
$16.97
|
$17.61
|
|
The
Company's quarterly operating results fluctuate as a result of a number of
factors including, without limitation, the timing of new product introductions;
the timing of, and costs incurred in association with, the recognition of large
enterprise sales to customers; marketing expenditures; promotional programs; and
periodic discounting due to competitive factors.
|
T.
|
SUBSEQUENT
EVENT
|
On
January 5, 2010, the Company acquired all the outstanding shares of Blue Order
Solutions AG (“Blue Order”) for approximately $16 million, which is subject to
adjustment. Blue Order is headquartered in Germany and is a global provider of
workflow and media asset management solutions.
82
Not
applicable.
Our
management, with the participation of our chief executive officer and chief
financial officer, evaluated the effectiveness of our disclosure controls and
procedures as of December 31, 2009. The term “disclosure controls and
procedures,” as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act,
means controls and other procedures of a company that are designed to ensure
that information required to be disclosed by a company in the reports that it
files or submits under the Exchange Act is recorded, processed, summarized and
reported within the time periods specified in the SEC's rules and forms.
Disclosure controls and procedures include, without limitation, controls and
procedures designed to ensure that information required to be disclosed by a
company in the reports that it files or submits under the Exchange Act is
accumulated and communicated to the company’s management, including its
principal executive and principal financial officers, as appropriate, to allow
timely decisions regarding required disclosure. Management recognizes that any
controls and procedures, no matter how well designed and operated, can provide
only reasonable assurance of achieving their objectives and management
necessarily applies its judgment in evaluating the cost-benefit relationship of
possible controls and procedures. Based on the evaluation of our disclosure
controls and procedures as of December 31, 2009, our chief executive officer and
chief financial officer concluded that, as of such date, our disclosure controls
and procedures were effective at the reasonable assurance level.
Management’s
report on our internal control over financial reporting (as defined in Rules
13a-15(f) and 15d-15(f) under the Exchange Act) and the independent registered
public accounting firm’s related audit report are included in Item 8 of this
Form 10-K and are incorporated herein by reference.
During
the fourth quarter of 2009, we changed our internal controls over financial
reporting by implementing the remediation steps noted below in order to address
a material weakness identified in connection with our assessment of internal
controls over financial reporting for the quarterly period ended September 30,
2009. The changes in internal controls over financial reporting made during the
fourth quarter of 2009 included steps to ensure employees involved in the sales,
order processing, shipping and accounting functions receive additional training
concerning shipping terms and the appropriate recognition of revenue, as well as
the implementation of additional monthly review procedures and monitoring
controls to ensure that customer-approved purchase order shipping terms are
noted and properly applied during the processes for shipping, invoicing and
recognizing revenue.
With the
exception of the items noted above, we made no other changes in our internal
control over financial reporting during the fiscal quarter ended December 31,
2009 that have materially affected, or are reasonably likely to materially
affect, our internal control over financial reporting.
Not
applicable.
83
PART
III
|
|
|
ITEM
10.
|
DIRECTORS,
EXECUTIVE OFFICERS AND CORPORATE
GOVERNANCE
|
We have
adopted a Code of Business Conduct and Ethics applicable to all our employees,
including our principal executive officer, principal financial officer and
principal accounting officer. We will provide any person, without charge, with a
copy of our Code of Business Conduct and Ethics upon written request to Avid,
One Park West, Tewksbury, MA 01876, Attention: Corporate Secretary. Our Code of
Business Conduct and Ethics is also available in the Investor Relations section
of our website at www.avid.com.
If we ever were to amend or waive any provision of our Code of Business Conduct
and Ethics that applies to our principal executive officer, principal financial
officer, principal accounting officer or any person performing similar
functions, we intend to satisfy our disclosure obligations with respect to any
such waiver or amendment by posting such information on our Internet website set
forth above rather than by filing a Form 8-K.
The
remainder of the response to this item is contained in our Proxy Statement for
our 2010 Annual Meeting of Stockholders, or the 2010 Proxy Statement, under the
captions “Directors,” “Executive Officers,” “Section 16(a) Beneficial Ownership
Reporting Compliance,” and “Board Committees,” all of which is incorporated
herein by reference.
The
response to this item is contained in our 2010 Proxy Statement under the
captions “Director Compensation,” “Executive Compensation” and “Compensation
Committee Interlocks and Insider Participation” and is incorporated herein by
reference.
|
SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED
STOCKHOLDER MATTERS
|
The
response to this item is contained in our 2010 Proxy Statement under the caption
“Security Ownership of Certain Beneficial Owners and Management” and is
incorporated herein by reference.
The
disclosures required for securities authorized for issuance under equity
compensation plans are contained in the 2010 Proxy Statement under the caption
“Equity Compensation Plan Information” and are incorporated herein by
reference.
The
response to this item is contained in our 2010 Proxy Statement under the
captions “Board Committees” and “Related Person Transaction Policy” and is
incorporated herein by reference.
The
response to this item is contained in our 2010 Proxy Statement under the caption
“Independent Registered Public Accounting Firm Fees” and is incorporated herein
by reference.
84
|
(a)
1.
|
FINANCIAL
STATEMENTS
|
The
following consolidated financial statements are included in Item 8:
- Management’s
Report on Internal Control Over Financial Reporting
- Reports
of Independent Registered Public Accounting Firm
- Consolidated
Statements of Operations for the years ended December 31, 2009, 2008 and
2007
- Consolidated
Balance Sheets as of December 31, 2009 and 2008
- Consolidated
Statements of Stockholders' Equity for the years ended December 31, 2009, 2008
and 2007
- Consolidated
Statements of Cash Flows for the years ended December 31, 2009, 2008 and
2007
- Notes
to Consolidated Financial Statements
|
(a)
2.
|
FINANCIAL
STATEMENT SCHEDULE
|
The
following consolidated financial statement schedule is included immediately
following the signature page on
page
F-1:
Schedule
II – Valuation and
Qualifying Accounts
Schedules
other than that listed above have been omitted since the required information is
not present, or not present in amounts sufficient to require submission of the
schedule, or because the information required is included in the consolidated
financial statements or the notes thereto.
|
(a)
3.
|
LISTING
OF EXHIBITS. The list of exhibits, which are filed or furnished
with this report or which are incorporated herein by reference, is set
forth in the Exhibit Index immediately preceding the exhibits and is
incorporated herein by reference.
|
85
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.
AVID
TECHNOLOGY, INC.
(Registrant)
|
By:
|
/s/ Gary G.
Greenfield
|
|
Gary
G. Greenfield
Chairman
of the Board of Directors,
Chief
Executive Officer and President
(Principal
Executive Officer)
|
|
|
Date:
|
March
16, 2010
|
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.
|
By:
|
/s/ Gary G.
Greenfield
|
By:
|
/s/ Ken
Sexton
|
||
|
Gary
G. Greenfield
Chairman
of the Board of Directors,
Chief
Executive Officer and President
(Principal
Executive Officer)
|
Ken
Sexton
Executive
Vice President, Chief Financial Officer
and
Chief Administrative Officer
(Principal
Financial and Accounting Officer)
|
||||
|
Date:
|
March
16, 2010
|
Date:
|
March
16, 2010
|
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.
|
NAME
|
TITLE
|
DATE
|
||
|
/s/ Gary G.
Greenfield
|
||||
|
Gary
G. Greenfield
|
Director
|
March
16, 2010
|
||
|
/s/ Robert M.
Bakish
|
||||
|
Robert
M. Bakish
|
Director
|
March
12, 2010
|
||
|
/s/ George H.
Billings
|
||||
|
George
H. Billings
|
Director
|
March
16, 2010
|
||
|
/s/ Elizabeth M.
Daley
|
||||
|
Elizabeth
M. Daley
|
Director
|
March
16, 2010
|
||
|
/s/ Nancy
Hawthorne
|
||||
|
Nancy
Hawthorne
|
Director
|
March
16, 2010
|
||
|
/s/ Louis Hernandez,
Jr.
|
||||
|
Louis
Hernandez, Jr.
|
Director
|
March
16, 2010
|
||
|
/s/ Youngme E. Moon
|
||||
|
Youngme
E. Moon
|
Director
|
March
16, 2010
|
||
|
/s/ David B.
Mullen
|
||||
|
David
B. Mullen
|
Director
|
March
16, 2010
|
||
|
/s/ John H.
Park
|
||||
|
John
H. Park
|
Director
|
March
16, 2010
|
86
AVID
TECHNOLOGY, INC.
Years
ended December 31, 2009, 2008 and 2007
(in
thousands)
|
Additions
|
|||||||||||||
|
Description
|
Balance
at
beginning
of
period
|
Charged
to
costs
and
expenses
|
Charged
to
other
accounts
|
Deductions
|
Balance
at
end
of
period
|
||||||||
|
Allowance
for doubtful accounts
|
|||||||||||||
|
December
31, 2009
|
$3,504
|
$1,359
|
—
|
($1,644)
|
(a)
|
$3,219
|
|||||||
|
December
31, 2008
|
2,160
|
2,224
|
—
|
(880)
|
(a)
|
3,504
|
|||||||
|
December
31, 2007
|
2,583
|
608
|
—
|
(1,031)
|
(a)
|
2,160
|
|||||||
|
Sales
returns and allowances
|
|||||||||||||
|
December
31, 2009
|
$19,678
|
—
|
$16,110
|
(b)
|
($22,660)
|
(c)
|
$13,128
|
||||||
|
December
31, 2008
|
18,624
|
—
|
34,519
|
(b)
|
(33,465)
|
(c)
|
19,678
|
||||||
|
December
31, 2007
|
19,748
|
—
|
39,771
|
(b)
|
(40,895)
|
(c)
|
18,624
|
||||||
|
Allowance
for transactions with recourse
|
|||||||||||||
|
December
31, 2009
|
$784
|
$571
|
$571
|
(d)
|
($670)
|
(e)
|
$1,256
|
||||||
|
December
31, 2008
|
777
|
359
|
255
|
(d)
|
(607)
|
(e)
|
784
|
||||||
|
December
31, 2007
|
1,514
|
(388)
|
(339)
|
(d)
|
(10)
|
(e)
|
777
|
||||||
|
Deferred
tax asset valuation allowance
|
|||||||||||||
|
December
31, 2009
|
$203,473
|
$967
|
$2,769
|
—
|
$207,209
|
||||||||
|
December
31, 2008
|
140,486
|
19,295
|
43,692
|
—
|
203,473
|
||||||||
|
December
31, 2007
|
138,974
|
8,602
|
—
|
($7,090)
|
140,486
|
||||||||
|
|
(a)
|
Amount
represents write-offs, net of recoveries and foreign exchange gains
(losses).
|
|
|
(b)
|
Provisions
for sales returns and volume rebates are charged directly against
revenues.
|
|
|
(c)
|
Amount
represents credits for returns, volume rebates and
promotions.
|
|
|
(d)
|
A
portion of the provision for transactions with recourse is charged
directly against revenues.
|
|
|
(e)
|
Amount
represents defaults, net of
recoveries.
|
F-1
|
|
EXHIBIT
INDEX
|
|
Incorporated
by Reference
|
||||||||||
|
Exhibit
No.
|
Description
|
Filed
with this Form 10-K
|
Form
or Schedule
|
SEC
Filing
Date
|
SEC
File Number
|
|||||
|
3.1
|
Certificate
of Amendment of the Third Amended and Restated Certificate of
Incorporation of the Registrant
|
8-K
|
July
27, 2005
|
000-21174
|
||||||
|
3.2
|
Third
Amended and Restated Certificate of Incorporation of the
Registrant
|
10-Q
|
November
14, 2005
|
000-21174
|
||||||
|
3.3
|
Amended
and Restated By-Laws of the Registrant, as amended
|
X
|
||||||||
|
4.1
|
Specimen
Certificate representing the Registrant’s Common Stock
|
S-1
|
March
11, 1993*
|
033-57796
|
||||||
|
10.1
|
Lease
between MGI Andover Street, Inc. and the Registrant dated March 21,
1995
|
10-Q
|
May
15, 1995
|
000-21174
|
||||||
|
10.2
|
Amended
and Restated Lease dated June 7, 1996 between MGI One Park West, Inc. and
the Registrant
|
10-Q
|
August
14, 1996
|
000-21174
|
||||||
|
10.3
|
Network
Drive at Northwest Park Office Lease dated as of November 20, 2009
between Avid Technology, Inc. and Netview 5 and 6 LLC (for premises
at 65 Network Drive, Burlington, Massachusetts)
|
8-K
|
November
25, 2009
|
000-21174
|
||||||
|
10.4
|
Network
Drive at Northwest Park Office Lease dated as of November 20, 2009
between Avid Technology, Inc. and Netview 1,2,3,4 & 9 LLC
(for premises at 75 Network Drive, Burlington,
Massachusetts)
|
8-K
|
November
25, 2009
|
000-21174
|
||||||
|
10.5
|
Northwest
Park Lease dated as of November 20, 2009 between Avid
Technology, Inc. and N.W. Building 28 Trust (for premises at 10 North
Avenue, Burlington, Massachusetts)
|
8-K
|
November
25, 2009
|
000-21174
|
||||||
|
#10.6
|
1993
Director Stock Option Plan, as amended
|
10-K
|
February
29, 2008
|
000-21174
|
||||||
|
#10.7
|
1994
Stock Option Plan, as amended
|
S-8
|
October
27, 1995
|
033-98692
|
||||||
|
#10.8
|
Second
Amended and Restated 1996 Employee Stock Purchase Plan, as
amended
|
X
|
||||||||
|
#10.9
|
1997
Stock Option Plan
|
10-K
|
March
27, 1998
|
000-21174
|
||||||
|
#10.10
|
1997
Stock Incentive Plan, as amended
|
10-Q
|
May
14, 1997
|
000-21174
|
||||||
|
#10.11
|
Second
Amended and Restated Non-Qualified Deferred Compensation
Plan
|
10-K
|
February
29, 2008
|
000-21174
|
||||||
|
#10.12
|
1998
Stock Option Plan
|
10-K
|
March
16, 2005
|
000-21174
|
||||||
|
#10.13
|
Amended
and Restated 1999 Stock Option Plan
|
10-K
|
March
16, 2005
|
000-21174
|
||||||
|
#10.14
|
Midiman,
Inc. 2002 Stock Option/Stock Issuance Plan
|
10-Q
|
November
9, 2004
|
000-21174
|
||||||
|
#10.15
|
Amended
and Restated 2005 Stock Incentive Plan
|
10-Q
|
August
7, 2008
|
000-21174
|
||||||
|
#10.16
|
Rules
of the Sibelius Software Limited Enterprise Management Incentive
Scheme
|
10-K
|
March
1, 2007
|
000-21174
|
||||||
|
#10.17
|
Form
of Incentive Stock Option Agreement under the Registrant’s Amended and
Restated 2005 Stock Incentive Plan
|
8-K
|
July
8, 2008
|
000-21174
|
||||||
|
#10.18
|
Form
of Nonstatutory Stock Option Agreement under the Registrant’s Amended and
Restated 2005 Stock Incentive Plan
|
8-K
|
July
8, 2008
|
000-21174
|
||||||
|
#10.19
|
Form
of Nonstatutory Stock Option Agreement for Outside Directors under the
Registrant’s Amended and Restated 2005 Stock Incentive
Plan
|
8-K
|
July
8, 2008
|
000-21174
|
||||||
|
#10.20
|
Form
of Restricted Stock Agreement under the Registrant’s Amended and Restated
2005 Stock Incentive Plan
|
8-K
|
July
8, 2008
|
000-21174
|
||||||
|
#10.21
|
Form
of Restricted Stock Agreement for Outside Directors under the Registrant’s
Amended and Restated 2005 Stock Incentive Plan
|
8-K
|
July
8, 2008
|
000-21174
|
||||||
|
#10.22
|
Form
of Restricted Stock Unit Agreement under the Registrant’s Amended and
Restated 2005 Stock Incentive Plan
|
8-K
|
July
8, 2008
|
000-21174
|
||||||
|
#10.23
|
Form
of Restricted Stock Unit Agreement for Outside Directors under the
Registrant’s Amended and Restated 2005 Stock Incentive
Plan
|
8-K
|
July
8, 2008
|
000-21174
|
||||||
|
#10.24
|
Form
of Stock Option Agreement for UK Employees under the HM Revenue and
Customs Approved Sub-Plan for UK Employees under the Registrant’s Amended
and Restated 2005 Stock Incentive Plan
|
8-K
|
July
8, 2008
|
000-21174
|
||||||
|
#10.25
|
Form
of Nonstatutory
Stock Option Grant Terms and Conditions (under the 1997 Stock Incentive
Plan)
|
8-K
|
February
21, 2007
|
000-21174
|
||||||
|
#10.26
|
Form
of Incentive Stock Option Grant Terms and Conditions (under the 1997 Stock
Incentive Plan)
|
8-K
|
February
21, 2007
|
000-21174
|
||||||
|
#10.27
|
2009
Executive Bonus Plan
|
8-K
|
March
23, 2009
|
000-21174
|
||||||
|
#10.28
|
Executive
Employment Agreement dated December 19, 2007 between the Registrant and
Gary G. Greenfield
|
8-K
|
December 19,
2007
|
000-21174
|
||||||
|
#10.29
|
Nonstatutory
Stock Option Agreement dated December 19, 2007 between the Registrant and
Gary G. Greenfield
|
8-K
|
December 19,
2007
|
000-21174
|
||||||
|
#10.30
|
Restricted
Stock Agreement dated December 19, 2007 between the Registrant and Gary G.
Greenfield
|
8-K
|
December 19,
2007
|
000-21174
|
||||||
|
#10.31
|
Executive
Employment Agreement dated January 21, 2008 between the Registrant and
Kenneth A. Sexton
|
8-K
|
January
22, 2008
|
000-21174
|
||||||
|
#10.32
|
Restricted
Stock Unit Award Agreement dated January 28, 2008 between the Registrant
and Kenneth A. Sexton
|
8-K
|
January
28, 2008
|
000-21174
|
||||||
|
#10.33
|
Nonstatutory
Stock Option Agreement dated January 28, 2008 between the Registrant and
Kenneth A. Sexton
|
8-K
|
January
28, 2008
|
000-21174
|
||||||
|
#10.34
|
Executive
Employment Agreement dated February 6, 2008 between the Registrant and
Kirk E. Arnold
|
10-Q
|
May
9, 2008
|
000-21174
|
||||||
|
#10.35
|
Executive
Employment Agreement dated July 21, 2009 between the Registrant and
Christopher C. Gahagan
|
10-Q
|
November
16, 2009
|
000-21174
|
||||||
|
#10.36
|
Letter
Agreement dated May 29, 2008 between the Registrant and Martin
Vann
|
X
|
||||||||
|
#10.37
|
Form
of Executive Officer Employment Agreement
|
X
|
||||||||
|
21
|
Subsidiaries
of the Registrant
|
X
|
||||||||
|
23.1
|
Consent
of Ernst & Young LLP
|
X
|
||||||||
|
31.1
|
Certification
of Principal Executive Officer pursuant to Rules 13a-14 and 15d-14 under
the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of
the Sarbanes-Oxley Act of 2002
|
X
|
||||||||
|
31.2
|
Certification
of Principal Financial Officer pursuant to Rules 13a-14 and 15d-14 under
the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of
the Sarbanes-Oxley Act of 2002
|
X
|
||||||||
|
32.1
|
Certifications
pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of
the Sarbanes-Oxley Act of 2002
|
X
|
||||||||
__________________________
|
|
#
|
Management
contract or compensatory plan identified pursuant to Item
15(a)3.
|
|
|
*
|
Effective
date of Form
S-1.
|
EXHIBIT
3.3
AMENDED
AND RESTATED
BY-LAWS
OF
AVID
TECHNOLOGY, INC.
(as
amended on February 9, 2010)
ARTICLE 1 -
Stockholders
1.1 Place of
Meetings. All meetings of stockholders shall be held at such
place within or without the State of Delaware as may be designated from time to
time by the Board of Directors or the President or, if not so designated, at the
registered office of the corporation.
1.2 Annual
Meeting. The annual meeting of stockholders for the election
of directors and for the transaction of such other business as may properly be
brought before the meeting shall be held on a date to be fixed by the Board of
Directors or the President (which date shall not be a legal holiday in the place
where the meeting is to be held) at the time and place to be fixed by the Board
of Directors or the President and stated in the notice of the
meeting. If no annual meeting is held in accordance with the
foregoing provisions, the Board of Directors shall cause the meeting to be held
as soon thereafter as convenient. If no annual meeting is held in
accordance with the foregoing provisions, a special meeting may be held in
lieu of the annual meeting, and any action taken at that special meeting shall
have the same effect as if it had been taken at the annual meeting, and in such
case all references in these By-Laws to the annual meeting of the stockholders
shall be deemed to refer to such special meeting.
1.3 Special
Meetings. Special meetings of stockholders may be called at
any time by the Chairman of the Board, the President or by a majority of the
members of the Board of Directors. Business transacted at any special
meeting of stockholders shall be limited to matters relating to the purpose or
purposes stated in the notice of meeting.
1.4 Notice of
Meetings. Except as otherwise provided by law, written notice
of each meeting of stockholders, whether annual or special, shall be given not
less than 10 nor more than 60 days before the date of the meeting to each
stockholder entitled to vote at such meeting. The notices of all
meetings shall state the place, date and hour of the meeting. The
notice of a special meeting shall state, in addition, the purpose or purposes
for which the meeting is called. If mailed, notice is given when
deposited in the United States mail, postage prepaid, directed to the
stockholder at his address as it appears on the records of the
corporation.
1.5 Voting
List. The officer who has charge of the stock ledger of the
corporation shall prepare, at least 10 days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during ordinary
business
hours, for a period of at least 10 days prior to the meeting, at a place within
the city where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time of
the meeting, and may be inspected by any stockholder who is
present.
1.6 Quorum. Except
as otherwise provided by law, the Certificate of Incorporation or these By-Laws,
the holders of a majority of the shares of the capital stock of the corporation
issued and outstanding and entitled to vote at the meeting, present in person or
represented by proxy, shall constitute a quorum for the transaction of
business.
1.7 Adjournments. Any
meeting of stockholders may be adjourned to any other time and to any other
place at which a meeting of stockholders may be held under these By-Laws by the
stockholders present or represented at the meeting and entitled to vote,
although less than a quorum, or, if no stockholder is present, by any
officer entitled to preside at or to act as Secretary of such
meeting. It shall not be necessary to notify any stockholder of
any adjournment of less than 30 days if the time and place of the adjourned
meeting are announced at the meeting at which adjournment is taken, unless after
the adjournment a new record date is fixed for the adjourned
meeting. At the adjourned meeting, the corporation may transact any
business which might have been transacted at the original meeting.
1.8 Voting and
Proxies. Each stockholder shall have one vote for each share
of stock entitled to vote held of record by such stockholder and a proportionate
vote for each fractional share so held, unless otherwise provided in the
Certificate of Incorporation. Each stockholder of record entitled to
vote at a meeting of stockholders, or to express consent or dissent to corporate
action in writing without a meeting, may vote or express such consent or dissent
in person or may authorize another person or persons to vote or act for him by
written proxy executed by the stockholder or his authorized agent and delivered
to the Secretary of the corporation. No such proxy shall be voted or
acted upon after three years from the date of its execution, unless the proxy
expressly provides for a longer period.
1.9 Action at
Meeting. When a quorum is present at any meeting, any matter
other than the election of directors to be voted upon by the stockholders at
such meeting shall be decided by the vote of the holders of shares of stock
having a majority in voting power of the votes cast by the holders of all of the
shares of stock present or represented at the meeting and voting affirmatively
or negatively on such matter (or if there are two or more classes or series of
stock entitled to vote as separate classes, then in the case of each such class
or series, the holders of a majority in voting power of the shares of stock of
that class or series present or represented at the meeting and voting
affirmatively or negatively on such matter), except when a different vote is
required by law, the Certificate of Incorporation or these
By-Laws. Other than in a Contested Election Meeting (as defined
below), when a quorum is present, a nominee for director shall be elected to the
Board of Directors if the votes cast “for” such nominee’s election exceed the
votes cast “against” such nominee’s election (with “abstentions,” “broker
non-votes” and “withheld votes” not counted as a vote “for” or “against” such
nominee’s election). In a Contested Election Meeting, when a quorum is
present, directors shall be elected by a plurality of the votes cast at such
Contested Election Meeting. If directors are to be elected by a
plurality of the votes cast, stockholders shall not be permitted to vote
“against” a nominee. A meeting of stockholders shall be a “Contested
Election Meeting” if there are more persons nominated for election as directors
at such meeting than there are directors to be elected at such meeting,
determined as of the tenth day preceding the date of the corporation’s first
notice to stockholders of such meeting sent pursuant to Section 1.4 of
these By-Laws (the “Determination Date”); provided, however, that if in
accordance with Section 1.10 of these By-Laws stockholders are entitled to
nominate persons for election as director during a period of time that ends
after the otherwise applicable Determination Date, the Determination Date shall
instead be as of the end of such period. No ballot shall be required for any
election unless requested by a stockholder present or represented at the meeting
and entitled to vote in the election.
1.10 Introduction of Business at
Meeting. Except as otherwise provided by law, at any annual or
special meeting of stockholders only such business shall be conducted as shall
have been properly brought before the meeting. In order to be
properly brought before the meeting, such business must have been either (A)
specified in the written notice of the meeting (or any supplement thereto) given
to stockholders of record on the record date for such meeting by or at the
direction of the Board of Directors, (B) brought before the meeting at the
direction of the Board of Directors or the chairman of the meeting or (C)
specified in a written notice given by or on behalf of a stockholder of record
on the record date for such meeting entitled to vote thereat or a duly
authorized proxy for such stockholder, in accordance with all of the following
requirements. A notice referred to in clause (C) hereof must be
delivered personally to or mailed to and received at the principal executive
office of the corporation, addressed to the attention of the Secretary, not more
than ten (10) days after the date of the initial notice referred to in clause
(A) hereof, in the case of business to be brought before a special meeting of
stockholders, and not less than thirty (30) days prior to the first anniversary
date of the initial notice referred to in clause (A) hereof to the previous
year's annual meeting, in the case of business to be brought before an annual
meeting of stockholders, provided, however, that such notice shall not be
required to be given more than sixty (60) days prior to an annual meeting of
stockholders. Such notice referred to in clause (C) hereof shall set
forth (i) a full description of each such item of business proposed to be
brought before the meeting, (ii) the name and address of the person proposing to
bring such business before the meeting, (iii) the class number of shares held of
record, held beneficially and represented by proxy by such person as of the
record date for meeting (if such date has been made publicly available) and as
of the date of such notice, (iv) if any item of such business involves
nomination for director, all information regarding each such nominee that would
be required to be set forth in a definitive proxy statement filed with the
Securities Exchange Commission pursuant to Section 14 of the Securities Exchange
Act of 1934, as amended, or any successor thereto, and the written consent of
each such nominee to serve if elected, and (v) all other information that would
be required to be filed with the Securities and Exchange Commission if, with
respect to the business proposed to be brought before the meeting, the person
proposing such business was a participant in a solicitation subject to Section
14 of the Securities Exchange Act of 1934, as amended, or any successor
thereto. No business shall be brought before any meeting of
stockholders of the Corporation otherwise than as provided in this
paragraph.
Notwithstanding the foregoing
provisions, the Board of Directors shall be obligated to include information as
to any nominee for director in any proxy statement or other communication sent
to stockholders.
The chairman of the meeting may, if the
facts warrant, determine and declare to the meeting that any proposed item of
business was not brought before the meeting in accordance with the foregoing
procedure and, if he should so determine, he shall so declare to the meeting and
the defective item of business shall be disregarded.
1.11 Action without
Meeting. Until the closing of a firm commitment, underwritten
public offering of the corporation's Common Stock (a “Public Offering”), any
action required or permitted to be taken at any annual or special meeting of
stockholders of the corporation may be taken without a meeting, without prior
notice and without a vote, if a consent in writing, setting forth the action so
taken, is signed by the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or take such action
at a meeting at which all shares entitled to vote on such action were present
and voted. Prompt notice of the taking of corporate action without a
meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing. Effective upon the
closing of a Public Offering, stockholders of the corporation may not take any
action by written consent in lieu of a meeting. Notwithstanding any
other provision of law, the Certificate of Incorporation, as amended, or these
By-laws, and notwithstanding the fact that a lesser percentage may be specified
by law, the affirmative vote of the holders of at least sixty-six and two-thirds
per cent (66 2/3%) of the votes which all the stockholders would be entitled to
case at any annual election or directors or class of directors shall be required
to amend or repeal, or to adopt any provision inconsistent with, this Section
1.11.
ARTICLE 2 -
Directors
2.1 General
Powers. The business and affairs of the corporation shall be
managed by or under the direction of a Board of Directors, who may exercise all
of the powers of the corporation except as otherwise provided by law or the
Certificate of Incorporation. In the event of a vacancy in the Board
of Directors, the remaining directors, except as otherwise provided by law, may
exercise the powers of the full Board until the vacancy is filled.
2.2 Number; Election and
Qualification. The number of directors which shall constitute
the whole Board of Directors shall be determined by resolution of the
stockholders or the Board of Directors, but in no event shall be less than
three. The number of directors may be decreased at any time and from
time to time either by the stockholders or by a majority of the directors then
in office, but only to eliminate vacancies existing by reason of the death,
resignation, removal or expiration of the term of one or more
directors. The number of directors may be increased at any time and
from time to time by a majority of the directors then in office. The
directors shall be elected at the annual meeting of stockholders by such
stockholders as have the right to vote on such election. Directors
need not be stockholders of the corporation.
2.3 Classes of
Directors. The Board of Directors shall be and is divided into
three classes: Class I, Class II and Class III. No one
class shall have more than one director more than any other class. If
a fraction is contained in the quotient arrived at by dividing the authorized
number of directors by three, then if such fraction is one-third, the extra
director shall be a member of Class III and, if such fraction is two thirds, one
of the extra directors shall be a member of Class I and the other extra director
shall be a member of Class II, unless otherwise provided for from time to time
by resolution adopted by a majority of the Board of Directors.
2.4 Terms in
Office. Each director shall serve for a term ending on the
date of the third annual meeting following the annual meeting at which such
director was elected; provided, however, that each initial director in Class I
shall serve for a term ending on the date of the annual meeting next following
the end of the Corporation's fiscal year ending December 31, 1993; each initial
director in Class II shall serve for a term ending on the date of the annual
meeting next following the end of the Corporation's fiscal year ending December
31, 1994; and each initial director in Class III shall serve for a term ending
on the date of the annual meeting next following the end of the Corporation's
fiscal year ending December 31, 1995.
2.5 Allocation of Directors
Among Classes in the Event of Increases or Decreases in the Number of
Directors. In the event of any increase or decrease in the
authorized number of directors, (i) each director then serving as such shall
nevertheless continue as director of the class of which he is a member until the
expiration of his current term or his prior death, retirement or resignation and
(ii) the newly created or eliminated directorships resulting from such increase
or decrease shall be apportioned by the Board of Directors among the three
classes of directors so as to ensure that no one class has more than one
director more than any other class. To the extent possible,
consistent with the foregoing rule, any newly created directorships shall be
added to those classes whose terms of office are to expire at the latest dates
following such allocation, and any newly eliminated directorships shall be
subtracted from those classes whose terms of office are to expire at the
earliest dates following such allocation, unless otherwise provided for from
time to time by resolution adopted by a majority of the directors then in
office, although less than a quorum.
2.6 Tenure. Notwithstanding
any provisions to the contrary contained herein, each director shall hold office
until the next annual meeting and until his successor is elected and qualified,
or until his earlier death, resignation or removal.
2.7
Vacancies. Unless
and until filled by the stockholders, any vacancy in the Board of Directors,
however occurring, including a vacancy resulting from an enlargement of the
Board, may be filled by vote of a majority of the directors then in office,
although less than a quorum, or by a sole remaining director. A
director elected to fill a vacancy shall be elected for the unexpired term of
his predecessor in office, and a director chosen to fill a position resulting
from an increase in the number of directors shall hold office until the annual
meeting of stockholders at which the terms of the other directors of the same
class as the director chosen to fill such position expire and until his
successor is elected and qualified, or until his earlier death, resignation or
removal.
2.8
Resignation. Any
director may resign by delivering his written resignation to the corporation at
its principal office or to the President or Secretary. Such
resignation shall be effective upon receipt unless it is specified to be
effective at some other time or upon the happening of some other
event.
2.9
Regular
Meetings. Regular meetings of the Board of Directors may be
held without notice at such time and place, either within or without the State
of Delaware, as shall be determined from time to time by the Board of Directors;
provided that any director who is absent when such a determination is made shall
be given notice of the determination. A regular meeting of the Board
of Directors may be held without notice immediately after and at the same place
as the annual meeting of stockholders.
2.10.
Special
Meetings. Special meetings of the Board of Directors may be
held at any time and place, within or without the State of Delaware, designated
in a call by the Chairman of the Board, President, two or more directors, or by
one director in the event that there is only a single director in
office.
2.11
Notice of Special
Meetings. Notice of any special meeting of directors shall be
given to each director by the Secretary or by the officer or one of the
directors calling the meeting. Notice shall be duly given to each
director (i) by giving notice to such director in person or by telephone at
least 48 hours in advance of the meeting, (ii) by sending a telegram or telex,
or delivering written notice by hand, to his last known business or home address
at least 48 hours in advance of the meeting, or (iii) by mailing written notice
to his last known business or home address at least 72 hours in advance of the
meeting. A notice or waiver of notice of a meeting of the Board of
Directors need not specify the purposes of the meeting.
2.12 Meetings by Telephone
Conference Calls. Directors or any members of any committee
designated by the directors may participate in a meeting of the Board of
Directors or such committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation by such means shall constitute
presence in person at such meeting.
2.13 Quorum. A
majority of the total number of the whole Board of Directors shall constitute a
quorum at all meetings of the Board of Directors. In the event one or
more of the directors shall be disqualified to vote at any meeting, then the
required quorum shall be reduced by one for each such director so
disqualified; provided, however, that in no case shall less than one-third
(1/3) of the number so fixed constitute a quorum. In the absence of a
quorum at any such meeting, a majority of the directors present may adjourn the
meeting from time to time without further notice other than announcement at the
meeting, until a quorum shall be present.
2.14 Action at
Meeting. At any meeting of the Board of Directors at which a
quorum is present, the vote of a majority of those present shall be sufficient
to take any action, unless a different vote is specified by law, the Certificate
of Incorporation or these By-Laws.
2.15 Action by
Consent. Any action required or permitted to be taken at any
meeting of the Board of Directors or of any committee of the Board of Directors
may be taken without a meeting, if all members of the Board or committee, as the
case may be, consent to the action in writing, and the written consents are
filed with the minutes of proceedings of the Board or committee.
2.16 Removal. Except
as otherwise provided by the General Corporation Law of Delaware, any one or
more or all of the directors may be removed, with or without cause, by the
holders of a majority of the shares then entitled to vote at an election of
directors, except that the directors elected by the holders of a particular
class or series of stock may be removed without cause only by vote of the
holders of a majority of the outstanding shares of such class or
series.
2.17 Committees. The
Board of Directors may, by resolution passed by a majority of the whole Board,
designate one or more committees, each committee to consist of one or more of
the directors of the corporation. The Board may designate one or more
directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. In the absence
or disqualification of a member of a committee, the member or members of the
committee present at any meeting and not disqualified from voting, whether or
not he or they constitute a quorum, may unanimously appoint another member of
the Board of Directors to act at the meeting in the place of any such absent or
disqualified member. Any such committee, to the extent provided in
the resolution of the Board of Directors and subject to the provisions of the
General Corporation Law of the State of Delaware, shall have and may
exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the corporation and may authorize the
seal of the corporation to be affixed to all papers which may require
it. Each such committee shall keep minutes and make such reports as
the Board of Directors may from time to time request. Except as the Board of
Directors may otherwise determine, any committee may make rules for the conduct
of its business, but unless otherwise provided by the directors or in such
rules, its business shall be conducted as nearly as possible in the same manner
as is provided in these By-Laws for the Board of Directors.
2.18 Compensation of
Directors. Directors may be paid such compensation for their
services and such reimbursement for expenses of attendance at meetings as the
Board of Directors may from time to time determine. No such payment
shall preclude any director from serving the corporation or any of its parent or
subsidiary corporations in any other capacity and receiving compensation for
such service.
2.19 Amendments to
Article. Notwithstanding any other provisions of law, the
Certificate of Incorporation or these By-Laws, and notwithstanding the fact that
a lesser percentage may be specified by law, the affirmative vote of the holders
of at least sixty-six and two thirds percent (66 2/3%) of the votes which all
the stockholders would be entitled to cast at any annual election of directors
or class of directors shall be required to amend or repeal, or to adopt any
provision inconsistent with, this Article II.
ARTICLE 3 -
Officers
3.1 Enumeration. The
officers of the corporation shall consist of a President, a Secretary, a
Treasurer and such other officers with such other titles as the Board of
Directors shall determine, including a Chairman of the Board, a Vice-Chairman of
the Board, and one or more Vice Presidents, Assistant Treasurers, and Assistant
Secretaries. The Board of Directors may appoint such other officers
as it may deem appropriate.
3.2 Election. The
President, Treasurer and Secretary shall be elected annually by the Board of
Directors at its first meeting following the annual meeting of
stockholders. Other officers may be appointed by the Board of
Directors at such meeting or at any other meeting.
3.3 Qualification. No
officer need be a stockholder. Any two or more offices may be held by
the same person.
3.4 Tenure. Except
as otherwise provided by law, by the Certificate of Incorporation or by these
By-Laws, each officer shall hold office until his successor is elected and
qualified, unless a different term is specified in the vote choosing or
appointing him, or until his earlier death, resignation or removal.
3.5 Resignation and
Removal. Any officer may resign by delivering his written
resignation to the corporation at its principal office or to the President or
Secretary. Such resignation shall be effective upon receipt unless it
is specified to be effective at some other time or upon the happening of some
other event.
Any officer may be removed at any time,
with or without cause, by vote of a majority of the entire number of directors
then in office.
Except as the Board of Directors may
otherwise determine, no officer who resigns or is removed shall have any right
to any compensation as an officer for any period following his resignation
or removal, or any right to damages on account of such removal, whether his
compensation be by the month or by the year or otherwise, unless such
compensation is expressly provided in a duly authorized written agreement with
the corporation.
3.6 Vacancies. The
Board of Directors may fill any vacancy occurring in any office for any reason
and may, in its discretion, leave unfilled for such period as it may determine
any offices other than those of President, Treasurer and
Secretary. Each such successor shall hold office for the unexpired
term of his predecessor and until his successor is elected and qualified, or
until his earlier death, resignation or removal.
3.7 Chairman of the Board and
Vice-Chairman of the Board. The Board of Directors may appoint
a Chairman of the Board and may designate the Chairman of the Board as Chief
Executive Officer. If the Board of Directors appoints a Chairman of
the Board, he shall perform such duties and possess such powers as are assigned
to him by the Board of Directors. If the Board of Directors appoints
a Vice-Chairman of the Board, he shall, in the absence or disability of the
Chairman of the Board, perform the duties and exercise the powers of the
Chairman of the Board and shall perform such other, duties and possess such
other powers as may from time to time be vested in him by the Board of
Directors.
3.8 President. The
President shall, subject to the direction of the Board of Directors, have
general charge and supervision of the business of the
corporation. Unless otherwise provided by the Board of Directors, he
shall preside at all meetings of the stockholders and, if he is a director, at
all meetings of the Board of Directors. Unless the Board of Directors
has designated the Chairman of the Board or another officer as Chief Executive
Officer, the President shall be the Chief Executive Officer of the corporation.
The President shall perform such other duties and shall have such other powers
as the Board of Directors may from time to time prescribe.
3.9 Vice
Presidents. Any Vice President shall perform such duties and
possess such powers as the Board of Directors or the President may from time to
time prescribe. In the event of the absence, inability or refusal to
act of the President, the Vice President (or if there shall be more than one,
the Vice Presidents in the order determined by the Board of Directors) shall
perform the duties of the President and when so performing shall have all the
powers of and be subject to all the restrictions upon the
President. The Board of Directors may assign to any Vice
President the title of Executive Vice President, Senior Vice President or
any other title selected by the Board of Directors.
3.10 Secretary and Assistant
Secretaries. The Secretary shall perform such duties and shall
have such powers as the Board of Directors or the President may from time to
time prescribe. In addition, the Secretary shall perform such duties
and have such powers as are incident to the office of the secretary, including
without limitation the duty and power to give notices of all meetings of
stockholders and special meetings of the Board of Directors, to attend all
meetings of stockholders and the Board of Directors and keep a record of the
proceedings, to maintain a stock ledger and prepare lists of stockholders and
their addresses as required, to be custodian of corporate records and the
corporate seal and to affix and attest to the same on documents.
Any Assistant Secretary shall perform
such duties and possess such powers as the Board of Directors, the President or
the Secretary may from time to time prescribe. In the event of the
absence, inability or refusal to act of the Secretary, the Assistant Secretary,
(or if there shall be more than one, the Assistant Secretaries in the order
determined by the Board of Directors) shall perform the duties and exercise the
powers of the Secretary.
In the absence of the Secretary or any
Assistant Secretary at any meeting of stockholders or directors, the person
presiding at the meeting shall designate a temporary secretary to keep a record
of the meeting.
3.11 Treasurer and Assistant
Treasurers. The Treasurer shall perform such duties and shall
have such powers as may from time to time be assigned to him by the Board of
Directors or the President. In addition, the Treasurer shall perform
such duties and have such powers as are incident to the office of treasurer,
including without limitation the duty and power to keep and be responsible for
all funds and securities of the corporation, to deposit funds of the corporation
in depositories selected in accordance with these By-Laws, to disburse such
funds as ordered by the Board of Directors, to make proper accounts of such
funds, and to render as required by the Board of Directors statements of all
such transactions and of the financial condition of the
corporation.
The Assistant Treasurers shall perform
such duties and possess such powers as the Board of Directors, the President or
the Treasurer may from time to time prescribe. In the event of the
absence, inability or refusal to act of the Treasurer, the Assistant Treasurer,
(or if there shall be more than one, the Assistant Treasurers in the order
determined by the Board of Directors) shall perform the duties and exercise the
powers of the Treasurer.
3.12 Salaries. Officers
of the corporation shall be entitled to such salaries, compensation or
reimbursement as shall be fixed or allowed from time to time by the Board of
Directors.
ARTICLE 4 - Capital
Stock
4.1 Issuance of
Stock. Unless otherwise voted by the stockholders and subject
to the provisions of the Certificate of Incorporation, the whole or any part of
any unissued balance of the authorized capital stock of the corporation or the
whole or any part of any unissued balance of the authorized capital stock of the
corporation held in its treasury may be issued, sold, transferred or otherwise
disposed of by vote of the Board of Directors in such manner, for such
consideration and on such terms as the Board of Directors may
determine.
4.2 Certificates of
Stock. Every holder of stock of the corporation shall be
entitled to have a certificate, in such form as may be prescribed by law and by
the Board of Directors, certifying the number and class of shares owned by him
in the corporation. Each such certificate shall be signed by, or in
the name of the corporation by, the Chairman or Vice-Chairman, if any, of the
Board of Directors, or the President or a Vice President, and the Treasurer or
an Assistant Treasurer, or the Secretary or an Assistant Secretary of the
corporation. Any or all of the signatures on the certificate may be a
facsimile.
Each certificate for shares of stock
which are subject to any restriction on transfer pursuant to the Certificate of
Incorporation, the By-Laws, applicable securities laws or any agreement
among any number of shareholders or among such holders and the corporation shall
have conspicuously noted on the face or back of the certificate either the full
text of the restriction or a statement of the existence of such
restriction.
4.3 Transfers. Except
as otherwise established by rules and regulations adopted by the Board of
Directors, and subject to applicable law, shares of stock may be transferred on
the books of the corporation by the surrender to the corporation or its
transfer agent of the certificate representing such shares properly
endorsed or accompanied by a written assignment or power of attorney properly
executed, and with such proof of authority or the authenticity of signature as
the corporation or its transfer agent may reasonably require. Except
as may be otherwise required by law, by the Certificate of Incorporation or by
these By-Laws, the corporation shall be entitled to treat the record holder of
stock as shown on its books as the owner of such stock for all purposes,
including the payment of dividends and the right to vote with respect to such
stock, regardless of any transfer, pledge or other disposition of such stock
until the shares have been transferred on the books of the corporation in
accordance with the requirements of these By-Laws.
4.4 Lost, Stolen or Destroyed
Certificates. The corporation may issue a new certificate of
stock in place of any previously issued certificate alleged to have been lost,
stolen, or destroyed, upon such terms and conditions as the Board of Directors
may prescribe, including the presentation of reasonable evidence of such loss,
theft or destruction and the giving of such indemnity as the Board of Directors
may require for the protection of the corporation or any transfer agent or
registrar.
4.5 Record
Date. The Board of Directors may fix in advance a date as a
record date for the determination of the stockholders entitled to notice of or
to vote at any meeting of stockholders or to express consent (or dissent) to
corporate action in writing without a meeting, or entitled to receive payment of
any dividend or other distribution or allotment of any rights in respect of any
change, conversion or exchange of stock, or for the purpose of any other lawful
action. Such record date shall not be more than 60 nor less than 10
days before the date of such meeting, nor more than 60 days prior to any other
action to which such record date relates.
If no record date is fixed, the record
date for determining stockholders entitled to notice of or to vote at a meeting
of stockholders shall be at the close of business on the day before the day on
which notice is given, or, if notice is waived, at the close of business on the
day before the day on which the meeting is held. The record date for
determining stockholders entitled to express consent to corporate action in
writing without a meeting, when no prior action by the Board of Directors is
necessary, shall be the day on which the first written consent is expressed. The
record date for determining stockholders for any other purpose shall be at the
close of business on the day on which the Board of Directors adopts the
resolution relating to such purpose.
A determination of stockholders of
record entitled to notice of or to vote at a meeting of stockholders shall apply
to any adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
ARTICLE 5 - General
Provisions
5.1 Fiscal
Year. Except as from time to time otherwise designated by the
Board of Directors, the fiscal year of the corporation shall begin on the first
day of January in each year and end on the last day of December in each
year.
5.2 Corporate
Seal. The corporate seal shall be in such form as shall be
approved by the Board of Directors.
5.3 Waiver of
Notice. Whenever any notice whatsoever is required to be given
by law, by the Certificate of Incorporation or by these By-Laws, a waiver of
such notice either in writing signed by the person entitled to such notice or
such person's duly authorized attorney, or by telegraph, cable or any other
available method, whether before, at or after the time stated in such waiver, or
the appearance of such person or persons at such meeting in person or by proxy,
shall be deemed equivalent to such notice.
5.4 Voting of
Securities. Except as the directors may otherwise designate,
the President or Treasurer may waive notice of, and act as, or appoint any
person or persons to act as, proxy or attorney-in-fact for this corporation
(with or without power of substitution) at, any meeting of stockholders or
shareholders of any other corporation or organization, the securities of which
may be held by this corporation.
5.5 Evidence of
Authority. A certificate by the Secretary, or an Assistant
Secretary, or a temporary Secretary, as to any action taken by the stockholders,
directors, a committee or any officer or representative of the corporation shall
as to all persons who rely on the certificate in good faith be conclusive
evidence of such action.
5.6 Certificate of
Incorporation. All references in these By-Laws to the
Certificate of Incorporation shall be deemed to refer to the Certificate of
Incorporation of the corporation, as amended and in effect from time to
time.
5.7 Transactions with Interested
Parties. No contract or transaction between the corporation
and one or more of the directors or officers, or between the corporation and any
other corporation, partnership, association, or other organization in which one
or more of the directors or officers are directors or officers, or have a
financial interest, shall be void or voidable solely for this reason, or solely
because the director or officer is present at or participates in the meeting of
the Board of Directors or a committee of the Board of Directors which authorizes
the contract or transaction or solely because his or their votes are counted for
such purpose, if:
(1) The
material facts as to his relationship or interest and as to the contract or
transaction are disclosed or are known to the Board of Directors or the
committee, and the Board or committee in good faith authorizes the contract or
transaction by the affirmative votes of a majority of the disinterested
directors, even though the disinterested directors be less than a
quorum;
(2) The
material facts as to his relationship or interest and as to the contract or
transaction are disclosed or are known to the stockholders entitled to vote
thereon, and the contract or transaction is specifically approved in good faith
by vote of the stockholders; or
(3) The
contract or transaction is fair as to the corporation as of the time it is
authorized, approved or ratified, by the Board of Directors, a committee of the
Board of Directors, or the stockholders.
Common or interested directors may be
counted in determining the presence of a quorum at a meeting of the Board of
Directors or of a committee which authorizes the contract or
transaction.
5.8 Severability. Any
determination that any provision of these By-Laws is for any reason
inapplicable, illegal or ineffective shall not affect or invalidate any other
provision of these By-Laws.
5.9 Pronouns. All
pronouns used in these By-Laws shall be deemed to refer to the masculine,
feminine or neuter, singular or plural, as the identity of the person or persons
may require.
ARTICLE 6 -
Amendments
6.1 By the Board of
Directors. Except as otherwise set forth in these By-Laws,
these By-Laws may be altered, amended or repealed or new by-laws may be adopted
by the affirmative vote of a majority of the directors present at any regular or
special meeting of the Board of Directors at which a quorum is
present.
6.2 By the
Stockholders. Except as otherwise set forth in these By-Laws,
these By-Laws may be altered, amended or repealed or new by-laws may be adopted
by the affirmative vote of the holders of a majority of the shares of the
capital stock of the corporation issued and outstanding and entitled to vote at
any regular meeting of stockholders, or at any special meeting of stockholders,
provided notice of such alteration, amendment, repeal or adoption of new by-laws
shall have been stated in the notice of such special meeting.
EXHIBIT
10.8
AVID
TECHNOLOGY, INC.
SECOND
AMENDED AND RESTATED
1996
EMPLOYEE STOCK PURCHASE PLAN
(as
amended on August 12, 2008 and December 15, 2009)
The
purpose of this Second Amended and Restated 1996 Employee Stock Purchase Plan
(the "Plan") is to provide eligible employees of Avid Technology, Inc. (the
"Company") and certain of its subsidiaries with opportunities to purchase shares
of the Company's common stock, $0.01 par value per share (the "Common Stock"),
commencing on August 1, 1996. An aggregate of Two Million Five
Hundred Thousand (2,500,000) shares of Common Stock have been approved for this
purpose. This Plan is intended to qualify as an "employee stock
purchase plan" as defined in Section 423 of the Internal Revenue Code of 1986,
as amended, and the regulations promulgated thereunder (the "Code"), and shall
be interpreted consistent therewith.
1. Administration. The
Plan will be administered by the Company's Board of Directors (the "Board") or
by a Committee appointed by the Board (the "Committee"). The Board or
the Committee has authority to make rules and regulations for the administration
of the Plan and its interpretation and decisions with regard thereto shall be
final and conclusive.
2. Eligibility. Participation
in the Plan will neither be permitted nor denied contrary to the requirements of
Section 423 of the Code. All employees of the Company, including
members of the Board who are employees, and all employees of any subsidiary of
the Company (as defined in Section 424(f) of the Code) unless the Board or the
Committee specifies otherwise (each subsidiary participating in the Plan is
referred to herein as a "Participating Subsidiary"), are eligible to participate
in any one or more of the offerings of Options (as defined in Section 9) to
purchase Common Stock under the Plan provided that:
(a) they
are regularly employed by the Company or a Participating Subsidiary for more
than twenty (20) hours per week and for more than five (5) months in a calendar
year; and
(b) they
have been employed by the Company or a Participating Subsidiary for at least two
(2) weeks prior to enrolling in the Plan; and
(c) they
are employees of the Company or a Participating Subsidiary on the first day of
the applicable Plan Period (as defined below).
No
employee may be granted an Option hereunder if such employee, immediately after
the Option is granted, would own five percent (5%) or more of the total
combined voting power or value of the stock of the Company or any
subsidiary. For purposes of the preceding sentence, the attribution
rules of Section 424(d) of the Code shall apply in determining the stock
ownership of an employee, and all stock which the employee has a contractual
right to purchase shall be treated as stock owned by the employee.
3. Offerings. The
Company will make offerings ("Offerings") to employees to purchase Common Stock
under this Plan. Offerings will begin each February 1, May 1, August
1 and November 1, or the first business day thereafter (the "Offering
Commencement Dates"). Each Offering Commencement Date will begin a
three (3) month period (a "Plan Period") during which payroll deductions will be
made and held for the purchase of Common Stock at the end of the Plan
Period. The Board or the Committee may, at its discretion, choose a
different Plan Period of twelve (12) months or fewer.
4. Participation. An
employee eligible on the Offering Commencement Date of any Offering may
participate in such Offering by completing and forwarding a payroll deduction
authorization form to the employee's appropriate payroll office at least seven
(7) days prior to the applicable Offering Commencement
Date. The form will authorize a regular payroll deduction from
the Compensation (as defined below) received by the employee during the Plan
Period. Unless an employee files a new form or withdraws from the
Plan, his or her deductions and purchases will continue at the same rate for
future Offerings under the Plan as long as the Plan remains in
effect. The term "Compensation" means the amount of money reportable
on the employee's Federal Income Tax Withholding Statement, excluding overtime,
shift premium, incentive or bonus awards, allowances and reimbursements for
expenses such as relocation allowances for travel expenses, income or gains on
the exercise of Company stock options or stock appreciation rights, and similar
items, whether or not shown on the employee's Federal Income Tax Withholding
Statement, but including, in the case of salespersons, sales commissions to the
extent determined by the Board or the Committee.
5. Deductions.
The
Company will maintain payroll deduction accounts for all participating
employees. With respect to any Offering made under this Plan, an
employee may authorize a payroll deduction in any dollar amount up to a maximum
of ten percent (10%) of the Compensation he or she receives during the Plan
Period or such shorter period during which deductions from payroll are made.
However, the maximum contribution during any Plan Period cannot exceed
$2,500. The Board or the Committee may set a minimum payroll
deduction requirement.
6. Deduction
Changes. An employee may discontinue his or her payroll
deduction once during any Plan Period, by filing a new payroll deduction
authorization form. However, an employee may not decrease or
increase his or her payroll deduction during a Plan Period. If an
employee elects to discontinue his or her payroll deductions during a Plan
Period, but does not elect to withdraw his or her funds pursuant to Section 8
hereof, funds deducted prior to his or her election to discontinue will be
applied to the purchase of Common Stock on the Exercise Date (as defined in
Section 9).
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7. Interest. Interest
will not be paid on any employee accounts, except to the extent that the Board
or the Committee, in its sole discretion, elects to credit employee
accounts with interest at such per annum rate as it may from time to time
determine.
8. Withdrawal
of Funds. An employee may at any time prior to the close of
business on the date fourteen (14) days prior to the last business day in the
then current Plan Period and for any reason permanently draw out the balance
accumulated in the employee's account and thereby withdraw from participation in
an Offering. Partial withdrawals are not permitted. The
employee may not begin participation again during the remainder of the Plan
Period. The employee may participate in any subsequent Offering in
accordance with terms and conditions established by the Board or the
Committee.
9. Purchase
of Shares. On the Offering Commencement Date of each Plan
Period, the Company will grant to each eligible employee who is then a
participant in the Plan an option ("Option") to purchase on the last business
day of such Plan Period (the "Exercise Date") at the applicable Option Price (as
defined below) the largest number of whole shares of Common Stock resulting from
the employee’s accumulated payroll deductions as of the Exercise Date divided by
the Option Price for such Plan Period; provided, however, that no employee may
be granted an Option which permits his or her rights to purchase Common Stock
under this Plan and any other employee stock purchase plan (as defined in
Section 423(b) of the Code) of the Company and its subsidiaries, to accrue at a
rate which exceeds $25,000 of the fair market value of such Common Stock for
each calendar year in which the Option is outstanding at any time.
The
purchase price for each share purchased will be 85% of the closing price of the
Common Stock on the Exercise Date (the "Option Price"). Such closing
price shall be (a) the closing price on the NASDAQ Global Select Market or
other national securities exchange on which the Common Stock is listed, or (b)
the average of the closing bid and asked prices in the over-the-counter market,
whichever is applicable. If no sales of Common Stock were made on
such a day, the price of the Common Stock for purposes of clause (a) above
shall be the reported price for the next preceding day on which sales were
made.
Each
employee who continues to be a participant in the Plan on the Exercise Date
shall be deemed to have exercised his or her Option at the Option Price on such
date and shall be deemed to have purchased from the Company the number of whole
shares of Common Stock reserved for the purpose of the Plan that his or her
accumulated payroll deductions on such date will pay for (but not in excess of
the maximum number determined in the manner set forth above).
Any
balance remaining in an employee's payroll deduction account at the end of a
Plan Period will be automatically refunded to the employee, except that any
balance which is less than the purchase price of one share of Common Stock will
be carried forward into the employee's payroll deduction account for the
following Offering, unless the employee elects not to participate in the
following Offering under the Plan, in which case the balance in the employee's
account shall be refunded.
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10. Holding
Period. Any shares of Common Stock issued to a participating
employee pursuant to this Plan may not be sold, assigned, pledged, encumbered or
otherwise transferred by such employee for a period of three (3) months after
the applicable Exercise Date. By exercising an Option, the employee shall be
deemed to have agreed to these restrictions on the transferability of such
shares.
11. Issuance
of Shares. Promptly following the end of each Offering, the
number of shares of Common Stock purchased under the Plan shall, subject to the
holding period requirement set forth above, be deposited into an account
established in the name of the employee at a stock brokerage or other financial
services firm designated by the Company (the "ESPP Broker").
The
employee may direct, by written notice to the Company at the time during his or
her enrollment in the Plan, that his or her ESPP broker account be established
in the name of the employee and another person of legal age as joint tenants
with rights of survivorship or (in the Company’s sole discretion) in the street
name of a brokerage firm, bank or other nominee holder designated by the
employee.
12. Rights
on Retirement, Death or Termination of Employment. In the
event of a participating employee's termination of employment prior to the last
business day of a Plan Period, no payroll deduction shall be taken from any pay
due and owing to an employee following the effective date of such
termination. The balance in the employee's account shall be paid to
the employee or, in the event of the employee's death, (a) to a beneficiary
previously designated in a revocable notice signed by the employee (with any
spousal consent required under state law), (b) in the absence of such a
designated beneficiary, to the executor or administrator of the employee's
estate, or (c) if no such executor or administrator has been appointed to
the knowledge of the Company, to such other person(s) as the Company may, in its
discretion, designate. If, prior to the last business day of the Plan
Period, the Participating Subsidiary by which an employee is employed shall
cease to be a subsidiary of the Company, or if the employee is transferred to
a subsidiary of the Company that is not a Participating Subsidiary, the
employee shall be deemed to have terminated employment for the purposes of
this Plan.
13. Optionees
Not Stockholders. Neither the granting of an Option to an
employee nor the deductions from his or her pay shall constitute such employee a
stockholder of the shares of Common Stock covered by an Option under this Plan
until such shares have been purchased by and issued to him or her.
14. Rights
Not Transferable. Rights under this Plan are not transferable
by a participating employee other than by will or the laws of descent and
distribution, and are exercisable during the employee's lifetime only by the
employee.
15. Application
of Funds. All funds received or held by the Company under this
Plan may be combined with other corporate funds and may be used for any
corporate purpose.
16. Changes
in Capitalization. In the event of any stock split, reverse
stock split, stock dividend, recapitalization, combination of shares,
reclassification of shares, spin-off or other similar change in capitalization
or event, or any distribution to holders of Common Stock other than an ordinary
cash dividend, (i) the number and class of securities available under this Plan,
(ii) the share limitations set forth in Section 9, and (iii) the Option Price
shall be appropriately adjusted to the extent determined by the Board or the
Committee.
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17. Reorganization
Events. A “Reorganization Event” shall mean: (a)
any merger or consolidation of the Company with or into another entity as a
result of which all of the Common Stock of the Company is converted into or
exchanged for the right to receive cash, securities or other property or is
cancelled, (b) any exchange of all of the Common Stock of the Company for cash,
securities or other property pursuant to a share exchange transaction or (c) any
liquidation or dissolution of the Company.
In
connection with a Reorganization Event, the Board or the Committee shall take
any one or more of the following actions as to outstanding Options on such terms
as the Board or the Committee determines: (i) provide that Options shall be
assumed, or substantially equivalent Options shall be substituted, by the
acquiring or succeeding corporation (or an affiliate thereof), (ii) upon written
notice to employees, provide that all outstanding Options will be terminated as
of the effective date of the Reorganization Event and that all such outstanding
Options will become exercisable to the extent of accumulated payroll deductions
as of a date specified by the Board or the Committee in such notice, which date
shall not be less than ten (10) days preceding the effective date of the
Reorganization Event, (iii) upon written notice to employees, provide that all
outstanding Options will be cancelled as of a date prior to the effective date
of the Reorganization Event and that all accumulated payroll deductions will be
returned to participating employees on such date, (iv) in the event of a
Reorganization Event under the terms of which holders of Common Stock will
receive upon consummation thereof a cash payment for each share surrendered in
the Reorganization Event (the “Acquisition Price”), make or provide for a cash
payment to an employee equal to (A) the Acquisition Price times the number of
shares of Common Stock subject to the employee’s Option (to the extent the
Option Price does not exceed the Acquisition Price) minus (B) the aggregate
Option Price of such Option, in exchange for the termination of such Option, (v)
provide that, in connection with a liquidation or dissolution of the Company,
Options shall convert into the right to receive liquidation proceeds (net of the
Option Price thereof) and (vi) any combination of the foregoing.
For
purposes of clause (i) above, an Option shall be considered assumed if,
following consummation of the Reorganization Event, the Option confers the right
to purchase, for each share of Common Stock subject to the Option immediately
prior to the consummation of the Reorganization Event, the consideration
(whether cash, securities or other property) received as a result of the
Reorganization Event by holders of Common Stock for each share of Common Stock
held immediately prior to the consummation of the Reorganization Event (and if
holders were offered a choice of consideration, the type of consideration chosen
by the holders of a majority of the outstanding shares of Common Stock);
provided, however, that if the consideration received as a result of the
Reorganization Event is not solely common stock of the acquiring or succeeding
corporation (or an affiliate thereof), the Company may, with the consent of the
acquiring or succeeding corporation, provide for the consideration to be
received upon the exercise of Options to consist solely of common stock of the
acquiring or succeeding corporation (or an affiliate thereof) equivalent in
value (as determined by the Board) to the per share consideration received by
holders of outstanding shares of Common Stock as a result of the Reorganization
Event.
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18. Amendment
of the Plan. The Board may at any time, and from time to time,
amend this Plan in any respect, except that (a) if the approval of any such
amendment by the shareholders of the Company is required by Section 423 of the
Code, such amendment shall not be effected without such approval, and (b) in no
event may any amendment be made which would cause the Plan to fail to comply
with Section 423 of the Code.
19. Insufficient
Shares. In the event that the total number of shares of Common
Stock specified in elections to be purchased under any Offering plus the number
of shares purchased under previous Offerings under this Plan exceeds the maximum
number of shares issuable under this Plan, the Board or the Committee will allot
the shares then available on a pro rata basis.
20. Termination
of the Plan. This Plan may be terminated at any time by the
Board. Upon termination of this Plan all amounts in the accounts of
participating employees shall be promptly refunded.
21. Governmental
Regulations. The Company's obligation to sell and deliver
Common Stock under this Plan is subject to the listing requirements of the
NASDAQ Global Select Market or other applicable national stock exchange and the
approval of all governmental authorities required in connection with the
authorization, issuance or sale of such stock. The Plan shall be
governed by Delaware law except to the extent that such law is preempted by
federal law.
22. Issuance
of Shares. Shares may be issued upon exercise of an Option
from authorized but unissued Common Stock, from shares of Common Stock held in
the treasury of the Company, or from any other proper source.
23. Notification
upon Sale of Shares. Each employee agrees, by enrolling in the
Plan, to promptly give the Company notice of any disposition of shares purchased
under the Plan where such disposition occurs within two years after the date of
grant of the Option pursuant to which such shares were purchased.
24. Effective
Date and Approval of Shareholders. The Company's 1996 Employee
Stock Purchase Plan took effect on February 12, 1996 subject to approval by the
stockholders of the Company as required by Section 423 of the Code, which
approval was obtained on June 5, 1996. This Second Amended and
Restated 1996 Employee Stock Purchase shall be effective on May 1, 2008, subject
to the number of authorized shares of Common Stock (1,700,000) previously
approved by the Company's stockholders until such date as the greater number of
authorized shares set forth in the introductory paragraph of this Plan
(2,500,000) shall be approved by the stockholders of the Company as required by
Section 423 of the Code. The Company shall submit the increase in the
number of authorized shares under the Plan for stockholder approval at the
Company's 2008 Annual Meeting of Stockholders on May 21, 2008.
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AVID
TECHNOLOGY, INC.
Amendment
No. 1 to the Avid Technology, Inc. Second Amended and Restated 1996 Employee
Stock Purchase Plan
That
Section 2(a) of the Avid Technology, Inc. Second Amended and Restated 1996
Employee Stock Purchase Plan is hereby deleted in its entirety.
Approved
by the Board of Directors of Avid Technology, Inc. on August 12,
2008
AVID
TECHNOLOGY, INC.
Amendment
No. 2 to the Avid Technology, Inc. Second Amended and Restated 1996 Employee
Stock Purchase Plan
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|
1. The
following sentence be added to the end of the second paragraph of Section
2 -
Eligibility:
|
The
Company retains the discretion to determine which eligible employees may
participate in an offering pursuant to and consistent with Treasury Regulation
Sections 1.423-2(e) and (f).
|
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2. Section
5 - Deductions be and hereby is deleted in its entirety and the following
is inserted in lieu
thereof:
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5. Deductions. The
Company will maintain payroll deduction accounts for all participating
employees. With respect to any Offering made under this Plan, an
employee may authorize a payroll deduction in any dollar amount up to a maximum
of ten percent (10%) of the Compensation he or she receives during the Plan
Period or such shorter period during which deductions from payroll are
made. However, the maximum contribution during any Plan Period cannot
exceed $2,500. The Board or the Committee may set a minimum payroll
deduction requirement. In addition, the maximum number of shares that
may be purchased by a participating employee during any Plan Period may not
exceed the amount equal to the product of $2,083 and the number of full months
in the Plan Period divided by the closing price of Avid common stock on the
Offering Commencement Date of each Plan Period.
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3. New
Sections 24 and 25 be inserted before the last section of the plan
entitled Effective Date and Approval of
Shareholders.
|
24. Grants
to Employees in Foreign Jurisdictions. The Company may, in
order to comply with the laws of a foreign jurisdiction, grant Options to
employees of the Company or a Participating Subsidiary who are citizens or
residents of such foreign jurisdiction (without regard to whether they are also
citizens of the United States or resident aliens (within the meaning of Section
7701(b)(1)(A) of the Code)) with terms that are less favorable (but not more
favorable) than the terms of Options granted under the Plan to employees of the
Company or a Participating Subsidiary who are resident in the United
States. Notwithstanding the preceding provisions of this Plan,
employees of the Company or a Participating Subsidiary who are citizens or
residents of a foreign jurisdiction (without regard to whether they are also
citizens of the United States or resident aliens (within the meaning of Section
7701(b)(1)(A) of the Code)) may be excluded from eligibility under the Plan if
(a) the grant of an Option under the Plan to a citizen or resident of the
foreign jurisdiction is prohibited under the laws of such jurisdiction or (b)
compliance with the laws of the foreign jurisdiction would cause the Plan to
violate the requirements of Section 423 of the Code. The Company may
add one or more appendices to this Plan describing the operation of the Plan in
those foreign jurisdictions in which employees are excluded from participation
or granted less favorable Options.
25. Authorization
of Sub-Plans. The Board may from time to time establish one or more
sub-plans under the Plan with respect to one or more Participating Subsidiaries,
provided that such sub-plan complies with Section 423 of the Code.
Approved
by the Board of Directors on December 15, 2009
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EXHIBIT 10.36
May 29,
2008
Mr.
Martin Vann
84 Beard
Way
Needham,
MA 02492
Dear
Martin:
We are
excited with the prospect of you joining the Avid leadership
team. Over the past several weeks of meetings, we have become
convinced that your experience and leadership will be very helpful in the
evolution and growth of Avid Technology, Inc. Accordingly, we are pleased to
offer you the position of Vice President of Sales reporting to Kirk Arnold,
Executive Vice President and General Manager, Avid Video.
Salary
Your
salary will be paid biweekly at an annual rate of three hundred thirty thousand
dollars ($330,000). The initial pay period will be calculated based
upon actual days worked.
Company
Bonus Plan
You will
be eligible to participate in Avid’s Company Bonus Plan. Your
budgeted bonus level is 35% of your eligible earnings, with potential payouts
ranging from 0% to greater than 35% based on the achievement of pre-determined
financial goals for the Company and your business unit, and your personal
performance. The Plan results and payments will be determined
following the Plan year after audited financials have been completed and
announced.
Sign-on
Bonus
You will
receive a one-time sign-on bonus in the amount of thirty thousand dollars,
($30,000) to be paid out in the next regularly scheduled payroll cycle following
your date of hire and subject to applicable withholding taxes.
Sales
Commissions
You will
be eligible to participate in Avid’s Sales Compensation Plan . Your
annual target commission for 2008 will be one hundred seventy thousand dollars
($170,000 annualized) for on plan performance, and is based upon revenue and
margin quotas that will be determined between you and me. Your
revenue and margin quotas and sales compensation target will be pro-rated for
2008 based on your hire date. Commissions are paid at the end of the
quarter following the quarter in which commissions were earned.
For the
first two months of a quarter a draw of 75% of the quarterly variable amount at
target will be paid. On the first month of the quarter following the
quarter in which the draw has been paid, the two month draw will be recovered
and the final quarterly payout will be calculated. If for any reason a
draw is not fully recovered in a current quarter the balance due Avid will be
recovered before any additional draw is extended to the employee. Any draw paid
is recoverable against any present or future earned commissions.
Stock
Option Grant
In
addition, you will be issued, subject to approval by Avid’s Board of Directors
in accordance with Avid’s stock option grant process, an option to purchase one
hundred thousand (100,000) shares of Avid’s common stock. The terms
of the vesting of the stock option are described on Attachment
A.
Restricted
Stock Units
You will
also be issued, subject to approval by Avid’s Board of Directors, fifteen
thousand (15,000) restricted stock units (RSUs), with each unit representing the
right to receive one share of Avid’s common stock. The terms of the
vesting of the RSUs are described on Attachment
A.
During
your employment, in addition to the initial stock option and RSU grant, you
shall be entitled to participate in Avid’s stock incentive plans to the extent
and in the manner as determined by Avid in its absolute discretion.
Termination
The terms
of termination are described on Attachment
B.
Benefits
Avid
offers four weeks of paid vacation to Vice Presidents and ten paid holidays per
year. The Company contributes 75% of the costs for medical, dental
and vision coverage, and 100% of the costs for life insurance (in the amount of
two times your annual salary), long-term and short-term disability
insurance. Additionally, you will be eligible to participate in
Avid’s 401(k) Plan the first of the month following three months of
service. A benefits summary is enclosed. You will receive
further documentation on Avid’s benefits programs upon formal acceptance of this
employment offer.
Offer
Acceptance
We look
forward to welcoming you into your new position with Avid. Please
return one signed offer letter, indicating your acceptance and anticipated start
date. A postage paid envelope is enclosed for your
convenience.
New
Hire Benefits Orientation
The
enclosed Benefits Orientation Kit will be reviewed and processed with you upon
your arrival by Karen Katz, our Human Resources Generalist. It will
be quite helpful if you are able to review the package and complete the
appropriate enrollment and employment forms prior to your meeting with
Karen. She can be reached in advance at (978) 640-5009 with any
questions.
Onboarding/Induction
Upon
acceptance we’ll work with you to ensure a smooth and productive entry to Avid
though our On boarding/Induction program. We will initiate an
information exchange prior to your first day in the office.
This
offer is subject to our satisfactory review of all of your prior employment
agreements for "non-compete" clauses under which you may be restricted in
working for Avid and upon your furnishing proof that you are authorized for
employment in the U.S.A.
All Avid
employees are required to sign an Avid Invention and Non-Disclosure
Agreement (a copy of which is included herein) and Avid’s Code of Business
Conduct and Ethics upon acceptance and/or commencement of
employment. Certain classifications of employees are also required to
recertify the Code of Business Conduct and Ethics on an annual
basis. You will also be required to complete an Immigration
Department I-9 form for which you will need to bring certain documentation with
you to Avid. These forms will be included in your personalized
Orientation Kit.
Acceptance
of this offer does not constitute an employment agreement and this letter is not
to be construed as a guarantee of employment by the Company for any specific
period or length of time.
All of us
at Avid look forward to welcoming you, Martin, and are confident of your
potential as a valued and respected member of our organization. If
you have any questions regarding the position, please do not hesitate to contact
me.
Sincerely,
/s/ Maria
Haddad
Maria
Haddad
Director,
Human Resources, Avid Video
/ebw
Enclosures
ACCEPTED:
/s/ Martin
Vann DATE: June
28, 2008
ORIENTATION
START
DATE: * July 13,
2008 DATE:
______________________
* Please
return your completed "Employee Record Form" and one signed offer letter in the
self-addressed envelope no later than June 25, 2008
Cc: Human
Resources
Attachment A: Equity
Grants
Option
Grant. Subject to approval by the Board of Directors, on your start
date you will be awarded, pursuant to a stock option agreement, an option to
purchase One Hundred Thousand (100,000) shares of Avid Technology, Inc. common
stock. The exercise price will be the closing price on the date of
the grant.
a) Fifty
Thousand (50,000) shares of the option will vest on a time-based schedule in
equal 6.25% increments every three months ending on the fourth anniversary of
the grant date.
b) Fifty
Thousand (50,000) shares of the option will vest on a performance-based
schedule, as follows:
(1) Twenty
Five Thousand (25,000) shares of the option will vest at the end of the first 20
consecutive trading day period following your start date during which Avid’s
common stock, as quoted on NASDAQ, trades (without regard to the closing price)
at a price per share of at least $50.84, as adjusted for stock splits and stock
dividends; and
(2) An
additional Twenty Five Thousand (25,000) shares of the option will vest at the
end of the first 20 consecutive trading day period following the Effective Date
during which Avid’s common stock, as quoted on NASDAQ, trades (without regard to
the closing price) at a price per share of at least $76.26, as adjusted for
stock splits and stock dividends.
RSU
Grant. On your start date, subject to approval by the Board of
Directors and pursuant to a restricted stock unit agreement, you will be granted
Fifteen Thousand (15,000) restricted stock units, with each unit representing
the right to receive one share of Avid’s common stock, said restricted stock
units to vest as follows:
|
Vesting
Date
|
Cumulative
% Vested
|
|
July
14, 2009
|
33.33%
|
|
July
14, 2010
|
66.67%
|
|
July
14, 2011
|
75.00%
|
|
October
14, 2011
|
81.25%
|
|
January
14, 2012
|
87.50%
|
|
April
14, 2012
|
93.75%
|
|
July
14, 2012
|
100.00%
|
Attachment B:
Termination
In this
Attachment, you are referred to as the “Employee,” Avid is referred to as the
“Company,” and the date on which your employment begins is referred to as the
“Effective Date.”
1.1. Termination. Employee’s
employment shall terminate upon the occurrence of any of the following
events:
1.1.1. immediately
upon the Employee’s death;
1.1.2. termination
of the Employee’s employment by the Company for Disability (as defined below),
effective immediately upon delivery of notice thereof;
1.1.3. termination
of Employee’s employment by the Company for Cause (as defined below), effective
immediately upon delivery of notice thereof;
1.1.4. termination
of Employee’s employment by the Company, without Cause and not as a result of
Employee’s death or Disability, effective 30 days after the Company delivers
written notice thereof to the Employee;
1.1.5. termination
of Employee’s employment by Employee without Good Reason (as defined below)
effective 30 days after Employee delivers written notice thereof from
Employee to the Company; or
1.1.6. termination
of Employee’s employment by Employee with Good Reason (as defined below), to be
effective as set forth below.
1.2. For
purposes of this Attachment, the following definitions shall apply:
1.2.1. “Cause”
shall mean (i) Employee’s material failure to perform (other than by reason
of death or illness or other physical or mental incapacity) his duties which is
not remedied after 30 days’ written notice from the Company (if such failure is
susceptible to cure), (ii) a material breach of any of the provisions of
any written agreement (including the Company’s employee nondisclosure and
invention assignment agreement) between Employee and the Company, which is not
cured after 10 days’ written notice from the Company (if such breach is
susceptible to cure), (iii) Employee’s material violation of a material
Company policy (for purposes of this clause, the Company’s Code of Business
Conduct and Ethics shall be deemed a material policy), which is not cured after
10 days’ written notice from the Company (if such violation is susceptible
to cure), (iv) fraud, embezzlement or other material dishonesty with
respect to the Company, (v) conviction of a crime constituting a felony
(which shall not include any crime or offense related to traffic infractions or
as a result of vicarious liability) or conviction of any other crime involving
fraud, dishonesty or moral turpitude or (vi) failing to cooperate, as reasonably
requested by the Company, in any internal or external investigation of any
matter in which the Company has a material interest in the outcome of the
investigation.
1.2.2. “Change-in-Control
of the Company” shall be deemed to have occurred only if any of the following
events occur:
a) The
acquisition by an individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”)) (a “Person”) of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of 30% or more of
either (i) the then outstanding shares of common stock of the Company (the
“Outstanding Company Common Stock”) or (ii) the combined voting power of
the then outstanding voting securities of the Company entitled to vote generally
in the election of directors (the “Outstanding Company Voting Securities”);
provided, however, that for purposes of this section, the following acquisitions
shall not constitute a Change of Control: (A) any acquisition
directly from the Company, (B) any acquisition by the Company, (C) any
acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any corporation controlled by the Company, or
(D) any acquisition pursuant to a transaction which satisfies the criteria
set forth in clauses (A) and (B) of Section 1.2.2(c); or
b) Individuals
who, as of the Effective Date, constitute the Board of Directors (the “Incumbent
Board”) cease for any reason to constitute at least a majority of the Board;
provided, however, that any individual becoming a director subsequent to the
Effective Date whose election, or nomination for election by the Company’s
shareholders, was approved by a vote of at least a majority of the directors
then composing the Incumbent Board shall be considered as though such individual
were a member of the Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office occurs as a result of an actual or
threatened election contest with respect to the election or removal of directors
or other actual or threatened solicitation of proxies or consents by or on
behalf of a Person other than the Board; or
c) Consummation
of a reorganization, merger or consolidation or sale or other disposition of all
or substantially all of the operating assets of the Company (a “Business
Combination”), in each case, unless, following such Business Combination,
(A) all or substantially all of the individuals and entities who were the
beneficial owners, respectively, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities immediately prior to such Business
Combination beneficially own, directly or indirectly, more than 40% of,
respectively, the then-outstanding shares of common stock (or other equity
interests, in the case of an entity other than a corporation), and the combined
voting power of the then-outstanding voting securities of the corporation or
other entity resulting from such Business Combination (which as used in this
section shall include, without limitation, a corporation or other entity which
as a result of such transaction owns all or substantially all of the Company’s
assets
either directly or through one or more subsidiaries) in substantially the same
proportions as their ownership immediately prior to such Business Combination of
the Outstanding Company Common Stock and Outstanding Company Voting Securities,
as the case may be, and (B) no Person (excluding any corporation or other
entity resulting from such Business Combination or any employee benefit plan (or
related trust) of the Company or such corporation resulting from such Business
Combination) beneficially owns, directly or indirectly, 30% or more of,
respectively, the then outstanding shares of common stock (or other equity
interests, in the case of an entity other than a corporation) of the corporation
or other entity resulting from such Business Combination, or the combined voting
power of the then-outstanding voting securities of such corporation or other
entity;
provided,
however, that as used in Section 1.6, a “Change-in-Control of the Company” shall
be deemed to occur only if any of the foregoing events occur and such event that
occurs is a “change in the ownership or effective control of a corporation, or a
change in the ownership of a substantial portion of the assets of a corporation”
as defined in Treasury Reg. § 1.409A-3(i)(5).
1.2.3. “Date of
Termination” shall mean the date of Employee’s “separation from service” with
the Company, as determined under Treasury Reg. § 1.409A-1(h).
1.2.4. “Disability”
shall mean Employee’s absence from the full-time performance of his duties with
the Company for more than 180 days during a 365-day period as a result of
incapacity due to mental or physical illness, as a result of which Employee is
deemed “disabled” by the institution appointed by the Company to administer its
long-term disability plan (or any successor plan).
1.2.5. “Good
Reason” shall mean the occurrence of any one or more of the following without
Employee’s prior express written consent: (i) a material diminution
in Employee’s authority, duties or responsibility from those in effect as of the
Effective Date; (ii) a diminution in Employee’s base salary as in effect on the
Effective Date or as may be increased from time to time, other than a reduction
which is part of an across-the board proportionate reduction in the salaries of
all senior executives of the Company imposed because the Company is experiencing
financial hardship (provided such reduction is not more than 20% and does not
continue for more than 12 months); (iii) a material change in Employee’s
office location (it being agreed that as of the Effective Date such office
location shall be deemed to be Tewksbury, Massachusetts); and (iv) any material
breach of this letter by the Company; provided, however, that a termination for
Good Reason by Employee can occur only if (a) Employee has given the Company a
notice of the existence of a condition giving rise to Good Reason within 90 days
after the initial occurrence of the condition giving rise to Good Reason and (b)
the Company has not cured the condition giving rise to Good Reason within
30 days after receipt of such notice. A termination for Good
Reason shall occur 30 days after the end of such 30-day cure
period.
1.2.6. A
“Potential Change-in-Control Period” shall be deemed to exist (A) commencing
upon the date on which the Company shall have announced that it has entered into
a merger, acquisition or similar agreement, the consummation of which would
result in the occurrence of a Change-in-Control of the Company and ending on the
earlier of (x) the date on which the transaction governed by such agreement has
been consummated or (y) the Company shall have announced that it has terminated
such agreement, or (B) commencing on the date on which any Person shall publicly
announce an intention to take actions which if consummated would constitute a
Change-in-Control of the Company and ending on the earlier of (x) the date on
which such actions have caused the consummation of a Change-in-Control of the
Company or (y) such Person shall publicly announce the termination of its
intentions to take such actions.
1.2.7. “Pro
Ration Percentage” shall mean the amount, expressed as a percentage, equal to
the number of days in the then current fiscal year through the Date of
Termination, divided by 365.
1.2.8. “Termination
Bonus Amount” shall mean the greater of (i) the Employee’s highest annual
incentive bonus earned in the two most recent full fiscal years preceding the
Date of Termination plus the Employee’s highest commissions (calendar year
total) earned in the two most recent full fiscal years preceding the date of
termination, or (ii) One Hundred percent (100%) of Employee’s base salary
in effect as of the Date of Termination.
1.3. Adjustments Upon
Termination.
1.3.1. Death or
Disability. If during the Term, Employee’s employment with the
Company terminates pursuant to Section 1.1.1 or Section 1.1.2, subject to
Section 1.5, the Company shall pay to Employee or Employee’s heirs, successors
or legal representatives, as the case may be, Employee’s base salary in effect
as of the Date of Termination (less, in the case of a termination of
employment as a result of Disability, the amount of any payments made to the
Employee under any long-term disability plan of the Company). Such
payments shall be made over the 12-month period that commences on the Date of
Termination; provided that if termination of employment due to death or
Disability occurs after a Change-in-Control of the Company, the total of such
payments shall be made in a lump sum within 30 days following the Date of
Termination. Notwithstanding any provision to the contrary in any
Avid stock plan, or under the terms of any grant, award agreement or form for
exercising any right under any such plan (including, without limitation, the
agreements evidencing the stock option and the restricted stock unit grant), any
stock options, restricted stock awards, stock appreciation rights or other
equity participation rights held by Employee as of the date of death or
Disability shall become exercisable or vested, as the case may be, with respect
to all time-based awards as to an additional number of shares equal to the
number that would have been exercisable or vested as of the end of the 12-month
period immediately following the date of death or Disability, but all
performance-based vesting awards that have not vested as of such date of death
or Disability shall be forfeited as of such date.
1.3.2. With Cause or Without Good
Reason. If Employee’s employment with the Company terminates
pursuant to Section 1.1.3 or Section 1.1.5, (a) all payments and
benefits provided to Employee under this letter shall cease as of the Date of
Termination, except that Employee shall be entitled to any amounts earned,
accrued or owing but not yet paid under this letter and any benefits due in
accordance with the terms of any applicable benefits plans and programs of the
Company and (b) all vesting of all stock options, restricted stock awards,
stock appreciation rights or other equity participation rights then held by the
Employee shall immediately cease as of the Date of
Termination.
1.3.3. Without Cause or with Good
Reason Other than during a Potential Change-in-Control Period or After a
Change-in-Control of the Company. If Employee’s employment
with the Company terminates pursuant to Section 1.1.4 or Section 1.1.6,
other than during a Potential Change-in-Control period or within 12 months after
a Change-in-Control of the Company, subject to Section 1.5:
a) within 30
days following the Date of Termination, the Company shall pay Employee in a lump
sum in cash the sum of (i) any accrued but unpaid base salary through the Date
of Termination plus (ii) the annual incentive bonus for the fiscal year
preceding the fiscal year in which the Date of Termination occurs, if earned and
unpaid, plus (iii) any accrued but unused vacation pay;
b) the
Company shall pay Employee, as severance pay, his base salary in effect as of
the Date of Termination, for 12 months after the Date of Termination (the
“Severance Pay Period”);
c) the
annual incentive bonus for the year in which the Date of Termination occurred,
in the amount of Employee’s target award multiplied by the applicable actual
plan payout factor and pro rated by the number of months Employee was employed
by the Company during the year of the Date of Termination; provided, however
that such annual incentive bonus will be paid only if the Company pays bonuses,
on account of the year in which the Date of Termination occurred, to executives
who remain employed with the Company and will be paid in a lump sum on or about
the date on which the Company pays bonuses to executives who remain employed
with the Company;
d) the
Company shall continue to provide Employee health, dental and vision benefits as
were available to the Employee prior to the Date of Termination until the
earlier of (x) the end of the Severance Pay Period or (y) the date on which
Employee becomes eligible to receive group medical and dental insurance benefits
from another employer that are substantially equivalent to those provided by the
Company as of the Date of Termination (Employee agrees to notify the Company in
writing promptly upon becoming eligible to receive such group medical and dental
insurance from another employer);
e) the
Company shall provide Employee, at the Company’s sole cost, with full executive
outplacement assistance with an agency selected by Employee (and reasonably
satisfactory to the Company), provided that no outplacement benefits shall be
provided after the end of the second calendar year following the calendar year
in which the Date of Termination occurs;
f) notwithstanding
any provision to the contrary in any Company stock plan, or under the terms of
any grant, award agreement or form for exercising any right under any such plan
(including, without limitation, the agreements evidencing the stock option and
the restricted stock unit grant), any stock options, restricted stock awards,
stock appreciation rights or other equity participation rights held by Employee
as of the Date of Termination become exercisable or vested, as the case may be,
with respect to all time-based vesting awards as to an additional number of
shares equal to the number that would have been exercisable or vested as of the
end of the 12-month period immediately following the Date of Termination, but
all performance-based vesting awards that have not vested as of the Date of
Termination shall be forfeited as of such date; and
g) Employee
shall be entitled to exercise any such options or other awards or equity
participation rights until 12 months after the Date of Termination, but all
performance-based vesting awards that have not, as of such date, vested shall be
forfeited as of such date. No other payments or benefits shall be due
under this letter to Employee, but Employee shall be entitled to any benefits
accrued or earned in accordance with the terms of any applicable benefit plans
and programs of the Company.
1.3.4. Without Cause or with Good
Reason After a Change-in-Control of the Company. If, within 12
months after a Change-in-Control of the Company, Employee shall terminate
Employee’s employment pursuant to Section 1.1.6 or the Company shall terminate
Employee’s employment pursuant to Section 1.1.4, then in any such event, subject
to Section 1.5:
a) The
Company shall pay Employee as severance pay (without regard to the provisions of
any benefit plan) in a lump sum in cash no more than 30 days following the
Date of Termination, the following amounts:
|
|
(i)
|
the
sum of (A) Employee’s accrued but unpaid base salary through the Date
of Termination, plus (B) the annual incentive bonus for the fiscal
year preceding the fiscal year in which the Date of Termination occurs, if
earned and unpaid, (C) the product of (x) Employee’s Termination
Bonus Amount, and (y) the Pro Ration Percentage, plus (D) any
accrued but unused vacation pay;
and
|
|
|
(ii)
|
the
amount equal to one and a half (1.5) times the sum of (i) Employee’s
base salary in effect as of the Date of Termination, plus
(ii) Employee’s Termination Bonus
Amount.
|
b) if
Employee is eligible to receive and elects to continue receiving any group
medical and dental insurance coverage under COBRA, the Company shall reimburse
the monthly COBRA premium (on a fully grossed up basis, if such reimbursement is
taxable to Employee) in an amount equal to the portion of such premium that the
Company pays on behalf of active and similarly situated employees receiving the
same type of coverage until the earlier of (x) the date that is 18 months after
the Date of Termination or (y) the date on which Employee becomes eligible to
receive group medical and dental insurance benefits from another employer that
are substantially equivalent (including, without limitation, equivalent as to
benefits, premiums and co-pay amounts) to those provided by the Company as of
the Date of Termination (Employee agrees to notify the Company in writing
promptly upon becoming eligible to receive such group medical and dental
insurance from another employer);
c) Notwithstanding
anything to the contrary in the applicable stock option or restricted stock unit
agreement (including, without limitation, the agreements evidencing Employee’s
stock option and restricted stock unit grant), the exercisability of all
outstanding stock options, restricted stock awards, stock appreciation rights
and other equity participation rights (including the right to receive restricted
stock pursuant to the restricted stock unit grant or other instrument) then held
by Employee with respect to the common stock of the Company (or securities
exchanged for such common stock in connection with the Change-in-Control of the
Company) shall accelerate in full and Employee shall be entitled to exercise any
such options or other awards or equity appreciation rights until 18 months
after the Date of Termination; and
d) The
Company shall provide Employee, at the Company’s sole cost, with full executive
outplacement assistance with an agency selected by Employee (and reasonably
satisfactory to the Company), provided that no outplacement benefits shall be
provided after the end of the second calendar year following the calendar year
in which Date of Termination occurs.
1.3.5. Without Cause or with Good
Reason During a Potential Change-in-Control Period. If, during
the existence of a Potential Change-in-Control Period, Employee shall terminate
Employee’s employment pursuant to Section 1.1.6 or the Company shall terminate
Employee’s employment pursuant to Section 1.1.4, then in any such event, subject
to Section 1.5, Employee shall receive the payments, benefits and rights set
forth in Section 1.3.4, except that any amounts payable pursuant to Section
1.3.4(a)(ii) shall be paid over the 18-month period that commences on the Date
of Termination, if such date occurs more than 30 days prior to the
Change-in-Control of the Company that is the subject of the Potential
Change-in-Control Period;
1.3.6. otherwise,
such amount shall be paid in a lump sum on the date that such Change-in-Control
of the Company occurs. Notwithstanding the foregoing, if the
Change-in-Control of the Company (that is the subject of the Potential
Change-in-Control Period) occurs more than 30 days after the Date of
Termination, and payments of the amount payable pursuant to Section 1.3.4(a)(ii)
have begun over an 18-month period, pursuant to the preceding sentence, the
balance of the amount payable pursuant to Section 1.3.4(a)(ii) shall be paid to
Employee in a lump sum on the date such Change-in-Control of the Company
occurs.
1.4. Section
409A.
1.4.1. Payments
to Employee under this Attachment shall be bifurcated into two portions,
consisting of a portion that does not constitute “nonqualified deferred
compensation” within the meaning of Section 409A of the Internal Revenue Code
of1986, as amended (the “Code”), and a portion that does constitute nonqualified
deferred compensation. Payments hereunder shall first be made from
the portion, if any, that does not consist of nonqualified deferred compensation
until it is exhausted and then shall be made from the portion that does
constitute nonqualified deferred compensation. However, if Employee
is a “specified employee” as defined in Section 409A(a)(2)(B)(i) of the Code, to
the extent required by Section 409A of the Code, the commencement of the
delivery of any such payments that constitute nonqualified deferred compensation
will be delayed to the date that is six months and one day after Employee’s Date
of Termination (the “Earliest Payment Date”). Any payments that are
delayed pursuant to the preceding sentence shall be paid on the Earliest Payment
Date. The determination of whether, and the extent to which, any of
the payments to be made to Employee hereunder are nonqualified deferred
compensation shall be made after the application of all applicable exclusions
under Treasury Reg. § 1.409A-1(b)(9). Any payments that are intended
to qualify for the exclusion for separation pay due to involuntary separation
from service set forth in Treasury Reg. § 1.409A-1(b)(9)(iii) must be paid no
later than the last day of the second taxable year of Employee following the
taxable year of Employee in which the Date of Termination occurs.
1.4.2. The
parties acknowledge and agree that the interpretation of Section 409A of the
Code and its application to the terms of this letter is uncertain and may be
subject to change as additional guidance and interpretations become
available. Anything to the contrary herein notwithstanding, all
benefits or payments provided by the Company to Employee that would be deemed to
constitute “nonqualified deferred compensation” within the meaning of
Section 409A of the Code are intended to comply with Section 409A of the
Code. If, however, any such benefit or payment is deemed to not
comply with Section 409A of the Code, the Company and Employee agree to
renegotiate in good faith any such benefit or payment (including, without
limitation, as to the timing of any severance payments payable hereof) so that
either (i) Section 409A of the Code will not apply or (ii) compliance with
Section 409A of the Code will be achieved; provided, however, that any deferral
of payments or other benefits shall be only for such time period as may be
required to comply with Section 409A; and provided, further, that
payments or other benefits that occur as a result of the application of this
section shall themselves comply with Section 409A of the Code.
1.5. General
Release. In order to be eligible to receive any of the salary
or benefits under this Attachment, Employee (or his personal representative, if
applicable) shall be required to execute and deliver to the Company (without
subsequent revocation) a general release of claims against the Company,
excluding any claims concerning the Company’s obligations under this letter in a
form provided by and reasonably satisfactory to the Company which shall contain
a release of claims by Employee substantially in the form attached hereto as
Attachment C,
and shall be required to sign such other agreements as similarly situated
employees of the Company are generally required to sign if Employee shall not
have already done so, provided, however, that such other agreements do not cause
any changes to the provisions herein or in any restricted stock, restricted
stock unit, stock option or similar compensatory or benefit agreement between
the Employee and the Company. The Company shall have no other
liability or obligation under this letter to Employee’s executors, legal
representatives, administrators, heirs or assigns or any other person claiming
under or through Employee.
1.6. Non-Competition and
Non-Solicitation. Employee acknowledges and recognizes the
highly competitive nature of the businesses of the Company and accordingly
agrees that while Employee is employed by the Company and for a period of the
longer of (a) one year after the date Employee’s employment with the Company
terminates, in the case of a termination other than within 12 months after a
Change-in-Control of the Company and(b) 18 months after the date Employee’s
employment with the Company terminates, in the case of a termination within 12
months after a Change-in-Control of the Company:
1.6.1. Employee
will not perform services for or own an interest in (except for investments of
not more than five percent (5%) of the total outstanding shares or other
equity interests of a company or entity that competes with Avid including but
not limited to Apple Computer, Inc., Adobe Systems, Inc., Thompson Grass Valley,
Harris Corporation, Autodesk, Inc., and Vizrt Ltd.
1.6.2. Employee
will not directly or indirectly assist others in engaging in any of the
activities in which Employee is prohibited to engage by
Section 1.6.1.
1.6.3. Employee
will not directly or indirectly either alone or in association with others (a)
solicit, or permit any organization directly or indirectly controlled by
Employee to solicit, any employee of the Company to leave the employ of the
Company, or (b) solicit for employment, hire or engage as an independent
contractor, or permit any organization directly or indirectly controlled by
Employee to solicit for employment, hire or engage as an independent contractor,
any natural person who was employed by the Company at any time; provided that
this Section 1.6.3 (i) shall not apply to the solicitation, hiring or engagement
of any individual whose employment with the Company has been terminated for a
period of one year or longer or whose engagement to the Company as an
independent contractor has been terminated for a period of six months or longer
and (ii) shall not apply to the solicitation, hiring or engagement of any
individual arising from such individual’s affirmative response to a general
recruitment effort carried out through a public solicitation or a general
solicitation.
1.6.4. Employee
will not directly or indirectly either alone or in association with others
solicit, or permit any organization directly or indirectly controlled by
Employee to solicit, any current or future customer or supplier of the Company
to cease doing business in whole or in part with the Company or otherwise
adversely modify his, her or its business relationship with the
Company.
1.6.5. This
Section 1.6 shall supersede any non-competition or non-solicitation provision
set forth in the Employee Nondisclosure and Invention Assignment Agreement
between the Employee and the Company
1.7. Reasonableness of
Restrictions. It is expressly understood and agreed
that (a) although Employee and the Company consider the restrictions
contained in Section 1.6 to be reasonable, if a final judicial determination is
made by a court of competent jurisdiction that the time or territory or any
other restriction contained in Section 1.6 is unenforceable, such restriction
shall not be rendered void but shall be deemed to be enforceable to such maximum
extent as such court may judicially determine or indicate to be enforceable and
(b) if any restriction contained in Section 1.6 is determined to be
unenforceable and such restriction cannot be amended so as to make it
enforceable, such finding shall not affect the enforceability of any of the
other restrictions contained herein.
1.8. Remedies for
Breach. Employee acknowledges and agrees that the Company’s
remedies at law for a breach or threatened breach of any of the provisions of
Section 1.6 would be inadequate and, in recognition of this fact, Employee
expressly agrees that, in the event of such a breach or threatened breach, in
addition to any remedies at law, the Company shall be entitled to obtain
equitable relief in the form of specific performance, temporary restraining
orders, temporary or permanent injunctions or any other equitable remedy which
may then be available.
Attachment
C
GENERAL RELEASE OF
CLAIMS
This General Release of Claims (the
“General Release”) is being executed by _______________ (“Employee”), for and in
consideration of certain amounts payable under the ________________ (the
“Agreement”) entered into between him and Avid Technology, Inc. (the “Company”),
dated as of ____________. Employee agrees as follows:
Employee, on behalf of himself and his
agents, heirs, executors, administrators, successors and assigns, hereby fully,
forever, irrevocably and unconditionally releases, remises and discharges the
Company, its officers, directors, stockholders, corporate affiliates,
subsidiaries, parent companies, agents and employees (each in their individual
and corporate capacities) (hereinafter, the “Released Parties”) from any and all
claims, charges, complaints, demands, actions, causes of action, suits, rights,
debts, sums of money, costs, accounts, reckonings, covenants, contracts,
agreements, promises, doings, omissions, damages, executions, obligations,
liabilities, and expenses (including attorneys’ fees and costs), of every kind
and nature that he ever had or now has against the Released Parties, including,
but not limited to, any and all claims arising out of or relating to his
employment with and/or separation from the Company, including, but not limited
to, all claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e et
seq.,
the Americans With Disabilities Act of 1990, 42 U.S.C. § 12101 et seq., the Age
Discrimination in Employment Act, 29 U.S.C. § 621 et seq., the Family and
Medical Leave Act, 29 U.S.C. § 2601 et seq., the Worker
Adjustment and Retraining Notification Act (“WARN”), 29 U.S.C. § 2101 et seq., Section 806 of
the Corporate and Criminal Fraud Accountability Act of 2002, 18 U.S.C. 1514(A),
the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., the Fair Credit
Reporting Act, 15 U.S.C. § 1681 et seq., the Employee
Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq., Employee Order
11246, and Employee Order 11141, all as amended; all claims arising out of the
Massachusetts Fair Employment Practices Act, M.G.L. c. 151B, § 1 et seq., the Massachusetts
Civil Rights Act, M.G.L. c. 12, §§ 11H and 11I, the Massachusetts Equal Rights
Act, M.G.L. c. 93, § 102 and M.G.L. c. 214, § 1C, the Massachusetts Labor and
Industries Act, M.G.L. c. 149, § 1 et seq., the Massachusetts
Privacy Act, M.G.L. c. 214, § 1B, and the Massachusetts Maternity Leave Act,
M.G.L. c. 149, § 105D, all as amended; all common law claims including, but not
limited to, actions in defamation, intentional infliction of emotional distress,
misrepresentation, fraud, wrongful discharge, and breach of contract, all claims
to any non-vested ownership interest in the Company, contractual or otherwise,
and any claim or damage arising out of his employment with and/or separation
from the Company (including a claim for retaliation) under any common law theory
or any federal, state or local statute or ordinance not expressly referenced
above; provided, however, that (a) nothing in this General Release prevents
Employee from filing a charge with, cooperating with, or participating in any
proceeding before the Equal Employment Opportunity Commission or a state fair
employment practices agency (except that Employee acknowledges that he may not
be able to recover any monetary benefits in connection with any such claim,
charge or proceeding); and (b) this General Release does not include (i) any
right to vested benefits to which Employee may be entitled under any Company
benefit plan; (ii) any termination rights Employee may have under the terms of
the employee’s offer letter and (iii) any right to indemnification arising out
of Employee’s employment with the Company pursuant to any policy of insurance
maintained by the Company.
Employee acknowledges that he has been
given at least twenty-one (21) days to consider this General Release, and that
the Company advised him to consult with an attorney of his own choosing prior to
signing this General Release. Employee understands that he may revoke this
General Release for a period of seven (7) days after he signs this General
Release by notifying the Company’s General Counsel, in writing, and the General
Release shall not be effective or enforceable until the expiration of this seven
(7) day revocation period. Employee understands and agrees that by
entering into this General Release, he is waiving any and all rights or claims
he might have under the Age Discrimination in Employment Act, as amended by the
Older Workers Benefits Protection Act, and that he has received consideration
beyond that to which he was previously entitled.
To the extent permitted by law,
Employee understands and agrees that he shall not make disparaging, derogatory
or false statements to any person, forum or entity regarding the Company or any
of its directors, officers, employees, agents or representatives or about the
Company's business affairs and financial condition.
IN WITNESS WHEREOF, the parties hereto
have executed this General Release as of the day and year set forth
below.
AVID
TECHNOLOGY, INC.
By:
________________________
Title:
_______________________
Date:
_______________________
____________________________
Date: _______________________
EXHIBIT
10.37
EXECUTIVE
EMPLOYMENT AGREEMENT
AVID TECHNOLOGY,
INC.
This
Executive Employment Agreement (this “Agreement”) is entered into as of
_________________________, by and between Avid Technology, Inc., a Delaware
corporation with its principal executive offices at Avid Technology Park, One
Park West, Tewksbury, Massachusetts 01876 (the “Company”), and
________________________ (“Executive”).
Article 1.
Services
1.1.
Service. Commencing
on ________________________ (the “Effective Date”) and throughout the Term (as
defined below), Executive shall serve as _______________________________________
upon the terms and conditions set forth below.
1.2.
Duties. During
the Term, Executive agrees to perform such executive duties consistent with his
position as may be assigned to him from time to time by the Board of Directors
of the Company (the “Board” or “Board of Directors”) or the Chief Executive
Officer and to devote his full working time and attention to such
duties.
1.3.
No Conflicting
Commitments. During the Term, Executive will not undertake any
commitments, engage or have an interest in any outside business activities or
enter into any consulting agreements which, in the good faith determination of
the Chief Executive Officer, conflict with the Company’s interests or which
might reasonably be expected to impair the performance of Executive’s duties as
a full-time employee of the Company. Notwithstanding the foregoing,
Executive may pursue personal interests (including, without limitation,
industry, civic and charitable activities) and attend to his personal
investments, so long as such activities do not interfere with the performance of
his duties hereunder.
Article 2.
Term
2.1.
Term. The
term of this Agreement (the "Term") shall commence on the Effective Date and
shall expire on ____________________ (insert date three years after Effective
Date) unless the Term is:
|
2.1.1
|
extended
pursuant to the provisions of this Section 2.1;
or
|
|
2.1.2
|
terminated
when the Executive’s employment terminates pursuant to Section 4.1
hereof;
|
provided,
however, that notwithstanding the foregoing, the Term shall continue to
automatically be extended for periods of one (1) year so long as neither party
provides written notice to the other of its intent to terminate by a date which
is at least one hundred and eighty (180) days prior to the then-current
expiration date of the Agreement, and, provided further, that (i) in the event
that a Change-in-Control of the Company (as defined in Section 4.2.2) should
occur during the twelve (12) months prior to the end of the then-current Term
and Executive is still an employee of the Company at that time, then the Term
shall be deemed to expire on the date that is twelve (12) months after the date
of such Change-in-Control of the Company, (ii) in the event a Potential
Change-in-Control Period (as defined in Section 4.2.6) exists within the twelve
(12) months prior to the end of the then-current Term and Executive is still an
employee of the Company as of that date, the Term shall be deemed to expire on
the date that is twelve (12) months after the commencement of such Potential
Change-in-Control Period and (iii) the expiration of the Term shall not
adversely affect Executive’s rights under this Agreement which have accrued
prior to such expiration. For the avoidance of doubt, if a Potential
Change-in-Control Period shall commence in the twelve (12) months prior to the
end of the then-current Term and a Change-in-Control of the Company shall also
occur during such twelve (12) month period, and if Executive is still an
employee of the Company on the date of the Change-in-Control of the Company, the
Term shall be deemed to expire twelve (12) months after the date of such
Change-in-Control. Unless the services of the Executive have
terminated prior to or upon the end of the Term in accordance with the
provisions of this Agreement, from and after the end of the Term, Executive
shall be an employee-at-will.
Article 3.
Payments
3.1.
Base
Compensation. During the Term, the Company shall pay Executive
an annual base salary (the “Base Salary”) of
________________________________________ ($____________), payable in regular
installments in accordance with the Company’s usual payment
practices. The Base Salary shall be reviewed by the Compensation
Committee of the Board during the Term.
3.2.
Incentive Payments.
Commencing with the Company’s fiscal year ending _______________________ and
thereafter during the remainder of the Term, Executive shall be eligible to
participate in an annual performance bonus plan pursuant to which, as of the
Effective Date, he shall be eligible to receive a target annual bonus equal to
________ percent (__%) of his then Base Salary (the “Target Bonus”) for full
attainment of his performance objectives (which may include Company-wide
objectives), with a maximum annual bonus equal to ________ percent (__%) of his
then Target Bonus for extraordinary performance on all or nearly all of his
performance objectives (the “Annual Incentive
Bonus”). Notwithstanding the foregoing, for the Company’s fiscal year
ending _____________________, achievement of the Annual Incentive Bonus shall be
on a pro-rata basis for the period following the Effective Date
only.
The amount of Executive’s Annual
Incentive Bonus, if any, shall be based on the degree to which Executive’s
performance objectives for a fiscal year have been met. If not
previously determined, within forty-five (45) days after the Effective Date,
Executive and the Chief Executive Officer shall mutually establish Executive’s
performance objectives for fiscal year ______, which performance objectives will
be recommended to the Compensation Committee of the Board for
approval. Thereafter, during the Term, Executive’s performance
objectives for each fiscal year shall be established during Executive’s annual
performance review and subject to the approval of the Compensation Committee of
the Board; provided, that in no event shall the percentages set forth in the
first paragraph of this Section 3.2 to be used in calculating Executive’s Annual
Incentive Bonus be reduced. The Compensation Committee of the Board
shall determine, for each fiscal year, the extent to which Executive’s
performance objectives for such fiscal year have been attained and the amount of
the Annual Incentive Bonus, if any, for such fiscal year. Should
Executive voluntarily terminate his employment after December 31 of any calendar
year during the Term but prior to the date any bonus payments for such year are
made by the Company, Executive shall remain eligible to receive his bonus
payment to the extent earned when paid by the Company to all other
Executives.
3.3.
Equity
Grant.
3.3.1. Option
Grant. On the Effective Date, pursuant to a stock option
agreement, Executive will be awarded an option to purchase
__________________________ (__________) shares of Avid Technology, Inc. common
stock (the “Stock Option”). The exercise price will be the closing
price of the stock on the Effective Date.
(i) ________________________
(_________) shares of the Stock Option will vest on a time-based schedule,
twelve and one-half percent (12.5%) of which will vest on the first six-month
anniversary of the Effective Date and the remaining eighty-seven and one-half
percent (87.5%) will vest monthly thereafter in forty-two (42) equal increments
ending on the fourth anniversary of the Effective Date, as long as Executive is
employed by the Company on each such vesting date.
(ii) _________________________
(_________) shares of the Stock Option will vest on a performance-based
schedule, as follows, as long as Executive is employed by the Company on each
such vesting date:
(a) __________________________
(________) shares of the Stock Option will vest at the end of the first
twenty (20) consecutive trading day period following the Effective Date during which the
common stock of the Company, as quoted on NASDAQ (or on such other exchange as
such shares may be traded), trades (without regard to the closing price) at a
price per share of at least $50.84, as adjusted for stock splits and stock
dividends; and
(b) An
additional _____________________________
(_________) shares of the Stock Option will vest at the end of the first
twenty (20) consecutive trading day period following the Effective Date during which the
common stock of the Company, as quoted on NASDAQ (or on such other exchange as
such shares may be traded), trades (without regard to the closing price) at a
price per share of at least $76.26, as adjusted for stock
splits and stock dividends.
(iii) ____________________________
(__________) shares of the Stock Option (the “ROE Option Shares”) will vest in
accordance with the following table (as long as Executive is employed by the
Company on each such vesting date), based upon improvement in the Company’s
Return on Equity, or ROE (as defined below), in calendar year periods,
commencing with calendar year 2008. Improvements for each calendar
year shall be measured against a baseline ROE for the 12-month period ended
September 30, 2007 (“Baseline”).
|
ROE
Percentage Point
Improvement
in
Calendar
Year
Compared
to Baseline
|
Percentage
of
ROE
Option
Shares
to Vest
|
|
14%
|
100%
|
|
12%
|
90%
|
|
10%
|
75%
|
|
8%
|
60%
|
|
6%
|
45%
|
|
4%
|
30%
|
|
2%
|
15%
|
|
0%
|
0%
|
ROE
determinations for each period will be made by the Board of Directors, or a duly
authorized committee thereof, promptly following the date the Company files its
annual report on Form 10-K with the Securities and Exchange Commission for that
period and will be based upon the Company’s audited financial statements for the
applicable calendar year and the unaudited financial statements for the Baseline
period. The ROE Option Shares, if any, that are not vested as of the
date that the Board makes the final determination of ROE for the seventh
calendar year (_______) shall be forfeited.
“Return
on Equity” or “ROE” shall be determined using the Company’s non-GAAP net income
as published in an earnings release, adding the provision for income taxes and
subtracting the non-GAAP related tax adjustments for the applicable period
and dividing by the average common stockholder equity during the same
period.
Notwithstanding
the foregoing, the ROE Option Shares will vest in full at the end of the first
twenty (20) consecutive trading day period following the Effective Date during which the
common stock of the Company, as quoted on NASDAQ (or on such other exchange as
such shares may be traded), trades (without regard to the closing price) at a
price per share of at least $101.68, as adjusted for stock splits and stock
dividends.
3.3.2. RSU
Grant. Effective as of the Effective Date, pursuant to a
restricted stock unit agreement, Executive will be granted
_____________________________ (________) restricted stock units (the “Restricted
Stock Unit Grant”), with each unit representing the right to receive one share
of the Company’s common stock, said restricted stock units to vest in equal
twenty-five percent (25%) increments on each of the first four (4) anniversaries
of the Effective Date, as long as Executive is employed by the Company on each
such vesting date.
3.4.
Benefits;
Expenses. During the Term, the Company shall provide Executive
and his dependents with medical insurance and such other cash and noncash
benefits, on the same terms and conditions, as amended from time to time, as are
generally made available by the Company to its full-time executive
officers. Executive shall be entitled to four (4) weeks of paid
vacation per year. The Company shall pay, or reimburse Executive for,
all business expenses incurred by Executive which are related to the performance
of Executive's duties, subject to timely submission by Executive of payment or
reimbursement requests and appropriate documentation, in accordance with the
Company’s reimbursement policies.
3.5.
Participation in Equity
Incentive Plans. During the Term, in addition to the Stock
Option and Restricted Stock Unit Grant, Executive shall be entitled to
participate in the Company’s stock incentive plans to the extent and in the
manner determined by the Board of Directors in its absolute
discretion.
Article 4.
Termination
4.1.
Termination. Executive’s
employment hereunder shall terminate upon the occurrence of any of the following
events:
4.1.1. Immediately
upon the Executive’s death;
4.1.2. The
termination of the Executive’s employment by the Company for Disability (as
defined below), to be effective immediately upon delivery of notice
thereof;
4.1.3. The
termination of Executive’s employment by the Company for Cause (as defined
below), to be effective immediately upon delivery of notice
thereof;
4.1.4. The
termination of Executive’s employment by the Company without Cause and not as a
result of Executive’s death or Disability, to be effective thirty (30) days
after the Company delivers written notice thereof to the Executive;
4.1.5. The
termination of Executive’s employment by Executive without Good Reason (as
defined below), to be effective thirty (30) days after Executive delivers
written notice thereof from Executive to the Company; or
4.1.6. The
termination of Executive’s employment by Executive with Good Reason (as defined
below), to be effective as set forth below.
4.2.
For
purposes of this Agreement, the following definitions shall apply:
4.2.1. “Cause”
shall mean (i) Executive’s continued failure to perform (other than by
reason of death or illness or other physical or mental incapacity) his duties
and responsibilities as assigned by the Chief Executive Officer or Board in
accordance with Section 1.2 above, which is not remedied after thirty (30) days’
written notice from the Company (if such failure is susceptible to cure),
(ii) a breach by the Executive of this Agreement or any other material
written agreement between Executive and the Company, which is not cured after
ten (10) days’ written notice from the Company (if such breach is
susceptible to cure), (iii) Executive’s gross negligence or willful misconduct,
(iv) Executive’s material violation of a material Company policy (for
purposes of this clause, the Company’s Code of Business Conduct and Ethics shall
be deemed a material Company policy), which is not cured after ten
(10) days’ written notice from the Company (if such violation is
susceptible to cure), (v) fraud, embezzlement or other material dishonesty
with respect to the Company, (vi) conviction of a crime constituting a
felony (which shall not include any crime or offense related to traffic
infractions or as a result of vicarious liability) or conviction of any other
crime involving fraud, dishonesty or moral turpitude or (vii) failing or
refusing to cooperate, as reasonably requested in writing by the Company, in any
internal or external investigation of any matter in which the Company has a
material interest (financial or otherwise) in the outcome of the
investigation.
4.2.2. “Change-in-Control
of the Company” shall be deemed to have occurred only if any of the following
events occur:
(i) The
acquisition by an individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”)) (a “Person”) of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of 30% or more of
either (a) the then outstanding shares of common stock of the Company (the
“Outstanding Company Common Stock”) or (b) the combined voting power of the
then outstanding voting securities of the Company entitled to vote generally in
the election of directors (the “Outstanding Company Voting Securities”);
provided, however, that for purposes of this section, the following acquisitions
shall not constitute a Change of Control: (A) any acquisition
directly from the Company, (B) any acquisition by the Company, (C) any
acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any corporation controlled by the Company, or
(D) any acquisition pursuant to a transaction which satisfies the criteria
set forth in clauses (a) and (b) of Section 4.2.2(iii); or
(ii) Individuals
who, as of the Effective Date, constitute the Board (the “Incumbent Board”)
cease for any reason to constitute at least a majority of the Board; provided,
however, that any individual becoming a director subsequent to the Effective
Date whose election, or nomination for election by the Company’s shareholders,
was approved by a vote of at least a majority of the directors then comprising
the Incumbent Board shall be considered as though such individual were a member
of the Incumbent Board, but excluding, for this purpose, any such individual
whose initial assumption of office occurs as a result of an actual or threatened
election contest with respect to the election or removal of directors or other
actual or threatened solicitation of proxies or consents by or on behalf of a
Person other than the Board; or
(iii) Consummation
of a reorganization, merger or consolidation or sale or other disposition of all
or substantially all of the operating assets of the Company (a “Business
Combination”), in each case, unless, following such Business Combination,
(a) all or substantially all of the individuals and entities who were the
beneficial owners, respectively, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities immediately prior to such Business
Combination beneficially own, directly or indirectly, more than 40% of,
respectively, the then-outstanding shares of common stock (or other equity
interests, in the case of an entity other than a corporation), and the combined
voting power of the then-outstanding voting securities of the corporation or
other entity resulting from such Business Combination (which as used in this
section shall include, without limitation, a corporation or other entity which
as a result of such transaction owns all or substantially all of the Company’s
assets either directly or through one or more subsidiaries) in substantially the
same proportions as their ownership immediately prior to such Business
Combination of the Outstanding Company Common Stock and Outstanding Company
Voting Securities, as the case may be, and (b) no Person (excluding any
corporation or other entity resulting from such Business Combination or any
employee benefit plan (or related trust) of the Company or such corporation
resulting from such Business Combination) beneficially owns, directly or
indirectly, 30% or more of, respectively, the then outstanding shares of common
stock (or other equity interests, in the case of an entity other than a
corporation) of the corporation or other entity resulting from such Business
Combination, or the combined voting power of the then-outstanding voting
securities of such corporation or other entity;
provided,
however, that as used in Sections 2.1.2, 4.2.6, 4.3 and Article 5, a
“Change-in-Control of the Company” shall be deemed to occur only if any of the
foregoing events occur and such event that occurs is a “change in the ownership
or effective control of a corporation, or a change in the ownership of a
substantial portion of the assets of a corporation” as defined in Treasury Reg.
§ 1.409A-3(i)(5).
4.2.3. “Date of
Termination” shall mean the date of Executive’s “separation from service” with
the Company, as determined under Treasury Reg. § 1.409A-1(h).
4.2.4. “Disability”
shall mean Executive’s absence from the full-time performance of his duties with
the Company for more than one hundred and eighty (180) days during a three
hundred and sixty-five (365) day period as a result of incapacity due to mental
or physical illness, as a result of which Executive is deemed “disabled” by the
institution appointed by the Company to administer its long-term disability plan
(or any successor plan).
4.2.5. “Good
Reason” shall mean any material breach of this Agreement by the Company and/or
the occurrence of any one or more of the following without Executive’s prior
express written consent: (i) a material diminution in Executive’s
authority, duties or responsibility from those in effect as of the Effective
Date; (ii) a material diminution in Executive’s Base Salary as in effect on the
Effective Date or as may be increased from time to time, other than a reduction
which is part of an across-the board proportionate reduction in the salaries of
all senior executives of the Company imposed because the Company is experiencing
financial hardship (provided such reduction is not more than twenty percent
(20%) and does not continue for more than twelve (12) months); and (iii) a
material change in Executive’s office location (it being agreed that as of the
Effective Date such office location shall be deemed to be Tewksbury,
Massachusetts); provided, however, that a termination for Good Reason by
Executive can occur only if (a) Executive has given the Company a notice of the
existence of a condition giving rise to Good Reason within ninety (90) days
after the initial occurrence of the condition giving rise to Good Reason and (b)
the Company has not cured the condition giving rise to Good Reason within thirty
(30) days after receipt of such notice. A termination for Good
Reason shall occur thirty (30) days after the end of such thirty (30) day cure
period.
4.2.6. A
“Potential Change-in-Control Period” shall be deemed to exist (i) commencing
upon the date on which the Company shall have announced that it has entered into
a merger, acquisition or similar agreement, the consummation of which would
result in the occurrence of a Change-in-Control of the Company and ending on the
earlier of (a) the date on which the transaction governed by such agreement has
been consummated or (b) the Company shall have announced that it has terminated
such agreement, or (ii) commencing on the date on which any Person shall
publicly announce an intention to take actions which if consummated would
constitute a Change-in-Control of the Company and ending on the earlier of (a)
the date on which such actions have caused the consummation of a
Change-in-Control of the Company or (b) such Person shall publicly announce the
termination of its intentions to take such actions.
4.2.7. “Pro
Ration Percentage” shall mean the amount, expressed as a percentage, equal to
the number of days in the then current fiscal year through the Date of
Termination, divided by three hundred and sixty-five (365).
4.2.8. “Termination
Bonus Amount” shall mean the greater of (i) Executive’s highest Annual
Incentive Bonus earned in the two most recent full fiscal years preceding the
Date of Termination, or (ii) One Hundred percent (100%) of Executive’s Base
Salary in effect as of the Date of Termination.
4.3.
Adjustments Upon
Termination.
4.3.1. Death or
Disability. If during the Term, Executive’s employment with
the Company terminates pursuant to Section 4.1.1 or Section 4.1.2, subject
to Section 4.5, the Company shall pay to Executive or Executive’s heirs,
successors or legal representatives, as the case may be, Executive’s Base Salary
in effect as of the date Executive’s employment with the Company terminates
(less, in the case of a termination of employment as a result of Disability, the
amount of any payments made to the Executive under any long-term disability plan
of the Company). Such payments shall be made over the 12-month period
that commences on the Date of Termination; provided that if termination of
employment due to death or Disability occurs after a Change-in-Control of the
Company, the total of such payments shall be made in a lump sum within thirty
(30) days following the Date of Termination. Notwithstanding any
provision to the contrary in any Company stock plan, or under the terms of any
grant, award agreement or form for exercising any right under any such plan
(including, without limitation, the agreements evidencing the Stock Option and
the Restricted Stock Unit Grant), any stock options, restricted stock awards,
restricted stock unit awards, stock appreciation rights or other equity
participation rights held by Executive as of the date of death or Disability
shall become exercisable or vested, as the case may be, with respect to all
time-based awards as to an additional number of shares equal to the number that
would have been exercisable or vested as of the end of the twelve (12) month
period immediately following the Date of Termination, but all performance-based
vesting awards that have not vested as of such Date of Termination shall be
forfeited as of such date.
4.3.2. With Cause or Without Good
Reason. If Executive’s employment with the Company terminates
pursuant to Section 4.1.3 or Section 4.1.5, (i) all payments and
benefits provided to Executive under this Agreement shall cease as of the Date
of Termination, except that Executive shall be entitled to any amounts earned,
accrued or owing but not yet paid under Section 3.1 and any benefits due in
accordance with the terms of any applicable benefit plans and programs of the
Company and (ii) all vesting of all stock options, restricted stock awards,
restricted stock unit awards, stock appreciation rights or other equity
participation rights then held by the Executive shall immediately cease as of
the date Executive’s employment with the Company terminates.
4.3.3. Without Cause or with Good
Reason Other than during a Potential Change-in-Control Period or After a
Change-in-Control of the Company. If Executive’s employment
with the Company terminates pursuant to Section 4.1.4 or Section 4.1.6,
other than during a Potential Change-in-Control period or within twelve (12)
months after a Change-in-Control of the Company, subject to Section
4.5:
(i) Within
thirty (30) days following the Date of Termination, the Company shall pay
Executive in a lump sum in cash the sum of (a) any accrued but unpaid Base
Salary through the Date of Termination plus (b) the Annual Incentive Bonus for
the fiscal year preceding the fiscal year in which the Date of Termination
occurs, if earned and unpaid, plus (c) any accrued but unused vacation
pay;
(ii) The
Company shall pay Executive, as severance pay, his Base Salary in effect as of
the Date of Termination in accordance with Section 3.1 for twelve (12) months
after the Date of Termination (the “Severance Pay Period”);
(iii) The
Company shall pay Executive the Annual Incentive Bonus for the year in which the
Date of Termination occurred, in the amount of Executive’s Target Bonus
multiplied by the applicable actual plan payout factor and pro rated by the
number of months Executive was employed by the Company during the year of the
Date of Termination; provided, however, that any individual performance
component of such payout factor shall be determined by the Compensation
Committee of the Board of Directors as it deems appropriate under the
circumstances in its sole discretion; and provided further, that such Annual
Incentive Bonus will be paid only if the Company pays bonuses, on account of the
year in which the Date of Termination occurred, to executives who remain
employed with the Company and will be paid in a lump sum on or about the date on
which the Company pays bonuses to executives who remain employed with the
Company;
(iv) If
Executive is eligible to receive and elects to continue receiving any group
medical and dental insurance coverage under COBRA, the Company shall reimburse
the monthly COBRA premium in an amount equal to the portion of such premium that
the Company pays on behalf of active and similarly situated employees receiving
the same type of coverage until the earlier of (a) the end of the Severance Pay
Period or (b) the date on which Executive becomes eligible to receive group
medical and dental insurance benefits from another employer that are
substantially equivalent to those provided by the Company as of the Date of
Termination (Executive agrees to notify the Company in writing promptly upon
becoming eligible to receive such group medical and dental insurance from
another employer);
(v) The
Company shall provide Executive, at the Company’s sole cost, with executive
outplacement assistance in accordance with the Company’s then-current executive
outplacement program, provided that no outplacement benefits shall be provided
after the end of the second calendar year following the calendar year in which
the Date of Termination occurs;
(vi) Notwithstanding
any provision to the contrary in any Company stock plan, or under the terms of
any grant, award agreement or form for exercising any right under any such plan
(including, without limitation, the agreements evidencing the Stock Option and
the Restricted Stock Unit Grant), any stock options, restricted stock awards,
restricted stock unit awards, stock appreciation rights or other equity
participation rights held by Executive as of the Date of Termination become
exercisable or vested, as the case may be, with respect to all time-based
vesting awards as to an additional number of shares equal to the number that
would have been exercisable or vested as of the end of the twelve (12) month
period immediately following the Date of Termination, but all performance-based
vesting awards that have not vested as of the Date of Termination shall be
forfeited as of such date except that if
the Date of Termination takes place after December 31 of a calendar year during
the Term but prior to the computation of ROE with respect to such calendar year,
a determination will be made as to the additional number of shares, if any, to
be vested as a result of such ROE computation, prior to the forfeiture of the
remaining unvested shares; and
(viii)
Executive shall be entitled to exercise any such options or other awards or
equity participation rights until 12 months after the Date of Termination,
but all performance-based vesting awards that have not, as of such date, vested
shall be forfeited as of such date. No other payments or benefits
shall be due under this Agreement to Executive, but Executive shall be entitled
to any benefits accrued or earned in accordance with the terms of any applicable
benefit plans and programs of the Company.
4.3.4. Without Cause or with Good
Reason After a Change-in-Control of the Company. If, within
twelve (12) months after a Change-in-Control of the Company, Executive shall
terminate Executive’s employment pursuant to Section 4.1.6 or the Company shall
terminate Executive’s employment pursuant to Section 4.1.4, then in any such
event, subject to Section 4.5:
(i) The
Company shall pay Executive as severance pay (without regard to the provisions
of any benefit plan) in a lump sum in cash no more than thirty (30) days
following the Date of Termination, the following amounts:
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(a)
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the
sum of (A) Executive’s accrued but unpaid Base Salary through the
Date of Termination, plus (B) the Annual Incentive Bonus for the
fiscal year preceding the fiscal year in which the Date of Termination
occurs, if earned and unpaid, plus (C) the product of
(1) Executive’s Termination Bonus Amount, and (2) the Pro Ration
Percentage, plus (D) any accrued but unused vacation pay;
and
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(b)
|
the
amount equal to one and a half (1.5) times the sum of (A) Executive’s
Base Salary in effect as of the Date of Termination, plus
(B) Executive’s Termination Bonus
Amount.
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(ii) If
Executive is eligible to receive and elects to continue receiving any group
medical and dental insurance coverage under COBRA, the Company shall reimburse
the monthly COBRA premium (on a fully grossed up basis, if such reimbursement is
taxable to Executive) in an amount equal to the portion of such premium that the
Company pays on behalf of active and similarly situated employees receiving the
same type of coverage until the earlier of (a) the date that is eighteen (18)
months after the Date of Termination or (b) the date on which Executive becomes
eligible to receive group medical and dental insurance benefits from another
employer that are substantially equivalent (including, without limitation,
equivalent as to benefits, premiums and co-pay amounts) to those provided by the
Company as of the Date of Termination (Executive agrees to notify the Company in
writing promptly upon becoming eligible to receive such group medical and dental
insurance from another employer);
(iii) Notwithstanding
anything to the contrary in the applicable stock option or restricted stock unit
agreement (including, without limitation, the agreements evidencing the Stock
Option and the Restricted Stock Unit Grant), the exercisability of all
outstanding stock options, restricted stock awards, restricted stock unit
awards, stock appreciation rights and other equity participation rights
(including the right to receive restricted stock pursuant to the Restricted
Stock Unit Grant or other instrument) then held by Executive with respect to the
common stock of the Company (or securities exchanged for such common stock in
connection with the Change-in-Control of the Company) shall accelerate in full
and Executive shall be entitled to exercise any such options or other awards or
equity appreciation rights until eighteen (18) months after the Date of
Termination; and
(iv) The
Company shall provide Executive, at the Company’s sole cost, with executive
outplacement assistance in accordance with the Company’s then-current executive
outplacement program, provided that no outplacement benefits shall be provided
after the end of the second calendar year following the calendar year in which
the Date of Termination occurs.
4.3.5. Without Cause or with Good
Reason During a Potential Change-in-Control Period. If, during
the existence of a Potential Change-in-Control Period, Executive shall terminate
Executive’s employment pursuant to Section 4.1.6 or the Company shall terminate
Executive’s employment pursuant to Section 4.1.4, then in any such event,
subject to Section 4.5, Executive shall receive the payments, benefits and
rights set forth in Sections 4.3.4, except that any amounts payable pursuant to
Section 4.3.4(i)(b) shall be paid over the eighteen (18) month period that
commences on the Date of Termination, if such date occurs more than thirty (30)
days prior to the Change-in-Control of the Company that is the subject of the
Potential Change-in-Control Period; otherwise, such amount shall be paid in a
lump sum on the date that such Change-in-Control of the Company
occurs. Notwithstanding the foregoing, if the Change-in-Control of
the Company (that is the subject of the Potential Change-in-Control Period)
occurs more than thirty (30) days after the Date of Termination, and payments of
the amount payable pursuant to Section 4.3.4(i)(b) have begun over an 18-month
period, pursuant to the preceding sentence, the balance of the amount payable
pursuant to Section 4.3.4(i)(b) shall be paid to Executive in a lump sum on the
date such Change-in-Control of the Company occurs.
4.4.
Section
409A.
4.4.1. Payments
to Executive under this Article 4 shall be bifurcated into two portions,
consisting of a portion that does not constitute “nonqualified deferred
compensation” within the meaning of Section 409A of the Code and a portion that
does constitute nonqualified deferred compensation. Payments
hereunder shall first be made from the portion, if any, that does not consist of
nonqualified deferred compensation until it is exhausted and then shall be made
from the portion that does constitute nonqualified deferred
compensation. However, if Executive is a “specified employee” as
defined in Section 409A(a)(2)(B)(i) of the Code, to the extent required by
Section 409A of the Code, the commencement of the delivery of any such payments
that constitute nonqualified deferred compensation will be delayed to the date
that is six (6) months and one (1) day after Executive’s Date of Termination
(the “Earliest Payment Date”). Any payments that are delayed pursuant
to the preceding sentence shall be paid on the Earliest Payment
Date. The determination of whether, and the extent to which, any of
the payments to be made to Executive hereunder are nonqualified deferred
compensation shall be made after the application of all applicable exclusions
under Treasury Reg. § 1.409A-1(b)(9). Any payments that are intended
to qualify for the exclusion for separation pay due to involuntary separation
from service set forth in Treasury Reg. § 1.409A-1(b)(9)(iii) must be paid no
later than the last day of the second taxable year of Executive following the
taxable year of Executive in which the Date of Termination occurs.
4.4.2. The
parties acknowledge and agree that the interpretation of Section 409A of the
Code and its application to the terms of this Agreement are uncertain and may be
subject to change as additional guidance and interpretations become
available. Anything to the contrary herein notwithstanding, all
benefits or payments provided by the Company to Executive that would be deemed
to constitute “nonqualified deferred compensation” within the meaning of
Section 409A of the Code are intended to comply with Section 409A of the
Code. If, however, any such benefit or payment is deemed to not
comply with Section 409A of the Code, the Company and Executive agree to
renegotiate in good faith any such benefit or payment (including, without
limitation, as to the timing of any severance payments payable hereof) so that
either (i) Section 409A of the Code will not apply or (ii) compliance with
Section 409A of the Code will be achieved; provided, however, that any deferral
of payments or other benefits shall be only for such time period as may be
required to comply with Section 409A; and provided, further, that
payments or other benefits that occur as a result of the application of this
section shall themselves comply with Section 409A of the
Code.
4.5.
General
Release. In order to be eligible to receive any of the salary
or benefits under Article 4 hereof, Executive (or his personal representative,
if applicable) shall be required to execute and deliver to the Company (without
subsequent revocation) a general release of claims against the Company,
excluding any claims concerning the Company’s obligations under this Agreement
in a form provided by and reasonably satisfactory to the Company which shall
contain a release of claims by Executive substantially in the form attached
hereto as Exhibit
A, and shall be required to sign such other agreements as executive
employees of the Company are generally required to sign if Executive shall not
have already done so, provided, however, that such other agreements do not cause
any changes to the provisions herein or in any restricted stock, restricted
stock unit, stock option or similar compensatory or benefit agreement between
the Executive and the Company. The Company shall have no other
liability or obligation under this Agreement to Executive’s executors, legal
representatives, administrators, heirs or assigns or any other person claiming
under or through Executive.
Article 5.
Non-Competition
and Non-Solicitation
5.1.
Non-Competition and
Non-Solicitation. Executive acknowledges the highly
competitive nature of the businesses of the Company and accordingly agrees that
while Executive is employed by the Company and for a period of the longer of (i)
one year after the Date of Termination, in the case of a termination other than
within 12 months after a Change-in-Control of the Company, and (ii) 18 months
after the Date of Termination in the case of a termination within 12 months
after a Change-in-Control of the Company:
5.1.1. Executive
will not perform services for or own an interest in (except for investments of
not more than five percent (5%) of the equity interest in a company or
entity in which Executive does not actively participate in management) any firm,
person or other entity that competes or plans to compete in any geographic area
with the Company in the business of the development, manufacture, promotion,
distribution or sale of digital film, video or audio production tools,
including, but not limited to, editing, live sound, broadcast or newsroom
products or automation systems, content-creation tools, media storage, computer
graphics or on-air graphics, or other business or services in which the Company
is engaged or plans (as evidenced by consideration by the Company’s executive
staff or by the Board) to engage at the time Executive’s employment with the
Company terminates.
5.1.2. Executive
will not directly or indirectly assist others in engaging in any of the
activities in which Executive is prohibited to engage by
Section 5.1.1.
5.1.3. Executive
will not directly or indirectly either alone or in association with others (i)
solicit or employ, or permit any organization directly or indirectly controlled
by Executive to solicit or employ, any person who was employed by the Company at
any time within one year prior to such solicitation or employment, or (ii)
solicit, hire or engage as an independent contractor, or permit any organization
directly or indirectly controlled by Executive to solicit, hire or engage as an
independent contractor, any person who was employed by the Company at any time
within one year prior to such solicitation, hiring or engagement or (iii)
solicit, or permit any organization directly or indirectly controlled by
Executive, to solicit any person who is an employee of the Company to leave the
employ of the Company.
5.1.4. Executive
will not directly or indirectly either alone or in association with others
solicit, or permit any organization directly or indirectly controlled by
Executive to solicit, any current or future customer or supplier of the Company
to cease doing business in whole or in part with the Company or otherwise
adversely modify his, her or its business relationship with the
Company.
5.2.
Reasonableness
of Restrictions. It is expressly
understood and agreed that (i) although Executive and the Company consider
the restrictions contained in this Article 5 to be reasonable, if a final
judicial determination is made by a court of competent jurisdiction that the
time or territory or any other restriction contained in this Article 5 is
unenforceable, such restriction shall not be rendered void but shall be deemed
to be enforceable to such maximum extent as such court may determine or indicate
to be enforceable and (ii) if any restriction contained in this Agreement
is determined to be unenforceable and such restriction cannot be amended so as
to make it enforceable, such finding shall not affect the enforceability of any
other restrictions contained herein.
5.3.
Remedies for
Breach. Executive acknowledges and agrees that the Company’s
remedies at law for a breach or threatened breach of any of the provisions of
this Article 5 would be inadequate and, in recognition of this fact,
Executive agrees that, in the event of such a breach or threatened breach, in
addition to any remedies at law, the Company, without posting any bond, shall be
entitled to obtain equitable relief in the form of specific performance,
temporary restraining orders, temporary or permanent injunctions or any other
equitable remedy which may then be available. In addition, in the
event of a breach of Article 5 which is not remedied after ten (10) days’
written notice from the Company (if such breach is susceptible to cure), whether
or not Executive is employed by the Company, the Company shall cease to have any
obligations to make payments to Executive under this Agreement (except for
payments, if any, earned prior to such breach).
Article 6.
Assignment of
Inventions and Non-Disclosure
6.1.
Proprietary
Information.
6.1.1. Executive
agrees that all information and know-how, whether or not in writing, of a
private, secret or confidential nature concerning (i) the Company's present or
future business or financial affairs, (ii) the research and development or
investigation activities of the Company, or (iii) the business relations and
affairs of any client, customer or vendor of the Company, of which such
information is not generally known to the public, industry or trade, and which
the Company takes reasonable steps to safeguard and protect from disclosure
(collectively, "Proprietary Information") is and shall be the exclusive property
of the Company. By way of illustration, but not limitation,
Proprietary Information includes trade secrets, inventions, products, processes,
methods, techniques, formulas, compositions, compounds, projects, developments,
plans, research data, clinical data, financial data, personnel data of other
employees, computer programs and customer and supplier
lists. Executive shall not at any time, either during or after
employment with the Company, disclose any Proprietary Information to others
outside the Company except as required in the performance of his duties for the
Company (and under an appropriate confidentiality agreement), or as required by
law, or use the same for any unauthorized purposes without prior written
approval by the Company unless and until such Proprietary Information has become
public knowledge without fault by Executive.
6.1.2. Executive
agrees that all files, letters, memoranda, reports, records, data, sketches,
drawings, laboratory notebooks, program listings, or other written,
photographic, or other tangible material containing Proprietary Information,
whether created by Executive or others, which shall come into his custody or
possession, shall be and are the exclusive property of the Company to be used by
Executive only in the performance of his duties for the Company. All
such records or copies thereof and all tangible property of the Company in
Executive’s custody or possession shall be delivered to the Company, upon the
earlier of (i) a request by the Company or (ii) termination of Executive’s
employment. After such delivery, Executive shall not retain any such
records or copies thereof or any such tangible property.
6.1.3. Executive
agrees that his obligation not to disclose or to use information, know-how and
records of the types set forth in paragraphs 6.1.1 and 6.1.2 above, and his
obligation to return records and tangible property, set forth in paragraph 6.1.2
above, also extend to such types of information, know-how, records and tangible
property of clients and customers of the Company or vendors and suppliers to the
Company or other third parties who may have disclosed or entrusted the same to
the Company or to Executive in the course of the Company's
business.
6.2.
Innovations.
6.2.1. As used
herein, the term “Innovation(s)” means any new or useful art, discovery,
improvement, developments or inventions whether or not patentable, and all
related know-how, designs, maskworks, trademarks, formulae, processes,
manufacturing techniques, trade secrets, ideas, artwork, software or other
copyrightable or patentable works, including all rights to obtain, register,
perfect and enforce these proprietary interests. Executive shall make
full and prompt disclosure to the Company of all Innovations whether patentable
or not, which are created, made, conceived or reduced to practice by Executive
or under Executive’s direction or jointly with others during his employment by
the Company, whether or not during normal working hours or on the premises of
the Company.
6.2.2. Executive
agrees to assign and does hereby grant and assign to the Company (or any person
or entity designated by the Company) all of Executive’s right, title and
interest in and to all Innovations and all related patents, patent applications,
copyrights and copyright applications, which Executive may solely or jointly
conceive, develop or reduce to practice during the period of Executive’s
employment with the Company. This paragraph 6.2.2 shall not apply to
Innovations that do not relate to the present or planned business or research
and development of the Company and which are made and conceived by Executive not
during normal working hours, not on the Company's premises and not using the
Company's tools, devices, equipment or Proprietary
Information. Executive acknowledges that, to the extent this
Agreement is construed in accordance with the laws of any state which precludes
a requirement in an employee agreement to assign certain classes of inventions
made by an employee, this paragraph 6.2.2 shall be interpreted not to apply to
any invention that a court rules and/or the Company agrees falls within such
classes.
6.2.3. Executive
agrees to cooperate fully with the Company, both during and after his employment
with the Company, with respect to the procurement, maintenance and enforcement
of all intellectual property rights, including but not limited to copyrights and
patents (both in the U.S. and foreign countries), relating to
Innovations. Executive agrees to sign all papers,
including, without limitation, copyright applications, patent applications,
declarations, oaths, formal assignment of priority rights, and powers of
attorney, which the Company may deem necessary or desirable in order to protect
its rights, and interests in any Innovations assigned by Executive to the
Company pursuant to paragraph 6.2.2 above or otherwise.
6.2.4. Prior to
the Effective Date, Executive shall deliver to Company, and Company shall
acknowledge receipt signed by an officer of the Company (a copy of which shall
be returned to Executive) a list describing all inventions, original works of
authorship, developments, improvements and trade secrets that were made by
Executive prior to the Effective Date (collectively referred to as "Prior
Inventions"), which belong to Executive, and which are not assigned to the
Company hereunder. If no such list is delivered prior to the
Effective Date, Executive represents that there are no such Prior
Inventions. If in the course of his employment with the Company,
Executive incorporates into a Company product, process or machine a Prior
Invention owned by Executive or in which Executive has an interest, the Company
is hereby granted and shall have a nonexclusive, royalty-free, irrevocable,
perpetual, worldwide license to make, have made, modify, use and sell such Prior
Invention as part of or in connection with such product, process or
machine.
6.3.
Other
Agreements. Executive hereby represents that, except as he has
disclosed in writing to the Company, he is not bound by the terms of any
agreement with any previous employer or other party to refrain from competing,
directly or indirectly, with the business of such previous employer or any other
party. Executive represents that his performance of all the terms of
this Agreement and as an employee of the Company does not and will not breach
any agreement to keep in confidence proprietary information, knowledge or data
acquired by Executive in confidence or in trust prior to his employment with the
Company, and Executive shall not disclose to the Company or induce the Company
to use any confidential or proprietary information or material belonging to any
previous employer or others.
6.4.
United States Government
Obligations. Executive acknowledges that the Company from time
to time may have agreements with other persons or with the United States
government, or agencies thereof, which impose obligations or restrictions on the
Company regarding inventions made during the course of work under such
agreements or regarding the confidential nature of such
work. Executive agrees to be bound by all such obligations and
restrictions that are made known to him and to take all action necessary to
discharge the obligations of the Company under such agreements.
Article 7.
Miscellaneous
7.1.
Indemnification. Executive
shall be entitled to indemnification as set forth in Article Eleventh of the
Company’s Certificate of Incorporation, a copy of which has been provided to
Executive. A directors’ and officers’ liability insurance policy (or
policies) shall be kept in place, during the Term of this Agreement and
thereafter until at least the fourth anniversary of the date the Agreement is
terminated for any reason, providing coverage to Executive that is no less
favorable to him in any respect (including, without limitation, with respect to
scope, exclusions, amounts and deductibles) than the coverage then being
provided to any other present or former officer or director of the
Company.
7.2.
No
Mitigation. The Company agrees that, except as specifically
set forth in Section 4.3.3(iv) and Section 4.3.4(ii) regarding COBRA premium
reimbursement, (i) if Executive's employment is terminated during the term of
this agreement, Executive is not required to seek other employment or to attempt
in any way to reduce any amounts payable to Executive by the Company and (ii)
the amount of any payment provided hereunder shall not be reduced by any
compensation earned by Executive.
7.3.
Obligation of
Successors. Any successor to substantially all of the
Company’s assets and business, whether by merger, consolidation, purchase of
assets or otherwise, shall succeed to the rights and obligations of the Company
hereunder. As used in this Agreement, “Company” shall mean the
Company as defined above and any successor to substantially all of its assets
and business or which otherwise becomes bound by all the terms and provisions of
this Agreement by operation of law.
7.4.
Notice. All
notices required or permitted hereunder shall be in writing and deemed
effectively given (i) when delivered in person, (ii) on the third
business day after mailing by registered or certified mail, postage prepaid,
(iii) on the next business day after delivery to an air courier for next
day delivery, paid by the sender, or (iv) when sent by telecopy or
facsimile transmission during normal business hours (9:00 a.m. to 5:00 p.m.)
where the recipient is located (or if sent after such hours, as of commencement
of the next business day), followed within twenty-four (24) hours by
notification pursuant to any of the foregoing methods of delivery, in all cases
addressed to the other party hereto as follows:
(a) If
to the Company:
Avid
Technology, Inc.
Avid
Technology Park
One Park
West
Tewksbury,
MA 01876
Attention:
Facsimile: (___)
____-_____
(b) If
to Executive:
[Executive’s
name]
[Executive’s
home address]
or at
such other address or addresses as either party shall designate to the other in
accordance with this section.
7.5.
Survival. The
respective rights and obligations of the parties under this Agreement shall
survive any termination of Executive’s employment to the extent necessary to the
intended preservation of such rights and obligations. Notwithstanding
the termination of this Agreement or Executive’s services hereunder for any
reason, Article 5 shall survive any such termination.
7.6.
Complete Agreement;
Amendments. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes any
and all prior agreements between the parties with respect to the subject matter
hereof. This
Agreement may not be modified or amended except upon written amendment approved
by the Compensation Committee of the Board, and executed by a duly authorized
officer of the Company and by Executive. No waiver by either party
hereto at any time of any breach by the other party hereto of, or compliance
with, any condition or provision of this Agreement to be performed by such other
party shall be deemed a waiver of similar or dissimilar provisions or conditions
at the same or at any time prior or subsequent time. Notwithstanding
the foregoing, the Company may unilaterally modify or amend this Agreement if
such modification or amendment is approved by the Compensation Committee of the
Board and made to all other executive employment agreements entered into between
the Company and its then-current executive officers.
7.7.
Applicable
Law. This Agreement shall be interpreted in accordance with
the laws of the Commonwealth of Massachusetts (without reference to the
conflicts of laws provisions thereof) and the parties hereby submit to the
jurisdiction of the courts of that state.
7.8.
Waiver of Jury
Trial. Executive hereby irrevocably waives any right to a
trial by jury in any action, suit, or other legal proceeding arising under or
relating to any provision of this Agreement.
7.9.
Severability. If
any non-material provision of this Agreement shall be held invalid or
unenforceable, it shall be deemed to be deleted or qualified so as to be
enforceable or valid to the maximum extent permitted by law, and the remaining
provisions shall continue in full force and effect.
7.10.
Binding
Effect. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective heirs, executors,
administrators, legal representatives, successors, assigns and personal
representatives, except that the duties, responsibilities and rights of
Executive under this Agreement are of a personal nature and shall not be
assignable or delegatable in whole or in part by Executive, except to the extent
that the rights of Executive hereunder may be enforceable by his heirs,
executors, administrators or legal representatives. If Executive
should die while any amounts would still be payable to Executive hereunder if
Executive had continued to live, all such amounts, unless otherwise provided
herein, shall be paid in accordance with the terms of this Agreement to
Executive’s devisee, legatee or other designee or, if there be no such designee,
to Executive’s estate.
7.11.
Captions. Captions
of sections have been added only for convenience and shall not be deemed to be a
part of this Agreement.
7.12.
Withholding. The
Company may withhold from any amounts payable under this Agreement such federal,
state, local or foreign taxes as shall be required to be withheld pursuant to
any applicable law or regulation.
7.13.
Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed to be an original but all of which together will constitute one in the
same instrument.
7.14.
Non-Disparagement. Executive
will not disparage the Company or any of its directors, officers, agents or
employees or otherwise take any action which could reasonably be expected to
adversely affect the reputation of the Company or the personal or professional
reputation of any of the Company’s directors, officers, agents or
employees. Nothing in this paragraph will prevent Executive from
disclosing any information to his attorneys or in response to a lawful subpoena
or court order requiring disclosure of information.
7.15.
Further
Assurances. Each party agrees to furnish and execute
additional forms and documents, and to take such further action, as shall be
reasonable and customarily required in connection with the performance of this
Agreement or the payment of benefits hereunder. In addition,
following the termination of Executive’s employment with the Company, Executive
shall reasonably cooperate with the Company to effect a smooth transition with
respect to any activities Executive engaged in on behalf of the Company, at the
Company’s behest, and otherwise in the conduct of Executive’s activities as an
employee of the Company, including, without limitation, providing the Company
with (or directing the Company to the location of) business records and other
information relating to the Company’s business.
IN
WITNESS WHEREOF, the undersigned have duly executed and delivered this Executive
Employment Agreement as of the date first above written.
Avid
Technology, Inc.
By: _______________________________
Name:
Title:
___________________________________
[Executive’s
Name]
Exhibit
A
Release provision pursuant
to Section 4.5 of the Executive Employment Agreement
In
consideration of the payment of the severance benefits, which the Executive
acknowledges he would not otherwise be entitled to receive, the Executive hereby
fully, forever, irrevocably and unconditionally releases, remises and discharges
the Company, its officers, directors, stockholders, corporate affiliates,
subsidiaries, parent companies, agents and employees (each in their individual
and corporate capacities, and collectively referred to hereinafter as the
“Released Parties”) from any and all claims, charges, complaints, demands,
actions, causes of action, suits, rights, debts, sums of money, costs, accounts,
reckonings, covenants, contracts, agreements, promises, doings, omissions,
damages, executions, obligations, liabilities, penalties and expenses (including
attorneys’ fees and costs), of every kind and nature that the Executive ever had
or now has against any or all of the Released Parties, whether existing or
contingent, known or unknown, including but not limited to: any and all claims
arising out of or relating to Executive’s employment with and/or separation from
any of the Released Parties or arising out of your relation in any capacity to
any of the Released Parties; any and all claims under any Federal, state, or
local constitution, law, or regulation; any and all wage and hour claims and
claims for discrimination, harassment, or retaliation (including claims of age
discrimination under the Age Discrimination in Employment Act, 29 U.S.C. §621 et
seq. or any other law prohibiting age discrimination); any and all common law
claims including, but not limited to, actions in defamation, intentional
infliction of emotional distress, misrepresentation, fraud, wrongful discharge,
and breach of contract; and any and all claims to any non-vested ownership
interest in the Company, contractual or otherwise. This release is intended to
be all encompassing and to act as a full and total release of all claims,
whether specifically enumerated above or not, that Executive may have or have
had against any or all of the Released Parties up to the date Executive signs
this Agreement, but nothing in this Agreement prevents Executive from filing a
charge with, cooperating with, or participating in any proceeding before the
Equal Employment Opportunity Commission or a state fair employment practices
agency (except that Executive acknowledges that he may not be able to recover
any monetary benefits in connection with any such claim, charge or proceeding
and provided further, however, that nothing herein is intended to be construed
as releasing the Company from any obligation set forth in this
Agreement.
[INCLUDE
IF EXECUTIVE IS 40 YEARS OF AGE OR OLDER]
The Executive acknowledges that he has
been given at least twenty-one (21) days to consider this Agreement and that the
Company advised him to consult with any attorney of his own choosing prior to
signing this Agreement. The Executive further acknowledges that he
may revoke this Agreement for a period of seven (7) days after the execution of
this Agreement, and the Agreement shall not be effective or enforceable until
the expiration of this seven (7) day revocation period. The Executive
understands and agrees that by entering into this Agreement he is waiving any
and all rights or claims he might have under the Age Discrimination in
Employment Act, as amended by the Older Workers Benefit Protection Act, and that
he has received consideration beyond that to which he was previously
entitled.
EXHIBIT
21
SUBSIDIARIES OF THE
REGISTRANT AS OF DECEMBER 31, 2009
MEDEA
CORPORATION (California)
PINNACLE
SYSTEMS, INC. (California)
AVID C.V.
LLC (Delaware)
AVID
TECHNOLOGY WORLDWIDE, INC. (Delaware)
INEWS,
LLC (Delaware)
M-AUDIO
LLC (Delaware)
SIBELIUS
USA, INC. (Delaware)
TRUEVISION,
INC. (Indiana)
SUNDANCE
DIGITAL, INC. (Texas)
AVID
TECHNOLOGY (AUSTRALIA) PTY LTD (Australia)
AVID
TECHNOLOGY CANADA CORP. (Canada)
MAXT
SYSTEMS INC. (Canada)
AVID
TECHNOLOGY EUROPE LIMITED (England)
AVID
TECHNOLOGY IBERIA LTD (England)
PINNACLE
SYSTEMS LTD (England)
SIBELIUS
SOFTWARE LTD (England)
AVID
TECHNOLOGY S.A.R.L. (France)
AVID
TECHNOLOGY GmbH (Germany)
AVID
TECHNOLOGY HOLDING GmbH (Germany)
AVID
DEVELOPMENT GmbH (Germany)
PINNACLE
SYSTEMS GmbH (Germany)
AVID
NORTH ASIA LIMITED (Hong Kong)
DIGIDESIGN
ITALY S.R.L. (Italy)
AVID
TECHNOLOGY K.K. (Japan)
AVID
TECHNOLOGY MEXICO S de R L de CV (Mexico)
AVID
BENELUX B.V. (Netherlands)
AVID
GENERAL PARTNER B.V. (Netherlands)
AVID
TECHNOLOGY C.V. (Netherlands)
AVID
TECHNOLOGY HOLDING B.V. (Netherlands)
AVID
TECHNOLOGY INTERNATIONAL B.V. (Netherlands)
AVID
TECHNOLOGY (NEW ZEALAND) LIMITED (New Zealand)
AVID
TECHNOLOGY (S.E. ASIA) PTE LTD (Singapore)
AVID
TECHNOLOGY S.L. (Spain)
AVID
NORDIC AB (Sweden)
EXHIBIT
23.1
Consent
of Independent Registered Public Accounting Firm
We
consent to the incorporation by reference in the Registration Statements on Form
S-8 (File Nos. 33-88318, 33-64126, 33-64128, 33-82478, 33-98692, 333-08821,
333-08823, 333-08825, 333-30367, 333-42569, 333-56631, 333-60181, 333-60183,
333-60191, 333-73321, 333-87539, 333-94167, 333-33674, 333-37952, 333-41750,
333-48338, 333-48340, 333-64016, 333-75470, 333-102772, 333-118704, 333-128320,
333-136991, 33-64130, 33-64124, 333-42571, 333-151202) of our reports dated
March 16, 2010, with respect to the consolidated financial statements and
schedule of Avid Technology, Inc. and the effectiveness of internal control over
financial reporting of Avid Technology, Inc., included in this Annual Report
(Form 10-K) for the year ended December 31, 2009.
/s/ Ernst
& Young LLP
Boston,
Massachusetts
March 16,
2010
EXHIBIT
31.1
CERTIFICATION
|
|
I,
Gary G. Greenfield, certify that:
|
|
1.
|
I
have reviewed this Annual Report on Form 10-K of Avid Technology,
Inc.;
|
|
2.
|
Based
on my knowledge, this report does not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by this
report;
|
|
3.
|
Based
on my knowledge, the financial statements, and other financial information
included in this report, fairly present in all material respects the
financial condition, results of operations and cash flows of the
registrant as of, and for, the periods presented in this
report;
|
|
4.
|
The
registrant’s other certifying officer and I are responsible for
establishing and maintaining disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal
control over financial reporting (as defined in Exchange Act Rules
13a-15(f) and 15d-15(f)) for the registrant and
have:
|
|
|
a)
|
Designed
such disclosure controls and procedures, or caused such disclosure
controls and procedures to be designed under our supervision, to ensure
that material information relating to the registrant, including its
consolidated subsidiaries, is made known to us by others within those
entities, particularly during the period in which this report is being
prepared;
|
|
|
b)
|
Designed
such internal control over financial reporting, or caused such internal
control over financial reporting to be designed under our supervision, 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;
|
|
|
c)
|
Evaluated
the effectiveness of the registrant’s disclosure controls and procedures
and presented in this report our conclusions about the effectiveness of
the disclosure controls and procedures, as of the end of the period
covered by this report based on such evaluation;
and
|
|
|
d)
|
Disclosed
in this report any change in the registrant’s internal control over
financial reporting that occurred during the registrant’s most recent
fiscal quarter (the registrant’s fourth fiscal quarter in the case of an
annual report) that has materially affected, or is reasonably likely to
materially affect, the registrant’s internal control over financial
reporting; and
|
|
5.
|
The
registrant’s other certifying officer and I have disclosed, based on our
most recent evaluation of internal control over financial reporting, to
the registrant’s auditors and the audit committee of the registrant’s
board of directors (or persons performing the equivalent
functions):
|
|
|
a)
|
All
significant deficiencies and material weaknesses in the design or
operation of internal control over financial reporting which are
reasonably likely to adversely affect the registrant’s ability to record,
process, summarize and report financial information;
and
|
|
|
b)
|
Any
fraud, whether or not material, that involves management or other
employees who have a significant role in the registrant’s internal control
over financial reporting.
|
|
Date: March
16, 2010
|
/s/ Gary G.
Greenfield
|
|
Gary
G. Greenfield
Chairman
of the Board of Directors,
Chief
Executive Officer and President
(Principal
Executive
Officer)
|
EXHIBIT
31.2
CERTIFICATION
|
|
I,
Ken Sexton, certify that:
|
|
1.
|
I
have reviewed this Annual Report on Form 10-K of Avid Technology,
Inc.;
|
|
2.
|
Based
on my knowledge, this report does not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by this
report;
|
|
3.
|
Based
on my knowledge, the financial statements, and other financial information
included in this report, fairly present in all material respects the
financial condition, results of operations and cash flows of the
registrant as of, and for, the periods presented in this
report;
|
|
4.
|
The
registrant’s other certifying officer and I are responsible for
establishing and maintaining disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal
control over financial reporting (as defined in Exchange Act Rules
13a-15(f) and 15d-15(f)) for the registrant and
have:
|
|
|
a)
|
Designed
such disclosure controls and procedures, or caused such disclosure
controls and procedures to be designed under our supervision, to ensure
that material information relating to the registrant, including its
consolidated subsidiaries, is made known to us by others within those
entities, particularly during the period in which this report is being
prepared;
|
|
|
b)
|
Designed
such internal control over financial reporting, or caused such internal
control over financial reporting to be designed under our supervision, 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;
|
|
|
c)
|
Evaluated
the effectiveness of the registrant’s disclosure controls and procedures
and presented in this report our conclusions about the effectiveness of
the disclosure controls and procedures, as of the end of the period
covered by this report based on such evaluation;
and
|
|
|
d)
|
Disclosed
in this report any change in the registrant’s internal control over
financial reporting that occurred during the registrant’s most recent
fiscal quarter (the registrant’s fourth fiscal quarter in the case of an
annual report) that has materially affected, or is reasonably likely to
materially affect, the registrant’s internal control over financial
reporting; and
|
|
5.
|
The
registrant’s other certifying officer and I have disclosed, based on our
most recent evaluation of internal control over financial reporting, to
the registrant’s auditors and the audit committee of the registrant’s
board of directors (or persons performing the equivalent
functions):
|
|
|
a)
|
All
significant deficiencies and material weaknesses in the design or
operation of internal control over financial reporting which are
reasonably likely to adversely affect the registrant’s ability to record,
process, summarize and report financial information;
and
|
|
|
b)
|
Any
fraud, whether or not material, that involves management or other
employees who have a significant role in the registrant’s internal control
over financial reporting.
|
|
Date: March
16, 2010
|
/s/ Ken
Sexton
|
|
|
Ken
Sexton
Executive
Vice President, Chief Financial Officer
and
Chief Administrative Officer
(Principal
Financial and Accounting
Officer)
|
||
EXHIBIT
32.1
CERTIFICATION
PURSUANT TO 18 U.S.C. SECTION 1350,
AS
ADOPTED PURSUANT TO
SECTION
906 OF THE SARBANES-OXLEY ACT OF 2002
In
connection with the Annual Report on Form 10-K of Avid Technology, Inc. (the
“Company”) for the year ended December 31, 2009 as filed with the Securities and
Exchange Commission on the date hereof (the “Report”), the undersigned, Gary G.
Greenfield, Chairman of the Board of Directors, Chief Executive Officer and
President of the Company, and Ken Sexton, Executive Vice President, Chief
Financial Officer and Chief Administrative Officer of the Company, each hereby
certifies, pursuant to 18 U.S.C. Section 1350, that:
(1) The
Report fully complies with the requirements of Section 13(a) or 15(d) of the
Securities Exchange Act of 1934; and
(2) The
information contained in the Report fairly presents, in all material respects,
the financial condition and results of operations of the Company.
|
Date: March
16, 2010
|
/s/ Gary G.
Greenfield
|
|
Gary
G. Greenfield
Chairman
of the Board of Directors, Chief Executive
Officer
and President
(Principal
Executive Officer)
|
|
Date: March
16, 2010
|
/s/ Ken
Sexton
|
|
Ken
Sexton
Executive
Vice President, Chief Financial
Officer
and Chief Administrative Officer
(Principal
Financial and Accounting Officer)
|