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As filed with the Securities and Exchange Commission on June 11, 1998,
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, TEWKSBURY, MA 01876
(Address of Principal Executive Offices) (Zip Code)
1997 STOCK OPTION 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)
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Title of securities Amount to Proposed maximum Proposed maximum Amount of
to be registered be Registered offering price aggregate offering registration
per share price fee
- -----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 1,000,000 $39.84 (1) $39,843,750 $11,754
$.01 par value shares
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(1) Estimated solely for the purpose of calculating the registration fee, and
based upon the average of the high and low prices of the Common Stock on the
Nasdaq National Market on June 4, 1998 in accordance with Rules 457(c) and
457(h) of the Securities Act of 1933, as amended.
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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 participants in the 1997 Stock Option 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.
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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 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
2
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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.
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.
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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, 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 15th
day of May, 1998.
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 William J. Miller, William L. Flaherty and Frederic G.
Hammond, 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.
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<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ William J. Miller Chief Executive Officer and Chairman May 15, 1998
- ------------------------ of the Board (Principal Executive Officer)
William J. Miller
/s/ William L. Flaherty Senior Vice President of Finance and Chief May 15, 1998
- ------------------------ Financial Officer (Principal Financial Officer)
William L. Flaherty
/s/ Charles T. Brumback Director May 11, 1998
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Charles T. Brumback
/s/ William E. Foster Director May 10, 1998
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William E. Foster
/s/ Peter C. Gotcher Director May 23, 1998
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Peter C. Gotcher
/s/ Robert M. Halperin Director May 15, 1998
- ------------------------
Robert M. Halperin
/s/ Nancy Hawthorne Director May 11, 1998
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Nancy Hawthorne
/s/ Roger J. Heinen Director May 9, 1998
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Roger J. Heinen, Jr.
/s/ Lucille S. Salhany Director May 15, 1998
- ------------------------
Lucille S. Salhany
/s/ William J. Warner Director May 15, 1998
- ------------------------
William J. Warner
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Exhibit Index
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Exhibit
Number Description
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<C> <S>
4.1 (1) Third Amended and Restated Certificate of Incorporation of the
Registrant.
4.2 (2) Amended and Restated By-Laws of the Registrant.
4.3 (3) Certificate of Designation establishing Series A Junior Participating
Preferred Stock and Certificate of Correction.
4.4 (4) Rights Agreement, dated as of February 29, 1996 between the
Registrant and BankBoston, as Rights Agent.
5 Opinion of Hale and Dorr LLP.
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Hale and Dorr LLP (included in Exhibit 5).
24 Power of Attorney (included on the signature page of this Registration
Statement).
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<C> <S>
(1) Incorporated herein by reference from Exhibits 3.1 and 3.2 to the
Registrant's Quarterly Report on Form 10-Q for the period ended March 31,
1995.
(2) 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.
(3) 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.
(4) 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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Exhibit 5
Hale and Dorr LLP
Counsellors at Law
60 State Street, Boston, Massachusetts 02109
617-526-6000 * FAX 617-526-5000
June 11, 1998
Avid Technology, Inc.
Metropolitan Technology Park
One Park West
Tewksbury, MA 01876
Re: Registration Statement on Form S-8
----------------------------------
Ladies and Gentlemen:
This opinion is furnished to you in connection with a Registration Statement
on Form S-8 (the "Registration Statement") filed with the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Securities Act"), for the registration of 1,000,000 shares of
Common Stock, $.01 par value per share (the "Shares"), of Avid Technology, Inc.,
a Delaware corporation (the "Company"), issuable under the Company's 1997 Stock
Option Plan (the "Plan").
We have examined the Certificate of Incorporation and By-Laws of the Company,
each as amended and restated to date, and originals, or copies certified to our
satisfaction, of all pertinent records of the meetings of the directors and
stockholders of the Company, the Registration Statement and such other documents
relating to the Company as we have deemed material for the purposes of this
opinion.
In examination of the foregoing documents, we have assumed the genuineness of
all signatures, the authenticity of all documents submitted to us as originals,
the conformity to original documents of all documents submitted to us as copies,
the authenticity of the originals of such latter documents and the legal
competence of all signatories to such documents.
We express no opinion herein as to the laws of any state or jurisdiction
other than the state laws of the Commonwealth of Massachusetts, the Delaware
General Corporation Law statute and the federal laws of the United States of
America.
Based upon and subject to the foregoing, we are of the opinion that the
Shares have been duly authorized for issuance and the Shares, when issued and
paid for in
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accordance with the terms of the Plan, will be validly issued, fully paid and
nonassessable.
It is understood that this opinion is to be used only in connection with the
offer and sale of the Shares while the Registration Statement is in effect.
Please note that we are opining only as to the matters expressly set forth
herein, and no opinion should be inferred as to any other matters.
We hereby consent to the filing of this opinion with the Commission as an
exhibit to the Registration Statement in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Securities Act. In giving such
consent, we do not hereby admit that we are in the category of persons whose
consent is required under Section 7 of the Securities Act or the rules and
regulations of the Commission.
Very truly yours,
/s/ Hale and Dorr LLP
HALE AND DORR LLP
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Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement
of Avid Technology, Inc. (the "Company") on Form S-8 of our report dated
February 4, 1998, on our audits of the consolidated financial statements and the
financial statement schedule of the Company as of December 31, 1997 and 1996,
and for each of the three years in the period ended December 31, 1997, which
report is included in the Company's Annual Report on Form 10-K for the year
ended December 31, 1997.
/s/ COOPERS & LYBRAND L.L.P.
Boston, Massachusetts
June 10, 1998
