UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO § 240.13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
§ 240.13d-2(a)
(Amendment No. )1
Avid Technology, Inc.
(Name of Issuer)
Common Stock, par value $0.01 per share
(Title of Class of Securities)
05367P100
(CUSIP Number)
JEFFREY C. SMITH
STARBOARD VALUE LP
830 Third Avenue, 3rd Floor
New York, New York 10022
(212) 845-7977
STEVEN WOLOSKY, ESQ.
OLSHAN GRUNDMAN FROME ROSENZWEIG & WOLOSKY LLP
Park Avenue Tower
65 East 55th Street
New York, New York 10022
(212) 451-2300
(Name, Address and Telephone Number of PersonAuthorized to Receive Notices and Communications)
December 19, 2011
(Date of Event Which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box ¨.
Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See § 240.13d-7 for other parties to whom copies are to be sent.
_______________
1 The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
CUSIP NO. 05367P100
| 1 | NAME OF REPORTING PERSON STARBOARD VALUE AND OPPORTUNITY MASTER FUND LTD | ||
| 2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP | (a) o (b) o | |
| 3 | SEC USE ONLY | ||
| 4 | SOURCE OF FUNDS WC | ||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) | ¨ | |
| 6 | CITIZENSHIP OR PLACE OF ORGANIZATION CAYMAN ISLANDS | ||
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH | 7 | SOLE VOTING POWER 1,566,640 | |
| 8 | SHARED VOTING POWER - 0 - | ||
| 9 | SOLE DISPOSITIVE POWER 1,566,640 | ||
| 10 | SHARED DISPOSITIVE POWER - 0 - | ||
| 11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,566,640 | ||
| 12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES | o | |
| 13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 4.1% | ||
| 14 | TYPE OF REPORTING PERSON CO | ||
2
CUSIP NO. 05367P100
| 1 | NAME OF REPORTING PERSON STARBOARD VALUE AND OPPORTUNITY S LLC | ||
| 2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP | (a) o (b) o | |
| 3 | SEC USE ONLY | ||
| 4 | SOURCE OF FUNDS WC | ||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) | ¨ | |
| 6 | CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE | ||
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH | 7 | SOLE VOTING POWER 651,360 | |
| 8 | SHARED VOTING POWER - 0 - | ||
| 9 | SOLE DISPOSITIVE POWER 651,360 | ||
| 10 | SHARED DISPOSITIVE POWER - 0 - | ||
| 11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 651,360 | ||
| 12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES | o | |
| 13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 1.7% | ||
| 14 | TYPE OF REPORTING PERSON OO | ||
3
CUSIP NO. 05367P100
| 1 | NAME OF REPORTING PERSON STARBOARD VALUE LP | ||
| 2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP | (a) o (b) o | |
| 3 | SEC USE ONLY | ||
| 4 | SOURCE OF FUNDS OO | ||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) | ¨ | |
| 6 | CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE | ||
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH | 7 | SOLE VOTING POWER 2,365,000 | |
| 8 | SHARED VOTING POWER - 0 - | ||
| 9 | SOLE DISPOSITIVE POWER 2,365,000 | ||
| 10 | SHARED DISPOSITIVE POWER - 0 - | ||
| 11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,365,000 | ||
| 12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES | o | |
| 13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 6.1% | ||
| 14 | TYPE OF REPORTING PERSON PN | ||
4
CUSIP NO. 05367P100
| 1 | NAME OF REPORTING PERSON STARBOARD VALUE GP LLC | ||
| 2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP | (a) o (b) o | |
| 3 | SEC USE ONLY | ||
| 4 | SOURCE OF FUNDS OO | ||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) | ¨ | |
| 6 | CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE | ||
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH | 7 | SOLE VOTING POWER 2,365,000 | |
| 8 | SHARED VOTING POWER - 0 - | ||
| 9 | SOLE DISPOSITIVE POWER 2,365,000 | ||
| 10 | SHARED DISPOSITIVE POWER - 0 - | ||
| 11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,365,000 | ||
| 12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES | o | |
| 13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 6.1% | ||
| 14 | TYPE OF REPORTING PERSON OO | ||
5
CUSIP NO. 05367P100
| 1 | NAME OF REPORTING PERSON STARBOARD PRINCIPAL CO LP | ||
| 2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP | (a) o (b) o | |
| 3 | SEC USE ONLY | ||
| 4 | SOURCE OF FUNDS OO | ||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) | ¨ | |
| 6 | CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE | ||
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH | 7 | SOLE VOTING POWER 2,365,000 | |
| 8 | SHARED VOTING POWER - 0 - | ||
| 9 | SOLE DISPOSITIVE POWER 2,365,000 | ||
| 10 | SHARED DISPOSITIVE POWER - 0 - | ||
| 11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,365,000 | ||
| 12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES | o | |
| 13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 6.1% | ||
| 14 | TYPE OF REPORTING PERSON PN | ||
6
CUSIP NO. 05367P100
| 1 | NAME OF REPORTING PERSON STARBOARD PRINCIPAL CO GP LLC | ||
| 2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP | (a) o (b) o | |
| 3 | SEC USE ONLY | ||
| 4 | SOURCE OF FUNDS OO | ||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) | ¨ | |
| 6 | CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE | ||
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH | 7 | SOLE VOTING POWER 2,365,000 | |
| 8 | SHARED VOTING POWER - 0 - | ||
| 9 | SOLE DISPOSITIVE POWER 2,365,000 | ||
| 10 | SHARED DISPOSITIVE POWER - 0 - | ||
| 11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,365,000 | ||
| 12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES | o | |
| 13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 6.1% | ||
| 14 | TYPE OF REPORTING PERSON OO | ||
7
CUSIP NO. 05367P100
| 1 | NAME OF REPORTING PERSON JEFFREY C. SMITH | ||
| 2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP | (a) o (b) o | |
| 3 | SEC USE ONLY | ||
| 4 | SOURCE OF FUNDS OO | ||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) | ¨ | |
| 6 | CITIZENSHIP OR PLACE OF ORGANIZATION USA | ||
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH | 7 | SOLE VOTING POWER - 0 - | |
| 8 | SHARED VOTING POWER 2,365,000 | ||
| 9 | SOLE DISPOSITIVE POWER - 0 - | ||
| 10 | SHARED DISPOSITIVE POWER 2,365,000 | ||
| 11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,365,000 | ||
| 12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES | o | |
| 13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 6.1% | ||
| 14 | TYPE OF REPORTING PERSON IN | ||
8
CUSIP NO. 05367P100
| 1 | NAME OF REPORTING PERSON MARK MITCHELL | ||
| 2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP | (a) o (b) o | |
| 3 | SEC USE ONLY | ||
| 4 | SOURCE OF FUNDS OO | ||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) | ¨ | |
| 6 | CITIZENSHIP OR PLACE OF ORGANIZATION USA | ||
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH | 7 | SOLE VOTING POWER - 0 - | |
| 8 | SHARED VOTING POWER 2,365,000 | ||
| 9 | SOLE DISPOSITIVE POWER - 0 - | ||
| 10 | SHARED DISPOSITIVE POWER 2,365,000 | ||
| 11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,365,000 | ||
| 12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES | o | |
| 13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 6.1% | ||
| 14 | TYPE OF REPORTING PERSON IN | ||
9
CUSIP NO. 05367P100
| 1 | NAME OF REPORTING PERSON PETER A. FELD | ||
| 2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP | (a) o (b) o | |
| 3 | SEC USE ONLY | ||
| 4 | SOURCE OF FUNDS OO | ||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) | ¨ | |
| 6 | CITIZENSHIP OR PLACE OF ORGANIZATION USA | ||
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH | 7 | SOLE VOTING POWER - 0 - | |
| 8 | SHARED VOTING POWER 2,365,000 | ||
| 9 | SOLE DISPOSITIVE POWER - 0 - | ||
| 10 | SHARED DISPOSITIVE POWER 2,365,000 | ||
| 11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,365,000 | ||
| 12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES | o | |
| 13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 6.1% | ||
| 14 | TYPE OF REPORTING PERSON IN | ||
10
CUSIP NO. 05367P100
| 1 | NAME OF REPORTING PERSON JEFFREY T. BINDER | ||
| 2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP | (a) o (b) o | |
| 3 | SEC USE ONLY | ||
| 4 | SOURCE OF FUNDS PF | ||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) | ¨ | |
| 6 | CITIZENSHIP OR PLACE OF ORGANIZATION USA | ||
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH | 7 | SOLE VOTING POWER 6,000 | |
| 8 | SHARED VOTING POWER - 0 - | ||
| 9 | SOLE DISPOSITIVE POWER 6,000 | ||
| 10 | SHARED DISPOSITIVE POWER - 0 - | ||
| 11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 6,000 | ||
| 12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES | o | |
| 13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) Less than 1% | ||
| 14 | TYPE OF REPORTING PERSON IN | ||
11
CUSIP NO. 05367P100
| 1 | NAME OF REPORTING PERSON EDWARD TERINO | ||
| 2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP | (a) o (b) o | |
| 3 | SEC USE ONLY | ||
| 4 | SOURCE OF FUNDS PF | ||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) | ¨ | |
| 6 | CITIZENSHIP OR PLACE OF ORGANIZATION USA | ||
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH | 7 | SOLE VOTING POWER 25,000 | |
| 8 | SHARED VOTING POWER - 0 - | ||
| 9 | SOLE DISPOSITIVE POWER 25,000 | ||
| 10 | SHARED DISPOSITIVE POWER - 0 - | ||
| 11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 25,000 | ||
| 12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES | o | |
| 13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) Less than 1% | ||
| 14 | TYPE OF REPORTING PERSON IN | ||
12
CUSIP NO. 05367P100
The following constitutes the Schedule 13D filed by the undersigned (the “Schedule 13D”).
| Item 1. | Security and Issuer. |
This statement relates to the common stock, par value $0.01 per share (the “Shares”), of Avid Technology, Inc. (the “Issuer”). The address of the principal executive offices of the Issuer is 75 Network Drive, Burlington, Massachusetts 01803.
| Item 2. | Identity and Background. |
(a) This statement is filed by:
| (i) | Starboard Value and Opportunity Master Fund Ltd, a Cayman Islands exempted company (“Starboard V&O Fund”), with respect to the Shares directly and beneficially owned by it; |
| (ii) | Starboard Value and Opportunity S LLC, a Delaware limited liability company (“Starboard LLC”), with respect to the Shares directly and beneficially owned by it; |
| (iii) | Starboard Value LP (“Starboard Value LP”), as the investment manager of Starboard V&O Fund and of a certain managed account (the “Starboard Value LP Account”) and the manager of Starboard LLC; |
| (iv) | Starboard Value GP LLC (“Starboard Value GP”), as the general partner of Starboard Value LP; |
| (v) | Starboard Principal Co LP (“Principal Co”), as a member of Starboard Value GP; |
| (vi) | Starboard Principal Co GP LLC (“Principal GP”), as the general partner of Principal Co; |
| (vii) | Jeffrey C. Smith, as a member of Principal GP and as a member of each of the Management Committee of Starboard Value GP and the Management Committee of Principal GP; |
| (viii) | Mark Mitchell, as a member of Principal GP and as a member of each of the Management Committee of Starboard Value GP and the Management Committee of Principal GP; |
| (ix) | Peter A. Feld, as a member of Principal GP and as a member of each of the Management Committee of Starboard Value GP and the Management Committee of Principal GP; |
| (x) | Jeffrey T. Binder; and |
| (xi) | Edward Terino. |
13
CUSIP NO. 05367P100
Each of the foregoing is referred to as a “Reporting Person” and collectively as the “Reporting Persons.” Each of the Reporting Persons is party to that certain Joint Filing and Solicitation Agreement, as further described in Item 6. Accordingly, the Reporting Persons are hereby filing a joint Schedule 13D.
(b) The address of the principal office of each of Starboard LLC, Starboard Value LP, Starboard Value GP, Principal Co, Principal GP, and Messrs. Smith, Mitchell and Feld is 830 Third Avenue, 3rd Floor, New York, New York 10022. The address of the principal office of Starboard V&O Fund is c/o Citco Fund Services (Cayman Islands) Limited, Regatta Office Park, Windward 1, 2nd Floor, PO Box 31106, Grand Cayman KY1-1205, Cayman Islands. The officers and directors of Starboard V&O Fund and their principal occupations and business addresses are set forth on Schedule A and are incorporated by reference in this Item 2.
The principal business address of Mr. Binder is 138 Wharton Row, Groton, Massachusetts 01450. The principal business address of Mr. Terino is 25 Indian Rock Road, Suite 23, Windham, New Hampshire 03087.
(c) The principal business of Starboard V&O Fund is serving as a private investment fund. Starboard V&O Fund has been formed for the purpose of making equity investments and, on occasion, taking an active role in the management of portfolio companies in order to enhance shareholder value. Starboard LLC has been formed for the purpose of investing in securities and engaging in all related activities and transactions. Starboard Value LP provides investment advisory and management services and acts as the investment manager of Starboard V&O Fund and the Starboard Value LP Account and the manager of Starboard LLC. The principal business of Starboard Value GP is providing a full range of investment advisory, pension advisory and management services and serving as the general partner of Starboard Value LP. The principal business of Principal Co is providing investment advisory and management services. Principal Co is a member of Starboard Value GP. Principal GP serves as the general partner of Principal Co. Messrs. Smith, Mitchell and Feld serve as members of Principal GP and the members of each of the Management Committee of Starboard Value GP and the Management Committee of Principal GP.
The principal occupation of Mr. Binder is serving as co-founder and General Partner of Genovation Capital, LLC, a private equity fund focused on technology, media and telecom, since July 2008. The principal occupation of Mr. Terino is serving as President of GET Advisory Service LLC, a strategic and financial management consulting firm focused on the technology and maritime industries, since March 2009.
(d) No Reporting Person, nor any person listed on Schedule A, annexed hereto, has, during the last five years, been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).
(e) No Reporting Person, nor any person listed on Schedule A, annexed hereto, has, during the last five years, been party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.
(f) Messrs. Smith, Mitchell, Feld, Binder and Terino are citizens of the United States of America. The citizenship of the persons listed on Schedule A is set forth therein.
14
CUSIP NO. 05367P100
| Item 3. | Source and Amount of Funds or Other Consideration. |
The Shares purchased by each of Starboard V&O Fund and Starboard LLC and held in the Starboard Value LP Account were purchased with working capital (which may, at any given time, include margin loans made by brokerage firms in the ordinary course of business) in open market purchases, except as otherwise noted, as set forth in Schedule B, which is incorporated by reference herein. The aggregate purchase price of the 1,566,640 Shares beneficially owned by Starboard V&O Fund is approximately $11,168,473, excluding brokerage commissions. The aggregate purchase price of the 651,360 Shares beneficially owned by Starboard LLC is approximately $4,626,801, excluding brokerage commissions. The aggregate purchase price of the 147,000 Shares held in the Starboard Value LP Account is approximately $1,227,429, excluding brokerage commissions.
The Shares purchased by each of Messrs. Binder and Terino were purchased with personal funds in open market purchases. The aggregate purchase price of the 6,000 Shares directly owned by Mr. Binder is approximately $52,595, excluding brokerage commissions. The aggregate purchase price of the 25,000 Shares directly owned by Mr. Terino is approximately $221,914, excluding brokerage commissions.
| Item 4. | Purpose of Transaction. |
The Reporting Persons purchased the Shares based on the Reporting Persons’ belief that the Shares, when purchased, were undervalued and represented an attractive investment opportunity. Depending upon overall market conditions, other investment opportunities available to the Reporting Persons, and the availability of Shares at prices that would make the purchase or sale of Shares desirable, the Reporting Persons may endeavor to increase or decrease their position in the Issuer through, among other things, the purchase or sale of Shares on the open market or in private transactions or otherwise, on such terms and at such times as the Reporting Persons may deem advisable.
The Reporting Persons have engaged in discussions with management and the Board of the Issuer concerning certain matters, including the unusual timing of the deadline for providing notice of the nomination of directors at the Issuer’s 2012 annual meeting of shareholders (the “2012 Annual Meeting”). On December 16, 2011, the Issuer announced in a Form 8-K that the Issuer’s Board of Directors (the “Board”) has scheduled the 2012 Annual Meeting to be held on May 15, 2012. On October 19, 2011, the Board adopted amended and restated bylaws (the “New Bylaws”) that contained a set of shareholder-unfriendly provisions, including new advance notice provisions for shareholder nominations. Based upon the amended advance notice provisions in the New Bylaws, if an annual meeting is called for a date that is not within twenty-five (25) days before or after the anniversary date of the prior year's annual meeting, the nomination deadline is the close of business on the tenth (10th) day following the earlier of either the day on which the notice of the date of the annual meeting was mailed or public disclosure of the date of the annual meeting was made. The 2011 annual meeting of shareholders was held on June 10, 2011. The Reporting Persons note that the duration between the one-year anniversary of the 2011 Annual Meeting and the date scheduled by the Board for the 2012 Annual Meeting is exactly twenty-six (26) days. As such, nominations were due to be delivered to the Issuer on December 26, 2011, a national holiday for the observation of Christmas. If the Board had set the 2012 Annual Meeting for just one day later, or May 16, 2012, the Reporting Persons note that based upon the advance notice provisions, the nomination deadline would have been March 17, 2012.
On December 23, 2011, Starboard V&O Fund delivered a letter to the Issuer (the “Nomination Letter”) nominating Jeffrey T. Binder, Peter A. Feld and Edward Terino (the “Nominees”) for election to the Board at the 2012 Annual Meeting. The Reporting Persons intend to engage in discussions with management, the Board and shareholders of the Issuer regarding the nomination of directors at the 2012 Annual Meeting and the composition of the Issuer’s Board generally.
15
CUSIP NO. 05367P100
No Reporting Person has any present plan or proposal which would relate to or result in any of the matters set forth in subparagraphs (a) - (j) of Item 4 of Schedule 13D except as set forth herein or such as would occur upon completion of any of the actions discussed herein. The Reporting Persons intend to review their investment in the Issuer on a continuing basis. Depending on various factors including, without limitation, the Issuer’s financial position and investment strategy, the price levels of the Shares, conditions in the securities markets and general economic and industry conditions, the Reporting Persons may in the future take such actions with respect to their investment in the Issuer as they deem appropriate including, without limitation, continuing to engage in communications with management and the Board of the Issuer concerning Board composition, engaging in discussions with shareholders of the Issuer and others about the Issuer and the Reporting Persons’ investment, including in connection with the solicitation of proxies for the election of directors at the 2012 Annual Meeting, making proposals to the Issuer concerning changes to the capitalization, ownership structure, board structure or operations of the Issuer, purchasing additional Shares, selling some or all of their Shares, engaging in short selling of or any hedging or similar transaction with respect to the Shares, or changing their intention with respect to any and all matters referred to in Item 4.
| Item 5. | Interest in Securities of the Issuer. |
The aggregate percentage of Shares reported owned by each person named herein is calculated using as the numerator the respective Shares held by each Reporting Person, and as the denominator 38,605,460 Shares outstanding, as of November 7, 2011, which is the total number of Shares outstanding as reported in the Issuer’s Quarterly Report on Form 10-Q, as amended, filed with the Securities and Exchange Commission on November 10, 2011.
| A. | Starboard V&O Fund |
| (a) | As of the close of business on December 29, 2011, Starboard V&O Fund beneficially owned 1,566,640 Shares. |
Percentage: Approximately 4.1%.
| (b) | 1. Sole power to vote or direct vote: 1,566,640 |
| 2. Shared power to vote or direct vote: 0 |
| 3. Sole power to dispose or direct the disposition: 1,566,640 |
| 4. Shared power to dispose or direct the disposition: 0 |
| (c) | The transactions in the Shares by Starboard V&O Fund during the past 60 days are set forth in Schedule B and are incorporated herein by reference. |
| B. | Starboard LLC |
| (a) | As of the close of business on December 29, 2011, Starboard LLC beneficially owned 651,360 Shares. |
Percentage: Approximately 1.7%.
16
CUSIP NO. 05367P100
| (b) | 1. Sole power to vote or direct vote: 651,360 |
| 2. Shared power to vote or direct vote: 0 |
| 3. Sole power to dispose or direct the disposition: 651,360 |
| 4. Shared power to dispose or direct the disposition: 0 |
| (c) | The transactions in the Shares by Starboard LLC during the past 60 days are set forth in Schedule B and are incorporated herein by reference. |
| C. | Starboard Value LP |
| (a) | As of the close of business on December 29, 2011, 147,000 Shares were held in the Starboard Value LP Account. Starboard Value LP, as the investment manager of Starboard V&O Fund and the Manager of Starboard LLC, may be deemed the beneficial owner of the (i) 1,566,640 Shares owned by Starboard V&O Fund and (ii) 651,360 Shares owned by Starboard LLC. |
Percentage: Approximately 6.1%.
| (b) | 1. Sole power to vote or direct vote: 2,365,000 |
| 2. Shared power to vote or direct vote: 0 |
| 3. Sole power to dispose or direct the disposition: 2,365,000 |
| 4. Shared power to dispose or direct the disposition: 0 |
| (c) | The transactions in the Shares by Starboard Value LP, through the Starboard Value LP Account and on behalf of each of Starboard V&O Fund and Starboard LLC during the past 60 days are set forth in Schedule B and are incorporated herein by reference. |
| D. | Starboard Value GP |
| (a) | Starboard Value GP, as the general partner of Starboard Value LP, may be deemed the beneficial owner of the (i) 1,566,640 Shares owned by Starboard V&O Fund, (ii) 651,360 Shares owned by Starboard LLC and (iii) 147,000 Shares held in the Starboard Value LP Account. |
Percentage: Approximately 6.1%.
| (b) | 1. Sole power to vote or direct vote: 2,365,000 |
| 2. Shared power to vote or direct vote: 0 |
| 3. Sole power to dispose or direct the disposition: 2,365,000 |
| 4. Shared power to dispose or direct the disposition: 0 |
| (c) | Starboard Value GP has not entered into any transactions in the Shares during the past 60 days. The transactions in the Shares on behalf of each of Starboard V&O Fund, Starboard LLC and through the Starboard Value LP Account during the past 60 days are set forth in Schedule B and are incorporated herein by reference. |
| E. | Principal Co |
| (a) | Principal Co, as a member of Starboard Value GP, may be deemed the beneficial owner of the (i) 1,566,640 Shares owned by Starboard V&O Fund, (ii) 651,360 Shares owned by Starboard LLC and (iii) 147,000 Shares held in the Starboard Value LP Account. |
Percentage: Approximately 6.1%.
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| (b) | 1. Sole power to vote or direct vote: 2,365,000 |
| 2. Shared power to vote or direct vote: 0 |
| 3. Sole power to dispose or direct the disposition: 2,365,000 |
| 4. Shared power to dispose or direct the disposition: 0 |
| (c) | Principal Co has not entered into any transactions in the Shares during the past 60 days. The transactions in the Shares on behalf of each of Starboard V&O Fund, Starboard LLC and through the Starboard Value LP Account during the past 60 days are set forth in Schedule B and are incorporated herein by reference. |
| F. | Principal GP |
| (a) | Principal GP, as the general partner of Principal Co, may be deemed the beneficial owner of the (i) 1,566,640 Shares owned by Starboard V&O Fund, (ii) 651,360 Shares owned by Starboard LLC and (iii) 147,000 Shares held in the Starboard Value LP Account. |
Percentage: Approximately 6.1%.
| (b) | 1. Sole power to vote or direct vote: 2,365,000 |
| 2. Shared power to vote or direct vote: 0 |
| 3. Sole power to dispose or direct the disposition: 2,365,000 |
| 4. Shared power to dispose or direct the disposition: 0 |
| (c) | Principal GP has not entered into any transactions in the Shares during the past 60 days. The transactions in the Shares on behalf of each of Starboard V&O Fund, Starboard LLC and through the Starboard Value LP Account during the past 60 days are set forth in Schedule B and are incorporated herein by reference. |
| G. | Messrs. Smith, Mitchell and Feld |
| (a) | Each of Messrs. Smith, Mitchell and Feld, as a member of Principal GP and as a member of each of the Management Committee of Starboard Value GP and the Management Committee of Principal GP, may be deemed the beneficial owner of the (i) 1,566,640 Shares owned by Starboard V&O Fund, (ii) 651,360 Shares owned by Starboard LLC and (iii) 147,000 Shares held in the Starboard Value LP Account. |
Percentage: Approximately 6.1%.
| (b) | 1. Sole power to vote or direct vote: 0 |
| 2. Shared power to vote or direct vote: 2,365,000 |
| 3. Sole power to dispose or direct the disposition: 0 |
| 4. Shared power to dispose or direct the disposition: 2,365,000 |
| (c) | None of Messrs. Smith, Mitchell or Feld has entered into any transactions in the Shares during the past 60 days. The transactions in the Shares on behalf of each of Starboard V&O Fund, Starboard LLC and through the Starboard Value LP Account during the past 60 days are set forth in Schedule B and are incorporated herein by reference. |
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CUSIP NO. 05367P100
| H. | Mr. Binder |
| (a) | As of the close of business on December 29, 2011, Mr. Binder directly owned 6,000 Shares. Mr. Binder, as a member of a “group” with the other Reporting Persons for the purposes of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), may be deemed the beneficial owner of the Shares directly owned by the other Reporting Persons. Mr. Binder disclaims beneficial ownership of such Shares. |
Percentage: Less than 1%
| (b) | 1. Sole power to vote or direct vote: 6,000 |
| 2. Shared power to vote or direct vote: 0 |
| 3. Sole power to dispose or direct the disposition: 6,000 |
| 4. Shared power to dispose or direct the disposition: 0 |
| (c) | The transactions in the Shares by Mr. Binder during the past 60 days are set forth in Schedule B and are incorporated herein by reference. |
| I. | Mr. Terino |
| (a) | As of the close of business on December 29, 2011, Mr. Terino directly owned 25,000 Shares. Mr. Terino, as a member of a “group” with the other Reporting Persons for the purposes of Section 13(d)(3) of the Exchange Act, may be deemed the beneficial owner of the Shares directly owned by the other Reporting Persons. Mr. Terino disclaims beneficial ownership of such Shares. |
Percentage: Less than 1%
| (b) | 1. Sole power to vote or direct vote: 25,000 |
| 2. Shared power to vote or direct vote: 0 |
| 3. Sole power to dispose or direct the disposition: 25,000 |
| 4. Shared power to dispose or direct the disposition: 0 |
| (c) | The transactions in the Shares by Mr. Terino during the past 60 days are set forth in Schedule B and are incorporated herein by reference. |
| (d) | No person other than the Reporting Persons is known to have the right to receive, or the power to direct the receipt of dividends from, or proceeds from the sale of, the Shares. |
| (e) | Not applicable. |
| Item 6. | Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer. |
On December 29, 2011, the Reporting Persons entered into a Joint Filing and Solicitation Agreement in which, among other things, (a) the Reporting Persons agreed to the joint filing on behalf of each of them of statements on Schedule 13D with respect to the securities of the Issuer, if required, (b) the Reporting Persons agreed to solicit proxies or written consents for the Solicitation, and (c) Starboard V&O Fund and Starboard LLC agreed to bear all expenses incurred in connection with the Solicitation, including approved expenses incurred by any of the parties in connection with the Solicitation, subject to certain limitations. A copy of this agreement is attached hereto as Exhibit 99.1 and is incorporated herein by reference.
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Pursuant to letter agreements, Starboard V&O Fund has agreed to indemnify Messrs. Binder and Terino against any and all claims of any nature arising from the Solicitation and any related transactions. A form of the indemnification letter agreement is attached hereto as Exhibit 99.2 and is incorporated herein by reference.
Starboard V&O Fund has agreed to compensate Messrs. Binder and Terino for being named as and serving as nominees for election as directors of the Issuer pursuant to letter agreements (the “Compensation Letter Agreements”). Under the Compensation Letter Agreements, Starboard V&O Fund has agreed to pay each of Messrs. Binder and Terino (i) $10,000 in cash upon submission of the Nomination Letter to the Issuer and (ii) $10,000 in cash upon the filing of a definitive proxy statement with the SEC relating to a solicitation of proxies in furtherance of Messrs. Binder’s and Terino’s election as directors of the Issuer at the 2012 Annual Meeting. Pursuant to the Compensation Letter Agreements, each of Messrs. Binder and Terino agreed to use after-tax proceeds from such compensation to acquire securities of the Issuer (the “Nominee Shares”). If elected or appointed to serve as a director of the Board, each of Messrs. Binder and Terino agreed not to sell, transfer or otherwise dispose of any Nominee Shares within two years of their election or appointment as a director; provided, however, in the event that the Issuer enters into a business combination with a third party, each of Messrs. Binder and Terino may sell, transfer or exchange the Nominee Shares in accordance with the terms of such business combination. A form of the Compensation Letter Agreements is attached hereto as Exhibit 99.3 and is incorporated herein by reference.
| Item 7. | Material to be Filed as Exhibits. |
| 99.1 | Joint Filing and Solicitation Agreement by and among Starboard Value and Opportunity Master Fund Ltd, Starboard Value and Opportunity S LLC, Starboard Value LP, Starboard Value GP LLC, Starboard Principal Co LP, Starboard Principal Co GP LLC, Jeffrey C. Smith, Mark Mitchell, Peter A. Feld, Jeffrey T. Binder and Edward Terino dated December 29, 2011. |
| 99.2 | Form of Indemnification Letter Agreement. |
| 99.3 | Form of Compensation Letter Agreement. |
| 99.4 | Powers of Attorney. |
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SIGNATURES
After reasonable inquiry and to the best of his knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.
Dated: December 29, 2011
STARBOARD VALUE AND OPPORTUNITY MASTER FUND LTD By: Starboard Value LP, its investment manager STARBOARD VALUE AND OPPORTUNITY S LLC By: Starboard Value LP, its manager STARBOARD VALUE LP By: Starboard Value GP LLC, its general partner | STARBOARD VALUE GP LLC By: Starboard Principal Co LP, its member STARBOARD PRINCIPAL CO LP By: Starboard Principal Co GP LLC, its general partner STARBOARD PRINCIPAL CO GP LLC |
| By: | /s/ Jeffrey C. Smith | |
| Name: | Jeffrey C. Smith | |
| Title: | Authorized Signatory | |
/s/ Jeffrey C. Smith |
| JEFFREY C. SMITH |
Individually and as attorney-in-fact for Mark Mitchell, Peter A. Feld, Jeffrey T. Binder and Edward Terino |
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SCHEDULE A
Directors and Officers of Starboard Value and Opportunity Master Fund Ltd
| Name and Position | Principal Occupation | Principal Business Address | Citizenship | |||
Patrick Agemian Director | Director of Global Funds Management, Ltd. | PO Box 10034, Harbour Place 2nd Floor 103 South Church Street Grand Cayman Cayman Islands, KY1-1001 | Canada | |||
Mark Mitchell Director* | ||||||
Don Seymour Director | Managing Director of dms Management Ltd. | dms Management Ltd. dms House, 20 Genesis Close P.O. Box 31910 Grand Cayman Cayman Islands, KY1-1208 | Cayman Islands |
* Mr. Mitchell is a Reporting Person and, as such, the information with respect to Mr. Mitchell called for by Item 2 of Schedule 13D is set forth therein.
CUSIP NO. 05367P100
SCHEDULE B
Transactions in the Shares During the Past 60 Days
Shares of Common Stock Purchased | Price Per Share($) | Date of Purchase |
STARBOARD VALUE AND OPPORTUNITY MASTER FUND LTD
| 105,300 | 6.0000 | 11/03/11 | |
| 10,005 | 6.5363 | 11/04/11 | |
| 25,095 | 6.5879 | 11/07/11 | |
| 70,200 | 7.0519 | 11/08/11 | |
| 63,180 | 6.9444 | 11/09/11 | |
| 63,403 | 6.9190 | 11/09/11 | |
| 52,650 | 7.0000 | 11/10/11 | |
| 6,797 | 6.9374 | 11/10/11 | |
| 3,510 | 7.1000 | 11/11/11 | |
| 242,190 | 6.9000 | 11/11/11 | |
| 4,038 | 7.0961 | 11/11/11 | |
| 10,536 | 6.9463 | 11/14/11 | |
| 25,356 | 7.1840 | 11/16/11 | |
| 65,782 | 7.0033 | 11/17/11 | |
| 25,370 | 7.0686 | 11/18/11 | |
| 175,500 | 7.1000 | 11/21/11 | |
| 48,128 | 7.0418 | 11/21/11 | |
| 48,520 | 6.9508 | 11/22/11 | |
| 74,501 | 6.7896 | 11/23/11 | |
| 85,293 | 6.7500 | 11/23/11 | |
| 20,524 | 6.7272 | 11/25/11 | |
| 24,526 | 6.9668 | 11/28/11 | |
| 27,945 | 7.1992 | 11/29/11 | |
| 37,902 | 7.7337 | 11/30/11 | |
| 25,550 | 7.7119 | 12/01/11 | |
| 44,331 | 7.9576 | 12/19/11 | |
| 30,240 | 8.3570 | 12/20/11 | |
| 24,409 | 8.4346 | 12/21/11 | |
| 13,337 | 8.5993 | 12/28/11 | |
| 102,200 | 8.6000 | 12/29/11 | |
| 10,322 | 8.5933 | 12/29/11 |
STARBOARD VALUE AND OPPORTUNITY S LLC
| 44,700 | 6.0000 | 11/03/11 | |
| 4,247 | 6.5363 | 11/04/11 | |
| 10,653 | 6.5879 | 11/07/11 | |
| 29,800 | 7.0519 | 11/08/11 | |
| 26,820 | 6.9444 | 11/09/11 | |
| 26,915 | 6.9190 | 11/09/11 | |
| 22,350 | 7.0000 | 11/10/11 | |
| 2,885 | 6.9374 | 11/10/11 | |
| 1,490 | 7.1000 | 11/11/11 |
CUSIP NO. 05367P100
| 102,810 | 6.9000 | 11/11/11 | |
| 1,714 | 7.0961 | 11/11/11 | |
| 4,473 | 6.9463 | 11/14/11 | |
| 10,763 | 7.1840 | 11/16/11 | |
| 27,924 | 7.0033 | 11/17/11 | |
| 10,769 | 7.0686 | 11/18/11 | |
| 74,500 | 7.1000 | 11/21/11 | |
| 20,430 | 7.0418 | 11/21/11 | |
| 20,597 | 6.9508 | 11/22/11 | |
| 31,626 | 6.7896 | 11/23/11 | |
| 36,207 | 6.7500 | 11/23/11 | |
| 8,712 | 6.7272 | 11/25/11 | |
| 10,411 | 6.9668 | 11/28/11 | |
| 11,863 | 7.1992 | 11/29/11 | |
| 16,090 | 7.7337 | 11/30/11 | |
| 9,450 | 7.7119 | 12/01/11 | |
| 16,397 | 7.9576 | 12/19/11 | |
| 11,185 | 8.3570 | 12/20/11 | |
| 9,028 | 8.4346 | 12/21/11 | |
| 4,933 | 8.5993 | 12/28/11 | |
| 37,800 | 8.6000 | 12/29/11 | |
| 3,818 | 8.5933 | 12/29/11 |
STARBOARD VALUE LP
(Through the Starboard Value LP Account)
| 15,000 | 7.7119 | 12/01/11 | |
| 26,026 | 7.9576 | 12/19/11 | |
| 17,754 | 8.3570 | 12/20/11 | |
| 14,330 | 8.4346 | 12/21/11 | |
| 7,830 | 8.5993 | 12/28/11 | |
| 60,000 | 8.6000 | 12/29/11 | |
| 6,060 | 8.5933 | 12/29/11 |
JEFFREY T. BINDER | |||
| 6,000 | 8.7658 | 12/27/11 | |
EDWARD TERINO | |||
| 16,116 | 8.9000 | 12/22/11 | |
| 8,884 | 8.8400 | 12/27/11 | |