As filed with the Securities and Exchange Commission on December 18, 1997
Registration No. 333-
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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)
EXECUTIVE STOCK OPTION
(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)
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Title of securities Number of Proposed Proposed Amount
to be registered shares to be maximum offering maximum aggregate of registration
registered price per share offering price fee
- ----------------------------------------------------------------------------------------------------
Common Stock 250,000 $19.625 $4,906,250 $1,448
$.01 par value
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PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I is included in documents sent or
given to the recipient of the Registrant's Executive Stock Option 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
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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
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Not applicable.
Item 5. Interests of Named Experts and Counsel
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Not applicable.
Item 6. Indemnification
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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.
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
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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 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
-----------------------------------
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Not applicable.
Item 8. Exhibits
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The Exhibit Index immediately preceding the exhibits to this
Registration Statement is incorporated herein by reference.
Item 9. Undertakings
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1. 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
(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
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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.
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2. 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.
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 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.
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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 L. Flaherty
--------------------------
William L. Flaherty
Senior Vice President of
Finance and Chief
Financial 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
William J. Miller Chairman of the Board
(Principal Executive Officer)
/s/ William L. Flaherty
- ------------------------ Senior Vice President of Finance December 9, 1997
William L. Flaherty and Chief Financial Officer
(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
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Exhibit
Number Description
- --------- ---------------------------------------------------------------------
4.1 (1) Third Amended and Restated Certificate of Incorporation of the
Registrant.
4.2 (2) Certificate of Amendment of Third Amended and Restated Certificate
of Incorporation of the Registrant.
4.3 (3) Amended and Restated By-Laws of the Registrant.
4.4 (4) Certificate of Designation establishing Series A Junior Participating
Preferred Stock and Certificate of Correction.
4.5 (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).
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(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
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