As filed with the Securities and Exchange Commission on July 25, 1996
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
AVID TECHNOLOGY, INC.
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(Exact name of registrant as specified in its charter)
Delaware 04-2977748
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(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
Metropolitan Technology Park, One Park West, Tewksbury, MA 01876
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(Address of Principal Executive Offices) (Zip Code)
1996 EMPLOYEE STOCK PURCHASE PLAN
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(Full Title of the Plan)
William J. Miller
Chief Executive Officer and Chairman of the Board
Avid Technology, Inc.
Metropolitan Technology Park
One Park West
Tewksbury, MA 01876
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(Name and Address of Agent for Service)
(508) 640-6789
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(Telephone number, including Area Code, of Agent For Service)
CALCULATION OF REGISTRATION FEE
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Title of
Securities Proposed Maximum Proposed Maximum Amount of
to be Amount to be Offering Aggregate Registration
Registered Registered Price Per Share (1) Offering Price (1) Fee (1)
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Common Stock,
$.01 par value 200,000 shares $ 16.6875 $ 3,337,500 $ 1,150.87
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(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and (h) and based on the average of the high and
low prices of the Registrant's Common Stock on the Nasdaq National Market
Systems' quotation system on July 22, 1996
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information
The information required by Part I is included in documents sent or given
to participants in the 1996 Employee Stock Purchase Plan of Avid Technology,
Inc., a Delaware corporation (the "Registrant") pursuant to Rule 428(b)(1).
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The Registrant is subject to the informational and reporting requirements
of Sections 13(a), 14 and 15(d) of the Exchange Act of 1934, as amended (the
"Exchange Act"), and in accordance therewith files reports, proxy statements and
other information with the Securities and Exchange Commission. The following
documents, which are on file with the Securities and Exchange Commission, are
incorporated in this Registration Statement by reference:
(a) The Registrant's latest annual report filed pursuant to
Section 13(a) or 15(d) of the Exchange Act or either (1) the latest prospectus
filed pursuant to Rule 424(b) under the Securities Act of 1933, as amended (the
"Securities Act"), that contains audited financial statements for the
Registrant's latest fiscal year for which such statements have been filed or (2)
the Registrant's effective registration statement on Form 10 or 20-F filed under
the Exchange Act containing audited financial statements for the Registrant's
latest fiscal year.
(b) All other reports filed pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the fiscal year covered by the
Registrant document referred to in (a) above.
(c) The description of the Common Stock which is contained in
a registration statement filed under the Exchange Act, including any amendment
or report filed for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-
effective amendment which indicates that all shares offered hereby have been
sold or which deregisters all shares then remaining unsold, shall be deemed to
be incorporated in this Registration Statement by reference and to be a part
hereof from the date of filing of such documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not Applicable.
Item 6. Indemnification of Directors and Officers
Section 145 of the General Corporation Law of the State of Delaware
provides that a corporation has the power to indemnify a director, officer,
employee or agent of the corporation and certain other persons serving at the
request of the corporation in related capacities against amounts paid and
expenses incurred in connection with an action or proceeding to which he is or
is threatened to be made a party by reason of such position, if such person
shall have acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the corporation, and, in any criminal
proceeding, if such person had no reasonable cause to believe his conduct was
unlawful, provided that, in the case of actions brought by or in the right of
the corporation, no indemnification shall be made with respect to any matter as
to which such person shall have been adjudged to be
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liable to the corporation unless and only to the extent that the adjudicating
court determines that such indemnification is proper under the circumstances.
Article SIXTH of the Registrant's Third Amended and Restated Certificate of
Incorporation (the "Certificate of Incorporation") provides that no director
shall be liable to the Registrant or its stockholders for monetary damages for
breach of his fiduciary duty as a director, except for liability (i) for any
breach of the director's duty of loyalty to the Company or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the
Delaware General Corporation Law or (iv) for any transaction in which the
director derived an improper personal benefit.
Article ELEVENTH of the Certificate of Incorporation provides that a
director or officer of the Registrant (a) shall be indemnified by the Registrant
against all expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement incurred in connection with any litigation or other legal
proceeding (other than an action by or in the right of the Registrant) brought,
or threatened to be brought, against him by virtue of his position as, or his
agreement to become, a director or officer of the Registrant or by virtue of his
serving, or agreeing to serve, at the request of the Registrant, as a director,
officer, or trustee of, or in a similar capacity with a corporation, trust or
other enterprise, if he acted in good faith and in a manner he reasonably
believed to be in, or not opposed to, the best interests of the Registrant, and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful and (b) shall be indemnified by the Registrant
against all expenses (including attorneys' fees) incurred in connection with any
action by or in the right of the Registrant brought, or threatened to be
brought, against him by virtue of his position as, or his agreement to become, a
director or officer of the Registrant or by virtue of his serving, or agreeing
to serve, at the request of the Registrant, as a director, officer, or trustee
of, or in a similar capacity with a corporation, trust or other enterprise, if
he acted in good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the Registrant, except that no indemnification
shall be made with respect to any such matter as to which such person shall have
been adjudged to be liable to the Registrant, unless a court determines that,
despite such adjudication but in view of all of the circumstances, he is
entitled to indemnification of such expenses. Notwithstanding the foregoing, to
the extent that a director or officer has been successful, on the merits or
otherwise, including, without limitation, the dismissal of an action without
prejudice or the settlement of an action without admission of liability, he is
required to be indemnified by the Registrant against all expenses (including
attorneys' fees) incurred in connection therewith. Expenses shall be advanced to
a director or officer at his request, provided that he undertakes to repay the
amount advanced if it is ultimately determined that he is not entitled to
indemnification for such expenses.
Indemnification is required to be made unless the Board of Directors of the
Registrant or independent legal counsel determines that the applicable standard
of conduct required for indemnification has not been met. In the event of a
determination by the Board of Directors or independent legal counsel (who may be
regular legal counsel to the Registrant) that the director or officer did not
meet the applicable standard of conduct required for indemnification, or if the
Registrant fails to make an indemnification payment within 60 days after such
payment is claimed by such person, such person is permitted to petition the
court to make an independent determination as to whether such person is entitled
to indemnification. As a condition precedent to the right of indemnification,
the director or officer must give the Registrant notice of the action for which
indemnity is sought and the Registrant has the right to participate in such
action or assume the defense thereof.
Article ELEVENTH of the Certificate of Incorporation further provides that
the indemnification provided therein is not exclusive, and provides that in the
event that the Delaware General Corporation Law is amended to expand the
indemnification permitted to directors or officers, the Registrant must
indemnify those persons to the fullest extent permitted by such law as so
amended.
The Company has a Directors and Officers liability policy that insures the
Company's officers and directors against certain liabilities.
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Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
The Exhibit Index immediately preceding the exhibits is attached
hereto and incorporated herein by reference.
Item 9. Undertakings
1. The Registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement to include any
material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement.
(b) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
2. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Tewksbury, Commonwealth of Massachusetts, on the day
of July 25, 1996.
AVID TECHNOLOGY, INC.
By: /s/ William J. Miller
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William J. Miller
Chief Executive Officer and
Chairman of the Board
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POWER OF ATTORNEY
We, the undersigned officers and directors of Avid Technology, Inc., hereby
severally constitute and appoint William J. Miller, C. Edward Hazen, Frederic G.
Hammond and Mark G. Borden, and each of them singly, our true and lawful
attorneys with full power to them, to sign for us and in our names, in the
capacities indicated below, the Registration Statement filed herewith, and any
and all amendments (including post-effective amendments) to said registration
statement (or any other registration statement for the same offering that is to
be effective upon filing pursuant to Rule 462(b) under the Securities Act of
1933) and generally to do all such things in our names and behalf in our
capacities as officers and directors to enable Avid Technology, Inc. to comply
with the Securities Act of 1933, and all requirements of the Securities and
Exchange Commission, hereby ratifying and confirming our signatures as they may
be signed by our said attorneys, or any of them, to said registration statement
and any and all amendments thereto.
Witness our hands and common seal on the date set forth below.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated.
Signature Title Date
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/s/ William J. Miller
- ----------------------------- Chief Executive Officer and ) July 25, 1996
William J. Miller Chairman of the Board )
(Principal Executive Officer )
/s/ Jonathan H. Cook )
- ----------------------------- Vice President, Finance, ) July 25, 1996
Jonathan H. Cook Administration and )
Chief Financial Officer )
(Principal Financial Officer and )
and Principal Accounting Officer )
/s/ Charles T. Brumback )
- ----------------------------- Director ) July 22, 1996
Charles T. Brumback )
)
/s/ Wiliam E. Foster )
- ----------------------------- Director ) July 25, 1996
Wiliam E. Foster )
)
/s/ Peter C. Gotcher )
- ----------------------------- Director ) July 25, 1996
Peter C. Gotcher )
)
/s/ Robert M. Halperin )
- ----------------------------- Director ) July 25, 1996
Robert M. Halperin )
)
/s/ William S. Kaiser )
- ----------------------------- Director ) July 25, 1996
William S. Kaiser )
)
/s/ Paul A. Maeder )
- ----------------------------- Director ) July 25, 1996
Paul A. Maeder )
)
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/s/ Curt A. Rawley
- ---------------------------- Director ) July 25, 1996
Curt A. Rawley )
)
/s/ William J. Warner )
- ---------------------------- Director ) July 25, 1996
William J. Warner )
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INDEX TO EXHIBITS
Exhibit
Number Exhibit Page
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4.1 Third Amended and Restated Certificate of Incorporation
of the Registrant, as amended *
4.2 Amendended and Restated By-Laws of the Registrant **
4.3 Certificate of Designation establishing Series A Junior
Participating Preferred Stock and Certificate of Correction thereto ***
4.4 Specimen Certificate representing the Registrant's Common Stock **
4.5 Rights Agreement, dated as of February 29, 1996, between the
Registrant and The First National Bank of Boston, as Rights Agent ****
5.1 Opinion of Hale and Dorr
23.1 Consent of Hale and Dorr (included in
Exhibit 5.1)
23.2 Consent of Coopers & Lybrand L.L.P.
23.3 Consent of Ernst & Young LLP
24.1 Power of Attorney (included on the signature page of
this registration statement)
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* Incorporated by reference from Exhibits 3.1 and 3.2 to the Registrant's
Quarterly Report on Form 10-Q for the quarter ended March 31, 1995 (as
filed with the Commission on May 15, 1995).
** Incorporated by reference from Registrant's Registration Statement on
Form S-1 (File No. 33-57796) as declared effective by the Commission on
March 11, 1993.
*** Incorporated by reference from Exhibits 3.4 and 3.5 to the Registrant's
Annual Report on Form 10-K (File No. 0-21174) for the year ended December
31, 1995, as filed with the Commission on April 1, 1996.
**** Incorporated by reference from the Registrant's Current Report on Form
8-K (File No. 0-21174), as filed with the Commission on March 8, 1996.
Exhibit 5.1
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July 25, 1996
Avid Technology, Inc.
Metropolitan Technology Park
One Park West
Tewksbury, MA 01876
Ladies and Gentlemen:
We have assisted in the preparation of a Registration Statement on Form S-8
(the "Registration Statement"), to be filed with the Securities and Exchange
Commission, relating to 200,000 shares of common stock, $.01 par value per share
(the "Shares") of Avid Technology, Inc. (the "Company"), issuable under the
Company's 1996 Employee Stock Purchase Plan, as amended (the "Plan").
We have examined the Third Amended and Restated Certificate of
Incorporation and the By-Laws of the Company and all amendments thereto, the
Registration Statement and originals, or copies certified to our satisfaction,
of such records of meetings, written actions in lieu of meetings, or resolutions
adopted at meetings, of the directors of the Company, documents and such other
documents and instruments as in our judgment are necessary or appropriate to
enable us to render the opinions expressed below.
In examination of the foregoing documents, we have assumed the genuineness
of all signatures and the authenticity of all documents submitted to us as
originals, the conformity to original documents of all documents submitted to us
as certified or photostatic copies, and the authenticity of the originals of
such latter documents.
Based upon and subject to the foregoing, we are of the opinion that the
Shares have been duly and validly authorized for issuance under the Plan and the
Shares, when issued against payment therefor in accordance with the terms of the
Plan, will be legally issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement.
Very truly yours,
/s/ HALE AND DORR
HALE AND DORR
Exhibit 23.2
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CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement
of Avid Technology, Inc. on Form S-8 of our report dated February 12, 1996, on
our audits of the consolidated financial statements and financial statement
schedules of Avid Technology, Inc., as of December 31, 1995 and 1994, and for
each of the three years in the period ended December 31, 1995, which report is
included in the Company's Annual Report in Form 10-K for the year ended December
31, 1995.
/s/ COOPERS & LYBRAND L.L.P.
COOPERS & LYBRAND L.L.P.
Boston, Massachusetts
July 25, 1996
Exhibit 23.3
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CONSENT OF ERNST & YOUNG LLP INDEPENDENT AUDITORS
We consent to the incorporation by reference in the registration statement
of Avid Technology, Inc. on Form S-8 to register 200,000 shares of Common Stock
to be issued by Avid Technology, Inc. of our report dated April 21, 1994, with
respect to the consolidated financial statements and schedules of Digidesign,
Inc. referred to in both of the Avid Technology, Inc.'s Current Reports on Form
8-K dated January 6, 1995 and June 13, 1995, filed with the Securities and
Exchange Commission.
/s/ ERNST & YOUNG LLP
ERNST & YOUNG LLP
San Jose, California
July 25, 1996
