UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED JUNE 30, 2005
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Commission File Number 0-21174
AVID TECHNOLOGY, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 04-2977748
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
AVID TECHNOLOGY PARK
ONE PARK WEST
TEWKSBURY, MA 01876
(Address of principal executive offices)
Registrant's telephone number, including area code: (978) 640-6789
Indicate by check mark whether the registrant: (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities Exchange
Act of 1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes X No _____
Indicate by check mark whether the registrant is an accelerated filer
(as defined in Rule 12b-2 of the Exchange Act).
Yes X No _____
The number of shares outstanding of the registrant's Common Stock as of July 19,
2005 was 35,303,690.
AVID TECHNOLOGY, INC.
FORM 10-Q
FOR THE QUARTERLY PERIOD ENDED JUNE 30, 2005
TABLE OF CONTENTS
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PAGE
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PART I. FINANCIAL INFORMATION
ITEM 1. Condensed Consolidated Financial Statements:
a) Condensed Consolidated Statements of Operations (unaudited)
for the three and six months ended June 30, 2005 and 2004............1
b) Condensed Consolidated Balance Sheets (unaudited) as of
June 30, 2005 and December 31, 2004..................................2
c) Condensed Consolidated Statements of Cash Flows (unaudited)
for the six months ended June 30, 2005 and 2004......................3
d) Notes to Condensed Consolidated Financial Statements (unaudited).....4
ITEM 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations.................................12
ITEM 3. Quantitative and Qualitative Disclosure About Market Risk...........30
ITEM 4. Controls and Procedures.............................................31
PART II. OTHER INFORMATION
ITEM 1. Legal Proceedings...................................................32
ITEM 6. Exhibits............................................................32
SIGNATURES...................................................................33
EXHIBIT INDEX................................................................34
PART I. FINANCIAL INFORMATION
ITEM 1. CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
AVID TECHNOLOGY, INC.
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(in thousands, except per share data)
(unaudited)
Three Months Ended Six Months Ended
June 30, June 30,
2005 2004 2005 2004
----------- ----------- ----------- -----------
Net revenues:
Product $141,434 $124,269 $288,812 $237,853
Services 18,617 15,617 37,240 29,407
----------- ----------- ----------- -----------
Total net revenues 160,051 139,886 326,052 267,260
----------- ----------- ----------- -----------
Cost of revenues:
Product 61,244 52,152 122,141 98,666
Services 10,027 8,843 20,097 16,432
Amortization of intangible assets 282 - 563 -
----------- ----------- ----------- -----------
Total cost of revenues 71,553 60,995 142,801 115,098
----------- ----------- ----------- -----------
Gross profit 88,498 78,891 183,251 152,162
----------- ----------- ----------- -----------
Operating expenses:
Research and development 24,909 22,924 49,588 45,216
Marketing and selling 40,163 33,656 79,810 63,510
General and administrative 8,761 6,184 17,258 12,070
Amortization of intangible assets 1,593 549 3,185 988
----------- ----------- ----------- -----------
Total operating expenses 75,426 63,313 149,841 121,784
----------- ----------- ----------- -----------
Operating income 13,072 15,578 33,410 30,378
Interest income 1,052 599 1,860 1,139
Interest expense (95) (62) (189) (145)
Other income (expense), net 222 58 345 (959)
----------- ----------- ----------- -----------
Income before income taxes 14,251 16,173 35,426 30,413
Provision for income taxes 685 700 2,114 200
----------- ----------- ----------- -----------
Net income $13,566 $15,473 $33,312 $30,213
=========== =========== =========== ===========
Net income per common share - basic $0.39 $0.49 $0.95 $0.96
Net income per common share - diluted $0.37 $0.45 $0.90 $0.89
Weighted average common shares outstanding - basic 35,177 31,623 35,083 31,413
Weighted average common shares outstanding - diluted 37,024 34,134 37,154 33,912
The accompanying notes are an integral part of the condensed consolidated
financial statements.
1
AVID TECHNOLOGY, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
(in thousands)
(unaudited)
June 30, December 31,
2005 2004
------------- -------------
ASSETS
Current assets:
Cash and cash equivalents $123,639 $79,058
Marketable securities 68,914 76,361
Accounts receivable, net of allowances of
$9,358 and $9,334 at June 30, 2005 and
December 31, 2004, respectively 99,132 97,536
Inventories 63,492 53,946
Current deferred tax assets, net 610 653
Prepaid expenses 10,444 7,550
Other current assets 11,598 11,204
------------- -------------
Total current assets 377,829 326,308
Property and equipment, net 29,976 29,092
Goodwill 167,211 165,803
Intangible assets, net 43,139 46,884
Long-term deferred tax assets, net 4,348 4,184
Other assets 4,286 3,963
------------- -------------
Total assets $626,789 $576,234
============= =============
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $28,960 $26,517
Accrued compensation and benefits 20,035 30,468
Accrued expenses and other current liabilities 41,338 34,902
Income taxes payable 10,408 9,357
Deferred revenues 59,244 48,680
------------- -------------
Total current liabilities 159,985 149,924
Long-term liabilities 1,465 1,689
------------- -------------
Total liabilities 161,450 151,613
------------- -------------
Commitments and contingencies (Note 7)
Stockholders' equity:
Common stock 353 348
Additional paid-in capital 555,766 546,849
Accumulated deficit (89,463) (122,775)
Deferred compensation (2,858) (4,392)
Accumulated other comprehensive income 1,541 4,591
------------- -------------
Total stockholders' equity 465,339 424,621
------------- -------------
Total liabilities and stockholders' equity $626,789 $576,234
============= =============
The accompanying notes are an integral part of the condensed consolidated
financial statements.
2
AVID TECHNOLOGY, INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(in thousands)
(unaudited)
Six Months Ended June 30,
---------------------------
2005 2004
------------- ------------
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income $33,312 $30,213
Adjustments to reconcile net income to net cash
provided by operating activities:
Depreciation and amortization 10,660 6,699
Provision for (recovery of) doubtful accounts 625 (188)
Gain on disposal of fixed assets (55) --
Compensation expense from stock grants and options 1,514 26
Equity in income of non-consolidated company (164) (59)
Deferred tax provision (345) --
Changes in operating assets and liabilities:
Accounts receivable (3,734) (7,734)
Inventories (10,169) 3,947
Prepaid expenses and other current assets (3,763) (1,848)
Accounts payable 2,577 3,707
Income taxes payable 1,001 379
Accrued expenses, compensation and benefits (4,015) (4,617)
Deferred revenues 10,768 5,559
- ------------------------------------------------------------------------------------------
NET CASH PROVIDED BY OPERATING ACTIVITIES 38,212 36,084
- ------------------------------------------------------------------------------------------
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchases of property and equipment (8,221) (6,528)
Payments for other long-term assets (311) (349)
Payments for business acquisitions, net of cash acquired -- (43,899)
Purchases of marketable securities (27,255) (43,946)
Proceeds from sales and maturities of marketable securities 34,401 51,785
- ------------------------------------------------------------------------------------------
NET CASH USED IN INVESTING ACTIVITIES (1,386) (42,937)
- ------------------------------------------------------------------------------------------
CASH FLOWS FROM FINANCING ACTIVITIES:
Payments on capital lease obligations (30) (324)
Proceeds from issuance of common stock under employee stock plans 8,922 11,841
- ------------------------------------------------------------------------------------------
NET CASH PROVIDED BY FINANCING ACTIVITIES 8,892 11,517
- ------------------------------------------------------------------------------------------
Effect of exchange rate changes on cash and cash equivalents (1,137) (1,597)
- ------------------------------------------------------------------------------------------
Net increase (decrease) in cash and cash equivalents 44,581 3,067
Cash and cash equivalents at beginning of period 79,058 77,123
- ------------------------------------------------------------------------------------------
Cash and cash equivalents at end of period $123,639 $80,190
- ------------------------------------------------------------------------------------------
The accompanying notes are an integral part of the condensed consolidated
financial statements.
3
PART I. FINANCIAL INFORMATION
ITEM 1D. NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
1. FINANCIAL INFORMATION
The accompanying condensed consolidated financial statements include the
accounts of Avid Technology, Inc. and its wholly-owned subsidiaries
(collectively, "Avid" or the "Company"). These financial statements are
unaudited. However, in the opinion of management, the condensed consolidated
financial statements include all adjustments, consisting of only normal,
recurring adjustments, necessary for their fair presentation. Interim results
are not necessarily indicative of results expected for a full year. The
accompanying unaudited condensed consolidated financial statements have been
prepared in accordance with the instructions for Form 10-Q and therefore do not
include all information and footnotes necessary for a complete presentation of
operations, financial position, and cash flows of the Company, in conformity
with generally accepted accounting principles. The accompanying condensed
consolidated balance sheet as of December 31, 2004 was derived from Avid's
audited consolidated financial statements, but does not include all disclosures
required by generally accepted accounting principles. The Company filed audited
consolidated financial statements for the year ended December 31, 2004 in its
2004 Annual Report on Form 10-K, which included all information and footnotes
necessary for such presentation; the financial statements contained in this Form
10-Q should be read in conjunction with the audited consolidated financial
statements in the Form 10-K.
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. The most significant estimates reflected
in these financial statements include accounts receivable and sales allowances,
purchase accounting, inventory valuation and income tax asset valuation
allowances. Actual results could differ from those estimates.
In connection with preparation of the Company's Annual Report on Form 10-K for
the year ended December 31, 2004, the Company concluded that it was appropriate
to classify its investments in auction rate securities as marketable securities.
Previously, such investments were classified as cash and cash equivalents.
Accordingly, the Company has revised the classification to exclude from cash and
cash equivalents $18.0 million of auction rate securities at June 30, 2004, and
to include such amounts as marketable securities. In addition, the Company has
made corresponding adjustments to the accompanying statement of cash flows to
reflect the gross purchases and sales of these securities as investing
activities. As a result, cash used in investing activities decreased by $7.5
million for the six months ended June 30, 2004. This change in classification
does not affect previously reported cash flows from operations or from financing
activities.
2. NET INCOME PER COMMON SHARE
Basic and diluted net income per share were calculated as follows (in thousands,
except per share data):
Three Months Ended Six Months Ended
June 30, June 30,
----------------------- ---------------------
2005 2004 2005 2004
----------- ---------- ---------- ----------
Net income $13,566 $15,473 $33,312 $30,213
=========== ========== ========== ==========
Weighted average common shares outstanding - basic 35,177 31,623 35,083 31,413
Weighted average potential common stock:
Options 1,707 2,452 1,866 2,493
Warrant 140 59 205 6
----------- ---------- ---------- ----------
Weighted average common shares outstanding - diluted 37,024 34,134 37,154 33,912
=========== ========== ========== ==========
Net income per common share - basic $0.39 $0.49 $0.95 $0.96
Net income per common share - diluted $0.37 $0.45 $0.90 $0.89
4
Common stock options that were considered anti-dilutive securities since their
exercise prices exceeded the average market price of the underlying common stock
during the period and, accordingly, were excluded from the diluted net income
per share calculations, were as follows, on a weighted-average basis
(in thousands):
Three Months Ended Six Months Ended
June 30, June 30,
------------------ ------------------
2005 2004 2005 2004
-------- -------- -------- --------
Total anti-dilutive common stock options 852 96 564 166
3. ACQUISITIONS
M-Audio
In August 2004, Avid completed the acquisition of Midiman, Inc. d/b/a M-Audio
("M-Audio"), a leading provider of digital audio and MIDI (Musical Instrument
Digital Interface) solutions for musicians and audio professionals. Avid paid
cash of $79.6 million, net of cash acquired, and issued stock and options with a
fair value of $96.5 million. The total purchase price was allocated as follows:
$13.5 million to net assets acquired, $5.5 million to deferred compensation,
$38.4 million to identifiable intangible assets, and the remaining $122.0
million to goodwill.
As part of the purchase agreement, Avid may be required to make additional
payments to the former shareholders and option holders of M-Audio of up to $45.0
million, contingent upon the operating results of M-Audio through December 31,
2005. These payments, if required, will be made through the issuance of
additional Avid shares or options based on the ten-day average closing price of
the stock ending two days prior to the date the earn-out shares are distributed.
Any such additional Avid shares issued to the former shareholders of M-Audio
will be recorded as additional purchase price allocated to goodwill. Any such
additional Avid options issued to former option holders of M-Audio will be
recorded as stock-based compensation expense because future service is required
for it to be earned. As of June 30, 2005, no additional shares or options are
due and thus, no amount has been recorded as additional purchase price.
The identifiable intangible assets are being amortized over their estimated
useful lives of twelve years for customer relationships, six years for the trade
name, four years for the developed technology and two years for the non-compete
covenant. The twelve year life for customer relationships, although longer than
that used for similar intangible assets for other acquisitions by Avid, is
considered reasonable due to the similarities in their business to Avid's
Digidesign division, which has enjoyed long-term relationships with its
customers. Amortization expense totaled $1.2 million for the three months ended
June 30, 2005 and accumulated amortization of these intangible assets was $4.2
million at June 30, 2005. Also during the second quarter of 2005, the $122.0
million of goodwill was reduced by $0.2 million to $121.8 million due to the
resolution of a tax contingency.
Avid Nordic AB
In September 2004, the Company acquired Avid Nordic AB, a Sweden-based exclusive
reseller of Avid products operating in the Nordic and Benelux regions of Europe,
for cash, net of cash acquired, of euro 6.1 million ($7.4 million) plus
transaction costs of $0.3 million. The purchase price was allocated as follows:
$1.0 million to net assets acquired, $4.7 million to an identifiable intangible
asset, and the remaining $2.0 million to goodwill.
The identifiable intangible asset represents customer relationships developed in
the region by Avid Nordic AB. This asset will be amortized over its estimated
useful life of five years. Amortization expense totaled $0.2 million for the
three months ended June 30, 2005 and accumulated amortization of this asset was
$0.8 million at June 30, 2005. During the quarter ended December 31, 2004, the
goodwill was increased by $0.4 million to $2.4 million due to a reduction in the
estimated fair value of inventory and other current assets acquired from Avid
Nordic AB.
As part of the purchase agreement, Avid may be required to make additional
payments to the former shareholders of Avid Nordic AB of up to euro 1.3 million
contingent upon the operating results of Avid Nordic AB through August 31, 2005.
These payments will be recorded as additional purchase consideration, allocated
to goodwill. Through the six months ended June 30, 2005 the Company estimated
that maximum additional purchase consideration of euro 1.3 million ($1.6
million) had been earned and accordingly recorded an increase to goodwill of
$1.6 million with the corresponding offset in accrued expenses.
5
NXN Software GmbH
In January 2004, Avid acquired Munich, Germany-based NXN Software GmbH ("NXN"),
a leading provider of asset and production management systems specifically
targeted for the entertainment and computer graphics industries, for cash of
euro 35 million ($43.7 million) less cash acquired of $0.8 million. The total
purchase price was allocated as follows: ($1.0 million) to net liabilities
assumed, $7.2 million to identifiable intangible assets and the remaining $38.8
million to goodwill.
The identifiable intangible assets include completed technology valued at $4.3
million, customer relationships valued at $2.1 million, and a trade name valued
at $0.8 million, which are being amortized over their estimated useful lives of
four to six years, three to six years, and six years, respectively. Amortization
expense relating to these intangibles was $0.3 million for the three months
ended June 30, 2005 and accumulated amortization of these assets was $1.5
million at June 30, 2005. In December 2004, the Company reviewed the
identifiable intangible assets acquired in the NXN transaction and found the
customer relationships intangible assets and the trade name to be impaired. The
Company recalculated the fair values of these intangible assets based on revised
expected future cash flows reflecting the contract renegotiations and recorded a
charge of $1.2 million in December 2004 to write them down to their revised fair
values. Also during the year ended December 31, 2004, the $38.8 million of
goodwill was reduced by $0.7 million to $38.1 million due to finalizing the
estimated fair value of deferred revenue acquired from NXN.
Pro Forma Financial Information for Acquisitions (Unaudited)
The results of operations of M-Audio, Avid Nordic and NXN have been included in
the results of operations of the Company since the respective date of each
acquisition. The following unaudited pro forma financial information presents
the results of operations for the three and six months ended June 30, 2004 as if
the acquisitions of both M-Audio and NXN had occurred at the beginning of 2004.
The Company's pro forma results of operations giving effect to the Avid Nordic
AB acquisition as if it had occurred at the beginning of 2004 is not included as
it would not differ materially from reported results. The pro forma financial
information for the combined entities has been prepared for comparative purposes
only and is not indicative of what actual results would have been if the
acquisitions had taken place at the beginning of fiscal 2004, or of future
results.
Three Months Ended Six Months Ended
June 30, June 30,
-------------------- -------------------
2004 2004
-------------------- -------------------
(In thousands, except per share data)
Net revenues $155,298 $300,588
Net income $14,123 $27,601
Net income per share:
Basic $0.42 $0.83
Diluted $0.39 $0.76
Agreement to Acquire Pinnacle Systems, Inc.
On March 21, 2005, the Company announced that it had entered into a definitive
agreement to acquire Pinnacle Systems, Inc. (Pinnacle) in a cash and stock
transaction. Pinnacle, based in California, is a supplier of digital video
products to a variety of customers, ranging from individuals with little or no
experience, to broadcasters with specific and sophisticated requirements. Under
the terms of the agreement, Pinnacle shareholders will receive 0.0869 shares of
Avid stock and $1.00 in cash for each Pinnacle share. At closing, it is expected
that Avid will issue approximately 6.2 million shares and pay approximately
$71.3 million in cash to Pinnacle shareholders. On July 27, 2005, both Avid and
Pinnacle shareholders approved proposals necessary to allow Avid's acquisition
of Pinnacle to move forward. The transaction is expected to close in the third
quarter of 2005.
6
4. ACCOUNTS RECEIVABLE
Accounts receivable, net consisted of the following (in thousands):
June 30, December 31,
2005 2004
-------------- --------------
Accounts receivable $108,489 $106,870
Less:
Allowance for doubtful accounts (4,192) (4,132)
Allowance for sales returns and rebates (5,165) (5,202)
-------------- --------------
$99,132 $97,536
============== ==============
The allowance for doubtful accounts represents an allowance for estimated bad
debt losses resulting from the inability of our 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. Allowances for estimated returns, exchanges and credits for
price protection are provided as a reduction of revenues, in the same period
that related revenues are recorded, based upon the Company's historical
experience. To date, actual returns have not differed materially from
management's estimates. Allowances for rebates on purchases of certain products,
or rebates based on purchasing volume, are also accounted for as reductions to
revenue, in the same period that related revenues are recorded, or upon expected
achievement of purchasing volumes.
5. INVENTORIES
Inventories consisted of the following (in thousands):
June 30, December 31,
2005 2004
----------------- ----------------
Raw materials $22,064 $14,925
Work in process 4,820 3,622
Finished goods 36,608 35,399
----------------- ----------------
$63,492 $53,946
================= ================
As of June 30, 2005 and December 31, 2004, the finished goods inventory included
inventory at customer locations of $10.2 million and $9.0 million, respectively,
associated with product shipped to customers for which revenue had not yet been
recognized.
6. ACCOUNTING FOR STOCK-BASED COMPENSATION
The Company accounts for stock-based awards to employees using the intrinsic
value method as prescribed by Accounting Principles Board ("APB") Opinion No.
25, "Accounting for Stock Issued to Employees," and related interpretations.
Accordingly, no compensation expense is recorded for options issued to employees
in fixed amounts and with fixed exercise prices at least equal to the fair
market value of the Company's common stock at the date of grant. When the
exercise price of stock options granted to employees is less than the fair
market value of common stock at the date of grant, the Company records that
difference multiplied by the number of shares under option as deferred
compensation, which is then amortized over the vesting period of the options.
Additionally, deferred compensation is recorded for restricted stock granted to
employees based on the fair market value of the Company's common stock at date
of grant and is amortized over the period in which the restrictions lapse. The
Company reverses deferred compensation associated with unvested options issued
at below fair market value as well as unvested restricted stock upon the
cancellation of such options or shares for terminated employees. The Company
provides the disclosures required by SFAS No. 123, "Accounting for Stock-Based
Compensation," as amended by SFAS No. 148, "Accounting for Stock-Based
Compensation-Transition and Disclosure". All stock-based awards to non-employees
are accounted for at their fair value in accordance with SFAS No. 123. There
were no stock-based awards granted to non-employees during the three- and six-
month periods ended June 30, 2005 or 2004.
The following table illustrates the effect on net income and net income per
share as if the Company had applied the fair value recognition provisions of
SFAS No. 123 to stock-based employee awards (in thousands, except per share
data).
7
Three Months Ended Six Months Ended
June 30, June 30,
--------------------- ---------------------
2005 2004 2005 2004
--------- --------- --------- ---------
Net income as reported $13,566 $15,473 $33,312 $30,213
Add: Stock-based employee compensation expense
included in reported net income, net of related
tax effect 672 13 1,514 26
Deduct: Total stock-based employee
compensation expense determined under the fair
value-based method for all awards, net of
related tax effect (5,904) (3,940) (10,724) (7,311)
--------- --------- --------- ---------
Pro forma net income $8,334 $11,546 $24,102 $22,928
========= ========= ========= =========
Net income per common share:
Basic-as reported $0.39 $0.49 $0.95 $0.96
Basic-pro forma $0.24 $0.37 $0.69 $0.73
Diluted-as reported $0.37 $0.45 $0.90 $0.89
Diluted-pro forma $0.23 $0.34 $0.66 $0.68
Under SFAS No. 123, the fair value of each option grant is estimated on the date
of grant using the Black-Scholes option pricing model and is amortized over the
stock option's vesting period.
7. COMMITMENTS AND CONTINGENCIES
Avid receives inquiries from time to time with regard to possible patent
infringement claims. 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 against the Company arising from or related to contractual
or employee relations, intellectual property rights or product performance.
Management does not believe these claims will have a material adverse effect on
the financial position or results of operations of the Company.
In April 2005, we were notified by the Korean Federal Trade Commission ("KFTC")
that a former reseller, Neat Information Telecommunication, Inc. ("Neat"), had
filed a complaint against us alleging unfair trade practices. Neat, one of
several resellers of our products in South Korea, was terminated by us in
September 2003. The KFTC is currently interviewing both parties and will
determine whether to proceed with a formal investigation. We believe that the
complaint is without merit and will defend ourselves vigorously in the event
that the KFTC determines to proceed with a formal investigation. Our business in
South Korea represented less than 1% of our total revenues for 2004. Because we
cannot predict the outcome of this matter at this time, no costs have been
accrued for this possible loss contingency.
From time to time, the Company provides indemnification provisions in agreements
with customers covering potential claims by third parties that Avid products
infringe their intellectual property rights. Pursuant to these indemnification
provisions, the Company agrees to indemnify customers for losses that they
suffer or incur in connection with any valid U.S. patent or copyright
infringement claim brought by a third party with respect to Avid 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 received any claims under these indemnification provisions. As a
result, the Company believes the estimated fair value of these indemnification
provisions is minimal.
As permitted under Delaware law, Avid has agreements whereby the Company
indemnifies its officers and directors for certain events or occurrences while
the officer or director is or was serving at Avid's request in such capacity.
The term of the indemnification period is for the officer's or director's
lifetime. The maximum potential amount of future payments the Company could be
8
required to make under these indemnification agreements is unlimited; however,
Avid 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 policy coverage and Avid's related payment experience to date,
the Company believes the estimated fair value of these indemnification
agreements is minimal.
The Company 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 be eligible to
draw against this letter of credit to a maximum, as of June 30, 2005, of $3.5
million, subject to an annual reduction of approximately $0.8 million but not
below $2.0 million. The letter of credit will remain in effect at $2.0 million
throughout the remaining lease period, which extends to September 2009. As of
June 30, 2005, the Company was not in default of this lease.
The Company, through a third party, provides lease financing options to its
customers, including end-users and, on a very limited basis, resellers. During
the terms of these leases, which are generally three years, the Company remains
liable for any unpaid principal balance upon default by the end-user, 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 June 30, 2005 and
December 31, 2004, Avid's maximum recourse exposure totaled approximately $14.1
million and $17.2 million, respectively. The Company records revenue 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 these financing options to its
customers for many years, the Company has a substantial history of collecting
under these arrangements without providing refunds or concessions to the end
user or financing party. To date, the payment default rate has consistently been
between 2% and 4% per year of the original funded amount. This low default rate
results from the diligence of the third party leasing company in screening
applicants and in collecting amounts due, and also because Avid actively
monitors its exposures under the financing program and participates in the
approval process for any lessees outside of agreed-upon credit-worthiness
metrics. The Company maintains a reserve for estimated losses under this
recourse lease program based on these historical default rates compared to the
funded amount outstanding at period end. At June 30, 2005 and December 31, 2004,
the Company's accrual for estimated losses was $1.9 million and $2.2 million,
respectively.
Avid provides warranty on hardware sold through its Video segment which
generally mirrors the manufacturers' warranties. The Company charges the related
material, labor and freight expense to cost of revenues in the period incurred.
With respect to the Audio segment, Avid provides warranty on externally sourced
and internally developed hardware and 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 (in thousands):
Six Months Ended
June 30, 2005
------------------
Accrual balance at December 31, 2004 $2,261
Accruals for product warranties 2,244
Cost of warranty claims (1,727)
------------------
Accrual balance at June 30, 2005 $2,778
==================
8. COMPREHENSIVE INCOME
Total comprehensive income, net of taxes, consists of net income, the net
changes in foreign currency translation adjustment and net unrealized gains and
losses on available-for-sale securities. The following is a summary of the
Company's comprehensive income (in thousands):
9
Three Months Ended Six Months Ended
June 30, June 30,
----------------------- -----------------------
2005 2004 2005 2004
----------- ----------- ----------- ----------
Net income $13,566 $15,473 $33,312 $30,213
Net changes in:
Foreign currency translation adjustment (1,923) (803) (3,186) (1,383)
Unrealized gains (losses) on securities 74 (362) 135 (306)
----------- ----------- ----------- ----------
Total comprehensive income $11,717 $14,308 $30,261 $28,524
=========== =========== =========== ==========
9. SEGMENT INFORMATION
The Company's organizational structure is based on strategic business units that
offer various products to the principal markets in which the Company's products
are sold. These business units equate to two reportable segments: Video and Film
Editing and Effects, and Audio. The following is a summary of the Company's
operations by reportable segment (in thousands):
Three Months Ended Six Months Ended
June 30, June 30,
------------------------- ------------------------
2005 2004 2005 2004
------------ ----------- ------------ ----------
Video and Film Editing and Effects:
Net revenues $94,984 $96,431 $199,469 $188,410
Operating income $7,083 $7,967 $22,198 $21,311
Audio:
Net revenues $65,067 $43,455 $126,583 $78,850
Operating income $8,465 $8,160 $16,332 $10,055
Combined Segments:
Net revenues $160,051 $139,886 $326,052 $267,260
Operating income $15,548 $16,127 $38,530 $31,366
The following table reconciles operating income for reportable segments to the
total consolidated amounts for the three and six month periods ended June 30,
2005 and 2004 (in thousands):
Three Months Ended Six Months Ended
June 30, June 30,
----------------------- -----------------------
2005 2004 2005 2004
---------- ----------- ----------- ----------
Total operating income for reportable segments $15,548 $16,127 $38,530 $31,366
Unallocated amounts:
Stock-based compensation (601) - (1,372) -
Amortization of acquisition-related intangible assets (1,875) (549) (3,748) (988)
---------- ----------- ----------- ----------
Consolidated operating income $13,072 $15,578 $33,410 $30,378
========== =========== =========== ==========
10. RESTRUCTURING AND OTHER COSTS, NET
In December 2002, the Company recorded a charge of $3.3 million in connection
with vacating excess space in its Tewksbury, Massachusetts; Daly City,
California; and Montreal, Canada facilities. The Daly City estimate was revised,
and an additional charge of $1.5 million was recorded in the fourth quarter of
2003.
The Company recorded the December 2003 and 2002 charges in accordance with the
guidance of SFAS No. 146, "Accounting for Costs Associated with Exit or Disposal
Activities". SFAS 146 requires that a liability be recognized for an operating
lease that is not terminated based on the estimated remaining lease rental
costs, measured at its fair value on a discounted cash flow basis, when the
entity ceases using the rights conveyed by the operating lease. That amount is
reduced by any estimated sublease rentals, regardless of whether the entity
intends to enter into a sublease. Future changes in the fair value of the
Company's obligations are recorded through operating expenses. These
restructuring charges and accruals require significant estimates and
assumptions, including sub-lease income assumptions. These estimates and
10
assumptions are monitored on at least a quarterly basis for changes in
circumstances and any corresponding adjustments to the accrual are recorded in
the period when such changes are known.
The following table sets forth the activity in the restructuring and other costs
accrual, which is included in Accrued expenses and other current liabilities,
for the six months ended June 30, 2005 (in thousands):
Accrual balance at December 31, 2004 $3,534
Cash payments, net (702)
------------
Accrual balance at June 30, 2005 $2,832
============
The leases, and payments against the amount accrued, extend through 2010 unless
the Company is able to negotiate an earlier termination.
11. RECENT ACCOUNTING PRONOUNCEMENTS
In November 2004, the Financial Accounting Standards Board ("FASB") issued SFAS
No. 151, "Inventory Costs", an amendment of Accounting Research Bulletin No. 43,
which is the result of its efforts to converge U.S. accounting standards for
inventories with International Accounting Standards. SFAS No. 151 requires idle
facility expenses, freight, handling costs, and wasted material (spoilage) costs
to be recognized as current-period charges. It also requires that the allocation
of fixed production overheads to the costs of conversion be based on the normal
capacity of the production facilities. SFAS No. 151 will be effective for
inventory costs incurred during fiscal years beginning after June 15, 2005 (i.e.
beginning January 1, 2006 for the Company). The Company is currently evaluating
the impact of SFAS No. 151 on its consolidated financial statements. The
adoption of this standard is not expected to have a material impact on the
Company's financial position or results of operations.
On December 16, 2004, the FASB released SFAS No. 123R. This new accounting
standard requires all forms of stock compensation, including stock options
issued to employees, to be reflected as an expense in the Company's financial
statements. On April 14, 2005, the Securities and Exchange Commission approved a
new rule that delays the effective date of SFAS No. 123R. Under the new rule,
SFAS No. 123R is now effective for public companies for annual, rather than
interim, periods that begin after June 15, 2005. SFAS No. 123R allows three
alternative methods of transitioning to the standard: modified prospective
application ("MPA"); modified retrospective application ("MRA") to all prior
periods; or MRA to only interim periods of the year of adoption. The Company
intends to use the MPA without restatement alternative and to apply the revised
standard beginning January 1, 2006. Under the modified prospective application,
all unvested awards that were previously included as part of the pro forma net
income disclosure and are outstanding on the effective date would be charged to
expense over the remaining vesting period, without any changes in measurement.
All new awards that are granted or modified after the effective date will be
expensed using the FAS 123R measurement model. Although the Company has not
finalized its analysis, it expects that the adoption of the revised standard
will result in higher operating expenses and lower earnings per share. See
Footnote 6, Accounting for Stock-Based Compensation, for the pro forma impact on
net income and income per common share as if the Company had historically
applied the fair value recognition provisions of SFAS No. 123 to stock based
employee awards.
On October 22, 2004, the President signed the American Jobs Creation Act of 2004
("the Act"). The Act creates a temporary incentive for U.S. corporations to
repatriate accumulated income earned abroad by providing an 85 percent
dividends-received deduction for certain dividends from controlled foreign
corporations. The Act also creates a deduction on a percentage of the lesser of
qualified production activities income or taxable income. Although these
deductions are subject to a number of limitations and significant uncertainty
remains as to how to interpret numerous provisions in the Act, the Company
believes that it has the information necessary to make an informed decision on
the impact of the Act. Based on the information available, the Company has
determined that its cash position in the U.S. is sufficient to fund anticipated
needs. The Company also believes that the repatriation of income earned abroad
would result in significant foreign withholding taxes that otherwise would not
have been incurred as well as additional U.S. tax liabilities that may not be
sufficiently offset by foreign tax credits. Therefore, the Company does not
currently plan to repatriate any income earned abroad. The Company has also
determined that the qualified production activities deduction will not have a
material impact on the fiscal 2005 tax provision due to the expected amount of
taxable income. These initial findings could change based on clarification of
the rules and changes in facts and circumstances of the Company's operations
and/or cash requirements in the U.S.
11
PART I. FINANCIAL INFORMATION
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
OVERVIEW
We develop, market, sell and support a wide range of software and
hardware for digital media 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. Our diverse range of product and service offerings enables customers
to "Make, Manage and Move Media."
Make Media. Our Video and Film Editing and Effects ("Video") segment
offers digital, non-linear video and film editing systems and 3D and
special-effects software that enable users to manipulate moving pictures and
sound in a faster, easier, more creative, and more cost-effective manner than
using traditional analog tape-based systems. Non-linear systems allow editors
to access material instantaneously rather than requiring them to work
sequentially. Our Audio segment offers digital audio software applications and
hardware systems for music, film, television, video, broadcast, streaming
media, and web development. These systems are based upon proprietary audio
hardware, software, and control surfaces, and allow users to record, edit, mix,
process, and master audio in an integrated manner.
Manage Media. We provide complete network, storage, and database
solutions based on our Avid Unity MediaNetwork technology. This technology
enables users to simultaneously share and manage media assets throughout a
project or organization. The ability to manage digital media assets effectively
is a critical component of success for many broadcast and media companies with
multiple nonlinear editing workstations in a range of geographic locations. As
a result, professionals can collaborate seamlessly on all production elements,
and streamline the process for cost-effectively delivering compelling media
experiences and quickly "re-purposing" or finding new uses or markets for media
assets.
Move Media. We offer products that allow our customers to distribute
media over multiple platforms - including air, cable or satellite,
or through the Internet. In addition, we provide technology for playback
directly to air for broadcast television applications. Many of our products
also support the broadcast of streaming Internet video.
Our products are used worldwide in production and post-production
facilities; film studios; network, affiliate, independent and cable television
stations; recording studios; advertising agencies; government and educational
institutions; corporate communication departments; and by game developers and
Internet professionals. Projects produced by our customers using our products
have been honored with Oscar(R), Emmy(R), and Grammy(R) awards, as well as a
host of other international awards. In addition, we have also received numerous
awards for technical innovations, including Oscars, Emmys and a Grammy. Oscar is
a registered trademark and service mark of the Academy of Motion Picture Arts
and Sciences. Emmy is a registered trademark of ATAS/NATAS. Grammy is a
registered trademark of The National Academy of Recording Arts and Sciences,
Inc.
An important part of our strategy for the past few years has included
expanding and enhancing our product lines and increasing revenues through both
acquisitions and internal development of products. In January 2004, we acquired
Germany-based NXN Software GmbH ("NXN"), a leading provider of asset and
production management systems specifically targeted for the entertainment and
computer graphics industries. This acquisition expands our offering in digital
asset management by enabling our film and video post-production, broadcast,
audio and 3D animation customers to leverage the workflow capabilities of the
NXN Alienbrain(R) product line. NXN has been integrated into our Video segment.
In August 2004, we completed the acquisition of California-based M-Audio, a
leading provider of digital audio and MIDI solutions for musicians and audio
professionals. We have integrated M-Audio into our Audio segment and are
marketing its line of audio products alongside Digidesign's digital audio
workstations for the professional and home/hobbyist markets. Finally, in
September 2004, we acquired Avid Nordic AB, a Sweden-based exclusive reseller of
our products operating in the Nordic and Benelux regions of Europe. This
acquisition allows us to directly serve customers in this region.
On March 20, 2005, we entered into a definitive agreement to acquire
California-based Pinnacle Systems, Inc. Pinnacle is a supplier of digital video
products to a variety of customers, ranging from individuals with little or no
experience, to broadcasters with specific and sophisticated requirements. Under
the terms of the agreement, Pinnacle shareholders will receive 0.0869 shares of
Avid stock and $1.00 in cash for each Pinnacle share. At closing, it is expected
that Avid will issue approximately 6.2 million shares and pay $71.3 million in
cash to Pinnacle shareholders. On July 27, 2005, both Avid and Pinnacle
12
shareholders approved proposals necessary to allow Avid's acquisition of
Pinnacle to move forward. The transaction is expected to close in the third
quarter of 2005.
CRITICAL ACCOUNTING POLICIES AND ESTIMATES
The preparation of financial statements and related disclosures in
conformity with U.S. generally accepted accounting principles and our discussion
and analysis of our financial condition and results of operations requires us to
make judgments, assumptions, and estimates that affect the amounts reported in
our consolidated financial statements and accompanying notes. Note B of the
Notes to Consolidated Financial Statements in our 2004 Annual Report on Form
10-K describes the significant accounting policies and methods used in the
preparation of our consolidated financial statements. We base our estimates on
historical experience and on various other assumptions that we believe are
reasonable under the circumstances, the results of which form the basis for
judgments about the carrying values of assets and liabilities. Actual results
may differ from these estimates.
We believe that our critical accounting policies are those related to
revenue recognition and allowances for product returns and exchanges, allowance
for bad debts and reserves for recourse under financing transactions,
inventories, business combinations, goodwill and intangible assets and income
tax assets. We believe these policies are critical because they are important to
the portrayal of our financial condition and results of operations, and they
require us to make judgments and estimates about matters that are inherently
uncertain. Additional information about these critical accounting policies may
by found in our 2004 Annual Report on Form 10-K in Item 7, "Management's
Discussion and Analysis of Financial Condition and Results of Operations," under
the heading "Critical Accounting Policies and Estimates."
RESULTS OF OPERATIONS
Net Revenues
We develop, market, sell and support a wide range of software and
hardware for digital media production, management and distribution. Our net
revenues are derived mainly from the sales of computer-based digital, nonlinear
media editing systems and related peripherals, licensing of related software,
and sales of related software maintenance contracts. We are organized into
strategic business units that reflect the principal markets in which our
products are sold: Video and Audio. These business units are at the level for
which separate financial information is available and evaluated regularly by us
when deciding how to allocate resources and assessing performance. As such, our
business units represent our reportable segments under SFAS No. 131,
"Disclosures about Segments of an Enterprise and Related Information".
Our Video segment produces non-linear video and film editing systems to
improve the productivity of video and film editors and broadcasters by enabling
them to edit moving pictures and sound in a faster, easier, more creative and
more cost-effective manner than by use of traditional analog tape-based systems.
The products in this operating segment are designed to provide capabilities for
editing and finishing feature films, television shows, broadcast news programs,
commercials, music videos and corporate and home videos. Our Audio segment
produces digital audio systems for the audio market. This operating segment
includes products developed to provide audio recording, editing, signal
processing and automated mixing. This segment also includes our M-Audio product
family acquired in August 2004.
The following is a summary of our net revenues by segment for the three-
and six-month periods ended June 30, 2005 and 2004 (dollars in thousands):
Three Months Ended June 30,
------------------------------------------------------------------------
2005 % of 2004 % of
Net Consolidated Net Consolidated % Change
Revenues Net revenues Revenues Net Revenues Change in revenues
----------- ------------- ----------- ------------- -------- -----------
Video and Film Editing and Effects
Product Revenues: $76,727 47.9% $80,814 57.8% ($4,087) (5.1%)
Service Revenues: 18,257 11.4% 15,617 11.1% 2,640 16.9%
----------- ------------- ----------- ------------- --------
Total 94,984 59.3% 96,431 68.9% (1,447) (1.5%)
----------- ------------- ----------- ------------- --------
Audio
Product Revenues: 64,707 40.5% 43,455 31.1% 21,252 48.9%
Service Revenues: 360 0.2% -- 0.0% 360 100.0%
----------- ------------- ----------- ------------- --------
Total 65,067 40.7% 43,455 31.1% 21,612 49.7%
----------- ------------- ----------- ------------- --------
Total Net Revenues: $160,051 100.0% $139,886 100.0% $20,165 14.4%
=========== ============= =========== ============= ========
13
Six Months Ended June 30,
------------------------------------------------------------------------
2005 % of 2004 % of
Net Consolidated Net Consolidated % Change
Revenues Net revenues Revenues Net revenues Change in revenues
----------- ------------- ----------- ------------- -------- -----------
Video and Film Editing and Effects
Product Revenues: $162,867 50.0% $159,003 59.5% $3,864 2.4%
Service Revenues: 36,602 11.2% 29,407 11.0% 7,195 24.5%
----------- ------------- ----------- ------------- --------
Total 199,469 61.2% 188,410 70.5% 11,059 5.9%
----------- ------------- ----------- ------------- --------
Audio
Product Revenues: 125,945 38.6% 78,850 29.5% 47,095 59.7%
Service Revenues: 638 0.2% -- 0.0% 638 100.0%
----------- ------------- ----------- ------------- --------
Total 126,583 38.8% 78,850 29.5% 47,733 60.5%
----------- ------------- ----------- ------------- --------
Total Net Revenues: $326,052 100.0% $267,260 100.0% $58,792 22.0%
=========== ============= =========== ============= ========
We estimate that 75%, or $3.1 million, of the decrease in net product
revenues in our Video segment in the three-month period ended June 30, 2005 as
compared to the same period in 2004, was related to decreased unit sales volume
of certain key products. The decrease in unit sales volume is due in part to new
product or feature delays, which impact both product sales as well as the timing
of recognition of revenue for solutions sales pending release of the new product
or feature. The remaining 25%, or $1.0 million decrease in net product revenues
is attributed to lower average selling prices of our products. Average selling
prices include the mix of products (high or low-end) sold, impact of changes in
foreign currency exchange rates and the impact of price changes and discounting.
We estimate that 38%, or $1.5 million, of the increase in net product revenues
in our Video segment in the six-month period ended June 30, 2005 as compared to
the same period in 2004 was related to increased unit sales volume of our
products. The remaining 62%, or $2.4 million, increase in net product revenues
is attributed to higher average selling prices of our products.
For the Audio segment, 91% and 82%, or $19.6 million and $39.2 million
of the increase in net revenues for the three- and six-month periods ended June
30, 2005, respectively, was due to M-Audio, which was acquired in August 2004.
We also saw increases in our core Digidesign Pro Tools products for the
professional and home markets in the three- and six-month periods ended June 30,
2005 as compared to the same periods in 2004.
For the three- and six-month periods ended June 30, 2005, the increase
in service revenues comes primarily from increases in maintenance contracts sold
on our products as well as increased professional services such as installation
services provided in connection with large broadcast news deals.
Net revenues derived through indirect channels were 69% and 71% for the
three month periods ended June 30, 2005 and 2004, respectively. Indirect channel
revenues were 68% and 73% of net revenues for the six-month periods ended June
30, 2005 and 2004. The increase in direct selling from 2004 to 2005 for both the
three- and six- month periods was due primarily to the acquisition of Avid
Nordic AB in September 2004 and to the growth in sales to our broadcast news
customers, which are generally direct sales.
For both the three- and six-month periods ended June 30, 2005,
international sales (i.e. sales to customers outside the United States)
accounted for 54% and 55%, respectively, of our net revenues compared to 51% and
49%, respectively, for the same periods in 2004. International sales increased
by $15.3 million or 22% and $48.5 million or 37% for the three- and six-months
periods ended June 30, 2005, respectively, from the corresponding 2004 periods.
The increase in international sales in 2005 occurred in all regions including
Europe, Asia, Canada and Latin America, and was primarily due to an increased
number of large broadcast deals in those regions.
14
Gross Profit
Cost of revenues consists primarily of costs associated with the
procurement of components; the assembly, testing, and distribution of finished
products; warehousing; post-sales customer support costs related to maintenance
contract revenue and other services; and royalties for third-party software
included in our products. The resulting 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.
The following is a summary of our cost of revenues and gross margin
percentages for the three-month and six-month periods ended June 30, 2005 and
2004 (dollars in thousands):
Three Months Ended June 30,
-----------------------------------------------------------------------
% of Net % of Net
Related Gross Related Gross Gross Margin
2005 Revenues Margin % 2004 Revenues Margin % % Change
--------- -------- --------- --------- -------- --------- -------------
Product Cost of Revenues $61,244 43.3% 56.7% $52,152 42.0% 58.0% (1.3%)
Service Cost of Revenues 10,027 53.9% 46.1% 8,843 56.6% 43.4% 2.7%
Amortization of Technology 282 0.2% -- -- 0.0% 0.0% --
--------- ---------
Total $71,553 44.7% 55.3% $60,995 43.6% 56.4% (1.1%)
========= =========
Six Months Ended June 30,
-----------------------------------------------------------------------
% of Net % of Net
Related Gross Related Gross Gross Margin
2005 Revenues Margin % 2004 Revenues Margin % % Change
--------- -------- --------- --------- -------- --------- -------------
Product Cost of Revenues $122,141 42.3% 57.7% $98,666 41.5% 58.5% (0.8%)
Service Cost of Revenues 20,097 54.0% 46.0% 16,432 55.9% 44.1% 1.9%
Amortization of Technology 563 0.2% -- -- 0.0% 0.0% --
--------- ---------
Total $142,801 43.8% 56.2% $115,098 43.1% 56.9% (0.7%)
========= =========
The decreases in the product gross margin for the three- and six-month
periods ended June 30, 2005, as compared to the same period in 2004, reflect
primarily the change in product mix due to the acquisition of M-Audio, as well
as increased price reductions and promotions, which were partially offset by
favorable impacts of foreign currency exchange rates on revenues. The service
gross margin increase for the three-and six-month periods ended June 30, 2005 as
compared to the same periods in 2004 primarily reflects increased service
revenue volume. Our service cost infrastructure, which is primarily
personnel-related, did not grow at the same rate as the revenues.
Research and Development
Three Months Ended June 30,
-----------------------------------------------
(dollars in thousands)
2005 2004
Expenses Expenses Change % Change
----------- ----------- ----------- -----------
Research and Development: $24,909 $22,924 $1,985 8.7%
Percentage of Net Revenues: 15.6% 16.4% (0.8%)
15
Six Months Ended June 30,
-----------------------------------------------
(dollars in thousands)
2005 2004
Expenses Expenses Change % Change
----------- ----------- ----------- -----------
Research and Development: $49,588 $45,216 $4,372 9.7%
Percentage of Net Revenues: 15.2% 16.9% (1.7%)
Research and development expenses include costs associated with the
development of new products and enhancement of existing products, and consist
primarily of employee salaries and benefits, facilities costs, depreciation,
consulting and temporary help, and prototype and development expenses. For the
three- and six-month periods ended June 30, 2005, the increase in research and
development expenditures was primarily due to higher personnel-related costs,
including the acquisition of M-Audio in August 2004, and higher consulting fees,
partially offset by lower hardware development costs. Research and development
expenses decreased as a percentage of net revenues primarily as a result of the
higher revenue base in 2005 compared to 2004.
Marketing and Selling
Three Months Ended June 30,
-----------------------------------------------
(dollars in thousands)
2005 2004
Expenses Expenses Change % Change
----------- ----------- ----------- -----------
Marketing and Selling $40,163 $33,656 $6,507 19.3%
Percentage of Net Revenues: 25.1% 24.1% 1.0%
Six Months Ended June 30,
-----------------------------------------------
(dollars in thousands)
2005 2004
Expenses Expenses Change % Change
----------- ----------- ----------- -----------
Marketing and Selling $79,810 $63,510 $16,300 25.7%
Percentage of Net Revenues: 24.5% 23.8% 0.7%
Marketing and selling expenses consist primarily of employee salaries
and benefits for sales, marketing and pre-sales customer support personnel,
commissions, travel expenses, advertising and promotional expenses and
facilities costs. For the three- and six-month periods ended June 30, 2005, the
increase in marketing and selling expenses was primarily due to higher
personnel-related costs, including salaries and related taxes and benefits, in
large part due to the acquisitions of M-Audio and Avid Nordic in the third
quarter of 2004. In the second quarter of 2005, these increases were partially
offset by lower net foreign exchange losses (specifically, remeasurement gains
and losses on net monetary assets denominated in foreign currencies, offset by
hedging gains and losses), which are included in marketing and selling expenses,
than we had in the second quarter of 2004. The percentage increase in marketing
and selling expense was due to the reasons discussed above, with the impact
being lessened by the higher revenue base in 2005.
General and Administrative
Three Months Ended June 30,
-----------------------------------------------
(dollars in thousands)
2005 2004
Expenses Expenses Change % Change
----------- ----------- ----------- -----------
General and Administrative $8,761 $6,184 $2,577 41.7%
Percentage of Net Revenues: 5.5% 4.4% 1.1%
16
Six Months Ended June 30,
-----------------------------------------------
(dollars in thousands)
2005 2004
Expenses Expenses Change % Change
----------- ----------- ----------- -----------
General and Administrative $17,258 $12,070 $5,188 43.0%
Percentage of Net Revenues: 5.3% 4.5% 0.8%
General and administrative expenses consist primarily of employee
salaries and benefits for administrative, executive, finance and legal
personnel, audit and legal fees, insurance and facilities costs. For the three
and six-month periods ended June 30, 2005, the increase in general and
administrative expenditures in 2005 was primarily due to higher
personnel-related costs, including our acquisition of M-Audio in August 2004. We
also incurred higher audit fees as a result of complying with the Sarbanes-Oxley
Act of 2002. The percentage increase in general and administrative expense was
due to the increases discussed above, with the impact being lessened by the
higher revenue base in 2005.
Amortization of Acquisition-Related Intangible Assets
Three Months Ended June 30,
-------------------------------------
(dollars in thousands)
2005 2004 Change
------------ ------------ -----------
Amortization of Intangible Assets: $1,875 $549 $1,326
Percentage of Net Revenues: 1.2% 0.4% 0.8%
Six Months Ended June 30,
-------------------------------------
(dollars in thousands)
2005 2004 Change
------------ ------------ -----------
Amortization of Intangible Assets: $3,748 $988 $2,760
Percentage of Net Revenues: 1.1% 0.4% 0.7%
Included in amortization of intangible assets for the three- and
six-month periods ended June 30, 2005 is $0.3 million and $0.6 million,
respectively, that is recorded within cost of revenues. Acquisition-related
intangible assets result from acquisitions accounted for under the purchase
method of accounting and include customer-related intangibles, developed
technology, trade names and other identifiable intangible assets. These assets
are amortized using the straight-line method over periods ranging from two to
twelve years. The increase in amortization expense of $1.3 million and $2.8
million for the three-month and six-month periods ended June 30, 2005,
respectively, as compared to the same periods in 2004 reflects acquisitions that
occurred during 2004 as discussed below. Excluding the impact of the proposed
Pinnacle acquisition, we would expect amortization of acquisition-related
intangibles to continue through the remainder of 2005 at approximately the same
level as in the six months ended June 30, 2005.
In January 2004, we acquired NXN Software GmbH, a provider of asset and
production management systems for the entertainment and computer graphics
industries, for cash consideration of euro 35 million ($43.7 million), less cash
acquired. As part of the purchase accounting allocation, we recorded $7.2
million of identifiable intangible assets, consisting of completed technologies,
customer relationships and a trade name, of which $1.2 million were written off
in December 2004 due to an impairment of the customer relationships and
tradename.
In August 2004, we acquired M-Audio, a provider of digital audio and
MIDI (Musical Instrument Digital Interface) solutions for musicians and audio
professionals, for cash, net of cash acquired, of $79.6 million and stock and
stock options with a fair value of $96.5 million. As part of the purchase
accounting allocation, we recorded $38.4 million of identifiable intangible
assets, consisting of completed technologies, customer relationships, a trade
name and a non-compete covenant. In September 2004, we acquired Avid Nordic AB,
17
an exclusive reseller of our products, for cash, net of cash acquired, of euro
6.1 million ($7.4 million). As part of the purchase accounting allocation, we
recorded $4.7 million of identifiable intangible assets consisting solely of
customer relationships.
Other Income (Expense), Net
Three Months Ended June 30,
------------------------------------
(dollars in thousands)
2005 2004 Change
----------- ---------- -------------
Other Income and Expense, Net: $1,179 $595 $584
Percentage of Net Revenues: 0.7% 0.4% 0.3%
Six Months Ended June 30,
------------------------------------
(dollars in thousands)
2005 2004 Change
----------- ---------- -------------
Other Income and Expense, Net: $2,016 $35 $1,981
Percentage of Net Revenues: 0.6% (0.0%) 0.6%
Other income (expense), net, generally consists of interest income,
interest expense and equity in income of a non-consolidated company. The
increase in other income and expense, net for the three-month period ended June
30, 2005 was primarily due to increased interest income earned in the second
quarter of 2005 on higher average cash and marketable securities balances.
The increase in other income and expense, net for the six-month period
ended June 30, 2005 was primarily due to a charge in 2004 of $1.1 million
related to the settlement of a lawsuit, as well as increased interest income
earned in the first half of 2005 due to higher average interest rates.
Provision for Income Taxes, Net
Three Months Ended June 30
---------------------------------------------
2005 2004 Change % Change
---------- ----------- ----------- ----------
Provision for income taxes, net $685 $700 ($15) -2.1%
As a percentage of net revenues 0.4% 0.5% -0.1% -20.0%
Six Months Ended June 30
---------------------------------------------
2005 2004 Change % Change
---------- ----------- ----------- ----------
Provision for income taxes, net $2,114 $200 $1,914 957%
As a percentage of net revenues 0.6% 0.0% 0.6% 766%
Our effective tax rate was 4.8% and 4.3% for the three month periods
ended June 30, 2005 and 2004, respectively. The effective tax rate for the six
month periods ended June 30, 2005 and 2004, respectively, was 6.0% and 0.7%. The
net tax provision for the six month period ended June 30, 2005 reflected a tax
provision of $2.5 million, partially offset by $0.3 million of a tax benefit
related to the amortization of non-deductible acquisition-related intangible
assets. The net tax provision for the six month period ended June 30, 2004
reflected a tax provision of $1.4 million, partially offset by the reversal of a
$1.2 million tax reserve resulting from the expiration of the statute of
limitation on that reserve item. The tax provisions for the six month periods
ended June 30, 2005 and 2004 were substantially comprised of taxes payable by
our foreign subsidiaries with only alternative minimum tax provided on
anticipated U.S taxable profits.
18
The tax rate in each year is significantly affected by net changes in
the valuation allowance against our deferred tax assets. We regularly review our
deferred tax assets for recoverability taking into consideration such factors as
historical losses after deductions for stock compensation, projected future
taxable income and the expected timing of the reversals of existing temporary
differences. 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 the level of deferred
tax assets as of June 30, 2005, the level of historical U.S. losses after
deductions for stock compensation, and the level of outstanding stock options
which we anticipate will generate significant U.S. tax deductions in the future,
we have determined that the uncertainty regarding the realization of these
assets is sufficient to warrant the continued establishment of a full valuation
allowance against the U.S. net deferred tax assets. In the quarter ended
December 31, 2004, we removed the valuation allowance related to deferred tax
assets of our Irish manufacturing operations. The decision to remove the
valuation allowance was based on the conclusion that it was more likely than not
that the deferred tax asset in Ireland would be realized. Due to the removal of
the valuation allowance, we now have a non-cash provision for income taxes
related to our Irish operations.
Our assessment of the valuation allowance on the U.S. deferred tax
assets could change in the future based upon our 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. In addition, because a portion of the valuation allowance was
established to reserve certain deferred tax assets resulting from the exercise
of employee stock options, in accordance with SFAS No. 109, removal of the
valuation allowance related to these assets would result in a credit to
additional paid in capital. If the valuation allowance were to be removed in its
entirety, a non-cash reduction in income tax expense and a credit to paid in
capital would be recorded in the period of removal. To the extent no valuation
allowance is established for our deferred tax assets in future periods, future
financial statements would reflect an increase in income tax expense which would
be on a non-cash basis until such time as our deferred tax assets are all used
to reduce current taxes payable.
Excluding the impact of the valuation allowance, our effective tax rate
would have been 32% for the three month periods ended June 30, 2005 and 2004.
This rate differs from the Federal statutory rate of 35% primarily due to income
in foreign jurisdictions which have lower tax rates.
LIQUIDITY AND CAPITAL RESOURCES
We have funded our operations to date through both private and public
sales of equity securities, including stock option exercises from our employee
stock plans, as well as through cash flows from operations. As of June 30, 2005,
our principal sources of liquidity included cash, cash equivalents and
marketable securities totaling $192.6 million.
With respect to cash flow, net cash provided by operating activities was
$38.2 million for the six months ended June 30, 2005 compared to $36.1 million
for the same period in 2004. During the six months ended June 30, 2005, net cash
provided by operating activities primarily reflects net income adjusted for
depreciation and amortization as well as an increase in deferred revenues,
partially offset by an increase in inventories and a decrease in accrued
expenses. During the six months ended June 30, 2004, net cash provided by
operating activities primarily reflects net income adjusted for depreciation and
amortization as well as an increase in deferred revenues and a decrease in
inventories, partially offset by an increase in accounts receivable.
At June 30, 2005 and December 31, 2004, we held inventory in the amounts
of $63.5 million and $53.9 million, respectively. These balances include
stockroom, spares, and demonstration equipment inventories at various locations,
and inventory at customer sites related to shipments for which we have not yet
recognized revenue. The increase from December 31, 2004 was primarily
attributable to in-transit inventory from Audio contract manufacturers,
resulting from a switch to a lower-cost shipping method (specifically using more
ocean freight as apposed to air freight), as well as a build-up of stockroom
inventory in certain locations due to lower than anticipated revenues. 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.
Accounts receivable increased by $1.6 million to $99.1 million at June
30, 2005 from $97.5 million at December 31, 2004. These balances are net of
allowances for sales returns, bad debts and customer rebates, all of which we
estimate and record based on historical experience. Days sales outstanding in
accounts receivable increased from 50 days at December 31, 2004 to 56 days at
June 30, 2005. The increase in days sales outstanding was primarily attributable
19
to the relative proportion of solution sales in each period, which were higher
in the December quarter than the June quarter due to new product delays
mentioned above. These sales are typically paid prior to recognition and
therefore have a positive impact on days sales outstanding in the period when
revenue is recognized.
Net cash flow used in investing activities was $1.4 million for the six
months ended June 30, 2005 compared to $50.5 million for the same period in
2004. We purchased $8.2 million of property and equipment during the six months
ended June 30, 2005 compared to $6.5 million in the same period of 2004.
Purchases of property and equipment in both 2005 and 2004 were primarily of
computer hardware and software to support research and development activities
and our information systems. Our full year capital spending for 2005, excluding
the impact of the pending Pinnacle acquisition, is currently expected to be
approximately $16.0 million, including purchases of hardware and software to
support activities in the research and development, information systems and
manufacturing areas, as well as for facilities renovations. However, this amount
could increase in the event that we enter into strategic business acquisitions
or for other reasons. During the six months ended June 30, 2004, we expended
cash of $42.9 million for the purchase of NXN Software GmbH. During this period,
we also made a second payment of $1.0 million for our 2003 acquisition of Bomb
Factory Digital, after resolution of acquisition-related contingencies. We
expect the cash payment for the Pinnacle acquisition to be approximately $71.3
million upon closing, which is currently expected in the third quarter of 2005.
During the six months ended June 30, 2005 and 2004, we generated cash of
$8.9 million and $11.8 million, respectively, from the issuance of common stock
related to the exercise of stock options and our employee stock purchase plan.
In connection with restructuring efforts during 2001 and prior periods,
as well as with the identification in 2003 and 2002 of excess space in various
locations, as of June 30, 2005 we have future cash obligations of approximately
$16.9 million under leases for which we have vacated the underlying facilities.
We have an associated restructuring accrual of $2.8 million at June 30, 2005
representing the excess of our lease commitments on space no longer used by us
over expected payments to be received on subleases of such facilities. This
restructuring accrual requires 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 period when such changes are
known. The lease payments will be made over the remaining terms of the leases,
which have varying expiration dates through 2010, unless we are able to
negotiate an earlier termination. All restructuring related payments will be
funded through working capital.
Our cash requirements vary depending upon factors such as our planned
growth, capital expenditures, the possible acquisition of businesses or
technologies complementary to our business, and obligations under past
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.
RECENT ACCOUNTING PRONOUNCEMENTS
In November 2004, the FASB issued SFAS No. 151, "Inventory Costs", an
amendment of Accounting Research Bulletin No. 43, which is the result of its
efforts to converge U.S. accounting standards for inventories with International
Accounting Standards. SFAS No. 151 requires idle facility expenses, freight,
handling costs, and wasted material (spoilage) costs to be recognized as
current-period charges. It also requires that the allocation of fixed production
overheads to the costs of conversion be based on the normal capacity of the
production facilities. SFAS No. 151 will be effective for inventory costs
incurred during fiscal years beginning after June 15, 2005 (i.e. beginning
January 1, 2006). We are currently evaluating the impact of SFAS No. 151 on our
consolidated financial statements. The adoption of this standard is not expected
to have a material impact on our financial position or results of operations.
On December 16, 2004, the FASB released SFAS No. 123R. This new
accounting standard requires all forms of stock compensation, including stock
options issued to employees, to be reflected as an expense in our financial
statements. On April 14, 2005, the Securities and Exchange Commission approved a
new rule that delays the effective date of SFAS No. 123R. Under the new rule,
SFAS No. 123R is now effective for public companies for annual, rather than
interim, periods that begin after June 15, 2005. SFAS No. 123R allows three
alternative methods of transitioning to the standard: modified prospective
application ("MPA"); modified retrospective application ("MRA") to all prior
20
periods; or MRA to only interim periods of the year of adoption. We intend to
use the MPA without restatement alternative and to apply the revised standard
beginning January 1, 2006. Under the modified prospective application, all
unvested awards that were previously included as part of the pro forma net
income disclosure and are outstanding on the effective date would be charged to
expense over the remaining vesting period, without any changes in measurement.
All new awards that are granted or modified after the effective date will be
expensed using the FAS 123R measurement model. Although we have not finalized
our analysis, we expect that the adoption of the revised standard will result in
higher operating expenses and lower earnings per share. See Footnote 6,
Accounting for Stock-Based Compensation, for the pro forma impact on net income
and income per common share as if we had historically applied the fair value
recognition provisions of SFAS No. 123 to stock based employee awards.
On October 22, 2004, the President signed the American Jobs Creation Act
of 2004 ("the Act"). The Act creates a temporary incentive for U.S. corporations
to repatriate accumulated income earned abroad by providing an 85 percent
dividends-received deduction for certain dividends from controlled foreign
corporations. The Act also creates a deduction on a percentage of the lesser of
qualified production activities income or taxable income. Although these
deductions are subject to a number of limitations and significant uncertainty
remains as to how to interpret numerous provisions in the Act, we believe that
we have the information necessary to make an informed decision on the impact of
the Act. Based on the information available, we have determined that our cash
position in the U.S. is sufficient to fund anticipated needs. We also believe
that the repatriation of income earned abroad would result in significant
foreign withholding taxes that otherwise would not have been incurred as well as
additional U.S. tax liabilities that may not be sufficiently offset by foreign
tax credits. Therefore, we do not currently plan to repatriate any income earned
abroad. We have also determined that the qualified production activities
deduction will not have a material impact on the fiscal 2005 tax provision due
to the expected amount of taxable income. These initial findings could change
based on clarification of the rules and changes in facts and circumstances of
our operations and/or cash requirements in the U.S.
21
CERTAIN FACTORS THAT MAY AFFECT FUTURE RESULTS
Some of the statements in this Form 10-Q relating to our future
performance constitute forward-looking statements. Such forward-looking
statements are based upon management's current expectations and involve known
and unknown risks. Realization of any of these risks may cause actual results to
differ materially from the results described in the forward-looking statements.
Certain of these risks are as follows:
We may not be able to realize the expected benefits of our proposed merger with
Pinnacle Systems, Inc.
As a result of our proposed merger with Pinnacle Systems, Inc., which we
expect to close in the third quarter of 2005, we will face challenges in several
areas of our business.
Existing or potential customers of Pinnacle and our existing and
potential customers may, in response to the consummation of the merger, delay or
defer their purchasing decisions. In addition, customers and prospective
customers could choose not to purchase their respective products or to reduce or
eliminate current products because of perceived or actual conflicts of interest
or doubts about the combined company's ability to provide products in a
satisfactory manner. As a result, revenues that may have ordinarily been
received by us or Pinnacle may be delayed or not earned at all. In addition,
current and prospective Pinnacle employees could experience uncertainty about
their future roles within the combined company. This uncertainty may adversely
affect our ability to attract and retain key personnel. Difficulties with
respect to existing and potential customers or Pinnacle employees could have a
material adverse effect on our business following the merger.
The successful integration of Pinnacle will require, among other things,
integration of Pinnacle's operations, policies and personnel into our business.
We may not achieve successful integration in a timely manner, or at all, and we
may not realize the anticipated benefits and synergies of the merger to the
extent, or in the timeframe, anticipated.
We will also face challenges inherent in efficiently managing an
increased number of employees over large geographic distances, including the
need to develop appropriate systems, policies, benefits and compliance programs.
The inability to manage the organization of the combined company effectively
could have a material adverse effect on our business after the merger.
Finally, completion of the proposed merger requires various closing
conditions to be satisfied. No assurance can be given that all required closing
conditions will be satisfied, or that the Pinnacle merger will be completed.
Poor global economic conditions could adversely affect demand for our products
and the financial condition of our suppliers, distributors and resellers.
The revenue growth and profitability of our business depends primarily
on the overall demand for our products. If global economic conditions worsen,
demand for our products may weaken, as could the financial health of our
suppliers, distributors and resellers, which could adversely affect our revenues
and business.
Our performance will depend in part on continued customer acceptance of our
digital nonlinear editing products.
We continue to introduce new digital non-linear products based on our
Digital Nonlinear Accelerator architecture, including upgrades and enhancements
to our Media Composer Adrenaline and NewsCutter Adrenaline systems, as well as
Avid Xpress Pro with Avid Mojo and Avid DS Nitris hardware. We will need to
continue to focus marketing and sales efforts on educating potential customers
and our resellers about the uses and benefits of these products. The future
success of certain of these products, such as Avid DS Nitris, which enable
high-definition production, will also depend on demand for high definition
content and appliances, such as television sets and monitors, that utilize the
high definition standard. In addition, there are several other risks involved
with offering new products in general, including, without limitation, the
possibility of defects or errors, failure to meet customer expectations, delays
in shipping new products and the introduction of similar products by our
competitors. The introduction and transition to new products could also have a
negative impact on the market for our existing products, which could adversely
affect our revenues and business.
22
The digital media business is large, widely dispersed, and highly competitive,
and we may not be successful in growing our customer base or predicting customer
demand in this business.
We are continuing to enhance our status in the digital broadcast
business and have augmented our NewsCutter product offering with the Avid Unity
for News products, and other server, newsroom, and browser products. In this
business, in addition to or in lieu of discrete point products, customers will
often seek complex solutions involving highly integrated components (including
the configuration of unique workflows) from a single or multiple vendors.
Success in this business will require, among other things, creating and
implementing compelling solutions and developing a strong, loyal customer base.
In addition, large, complex broadcast orders often require us to devote
significant sales, engineering, manufacturing, installation, and support
resources to ensure their successful and timely fulfillment. As the broadcast
business converts from analog to digital, our strategy has been to build our
broadcast solutions team in response to customer demand. To the extent that
customer demand for our broadcast solutions exceeds our expectations, we may
encounter difficulties in the short term meeting our customers' needs.
Meanwhile, our competitors may devote greater resources to the broadcast
business than we do, or may be able to leverage their presence more effectively.
If we are unsuccessful in expanding within the digital broadcast business or in
predicting and satisfying customer demand, our business and revenues could be
adversely affected.
A portion of our revenue is dependent on sales of large, complex solutions.
We expect sales of large, complex solutions to continue to constitute a
material portion of our net revenue, particularly as news stations convert from
analog, or tape-based, processes to digital formats. Our quarterly and annual
revenues could fluctuate if:
o sales to one or more of our customers are delayed or are not completed within
a given quarter;
o the contract terms preclude us from recognizing revenues relating to one or
more significant contracts during a particular quarter;
o news stations' migrations to networked digital infrastructure slows down;
o we are unable to complete complex customer installations on schedule;
o our customers reduce their capital investments in our products in response to
slowing economic growth; and
o any of our large customers terminates its relationship with us or
significantly reduces the amount of business it does with us.
When we acquire other companies or businesses, we become subject to potential
events or circumstances that could hurt our business.
We periodically acquire other companies or businesses. For example, in
January 2004, we acquired NXN Software GmbH, a company that manufactures asset
and production management systems specifically targeted for the entertainment
and computer graphics industries, and in August 2004, we acquired Midiman, Inc.
(d/b/a M-Audio), a leading provider of digital audio and MIDI solutions for
musicians and audio professionals. The risks associated with such acquisitions
include, among others:
o the difficulty of assimilating the operations, policies and personnel of the
target companies;
o the failure to realize anticipated returns on investment, cost savings and
synergies;
o the diversion of management's time and attention;
o the dilution existing stockholders experience if we issue common stock or
other equity rights in the acquisition;
o the potential loss of key employees of the target company;
o the difficulty in complying with a variety of foreign laws and regulations;
o the impairment of relationships with customers or suppliers;
o the risks associated with contingent payments and earnouts;
o the possibility of incurring debt and amortization expenses related to
goodwill and other intangible assets; and
o unidentified issues not discovered in due diligence, which may include product
quality issues and legal contingencies.
23
Such acquisitions often involve significant transaction-related costs
and could cause disruption to normal operations. In the future, we may also make
debt or equity investments. If so, we may fail to realize anticipated returns on
such investments. If we are unable to overcome or mitigate these risks, they
could adversely affect our business and lower revenues.
We compete with many other enterprises, and we expect competition to intensify
in the future.
The digital video and audio business are highly competitive, with
limited barriers to entry, and are characterized by pressure to reduce prices,
incorporate new features, and accelerate the release of new products. Some of
our current and potential competitors have substantially greater financial,
technical, distribution, support, and marketing resources than we do. Such
competitors may use these resources to lower their product costs, allowing them
to reduce prices to levels at which we could not operate profitably. Delays or
difficulties in product development and introduction may also harm our business.
In addition to price, our products must also compete favorably with our
competitors' products in terms of reliability, performance, ease of use, range
of features, product enhancements, reputation and training. If we are unable to
compete for our target customers effectively, our business and results of
operations could suffer.
New product announcements by our competitors and by us also could have
the effect of reducing customer demand for our existing products. New product
introductions require us to devote time and resources to training our sales
channels in product features and target customers, with the temporary result
that the sales channels may have less time to devote to selling our products. In
addition, our introduction of new products and expansion of existing product
offerings can put us into competition with companies with whom we formerly
collaborated. To the extent such companies discontinue their alliances with
Avid, it could have a negative impact on our business.
Our products are complex, and may contain errors or defects resulting from such
complexity.
As we continue to enhance and expand our product offerings, our products
have grown increasingly complex and, despite extensive testing and quality
control, may contain errors or defects. Such errors or defects could cause us to
issue corrective releases and could result in loss of revenues, delay of revenue
recognition, increased product returns, lack of market acceptance and damage to
our reputation.
We have a significant presence in the audio business, and therefore the growth
of our audio business will depend in part on our ability to successfully
introduce new products.
Our Digidesign division has a significant presence in the audio
business, due in large part to a series of successful product introductions. Our
future success will depend in part upon our ability to offer, on a timely and
cost-effective basis, new audio products and enhancements of our existing audio
products. This can be a complex and uncertain process, and we could experience
design, manufacturing, marketing, or other difficulties that delay or prevent
the introduction of new or enhanced products, or the integration of acquired
products, which, in turn, could harm our business.
Historically, a significant portion of our audio revenues has been
derived from sales to professional musicians and studios. M-Audio is currently
expanding its sales channel to include sales through the broader consumer
channel. Members of M-Audio's senior staff have experience in this channel, but
our overall experience addressing the consumer channel is limited, and the
process of developing a channel for non-specialty stores and establishing our
products in these stores will be difficult. While we are not anticipating that a
material portion of our revenues will come through the consumer audio channel in
the near term, there are costs related to pursuing the consumer channel that
are, to a large extent, fixed. As a result, we may be unable to adjust our
spending in a timely manner to compensate for any unexpected revenue shortfall,
which would harm our operating results. Also, to the extent we increase sales of
our audio products through the consumer channel, we expect to experience greater
seasonality in sales of such products. Typically, sales of consumer electronics
and software increase in the second half of the year, reaching their peak during
the year-end holiday season.
Our use of independent firms and contractors to perform some of our product
development and manufacturing activities could expose us to risks that could
adversely impact our revenues.
Independent firms and contractors, some of whom are located in other
countries, perform some of our product development and manufacturing activities.
We generally own the software developed by these contractors. The use of
independent firms and contractors, especially those located abroad, could expose
us to risks related to governmental regulation, foreign taxation, intellectual
24
property ownership and rights, exchange rate fluctuation, political instability
and unrest, natural disasters, and other risks, which could adversely impact our
revenues.
An interruption of our supply of certain products or key components from our
sole source suppliers, or a price increase in such products or components, could
hurt our business.
We are dependent on a number of specific suppliers for certain products
and key components of our products. We purchase these sole source products and
components pursuant to purchase orders placed from time to time. We generally do
not carry significant inventories of these sole source products and components
and have no guaranteed supply arrangements. If any of our sole source vendors
should fail to produce such products or to supply or enhance such components,
such failure could imperil our supply and our ability to continue selling and
servicing products that use these components. Similarly, if any of our sole
source vendors should encounter technical, operating or financial difficulties,
such difficulties could threaten our supply of these products or components.
While we believe that alternative sources for these products and components
could be developed, or our products could be redesigned to permit the use of
alternative components, an interruption of our supply could damage our business
and negatively affect our operating results.
Our gross profit margin varies from product to product depending
primarily on the proportion and cost of third-party hardware included in each
product. From time to time, we add functionality and features to our products.
If we effect such additions through the use of more, or more costly, third-party
hardware, and are not able to increase the price of such products to offset
these increased costs, our gross profit margin on these products could decrease
and our operating results could be adversely affected.
We rely on third party software for some of our products and if we are unable to
use or integrate such software, our product and service development may be
delayed.
We rely on certain software that we license from third parties,
including software that is bundled with our products and sold to end users and
software that is integrated with internally developed software and used in our
products to perform key functions. These third-party software licenses may not
continue to be available on commercially reasonable terms, and the software may
not be appropriately supported, maintained or enhanced by the licensors. The
loss of licenses to, or inability to support, maintain and enhance any such
software, could result in increased costs, or in delays or reductions in product
shipments until equivalent software could be developed, identified, licensed and
integrated, which would likely harm our business.
Qualifying and supporting our products on multiple computer platforms is time
consuming and expensive.
Our software engineers devote significant time and effort to qualify and
support our products on various computer platforms, including Microsoft and
Apple platforms. Computer platform modifications and upgrades require additional
time to be spent to ensure that our products function properly. To the extent
that the current configuration of qualified and supported platforms changes or
we need to qualify and support new platforms, we could be required to expend
valuable engineering resources, which could adversely affect our operating
results.
Our operating results are dependent on several unpredictable factors.
The revenue and gross profit from our products depend on many factors,
including:
o mix of products sold;
o cost and proportion of third-party hardware and software included in such
products;
o product distribution channels;
o acceptance of our new product introductions;
o product offers and platform upgrades;
o price discounts and sales promotion programs;
o volume of sales of aftermarket hardware products;
o costs of swapping or fixing products released to the market with defects;
o provisions for inventory obsolescence;
o competitive pressure on product prices;
o costs incurred in connection with "solution" sales, which typically have
longer selling and implementation cycles; and
o timing of delivery of solutions to customers.
25
Changes in any of these factors could adversely affect our operating results.
Our international operations expose us to significant exchange fluctuations and
regulatory, intellectual property and other risks which could harm our operating
results.
We generally derive approximately half of our revenues from customers
outside of 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 (loss) and cash flow.
To hedge against the foreign 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 forecasts of transaction activity in the various currencies.
To the extent that these forecasts are over- or understated during periods of
currency volatility, we could experience currency gains or losses.
Other risks inherent in our international operations include changes in
regulatory practices, environmental laws, tax laws, trade restrictions and
tariffs, longer collection cycles for accounts receivable, and greater
difficulty in protecting intellectual property.
New environmental regulations could negatively impact our future operating
results.
The European Union has finalized the Waste Electrical and Electronic
Equipment ("WEEE") Directive, which makes producers, importers, and/or
distributors of specified electronic products, including certain Avid products,
responsible for the collection, recycling, treatment, and disposal of covered
products. The WEEE Directive is expected to become effective in August 2005,
although to date not all EU countries have adopted rules implementing the
Directive. The European Union has also passed the Restriction of Hazardous
Substances Directive, or the RoHS Directive, which places restrictions on lead
and certain other substances contained in specified electronic products,
including certain Avid products, sold in the European Union after June 2006.
While the cost of compliance with these Directives cannot be determined before
the member states issue their final implementation guidance, the potential costs
could be significant and could adversely affect our future operating results.
Our operating costs are tied to projections of future revenues, which may differ
from actual results.
Our operating expense levels are based, in part, on our expectations of
future revenues. Such future revenues are difficult to predict. A significant
portion of our business occurs near the end of each quarter, which can impact
our ability to forecast revenues on a quarterly basis with precision. Further,
we are generally unable to reduce quarterly operating expense levels rapidly in
the event that quarterly revenue levels fail to meet internal expectations.
Therefore, if quarterly revenue levels fail to meet internal expectations upon
which expense levels are based, our results of operations could be adversely
affected.
Terrorism, acts of war, and other catastrophic events may seriously harm our
business.
Terrorism, acts of war, or other catastrophic events may disrupt our
business and harm our employees, facilities, suppliers, distributors, resellers
or customers, which could significantly impact our revenue and operating
results. The increasing presence of these threats has created many economic and
political uncertainties that could adversely affect our business and stock price
in ways that cannot be predicted. We are predominantly uninsured for losses and
interruptions caused by terrorism, acts of war, and other catastrophic events.
If we fail to maintain strong relationships with our resellers, distributors,
and suppliers, our ability to successfully deploy our products may be harmed.
We sell many of our video products and services, and substantially all
of our audio products and services, indirectly through resellers and
distributors. In our audio segment, a few distributors account for a significant
portion of the revenue in that segment. The loss of one or more key distributors
could reduce our revenues. The resellers and distributors of our video segment
products typically purchase Avid software and Avid-specific hardware from us,
and third-party components from various other vendors, in order to produce
complete systems for resale. Any disruption to our resellers and distributors,
26
or their third-party suppliers, could reduce our revenues. Increasingly, we are
distributing our products directly, which could put us in competition with our
resellers and distributors and could adversely affect our revenues. In addition,
our resellers could diversify the manufacturers from whom they purchase products
to sell to final end-users, which could lead to a weakening of our relationships
with our resellers and could adversely affect our revenues.
Most of the resellers and distributors of our video products are not
granted rights to return products after purchase, and actual product returns
from such resellers and distributors have been insignificant to date. Our
revenue from sales of audio products is generally derived, however, from
transactions with distributors and authorized resellers that typically allow
limited rights of return, inventory stock rotation and price protection.
Accordingly, reserves for estimated returns, exchanges and credits for price
protection are recorded as a reduction of revenues upon shipment of the related
products to such distributors and resellers, based upon our historical
experience. To date, actual returns have not differed materially from
management's estimates. However, if returns of our audio segment products were
to exceed estimated levels, our revenues and operating results could be
adversely impacted.
Changes in accounting rules could adversely affect our future operating results.
Our financial statements are prepared in accordance with U.S. generally
accepted accounting principles. These principles are subject to interpretation
by various governing bodies, including the Financial Accounting Standards Board
and the Securities and Exchange Commission, which promulgate and interpret
appropriate accounting regulations. Changes from current accounting regulations,
including changes in the rules regarding accounting for stock-based
compensation, may have a significant effect on our reported financial results.
Our future growth could be harmed if we lose the services of certain employees.
Our success depends upon the services of a talented and dedicated
workforce, including members of our executive team and employees in technical
positions. The loss of the services of one or more key employees could harm our
business. Our success also depends upon our ability to attract and retain highly
skilled new employees. Competition for such employees is intense in the
industries and geographic areas in which we operate. In the past, we have relied
on our ability to grant stock options as one mechanism for recruiting and
retaining highly skilled talent. Changes in the accounting rules that will
require us to expense stock options will impair our ability to provide these
incentives without incurring compensation costs. If we are unable to compete
successfully for talented employees, our business could suffer.
If we fail to manage our growth effectively, our business could be harmed.
Our success depends on our ability to manage the growth of our
operations effectively. As a result of our acquisitions and increasing demand
for our products and services, the scope of our operations has grown both
domestically and internationally. Our management team will face challenges
inherent in efficiently managing an increased number of employees over larger
geographic distances. These challenges include implementing effective
operational systems, procedures and controls, as well as training new personnel.
Inability to successfully respond to these challenges could have a material
adverse effect on the growth of our business.
Our websites could subject us to legal claims that could harm our business.
Some of our websites provide interactive information and services to our
customers. To the extent that materials may be posted on or downloaded from
these websites and distributed to others, we may be subject to claims for
defamation, negligence, copyright or trademark infringement, personal injury, or
other theories of liability based on the nature, content, publication or
distribution of such materials. In addition, although we have attempted to limit
our exposure by contract, we may also be subject to claims for indemnification
by end users in the event that the security of our websites is compromised. As
these websites are available on a worldwide basis, they could potentially be
subject to a wide variety of international laws.
We could incur substantial costs protecting our intellectual property or
defending against a claim of infringement.
Our ability to compete successfully and achieve future revenue growth
depends, in part, on our ability to protect our proprietary technology and
operate without infringing upon the intellectual property rights of others. We
rely upon a combination of patent, copyright, trademark and trade secret laws,
confidentiality procedures, and contractual provisions, as well as required
hardware components and security keys, to protect our proprietary technology.
27
However, our means of protecting our proprietary rights may not be adequate. In
addition, the laws of certain countries do not protect our proprietary
technology to the same extent as do the laws of the United States. From time to
time unauthorized parties have obtained, copied, and used information that we
consider proprietary. Policing the unauthorized use of our proprietary
technology is costly and time-consuming and we are unable to measure the extent
to which piracy of our software exists. We expect software piracy to be a
persistent problem.
We occasionally receive communications suggesting that our products may
infringe the intellectual property rights of others. It is our practice to
investigate the factual basis of such communications and negotiate licenses
where appropriate. While it may be necessary or desirable in the future to
obtain licenses relating to one or more products or relating to current or
future technologies, we may be unable to do so on commercially reasonable terms.
If we are unable to protect our proprietary technology or unable to negotiate
licenses for the use of others' intellectual property, our business could be
impaired.
We also may be liable to some of our customers for damages that they
incur in connection with intellectual property claims. Although we attempt to
limit our exposure to liability arising from infringement of third-party
intellectual property rights in our agreements with customers, we may not always
be successful. If we are required to pay damages to our customers, or indemnify
our customers for damages they incur, our business could be harmed. Moreover,
even if a particular claim falls outside of our indemnity or warranty
obligations to our customers, our customers may be entitled to additional
contractual remedies against us.
Our association with industry organizations could subject us to litigation.
We are members of several industry organizations, trade associations and
standards consortia. Membership in these and similar groups could subject us to
litigation as a result of the activities of such groups. For example, in
connection with our anti-piracy program, designed to enforce copyright
protection of our software, we are a member of the Business Software Alliance
("BSA"). From time to time the BSA undertakes litigation against suspected
copyright infringers. These lawsuits could lead to counterclaims alleging
improper use of litigation or violation of other local law. To date, none of
these lawsuits or counterclaims have had an adverse effect on our results of
operations, but should we become involved in material litigation, our cash flows
or financial position could be adversely effected.
Compliance with rules and regulations concerning corporate governance has caused
our operating expenses to increase and has put additional demands on our
management.
The Sarbanes-Oxley Act of 2002 and the rules and regulations of the
Securities and Exchange Commission and the NASDAQ stock market increased the
scope, complexity and cost of our corporate governance, reporting and disclosure
practices. These laws, rules and regulations also may divert management's
attention from business operations, increase the cost of obtaining director and
officer liability insurance and make it more difficult for us to attract and
retain qualified executive officers, key personnel and members of our board of
directors.
If we experience problems with our third-party leasing program, our revenues
could be adversely impacted.
We have an established leasing program with a third party that allows
certain of our customers to finance their purchases of our products. If this
program ended abruptly or unexpectedly, some of our customers might be unable to
purchase our products unless or until they were able to arrange for alternative
financing, which could adversely impact our revenues.
Our stock price may continue to be volatile.
The market price of our common stock has experienced volatility in the
past and could continue to fluctuate substantially in the future based upon a
number of factors, most of which are beyond our control. These factors include:
o changes in our quarterly operating results;
o shortfalls in our revenues or earnings compared to securities analysts'
expectations;
o changes in analysts' recommendations or projections;
o fluctuations in investors' perceptions of us or our competitors;
o shifts in the markets for our products;
o development and marketing of products by our competitors;
o changes in our relationships with suppliers, distributors, resellers, system
integrators or customers;
o announcement of major acquisitions;
o a shift in financial markets; and
o global macroeconomic conditions.
28
Further, the stock market has experienced volatility with respect to the price
of equity securities of high technology companies generally, and this volatility
has, at times, appeared to be unrelated to or disproportionate to any of the
factors above.
29
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURE ABOUT MARKET RISK
Market Risk
Our primary exposures to market risk are financial, including the effect
of volatility in currencies on asset and liability positions and revenue and
operating expenses of our international subsidiaries that are denominated in
foreign currencies, and the effect of fluctuations in interest rates earned on
our cash equivalents and marketable securities.
Foreign Currency Exchange Risk
We generally 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 (loss) and cash flow.
To hedge against the foreign exchange exposure of certain forecasted
receivables, payables and cash balances of our foreign subsidiaries, we enter
into short-term foreign currency forward-exchange contracts. There are two
objectives of our foreign currency forward-exchange 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 U.S. dollar. These forward-exchange contracts
typically mature within 30 days of purchase. 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 that these forecasts are over- or understated during the periods
of currency volatility, we could experience unanticipated currency gains or
losses.
At June 30, 2005, we had $23.5 million of forward-exchange contracts
outstanding, denominated in the euro, British pound, Japanese yen, Swedish
krona, Danish kroner, Norwegian krone, Canadian dollar, Singapore dollar,
Australian dollar and Korean won, as a hedge against forecasted foreign
currency-denominated receivables, payables and cash balances. For the three
month period ended June 30, 2005, net gains resulting from forward-exchange
contracts of $2.6 million were included in results of operations, offset by net
transaction and re-measurement losses on the related asset and liabilities of
$2.7 million. A hypothetical 10% change in foreign currency rates would not have
a material impact on our results of operations, 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 June 30, 2005, we held $192.6 million in cash, cash equivalents and
marketable securities, including short-term corporate obligations, municipal
obligations, asset-backed securities, commercial paper and U.S. and Canadian
government and government agency obligations. 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 maturity.
30
ITEM 4. CONTROLS AND PROCEDURES
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 June 30, 2005. 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 June 30, 2005, 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.
No change in our internal control over financial reporting occurred during the
fiscal quarter ended June 30, 2005 that has materially affected, or is
reasonably likely to materially affect, our internal control over financial
reporting.
31
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
In April 2005, we were notified by the Korean Federal Trade Commission ("KFTC")
that a former reseller, Neat Information Telecommunication, Inc. ("Neat"), had
filed a complaint against us alleging unfair trade practices. Neat, one of
several resellers of our products in South Korea, was terminated by us in
September 2003. The KFTC is currently interviewing both parties and will
determine whether to proceed with a formal investigation. We believe that the
complaint is without merit and will defend ourselves vigorously in the event
that the KFTC determines to proceed with a formal investigation. Our business in
South Korea represented less than 1% of our total revenues for 2004. Because we
cannot predict the outcome of this matter at this time, no costs have been
accrued for this possible loss contingency.
ITEM 6. EXHIBITS
(a) EXHIBITS
*10.1 Avid Technology, Inc. 2005 Stock Incentive Plan
*10.2 Consulting Agreement between Avid Technology, Inc. and Jay Anderson,
dated July 25, 2005.
*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.
*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.
*32.1 Certifications pursuant to 18 U.S.C. Section 1350, as adopted pursuant
to Section 906 of the Sarbanes-Oxley Act of 2002.
- ---------------------
*documents filed herewith
32
SIGNATURES
Pursuant to the requirements 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.
Date: August 8, 2005 By: /s/ Paul J. Milbury
-----------------------------
Paul J. Milbury
Chief Financial Officer
(Principal Financial Officer)
Date: August 8, 2005 By: /s/ Carol L. Reid
--------------------------
Carol L. Reid
Vice President and Corporate Controller
(Principal Accounting Officer)
33
EXHIBIT INDEX
Exhibit No. Description
- ----------- -----------
*10.1 Avid Technology, Inc. 2005 Stock Incentive Plan
*10.2 Consulting Agreement between Avid Technology, Inc. and Jay Anderson,
dated July 25, 2005.
*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
*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
*32.1 Certifications pursuant to 18 U.S.C. Section 1350, as adopted pursuant
to Section 906 of the Sarbanes-Oxley Act of 2002
- ---------------------
*documents filed herewith
34
Avid Technology, Inc.
2005 Stock Incentive Plan
-------------------------
1. Purpose
The purpose of this 2005 Stock Incentive Plan (the "Plan") of Avid
Technology, Inc., a Delaware corporation (the "Company"), is to advance the
interests of the Company's stockholders by enhancing the Company's ability to
attract, retain and motivate persons who are expected to make important
contributions to the Company and by providing such persons with equity ownership
opportunities and performance-based incentives that are intended to align their
interests with those of the Company's stockholders. Except where the context
otherwise requires, the term "Company" shall include any of the Company's
present or future parent or subsidiary corporations as defined in Sections
424(e) or (f) of the Internal Revenue Code of 1986, as amended, and any
regulations promulgated thereunder (the "Code") and any other business venture
(including, without limitation, joint venture or limited liability company) in
which the Company has a controlling interest, as determined by the Board of
Directors of the Company (the "Board").
2. Eligibility
-----------
All of the Company's employees, officers, directors, consultants and
advisors are eligible to receive options, stock appreciation rights, restricted
stock, restricted stock units and other stock-based awards (each, an "Award")
under the Plan. Each person who receives an Award under the Plan is deemed a
"Participant".
3. Administration and Delegation
-----------------------------
(a) Administration by Board of Directors. The Plan will be administered
by the Board. The Board shall have authority to grant Awards and to adopt, amend
and repeal such administrative rules, guidelines and practices relating to the
Plan as it shall deem advisable. The Board may correct any defect, supply any
omission or reconcile any inconsistency in the Plan or any Award in the manner
and to the extent it shall deem expedient to carry the Plan into effect and it
shall be the sole and final judge of such expediency. All decisions by the Board
shall be made in the Board's sole discretion and shall be final and binding on
all persons having or claiming any interest in the Plan or in any Award. No
director or person acting pursuant to the authority delegated by the Board shall
be liable for any action or determination relating to or under the Plan made in
good faith.
(b) Appointment of Committees. To the extent permitted by applicable
law, the Board may delegate any or all of its powers under the Plan to one or
more committees or subcommittees of the Board (a "Committee"). All references in
the Plan to the "Board" shall mean the Board or a Committee of the Board or the
officers referred to in Section 3(c) to the extent that the Board's powers or
authority under the Plan have been delegated to such Committee or officers.
(c) Delegation to Officers. To the extent permitted by applicable law,
the Board may delegate to one or more officers of the Company the power to grant
Awards to employees or officers of the Company or any of its present or future
subsidiary corporations and to exercise such other powers under the Plan as the
Board may determine, provided that the Board shall fix the terms of the Awards
to be granted by such officers (including the exercise price of such Awards,
which may include a formula by which the exercise price will be determined) and
the maximum number of shares subject to Awards that the officers may grant;
provided further, however, that no officer shall be authorized to grant Awards
1
to any "executive officer" of the Company (as defined by Rule 3b-7 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) or to any
"officer" of the Company (as defined by Rule 16a-1 under the Exchange Act).
4. Stock Available for Awards.
---------------------------
(a) Number of Shares. Subject to adjustment under Section 10, Awards may
be made under the Plan for up to 3,000,000 shares of common stock, $.01 par
value per share, of the Company (the "Common Stock"). If any Award expires or is
terminated, surrendered or canceled without having been fully exercised or is
forfeited in whole or in part (including as the result of shares of Common Stock
subject to such Award being repurchased by the Company at the original issuance
price pursuant to a contractual repurchase right) or results in any Common Stock
not being issued (including as the result of a SAR being settled in Common
Stock), the unused Common Stock covered by such Award shall again be available
for the grant of Awards under the Plan. However, in the case of Incentive Stock
Options (as hereinafter defined), the foregoing provisions shall be subject to
any limitations under the Code. Shares issued under the Plan may consist in
whole or in part of authorized but unissued shares or treasury shares.
(b) Section 162(m) Per-Participant Limit. Subject to adjustment under
Section 10, the maximum number of shares of Common Stock with respect to which
Awards may be granted to any Participant under the Plan shall be 500,000 per
calendar year. For purposes of the foregoing limit, the combination of an Option
in tandem with a SAR (as each is hereafter defined) shall be treated as a single
Award. The per-Participant limit described in this Section 4(b) shall be
construed and applied consistently with Section 162(m) of the Code or any
successor provision thereto, and the regulations thereunder ("Section 162(m)").
5. Stock Options
-------------
(a) General. The Board may grant options to purchase Common Stock (each,
an "Option") and determine the number of shares of Common Stock to be covered by
each Option, the exercise price of each Option and the conditions and
limitations applicable to the exercise of each Option, including conditions
relating to applicable federal or state securities laws, as it considers
necessary or advisable. An Option which is not intended to be an Incentive Stock
Option (as hereinafter defined) shall be designated a "Nonstatutory Stock
Option".
(b) Incentive Stock Options. An Option that the Board intends to be an
"incentive stock option" as defined in Section 422 of the Code (an "Incentive
Stock Option") shall only be granted to employees of Avid Technology, Inc., any
of Avid Technology, Inc.'s present or future parent or subsidiary corporations
as defined in Sections 424(e) or (f) of the Code, and any other entities the
employees of which are eligible to receive Incentive Stock Options under the
Code, and shall be subject to and shall be construed consistently with the
requirements of Section 422 of the Code. The Company shall have no liability to
a Participant, or any other party, if an Option (or any part thereof) that is
intended to be an Incentive Stock Option is not an Incentive Stock Option or for
any action taken by the Board pursuant to Section 11(f), including without
limitation the conversion of an Incentive Stock Option to a Nonstatutory Stock
Option.
(c) Exercise Price. The Board shall establish the exercise price of each
Option and specify such exercise price in the applicable option agreement;
provided, however, that the exercise price shall not be less than 100% of the
Fair Market Value (as defined below in subsection (h)(3)) at the time the Option
is granted.
(d) Limitation on Repricing. Unless such action is approved by the
Company's stockholders: (1) no outstanding Option granted under the Plan may be
amended to provide an exercise price per share that is lower than the
2
then-current exercise price per share of such outstanding Option (other than
adjustments pursuant to Section 10) and (2) the Board may not cancel any
outstanding Option and grant in substitution therefore new Awards under the Plan
covering the same or a different number of shares of Common Stock and having an
exercise price per share lower than the then-current exercise price per share of
the cancelled Option.
(e) No Reload Rights. No Option granted under the Plan shall contain any
provision entitling the optionee to the automatic grant of additional Options in
connection with any exercise of the original Option.
(f) Duration of Options. Each Option shall be exercisable at such times
and subject to such terms and conditions as the Board may specify in the
applicable option agreement; provided, however, that no Option will be granted
for a term in excess of 10 years.
(g) Exercise of Option. Options may be exercised by delivery to the
Company of a written notice of exercise signed by the proper person or by any
other form of notice (including electronic notice) approved by the Board
together with payment in full as specified in Section 5(h) for the number of
shares for which the Option is exercised. Shares of Common Stock subject to the
Option will be delivered by the Company following exercise either as soon as
practicable.
(h) Payment Upon Exercise. Common Stock purchased upon the exercise of
an Option granted under the Plan shall be paid for as follows:
(1) in cash or by check, payable to the order of the Company;
(2) except as the Board may otherwise provide in an option
agreement, by (i) delivery of an irrevocable and unconditional undertaking by a
creditworthy broker to deliver promptly to the Company sufficient funds to pay
the exercise price and any required tax withholding or (ii) delivery by the
Participant to the Company of a copy of irrevocable and unconditional
instructions to a creditworthy broker to deliver promptly to the Company cash or
a check sufficient to pay the exercise price and any required tax withholding;
(3) when the Common Stock is registered under the Securities
Exchange Act of 1934 (the "Exchange Act"), by delivery of shares of Common Stock
owned by the Participant valued at their fair market value as determined by (or
in a manner approved by) the Board ("Fair Market Value"), provided (i) such
method of payment is then permitted under applicable law, (ii) such Common
Stock, if acquired directly from the Company, was owned by the Participant for
such minimum period of time, if any, as may be established by the Board in its
discretion and (iii) such Common Stock is not subject to any repurchase,
forfeiture, unfulfilled vesting or other similar requirements;
(4) to the extent permitted by applicable law and by the Board,
by payment of such other lawful consideration as the Board may determine; or
(5) by any combination of the above permitted forms of payment.
(i) Substitute Options. In connection with a merger or consolidation of
an entity with the Company or the acquisition by the Company of property or
stock of an entity, the Board may grant Options in substitution for any options
or other stock or stock-based awards granted by such entity or an affiliate
thereof. Substitute Options may be granted on such terms as the Board deems
appropriate in the circumstances, notwithstanding any limitations on Options
contained in the other sections of this Section 5 or in Section 2.
3
6. Director Awards
---------------
(a) Initial Grant. Upon the commencement of service on the Board by any
individual who is not then an employee of the Company or any subsidiary of the
Company, the Company shall grant to such person (1) a Nonstatutory Stock Option
to purchase up to 15,000 shares of Common Stock (subject to adjustment under
Section 10), (2) a Restricted Stock Award (as defined in Section 8(a) below)
that entitles such member to receive up to 7,500 shares of Common Stock (subject
to adjustment under Section 10) or (3) a combination of a Nonstatutory Stock
Option and a Restricted Stock Award, provided that the sum of (i) the number of
shares of Common Stock that such member is entitled to purchase pursuant to the
Nonstatutory Stock Option plus (ii) two multiplied by the number of shares of
Common Stock that such member is entitled to receive pursuant to the Restricted
Stock Award does not exceed 15,000 (subject to adjustment under Section 10).
(b) Annual Grant. On the date of each annual meeting of stockholders of
the Company, the Company shall grant to each member of the Board of Directors of
the Company who (1) has served as a director of the Company for at least six
months prior to such annual meeting, (2) is serving as a director of the Company
immediately following such annual meeting and (3) is not then an employee of the
Company or any of its subsidiaries, (i) a Nonstatutory Stock Option to purchase
up to 15,000 shares of Common Stock (subject to adjustment under Section 10),
(ii) a Restricted Stock Award that entitles such member to receive up to 7,500
shares of Common Stock (subject to adjustment under Section 10) or (iii) a
combination of a Nonstatutory Stock Option and a Restricted Stock Award,
provided that the sum of (A) the number of shares of Common Stock that such
member is entitled to purchase pursuant to the Nonstatutory Stock Option plus
(B) two multiplied by the number of shares of Common Stock that such member is
entitled to receive pursuant to the Restricted Stock Award does not exceed
15,000 (subject to adjustment under Section 10).
(c) Terms of Director Options. Options granted under this Section 6
shall (1) have an exercise price equal to the closing sale price (for the
primary trading session) of the Common Stock on The Nasdaq Stock Market or the
national securities exchange on which the Common Stock is then traded on the
date of grant (and if the Common Stock is not then traded on The Nasdaq Stock
Market or a national securities exchange, the fair market value of the Common
Stock on such date as determined by the Board), (2) vest in full on the First
Anniversary (as defined below in Section 6(f)) of the date of grant provided
that the individual is serving on the Board on such date, provided that no
additional vesting shall take place after the Participant ceases to serve as a
director and further provided that the Board may provide for accelerated vesting
in the case of death, disability, attainment of mandatory retirement age or
retirement following at least 10 years of service, (3) expire on the earlier of
10 years from the date of grant or three months following cessation of service
on the Board and (4) contain such other terms and conditions as the Board shall
determine.
(d) Restricted Stock Vesting. Restricted Stock Awards granted pursuant
to this Section 6 shall be zero percent vested prior to the First Anniversary of
the date of grant, no more than 33-1/3% vested prior to the Second Anniversary
(as defined below in Section 6(f)) of the date of grant, and no more than
66-2/3% vested prior to the Third Anniversary (as defined below in Section 6(f))
of the date of grant.
(e) Limitations on Awards to Non-Employee Directors. Directors who are
not employees of the Company may only be granted Awards under the Plan pursuant
to, and subject to the limitations set forth in, this Section 6 of the Plan.
(f) Annual Meetings. For Awards granted on the date of an annual meeting
of stockholders of the Company pursuant to this Section 6: the term "First
Anniversary" shall mean the earlier of (1) the first anniversary of the date of
grant or (2) the business day prior to the date of the next annual meeting of
4
stockholders of the Company to be held after the date of grant; the term "Second
Anniversary" shall mean the earlier of (1) the second anniversary of the date of
grant or (2) the business day prior to the date of the second annual meeting of
stockholders of the Company to be held after the date of grant; and the term
"Third Anniversary" shall mean the earlier of (1) the third anniversary of the
date of grant or (2) the business day prior to the date of the third annual
meeting of stockholders of the Company to be held after the date of grant.
7. Stock Appreciation Rights
-------------------------
(a) General. A Stock Appreciation Right, or SAR, is an Award entitling
the holder, upon exercise, to receive an amount in Common Stock determined in
whole or in part by reference to appreciation, from and after the date of grant,
in the fair market value of a share of Common Stock. SARs may be based solely on
appreciation in the fair market value of Common Stock or on a comparison of such
appreciation with some other measure of market growth such as (but not limited
to) appreciation in a recognized market index. The date as of which such
appreciation or other measure is determined shall be the exercise date unless
another date is specified by the Board in the SAR Award.
(b) Grants. Stock Appreciation Rights may be granted in tandem with, or
independently of, Options granted under the Plan.
(1) Tandem Awards. When Stock Appreciation Rights are expressly
granted in tandem with Options, (i) the Stock Appreciation Right will be
exercisable only at such time or times, and to the extent, that the related
Option is exercisable (except to the extent designated by the Board in
connection with a Reorganization Event) and will be exercisable in accordance
with the procedure required for exercise of the related Option; (ii) the Stock
Appreciation Right will terminate and no longer be exercisable upon the
termination or exercise of the related Option, except to the extent designated
by the Board in connection with a Reorganization Event and except that a Stock
Appreciation Right granted with respect to less than the full number of shares
covered by an Option will not be reduced until the number of shares as to which
the related Option has been exercised or has terminated exceeds the number of
shares not covered by the Stock Appreciation Right; (iii) the Option will
terminate and no longer be exercisable upon the exercise of the related Stock
Appreciation Right; and (iv) the Stock Appreciation Right will be transferable
only with the related Option.
(2) Independent SARs. A Stock Appreciation Right not expressly
granted in tandem with an Option will become exercisable at such time or times,
and on such conditions, as the Board may specify in the SAR Award.
(c) Exercise. Stock Appreciation Rights may be exercised by delivery to
the Company of a written notice of exercise signed by the proper person or by
any other form of notice (including electronic notice) approved by the Board,
together with any other documents required by the Board.
8. Restricted Stock; Restricted Stock Units
----------------------------------------
(a) General. The Board may grant Awards entitling recipients to acquire
shares of Common Stock ("Restricted Stock"), subject to the right of the Company
to repurchase all or part of such shares at their issue price or other stated or
formula price (or to require forfeiture of such shares if issued at no cost)
from the recipient in the event that conditions specified by the Board in the
applicable Award are not satisfied prior to the end of the applicable
restriction period or periods established by the Board for such Award. Instead
of granting Awards for Restricted Stock, the Board may grant Awards entitling
the recipient to receive shares of Common Stock to be delivered at the time such
shares of Common Stock vest ("Restricted Stock Units") subject to such terms and
5
conditions on the delivery of the shares of Common Stock as the Board shall
determine (each Award for Restricted Stock or Restricted Stock Units, a
"Restricted Stock Award").
(b) Limitations on Vesting.
-----------------------
(1) Subject to Section 6(d), Restricted Stock Awards that vest
based on the passage of time alone shall be zero percent vested prior to the
first anniversary of the date of grant, no more than 33-1/3% vested prior to the
second anniversary of the date of grant, and no more than 66-2/3% vested prior
to the third anniversary of the date of grant. Restricted Stock Awards that vest
upon the passage of time and provide for accelerated vesting based on
performance shall not vest prior to the first anniversary of the date of grant.
This subsection (b)(1) shall not apply to Awards granted pursuant to Section
11(i).
(2) Notwithstanding any other provision of this Plan, the Board
may, in its discretion, either at the time a Restricted Stock Award is made or
at any time thereafter, waive its right to repurchase shares of Common Stock (or
waive the forfeiture thereof) or remove or modify any part or all of the
restrictions applicable to the Restricted Stock Award, provided that the Board
may only exercise such rights in extraordinary circumstances which shall
include, without limitation, death or disability of the Participant; estate
planning needs of the Participant; a merger, consolidation, sale,
reorganization, recapitalization, or change in control of the Company; or any
other nonrecurring significant event affecting the Company, a Participant or the
Plan.
(c) Terms and Conditions. The Board shall determine the terms and
conditions of any such Restricted Stock Award, including the conditions for
repurchase (or forfeiture) and the issue price, if any.
(d) Stock Certificates. Any stock certificates issued in respect of a
Restricted Stock Award shall be registered in the name of the Participant and,
unless otherwise determined by the Board, deposited by the Participant, together
with a stock power endorsed in blank, with the Company (or its designee). At the
expiration of the applicable restriction periods, the Company (or such designee)
shall deliver the certificates no longer subject to such restrictions to the
Participant or if the Participant has died, to the beneficiary designated, in a
manner determined by the Board, by a Participant to receive amounts due or
exercise rights of the Participant in the event of the Participant's death (the
"Designated Beneficiary"). In the absence of an effective designation by a
Participant, "Designated Beneficiary" shall mean the Participant's estate.
9. Other Stock-Based Awards
------------------------
Other Awards of shares of Common Stock, and other Awards that are valued
in whole or in part by reference to, or are otherwise based on, shares of Common
Stock or other property, may be granted hereunder to Participants ("Other Stock
Unit Awards"). Such Other Stock Unit Awards shall also be available as a form of
payment in the settlement of other Awards granted under the Plan or as payment
in lieu of compensation to which a Participant is otherwise entitled. Other
Stock Unit Awards may be paid in shares of Common Stock or cash, as the Board
shall determine. Subject to the provisions of the Plan, the Board shall
determine the conditions of each Other Stock Unit Awards, including any purchase
price applicable thereto.
10. Adjustments for Changes in Common Stock and Certain Other Events.
-----------------------------------------------------------------
(a) 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, (1) the number and class of securities available under this Plan,
6
(2) the sub-limits set forth in Sections 4(b), 6(a) and 6(b), (3) the number and
class of securities and exercise price per share of each outstanding Option, (4)
the share - and per share provisions of each outstanding Restricted Stock
Unit,(5) the share- and per-share provisions of each outstanding Stock
Appreciation Right, (6) the repurchase price per share subject to each
outstanding Restricted Stock Award and (7) the share- and per-share-related
provisions of each outstanding Other Stock Unit Award, shall be appropriately
adjusted by the Company (or substituted Awards may be made, if applicable) to
the extent determined by the Board.
(b) Reorganization Events.
----------------------
(1) Definition. A "Reorganization Event" shall mean: (i) 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,
(ii) any exchange of all of the Common Stock of the Company for cash, securities
or other property pursuant to a share exchange transaction or (iii) any
liquidation or dissolution of the Company.
(2) Consequences of a Reorganization Event on Awards Other than
Restricted Stock Awards. In connection with a Reorganization Event, the Board
shall take any one or more of the following actions as to all or any outstanding
Awards on such terms as the Board determines: (i) provide that Awards shall be
assumed, or substantially equivalent Awards shall be substituted, by the
acquiring or succeeding corporation (or an affiliate thereof), (ii) upon written
notice to a Participant, provide that the Participant's unexercised Options or
other unexercised Awards shall become exercisable in full and will terminate
immediately prior to the consummation of such Reorganization Event unless
exercised by the Participant within a specified period following the date of
such notice, (iii) provide that outstanding Awards shall become realizable or
deliverable, or restrictions applicable to an Award shall lapse, in whole or in
part prior to or upon such Reorganization Event, (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 a Participant equal to (A) the Acquisition Price times the number of
shares of Common Stock subject to the Participant's Options or other Awards (to
the extent the exercise price does not exceed the Acquisition Price) minus (B)
the aggregate exercise price of all such outstanding Options or other Awards, in
exchange for the termination of such Options or other Awards, (v) provide that,
in connection with a liquidation or dissolution of the Company, Awards shall
convert into the right to receive liquidation proceeds (if applicable, net of
the exercise 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 fair market value to the per share consideration received
by holders of outstanding shares of Common Stock as a result of the
Reorganization Event.
7
To the extent all or any portion of an Option becomes exercisable
solely as a result of clause (ii) above, the Board may provide that upon
exercise of such Option the Participant shall receive shares subject to a right
of repurchase by the Company or its successor at the Option exercise price; such
repurchase right (A) shall lapse at the same rate as the Option would have
become exercisable under its terms and (B) shall not apply to any shares subject
to the Option that were exercisable under its terms without regard to clause
(ii) above.
(3) Consequences of a Reorganization Event on Restricted Stock
Awards. Upon the occurrence of a Reorganization Event other than a liquidation
or dissolution of the Company, the repurchase and other rights of the Company
under each outstanding Restricted Stock Award shall inure to the benefit of the
Company's successor and shall apply to the cash, securities or other property
which the Common Stock was converted into or exchanged for pursuant to such
Reorganization Event in the same manner and to the same extent as they applied
to the Common Stock subject to such Restricted Stock Award. Upon the occurrence
of a Reorganization Event involving the liquidation or dissolution of the
Company, except to the extent specifically provided to the contrary in the
instrument evidencing any Restricted Stock Award or any other agreement between
a Participant and the Company, all restrictions and conditions on all Restricted
Stock Awards then outstanding shall automatically be deemed terminated or
satisfied.
11. General Provisions Applicable to Awards
---------------------------------------
(a) Transferability of Awards. Except as the Board may otherwise
determine or provide in an Award, Awards shall not be sold, assigned,
transferred, pledged or otherwise encumbered by the person to whom they are
granted, either voluntarily or by operation of law, except by will or the laws
of descent and distribution or, other than in the case of an Incentive Stock
Option, pursuant to a qualified domestic relations order, and, during the life
of the Participant, shall be exercisable only by the Participant. References to
a Participant, to the extent relevant in the context, shall include references
to authorized transferees.
(b) Documentation. Each Award shall be evidenced in such form (written,
electronic or otherwise) as the Board shall determine. Each Award may contain
terms and conditions in addition to those set forth in the Plan.
(c) Board Discretion. Except as otherwise provided by the Plan, each
Award may be made alone or in addition or in relation to any other Award. The
terms of each Award need not be identical, and the Board need not treat
Participants uniformly.
(d) Termination of Status. The Board shall determine the effect on an
Award of the disability, death, retirement, authorized leave of absence or other
change in the employment or other status of a Participant and the extent to
which, and the period during which, the Participant, or the Participant's legal
representative, conservator, guardian or Designated Beneficiary, may exercise
rights under the Award.
(e) Withholding. Each Participant shall pay to the Company, or make
provision satisfactory to the Company for payment of, any taxes required by law
to be withheld in connection with an Award to such Participant. Except as the
Board may otherwise provide in an Award, for so long as the Common Stock is
registered under the Exchange Act, Participants may satisfy such tax obligations
in whole or in part by delivery of shares of Common Stock, including shares
retained from the Award creating the tax obligation, valued at their Fair Market
Value; provided, however, except as otherwise provided by the Board, that the
total tax withholding where stock is being used to satisfy such tax obligations
cannot exceed the Company's minimum statutory withholding obligations (based on
minimum statutory withholding rates for federal and state tax purposes,
including payroll taxes, that are applicable to such supplemental taxable
8
income). Shares surrendered to satisfy tax withholding requirements cannot be
subject to any repurchase, forfeiture, unfulfilled vesting or other similar
requirements. The Company may, to the extent permitted by law, deduct any such
tax obligations from any payment of any kind otherwise due to a Participant.
(f) Amendment of Award. Except as otherwise provided in Section 5(d),
the Board may amend, modify or terminate any outstanding Award, including but
not limited to, substituting therefor another Award of the same or a different
type, changing the date of exercise or realization, and converting an Incentive
Stock Option to a Nonstatutory Stock Option, provided that the Participant's
consent to such action shall be required unless the Board determines that the
action, taking into account any related action, would not materially and
adversely affect the Participant.
(g) Conditions on Delivery of Stock. The Company will not be obligated
to deliver any shares of Common Stock pursuant to the Plan or to remove
restrictions from shares previously delivered under the Plan until (1) all
conditions of the Award have been met or removed to the satisfaction of the
Company, (2) in the opinion of the Company's counsel, all other legal matters in
connection with the issuance and delivery of such shares have been satisfied,
including any applicable securities laws and any applicable stock exchange or
stock market rules and regulations, and (3) the Participant has executed and
delivered to the Company such representations or agreements as the Company may
consider appropriate to satisfy the requirements of any applicable laws, rules
or regulations.
(h) Acceleration. Except as otherwise provided in Section 8(b), the
Board may at any time provide that any Award shall become immediately
exercisable in full or in part, free of some or all restrictions or conditions,
or otherwise realizable in full or in part, as the case may be.
(i) Performance Conditions.
-----------------------
(1) This Section 11(i) shall be administered by the Compensation
Committee, all of the members of which will be "outside directors" as defined by
Section 162(m) (the "Compensation Committee").
(2) Notwithstanding any other provision of the Plan, if the
Compensation Committee determines, at the time a Restricted Stock Award or Other
Stock Unit Award is granted to a Participant who is then an officer, that such
Participant is, or is likely to be as of the end of the tax year in which the
Company would claim a tax deduction in connection with such Award, a Covered
Employee (as defined in Section 162(m)), then the Compensation Committee may
provide that this Section 11(i) is applicable to such Award.
(3) If a Restricted Stock Award or Other Stock Unit Award is
subject to this Section 11(i), then the lapsing of restrictions thereon and the
distribution of cash or Shares pursuant thereto, as applicable, shall be subject
to the achievement of one or more objective performance goals established by the
Compensation Committee, which shall be based on the relative or absolute
attainment of specified levels of one or any combination of the following: (i)
earnings per share, (ii) return on average equity or average assets with respect
to a pre-determined peer group, (iii) earnings, (iv) earnings growth, (v)
revenues, (vi) revenue growth, (vii) expenses, (viii) stock price, (ix) market
share, (x) return on sales, assets, equity or investment, (xi) regulatory
compliance, (xii) improvement of financial ratings, (xiii) achievement of
balance sheet or income statement objectives, (xiv) total shareholder return,
(xv) net operating profit after tax, (xvi) pre-tax or after-tax income, (xvii)
cash flow, (xviii) gross margin, (xix) gross margin growth, (xx) product
schedule, (xxi) product quality, (xxii) individual balance sheet categories or
(xxiii) such other objective goals established by the Board, and may be absolute
in their terms or measured against or in relationship to other companies
9
comparably, similarly or otherwise situated. Such performance goals may be
adjusted to exclude any one or more of (A) extraordinary items, (B) gains or
losses on the dispositions of discontinued operations, (C) the cumulative
effects of changes in accounting principles, (D) the writedown of any asset, (E)
charges for restructuring and rationalization programs or (F) foreign exchange
impact. Such performance goals may vary by Participant and may be different for
different Awards. Such performance goals shall be set by the Compensation
Committee within the time period prescribed by, and shall otherwise comply with
the requirements of, Section 162(m).
(4) Notwithstanding any provision of the Plan, with respect to
any Restricted Stock Award or Other Stock Unit Award that is subject to this
Section 11(i), the Compensation Committee may adjust downwards, but not upwards,
the cash or number of Shares payable pursuant to such Award, and the
Compensation Committee may not waive the achievement of the applicable
performance goals except in the case of the death or disability of the
Participant.
(5) The Compensation Committee shall have the power to impose
such other restrictions on Awards subject to this Section 11(i) as it may deem
necessary or appropriate to ensure that such Awards satisfy all requirements for
"performance-based compensation" within the meaning of Section 162(m)(4)(C) of
the Code, or any successor provision thereto.
12. Miscellaneous
-------------
(a) No Right To Employment or Other Status. No person shall have any
claim or right to be granted an Award, and the grant of an Award shall not be
construed as giving a Participant the right to continued employment or any other
relationship with the Company. The Company expressly reserves the right at any
time to dismiss or otherwise terminate its relationship with a Participant free
from any liability or claim under the Plan, except as expressly provided in the
applicable Award.
(b) No Rights As Stockholder. Subject to the provisions of the
applicable Award, no Participant or Designated Beneficiary shall have any rights
as a stockholder with respect to any shares of Common Stock to be distributed
with respect to an Award until becoming the record holder of such shares.
Notwithstanding the foregoing, in the event the Company effects a split of the
Common Stock by means of a stock dividend and the exercise price of and the
number of shares subject to such Option are adjusted as of the date of the
distribution of the dividend (rather than as of the record date for such
dividend), then an optionee who exercises an Option between the record date and
the distribution date for such stock dividend shall be entitled to receive, on
the distribution date, the stock dividend with respect to the shares of Common
Stock acquired upon such Option exercise, notwithstanding the fact that such
shares were not outstanding as of the close of business on the record date for
such stock dividend.
(c) Effective Date and Term of Plan. The Plan shall become effective on
the date on which it is adopted by the Board, but no Award may be granted unless
and until the Plan has been approved by the Company's stockholders. No Awards
shall be granted under the Plan after the completion of 10 years from the
earlier of (1) the date on which the Plan was adopted by the Board or (2) the
date the Plan was approved by the Company's stockholders, but Awards previously
granted may extend beyond that date.
(d) Amendment of Plan. The Board may amend, suspend or terminate the
Plan or any portion thereof at any time, provided that, to the extent required
by Section 162(m), no Award granted to a Participant that is intended to comply
with Section 162(m) after the date of such amendment shall become exercisable,
realizable or vested, as applicable to such Award, unless and until such
amendment shall have been approved by the Company's stockholders if required by
Section 162(m) (including the vote required under Section 162(m)); and provided
further that, without approval of the Company's stockholders, no amendment may
(1) increase the number of shares authorized under the Plan (other than pursuant
10
to Section 10), (2) materially increase the benefits provided under the Plan,
(3) materially expand the class of participants eligible to participate in the
Plan, (4) expand the types of Awards provided under the Plan or (5) make any
other changes that require stockholder approval under the rules of the Nasdaq
National Market, Inc. In addition, if at any time the approval of the Company's
stockholders is required as to any other modification or amendment under Section
422 of the Code or any successor provision with respect to Incentive Stock
Options, the Board may not effect such modification or amendment without such
approval. No Award shall be made that is conditioned upon stockholder approval
of any amendment to the Plan.
(e) Provisions for Foreign Participants. The Board may modify Awards or
Options granted to Participants who are foreign nationals or employed outside
the United States or establish subplans or procedures under the Plan to
recognize differences in laws, rules, regulations or customs of such foreign
jurisdictions with respect to tax, securities, currency, employee benefit or
other matters.
(f) Governing Law. The provisions of the Plan and all Awards made
hereunder shall be governed by and interpreted in accordance with the laws of
the State of Delaware, without regard to any applicable conflicts of law.
AVID TECHNOLOGY, INC.
---------------------
CONSULTING AGREEMENT - INDIVIDUAL
---------------------------------
This Agreement is made this 25th day of July, 2005 by and between Avid
Technology, Inc., a Delaware corporation with principal offices at Avid
Technology Park, One Park West, Tewksbury, Massachusetts 01876 ("AVID") and Jay
Anderson, an individual residing at the address set forth on the signature page
hereto ("CONSULTANT").
1. Position and Responsibilities:
------------------------------
1.1 Consultant agrees to serve as a consultant for Avid and perform the
services set forth in each Avid Consulting Work Order attached to this
Agreement ("Work Order"). Avid and Consultant may have multiple Work
Orders associated with this Agreement.
1.2 The parties agree that Avid shall have approval of the activities set
forth in each Work Order, including any acceptance criteria, final
approval, and deadlines. Consultant agrees to abide by the
specifications and schedule as set forth in each Work Order. Consultant
agrees to abide by Avid standard employee guidelines, including, but not
limited to, Avid's security policies.
2. Term and Termination:
---------------------
2.1 The initial term of this Agreement shall begin on the date of the
closing of the acquisition of Pinnacle Systems, Inc. by Avid and
continue through December 31, 2005.
2.2 Avid may terminate this Agreement at any time without cause upon
fourteen (14) calendar days prior written notice to Consultant,
provided, that if Avid terminates this Agreement prior to October 31,
2005, Consultant shall be entitled to be paid through October 31, 2005.
Such payment shall constitute full settlement of any and all claims of
the Consultant of every description against Avid. Notwithstanding the
foregoing, Avid may terminate this Agreement effective immediately for
"cause", which shall mean misconduct, including but not limited to (1)
participation in a fraud or act of dishonesty against Avid; (2) willful
breach of any Avid policy; (3) intentional damage to Avid's property;
(4) material breach of this Agreement or (5) failure by you to
substantially perform your duties for Avid (other than any such failure
resulting from your incapacity due to physical or mental illness).
3. Compensation:
-------------
3.1 As sole and complete consideration for the services provided under any
Work Order, Avid shall pay Consultant the amounts set forth in such Work
Order and all amounts shall be due and payable as provided in such Work
Order.
4. Confidential Information:
-------------------------
4.1 Consultant agrees to keep confidential and not disclose or make any use
of, either during or subsequent to this Agreement, any Inventions (as
defined in Section 5.1), trade secrets, confidential information,
knowledge, data or other information of Avid relating to products,
1
processes, know-how, designs, formulas, test data, customer lists,
business plans, marketing plans and strategies, or other subject matter
pertaining to any business of Avid or any of its affiliates, customers,
or suppliers, or of any other third parties who may have disclosed or
entrusted such information to Avid, which Consultant may learn, obtain,
produce, or otherwise acquire during the course of this consulting
relationship (collectively, "Confidential Information"), except as
herein provided. The parties agree that no information shall be subject
to the Confidential Information provisions of this Agreement if
Consultant can prove, using tangible evidence, that subsequent to the
receipt thereof (i) it has been published by Avid or disclosed by Avid
to others without restriction, (ii) it has been lawfully obtained by
Consultant from another source, provided such other source did not
receive it due to a breach of this Agreement or any other agreement,
(iii) it otherwise has come within the public knowledge or become
generally known to the public through no breach of any agreement; or
(iv) it has been independently developed by the Consultant without
reference to or use of the Confidential Information.
4.3 In the event this consulting arrangement with Avid terminates for any
reason whatsoever, or upon Avid's request, Consultant agrees to promptly
surrender and deliver to Avid all Confidential Information, which
Consultant may have obtained from Avid or produced for Avid during the
course of the consulting arrangement, and further Consultant agrees not
to take with him/her any description containing or pertaining to any
Confidential Information, which Consultant may obtain or produce during
the course of this consulting arrangement.
5. Inventions:
-----------
5.1 For the purposes of this Agreement, "Inventions" shall mean all
discoveries, processes, designs, technologies, devices, or improvements
in any of the foregoing or other ideas, whether or not patentable and
whether or not reduced to practice, made or conceived by Consultant
(whether solely or jointly with others) during the period of this
Agreement, which relate specifically to Avid's business, work, or
research and development, or to any work performed by Consultant for or
on behalf of Avid. Consultant agrees to keep and maintain adequate and
current written records of all Inventions made by Consultant (in the
form of notes, sketches, drawings and other records as may be specified
by Avid), which records shall be available to and remain the sole
property of Avid at all times.
5.2 Consultant hereby acknowledges and agrees that Avid is the exclusive
owner of all Inventions. In order to protect Avid's rights to such
Inventions, Consultant hereby irrevocably assigns and agrees to assign
all of his/her right, title and interest in and to all Inventions to
Avid. Consultant acknowledges and agrees that all copyrightable
Inventions shall be "works made for hire" as that term is defined in the
United States Copyright Act (17 U.S.C., Section 101), and shall be
exclusively owned by Avid. Consultant agrees to promptly disclose any
and all Inventions to Avid in order to permit Avid to enforce its
proprietary rights to any such Inventions in accordance with this
Agreement.
5.3 Any discovery, process, design, technology, device, or improvement in
any of the foregoing or other ideas, whether or not patentable and
whether or not reduced to practice, made or conceived by Consultant
(whether solely or jointly with others) which Consultant develops
entirely on his/her own time not using any of Avid's equipment,
2
supplies, facilities, or trade secret information ("Personal Invention")
is excluded from this Agreement provided such Personal Invention: (a)
does not relate to the actual or demonstrably anticipated business,
research and development of Avid, and (b) does not result, directly or
indirectly, from any work performed by Consultant for Avid.
5.4 Upon request, Consultant agrees to assist Avid or its nominee (at Avid's
expense) in every reasonable way, at any time, to obtain for Avid's
exclusive benefit, patents and copyrights for Inventions in any and all
countries. Such patents and copyrights shall be and remain the sole and
exclusive property of Avid or its nominee. Consultant agrees to perform
such lawful acts as Avid deems necessary to allow it to exercise all
right, title and interest in and to such patents and copyrights.
Further, Consultant agrees to execute, acknowledge and deliver to Avid
or its nominee upon request and at Avid's expense all documents,
including assignments of title, patent or copyright applications,
assignments of such applications, assignments of patents or copyrights
upon issuance, as Avid may determine necessary or desirable to protect
Avid's or its nominee's interest in Inventions, and/or to use in
obtaining patents or copyrights in any and all countries and to vest
title thereto in Avid or its nominee to any of the foregoing.
5.5 Consultant acknowledges that Avid from time to time may have agreements
with other persons or with the U.S. Government or agencies thereof,
which impose obligations or restrictions on Avid regarding Inventions
made during the course of work thereunder or regarding the confidential
nature of such work. Consultant agrees to be bound by all such
obligations and restrictions to the extent that they are disclosed to
Consultant and further to take all action necessary to discharge Avid's
obligations thereunder.
6. No Conflicting Agreements; Other Activities during Employment:
--------------------------------------------------------------
6.1 Consultant represents, warrants and covenants that his/her obligations
to Avid will not conflict with, be constrained by, or constitute a
breach of any prior, current or future consulting or other agreements,
whether written or oral. Consultant further represents, warrants and
covenants that he/she will neither disclose to Avid, nor induce Avid to
use, any confidential or proprietary information or material belonging
to any third party, in his/her performance of this Agreement.
6.2 Consultant agrees to devote his/her efforts to providing the services
specified in any Work Order. Consultant agrees not to take on outside
duties that would conflict with, or hinder, his/her ability to perform
under this Agreement. If Consultant currently has any outside employment
or directorships, Consultant shall list them in Exhibit A attached
hereto and keep such Exhibit up to date throughout the term of this
Agreement as necessary. If no Exhibit A is attached, then Consultant
represents that he/she has no such outside employment or directorships.
7. License to Consultant Materials: To the extent that Consultant
incorporates any pre-existing Consultant technology or intellectual
property into the work performed or products delivered by Consultant to
Avid, Consultant hereby grants Avid a worldwide, non-exclusive,
transferable, perpetual, fully paid-up and royalty free license to use
such Consultant technology or intellectual property as embodied in any
work performed or products delivered to the extent necessary for Avid to
3
license, market, distribute, sell, and otherwise make full use of the
work performed or products delivered alone or in combination with other
technology as part of Avid's business.
8. Post Consulting Activities: In consideration of Avid's agreement to make
the payments offered hereunder, Consultant agrees not to, at any time
during the one-year period following the earlier of (a) termination of
this Agreement or (b) December 31, 2005, either directly or indirectly,
solicit or recruit (a) any employee of Avid, including any Avid
subsidiary, to leave his or her employment with Avid or (b) any Avid
client to terminate or reduce their business relationship with Avid.
Consultant agrees to make the provisions of this Section 8 known to each
of employers, and to each organization to which Consultant deliver
services, through such one year period.
9. Exclusion Of Damages: IN NO EVENT SHALL AVID BE LIABLE TO CONSULTANT FOR
ANY SPECIAL, INDIRECT, CONSEQUENTIAL, PUNITIVE, OR INCIDENTAL DAMAGES,
INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA, LOSS OF USE, OR LOST PROFIT
DAMAGES, ARISING UNDER THIS AGREEMENT OR CONSULTANT'S WORK FOR AVID,
REGARDLESS OF WHETHER AVID HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH
DAMAGES.
10. General:
--------
10.1 Neither this Agreement nor any rights or benefits hereunder may be
assigned by Consultant and any attempt to do so shall be null and void.
10.2 Consultant and Avid agree that if any provision of this Agreement is
held to be invalid, illegal, or unenforceable, for any reason, such
provision will be revised to the extent necessary to make it enforceable
and this revision will not affect the other provisions of this
Agreement.
10.3 Sections 4, 5, 7, 8, 9 and 10 of this Agreement shall survive the
expiration or termination of this Agreement.
10.4 Notices under this Agreement shall be given by personal delivery,
courier service, or registered or certified mail, return receipt
requested. The date of personal delivery of such notice, or one (1)
business day after the date on which such notice is sent via courier
service, or three (3) business days after such notice is mailed, shall
be deemed to be the delivery date.
10.5 No waiver of any right under this Agreement shall be effective unless in
writing, signed by the party charged with such waiver, and no waiver of
any right arising from any breach or failure to perform shall be deemed
to be a waiver of any future such right or of any other right arising
under this Agreement.
10.6 This Agreement, including all Work Orders and exhibits, constitutes the
entire agreement of the parties with respect to the subject matter
hereof, and supersedes any previous oral or written communications,
representations, understandings, discussions, or agreements with Avid.
Any amendments or modification to this Agreement or waiver by Avid of
any right hereunder shall be effective only if evidenced by a written
instrument executed by the parties hereto.
4
10.7 This Agreement shall be governed by and construed under the laws of the
Commonwealth of Massachusetts without regard to its rules governing the
conflict of laws that would cause the laws of any other jurisdiction to
apply.
10.8 Consultant is an independent contractor, not an employee or agent of
Avid. Consultant has no authority to represent or bind Avid in any way.
IN WITNESS WHEREOF, duly authorized representatives of the parties have executed
this Agreement as of the day and year first above written.
AVID TECHNOLOGY, INC. CONSULTANT
By: /s/ Jeffrey Hastings /s/ Jay Anderson
-------------------- ----------------
Name: Jeffrey Hastings Name: Jay Anderson
Title: COO, M-Audio Date: July 25, 2005
Date: July 21, 2005
5
Exhibit A
---------
Employment and Directorships
----------------------------
6
Consulting Work Order
Consultant: Jay Anderson
Scope of Work:
- --------------
Mr. Anderson will perform services for Avid in the role of Integration Leader
from the date of the closing of the Pinnacle acquisition through December 31,
2005. Mr. Anderson's responsibilities will include:
o explaining historical policies and practices at Pinnacle and assisting
Avid with the integration of such policies and practices;
o assisting with employee retention and morale issues;
o serving as a communication channel and focal point for the Avid integration
team; and
o monitoring implementation of integration plans.
Specific Working Conditions
- ---------------------------
Standard Working Hours: 8:30a.m. to 5:00p.m., Monday through Friday, except for
Avid recognized holidays.
Work Site Location:
- -------------------
Avid Technology, Inc.
Avid Technology Park
One Park West
Tewksbury, MA 01876
Compensation:
- -------------
While performing these Consultant services, Consultant will earn compensation on
a monthly bases based on an annual rate of three hundred and thirty-six thousand
dollars ($336,000.00). Consultant shall have the option to have such
compensation (a) paid in monthly increments or (b) paid in a single lump-sum
payment following termination of this Agreement.
Loaned Equipment:
- -----------------
Mountain View, CA and San Francisco Bay Area
AVID TECHNOLOGY, INC. JAY ANDERSON
By: /s/ Jeffrey Hastings /s/ Jay Anderson
-------------------- ----------------
Name: Jeffery Hastings Date: July 25, 2005
Title: COO M-Audio
Date: July 21, 2005
1
CERTIFICATION
-------------
I, David A. Krall, certify that:
1. I have reviewed this Quarterly Report on Form 10-Q 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: August 8, 2005 /s/ David A. Krall
------------------------------------
David A. Krall
President and Chief Executive Officer
(principal executive officer)
CERTIFICATION
-------------
I, Paul J. Milbury, certify that:
1. I have reviewed this Quarterly Report on Form 10-Q 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: August 8, 2005 /s/ Paul J. Milbury
-----------------------------
Paul J. Milbury
Chief Financial Officer
(principal financial officer)
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 Quarterly Report on Form 10-Q of Avid Technologies, Inc.
(the "Company") for the period ended June 30, 2005 as filed with the Securities
and Exchange Commission on the date hereof (the "Report"), the undersigned,
David A. Krall, President and Chief Executive Officer of the Company, and Paul
J. Milbury, Chief Financial 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.
Dated: August 8, 2005 /s/ David A. Krall
-----------------------------
David A. Krall
President and Chief Executive Officer
Dated: August 8, 2005 /s/ Paul J. Milbury
----------------------
Paul J. Milbury
Chief Financial Officer