As filed with the Securities and Exchange Commission on December 18, 1997
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.
(Exact name of issuer as specified in its charter)
DELAWARE 04-2977748
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
METROPOLITAN TECHNOLOGY PARK, ONE PARK WEST 01876
TEWKSBURY, MASSACHUSETTS (Zip Code)
(Address of Principal Executive Offices)
AVID TECHNOLOGY, INC.
NONQUALIFIED DEFERRED COMPENSATION PLAN
(Full title of the Plan)
WILLIAM J. MILLER
CHIEF EXECUTIVE OFFICER
AVID TECHNOLOGY, INC.
METROPOLITAN TECHNOLOGY PARK, ONE PARK WEST
TEWKSBURY, MA 01876
(Name and address of agent for service)
(978) 640-6789
(Telephone number, including area code, of agent for service)
=========================================================================================
Title of Securities Amount to be Proposed Maximum Aggregate Amount of
to be Registered Registered Offering Price (1) Registration Fee (2)
- -----------------------------------------------------------------------------------------
Deferred Compensation $5,000,000 $5,000,000 $1,475
Obligations
=========================================================================================
(1) The Deferred Compensation Obligations are unsecured obligations of Avid
Technology, Inc. to pay deferred compensation in the future in accordance
with the terms of the Avid Technology, Inc. Nonqualified Deferred
Compensation Plan.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) under the Securities Act of 1933, as amended.
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I is included in documents sent or
given to participants in the Avid Technology, Inc. Nonqualified Deferred
Compensation Plan (the "Plan") pursuant to Rule 428(b)(l) of the Securities Act
of 1933, as amended (the "Securities Act").
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 Securities 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 "Commission"). The following documents, which are filed with the
Commission, are incorporated in this Registration Statement by reference:
(1) The Registrant's latest annual report filed pursuant to Sections
13(a) or 15(d) of the Exchange Act, or the latest prospectus filed pursuant to
Rule 424(b) under the Securities Act that contains audited financial statements
for the Registrant's latest fiscal year for which such statements have been
filed.
(2) All other reports filed pursuant to Sections 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year covered by the annual reports
or the prospectus referred to in (1) above.
(3) The description of the common stock of the Registrant, $.01 par
value per share (the "Common Stock"), contained in a Registration Statement
filed under Section 12 of 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 of Common Stock offered
hereby have been sold or which deregisters all shares of Common Stock then
remaining unsold, shall be deemed to be incorporated by reference herein and to
be part hereof from the date of the filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
Item 4. Description of Securities
-------------------------
Under the Plan, the Registrant will provide a select group of highly
compensated or management employees (the "Eligible Employees") the opportunity
to enter into agreements for the deferral of a specified percentage of their
cash compensation. The obligations of the Registrant under such agreements (the
"Obligations") will be unfunded and unsecured general obligations of the
Registrant to pay in the future the value of the deferred compensation adjusted
to reflect the performance, whether positive or negative, of investment
measurement options chosen by each participant from those measurement options
made available under the Plan during the deferral period in accordance with the
terms of the Plan.
The Plan will be administered by the members of the Compensation Committee
of the Board of Directors. The Compensation Committee may from time to time
adopt rules and procedures governing the Plan and shall have the authority to
give interpretive rulings with respect to the Plan.
An Eligible Employee may elect to defer all or a portion of his or her
compensation. The amount of compensation to be deferred by each participant will
be determined in accordance with the Plan based on elections by the participant.
Participants may elect to defer any portion of bonus up to 100% by specifying a
percentage, a dollar amount or the excess over a dollar amount. The minimum
deferral under the Plan is $5,000.
The Obligations for each participant will equal the balance in a
bookkeeping reserve account established for such participant. The investment
earnings credited to such account will be indexed to one or more mutual funds or
indices, the type of which will be individually chosen by each participant from
a list of types of investment media made available under the Plan. Each
participant's deferred compensation account will be adjusted to reflect
contributions by the Registrant and the investment experience of the selected
mutual funds or indices, including any appreciation or depreciation. The
Registrant is not required to actually invest the deferred compensation in the
types of funds specified by participants. However, the Registrant may establish
a trust, which may be a grantor trust for federal income tax purposes, to make
such investments to assist the Registrant in meeting the Obligations.
The Obligations will be distributed by the Registrant in accordance with
the terms of the Plan and upon a payment plan selected by each participant.
Upon a determination by the Committee that a participant has suffered an
unforeseeable financial emergency, the Committee may direct the Registrant to
pay such participant an amount necessary to meet the emergency, but not
exceeding the aggregate balance of the participant's deferral account.
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A participant's right or the right of any other person to the Obligations
cannot be assigned or transferred in any manner or be subject to alienation,
anticipation, sale, pledge, encumbrance or other legal process. If any
Participant attempts to transfer, assign, alienate, anticipate, sell, pledge or
otherwise encumber his or her benefit under the Plan, the Committee may
terminate his or her interest in any such benefit to the extent the Committee
considers necessary or advisable to prevent or limit the effect of such
occurrence. The Obligations are not convertible into another security of the
Registrant. The Obligations will not have the benefit of a negative
pledge or any other affirmative or negative covenant on the part of the
Registrant.
The Registrant may at any time amend, suspend or reinstate any or all of
the provisions of the Plan, except that no such amendment, suspension or
reinstatement may adversely affect any participant's deferral account as it
existed as of the day before the effective date of such amendment, suspension or
reinstatement, without such participant's prior written consent. The Registrant
may terminate the Plan at any time and for any reason whatsoever; provided,
however, that a termination of the Plan may not adversely affect the value of a
participant's deferral account as it existed as of the effective date of such
termination without the participant's prior written consent.
The Plan will terminate automatically upon the occurrence of a Change-in-
Control. Under the Plan, a Change-in-Control is defined as [TO BE PROVIDED]. The
Obligations will be distributed to participants in a lump sum as soon as
possible after the occurrence of a Change-in-Control.
Item 5. Interests of Named Experts and Counsel
--------------------------------------
Not applicable.
Item 6. Indemnification
---------------
Section 145 of the General Corporation Law statute 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 liable to the corporation
unless and only to the extent that the adjudicating court determines that such
indemnification is proper under the circumstances.
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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 statute 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
4
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 statute 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.
Item 7. Exemption from Registration Claimed
-----------------------------------
Not applicable.
Item 8. Exhibits
--------
The Exhibit Index immediately preceding the exhibits to this Registration
Statement is incorporated herein by reference.
Item 9. Undertakings
------------
The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the Registration Statement;
and
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(iii) 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;
provided, however, that paragraphs (i) and (ii) do not apply if the information
- -------- -------
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or section 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement.
(2) 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.
(3) 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.
The 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 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 in the initial
bona fide offering thereof.
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 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 Securities Act and will be governed by the final
adjudication of such issue.
6
SIGNATURES
Pursuant to the requirements of the Securities Act, 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
18th day of December, 1997.
AVID TECHNOLOGY, INC.
By: /s/ William J. Miller
------------------------
William J. Miller
President and
Chief Executive Officer
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POWER OF ATTORNEY
We, the undersigned officers and directors of Avid Technology, Inc., hereby
severally constitute William L. Flaherty, Frederic G. Hammond and Mark G.
Borden, and each of them singly, our true and lawful attorneys with full power
to them, and each of them singly, to sign for us and in our names in the
capacities indicated below, the Registration Statement on Form S-8 filed
herewith and any and all subsequent amendments to said Registration Statement,
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 all
requirements of the Securities and Exchange Commission, hereby ratifying and
confirming our signatures as they may be signed by said attorneys, or any of
them, to said Registration Statement and any and all amendments thereto.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated.
Signature Title Date
- --------- ----- ----
/s/ William J. Miller Chief Executive Officer and December 9, 1997
- ----------------------- Chairman of the Board
William J. Miller (Principal Executive Officer)
/s/ William L. Flaherty Senior Vice President of Finance December 9, 1997
- ----------------------- and Chief Financial Officer
William L. Flaherty (Principal Financial Officer)
Director
- -----------------------
Charles T. Brumback
/s/ William E. Foster Director December 9, 1997
- -----------------------
William E. Foster
Director
- -----------------------
Peter C. Gotcher
/s/ Robert M. Halperin Director December 9, 1997
- -----------------------
Robert M. Halperin
/s/ Nancy Hawthorne Director December 15, 1997
- -----------------------
Nancy Hawthorne
/s/ William S. Kaiser Director December 9, 1997
- -----------------------
William S. Kaiser
/s/ William J. Warner Director
- ----------------------- December 9, 1997
William J. Warner
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EXHIBIT INDEX
Exhibit
Number Description
- -------- -------------------------------------------------------------------
4.1 Avid Technology, Inc. Nonqualified Deferred Compensation Plan.
4.2 (1) Third Amended and Restated Certificate of Incorporation of the
Registrant.
4.3 (2) Certificate of Amendment of Third Amended and Restated Certificate
of Incorporation of the Registrant.
4.4 (3) Amended and Restated By-Laws of the Registrant.
4.5 (4) Certificate of Designation establishing Series A Junior Participating
Preferred Stock and Certificate of Correction.
4.6 (5) Rights Agreement dated February 29, 1996 between the Registrant and
BankBoston, as Rights Agent.
5 Opinion of Hale and Dorr LLP.
23.1 Consent of Hale and Dorr LLP (included in Exhibit 5).
23.2 Consent of Coopers & Lybrand L.L.P.
24 Power of Attorney (included on the signature page of this Registration
Statement).
- -----------------------
(1) Incorporated herein by reference from Exhibit 3.1 to the Registrant's
Quarterly Report on Form 10-Q for the period ended March 31, 1995.
(2) Incorporated herein by reference from Exhibit 3.2 to the Registrant's
Quarterly Report on Form 10-Q for the period ended March 31, 1995.
(3) Incorporated herein by reference from the Registrant's Registration
Statement on Form S-1 (File No. 33-57796) as declared effective by the
Commission on March 11, 1993.
(4) Incorporated herein by reference from Exhibits 3.4 and 3.5 to the
Registrant's Annual Report on Form 10-K for the year ended
December 31, 1995 as filed with the Commission on April 1, 1996.
(5) Incorporated herein by reference from the Registrant's Current Report
on Form 8-K as filed with the Commission on March 8, 1996
9