Table of Contents
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
(Mark One)
| x | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the fiscal year ended January 31, 2013
OR
| ¨ | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the transition period from to
Commission File Number: 001-35667
AMBARELLA, INC.
(Exact name of registrant as specified in its charter)
| Cayman Islands | 98-0459628 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) | |
| 2975 San Ysidro Way, Santa Clara, California |
95051 | |
| (Address of principal executive offices) | (Zip Code) | |
Registrant’s telephone number, including area code: (408) 734-8888
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class |
Name of each exchange on which registered | |
| Ordinary Share, $0.00045 Par Value Per Share | NASDAQ Global Market |
Securities registered pursuant to Section 12(g) of the Act:
None
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. YES ¨ NO x
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. YES ¨ NO x
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months and (2) has been subject to such filing requirements for the past 90 days. YES x NO ¨
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). YES x NO ¨
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of the registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. x
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer”, “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | ¨ | Accelerated filer | ¨ | |||
| Non-accelerated filer | x | Smaller reporting company | ¨ | |||
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act). YES ¨ NO x
The aggregate market value of the voting and non-voting ordinary shares held by non-affiliates of the Registrant as of January 31, 2013, was approximately $151 million based upon the closing price reported for such date on the NASDAQ Global Market. For purposes of this disclosure, ordinary shares held by persons known to the Registrant (based on information provided by such persons and/or the most recent schedule 13Gs filed by such persons) to beneficially own more than 5% of the Registrant’s ordinary shares and ordinary shares held by officers and directors of the Registrant have been excluded because such persons may be deemed to be affiliates. This determination is not necessarily a conclusive determination for other purposes.
Number of ordinary shares, $0.00045 par value, outstanding as of January 31, 2013: 27,035,074 shares.
DOCUMENTS INCORPORATED BY REFERENCE
Certain information is incorporated into Part III of this report by reference to the Proxy Statement for the Registrant’s annual meeting of shareholders to be held on or about June 5, 2013 to be filed with the Securities and Exchange Commission pursuant to Regulation 14A not later than 120 days after the end of the fiscal year covered by this Form 10-K.
Table of Contents
2
Table of Contents
FORWARD-LOOKING STATEMENTS
This Report on Form 10-K contains forward-looking statements within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act. The forward-looking statements are contained principally in, but not limited to, the sections titled “Business,” “Risk Factors,” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” as well as elsewhere in this Form 10-K. Forward-looking statements are identified by the use of the words “would,” “could,” “will,” “may,” “expect,” “believe,” “should,” “anticipate,” “outlook,” “if,” “future,” “intend,” “plan,” “estimate,” “predict,” “potential,” “targets,” “seek” or “continue” and similar words and phrases, including the negatives of these terms, or other variations of these terms, that denote future events. Forward-looking statements include, but are not limited to, information concerning our possible or assumed future results of operations, competitive position, industry environment, potential growth opportunities and the effects of competition, our market opportunity, our ability to develop new solutions, our future financial and operating performance, sales and marketing strategy, investment strategy, research and development, customer and supplier relationships, industry trends, our cash needs and capital requirements, expectations about seasonality, taxes, and operating expenses. These statements reflect our current views with respect to future events and our potential financial performance and are subject to risks and uncertainties that could cause our actual results and financial position to differ materially and adversely from what is projected or implied in any forward-looking statements included in this Annual Report on Form 10-K. These factors include, but are not limited to, the risks described under Item 1A of Part I—“Risk factors,” Item 7 of Part II—“Management’s discussion and analysis of financial condition and results of operations,” elsewhere in this Annual Report on Form 10-K and those discussed in other documents we file with the SEC. You are cautioned not to place undue reliance on the forward-looking statements, which speak only as of the date of this Form 10-K. We have no obligation (and expressly disclaim any such obligation) to update or alter any forward-looking statements, whether as a result of new information or otherwise except as otherwise required by securities regulations.
For purposes of this Annual Report, the terms “Ambarella”, “the Company”, “we”, “us” and “our” refer to Ambarella, Inc. and its consolidated subsidiaries.
3
Table of Contents
| ITEM 1. | BUSINESS |
Overview
We are a leading developer of semiconductor processing solutions for video that enable high-definition, or HD, video capture, sharing and display. We combine our processor design capabilities with our expertise in video and image processing, algorithms and software to provide a technology platform that is designed to be easily scalable across multiple applications and enable rapid and efficient product development. Our system-on-a-chip, or SoC, designs fully integrate HD video processing, image processing, audio processing and system functions onto a single chip, delivering exceptional video and image quality, differentiated functionality and low power consumption.
The inherent flexibility of our technology platform enables us to deliver our solutions for numerous applications in multiple markets. In the camera market, our platform enables the creation of high-quality video content in wearable sports cameras, automotive aftermarket cameras, professional and consumer Internet Protocol, or IP, security cameras, digital still cameras, or DSCs, telepresence cameras and camcorders. Recently, our presence in the camera market has shifted towards enabling specialized video and image capture devices such as wearable sports cameras, automotive aftermarket cameras and IP security cameras. In the infrastructure market, our solutions efficiently manage IP video traffic, broadcast encoding and IP video delivery applications.
We initially focused our technology platform on the infrastructure market, where we were able to differentiate our solutions for broadcast customers based on high performance, low power consumption, transmission and storage efficiency and small form factor. Leveraging these same capabilities, we then designed high-performance solutions for the camera market. As a result of the advantages of our solutions, we became a leading provider of video processing solutions for cameras that capture both HD video and high-resolution still images simultaneously. In addition, we have released SoC solutions that combine high-resolution video and image capture capabilities with advanced networking, connectivity and application processing functionalities. We are currently selling our fourth generation solutions into the infrastructure market and our fifth generation solutions into the camera market.
We sell our solutions to leading original design manufacturers, or ODMs, and original equipment manufacturers, or OEMs, globally. We refer to ODMs as our customers and OEMs as our end customers, except as otherwise indicated or as the context otherwise requires. In the camera market, our video processing solutions are designed into products from leading OEMs including GoPro, Robert Bosch GmbH and affiliated entities and Samsung Electronics Co., Ltd., who source our solutions from ODMs including Ability Enterprise Co., Ltd., Asia Optical Co. Inc., Chicony Electronics Co., Ltd., DXG Technology Corp., Hon Hai Precision Industry Co., Ltd. and Sky Light Digital Ltd. In the infrastructure market, our solutions are designed into products from leading OEMs including Harmonic Inc., Motorola Mobility, Inc. (owned by Google, Inc.) and Telefonaktiebolaget LM Ericsson, who source our solutions from leading ODMs such as Plexus Corp.
We have shipped approximately 33 million SoCs since our inception in 2004. We employ a fabless manufacturing strategy and are currently shipping the majority of our solutions in the 65, 45 and 32 nanometer, or nm, process nodes. We have a proven track record of developing and delivering multiple solutions with first-pass silicon success. As of January 31, 2013, we had 444 employees worldwide, approximately 75% of whom are in research and development. Our headquarters are located in Santa Clara, California, and we also have research and development design centers and business development offices in China, Japan, South Korea and Taiwan. For our fiscal years ended January 31, 2013, 2012 and 2011, we recorded revenue of $121.1 million, $97.3 million and $94.7 million, respectively, and net income of $18.2 million, $9.8 million and $13.9 million, respectively. We have generated net income in each quarter beginning with the first quarter of fiscal year 2010, and we have generated cash from operations in each of fiscal years starting from 2009.
Ambarella was founded and incorporated in the Cayman Islands in January 2004. Our principal executive offices are located at 2975 San Ysidro Way, Santa Clara, California. Our website is www.ambarella.com. You
4
Table of Contents
can obtain copies of our Forms 10-K, 10-Q, 8-K, and other filings with the SEC, and all amendments to these filings, free of charge, from our website as soon as reasonably practicable following our filing of any of these reports with the SEC. In addition, you may read and copy any material we file with the SEC at the SEC’s Public Reference Room at 100 F Street NE, Room 1580, Washington, D.C. 20549. You may obtain information on the operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330. The SEC also maintains a website that contains reports, proxy, and information statements, and other information regarding registrants that file electronically with the SEC at www.sec.gov.
Industry Background
Trends Impacting the Video Content Creation and Distribution Markets
Video traffic is growing at a significant rate. According to the Cisco Visual Networking Index: Global Mobile Data Traffic Forecast Update, 2011-2016, mobile video will comprise 71% of total mobile data traffic in 2016, a 90% compound annual growth rate, or CAGR, from 2011 to 2016. The market trends that are fundamentally impacting video content creation and distribution include the following:
| • | Increasing Number of Video Capture Devices. Traditionally, HD video has been captured using large, power intensive and expensive dedicated devices. Recent improvements in HD video capture quality, device size and cost have allowed video capture functionality to be incorporated into a broad range of devices. Today, smartphones, tablets, wearable cameras, automotive aftermarket cameras, IP security cameras and telepresence cameras are increasingly including both HD video capture and high-quality still image capture. According to IDC, virtually all camera-enabled smartphones being sold today are capable of capturing and wirelessly transmitting HD video. In the IP video segment of the camera market, growth is being driven by customers’ demand for HD imaging and networking capabilities to replace aging analog and standard-definition systems currently used for professional and consumer security applications. IDC forecasts the IP security surveillance camera market will grow from 6.6 million units in 2011 to 15.0 million units in 2014. In addition to the significant growth in the number of devices, new applications are emerging for video capture devices. In some regions of the world, such as China, Russia, South Korea and Taiwan, video capture devices are being added as aftermarket accessories to automobiles and connected to on-board recording systems to capture video in the event of an incident, which assists the insurance claims process following an accident. |
| • | Growing User-Generated Content. Historically, most video content was created by media companies, professional studios and large broadcasters that possessed the equipment, expertise and other resources necessary to produce and distribute such programming. However, with the proliferation of low-cost digital video devices and greater penetration of broadband connectivity, individuals are playing a greater role in content creation and distribution than ever before. Websites such as YouTube and Facebook have enabled an effective new channel to widely distribute, store and display video and other rich media. YouTube reports having one trillion video views in 2011, and having 60 hours of video uploaded every minute. In addition to user-created videos, other user-generated content such as video conferencing and video instant messaging through services provided by Apple, Inc., Google Inc. and Skype, among others, are becoming increasingly popular. According to the 2010 Cisco Report, global video communications traffic will increase over 550% from 2010 to 2015. |
| • | Broadband Penetration Enabling the Proliferation of the Video Cloud. The adoption of high-speed broadband and the proliferation of connected devices such as smartphones, tablets, laptops, desktop computers and connected televisions have allowed consumers to more easily download and share IP video accessed upon demand through the video cloud. According to IDC, over two billion people will watch streaming video over the Internet in 2017. The video cloud has led to new business models based on personal content such as streaming video provided by services like YouTube. Additionally, consumers are leveraging the video cloud for security by utilizing an IP camera and cloud infrastructure to watch live HD video streaming to any web connected device. This video cloud application has enabled intelligent IP surveillance systems that detect activity and then stream encrypted HD video through secure servers and alert end users. |
5
Table of Contents
| • | Advancements in Display Technology. The increasing proliferation of HD displays in television and in mobile connected devices such as laptops, smartphones and tablets is accelerating HD video content growth. According to Nielsen, 67% of U.S. households with televisions now have a HD television and receive HD signals; meanwhile, Apple has introduced HD displays in their iPhones, iPads and MacBooks. These trends highlight the new paradigm of escalating consumer expectations of video quality, such that video is comparable to high-resolution still images, which drove the transition from standard definition to HD, and will drive the transition to Ultra High-Definition, or UHD. UHD is commonly referred to as 4K video, which supports up to 4096x2160 pixels per frame, more than four times greater resolution than the current Full HD standard, which supports up to 1920x1080 pixels per frame. |
| • | Requirement for Efficient Video Compression. HD video is increasingly a requirement for consumer video cameras, IP security cameras and for the broadcast of television programs, whether via cable, satellite or IP networks. Uncompressed HD video requires massive amounts of digital data to represent it, necessitating the need for H.264 video compression technology to reduce data rates for storage or for transmission of video over networks with limited bandwidth. In consumer cameras, the efficiency of the encoding has a significant impact on video quality, recording time and battery life. In IP security cameras, encoding efficiency is important for realizing the highest image quality possible over bandwidth-limited networks, and for minimizing the costs of cloud-based storage of video content. Additionally, the ability to actively adapt the encoding bit-rate based on changing network bandwidth availability provides the highest possible video quality and enables network traffic management. As consumers increasingly view video on smartphones and tablets, in addition to traditional televisions and PCs, the ability to trans-rate video content in real time to the various resolutions and bit-rates supported by the smartphones or tablets is essential. |
Evolving End User Requirements for Video Capture and Distribution
Camera users have evolving requirements with respect to connectivity, simplicity and portability including:
| • | Connectivity. Integrated wireless capability using mobile broadband protocols and wireless links such as Bluetooth and Wi-Fi is becoming an increasingly prevalent feature across many classes of video capture devices. Rather than storing images and video to local media and transferring to a computer later, consumers are demanding the ability to transfer and share their video content in real-time to websites such as YouTube, Facebook and online media albums. Consumers want to watch, control and capture real-time video on their smartphones through simple cameras with embedded connectivity, high-performance video and image processing and a rugged form factor. Additionally, consumers are requiring high-performance cameras with robust connectivity to enable security functionalities such as remote monitoring over cloud infrastructure. |
| • | Simplicity. Device manufacturers and software developers continually struggle to balance enhanced functionality with a simpler user experience. Consumer preference has moved away from video capture devices with multiple buttons and controls to less complex devices with fewer buttons and more intuitive graphical user interfaces and software applications. Consumers also expect video and images to be captured and stored in a format which can be edited, displayed and shared quickly, easily and without the need to upload to a computer. To provide consumers with increasingly easy-to-use devices and interfaces, video and image capture, OEMs must be able to embed more intelligence in their device platforms to facilitate devices that strike a balance between making decisions for the user and providing the user with the desired level of control. For example, smartphone companion cameras are utilizing easy-to-use camera devices, with no display and limited control functionality on board, and leveraging the intuitive graphical user interfaces of smartphones as the command and control center for view finding and for video playback or sharing. |
| • | Portability and Rugged Durability. Consumers are demanding increasingly smaller and portable video capture devices with rugged durability that capture high-quality images and video. Specifically, |
6
Table of Contents
| consumers want to capture high-quality video and images while being active, such as with wearable sports cameras, or with cameras embedded in accessories such as sunglasses, record possible events such as an accident with an automotive aftermarket camera, or capture security related footage from an IP security camera in an outdoor environment. These growing use cases are all being enabled by technology that allows high performance, low power, still image and video capture in rugged form factors. |
Evolving requirements for cameras and broadcast infrastructure equipment typically center around video definition and frame rates, ability to capture high-quality still images and video and transcoding capability:
| • | Higher Definition and Higher Frame Rates. The demand for enhanced video resolution has been increasing in both the camera and infrastructure markets. Consumers expect video quality to be closer to high-resolution still images, which continues to drive the transition from standard definition to Full HD and beyond. Similarly, as new display technologies enable higher resolutions and higher frame rates, we believe consumer demand will drive the requirement for UltraHD or 4K video capture and transmission. In the market for DSCs, for example, resolution, measured in megapixels, has been the primary factor in consumers’ purchasing decisions. In the infrastructure market, consumer demand for viewing Full HD content has prompted broadcasters to seek high-performance solutions. |
| • | Ability to Capture High-Quality Still Images and Video. Historically, consumers have purchased devices that either provide high-quality image capture or record high-quality video. This was the result of consumer preference, as reasonably priced and sized devices would provide only one of those attributes. However, as a result of technological improvements, consumer devices that deliver both attributes have proliferated to the point that a pure video capture device or still image capture device is becoming uncommon. Increasingly, devices are able to simultaneously capture HD video and high-quality still images without adversely impacting the quality of either. In the future, we believe consumers will demand devices that can capture Full HD video while encoding a second mobile resolution video for uploading to the Internet or streaming over a Wi-Fi network. |
| • | Transcoding. The ability to decode and simultaneously re-encode high-quality video streams in multiple formats, which is commonly referred to as transcoding, using dense, small form factor and power-efficient hardware is a critical requirement for content providers and the video cloud. Given the differing connection speeds and capacities in current communication networks, broadcasters must be able to deliver video to consumers at varying bit-rate and quality levels. Furthermore, the significant increase in the number and types of devices capable of displaying video, from HD televisions to cell phones, requires broadcasters and other distributors to have the capability to provide video content in multiple formats and source resolutions. |
Impact of Shifts in Consumer Preferences on Video and Image Capture Devices
The video and image capture device market is impacted by consumer preferences as to form factor and functionality. For example, improved smartphone video capture capabilities, and rapid adoption by consumers of devices with such capabilities, have led to the recent decline of pocket video camera and digital camcorder markets. This movement in consumer preferences has led to growth in more specialized video and image capture devices such as wearable sports cameras, automotive aftermarket cameras and IP security cameras.
Limitations of Current Video Content Creation and Distribution Solutions
A device that captures video includes four primary components: a lens, an image sensor, a video processor and storage memory. The video processor is the most complex of these four primary components as it converts raw video input into a format that can be stored and distributed efficiently. Optimizing this process represents a significant engineering challenge that only a limited number of companies have successfully overcome. The processor is based on a suite of signal processing and compression algorithms implemented using hardware specifically built to process video and audio and is supported by system and software architectures to manipulate, store and distribute data efficiently.
7
Table of Contents
Given the complexity of video processing, meeting all consumer demands in a single device is challenging. As a result, solution providers often compromise on one or more key specifications. For example, in portable consumer devices and networked video applications where power consumption and device size are critical attributes, many video capture devices available in the market today sacrifice image quality in order to achieve low power consumption and a compact form factor.
The performance of video and image compression technology has become increasingly important as file sizes have grown and video traffic volumes have increased. Many current compression solutions are developed from architectures that were originally optimized for still image processing needs or lower resolution videos. As a result, these solutions use inefficient video compression algorithms, which limit overall system performance, increase storage and power consumption requirements and slow video-transfer speeds and upload times. In the infrastructure market, solutions based on inefficient architectures tend to consume more power and have bigger form factors, thereby lowering the number of available channels per encoder and limiting the ability to deliver multiple streams of video simultaneously.
Many leading camera OEMs have used proprietary technologies to try to address these technical challenges. However, many of these OEMs are vertically integrated and generally allocate fewer resources to semiconductor design solutions than are necessary, and hence are not generally able to produce low-cost leading edge technologies quickly and efficiently.
Our Solution
Our video and image processing SoCs, based on our proprietary technology platform, are highly configurable and satisfy the needs of numerous applications in the camera and infrastructure markets. Our HD video and image processing solutions enable our customers to deliver exceptional quality video and still imagery in small, easy-to-use devices with low power requirements. Our customized software solution includes middleware, firmware and software development kits to optimize system-level functions and allow rapid integration of our solution and specification adjustments.
| • | Camera Market. In addition to enabling small device size and low power consumption, our SoC solutions make possible differentiated functionalities such as simultaneous video and image capture, multiple-stream video capture and wireless connectivity. For example, our solutions enable wearable cameras and DSCs that transmit captured video and images to connected devices and the Internet, including social media sites. Additionally, our SoC solutions enable HD and UHD IP security cameras that transmit HD and UHD video efficiently to provide remote monitoring and control. A more recent use case that has become a significant part of our revenue is the automotive aftermarket camera, particularly in emerging markets such as China, Russia, South Korea and Taiwan, which allows consumers to record video constantly and automatically from their automobiles so that there is visual evidence of accidents or other incidents. |
| • | Infrastructure Market. Our SoC solutions enable high-performance, low power consumption broadcast devices with small form factors, thereby reducing bandwidth needs, energy usage and costs of additional hardware. Our solutions enable an increased number of channels per encoder due to high compression efficiencies. They also make possible a new class of transcoders that can simultaneously encode and stream multiple video formats to different end devices and can change video resolution and transmission rates based on available bandwidth and the display capability of receiving devices. |
| • | New and Emerging Markets. We intend to continue to customize and adapt our solutions to meet the needs of additional large and emerging markets. For example, we are leveraging our expertise in still image and video capture to pursue new opportunities within the DSC market, such as mirrorless cameras. According to IDC, the mirrorless camera market is expected to grow from 3.5 million units in 2011 to 13.1 million units in 2015 representing a 40% CAGR. Additionally, we are working with end customers to develop video capture devices for emerging wearable camera applications. |
8
Table of Contents
Our Competitive Strengths
Our platform technology solutions provide performance attributes that meet the highest standards of the infrastructure market, satisfy the stringent demands of the camera market and enable integration of HD video and image capture capabilities in portable devices. We believe that our leadership in HD video and image processing applications is the result of our competitive strengths, including:
| • | High-Performance, Low Power Video and Image Algorithm Expertise. Our solutions provide Full HD video at exceptional resolution and frame rates. Our extensive algorithm expertise, which facilitates efficient video and image compression, enables our solutions to achieve low power consumption without compromising performance. Our solutions achieve high storage and transmission efficiencies through innovative and complex video and image compression algorithms that significantly reduce the output bit-rate. This smaller storage footprint directly benefits the performance of our solutions in several ways including lower memory storage requirements and reduced bandwidth needs for transmission, which is more conducive to sharing content between devices. These benefits are particularly important in transcoding and video cloud applications. Our solutions can enable high-performance image capture of up to 30 16-megapixel still images per second. Our solutions can deliver clear images in low light conditions because of our 3D Motion Compensated Temporal Filtering, or MCTF, and multiple exposure processing. Additionally, our Wide Dynamic Range, or WDR, processing capabilities provide greater dynamic range between the lightest and darkest areas of an image, permitting captured still images to reveal details that would otherwise be lost against a bright background. The confluence of our image and video processing expertise allows us to penetrate high-performance applications such as the high-end DSC market. |
| • | Proprietary Video Processing Architecture. Our proprietary video processing architecture is designed to efficiently integrate our advanced compression algorithms into our SoCs to offer exceptional storage and transmission efficiencies at lower power across multiple products and end markets. We engineered our very-large-scale integration, or VLSI, architecture with a focus on high-performance video compression as opposed to solutions that are based on a still image processing architecture with add-on video capabilities. Due to our primary focus on video processing compression, we believe that our solutions offer exceptional performance metrics with lower power requirements and reduced die sizes. Our integrated algorithms and architecture also enable simultaneous processing of multiple video and image streams. |
| • | Highly-Integrated SoC Solutions Based on a Scalable Platform. Our product families leverage our core high-performance video processing architecture, combined with an extensive set of integrated peripherals, which enables our platform to address the requirements of a variety of applications and end markets. Traditional solutions have generally relied upon significant customization to meet the specific requirements of each market, resulting in longer design cycles and higher development costs. Our flexible and highly-scalable platform enables us to address multiple markets with reduced design cycles and costs. Our platform also enables us to develop fully integrated SoC solutions that provide the system functionalities required by our customers on a single chip. Our extensive system integration expertise enables us to integrate core video processing functionality with many peripheral functions such as multiple inputs and outputs, lens controllers, flash controllers and remote control interfaces to reduce system complexity and interoperability issues. Furthermore, we have successfully migrated our process nodes from 130nm to 32nm since our founding and have a proven track record of developing and delivering multiple solutions with first-pass silicon success. |
| • | Comprehensive and Flexible Software. Our years of investment in developing and optimizing our comprehensive and flexible software serve as the foundation of our high-performance video application solutions. Key components of our software include highly customized middleware that integrates many unique features for efficient scheduling and other system-level functions, and firmware that is optimized to reduce power requirements and improve performance. In addition, we provide to our customers fully-functional software development kits with a suite of application programming |
9
Table of Contents
| interfaces, or APIs, which allow them to rapidly integrate our solution, adjust product specifications and provide additional functionality to their systems, thereby enabling them to differentiate their product offerings and reduce time to market. |
| • | Broad Domain Experience in Video Processing and Delivery. Our engineering team, whose core members have worked together for over 15 years, includes leading innovators in video processing and delivery. Our VLSI team has extensive multi-gigahertz, superscalar CPU design experience from Intel Corporation, Advanced Micro Devices, Inc. and Sun Microsystems, Inc. Our team has developed many industry firsts such as the first single chip MPEG-2 encoder, the first consumer MPEG-2 transcoding SoC, the first single chip HD H.264 encoder and camera SoC and the first 1080p60 infrastructure SoC. Our team has developed an ecosystem of high-performance software and hardware solutions that reduce customer system development time and cost, thus allowing for accelerated time-to-market. |
| • | Key Global Relationships with Leading OEM and ODM Customers. Our solutions have been designed into top-tier OEM brands currently in the market. We have established collaborative relationships with most of the leading ODMs and OEMs that serve our primary markets. Our collaborations with ODMs give us extensive visibility into critical product design, development and production timelines, and keep us at the forefront of technological innovation. We actively engage with OEMs on design specifications and with ODMs on product implementation. Additionally, approximately 76% of our employees are located in Asia, primarily in Taiwan and China, strategically placing us near many of our customers and allowing us to provide superior sales, design and technical support and to strengthen our customer relationships. |
Our Strategy
Our objective is to be the leading provider of processing solutions for the capture, sharing and display of HD video and still imagery. Key elements of our strategy are to:
| • | Extend Our Technology Leadership. We intend to continue to invest in the development of video and image processing solutions designed to meet evolving consumer demands such as higher performance, lower cost, lower power, connectivity and interoperability with other connected devices. We intend to leverage our existing technical expertise and continue to invest significant resources both in our current solutions and in developing solutions that address new markets as well as new segments of existing markets. We will continue to recruit and develop expertise in the area of high-performance processor design and algorithm and software development, and build on our proprietary intellectual property position in HD video processing. We believe that continued investment in our proprietary technology platform will enable us to increase our technological leadership in terms of the performance and the functionality of our solutions. Examples of our technology leadership are the recent introductions of our A7L and A9 SoCs. Our A7L SoC delivers full 1080p HD H.264 video at 60 frames per second and allows for the capture of 30 16-megapixel still images per second. Our A7L SoC enables consumers with connected cameras to simultaneously capture Full HD video while encoding a second, mobile resolution video for uploading to the Internet or streaming over a Wi-Fi network. Our A9 SoC captures full 4K video at 30 frames per second initially enabling the development of cost effective video capture devices for the consumer and professional IP security camera markets. |
| • | Deepen and Expand Our Customer Relationships. We intend to continue to build and strengthen our relationships with existing customers and also diversify our customer base. Our close relationships with leading ODMs and OEMs provide us with insight into product roadmaps and trends in the marketplace, which we intend to leverage to identify new opportunities and applications for our solutions, and we intend to continue to actively engage with ODMs and OEMs at every stage of their design cycles. Once integrated into a customer’s design, our product lifecycles tend to be for the life of the product, and we intend to maintain our incumbent position with our customers by continually improving our solutions to meet their evolving needs. An example of an opportunity to expand our customer relationships is in the DSC camera market, where prospective camera end customers have heretofore primarily utilized |
10
Table of Contents
| internal resources to develop their video and image processing devices. We believe as video formats evolve toward UHD and beyond, complexity of design will greatly increase the required investment for in-house innovation, making high-performance merchant solutions, such as ours, more attractive to potential camera end customers. |
| • | Target New Applications Requiring Connectivity, HD Video Processing and Low Power. We intend to leverage our core technology platform to address other processing markets that have high-performance, robust connectivity, low latency and low power requirements. Examples of markets that we are focused on penetrating are the wearable sports camera market, the market for automotive aftermarket cameras, the IP security camera market and the mirrorless DSC market. Our camera solutions’ ability to provide connectivity and simultaneous high-quality video and image capture in a power efficient system have facilitated preliminary engagements with emerging leaders in the mirrorless and DSC camera markets. Additionally, our high-performance video and image capture, connectivity, capability to stream HD video efficiently and power efficiency have enabled us to develop relationships with leaders in the wearable camera market, the market for automotive aftermarket cameras and the IP security camera market, which we intend to expand as those markets continue to develop. |
| • | Leverage Our Global Business Infrastructure. We are committed to continue growing our global infrastructure. Our proximity to key customers due to our extensive presence in Asia has enabled us to build strong relationships with leading ODMs and OEMs. We intend to increase our investments in research and business development personnel in Asia to further strengthen these relationships. We believe that growing our highly-integrated global organization also provides us with a favorable cost structure while enabling continued advancement of our technology. Our global structure provides us access to an international pool of engineering and management talent, allowing us to recruit and retain highly accomplished personnel with proven expertise in video and image processing solutions. |
Products
We are currently shipping production volumes of our SoCs that incorporate the fourth generation of our core technology platform. We provide customers with guidelines known as reference designs so that they can efficiently incorporate our solutions in their product designs.
Our technology platform delivers a high-performance, low power video and image processing solution that can be tailored with our software development kits to meet the specific needs of multiple end markets. We currently sell our solutions into the following end markets:
| • | Broadcast and Traffic Management. Broadcasting equipment that enables HD video to be distributed through satellite, cable and IP infrastructures comprises this market. Our flexible digital signal processor, or DSP, architecture, low power requirements and encoding expertise allow our end customers to compress and thus transmit video efficiently optimizing bandwidth and power usage. |
| • | Wearable Sports Cameras. Durable cameras that provide HD video quality increasingly include embedded connectivity to share and display video. Our low power, high-resolution and connected solution can be found in the majority of cameras in this end market. |
| • | Automotive Aftermarket Cameras. In several international markets, such as China, Russia, South Korea and Taiwan, small video cameras are mounted on board vehicles to record traffic accidents and help establish records for insurance and liability purposes. This market is still emerging, but has grown meaningfully over the last year. Our low power, high-performance, small form factor solutions are well suited for this market. |
| • | IP Security Cameras. These cameras are used for monitoring and security in consumer and professional applications. Our solutions enable streaming and embedded intelligence which allows these applications to provide continuous monitoring and additional functionality, such as motion sensing or facial recognition. |
11
Table of Contents
| • | Digital Still Cameras. This end market is evolving from simple still cameras to devices incorporating advanced functionalities, such as Full HD video capture. The DSC market is further segmented into high-end and low-end categories, which are differentiated by image and video quality supported by a spectrum of CMOS sensors and the quality of lenses. We compete in the high-end category of the DSC market on the basis of our high-quality still image and video processing and low power consumption. |
| • | Telepresence Cameras. This end market encompasses HD videoconferencing and consumer Skype cameras. For example, our iOne SoC combines high image quality with the ability to run full duplex HD video applications such as Skype. |
| • | Camcorders. Our high-performance and low power architecture enables improved consumer experience with Full HD video capture. In addition, our ability to provide high-resolution still image capture and HD video capture simultaneously enables a hybrid capability for the consumer. |
| • | Pocket Video Cameras. These compact single-function video cameras are used for impromptu video capture. Our low power, high-performance attributes, in addition to our small form factor, are ideally suited for these pocket-sized devices, which have large internal storage, long recording time and finite battery life. However, the proliferation of smartphones with enhanced video capture abilities has significantly decreased the size of this market. |
The chart below describes our current product lines and target markets:
Technology
Our semiconductor processing solutions enable HD and UHD (up to 3840x2160p30) video and image capture, video compression, sharing and display while offering exceptional power, size and performance characteristics.
12
Table of Contents
Key differentiators of our technology include:
| • | algorithms to compress video signals with high compression and power efficiency at multiple operating points; |
| • | algorithms for high-speed image processing with high image quality and power efficiency; |
| • | scalable architecture that covers the gamut of consumer and professional HD video camera and encoding applications from Full HD to UHD performance levels; |
| • | low-power architecture with minimal system memory footprint; |
| • | programmable architecture that balances flexibility, quality, power and die size; and |
| • | full software development kit comprised of APIs to facilitate integration into customers’ products. |
Our technology platform, comprised of our video and image processors, is based on a high-performance, low-power architecture supported by a high level of system integration. The building blocks of our platform are illustrated below:
Our technology platform enables the capture of high-resolution still images and high-definition video while simultaneously encoding HD video for high-quality storage and lower resolution video for Internet sharing and wireless networking. Dual stream video capture enhances the consumer experience by offering the ability to instantaneously share captured video without having to go through a transcoding process.
AmbaClear
Our proprietary image signal processing architecture, known as AmbaClear, incorporates advanced algorithms to convert raw sensor data to high-resolution still and high-definition video images concurrently. Image processing algorithms include sensor, lens and color correction, demosaicing, which is a process used to reconstruct a full color image from incomplete color samples, noise filtering, detail enhancement and image format conversion. For example, raw sensor data can be captured at up to 16-megapixel resolution at 44 frames per second and filtered down to two megapixels for HD video processing while selected 16-megapixel frames are concurrently processed by the still image processor. This image processing reduces noise in the input video and improves video quality resulting in better storage and transmission efficiencies. We believe that our continued investment in image processing innovations will provide us with market opportunities in the high-end DSC and mirrorless markets, where camera vendors primarily compete on still image quality and capture performance.
13
Table of Contents
AmbaCast
Our proprietary HD video processing architecture, known as AmbaCast, incorporates advanced algorithms for motion estimation, motion-compensated temporal filtering, mode decision and rate control. Successful implementation of these computationally intensive steps has helped us maximize compression efficiency. We support all three compression profiles—baseline, main and high—as specified in the H.264 standard.
Our solutions for the broadcast infrastructure market allow OEMs to offer both the H.264 and MPEG-2 encoding formats. Although H.264 has become the industry standard, MPEG-2 is still widely used as the format of both standard and high-definition digital television signals that are broadcast by terrestrial (over-the-air), cable and direct broadcast satellite television systems. All of our video encoding solutions have decoding capabilities as well.
Design Methodology
The success of our technology platform stems from our algorithm-driven design methodology. We test and verify our algorithms on our proprietary architectural model prior to implementing our algorithms in hardware. Our advanced verification methodology validates our approach through simultaneous modeling of architecture, algorithms and the hardware itself. This redundant approach enables us to identify and remediate any weaknesses early in the development cycle, providing a solid foundation on which we build our hardware implementation, and enhances our ability to achieve first-pass silicon success. We have a history of using several process nodes from 130nm through 32nm. We possess extensive expertise in video and imaging algorithms as well as deep sub-micron digital and mixed-signal design experience.
SoC Solution
Our SoC designs integrate HD video processing, image processing, applications processing and system functions onto a single chip, delivering exceptional video and image quality with differentiated features, including advanced wireless connectivity. Our multi-core DSP architecture is highly scalable and balances software programmability with hardware-accelerated performance to achieve extremely low power consumption and maximize camera battery life. The programmable architecture provides our customers with the flexibility they need to quickly develop a wide range of differentiated products. Additionally, our SoCs integrate mixed signal (analog/digital) functionality and high speed interfaces required for interfacing to advanced high-speed CMOS sensors and industry standard interfaces such as USB 2.0 and HDMI 1.4.
Our A9 SoC, which we introduced in January, 2013, supports 4K Ultra HD video resolution at 30 frames per second as well as high frame-rate video for capturing fast-action sports with 1080p video at 120 frames per second or 720p video at 240 frames per second. Our A9 SoC includes dual core ARM® Cortex™-A9 CPUs providing the performance required for advanced applications including wireless connectivity to smartphones for video streaming or image sharing. Fabricated in 32nm CMOS technology, the A9 SoC offers very low power consumption, enabling 4K resolution video cameras with small form factors and extended battery life.
Software Development Kit for Connectivity
Our video streaming technology enables the camera’s image to be previewed on a smartphone, so the camera can be optimally set up and controlled remotely. To enable this functionality, end customers deploy our Wireless Camera Developer’s Kit, or the Kit, which enables the design of cameras that combine still photography and Full HD video with wireless video streaming to smartphones. The Kit leverages our multi-stream encoding capability which supports the recording of Full HD video while simultaneously recording and streaming a second stream to the smartphone. The Kit is available for our A7L SoC product family, providing full 1080p60 HD video with photography and low power consumption. This Kit enables accelerated end customer product development and allows consumers to enjoy the benefit of a ruggedized sports camera or the advanced photographic capabilities of a dedicated DSC with smartphones that enable remote control, viewing, playback and Internet video sharing.
14
Table of Contents
Transcoding Expertise
We were the first to market with a single-chip broadcast-class high definition H.264 CODEC. Our current solution, the A6 Broadcast Encoder/Transcoder solution delivers high-quality 1080p60 encode and 1080i60 transcode in a small form-factor and power-efficient device suited for high-density applications. Targeting H.264 and MPEG-2 head-end encoders and high-density transcoders in the infrastructure market, our A6 SoC deploys features such as rate-distortion optimization, a method of improving video quality and compression, and multipass, a technique for encoding video into another format using multiple passes to improve quality. Our A6 SoC provides the ability to decode and simultaneously re-encode high-quality video streams into either H.264 or MPEG-2 formats. This facilitates the delivery of video to various consumer devices, such as personal computers, set-top boxes, smartphones and tablets, which require different formats at varying resolutions and bit-rates.
Customers
We sell our solutions to leading ODMs and OEMs globally. In the camera market, our video processing solutions are designed into products from leading OEMs including GoPro, Robert Bosch GmbH and affiliated entities and Samsung, who source our solutions from leading ODMs including Ability Enterprise Co., Ltd., Asia Optical Co. Inc., Chicony Electronics Co., Ltd., DXG Technology Corp., Hon Hai Precision Industry Co., Ltd. and Sky Light Digital Ltd. In the infrastructure market, our solutions are designed into products from leading OEMs including Harmonic Inc., Motorola Mobility, Inc. (owned by Google, Inc.) and Telefonaktiebolaget LM Ericsson, who source our solutions from leading ODMs such as Plexus Corp.
Sales to customers in Asia accounted for approximately 87%, 84% and 94% of our revenue in the fiscal years ended January 31, 2013, 2012 and 2011, respectively. As many of our OEM end customers or their ODM manufacturers are located in Asia, we anticipate that a majority of our revenue will continue to come from sales to customers in that region. Although a large percentage of our sales are made to customers in Asia, we believe that a significant number of the products designed by these customers and incorporating our SoCs are then sold to consumers globally. For example, GoPro, a leading OEM camera manufacturer, uses multiple ODMs in Asia while selling many of their products that incorporate our solutions in the United States and Europe. In fiscal year 2013, 78% of our revenue was attributable to sales of our solutions into the camera market and 22% of our revenue was attributable to sales of our solutions into the infrastructure market. In fiscal year 2012 and 2011, 75% of our revenue was attributable to sales of our solutions into the camera market and 25% of our revenue was attributable to sales of our solutions into the infrastructure market, respectively. To date, all of our sales have been denominated in U.S. dollars.
We work closely with our end customer OEMs and ODMs throughout their product design cycles that often last six to nine months for the camera market, though new products within the camera market may have longer design cycles, and 12 to 18 months for the infrastructure market. As a result, we are able to develop long-term relationships with our customers as our technology becomes embedded in their products. Consequently, we believe we are well positioned to not only be designed into our customers’ current products, but also to continually develop next-generation, HD video and image processing solutions for their future products.
The product life cycles in the camera market typically range from six to 18 months, but could last up to three years or more. The product life cycles in the infrastructure market typically range from two to five years, where new product introductions occur less frequently. For many of our solutions, early engagement with our customers’ technical staff is necessary for success. To ensure an adequate level of early engagement, our application and development engineers work closely with our customers to adjust product specifications and add functionality into their products.
Approximately 63%, 80% and 91% of our revenue was derived from sales through our logistics provider, Wintech Microelectronics Co., Ltd., or Wintech, for the fiscal years ended January 31, 2013, 2012 and 2011,
15
Table of Contents
respectively. In addition, in the fiscal year ended January 31, 2013, Chicony Electronics Co., Ltd., or Chicony, a large ODM customer in Asia, represented 16% of our revenue. In previous years, Chicony purchased our products from Wintech. We currently rely, and expect to continue to rely, on a limited number of customers for a significant portion of our revenue. In fiscal year 2013, sales directly and through our logistics providers to our five largest customers collectively accounted for approximately 37% of our revenue and sales to our 10 largest customers collectively accounted for approximately 48% of our revenue. In fiscal year 2012, sales directly and through our logistics providers to our five largest customers collectively accounted for 46% of our revenue and sales to our 10 largest customers collectively accounted for approximately 62% of our revenue. In fiscal year 2011, sales directly and through our logistics providers to our five largest customers collectively accounted for 57% of our revenue and sales to our 10 largest customers collectively accounted for approximately 82% of our revenue.
Sales and Marketing
We sell our solutions worldwide using both our direct sales force and logistics providers. We have direct sales personnel covering the United States and Asia, and we operate sales offices in Santa Clara, California and Hong Kong, and business development offices in China, Japan, South Korea and Taiwan. In addition, in each of these locations, we employ a staff of field applications engineers to provide direct engineering support locally to our customers.
Our sales cycles typically require a significant investment of time and a substantial expenditure of resources before we can realize revenue from the sale of our solutions, if any. Our typical sales cycle consists of a multi-month sales and development process involving our customers’ system designers and management and our sales personnel and software engineers. If successful, this process culminates in a customer’s decision to use our solutions in its system, which we refer to as a design win. Our sales efforts are typically directed to the OEM of the product that will incorporate our video and image processing solution, but the eventual design and incorporation of our SoC into the product may be handled by an ODM on behalf of the OEM. Volume production may begin within six to 18 months after a design win, depending on the complexity of our customer’s product and other factors upon which we may have little or no influence. Once our solutions have been incorporated into a customer’s design, they are likely to be used for the life cycle of the customer’s product. Conversely, a design loss to a competitor will likely preclude any opportunity for future revenue from such customer’s product.
The end markets into which we sell our products have seen significant changes as consumer preferences have evolved in response to new technologies. As a result, the composition of our revenue may differ meaningfully during periods of technology or consumer preference changes. For example, in fiscal year 2011, pocket video revenue represented approximately 40% of total revenue. The proliferation of smartphones and their ability to capture high-quality video and still images significantly impacted this market, decreasing pocket video cameras’ contribution to approximately 1.2% of total revenue in fiscal year 2013. Conversely, our revenue derived from the wearable sports camera market, the IP security camera market and the market for automotive aftermarket cameras supported total revenue growth in fiscal year 2013 despite the sharp decline in our pocket video revenue. We expect shifts in consumer use of video capture to continue to change over time, as more specialized use cases emerge and video capture continues to proliferate.
Our sales are generally made pursuant to purchase orders received approximately four to 18 weeks prior to the scheduled product delivery date, depending upon agreed terms with our customers and the current manufacturing lead time at the time the purchase order is received. These purchase orders may be cancelled without charge upon notification within an agreed period of time in advance of the delivery date, which is typically 30 days. Due to the scheduling requirements of our foundry, assembly and test contractors, we generally provide our contractors with our production forecasts and place firm orders for products with our suppliers up to 20 weeks prior to the anticipated delivery date, usually without a purchase order from our own customers. Our standard warranty provides that our SoCs containing defects in materials, workmanship or performance may be returned for a refund of the purchase price or for replacement, at our discretion.
16
Table of Contents
Manufacturing
We employ a fabless business model and use third-party foundries and assembly and test contractors to manufacture, assemble and test our solutions. This outsourced manufacturing approach allows us to focus our resources on the design, sales and marketing of our solutions and avoid the cost associated with owning and operating our own manufacturing facility. Our engineers work closely with foundries and other contractors to increase yields, lower manufacturing costs and improve quality. In addition, we believe outsourcing many of our manufacturing and assembly activities provides us the flexibility needed to respond to new market opportunities, simplifies our operations and significantly reduces our capital requirements. We do not have a guaranteed level of production capacity from any of our suppliers’ facilities to produce our solutions. We carefully qualify each of our suppliers and their subcontractors and processes in order to meet the extremely high-quality and reliability standards required of our solutions.
Wafer Fabrication
We have a history of using several process nodes from 130nm through 32nm. We currently manufacture the majority of our solutions in 65nm, 45nm and 32nm silicon wafer production process geometries utilizing the services of several different foundries. Currently, the majority of our SoCs are supplied by Samsung in South Korea, from whom we have the option to purchase both fully-assembled and tested products as well as tested die in wafer form for assembly. We also have products supplied by Global UniChip Corporation, or GUC, in Taiwan, from whom we purchase fully-assembled and tested products. The wafers used by GUC in the assembly of our products are manufactured by Taiwan Semiconductor Manufacturing Co., Ltd., or TSMC, in Taiwan.
Assembly and Testing
Samsung subcontracts the assembly and initial testing of the assembled chips it supplies to us to Signetics Corporation and STATS ChipPAC Ltd. In the case of purchases of tested die from Samsung, we contract the assembly to Advanced Semiconductor Engineering, Inc., or ASE. GUC subcontracts the assembly of the products it supplies to us to ASE and Powertech Technology Inc. Final testing of all of our products is handled by King Yuan Electronics Co., Ltd. or by Sigurd Corporation under the supervision of our engineers. All test software and related processes for our products are developed by our engineers. We continually monitor the results of testing at all of our test contractors to ensure that our testing procedures are properly implemented.
As part of our total quality assurance program, our quality management system has been certified to ISO 9001:2000 standards. Our foundry vendors are also ISO 9001 certified.
Research and Development
We believe our technology is a competitive advantage and engage in substantial research and development efforts to develop new products and integrate additional features and capabilities into our HD video processing solutions. We believe that our continued success depends on our ability to both introduce improved versions of our existing solutions and to develop new solutions for the markets that we serve. Our research and development team is comprised of both semiconductor and software designers. Our semiconductor design team has extensive experience in large-scale semiconductor design, including architecture description, logic and circuit design, implementation and verification. Our software design team has extensive experience in development and verification of software for the HD video market. Because the integration of hardware and software is a key competitive advantage of our solutions, our hardware and software design teams work closely together throughout the product development process. The experience of our hardware and software design teams enables us to effectively assess the tradeoffs and advantages when determining which features and capabilities of our solutions should be implemented in hardware and in software.
We have assembled a core team of experienced engineers and systems designers in three research and development design centers located in the United States, China and Taiwan.
17
Table of Contents
For the fiscal years ended January 31, 2013, 2012 and 2011, our research and development expense was $42.8 million, $37.6 million and $34.4 million, respectively.
Competition
The global semiconductor market in general, and the video and image processing markets in particular, are highly competitive. We expect competition to increase and intensify as more and larger semiconductor companies enter our markets. Increased competition could result in price pressure, reduced profitability and loss of market share, any of which could materially and adversely affect our business, revenue and operating results.
Currently, our competitors range from large, international companies offering a wide range of semiconductor products to smaller companies specializing in narrow markets. Our primary competitors in the camera market include CSR Plc (who acquired Zoran Corporation in August 2011), Fujitsu Limited, HiSilicon Technologies Co., Ltd. and Texas Instruments Incorporated, as well as vertically integrated divisions of consumer device OEMs, including Canon Inc., Panasonic Corporation and Sony Corporation. In the automotive aftermarket camera market, we compete against Core Logic, Inc., Novatek Microelectronics Corp. and Sunplus Technology Co. Ltd. Our primary competitors in the infrastructure market include Intel Corporation, Magnum Semiconductor, Inc. and Texas Instruments Incorporated. Certain of our customers and suppliers also have divisions that produce products competitive with ours. We expect competition in our current markets to increase in the future as existing competitors improve or expand their product offerings and as potential new competitors, such as Broadcom Corporation, NVIDIA Corporation, Qualcomm Incorporated and Samsung, enter these markets.
Our ability to compete successfully depends on elements both within and outside of our control, including industry and general economic trends. Many of our competitors are substantially larger, have greater financial, technical, marketing, distribution, customer support and other resources, are more established than we are, and have significantly better brand recognition and broader product offerings which may enable them to better withstand adverse economic or market conditions in the future.
Our ability to compete successfully in the rapidly evolving HD video market depends on several factors, including:
| • | the design and manufacturing of new solutions that anticipate the video processing and integration needs of our customers’ next-generation products and applications; |
| • | performance, as measured by video and still picture image quality, resolution and frame processing rates; |
| • | power consumption; |
| • | the ease of implementation by customers; |
| • | the strength of customer relationships; |
| • | the selection of the foundry process technology and architecture tradeoffs to meet customers’ product requirements in a timely manner; |
| • | reputation and reliability; |
| • | customer support; and |
| • | the cost of the total solution. |
We believe we compete favorably with respect to each of these factors, particularly because our solutions typically provide high-performance and low power consumption video, efficient integration of our advanced algorithms, exceptional storage and transmission efficiencies at lower power, highly-integrated SoC solutions
18
Table of Contents
based on a scalable platform, and comprehensive and flexible software. We cannot ensure, however, that our solutions will continue to compete favorably or that we will be successful in the face of increasing competition from new products introduced by existing or new competitors.
Intellectual Property
We rely on a combination of intellectual property rights, including patents, trade secrets, copyrights and trademarks, and contractual protections, to protect our core technology and intellectual property. As of January 31, 2013, we had 17 issued and allowed patents in the United States plus nine additional continuation patents, three issued patents in China, one issued patent in Japan and 34 pending and provisional patent applications in the United States. The issued and allowed patents in the United States expire beginning in 2024 through 2031. Many of our issued patents and pending patent applications relate to image and video processing and HD video compression.
We may not receive competitive advantages from any rights granted under our patents, and our patent applications may not result in the issuance of any new patents. In addition, any patent we hold may be opposed, contested, circumvented, designed around by a third-party or found to be unenforceable or invalidated. Others may develop technologies that are similar or superior to our proprietary technologies, duplicate our proprietary technologies or design around patents owned or licensed by us.
In addition to our own intellectual property, we also use third-party licenses for certain technologies embedded in our SoC solutions. These are typically non-exclusive contracts provided under royalty-accruing or paid-up licenses. These licenses are generally perpetual or automatically renewed for so long as we continue to pay any maintenance fees that may be due. To date, maintenance fees have not constituted a significant portion of our capital expenditures. While we do not believe our business is dependent to any significant degree on any individual third-party license, we expect to continue to use and may license additional third-party technology for our solutions.
We generally control access to and use of our confidential information through employing internal and external controls, including contractual protections with employees, contractors and customers. We rely in part on U.S. and international copyright laws to protect our mask work. All employees and consultants are required to execute confidentiality agreements in connection with their employment and consulting relationships with us. We also require them to agree to disclose and assign to us all inventions conceived or made in connection with the employment or consulting relationship.
Despite our efforts to protect our intellectual property, unauthorized parties may still copy or otherwise obtain and use our software, technology or other information that we regard as proprietary intellectual property. In addition, we intend to expand our international operations, and effective patent, copyright, trademark and trade secret protection may not be available or may be limited in foreign countries.
The semiconductor industry is characterized by vigorous protection and pursuit of intellectual property rights and positions, which has resulted in protracted and expensive litigation for many companies. Our customers have in the past received and, particularly as a public company, we expect that in the future we may receive, communications from various industry participants alleging infringement of their patents, trade secrets or other intellectual property rights by our solutions. In addition, certain of our end customers have been the subject of lawsuits alleging infringement of patents by products incorporating our solutions. Any lawsuits could subject us to significant liability for damages, invalidate our proprietary rights and harm our business and our ability to compete. Any litigation, regardless of success or merit, could cause us to incur substantial expenses, reduce our sales and divert the efforts of our technical and management personnel. In the event we receive an adverse result in any litigation, we could be required to pay substantial damages, seek licenses from third parties, which may not be available on reasonable terms or at all, cease sale of products, expend significant resources to develop alternative technology or discontinue the use of processes requiring the relevant technology.
19
Table of Contents
Employees
At January 31, 2013, we employed a total of 444 people, including 107 in the United States and 337 in Asia, primarily in China and Taiwan. We also engage temporary employees and consultants. None of our employees are either represented by a labor union or subject to a collective bargaining agreement. We have not experienced any work stoppages, and we consider our relations with our employees to be good.
Information concerning assets and revenue by geographic area is set forth in Item 6, “Selected Financial Data” and in Note 13, “Segment Reporting,” of Notes to Consolidated Financial Statements of this Form 10-K, both of which are incorporated herein by reference. Information concerning risks attendant to our foreign operations is set forth below in Item 1A, “Risk Factors.”
| ITEM 1A. | RISK FACTORS |
Certain factors may have a material adverse effect on our business, financial condition and results of operations. You should consider carefully the risks and uncertainties described below, in addition to other information contained in this Annual Report on Form 10-K, including our consolidated financial statements and related notes. The risks and uncertainties described below are not the only ones we face. Additional risks and uncertainties that we are unaware of, or that we currently believe are not material, may also become important factors that adversely affect our business. If any of the following risks actually occurs, our business, financial condition, results of operations, and future prospects could be materially and adversely affected. In that event, the trading price of our ordinary share could decline, and you could lose part or all of your investment.
Risks Related to Our Business and Our Industry
If our customers do not design our solutions into their product offerings, or if our customers’ product offerings are not commercially successful, our business would suffer.
We sell our video and image processing system-on-a-chip, or SoC, solutions to original equipment manufacturers, or OEMs, who include our SoCs in their products, and to original design manufacturers, or ODMs, who include our SoCs in the products that they supply to OEMs. We refer to ODMs as our customers and OEMs as our end customers, except as otherwise indicated or as the context otherwise requires. Our video and image processing SoCs are generally incorporated into our customers’ products at the design stage, which is referred to as a design win. As a result, we rely on OEMs to design our solutions into the products that they design and sell. Without these design wins, our business would be harmed. We often incur significant expenditures developing a new SoC solution without any assurance that an OEM will select our solution for design into its own product. Once an OEM designs a competitor’s device into its product, it becomes significantly more difficult for us to sell our SoC solutions to that OEM because changing suppliers involves significant cost, time, effort and risk for the OEM. Furthermore, even if an OEM designs one of our SoC solutions into its product, we cannot be assured that the OEM’s product will be commercially successful over time or at all or that we will receive or continue to receive any revenue from that OEM. For example, improved smartphone video capture capabilities, and rapid adoption of smartphones by consumers, have led to the decline of an entire category of pocket video cameras aimed at the casual video capture market. In fiscal year 2011, pocket video revenue represented approximately 40% of our total revenue. The proliferation of smartphones and their ability to capture high-quality video and still images significantly impacted this market, decreasing pocket video cameras’ contribution to approximately 15% of our total revenue in fiscal year 2012 and approximately 1.2% of our total revenue in fiscal year 2013. If other product categories incorporating our SoC solutions are not commercially successful, our revenue and business will suffer.
20
Table of Contents
We depend on a limited number of customers and end customers for a significant portion of our revenue. If we fail to retain or expand our customer relationships, our revenue could decline.
We derive a significant portion of our revenue from a limited number of ODMs who build products on behalf of a limited number of OEMs and from a limited number of OEMs to whom we ship directly. We anticipate that this customer concentration will continue for the foreseeable future. In fiscal year 2013, sales directly and through our logistics providers to our five largest customers collectively was estimated to be 37% of our revenue, and sales to our 10 largest customers collectively was estimated to be 48% of our revenue. In fiscal year 2013, our largest ODM customer was estimated to be 16% of our revenue and built products for several OEM customers as well as for its own brand. We believe that our operating results for the foreseeable future will continue to depend on sales to a relatively small number of customers and end-customers. In the future, these customers may decide not to purchase our SoC solutions at all, may purchase fewer solutions than they did in the past or may alter their purchasing patterns. As substantially all of our sales to date have been made on a purchase order basis, these customers may cancel, change or delay product purchase commitments with little or no notice to us and without penalty and may make our revenue volatile from period to period. For example, our largest OEM end customer in fiscal year 2011, Eastman Kodak Company, or Kodak, closed its camera division in January 2012. The loss of a significant customer like Kodak could happen again at any time and without notice, and such loss would likely harm our financial condition and results of operations.
In addition, our relationships with some customers may deter other potential customers who compete with these customers from buying our solutions. To attract new customers or retain existing customers, we may have to offer these customers favorable prices on our solutions. In that event, our average selling prices and gross margins would decline. The loss of a key customer, a reduction in sales to any key customer or our inability to attract new customers could seriously impact our revenue and harm our results of operations.
Achieving design wins is subject to lengthy competitive selection processes that require us to incur significant costs. Even if we begin a product design, a customer may decide to cancel or change its product plans, resulting in no revenue from such expenditures.
We are focused on selling our video and image processing solutions to ODMs and OEMs for incorporation into their products at the design stage. These efforts to achieve design wins typically are lengthy, especially in new markets we intend to address, and in any case can require us to both incur design and development costs and dedicate scarce engineering resources in pursuit of a single customer opportunity. We may not prevail in the competitive selection process and, even when we do achieve a design win, we may never generate any revenue despite incurring development expenditures. For example, in the past we had achieved a significant design win and projected substantial future revenue from that end customer as a result of that design win. Subsequently, based on changes in that end customer’s assessment of the consumer market, among other factors, the end customer abruptly shut down its business unit with which we achieved the design win, with no notice to us.
These risks are exacerbated by the fact that some of our end customers’ products, particularly in the camera market, likely will have short life cycles. Further, even after securing a design win, we have experienced and may again experience delays in generating revenue from our solutions as a result of the lengthy product development cycle typically required, if we generate any revenue at all as a result of any such design win.
Our customers generally take a considerable amount of time to evaluate our solutions. The typical time from early engagement by our sales force to actual product introduction runs from nine to 12 months for the camera market, and 12 to 24 months for the infrastructure market, though it may take longer in new markets we intend to address. The delays inherent in these lengthy sales cycles increase the risk that a customer will decide to cancel, curtail, reduce or delay its product plans, causing us to lose anticipated sales. In addition, any delay or cancellation of a customer’s plans could harm our financial results, as we may have incurred significant expense and generated no revenue. Finally, our customers’ failure to successfully market and sell their products could reduce demand for our SoC solutions and harm our business, financial condition and results of operations. If we were unable to generate revenue after incurring substantial expenses to develop any of our solutions, our business would suffer.
21
Table of Contents
We do not have long-term supply contracts with our third-party manufacturing vendors, and they may not allocate sufficient capacity to us at reasonable prices to meet future demands for our solutions.
The semiconductor industry is subject to intense competitive pricing pressure from customers and competitors. Accordingly, any increase in the cost of our solutions, whether by adverse purchase price variances or adverse manufacturing cost variances, will reduce our gross margins and operating profit. We currently do not have long-term supply contracts with any of our third-party vendors, and we typically negotiate pricing on a purchase order-by-purchase order basis. Therefore, they are not obligated to perform services or supply product to us for any specific period, in any specific quantities, or at any specific price, except as may be provided in a particular purchase order. Availability of foundry capacity has in the recent past been limited due to strong demand. The ability of our foundry vendors to provide us with product, which is sole sourced at each foundry, is limited by their available capacity, existing obligations and technological capabilities. Foundry capacity may not be available when we need it or at reasonable prices. None of our third-party foundry or assembly and test vendors has provided contractual assurances to us that adequate capacity will be available to us to meet our anticipated future demand for our solutions. Our foundry and assembly and test vendors may allocate capacity to the production of other companies’ products while reducing deliveries to us on short notice. In particular, other customers that are larger and better financed than we are or that have long-term agreements with our foundry or assembly and test vendors may cause our foundry or assembly and test vendors to reallocate capacity to those customers, decreasing the capacity available to us. Converting or transferring manufacturing from a primary location or supplier to a backup foundry vendor could be expensive and could take two or more quarters. As we transition to more advanced process nodes beyond 32 nanometer, or nm, we will be increasingly dependent upon Samsung Electronics Co., Ltd., or Samsung, Taiwan Semiconductor Manufacturing Co., Ltd., or TSMC, who are two of the only three foundries currently available for certain advanced process technologies that we may utilize.
If, in the future, we enter into arrangements with suppliers that include additional fees to expedite delivery, nonrefundable deposits or loans in exchange for capacity commitments or commitments to purchase specified quantities over extended periods, such arrangements may be costly, reduce our financial flexibility and be on terms unfavorable to us, if we are able to secure such arrangements at all. Moreover, if we are able to secure foundry capacity, we may be obligated to use all of that capacity or incur penalties. These penalties could harm our financial results. To date, we have not entered into any such arrangements with our suppliers. If we need additional foundry or assembly and test subcontractors because of increased demand or the inability to obtain timely and adequate deliveries from our current vendors, we may not be able to do so cost-effectively, if at all.
Our customers may cancel their orders, change production quantities or delay production. If we fail to accurately forecast demand for our solutions, revenue shortfalls, or excess, obsolete or insufficient inventory could result.
Our customers typically do not provide us with firm, long-term purchase commitments. Substantially all of our sales are made on a purchase order basis, which permits our customers to cancel, change or delay their product purchase commitments with little or no notice to us and without penalty to them. Because production lead times often exceed the amount of time required by our customers to fill their orders, we often must build SoCs in advance of orders, relying on an imperfect demand forecast to project volumes and product mix.
Our SoCs are incorporated into products manufactured by or for our end customers, and as a result, demand for our solutions is influenced by the demand for our customers’ products. Our ability to accurately forecast demand can be adversely affected by a number of factors, including inaccurate forecasting by our customers, miscalculations by our customers of their inventory requirements, changes in market conditions, adverse changes in our product order mix and fluctuating demand for our customers’ products. Even after an order is received, our customers may cancel these orders or request a decrease in production quantities. Any such cancellation or decrease subjects us to a number of risks, most notably that our projected sales will not materialize on schedule or at all, leading to unanticipated revenue shortfalls and excess or obsolete inventory that we may be unable to sell to other customers.
22
Table of Contents
Alternatively, if we are unable to project customer requirements accurately, we may not build enough SoCs, which could lead to delays in product shipments and lost sales opportunities in the near term, as well as force our customers to identify alternative sources, which could affect our ongoing relationships with these customers. We have in the past had customers significantly increase their requested production quantities with little or no advance notice. If we do not fulfill customer demands in a timely manner, our customers may cancel their orders and we may be subject to customer claims for cost of replacement. In addition, the rapid pace of innovation in our industry could render portions of our inventory obsolete. Excess or obsolete inventory levels could result in unexpected expenses or increases in our reserves that could adversely affect our business, operating results and financial condition. In addition, any significant future cancellations or deferrals of product orders could harm our margins, increase our write-offs due to product obsolescence and restrict our ability to fund our operations.
Our target markets may not grow or develop as we currently expect and are subject to market risks, any of which could harm our business, revenue and operating results.
To date, our revenue has been attributable to demand for our video and image processing SoCs in the camera and infrastructure markets and the growth of these overall markets. We initially focused on the infrastructure market, and then leveraged our knowledge and experience to design solutions for the camera market. We derive the majority of our revenue from the camera market, and our operating results are increasingly affected by trends in the camera market. These trends include demand for higher resolution, increasing functionality and greater storage and connectivity requirements, while accommodating more sophisticated standards for video compression. We may be unable to predict the timing or development of these markets with accuracy. For example, the proliferation of smartphones having the ability to capture high-quality video and still images has significantly impacted this market in a relatively short period of time and continues to impact this market. In the Internet Protocol, or IP, security camera market, a slower than expected adoption rate for digital technology in place of analog solutions could slow the demand for our solutions. If our target markets, such as wearable sports cameras, automotive aftermarket cameras, IP security cameras, digital still cameras, or DSCs, and telepresence cameras, do not grow or develop in ways that we currently expect, demand for our video and image processing SoCs may not materialize as expected and our business and operating results could suffer.
We are dependent on sales of a limited number of video and image processing solutions, and a decline in market adoption of these solutions could harm our business.
From inception through January 31, 2013, our revenue has been generated primarily from the sale of a limited number of high-definition, or HD, video and image processing SoC solutions in the camera and infrastructure markets. Moreover, we currently derive a significant amount of our revenue from the sale of our SoCs for use in the camera market and we expect to do so for the next several years. As a result, continued market adoption of our SoC solutions in the camera market is critical to our future success. If demand for our SoC solutions were to decline, or demand for products incorporating our solution declines, does not continue to grow or does not grow as expected, our revenue would decline and our business would be harmed.
If we fail to develop and introduce new or enhanced solutions on a timely basis, our ability to attract and retain customers could be impaired and our competitive position could be harmed.
We operate in a dynamic environment characterized by rapidly changing technologies and technological obsolescence. To compete successfully, we must design, develop, market and sell enhanced solutions that provide increasingly higher levels of performance and functionality and that meet the cost expectations of our customers. Our existing or future solutions could be rendered obsolete by the introduction of new products by our competitors; convergence of other markets, such as smartphones, with or into the camera market; the market adoption of products based on new or alternative technologies; or the emergence of new industry standards for video compression. In addition, the markets for our solutions are characterized by frequent introduction of next-generation and new products, short product life cycles, increasing demand for added functionality and significant price competition. If we or our customers are unable to manage product transitions in a timely and cost-effective manner, our business and results of operations would suffer.
23
Table of Contents
Our failure to anticipate or timely develop new or enhanced solutions in response to technological shifts could result in decreased revenue and our competitors achieving design wins that we sought. In particular, we may experience difficulties with product design, development of new software, manufacturing, marketing or qualification that could delay or prevent our development, introduction or marketing of new or enhanced solutions. In addition, delays in development could impair our relationships with our customers and negatively impact sales of our solutions under development. Moreover, it is possible that our customers may develop their own product or adopt a competitor’s solution for products that they currently buy from us. If we fail to introduce new or enhanced solutions that meet the needs of our customers or penetrate new markets in a timely fashion, we will lose market share and our operating results will be adversely affected.
If we fail to penetrate new markets, our revenue and financial condition could be harmed.
In the past several years, a significant amount of our revenue was generated from sales of our products to OEMs and ODMs of high definition, or HD, video cameras and broadcasting infrastructure equipment. Our future revenue growth, if any, will depend in part on our ability to expand within these markets with our video and image processing SoC solutions, particularly for wearable sports cameras, automotive aftermarket cameras and DSCs, and to enter new markets. Each of these markets presents distinct and substantial risks and, in many cases, requires us to develop new software to address the particular requirements of that market. If any of these markets do not develop as we currently anticipate or if we are unable to penetrate them successfully, our revenue could decline.
The DSC camera market is primarily served by only a few OEMs, such as Canon Inc., Nikon Corporation and Sony Corporation. These OEMs are large, multinational corporations with substantial negotiating power relative to us and, in some instances, have internal solutions that are competitive to our products. Meeting the technical requirements and securing design wins with any of these companies will require a substantial investment of our time and resources. We cannot assure you that we will secure design wins from these or other companies or that we will achieve revenue from the sales of our solutions into the DSC camera market.
If we fail to penetrate these or other new markets we are targeting, our revenue likely will decrease over time and our financial condition could suffer.
The average selling prices of video and image processing solutions in our target markets have historically decreased over time and will likely do so in the future, which could harm our revenue and gross margins.
Average selling prices of semiconductor products in the markets we serve have historically decreased over time, and we expect such declines to continue to occur for our solutions over time. Our gross margins and financial results will suffer if we are unable to offset reductions in our average selling prices by reducing our costs, developing new or enhanced SoC solutions on a timely basis with higher selling prices or gross margins, or increasing our sales volumes. Additionally, because we do not operate our own manufacturing, assembly or testing facilities, we may not be able to reduce our costs as rapidly as companies that operate their own facilities, and our costs may even increase, which could also reduce our gross margins. In the past, we have reduced the prices of our SoC solutions in anticipation of future competitive pricing pressures, new product introductions by us or our competitors and other factors. We expect that we will have to do so again in the future.
We expect competition to increase in the future, which could have an adverse effect on our revenue and market share.
The global semiconductor market in general, and the video and image processing markets in particular, are highly competitive. We compete in different target markets to various degrees on the basis of a number of competitive factors, including our solutions’ performance, features, functionality, energy efficiency, size, ease with which our solution may be integrated into our customers’ products, customer support, reliability and price, as well as on the basis of our reputation. We expect competition to increase and intensify as more and larger
24
Table of Contents
semiconductor companies enter our markets, and as the internal resources of large OEMs grow. Increased competition could result in price pressure, reduced profitability and loss of market share, any of which could harm our business, revenue and operating results.
Our competitors range from large, international companies offering a wide range of semiconductor products to smaller companies specializing in narrow markets. Our primary competitors in the camera market include CSR plc (who acquired Zoran Corporation in August 2011), Fujitsu Limited, HiSilicon Technologies Co., Ltd. and Texas Instruments Incorporated, as well as vertically integrated divisions of consumer device OEMs, including Canon Inc., Panasonic Corporation and Sony Corporation. In the market for automotive aftermarket cameras, we compete against Core Logic, Inc., Novatek Microelectronics Corp. and Sunplus Technology Co. Ltd. Our primary competitors in the infrastructure market include Intel Corporation, Magnum Semiconductor, Inc. and Texas Instruments Incorporated. Certain of our customers and suppliers also have divisions that produce products competitive with ours. We expect competition in our current markets to increase in the future as existing competitors improve or expand their product offerings and as potential new competitors, such as Broadcom Corporation, NVIDIA Corporation, Qualcomm Incorporated and Samsung, enter these markets.
Our ability to compete successfully depends on elements both within and outside of our control, including industry and general economic trends. Many of our competitors are substantially larger, have greater financial, technical, marketing, distribution, customer support and other resources, are more established than we are and have significantly better brand recognition and broader product offerings which may enable them to better withstand adverse economic or market conditions in the future. Our ability to compete will depend on a number of factors, including:
| • | our ability to anticipate market and technology trends and successfully develop solutions that meet market needs; |
| • | our success in identifying and penetrating new markets, applications and customers; |
| • | our ability to understand the price points and performance metrics of competing products in the marketplace; |
| • | our solutions’ performance and cost-effectiveness relative to that of competing products; |
| • | our ability to gain access to leading design tools and product specifications at the same time as our competitors; |
| • | our ability to develop and maintain relationships with key OEMs and ODMs; |
| • | our products’ effective implementation of video processing standards; |
| • | our ability to protect our intellectual property; |
| • | our ability to expand international operations in a timely and cost-efficient manner; |
| • | our ability to deliver products in volume on a timely basis at competitive prices; |
| • | our ability to support our customers’ incorporation of our solutions into their products; and |
| • | our ability to recruit design and application engineers with expertise in image video and image processing technologies and sales and marketing personnel. |
Our competitors may also establish cooperative relationships among themselves or with third parties or acquire companies that provide similar products to ours. As a result, new competitors or alliances may emerge that could acquire significant market share. Any of these factors, alone or in combination with others, could harm our business and result in a loss of market share and an increase in pricing pressure.
25
Table of Contents
If we are unable to manage any future growth, we may not be able to execute our business plan and our operating results could suffer.
Our business has grown rapidly. Our future operating results depend to a large extent on our ability to successfully manage any expansion and growth, including the challenges of managing a company with headquarters in the United States and the majority of its employees in Asia. To manage our growth successfully and handle the responsibilities of being a public company, we believe we must effectively, among other things:
| • | recruit, hire, train and manage additional qualified engineers for our research and development activities, particularly in our offices in Asia and especially for the positions of semiconductor design and systems and applications engineering; |
| • | add additional sales personnel; |
| • | add additional finance and accounting personnel; |
| • | implement and improve our administrative, financial and operational systems, procedures and controls; and |
| • | enhance our information technology support for enterprise resource planning and design engineering by adapting and expanding our systems and tool capabilities, and properly training new hires as to their use. |
We are increasing our investment in research and development and other functions to grow our business. We are likely to incur the costs associated with these increased investments earlier than some of the anticipated benefits, and the return on these investments, if any, may be lower, may develop more slowly than we expect or may not materialize.
If we are unable to manage our growth effectively, we may not be able to take advantage of market opportunities or develop new solutions, and we may fail to satisfy customer product or support requirements, maintain product quality, execute our business plan or respond to competitive pressures.
A substantial portion of our revenue is processed through a single logistics provider and the loss of this logistics provider may cause disruptions in our shipments, which may adversely affect our operations and financial condition.
We sell most of our solutions through a single logistics provider, Wintech Microelectronics Co., Ltd., or Wintech, which serves as our non-exclusive sales representative in all of Asia other than Japan. Approximately 63%, 80% and 91% of our revenue was derived from sales through Wintech for the fiscal years ended January 31, 2013, 2012 and 2011, respectively. We anticipate that a significant portion of our revenue will continue to be derived from sales through Wintech in the foreseeable future. Our current agreement with Wintech is effective until September 2015, unless it is terminated earlier by either party for any or no reason with 90 days written notice or by failure of the breaching party to cure a material breach within 30 days following written notice of such material breach by the non-breaching party. Our agreement with Wintech will automatically renew for additional successive 12-month terms unless at least 60 days before the end of the then-current term either party provides written notice to the other party that it elects not to renew the agreement. Termination of the relationship with Wintech, either by us or by Wintech, could result in a temporary or permanent loss of revenue. We may not be successful in finding suitable alternative logistics providers on satisfactory terms, or at all, and this could adversely affect our ability to effectively sell our solutions in certain geographical locations or to certain end customers. Additionally, if we terminate our relationship with Wintech, we may be obligated to repurchase unsold product, which could be difficult or impossible to sell to other end customers. Furthermore, Wintech, or any successor or other logistics providers we do business with, may face issues obtaining credit, which could impair their ability to make timely payments to us.
Fluctuations in our operating results on a quarterly and annual basis could cause the market price of our ordinary shares to decline.
Our revenue and operating results have fluctuated significantly from period to period in the past and are likely to do so in the future. In particular, our business tends to be seasonal with higher revenue in our third
26
Table of Contents
quarter as our customers typically increase their production to meet year-end demand for their products. As a result, you should not rely on period-to-period comparisons of our operating results as an indication of our future performance. In future periods, our revenue and results of operations may be below the expectations of analysts and investors, which could cause the market price of our ordinary shares to decline.
Factors that may affect our operating results include:
| • | shifts in consumer preferences and any resultant change in demand for video and image capture devices into which our solutions are incorporated; |
| • | changes in the competitive dynamics of our markets, including new entrants or pricing pressures; |
| • | variances in order patterns by our customers, particularly any of our significant customers; |
| • | our ability to successfully define, design and release new solutions in a timely manner that meet our customers’ needs; |
| • | changes in manufacturing costs, including wafer, test and assembly costs, mask costs, manufacturing yields and product quality and reliability; |
| • | timely availability of adequate manufacturing capacity from our manufacturing subcontractors; |
| • | the timing of product announcements by our competitors or by us; |
| • | future accounting pronouncements and changes in accounting policies; |
| • | volatility in our share price, which may lead to higher stock-based compensation expense; |
| • | general socioeconomic and political conditions in the countries where we operate or where our products are sold or used; and |
| • | costs associated with litigation, especially related to intellectual property. |
Moreover, the semiconductor industry has historically been cyclical in nature, reflecting overall economic conditions as well as budgeting and buying patterns of consumers. We expect these cyclical conditions to continue. As a result, our quarterly operating results are difficult to predict, even in the near term. Our expense levels are relatively fixed in the short term and are based, in part, on our expectations of future revenue. If revenue levels are below our expectations, we may experience declines in margins and profitability or incur losses.
If we do not sustain our growth rate, we may not be able to execute our business plan and our operating results could suffer.
We have experienced significant growth in a short period of time. Our revenue increased from $21.5 million in fiscal year 2008 to $121.1 million in fiscal year 2013. We may not achieve similar growth rates in future periods. You should not rely on our revenue growth, gross margins or operating results for any prior quarterly or annual periods as an indication of our future operating performance. If we are unable to maintain adequate revenue growth, our financial results could suffer and our stock price could decline.
Due to our limited operating history, we may have difficulty accurately predicting our future revenue and appropriately budgeting our expenses.
We were incorporated in 2004 and first generated product revenue in the third quarter of fiscal year 2006. As a result, we have a limited operating history from which to predict future revenue. This limited operating experience, combined with the rapidly evolving nature of the markets in which we sell our solutions, substantial uncertainty concerning how these markets may develop and other factors beyond our control, limits our ability to accurately forecast quarterly or annual revenue. In addition, because we record substantially all of our revenue from sales when we have received notification from our logistics providers that they have sold our products,
27
Table of Contents
some of the revenue we record in a quarter may be derived from sales of products shipped to our logistics providers during previous quarters. This revenue recognition methodology limits our ability to forecast quarterly or annual revenue accurately. We are currently expanding our staffing and increasing our expenditures in anticipation of future revenue growth. If our revenue does not increase as anticipated, we could incur significant losses due to our higher expense levels if we are not able to decrease our expenses in a timely manner to offset any shortfall in future revenue.
While we intend to continue to invest in research and development, we may be unable to make the substantial investments that are required to remain competitive in our business.
The semiconductor industry requires substantial investment in research and development in order to bring to market new and enhanced solutions. Our research and development expense was $42.8 million, $37.6 million and $34.4 million in fiscal year 2013, 2012 and 2011, respectively. We expect to continue to increase our research and development expenditures as compared to prior periods as part of our strategy of focusing on the development of innovative and sustainable video and image processing solutions. We do not know whether we will have sufficient resources to maintain the level of investment in research and development required to remain competitive. In addition, we cannot assure you that the technologies which are the focus of our research and development expenditures will become commercially successful or generate any revenue.
We may experience difficulties demonstrating the value to customers of newer, higher priced and higher margin solutions if they believe existing solutions are adequate to meet end customer expectations.
As we develop and introduce new solutions, we face the risk that customers may not value or be willing to bear the cost of incorporating these newer solutions into their products, particularly if they believe end customers are satisfied with current solutions. Regardless of the improved features or superior performance of the newer solutions, customers may be unwilling to adopt our new solutions due to design or pricing constraints. Owing to the extensive time and resources that we invest in developing new solutions, if we are unable to sell customers new generations of our solutions, our revenue could decline and our business, financial condition, operating results and cash flows could be negatively affected.
The complexity of our solutions could result in unforeseen delays or expenses from undetected defects, errors or bugs in hardware or software which could reduce the market adoption of our new solutions, damage our reputation with current or prospective customers and adversely affect our operating costs.
Highly complex SoC solutions such as ours frequently contain defects, errors and bugs when they are first introduced or as new versions are released. We have in the past and may in the future experience these defects, errors and bugs. If any of our solutions have reliability, quality or compatibility problems, we may not be able to successfully correct these problems in a timely manner or at all. In addition, if any of our proprietary features contain defects, errors or bugs when first introduced or as new versions of our solutions are released, we may be unable to timely correct these problems. Consequently, our reputation may be damaged and customers may be reluctant to buy our solutions, which could harm our ability to retain existing customers and attract new customers, and could adversely affect our financial results. In addition, these defects, errors or bugs could interrupt or delay sales to our customers. If any of these problems are not found until after we have commenced commercial production of a new product, we may incur significant additional development costs and product recall, repair or replacement costs. These problems may also result in claims against us by our customers or others.
The loss of any of our key personnel could seriously harm our business, and our failure to attract or retain qualified management, engineering, sales and marketing talent could impair our ability to grow our business.
We believe our future success will depend in large part upon our ability to attract, retain and motivate highly skilled management, engineering and sales and marketing personnel. The loss of any key employees or the inability to attract, retain or motivate qualified personnel, including engineers and sales and marketing personnel,
28
Table of Contents
could delay the development and introduction of, and harm our ability to sell, our solutions. We believe that our future success is dependent on the contributions of Fermi Wang, our co-founder, Chairman of the Board of Directors, President and Chief Executive Officer, Les Kohn, our co-founder and Chief Technology Officer, George Laplante, our Chief Financial Officer, Didier LeGall, our Executive Vice President, and Christopher Day, our Vice President, Marketing and Business Development. Each of these executive officers is an at-will employee. The loss of the services of Dr. Wang, Mr. Kohn, Mr. Laplante, Dr. LeGall, Mr. Day or certain other key personnel could harm our business, financial condition and results of operations. For example, if any of these individuals were to leave unexpectedly, we could face substantial difficulty in hiring qualified successors and could experience a loss in productivity during the search for any such successor and while any successor is integrated into our business and operations.
Our key technical and engineering personnel represent a significant asset and serve as the source of our technological and product innovations. We plan to recruit software and system engineers with expertise in video processing technologies, primarily in Taiwan and China. We may not be successful in attracting, retaining and motivating sufficient numbers of technical and engineering personnel to support our anticipated growth. The competition for qualified engineering personnel in our industry, and particularly in Asia, is very intense. If we are unable to hire, train and retain qualified engineering personnel in a timely manner, our ability to grow our business will be impaired. In addition, if we are unable to retain our existing engineering personnel, our ability to maintain or grow our revenue will be adversely affected.
Camera manufacturers incorporate components supplied by multiple third parties, and a supply shortage or delay in delivery of these components could delay orders for our solutions by our customers.
Our customers purchase components used in the manufacture of their cameras from various sources of supply, often involving several specialized components, including lenses and sensors. Any supply shortage or delay in delivery by third-party component suppliers, or a third-party supplier’s cessation or shut down of its business, may prevent or delay production of our customers’ products. For example, in the camera market, the unavailability of complementary metal-oxide semiconductor, or CMOS, sensors could slow adoption of our solutions in the DSC market. In addition, replacement or substitute components may not be available on commercially reasonable terms, or at all. As a result of delays in delivery or supply shortages of third-party components, orders for our solutions may be delayed or canceled and our business may be harmed. Similarly, errors or defects within a camera system or in the manner in which the various components interact could prevent or delay production of our customers’ products, which could harm our business.
We outsource our wafer fabrication, assembly and testing operations to third parties, and if these parties fail to produce and deliver our products according to requested demands in specification, quantity, cost and time, our reputation, customer relationships and operating results could suffer.
We rely on third parties for substantially all of our manufacturing operations, including wafer fabrication, assembly and testing. Currently, the majority of our SoCs are supplied by Samsung in South Korea, from whom we have the option to purchase both fully assembled and tested products as well as tested die in wafer form for assembly. Samsung subcontracts the assembly and initial testing of the assembled chips it supplies to us to Signetics Corporation and STATS ChipPAC Ltd. In the case of purchases of tested die from Samsung, we contract the assembly to Advanced Semiconductor Engineering, Inc., or ASE. We also have products supplied by Global UniChip Corporation, or GUC, in Taiwan, from whom we purchase fully assembled and tested products. The wafers used by GUC in the assembly of our products are manufactured by TSMC in Taiwan. The assembly is done by GUC subcontracted assembly suppliers ASE, and Powertech Technology Inc, or PTI. Final testing of all of our products is handled by King Yuan Electronics Co., Ltd. or Sigurd Corporation under the supervision of our engineers. We depend on these third parties to supply us with material of a requested quantity in a timely manner that meets our standards for yield, cost and manufacturing quality. We do not have any long-term supply agreements with any of our manufacturing suppliers. If one or more of these vendors terminates its relationship with us, or if we encounter any problems with our manufacturing supply chain, our ability to ship our solutions to
29
Table of Contents
our customers on time and in the quantity required would be adversely affected, which in turn could cause an unanticipated decline in our sales and damage our customer relationships.
If our foundry vendors do not achieve satisfactory yields or quality, our reputation and customer relationships could be harmed.
The fabrication of our video and image processing SoC solutions is a complex and technically demanding process. Minor deviations in the manufacturing process can cause substantial decreases in yields, and in some cases, cause production to be suspended. Our foundry vendors, from time to time, experience manufacturing defects and reduced manufacturing yields, including in the fabrication of our SoCs. Changes in manufacturing processes or the inadvertent use of defective or contaminated materials by our foundry vendors could result in lower than anticipated manufacturing yields or unacceptable performance of our SoCs. Many of these problems are difficult to detect at an early stage of the manufacturing process and may be time consuming and expensive to correct. Poor yields from our foundry vendors, or defects, integration issues or other performance problems in our solutions, could cause us significant customer relations and business reputation problems, harm our financial results and give rise to financial or other damages to our customers. Our customers might consequently seek damages from us for their losses. A product liability claim brought against us, even if unsuccessful, would likely be time consuming and costly to defend.
Each of our SoC solutions is manufactured at a single location. If we experience manufacturing problems at a particular location, we would be required to transfer manufacturing to a new location or supplier. Converting or transferring manufacturing from a primary location or supplier to a backup fabrication facility could be expensive and could take two or more quarters. During such a transition, we would be required to meet customer demand from our then-existing inventory, as well as any partially finished goods that could be modified to the required product specifications. We do not seek to maintain sufficient inventory to address a lengthy transition period because we believe it is uneconomical to keep more than minimal inventory on hand. As a result, we may not be able to meet customer needs during such a transition, which could delay shipments, cause production delays, result in a decline in our sales and damage our customer relationships.
We may experience difficulties in transitioning to new wafer fabrication process technologies or in achieving higher levels of design integration, which may result in reduced manufacturing yields, delays in product deliveries and increased costs.
We aim to use the most advanced manufacturing process technology appropriate for our products that is available from our third-party foundries. As a result, we periodically evaluate the benefits of migrating our solutions to smaller geometry process technologies in order to improve performance and reduce costs. We believe this strategy will help us remain competitive. These ongoing efforts require us from time to time to modify the manufacturing processes for our products and to redesign some products, which in turn may result in delays in product deliveries. We may face difficulties, delays and increased expense as we transition our products to new processes and potentially to new foundries. We depend on Samsung and TSMC, as the principal foundries for our products, to transition to new processes successfully. We cannot assure you that Samsung or TSMC will be able to effectively manage such transitions or that we will be able to maintain our relationship with Samsung or TSMC or develop relationships with new foundries. Moreover, as we transition to more advanced process nodes beyond 32nm, we will be increasingly dependent upon Samsung and TSMC, who are two of the only three foundries currently available for certain advanced process technologies. If we or our foundry vendors experience significant delays in transitioning to smaller geometries or fail to efficiently implement transitions, we could experience reduced manufacturing yields, delays in product deliveries and increased costs, all of which could harm our relationships with our customers and our operating results. As new processes become more prevalent, we expect to continue to integrate greater levels of functionality, as well as more end-customer and third-party intellectual property, into our solutions. We may not be able to achieve higher levels of design integration or deliver new integrated solutions on a timely basis.
30
Table of Contents
We rely on third-party vendors to supply software development tools to us for the development of our new products, and we may be unable to obtain the tools necessary to develop or enhance new or existing products.
We rely on third-party software development tools to assist us in the design, simulation and verification of new products or product enhancements. To bring new products or product enhancements to market in a timely manner, or at all, we need software development tools that are sophisticated enough or technologically advanced enough to complete our design, simulations and verifications. In the future, the design requirements necessary to meet consumer demands for more features and greater functionality from our solutions may exceed the capabilities of available software development tools. Unavailability of software development tools may result in our missing design cycles or losing design wins, either of which could result in a loss of market share or negatively impact our operating results.
Because of the importance of software development tools to the development and enhancement of our solutions, our relationships with leaders in the computer-aided design industry, including Cadence Design Systems, Inc., Mentor Graphics Corporation and Synopsys, Inc., are critical to us. We have invested significant resources to develop relationships with these industry leaders. We believe that utilizing next-generation development tools to design, simulate and verify our products will help us remain at the forefront of the video compression market, and develop solutions that utilize leading-edge technology on a rapid basis. If these relationships are not successful, we may be unable to develop new products or product enhancements in a timely manner, which could result in a loss of market share, a decrease in revenue or negatively impact our operating results.
Our failure to adequately protect our intellectual property rights could impair our ability to compete effectively or defend ourselves from litigation, which could harm our business, financial condition and results of operations.
Our success depends, in part, on our ability to protect our intellectual property. We rely primarily on patent, copyright, trademark and trade secret laws, as well as confidentiality and non-disclosure agreements and other contractual protections, to protect our proprietary technologies and know-how, all of which offer only limited protection. The steps we have taken to protect our intellectual property rights may not be adequate to prevent misappropriation of our proprietary information or infringement of our intellectual property rights, and our ability to prevent such misappropriation or infringement is uncertain, particularly in countries outside of the United States. As of January 31, 2013, we had 17 issued and allowed patents in the United States plus nine additional continuation patents, three issued patents in China, one issued patent in Japan and 34 pending and provisional patent applications in the United States. Even if the pending patent applications are granted, the rights granted to us may not be meaningful or provide us with any commercial advantage. For example, these patents could be opposed, contested, circumvented, designed around by our competitors or be declared invalid or unenforceable in judicial or administrative proceedings. The failure of our patents to adequately protect our technology might make it easier for our competitors to offer similar products or technologies. Our foreign patent protection is generally not as comprehensive as our U.S. patent protection and may not protect our intellectual property in some countries where our products are sold or may be sold in the future. Many U.S.-based companies have encountered substantial intellectual property infringement in foreign countries, including countries where we sell products. Even if foreign patents are granted, effective enforcement in foreign countries may not be available. For example, the legal environment relating to intellectual property protection in China is relatively weak, often making it difficult to create and enforce such rights. We may not be able to effectively protect our intellectual property rights in China or elsewhere. If such an impermissible use of our intellectual property or trade secrets were to occur, our ability to sell our solutions at competitive prices may be adversely affected and our business, financial condition, operating results and cash flows could be materially and adversely affected.
The legal standards relating to the validity, enforceability and scope of protection of intellectual property rights are uncertain and evolving. We cannot assure you that others will not develop or patent similar or superior technologies, products or services, or that our patents, trademarks and other intellectual property will not be challenged, invalidated or circumvented by others.
31
Table of Contents
Unauthorized copying or other misappropriation of our proprietary technologies could enable third parties to benefit from our technologies without paying us for doing so, which could harm our business. Monitoring unauthorized use of our intellectual property is difficult and costly. Although we are not aware of any unauthorized use of our intellectual property in the past, it is possible that unauthorized use of our intellectual property may have occurred or may occur without our knowledge. We cannot assure you that the steps we have taken will prevent unauthorized use of our intellectual property. Our failure to effectively protect our intellectual property could reduce the value of our technology in licensing arrangements or in cross-licensing negotiations.
We may in the future need to initiate infringement claims or litigation in order to try to protect our intellectual property rights. Litigation, whether we are a plaintiff or a defendant, can be expensive, time-consuming and may divert the efforts of our technical staff and management, which could harm our business, whether or not such litigation results in a determination favorable to us. Litigation also puts our patents at risk of being invalidated or interpreted narrowly and our patent applications at risk of not issuing. Additionally, any enforcement of our patents or other intellectual property may provoke third parties to assert counterclaims against us. If we are unable to protect our proprietary rights or if third parties independently develop or gain access to our or similar technologies, our business, revenue, reputation and competitive position could be harmed.
Third parties’ assertions of infringement of their intellectual property rights could result in our having to incur significant costs and cause our operating results to suffer.
The semiconductor industry is characterized by vigorous protection and pursuit of intellectual property rights and positions, which has resulted in protracted and expensive litigation for many companies. Certain of our customers have received and, particularly as a public company, we expect that in the future we may receive, communications from others alleging our infringement of their patents, trade secrets or other intellectual property rights. In addition, certain of our end customers have been the subject of lawsuits alleging infringement of intellectual property rights by products incorporating our solutions, including the assertion that the alleged infringement may be attributable, at least in part, to our technology. Lawsuits resulting from such allegations could subject us to significant liability for damages and invalidate our proprietary rights, though this has not occurred to date. Any potential intellectual property litigation also could force us to do one or more of the following:
| • | stop selling products or using technology that contain the allegedly infringing intellectual property; |
| • | lose the opportunity to license our technology to others or to collect royalty payments based upon successful protection and assertion of our intellectual property against others; |
| • | incur significant legal expenses; |
| • | pay substantial damages to the party whose intellectual property rights we may be found to be infringing; |
| • | redesign those products that contain the allegedly infringing intellectual property; or |
| • | attempt to obtain a license to the relevant intellectual property from third parties, which may not be available on reasonable terms or at all. |
Any significant impairment of our intellectual property rights from any litigation we face could harm our business and our ability to compete.
Any potential dispute involving our patents or other intellectual property could affect our customers, which could trigger our indemnification obligations to them and result in substantial expense to us.
In any potential dispute involving our patents or other intellectual property, our customers could also become the target of litigation. Certain of our customers have received notices from third parties claiming to have patent rights in certain technology and inviting our customers to license this technology, and certain of our end
32
Table of Contents
customers have been the subject of lawsuits alleging infringement of patents by products incorporating our solutions, including the assertion that the alleged infringement may be attributable, at least in part, to our technology. Because we indemnify our customers for intellectual property claims made against them for products incorporating our technology, any litigation could trigger technical support and indemnification obligations under some of our license agreements, which could result in substantial expense to us. Although we have not incurred indemnity expenses related to intellectual property claims to date, we anticipate that we will receive requests for indemnity in the future pursuant to our license agreements with our customers. In addition, other customers or end customers with whom we do not have formal agreements requiring us to indemnify them may ask us to indemnify them if a claim is made as a condition to awarding future design wins to us. Because some of our ODMs and OEMs are larger than we are and have greater resources than we do, they may be more likely to be the target of an infringement claim by third parties than we would be, which could increase our chances of becoming involved in a future lawsuit. Although we have not yet been subject to such claims, if any such claims were to succeed, we might be forced to pay damages on behalf of our ODMs or OEMs that could increase our expenses, disrupt our ability to sell our solutions and reduce our revenue. In addition to the time and expense required for us to supply support or indemnification to our customers, any such litigation could severely disrupt or shut down the business of our customers, which in turn could hurt our relations with our customers and cause the sale of our products to decrease.
We rely on third parties to provide services and technology necessary for the operation of our business. Any failure of one or more of our vendors, suppliers or licensors to provide such services or technology could harm our business.
We rely on third-party vendors to provide critical services, including, among other things, services related to accounting, human resources, information technology and network monitoring that we cannot or do not create or provide ourselves. We depend on these vendors to ensure that our corporate infrastructure will consistently meet our business requirements. The ability of these third-party vendors to successfully provide reliable and high-quality services is subject to technical and operational uncertainties that are beyond our control. While we may be entitled to damages if our vendors fail to perform under their agreements with us, our agreements with these vendors limit the amount of damages we may receive. In addition, we do not know whether we will be able to collect on any award of damages or that these damages would be sufficient to cover the actual costs we would incur as a result of any vendor’s failure to perform under its agreement with us. Upon expiration or termination of any of our agreements with third-party vendors, we may not be able to replace the services provided to us in a timely manner or on terms and conditions, including service levels and cost, that are favorable to us, and a transition from one vendor to another vendor could subject us to operational delays and inefficiencies until the transition is complete.
Additionally, we incorporate third-party technology into some of our products, and we may do so in future products. The operation of our products could be impaired if errors occur in the third-party technology we use. It may be more difficult for us to correct any errors in a timely manner, if at all, because the development and maintenance of the technology is not within our control. We cannot assure you that these third parties will continue to make their technology, or improvements to the technology, available to us, or that they will continue to support and maintain their technology. Further, due to the limited number of vendors of some types of technology, it may be difficult to obtain new licenses or replace existing technology. Any impairment of the technology of or our relationship with these third parties could harm our business.
Failure to comply with the U.S. Foreign Corrupt Practices Act, or FCPA, and similar laws associated with our activities outside of the United States could subject us to penalties and other adverse consequences.
We face significant risks if we fail to comply with the FCPA and other anti-corruption laws that prohibit improper payments or offers of payment to foreign governments and political parties by us for the purpose of obtaining or retaining business. In many foreign countries, particularly in countries with developing economies, it may be a local custom that businesses operating in such countries engage in business practices that are
33
Table of Contents
prohibited by the FCPA or other applicable laws and regulations. We are in the early stages of implementing our FCPA compliance program and cannot assure you that all of our employees and agents, as well as those companies to which we outsource certain of our business operations, will not take actions in violation of our policies and applicable law, for which we may be ultimately held responsible. Any violation of the FCPA or other applicable anti-corruption laws could result in severe criminal or civil sanctions and, in the case of the FCPA, suspension or debarment from U.S. government contracting, which could have a material and adverse effect on our reputation, business, financial condition, operating results and cash flows.
We, our customers and third-party contractors are subject to increasingly complex environmental regulations and compliance with these regulations may delay or interrupt our operations and adversely affect our business.
We face increasing complexity in our procurement, design, and research and development operations as a result of requirements relating to the materials composition of our products, including the European Union’s (EU’s) Restriction on the Use of Certain Hazardous Substances in Electrical and Electronic Equipment (RoHS) directive, which restricts the content of lead and certain other hazardous substances in specified electronic products put on the market in the EU and similar Chinese legislation relating to marking of electronic products which became effective in March 2007. Failure to comply with these and similar laws and regulations could subject us to fines, penalties, civil or criminal sanctions, contract damage claims, and take-back of non-compliant products, which could harm our business, reputation and operating results. The passage of similar requirements in additional jurisdictions or the tightening of these standards in jurisdictions where our products are already subject to such requirements could cause us to incur significant expenditures to make our products compliant with new requirements, or could limit the markets into which we may sell our products.
Some of our operations, as well as the operations of our contract manufacturers and foundry vendors and other suppliers, are also regulated under various other federal, state, local, foreign and international environmental laws and requirements, including those governing, among other matters, the management, disposal, handling, use, labeling of, and exposure to hazardous substances, and the discharge of pollutants into the air and water. Liability under environmental laws can be joint and several and without regard to comparative fault. We cannot assure you that violations of these laws will not occur in the future, as a result of human error, accident, equipment failure or other causes. Environmental laws and regulations have increasingly become more stringent over time. We expect that our products and operations will be affected by new environmental requirements on an ongoing basis, which will likely result in additional costs, which could adversely affect our business. Our failure to comply with present and future environmental, health and safety laws could cause us to incur substantial costs, result in civil or criminal fines and penalties and decreased revenue, which could adversely affect our operating results. Failure by our foundry vendors or other suppliers to comply with applicable environmental laws and requirements could cause disruptions and delays in our product shipments, which could adversely affect our relations with our ODMs and OEMs and adversely affect our business and results of operations.
As a result of efforts by us and our third party contractors to comply with these or other future environmental laws and regulations, we could incur substantial costs, including those relating to excess component inventory, and be subject to disruptions to our operations and logistics. In addition, we will need to procure the manufacture of compliant products and source compliant components from suppliers. We cannot assure you that existing laws or future laws will not have a material adverse effect on our business.
We are subject to warranty and product liability claims and to product recalls.
From time to time, we are subject to warranty claims that may require us to make significant expenditures to defend these claims or pay damage awards. In the future, we may also be subject to product liability claims resulting from failure of our solutions. In the event of a warranty claim, we may also incur costs if we compensate the affected customer. We maintain product liability insurance, but this insurance is limited in
34
Table of Contents
amount and subject to significant deductibles. There is no guarantee that our insurance will be available or adequate to protect against all claims. We also may incur costs and expenses relating to a recall of one of our customers’ products containing one of our devices. The process of identifying a recalled product in consumer devices that have been widely distributed may be lengthy and require significant resources, and we may incur significant replacement costs, contract damage claims from our customers and reputational harm. Costs or payments made in connection with warranty and product liability claims and product recalls could harm our financial condition and results of operations.
Rapidly changing industry standards could make our video and image processing solutions obsolete, which would cause our operating results to suffer.
We design our video and image processing solutions to conform to video compression standards, including MPEG-2 and H.264, set by industry standards setting bodies such as ITU-T Video Coding Experts Group and the ISO/IEC Moving Picture Experts Group. Generally, our solutions comprise only a part of a camera or broadcast infrastructure equipment device. All components of these devices must uniformly comply with industry standards in order to operate efficiently together. We depend on companies that provide other components of the devices to support prevailing industry standards. Many of these companies are significantly larger and more influential in driving industry standards than we are. Some industry standards may not be widely adopted or implemented uniformly, and competing standards may emerge that may be preferred by our customers or by consumers. If our customers or the suppliers that provide other device components adopt new or competing industry standards with which our solutions are not compatible, or if the industry groups fail to adopt standards with which our solutions are compatible, our existing solutions would become less desirable to our customers. As a result, our sales would suffer, and we could be required to make significant expenditures to develop new SoC solutions. In addition, existing standards may be challenged as infringing upon the intellectual property rights of other companies or may be superseded by new innovations or standards.
Products for communications applications are based on industry standards that are continually evolving. Our ability to compete in the future will depend on our ability to identify and ensure compliance with these evolving industry standards. The emergence of new industry standards could render our solutions incompatible with products developed by other suppliers. As a result, we could be required to invest significant time and effort and to incur significant expense to redesign our solutions to ensure compliance with relevant standards. If our solutions are not in compliance with prevailing industry standards for a significant period of time, we could miss opportunities to achieve crucial design wins.
We are subject to the cyclical nature of the semiconductor industry.
The semiconductor industry is highly cyclical and is characterized by constant and rapid technological change, rapid product obsolescence, price erosion, evolving standards, short product life cycles and wide fluctuations in product supply and demand. The industry experienced a significant downturn during the recent global recession. These downturns have been characterized by diminished product demand, production overcapacity, high inventory levels and accelerated erosion of average selling prices. Any future downturns could harm our business and operating results. Furthermore, any significant upturn in the semiconductor industry could result in increased competition for access to third-party foundry and assembly capacity. We are dependent on the availability of this capacity to manufacture and assemble our SoC solutions. None of our third-party foundry or assembly contractors has provided assurances that adequate capacity will be available to us in the future.
The use of open source software in our products, processes and technology may expose us to additional risks and compromise our proprietary intellectual property.
Our products, processes and technology sometimes utilize and incorporate software that is subject to an open source license. Open source software is typically freely accessible, usable and modifiable. Certain open source software licenses, such as the GNU General Public License, require a user who intends to distribute the open source software as a component of the user’s software to disclose publicly part or all of the source code to
35
Table of Contents
the user’s software. In addition, certain open source software licenses require the user of such software to make any derivative works of the open source code available to others on terms unfavorable to us or at no cost. This can subject previously proprietary software to open source license terms.
While we monitor the use of open source software in our products, processes and technology and try to ensure that no open source software is used in such a way as to require us to disclose the source code to the related product, processes or technology when we do not wish to do so, such use could inadvertently occur. Additionally, if a third-party software provider has incorporated certain types of open source software into software we license from such third-party for our products, processes or technology, we could, under certain circumstances, be required to disclose the source code to our products, processes or technology. This could harm our intellectual property position and our business, results of operations and financial condition.
Some of our operations and a significant portion of our customers and our subcontractors are located outside of the United States, which subjects us to additional risks, including increased complexity and costs of managing international operations and geopolitical instability.
We have research and development design centers and business development offices in China, Japan, South Korea and Taiwan, and we expect to continue to conduct business with companies that are located outside the United States, particularly in Asia. Even customers of ours that are based in the United States often use contract manufacturers based in Asia to manufacture their products, and these contract manufacturers typically purchase products directly from us. As a result of our international focus, we face numerous challenges and risks, including:
| • | increased complexity and costs of managing international operations; |
| • | longer and more difficult collection of receivables; |
| • | difficulties in enforcing contracts generally; |
| • | geopolitical and economic instability and military conflicts; |
| • | limited protection of our intellectual property and other assets; |
| • | compliance with local laws and regulations and unanticipated changes in local laws and regulations, including tax laws and regulations; |
| • | trade and foreign exchange restrictions and higher tariffs; |
| • | travel restrictions; |
| • | timing and availability of import and export licenses and other governmental approvals, permits and licenses, including export classification requirements; |
| • | foreign currency exchange fluctuations relating to our international operating activities; |
| • | restrictions imposed by the U.S. government on our ability to do business with certain companies or in certain countries as a result of international political conflicts; |
| • | transportation delays and other consequences of limited local infrastructure, and disruptions, such as large scale outages or interruptions of service from utilities or telecommunications providers; |
| • | difficulties in staffing international operations; |
| • | heightened risk of terrorist acts; |
| • | local business and cultural factors that differ from our normal standards and practices; |
| • | differing employment practices and labor relations; |
| • | regional health issues and natural disasters; and |
| • | work stoppages. |
36
Table of Contents
Our third-party contractors and their suppliers are concentrated in South Korea, Taiwan and Japan, a region subject to earthquakes and other natural disasters. Any disruption to the operations of these contractors could cause significant delays in the production or shipment of our products.
The majority of our products are manufactured by or receive components from third-party contractors located in South Korea, Taiwan and Japan. The risk of an earthquake or tsunami in South Korea, Taiwan, Japan and elsewhere in the Pacific Rim region is significant due to the proximity of major earthquake fault lines. For example, in December 2006 a major earthquake occurred in Taiwan and in March 2011 a major earthquake and tsunami occurred in Japan. Although we are not aware of any significant damage suffered by our third-party contractors as a result of such natural disasters, the occurrence of additional earthquakes or other natural disasters could result in the disruption of our foundry vendor or assembly and test capacity. Any disruption resulting from such events could cause significant delays in the production or shipment of our products until we are able to shift our manufacturing, assembling or testing from the affected contractor to another third-party vendor. We may not be able to obtain alternate capacity on favorable terms, or at all.
If our operations are interrupted, our business and reputation could suffer.
Our operations and those of our manufacturers are vulnerable to interruption caused by technical breakdowns, computer hardware and software malfunctions, software viruses, infrastructure failures, fires, earthquakes, floods, power losses, telecommunications failures, terrorist attacks, wars, Internet failures and other events beyond our control. Any disruption in our services or operations could result in a reduction in revenue or a claim for substantial damages against us, regardless of whether we are responsible for that failure. We rely on our computer equipment, database storage facilities and other office equipment, which are located primarily in the seismically active San Francisco Bay Area and Taiwan. If we suffer a significant database or network facility outage, our business could experience disruption until we fully implement our back-up systems.
We are an “emerging growth company,” and we cannot be certain if the reduced reporting requirements applicable to emerging growth companies will make our ordinary shares less attractive to investors.
We are an “emerging growth company,” as defined in the Jumpstart Our Business Startups Act, (the “JOBS Act”), enacted in April 2012. For as long as we continue to be an emerging growth company, we may take advantage of exemptions from various reporting requirements that are applicable to other public companies that are not emerging growth companies, including not being required to comply with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act of 2002, (the “Sarbanes-Oxley Act”), reduced disclosure obligations regarding executive compensation in our periodic reports and proxy statements and exemptions from the requirements of holding a nonbinding advisory vote on executive compensation and shareholder approval of any golden parachute payments not previously approved. We could be an emerging growth company for up to five years, although we could lose that status sooner if our annual revenues exceed $1 billion, if we issue more than $1 billion in non-convertible debt in a three year period, or if the market value of our ordinary shares held by non-affiliates exceeds $700 million. We cannot predict if investors will find our ordinary shares less attractive because we may rely on these exemptions. If some investors find our ordinary shares less attractive as a result, there may be a less active trading market for our ordinary shares and our stock price may be more volatile.
Under the JOBS Act, emerging growth companies can also delay adopting new or revised accounting standards until such time as those standards apply to private companies. We have irrevocably elected not to avail ourselves of this exemption from new or revised accounting standards and, therefore, will be subject to the same new or revised accounting standards as other public companies that are not emerging growth companies.
37
Table of Contents
Our management has limited public company experience. As a result of becoming a public company, we will be subject to additional regulatory compliance requirements, including Section 404 of the Sarbanes-Oxley Act of 2002, and if we fail to maintain an effective system of internal controls, we may not be able to accurately report our financial results or prevent fraud.
We became a public company on October 10, 2012 and will incur significant legal, accounting and other expenses that we did not incur as a private company. The individuals who constitute our management team have limited experience managing a publicly traded company, and limited experience complying with the increasingly complex and changing laws pertaining to public companies. Our management team and other personnel will need to devote a substantial amount of time to compliance, and we may not effectively or efficiently manage our transition into a public company.
We expect rules and regulations such as the Sarbanes-Oxley Act to increase our legal and finance compliance costs and to make some activities more time consuming and costly. For example, Section 404 of the Sarbanes-Oxley Act requires that our management report on, and our independent auditors attest to, the effectiveness of our internal control structure and procedures for financial reporting. Effective internal controls are necessary for us to provide reliable financial reports and effectively prevent fraud. Section 404 compliance may divert internal resources and will take a significant amount of time and effort to complete. We may not be able to successfully complete the procedures and certification and attestation requirements of Section 404 by the time we will be required to do so. However, our auditors will not be required to formally attest to the effectiveness of our internal control over financial reporting pursuant to Section 404 until we are no longer an “emerging growth company” as defined in the JOBS Act if we take advantage of the JOBS Act exemptions available to us. In addition, these Sarbanes-Oxley Act requirements may be modified, supplemented or amended from time to time. Implementing these changes may take a significant amount of time and may require specific compliance training of our personnel. In the future, we may discover areas of our internal controls that need improvement. If our auditors or we discover a material weakness or significant deficiency, the disclosure of that fact, even if quickly remedied, could reduce the market’s confidence in our financial statements and harm our stock price. Any inability to provide reliable financial reports or prevent fraud could harm our business. We may not be able to effectively and timely implement necessary control changes and employee training to ensure continued compliance with the Sarbanes-Oxley Act and other regulatory and reporting requirements. Our recent growth rate could present challenges to maintain the internal control and disclosure control standards applicable to public companies. If we fail to successfully complete the procedures and certification and attestation requirements of Section 404, or if in the future our Chief Executive Officer, Chief Financial Officer or independent registered public accounting firm determines that our internal controls over financial reporting are not effective as defined under Section 404, we could be subject to sanctions or investigations by The NASDAQ Stock Market, the Securities and Exchange Commission, or SEC, or other regulatory authorities. Furthermore, investor perceptions of our company may suffer, and this could cause a decline in the market price of our ordinary share. We cannot assure you that we will be able to fully comply with the requirements of the Sarbanes-Oxley Act or that management or our auditors will conclude that our internal controls are effective in future periods. Irrespective of compliance with Section 404, any failure of our internal controls could have a material adverse effect on our stated results of operations and harm our reputation.
If we fail to hire additional finance personnel, strengthen our financial reporting systems and infrastructure, and implement a new enterprise resource planning system, we may not be able to timely and accurately report our financial results or comply with the requirements of being a public company, including compliance with the Sarbanes-Oxley Act and SEC reporting requirements, which in turn would significantly harm our reputation and our business.
We intend to hire additional accounting and finance personnel with system implementation experience and Sarbanes-Oxley Act compliance expertise. Any inability to recruit and retain such finance personnel would have an adverse impact on our ability to accurately and timely prepare our financial statements. We may be unable to locate and hire qualified professionals with requisite technical and public company experience when and as needed. In addition, new employees will require time and training to learn our business and operating processes
38
Table of Contents
and procedures. If our finance and accounting organization is unable for any reason to respond adequately to the increased demands that will result from being a public company, the quality and timeliness of our financial reporting may suffer, which could result in the identification of material weaknesses in our internal controls. Any consequences resulting from inaccuracies or delays in our reported financial statements could cause the trading price of our ordinary shares to decline and could harm our business, operating results and financial condition.
If we fail to strengthen our financial reporting systems, infrastructure and internal control over financial reporting to meet the demands that will be placed upon us as a public company, including the requirements of the Sarbanes-Oxley Act, we may be unable to report our financial results timely and accurately and prevent fraud. We expect to incur significant expense and devote substantial management effort toward ensuring compliance with Section 404.
We are implementing a new enterprise resource planning, or ERP, system. This project will require significant investment of capital and human resources, the re-engineering of many processes of our business and the attention of many employees who would otherwise be focused on other aspects of our business. Any disruptions, delays or deficiencies in the design and implementation of the new ERP system could result in potentially much higher costs than we had anticipated and could adversely affect our ability to develop and launch solutions, provide services, fulfill contractual obligations, file reports with the SEC in a timely manner, otherwise operate our business or otherwise impact our controls environment. Any of these consequences could have an adverse effect on our results of operations and financial condition.
Changes to financial accounting standards may affect our results of operations and could cause us to change our business practices.
We prepare our consolidated financial statements to conform to generally accepted accounting principles, or GAAP, in the United States. These accounting principles are subject to interpretation by the American Institute of Certified Public Accountants, the SEC and various bodies formed to interpret and create appropriate accounting rules and regulations. Changes in those accounting rules can have a significant effect on our financial results and may affect our reporting of transactions completed before a change is announced. Changes to those rules or the questioning of current practices may adversely affect our reported financial results or the way we conduct our business.
The complexity of calculating our tax provision may result in errors that could result in restatements of our financial statements.
We are incorporated in the Cayman Islands and our operations are subject to income and transaction taxes in the United States, China, Hong Kong, Japan, South Korea, Taiwan and other jurisdictions in which we do business. Due to the complexity associated with the calculation of our tax provision, we have hired independent tax advisors to assist us. If we or our independent tax advisors fail to resolve or fully understand certain issues, there may be errors that could result in us having to restate our financial statements. Restatements are generally costly and could adversely impact our results of operations or have a negative impact on the trading price of our ordinary shares.
Changes in effective tax rates or adverse outcomes resulting from examination of our income tax returns could adversely affect our results.
Our future effective tax rates could be adversely affected if earnings are lower than anticipated in countries where we have lower statutory rates and higher than anticipated in countries where we have higher statutory rates, by changes in the valuation of our deferred tax assets and liabilities, or by changes in tax laws, regulations, accounting principles or interpretations thereof. In addition, our income tax returns are subject to continuous examination by the Internal Revenue Service, or IRS, and other tax authorities. We regularly assess the likelihood of adverse outcomes resulting from these examinations to determine the adequacy of our provision for
39
Table of Contents
income taxes. We cannot assure you that the outcomes from these continuous examinations will not have an adverse effect on our operating results and financial condition.
Unfavorable tax law changes, an unfavorable governmental review of our tax returns, changes in our geographical earnings mix or imposition of withholding taxes on repatriated earnings could adversely affect our effective tax rate and our operating results.
Our operations are subject to certain taxes, such as income and transaction taxes, in the Cayman Islands, the United States, China, Hong Kong, Japan, South Korea, Taiwan and other jurisdictions in which we do business. A change in the tax laws in the jurisdictions in which we do business, including an increase in tax rates or an adverse change in the treatment of an item of income or expense, possibly with retroactive effect, could result in a material increase in the amount of taxes we incur. In particular, past proposals have been made to change certain U.S. tax laws relating to foreign entities with U.S. connections, which may include us. For example, previously proposed legislation has considered treating certain foreign corporations as U.S. domestic corporations (and therefore taxable on all of their worldwide income) if the management and control of the foreign corporation occurs, directly or indirectly, primarily within the United States. If such legislation were enacted, we could, depending on the precise form, be subject to U.S. taxation notwithstanding our domicile outside the United States. In addition, the U.S. government has proposed various other changes to the U.S. international tax system, certain of which could adversely impact foreign-based multinational corporate groups, and increased enforcement of U.S. international tax laws. Although none of these proposed U.S. tax law changes has yet been enacted, and they may never be enacted in their current forms, it is possible that these or other changes in the U.S. tax laws could significantly increase our U.S. income tax liability in the future.
We are subject to periodic audits or other reviews by tax authorities in the jurisdictions in which we conduct our activities. Any such audit, examination or review requires management’s time, diverts internal resources and, in the event of an unfavorable outcome, may result in additional tax liabilities or other adjustments to our historical results.
Because we conduct operations in multiple jurisdictions, our effective tax rate is influenced by the amounts of income and expense attributed to each such jurisdiction. If such amounts were to change so as to increase the amounts of our net income subject to taxation in higher-tax jurisdictions, or if we were to commence operations in jurisdictions assessing relatively higher tax rates, our effective tax rate could be adversely affected. In addition, we may determine that it is advisable from time to time to repatriate earnings from subsidiaries under circumstances that could give rise to imposition of potentially significant withholding taxes by the jurisdictions in which such amounts were earned, without our receiving the benefit of any offsetting tax credits, which could also adversely impact our effective tax rate.
We may be classified as a passive foreign investment company which could result in adverse U.S. federal income tax consequences for U.S. holders of our ordinary shares.
Based on the current and anticipated valuation of our assets and the composition of our income and assets, we do not expect to be considered a passive foreign investment company, or PFIC, for U.S. federal income tax purposes for our 2013 fiscal year or the foreseeable future. However, a separate determination must be made at the close of each taxable year as to whether we are a PFIC for that taxable year, and we cannot assure you that we will not be a PFIC for our 2014 fiscal year or any future taxable year. Under current law, a non-U.S. corporation will be considered a PFIC for any taxable year if either (a) at least 75% of its gross income is passive income or (b) at least 50% of the value of its assets, generally based on an average of the quarterly values of the assets during a taxable year, is attributable to assets that produce or are held for the production of passive income. PFIC status depends on the composition of our assets and income and the value of our assets, including, among others, a pro rata portion of the income and assets of each subsidiary in which we own, directly or indirectly, at least 25% by value of the subsidiary’s equity interests, from time to time. Because we currently hold, and expect to continue to hold following this offering, a substantial amount of cash or cash equivalents, and
40
Table of Contents
because the calculation of the value of our assets may be based in part on the value of our ordinary shares which may fluctuate after this offering and may fluctuate considerably given that market prices of technology companies historically often have been volatile, we may be a PFIC for any taxable year. If we were treated as a PFIC for any taxable year during which a U.S. holder held ordinary shares, certain adverse U.S. federal income tax consequences could apply for such U.S. holder. See “Taxation—U.S. Federal Income Taxation—PFIC.”
Fluctuations in exchange rates between and among the currencies of the countries in which we do business may adversely affect our operating results.
Our sales have been historically denominated in U.S. dollars. An increase in the value of the U.S. dollar relative to the currencies of the countries in which our end customers operate could impair the ability of our end customers to cost-effectively integrate our SoCs into their devices which may materially affect the demand for our solutions and cause these end customers to reduce their orders, which would adversely affect our revenue and business. We may experience foreign exchange gains or losses due to the volatility of other currencies compared to the U.S. dollar. A significant portion of our solutions are sold to camera manufacturers located outside the United States, primarily in Asia. Sales to customers in Asia accounted for approximately 87% of our revenue in fiscal year 2013. Because most of our end customers or their ODM manufacturers are located in Asia, we anticipate that a majority of our future revenue will continue to come from sales to that region. Although a large percentage of our sales are made to customers in Asia, we believe that a significant number of the products designed by these customers and incorporating our SoCs are then sold to consumers globally.
A significant number of our employees are located in Asia, principally Taiwan and China. Therefore, a portion of our payroll as well as certain other operating expenses are paid in currencies other than the U.S. dollar, such as the New Taiwan Dollar and the Chinese Yuan Renminbi. Our operating results are denominated in U.S. dollars and the difference in exchange rates in one period compared to another may directly impact period-to-period comparisons of our operating results. Furthermore, currency exchange rates have been especially volatile in the recent past and these currency fluctuations may make it difficult for us to predict our operating results.
We have not implemented any hedging strategies to mitigate risks related to the impact of fluctuations in currency exchange rates. Even if we were to implement hedging strategies, not every exposure can be hedged and, where hedges are put in place based on expected foreign exchange exposure, they are based on forecasts which may vary or which may later prove to have been inaccurate. Failure to hedge successfully or anticipate currency risks accurately could adversely affect our operating results.
We may make acquisitions in the future that could disrupt our business, cause dilution to our shareholders, reduce our financial resources and harm our business.
In the future, we may acquire other businesses, products or technologies. We have not made any acquisitions to date and do not have any agreements or commitments for any specific acquisition at this time. Our ability to make and successfully integrate acquisitions is unproven. If we complete acquisitions, we may not strengthen our competitive position or achieve our goals in a timely manner, or at all, and these acquisitions may be viewed negatively by our customers, financial markets or investors. In addition, any acquisitions we make could lead to difficulties in integrating personnel, technologies and operations from the acquired businesses and in retaining and motivating key personnel from these businesses. Acquisitions may disrupt our ongoing operations, divert management from their primary responsibilities, subject us to additional liabilities, increase our expenses and adversely impact our business, operating results, financial condition and cash flows. Acquisitions may also reduce our cash available for operations and other uses, and could also result in an increase in amortization expense related to identifiable assets acquired, potentially dilutive issuances of equity securities or the incurrence of debt, any of which could harm our business.
41
Table of Contents
We cannot predict our future capital needs, and we may not be able to obtain additional financing to fund our operations.
We may need to raise additional funds in the future. Any required additional financing may not be available on terms acceptable to us, or at all. If we raise additional funds by issuing equity securities or convertible debt, investors may experience significant dilution of their ownership interest, and the newly-issued securities may have rights senior to those of the holders of our ordinary shares. If we raise additional funds by obtaining loans from third parties, the terms of those financing arrangements may include negative covenants or other restrictions on our business that could impair our operational flexibility and would also require us to incur interest expense. If additional financing is not available when required or is not available on acceptable terms, we may have to scale back our operations or limit our production activities, and we may not be able to expand our business, develop or enhance our products, take advantage of business opportunities or respond to competitive pressures which could result in lower revenue and reduce the competitiveness of our products.
Risks Related to Ownership of Our Ordinary Shares
The market price of our ordinary shares may be volatile, which could cause the value of your investment to decline.
We cannot predict the extent to which a trading market will develop or how liquid that market might become. The trading price of our ordinary shares is likely to be highly volatile and could be subject to wide fluctuations in price in response to various factors, some of which are beyond our control. These factors include:
| • | changes in financial estimates, including our ability to meet our future revenue and operating profit or loss projections; |
| • | fluctuations in our operating results or those of other semiconductor or comparable companies; |
| • | fluctuations in the economic performance or market valuations of companies perceived by investors to be comparable to us; |
| • | economic developments in the semiconductor industry as a whole; |
| • | general economic conditions and slow or negative growth of related markets; |
| • | announcements by us or our competitors of acquisitions, new products, significant contracts or orders, commercial relationships or capital commitments; |
| • | our ability to develop and market new and enhanced solutions on a timely basis; |
| • | commencement of or our involvement in litigation; |
| • | disruption to our operations; |
| • | any major change in our board of directors or management; |
| • | political or social conditions in the markets where we sell our products; |
| • | changes in governmental regulations; and |
| • | changes in earnings estimates or recommendations by securities analysts. |
In addition, the stock market in general, and the market for semiconductor and other technology companies in particular, have experienced extreme price and volume fluctuations that have often been unrelated or disproportionate to the operating performance of those companies. These broad market and industry factors may cause the market price of our ordinary shares to decrease, regardless of our actual operating performance. These trading price fluctuations may also make it more difficult for us to use our ordinary shares as a means to make acquisitions or to use options to purchase our ordinary shares to attract and retain employees. If the market price of our ordinary shares declines, you may not realize any return on your investment in us and may lose some or all
42
Table of Contents
of your investment. In addition, in the past, following periods of volatility in the overall market and the market price of a company’s securities, securities class action litigation has often been instituted against these companies. This litigation, if instituted against us, could result in substantial costs and a diversion of our management’s attention and resources.
If securities analysts or industry analysts downgrade our ordinary shares, publish negative research or reports or fail to publish reports about our business, our stock price and trading volume could decline.
The trading market for our ordinary shares will be influenced by the research and reports that industry or securities analysts publish about us, our business and our market. If one or more analysts adversely changes their recommendation regarding our stock or our competitors’ stock, our stock price would likely decline. If one or more analysts cease coverage of us or fail to regularly publish reports on us, we could lose visibility in the financial markets which in turn could cause our stock price or trading volume to decline.
Our actual operating results may differ significantly from our guidance and investor expectations, which would likely cause our stock price to decline.
From time to time, we may release guidance in our earnings releases, earnings conference calls or otherwise, regarding our future performance that represent our management’s estimates as of the date of release. If given, this guidance, which will include forward-looking statements, will be based on projections prepared by our management. Projections are based upon a number of assumptions and estimates that, while presented with numerical specificity, are inherently subject to significant business, economic and competitive uncertainties and contingencies, many of which are beyond our control. The principal reason that we expect to release guidance is to provide a basis for our management to discuss our business outlook with analysts and investors. With or without our guidance, analysts and other investors may publish expectations regarding our business, financial performance and results of operations. We do not accept any responsibility for any projections or reports published by any such third persons.
Guidance is necessarily speculative in nature, and it can be expected that some or all of the assumptions of the guidance furnished by us will not materialize or will vary significantly from actual results. If our actual performance does not meet or exceed our guidance or investor expectations, the trading price of our ordinary shares is likely to decline.
The price of our ordinary shares could decrease as a result of shares being sold in the market.
Sales of a substantial number of our ordinary shares in the public market, or the perception that these sales might occur, could cause the market price of our ordinary shares to decline. As of January 31, 2013, we had 27,035,074 ordinary shares outstanding.
All of the ordinary shares sold in the IPO are freely tradable without restrictions or further registration under the Securities Act of 1933, as amended, (the “Securities Act”), except for any shares held by our affiliates as defined in Rule 144 under the Securities Act. A total of 20,135,074 ordinary shares outstanding as of January 31, 2013 are restricted as a result of securities laws, lock-up agreements or other contractual restrictions that restrict transfers for at least 180 days after the date of the final IPO prospectus, subject to certain extensions. The underwriters may, in their sole discretion, release all or some portion of the shares subject to lock-up agreements with the underwriters prior to expiration of the lock-up period.
The holders of approximately 12,446,421 ordinary shares will be entitled to rights with respect to registration of such shares under the Securities Act pursuant to a registration rights agreement between such holders and us. If such holders, by exercising their registration rights, sell a large number of shares, the market price for our ordinary shares could be adversely affected. If we file a registration statement for the purpose of selling additional shares to raise capital and are required to include shares held by these holders pursuant to the
43
Table of Contents
exercise of their registration rights, our ability to raise capital may be impaired. We filed a registration statement on Form S-8 under the Securities Act to register shares for issuance under our 2004 Stock Plan, 2012 Equity Incentive Plan and 2012 Employee Stock Purchase Plan. Our 2012 Equity Incentive Plan and 2012 Employee Stock Purchase Plan provide for automatic increases in the shares reserved for issuance under these plans which could result in additional dilution to our shareholders. These shares can be freely sold in the public market upon issuance and vesting, subject to a lock-up period of at least 180 days and other restrictions provided under the terms of the applicable plan and/or the option agreements entered into with option holders.
We may also issue ordinary shares or securities convertible into ordinary shares from time to time in connection with a financing, acquisition or otherwise. Any such issuance could result in substantial dilution to our existing shareholders and cause the trading price of our stock to decline.
A limited number of shareholders will have the ability to influence the outcome of director elections and other matters requiring shareholder approval.
As of January 31, 2013, our executive officers and directors and their affiliates beneficially own, in the aggregate, approximately 32% of our outstanding ordinary shares. These shareholders, if they acted together, could exert substantial influence over matters requiring approval by our shareholders, including electing directors, adopting new compensation plans and approving mergers, acquisitions or other business combination transactions. This concentration of ownership may discourage, delay or prevent a change of control of our company, which could deprive our shareholders of an opportunity to receive a premium for their stock as part of a sale of our company and might reduce our stock price. These actions may be taken even if they are opposed by our other shareholders.
We do not intend to pay dividends on our ordinary shares and, consequently, a shareholder’s ability to achieve a return on its investment will depend on appreciation in the price of our ordinary shares.
We have never declared or paid any cash dividends on our ordinary shares and do not currently intend to do so for the foreseeable future. We currently intend to invest our future earnings, if any, to fund our growth. Therefore, shareholders are not likely to receive any dividends on their ordinary shares for the foreseeable future and the success of an investment in our ordinary shares will depend upon any future appreciation in their value. There is no guarantee that our ordinary shares will appreciate in value or even maintain the price at which our shareholders have purchased their shares.
Provisions of our memorandum and articles of association and Cayman Islands corporate law may discourage or prevent an acquisition of us which could adversely affect the value of our ordinary shares.
Provisions of our memorandum and articles of association and Cayman Islands law may have the effect of delaying or preventing a change of control or changes in our management. These provisions include the following:
| • | the division of our board of directors into three classes; |
| • | the right of our board of directors to elect a director to fill a vacancy created by the expansion of our board of directors or due to the resignation or departure of an existing board member; |
| • | prohibition of cumulative voting in the election of directors which would otherwise allow less than a majority of shareholders to elect director candidates; |
| • | the requirement for the advance notice of nominations for election to our board of directors or for proposing matters that can be acted upon at a shareholders’ meeting; |
| • | the ability of our board of directors to issue, without shareholder approval, such amounts of preference shares as the board of directors deems necessary and appropriate with terms set by our board of directors, which rights could be senior to those of our ordinary shares; |
44
Table of Contents
| • | the elimination of the rights of shareholders to call a special meeting of shareholders and to take action by written consent in lieu of a meeting; and |
| • | the required approval of a special resolution of the shareholders, being a two-thirds vote of shares held by shareholders present and voting at a shareholder meeting, to alter or amend the provisions of our post-offering memorandum and articles of association. |
Holders of our ordinary shares may face difficulties in protecting their interests because we are incorporated under Cayman Islands law.
Our corporate affairs are governed by our amended and restated memorandum and articles of association, by the Companies Law (as the same may be supplemented or amended from time to time) of the Cayman Islands and by the common law of the Cayman Islands. The rights of our shareholders and the fiduciary responsibilities of our directors under Cayman Islands law are not as clearly established as under statutes or judicial precedent in existence in jurisdictions in the United States. In particular, the Cayman Islands has a less developed body of securities laws than the U.S. and provides significantly less protection to investors. There is no legislation specifically dedicated to the rights of investors in securities and thus no statutorily defined private cause of action specific to investors such as those provided under the Securities Act of 1933 or the Securities Exchange Act of 1934 of the U.S. In addition, shareholders of Cayman Islands companies may not have standing to initiate shareholder derivative actions in U.S. federal courts. Therefore, you may have more difficulty in protecting your interests in the face of actions by our management, directors or controlling shareholders than would shareholders of a corporation incorporated in a jurisdiction in the United States due to the comparatively less developed nature of Cayman Islands law in this area.
Shareholders of Cayman Islands exempted companies, such as our company, have no general rights under Cayman Islands law to inspect corporate records and accounts or to obtain copies of lists of shareholders of the company. Our directors have discretion under our articles of association to determine whether or not, and under what conditions, our corporate records may be inspected by our shareholders, but are not obliged to make them available to our shareholders. This may make it more difficult for you to obtain the information needed to establish any facts necessary for a shareholder motion or to solicit proxies from other shareholders in connection with a proxy contest.
Subject to limited exceptions, under Cayman Islands law, a minority shareholder may not bring a derivative action against the board of directors.
Holders of our ordinary shares may have difficulty obtaining or enforcing a judgment against us because we are incorporated under the laws of the Cayman Islands.
It may be difficult or impossible for you to bring an action against us in the Cayman Islands if you believe your rights have been infringed under U.S. securities laws. There is no statutory recognition in the Cayman Islands of judgments obtained in the United States, although the courts of the Cayman Islands will in certain circumstances recognize and enforce a non-penal judgment of a foreign court of competent jurisdiction without retrial on the merits. While there is no binding authority on this point, this is likely to include, in certain circumstances, a non-penal judgment of a United States court imposing a monetary award based on the civil liability provisions of the U.S. federal securities laws. The Grand Court of the Cayman Islands may stay proceedings if concurrent proceedings are being brought elsewhere. There is uncertainty as to whether the Grand Court of the Cayman Islands would recognize or enforce judgments of United States courts obtained against us predicated upon the civil liability provisions of the securities laws of the United States or any state thereof and whether the Grand Court of the Cayman Islands would hear original actions brought in the Cayman Islands against us predicated upon the securities laws of the United States or any state thereof.
45
Table of Contents
| ITEM 1B. | UNRESOLVED STAFF COMMENTS |
None.
| ITEM 2. | PROPERTIES |
Our principal executive offices are located in Santa Clara, California, consisting of approximately 22,000 square feet of office space under a lease that expires in fiscal year 2014. In March 2013, we entered into a new lease for approximately 35,000 square feet of office space that expires in fiscal year 2019. This new facility will accommodate our principal sales, marketing, research and development and administrative activities. We also lease approximately 54,000 square feet of office space in Hsinchu, Taiwan under lease agreements that automatically renew each year. These Taiwan facilities accommodate research and development, business development, operations, finance and administrative support. We lease approximately 23,000 square feet of office space in Shanghai and Shenzhen, China, under leases that expire in November 2015 and April 2014, respectively, to support research and development and business development. We lease additional facilities in Hong Kong for business development and inventory warehousing and in Japan and South Korea for our local business development personnel.
We believe that our existing facilities are well maintained and in good operating condition, and are sufficient for our needs for the foreseeable future. The following table lists our major locations and primary use as of January 31, 2013:
| Major Locations |
Approximate |
Use | ||
| United States: |
||||
| Santa Clara, California |
22,000 | Corporate Headquarters; Sales; Marketing; Research and Development; Administration | ||
| Asia Pacific: |
||||
| Hsinchu, Taiwan |
54,000 | Research and Development; Business Development; Operations; Administration | ||
| Shanghai, China |
15,000 | Research and Development; Business Development | ||
| Shenzhen, China |
8,000 | Research and Development; Business Development | ||
| Kowloon, Hong Kong |
4,000 | Business Development; Warehousing | ||
| Shin-Yokohama, Japan |
4,000 | Business Development; | ||
| SeongNam, South Korea |
2,000 | Business Development; | ||
| ITEM 3. | LEGAL PROCEEDINGS |
We are not engaged in any material legal proceedings at this time.
| ITEM 4. | MINE SAFETY DISCLOSURES |
Not applicable.
46
Table of Contents
| ITEM 5. | MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES |
Price Range of Ordinary Shares
Our ordinary shares have been traded on the NASDAQ Global Market under the symbol “AMBA” since October 10, 2012. Prior to that date, there was no public trading market for our ordinary shares. The following table sets forth, for the periods indicated, the high and low sales prices per ordinary share as reported by the NASDAQ Global Market:
| Price Range | ||||||||
| High | Low | |||||||
| Year Ended January 31, 2013 |
||||||||
| Fourth Quarter |
$ | 13.42 | $ | 7.42 | ||||
| Third Quarter |
7.42 | 5.55 | ||||||
On March 28, 2013, there were 297 shareholders of our recorded ordinary shares. We cannot estimate the number of beneficial owners since many brokers and other institutions hold our shares on behalf of shareholders. On March 28, 2013, the last reported sale price of our stock was $15.66 per ordinary share as reported by the NASDAQ Global Market.
We have never declared or paid any cash dividends on our ordinary shares and do not currently intend to do so for the foreseeable future.
Performance Graph
This performance graph shall not be deemed to be “soliciting material” or “filed” or incorporated by reference in future filings with the Securities and Exchange Commission, or subject to the liabilities of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) except as shall be expressly set forth by specific reference in such filing.
47
Table of Contents
The following graph shows a comparison from October 10, 2012 through January 31, 2013 of the cumulative total return for our ordinary shares, the NASDAQ Composite Index and the Philadelphia Semiconductor Index. The comparisons in the graph are historical and are not intended to forecast or be indicative of possible future performance of our ordinary shares.
Comparison of 3 Months Cumulative Total Return
| 10/10/2012 | 10/31/2012 | 11/30/2012 | 12/31/2012 | 1/31/2013 | ||||||||||||||||
| Ambarella, Inc. |
100 | 119.1 | 143.7 | 184.0 | 164.4 | |||||||||||||||
| NASDAQ Composite |
100 | 97.6 | 98.6 | 98.9 | 103.0 | |||||||||||||||
| PHLX Semiconductor Index |
100 | 99.7 | 101.7 | 104.4 | 112.2 | |||||||||||||||
Use of Proceeds
On October 15, 2012, the Company closed its initial public offering, or IPO, of 6,000,000 ordinary shares inclusive of 1,095,349 shares sold by certain shareholders of the Company, which was effected through a Registration Statement on Form S-1 (File No. 333-174838) that was declared effective by the Securities and Exchange Commission on October 9, 2012. The public offering price of the shares sold in the offering was $6.00 per share. The net proceeds from the offering to the Company were $25.4 million after deducting underwriting discounts and commissions and other offering expenses. Upon the closing of the IPO, all outstanding redeemable convertible preference shares converted into ordinary shares on a one-to-one basis and all outstanding warrants to purchase redeemable convertible preference shares converted into warrants to purchase ordinary shares. On November 6, 2012, a total of 900,000 ordinary shares were sold to the Company’s IPO underwriters in connection with their exercise of the over-allotment option. The net proceeds to the Company from the sale of these shares were approximately $5.0 million after deducting underwriting discounts and commissions. There has been no material change in the use of proceeds from our initial public offering as described in our final prospectus filed with the SEC pursuant to Rule 424(b).
Stock Split
Effective August 24, 2012, the Company’s board of directors and shareholders approved a reverse stock split of one (1) ordinary share for every four and one half (4.5) authorized, issued and outstanding ordinary shares and one (1) preference share for every four and one half (4.5) authorized, issued and outstanding
48
Table of Contents
preference shares (the “Stock Split”). Upon approval of the Stock Split, the ordinary shares and preference shares outstanding and the number of ordinary shares and preference shares covered by each outstanding right, option, warrant or arrangement were proportionately decreased to reflect the Stock Split and the exercise or purchase price of each such right, option, warrant or arrangement was proportionately increased to reflect the Stock Split. The Company is authorized to accept the surrender of fractional shares resulting from the Stock Split from any shareholder that elects to forego payment for such fractional shares.
| ITEM 6. | SELECTED FINANCIAL DATA |
The following table sets forth selected financial data as of and for the last five fiscal years, and should be read in conjunction with Item 7, “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” and Item 8, “Financial Statements and Supplementary Data,” and other financial data included elsewhere in this report. Our historical results of operations are not necessarily indicative of results of operations to be expected for any future period.
Selected Consolidated Statements of Operations Data:
| Year Ended January 31, | ||||||||||||||||||||
| 2013 | 2012 | 2011 | 2010 | 2009 | ||||||||||||||||
| (in thousands, except per share data) | ||||||||||||||||||||
| Revenue |
$ | 121,066 | $ | 97,257 | $ | 94,739 | $ | 71,525 | $ | 41,747 | ||||||||||
| Income (loss) from operations |
$ | 19,906 | $ | 11,255 | $ | 15,477 | $ | 12,948 | $ | (2,928 | ) | |||||||||
| Net income (loss) |
$ | 18,188 | $ | 9,821 | $ | 13,929 | $ | 13,288 | $ | (2,952 | ) | |||||||||
|
|
|
|
|
|
|
|
|
|
|
|||||||||||
| Net income (loss) per share attributable to ordinary shareholders: |
||||||||||||||||||||
| Basic |
$ | 0.64 | $ | 0.32 | $ | 0.54 | $ | 0.51 | $ | (0.46 | ) | |||||||||
|
|
|
|
|
|
|
|
|
|
|
|||||||||||
| Diluted |
$ | 0.60 | $ | 0.30 | $ | 0.50 | $ | 0.49 | $ | (0.46 | ) | |||||||||
|
|
|
|
|
|
|
|
|
|
|
|||||||||||
Selected Consolidated Balance Sheet Data:
| As of January 31, | ||||||||||||||||||||
| 2013 | 2012 | 2011 | 2010 | 2009 | ||||||||||||||||
| (in thousands) | ||||||||||||||||||||
| Cash, cash equivalents and restricted cash |
$ | 100,497 | $ | 59,461 | $ | 42,139 | $ | 31,599 | $ | 17,140 | ||||||||||
| Working capital |
108,318 | 54,875 | 35,764 | 20,148 | 6,749 | |||||||||||||||
| Total assets |
138,603 | 81,739 | 64,133 | 47,768 | 25,430 | |||||||||||||||
| Total liabilities |
26,271 | 24,390 | 25,964 | 25,928 | 18,606 | |||||||||||||||
| Redeemable convertible preference shares |
— | 50,900 | 39,273 | 39,273 | 39,273 | |||||||||||||||
| Total shareholders’ equity (deficit) |
112,332 | 6,449 | (1,104 | ) | (17,433 | ) | (32,449 | ) | ||||||||||||
| ITEM 7. | MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS |
Overview
We are a leading developer of semiconductor processing solutions for video that enable high-definition, or HD, video capture, sharing and display. We combine our processor design capabilities with our expertise in video and image processing algorithms and software to provide a technology platform that is designed to be easily scalable across multiple applications and enable rapid and efficient product development. Our system-on-a-chip, or SoC, designs fully integrate HD video processing, image processing, audio processing and system functions onto a single chip, delivering exceptional video and image quality, differentiated functionality and low power consumption.
49
Table of Contents
We sell our solutions to leading original design manufacturers, or ODMs, and original equipment manufacturers, or OEMs, globally. We refer to ODMs as our customers and OEMs as our end customers, except as otherwise indicated or as the context otherwise requires. In the camera market, our solutions enable the creation of high-quality video content for wearable sports cameras, automotive aftermarket cameras, Internet Protocol, or IP, security cameras, digital still cameras, or DSCs, telepresence cameras and camcorders. In the infrastructure market, our solutions efficiently manage IP video traffic, broadcast encoding and IP video delivery applications.
Our sales cycles typically require a significant investment of time and a substantial expenditure of resources before we can realize revenue from the sale of our solutions, if any. Our typical sales cycle consists of a multi-month sales and development process involving our customers’ system designers and management along with our sales personnel and software engineers. If successful, this process culminates in a customer’s decision to use our solutions in its system, which we refer to as a design win. Our sales efforts are typically directed to the OEM of the product that will incorporate our video and image processing solution, but the eventual design and incorporation of our SoC into the product may be handled by an ODM on behalf of the OEM. Volume production may begin within six to 18 months after a design win, depending on the complexity of our customer’s product and other factors upon which we may have little or no influence. Once one of our solutions has been incorporated into a customer’s design, we believe that our solution is likely to remain a component of the customer’s product for its life cycle because of the time and expense associated with redesigning a product or substituting an alternative solution. Conversely, a design loss to a competitor will likely preclude any opportunity for future revenue from such customer’s product.
Fiscal Year 2013 Financial Highlights and Trends
| • | We recorded revenue of $121.1million, an increase of 24% as compared to fiscal year 2012. The increase was primarily due to rapid growth in the wearable sports, automotive aftermarket and IP security camera end markets. |
| • | We recorded operating income of $19.9 million, an increase of 77% as compared to fiscal year 2012, primarily due to an increase in revenue and as well as efficient control of operating expenses. |
| • | We generated cash flows from operating activities of $10.5 million, a decrease of 17% as compared to fiscal year 2012. The decrease was primarily due to an increase in accounts receivable resulting from the transfer of sales from Wintech Microelectronics Co., Ltd., or Wintech, to direct sales to a large ODM customer with longer payment terms; additional inventory purchased to support rapid growth of sales; and the release of deferred revenue resulting from renegotiation of agreements with an infrastructure customer. The decrease in cash flows was partially offset by an increase in accrued liabilities associated with the timing of payments to suppliers and employees. |
| • | We completed our initial public offering, or IPO at $6.00 per share on October 15, 2012. A total of 6,000,000 ordinary shares were offered, including 1,095,349 ordinary shares sold by certain of our shareholders. The aggregate net proceeds to us were approximately $25.4 million, net of underwriting discounts and commissions and offering expenses. We did not receive any proceeds from shares sold by the selling shareholders. |
| • | We sold a total of 900,000 ordinary shares to our IPO underwriters in connection with exercise of their over-allotment option on November 6, 2012. The aggregate net proceeds were approximately $5.0 million, net of underwriting discounts and commissions. |
A substantial portion of our revenue is derived from sales through our logistics provider, Wintech, who serves as our non-exclusive sales representative in all of Asia other than Japan. For the fiscal years ended January 31, 2013, 2012 and 2011, approximately 63%, 80% and 91% of our revenue, respectively, was derived from sales through Wintech. Beginning in fiscal year 2013, we sold our solutions directly to Chicony Electronics Co., Ltd., or Chicony, a large ODM that builds cameras for multiple OEMs, rather than having Chicony purchase our solutions through Wintech. For the fiscal year ended January 31, 2013, approximately 16% our revenue was
50
Table of Contents
derived from sales to Chicony. We anticipate that a significant portion of our revenue will continue to be derived from sales through Wintech and Chicony for the foreseeable future.
Factors Affecting Our Performance
Design Wins. We closely monitor design wins by customer and end market. We consider design wins to be critical to our future success, although the revenue generated by each design win can vary significantly. Our long-term sales expectations are based on forecasts from customers and internal estimations of customer demand factoring in the expected time to market for end customer products incorporating our solutions and associated revenue potential.
Pricing, Product Cost and Margins. Our pricing and margins depend on the volumes and the features of the solutions we provide to our customers. Additionally, we make significant investments in new solutions for both cost improvements and new features that we expect to drive revenue and maintain margins. In general, solutions incorporated into more complex configurations, such as those used in the infrastructure market, have higher prices and higher gross margins as compared to solutions sold into the camera market. Our average selling price, or ASP, can vary by market and application due to market-specific supply and demand, the maturation of products launched in previous years and the launch of new products.
We continually monitor the cost of our solutions. As we rely on third-party manufacturers for the production of our products, we maintain a close relationship with these suppliers to continually monitor production yields, component costs and design efficiencies.
Shifting Consumer Preferences. Our revenue is subject to consumer preferences, regarding form factor and functionality, and how those preferences impact the video and image capture electronics that we support. For example, improved smartphone video capture capabilities, and rapid adoption by consumers, has led to the decline of pocket video cameras aimed at the video and image capture market. The current video and image capture market is now characterized by a greater volume of more specialized video and image capture devices that are less likely to be replaced with smartphones, such as wearable sports cameras, automotive aftermarket cameras, IP security cameras, high-end DSCs and enterprise telepresence cameras. This increasing specialization of video capture devices has changed our customer base and end markets and has impacted our revenue. In the future, we expect further changes in the market to continue to impact our business performance.
Continued Concentration of Revenue by End Market. Historically, our revenue has been significantly concentrated in a small number of end markets. In fiscal year 2010, the majority of our revenue came from the pocket video, camcorder and infrastructure markets. Over the last two years, we have continued to provide solutions for the camcorder and infrastructure markets, but also have expanded our focus to include the wearable sports, automotive aftermarket, IP security, DSC and telepresence camera markets. We believe our entry into these new markets will continue to facilitate revenue growth and customer diversification. While we will continue to expand our end market exposure, we anticipate that sales to a limited number of end markets will continue to account for a significant percentage of our total revenue for the foreseeable future. Our end market concentration may cause our financial performance to fluctuate significantly from period to period based on the success or failure of video capture markets in which we compete.
Ability to Capitalize on Connectivity Trends. Mobile connected devices are ubiquitous today and play an increasingly prominent role in consumers’ lives. The constant connectivity provided by these devices has created a demand for connected electronic peripherals such as video and image capture devices. Our ability to capitalize on these trends by supporting our end customers in the development of connected peripherals that seamlessly cooperate with other connected devices and allow consumers to distribute and share video and images with online media platforms is critical for our success. We have added wireless communication functionality into our solutions for wearable sports cameras, IP security cameras and DSCs. The combination of our compression technology with wireless connectivity enables wireless video streaming and the uploading of videos and images
51
Table of Contents
to the Internet. Our solutions enable IP security camera systems to stream video content to either cloud infrastructure or connected mobile devices, and our solutions for wearable sports cameras allow consumers to quickly stream or upload video and images to social media platforms.
Sales Volume. A typical design win can generate a wide range of sales volumes for our solutions, depending on the end market demand for our customers’ products. This can depend on several factors, including the reputation of the end customer, market penetration, product capabilities, size of the end market that the product addresses and our end customers’ ability to sell their products. In certain cases, we may provide volume discounts on sales of our solutions, which may be offset by lower manufacturing costs related to higher volumes. In general, our customers with greater market penetration and better branding tend to develop products that generate larger volumes over the product life cycle.
Customer Product Life Cycle. We estimate our customers’ product life cycles based on the customer, type of product and end market. In general, products launched in the camera market have shorter life cycles than those sold into the infrastructure market. We typically commence commercial shipments from six to 15 months following a design win; however, in some markets, more lengthy product and development cycles are possible, depending on the scope and nature of the project. A portable consumer device typically has a product life cycle of six to 18 months. In the infrastructure market, the product life cycle can range from 24 to 60 months.
Results of Operations
The following table sets forth our historical operating results for the periods indicated:
| Year Ended January 31, | ||||||||||||
| 2013 | 2012 | 2011 | ||||||||||
| (dollars in thousands) | ||||||||||||
| Revenue |
$ | 121,066 | $ | 97,257 | $ | 94,739 | ||||||
| Cost of revenue |
40,405 | 32,458 | 34,500 | |||||||||
|
|
|
|
|
|
|
|||||||
| Gross profit |
80,661 | 64,799 | 60,239 | |||||||||
|
|
|
|
|
|
|
|||||||
| Operating expenses: |
||||||||||||
| Research and development |
42,829 | 37,618 | 34,449 | |||||||||
| Selling, general and administrative |
17,926 | 15,926 | 10,313 | |||||||||
|
|
|
|
|
|
|
|||||||
| Total operating expenses |
60,755 | 53,544 | 44,762 | |||||||||
| Income from operations |
19,906 | 11,255 | 15,477 | |||||||||
| Other income (loss), net |
136 | (90 | ) | (47 | ) | |||||||
|
|
|
|
|
|
|
|||||||
| Income before income taxes |
20,042 | 11,165 | 15,430 | |||||||||
| Provision for income taxes |
1,854 | 1,344 | 1,501 | |||||||||
|
|
|
|
|
|
|
|||||||
| Net income |
$ | 18,188 | $ | 9,821 | $ | 13,929 | ||||||
|
|
|
|
|
|
|
|||||||
52
Table of Contents
The following table sets forth our historical operating results as a percentage of revenue of each line item for the periods indicated:
| Year Ended January 31, | ||||||||||||
| 2013 | 2012 | 2011 | ||||||||||
| Revenue |
100 | % | 100 | % | 100 | % | ||||||
| Cost of revenue |
33 | 33 | 36 | |||||||||
|
|
|
|
|
|
|
|||||||
| Gross profit |
67 | 67 | 64 | |||||||||
| Operating expenses: |
||||||||||||
| Research and development |
35 | 39 | 36 | |||||||||
| Selling, general and administrative |
15 | 16 | 11 | |||||||||
|
|
|
|
|
|
|
|||||||
| Total operating expenses |
50 | 55 | 47 | |||||||||
| Income from operations |
17 | 12 | 17 | |||||||||
| Other income (loss), net |
— | — | — | |||||||||
|
|
|
|
|
|
|
|||||||
| Income before income taxes |
17 | 12 | 17 | |||||||||
| Provision for income taxes |
2 | 1 | 2 | |||||||||
|
|
|
|
|
|
|
|||||||
| Net income |
15 | % | 11 | % | 15 | % | ||||||
|
|
|
|
|
|
|
|||||||
Revenue
We derive substantially all of our revenue from the sale of HD video and image processing SoC solutions to OEMs and ODMs, either directly or through our logistics providers. Our SoC solutions have been used in the camera and infrastructure markets, and we expect these will be the primary markets for our solutions for the foreseeable future. We derive a substantial portion of our revenue from sales made indirectly through our logistics provider, Wintech.
We typically experience seasonal fluctuations in our quarterly revenue with our third fiscal quarter normally being the highest revenue quarter. This fluctuation has been driven primarily by increased sales into the camera market as our customers build inventory in preparation for the holiday shopping season. More generally, our average selling prices fluctuate based on the mix of our solutions sold in a period which reflects the impact of both changes in unit sales of existing solutions as well as the introduction and sales of new solutions. Our solutions are typically characterized by a life cycle that begins with higher average selling prices and lower volumes, followed by broader market adoption, higher volumes and average selling prices that are lower than initial levels.
The end markets into which we sell our products have seen significant changes as consumer preferences have evolved in response to new technologies. As a result, the composition of our revenue may differ meaningfully during periods of technology or consumer preference changes. We expect shifts in consumer use of video capture to continue to change over time, as more specialized use cases emerge and video capture continues to proliferate.
Cost of Revenue and Gross Margin
Cost of revenue includes the cost of materials such as wafers processed by third-party foundries, costs associated with packaging, assembly and test, and our manufacturing support operations such as logistics, planning and quality assurance. Cost of revenue also includes indirect costs such as warranty, inventory valuation reserves and other general overhead costs.
Gross profit is revenue less cost of revenue. Gross margin is gross profit expressed as a percentage of revenue. We expect that our gross margin may fluctuate from period to period as a result of changes in average selling price, product mix and the introduction of new products by us or our competitors. In general, solutions
53
Table of Contents
incorporated into more complex configurations, such as those used in the infrastructure market, have higher prices and higher gross margins, as compared to solutions sold into the camera market. As semiconductor products mature and unit volumes sold to customers increase, their average selling prices typically decline. These declines may be paired with improvements in manufacturing yields and lower wafer, packaging and test costs, which offset some of the margin reduction that could result from lower selling prices. We believe that our gross margin will decline in the future as we continue to penetrate the highly competitive camera market and as we launch our solutions into new markets.
Research and Development
Research and development expense consists primarily of personnel costs, including salaries, stock-based compensation and employee benefits. The expense also includes costs of development incurred in connection with our collaborations with our foundry vendors, costs of licensing intellectual property from third parties for product development, costs of development for software and hardware tools, cost of fabrication of mask sets for prototype products, and allocated depreciation and facility expenses. All research and development costs are expensed as incurred. We expect our research and development expense to increase in absolute dollars as we continue to enhance and expand our product features and offerings.
Selling, General and Administrative
Selling, general and administrative expense consists primarily of personnel costs, including salaries, stock-based compensation and employee benefits for our sales, marketing, finance, human resources, information technology and administrative personnel. The expense also includes professional service costs related to accounting, tax, legal services, and allocated depreciation and facility expenses. We expect our selling expense to increase in absolute dollars as we expand the size of our sales and marketing organization to support our anticipated growth. We expect our general and administrative expense to increase in absolute dollars and as a percent of revenue as we develop the infrastructure necessary to operate as a public company, which includes increased audit and legal fees, costs to comply with the Sarbanes-Oxley Act of 2002 and the rules and regulations applicable to companies listed on The NASDAQ Stock Market, investor relations costs, as well as higher insurance premiums.
Other Income (Loss), Net
Other income (loss), net consists primarily of gain and loss from foreign currency transactions and remeasurements. It also includes gain and loss from revaluation of fair value of warrants to purchase our redeemable convertible preference shares and interest earned from investing in money market funds. Upon the completion of our IPO, all outstanding warrants to purchase redeemable convertible preference shares converted into warrants to purchase ordinary shares and no longer are required to be accounted for at fair value. As a result, there is no future impact to net income (loss) from the revaluation of warrants.
Provision (Benefit) for Income Taxes
We are incorporated in the Cayman Islands and conduct business in several countries such as the United States, China, Taiwan, Hong Kong, South Korea and Japan, and we are subject to taxation in those jurisdictions. As such, our worldwide operating income is subject to varying tax rates and our effective tax rate is highly dependent upon the geographic distribution of our earnings or losses and the tax laws and regulations in each geographical region. Consequently, we have experienced lower effective tax rates as a substantial percentage of our operations are conducted in lower-tax jurisdictions. If our operational structure was to change in such a manner that would increase the amount of operating income subject to taxation in higher-tax jurisdictions, or if we were to commence operations in jurisdictions assessing relatively higher tax rates, our effective tax rate could fluctuate significantly on a quarterly basis and/or be adversely affected.
54
Table of Contents
Comparison of the Fiscal Years Ended January 31, 2013, 2012 and 2011
Revenue
| Change | ||||||||||||||||||||||||||||
| Year Ended January 31, | 2013 | 2012 | ||||||||||||||||||||||||||
| 2013 | 2012 | 2011 | Amount | % | Amount | % | ||||||||||||||||||||||
| (dollars in thousands) | ||||||||||||||||||||||||||||
| Revenue |
$ | 121,066 | $ | 97,257 | $ | 94,739 | $ | 23,809 | 24 | % | $ | 2,518 | 3 | % | ||||||||||||||
Revenue increased for the fiscal year ended January 31, 2013 primarily due to increased unit sales into the camera market as well as the release of higher than normal deferred revenue attributable to the infrastructure market. Camera market revenue expanded as a result of continuing adoption of our SoCs by current and new customers selling end products into the automotive aftermarket and IP security camera end markets and the adoption of our new A7 SoC in the wearable sports market. Infrastructure market revenue increased as a result of renegotiations of purchase agreements with an infrastructure customer resulting in the release of $3.4 million of deferred revenue in the year ended January 31, 2013. Improved ASP’s in the infrastructure market also contributed to revenue growth, which was partially offset by lower license revenue as some technology licenses near the end of their useful life.
Revenue increased for the fiscal year ended January 31, 2012 primarily due to increased shipments of our A5S SoC into new and established camera applications, including sports and automotive aftermarket cameras. The increase in camera market revenue was partially offset by the loss of revenue from end products incorporating our older generation A5 SoC in the pocket video market, which was heavily impacted by the closure of the Eastman Kodak Company camera division. Improved ASPs in the infrastructure market resulted in a modest increase in revenue in the infrastructure market.
Cost of Revenue and Gross Margin
| Change | ||||||||||||||||||||||||||||
| Year Ended January 31, | 2013 | 2012 | ||||||||||||||||||||||||||
| 2013 | 2012 | 2011 | Amount | % | Amount | % | ||||||||||||||||||||||
| (dollars in thousands) | ||||||||||||||||||||||||||||
| Cost of revenue |
$ | 40,405 | $ | 32,458 | $ | 34,500 | $ | 7,947 | 24 | % | $ | (2,042 | ) | (6 | )% | |||||||||||||
| Gross profit |
80,661 | 64,799 | 60,239 | 15,862 | 24 | 4,560 | 8 | |||||||||||||||||||||
| Gross margin |
67 | % | 67 | % | 64 | % | — | 0 | % | — | 3 | % | ||||||||||||||||
Cost of revenue increased for the fiscal year ended January 31, 2013 primarily due to an increase in the number of units sold in the camera market and to a lesser extent, to the increased sale of our higher cost A7 SoC. Cost of revenue decreased for the fiscal year ended January 31, 2012 primarily due to a change in product mix as customers transitioned from the higher cost A5 SoC to the lower cost A5S SoC and A2S SoC. In addition, due to volume discounts afforded us by our foundry vendors, the average unit cost of our A5S SoC decreased in the year ended January 31, 2012 from the previous year.
Gross margin in the fiscal year ended January 31, 2013 was consistent with the previous year’s gross margin. In fiscal year 2013, camera market gross margin improved modestly as lower gross margin revenue from products sold into the pocket video market was replaced with higher gross margin revenue in the wearable sports, automotive aftermarket and IP security camera end markets. In addition, the release of previously deferred revenue described above resulted in an increase in gross margin in the infrastructure market. Although gross margin improved in both the camera and infrastructure markets in fiscal year 2013, the overall gross margin remained unchanged from fiscal year 2012 as lower gross margin camera business became a larger share of the total revenue in fiscal year 2013. Gross margin increased for the fiscal year ended January 31, 2012 primarily due to the transition to the higher gross margin A5S SoC and A2S SoC from the lower gross margin A5 SoC.
55
Table of Contents
Research and Development
| Change | ||||||||||||||||||||||||||||
| Year Ended January 31, | 2013 | 2012 | ||||||||||||||||||||||||||
| 2013 | 2012 | 2011 | Amount | % | Amount | % | ||||||||||||||||||||||
| (dollars in thousands) | ||||||||||||||||||||||||||||
| Research and development |
$ | 42,829 | $ | 37,618 | $ | 34,449 | $ | 5,211 | 14 | % | $ | 3,169 | 9 | % | ||||||||||||||
Research and development expense increased for the fiscal year ended January 31, 2013 primarily due to an increase in engineering headcount and additional bonus and stock-based compensation expense. Our research and development engineering headcount increased to 334 at January 31, 2013 compared to 311 at January 31, 2012, resulting in an increase in salary, benefits and stock-based compensation expenses of approximately $2.2 million. Due to enhanced overall performance in fiscal year 2013, we accrued an additional bonus of $1.2 million and a one-time IPO related bonus to China employees of approximately $0.4 million. In the third quarter of fiscal year 2013, we granted restricted stock units and offered participation in an employee stock purchase plan (ESPP) upon completion of our IPO, resulting in an increase in stock-based compensation expense of approximately $0.8 million in fiscal year 2013.
Research and development expense increased for the fiscal year ended January 31, 2012 primarily due to an increase in engineering headcount and higher license fees for design tools, which were partially offset by lower product development costs incurred at our foundry vendors. Our research and development engineering headcount increased to 311 at January 31, 2012 compared to 286 at January 31, 2011, resulting in an increase in personnel costs and stock-based compensation expense of approximately $5.0 million, while our license fees associated with software design tools increased by approximately $0.5 million. For the fiscal year ended January 31, 2012, product development costs incurred at our foundry vendors declined from $7.3 million in the prior fiscal year to $5.2 million as we developed fewer new SoCs compared to the prior year.
Selling, General and Administrative
| Change | ||||||||||||||||||||||||||||
| Year Ended January 31, | 2013 | 2012 | ||||||||||||||||||||||||||
| 2013 | 2012 | 2011 | Amount | % | Amount | % | ||||||||||||||||||||||
| (dollars in thousands) | ||||||||||||||||||||||||||||
| Selling, general and administrative |
$ | 17,926 | $ | 15,926 | $ | 10,313 | $ | 2,000 | 13 | % | $ | 5,613 | 54 | % | ||||||||||||||
Selling, general and administrative expense increased over each of last two fiscal years primarily due to increases in facility costs and outside services to support our expanding business and operations. In addition, costs associated with being a public company, such as legal, accounting and insurance, increased following our IPO in October 2012.
Other Income (Loss), Net
| Change | ||||||||||||||||||||||||||||
| Year Ended January 31, | 2013 | 2012 | ||||||||||||||||||||||||||
| 2013 | 2012 | 2011 | Amount | % | Amount | % | ||||||||||||||||||||||
| (dollars in thousands) | ||||||||||||||||||||||||||||
| Other income (loss), net |
$ | 136 | $ | (90 | ) | $ | (47 | ) | $ | 226 | 251 | % | $ | (43 | ) | (91 | )% | |||||||||||
Other income, net increased for the fiscal year ended January 31, 2013 primarily due to revaluation of warrants in the third quarter of fiscal year 2013. Upon completion of our IPO, the warrants converted from warrants to purchase preference shares into warrants to purchase ordinary shares and as a result, there will be no future impact to net income from the revaluation of warrants.
56
Table of Contents
Other loss, net in each of the fiscal years ended January 31, 2012 and 2011 primarily related to changes in exchange rates of foreign currency and warrant-revaluation expense.
Provision for Income Taxes
| Change | ||||||||||||||||||||||||||||
| Year Ended January 31, | 2013 | 2012 | ||||||||||||||||||||||||||
| 2013 | 2012 | 2011 | Amount | % | Amount | % | ||||||||||||||||||||||
| (dollars in thousands) | ||||||||||||||||||||||||||||
| Provision for income taxes |
$ | 1,854 | $ | 1,344 | $ | 1,501 | $ | 510 | 38 | % | $ | (157 | ) | (10 | )% | |||||||||||||
| Effective tax rate |
9 | % | 11 | % | 10 | % | — | (2 | )% | — | 1 | % | ||||||||||||||||
Income tax expense increased by $0.5 million, or 38%, in fiscal year 2013 as compared to fiscal year 2012 primarily due to an increase in profitability, partially offset by a decrease in our effective tax rate. The effective tax rate decreased by approximately 2% for the fiscal year 2013 as compared to fiscal year 2012 primarily due to a favorable change in our geographic mix of profit.
The decrease in income tax expense in the fiscal year ended January 31, 2012 was primarily due to a decrease of $4.3 million in income before income tax for the fiscal year 2012 and was offset by an unfavorable change in our geographic mix of profits.
Liquidity and Capital Resources
Issuance of Convertible Preference Shares
In January 2012, we completed the sale of Series D redeemable convertible preference shares, or Series D. A portion of the proceeds from the sale of Series D shares was used to repurchase ordinary shares under a repurchase program. A total of 1,047,596 shares of Series D were sold at a price of $11.25 per share, resulting in net proceeds to the Company of approximately $11.6 million. Upon the closing of the IPO, all outstanding convertible preference shares, including the Series D shares, converted into ordinary shares on a one-to-one basis.
Ordinary Share Repurchase Program
In January 2012, we completed an ordinary share repurchase program. Pursuant to the program, we offered to repurchase ordinary shares at a price of $10.35 per ordinary share, which approximated the then-current fair market value. A total of 698,424 ordinary shares were tendered by employees, former-employees and consultants for repurchase by the Company. The ordinary shares tendered for repurchase were originally acquired through the exercise of stock options prior to the shares being tendered. A total of approximately $7.2 million cash was paid to ordinary shareholders for the 698,424 shares repurchased. The cost of this repurchase program was reflected in additional paid-in capital in the consolidated statements of redeemable convertible preference shares and shareholders’ equity (deficit).
Initial Public Offering
On October 15, 2012 in connection with our IPO, we completed the sale of 6,000,000 ordinary shares inclusive of 1,095,349 shares sold by certain of our shareholders. The public offering price of the shares sold in this offering was $6.00 per share. The net proceeds to us from the offering were approximately $25.4 million after deducting underwriting discounts and commissions and other offering expenses. Upon the completion of the IPO, all outstanding redeemable convertible preference shares converted into ordinary shares on a one-to-one basis and all outstanding warrants to purchase redeemable convertible preference shares converted into warrants to purchase ordinary shares. On November 6, 2012, we sold 900,000 ordinary shares to the IPO underwriters in
57
Table of Contents
connection with their exercise of the over-allotment option. The net proceeds from the sale of these shares were approximately $5.0 million after deducting underwriting discounts and commissions.
Cash Flows
The following table summarizes our cash flows for the periods indicated:
| Year Ended January 31, | ||||||||||||
| 2013 | 2012 | 2011 | ||||||||||
| (in thousands) | ||||||||||||
| Net cash provided by operating activities |
$ | 10,514 | $ | 12,686 | $ | 13,025 | ||||||
| Net cash provided by (used in) investing activities |
(1,014 | ) | (1,484 | ) | 2,059 | |||||||
| Net cash provided by financing activities |
32,050 | 5,846 | 213 | |||||||||
|
|
|
|
|
|
|
|||||||
| Net increase in cash |
$ | 41,550 | $ | 17,048 | $ | 15,297 | ||||||
|
|
|
|
|
|
|
|||||||
Net Cash Provided by Operating Activities
Fiscal year 2013 compared to fiscal year 2012: Cash provided by operating activities decreased primarily due to an increase in accounts receivable resulting from the transfer of sales from Wintech to direct sales to a large ODM customer for whom we provided longer payment terms. In addition, inventory increased to support rapid growth of sales while deferred revenue decreased resulting from renegotiation of agreements with an infrastructure customer. The decrease was partially offset by an increase in accrued liabilities associated with the timing of payments to suppliers and employees.
Fiscal year 2012 compared to fiscal year 2011: Cash provided by operating activities decreased primarily due to an increase in credit sales and the associated timing of cash receipts from customers; additional software licenses purchased for research and development projects; and decreased deferred revenue that resulted from recognition of NRE service revenue from our infrastructure customers. The decrease was partially offset by an increase in accrued liabilities associated with the timing of payments to suppliers and employees.
Net Cash Provided by (Used in) Investing Activities
Fiscal year 2013 compared to fiscal year 2012: Net cash used in investing activities decreased primarily due to the release of $0.5 million in restricted cash that was previously pledged to the Taiwan government and was released upon completion of a research and development project.
Fiscal year 2012 compared to fiscal year 2011: Net cash provided by investing activities decreased primarily due to $5.0 million of cash received from a short-term investment, which was partially offset by an approximately $1.0 million investment in a private company in fiscal year 2011. These investment activities were not repeated in fiscal year 2012.
Net Cash Provided by Financing Activities
Fiscal year 2013 compared to fiscal year 2012: Net cash provided by financing activities increased primarily due to $30.4 million of net cash proceeds from the sale of our shares in connection with our IPO and the exercise of the underwriter’s over-allotment option and an increase over the previous year of $0.6 million in cash receipts from employee purchases of shares in connection with the employee stock purchase plan adopted upon completion of our IPO.
Fiscal year 2012 compared to fiscal year 2011: Net cash provided by financing activities increased primarily due to $11.6 million cash received from the issuance of preference shares and $1.1 million additional
58
Table of Contents
cash received from stock option exercises. The increase was partially offset by $7.2 million in cash payments associated with the ordinary share repurchase program that was completed in January, 2012.
Sources of Liquidity
We have generated net income in each quarter beginning with the first quarter of fiscal year 2010, and we have generated cash from operations in each of fiscal years 2013, 2012 and 2011. As of January 31, 2013 and 2012, we had cash of approximately $100.5 million and $58.9 million, respectively.
Operating and Capital Expenditure Requirements
We have generated net income in each quarter beginning with the first quarter of fiscal year 2010, and we have generated cash from operations in each of fiscal years 2009 to 2013. We believe that our anticipated cash generated from operations and our existing cash balances will be sufficient to meet our anticipated cash requirements through at least the next 12 months. In the future, we expect our operating and capital expenditures to increase as we increase headcount, expand our business activities and implement and enhance our information technology and enterprise resource planning systems. We expect our accounts receivable and inventory balances to increase, and to be partially offset by increases in accounts payable, which will result in a greater need for working capital. If our available cash balances are insufficient to satisfy our future liquidity requirements, we may in the future seek to sell equity or convertible debt securities or borrow funds commercially. The sale of equity and convertible debt securities may result in dilution to our shareholders and those securities may have rights senior to those of our ordinary shares. If we raise additional funds through the issuance of convertible debt securities, these securities could contain covenants that would restrict our operations. We may require additional capital beyond our currently anticipated amounts. Additional capital may not be available to us on reasonable terms, or at all.
Our short- and long-term capital requirements will depend on many factors, including the following:
| • | our ability to generate cash from operations; |
| • | our ability to control our costs; |
| • | the emergence of competing or complementary technologies or products; |
| • | the costs of filing, prosecuting, defending and enforcing any patent claims and other intellectual property rights, or participating in litigation-related activities; and |
| • | our acquisition of complementary businesses, products and technologies. |
Contractual Obligations, Commitments and Contingencies
The following table summarizes our outstanding contractual obligations as of January 31, 2013:
| Payment Due by Period as of January 31, 2013 | ||||||||||||||||||||||||
| (in thousands) | ||||||||||||||||||||||||
| Total | Less than 1 Year |
1-3 Years | 3-5 Years | More than 5 Years |
All Other |
|||||||||||||||||||
| Contractual Obligations |
||||||||||||||||||||||||
| Facilities under operating leases (1) |
$ | 1,499 | $ | 621 | $ | 878 | $ | — | $ | — | $ | — | ||||||||||||
| Technology license or other obligations under operating leases (2) |
2,611 | 2,464 | 127 | 20 | — | — | ||||||||||||||||||
| Noncancellable purchase obligations (3) |
15,085 | 15,085 | — | — | — | — | ||||||||||||||||||
| Uncertain tax liabilities (4) |
1,364 | — | — | — | — | 1,364 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
| Total |
$ | 20,559 | $ | 18,170 | $ | 1,005 | $ | 20 | $ | — | $ | 1,364 | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
| (1) | Facilities under operating leases represent facilities with initial lease terms in excess of one year. They are located in Santa Clara (California), China, Hong Kong, and Japan. The lease for our Santa Clara |
59
Table of Contents
| headquarters has a five-year term and terminates in fiscal year 2014. The lease for our China facility has a five-year term and terminates in fiscal year 2016. The Hong Kong facility has a three-year term and terminates in fiscal year 2014. The leases for our Japan facilities have two-year terms and terminate in fiscal year 2014 and 2015, respectively. |
| (2) | Technology license obligations under operating leases represent future cash payments for software or other technology licenses which are used in product design or daily operation. |
| (3) | Non-cancellable purchase obligations consist primarily of inventory purchase obligations with our independent contract manufacturers. |
| (4) | Uncertain tax liabilities represent our liabilities for uncertain tax positions as of January 31, 2013. We are unable to reasonably estimate the timing of payments in individual years due to uncertainties in the timing of the effective settlement of tax positions. |
Stock Options and Restricted Stock Units
Grants of stock-based awards are key components of the compensation packages we provide to attract and retain certain of our employees to align their interests with the interests of existing shareholders. We recognize that these stock-based awards dilute existing shareholders and have sought to limit the number of shares granted while providing competitive compensation packages. As of January 31, 2013, a total of 4.7 million outstanding stock options and restricted stock units, or RSUs, will potentially dilute our earnings per share. This potential dilution will only result if outstanding options vest and are exercised and RSUs vest and are settled. As of January 31, 2013, 6% of our outstanding options had exercise prices in excess of the current market price.
Off-Balance Sheet Arrangements
As of January 31, 2013, we did not engage in any off-balance sheet arrangements, including the use of structured finance, special purpose entities or variable interest entities.
Critical Accounting Policies and Significant Management Estimates
Our audited consolidated financial statements are prepared in accordance with U.S. generally accepted accounting principles, or GAAP. In connection with the preparation of our audited consolidated financial statements, we are required to make estimates, judgments and assumptions that affect the reported amounts of assets, liabilities, revenue, expenses and related disclosures. On an ongoing basis, we evaluate the estimates, judgments and assumptions including those related to revenue recognition, allowance for doubtful accounts, inventory valuation, impairment of long-lived assets, impairment of financial instruments, warranty costs, valuation of equity instruments, stock-based compensation, deferred income tax assets, valuation allowances and uncertain tax positions. We believe that the accounting policies discussed below are critical to understanding our historical and future performance, as these policies relate to the more significant areas involving management’s judgment and estimates. These estimates, judgments and assumptions are based on historical experience and on various other factors that we believe to be reasonable under the circumstances. Our actual results could differ from these estimates under different assumptions or conditions, and such differences could be material.
Revenue Recognition
We generate revenue from the sale of our SoCs to OEMs or ODMs, either directly or through logistics providers. Revenue from sales directly to OEMs and ODMs is recognized upon shipment provided persuasive evidence of an arrangement exists, legal title to the products and risk of ownership have transferred, the fee is fixed or determinable, and collection of the resulting receivable is reasonably assured. We provide our logistics providers with the right to return excess levels of inventory and to future price adjustments. Given the inability to reasonably estimate these price changes and returns, revenue and costs related to shipments to logistics providers are deferred until we have received notification from our logistics providers that they have sold our products. Information reported by our logistics providers includes product resale price, quantity and end customer
60
Table of Contents
shipment information as well as remaining inventory on hand. At the time of shipment to a logistics provider, we record a trade receivable as there is a legally enforceable right to receive payment, reduce inventory for the value of goods shipped as legal title has passed to the logistics provider and defer the related margin as deferred revenue in the consolidated balance sheets. Any price adjustments are recorded as a reduction to deferred revenue at the time the adjustments are agreed upon.
Arrangements with certain OEM customers provide for pricing that is dependent upon the end products into which our SoCs are used. These arrangements may also entitle us to a share of the product margin ultimately realized by the OEM. The minimum guaranteed amount of revenue related to the sale of products subject to these arrangements is recognized when all other elements of revenue recognition are met. Any amounts at the date of shipment invoiced in excess of the minimum guaranteed contract price are deferred until the additional amounts we are entitled to are fixed or determinable. Additional amounts earned by us resulting from margin sharing arrangements and determination of the end products into which the products are ultimately incorporated are recognized when end customer sales volume is reported to us.
We also sell a limited amount of software under perpetual licenses that include post-contract customer support, or PCS. We do not have evidence of fair value for the PCS and, accordingly, license revenue is recognized ratably over the estimated support period in accordance with ASC 985, Software Revenue Recognition. The revenue from those licenses comprised 2%, 3% and 2% of our total revenue for the years ended January 31, 2013, 2012 and 2011, respectively.
Inventory Valuation
We record inventories at the lower of cost or market. The cost includes materials and other production costs and is computed using standard cost on a first-in, first-out basis. Inventory reserves are recorded for estimated obsolescence or unmarketable inventories based on forecast of future demand and market conditions. If actual market conditions are less favorable than projected, or if future demand for our products decrease, additional inventory write-downs may be required. Once inventory is written down, a new accounting basis has been established and, accordingly, any associated reserve is not reversed until the inventory sold or scrapped. There has been no material inventory loss to date to be recognized.
Warranty Costs
We typically provide warranty on our products. We accrue for the estimated warranty costs at the time when revenue is recognized. The warranty accruals are regularly monitored by management based upon historical experience and any specifically identified failures. While we engage in extensive product quality assessment, actual product failure rates, material usage or service delivery costs could differ from estimates and revisions to the estimated warranty liability would be required. Our warranty accrual has not been material to date.
Stock-Based Compensation
We measure stock-based compensation for equity awards granted to employees and directors based on the estimated fair value on the grant date, and recognize that compensation as expense using the straight-line attribution method for service condition awards or using the graded-vesting attribution method for awards with performance conditions over the requisite service period, which is typically the vesting period of each award. We estimate the fair value of awards of RSUs based on the fair value of our ordinary shares on the date of grant. We use the Black-Scholes option pricing model to determine the fair value of each option grant. Determining the fair value of stock-based awards on the grant date requires the input of various assumptions, including stock price of the underlying ordinary share, the exercise price of the stock option, expected volatility, expected term, risk-free interest rate and dividend rate. The expected term was calculated using the simplified method as prescribed by the guidance provided by the Securities and Exchange Commission, as neither relevant historical experience nor other relevant data are available to estimate future exercise behavior. The expected volatility is based on the
61
Table of Contents
historical volatilities of similar companies whose share prices are publicly available for a period commensurate with the expected term. The risk-free interest rate is derived from the average U.S. Treasury constant maturity rates during the respective periods commensurate with the expected term. The expected dividend yield is zero because we have not historically paid dividends and have no present intention to pay dividends. We use historical data to estimate pre-vesting option forfeitures and record stock-based compensation only for those options that are expected to vest. Forfeitures are estimated at the time of grant and revised if necessary in subsequent periods if actual forfeitures differ from estimates.
Prior to the initial public offering, we engaged an independent appraiser to assist us in the valuation of our ordinary share price. Our board of directors directed these regular valuations and had input into determining the relevant objective and subjective factors accounted for and relevant approaches in each valuation. After the IPO, the exercise price of stock option awards is determined based on the closing price of the Company’s ordinary shares traded on NASDAQ on the grant date.
Allowance for Doubtful Accounts
We frequently monitor cash collections from our logistics providers and end customers. We perform ongoing credit evaluation of our customers and generally require no collateral. We assess the need for allowances for doubtful accounts for estimated losses resulting from the inability of our customers to make required payments by considering factors such as historical collection experience, credit quality, aging of the accounts receivable balances and current economic conditions that may affect a customer’s ability to pay. To date, we have not experienced any material bad debt and, therefore, no allowance for doubtful accounts has been recorded.
Income Taxes
We record income taxes using the asset and liability method, which requires the recognition of deferred tax assets and liabilities for the expected future tax consequences of events that have been recognized in our financial statements or tax returns. In estimating future tax consequences, generally all expected future events other than enactments or changes in the tax law or rates are considered. Valuation allowances are provided when necessary to reduce deferred tax assets to the amount expected to be realized.
We apply authoritative guidance for the accounting for uncertainty in income taxes. The guidance requires that tax effects of a position be recognized only if it is “more likely than not” to be sustained based solely on its technical merits as of the reporting date. Upon estimating our tax positions and tax benefits, we consider and evaluate numerous factors, which may require periodic adjustments and which may not reflect the final tax liabilities. We adjust our financial statements to reflect only those tax positions that are more likely than not to be sustained under examination.
As part of the process of preparing audited consolidated financial statements, we are required to estimate our taxes in each of the jurisdictions in which we operate. We estimate actual current tax exposure together with assessing temporary differences resulting from differing treatment of items, such as accruals and allowances not currently deductible for tax purposes. These differences result in deferred tax assets, which are included in our consolidated balance sheets. In general, deferred tax assets represent future tax benefits to be received when certain expenses previously recognized in the consolidated statements of operations become deductible expenses under applicable income tax laws, or loss or credit carryforwards are utilized.
In assessing whether deferred tax assets may be realized, we consider whether it is more likely than not that some portion or all of deferred tax assets will be realized. The ultimate realization of deferred tax assets is dependent upon the generation of future taxable income.
We make estimates and judgments about our future taxable income based on assumptions that are consistent with our plans and estimates. Should the actual amounts differ from estimates, the amount of valuation allowance
62
Table of Contents
could be materially impacted. Any adjustment to the deferred tax asset valuation allowance would be recorded in the income statement for the periods in which the adjustment is determined to be required.
Earnings Per Share
We apply the two-class method to calculate and present net income per ordinary share. Under the two-class method, net income is allocated between ordinary shares and other participating securities based on their participating rights. Participating securities are defined as securities that may participate in undistributed earnings with ordinary shares, whether that participation is conditioned upon the occurrence of a specified event or not. Basic net income per ordinary share is computed by dividing net income allocable to ordinary shares by the weighted-average number of ordinary shares outstanding for the period. Diluted net income per ordinary share is computed by dividing net income allocable to ordinary shares and income allocable to participating securities, to the extent they are dilutive, by the weighted-average number of ordinary shares outstanding, including the dilutive effects of participating securities on an if-converted basis plus the dilutive effects of ordinary shares. Our potential dilutive ordinary share equivalents consist of incremental ordinary shares issuable upon the exercise of options, upon the exercise of employee stock purchase plan, upon release of vested restricted stock units, upon conversion of our redeemable convertible preference shares and upon exercise of warrants.
We perform an assessment as to whether instruments granted in stock-based payment transactions are participating securities. Stock-based payment awards that have not yet vested meet the definition of a participating security provided the right to receive the dividend is non-forfeitable and non-contingent. These participating securities should be included in the computation of basic net income per share under the two-class method. We have concluded that our non-vested early-exercised options meet the definition of a participating security and should be included in the computation of basic earnings per share.
Jumpstart Our Business Startups Act of 2012, or JOBS Act
The JOBS Act permits an emerging growth company such as us to take advantage of an extended transition period to comply with new or revised accounting standards applicable to public companies. We have elected to opt out of this provision and, as a result, we will comply with new or revised accounting standards as required when they are adopted. This decision to opt out of the extended transition period under the JOBS Act is irrevocable.
Subject to certain conditions set forth in the JOBS Act, as an emerging growth company, we intend to rely on certain extended transition periods for other requirements, including without limitation, providing an auditor’s attestation report on our system of internal controls over financial reporting pursuant to Section 404 and complying with any requirement that may be adopted regarding mandatory audit firm rotation or a supplement to the auditor’s report providing additional information about the audit and the financial statements (auditor discussion and analysis). These exemptions will apply for a period of five years following the completion of our IPO although if the market value of our ordinary shares that is held by nonaffiliates exceeds $700 million before that time, we would cease to be an emerging growth company.
| ITEM 7A. | QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK |
We had cash and restricted cash totaling $100.5 million and $59.5 million at January 31, 2013 and 2012, respectively. Our cash and restricted cash consist of cash in standard bank accounts and investments in certificates of deposit. The primary objectives of our investment activities are to preserve principal and provide liquidity without significantly increasing risk. Our cash are held for working capital purposes. We do not enter into investments for trading or speculative purposes.
63
Table of Contents
Foreign Currency Risk
To date, all of our product sales and inventory purchases have been denominated in U.S. dollars. We therefore have not had any foreign currency risk associated with these two activities. The functional currency of all of our entities is the U.S. dollar. Our operations outside of the United States incur operating expenses and hold assets and liabilities denominated in foreign currencies, principally the New Taiwan Dollar and the Chinese Yuan Renminbi. Our results of operations and cash flows are, therefore, subject to fluctuations due to changes in foreign currency exchange rates. However, we believe that the exposure to foreign currency fluctuation from operating expenses is immaterial at this time as the related costs do not constitute a significant portion of our total expenses. As we grow our operations, our exposure to foreign currency risk could become more significant. To date, we have not entered into any foreign currency exchange contracts and currently do not expect to enter into foreign currency exchange contracts for trading or speculative purposes.
| ITEM 8. | FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA |
Financial Statements
The financial statements required by this Item are set forth as a separate section of this Form 10-K. See Item 15 for a listing of financial statements provided in the section titled “Financial Statements.”
Supplementary Data (Unaudited)
The following table sets forth unaudited supplementary quarterly financial data for the two year period ended January 31, 2013. In management’s opinion, the unaudited data has been prepared on the same basis as the audited information and includes all adjustments necessary for a fair presentation of the data for the periods presented.
| For the Three Months Ended | ||||||||||||||||||||||||||||||||
| Apr. 30, 2012 |
Jul. 31, 2012 |
Oct. 31, 2012 |
Jan. 31, 2013 |
Apr. 30, 2011 |
Jul. 31, 2011 |
Oct. 31, 2011 |
Jan. 31, 2012 |
|||||||||||||||||||||||||
| (in thousands, except per share data) | ||||||||||||||||||||||||||||||||
| Revenue |
$ | 25,921 | $ | 27,958 | $ | 35,669 | $ | 31,518 | $ | 21,640 | $ | 22,268 | $ | 28,778 | $ | 24,571 | ||||||||||||||||
| Cost of revenue |
7,516 | 8,626 | 12,679 | 11,584 | 7,115 | 7,448 | 10,093 | 7,802 | ||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
| Gross profit |
18,405 | 19,332 | 22,990 | 19,934 | 14,525 | 14,820 | 18,685 | 16,769 | ||||||||||||||||||||||||
| Operating expenses: |
||||||||||||||||||||||||||||||||
| Research and development |
11,473 | 9,356 | 10,802 | 11,198 | 8,747 | 9,695 | 9,169 | 10,007 | ||||||||||||||||||||||||
| Selling, general and administrative |
4,025 | 4,184 | 4,603 | 5,114 | 3,425 | 4,030 | 3,806 | 4,665 | ||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
| Total operating expenses |
15,498 | 13,540 | 15,405 | 16,312 | 12,172 | 13,725 | 12,975 | 14,672 | ||||||||||||||||||||||||
| Income from operations |
2,907 | 5,792 | 7,585 | 3,622 | 2,353 | 1,095 | 5,710 | 2,097 | ||||||||||||||||||||||||
| Other income (loss), net |
(2 | ) | 4 | 137 | (3 | ) | (27 | ) | 3 | 3 | (69 | ) | ||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
| Income before income taxes |
2,905 | 5,796 | 7,722 | 3,619 | 2,326 | 1,098 | 5,713 | 2,028 | ||||||||||||||||||||||||
| Provision (benefit) for income taxes |
303 | 570 | 1,005 | (24 | ) | 307 | 121 | 665 | 251 | |||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
| Net income |
$ | 2,602 | $ | 5,226 | $ | 6,717 | $ | 3,643 | $ | 2,019 | $ | 977 | $ | 5,048 | $ | 1,777 | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
| Net income per share attributable to ordinary shareholders: |
||||||||||||||||||||||||||||||||
| Basic |
$ | 0.08 | $ | 0.20 | $ | 0.27 | $ | 0.14 | $ | 0.06 | $ | 0.01 | $ | 0.21 | $ | 0.04 | ||||||||||||||||
| Diluted |
$ | 0.07 | $ | 0.19 | $ | 0.25 | $ | 0.13 | $ | 0.06 | $ | 0.01 | $ | 0.19 | $ | 0.04 | ||||||||||||||||
| Net income per ordinary share for the year is computed independently and may not equal the sum of the quarterly net income per ordinary share. |
64
Table of Contents
Our quarterly revenues and operating results are difficult to forecast. Therefore, we believe that period-to-period comparisons of our operating results will not necessarily be meaningful, and should not be relied upon as an indication of future performance. Also, operating results may fall below our expectations and the expectations of securities analysts or investors in one or more future quarters. If this were to occur, the market price of our ordinary shares would likely decline. For further information regarding the quarterly fluctuation of our revenues and operating results, see Item 1A, “Risk Factors—Fluctuations in our operating results on a quarterly and annual basis could cause the market price of our ordinary shares to decline”.
| ITEM 9. | CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE |
Not applicable.
| ITEM 9A. | CONTROLS AND PROCEDURES |
Evaluation of Disclosure Controls and Procedures
We maintain disclosure controls and procedures designed to ensure that information required to be disclosed in the reports we file or submit pursuant to the Securities and Exchange Act of 1934 as amended (“Exchange Act”) is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the Securities and Exchange Commission, and that such information is accumulated and communicated to our management, including our Chief Executive Officer and Chief Financial Officer, as appropriate, to allow timely decisions regarding required disclosure.
Management, with the participation of the Chief Executive Officer and Chief Financial Officer, evaluated the effectiveness of the design and operation of our disclosure controls and procedures as defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act as of the end of the period covered by this report. Based on this evaluation, our Chief Executive Officer and Chief Financial Officer have concluded that, as of January 31, 2013, our disclosure controls and procedures were effective.
Management’s Report on Internal Control over Financial Reporting
This Annual Report on Form 10-K does not include a report of management’s assessment regarding our internal control over financial reporting (as defined in Rule 13a-15(f) under the Exchange Act) or an attestation report of our independent registered accounting firm due to a transition period established by rules of the Securities and Exchange Commission for newly public companies.
Changes in Internal Control over Financial Reporting
There were no changes in internal control over financial reporting during the last fiscal quarter that has materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
Inherent Limitations of Disclosure Controls and Internal Control over Financial Reporting
Because of their inherent limitations, our disclosure controls and procedures and our internal control over financial reporting may not prevent material errors or fraud. A control system, no matter how well conceived and operated, can provide only reasonable, not absolute, assurance that the objectives of the control system are met. The effectiveness of our disclosure controls and procedures and our internal control over financial reporting is subject to risks, including that the controls may become inadequate because of changes in conditions or that the degree of compliance with our policies or procedures may deteriorate.
| ITEM 9B. | OTHER INFORMATION |
Not applicable.
65
Table of Contents
| ITEM 10. | DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE |
The information responsive to this item is incorporated herein by reference to our Proxy Statement for our 2013 annual meeting of shareholders to be filed with the Securities and Exchange Commission pursuant to Regulation 14A not later than 120 days after the end of the fiscal year covered by this Annual Report on Form 10-K. The information under the heading “Executive Officers of the Registrant” in Part I of this Annual Report on Form 10-K is also incorporated herein by reference.
We have a Code of Business Conduct and Ethics for all of our directors, officers and employees. We also have a Code of Ethics for Finance Team applicable to our Chief Executive Officer, Chief Financial Officer and other Senior Financial Officers. These documents are available on our website at http://investor.ambarella.com/governance.cfm. To date, there have been no waivers under our Code of Business Conduct and Ethics and Code of Ethics for Finance Team. We will post any amendments or waivers, if and when granted, of our Code of Business Conduct and Ethics and Code of Ethics for Finance Team on our website.
| ITEM 11. | EXECUTIVE COMPENSATION |
The information responsive to this item is incorporated herein by reference to our Proxy Statement for our 2013 annual meeting of shareholders to be filed with the Securities and Exchange Commission pursuant to Regulation 14A not later than 120 days after the end of the fiscal year covered by this Annual Report on Form 10-K.
| ITEM 12. | SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS |
The information responsive to this item is incorporated herein by reference to our Proxy Statement for our 2013 annual meeting of shareholders to be filed with the Securities and Exchange Commission pursuant to Regulation 14A not later than 120 days after the end of the fiscal year covered by this Annual Report on Form 10-K.
| ITEM 13. | CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE |
The information responsive to this item is incorporated herein by reference to our Proxy Statement for our 2013 annual meeting of shareholders to be filed with the Securities and Exchange Commission pursuant to Regulation 14A not later than 120 days after the end of the fiscal year covered by this Annual Report on Form 10-K.
| ITEM 14. | PRINCIPAL ACCOUNTANT FEES AND SERVICES |
The information responsive to this item is incorporated herein by reference to our Proxy Statement for our 2013 annual meeting of shareholders to be filed with the Securities and Exchange Commission pursuant to Regulation 14A not later than 120 days after the end of the fiscal year covered by this Annual Report on Form 10-K.
66
Table of Contents
| ITEM 15. | EXHIBITS AND FINANCIAL STATEMENT SCHEDULES |
| (a) | (1) Financial Statements |
The following consolidated financial statements of the Registrant and Report of PricewaterhouseCoopers LLP, Independent Registered Public Accounting Firm, are included herewith:
| (a) | (2) Financial Statement Schedule |
Financial statement schedules are omitted because they are not applicable or the required information is shown in the Financial Statements or the notes thereto.
67
Table of Contents
Report of Independent Registered Public Accounting Firm
To the Board of Directors and Shareholders of Ambarella, Inc.
In our opinion, the accompanying consolidated balance sheets and the related consolidated statements of operations, of redeemable convertible preference shares and shareholders’ equity (deficit) and of cash flows present fairly, in all material respects, the financial position of Ambarella, Inc. and its subsidiaries at January 31, 2013 and 2012, and the results of their operations and their cash flows for each of the three years in the period ended January 31, 2013 in conformity with accounting principles generally accepted in the United States of America. These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these financial statements based on our audits. We conducted our audits of these statements in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, and evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.
/s/ PricewaterhouseCoopers LLP
San Jose, California
April 4, 2013
68
Table of Contents
AMBARELLA, INC.
(in thousands, except share and per share data)
| January 31, 2013 |
January 31, 2012 |
|||||||
| ASSETS |
||||||||
| Current assets: |
||||||||
| Cash |
$ | 100,494 | $ | 58,944 | ||||
| Accounts receivable, net |
20,153 | 9,485 | ||||||
| Inventories |
8,918 | 6,786 | ||||||
| Restricted cash |
3 | 517 | ||||||
| Deferred tax assets, current |
1,220 | 861 | ||||||
| Prepaid expenses and other current assets |
2,360 | 1,226 | ||||||
|
|
|
|
|
|||||
| Total current assets |
133,148 | 77,819 | ||||||
| Property and equipment, net |
2,536 | 1,686 | ||||||
| Deferred tax assets, non-current |
938 | 426 | ||||||
| Intangible assets, net |
— | 270 | ||||||
| Other assets |
1,981 | 1,538 | ||||||
|
|
|
|
|
|||||
| Total assets |
$ | 138,603 | $ | 81,739 | ||||
|
|
|
|
|
|||||
| LIABILITIES, REDEEMABLE CONVERTIBLE PREFERENCE SHARES AND SHAREHOLDERS’ EQUITY |
||||||||
| Current liabilities: |
||||||||
| Accounts payable |
$ | 6,674 | $ | 6,481 | ||||
| Accrued liabilities |
14,419 | 7,931 | ||||||
| Income taxes payable |
286 | 530 | ||||||
| Deferred revenue, current |
3,451 | 8,002 | ||||||
|
|
|
|
|
|||||
| Total current liabilities |
24,830 | 22,944 | ||||||
| Deferred revenue, non-current |
— | 200 | ||||||
| Other long-term liabilities |
1,441 | 1,246 | ||||||
|
|
|
|
|
|||||
| Total liabilities |
26,271 | 24,390 | ||||||
|
|
|
|
|
|||||
| Commitments and contingencies (Note 12) |
||||||||
| Redeemable convertible preference shares (Note 8): |
||||||||
| Series A, B, C and D redeemable convertible preference shares, $0.00045 par value per share — 5,611,111, 3,665,550, 3,027,777 and 2,222,222 shares authorized at January 31, 2012, respectively; 5,611,107, 3,629,253, 3,027,771 and 1,047,596 shares issued and outstanding at January 31, 2012, respectively;initial liquidation preference of $10,100, $13,000, $16,350 and $11,785 at January 31, 2012, respectively |
— | 50,900 | ||||||
| Shareholders’ equity: |
||||||||
| Preference shares, $0.00045 par value per share, 20,000,000 shares authorized and no shares issued and outstanding at January 31, 2013; no shares authorized, issued and outstanding at January 31, 2012; |
— | — | ||||||
| Ordinary shares, $0.00045 par value per share, 200,000,000 and 44,444,444 shares authorized at January 31, 2013 and at January 31, 2012, respectively; 27,035,074 shares issued and outstanding at January 31, 2013; 7,600,869 shares issued and outstanding at January 31, 2012 |
12 | 3 | ||||||
| Additional paid-in capital |
91,911 | 4,225 | ||||||
| Retained earnings |
20,409 | 2,221 | ||||||
|
|
|
|
|
|||||
| Total shareholders’ equity |
112,332 | 6,449 | ||||||
|
|
|
|
|
|||||
| Total liabilities, redeemable convertible preference shares and shareholders’ equity |
$ | 138,603 | $ | 81,739 | ||||
|
|
|
|
|
|||||
See accompanying notes to consolidated financial statements.
69
Table of Contents
AMBARELLA, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
(in thousands, except share and per share data)
| Year Ended January 31, | ||||||||||||
| 2013 | 2012 | 2011 | ||||||||||
| Revenue |
$ | 121,066 | $ | 97,257 | $ | 94,739 | ||||||
| Cost of revenue |
40,405 | 32,458 | 34,500 | |||||||||
|
|
|
|
|
|
|
|||||||
| Gross profit |
80,661 | 64,799 | 60,239 | |||||||||
|
|
|
|
|
|
|
|||||||
| Operating expenses: |
||||||||||||
| Research and development |
42,829 | 37,618 | 34,449 | |||||||||
| Selling, general and administrative |
17,926 | 15,926 | 10,313 | |||||||||
|
|
|
|
|
|
|
|||||||
| Total operating expenses |
60,755 | 53,544 | 44,762 | |||||||||
| Income from operations |
19,906 | 11,255 | 15,477 | |||||||||
| Other income (loss), net |
136 | (90 | ) | (47 | ) | |||||||
|
|
|
|
|
|
|
|||||||
| Income before income taxes |
20,042 | 11,165 | 15,430 | |||||||||
| Provision for income taxes |
1,854 | 1,344 | 1,501 | |||||||||
|
|
|
|
|
|
|
|||||||
| Net income |
$ | 18,188 | $ | 9,821 | $ | 13,929 | ||||||
|
|
|
|
|
|
|
|||||||
| Net income per share attributable to ordinary shareholders: |
||||||||||||
| Basic |
$ | 0.64 | $ | 0.32 | $ | 0.54 | ||||||
|
|
|
|
|
|
|
|||||||
| Diluted |
$ | 0.60 | $ | 0.30 | $ | 0.50 | ||||||
|
|
|
|
|
|
|
|||||||
| Weighted-average shares used to compute net income per share attributable to ordinary shareholders: |
||||||||||||
| Basic |
13,511,646 | 7,961,944 | 7,458,627 | |||||||||
|
|
|
|
|
|
|
|||||||
| Diluted |
15,016,986 | 9,469,820 | 9,107,073 | |||||||||
|
|
|
|
|
|
|
|||||||
See accompanying notes to consolidated financial statements.
70
Table of Contents
AMBARELLA, INC.
CONSOLIDATED STATEMENTS OF REDEEMABLE CONVERTIBLE PREFERENCE SHARES AND SHAREHOLDERS’ EQUITY (DEFICIT) (in thousands, except share data)
| Redeemable Convertible Preference Shares |
Outstanding Ordinary Shares |
Additional Paid-in Capital |
Retained Earnings (Accumulated Deficit) |
Total | ||||||||||||||||||||||||
| Shares | Amount | Shares | Amount | |||||||||||||||||||||||||
| Balance—January 31, 2010 |
12,268,131 | $ | 39,273 | 7,744,461 | $ | 3 | $ | 4,093 | $ | (21,529 | ) | $ | (17,433 | ) | ||||||||||||||
| Exercise of stock options, dollar amounts net of unvested stock options exercised early |
— | — | 100,779 | — | 140 | — | 140 | |||||||||||||||||||||
| Vesting of early exercised stock options |
— | — | — | — | 404 | — | 404 | |||||||||||||||||||||
| Stock-based compensation expense related to stock awards granted to employees and consultants |
— | — | — | — | 1,856 | — | 1,856 | |||||||||||||||||||||
| Net income |
— | — | — | — | — | 13,929 | 13,929 | |||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
| Balance—January 31, 2011 |
12,268,131 | 39,273 | 7,845,240 | 3 | 6,493 | (7,600 | ) | (1,104 | ) | |||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
| Issuance of preference shares |
1,047,596 | 11,627 | — | — | — | — | — | |||||||||||||||||||||
| Exercise of stock options, dollar amounts net of unvested stock options exercised early |
— | — | 454,053 | — | 824 | — | 824 | |||||||||||||||||||||
| Vesting of early exercised stock options |
— | — | — | — | 394 | — | 394 | |||||||||||||||||||||
| Stock-based compensation expense related to stock awards granted to employees and consultants |
— | — | — | — | 3,616 | — | 3,616 | |||||||||||||||||||||
| Net excess income tax benefit associated with stock-based compensation |
— | — | — | — | 125 | — | 125 | |||||||||||||||||||||
| Repurchase of ordinary shares |
— | — | (698,424 | ) | — | (7,227 | ) | — | (7,227 | ) | ||||||||||||||||||
| Net income |
— | — | — | — | — | 9,821 | 9,821 | |||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
| Balance—January 31, 2012 |
13,315,727 | 50,900 | 7,600,869 | 3 | 4,225 | 2,221 | 6,449 | |||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
| Conversion of redeemable convertible preference shares to ordinary shares |
(13,315,727 | ) | (50,900 | ) | 13,315,727 | 6 | 50,894 | — | 50,900 | |||||||||||||||||||
| Issuance of shares in connection with initial public offering, net of issuance cost |
5,804,651 | 3 | 30,412 | — | 30,415 | |||||||||||||||||||||||
| Conversion of preference share warrants to oridinary share warrants |
— | 110 | — | 110 | ||||||||||||||||||||||||
| Exercise of stock options, dollar amounts net of unvested stock options exercised early |
— | — | 313,827 | — | 950 | — | 950 | |||||||||||||||||||||
| Vesting of early exercised stock options |
— | — | — | — | 314 | — | 314 | |||||||||||||||||||||
| Stock-based compensation expense related to stock awards granted to employees and consultants |
— | — | — | — | 4,999 | — | 4,999 | |||||||||||||||||||||
| Net excess income tax benefit associated with stock-based compensation |
— | — | — | — | 7 | — | 7 | |||||||||||||||||||||
| Net income |
— | — | — | — | — | 18,188 | 18,188 | |||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
| Balance—January 31, 2013 |
— | $ | — | 27,035,074 | $ | 12 | $ | 91,911 | $ | 20,409 | $ | 112,332 | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
See accompanying notes to consolidated financial statements
71
Table of Contents
AMBARELLA, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(in thousands)
| Year Ended January 31, | ||||||||||||
| 2013 | 2012 | 2011 | ||||||||||
| Cash flows from operating activities: |
||||||||||||
| Net income |
$ | 18,188 | $ | 9,821 | $ | 13,929 | ||||||
| Adjustments to reconcile net income to net cash provided by operating activities: |
||||||||||||
| Depreciation of property and equipment |
737 | 596 | 563 | |||||||||
| Loss on disposal of long-lived assets |
4 | 23 | 4 | |||||||||
| Amortization of other intangible assets |
270 | 540 | 1,040 | |||||||||
| Stock-based compensation |
4,999 | 3,616 | 1,856 | |||||||||
| Net excess income tax benefits associated with stock-based compensation |
7 | (125 | ) | — | ||||||||
| Change in value of warrants |
(149 | ) | 103 | — | ||||||||
| Changes in operating assets and liabilities: |
||||||||||||
| Accounts receivable |
(10,668 | ) | (656 | ) | 260 | |||||||
| Inventories |
(2,132 | ) | 624 | (5,731 | ) | |||||||
| Prepaid expenses and other current assets |
(1,134 | ) | (511 | ) | (27 | ) | ||||||
| Deferred tax assets |
(871 | ) | (149 | ) | 486 | |||||||
| Other assets |
(443 | ) | (113 | ) | (227 | ) | ||||||
| Accounts payable |
193 | (244 | ) | 1,575 | ||||||||
| Accrued liabilities |
6,508 | 1,336 | (322 | ) | ||||||||
| Income taxes payable |
(244 | ) | 244 | 155 | ||||||||
| Deferred revenue |
(4,751 | ) | (2,419 | ) | (536 | ) | ||||||
|
|
|
|
|
|
|
|||||||
| Net cash provided by operating activities |
10,514 | 12,686 | 13,025 | |||||||||
|
|
|
|
|
|
|
|||||||
| Cash flows from investing activities: |
||||||||||||
| Restricted Cash |
514 | (274 | ) | (243 | ) | |||||||
| Short-term investment |
— | — | 5,000 | |||||||||
| Investment in a private company |
— | 102 | (972 | ) | ||||||||
| Purchase of property and equipment |
(1,528 | ) | (682 | ) | (896 | ) | ||||||
| Purchase of intangible assets |
— | (630 | ) | (830 | ) | |||||||
|
|
|
|
|
|
|
|||||||
| Net cash provided by (used in) investing activities |
(1,014 | ) | (1,484 | ) | 2,059 | |||||||
|
|
|
|
|
|
|
|||||||
| Cash flows from financing activities: |
||||||||||||
| Net proceeds from issuance of preference shares |
— | 11,627 | — | |||||||||
| Repurchase of ordinary shares, at cost |
— | (7,228 | ) | — | ||||||||
| Net proceeds from exercise, repurchase of stock options and employee stock purchase plan |
1,610 | 1,322 | 213 | |||||||||
| Proceeds from initial public offering, net of underwriting discounts and commissions and offering costs |
30,440 | — | — | |||||||||
| Net excess income tax benefits associated with stock-based compensation |
— | 125 | — | |||||||||
|
|
|
|
|
|
|
|||||||
| Net cash provided by financing activities |
32,050 | 5,846 | 213 | |||||||||
|
|
|
|
|
|
|
|||||||
| Net increase in cash and cash equivalents |
41,550 | 17,048 | 15,297 | |||||||||
| Cash and cash equivalents at beginning of period |
58,944 | 41,896 | 26,599 | |||||||||
|
|
|
|
|
|
|
|||||||
| Cash and cash equivalents at end of period |
$ | 100,494 | $ | 58,944 | $ | 41,896 | ||||||
|
|
|
|
|
|
|
|||||||
| Supplemental disclosure of cash flow information: |
||||||||||||
| Cash paid for income taxes |
$ | 3,402 | $ | 854 | $ | 657 | ||||||
|
|
|
|
|
|
|
|||||||
| Supplemental disclosure of noncash investing activities: |
||||||||||||
| Increase in accrued liabilities related to non-monetary assets purchases |
$ | 122 | $ | 59 | $ | 125 | ||||||
|
|
|
|
|
|
|
|||||||
| Supplemental disclosure of noncash financing activities: |
||||||||||||
| Increase in accrued liabilities related to non-monetary financing activities |
$ | 25 | $ | — | $ | — | ||||||
|
|
|
|
|
|
|
|||||||
| Conversion of convertible preference shares to ordinary shares |
$ | 50,900 | $ | — | $ | — | ||||||
|
|
|
|
|
|
|
|||||||
| Conversion of convertible preference share warrants to ordinary share warrants |
$ | 110 | $ | — | $ | — | ||||||
|
|
|
|
|
|
|
|||||||
See accompanying notes to consolidated financial statements.
72
Table of Contents
AMBARELLA, INC.
Notes to Consolidated Financial Statements
1. Organization and Summary of Significant Accounting Policies
Organization
Ambarella, Inc. (the “Company”) was incorporated in the Cayman Islands on January 15, 2004. The Company is a developer of semiconductor processing solutions for video that enable high-definition video capture, sharing and display. The Company combines its processor design capabilities with its expertise in video and image processing, algorithms and software to provide a technology platform that is designed to be easily scalable across multiple applications and enable rapid and efficient product development. The Company’s system-on-a-chip, or SoC, designs fully integrate high-definition video processing, image processing, audio processing and system functions onto a single chip, delivering exceptional video and image quality, differentiated functionality and low power consumption.
The Company sells its solutions to leading original design manufacturers, or ODMs, and original equipment manufacturers, or OEMs, globally.
On October 15, 2012, in connection with its initial public offering, or IPO, the Company completed the sale of 6,000,000 ordinary shares inclusive of 1,095,349 shares sold by certain shareholders of the Company. The public offering price of the shares sold in this offering was $6.00 per share. The net proceeds from the offering to the Company were approximately $25.4 million after deducting underwriting discounts and commissions and other offering expenses. Upon the completion of the IPO, all 13,315,727 outstanding redeemable convertible preference shares converted into ordinary shares on a one-to-one basis and all outstanding warrants to purchase redeemable convertible preference shares converted into warrants to purchase ordinary shares. On November 6, 2012, a total of 900,000 ordinary shares were sold to the Company’s IPO underwriters in connection with their exercise of the over-allotment option. The net proceeds to the Company from the sale of these shares were approximately $5.0 million after deducting underwriting discounts and commissions.
Basis of Consolidation
The Company’s fiscal year ends on January 31. The consolidated financial statements of the Company and its subsidiaries have been prepared in conformity with generally accepted accounting principles in the United States (“U.S. GAAP”). All intercompany transactions and balances have been eliminated in consolidation.
Use of Estimates
The preparation of consolidated financial statements in conformity with U.S. GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities, and the disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenue and expense during the reported periods. Actual results could differ from those estimates.
On an ongoing basis, management evaluates its estimates and assumptions, including those related to (i) the collectability of accounts receivable; (ii) write downs for excess and obsolete inventories; (iii) the estimated useful lives of long-lived assets; (iv) impairment of long-lived assets and financial instruments; (v) warranty obligations; (vi) the valuation of equity instruments; (vii) the realization of tax assets and estimates of tax liabilities, including reserves for uncertain tax positions; and (viii) the recognition and disclosure of contingent liabilities. These estimates and assumptions are based on historical experience and on various other factors which the Company believes to be reasonable under the circumstances. The company may engage third-party valuation specialists to assist with estimates related to the valuation of financial instruments and assets associated with various contractual arrangements, and the valuation of preference and ordinary shares. Such estimates often
73
Table of Contents
require the selection of appropriate valuation methodologies and significant judgment. Actual results could differ from these estimates under different assumptions or circumstances.
Concentration of Risk
The Company’s products are manufactured, assembled and tested by third-party contractors located primarily in Asia. The Company does not have long-term agreements with these contractors. A significant disruption in the operations of one or more of these contractors would impact the production of the Company’s products which could have a material adverse effect on its business, financial condition and results of operations.
A substantial portion of the Company’s revenue is derived from sales through its logistics provider, Wintech Microelectronics Co., Ltd., or Wintech, which serves as its non-exclusive sales representative in all of Asia other than Japan, and to one large direct ODM customer, Chicony Electronics Co., Ltd., or Chicony. Termination of the relationship with these two customers could result in a temporary or permanent loss of revenue and obligation to repurchase unsold product. Furthermore, any credit issues from these two customers could impair their abilities to make timely payment to the Company. See Note 13 for additional information regarding concentration with these two customers.
Financial instruments that potentially subject the Company to concentrations of credit risk consist primarily of cash and accounts receivable. The Company places its cash primarily in checking and money market accounts with reputable financial institutions. Deposits held with these financial institutions may exceed the amount of insurance provided on such deposits. The Company has not experienced any material losses on deposits of its cash. The Company does not hold or issue financial instruments for trading purposes.
The Company performs ongoing credit evaluations of each of its customers and adjusts credit limits based upon payment history and the customer’s credit worthiness. The Company regularly monitors collections and payments from its customers.
Foreign Currency Transactions
The U.S. dollar is the functional currency for the Company and its subsidiaries. Monetary assets and liabilities denominated in non-U.S. currencies are re-measured to U.S. dollars using current exchange rates in effect at the balance sheet date. Nonmonetary assets and liabilities are re-measured to U.S. dollars using historical exchange rates. Monetary and other accounts are re-measured to U.S. dollars using average exchange rates in effect during each period. Gains or losses from foreign currency re-measurement are included in other income (loss), net in the consolidated statements of operations, and, to date, have not been material.
Cash, Cash Equivalents and Short-Term Investments
The Company considers all highly liquid investments with maturities of less than three months at the time of purchase to be cash equivalents. Investments with maturities at the time of acquisition greater than three months are classified as short-term investments as these are considered as available-for-sale in current operations. There were no cash equivalents or short-term investments as of January 31, 2013 and 2012, respectively.
Cost Method Investment
The Company accounts for its investment in a privately held company under the cost method and reports the investment in other assets in the consolidated balance sheets. The Company monitors the carrying value of the investment and records a reduction in carrying value when a decline in value is deemed to be other than temporary. To date, the Company has not recognized any impairment losses related to this investment.
74
Table of Contents
Trade Accounts Receivable and Allowances for Doubtful Accounts
Trade accounts receivable are recorded at the invoiced amount and do not include finance charges. The Company performs ongoing credit evaluation of its customers and generally requires no collateral. The Company assesses the need for allowances for doubtful accounts for estimated losses resulting from the inability of its customers to make required payments by considering factors such as historical collection experience, credit quality, aging of the accounts receivable balances and current economic conditions that may affect a customer’s ability to pay. There were no write-offs of accounts receivable for the fiscal years 2013, 2012 and 2011, respectively. There was no allowance for doubtful accounts recorded as of January 31, 2013 and 2012, respectively.
Fair Market Value of Financial Instruments
The carrying amounts reflected in the consolidated balance sheets for cash, accounts receivable, accounts payable, accrued liabilities and other current liabilities, approximate fair value due to the short-term nature. The fair value of outstanding warrants to purchase redeemable convertible preference shares converted into warrants to purchase ordinary shares is described in Note 8.
Inventories
The Company records inventories at the lower of cost or market. The cost includes materials and other production costs and is computed using standard cost on a first-in, first-out basis. Inventory reserves are recorded for estimated obsolescence or unmarketable inventories based on forecast of future demand and market conditions. If actual market conditions are less favorable than projected, or if future demand for the Company’s products decrease, additional inventory write-downs may be required. Once inventory is written down, a new accounting basis has been established and, accordingly, any associated reserve is not reversed until the inventory sold or scrapped. There has been no material inventory loss to date to be recognized.
Property and Equipment
Property and equipment are stated at cost and depreciated using the straight-line method over the estimated useful life of three years for computer equipment, computer software, machinery, equipment and furniture and fixture. Leasehold improvements are amortized over the shorter of the lease term or their estimated useful lives. Repairs and maintenance are charged to expense as incurred.
Intangible Assets
Technology licenses purchased from third parties and that can be used in alternative research and development projects are capitalized as intangible assets. Capitalized costs are amortized over an estimated economic useful life under a straight-line method and recorded as research and development expenses.
Impairment of Long-Lived Assets
The Company records long-lived assets at cost and evaluates them for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. Events or changes in circumstances that may indicate that an asset is impaired include significant decreases in the market value of an asset, significant underperformance relative to expected historical or projected future results of operations, a change in the extent or manner in which an asset is utilized, significant declines in the estimated fair value of the overall Company for a sustained period, shifts in technology, loss of key management or personnel, changes in the Company’s operating model or strategy and competitive forces. When the sum of the expected future undiscounted cash flows expected to be generated by the related asset group is less than its carrying amount, an impairment loss would be recognized. Should impairment exist, the impairment loss would be measured based
75
Table of Contents
on the excess of the carrying amount of the asset over the asset’s estimated fair value. There has been no occurrence of events to date that would trigger an impairment analysis. As such, no impairment charge has been recognized as of January 31, 2013.
Revenue Recognition
The Company generates revenue from the sale of its SoCs to OEMs or ODMs, either directly or through logistics providers. Revenue from sales directly to OEMs and ODMs is recognized upon shipment provided persuasive evidence of an arrangement exists, legal title to the products and risk of ownership have transferred, the fee is fixed or determinable, and collection of the resulting receivable is reasonably assured. The Company provides its logistics providers with the right to return excess levels of inventory and to future price adjustments. Given the inability to reasonably estimate these price changes and returns, revenue and costs related to shipments to logistics providers are deferred until the Company has received notification from its logistics providers that they have sold the Company’s products. Information reported by the Company’s logistics providers includes product resale price, quantity and end customer shipment information as well as remaining inventory on hand. At the time of shipment to a logistics provider, the Company records a trade receivable as there is a legally enforceable right to receive payment, reduces inventory for the value of goods shipped as legal title has passed to the logistics provider and defers the related margin as deferred revenue in the consolidated balance sheets. Any price adjustments are recorded as a reduction to deferred revenue at the time the adjustments are agreed upon.
Arrangements with certain OEM customers provide for pricing that is dependent upon the end products into which the Company’s SoCs are used. These arrangements may also entitle the Company to a share of the product margin ultimately realized by the OEM. The minimum guaranteed amount of revenue related to the sale of products subject to these arrangements is recognized when all other elements of revenue recognition are met. Any amounts at the date of shipment invoiced in excess of the minimum guaranteed contract price are deferred until the additional amounts the Company is entitled to are fixed or determinable. Additional amounts earned by the Company resulting from margin sharing arrangements and determination of the end products into which the products are ultimately incorporated are recognized when end customer sales volume is reported to the Company.
The Company also sells a limited amount of software under perpetual licenses that include post-contract customer support, or PCS. The Company does not have evidence of fair value for the PCS and, accordingly, license revenue is recognized ratably over the estimated supporting period in accordance with ASC 985, Software Revenue Recognition. The revenue from those licenses comprised 2%, 3% and 2% of the Company’s revenue in the fiscal years 2013, 2012 and 2011, respectively.
Cost of Revenue
Cost of revenue includes cost of materials, cost associated with packaging and assembly, testing and shipping, cost of personnel, stock-based compensation, logistics and quality assurance, warranty cost, royalty expense, write-downs of inventories and allocation of overhead.
Warranty Costs
The Company typically provides warranty on its products. The Company accrues for the estimated warranty costs at the time when revenue is recognized. The warranty accruals are regularly monitored by management based upon historical experience and any specifically identified failures. While the Company engages in extensive product quality assessment, actual product failure rates, material usage or service delivery costs could differ from estimates and revisions to the estimated warranty liability would be required. The Company’s warranty accruals have not been material to date.
76
Table of Contents
Research and Development
Research and development costs are expensed as incurred and consist primarily of personnel costs, product development costs, which include engineering services, development software and hardware tools, license fees, cost of fabrication of masks for prototype products, other development materials costs, depreciation of equipment used in research and development and allocation of facilities costs.
Selling, General and Administrative
Selling, general and administrative expense consists of personnel costs, travel and trade show costs, legal expenses, other professional services and occupancy costs. Advertising expenses have not been material to date.
Operating Leases
The Company recognizes rent expense on a straight-line basis over the term of the lease. The difference between rent expense and rent paid is recorded as deferred rent and is included in accrued liabilities.
Income Taxes
The Company records income taxes using the asset and liability method, which requires the recognition of deferred tax assets and liabilities for the expected future tax consequences of events that have been recognized in its financial statements or tax returns. In estimating future tax consequences, generally all expected future events other than enactments or changes in the tax law or rates are considered. Valuation allowances are provided when necessary to reduce deferred tax assets to the amount expected to be realized.
The Company applies authoritative guidance for the accounting for uncertainty in income taxes. The guidance requires that tax effects of a position be recognized only if it is “more likely than not” to be sustained based solely on its technical merits as of the reporting date. Upon estimating the Company’s tax positions and tax benefits, the Company considered and evaluated numerous factors, which may require periodic adjustments and which may not reflect the final tax liabilities. The Company adjusts its financial statements to reflect only those tax positions that are more likely than not to be sustained under examination.
As part of the process of preparing consolidated financial statements, the Company is required to estimate its taxes in each of the jurisdictions in which it operates. The Company estimates actual current tax exposure together with assessing temporary differences resulting from differing treatment of items, such as accruals and allowances not currently deductible for tax purposes. These differences result in deferred tax assets, which are included in the consolidated balance sheets. In general, deferred tax assets represent future tax benefits to be received when certain expenses previously recognized in the consolidated statements of operations become deductible expenses under applicable income tax laws, or loss or credit carryforwards are utilized.
In assessing whether deferred tax assets may be realized, management considers whether it is more likely than not that some portion or all of deferred tax assets will be realized. The ultimate realization of deferred tax assets is dependent upon the generation of future taxable income.
The Company makes estimates and judgments about its future taxable income based on assumptions that are consistent with its plans and estimates. Should the actual amounts differ from estimates, the amount of valuation allowance could be materially impacted. Any adjustment to the deferred tax asset valuation allowance would be recorded in the income statement for the periods in which the adjustment is determined to be required.
Stock-Based Compensation
The Company measures stock-based compensation for equity awards granted to employees and directors based on the estimated fair value on the grant date, and recognizes that compensation as expense using the
77
Table of Contents
straight-line attribution method for service condition awards or using the graded-vesting attribution method for awards with performance conditions over the requisite service period, which is typically the vesting period of each award. The Company estimates the fair value of awards of restricted stock units, or RSUs, based on the fair market value of its ordinary shares on the date of grant. The Company uses the Black-Scholes option pricing model to determine the fair value of each option grant. Determining the fair value of stock option awards on the grant date requires the input of various assumptions, including stock price of the underlying ordinary share, the exercise price of the stock option, expected volatility, expected term, risk-free interest rate and dividend rate. The expected term is calculated using the simplified method as prescribed by the guidance provided by the Securities and Exchange Commission, as neither relevant historical experience nor other relevant data are available to estimate future exercise behavior. The expected volatility is based on the historical volatilities of similar companies whose share prices are publicly available for a period commensurate with the expected term. The risk-free interest rate is derived from the average U.S. Treasury constant maturity rates during the respective periods commensurate with the expected term. The expected dividend yield is zero because the Company has not historically paid dividends and has no present intention to pay dividends. The Company uses historical data to estimate pre-vesting award forfeitures and records stock-based compensation only for those awards that are expected to vest. Forfeitures are estimated at the time of grant and revised if necessary in subsequent periods if actual forfeitures differ from estimates.
The Company recognizes non-employee stock-based compensation expense based on the estimated fair value of the equity instrument determined by the Black-Scholes option pricing model. The fair value of the non-employee awards is remeasured at each reporting period until services required under the arrangement are completed, which is the vesting date.
Prior to the initial public offering, or IPO, the Company engaged an independent appraiser to assist in the valuation of its ordinary share price. The board of directors directed these regular valuations and had input into determining the relevant objective and subjective factors accounted for and relevant approaches in each valuation. After the IPO, the exercise price of stock option awards is determined based on the closing price of the Company’s ordinary shares traded on NASDAQ on the grant date.
Net Income Per Ordinary Share
The Company applies the two-class method to calculate and present net income per ordinary share. Under the two-class method, net income is allocated between ordinary shares and other participating securities based on their participating rights. Participating securities are defined as securities that may participate in undistributed earnings with ordinary shares, whether that participation is conditioned upon the occurrence of a specified event or not. Basic net income per ordinary share is computed by dividing net income allocable to ordinary shares by the weighted-average number of ordinary shares outstanding for the period. Diluted net income per ordinary share is computed by dividing net income allocable to ordinary shares and income allocable to participating securities, to the extent they are dilutive, by the weighted-average number of ordinary shares outstanding, including the dilutive effects of participating securities on an if-converted basis plus the dilutive effects of ordinary shares. The Company’s potential dilutive ordinary share equivalents consist of incremental ordinary shares issuable upon the exercise of options, upon the exercise of employee stock purchase plan, upon release of vested restricted stock units, upon conversion of its redeemable convertible preference shares and upon exercise of warrants.
The Company performs an assessment as to whether instruments granted in stock-based payment transactions are participating securities. Stock-based payment awards that have not yet vested meet the definition of a participating security provided the right to receive the dividend is non-forfeitable and non-contingent. These participating securities should be included in the computation of basic net income per share under the two-class method. The Company has concluded that its non-vested early-exercised options meet the definition of a participating security and should be included in the Company’s computation of basic earnings per ordinary share.
78
Table of Contents
Comprehensive Income
There are no differences between comprehensive income as defined by ASC 220, Comprehensive Income, and net income as reported in the Company’s consolidated statements of operations.
Recent Accounting Pronouncements
In May 2011, the FASB issued ASU No. 2011-04—Amendments to Achieve Common Fair Value Measurement and Disclosure Requirements in U.S. GAAP and IFRS. The FASB amended its guidance to converge fair value measurement and disclosure guidance about fair value measurement under U.S. GAAP with International Financial Reporting Standards (“IFRS”). The amendment changes the wording used to describe many of the requirements in U.S. GAAP for measuring fair value and for disclosing information about fair value measurements. For many of the requirements, the FASB does not intend for the amendment to result in a change in the application of the requirements in the current authoritative guidance. The amendment becomes effective prospectively for the Company’s interim period ending April 30, 2012. The adoption of this amendment did not have a material impact on the Company’s financial position, results of operations or disclosures.
In June 2011, the FASB issued ASU No. 2011-05, Presentation of Comprehensive Income, requiring entities to present comprehensive income in either a single continuous statement or in two separate, but consecutive financial statements. A single statement must present the components of net income, total net income, components of other comprehensive income, total other comprehensive income and a total for comprehensive income. In a two-statement approach, an entity must present the components of net income and total net income in the first statement. That statement must be immediately followed by a financial statement that presents the components of other comprehensive income, a total for other comprehensive income, and a total for comprehensive income. The option to present items of other comprehensive income in the statement of changes in equity is eliminated. The new requirements do not change, under either accounting framework, which components of comprehensive income are recognized in net income or other comprehensive income, or when an item of other comprehensive income must be reclassified to net income. Also, the earnings-per-share computation does not change. The Company adopted this guidance, which did not have an impact on its financial position, results of operations or disclosures and as such, due to the fact that there are no items that impact comprehensive income, no separate statement is presented.
2. Restricted Cash
The Company had a certificate of deposit of $0.5 million as of January 31, 2012. The certificate of deposit was in Taiwan Cooperative Bank and was pledged in connection with a request from an application for Taiwan government research and development grants. The pledge was restricted for use until December 2012 and had been recorded as restricted cash on the consolidated balance sheet as of January 31, 2012. There was no material restricted cash recorded as of January 31, 2013.
3. Inventories
Inventories at January 31, 2013 and 2012 consisted of the following:
| As of January 31, | ||||||||
| 2013 | 2012 | |||||||
| (in thousands) | ||||||||
| Work-in-progress |
$ | 4,044 | $ | 3,233 | ||||
| Finished goods |
4,874 | 3,553 | ||||||
|
|
|
|
|
|||||
| Total |
$ | 8,918 | $ | 6,786 | ||||
|
|
|
|
|
|||||
79
Table of Contents
4. Property and Equipment, net
Depreciation expense was approximately $0.7 million, $0.6 million and $0.6 million for the years ended January 31, 2013, 2012 and 2011, respectively. Property and equipment at January 31, 2013 and 2012 consisted of the following:
| As of January 31, | ||||||||
| 2013 | 2012 | |||||||
| (in thousands) | ||||||||
| Computer equipment and software |
$ | 2,810 | $ | 2,481 | ||||
| Machinery and equipment |
2,050 | 1,951 | ||||||
| Furniture and fixtures |
397 | 346 | ||||||
| Leasehold improvements |
642 | 543 | ||||||
| Construction in progress |
827 | — | ||||||
|
|
|
|
|
|||||
| 6,726 | 5,321 | |||||||
| Less: accumulated depreciation and amortization |
(4,190 | ) | (3,635 | ) | ||||
|
|
|
|
|
|||||
| Total property and equipment, net |
$ | 2,536 | $ | 1,686 | ||||
|
|
|
|
|
|||||
5. Intangible Assets
Intangible assets at January 31, 2013 and 2012 consisted of the following:
| As of January 31, 2013 | ||||||||||||
| Gross Carrying Value |
Accumulated Amortization |
Net Carrying Value |
||||||||||
| (in thousands) | ||||||||||||
| Intangible assets |
$ | 2,400 | $ | 2,400 | $ | — | ||||||
|
|
|
|
|
|
|
|||||||
| As of January 31, 2012 | ||||||||||||
| Gross Carrying Value |
Accumulated Amortization |
Net Carrying Value |
||||||||||
| (in thousands) | ||||||||||||
| Intangible assets |
$ | 2,400 | $ | 2,130 | $ | 270 | ||||||
|
|
|
|
|
|
|
|||||||
Intangible assets are recorded at cost and amortized over their estimated useful lives of three years. The aggregated amortization expense for the years ended January 31, 2013, 2012 and 2011 was approximately $0.3 million, $0.5 million and $1.0 million, respectively. There was no future amortization expense related to the intangible asset as of January 31, 2013.
6. Accrued Liabilities
Accrued liabilities at January 31, 2013 and 2012 consisted of the following:
| As of January 31, | ||||||||
| 2013 | 2012 | |||||||
| (in thousands) | ||||||||
| Accrued employee compensation |
$ | 8,599 | $ | 4,642 | ||||
| Refundable exercised unvested options |
210 | 470 | ||||||
| Accrued warranty |
352 | 404 | ||||||
| Accrued rebates |
272 | 233 | ||||||
| Accrued product development costs |
2,875 | 679 | ||||||
| Other accrued liabilities |
2,111 | 1,503 | ||||||
|
|
|
|
|
|||||
| Total accrued liabilities |
$ | 14,419 | $ | 7,931 | ||||
|
|
|
|
|
|||||
80
Table of Contents
7. Deferred Revenue and Deferred Cost
Deferred revenue and related cost at January 31, 2013 and 2012 consisted of the following:
| As of January 31, | ||||||||
| 2013 | 2012 | |||||||
| (in thousands) | ||||||||
| Deferred revenue on product shipments |
$ | 3,827 | $ | 6,968 | ||||
| Deferred revenue from licenses |
485 | 1,955 | ||||||
| Deferred cost of revenue on product shipments |
(861 | ) | (721 | ) | ||||
|
|
|
|
|
|||||
| Total deferred income |
$ | 3,451 | $ | 8,202 | ||||
|
|
|
|
|
|||||
8. Capital Stock
Redeemable Convertible Preference shares
In January 2012, the Company completed the sale of Series D redeemable convertible preference shares, or Series D. A portion of the proceeds from the sale of Series D shares was used to repurchase ordinary shares under a repurchase program. A total of 1,047,596 shares of Series D preference were sold at a price of $11.25 per share, resulting in net proceeds of approximately $11.6 million. Upon the closing of the IPO, all outstanding convertible preference shares, including the Series D shares, converted into ordinary shares on a one-to-one basis.
Redeemable convertible preference shares at January 31, 2012 consisted of the following:
| Par Value Per Share |
Shares | Initial Liquidation Preference |
||||||||||||||
| Series |
Authorized | Outstanding | ||||||||||||||
| (in thousands) | ||||||||||||||||
| A |
$ | 0.00045 | 5,611,111 | 5,611,107 | $ | 10,100 | ||||||||||
| B |
$ | 0.00045 | 3,665,550 | 3,629,253 | 13,000 | |||||||||||
| C |
$ | 0.00045 | 3,027,777 | 3,027,771 | 16,350 | |||||||||||
| D |
$ | 0.00045 | 2,222,222 | 1,047,596 | 11,785 | |||||||||||
|
|
|
|
|
|
|
|||||||||||
| 14,526,660 | 13,315,727 | $ | 51,235 | |||||||||||||
|
|
|
|
|
|
|
|||||||||||
Ordinary Share Repurchase Program
In January 2012, the Company completed an ordinary share repurchase program. Pursuant to the program, the Company offered to repurchase ordinary shares at a price of $10.35 per ordinary share, which approximated the then-current fair market value. A total of 698,424 ordinary shares were tendered by employees, former-employees and consultants for repurchase by the Company. The ordinary shares tendered for repurchase were originally acquired through the exercise of stock options prior to the shares being tendered. A total of approximately $7.2 million cash was paid to ordinary shareholders for the 698,424 shares repurchased. The cost of this repurchase program was reflected in additional paid-in capital in the consolidated statements of redeemable convertible preference shares and shareholders’ equity (deficit).
Stock Split
Effective August 24, 2012, the Company’s board of directors and shareholders approved a reverse stock split of one (1) ordinary share for every four and one half (4.5) authorized, issued and outstanding ordinary shares and one (1) preference share for every four and one half (4.5) authorized, issued and outstanding preference shares (the “Stock Split”). Upon approval of the Stock Split, the ordinary shares and preference shares
81
Table of Contents
outstanding and the number of ordinary shares and preference shares covered by each outstanding right, option, warrant or arrangement were proportionately decreased to reflect the Stock Split and the exercise or purchase price of each such right, option, warrant or arrangement was proportionately increased to reflect the Stock Split. The Company is authorized to accept the surrender of fractional shares resulting from the Stock Split from any shareholder that elects to forego payment for such fractional shares.
Initial Public Offering
On October 15, 2012, in connection with its initial public offering, or IPO, the Company completed the sale of 6,000,000 ordinary shares inclusive of 1,095,349 shares sold by certain shareholders of the Company. The public offering price of the shares sold in this offering was $6.00 per share. The net proceeds from the offering to the Company were approximately $25.4 million after deducting underwriting discounts and commissions and other offering expenses. Upon the completion of the IPO, all 13,315,727 outstanding redeemable convertible preference shares converted into ordinary shares on a one-to-one basis and all outstanding warrants to purchase redeemable convertible preference shares converted into warrants to purchase ordinary shares. On November 6, 2012, a total of 900,000 ordinary shares were sold to the Company’s IPO underwriters in connection with their exercise of the over-allotment option. The net proceeds to the Company from the sale of these shares were approximately $5.0 million after deducting underwriting discounts and commissions.
Preference shares
After completion of the IPO, a total of 20,000,000 preference shares, with a $0.00045 par value per share, were authorized. There were no shares issued and outstanding as of January 31, 2013.
Warrants
In connection with a financing agreement in 2004, the Company issued warrants to purchase Series B redeemable convertible preference shares at an exercise price of $3.582 per share. The warrants are fully vested and are exercisable through December 2014.
In June 2005, the FASB issued authoritative guidance on the classification of freestanding warrants and other similar instruments on shares that are redeemable (either puttable or mandatorily redeemable). The guidance requires liability classification for warrants issued that are exercisable into convertible preferred stock. Liability classification requires the warrants to be remeasured to their fair value for each reporting period. At January 31, 2012, the fair value of the warrants of $259,000 was included in accrued liabilities.
Prior to the closing of IPO, the Company utilized the Black-Scholes option pricing model to determine the fair value of the warrants to purchase redeemable convertible preference shares, including the consideration of underlying ordinary share price, a risk-free interest rate, the expected term and expected volatilities. The warrants were revalued up to the closing of IPO and any change in fair value has been recorded in other income (loss).
The warrants to purchase 36,292 redeemable convertible preference shares converted to warrants to purchase ordinary shares in connection with the IPO on October 10, 2012, and as a result, $110,000 of aggregate fair market value was reclassified from liabilities to shareholders’ equity. A total of 36,292 warrants were outstanding and have not been exercised as of January 31, 2013.
82
Table of Contents
Ordinary shares
200,000,000 and 44,444,444 ordinary shares were authorized at January 31, 2013 and 2012, respectively. As of January 31, 2013 and 2012, the following ordinary shares were reserved for future issuance:
| As of January 31, | ||||||||
| 2013 | 2012 | |||||||
| Shares reserved for redeemable convertible preference shares |
— | 13,315,727 | ||||||
| Shares reserved for options and restricted stock units |
5,818,126 | 4,960,843 | ||||||
| Shares reserved for employee stock purchase plan |
460,445 | — | ||||||
| Shares reserved for warrants |
36,292 | 36,292 | ||||||
9. Employee Benefits and Stock-based Compensation
401(k) Plan
The Company maintains a defined contribution 401(k) plan (the “401(k) Plan”) for all of its eligible U.S. employees. Under the 401(k) Plan, eligible employees may contribute up to the Internal Revenue Service annual contribution limitation. The Company is responsible for administrative costs of the Plan. The Company has not had any matching contributions to date.
Stock Option Plans
2004 Stock Plan. The board of directors adopted, and the shareholders approved, the 2004 Stock Plan, as amended, (the “2004 Plan”). The 2004 Plan was last amended on August 28, 2012. The 2004 Plan provides for the grant of incentive stock options (“ISOs”) within the meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the “Code”), nonstatutory stock options (“NSOs”), stock purchase rights to acquire restricted stock and restricted stock units. Upon the completion of the IPO, no additional awards will be granted under the 2004 Plan and the 2004 Plan was terminated. However, all outstanding stock options and other awards previously granted under the 2004 Plan will remain subject to the terms of the 2004 Plan.
2012 Equity Incentive Plan. The board of directors has adopted, and the shareholders have approved, the 2012 Equity Incentive Plan, (the “EIP”). The EIP became effective on October 8, 2012. The EIP permits the grant of ISOs, within the meaning of Section 422 of the Code, to employees of the Company and any of the Company’s subsidiary corporations, and the grant of NSOs, stock appreciation rights, restricted stock, restricted stock units, performance units, performance shares, deferred stock units and dividend equivalents to employees, directors and consultants of the Company and any of the Company’s subsidiary corporations’ employees and consultants.
The exercise price of ISOs granted to a holder of more than 10% of the voting power of all classes of the Company’s shares shall be no less than 110% of the estimated fair market value on the grant date. The exercise price of ISOs granted to other employees and NSOs shall be no less than 100% of estimated fair market value on the grant date. Options granted under the Plans have a term of up to 10 years from grant date. Options granted to new employees generally vest 25% on the first anniversary date of the grant and the remainder ratably over the following 36 months. Vesting schedules for other grants to employees vary and are subject to approval by the board of directors.
In the third quarter of fiscal year 2013, the Company’s board of directors granted restricted stock units, or RSUs, covering a total of 344,671 ordinary shares. The estimated fair value on the grant date was $9.99 per ordinary share. Pursuant to the terms of the awards, 1/16th of the RSUs shall vest each 3 months following the vesting commencement date, so as to be 100% vested on the fourth anniversary of the vesting commencement date (the “Time-Based Vesting Schedule”); provided, however, that the RSUs shall not vest at all until a
83
Table of Contents
Liquidity Event has occurred, at which time the Time-Based Vesting Schedule shall apply, subject to the RSU holder continuing to provide services to the Company through such vesting dates. For purpose of the RSUs, “Liquidity Event” means either (i) the expiration of the lock-up period that commenced on October 10, 2012 and will end on April 8, 2013 applicable in connection with the Company’s IPO, or (ii) a change in control of the Company. The lock-up period is not a contingent condition, and, accordingly, beginning at the IPO, a cumulative expense for the portion of the RSUs that had met the service condition was recognized.
2012 Employee Stock Purchase Plan. The board of directors has adopted, and the shareholders have approved, the 2012 Employee Stock Purchase Plan, or ESPP, which became effective upon the completion of IPO. The ESPP permits eligible participants to purchase ordinary shares at a discount through contributions of up to 10% of their eligible compensation, subject to any IRS limitations. The ESPP provides for offering and purchase periods of six months in duration, except for the first offering period that commenced on the occurrence of the IPO and will end on September 16, 2013. The purchase price of ordinary shares is 85% of the lower of the closing market price of the Company’s ordinary shares on the first trading day of each offering period or on the purchase date.
Early exercise rights. Certain employees have the right to early exercise unvested options, subject to repurchase rights held by the Company at their original purchase price upon termination of employment until vested. As of January 31, 2013 and 2012, a total of 84,377 and 76,982 shares of unvested early exercised options were repurchased, respectively. There were 53,151 and 122,064 unvested shares subject to the Company’s repurchase rights as of January 31, 2013 and 2012, respectively.
Stock-based Compensation
The following table presents the classification of stock-based compensation for the periods indicated:
| Year Ended January 31, | ||||||||||||
| 2013 | 2012 | 2011 | ||||||||||
| (in thousands) | ||||||||||||
| Stock-based compensation: |
||||||||||||
| Cost of revenue |
$ | 92 | $ | 52 | $ | 41 | ||||||
| Research and development |
2,942 | 1,821 | 1,058 | |||||||||
| Selling, general and administrative |
1,965 | 1,743 | 757 | |||||||||
|
|
|
|
|
|
|
|||||||
| Total stock-based compensation |
$ | 4,999 | $ | 3,616 | $ | 1,856 | ||||||
|
|
|
|
|
|
|
|||||||
As of January 31, 2013, total unrecognized compensation cost related to unvested stock options and unvested restricted stock units was $7.3 million and $2.4 million, respectively and is expected to be recognized over a weighted-average period of 2.26 years and 1.77 years, respectively. As of January 31, 2012, total unrecognized compensation cost related to unvested stock options was $9.5 million and is expected to be recognized over a weighted-average period of 2.70 years.
The Company recognized $507,000 and $473,000 of income tax benefit, of which $7,000 and $125,000 was recorded in paid-in-capital for the years ended January 31, 2013 and 2012, respectively. The Company recognized $111,000 of deferred income tax benefit for the year ended January 31, 2011 which had no impact on paid-in capital.
84
Table of Contents
The following table sets forth the weighted-average assumptions used to estimate the fair value of the stock options and employee stock purchase plan awards for the periods indicated:
| Year Ended January 31, |
||||||||||||
| 2013 | 2012 | 2011 | ||||||||||
| Stock Options: |
||||||||||||
| Volatility |
66 | % | 65 | % | 63 | % | ||||||
| Risk-free interest rate |
0.91 | % | 1.64 | % | 1.79 | % | ||||||
| Expected term (years) |
6.05 | 6.05 | 6.05 | |||||||||
| Dividend yield |
0 | % | 0 | % | 0 | % | ||||||
| Employee stock purchase plan awards: |
||||||||||||
| Volatility |
51 | % | N/A | N/A | ||||||||
| Risk-free interest rate |
0.18 | % | N/A | N/A | ||||||||
| Expected term (years) |
0.94 | N/A | N/A | |||||||||
| Dividend yield |
0 | % | N/A | N/A | ||||||||
The following table summarizes stock option activities for the periods indicated:
| Option Outstanding | ||||||||||||||||||||||||
| Shares | Weighted- Average Exercise Price |
Weighted- Average Grant-date Fair Value |
Total Intrinsic Value of options Exercised (in thousands) |
Weighted- Average Remaining Contactual Term (in years) |
Aggregate Intrinsic Value (in thousands) |
|||||||||||||||||||
| Outstanding at January 31, 2010 |
2,952,083 | $ | 2.73 | |||||||||||||||||||||
| Granted |
1,024,629 | 8.77 | $ | 5.12 | ||||||||||||||||||||
| Exercised |
(100,779 | ) | 2.11 | $ | 670 | |||||||||||||||||||
| Forfeited |
(61,151 | ) | 4.04 | |||||||||||||||||||||
|
|
|
|||||||||||||||||||||||
| Outstanding at January 31, 2011 |
3,814,782 | 4.35 | ||||||||||||||||||||||
| Granted |
1,207,564 | 8.82 | $ | 5.24 | ||||||||||||||||||||
| Exercised |
(454,053 | ) | 2.91 | $ | 2,682 | |||||||||||||||||||
| Forfeited |
(192,387 | ) | 6.78 | |||||||||||||||||||||
|
|
|
|||||||||||||||||||||||
| Outstanding at January 31, 2012 |
4,375,906 | 5.63 | ||||||||||||||||||||||
| Granted |
451,071 | 8.79 | $ | 5.23 | ||||||||||||||||||||
| Exercised |
(313,827 | ) | 3.21 | $ | 2,087 | |||||||||||||||||||
| Forfeited |
(168,615 | ) | 7.22 | |||||||||||||||||||||
|
|
|
|||||||||||||||||||||||
| Outstanding at January 31, 2013 |
4,344,535 | $ | 6.07 | 6.81 | $ | 16,918 | ||||||||||||||||||
| Exercisable at January 31, 2013 |
3,100,758 | $ | 5.20 | 6.17 | $ | 14,774 | ||||||||||||||||||
| Vested and expected to vest at January 31, 2013 |
4,257,819 | $ | 6.02 | 6.78 | $ | 16,768 | ||||||||||||||||||
Exercisable shares include options with early exercise rights. The vested and expected-to-vest options are calculated based on vesting schedule of each grant as of the reporting date.
The intrinsic value of options outstanding, exercisable and expected-to-vest options are calculated based on the difference between the fair market value of the Company’s ordinary shares on reporting date and exercise price. The closing price of the Company’s ordinary shares was $9.96 on January 31, 2013, as reported by the NASDAQ Global Market. The intrinsic value of exercised options is calculated based on the difference between the fair market value of the Company’s ordinary shares as of exercise date and exercise price.
85
Table of Contents
The following table summarizes restricted stock units activities for the year ended January 31, 2013:
| Shares | Weighted- Average Grant-Date Fair Value |
|||||||
| Unvested at January 31, 2012 |
— | $ | — | |||||
| Granted |
345,171 | 9.99 | ||||||
| Vested |
— | — | ||||||
| Forfeited |
(5,954 | ) | 9.99 | |||||
|
|
|
|||||||
| Unvested at January, 2013 |
339,217 | $ | 9.99 | |||||
As of January 31, 2013, the aggregate intrinsic value of unvested restricted stock units was $3.4 million.
Non-employee Stock-based Compensation
The fair value of awards granted to non-employees is determined on the date of grant and remeasured at the end of each reporting period until such awards vest. The non-employee stock-based compensation was not material for the years ended January 31, 2013, 2012 and 2011, respectively.
Modification of Stock-based Compensation
During fiscal year 2012, the Company modified certain stock-based awards outstanding for Mr. Victor Lee, the Company’s former Chief Financial Officer. Pursuant to a severance agreement with Mr. Lee, the Company (i) immediately accelerated 12 months of vesting of outstanding options held by Mr. Lee to the extent such options vest based solely on service to the Company over time, and (ii) accelerated the vesting of an aggregate additional 22,222 shares. In addition, the Company extended the post-termination exercise period of vested outstanding options to the earlier of (a) two-year anniversary of completion of the Company’s initial public offering or (b) the expiration of the option by its terms. Upon the modification of Mr. Lee’s stock-based awards, the Company recognized an additional $206,000 in stock-based compensation during fiscal year 2012.
10. Net Income Per Ordinary Share
The following table sets forth the computation of basic and diluted net income per ordinary share for the periods indicated:
| Year Ended January 31, | ||||||||||||
| 2013 | 2012 | 2011 | ||||||||||
| (in thousands, except share and per share data) |
||||||||||||
| Numerator: |
||||||||||||
| Net income |
$ | 18,188 | $ | 9,821 | $ | 13,929 | ||||||
| Less: amount allocable to preference shareholders |
(9,517 | ) | (7,204 | ) | (9,749 | ) | ||||||
| Less: amount allocable to unvested early exercised options |
(61 | ) | (51 | ) | (172 | ) | ||||||
|
|
|
|
|
|
|
|||||||
| Net income allocable to ordinary shareholders—basic |
$ | 8,610 | $ | 2,566 | $ | 4,008 | ||||||
|
|
|
|
|
|
|
|||||||
| Undistributed earnings reallocated to ordinary shareholders |
432 | 277 | 514 | |||||||||
|
|
|
|
|
|
|
|||||||
| Net income allocable to ordinary shareholders—diluted |
$ | 9,042 | $ | 2,843 | $ | 4,522 | ||||||
|
|
|
|
|
|
|
|||||||
86
Table of Contents
| Denominator: |
||||||||||||
| Weighted-average ordinary shares outstanding |
13,599,273 | 8,118,834 | 7,779,624 | |||||||||
| Less: weighted-average unvested early exercised options subject to repurchase |
(87,627 | ) | (156,890 | ) | (320,997 | ) | ||||||
|
|
|
|
|
|
|
|||||||
| Weighted-average ordinary shares—basic |
13,511,646 | 7,961,944 | 7,458,627 | |||||||||
|
|
|
|
|
|
|
|||||||
| Effect of potentially dilutive securities: |
||||||||||||
| Employee stock options |
1,443,809 | 1,507,876 | 1,648,446 | |||||||||
| Restricted stock units |
16,930 | — | — | |||||||||
| Employee stock purchase plan |
27,230 | — | — | |||||||||
| Warrants to purchase ordinary shares |
6,737 | — | — | |||||||||
| Over-allotment shares |
10,634 | — | — | |||||||||
| Weighted-average ordinary shares—diluted |
15,016,986 | 9,469,820 | 9,107,073 | |||||||||
|
|
|
|
|
|
|
|||||||
| Net income per ordinary share: |
||||||||||||
| Basic |
$ | 0.64 | $ | 0.32 | $ | 0.54 | ||||||
|
|
|
|
|
|
|
|||||||
| Diluted |
$ | 0.60 | $ | 0.30 | $ | 0.50 | ||||||
|
|
|
|
|
|
|
Earnings per share (EPS) of ordinary shares was calculated using the two-class method required for participating securities. Prior to the date of the IPO, all series of redeemable convertible preference shares were considered to be participating securities due to their non-cumulative dividend rights. In connection with the Company’s IPO in October 2012, all outstanding redeemable convertible preference shares converted to ordinary shares. Net income has been allocated to the ordinary shares, redeemable convertible preference shares and unvested early exercised options based on their respective rights to share in net income and weighted-average outstanding during the periods.
The following weighted-average potentially dilutive securities were excluded from the computation of diluted net income per ordinary share as their effect would have been antidilutive:
| Year Ended January 31, | ||||||||||||
| 2013 | 2012 | 2011 | ||||||||||
| Options to purchase ordinary shares |
2,053,520 | 1,698,505 | 637,090 | |||||||||
| Restricted stock units |
60,504 | — | — | |||||||||
| Employee stock purchase plan |
20,356 | — | — | |||||||||
| Early exercised options subject to repurchase |
87,627 | 156,890 | 320,997 | |||||||||
| Redeemable convertible preference shares (if-converted basis) |
9,131,824 | 12,344,993 | 12,268,131 | |||||||||
| Warrants to purchase redeemable convertible preference shares (if-converted basis) |
— | 36,292 | 36,292 | |||||||||
| Warrants to purchase ordinary shares |
24,889 | — | — | |||||||||
|
|
|
|
|
|
|
|||||||
| 11,378,720 | 14,236,680 | 13,262,510 | ||||||||||
|
|
|
|
|
|
|
|||||||
87
Table of Contents
11. Income Taxes
Income before income taxes consisted of the following for the periods indicated:
| Year Ended January 31, | ||||||||||||
| 2013 | 2012 | 2011 | ||||||||||
| (in thousands) | ||||||||||||
| U.S. operations |
$ | 3,264 | $ | 2,923 | $ | 2,758 | ||||||
| Non-U.S. operations |
16,778 | 8,242 | 12,672 | |||||||||
|
|
|
|
|
|
|
|||||||
| Income before income taxes |
$ | 20,042 | $ | 11,165 | $ | 15,430 | ||||||
|
|
|
|
|
|
|
|||||||
Income tax provision consisted of the following for the periods indicated:
| Year Ended January 31, | ||||||||||||
| 2013 | 2012 | 2011 | ||||||||||
| (in thousands) | ||||||||||||
| Current: |
||||||||||||
| U.S. federal tax |
$ | 2,022 | $ | 962 | $ | 306 | ||||||
| U.S. state taxes |
5 | 26 | — | |||||||||
| Non-U.S. foreign taxes |
701 | 502 | 708 | |||||||||
|
|
|
|
|
|
|
|||||||
| 2,728 | 1,490 | 1,014 | ||||||||||
|
|
|
|
|
|
|
|||||||
| Deferred: |
||||||||||||
| U.S. federal tax |
(743 | ) | (73 | ) | 473 | |||||||
| U.S. state taxes |
(109 | ) | (36 | ) | 10 | |||||||
| Non-U.S. foreign taxes |
(22 | ) | (37 | ) | 4 | |||||||
|
|
|
|
|
|
|
|||||||
| (874 | ) | (146 | ) | 487 | ||||||||
|
|
|
|
|
|
|
|||||||
| Provision for income taxes |
$ | 1,854 | $ | 1,344 | $ | 1,501 | ||||||
|
|
|
|
|
|
|
|||||||
Income tax provision differed from the amounts computed by applying the U.S. federal income tax rate of 34% to pretax income as a result of the following for the periods indicated:
| Year Ended January 31, | ||||||||||||
| 2013 | 2012 | 2011 | ||||||||||
| (in thousands) | ||||||||||||
| U.S. federal tax at statutory rate |
$ | 6,814 | $ | 3,796 | $ | 5,246 | ||||||
| U.S. state taxes |
(107 | ) | (13 | ) | 9 | |||||||
| Non-U.S. foreign tax differential |
(4,513 | ) | (2,306 | ) | (3,577 | ) | ||||||
| Stock-based compensation |
682 | 537 | 366 | |||||||||
| U.S. R&D credit |
(890 | ) | (623 | ) | (571 | ) | ||||||
| Other |
(132 | ) | (47 | ) | 28 | |||||||
|
|
|
|
|
|
|
|||||||
| Provision for income taxes |
$ | 1,854 | $ | 1,344 | $ | 1,501 | ||||||
|
|
|
|
|
|
|
|||||||
88
Table of Contents
Temporary differences that gave rise to significant portions of the Company’s deferred tax assets and liabilities at January 31, 2013 and 2012 were as follows:
| As of January 31, | ||||||||
| 2013 | 2012 | |||||||
| (in thousands) | ||||||||
| Deferred tax assets: |
||||||||
| Deferred revenue |
$ | — | $ | 83 | ||||
| Federal and state credits |
1,243 | 1,301 | ||||||
| Expenses not currently deductible |
1,345 | 895 | ||||||
| Foreign deferred |
60 | 38 | ||||||
| Stock-based compensation |
950 | 451 | ||||||
|
|
|
|
|
|||||
| Gross deferred tax assets |
3,598 | 2,768 | ||||||
| Valuation allowance |
(1,243 | ) | (1,301 | ) | ||||
|
|
|
|
|
|||||
| Total deferred tax assets |
$ | 2,355 | $ | 1,467 | ||||
|
|
|
|
|
|||||
| Deferred tax liabilities |
||||||||
| Property and equipment |
(197 | ) | (180 | ) | ||||
|
|
|
|
|
|||||
| Net deferred tax assets |
$ | 2,158 | $ | 1,287 | ||||
|
|
|
|
|
|||||
Tax valuation allowance for the periods indicated below were as follows:
| Balance at Beginning of Period |
Additional Charged to Expenses |
Additions Charged to Other Account |
Deductions Charged to Expenses or Other Accounts |
Balance at End of Period |
||||||||||||||||
| (in thousands) | ||||||||||||||||||||
| Tax Valuation Allowance |
||||||||||||||||||||
| Year ended January 31, 2013 |
$ | 1,301 | $ | — | $ | — | $ | (58 | ) | $ | 1,243 | |||||||||
| Year ended January 31, 2012 |
$ | 1,153 | $ | 280 | $ | — | $ | (132 | ) | $ | 1,301 | |||||||||
| Year ended January 31, 2011 |
$ | 5,409 | $ | 46 | $ | — | $ | (4,302 | ) | $ | 1,153 | |||||||||
The Company conducts its business in several countries and regions and is subject to taxation in those jurisdictions. The Company is incorporated in the Cayman Islands with foreign subsidiaries in the U.S., China, Taiwan, and other foreign countries and regions. As such, the Company’s worldwide operating income is subject to varying tax rates and its effective tax rate is highly dependent upon the geographic distribution of its earnings or losses and the tax laws and regulations in each geographical region. Consequently, the Company has experienced lower effective tax rates as a substantial amount of its operations are conducted in lower-tax jurisdictions. If the Company’s operational structure was to change in such a manner that would increase the amount of operating income subject to taxation in higher-tax jurisdictions, or if the Company was to commence operations in jurisdictions assessing relatively higher tax rates, its effective tax rate could fluctuate significantly on a quarterly basis and/or be adversely affected. Dividend distributions received from the Company’s U.S. subsidiary and certain other foreign subsidiaries may be subject to local country withholding taxes when, and if, distributed. Deferred tax liabilities have not been recorded on unremitted earnings of certain subsidiaries because management’s intent is to indefinitely reinvest any undistributed earnings in those subsidiaries. If dividend distributions from those subsidiaries were to occur, the liability as of January 31, 2013 would be $2.9 million. Cumulative undistributed earnings of foreign subsidiaries for which no deferred taxes have been provided approximated $18.4 million at January 31, 2013. The decrease in tax expense for the fiscal years ended January 31, 2013 was primarily due to a change in the mix of earnings in various geographic jurisdictions and the re-enactment of the U.S. federal research credit on December 31, 2012.
89
Table of Contents
As of January 31, 2013 and 2012, the Company had deferred tax assets (net of deferred tax liabilities) before valuation allowance, of $3.4 million and $2.6 million, respectively. Realization of the deferred tax assets is dependent upon future taxable income, if any, the amount and timing of which are uncertain.
The Company has California state research and development credit carryforwards of approximately $1.8 million at January 31, 2013. The California credits can be carried forward indefinitely.
As of January 31, 2013, the Company maintained a full valuation allowance against its California credit carryforwards due to uncertainty regarding the future utilization of these deferred tax assets. The total state tax credit valuation allowance decreased by approximately $0.1 million in fiscal 2013. As of January 31, 2013, the Company has no valuation allowance other than state tax credit carryforwards as the Company has sufficient positive evidence to indicate no other valuation allowance is needed as a result of the Company’s history of profitable operations in the United States.
Utilization of the research credit carryforwards may be subject to an annual limitation due to the ownership percentage change limitations as defined by the U.S. Internal Revenue Code Section 382, as amended, and similar state provisions. The annual limitation may result in the expiration of the U.S. Federal and state research credit carryforwards before utilization. The Company does not expect any tax credit carryforwards to expire as a result of a Section 382 limitation.
The Company applies the provisions of FASB’s guidance on accounting for uncertainty in income taxes. As of January 31, 2013, the Company had approximately $3.0 million in unrecognized tax benefits, $2.1 million of which would affect the Company’s effective tax rate if recognized. The following table sets forth a reconciliation of the beginning and ending amount of unrecognized tax benefits:
| Year Ended January 31, | ||||||||||||
| 2013 | 2012 | 2011 | ||||||||||
| (in thousands) | ||||||||||||
| Beginning balance: |
$ | 2,213 | $ | 2,007 | $ | 1,883 | ||||||
| Additions based on tax positions related to the current year |
325 | 311 | 244 | |||||||||
| Additions for tax positions of prior years |
690 | 34 | 138 | |||||||||
| Reductions for tax positions of prior years |
(210 | ) | (139 | ) | (258 | ) | ||||||
|
|
|
|
|
|
|
|||||||
| Ending balance: |
$ | 3,018 | $ | 2,213 | $ | 2,007 | ||||||
|
|
|
|
|
|
|
|||||||
The Company classified $1.2 million and $1.1 million of income tax liabilities as other long term liabilities as of January 31, 2013 and 2012, respectively, because payment of cash or settlement is not anticipated within one year from the balance sheet date.
The Company recognizes interest and penalties related to uncertain tax positions as a component of income tax expense. The Company recorded $23,000, $37,000 and $22,000 of interest expense and penalties related to uncertain tax positions for the years ended January 31, 2013, 2012 and 2011, respectively. The Company recorded noncurrent liabilities of $116,000 and $93,000 related to interest and penalties related to uncertain tax positions at January 31, 2013 and 2012, respectively.
The Company is subject to income tax in the U.S. federal jurisdiction and various state and foreign jurisdictions. The U.S. Internal Revenue Service has concluded its audit of the Company’s Federal income tax return for the fiscal year ended January 31, 2010 with no adjustments.
The Company believes that an adequate provision has been made for any adjustments that may result from tax examinations. However, the outcome of tax audits cannot be predicted with certainty. If any issues addressed in the Company’s tax audits are resolved in a manner not consistent with management’s expectations, the
90
Table of Contents
Company could be required to adjust its provision for income tax in the period such resolution occurs. Although timing of the resolution and/or closure of audits is highly uncertain, the Company does not believe it is reasonably possible that its unrecognized tax benefits would materially change in the next 12 months.
As of January 31, 2013, the Company’s long-term income taxes payable, including estimated interest and penalties, was approximately $1.4 million. The Company was unable to make a reasonably reliable estimate of the timing of payments in individual years due to uncertainties in the timing of tax audits, if any, or their outcomes.
12. Commitments and Contingencies
The Company leases its principal facilities and time-based software licenses under operating agreements with various expiration dates through February 2018. Net rental expenses for the years ended January 31, 2013, 2012 and 2011 were approximately $4.3 million, $3.9 million and $2.6 million, respectively. Future annual minimum lease payments under these operating leases with initial lease terms in excess of one year are as follows:
| As of January 31, 2013 |
||||
| Fiscal Year |
(in thousands) | |||
| 2014 |
$ | 3,085 | ||
| 2015 |
614 | |||
| 2016 |
391 | |||
| 2017 |
10 | |||
| 2018 |
10 | |||
|
|
|
|||
| $ | 4,110 | |||
|
|
|
|||
Contract Manufacturer Commitments
The Company’s components and products are procured and built by independent contract manufacturers based on sales forecasts. These forecasts include estimates of future demand, historical trends, analysis of sales and marketing activities, and adjustment of overall market conditions. The Company regularly issues purchase orders to independent contract manufacturers which are cancelable only upon the agreement between the Company and the third-party. As of January 31, 2013 and 2012, total manufacturing purchase commitments were approximately $15.1 million and $9.9 million, respectively.
Indemnification
The Company, from time to time, in the normal course of business, indemnifies certain vendors with whom it enters into contractual relationships. The Company has agreed to hold the other party harmless against third-party claims in connection with the Company’s future products. The Company also indemnifies certain customers against third party claims related to certain intellectual property matters. It is not possible to determine the maximum potential amount of liability under these indemnification obligations due to the limited history of prior indemnification claims and the unique facts and circumstances that are likely to be involved in each particular claim. The Company has not made payments under these obligations and no liabilities have been recorded for these obligations on the consolidated balance sheets as of January 31, 2013 and 2012, respectively.
91
Table of Contents
13. Segment Reporting
The Company operates in one reportable segment related to the development and sales of low-power, high-definition video products. The Chief Executive Officer of the Company has been identified as the Chief Operating Decision Maker (the “CODM”) and manages the Company’s operations as a whole and for the purpose of evaluating financial performance and allocating resources, the CODM reviews financial information presented on a consolidated basis accompanied by information by customer and geographic region.
Geographic Revenue
The following table sets forth the Company’s revenue by geographic region for the periods indicated:
| Year Ended January 31, | ||||||||||||
| 2013 | 2012 | 2011 | ||||||||||
| (in thousands) | ||||||||||||
| Hong Kong |
$ | 104,458 | $ | 80,627 | $ | 87,438 | ||||||
| Asia Pacific |
550 | 1,350 | 1,503 | |||||||||
| United States |
7,990 | 9,825 | 2,213 | |||||||||
| North America |
2,602 | 1,323 | 455 | |||||||||
| Europe |
5,466 | 4,132 | 3,130 | |||||||||
|
|
|
|
|
|
|
|||||||
| Total revenue |
$ | 121,066 | $ | 97,257 | $ | 94,739 | ||||||
|
|
|
|
|
|
|
|||||||
As of January 31, 2013, substantially all of the Company’s long-lived tangible assets are located in the Asia Pacific region.
Major Customers
The customers representing 10% or more of revenue and accounts receivable were customer A, a logistic provider, and customer B, a direct ODM customer that combined accounted for approximately 80%, 80% and 91% of total revenue for the years ended January 31, 2013, 2012 and 2011, respectively. Accounts receivable with these customers combined accounted for approximately $17.6 million and $7.8 million as of January 31, 2013 and 2012, respectively.
14. Related-Party Transactions
The Company considers an entity to be a related party if it owns more than 10% of its total voting stock at the end of the year or if an officer or employee of an entity also serves on the board of directors or if it is a significant shareholder and has material business transactions with the Company.
Starting from the fiscal year 2008, the Company entered into several software license agreements with Cadence Design Systems, Inc. (“Cadence”). A member of the Company’s Board of Directors is also the Chief Executive Officer, President and Director of Cadence. Under these license agreements, the Company committed to pay $5.1 million payable in 17 quarterly payments through June 2011. In April 2011, the Company committed to pay $5.1 million for additional licenses payable in 12 quarterly payments through January 2014. The Company paid $1.8 million, $1.9 million and $0.9 million under these agreements for the years ended January 31, 2013, 2012 and 2011, respectively. Operating lease expenses related to these agreements included in research and development cost were approximately $1.8 million, $1.6 million and $0.6 million for the years ended January 31, 2013, 2012 and 2011, respectively.
In addition to the related party transactions noted above, the Company recognized revenue from sales to Wintech Microelectronics Co., Ltd, or Wintech, the Company’s logistics provider. Wintech, along with an
92
Table of Contents
affiliate, is a shareholder of the Company owning approximately 4.6% and 7.4% of the voting stock as of January 31, 2013 and 2012, respectively. The Company recognized revenue from sales to Wintech of approximately $76.5 million, $77.6 million and $85.7 million for the years ended January 31, 2013, 2012 and 2011, respectively. As of January 31, 2013 and 2012, the Company had receivables from Wintech of approximately $8.2 million and $7.8 million, respectively.
15. Subsequent Events
In March 2013, the Company entered into a lease agreement of approximately 35,000 square feet for its Santa Clara headquarters that has a five-year term and terminates in fiscal year 2019. The minimum lease payments for the following five fiscal years under this operating lease as of April 4, 2013 are as follows (in thousands):
| Fiscal Year |
||||
| 2014 |
$ | 530 | ||
| 2015 |
885 | |||
| 2016 |
906 | |||
| 2017 |
927 | |||
| 2018 |
948 | |||
|
|
|
|||
| $ | 4,196 | |||
|
|
|
|||
93
Table of Contents
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized, on April 4, 2013.
| AMBARELLA, INC. | ||
| By: | /s/ George Laplante | |
| George Laplante, Chief Financial Officer | ||
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints George Laplante as his true and lawful agent, proxy and attorney-in-fact, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to (i) act on, sign, and file with the Securities and Exchange Commission any and all amendments to this Annual Report on Form 10-K, together with all schedules and exhibits thereto, (ii) act on, sign, and file such certificates, instruments, agreements and other documents as may be necessary or appropriate in connection therewith, and (iii) take any and all actions that may be necessary or appropriate to be done, as fully for all intents and purposes as he might or could do in person, hereby approving, ratifying and confirming all that such agent, proxy and attorney-in-fact or any of his substitutes may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on April 4, 2013.
| Signature |
Title | |
| /s/ Feng-Ming Wang Feng-Ming Wang |
President, Chief Executive Officer, Executive | |
| /s/ George Laplante George Laplante |
Chief Financial Officer (Principal Financial and Accounting Officer) | |
| /s/ Les Kohn Les Kohn |
Chief Technical Officer and Director | |
| /s/ Chenming C. Hu Chenming C. Hu |
Director | |
| /s/ Christopher B. Paisley Christopher B. Paisley |
Director | |
| /s/ Lip-Bu Tan Lip-Bu Tan |
Director | |
| /s/ Andrew W. Verhalen Andrew W. Verhalen |
Director | |
94
Table of Contents
| Exhibit Number |
Description | |
| 3.1(1) | Amended and Restated Memorandum of Association and Second Amended and Restated Articles of Association of the Registrant | |
| 4.1(2) | Third Amended and Restated Investors’ Rights Agreement, dated January 5, 2012, by and among Ambarella, Inc. and certain of its shareholders | |
| 10.1.1(3)* | Amended and Restated 2004 Stock Plan | |
| 10.1.2(4)* | Form of Stock Option Agreement under Amended and Restated 2004 Stock Plan | |
| 10.1.3(5)* | Form of Restricted Stock Unit Award Agreement under Amended and Restated 2004 Stock Plan | |
| 10.2.1(6)* | 2012 Equity Incentive Plan | |
| 10.2.2(7)* | Form of Stock Option Agreement under 2012 Equity Incentive Plan | |
| 10.2.3(8)* | Form of Restricted Stock Agreement under 2012 Equity Incentive Plan | |
| 10.2.3(9)* | Form of Restricted Stock Unit Agreement under 2012 Equity Incentive Plan | |
| 10.3(10)* | 2012 Employee Stock Purchase Plan | |
| 10.4(11)* | Form of Indemnification Agreement | |
| 10.5(12)* | Offer Letter entered into by Ambarella, Inc. with George Laplante dated March 3, 2011, as amended | |
| 10.6.1(13)* | Form of Change of Control and Severance Agreement, entered into by Ambarella, Inc. with the Chief Executive Officer, Chief Financial Officer and Chief Technology Officer | |
| 10.6.2(14)* | Form of Change of Control and Severance Agreement, entered into by Ambarella, Inc. with executive officers other than the Chief Executive Officer, Chief Financial Officer and Chief Technology Officer | |
| 10.7.1(15)* | Description of Executive Bonus Plan For Fiscal Year 2013 | |
| 10.7.2(16)* | Description of Executive Bonus Plan For Fiscal Year 2014 | |
| 10.8.1(17) | Sales Representative Agreement dated January 31, 2011 by and between Ambarella, Inc. and WT Microelectronics Co., Ltd. | |
| 10.8.2(18) | Amendment No. 1 to Sales Representative Agreement dated February 1, 2012 by and between Ambarella, Inc. and WT Microelectronics Co., Ltd. | |
| 10.8.3(19) | Amendment No. 2 to Sales Representative Agreement dated October 1, 2012 by and between Ambarella, Inc. and WT Microelectronics Co., Ltd. | |
| 10.9.1(20) | Lease dated September 29, 2006 by and between Renault & Handley Employees’ Investment Co. and Ambarella Corporation | |
| 10.9.2(21) | First Amendment to Lease dated November 12, 2009 by and between Renault & Handley Employees’ Investment Co. and Ambarella Corporation | |
| 10.10 | Lease Agreement dated March 1, 2013 by and between Ambarella Corporation and Westcore Jay, LLC. | |
| 22.1(22) | List of subsidiaries of the registrant | |
| 23.1 | Consent of PricewaterhouseCoopers LLP, independent registered public accounting firm | |
| 24.1 | Power of Attorney (included in signature page). | |
| 31.1 | Certification of Principal Executive Officer Required Under Rule 13a-14(a) and 15d-14(a) of the Securities Exchange Act of 1934, as amended. | |
95
Table of Contents
| 31.2 | Certification of Principal Financial Officer Required Under Rule 13a-14(a) and 15d-14(a) of the Securities Exchange Act of 1934, as amended. | |
| 32.1± | Certification of Principal Executive Officer and Principal Financial Officer Required Under Rule 13a-14(b) of the Securities Exchange Act of 1934, as amended, and 18 U.S.C. §1350. | |
| 101.INS† | XBRL Instance Document | |
| 101.SCH† | XBRL Taxonomy Schema Linkbase Document | |
| 101.CAL† | XBRL Taxonomy Calculation Linkbase Document | |
| 101.DEF† | XBRL Taxonomy Definition Linkbase Document | |
| 101.LAB† | XBRL Taxonomy Labels Linkbase Document | |
| 101.PRE† | XBRL Taxonomy Presentation Linkbase Document | |
| (1) | Incorporated by reference to the Form S-1/A (No. 333-174838) filed on September 12, 2012. |
| (2) | Incorporated by reference to the Form S-1/A (No. 333-174838) filed on August 22, 2012. |
| (3) | Incorporated by reference to the Form S-1/A (No. 333-174838) filed on September 12, 2012. |
| (4) | Incorporated by reference to the Form S-1 (No. 333-174838) filed on June 10, 2011. |
| (5) | Incorporated by reference to the Form S-1/A (No. 333-174838) filed on September 12, 2012. |
| (6) | Incorporated by reference to the Form S-1/A (No. 333-174838) filed on September 12, 2012. |
| (7) | Incorporated by reference to the Form S-1/A (No. 333-174838) filed on September 12, 2012. |
| (8) | Incorporated by reference to the Form S-1/A (No. 333-174838) filed on September 12, 2012. |
| (9) | Incorporated by reference to the Form S-1/A (No. 333-174838) filed on September 12, 2012. |
| (10) | Incorporated by reference to the Form S-1/A (No. 333-174838) filed on September 12, 2012. |
| (11) | Incorporated by reference to the Form S-1/A (No. 333-174838) filed on September 12, 2012. |
| (12) | Incorporated by reference to the Form S-1 (No. 333-174838) filed on June 10, 2011. |
| (13) | Incorporated by reference to the Form S-1 (No. 333-174838) filed on June 10, 2011. |
| (14) | Incorporated by reference to the Form S-1 (No. 333-174838) filed on June 10, 2011. |
| (15) | Incorporated by reference to the Form S-1/A (No. 333-174838) filed on August 22, 2012. |
| (16) | Incorporated by reference to the Form 8-K (No. 001-35667) filed on March 11, 2013. |
| (17) | Incorporated by reference to the Form S-1/A (No. 333-174838) filed on September 26, 2012. |
| (18) | Incorporated by reference to the Form S-1/A (No. 333-174838) filed on September 26, 2012. |
| (19) | Incorporated by reference to the Form S-1/A (No. 333-174838) filed on October 5, 2012. |
| (20) | Incorporated by reference to the Form S-1 (No. 333-174838) filed on June 10, 2011. |
| (21) | Incorporated by reference to the Form S-1 (No. 333-174838) filed on June 10, 2011. |
| (22) | Incorporated by reference to the Form S-1 (No. 333-174838) filed on June 10, 2011. |
| * | Management contracts or compensation plans or arrangements in which directors or executive officers are eligible to participate |
| ± | In accordance with Item 601(b)(32)(ii) of Regulation S-K and SEC Release No. 33-8238 and 34-47986, Final Rule: Management’s Reports on Internal Control Over Financial Reporting and Certification of Disclosure in Exchange Act Periodic Reports, the certifications furnished in Exhibits 32.1 hereto are deemed to accompany this Form 10-K and will not be deemed “filed” for purposes of Section 18 of the Exchange Act. Such certifications will not be deemed to be incorporated by reference into any filings under the Securities Act or the Exchange Act, except to the extent that the registrant specifically incorporates it by reference. |
| † | In accordance with Rule 406T of Regulation S-T, the information in these exhibits is furnished and deemed not filed or part of a registration statement or prospectus for purposes of sections 11 or 12 of the Securities Act of 1933, is deemed not filed for purposes of section 18 of the Exchange Act of 1934, and otherwise is not subject to liability under these sections. |
96
Exhibit 10.10
EXECUTION VERSION
LEASE AGREEMENT
BY AND BETWEEN
WESTCORE JAY, LLC,
A DELAWARE LIMITED LIABILITY COMPANY
AS LANDLORD
AND
AMBARELLA CORPORATION,
A DELAWARE CORPORATION
AS TENANT
RELATING TO THE LEASING OF CERTAIN PREMISES LOCATED AT:
3101 JAY STREET
SANTA CLARA, CALIFORNIA
TABLE OF CONTENTS
| Page | ||||||
| 1. |
PREMISES; COMMON AREAS; PROJECT |
1 | ||||
| 2. |
THE TERM; LEASE COMMENCEMENT DATE; EARLY ACCESS |
1 | ||||
| 3. |
RENT |
3 | ||||
| 4. |
SECURITY DEPOSIT |
3 | ||||
| 5. |
INITIAL IMPROVEMENTS; CONDITION OF THE PREMISES |
3 | ||||
| 6. |
ADDITIONAL RENT |
4 | ||||
| 7. |
UTILITIES AND SERVICES |
8 | ||||
| 8. |
LATE CHARGES |
9 | ||||
| 9. |
USE OF PREMISES |
9 | ||||
| 10. |
ALTERATIONS; AND SURRENDER OF PREMISES |
11 | ||||
| 11. |
REPAIRS AND MAINTENANCE |
12 | ||||
| 12. |
INSURANCE |
14 | ||||
| 13. |
INDEMNITY; LIMITATION OF LIABILITY AND WAIVER OF CLAIMS |
15 | ||||
| 14. |
ASSIGNMENT AND SUBLEASING |
16 | ||||
| 15. |
SUBORDINATION |
19 | ||||
| 16. |
RIGHT OF ENTRY |
19 | ||||
| 17. |
ESTOPPEL CERTIFICATE |
20 | ||||
| 18. |
TENANT’S DEFAULT |
20 | ||||
| 19. |
REMEDIES FOR TENANT’S DEFAULT |
21 | ||||
| 20. |
HOLDING OVER |
22 | ||||
| 21. |
LANDLORD’S DEFAULT |
23 | ||||
| 22. |
PARKING |
23 | ||||
| 23. |
TRANSFER OF LANDLORD’S INTEREST |
23 | ||||
| 24. |
WAIVER |
23 | ||||
| 25. |
CASUALTY DAMAGE |
24 | ||||
| 26. |
CONDEMNATION |
25 | ||||
| 27. |
ENVIRONMENTAL MATTERS; HAZARDOUS MATERIALS |
26 | ||||
| 28. |
FINANCIAL STATEMENTS |
28 | ||||
| 29. |
GENERAL PROVISIONS |
28 | ||||
| 30. |
SIGNS |
31 | ||||
| 31. |
MORTGAGEE PROTECTION |
31 | ||||
| 32. |
WARRANTIES OF TENANT |
31 | ||||
| 33. |
BROKERAGE COMMISSION |
32 | ||||
i
TABLE OF CONTENTS
(continued)
| Page | ||||||
| 34. |
QUIET ENJOYMENT |
32 | ||||
| 35. |
EFFECTIVENESS CONDITIONS |
32 | ||||
| 36. |
RIDER 1 |
RIDER 1 – PAGE 1 | ||||
| 37. |
OPTION TO RENEW |
RIDER 1 – PAGE 1 | ||||
| 38. |
LICENSE RIGHTS; SIGNAGE |
RIDER 1 – PAGE 2 | ||||
ii
Lease Agreement
(NNN)
THIS LEASE AGREEMENT (this “Lease”) is made as of the Lease Date by and between Landlord and Tenant. This Lease consists of (i) the Basic Lease Information set forth in Part I, (ii) the Terms and Conditions set forth in Part II and (iii) the Attachments. The Basic Lease Information, the Terms and Conditions and the Attachments shall be construed as a single instrument.
PART I
Basic Lease Information
| Basic Lease Information: | In the event of any conflict between the terms and conditions set forth in this basic lease information (collectively, the “Basic Lease Information”) and any other provision of this Lease, such other provision shall control. | |
| “Lease Date”: | February 22, 2013 | |
| “Landlord”: | WESTCORE JAY, LLC, a Delaware limited liability company | |
| Landlord’s Address For Notices: | WESTCORE JAY, LLC c/o Dividend Capital Diversified Property Fund Inc. 518 17th Street, Suite 1700 Denver, Colorado 80202 Attn: Asset Management | |
| With a copy to: | ||
| Westcore Jay, LLC c/o Dividend Capital Diversified Property Fund Inc. 518 17th Street, Suite 1700 Denver, Colorado 80202 Attn: General Counsel | ||
| “Landlord’s Address For Rent”: | Westcore Jay, LLC PO Box 83249 Chicago, IL 60691-0249 | |
| or such other place as Landlord may, from time to time, designate in writing. | ||
| “Tenant”: | Ambarella Corporation, a Delaware corporation | |
| Tenant’s Address for Notices Before Lease Commencement Date: | Ambarella Corporation 2975 San Ysidro Way Santa Clara, CA 95051 Attn: Chief Financial Officer | |
|
With a copy to: | ||
| Wilson Sonsini Goodrich & Rosati 650 Page Mill Road | ||
| Palo Alto, CA 94304-1050 Attn: Real Estate Department/SPR | ||
Basic Lease Information – Page 1
| Tenant’s Address for Notices After Lease Commencement Date | Ambarella Corporation 3101 Jay Street, Suite 110, Santa Clara, California 95054 Attn: Chief Financial Officer | |
| With a copy to: | ||
| Wilson Sonsini Goodrich & Rosati 650 Page Mill Road Palo Alto, CA 94304-1050 Attn: Real Estate Department/SPR | ||
| “Premises”: | Approximately 35,347 rentable square feet located on the first (1st) and second (2nd) floors of the Building with a street address of 3101 Jay Street, Suites 110 and 210, Santa Clara, California, as shown on Exhibit A. | |
| “Building”: | The building currently (i) consisting of approximately 47,015 rentable square feet, and (ii) having an address of 3101 Jay Street, Santa Clara, California. | |
| “Park” | The business park currently (i) consisting of three (3) buildings that, in aggregate, consist of approximately 142,552 rentable square feet, and (ii) having addresses of 3101, 3131 and 3151 Jay Street, Santa Clara, California. | |
| “Term”: | The period commencing on the date (the “Lease Commencement Date”) that is the later of (i) March 23, 2013, or (ii) or the date that the Premises are Ready for Occupancy (as defined in the Work Letter attached to the Lease as Exhibit B) and Landlord has delivered possession of the Premises to Tenant in the required condition, and expiring on the last day of the 59th calendar month after the Lease Commencement Date. The Lease Commencement Date is subject to adjustment in accordance with Section 2.2 of this Lease. The Premises are estimated to be Ready for Occupancy on April 30, 2013 (the “Estimated Completion Date”). | |
| Base Rent (¶3): | Tenant shall pay Landlord base rent for the Term (“Base Rent”) as follows: | |
| Months of the Term | Approximate Rate/SF/Month |
Monthly Base Rent | ||||||
| 01 – 09** | $ | 1.65 | ** | $ | 44,550.00 | ** | ||
| 10 – 12 | $ | 1.65 | $ | 58,322.55 | ||||
| 13 – 24 | $ | 1.70 | $ | 60,089.90 | ||||
| 25 – 36 | $ | 1.75 | $ | 61,857.25 | ||||
| 37 – 48 | $ | 1.80 | $ | 63,624.60 | ||||
| 49 – 60 | $ | 1.85 | $ | 65,391.95 | ||||
| ** | Notwithstanding the actual size of the Premises, Base Rent and Additional Rent during this period (the “Reduced Rent Period”) shall be calculated as if the Premises consisted of 27,000 rentable square feet. |
Basic Lease Information – Page 2
| “Tenant’s Share”: | Of Operating Expenses (¶6.1): | 75.18% of the Building; 24.80% of the Project; | ||
| Of Tax Expenses (¶6.2): | 75.18% of the Building; 24.80% of the Project; | |||
| Of Common Area Utility Costs (¶7.2): | 75.18% of the Building; 24.80% of the Project; | |||
| Of Utility Expenses (¶7.1): | 75.18% of the Building; 24.80% of the Project; | |||
| provided, however, that, during the Reduced Rent Period, (i) Tenant’s Share shall be calculated as if the Premises consisted of 27,000 rentable square feet, (ii) Tenant’s Share of the Building shall be 57.43%, and (iii) Tenant’s Share of the Project shall be 18.94%. | ||||
| Advance Rent (¶3): | $44,550.00 | |||
| Security Deposit (¶4): | $58,322.55 | |||
| Permitted Uses (¶9): | General office and research and development, and any other related use to the extent permitted by the City of Santa Clara and all agencies and governmental authorities having jurisdiction thereof. | |||
| Parking Spaces: | 128 non-exclusive and unassigned spaces. | |||
| Broker (¶33): | Cornish & Carey Commercial Newmark Knight Frank, for Tenant Colliers International, for Landlord | |||
| Attachments: | The riders, exhibits and schedules set forth below shall be deemed to be a part of this Lease and are hereby incorporated herein (collectively, “Attachments”): | |||
| Rider No. 1 | Additional Provisions | |||
| Exhibit A | Depiction of the Premises | |||
| Exhibit B | Work Letter | |||
| Exhibit C | Rules and Regulations | |||
| Exhibit D | Intentionally Omitted | |||
| Exhibit E | Tenant’s Initial Hazardous Materials Disclosure Certificate | |||
| Exhibit F | Change of Commencement Date - Example | |||
| Exhibit G | Sign Criteria | |||
| Exhibit H | Tenant’s Approved Signage |
[Part II follows]
Basic Lease Information – Page 3
PART II
TERMS AND CONDITIONS
1. PREMISES; COMMON AREAS; PROJECT.
1.1 The Premises. Landlord leases the Premises to Tenant upon the terms and conditions contained herein. For purposes of this Lease, (i) as of the Lease Date, the rentable square footage area of the Premises, the Building and the Park shall be deemed to be the number of rentable square feet as set forth in the Basic Lease Information, (ii) the rentable square footage of the Premises reflects the square footage of a proportionate share of certain areas used in common by all occupants of the Building and/or the Park (by way of example only, but without limitation, corridors, common restrooms, an electrical room or telephone room, etc.), and (iii) the number of rentable square feet of any of the Building and the Park may subsequently change after the Lease Date commensurate with any physical modifications to any of the foregoing by Landlord, and, in such event, Tenant’s Share shall accordingly change.
1.2 The Common Areas. During the Term, Tenant shall have, as appurtenant to the Premises, non-exclusive rights to use in common with others entitled thereto, subject to the terms and conditions of this Lease, (i) all areas of the Park made available by Landlord from time to time for the general common use or benefit of the tenants of the Park, and their employees and invitees, or the public, as such areas may exist and may be changed from time to time (collectively, the “Common Areas”), and (ii) common walkways necessary for access to the Building, and no other appurtenant rights or easements. If the Premises include less than the entire rentable area of any floor, the Common Areas shall include the common toilets and other common facilities of such floor. The Common Areas shall be at all times subject to the exclusive control and management of Landlord, and Landlord shall have the right at any time and from time to time to establish, modify and enforce reasonable rules and regulations with respect to all the Common Areas. Landlord shall have the right (a) to change at any time and from time to time the area, level, location and arrangement of the Common Areas and/or (b) to close all or any portion of the Common Areas to such extent as may, in Landlord’s reasonable judgment, be legally sufficient to prevent a public dedication thereof or the accrual of any rights therein to any person or the public, provided, however, the same do not unreasonably interfere with Tenant’s use of or access to the Premises or Tenant’s parking rights. To the extent the Common Areas include parking areas, such reference shall in no way be construed as giving Tenant any rights or privileges in connection with such parking areas unless such rights or privileges are expressly set forth herein. All expenses incurred by Landlord in the maintenance and operation of the Common Areas shall be permitted Operating Expenses (as defined below).
1.3 The Project. The term “Project” means and collectively refers to the Building, the Common Areas and the Park, together with the land and real property upon which they are located.
2. THE TERM; LEASE COMMENCEMENT DATE; EARLY ACCESS.
2.1 The Term. The term of this Lease shall be for the Term set forth in the Basic Lease Information, unless sooner extended or terminated pursuant to this Lease. The word “Term” includes any valid extension or renewal of the term of this Lease.
2.2 Lease Commencement Date. It is anticipated that the Premises shall be Ready for Occupancy (as defined in Exhibit B) on the Estimated Completion Date set forth in the Basic Lease Information; provided, however, Landlord shall have no responsibility or liability if the Premises are not Ready for Occupancy by the Estimated Completion Date and the postponement of the Lease Commencement Date and the commencement of Tenant’s obligation to pay Rent shall be in full settlement of all Claims (as defined in Section 13 below) which Tenant may otherwise have by reason of the Premises not being Ready for Occupancy by the Estimated Completion Date. If the Lease
1
Commencement Date occurs on a day other than the first day of a calendar month, then the Lease Commencement Date, and the beginning of the Term, shall be further delayed until the first day of the following month, but Tenant shall take occupancy of the Premises subject to the terms of this Lease and shall pay proportionate Rent based on the monthly Rent payable for the first (1st) month of the Term. If the Premises are not Ready for Occupancy on the Estimated Completion Date (or the later date contemplated herein) as a result of Tenant Delays (as defined in Exhibit B), then the Lease Commencement Date shall be the date the Premises would have been Ready for Occupancy after the Estimated Completion Date but for Tenant Delays as reasonably determined by Landlord’s architect, and the Term and all of Tenant’s obligations hereunder will be measured from that date. Notwithstanding anything in this Lease to the contrary, Landlord shall deliver possession of the Premises to Tenant in good, vacant, broom clean condition, with all building systems, including mechanical, electrical, and plumbing, and fixtures, in good working order and the roof in good condition and repair, and in material compliance with all laws. Notwithstanding anything in this Lease to the contrary, if the Lease Commencement Date has not occurred for any reason on or before June 30, 2013 (the “Outside Completion Date”), then the date Tenant is otherwise obliged to commence payment of rent shall be delayed by one day for each day that the Lease Commencement Date is delayed beyond the Outside Completion Date; provided, however, that the Outside Completion Date shall be extended on a day-for-day basis for each day of Tenant Delays and Force Majeure (as defined below); provided, further, however, that in no event shall Force Majeure events extend, in aggregate, the Outside Completion Date by more than thirty (30) days. “Force Majeure” means the occurrence of any event (other than financial inability) which prevents or delays the performance by Landlord or Tenant of any obligation imposed upon it hereunder (other than payment of Rent) and the prevention or cessation of which event is beyond the reasonable control of the obligor.
2.3 Commencement Date Memorandum. Following the occurrence of the Lease Commencement Date, the parties shall execute a written amendment to this Lease substantially in the form of Exhibit F attached hereto (the “Commencement Date Memorandum”). Tenant shall execute and return the Commencement Date Memorandum to Landlord within fifteen (15) days after Tenant’s receipt thereof. The failure by either party, or both parties, to execute the Commencement Date Memorandum shall not affect the rights or obligations of either party hereunder. The Commencement Date Memorandum, when so executed and delivered, shall be deemed to be a part of this Lease.
2.4 Early Access. Subject to the terms and conditions of this Section 2.4, Tenant shall have the right to enter and occupy the Premises from and after the date that is twenty-one (21) days prior to the Lease Commencement Date, as reasonably estimated by Landlord (the “Early Access Date”), solely for purposes of installing Tenant’s computer systems, telephone equipment, cabling, furniture, fixtures and special equipment, and to “fix-up” the Premises for Tenant’s intended use (but not to operate Tenant’s business), and such early entry for such purposes shall not trigger the Lease Commencement Date. Tenant agrees that (i) any such early entry by Tenant shall be at Tenant’s sole risk, (ii) Tenant shall not unreasonably interfere with Landlord or other tenants in the Building, and (iii) all terms, provisions and conditions of this Lease shall apply (except for the payment of Base Rent and Additional Rent), including, but not limited to, (a) Tenant’s obligation to provide Landlord with evidence of liability insurance coverage pursuant to Sections 10 and 12 below, and (b) Tenant’s indemnity obligations pursuant to Section 13 below; provided, however, Landlord shall not be obligated to deliver possession of the Premises to Tenant until Landlord has received from Tenant insurance certificates as required under Sections 10 and 12 below. If Landlord chooses not to deliver possession of the Premises to Tenant because Landlord has not received the required insurance certificates, the Lease Commencement Date shall not be affected or delayed thereby. Notwithstanding anything in this Section 2.4 to the contrary, if, as of the Early Access Date, Landlord reasonably determines that Tenant’s early access to the Premises will unreasonably interfere with the completion of the Initial Improvements, then (1) Landlord may limit or otherwise restrict Tenant’s early access rights, and (2) Tenant shall not, in connection with any early access, interfere with the completion of the Initial Improvements.
2
3. RENT. On the date that Tenant executes this Lease, Tenant shall deliver to Landlord the original executed Lease, the Advance Rent (which shall be applied against Rent payable for the first month(s) Tenant is required to pay Rent), the Security Deposit, and all insurance certificates required to be delivered under Sections 10 and 12 of this Lease. Tenant agrees to pay Landlord without prior notice or demand, abatement, offset, deduction or claim, in advance at Landlord’s Address for Rent, on the Lease Commencement Date and thereafter on the first (1st) day of each month throughout the Term (i) Base Rent and (ii) as Additional Rent (as defined below), Tenant’s Share of Operating Expenses, Tax Expenses, Common Area Utility Costs, and Utility Expenses. The term “Rent” means, collectively, Base Rent, Additional Rent and all other amounts due to Landlord pursuant to this Lease. If any rental payment date (including the Lease Commencement Date) falls on a day of the month other than the first day of such month or if any rental payment is for a period which is shorter than one (1) month, then the rental for any such fractional month shall be a proportionate amount of a full calendar month’s rental based on the proportion that the number of days in such fractional month bears to the number of days in the calendar month during which the fractional month occurs. All other payments or adjustments required to be made under the terms of this Lease that require proration on a time basis shall be prorated in the same manner. Any prorated Rent for the first (1st) calendar month of the Term shall be paid on the Lease Commencement Date, and any prorated Rent for the final calendar month of the Term shall be paid on the first day of the calendar month in which the date of expiration or termination occurs.
4. SECURITY DEPOSIT. Simultaneously with Tenant’s execution and delivery of this Lease, Tenant shall deliver to Landlord, as a Security Deposit for the faithful performance by Tenant of its obligations under this Lease, the amount specified in the Basic Lease Information. If Tenant is in default hereunder beyond applicable notice and cure periods, Landlord may, but without obligation to do so, use all or any portion of the Security Deposit to cure the default or to compensate Landlord for all damages sustained by Landlord in connection therewith. Tenant shall, immediately on demand, pay to Landlord a sum equal to the portion of the Security Deposit so applied or used to replenish the amount of the Security Deposit held to increase such deposit to the amount initially deposited with Landlord. At the expiration or earlier termination of this Lease, within the time period(s) prescribed by California Civil Code Section 1950.7 (or any successor law), Landlord shall return the Security Deposit to Tenant, less such amounts as are reasonably necessary, as determined by Landlord, to remedy Tenant’s default(s) hereunder or to otherwise restore the Premises to the condition required pursuant to this Lease. Landlord shall not be required to segregate the Security Deposit from other funds, and, unless required by law, interest shall not be paid on the Security Deposit. Tenant shall not have any use of, or right of offset against, the Security Deposit. Tenant hereby waives (i) California Civil Code Section 1950.7 (or any successor law) and any and all other laws, rules and regulations applicable to security deposits in the commercial context with respect to the uses for which a security deposit may be applied (“Security Deposit Laws”), and (ii) any and all rights, duties and obligations either party may now or, in the future, will have relating to or arising from the Security Deposit Laws. Notwithstanding anything to the contrary contained herein, the Security Deposit may be retained and applied by Landlord (a) to offset Rent which is unpaid either before or after termination of this Lease, and (b) against other damages suffered by Landlord before or after termination of this Lease.
5. INITIAL IMPROVEMENTS; CONDITION OF THE PREMISES.
5.1 Initial Improvements. Landlord agrees to cause the Premises to be completed in accordance with the Work Letter attached to this Lease as Exhibit B (the “Work Letter”). The real property improvements to be performed by Landlord pursuant to the Work Letter are referred to herein, collectively, as the “Initial Improvements”. The Initial Improvements shall include only those improvements within the interior portions of the Premises that are depicted on the Construction Drawings (as defined in the Work Letter).
5.2 Condition of the Premises. Subject to the terms of this Lease and Tenant’s rights hereunder, Tenant acknowledges that it has had the opportunity to inspect the Premises prior to the
3
execution of this Lease and agrees (i) to accept the Premises on the Lease Commencement Date (and by taking possession of the Premises Tenant shall be deemed to have accepted the Premises) as then being suitable for Tenant’s intended use and in good operating order, condition and repair in its then existing “AS IS” condition, except as otherwise set forth in this Lease, including with respect to Landlord’s delivery obligations and obligations under Exhibit B and (ii) that, except as otherwise provided herein, neither Landlord nor any of Landlord’s agents, representatives or employees has made any representations as to the suitability, fitness or condition of the Premises or the Project for the conduct of Tenant’s business or for any other purpose, including without limitation, any storage incidental thereto.
6. ADDITIONAL RENT. Landlord and Tenant intend that this Lease be a “triple net lease.” Except as otherwise set forth herein, the costs and expenses described in this Section 6 and all other sums, charges, costs and expenses specified in this Lease other than Base Rent are to be paid by Tenant to Landlord as additional rent (collectively, “Additional Rent”).
6.1 Operating Expenses.
6.1.1 Definition of Operating Expenses. Tenant shall pay to Landlord, as Additional Rent, Tenant’s Share or all Operating Expenses. The term “Operating Expenses” means the total amounts paid or payable by Landlord in connection with the ownership, management, maintenance, repair and operation of the Premises and the Project. Operating Expenses may include, but are not limited to, Landlord’s cost of: (i) costs of maintenance and non-structural repairs to any part of the interior or exterior of the Building (and its systems and equipment) and any part of the Common Areas, including, without limitation, costs under maintenance contracts and repairs and replacements of equipment used in connection with such maintenance and repair work; (ii) annual insurance premium(s) for any and all insurance Landlord elects to obtain, including without limitation, “causes of loss – special form” coverage, earthquake and flood for the Project, rental value insurance and subject to Sections 6.1.2(v) and 25 below, any reasonable deductible; (iii) (a) modifications and/or new improvements to any portion of the Project occasioned by any rules, laws or regulations, but only to the extent first made effective subsequent to the Lease Date; (b) reasonably necessary replacement improvements to any portion of the Project after the Lease Date if repair is no longer cost-effective; and (c) new improvements to the Project that are intended to reduce Operating Expenses or improve life-safety conditions, all of the foregoing as reasonably determined by Landlord (provided, however, if such costs are of a capital nature, then such costs or allocable portions thereof shall be amortized on a straight-line basis over the estimated useful life of the capital item, as reasonably determined by Landlord, together with reasonable interest on the unamortized balance); (iv) the management and administration of the Premises, including, without limitation, a property management fee (which in no event shall exceed three percent (3%) of the gross revenues of the Project), accounting, auditing, billing, postage, salaries and benefits for employees, whether located on the Project or off-site, payroll taxes and legal and accounting costs and all fees, licenses and permits related to the ownership, operation and management of the Premises; (v) preventative maintenance and repair contracts including, but not limited to, contracts for elevator systems (if any), heating, ventilation and air conditioning systems and lifts for disabled persons; (vi) security and fire protection services for any portion of the Premises, if and to the extent, in Landlord’s sole discretion, such services are provided; (vii) the creation and modification of any licenses, easements or other similar undertakings with respect to the Project; (viii) supplies, materials, equipment, rental equipment and other similar items used in the operation and/or maintenance of the Project; (ix) any and all levies, charges, fees and/or assessments payable to any applicable owner’s association or similar body; (x) any barrier removal work or other required improvements, alterations or work to any other portion of the Project generally required under the ADA (as defined below) (the “ADA Work”) (provided, however, if such ADA Work is required under the ADA due to Tenant’s particular use of the Premises, then the cost of such ADA Work required within the Premises shall be borne solely by Tenant and shall not be included as part of Operating Expenses; and (xi) the repairs and maintenance items set forth in Section 11.2 below (except to the extent excluded in Section 6.1.2 below).
4
6.1.2 Operating Expense Exclusions. The term “Operating Expenses” shall not include: (i) costs incurred in renovating, improving or decorating vacant space or space for other tenants within the Project; (ii) legal and auditing fees (other than those fees reasonably incurred in connection with the maintenance and operation of the Project), leasing commissions, advertising expenses, and other costs incurred in connection with the leasing of the Project; (iii) depreciation of the Building or any other improvements situated within the Building; (iv) any items for which Landlord is actually reimbursed; (v) costs of repairs or other work necessitated by casualty (excluding any commercially reasonable deductibles, provided that in no event shall Tenant’s Share of any such deductible exceed $25,000 in any one instance with respect to an earthquake and $10,000 in any one instance with respect to any other casualty) and/or costs of repair or other work necessitated by the exercise of the right of eminent domain (such costs of repairs or other work shall be paid by the parties in accordance with the provisions of Sections 25 and 26, below); (vi) other than any interest charges for capital improvements referred to in Section 6.1.1(iii) above, any interest or payments on any financing for the Building or the Project, interest and penalties incurred as a result of Landlord’s late payment of any invoice (provided that Tenant pays Tenant’s Share of Operating Expenses and Tax Expenses to Landlord when due as set forth herein), and any bad debt loss, rent loss or reserves for same; (vii) costs associated with Hazardous Materials (defined below) present in, on or about any portion of the Project, unless such costs and expenses are the responsibility of Tenant as provided in Section 27 below, in which event such costs and expenses shall be paid solely by Tenant in accordance with Section 27 below; (viii) Landlord’s cost for the repairs and maintenance items set forth in Section 11.3 below; (ix) overhead and profit increment paid to Landlord or to subsidiaries or affiliates of Landlord for goods and/or services in the Premises to the extent the same exceeds the costs of such by unaffiliated third parties on a competitive basis; or any costs included in Operating Expenses representing an amount paid to any entity related to Landlord which is in excess of the amount which would have been paid in the absence of such relationship; (x) any payments under a ground lease or master lease; (xi) capital expenditures not expressly allowed pursuant to Section 6.1.1(iii) above; (xii) Landlord’s general corporate overhead and general and administrative expenses; (xiii) costs arising from Landlord’s negligence; (xiv) costs incurred in connection with the sale or transfer of the Building or any other portion of the Project, including, without limitation, transfer taxes, recording fees, title insurance premiums, appraisal costs and escrow fees; (xv) costs occasioned by the violation of any law by Landlord, any other occupant of the Project, or their respective agents, employees or contractors; (xvi) costs to correct any construction defect in the Project; (xvii) costs incurred in connection with disputes with any other occupant of the Project and costs arising from the violation by Landlord or any other occupant of the Project of the terms and conditions of any lease or other agreement; (xviii) increases in insurance costs caused by the activities of another occupant of the Project; (xix) interest, charges and fees incurred on debt; (xx) expense reserves; (xxi) wages, compensation, and labor burden for any employee not stationed on the Project on a full-time basis (unless the same are equitably allocated); or (xxii) costs for services not provided to Tenant under this Lease or of a nature that are payable directly by Tenant. Notwithstanding the foregoing in this Article 6, Tenant shall not be required to pay any Operating Expenses or Tax Expenses otherwise due hereunder if Landlord first notifies Tenant of such Operating Expenses or Tax Expenses in a statement received by Tenant more than twenty-four (24) months after such Operating Expenses or Tax Expenses are incurred.
6.2 Tax Expenses. Tenant shall pay to Landlord, as Additional Rent, Tenant’s Share or all Tax Expenses (as defined below) applicable to the Project. Prior to delinquency, Tenant shall pay any and all taxes and assessments levied upon Tenant’s Property (defined below in Section 10) located or installed in or about the Premises by, or on behalf of Tenant. To the extent any such taxes or assessments are not separately assessed or billed to Tenant, then Tenant shall pay the amount thereof as invoiced by Landlord. Tenant shall also reimburse and pay Landlord, as Additional Rent, within thirty (30) days after demand therefor, one hundred percent (100%) of (i) any increase in real property taxes attributable to the Initial Improvements, any and all Alterations (defined below in Section 10), fixtures, equipment or other improvements of any kind whatsoever placed in, on or about the Project for the benefit of, at the request of, or by Tenant, and (ii) taxes and assessments levied or assessed upon or with respect to the possession, operation, use or occupancy by Tenant of the Premises. “Tax
5
Expenses” means, without limitation, any form of tax and assessment (general, special, supplemental, ordinary or extraordinary), commercial rental tax, payments under any improvement bond or bonds, license fees, license tax, business license fee, rental tax, transaction tax or levy imposed by any authority having the direct or indirect power of tax (including any governmental, school, agricultural, lighting or other improvement district) as against any legal or equitable interest of Landlord in the Premises or any other tax, fee, or excise, however described, including, but not limited to, any tax imposed in substitution (partially or totally) of any tax previously included within the definition of Tax Expenses and any cost and/or fee (including without limit attorneys’ and appraisers’ fees and court costs) incurred by Landlord in calculating, contesting or negotiating any such taxes or assessments. “Tax Expenses” shall not include (a) any franchise, estate, inheritance, net income, or excess profits tax imposed upon Landlord, (b) any penalty or fee imposed solely as a result of Landlord’s failure to pay Tax Expenses when due, (c) any items included as or specifically excluded from Operating Expenses, (d) any taxes in excess of the amount which would be payable if such tax or assessment expense were paid in installments over the longest permitted term, (e) any fees attributable to gift, transfer, or state taxes, or (f) any taxes resulting from the improvement of any of the Project for the sole use of other occupants.
6.3 Adjustments and Allocations.
6.3.1 If the Building and/or other office buildings located in the Project are not 100% occupied during all or a portion of any calendar year, Landlord shall make an appropriate adjustment to the variable components of Operating Expenses for such year or applicable portion thereof, employing sound accounting and management principles, to determine the amount of Operating Expenses that would have been paid had such buildings been 100% occupied; and the amount so determined shall be deemed to have been the amount of Operating Expenses for such year, or applicable portion thereof.
6.3.2 The parties acknowledge that the Building is, or may in the future be a, part of a multi-building project, and that the costs and expenses incurred in connection with the Project (i.e., the Operating Expenses and the Tax Expenses) are determined annually for the Project as a whole but then allocated by Landlord among (i) the tenants of the Building, and (ii) if and when other buildings are constructed on the Project and are in operation, the tenants of such other buildings, for purposes of determining such tenants’ shares of Operating Expenses and Tax Expenses. In making such allocation of Operating Expenses and Tax Expenses for purposes of determining Tenant’s Share of Operating Expenses and Tenant’s Share of Tax Expenses, Operating Expenses and Tax Expenses shall be allocated as follows: the portion of Operating Expenses and Tax Expenses allocated to the tenants of the Building shall consist of (A) all Operating Expenses and Tax Expenses attributable solely to the Building and (B) an equitable portion of the Operating Expenses and Tax Expenses attributable to the Project as a whole and not attributable solely to the Building or to any other buildings of the Project. Additionally, Landlord shall have the right, from time to time, to equitably allocate some or all of the Operating Expenses among different tenants and/or different buildings of the Project (the “cost pools”). Such cost pools may include, but shall not be limited to, a building or buildings in the Project.
6.4 Payment of Expenses. Landlord shall estimate Tenant’s Share of Operating Expenses and Tax Expenses for the calendar year in which the Lease commences. Commencing on the Lease Commencement Date, one-twelfth (1/12th) of this estimated amount shall be paid by Tenant to Landlord, as Additional Rent, and thereafter on the first (1st) day of each month throughout the remaining months of such calendar year. Thereafter, Landlord may estimate such expenses for each calendar year during the Term of this Lease and Tenant shall pay one-twelfth (1/12th) of such estimated amount as Additional Rent on the first (1st) day of each month throughout the Term. Tenant’s obligation to pay Tenant’s Share Operating Expenses and Tax Expenses shall survive the expiration or earlier termination of this Lease. Landlord estimates that Operating Expenses and Tax Expenses for calendar year 2013 are currently expected to be $.39 per month per rentable square foot of the Premises; provided, however, that such Operating Expenses and Tax Expenses are subject to adjustment in accordance with the terms and conditions of this Lease.
6
6.5 Annual Reconciliation. By June 30th of each calendar year, Landlord shall furnish Tenant with an accounting of actual and accrued Operating Expenses and Tax Expenses (the “Expense Statement”); provided, however, that failure by Landlord to give the Expense Statement by such date shall not constitute a waiver by Landlord of its right to collect any underpayment by Tenant. Within thirty (30) days of Landlord’s delivery of the Expense Statement, Tenant shall pay to Landlord the amount of any underpayment. Landlord shall credit the amount of any overpayment by Tenant toward the next estimated monthly installment(s) falling due, or if the Term of the Lease has expired, refund the amount of overpayment to Tenant as soon as possible thereafter. If the Term of this Lease expires or terminates prior to the annual reconciliation of expenses, Landlord shall have the right to reasonably estimate Tenant’s Share of such expenses and to deduct any underpayments from Tenant’s Security Deposit, and shall thereafter reconcile the year’s Operating Expenses and Tax Expenses as provided above. Failure by Landlord to accurately estimate such expenses shall not constitute a waiver of Landlord’s right to collect any underpayment at any time during the Term or after the expiration or earlier termination of this Lease.
6.6 Audit. Landlord shall maintain books and records showing Operating Expenses and Tax Expenses in accordance with sound accounting and management practices, consistently applied. Subject to the terms and conditions of this Section 6.6, Tenant or its representative (which representative shall be a certified public accountant licensed to do business in the State of California and whose primary business is certified public accounting or a member of Tenant’s finance department) shall have the right, for a period of ninety (90) days following the date upon which the Expense Statement is delivered to Tenant, to examine and audit (each, an “Audit”) Landlord’s books and records with respect to the items in such Expense Statement during normal business hours, upon written notice, delivered at least five (5) business days in advance. If Tenant does not object in writing to the Expense Statement within ninety (90) days after Landlord’s delivery thereof, specifying the nature of the item in dispute and the reasons therefor, then the Expense Statement shall be considered final and accepted by Tenant. Any amount due to Landlord as shown on the Expense Statement, whether or not disputed by Tenant as provided herein shall be paid by Tenant when due as provided above, without prejudice to any such written exception. Each Audit must be performed (i) at the location(s) where Landlord’s books and records are maintained, (ii) during normal business hours and (iii) in a manner that will not unreasonably interfere with Landlord’s business activities. Unless Landlord, in good faith, disputes the results of such Audit, an appropriate adjustment shall be made between Landlord and Tenant to reflect any overpayment of Operating Expenses and Tax Expenses for the calendar year in question within thirty (30) days. Tenant agrees to pay the cost of any Audit; provided, however, that if the Audit reveals that Landlord’s determination of the total Operating Expenses and Tax Expenses for the Project that was used as the basis of the relevant Expense Statement was in error in Landlord’s favor by more than five percent (5%), then Landlord agrees to pay the actual, out-of-pocket costs of such Audit incurred by Tenant (which costs must be determined on a reasonable hourly basis, and not a percentage or contingent fee basis). Tenant’s rights under this Section 6.6 are subject to the following additional conditions:
(a) There is no event of default under this Lease then in existence, which Tenant has failed to after notice and the expiration of applicable cure periods;
(b) Each Audit shall be prepared by a member of Tenant’s finance department an independent certified public accounting firm of recognized national or regional standing using Generally Accepted Auditing Standards;
(c) Each Audit shall commence within ten (10) days after Landlord makes Landlord’s books and records available to Tenant’s auditor and shall conclude within thirty (30) days after commencement;
(d) Tenant and its accounting firm shall treat any Audit in a confidential manner and shall each execute a commercially reasonable confidentiality agreement for Landlord’s benefit prior to commencing the Audit;
7
(e) The accounting firm’s audit report shall, at no charge to Landlord, be submitted in draft form for Landlord’s review and comment before the final approved audit report is delivered to Landlord, and any reasonable comments by Landlord shall be incorporated into the final audit report; and
(f) At the conclusion of any Audit, Tenant and its employees, auditors and agents shall return all copies of supporting documentation made in connection with such Audit.
7. UTILITIES AND SERVICES. Tenant shall pay the cost of all (i) water, sewer use, sewer discharge fees and sewer connection fees, gas, electricity, telephone, telecommunications, cabling and other utilities billed or metered separately to the Premises, and (ii) refuse pickup and janitorial service to the Premises. Upon Landlord’s request, Tenant shall deliver to Landlord copies of all bills for utilities supplied to the Premises for the past twelve (12) month period within thirty (30) days of Landlord’s request. Notwithstanding anything in this Lease to the contrary, Landlord shall, subject to the terms of this Lease, as Utility Expenses, and in accordance with standards determined by Landlord from time to time for the Project, provide the following services (collectively, “Landlord’s Services”):
(a) furnish reasonable heating, ventilation, and air conditioning required for the comfortable occupancy and operation of the Premises during all hours of Tenant’s operation and at such other times as Tenant may reasonably request;
(b) furnish water, gas, light, power, electricity, telephone, trash pick-up and sewer services and utilities to the Premises and the Project.
7.2 Utility Expenses. Tenant shall pay to Landlord, as Additional Rent, Tenant’s Share of any utility fees, use charges, or similar services provided to Tenant at the Premises that are not billed or metered separately to Tenant (collectively, “Utility Expenses”). If Landlord reasonably determines that Tenant’s Share of Utility Expenses is not commensurate with Tenant’s use of such services, Tenant shall pay to Landlord, as Additional Rent, the amount which is attributable to Tenant’s use of the utilities or similar services, as reasonably estimated by and determined by Landlord (based upon factors such as size of the Premises and intensity of use of utilities by Tenant), such that Tenant shall pay the portion of such charges reasonably consistent with Tenant’s use of such utilities and similar services. Tenant shall also pay, as Additional Rent, Tenant’s Share of any assessments, charges and fees included within any tax bill for the Park, including without limitation, entitlement fees, allocation unit fees and sewer use fees, which amount Landlord may require to be paid monthly in the same manner as provided for Utility Expenses above and subject to reconciliation in the same manner as set forth in Section 6.5 above.
7.3 Common Area Utility Costs. Tenant shall pay to Landlord, as Additional Rent, Tenant’s Share of any Common Area utility fees, charges and expenses (collectively, “Common Area Utility Costs”). Tenant shall pay to Landlord one-twelfth (1/12th) of the estimated amount of Tenant’s Share of the Common Area Utility Costs on the Lease Commencement Date and thereafter on the first (1st) day of each month throughout the Term. Any reconciliation of Tenant’s Share of Common Area Utility Costs shall be substantially in the same manner as set forth in Section 6.5 above.
7.4 Miscellaneous. Tenant acknowledges that the Premises or other portions of the Project may become subject to the rationing of utility services or restrictions on utility use as required by a public utility company, governmental agency or other similar entity having jurisdiction thereof. Tenant agrees that its tenancy and occupancy hereunder shall be subject to such rationing restrictions as may be imposed upon Landlord, Tenant, the Premises, or other portions of the Project, and Tenant shall in no event be excused or relieved from any covenant or obligation to be kept or performed by Tenant by reason of any such rationing or restrictions.
7.5 Interruption of Services. The failure by Landlord to any extent to furnish, or the interruption or the termination of, Landlord’s Services, in whole or in part, resulting from adherence to Laws, wear, use, repairs, improvements, alterations or any other causes beyond Landlord’s reasonable control shall not render Landlord liable in any respect nor be construed as an actual or constructive
8
eviction of Tenant, nor give rise to an abatement of Rent, nor relieve Tenant from the obligation to fulfill any covenant or agreement hereof. Notwithstanding anything in this Section 7.5 to the contrary, if (a) the Premises, or a material portion of the Premises, is made untenantable for a period in excess of five (5) business days after written notice to Landlord as a result of an interruption of essential utility services, such as electricity, telephone/telecommunication service, fire protection or water, that is a result of Landlord’s negligence or willful misconduct or is otherwise within Landlord’s reasonable control and (b) Tenant is unable to, and does not, conduct its normal business operations in all or any material portion of the Premises as a result thereof, then Tenant shall be entitled to receive an abatement of Base Rent payable hereunder during the period beginning after the fifth (5th) business day of the service failure and ending on the day the service has been restored; provided, however, that (i) the foregoing conditional abatement of Base Rent shall not apply if the interruption of such utility service is a result of Tenant’s (or Tenant’s Responsible Parties’) negligence, willful misconduct or breach of this Lease and (ii) such abatement shall be in proportion to the portion of the Premises which Tenant is unable to use. In no event, however, shall Landlord be liable to Tenant for any loss or damage, direct or indirect, special or consequential, including loss of business, arising out of or in connection with the failure of any such utility services. The foregoing provisions regarding interruption of utility services shall not apply in case of damage to or destruction of the Premises, which shall be governed by Section 25 of this Lease
8. LATE CHARGES. The sums and charges set forth in this Section 8 shall be Additional Rent. Tenant acknowledges that late payment (the second (2nd) day of each month or any time thereafter) of Rent and all other sums due hereunder, will cause Landlord to incur costs not contemplated by this Lease. Such costs may include, without limitation, processing and accounting charges, and late charges that may be imposed on Landlord by the terms of any note secured by any encumbrance against the Premises, and late charges and penalties due to the late payment of real property taxes on the Premises. Therefore, if any installment of Rent or any other sum payable by Tenant is not received by Landlord when due, Tenant shall promptly pay to Landlord a late charge, as liquidated damages, in an amount equal to five percent (5%) of such delinquent amount plus interest thereon at ten percent (10%) per annum for as long as such sum remains unpaid. If Tenant delivers to Landlord two (2) checks for which there are not sufficient funds, Landlord may require Tenant to replace such check with a cashier’s check for the amount of such check and all other charges payable hereunder. The parties agree that this late charge and the other charges referenced above represent a fair and reasonable estimate of the costs that Landlord will incur by reason of such late payment by Tenant, excluding attorneys’ fees and costs. Acceptance of any late charge or other charges shall not constitute a waiver by Landlord of Tenant’s default with respect to the delinquent amount, nor prevent Landlord from exercising any of the other rights and remedies available to Landlord for any other default of Tenant under this Lease. Notwithstanding anything to the contrary contained herein, Tenant shall be entitled to notice and a five (5) business day grace period before the imposition of the first late charge in any calendar year.
9. USE OF PREMISES.
9.1 Compliance with Laws, Recorded Matters, and Rules and Regulations. The Premises shall be used solely for the permitted uses specified in the Basic Lease Information and for no other uses without Landlord’s prior written consent. Landlord’s consent shall not be unreasonably withheld or delayed so long as the proposed change in use (i) does not involve the use of Hazardous Materials other than as expressly permitted under the provisions of Section 27 below, (ii) does not require any additional parking spaces, and (iii) is compatible and consistent with the other uses then being made in the Project, as reasonably determined by Landlord. The use of the Premises by Tenant and its licensees and subtenants, and each of their respective agents, contractors, employees, customers, invitees, and representatives (collectively, “Tenant’s Responsible Parties”) shall be subject to, and at all times in compliance with, (a) any and all applicable laws, rules, codes, ordinances, statutes, orders and regulations as same exist from time to time throughout the Term (collectively, “Laws”), including without limitation, the requirements of the Americans with Disabilities Act, a federal law codified at 42 U.S.C. 12101 et seq., including, but not limited to Title III thereof, all regulations and guidelines related
9
thereto and all requirements of Title 24 of the State of California (collectively, the “ADA”), (b) any and all instruments, licenses, restrictions, easements or similar instruments, conveyances or encumbrances which are at any time required to be made by or given by Landlord relating to the initial development of the Project and/or the construction, from time to time, of any additional improvements in the Project, including without limitation, the Initial Improvements (collectively, “Development Documents”), (c) any and all documents, easements, covenants, conditions and restrictions, and similar instruments, together with any and all amendments and supplements thereto made, from time to time, each of which has been or hereafter is recorded in any official or public records with respect to the Premises or any other portion of the Project (collectively, “Recorded Matters”), including, without limitation, that certain Declaration of Covenants, Conditions and Restrictions for San Tomas Industrial Park dated June 5, 1969 (a copy of which has been provided to Tenant), and (d) any and all rules and regulations set forth in Exhibit C attached hereto and any other reasonable rules and regulations now or hereafter promulgated by Landlord, and any rules, restrictions, (collectively, “Rules and Regulations”). Landlord reserves to itself the right, from time to time, to grant, without the consent of Tenant, such easements, rights and dedications that Landlord deems reasonably necessary, and to cause the recordation of parcel or subdivision maps and/or restrictions, so long as such easements, rights, dedications, maps and restrictions, as applicable, do not materially and adversely interfere with Tenant’s use of or access to the Premises or Tenant’s parking rights, its operations in the Premises or increase the cost to Tenant under this Lease. Tenant agrees to sign promptly any documents reasonably requested by Landlord to effectuate any such easements, rights, dedications, maps or restrictions. Tenant agrees to, and does hereby, assume full and complete responsibility (x) to ensure that the Premises, including without limitation, any Alterations, are in compliance with all applicable Laws throughout the Term and (y) for the payment of all costs, fees and expenses associated with any modifications, improvements or other Alterations to the Premises occasioned by the enactment of, or changes to, any Laws arising from Tenant’s particular use of the Premises or Alterations or other improvements made to the Premises regardless of when such Laws became effective; provided, however, notwithstanding anything in this Lease to the contrary, Tenant shall not be obligated to make improvements to the Premises or the Building to comply with Laws or insurance requirements unless such improvements are made necessary by reason of Alterations made by Tenant or by Tenant’s unique use of the Premises (as distinguished from general occupancy). Tenant shall have no right to initiate, submit an application for, or otherwise request, any land use approvals or entitlements with respect to the Premises nor any other portion of the Project. Notwithstanding anything in this Lease to the contrary, Tenant shall not be required to comply with any new Rule and Regulations unless the same applies non-discriminatorily to all occupants of the Project, does not unreasonably interfere with Tenant’s use of the Premises or Tenant’s parking rights and does not materially increase the obligations or decrease the rights of Tenant under this Lease.
9.2 Prohibition on Use. Tenant shall not use the Premises or permit anything to be done in or about the Premises nor keep or bring anything therein which will cause a cancellation of any insurance policy. No auctions may be conducted in, on or about any portion of the Project without Landlord’s prior written consent thereto (which may be withheld in Landlord’s sole and absolute discretion). Tenant shall not do or permit anything to be done in or about the Premises or any other portion of the Project which will obstruct or interfere with the rights of Landlord. The Premises shall not be used for any unlawful purpose. Tenant shall not cause, maintain or permit any private or public nuisance in, on or about any portion of the Project, including, but not limited to, any offensive odors, noises, fumes or vibrations. Tenant shall not damage or deface or otherwise commit or suffer to be committed any waste in, upon or about the Project. Tenant shall not place or store, nor permit any other of its employees or agents to place or store, any property, equipment, materials, supplies or personal property outside of the Premises. Tenant shall not permit any animals, including, but not limited to, any household pets, to be brought or kept in or about the Premises. Tenant shall place no loads upon the floors, walls, or ceilings in excess of the maximum designed load permitted by the applicable Uniform Building Code or which may damage the Building or outside areas within the Premises.
10
9.3 Access. Notwithstanding anything in this Lease to the contrary, Landlord shall provide access to the Premises, 24 hours a day, seven days a week, subject to the terms of this Lease and to such reasonable regulations as Landlord prescribes from time-to-time for security purposes.
10. ALTERATIONS; AND SURRENDER OF PREMISES.
10.1 Alterations. Tenant shall be permitted to make, at its sole cost and expense, non-structural alterations and additions to the interior of the Premises without obtaining Landlord’s prior written consent, provided said alterations do not adversely affect the Building systems, are not visible from the exterior of the Building, are in compliance with all Laws and the requirements for Alterations set forth below (other than Landlord’s consent) and the cost of such alterations does not exceed Twenty Thousand Dollars ($20,000.00) per project (the “Permitted Improvements”). Tenant, however, shall first notify Landlord of such Permitted Improvements so that Landlord may post a Notice of Non-Responsibility on the Premises. Except for the Initial Improvements and the Permitted Improvements, Tenant shall neither install any signs, fixtures, or improvements, nor make or permit any other alterations or additions (individually, an “Alteration”, and collectively, “Alterations”) to the Premises without the prior written consent of Landlord, which consent shall not be unreasonably withheld so long as any such Alteration does not adversely affect the Building systems, structural integrity or structural components of the Premises. If any such Alteration is expressly permitted by Landlord, Tenant shall deliver at least ten (10) days prior written notice to Landlord, from the date Tenant commences construction, sufficient to enable Landlord to post and record a Notice of Non-Responsibility. Tenant shall obtain all permits or other governmental approvals prior to commencing any work and deliver a copy of same to Landlord. All Alterations shall be (i) at Tenant’s sole cost and expense in accordance with plans and specifications which have been previously submitted to and approved in writing by Landlord, and shall be installed by a licensed, insured (and bondable, at Landlord’s option) contractor (reasonably approved by Landlord) in compliance with all applicable Laws, Development Documents, Recorded Matters, and Rules and Regulations and (ii) performed in a good and workmanlike manner and so as not to obstruct access to any portion of the Project or any business of Landlord or any other tenant. Landlord’s approval of any plans, specifications or working drawings for Tenant’s Alterations shall neither create nor impose any responsibility or liability on the part of Landlord for their completeness, design sufficiency, or compliance with any Laws. As Additional Rent, Tenant shall reimburse Landlord, within ten (10) days after demand, for the reasonable and actual out-of-pocket legal, engineering, architectural, planning and other expenses incurred by Landlord in connection with Tenant’s Alterations. If Tenant makes any Alterations, Tenant shall carry “Builder’s All Risk” insurance, in an amount approved by Landlord and such other insurance as Landlord may require. All such Alterations shall be insured by Tenant in accordance with Section 12 of this Lease immediately upon completion. Tenant shall keep the Premises free from any liens arising out of any work performed, materials furnished or obligations incurred by or on behalf of Tenant. Tenant shall, prior to commencing any Alterations, (a) cause its contractor(s) and/or major subcontractor(s) to provide insurance as reasonably required by Landlord, and (b) provide such reasonable assurances to Landlord (including without limitation, waivers of lien, and, if such Alterations are expected to exceed $100,000.00, surety company performance bonds), as Landlord shall require to assure payment of the costs thereof to protect Landlord and the Premises from and against any mechanic’s, materialmen’s or other liens. Upon completion of any Permitted Improvements or any Alterations, Tenant agrees to cause a Notice of Completion to be recorded in the office of the Recorder of the County in which the Premises are located in accordance with Section 3093 of the Civil Code of the State of California or any successor statute, and if drawings are required for such Permitted Improvements or Alterations, Tenant shall deliver to the Landlord a reproducible copy of the “as built” drawings of all Permitted Improvements and all Alterations. Notwithstanding anything in this Lease to the contrary, Tenant’s Property shall at all times be and remain Tenant’s property. Except for Alterations which cannot be removed without structural injury to the Premises, at any time Tenant may remove Tenant’s Property from the Premises, provided that Tenant repairs all damage caused by such removal. Landlord shall have no lien or other interest in any item of Tenant’s Property. Landlord shall have no right to require Tenant to remove any Alterations unless it notifies Tenant at the time it consents to such alteration that it shall require such alteration to be removed.
11
10.2 Surrender of Premises. At the expiration of the Term or earlier termination of this Lease, Tenant shall surrender the Premises to Landlord (i) in the same condition and repair as received (damage by acts of God, casualty, normal wear and tear, condemnation, Hazardous Materials (other than those released or emitted by Tenant), Alterations or other interior improvements which it is permitted to surrender at the termination of this Lease and repairs that Tenant is not responsible for under this Lease, excepted), and (ii) in accordance with Section 27 hereof. Normal wear and tear shall not include any damage or deterioration that would have been prevented by proper maintenance by Tenant, or Tenant otherwise performing all of its obligations under this Lease. On or before the expiration or earlier termination of this Lease, Tenant shall remove (a) all of Tenant’s Property (defined below) and Tenant’s signage from the Premises, and (b) any Alterations made without Landlord’s consent and any other Alterations that Landlord may, by notice to Tenant given at the time it approves the Alterations require Tenant (at Tenant’s expense) to remove, and Tenant shall repair any damage caused by all of such removal activities. “Tenant’s Property” means all equipment, trade fixtures, computer wiring and cabling, furnishings, inventories, goods and personal property of Tenant. Any of Tenant’s Property not so removed by Tenant as required herein shall be deemed abandoned and may be stored, removed, and disposed of by Landlord at Tenant’s expense, and Tenant waives all claims against Landlord for any damages resulting from Landlord’s retention and disposition of such property; provided, however, Tenant shall remain liable to Landlord for all costs incurred in storing and disposing of such abandoned property of Tenant. Notwithstanding anything to the contrary contained herein, on or before the expiration of the Term or any earlier termination of this Lease, Tenant shall, at Tenant’s sole cost and expense and in compliance with the National Electric Code and other applicable laws, remove all electronic, fiber, phone and data cabling and related equipment that has been installed by or for the exclusive benefit of Tenant in or around the Premises (collectively, the “Cabling”); provided, however, Tenant shall not remove the Cabling if Tenant receives a written notice from Landlord at least thirty (30) days prior to the expiration of the Lease authorizing all or any portion of the Cabling to remain in place, in which event the Cabling or portion thereof authorized by Landlord remain at the Premises shall be surrendered with the Premises upon expiration or earlier termination of this Lease. All Alterations except those which Landlord requires Tenant to remove, shall remain in the Premises as the property of Landlord. If the Premises are not surrendered at the expiration of the Term or earlier termination of this Lease, Tenant shall continue to be responsible for the payment of Rent (as the same may be increased pursuant to Section 20 below) until the Premises are so surrendered. Tenant shall indemnify, defend and hold the Indemnitees (as defined below) harmless from and against any and all Claims (x) arising from any delay by Tenant in so surrendering the Premises including, without limitation, any Claims made against Landlord by any succeeding tenant or prospective tenant founded on or resulting from such delay, and (y) suffered by Landlord due to lost opportunities to lease any portion of the Premises to any such succeeding tenant or prospective tenant.
11. REPAIRS AND MAINTENANCE.
11.1 Tenant’s Repairs and Maintenance Obligations. Except for those portions of the Building to be maintained by Landlord, as provided in Sections 11.2 and 11.3 below (collectively, “Landlord Repair Obligations”), Tenant shall, at its sole cost and expense, keep and maintain all parts of the Premises and such portions of the Building as are within the exclusive control of Tenant in good, clean and safe condition and repair, promptly making all necessary repairs and replacements, whether ordinary or extraordinary, with materials and workmanship of the same character, kind and quality as the original thereof, all of the foregoing in accordance with the applicable provisions of Section 10 hereof, and to the reasonable satisfaction of Landlord, including, but not limited to, repairing any damage (and replacing any property so damaged) caused by Tenant or any of Tenant’s Responsible Parties, and restoring the Premises to the condition existing prior to the occurrence of such damage. Without limiting any of the foregoing, Tenant shall be solely responsible for promptly maintaining (a) all mechanical
12
systems, heating, ventilation and air conditioning systems exclusively serving the Premises, unless maintained by Landlord, (b) all plumbing work and fixtures exclusively serving the Premises, (c) electrical wiring systems, fixtures and equipment exclusively serving the Premises, (d) all interior lighting (including, without limitation, light bulbs and/or ballasts) and exterior lighting exclusively serving the Premises or adjacent to the Premises, (e) all glass, windows, window frames, window casements, interior and exterior doors, door frames and door closers within the Premises, (f) all roll-up doors, ramps and dock equipment within the Premises, including without limitation, dock bumpers, dock plates, dock seals, dock levelers and dock lights, (g) all tenant signage, (h) sprinkler systems, fire protection systems and security systems inside and exclusively serving the Premises, except to the extent maintained by Landlord, and (i) all partitions, fixtures, equipment, interior painting, interior walls and floors, and floor coverings of the Premises and every part thereof. Any such work shall be performed by licensed, insured and bondable contractors and subcontractors reasonably approved by Landlord. Additionally, Tenant shall be solely responsible for the performance of the regular removal of trash and debris from the Premises.
11.2 Maintenance by Landlord. Subject to Tenant’s reimbursement obligations under Section 6, Landlord shall repair and maintain the following items: fire protection and life safety systems and services; the roof and roof coverings (provided that Tenant installs no additional air conditioning or other equipment on the roof that damages the roof coverings, in which event Tenant shall pay all costs relating to the presence of such additional equipment); the plumbing, electrical, and mechanical systems serving the Building (excluding the plumbing, mechanical and electrical systems inside and exclusively serving the Premises); exterior painting of the Building; repairs to the Premises that could be considered capital under generally accepted accounting principles; and the Common Areas, including the parking areas, pavement, sprinkler systems, sidewalks, driveways, curbs, and lighting systems in the Common Areas. If Landlord elects to perform any repair or restoration work required to be performed by Tenant under Section 11.4, Tenant shall reimburse Landlord upon demand for all costs and expenses incurred by Landlord in connection therewith. Tenant shall promptly report, in writing, to Landlord any defective condition known to it which Landlord is required to repair.
11.3 Landlord’s Repairs and Maintenance Obligations. Subject to the provisions of Sections 11.1, 25 and 26, and except for repairs rendered necessary by the intentional or negligent acts or omissions of Tenant or any of Tenant’s Responsible Parties that are not covered by the waiver in Section 12.5, Landlord shall, at Landlord’s sole cost and expense, keep in good repair and replace as necessary (a) the structural elements of the Building, including, without limitation, the structural portions of the floors, foundations and exterior perimeter walls of the Building (inclusive of glass and exterior doors), and (b) the roof of the Building (including the roof membrane), and (c) any repair, maintenance or improvements (i) necessitated by the acts or omissions of Landlord or any other occupant of the Building, or their respective agents, employees or contractors, or (ii) for which Landlord has a right of reimbursement from others.
11.4 Tenant’s Failure to Perform Repairs and Maintenance Obligations. If Tenant refuses or neglects to repair and maintain the Premises and the other areas properly as required herein and to the reasonable satisfaction of Landlord, (i) Landlord may, but without obligation to do so, at any time after reasonable advance notice to Tenant, make such repairs or maintenance without Landlord having any liability to Tenant for any loss or damage that may accrue to Tenant’s Property or to Tenant’s business by reason thereof, except to the extent any damage is caused by the willful misconduct or gross negligence of Landlord or its authorized agents and representatives and (ii) Tenant shall pay to Landlord, as Additional Rent, Landlord’s costs and expenses incurred therefor. Tenant’s obligations under this Section 11 shall survive the expiration of the Term or earlier termination thereof. Tenant hereby waives any right to repair at the expense of Landlord under any applicable Laws now or hereafter in effect.
13
12. INSURANCE.
12.1 Types of Insurance. Tenant shall maintain in full force and effect at all times during the Term, at Tenant’s sole cost and expense, for the protection of Tenant and Landlord, as their interests may appear, policies of insurance issued by carriers reasonably acceptable to Landlord and its lender which afford the following coverages: (i) worker’s compensation and employer’s liability, as required by law; (ii) commercial general liability insurance (occurrence form) providing coverage against any and all claims for bodily injury and property damage occurring in, on or about the Premises arising out of Tenant’s and Tenant’s Responsible Parties’ use or occupancy of the Premises and such insurance shall (a) include coverage for blanket contractual liability, fire damage, premises, personal injury, completed operations and products liability, and (b) have a combined single limit of not less than Two Million Dollars ($2,000,000) per occurrence with a Three Million Dollar ($3,000,000) aggregate limit and excess/umbrella insurance in the amount of Five Million Dollars ($5,000,000); (iii) comprehensive automobile liability insurance with a combined single limit of at least $1,000,000 per occurrence for claims arising out of any owned, non-owned or hired automobiles used in the conduct of Tenant’s business; (iv) “causes of loss – special form” property insurance, including without limitation, sprinkler leakage, covering damage to or loss of any of Tenant’s Property and any Alterations located in, on or about the Premises (but not the Initial Improvements, which shall be insured by Landlord), together with, if the property of any of Tenant’s invitees, vendors or customers is to be kept in the Premises, warehouser’s legal liability or bailee customers insurance for the full replacement cost of the property belonging to such parties and located in the Premises (which insurance shall be written on a replacement cost basis (without deduction for depreciation) in an amount equal to one hundred percent (100%) of the full replacement value of the aggregate of the items referred to in this clause (iv)); and (v) such other insurance or higher limits of liability as is then customarily required for Comparable Building (as defined below) or as may be reasonably required by any of Landlord’s lenders and is required of all similarly situated tenants in the Project if permitted under such tenant’s leases. “Comparable Buildings” means commercial buildings located in Santa Clara, California or the surrounding metropolitan area that are comparable to the Building in quantity, size, type and quality.
12.2 Insurance Policies. Insurance required to be maintained by Tenant shall be written by companies (i) licensed to do business in the State of California, (ii) domiciled in the United States of America, and (iii) having a “General Policyholders Rating” of at least A-:VII (or such higher rating as may be required by a lender having a lien on the Premises) as set forth in the most current issue of “A.M. Best’s Rating Guides.” Any deductible amounts under any of the insurance policies required hereunder shall not exceed Twenty-Five Thousand Dollars ($25,000). Tenant shall deliver to Landlord certificates of insurance and true and complete copies of any and all endorsements required herein for all insurance required to be maintained by Tenant hereunder at the time of execution of this Lease by Tenant. Tenant shall, at least five (5) days prior to expiration of each policy, furnish Landlord with certificates of renewal or “binders” thereof. Each certificate shall expressly provide that such policies shall not be cancelable or otherwise subject to material modification except after thirty (30) days prior written notice to the parties named as additional insureds as required in this Lease (except for cancellation for nonpayment of premium, in which event cancellation shall not take effect until at least ten (10) days’ notice has been given to Landlord). Tenant shall have the right to provide insurance coverage which it is obligated to carry pursuant to the terms of this Lease under a blanket insurance policy, provided such blanket policy expressly affords coverage for the Premises and Landlord as required by this Lease.
12.3 Additional Insureds and Coverage. Each of Landlord, Landlord’s property management company or agent, and Landlord’s lender(s) having a lien against the Premises shall be named as additional insureds or loss payees (as applicable) under all of the policies required in Section 12.1(ii) and, with respect to any Alterations, in Section 12.1(iv) hereof. All such policies shall provide for severability of interest. All insurance to be maintained by Tenant shall, except for workers’ compensation and employer’s liability insurance, be endorsed to state that it is primary, without right of contribution from insurance maintained by Landlord, and shall be in excess of coverage which Landlord may have and shall be unaffected by any insurance or self-insurance Landlord may have regardless of whether any other insurance names Landlord as an insured or whether such insurance stands primary or secondary.
14
Any umbrella/excess liability policy (which shall be in “following form”) shall provide that if the underlying aggregate is exhausted, the excess coverage will drop down as primary insurance. The limits of insurance maintained by Tenant shall not limit Tenant’s liability under this Lease. It is the parties’ intention that the insurance to be procured and maintained by Tenant as required herein shall provide coverage for any and all damage or injury arising from or related to Tenant’s operations of its business and/or Tenant’s or Tenant’s Responsible Parties’ use of the Premises and any of the areas within the Premises.
12.4 Failure of Tenant to Purchase and Maintain Insurance. If Tenant fails to obtain and maintain the insurance required herein throughout the Term, Landlord may, but without obligation to do so, after notice to Tenant, purchase the necessary insurance and pay the premiums therefor. If Landlord so elects to purchase such insurance, Tenant shall promptly pay to Landlord as Additional Rent, the amount so paid by Landlord, upon Landlord’s demand therefor. In addition, Landlord may recover from Tenant and Tenant agrees to pay, as Additional Rent, any and all Claims which Landlord may incur due to Tenant’s failure to obtain and maintain such insurance.
12.5 Waiver of Subrogation. Notwithstanding any provision of this Lease to the contrary (including, without limitation, Section 13.2 below), Landlord and Tenant mutually waive their respective rights of recovery against each other for any loss of, or damage to, either parties’ property to the extent that such loss or damage is caused by or results from a risk which is actually insured by an insurance policy in effect or required to be in effect at the time of such loss or damage (or, in the case of damage to Landlord’s property, would normally have been covered but for Landlord’s election not to maintain a policy of all-risk or special form coverage for the full replacement value of such property), without regard to the negligence or willful misconduct of the entity so released. Each party shall obtain any special endorsements, if required by its insurer, whereby the insurer waives its rights of subrogation against the other party. This provision is intended to waive fully, and for the benefit of the parties hereto, any rights and/or claims which might give rise to a right of subrogation in favor of any insurance carrier. All of Landlord’s and Tenant’s repair and indemnity obligations under this Lease shall be subject to the waiver contained in this paragraph.
13. INDEMNITY; LIMITATION OF LIABILITY AND WAIVER OF CLAIMS.
13.1 Indemnity. Except to the extent of Claims resulting from the negligence or willful misconduct of Landlord or its authorized representatives or Landlord’s violation of this Lease, Tenant agrees to protect, defend (with counsel reasonably acceptable to Landlord) and hold Landlord, the Project’s property manager, each of Landlord’s lenders and each of their respective directors, members, managers, officers, partners, shareholders, trustees, affiliates, subsidiaries, employees, agents and representatives, and each of their respective successors and assigns (collectively, the “Indemnitees”) harmless and indemnify the Indemnitees from and against all liabilities, damages, demands, penalties, costs, claims, losses, judgments, charges and expenses (including reasonable attorneys’ fees, costs of court and expenses necessary in the prosecution or defense of any litigation including the enforcement of this provision) (collectively, “Claims”) arising from or in any way related to, directly or indirectly, (i) Tenant’s or Tenant’s Responsible Parties’ use of the Premises or other portions of the Project, (ii) the conduct of Tenant’s business, (iii) from any activity, work or thing done, permitted or suffered by Tenant in or about the Premises, and/or (iv) Tenant’s failure to perform any covenant or obligation of Tenant under this Lease. Tenant agrees that the obligations of Tenant herein shall survive the expiration or earlier termination of this Lease.
13.2 Limitation of Liability and Waiver of Claims. Except to the extent of Claims resulting from the negligence or willful misconduct of Landlord or the Indemnitees or Landlord’s violation of this Lease, to the fullest extent permitted by law, Tenant agrees that neither Landlord nor any of the Indemnitees shall at any time or to any extent whatsoever be liable, responsible or in any way accountable for any loss, liability, injury, death or damage to persons or property which at any time may
15
be suffered or sustained by Tenant or by any person(s) whomsoever who may at any time be using, occupying or visiting the Premises. Tenant shall not, in any event or circumstance, be permitted to offset or otherwise credit against any payments of Rent required herein for matters for which Landlord may be liable hereunder unless the same is expressly authorized elsewhere in this Lease. Notwithstanding any provision to the contrary contained in this Lease, at no time shall Landlord be responsible or liable to the Tenant for any lost profits, lost economic opportunities or any form of consequential damage as the result of any actual or alleged breach by Landlord of its obligations under this Lease.
14. ASSIGNMENT AND SUBLEASING.
14.1 Prohibition. Tenant shall not, without the prior written consent of Landlord, assign, mortgage, hypothecate, encumber, grant any license or concession, pledge or otherwise transfer this Lease or any interest herein, permit any assignment or other transfer of this Lease by operation of law, sublet the Premises or any part thereof, or permit the use of the Premises by any persons other than Tenant (collectively, “Transfers” and any entity to whom any Transfer is made or sought to be made is sometimes referred to as a “Transferee”). No consent to any Transfer shall constitute a waiver of the provisions of this Section 14, and all subsequent Transfers may be made only with the prior written consent of Landlord, which consent shall not be unreasonably withheld, but which consent shall be subject to the provisions of this Section 14.
14.2 Request for Consent. If Tenant seeks to make a Transfer, Tenant shall notify Landlord, in writing (“Tenant’s Notice”), and deliver to Landlord at least thirty (30) days prior to the proposed commencement date of the Transfer (“Proposed Lease Date”) the following: (i) a description of the portion of the Premises to be transferred (the “Subject Space”); (ii) all of the terms of the proposed Transfer, including without limitation, the Proposed Lease Date, the name and address of the proposed Transferee, and a copy of the existing or proposed assignment, sublease or other agreement governing the proposed Transfer; (iii) current financial statements of the proposed Transferee certified by an officer, member, partner or owner thereof, and, if available, audited financial statements for the previous three (3) most recent consecutive fiscal years; and (iv) such other information as Landlord may then reasonably require. Within thirty (30) days after Landlord’s receipt of the Tenant’s Notice (the “Landlord Response Period”) Landlord shall notify Tenant, in writing, of its determination with respect to such requested proposed Transfer and Landlord’s election as set forth in Section 14.5. If Landlord does not elect to recapture pursuant to Section 14.5 and Landlord does consent to the requested proposed Transfer, Tenant may thereafter assign its interests in and to this Lease or sublease all or a portion of the Premises to the same party and on the same terms as set forth in the Tenant’s Notice.
14.3 Criteria for Consent. Tenant agrees that, among other circumstances for which Landlord could reasonably withhold consent to a proposed Transfer, it shall be reasonable for Landlord to withhold its consent where (a) Tenant is in default of its obligations under this Lease beyond applicable notice and cure periods, (b) the use to be made of the Premises by the proposed Transferee is prohibited, or differs materially from the uses permitted, under this Lease, (c) the proposed Transferee or its business is subject to compliance with additional requirements of the ADA beyond those requirements which are applicable to Tenant, (d) the proposed Transferee does not intend to occupy the Premises, (e) Landlord reasonably disapproves of the proposed Transferee’s reputation or creditworthiness or the character of the business to be conducted at the Premises (provided, however, that so long as Tenant will remain in existence and primarily liable under this Lease from and after a proposed Transfer, then Landlord shall take into account both Tenant’s creditworthiness and the proposed Transferee’s creditworthiness), (f) the proposed Transferee is a governmental agency or unit or an existing tenant in the Project, (g) the proposed Transfer would cause Landlord to violate another agreement or obligation to which Landlord is a party or otherwise subject, (h) the proposed Transferee will use, store or handle Hazardous Materials (defined below) of a type, nature or quantity not permitted under this Lease, (i) Landlord’s lender does not consent to such Transfer or such Transfer creates a violation under any loan encumbering the Project, (j) either the Transfer or any consideration payable to Landlord in connection therewith adversely affects the real estate investment trust qualification tests applicable to Landlord or its affiliates, or (k) the proposed Transferee is involved in litigation with Landlord or any of its affiliates.
16
14.4 Effectiveness of Transfer and Continuing Obligations. Prior to the date on which any permitted Transfer becomes effective, Tenant shall deliver to Landlord (i) a counterpart of the fully executed Transfer document, (ii) an executed Hazardous Materials Disclosure Certificate substantially in the form of Exhibit E hereto (the “Transferee HazMat Certificate”), and (iii) Landlord’s standard and reasonable form of Consent to Assignment or Consent to Sublease, as applicable, executed by Tenant and the Transferee in which each of Tenant and the Transferee confirms its obligations under this Lease. Failure or refusal of a Transferee to execute any such consent instrument shall not release or discharge the Transferee from its obligation to do so or from any liability as provided herein. The voluntary, involuntary or other surrender of this Lease by Tenant, or a mutual cancellation by Landlord and Tenant, shall not work a merger, and any such surrender or cancellation shall, at the option of Landlord, either terminate all or any existing subleases or operate as an assignment to Landlord of any or all of such subleases. Each permitted Transferee shall assume and be deemed to assume this Lease and shall be and remain liable jointly and severally with Tenant for payment of Rent and for the due performance of, and compliance with all the terms, covenants, conditions and agreements herein contained on Tenant’s part to be performed or complied with, for the Term of this Lease, provided that any subtenant shall only assume the obligations of this Lease with respect to the subleased space on the economic terms contained within the approved Transfer. No Transfer shall affect the continuing primary liability of Tenant (which, following assignment, shall be joint and several with the assignee) under this Lease whether occurring before or after such Transfer, and Tenant shall not be released from performing any of the terms, covenants and conditions of this Lease. An assignee of Tenant shall become directly liable to Landlord for all obligations of Tenant hereunder. The acceptance of any Rent by Landlord from any other person (whether or not such person is an occupant of the Premises) shall not be deemed to be a waiver by Landlord of any provision of this Lease or to be a consent to any Transfer. Any and all options, rights of refusal, improvement allowances and other similar rights granted to Tenant in this Lease, if any, shall not be assignable by Tenant unless expressly authorized in writing by Landlord or if made pursuant to a Permitted Transfer (as defined below). Any transfer that requires Landlord’s consent and is made without Landlord’s prior written consent, shall, at Landlord’s option, be null, void and of no effect, and shall, at Landlord’s option, constitute a material default by Tenant of this Lease after the expiration of applicable notice and cure periods. As Additional Rent, Tenant shall pay to Landlord each time it requests a Transfer, a fee in the amount of not more than $1,500.00 for its actual out-of-pocket legal and other expenses incurred by Landlord in connection with any actual or proposed Transfer.
14.5 Recapture. If the Transfer (i) by itself or taken together with then existing or pending Transfers covers or totals, as the case may be, more than fifty (50%) of the rentable square feet of the Premises, or (ii) is for a term which by itself or taken together with then existing or pending Transfers is greater than eighty percent (80%) of the period then remaining in the Term as of the Proposed Effective Date, then Landlord shall have the right, to be exercised by giving written notice to Tenant, to recapture the Subject Space described in Tenant’s Notice. If such recapture notice is given, it shall serve to terminate this Lease with respect to the proposed Subject Space, or, if the proposed Subject Space covers all of the Premises, it shall serve to terminate the entire Term of this Lease, in either case, as of the Proposed Effective Date. If this Lease is terminated with respect to less than the entire Premises, Rent shall be adjusted on the basis of the proportion of rentable square feet retained by Tenant to the rentable square feet originally demised and this Lease as so amended shall continue thereafter in full force and effect.
14.6 Transfer Premium. If Landlord consents to a Transfer, as a condition thereto, Tenant shall pay to Landlord monthly, as Additional Rent, at the same time as the monthly installments of Rent are payable hereunder, fifty percent (50%) of any Transfer Premium. The term “Transfer Premium” shall mean all rent, additional rent and other consideration paid by such Transferee which either initially or over the term of the Transfer exceeds the Rent or pro rata portion of the Rent, as the case may be, for the Subject Space, after first deducting reasonable Transfer expenses incurred by Tenant, including tenant improvements, brokerage commissions, and legal fees.
17
14.7 Waiver. Notwithstanding any Transfer, or any indulgences, waivers or extensions of time granted by Landlord to any Transferee, or failure by Landlord to take action against any Transferee, Tenant agrees that Landlord may, at its option, proceed against Tenant without having taken action against or joined such Transferee, except that Tenant shall have the benefit of any indulgences, waivers and extensions of time granted to any such Transferee.
14.8 Assumption and Attornment. If Tenant shall assign this Lease as permitted herein, the assignee shall expressly assume all of the obligations of Tenant hereunder in a written instrument satisfactory to Landlord and furnished to Landlord not later than fifteen (15) days prior to the effective date of the assignment. If Tenant shall sublease the Premises as permitted herein, Tenant shall, at Landlord’s option, within fifteen (15) days following any request by Landlord, obtain and furnish to Landlord the written agreement of such subtenant to the effect that the subtenant will attorn to Landlord and will pay all subrent directly to Landlord.
14.9 Permitted Transfer.
14.9.1 Permitted Transfer. Notwithstanding anything in this Section 14 to the contrary, and provided there is no uncured event of default under the Lease, Tenant shall have the right, without the prior written consent of Landlord, to (a) assign the Lease to an Affiliate (as defined below), to an entity created by merger, reorganization or recapitalization of or with Tenant, or to a purchaser of all or substantially all of Tenant’s assets or (b) sublease the Premises or any part thereof to an Affiliate (each, a “Permitted Transfer”); provided, however, that (i) such Permitted Transfer is for a valid business purpose and not to avoid any obligations under the Lease, (ii) the assignee is a reputable entity of good character and, unless the transferee is an Affiliate and Tenant will remain in existence and primarily liable under this Lease (with sufficient net worth to satisfy Tenant’s remaining obligations under this Lease), shall have, immediately after giving effect to such assignment, an aggregate net worth (computed in accordance with generally accepted accounting principles, consistently applied) at least equal to the aggregate net worth (as so computed) of Tenant immediately prior to such assignment or otherwise reasonably sufficient to satisfy such transferee’s obligations under this Lease, whichever is greater, (iii) Tenant provides Tenant’s Notice in accordance with Section 14.2 above, (iv) no later than fifteen (15) days prior to the effective date of the Permitted Transfer, the Transferee shall provide the documentation required pursuant to Section 14.8 above, and (v) within ten (10) days after Landlord’s written request, provide such reasonable documents or information which Landlord reasonably requests for the purpose of substantiating whether or not the Permitted Transfer is to an Affiliate or is otherwise in accordance with the terms and conditions of this Section 14.9. Tenant shall not have the right to perform a Permitted Transfer, if, as of the date of the effective date of the Permitted Transfer, an event of default is then continuing.
14.9.2 Definitions. In addition to the terms elsewhere defined in this Lease, the following terms shall have the following meanings with respect to the provisions of this Lease:
(a) “Affiliate” shall mean any Person (as defined below) which is owned or controlled by, owns or controls, or is under common ownership or control with Tenant.
(b) “control” means, with respect to a Person that is a corporation, the right to exercise, directly or indirectly, more than fifty percent (50%) of the voting rights attributable to the shares of the controlled corporation and, with respect to a Person that is not a corporation, the possession, directly or indirectly, of the power at all times to direct or cause the direction of the management and policies of the controlled Person.
(c) “Person” means an individual, partnership, trust, corporation, firm or other entity.
18
14.9.3 No Recapture or Transfer Premium Rights. Landlord acknowledges and agrees that the terms and conditions of Sections 14.5 and 14.6 shall not apply to any Permitted Transfer.
15. SUBORDINATION.
15.1 Subordination. To the fullest extent permitted by law, this Lease, the rights of Tenant under this Lease and Tenant’s leasehold interest shall be subject and subordinate at all times to: (i) all ground leases or underlying leases which may now exist or hereafter be executed affecting the Building, or any other portion of the Premises, and (ii) the lien of any mortgage or deed of trust which may now or hereafter exist for which the Building, ground leases or underlying leases, any other portion of the Premises or Landlord’s interest or estate therein is specified as security. Notwithstanding the foregoing, Landlord or any such ground lessor, mortgagee, or any beneficiary shall have the right to require this Lease be superior to any such ground leases or underlying leases or any such liens, mortgage or deed of trust. If any ground lease or underlying lease terminates for any reason or any mortgage or deed of trust is foreclosed or a conveyance in lieu of foreclosure is made for any reason, Tenant shall attorn to and become the Tenant of the successor in interest to Landlord, provided such successor in interest will not disturb Tenant’s use, occupancy or quiet enjoyment of the Premises if Tenant is not in material default of this Lease beyond any applicable notice and cure period. The successor in interest to Landlord following foreclosure, sale or deed in lieu thereof shall not be: (a) liable for any act or omission of any prior lessor or with respect to events occurring prior to acquisition of ownership, except continuing defaults; (b) subject to any offsets which Tenant might have against any prior lessor; (c) bound by prepayment of more than one (1) month’s Rent, unless actually received; or (d) liable to Tenant for any Security Deposit not actually received by such successor in interest to the extent any portion of such Security Deposit has not already been forfeited by, or refunded to, Tenant. Landlord shall be liable to Tenant for all or any portion of the Security Deposit not forfeited by, or refunded to Tenant, until and unless Landlord transfers such Security Deposit to the successor in interest. Tenant covenants and agrees to execute (and acknowledge if required by Landlord, any lender or ground lessor) and deliver, within five (5) days of a written demand or request by Landlord and in the form reasonably requested by Landlord, ground lessor, mortgagee or beneficiary, any additional documents evidencing the priority or subordination of this Lease with respect to any such ground leases or underlying leases or the lien of any such mortgage or deed of trust.
15.2 SNDA. Landlord shall, subject to the terms and conditions of this Section 15.2, use commercially reasonable efforts to obtain for Tenant from the existing mortgagee and each future mortgagee a subordination, non-disturbance and attornment agreement on such mortgagee’s standard form (each, a “SNDA”). Notwithstanding the foregoing, the Lease and Tenant’s obligations thereunder shall not be affected or impaired in any respect should any mortgagee decline to enter into a SNDA. If such mortgagee executes and delivers to Landlord a SNDA and Landlord delivers the same to Tenant, and Tenant either fails or refuses to execute and deliver the SNDA within 20 days following Landlord’s delivery of such SNDA to Tenant, then Landlord shall have no further obligation to obtain a SNDA for Tenant from such mortgagee. In no event shall Landlord be required to commence any litigation in order to obtain the SNDA.
16. RIGHT OF ENTRY. Landlord and its agents shall have the right to enter the Premises at all reasonable times, upon one (1) business day prior notice, for purposes of inspection, exhibition, posting of notices, investigation, replacements, repair, maintenance and alteration and Landlord shall have the right to take photographs of the Premises in connection with such entry. It is further agreed that Landlord shall have the right to use any and all means Landlord deems necessary to enter the Premises in an emergency. Landlord shall have the right, at any time during the Term, to place “for rent” or “for lease” signs on the outside of the Building (but not on any portion of the inside or outside of the Premises), which “for rent” signs shall not, except as otherwise expressly set forth in this Section 16,
19
advertise or market the Premises for rent. Landlord shall have the right, during the last nine (9) months of the Term, to place “for rent” signs on the outside of the Building, which “for rent” signs may advertise or market the Premises for rent. Provided that Landlord uses reasonable efforts to minimize interference with Tenant’s conduct of business from the Premises and complies with the requirements in this section, Tenant hereby waives any Claim from damages or for any injury or inconvenience to or interference with Tenant’s business, or any other loss occasioned thereby except for any Claim for any of the foregoing arising out of the gross negligence or willful misconduct of Landlord or its authorized representatives. Notwithstanding the foregoing, any entry by Landlord and Landlord’s agents shall not unreasonably impair Tenant’s operations, and shall comply with Tenant’s reasonable security measures.
17. ESTOPPEL CERTIFICATE. Tenant shall execute (and acknowledge if required by any lender or ground lessor) and deliver to Landlord, within ten (10) business days after Landlord provides such to Tenant, a statement in writing certifying that this Lease is unmodified and in full force and effect (or, if modified, stating the nature of such modification), the date to which the Rent and other charges are paid in advance, if any, acknowledging that there are not, to Tenant’s knowledge, any uncured defaults on the part of Landlord hereunder or specifying such defaults as are claimed, and such other matters as Landlord may reasonably require. Any such statement may be conclusively relied upon by Landlord and any prospective purchaser or encumbrancer of the Building or other portions of the Premises. In the event that Tenant fails to timely deliver an estoppel certificate, then (i) such failure shall be an event of default after the applicable notice and grace period, and (ii) Tenant’s failure to deliver such statement within such time shall be conclusive upon the Tenant that (a) this Lease is in full force and effect, without modification except as may be represented by Landlord; (b) there are no uncured defaults in Landlord’s performance; and (c) not more than one month’s Rent has been paid in advance.
18. TENANT’S DEFAULT.
The occurrence of any one or more of the following events shall, at Landlord’s option, constitute a material default by Tenant of the provisions of this Lease:
18.1 The abandonment of the Premises by Tenant, as abandonment is statutorily defined in California Civil Code Section 1951.3 or all similar or successor laws;
18.2 The failure by Tenant to make any payment of Rent, Additional Rent or any other payment or charge required hereunder on the date said payment is due, if such failure to pay continues for five (5) business days after Landlord’s delivery of written notice of the delinquency (provided, however, that Tenant shall not be entitled to more than two (2) notices of a delinquency in a monetary obligation during any 12-month period, and if thereafter any Rent is not paid when due, an event of default shall be considered to have occurred even though no notice thereof is given);
18.3 Except as otherwise provided in Section 19.4 hereof, the failure by Tenant to observe, perform or comply with any of the conditions, covenants or provisions of this Lease (except failure to make any payment of Rent and/or Additional Rent and any other payment or charge required hereunder) and such failure is not cured within (i) thirty (30) days of the date on which Landlord delivers written notice of such failure to Tenant for all failures other than with respect to (a) Hazardous Materials (defined in Section 27 hereof), (b) Tenant making the repairs, maintenance and replacements required under the provisions of Section 11.1 hereof, or (c) the timely delivery by Tenant of a subordination, non-disturbance and attornment agreement (an “SNDA”), a counterpart of a fully executed Transfer document and a consent thereto (collectively, the “Transfer Documents”), an estoppel certificate and insurance certificates and (ii) ten (10) days of the date on which Landlord delivers written notice of such failure to Tenant for all failures in any way related to Hazardous Materials or Tenant failing to timely make the repairs, maintenance or replacements required by Section 11.1, or with respect to subordination, assignment and sublease, estoppel certificates and insurance. However, Tenant shall not be in default of its obligations hereunder if such failure (other than any failure of Tenant to timely and properly make the
20
repairs, maintenance, or replacements required by Section 11.1, or timely deliver an SNDA, the Transfer Documents, an estoppel certificate or insurance certificates, for which no additional cure period shall be given to Tenant) cannot reasonably be cured within such 30- or 10-day period, as applicable, and Tenant promptly commences, and thereafter diligently proceeds with same to completion, all actions necessary to cure such failure as soon as is reasonably possible. Any such written notice shall be in addition to any notice required under California Code of Civil Procedure Sections 1161, et seq. and all similar or successor laws; or
18.4 The making of a general assignment by Tenant for the benefit of creditors, the filing of a voluntary petition by Tenant or the filing of an involuntary petition by any of Tenant’s creditors seeking the rehabilitation, liquidation, or reorganization of Tenant under any law relating to bankruptcy, insolvency or other relief of debtors and, in the case of an involuntary action, the failure to remove or discharge the same within sixty (60) days of such filing, the appointment of a receiver or other custodian to take possession of substantially all of Tenant’s assets or this leasehold that is not removed within sixty (60) days, Tenant’s inability to pay Tenant’s debts or failure generally to pay Tenant’s debts when due, any court entering a decree or order directing the winding up or liquidation of Tenant or of substantially all of Tenant’s assets, or the attachment, execution or other judicial seizure of substantially all of Tenant’s assets or this leasehold.
19. REMEDIES FOR TENANT’S DEFAULT.
19.1 Landlord’s Rights. In the event of Tenant’s material default under this Lease as described in Section 18, Landlord may terminate Tenant’s right to possess the Premises by any lawful means. Following delivery of written notice by Landlord, this Lease shall terminate on the date specified in such notice and Tenant shall immediately surrender possession of the Premises to Landlord. In addition, if this Lease is terminated, Landlord shall have the right to immediately re-enter the Premises, and if Landlord’s right of re entry is exercised following Tenant’s abandonment of the Premises, all of Tenant’s Property left on the Premises or in the Project shall be deemed abandoned. If Landlord relets the Premises or any portion thereof, Tenant shall immediately be liable to Landlord for all costs Landlord incurs in reletting the Premises or any part thereof, including, without limitation, broker’s commissions, expenses of cleaning, redecorating, and further improving the Premises and other similar costs (collectively, the “Reletting Costs”). All Reletting Costs shall be fully chargeable to Tenant and shall not be prorated or otherwise amortized in relation to any new lease for the Premises or any portion thereof. Reletting may be for a period shorter or longer than the remaining term of this Lease, but, if longer, the Reletting Costs shall be appropriately prorated to reflect only the portion of Landlord’s expenses attributable to the remaining term of the Lease. In no event shall Tenant be entitled to any excess rent received by Landlord. No act by Landlord other than giving written notice to Tenant shall terminate this Lease or Tenant’s right to possess the Premises, including without limitation, acts of maintenance, efforts to relet the Premises or the appointment of a receiver on Landlord’s initiative to protect Landlord’s interest under this Lease. At all times Landlord shall have the right to remedy any default of Tenant, to maintain or improve the Premises, to cause a receiver to be appointed to administer the Premises and any new or existing subleases and to add to the Rent payable hereunder all of Landlord’s reasonable costs in so doing, with interest at the maximum rate permitted by law from the date of such expenditure.
19.2 Damages Recoverable. If Tenant breaches this Lease and abandons the Premises before the end of the Term, or if Landlord terminates Tenant’s right to possession following Tenant’s breach or default under this Lease, then in either such case, Landlord may recover from Tenant all damages suffered by Landlord as a result of Tenant’s failure to perform its obligations hereunder, including without limitation, the unamortized cost of any Initial Improvements constructed by or on behalf of Tenant pursuant to Exhibit B hereto to the extent Landlord has paid for such improvements, and all Reletting Costs, and the worth at the time of the award (computed in accordance with paragraph (3) of Subdivision (a) of Section 1951.2 of the California Civil Code) of the amount by which the Rent then unpaid hereunder for the balance of the Term exceeds the amount of such loss of Rent for the same
21
period which Tenant proves could be reasonably avoided by Landlord and in such case, Landlord prior to the award, may relet the Premises for the purpose of mitigating damages suffered by Landlord because of Tenant’s failure to perform its obligations hereunder; provided, however, that even if Tenant abandons the Premises following such breach, this Lease shall nevertheless continue in full force and effect for as long as Landlord does not terminate Tenant’s right of possession, and until such termination, Landlord shall have the remedy described in Section 1951.4 of the California Civil Code (Landlord may continue this Lease in effect after Tenant’s breach and abandonment and recover Rent as it becomes due, if Tenant has the right to sublet or assign, subject only to reasonable limitations) and may enforce all its rights and remedies under this Lease, including the right to recover the Rent from Tenant as it becomes due hereunder. The “worth at the time of the award” within the meaning of Subparagraphs (a)(1) and (a)(2) of Section 1951.2 of the California Civil Code shall be computed by allowing interest at the rate of ten percent (10%) per annum. Tenant hereby waives for itself and for all those claiming under Tenant its right to obtain redemption or relief from forfeiture under California Code of Civil Procedure Sections 1174 and 1179 (or any successor or substitute statute), or under any other present or future law, in the event judgment for possession enters against Tenant or Landlord takes possession of the Premises following any default of Tenant hereunder.
19.3 Intentionally Omitted.
19.4 Chronic Default. The term “Chronic Default” as used in this Lease shall mean that Tenant has materially defaulted in the performance of any of its obligations under this Lease more than three (3) times during the Term of the Lease, regardless of whether or not Tenant cures any such material default.
19.5 Recapture of Landlord Concessions. In addition to all other remedies of Landlord, any agreement by Landlord for the giving or paying by Landlord to or for Tenant, of any cash or other bonus, inducement or consideration for Tenant’s entering into this Lease, any rent credits or tenant improvement construction allowances provided to Tenant, or any and all direct and indirect costs incurred by Landlord arising out of the design or construction of any tenant improvements for the Premises (or allowances therefor) in connection with this Lease, all of which concessions are hereinafter collectively referred to as “Landlord Concessions,” shall be deemed conditioned upon Tenant’s full and faithful performance of all of the terms, covenants and conditions of this Lease to be performed by Tenant during the term of this Lease. Upon Landlord’s termination of this Lease due to Tenant’s default under this Lease beyond any applicable notice and cure period, the unamortized portion of any Landlord Concession theretofore abated, given, provided, paid or incurred by Landlord shall be immediately due and payable by Tenant to Landlord, and recoverable by Landlord as Additional Rent due under this Lease.
19.6 Rights and Remedies Cumulative. The foregoing rights and remedies of Landlord are not exclusive; they are cumulative in addition to any rights and remedies now or hereafter existing at law, in equity, by statute or otherwise, and to any remedies Landlord may have under bankruptcy laws or laws affecting creditors’ rights generally.
20. HOLDING OVER. If Tenant holds over after the expiration of the Term, with or without the express or implied consent of Landlord, such tenancy shall be of sufferance only, and shall not constitute a renewal hereof or an extension for any further term, and in such case Base Rent shall be payable at a monthly rate equal to one hundred fifty percent (150%) of the Base Rent applicable during the last rental period of the Term under this Lease (prorated for partial months). Such tenancy shall be subject to every other term and provision contained herein. Landlord hereby expressly reserves the right to require Tenant to surrender possession of the Premises to Landlord in the condition required herein upon the expiration or earlier termination of this Lease. The provisions of this Section 20 shall not be deemed to limit or constitute a waiver of any other rights or remedies of Landlord provided herein or at law. If Tenant fails to surrender the Premises upon the expiration or earlier termination of this Lease, in addition to any other liabilities to Landlord accruing therefrom, Tenant shall protect, defend, indemnify and hold
22
Landlord harmless from all Claims resulting from such failure, including but not limited to, any Claims made by any succeeding tenant founded upon such failure to surrender, and any lost profits to Landlord resulting therefrom.
21. LANDLORD’S DEFAULT. Landlord shall not be considered in default of this Lease unless Landlord fails within a reasonable time to perform an obligation required to be performed by Landlord hereunder. For purposes hereof, a reasonable time shall in no event be less than thirty (30) days after receipt by Landlord of written notice specifying the nature of the obligation Landlord has not performed unless the nature of the default has a material adverse impact on Tenant’s conduct of business from the Premises; provided, however, that if the nature of Landlord’s obligation is such that more than thirty (30) days, after receipt of written notice, is reasonably necessary for its performance, then Landlord shall not be in default of this Lease if performance of such obligation is commenced within such thirty (30) day period (or shorter period in the event of a material adverse impact on Tenant’s conduct of business from the Premises) and thereafter diligently pursued to completion.
22. PARKING. Tenant may use the number of non-exclusive and unassigned parking spaces specified in the Basic Lease Information. Landlord shall exercise reasonable diligence to ensure that such spaces are available to Tenant for its use. Tenant shall comply with any and all parking rules and regulations from time to time established by Landlord or Landlord’s parking operator. If any vehicle is using the parking or loading areas contrary to any provision of this Section 22, Landlord or its parking operator shall have the right, in addition to all other rights and remedies of Landlord under this Lease, to remove or tow away the vehicle without prior notice to Tenant, and the cost thereof shall be paid to Landlord within ten (10) days after notice from Landlord to Tenant. Tenant shall have no right to sublet, assign, or otherwise transfer its right to use the parking spaces, except in connection with a Transfer permitted under Section 14.
23. TRANSFER OF LANDLORD’S INTEREST. Tenant acknowledges that Landlord has the right to transfer all or any portion of its interest in the Premises, Building, the Project and this Lease. Tenant expressly agrees that in the event of any such transfer, Landlord shall, automatically be entirely released from all liability arising under this Lease after the transfer and Tenant agrees to look solely to such transferee for the performance of Landlord’s obligations hereunder after the date of such transfer. Such release is conditioned upon the written assumption and agreement by the transferee to perform Landlord’s obligations hereunder arising or accruing after the date of such transfer. A ground lease or similar long term lease by Landlord of the entire Building, of which the Premises are a part, shall be deemed a sale within the meaning of this Section 23. Tenant agrees to attorn to such new owner provided such new owner does not disturb Tenant’s use, occupancy or quiet enjoyment of the Premises so long as Tenant is not in material default of this Lease beyond any applicable notice and cure period.
24. WAIVER. No delay or omission in the exercise of any right or remedy of either party on any default by the other party shall impair such a right or remedy or be construed as a waiver. The subsequent acceptance of Rent by Landlord after default by Tenant of this Lease shall not be deemed a waiver of such default, other than a waiver of timely payment for the particular Rent payment involved, and shall not prevent Landlord from maintaining an unlawful detainer or other action based on such default. No payment by Tenant or receipt by Landlord of a lesser amount than the monthly Rent and other sums due hereunder shall be deemed to be other than on account of the earliest Rent or other sums due, nor shall any endorsement or statement on any check or accompanying any check or payment be deemed an accord and satisfaction; and Landlord may accept such payment without prejudice to Landlord’s right to recover the balance of such Rent or other sum or pursue any other remedy provided in this Lease. No failure, partial exercise or delay on the part of the Landlord in exercising any right, power or privilege hereunder shall operate as a waiver thereof.
23
25. CASUALTY DAMAGE.
25.1 Casualty. If the Premises or any part [excluding any of Tenant’s Property (collectively, “Tenant’s FF&E”)] shall be damaged or destroyed by fire or other casualty, Tenant shall give immediate written notice thereof to Landlord. Within sixty (60) days after receipt by Landlord of such notice, Landlord shall notify Tenant, in writing, of the time period within which Landlord in good faith believes the necessary repairs can reasonably be made (“Landlord’s Repair Estimate”).
25.1.1 Minor Insured Damage. If the Premises (other than Tenant’s FF&E) are damaged by a casualty due to a risk covered by Landlord’s insurance (or that would have been covered but for Landlord’s election not to maintain all-risk or special form insurance for the full replacement cost of the Building) to such extent that repairs, rebuilding and/or restoration can be reasonably completed within two hundred seventy (270) days following delivery of Landlord’s Repair Estimate, this Lease shall not terminate and Landlord shall repair the Premises to substantially the same condition that existed prior to the occurrence of such casualty, except Landlord shall not be required to rebuild, repair, or replace any of Tenant’s FF&E. The Rent payable hereunder shall be abated proportionately from the date and to the extent Tenant vacates the affected portions of the Premises until the earlier of thirty (30) days after any and all repairs required herein to be made by Landlord are substantially completed or the date Tenant re-commences operations from the affected portions of the Premises, but such abatement shall (i) only be to the extent of the portion of the Premises which is actually rendered unusable and unfit for occupancy, and (ii) only during the time Tenant is not actually using same. If less than all of the Premises is damaged, but the nature of the damage is such that Tenant cannot reasonably conduct its normal business from the Premises, then the “affected portions of the Premises” shall be deemed to be the entire Premises.
25.1.2 Major Insured Damage. If the Premises (other than Tenant’s FF&E) are damaged by a casualty due to a risk covered by Landlord’s insurance (or that would have been covered but for Landlord’s election not to maintain all-risk or special form insurance for the full replacement cost of the Building) to such extent that repairs, rebuilding and/or restoration cannot be reasonably completed, as reasonably determined by Landlord, within two hundred seventy (270) days following delivery of Landlord’s Repair Estimate, then either Landlord or Tenant may terminate this Lease by giving written notice within thirty (30) days after delivery of Landlord’s Repair Estimate. If either party notifies the other of its intention to so terminate this Lease, then this Lease shall terminate and the Rent shall be abated from the date of the occurrence of such damage, provided Tenant diligently proceeds to and expeditiously vacates the Premises (but, in all events Tenant must vacate and surrender the Premises to Landlord by no later than thirty (30) days thereafter). If neither party elects to terminate this Lease, Landlord shall promptly commence and diligently prosecute to completion the repairs to the Premises (except that Landlord shall not be required to rebuild, repair, or replace any of Tenant’s FF&E). During the time when Landlord is prosecuting such repairs to substantial completion, the Rent payable hereunder shall be abated proportionately from the date and to the extent Tenant actually vacates the affected portions of the Premises until any and all repairs required herein to be made by Landlord are substantially completed, but such abatement shall (i) only be to the extent of the portion of the Premises which is actually rendered unusable and unfit for occupancy, and (ii) only during the time Tenant is not actually using same. If less than all of the Premises is damaged, but the nature of the damage is such that Tenant cannot reasonably conduct its normal business from the Premises, then the “affected portions of the Premises” shall be deemed to be the entire Premises. If neither party elects to terminate this Lease under the terms of this Section 25.1.2, but the damage required to be repaired by Landlord is not repaired by the later of (a) two hundred seventy (270) days following delivery of Landlord’s Repair Estimate or (b) the end of the time period set forth in Landlord’s Repair Estimate, then Tenant (subject to the provisions of this Section) may terminate this Lease by written notice to Landlord delivered prior to the completion of repairs, in which event this Lease shall terminate on the date thirty (30) days after such notice. Notwithstanding the foregoing provisions of this Section, Tenant shall have the right to terminate this Lease under this Section 25.1.2 only if each of the following conditions is satisfied: (1) the damage to the Project by fire or other casualty was not caused by the intentional act of Tenant or its agents, representatives or employees; (2) Tenant is not in default under this Lease beyond any applicable
24
notice and cure period; and (3) as a result of the damage, Tenant cannot reasonably conduct business from the Premises. Notwithstanding any of the foregoing or the last sentence of Section 25.2 below, Landlord shall not terminate this Lease due to a casualty if Landlord actually intends to restore the casualty damage.
25.1.3 Damage Near End of Term. Notwithstanding anything to the contrary contained in this Lease except for the provisions of Section 25.3 below, if the Premises are substantially damaged during the last year of then applicable term of this Lease (as it may have been extended), either Landlord or Tenant may, at their option, cancel and terminate this Lease by giving written notice to the other party of its election to do so within forty-five (45) days after the occurrence of such casualty. If either party so elects to terminate this Lease, all rights of Tenant hereunder shall cease and terminate thirty (30) days after Tenant’s receipt or delivery of such notice, as applicable, and Tenant shall immediately vacate the Premises and surrender possession thereof to Landlord.
25.2 Deductible and Uninsured Casualty. Tenant shall pay to Landlord, as Additional Rent, the commercially reasonable deductible amounts under the insurance policies obtained by Landlord under this Lease if the proceeds are used to repair the Premises and this Lease is not terminated, in an amount not to exceed the applicable amount set forth in Section 6.1.2(v). If any portion of the Premises is damaged and is not fully covered by the aggregate of insurance proceeds received by Landlord and any applicable deductible (or would have been so covered but for Landlord’s election not to maintain all-risk or special form insurance for the full replacement cost of the Building), and Tenant does not voluntarily contribute any shortfall thereof, then Landlord or Tenant shall have the right to terminate this Lease by delivering written notice of termination to the other party within thirty (30) days after the date of such event, whereupon all rights of Tenant shall cease and terminate thirty (30) days after Tenant’s receipt of such notice, and Tenant shall immediately vacate the Premises and surrender possession thereof to Landlord.
25.3 Lender’s Rights. Notwithstanding anything to the contrary contained herein, subject to the last sentence of Section 25.1.2, if the holder of any indebtedness secured by the Premises has the right to, and does, require that the insurance proceeds be applied to such indebtedness, then Landlord shall have the right to terminate this Lease by delivering written notice of termination to Tenant within thirty (30) days after the date of notice to Tenant of such event, whereupon all rights of Tenant shall cease and terminate ten (10) days after Tenant’s receipt of such notice, and Tenant shall immediately vacate the Premises and surrender possession thereof to Landlord within such 60 day period.
25.4 Tenant’s Waiver. Provided that Landlord uses reasonable efforts to minimize interference with Tenant’s conduct of business from the Premises, Landlord shall not be liable for any inconvenience or annoyance to Tenant, injury to the business of Tenant, loss of use of any part of the Premises by Tenant or loss of Tenant’s Property, resulting in any way from such damage or the repair thereof. With respect to any damage which Landlord is obligated to repair or may elect to repair, Tenant waives all rights to terminate this Lease or offset any amounts against Rent pursuant to rights accorded Tenant by any law currently existing or hereafter enacted, including without limitation, all rights pursuant to California Civil Code Sections 1932(2.), 1933(4.), 1941 and 1942 and any similar or successor laws.
26. CONDEMNATION. If twenty five percent (25%) or more of the Premises is condemned by eminent domain, inversely condemned or sold in lieu of condemnation for any public or quasi public use or purpose (“Condemned”), then Tenant or Landlord may terminate this Lease as of the date when physical possession of the Premises is taken and title vests in such condemning authority, and Rent shall be adjusted to the date of termination. Tenant shall not because of such condemnation assert any claim against Landlord or the condemning authority for any compensation because of such condemnation, and Landlord shall be entitled to receive the entire amount of any award without deduction for any estate of interest or other interest of Tenant; provided, however, the foregoing shall not preclude Tenant, at Tenant’s sole cost and expense, from obtaining any separate award to Tenant for loss of, or damage to,
25
Tenant’s Property or Alterations to the Premises paid for by Tenant, or for damages for cessation or interruption of Tenant’s business provided such award is separate from Landlord’s award and does not diminish nor otherwise impair the award otherwise payable to Landlord. In addition to the foregoing, Tenant shall be entitled to seek compensation for the relocation costs recoverable by Tenant pursuant to the provisions of California Government Code Section 7262. If neither party elects to terminate this Lease, Landlord shall, if necessary, promptly proceed to restore the Premises to substantially the same condition prior to such partial condemnation, allowing for the reasonable effects of such partial condemnation, and a proportionate allowance shall be made to Tenant, as determined by Landlord, for the Rent corresponding to the time during which, and to the part of the Premises of which, Tenant is deprived on account of such partial condemnation and restoration. Landlord shall not be required to spend funds for restoration in excess of the condemnation proceeds received by Landlord; provided, however, if, as a result, such restoration is not made, Tenant shall have the right to terminate this Lease.
27. ENVIRONMENTAL MATTERS; HAZARDOUS MATERIALS.
27.1 Hazardous Materials Disclosure Certificate; Existing Conditions.
(a) Simultaneously herewith, Tenant has delivered to Landlord Tenant’s executed initial Hazardous Materials Disclosure Certificate (the “Initial HazMat Certificate”), a copy of which is attached hereto as Exhibit E. Tenant covenants, represents and warrants to Landlord that the information in the Initial HazMat Certificate is true and correct and accurately describes the use(s) of Hazardous Materials which will be made and/or used on the Premises by Tenant. Tenant shall, commencing with the date which is one year from the Lease Commencement Date and continuing every year thereafter, deliver to Landlord, upon request, an executed Hazardous Materials Disclosure Certificate (the “HazMat Certificate”), in substantially the form attached hereto as Exhibit E, describing Tenant’s then present use of Hazardous Materials on the Premises, and any other reasonably necessary documents as requested by Landlord.
(b) Tenant acknowledges and agrees that Landlord has, prior to the Lease Date, delivered to Tenant that certain Phase I Environmental Site Assessment dated May 10, 2006, prepared by Ecklund Consultants, Inc., and bearing Project No. 2006-04530-0001 (the “Environmental Report”). Landlord shall have no liability to Tenant on account of any of the matters disclosed in the Environmental Report. Landlord represents and warrants to Tenant, that, as of the Lease Date, and to Landlord’s Actual Knowledge (as defined below), (i) the Project is not used by Landlord for the storage, treatment, generation or manufacture of any Hazardous Materials in a manner which would constitute a violation of applicable Environmental Laws and, (ii) there are no Hazardous Materials present on the Project or the soil, surface water of groundwater thereof which would constitute a violation of Environmental Laws. For purposes of this Lease, the phrase “Landlord’s Actual Knowledge” shall mean the current, actual, personal knowledge of Kathryn G. Spritzer, Landlord’s asset manager, without investigation and without imputation of any other person’s knowledge. The fact that reference is made to the personal knowledge of named individuals shall not render such individuals personally liable for any breach of any of the foregoing representations and warranties.
27.2 Definition of Hazardous Materials. “Hazardous Materials” means (a) any hazardous or toxic wastes, materials or substances, and other pollutants or contaminants, which are or become regulated by any Environmental Laws; (b) petroleum, petroleum by products, gasoline, diesel fuel, crude oil or any fraction thereof; (c) asbestos and asbestos containing material, in any form, whether friable or nonfriable; (d) polychlorinated biphenyls; (e) radioactive materials; (f) lead and lead-containing materials; (g) any other material, waste or substance displaying toxic, reactive, ignitable or corrosive characteristics, as all such terms are used in their broadest sense, and are defined or become defined by any Environmental Law (defined below); (h) any materials which cause or threatens to cause a nuisance upon or waste to any portion of the Premises or any surrounding property; or (i) any materials which pose or threaten to pose a hazard to the health and safety of persons on the Premises or any surrounding property. For purposes of this Lease, “Hazardous Materials” shall not include nominal amounts of ordinary household cleaners, office supplies and janitorial supplies which are not actionable under any Environmental Laws.
26
27.3 Prohibition; Environmental Laws. Except for normal cleaning materials and the materials set forth in the Initial HazMat Certificate, Tenant shall not be entitled to use or store any Hazardous Materials on, in, or about any portion of the Premises or the Project without, in each instance, obtaining Landlord’s prior written consent thereto, which shall not be unreasonably withheld. Tenant shall be permitted to use and/or store only those Hazardous Materials and in such quantities (A) that are necessary for Tenant’s business, (B) to the extent disclosed in the most recent HazMat Certificate, and (C) expressly approved by Landlord in writing. In all events such usage and storage must at all times be in full compliance with any and all applicable local, state and federal environmental, health and/or safety-related laws, statutes, orders, standards, courts’ decisions, ordinances, rules and regulations (as interpreted by judicial and administrative decisions), decrees, directives, guidelines, permits or permit conditions, currently existing and as amended, enacted, issued or adopted in the future (collectively, the “Environmental Laws”). Tenant agrees that any material changes to the type and/or quantities of Hazardous Materials specified in the most recent HazMat Certificate may be implemented only with the prior written consent of Landlord, which consent may be given or withheld in Landlord’s sole discretion. Tenant shall not be entitled nor permitted to install any tanks under, on or about the Premises for the storage of Hazardous Materials without the express written consent of Landlord, which may be given or withheld in Landlord’s reasonable discretion. Landlord shall have the right at all times during the Term, subject to Section 16, to (i) inspect the Premises, (ii) conduct tests and investigations to determine whether Tenant is in compliance with this Section 27 or to determine if Hazardous Materials are present in, on or about the Premises or the Project, and (iii) request lists of all Hazardous Materials used, stored or otherwise located on, under or about any portion of the Premises or the Project. The cost of all such inspections, tests and investigations (collectively, “Inspections”) shall be borne by Tenant, if Tenant or any of Tenant’s Responsible Parties are directly or indirectly responsible for any contamination revealed by such Inspections. The aforementioned rights granted herein to Landlord and its representatives shall not create (a) a duty on Landlord’s part to perform Inspections, monitor or otherwise observe the Premises or Tenant’s and Tenant’s Responsible Parties’ activities with respect to Hazardous Materials, including without limitation, Tenant’s operation, use and any remediation related thereto, or (b) liability on the part of Landlord and its representatives for Tenant’s use, storage, disposal or remediation of Hazardous Materials, it being understood that Tenant shall be solely responsible for all liability in connection therewith.
27.4 Tenant’s Environmental Obligations. Tenant shall give to Landlord immediate verbal and follow up written notice of any spills, releases, discharges, disposals, emissions, migrations, removals or transportation of Hazardous Materials on, under or about any portion of the Premises (collectively, a “Release”); provided that Tenant has knowledge of such event(s). Tenant, at its sole cost and expense, covenants and warrants to promptly investigate, clean up, remove, restore and otherwise remediate (including, without limitation, preparation of any feasibility studies or reports and the performance of any and all closures) any Release of Hazardous Materials by Tenant or Tenant’s Responsible Parties such that the affected portions of the Project and any adjacent property are returned to the condition existing prior to the appearance of such Hazardous Materials as required by Environmental Law. Any such investigation, clean up, removal, restoration and other remediation shall only be performed after Tenant has obtained Landlord’s prior written consent, which consent shall not be unreasonably withheld so long as such actions would not potentially have a material adverse long-term or short-term effect on any portion of the Premises. Notwithstanding the foregoing, Tenant shall be entitled to respond immediately to an emergency without first obtaining Landlord’s prior written consent. Tenant, at its sole cost and expense, shall conduct and perform, or cause to be conducted and performed, all closures as required by any Environmental Laws or any agencies or other governmental authorities having jurisdiction thereof with respect to its use of Hazardous Materials. If Tenant fails to so promptly investigate, clean up, remove, restore, provide closure or otherwise so remediate, Landlord may, but without obligation to do so, take any and all steps necessary to rectify the same and Tenant shall promptly reimburse Landlord,
27
upon written demand, for all costs and expenses to Landlord of performing investigation, clean up, removal, restoration, closure and remediation work. All such work undertaken by Tenant, as required herein, shall be performed in such a manner so as to enable Landlord to make full economic use of the Premises after the satisfactory completion of such work.
27.5 Environmental Indemnity. Tenant shall, protect, indemnify, defend (with counsel acceptable to Landlord) and hold Landlord and the other Indemnitees harmless from and against any and all Claims (including, without limitation, diminution in value of any portion of the Project, damages for the loss of or restriction on the use of rentable or usable space, and from any adverse impact of Landlord’s marketing of any space within the Project) arising at any time during or after the Term in connection with or related to, the Release of Hazardous Materials on, in or about any portion of the Project by Tenant or Tenant’s Responsible Parties. Neither the written consent of Landlord to the presence, use or storage of Hazardous Materials in, on, under or about any portion of the Premises nor the strict compliance by Tenant with all Environmental Laws shall excuse Tenant from its obligations of indemnification pursuant hereto. Tenant shall not be relieved of its indemnification obligations under the provisions of this Section 27.5 due to Landlord’s status as either an “owner” or “operator” under any Environmental Laws.
27.6 Survival. Tenant’s obligations and liabilities under this Section 27 shall survive the expiration or earlier termination of this Lease. If Landlord determines that the condition of any portion of the Premises violates the provisions of this Lease with respect to Hazardous Materials, then Landlord may require Tenant to restore the Premises to the condition in which the Premises existed prior to the appearance of such Hazardous Materials (except for reasonable wear and tear), as required by Environmental Law, including without limitation, performing closures as required by any Environmental Laws. For purposes hereof, the term “reasonable wear and tear” shall not include any deterioration in the condition or diminution of the value of any portion of the Premises in any manner whatsoever related to directly, or indirectly, Hazardous Materials. Any such holdover by Tenant will be with Landlord’s consent and will not be terminable by Tenant in any event or circumstance.
28. FINANCIAL STATEMENTS. Tenant and any permitted Transferee, for the reliance of Landlord, any lender holding or anticipated to acquire a lien upon any portion of the Premises or any prospective purchaser of any portion of the Premises, shall deliver to Landlord the then current audited financial statements of Tenant (including interim periods following the end of the last fiscal year for which annual statements are available) within ten (10) business days after Landlord’s request therefor, but not more often than once annually so long as Tenant is not in material default of this Lease beyond applicable notice and grace periods. If audited financial statements have not been prepared, Tenant and any permitted Transferee shall provide Landlord with unaudited financial statements (certified by an authorized representative or officer of Tenant) and such other information, the type and form of which are reasonably acceptable to Landlord, which reflect the financial condition of Tenant and any permitted Transferee, as applicable. Notwithstanding the foregoing, in the event that Tenant’s financial statements are publicly available, Tenant’s obligations under this Section shall be satisfied at all time that such financial statements are publicly available. Landlord shall keep such financial statement confidential and shall only show the same to its financial advisors, current or bona fide prospective lenders or bona fide prospective purchasers, and only if such entities agree to maintain similar confidentiality.
29. GENERAL PROVISIONS.
29.1 Time. Time is of the essence in this Lease and with respect to each and all of its provisions in which performance is a factor.
29.2 Successors and Assigns. The covenants and conditions herein contained, subject to the provisions as to assignment, apply to and bind the heirs, successors, executors, administrators and assigns of the parties hereto.
28
29.3 Recordation. Tenant shall not record this Lease or a short form memorandum hereof.
29.4 Landlord Exculpation. The liability of Landlord to Tenant for any default by Landlord under the terms of this Lease shall be limited to the amount of the actual interest of Landlord and its present or future partners or members in the Project, and Tenant agrees to look solely to the amount of Landlord’s and its present or future partners or members interest in the Project and proceeds from the same for satisfaction of any liability and shall not look to other assets of Landlord nor seek any recourse against the assets of the individual partners, members, directors, officers, shareholders, agents or employees of Landlord, including without limitation, any property management company of Landlord (collectively, the “Landlord Parties”). It is the parties’ intention that Landlord and the Landlord Parties shall not in any event or circumstance be personally liable, in any manner whatsoever, for any judgment or deficiency hereunder or with respect to this Lease. The liability of Landlord under this Lease is limited to its actual period of ownership of title to the Building.
29.5 Severability and Governing Law. Any provisions of this Lease which shall prove to be invalid, void or illegal shall in no way affect, impair or invalidate any other provisions hereof and such other provisions shall remain in full force and effect. This Lease shall be enforced, governed by and construed in accordance with the laws of the State of California. Tenant expressly agrees that any and all disputes arising out of or in connection with this Lease shall be litigated only in the Superior Court of the State of California for the county in which the Premises are located (and in no other), and Tenant hereby consents to the jurisdiction of said court.
29.6 Attorneys’ Fees. In the event any dispute between the parties results in litigation or other proceeding, the prevailing party shall be reimbursed by the party not prevailing therein for all reasonable costs and expenses, including, without limitation, reasonable attorneys’ and experts’ fees and costs incurred by the prevailing party in connection with such litigation or other proceeding, and any appeal thereof. Such costs, expenses and fees shall be included in and made a part of any judgment recovered by the prevailing party.
29.7 Entire Agreement. It is understood and agreed that there are no oral agreements between the parties hereto affecting this Lease and this Lease (including all exhibits and addenda) supersedes and cancels any and all previous negotiations, arrangements, brochures, agreements and understandings, if any, between the parties hereto or displayed by Landlord to Tenant with respect to the subject matter thereof, and none thereof shall be used to interpret or construe this Lease. This Lease and any separate agreement executed by Landlord and Tenant in connection with this Lease and dated of even date herewith (a) contain all of the terms, covenants, conditions, warranties and agreements of the parties relating in any manner to the rental, use and occupancy of the Premises, and (b) shall be considered to be the only agreement between the parties hereto and their representatives and agents. This Lease may not be modified, deleted or added to except by a writing signed by the parties hereto. All negotiations and oral agreements have been merged into and are included herein. There are no other representations or warranties between the parties, and all reliance with respect to representations is based totally upon the representations and agreements contained in this Lease. The parties acknowledge that (i) each party and/or its counsel have reviewed and revised this Lease, and (ii) no rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall be employed in the interpretation or enforcement of this Lease or any amendments or exhibits to this Lease or any document executed and delivered by either party in connection with this Lease.
29.8 Warranty of Authority. Tenant and Landlord each represent and warrant that each person executing this Lease on behalf of such party (i) is duly and validly authorized to do so on behalf of the entity it purports to so bind, and (ii) if such party is a limited liability company, partnership, corporation or trustee, that such limited liability company, partnership, corporation or trustee has full right and authority to enter into this Lease and perform all of its obligations hereunder. Tenant hereby warrants that this Lease is legal, valid and binding upon Tenant and enforceable against Tenant in accordance with its terms.
29
29.9 Notices. All notices, demands, statements or communications (collectively, “Notices”) given or required to be given by either party to the other hereunder shall be in writing, delivered by a nationally recognized same-day or overnight courier (e.g. FedEx or UPS) or delivered personally (i) to Tenant at the Tenant’s Address set forth in the Basic Lease Information, or to such other place as Tenant may from time to time designate in a Notice to Landlord; or (ii) to Landlord at Landlord’s Address for Notices set forth in the Basic Lease Information, or to such other firm or to such other place as Landlord may from time to time designate in a Notice to Tenant. Any Notice will be deemed given upon the earlier of receipt or upon confirmation of delivery by an overnight delivery service (such as Federal Express or Overnite Express), or upon the date personal delivery is made.
29.10 Joint and Several; Covenants and Conditions. If Tenant consists of more than one person or entity, the obligations of all such persons or entities shall be joint and several. Each provision to be performed by Tenant hereunder shall be deemed to be both a covenant and a condition.
29.11 Reasonable Consents. Whenever this Lease requires an approval, consent, determination or judgment by either Landlord or Tenant, unless another standard is expressly set forth, such approval consent, determination or judgment and any conditions imposed thereby shall be reasonable and shall not be unreasonably withheld or delayed.
29.12 Landlord Renovations. Tenant acknowledges that Landlord may from time to time, at Landlord’s sole option, renovate, improve, develop, alter, or modify (collectively, “Renovations”) portions of the Building, the Premises, the Common Areas or other portions of the Project, including without limitation, systems and equipment, roof, and structural portions of the same; provided Landlord shall utilize commercially reasonable efforts to minimize the disruption and interference with Tenant’s business and operations at the Premises and provided, the same do not unreasonably interfere with Tenant’s use of or access to the Premises or Tenant’s parking rights. In connection with such Renovations, Landlord may, among other things, erect scaffolding or other necessary structures in the Building, limit access to portions of the Premises and/or the Common Areas, or perform work in the Building, which work may create noise, dust or leave debris in the Building. Tenant hereby agrees that such Renovations and Landlord’s actions in connection with such Renovations shall in no way entitle Tenant to any abatement of Rent. Landlord shall have no responsibility, or for any reason be liable to Tenant, for any direct or indirect injury to or interference with Tenant’s business arising from the Renovations, nor shall Tenant be entitled to any compensation or damages from Landlord for loss of the use of the whole or any part of the Premises or of Tenant’s Property, Alterations or improvements resulting from the Renovations or Landlord’s actions in connection with such Renovations, or for any inconvenience or annoyance occasioned by such Renovations or Landlord’s actions in connection with such Renovations; provided Landlord shall utilize commercially reasonable efforts to minimize the disruption and interference with Tenant’s business and operations at the Premises.
29.13 Waiver of Jury Trial. The parties hereto shall and they hereby do waive trial by jury in any action, proceeding or counterclaim brought by either of the parties hereto against the other on any matters whatsoever arising out of or in any way related to this Lease, the relationship of Landlord and Tenant, Tenant’s use or occupancy of the Premises and/or any claim of injury, loss or damage.
29.14 Submission of Lease. Submission of this instrument for examination or signature by Tenant does not constitute a reservation of or an option for lease, and it is not effective as a lease or otherwise until execution and delivery by both Landlord and Tenant.
29.15 No View, Light or Air Rights. No rights to any view or to light or air over any property, whether belonging to Landlord or any other person, are granted to Tenant by this Lease. If at
30
any time any windows of the Premises are temporarily darkened or the light or view therefrom is obstructed by reason of any repairs, improvements, maintenance or cleaning in or about the Building, the same shall be without liability to Landlord and without any reduction or diminution of Tenant’s obligations under this Lease. Any diminution or shutting off of light, air or view by any structure which may be erected on lands adjacent to or in the vicinity of the Building and Premises shall not affect this Lease, abate any payment owed by Tenant hereunder or otherwise impose any liability on Landlord.
29.16 Counterparts. This Lease may be executed in counterparts, each of which shall be deemed an original, but such counterparts, when taken together, shall constitute one agreement.
30. SIGNS. All signs and graphics of every kind visible in or from public view shall be subject to (i) Landlord’s prior written approval and (ii), and in compliance with, all applicable Laws, Development Documents, Recorded Matters, Rules and Regulations, and Landlord’s sign criteria (“Sign Criteria”) as same may exist from time to time. Landlord’s Sign Criteria is set forth in Exhibit G hereto. Tenant shall remove all such signs and graphics prior to the expiration or earlier termination of this Lease. Such installations and removals shall be made in a manner as to avoid damage or defacement of the Premises. Tenant shall repair any such damage, including without limitation, discoloration caused by such installation or removal. Landlord shall have the right, at its option, to deduct from the Security Deposit such sums as are reasonably necessary to remove such signs and make any repairs necessitated by such removal. Notwithstanding the foregoing, in no event shall any: (a) neon, flashing or moving sign(s) or (b) sign(s) which are likely to interfere with the visibility of any sign, canopy, advertising matter, or decoration of any kind of any other business or occupant of the Building or other portions of the Premises be permitted hereunder. Tenant further agrees to maintain each such sign and graphics, as may be approved, in good condition and repair at all times.
31. MORTGAGEE PROTECTION. Upon any default on the part of Landlord, Tenant will give written Notice by registered or certified mail to any beneficiary of a deed of trust or mortgagee of a mortgage covering the Premises who has provided Tenant with Notice of their interest together with an address for receiving Notice, and shall offer such beneficiary or mortgagee a reasonable opportunity to cure the default, including time to obtain possession of the Premises by power of sale or a judicial foreclosure, if such should prove necessary to effect a cure. If such default cannot be cured within such time period, then such additional time as may be necessary will be given to such beneficiary or mortgagee to effect such cure so long as such beneficiary or mortgagee has commenced the cure within the original time period and thereafter diligently pursues such cure to completion, in which event this Lease shall not be terminated while such cure is being diligently pursued. Tenant agrees that each lender to whom this Lease has been assigned by Landlord is an express third party beneficiary hereof. Tenant waives the collection of any deposit from each such lender or purchaser at a foreclosure sale unless said lender or purchaser shall have actually received and not refunded the deposit. Tenant agrees to make all payments under this Lease to the lender with the most senior encumbrance upon receiving a direction, in writing, to pay said amounts to such lender. Tenant shall comply with such written direction to pay without determining whether an event of default exists under such lender’s loan to Landlord. If, in connection with obtaining financing for the Premises, Landlord’s lender shall request reasonable modification(s) to this Lease as a condition to such financing, Tenant shall not unreasonably withhold, delay or defer its consent thereto, provided such modifications do not materially affect Tenant’s rights hereunder, including Tenant’s use, occupancy or quiet enjoyment of the Premises, or increase the costs to Tenant under this Lease.
32. WARRANTIES OF TENANT. Tenant warrants and represents to Landlord, for the express benefit of Landlord, that Tenant has undertaken a complete and independent evaluation of the risks inherent in the execution of this Lease and the operation of the Premises for the use permitted hereby, and that, based upon said independent evaluation, Tenant has elected to enter into this Lease and hereby assumes all risks with respect thereto, subject to the express terms of this Lease. Tenant further warrants and represents to Landlord, for the express benefit of Landlord, that in entering into this Lease, Tenant has
31
not relied upon any statement, fact, promise or representation (whether express or implied, written or oral) not specifically set forth herein and that any statement, fact, promise or representation (whether express or implied, written or oral) made at any time to Tenant, which is not expressly incorporated herein, is hereby waived by Tenant.
33. BROKERAGE COMMISSION. Landlord and Tenant each represents and warrants for the benefit of the other that it has had no dealings with any real estate broker, agent or finder in connection with the Premises and/or the negotiation of this Lease, except for the Broker(s) specified in the Basic Lease Information, and that it knows of no other real estate broker, agent or finder who is or might be entitled to a real estate brokerage commission or finder’s fee in connection with this Lease or otherwise based upon contacts between the claimant and Tenant. Each party shall indemnify and hold harmless the other from and against any and all Claims with respect to a fee or commission by any real estate broker, agent or finder in connection with the Premises and this Lease other than the Broker(s) (if any) resulting from the actions of the indemnifying party. Unless expressly agreed to in writing by Landlord and the Broker(s), no real estate brokerage commission or finder’s fee shall be owed to, or otherwise payable to, the Broker(s) for any renewals or other extensions of the initial term of this Lease or for any additional space leased by Tenant other than the Premises as same exists as of the Lease Date. Tenant further represents and warrants to Landlord that Tenant will not receive (i) any portion of any brokerage commission or finder’s fee payable to the Broker(s) in connection with this Lease, or (ii) any other form of compensation or incentive from the Broker(s) with respect to this Lease.
34. QUIET ENJOYMENT. Landlord covenants with Tenant, upon the paying of Rent and observing and keeping the covenants, agreements and conditions of this Lease on its part to be kept, during the periods that Tenant is not otherwise in material default of this Lease beyond applicable notice and cure periods, and subject to the rights of any of Landlord’s lenders, (i) that Tenant shall and may peaceably and quietly have, hold, occupy and enjoy the Premises during the Term, and (ii) neither Landlord, nor any successor or assign of Landlord, shall disturb Tenant’s occupancy or enjoyment of the Premises. The foregoing covenant is in lieu of any other covenant express or implied.
35. EFFECTIVENESS CONDITIONS.
35.1 Effectiveness Conditions. Notwithstanding anything in this Lease to the contrary, the effectiveness of this Lease is expressly conditioned on the satisfaction of each of the following conditions (collectively, the “Effectiveness Conditions”):
(a) Tenant has duly executed and delivered this Lease and the Work Letter to Landlord;
(b) Landlord has duly executed and delivered this Lease and the Work Letter to Tenant; and
(c) Landlord’s lender has consented to this Lease, in writing.
35.2 Failure of Effectiveness Conditions. If the Effectiveness Conditions have not been satisfied on or before the date that is ten (10) business days after the Lease Date (the “Contingency Deadline”), then either Landlord or Tenant may, at any time prior to the satisfaction of the Effectiveness Conditions, terminate this Lease (without penalty) upon written notice to the other party, in which event this Lease shall be of no further force or effect. Notwithstanding the foregoing, Landlord shall have the right to extend the Contingency Deadline for up to ten (10) business days provided that (a) Landlord sends written notice to Tenant, prior to the expiration of the original Contingency Deadline, setting forth the need for the extension, and (b) at the time Landlord extends the Contingency Deadline, Landlord is diligently pursing the satisfaction of the Effectiveness Conditions.
35.3 The Landlord Condition. The Effectiveness Conditions set forth in Section 35.1(c) above is referred to herein as the “Landlord Condition.” Landlord shall use commercially reasonable
32
efforts to cause the Landlord Condition to be satisfied on or before the Contingency Deadline (as the same may be extended). Landlord shall promptly notify Tenant, in writing the (“Landlord Condition Notice”), once the Landlord Condition has been satisfied. The Landlord Condition shall be deemed to be unconditionally and irrevocably satisfied as of the date the Tenant receives the Landlord Condition Notice.
[signature page follows]
33
IN WITNESS WHEREOF, this Lease is executed by the parties as of the Lease Date specified in the Basic Lease Information.
| LANDLORD: | ||||||||||||
| WESTCORE JAY, LLC, a Delaware limited liability company | ||||||||||||
| By: | Westcore Jay Partners, | |||||||||||
| a Delaware general partnership, its Sole Member and Manager | ||||||||||||
| By: | WP Jay, LLC, | |||||||||||
| a Delaware limited liability company, its General Partner | ||||||||||||
| By: | MRB Manager, LLC, | |||||||||||
| a Delaware limited liability company, its Manager | ||||||||||||
| By: | /s/ Donald Ankeny | |||||||||||
| Name: | Donald Ankeny | |||||||||||
| Title: | Authorized Officer | |||||||||||
| Date: | 3/1/2013 | |||||||||||
| TENANT: | ||
| AMBARELLA CORPORATION, a Delaware corporation | ||
| By: | /s/ Feng-Ming Wang | |
| Name: | Feng-Ming Wang | |
| Title: | President | |
| Date: | February 22, 2013 | |
SIGNATURE PAGE
LEASE AGREEMENT
3101 JAY STREET, SUITES 110 & 210
SANTA CLARA, CA
[AMBARELLA CORPORATION]
Rider No. 1 to Lease Agreement
Additional Provisions
THIS RIDER NO. 1 TO LEASE AGREEMENT(this “Rider 1”) is attached to and made a part of that certain Lease Agreement dated as of February 22, 2013 (the “Lease”), by and between WESTCORE JAY, LLC, a Delaware limited liability company (“Landlord”), and AMBARELLA CORPORATION, a Delaware corporation (“Tenant”), for the Premises described in the Lease.
36. RIDER 1. Capitalized terms used in this Rider 1 shall have the meanings set forth in the Lease. This Rider 1 is attached to, and forms a part of, the Lease. Should any inconsistency arise between this Rider 1 and any other provision of the Lease as to the specific matters which are the subject of this Rider 1, the terms and conditions of this Rider 1 shall control. All of the rights, options and concessions set forth in this Rider 1, if any, are personal to the Tenant first named above (together with any assignee that assumes the Lease pursuant to a Permitted Transfer, collectively, “Original Tenant”), and may only be exercised and/or utilized by Original Tenant (and not any assignee, sublessee or other transferee of Original Tenant’s interest in the Lease). Time is of the essence of this Rider 1.
37. OPTION TO RENEW.
37.1 Grant of Option. Subject to the terms and conditions of this Rider 1, Tenant shall have the option to extend the Term for one (1) successive period of three (3) years (the “Renewal Term”). There shall be no additional renewal terms beyond the Renewal Term set forth herein. Tenant must exercise its option to extend the Lease by giving Landlord written notice (the “Option Exercise Notice”) of its election to do so no later than twelve (12) months, and no earlier than nine (9) months, prior to the expiration of the then-current Term. If Tenant fails to timely deliver the Option Exercise Notice in strict accordance with this Rider 1 and the notice provisions of the Lease, then Tenant shall be deemed to have waived its extension rights, as aforesaid, and Tenant shall have no further right to renew the Lease.
37.2 Terms and Conditions of Option. All terms and conditions of this Lease, including, without limitation, all provisions governing the payment of Additional Rent, shall remain in full force and effect during the applicable Renewal Term, except that (i) the Base Rent payable during the applicable Renewal Term shall equal the Fair Market Rental Rate (as defined below) at the time of the commencement of the applicable Renewal Term; and (ii) Landlord shall not be obligated to make any tenant improvements or alterations in or to the Premises nor shall there be any improvement allowance, rental abatement absent a casualty or condemnation or other tenant concessions provided by Landlord in connection with the applicable Renewal Term. As used in this Rider 1, the term “Fair Market Rental Rate” shall mean one hundred percent (100%) of the fair market rental rate that would be agreed upon between a landlord and a tenant entering into a lease for comparable space as to build-out, location, configuration and size, in a Comparable Building for a comparable term assuming the following: (a) the landlord and tenant are informed and well-advised and each is acting in what it considers its own best interests; (b) no tenant improvement allowance, free rent periods or any other special concessions (for example, design fees, refurbishing allowances, etc.) will be provided to Tenant, except to the extent that such allowances or concessions are reflected in the fair market rental rates being obtained (in which event the Fair Market Rental Rate shall be reduced by the economic equivalent of the allowances or concessions not being offered to Tenant); and (C) Tenant will continue to pay Tenant’s Share of Operating Expenses, Tax Expenses, Utility Expenses and Common Area Utility Costs in accordance with the terms and conditions of the Lease.
37.3 Determination of Fair Market Rental Rate. Landlord and Tenant shall negotiate in good faith to determine the Base Rent for the applicable Renewal Term for a period of thirty (30) days after the date on which Landlord receives the Option Exercise Notice. In the event Landlord and Tenant are unable to agree upon the Base Rent for the applicable Renewal Term within said 30-day period, the Fair Market Rental Rate for the Premises shall be determined by a board of three (3) licensed real estate
Rider 1 – Page 1
brokers, one of whom shall be named by Landlord, one of whom shall be named by Tenant, and the two so appointed shall select a third. Each real estate broker so selected shall be licensed in the State of California as a real estate broker specializing in the field of office leasing in and around Santa Clara, California, having no fewer than ten (10) years experience in such field, and recognized as ethical and reputable within the field. Landlord and Tenant agree to make their appointments promptly within ten (10) days after the expiration of the 30-day period, or sooner if mutually agreed upon. The two (2) brokers selected by Landlord and Tenant shall promptly select a third broker within ten (10) days after they both have been appointed, and each broker, within ten (10) days after the third broker is selected, shall submit his or her determination of the Fair Market Rental Rate. The Fair Market Rental Rate shall be the mean of the two (2) closest rental rate determinations. Landlord and Tenant shall each pay the fee of the broker selected by it, and they shall equally share the payment of the fee of the third broker.
37.4 Limitations; Termination of Option to Renew. Tenant shall not have the right to renew the Lease for any amount of space less than the entire Premises hereunder. In the event of any assignment of the Lease by Tenant (other than a Permitted Transfer) or a Material Sublease (as defined below) by Tenant (other than a Permitted Transfer), the option to renew shall be extinguished. The renewal option granted herein shall terminate as to the entire Premises upon the failure by Tenant to timely exercise its option to renew at the times and in the manner set forth in this Rider 1. Tenant shall not have the option to renew, as provided in this Rider 1, if, as of the date of the Option Exercise Notice, or as of the scheduled commencement date of the Renewal Term, (a) an event of default is continuing beyond applicable notice and cure periods, or (b) Landlord has given more than two (2) notices of default in any 12-month period for nonpayment of monetary obligations, and Tenant has failed to cure either such default within applicable notice and cure periods. As used herein, “Material Sublease” means one or more subleases that, in aggregate, exceed 36% of the rentable area of the Premises.
37.5 Self-Operative; Amendment to Lease. Notwithstanding the fact that, upon Tenant’s delivery of an Option Exercise Notice, the renewal of the Term shall be self executing, Landlord and Tenant shall, promptly following the determination of the Base Rent for the applicable Renewal Term, execute one or more amendments to the Lease reflecting such additional term.
38. LICENSE RIGHTS; SIGNAGE.
38.1 Grant of Signage License.
(a) The Project Monument Sign License. Subject to the terms and conditions of this Rider 1, Landlord grants to Tenant a non-exclusive license (the “Project Monument Sign License”), for the Term, for the purpose of operating, maintaining and repairing one (1) sign prominently bearing only Tenant’s company name and/or logo (the “Project Monument Signage”) on Tenant’s share of the Project’s signage monument currently located at the entrance to the Project (the “Project Monument”). Tenant acknowledges and agrees that, as of the Lease Date, the Project Monument consists of three (3) frames, with one (1) frame being allocated to each building in the Park. For purposes of the Project Monument Sign License, “Tenant’s share” of the Project Monument means that (i) the Project Monument Signage may be located on the one (1) frame of the Project Monument Signage that is allocated to the Building, and (ii) the Project Monument Signage shall not exceed Tenant’s Share of the Building (i.e., 75.18%) on such frame.
(b) The Building Monument Sign License. Subject to the terms and conditions of this Rider 1, Landlord grants to Tenant a non-exclusive license (the “Building Monument Sign License”), for the Term, for the purpose of operating, maintaining and repairing one (1) sign prominently bearing only Tenant’s company name and/or logo (the “Building Monument Signage”) on Tenant’s share of the Building’s signage monument currently located at the entrance to the Building (the “Building Monument”). For purposes of the Building Monument Sign License, “Tenant’s share” of the Building Monument means Tenant’s Share of the Building. Tenant acknowledges and agrees that, as of the Lease Date, the Building Monument consists of four (4) frames, with one (1) frame being allocated to each
Rider 1 – Page 2
demised suite in the Building. For purposes of the Building Monument Sign License, “Tenant’s share” of the Building Monument means that (i) the Building Monument Signage may be located on three (3) of the frames of the Building Monument Signage that are allocated to the Premises, and (ii) the Building Monument Signage shall not exceed Tenant’s Share of the Building (i.e., 75.18%) on the Building Monument.
(c) Exterior Signage License. If, and only if, Operational Requirements (as defined below) permit exterior building signage, then, subject to the terms and conditions of this Rider 1, Landlord grants to Tenant an exclusive license (the “Exterior Signage License”), for the Term, for the purpose of operating, maintaining and repairing one (1) sign bearing only Tenant’s company name and/or logo (the “Exterior Building Signage”) on a portion of the Building’s exterior “eyebrow” area at the top of the Building.
(d) The Signage License; The Signage. The Project Monument Sign License, the Building Monument Sign License and the Exterior Signage License are referred to herein, collectively, as the “Signage License”. The Project Monument Signage, the Building Monument Signage and the Exterior Building Signage, together with any related equipment, conduits, cables and materials to be located on any portion of the Signage License Area (as defined below), are sometimes referred to herein, collectively, as the “Signage”.
(e) The Signage License Area. The actual location, size and design of the Signage shall be subject to (i) Operational Requirements and (ii) Landlord’s prior written approval, which approval shall not be unreasonably conditioned, delayed or withheld. The portions of the Project upon which the Signage is or will be located is referred to herein collectively as the “Signage License Area.” Notwithstanding the foregoing, Landlord hereby approves of Tenant’s Signage as further described on Exhibit H.
(f) Restrictions on Penetrations. Notwithstanding anything in this Rider 1 to the contrary, in no event may the Signage or the installation thereof penetrate the Building’s roof, a roof’s membrane, nor any marble or other specialty stone located in or on the Project.
38.2 Tenant’s License Property; The License Areas. The Signage is sometimes referred to herein, collectively, as “Tenant’s License Property.” The Signage License Area is sometimes referred to herein, collectively, as the “License Areas.” The Signage License is sometime referred to herein, individually, as a “License,” and, collectively, as the “Licenses.” Landlord makes no representations or warranties with respect to the License Areas, and Landlord shall have no liability of any kind or nature arising from or related to Tenant’s License Property. Tenant accepts the License Areas in its “AS IS” condition.
38.3 Design and Installation.
(a) Design. Tenant must obtain Landlord’s prior approval (which approval may be withheld or conditioned in Landlord’s reasonable discretion) as to the Plans (as defined below) and all aspects of the design and installation of Tenant’s License Property. At least 30 days prior to the date on which Tenant desires to begin installing Tenant’s License Property, Tenant will deliver to Landlord drawings and specifications (the “Plans”), detailing (i) proposed equipment locations and Cabling routes, (ii) dimensions, weight, and material composition, (iii) methods of installation, attachment, and delivery, (iv) aesthetic specifications concerning the appearance of Tenant’s License Property (including, without limitation, landscaping and Screening Devices (as defined below)), and (v) any other specifications as Landlord may reasonably require. Tenant will be responsible for installing any electrical outlets necessary to provide electricity to Tenant’s License Property. Tenant agrees that Landlord may require certain aesthetic specifications concerning the appearance of Tenant’s License Property. Without limiting the foregoing, Landlord may, as condition to Landlord’s approval of all or any portion of Tenant’s License Property, require that Tenant install, at Tenant’s sole cost and expense, screens, fences, walls or other screening devices to visually screen Tenant’s License Property (collectively, “Screening Devices”), except that Landlord agrees that Screening Devices shall not be required for the Project Monument Signage, the Building Monument Signage or the Exterior Building Signage. Landlord’s approval of Plans will not constitute a representation by Landlord that Plans comply with any Operational Requirements.
(b) Installation. Installation of Tenant’s License Property shall be performed (i) at the sole cost of Tenant, (ii) by a contractor reasonably approved by Landlord (provided, however, if any portion of Tenant’s License Property is to penetrate a Building’s roof, the roof membrane or any specialty stone or building material, then all such penetrations shall be made, at Tenant’s expense, by Landlord’s designated contractor(s)), (iii) in a good and workmanlike manner, and (iv) in accordance with all Plans, Operational Requirements, and reasonable construction rules of Landlord.
Rider 1 – Page 3
38.4 Electricity; Increases in Expenses. Tenant shall be solely responsible for and promptly pay all charges for the electricity consumed (if any) by Tenant’s License Property. If the installation or operation of Tenant’s License Property increases taxes, insurance premiums, or any other cost of operating or owning the Project, Tenant will pay such increase to Landlord within 15 days after receipt of an invoice from Landlord. Tenant will pay all taxes assessed against or attributable to Tenant’s License Property.
38.5 Permits and Operational Requirements; Interference.
(a) Permits and Operational Requirements. Prior to commencing the installation of Tenant’s License Property, Tenant shall, at Tenant’s sole cost and expense, obtain each and every permit required in connection with Tenant’s License Property, including, without limitation, approvals required by Operational Requirements. Landlord shall, at no cost to Landlord, use reasonable efforts to assist Tenant in obtaining the necessary permits and approvals. Landlord makes no representations or warranties with respect to zoning or any other Operational Requirements. “Operational Requirements” means the following, as the same may be amended from time to time: (i) all Laws (including Environmental Laws), Development Documents and Recorded Matters, (ii) requirements of Landlord’s insurance carriers, the electricity provider for the Project, and any property owners’ association or similar body, and (iii) the technical standards and rules and regulations of the Building.
(b) Interference. If (i) any electromagnetic, radio frequency, or other emission (collectively, “Interference”) from Tenant’s License Property, in the reasonable opinion of Landlord, materially and adversely affects the Building’s structure or any Building system, and (ii) Tenant does not correct the Interference within two (2) business days after receipt of telephonic or written notice from Landlord, Landlord may by written notice to Tenant require that Tenant shut down or disconnect the portion of Tenant’s License Property causing such Interference until the Interference is remedied. Upon Landlord’s notice, Tenant will immediately shut down the portion of Tenant’s License Property causing such Interference and not resume operating Tenant’s License Property (except for intermittent testing on a schedule approved by Landlord) until the Interference is corrected to the satisfaction of Landlord. If the Interference has not been corrected within 30 days after Landlord’s notice, Landlord will have the right to terminate the license for the applicable Tenant’s License Property. If, in the reasonable opinion of Landlord, an emergency situation has been created by the Interference, Landlord will have the right to shut down or disconnect the applicable Tenant’s License Property immediately until the emergency situation is resolved.
38.6 Operation and Repair of Tenant’s License Property. Tenant shall, at Tenant’s sole cost and expense, (a) cause Tenant’s License Property and the installation, maintenance, operation, and removal of Tenant’s License Property to comply with the Operational Requirements, (b) maintain Tenant’s License Property in a good and safe condition, and in such a manner so as not to conflict or interfere with the use of other facilities installed in the Project, (c) keep the License Areas free from all trash and debris resulting from Tenant’s operations, and (d) repair all damage to the License Areas arising from Tenant’s operations.
Rider 1 – Page 4
38.7 Alterations. Tenant shall not make any alterations, improvements or additions to Tenant’s License Property or the License Areas without the prior written consent of Landlord, which consent shall not be unreasonably withheld, conditioned or delayed.
38.8 Surrender and Removal. Upon the expiration or earlier termination of the Lease, Tenant’s License Property shall be removed by Tenant in accordance with the terms and conditions of Section 10.2 of the Lease.
38.9 Indemnities; Insurance. The License Areas will be considered to be part of the Premises solely for the purposes of any indemnity, waiver, or obligation to defend contained in the Lease or of any insurance policy carried by Tenant. Tenant shall insure Tenant’s License Property in accordance with the Lease.
38.10 Repair and Maintenance of the License Areas. Tenant acknowledges and agrees that Landlord may from time to time inspect, repair, replace or maintain the License Areas or parts thereof, or install additional improvements or fixtures on the License Areas. To the extent that Tenant’s License Property needs to be dismantled, relocated, repaired or replaced in conjunction with such repairs, Landlord shall have no liability in connection therewith, including, without limitation, any interruption of availability of the License Areas; provided, however, Landlord shall use commercially reasonable efforts to minimize interference with, or disruption of, Tenant’s License Property.
[The remainder of this page intentionally left blank]
Rider 1 – Page 5
Exhibit A to Lease Agreement
Depiction of the Premises
This exhibit, entitled “Premises”, is and shall constitute Exhibit A to that certain Lease Agreement dated for reference purposes as of February 22, 2013 (the “Lease”), by and between WESTCORE JAY, LLC, a Delaware limited liability company (“Landlord”), and AMBARELLA CORPORATION, a Delaware corporation (“Tenant”), for the leasing of certain premises located at 3101 Jay Street, Suites 110 and 210, Santa Clara, California (the “Premises”).
This Exhibit A is for informational purposes only and does not constitute a warranty or representation concerning the size or layout of the Premises. Without limiting the foregoing, any furnishings depicted on this plan are for illustration purposes only and are not included as part of the Premises.
[continued on following page]
Exhibit A – Page 1
[The remainder of this page intentionally left blank]
Exhibit A – Page 2
Exhibit B to Lease Agreement
Work Letter
[attached]
Exhibit B – Page 1
Exhibit C to Lease Agreement
Rules & Regulations
This exhibit, entitled “Rules and Regulations”, is and shall constitute Exhibit C to that certain Lease Agreement dated for reference purposes as of February 22, 2013 (the “Lease”), by and between WESTCORE JAY, LLC, a Delaware limited liability company (“Landlord”), and AMBARELLA CORPORATION, a Delaware corporation (“Tenant”), for the leasing of certain premises located at 3101 Jay Street, Suites 110 and 210, Santa Clara, California (the “Premises”). Any capitalized terms used herein and not otherwise defined herein shall have the meaning ascribed to such terms as set forth in the Lease.
1. Subject to Section 38 and Rider 1 of the Lease, no advertisement, picture or sign of any sort shall be displayed on or outside the Building without the prior written consent of Landlord. Landlord shall have the right to remove any such unapproved item without Notice and at Tenant’s expense.
2. Tenant shall park motor vehicles in those general parking areas, as designated by Landlord, except for loading and unloading.
3. Tenant shall not use any method of heating or air conditioning other than that supplied by Landlord without the prior written consent of Landlord.
4. All window coverings installed by Tenant and visible from the outside of the Building require the prior written approval of Landlord.
5. Subject to Section 27 of the Lease, Tenant shall not use, keep or permit to be used or kept any foul or noxious gas or substance or any flammable or combustible materials in or around the Premises.
6. Tenant shall not alter any lock or install any new locks or bolts on any exterior door at the Premises without the prior consent of Landlord.
7. Tenant shall not disturb, solicit or canvas any occupant of the Project and shall cooperate to prevent the same.
8. Subject to Rider 1 attached to the Lease, no person shall go on the roof of any building in the Project with Landlord’s prior written consent.
9. Business machines and mechanical.
10. All goods, including material used to store goods, delivered to the Premises shall be immediately moved into the Premises and shall not be left in parking or receiving areas overnight. No displays or sales of merchandise are allowed in the parking lots or other portions of the Premises outside of the Building.
11. Tractor trailers which must be unhooked or parked with dolly wheels beyond the concrete loading areas must use steel plates or wood blocks under the dolly wheels to prevent damage to the asphalt paving surfaces. No parking or storing of such trailers will be permitted in the auto parking areas of the Premises or on streets adjacent thereto.
12. Forklifts which operate on asphalt paving areas shall not have solid rubber tires and shall only use tires that do not damage the asphalt.
Exhibit C – Page 1
13. Tenant is responsible for the storage and removal of all trash and refuse. All such trash and refuse shall be contained in suitable receptacles and stored behind screened enclosures at locations approved by Landlord.
14. Tenant shall not permit any animals, including, but not limited to, any household pets, to be brought or kept in the Premises.
15. Tenant shall not permit any mechanical work or maintenance of motor vehicles to be performed in any portion of the Premises.
[The remainder of this page intentionally left blank]
Exhibit C – Page 2
Exhibit D to Lease Agreement
Intentionally Omitted
Exhibit D – Page 1
Exhibit E to Lease Agreement
Hazardous Materials Disclosure Certificate
Your cooperation in this matter is appreciated. Initially, the information provided by you in this Hazardous Materials Disclosure Certificate is necessary for the Landlord (identified below) to evaluate and finalize a lease agreement with you as Tenant. After a lease agreement is signed by you and the Landlord (the “Lease Agreement”), on an annual basis in accordance with the provisions of Section 27 of the signed Lease Agreement, you are to provide an update to the information initially provided by you in this certificate. The information contained in the initial Hazardous Materials Disclosure Certificate and each annual certificate provided by you thereafter will be maintained in confidentiality by Landlord subject to release and disclosure as required by (i) any lenders and owners and their respective environmental consultants, (ii) any prospective purchaser(s) of all or any portion of the property on which the Premises are located, (iii) Landlord to defend itself or its lenders, partners or representatives against any claim or demand, and (iv) any laws, rules, regulations, orders, decrees, or ordinances, including, without limitation, court orders or subpoenas. Any and all capitalized terms used herein, which are not otherwise defined herein, shall have the same meaning ascribed to such term in the signed Lease Agreement. Any questions regarding this certificate should be directed to, and when completed, the certificate should be delivered to:
Landlord: Westcore Jay, LLC, a Delaware limited liability company
Name of (Prospective) Tenant: Ambarella Corporation, a Delaware corporation
Mailing Address: 3101 Jay Street, Suites 110 and 210, Santa Clara, California
| Contact Person, Title and Telephone Number(s): |
|
Contact Person for Hazardous Waste Materials Management and Manifests and Telephone Number(s):
Address of (Prospective) Premises: 3101 Jay Street, Suites 110 and 210, Santa Clara, California
Length of (Prospective) Initial Term: .
| 1. | General Information: |
Describe the initial proposed operations to take place in, on, or about the Premises, including, without limitation, principal products processed, manufactured or assembled services and activities to be provided or otherwise conducted. Existing Tenants should describe any proposed changes to on-going operations.
|
|
|
|
| 2. | Use, Storage and Disposal of Hazardous Materials |
| 2.1 | Will any Hazardous Materials be used, generated, stored or disposed of in, on or about the Premises? Existing Tenants should describe any Hazardous Materials which continue to be used, generated, stored or disposed of in, on or about the Premises. |
| Wastes | Yes [ ] | No [ ] | ||||
| Chemical Products | Yes [ ] | No [ ] | ||||
| Other | Yes [ ] | No [ ] |
| If Yes is marked, please explain: |
|
|
| ||
|
| ||
Exhibit E – Page 1
| 2.2 | If “Yes” is marked in Section 2.1, attach a list of any Hazardous Materials to be used, generated, stored or disposed of in, on or about the Premises, including the applicable hazard class and an estimate of the quantities of such Hazardous Materials at any given time; estimated annual throughput; the proposed location(s) and method of storage (excluding nominal amounts of ordinary household cleaners and janitorial supplies which are not regulated by any Environmental Laws); and the proposed location(s) and method of disposal for each Hazardous Material, including, the estimated frequency, and the proposed contractors or subcontractors. Existing Tenants should attach a list setting forth the information requested above and such list should include actual data from on-going operations and the identification of any variations in such information from the prior year’s certificate. |
| 3. | Storage Tanks and Sumps |
| 3.1 | Is any above or below ground storage of gasoline, diesel, petroleum, or other Hazardous Materials in tanks or sumps proposed in, on or about the Premises? Existing Tenants should describe any such actual or proposed activities. |
Yes [ ] No [ ]
| If yes, please explain: |
|
|
|
|
|
| 4. | Waste Management |
| 4.1 | Has your company been issued an EPA Hazardous Waste Generator I.D. Number? Existing Tenants should describe any additional identification numbers issued since the previous certificate. |
Yes [ ] No [ ]
| 4.2 | Has your company filed a biennial or quarterly reports as a hazardous waste generator? Existing Tenants should describe any new reports filed. |
Yes [ ] No [ ]
If yes, attach a copy of the most recent report filed.
| 5. | Wastewater Treatment and Discharge |
| 5.1 | Will your company discharge wastewater or other wastes to: |
|
|
storm drain? |
|
sewer? | |||||
|
|
surface water? |
|
no wastewater or other wastes discharged. |
Existing Tenants should indicate any actual discharges. If so, describe the nature of any proposed or actual discharge(s).
|
|
|
|
| 5.2 | Will any such wastewater or waste be treated before discharge? |
Yes [ ] No [ ]
If yes, describe the type of treatment proposed to be conducted. Existing Tenants should describe the actual treatment conducted.
|
|
|
|
Exhibit E – Page 2
| 6. | Air Discharges |
| 6.1 | Do you plan for any air filtration systems or stacks to be used in your company’s operations in, on or about the Premises that will discharge into the air; and will such air emissions be monitored? Existing Tenants should indicate whether or not there are any such air filtration systems or stacks in use in, on or about the Premises which discharge into the air and whether such air emissions are being monitored. |
Yes [ ] No [ ]
| If yes, please describe: |
|
|
|
|
|
| 6.2 | Do you propose to operate any of the following types of equipment, or any other equipment requiring an air emissions permit? Existing Tenants should specify any such equipment being operated in, on or about the Premises. |
|
|
Spray booth(s) |
|
Incinerator(s) | |||||
|
|
Dip tank(s) |
|
Other (Please describe) | |||||
|
|
Drying oven(s) |
|
No Equipment Requiring Air Permits |
| If yes, please describe: |
|
|
|
|
|
| 7. | Hazardous Materials Disclosures |
| 7.1 | Has your company prepared or will it be required to prepare a Hazardous Materials management plan (“Management Plan”) pursuant to Fire Department or other governmental or regulatory agencies’ requirements? Existing Tenants should indicate whether or not a Management Plan is required and has been prepared. |
Yes [ ] No [ ]
If yes, attach a copy of the Management Plan. Existing Tenants should attach a copy of any required updates to the Management Plan.
| 7.2 | Are any of the Hazardous Materials, and in particular chemicals, proposed to be used in your operations in, on or about the Premises regulated under Proposition 65? Existing Tenants should indicate whether or not there are any new Hazardous Materials being so used which are regulated under Proposition 65. |
Yes [ ] No [ ]
| If yes, please explain: |
|
|
|
|
|
Exhibit E – Page 3
| 8. | Enforcement Actions and Complaints |
| 8.1 | With respect to Hazardous Materials or Environmental Laws, has your company ever been subject to any agency enforcement actions, administrative orders, or consent decrees or has your company received requests for information, notice or demand letters, or any other inquiries regarding its operations? Existing Tenants should indicate whether or not any such actions, orders or decrees have been, or are in the process of being, undertaken or if any such requests have been received. |
Yes [ ] No [ ]
If yes, describe the actions, orders or decrees and any continuing compliance obligations imposed as a result of these actions, orders or decrees and also describe any requests, notices or demands, and attach a copy of all such documents. Existing Tenants should describe and attach a copy of any new actions, orders, decrees, requests, notices or demands not already delivered to Landlord pursuant to the provisions of Section 27 of the signed Lease Agreement.
|
|
|
|
| 8.2 | Have there ever been, or are there now pending, any lawsuits against your company regarding any environmental or health and safety concerns? |
Yes [ ] No [ ]
If yes, describe any such lawsuits and attach copies of the complaint(s), cross-complaint(s), pleadings and all other documents related thereto as requested by Landlord. Existing Tenants should describe and attach a copy of any new complaint(s), cross-complaint(s), pleadings and other related documents not already delivered to Landlord pursuant to the provisions of Section 27 of the signed Lease Agreement.
|
|
|
|
| 8.3 | Have there been any problems or complaints from adjacent Tenants, owners or other neighbors at your company’s current facility with regard to environmental or health and safety concerns? Existing Tenants should indicate whether or not there have been any such problems or complaints from adjacent Tenants, owners or other neighbors at, about or near the Premises. |
Yes [ ] No [ ]
If yes, please describe. Existing Tenants should describe any such problems or complaints not already disclosed to Landlord under the provisions of the signed Lease Agreement.
|
|
|
|
| 9. | Permits and Licenses |
| 9.1 | Attach copies of all Hazardous Materials permits and licenses including a Transporter Permit number issued to your company with respect to its proposed operations in, on or about the Premises, including, without limitation, any wastewater discharge permits, air emissions permits, and use permits or approvals. Existing Tenants should attach copies of any new permits and licenses as well as any renewals of permits or licenses previously issued. |
The undersigned hereby acknowledges and agrees that (A) this Hazardous Materials Disclosure Certificate is being delivered in connection with, and as required by, Landlord in connection with the evaluation and finalization of a Lease Agreement and will be attached thereto as an exhibit; (B) that this Hazardous Materials Disclosure Certificate is being delivered in accordance with, and as required by, the provisions of Section 27 of the Lease Agreement; and (C) that Tenant shall have and retain full and complete responsibility and liability with respect to any of the Hazardous Materials disclosed in the HazMat Certificate notwithstanding Landlord’s/Tenant’s receipt and/or approval of such certificate. Tenant further agrees that none of the following described acts or events shall be construed or otherwise interpreted as either (a) excusing, diminishing or otherwise limiting Tenant from the requirement to fully and faithfully perform its obligations under the Lease with respect to Hazardous Materials, including, without limitation, Tenant’s indemnification of the Indemnitees and compliance with all Environmental
Exhibit E – Page 4
Laws, or (b) imposing upon Landlord, directly or indirectly, any duty or liability with respect to any such Hazardous Materials, including, without limitation, any duty on Landlord to investigate or otherwise verify the accuracy of the representations and statements made therein or to ensure that Tenant is in compliance with all Environmental Laws; (i) the delivery of such certificate to Landlord and/or Landlord’s acceptance of such certificate, (ii) Landlord’s review and approval of such certificate, (iii) Landlord’s failure to obtain such certificate from Tenant at any time, or (iv) Landlord’s actual or constructive knowledge of the types and quantities of Hazardous Materials being used, stored, generated, disposed of or transported on or about the Premises by Tenant or Tenant’s Responsible Parties. Notwithstanding the foregoing or anything to the contrary contained herein, the undersigned acknowledges and agrees that Landlord and its partners, lenders and representatives may, and will, rely upon the statements, representations, warranties, and certifications made herein and the truthfulness thereof in entering into the Lease Agreement and the continuance thereof throughout the term, and any renewals thereof, of the Lease Agreement.
I (print name) , acting with full authority to bind the (proposed) Tenant and on behalf of the (proposed) Tenant, certify, represent and warrant that the information contained in this certificate is true and correct.
| (Prospective) Tenant: |
|
| By: |
| |
| Title: |
| |
| Date: |
| |
Exhibit E – Page 5
Exhibit F to Lease Agreement
First Amendment to Lease Agreement
Change of Commencement Date
This First Amendment to Lease Agreement (the “Amendment”) is made and entered into to be effective as of [*], 201[*], by and between WESTCORE JAY, LLC, a Delaware limited liability company (“Landlord”), and AMBARELLA CORPORATION, a Delaware corporation (“Tenant”), with reference to the following facts:
Recitals
A. Landlord and Tenant have entered into that certain Lease Agreement dated February 22, 2013 (the “Lease”), for the leasing of certain premises containing approximately 35,347 rentable square feet of space located at 3101 Jay Street, Suites 110 and 210, Santa Clara, California (the “Premises”) as such Premises are more fully described in the Lease.
B. Landlord and Tenant wish to amend the Lease Commencement Date and/or the Rent Commencement Date of the Lease.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, Landlord and Tenant hereby agree as follows:
1. Recitals: Landlord and Tenant agree that the above recitals are true and correct.
2. The Lease Commencement Date of the Lease shall be , 201 .
3. The last day of the Term of the Lease (the “Expiration Date”) shall be , 201 .
4. The dates on which the Base Rent will be adjusted are:
for the period to the monthly Base Rent shall be $ ;
for the period to the monthly Base Rent shall be $ ;
for the period to the monthly Base Rent shall be $ ;
for the period to the monthly Base Rent shall be $ ;
for the period to the monthly Base Rent shall be $ ; and
for the period to the monthly Base Rent shall be $ .
5. Tenant hereby confirms and certifies the following:
| (a) | Tenant has accepted possession of the premises pursuant to the terms of the Lease; |
| (b) | The Premises are Ready for Occupancy (as defined in the Lease); |
| (c) | The rentable area of the Premises is ; |
| (d) | Landlord disbursed to Tenant $[*] of the Excess Costs Allowance, and, pursuant to the Work Letter, Tenant shall pay to Landlord, as Additional Rent, sixty (60) monthly payments equal to $[*] (which amounts shall be paid at the same time and in the same manner as Base Rent is payable); and |
| (e) | The Lease is in full force and effect. |
6. Effect of Amendment: Except as modified herein, the terms and conditions of the Lease shall remain unmodified and continue in full force and effect. In the event of any conflict between the terms and conditions of the Lease and this Amendment, the terms and conditions of this Amendment shall prevail.
Exhibit F – Page 1
7. Definitions: Unless otherwise defined in this Amendment, all terms not defined in this Amendment shall have the meaning set forth in the Lease.
8. Authority: Subject to the provisions of the Lease, this Amendment shall be binding upon and inure to the benefit of the parties hereto, their respective heirs, legal representatives, successors and assigns. Each party hereto and the persons signing below warrant that the person signing below on such party’s behalf is authorized to do so and to bind such party to the terms of this Amendment.
9. The terms and provisions of the Lease are hereby incorporated in this Amendment.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date and year first above written.
| LANDLORD: | ||||||||||||
| WESTCORE JAY, LLC, a Delaware limited liability company | ||||||||||||
| By: | Westcore Jay Partners, | |||||||||||
| a Delaware general partnership, its Sole Member and Manager | ||||||||||||
| By: | WP Jay, LLC, | |||||||||||
| a Delaware limited liability company, its General Partner | ||||||||||||
| By: | MRB Manager, LLC, | |||||||||||
| a Delaware limited liability company, its Manager | ||||||||||||
| By: | [EXHIBIT – DO NOT SIGN] | |||||||||||
| Name: |
| |||||||||||
| Title: |
| |||||||||||
| Date: |
| |||||||||||
| TENANT: | ||
| AMBARELLA CORPORATION, a Delaware corporation | ||
| By: | [EXHIBIT – DO NOT SIGN] | |
| Name: |
| |
| Title: |
| |
| Date: |
| |
Exhibit F – Page 2
Exhibit G to Lease Agreement
Sign Criteria
This exhibit, entitled “Sign Criteria”, is and shall constitute Exhibit G to that certain Lease Agreement dated for reference purposes as of February 22, 2013 (the “Lease”), by and between WESTCORE JAY, LLC, a Delaware limited liability company (“Landlord”), and AMBARELLA CORPORATION, a Delaware corporation (“Tenant”), for the leasing of certain premises located at 3101 Jay Street, Suites 110 and 210, Santa Clara, California (the “Premises”).
SIGN CRITERIA
These criteria have been established for the purpose of assuring an outstanding business complex. Conformance will be strictly enforced, and any installed non-conforming or unapproved signs must be brought into conformance at the expense of the tenant.
| A. | GENERAL REQUIREMENTS |
1. Tenant shall submit a sketch of its proposed utilization of the Landlord designated sign to Landlord for written approval.
2. Tenant’s sign base and frame shall be constructed by Landlord’s agent. The sign base shall be installed by Landlord’s agent at Tenant’s expense. All tenant lettering shall be done by the agent at Tenant’s expense.
3. Tenant shall be responsible for the fulfillment of all requirements of these criteria.
| B. | GENERAL SPECIFICATIONS |
1. No electrical or audible signs will be permitted. Internally illuminated signs may be installed by modification of the existing or designated sign base. Final details for modification and installation must be given written approval by Landlord.
2. If the sign is lighted, the light source for the illumination of the sign shall be concealed from view, and the light source shall not travel from such light source straight to the viewer’s eye. Instead, it shall be visible only from a reflecting or diffusing surface. No part of the sign’s light shall revolve, rotate, move or create the illusion of same.
3. The sign’s dimensions will be in accordance with the established sign program for the building.
4. Placement of the sign and method of attachment will be directed by Landlord. Sign copy will be restricted to company name, logo and address numbers. The style, color and size of the individual company’s name may vary.
5. Upon the removal of any sign, any damage to the building or sign base must be repaired by Tenant.
6. Tenants may place gold leaf lettering on the interior window area, not to exceed more than 144 square inches (gross area). The letters are not to exceed 3 inches in height.
Exhibit G – Page 1
7. Except as provided herein, no advertising placards, banners, pennants, names, insignia, trademarks or other description material shall be affixed or maintained upon the glass panes or exterior walls of the building.
REAR MAN DOORS
In order to insure uniformity in the printing of company names or receiving and shipping signs on real man doors, we have made the following specifications:
1. The business name is to be the same as the name used on the tenant identification sign. In addition to the names, the words “shipping” and “receiving” and the tenant’s logo may be used.
2. The letters will be 2 inches high, black or white and in a specified, uniform style.
3. The proposed sign is to be approved by Landlord prior to installation to insure conformance.
[The remainder of this page intentionally left blank]
Exhibit G – Page 2
Exhibit H to Lease Agreement
Tenant’s Approved Signage
[The remainder of this page intentionally left blank]
Exhibit H – Page 1
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in the Registration Statement on Form S-8 (No. 333-184506) of Ambarella, Inc. of our report dated April 4, 2013 relating to the financial statements, which appears in this Form 10-K.
/s/ PricewaterhouseCoopers LLP
San Jose, California
April 4, 2013
Exhibit 31.1
CERTIFICATION OF PRINCIPAL EXECUTIVE OFFICER
Certification of Principal Executive Officer Required Under Rule 13a-14(a) and 15d-14(a) of the
Securities Exchange Act of 1934, as amended.
I, Feng-Ming Wang, certify that:
1. I have reviewed this Annual Report on Form 10-K of Ambarella, Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(c) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
Date: April 4, 2013
| /s/ Feng-Ming Wang |
| Feng-Ming Wang |
| President and Chief Executive Officer |
| (Principal Executive Officer) |
Exhibit 31.2
CERTIFICATION OF PRINCIPAL FINANCIAL OFFICER
Certification of Principal Financial Officer Required Under Rule 13a-14(a) and 15d-14(a) of the
Securities Exchange Act of 1934, as amended.
I, George Laplante, certify that:
1. I have reviewed this Annual Report on Form 10-K of Ambarella, Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(c) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
Date: April 4, 2013
| /s/ George Laplante |
| George Laplante |
| Chief Financial Officer |
| (Principal Financial and Accounting Officer) |
Exhibit 32.1
CERTIFICATION OF PRINCIPAL EXECUTIVE OFFICER AND PRINCIPAL FINANCIAL OFFICER
PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
I, Feng-Ming Wang, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that the Annual Report of Ambarella, Inc. on Form 10-K for the fiscal year ended January 31, 2013 fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 and that information contained in such Annual Report on Form 10-K fairly presents in all material respects the financial condition and results of operations of Ambarella, Inc.
Date: April 4, 2013
| By: | /s/ Feng-Ming Wang | |
| Name: | Feng-Ming Wang | |
| Title: | President and Chief Executive Officer | |
I, George Laplante, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that the Annual Report of Ambarella, Inc. on Form 10-K for the fiscal year ended January 31, 2013 fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 and that information contained in such Annual Report on Form 10-K fairly presents in all material respects the financial condition and results of operations of Ambarella, Inc.
Date: April 4, 2013
| By: | /s/ George Laplante | |
| Name: | George Laplante | |
| Title: | Chief Financial Officer | |