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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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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: December 31, 2003
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 0-25426
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NATIONAL INSTRUMENTS CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 74-1871327
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
11500 North Mopac Expressway
Austin, Texas 78759
(address of principal executive offices) (zip code)
Registrant's telephone number, including area code:
(512) 338-9119
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Securities registered pursuant to Section 12(b) of the Act:
None
Securities registered pursuant to Section 12(g) of the Act:
Common Stock, $0.01 par value
(Title of Class)
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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 (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes [X] No [_]
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K (ss.229.405 of this chapter) is not contained herein, and
will not be contained, to the best of 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 an accelerated filer (as
defined in Rule 12b-2 of the Act). Yes [X] No [_]
The aggregate market value of voting stock held by non-affiliates of the
registrant at the close of business on June 30, 2003, was $37.85 based upon the
last sales price reported for such date on the Nasdaq National Market. For
purposes of this disclosure, shares of Common Stock held by persons who hold
more than 5% of the outstanding shares of Common Stock and shares held by
officers and directors of the registrant as of December 31, 2003 have been
excluded in that such persons may be deemed to be affiliates. This determination
is not necessarily conclusive.
At the close of business on January 23, 2004, registrant had outstanding
52,232,082 shares of Common Stock.
DOCUMENTS INCORPORATED BY REFERENCE
Part III incorporates certain information by reference from the definitive
proxy statement for the Annual Meeting of Stockholders to be held on May 11,
2004 (the "Proxy Statement").
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PART I
This Form 10-K contains certain forward-looking statements within the
meaning of Section 27A of the Securities Act of 1933, as amended, and Section
21E of the Securities Exchange Act of 1934, as amended. These statements,
including statements regarding our strategy, products, product development
efforts and financial performance, are subject to risks and uncertainties. We
use words such as "anticipate," "believe," "plan," "expect," "future," "intend"
and similar expressions to identify forward-looking statements. Our actual
results could differ materially from the results anticipated in these
forward-looking statements as a result of certain factors including those set
forth under the heading "Factors affecting the Company's Business and Prospects"
beginning on page 19, and elsewhere in this Form 10-K. Although we believe that
the expectations reflected in the forward-looking statements are reasonable, we
cannot guarantee future results, levels of activity, performance or
achievements. You should not place undue reliance on these forward-looking
statements. We disclaim any obligation to update information contained in any
forward-looking statement.
ITEM 1. BUSINESS
National Instruments Corporation (the "Company" or "National Instruments")
is a leading supplier of measurement and automation products that engineers and
scientists use in a wide range of industries. These industries are spread across
a large and diverse market for test and measurement ("T&M") and industrial
automation ("IA") applications. The Company provides flexible application
software and modular, multifunction hardware that users combine with
industry-standard computers, networks and the Internet to create measurement and
automation systems, which the Company also refers to as "virtual instruments."
The Company is based in Austin, Texas and was incorporated under the laws
of the State of Texas in May 1976 and was reincorporated in Delaware in June
1994. On March 13, 1995, the Company completed an initial public offering of
shares of its Common Stock. The Company's Common Stock, $0.01 par value, is
quoted on the Nasdaq National Market under the trading symbol NATI.
Our Internet website address is http://www.ni.com. Our annual report on
Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K and
amendments to those reports filed or furnished pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 are available through our Internet
website as soon as reasonably practicable after we electronically file such
material with, or furnish it to, the SEC. Our Internet website and the
information contained therein or connected thereto are not intended to be
incorporated into this Annual Report on Form 10-K.
Industry Background
Engineers and scientists have long used instruments to observe, better
understand and manage the real-world phenomena, events and processes related to
their industries or areas of expertise. Instruments measure and control
electrical signals, such as voltage, current and power, as well as physical
phenomena, such as temperature, pressure, speed, flow, volume, torque and
vibration. Common general-purpose instruments include voltmeters, signal
generators, oscilloscopes, dataloggers, spectrum analyzers, cameras, and
temperature and pressure monitors and controllers. Some traditional instruments
are also highly application specific, designed to measure specific signals for
particular vertical industries or applications. Instruments used for industrial
automation applications include data loggers, strip chart recorders,
programmable logic controllers (PLCs), and proprietary turn-key devices and/or
systems designed to automate specific vertical applications.
Instrument applications can be generally categorized as either T&M or IA.
T&M applications generally involve testing during the research, design,
manufacture and service of a wide variety of products. IA applications generally
involve automating the machinery and processes used in the production and
distribution of a wide variety of products and materials.
Instruments and systems for both T&M and IA applications have historically
shared common limitations, including: fixed, vendor-defined functionality;
proprietary, closed architectures that were generally difficult to program and
integrate with other systems; and inflexible operator interfaces that were
usually cumbersome to operate and change. Proprietary instrumentation systems
have traditionally been very expensive, with IA system prices ranging as high as
several million dollars and T&M instrumentation system prices often ranging in
the hundreds of thousands of dollars. In addition, the limitations on
programmability of traditional systems means that adopting these systems to
changing requirements is both expensive and time consuming, and users are often
required to purchase multiple single-purpose instruments.
The Company's Approach to Measurement and Automation
A virtual instrument is a user-defined measurement and automation system
that consists of an industry standard computer (which may be a mainstream
general-purpose computer, workstation, handheld PDA device, or a version of an
industry standard computer, workstation, or handheld PDA that is specially
designed and packaged for harsh industrial or embedded environments) equipped
with the Company's user-friendly application software, cost-effective hardware
and driver software. Virtual instrumentation represents a fundamental shift from
traditional hardware-centered instrumentation systems to software-centered
systems that exploit the computational, display, productivity and connectivity
capabilities of computers, networks and the Internet. Because virtual
instruments exploit these computation, connectivity, and display capabilities,
users can define and change the functionality of their instruments, rather than
being restricted by fixed-functions imposed by traditional instrument and
automation vendors. The Company's products empower users to monitor and control
traditional instruments, create innovative computer-based systems that can
replace traditional instruments at a lower cost, and develop systems that
integrate measurement functionality together with industrial automation
capabilities. The Company believes that giving users flexibility to create their
own user-defined virtual instruments for an increasing number of applications in
a wide variety of industries, and letting users leverage the latest technologies
from computers, networking and communications shortens system development time
and reduces both short- and long-term costs of developing, owning and operating
measurement and automation systems, and improves the efficiency and precision of
applications spanning research, design, production and service.
Compared with traditional solutions, the Company believes its products and
computer-based, virtual instrumentation approach provide the following
significant customer benefits:
Performance, Ease-of-Use and Efficiency
The Company's virtual instrument application software brings the power and
ease-of-use of computers, PDAs, networks and the Internet to instrumentation.
With features such as graphical programming, automatic code generation
capabilities, graphical tools libraries, ready-to-use example programs,
libraries of specific instrumentation functions, and the ability to deploy their
applications on a range of platforms, users can quickly build a virtual
instrument system that meets their individual application needs. In addition,
the continuous improvement in performance of PC and networking technologies,
which are the core platform for the Company's approach, result in direct
performance benefits for virtual instrument users in the form of faster
execution for software-based measurement and automation applications, resulting
in shorter test times, faster automation, and higher manufacturing throughput.
Modularity, Reusability and Reconfigurability
The Company's products include reusable hardware and software modules that
offer considerable flexibility in configuring systems. This ability to reuse and
reconfigure instrument systems allows users to reduce development time and
maximize efficiency by eliminating duplicated programming efforts and to quickly
adapt their instruments to new and changing needs. In addition, these features
help protect both hardware and software investments against obsolescence.
Lower Total Solution Cost
The Company believes that its products and solutions offer
price/performance advantages over traditional instrumentation. Virtual
instrumentation provides users the ability to utilize industry standard
computers and workstations, portable PDAs and other handheld devices, as well as
ruggedized industrial computers equipped with modular and reusable application
software, cost-effective hardware and driver software that together perform the
instrumentation functions that would otherwise be performed by costly,
proprietary instrumentation systems. In addition, virtual instrumentation gives
users the flexibility and portability to adapt to changing needs, whereas
traditional closed systems are both expensive and time consuming to adapt, if
adaptable at all.
Strategy
The Company's objective is to be a leading supplier of measurement and
automation products and solutions to engineers, scientists and others in both
T&M and IA applications. To achieve this objective, the Company is pursuing a
strategy that includes the following elements:
Expand Broad Customer Base
Serve a Large and Diverse Market. The Company's products and services are
designed to serve a broad customer base across many industries. The Company
defines product features and capabilities by working closely with technically
sophisticated customers and seeks to achieve high unit volumes by selling these
same products to a large base of customers with diverse measurement and
automation needs.
Support Many Computer and Instrument Options. The Company diversifies its
customer base by accommodating many popular computer platforms and a variety of
instrumentation options. In addition, the Company expects to continue to create
or adapt products for computer systems and instrumentation options that gain
market acceptance. Customers are provided a range of price/performance options
through the Company's extensive line of products.
Provide Worldwide Marketing and Distribution. The Company uses multiple
coordinated distribution channels in its major world markets. The Company
devotes significant resources to direct sales activities in the United States
and in key international markets. In addition to its direct sales channel, the
Company's other distribution channels include distributors, OEMs, VARs, systems
integrators and consultants. By using this broad range of channels, the Company
seeks to develop and maintain relations with its customers and prospects and to
provide the levels of support, training and education required by the market.
The Company intends to expand each of these distribution networks to take
advantage of market opportunities.
Acquire New Technologies. The Company has in the past acquired companies,
products, and technologies to augment its product offerings, and intends to
continue to seek opportunities to satisfy customer needs and build market
penetration through acquisitions in the future. In connection with these
acquisitions, the Company has leveraged its established sales channels in an
effort to accelerate the delivery of the acquired products to the market.
Maintain High Levels of Customer Satisfaction
Offer Innovative Modular and Integrated Solutions. The Company intends to
continue to deliver innovative, modular software and hardware tools with open,
portable architectures that can be easily integrated to create instrumentation
systems and solutions. The Company solicits regular feedback from its customers,
resulting in the addition of new product features and enhanced performance, to
help ensure that existing and new products meet or surpass customer
expectations.
Provide Global Customer Support and Education. The Company's sales and
marketing engineers have the technical expertise necessary to understand
customers' application needs and work with them to identify cost-effective
solutions using the virtual instrumentation approach. The Company also offers
comprehensive customer support, including technical support via the ni.com Web
site, electronic mail, fax and telephone, newsletters, warranty service and
repair, upgrade programs, free and paid seminars, and technical classes. Through
the Company's ni.com Web site, customers have access to a growing range of
support options to solve their own problems directly over the Web, including
software downloads, upgrades and bug fixes, automated product configuration
tools, knowledge databases of common questions and answers, online seminars,
live product demonstrations and discussion forums.
Deliver Long-Term Compatibility. The Company emphasizes consistency in the
implementation of its products across different platforms and strives to
maintain a high degree of backward compatibility between existing and new
products, engendering a high degree of customer loyalty.
Leverage External and Internal Technology
Leverage Generally Available Technology. The Company leverages the research
and development efforts of vendors of personal computers, workstations, PDAs and
other handheld devices, operating systems, programming languages and software
development tools, and their suppliers. In addition, the Company leverages the
research and development efforts of semiconductor vendors by using
analog-to-digital converters and other chipsets that are used in a wide variety
of high-volume consumer electronics products as components on many of the
Company's own measurement and automation hardware products. By integrating Web,
networking and communications capabilities directly in its software and hardware
products, the Company's products allow users to easily distribute measurement
and automation capabilities throughout factories and around the world, easily
integrate measurement and automation data throughout their organization and
across the enterprise and achieve advanced solutions at a lower development
cost.
Support Open Architecture on Multiple Platforms. The Company approaches the
market with an open architecture so users have the flexibility to combine the
Company's products with those from instrument suppliers, computer vendors and
competitors.
Leverage Core Technologies. The Company designs proprietary Application
Specific Integrated Circuits ("ASICs") to optimize performance and reduce
production costs. The Company utilizes these ASICs and its other internally
developed hardware and software components in multiple products to achieve
consistency and compatibility between products.
Products and Technology
The Company offers an extensive line of measurement and automation
products. The Company's products consist of application software, and hardware
components together with related driver software. The Company's products are
designed to work either in an integrated solution or separately; however,
customers generally purchase software and hardware together. The Company
believes that the flexibility, functionality and ease of use of its application
software promotes sales of the Company's other software and hardware products.
Application Software
The Company believes that application software is playing an increasingly
important role in the development of computer-based instruments and systems in
measurement and automation applications. The Company's application software
products leverage the increasing capability of computers, networks and the
Internet for data analysis, connectivity and presentation power to bring
increasing efficiency and precision to measurement and automation applications.
The Company's application software products include LabVIEW, LabVIEW Real-Time,
LabVIEW FPGA, Measurement Studio, LabWindows/CVI, DIAdem, TestStand, and
MATRIXx. The Company's application software products are integrated with the
Company's hardware/driver software.
The Company offers a variety of software products for developing
measurement and automation applications to meet the different programming and
computer preferences of its customers. LabVIEW, LabWindows/CVI, and Measurement
Studio are programming environments with which users can develop graphical user
interfaces ("GUIs"), control instruments, and acquire, analyze and present data.
With these software products, users can design custom virtual instruments by
creating a GUI on the computer screen through which they operate the actual
program and control selected hardware. Users can customize front panels with
knobs, buttons, dials and graphs to emulate control panels of instruments or add
custom graphics to visually represent the control and operation of processes.
LabVIEW, LabWindows/CVI and Measurement Studio also have ready-to-use libraries
for controlling thousands of programmable instruments, including the Company's
hardware products, as well as traditional serial, GPIB and VXI measurement and
automation devices from other vendors.
The principal difference between LabVIEW, LabWindows/CVI, and Measurement
Studio is in the way users develop programs. With LabVIEW, users program
graphically, developing application programs by connecting icons to create
"block diagrams" which are natural design notations for scientists and
engineers. With LabVIEW Real-Time, the user's application program can be easily
configured to execute using a real-time operating system kernel instead of the
Windows operating system, which allows users to easily build virtual instrument
solutions for mission-critical applications that require highly reliable
operation. In addition, with LabVIEW Real-Time, users can easily configure their
programs to execute remotely on embedded processors inside PXI systems, on
embedded processors inside Fieldpoint distributed I/O systems, or on processors
embedded on plug-in PC data acquisition boards. With LabVIEW FPGA, the user's
application can be configured to execute directly in silicon via a Field
Programmable Gate Array (FPGA) residing on one of the Company's reconfigurable
I/O hardware products. LabVIEW FPGA allows users to easily build their own
highly specialized, custom hardware devices for ultra high-performance
requirements or for unique or proprietary measurement or control protocols. With
LabWindows/CVI, users program using the conventional, text-based language of C.
Measurement Studio consists of measurement and automation add-on libraries and
additional tools for programmers that use Microsoft's Visual Basic, Visual C++,
Visual C#, and Visual Studio.NET development environments.
The Company also offers a software product called TestStand targeted for
T&M applications in a manufacturing environment. TestStand is a test management
environment for organizing, controlling, and running automated production test
systems on the factory floor. It also generates customized test reports and
integrates product and test data across the customers' enterprise and across the
Internet. TestStand manages tests that are written in LabVIEW, LabWindows/CVI,
Measurement Studio, C and C++, and Visual Basic, so test engineers can easily
share and re-use test code throughout their organization and from one product to
the next. TestStand is a key element of the Company's strategy to broaden the
reach of its application software products across the corporate enterprise.
Hardware Products and Related Driver Software
The Company's hardware and related driver software products include data
acquisition ("DAQ"), PXI, image acquisition, motion control, FieldPoint
Distributed I/O and Embedded Control Hardware/Software, industrial
communications interfaces, GPIB interfaces, and VXI Controllers. The high level
of integration between the Company's products provides users with the
flexibility to mix and match hardware components when developing custom virtual
instrumentation systems.
DAQ Hardware/Driver Software. DAQ hardware and driver software products are
"instruments on a board" that users can combine with sensors, signal
conditioning hardware and software to acquire analog data and convert it into a
digital format that can be accepted by a computer. The Company believes that
computer-based DAQ products are typically a lower-cost solution than traditional
instrumentation. The Company believes that applications suitable for automation
with computer-based DAQ products are widespread throughout many industries, and
that many systems currently using traditional instrumentation (either manual or
computer-controlled) could be displaced by computer-based DAQ systems. The
Company offers a range of computer-based DAQ products, including models for
digital, analog and timing input-output, and for transferring data directly to a
computer's random-access memory.
PXI Modular Instrumentation. The Company's PXI modular instrument platform,
which was introduced in 1997, is a desktop PC packaged in a small, rugged form
factor with expansion slots and instrumentation extensions. It combines
mainstream PC software and PCI hardware with advanced instrumentation
capabilities. In essence, PXI is an instrumentation PC with several expansion
slots to enable the company to pursue complete system-level opportunities and
deliver a much higher percentage of the overall system content using the
company's own products. The Company continues to expand its PXI product
offerings with new modules, which address a wide variety of measurement and
automation applications. PXI also continues to gain acceptance, with
endorsements from over 50 suppliers.
Machine Vision/Image Acquisition. In 1996, the Company introduced its first
image acquisition hardware which provides users with a cost-effective solution
to integrate vision into their measurement and automation applications. The
Company's vision software is designed to work with many different software
environments, including LabVIEW, LabWindows/CVI, Visual Basic, C, and
Measurement Studio. In 2002, the Company expanded its software offering with new
easy-to-use menu driven machine vision software that can run as a stand-alone
vision system. The new software can also generate LabVIEW code. In 2003, the
Company introduced its new Vision Builder software for automated inspection and
its new Compact Vision System, which is a small, ruggedized, industrial vision
system that can connect up to three IEEE-1394 cameras and that is easily
programmed using Vision Builder.
Motion Control. During 1997, the Company introduced its first line of
motion control hardware, software and peripheral products. This intelligent
PC-based motion control hardware is programmable from industry standard
development environments including LabVIEW, LabWindows/CVI and Measurement
Studio. The Company's software tools for motion are easily integrated with the
Company's other product lines, allowing motion to be combined with image
acquisition, test, measurement, data acquisition and automation. The Company's
computer-based motion products allow users to leverage standard hardware and
software in measurement and automation applications to create robust, flexible
solutions.
FieldPoint Distributed I/O and Embedded Control Hardware/Software.
FieldPoint is an intelligent, distributed, and modular I/O system, first
introduced by the Company in 1997, that gives industrial system developers an
economical solution for distributed data acquisition, monitoring and control
applications. Suitable for direct connection to industrial signals, FieldPoint
includes a wide array of rugged and isolated analog and digital I/O modules,
terminal base options, and network modules. FieldPoint software provides
seamless integration into the LabVIEW Real-Time, driver libraries for support
under LabVIEW, LabWindows/CVI, Measurement Studio and other industrial
automation software packages. With LabVIEW Real-Time users can download their
LabVIEW code and easily create networked systems of intelligent, real-time nodes
for embedded measurement and control. In late 2002, the Company launched Compact
FieldPoint, a new intelligent distributed I/O product line with 23 new
measurement and automation modules. Compact FieldPoint is also an execution
target for LabVIEW Real-Time, and its smaller size and even more rugged form
factor further extends NI's hardware and LabVIEW Real-Time into new industrial
control, process monitoring, and embedded machine applications that require
intelligent I/O products with a small form factor, a wide operating temperature,
and resistance to shock and vibration.
Industrial Communications Interfaces. In mid-1995, the Company began
shipping its first interface boards for communicating with serial devices, such
as dataloggers and PLCs targeted for IA applications, and benchtop instruments,
such as oscilloscopes, targeted for T&M applications. Industrial applications
need the same high-quality, easy-to-use hardware and software tools for
communicating with industrial devices such as process instrumentation, PLCs,
single-loop controllers, and a variety of I/O and DAQ devices. National
Instruments offers four hardware and driver software product lines for
communication with industrial devices--Controller Area Network (CAN), DeviceNet,
Foundation Fieldbus, and RS-485 and RS-232.
GPIB Interfaces/Driver Software. The Company began selling GPIB products in
1977 and is a leading supplier of GPIB interface boards and driver software to
control traditional GPIB instruments. These traditional instruments are
manufactured by a variety of third-party vendors and are used primarily in T&M
applications. The Company's diverse portfolio of hardware and software products
for GPIB instrument control is available for a wide range of computers. The
Company's GPIB product line also includes products for portable computers such
as a PCMCIA-GPIB interface card, and products for controlling GPIB instruments
using the computer's standard parallel, USB, IEEE 1394 (Firewire), Ethernet, and
serial ports.
VXI Controllers//Driver Software. The Company is a leading supplier of VXI
computer controller hardware and the accompanying NI-VXI and NI-VISA driver
software. The Company also offers LabVIEW, LabWindows/CVI, Measurement Studio
and TestStand software products for VXI systems.
Customer Training Courses
The Company offers fee-based training classes and self-paced course kits
for many of its software and hardware products. On-site courses are quoted per
customer requests. The Company also offers programs to certify programmers and
instructors for its products.
Markets and Applications
The Company's products are used across many industries in a variety of
applications from research and development to simulation and modeling to product
design and validation to production testing and industrial control to field and
factory service and repair. The following industries and applications are served
worldwide by the Company: advanced research, automotive, commercial aerospace,
computers and electronics, continuous process manufacturing, education,
government/defense, medical research/pharmaceutical, power/energy,
semiconductors, automated test equipment, telecommunications and others.
Customers
The Company has a broad customer base, with no customer accounting for more
than 3% of the Company's sales in 2003, 2002, or 2001.
Marketing
Through its worldwide marketing efforts, the Company strives to educate
engineers and scientists about the benefits of the Company's virtual
instrumentation philosophy, products and technology, and to highlight the
performance, ease of use and cost advantages of its products. The Company also
seeks to present its position as a technological leader among producers of
instrumentation software and hardware and to help promulgate industry standards
that will benefit users of computer-based instrumentation.
The Company reaches its intended audience through its Web site at ni.com as
well as the distribution of written and electronic materials including
demonstration versions of its software products, participation in tradeshows and
technical conferences and training and user seminars.
The Company actively markets its products in higher education environments,
and identifies many colleges, universities and trade and technical schools as
key accounts. The Company offers special academic pricing and products to enable
universities to utilize Company products in their classes and laboratories. The
Company believes its prominence in the higher education area can contribute to
its future success because students gain experience using the Company's products
before they enter the work force.
Sales and Distribution
The Company distributes its software and hardware products primarily
through a direct sales organization. The Company also uses independent
distributors, OEMs, VARs, system integrators and consultants to market its
products. The Company has sales offices in the United States and sales offices
and distributors in key international markets. Sales outside of North America
accounted for approximately 53%, 50%, and 49% of the Company's revenues in 2003,
2002, and 2001, respectively. The Company expects that a significant portion of
its total revenues will continue to be derived from international sales. See
Note 11 of Notes to Consolidated Financial Statements for details concerning the
geographic breakdown of the Company's net sales, operating income and
identifiable assets.
The Company believes the ability to provide comprehensive service and
support to its customers is an important factor in its business. The Company
permits customers to return products within 30 days from receipt for a refund of
the purchase price less a restocking charge, and generally provides a two-year
warranty on GPIB hardware products, a one-year warranty on other hardware
products, and a 90-day warranty on cables and software (medium only). Customers
may also purchase a one-year extended warranty on hardward products.
Historically, warranty costs have not been material.
The Company's foreign operations are subject to certain risks set forth on
page 21 under "Risks Associated with International Operations and Foreign
Economies."
Competition
The markets in which the Company operates are characterized by intense
competition from numerous competitors, some of which are divisions of large
corporations having far greater resources than the Company, and the Company
expects to face further competition from new market entrants in the future. The
Company believes Agilent is the dominant supplier of GPIB and VXI-compatible
instruments and systems. Agilent is also a leading supplier of equipment used in
data acquisition and control applications. Because of Agilent's dominance in the
instrumentation business, changes in its marketing strategy or product offerings
could have a material adverse affect on the Company. The Company also faces
competition from a variety of other competitors.
Certain of the Company's competitors have substantial competitive
advantages in terms of breadth of technology, sales, marketing and support
capability and resources, including the number of sales and technical personnel
and their ability to cover a geographic area and/or particular account more
extensively and with more complete solutions than the Company can offer, and
more extensive warranty support, system integration and service capabilities
than those of the Company. In addition, large competitors can often enter into
strategic alliances with key customers or target accounts of the Company, which
can potentially have a negative impact on the Company's success with those
accounts.
The Company believes its ability to compete successfully depends on a
number of factors both within and outside its control, including: product
pricing, quality and performance; success in developing new products; adequate
manufacturing capacity and supply of components and materials; efficiency of
manufacturing operations; effectiveness of sales and marketing resources and
strategies; success in leveraging the Web; strategic relationships with other
suppliers; timing of new product introductions by the Company or its
competitors; protection of the Company's products by effective use of
intellectual property laws; general market and economic conditions; and events
related to severe weather, natural disasters and government actions throughout
the world. Although the Company operates in a highly competitive market, it
believes it competes favorably with respect to these factors of competition.
There can be no assurance that the Company will be able to compete successfully
in the future.
Research and Development
The Company believes that its long-term growth and success depends on
delivering high quality software and hardware products on a timely basis. The
Company intends to focus its research and development efforts on enhancing
existing products and developing new products that incorporate appropriate
features and functionality to be competitive with respect to technology and
price/performance.
The Company's research and development staff strives to build quality into
products at the design stage in an effort to reduce overall development and
manufacturing costs. The Company's research and development staff also designs
proprietary ASICs, many of which are designed for use in several products. The
goal of the ASIC design program is to further differentiate the Company's
products from competing products, to improve manufacturability and to reduce
costs. The Company seeks to reduce the time to market for new and enhanced
products by sharing its internally developed hardware and software components
across multiple products.
As of December 31, 2003, the Company employed 852 people in product
research and development. The Company's research and development expenses were
$70.9 million, $64.0 million, and $60.7 million for 2003, 2002, and 2001,
respectively.
Intellectual Property
The Company relies on a combination of patent, trade secret, copyright and
trademark law, contracts and technical measures to establish and protect its
proprietary rights in its products. As of December 31, 2003, the Company held
202 United States patents (198 utility patents and 4 design patents) and 33
patents in foreign countries (30 patents registered in Europe in various
countries; 1 patent in Canada; and 2 patents in Japan), and had 265 patent
applications pending in the United States and foreign countries. 46 of such
issued United States patents are software patents related to LabVIEW, and cover
fundamental aspects of the graphical programming approach used in LabVIEW. The
Company's patents expire from 2007 to 2021. No assurance can be given that the
Company's pending patent applications will result in the issuance of patents.
The Company also owns certain registered trademarks in the United States and
abroad.
Manufacturing and Suppliers
The Company manufactures a substantial majority of its products at its
facilities in Austin, Texas and Debrecen, Hungary. Product manufacturing
operations at the Company can be divided into four areas: electronic circuit
card and module assembly; cable assembly; technical manuals and product support
documentation; and software duplication. The Company manufactures most of the
electronic circuit card assemblies and modules in-house, although subcontractors
are used from time to time. The Company manufactures some of its electronic
cable assemblies in-house, but many assemblies are produced by subcontractors.
The Company primarily subcontracts its software duplication.
The Company obtains most of its electronic components from suppliers
located principally in the United States and Asia. Some of the components
purchased by the Company, including ASICs, are sole-sourced. Any disruption of
the Company's supply of sole or limited source components, whether resulting
from business demand, quality, production or delivery problems, could adversely
affect the Company's ability to manufacture its products, which could in turn
adversely affect the Company's business and results of operations. See
"Management's Discussion and Analysis of Financial Condition and Results of
Operations."
Backlog
The Company typically ships products shortly following the receipt of an
order. Accordingly, the Company's backlog typically represents less than 10 days
sales. Backlog should not be viewed as an indicator of future sales.
Employees
As of December 31, 2003, the Company had 3,078 employees, including 852 in
research and development, 1,406 in sales and marketing and customer support, 466
in manufacturing and 354 in administration and finance. None of the Company's
employees are represented by a labor union and the Company has never experienced
a work stoppage. The Company considers its employee relations to be good. For
five consecutive years, 1999, 2000, 2001, 2002, and 2003, the Company has been
named among the 100 Best Companies to Work for in America according to FORTUNE
magazine.
ITEM 2. PROPERTIES
The Company's principal activities are conducted at three Company-owned
buildings in Austin, Texas. The Company owns approximately 69 acres of land in
north Austin, Texas, on which are a 232,000 square foot office facility, a
140,000 square foot manufacturing and office facility, and a 380,000 square foot
research and development facility. The Company also owns a 136,000 square foot
office building in Austin, Texas which is being leased to a third-party. The
Company also owns a 148,000 square foot manufacturing facility in Debrecen,
Hungary. The Company's German subsidiary, National Instruments Engineering GmbH
& Co. KG, owns a 25,500 square foot office building in Aachen, Germany in which
a majority of its activities are conducted. National Instruments Engineering
also owns another 19,375 square foot office building, which is partially leased
to BMS Modern Games and Klocke Nanotech.
As of December 31, 2003, the Company also leased a number of sales and
support offices in the United States and overseas. The Company's facilities are
currently utilized below design maximum capacity to allow for headcount growth
and design/construction cycles. The Company believes existing facilities are
adequate to meet its current requirements.
ITEM 3. LEGAL PROCEEDINGS
The Company has filed two complaints against The MathWorks, Inc.
("Defendant") for patent infringement. In both complaints, the Company claimed
the Defendant infringes certain of its U.S. patents and the Defendant challenged
the validity and enforceability of those patents and asserts that it does not
infringe the claims of those patents.
The first complaint was filed on January 25, 2001 in the U.S. District
Court, Eastern District of Texas (Marshall Division). On January 30, 2003, the
jury found infringement by the Defendant of three of the patents involved and
awarded the Company specified damages. On June 23, 2003, the Court entered final
judgment in favor of the Company in an amount of approximately $4 million and
entered an injunction against Defendant's sale of its Simulink and related
products. The Court stayed the injunction pending appeal of the case and
required the Defendant to pay a specified royalty on its U.S. sales of the same
products during the pendency of appeal. The initial judgement and the royalties
on the sales of infringing products through December 31, 2003, total $4.9
million and are escrowed. On July 22, 2003, Defendant filed its Notice of Appeal
and the case is currently pending on appeal before the U.S. Court of Appeals for
the Federal Circuit. The final judgment has not been recorded in the financial
statements of the Company pending the disposition of the appeal.
The second complaint was filed October 21, 2002, also in the U.S. District
Court, Eastern District of Texas (Marshall Division) and on August 27, 2003, the
complaint was dismissed by agreement of the parties.
On January 15, 2003, SoftWIRE Technology, LLC ("SoftWIRE") and Measurement
Computing Corporation ("MCC") filed a complaint against the Company in the U.S.
District Court for the District of Massachusetts asking the court to declare
that SoftWIRE does not infringe certain of the Company's U.S. patents and that
such patents are invalid and unenforceable. On February 21, 2003, the Company
filed a complaint against SoftWIRE and MCC in the U.S. District Court, Eastern
District of Texas (Marshall Division) claiming that both SoftWIRE and MCC
infringe the same and certain other of the Company's U.S. patents. SoftWIRE and
MCC challenge the validity and enforceability of these patents and assert that
they do not infringe any of these patents. In the Eastern District action, the
Company seeks monetary damages and injunction of the sale of certain products of
SoftWIRE and MCC as well as attorney's fees and costs. By order of the Court,
the Eastern District action was transferred to the U.S. District Court for the
District of Massachusetts on May 9, 2003, and has been consolidated with the
previously-filed SoftWIRE action, which also includes counterclaims by the
Company that are the same in substance as the Company's claims in the Eastern
District action. On June 12, 2003, SoftWIRE moved for leave to amend its
complaint in order to allege that the Company infringes two U.S. patents that
SoftWIRE acquired by purchase on May 23, 2003. On November 5, 2003, the Court
granted SoftWIRE's motion to amend, thereby adding SoftWIRE's two patents to the
litigation. With respect to those two SoftWIRE patents, SoftWIRE seeks monetary
damages and injunction of the sale of certain products of the Company as well as
attorney's fees and costs. The Company challenges the validity, enforceability
and alleged infringement of those patents and intends to vigorously defend
against SoftWIRE's claims. Discovery in the litigation is underway. During the
fourth quarter of 2003, the Company accrued $3.8 million related to its probable
loss from this contingency, which consists solely of anticipated patent defense
costs that are probable of being incurred. However, the outcome of any
litigation is inherently uncertain and there can be no assurance as to the
ultimate outcome of this matter or any other litigation. The Company did not
make any charges against this accrual during calendar 2003.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
No matter was submitted to a vote of security holders during the fourth
quarter of the fiscal year covered by this report.
PART II
ITEM 5. MARKET FOR THE REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER
MATTERS
The Company's Common Stock, $0.01 par value, began trading on the Nasdaq
National Market under the symbol NATI effective March 13, 1995. Prior to that
date, there was no public market for the Common Stock. The high and low closing
prices for the Common Stock, as reported by Nasdaq for the two most recent
fiscal years, are as indicated in the following table.
High Low
2003
First Quarter 2003...................................... $37.01 $31.81
Second Quarter 2003..................................... 39.15 29.36
Third Quarter 2003...................................... 43.78 35.60
Fourth Quarter 2003..................................... 46.93 39.94
High Low
2002
First Quarter 2002...................................... $42.62 $34.12
Second Quarter 2002..................................... 41.75 30.21
Third Quarter 2002...................................... 31.50 21.56
Fourth Quarter 2002..................................... 36.46 20.00
At the close of business on January 20, 2004, there were approximately 600
holders of record of the Common Stock and approximately 13,000 shareholders of
beneficial interest.
The Company believes factors such as quarterly fluctuations in results of
operations, announcements by the Company or its competitors, technological
innovations, new product introductions, governmental regulations, litigation,
changes in earnings estimates by analysts or changes in the Company's financial
guidance may cause the market price of the Common Stock to fluctuate, perhaps
substantially. In addition, stock prices for many technology companies fluctuate
widely for reasons that may be unrelated to their operating results. These broad
market and industry fluctuations may adversely affect the market price of the
Company's Common Stock.
The Company paid cash dividends of $0.05 per share each on August 29, 2003
and November 24, 2003. Prior to this, the Company had not paid any cash
dividends on its Common Stock.
On October 24, 2003, the Company issued an aggregate of 24,000 shares of
its common stock (together with cash) in connection with its acquisition of the
outstanding shares of a privately held company. The shares were issued to the
shareholders of the acquired company pursuant to Section 4(2) under the
Securities Act of 1933 based on representations and warranties obtained from the
persons to whom the shares were issued.
See Item 12 for information regarding securities authorized for issuance
under equity compensation plans.
ITEM 6. SELECTED CONSOLIDATED FINANCIAL DATA
The following selected consolidated financial data should be read in
conjunction with the consolidated financial statements, including the Notes to
Consolidated Financial Statements. The information set forth below is not
necessarily indicative of results of future operations. The information should
be read in conjunction with "Management's Discussion and Analysis of Financial
Condition and Results of Operations."
Years Ended December 31,
2003 2002 2001 2000 1999
---------- ---------- ---------- ---------- ----------
Statements of Income Data:
Net sales:
North America.................................. $ 200,210 $ 195,770 $ 195,842 $ 215,960 $ 175,873
Europe......................................... 137,761 122,800 128,523 133,799 108,801
Asia Pacific................................... 87,921 72,220 60,910 60,390 44,909
---------- ---------- ---------- ---------- ----------
Consolidated net sales......................... 425,892 390,790 385,275 410,149 329,583
Cost of sales.................................... 111,672 105,086 101,297 98,326 76,040
---------- ---------- ---------- ---------- ----------
Gross profit................................... 314,220 285,704 283,978 311,823 253,543
---------- ---------- ---------- ---------- ----------
Operating expenses:
Sales and marketing............................ 160,478 145,671 145,555 147,377 120,886
Research and development....................... 70,896 63,964 60,745 55,954 45,531
General and administrative..................... 42,497 35,714 29,234 32,077 24,258
---------- ---------- ---------- ---------- ----------
Total operating expenses...................... 273,871 245,349 235,534 235,408 190,675
---------- ---------- ---------- ---------- ----------
Operating income.............................. 40,349 40,355 48,444 76,415 62,868
Other income (expense):
Interest income................................ 2,511 3,295 5,837 6,390 4,759
Interest expense............................... (62) (128) (26) (533) (404)
Net foreign exchange gain (loss) and other..... 1,693 96 (722) (1,159) 130
---------- ---------- ---------- ---------- ----------
Income before income taxes and cumulative effect
of accounting change............................. 44,491 43,618 53,533 81,113 67,353
Provision for income taxes....................... 11,123 12,213 17,131 25,956 21,553
---------- ---------- ---------- ---------- ----------
Income before cumulative effect of accounting
change........................................... 33,368 31,405 36,402 55,157 45,800
Cumulative effect of accounting change, net of
tax.............................................. -- -- -- -- (552)
---------- ---------- ---------- ---------- ----------
Net income................................... $ 33,368 $ 31,405 $ 36,402 $ 55,157 $ 45,248
========== ========== ========== ========== ==========
Basic earnings per share:
Income before cumulative effect of accounting
change........................................... $ 0.65 $ 0.61 $ 0.72 $ 1.10 $ 0.92
Cumulative effect of accounting change, net of
tax.............................................. -- -- -- -- (0.01)
---------- ---------- ---------- ---------- ----------
Basic earnings per share....................... $ 0.65 $ 0.61 $ 0.72 $ 1.10 $ 0.91
========== ========== ========== ========== ==========
Diluted earnings per share:
Income before cumulative effect of accounting
change........................................... $ 0.62 $ 0.59 $ 0.68 $ 1.03 $ 0.88
Cumulative effect of accounting change, net of
tax.............................................. -- -- -- -- (0.01)
---------- ---------- ---------- ---------- ----------
Diluted earnings per share..................... $ 0.62 $ 0.59 $ 0.68 $ 1.03 $ 0.87
========== ========== ========== ========== ==========
Weighted average shares outstanding:
Basic.......................................... 51,625 51,219 50,910 50,332 49,776
Diluted........................................ 53,964 53,411 53,651 53,564 52,203
Cash dividends paid per common share........... $ 0.10 $ -- $ -- $ -- $ --
========== ========== ========== ========== ==========
December 31,
2003 2002 2001 2000 1999
-------- -------- -------- -------- --------
(in thousands)
Balance Sheet Data:
Cash and cash equivalents........................ $ 53,446 $ 40,240 $ 49,089 $ 75,277 $ 45,309
Short-term investments........................... 141,227 113,638 101,422 79,525 83,525
Working capital.................................. 255,330 211,453 209,836 220,208 173,761
Total assets..................................... 525,151 458,714 424,619 389,350 318,753
Long-term debt, net of current portion........... -- -- -- -- 4,301
Total stockholders' equity....................... 439,452 386,463 366,164 321,023 254,235
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
The following "Management's Discussion and Analysis of Financial Condition
and Results of Operations" contains certain forward-looking statements,
including statements regarding our expected financial performance. These
statements are subject to risks and uncertainties. We use words such as
"anticipate," "believe," "plan," "expect," "future," "intend," "may," "will,"
"project," "continue," "estimate" and similar expressions to identify
forward-looking statements. Our actual results could differ materially from the
results anticipated in these forward-looking statements. As a result of certain
factors including those set forth under the heading "Factors affecting the
Company's Business and Prospects" beginning on page 19, and elsewhere in this
Form 10-K. Although we believe that the expectations reflected in the
forward-looking statements are reasonable, we cannot guarantee future results,
levels of activity, performance or achievements. You should not place undue
reliance on these forward-looking statements. We disclaim any obligation to
update information contained in any forward-looking statement.
Overview
National Instruments designs, develops, manufactures and markets
instrumentation and automation software and hardware for general commercial,
industrial and scientific applications. The Company offers hundreds of products
used to create virtual instrumentation systems for measurement and automation.
The Company has identified a large and diverse market for test and measurement
("T&M") and industrial automation ("IA") applications. The Company's products
are used in a variety of applications from research and development to
production testing, monitoring and industrial control. In T&M applications, the
Company's products can be used to monitor and control traditional instruments or
to create computer-based instruments that can replace traditional instruments.
In IA applications, the Company's products can be used in the same ways as in
test and measurement and can also be used to integrate measurement functionality
with process automation capabilities. The Company sells to a large number of
customers in a wide variety of industries. No single customer accounted for more
than 3% of the Company's sales in 2003, 2002 or 2001.
The Company has been profitable in every year since 1990. However, there
can be no assurance that the Company's net sales will grow or that the Company
will remain profitable in future periods. As a result, the Company believes
historical results of operations should not be relied upon as indications of
future performance.
Results of Operations
The following table sets forth, for the periods indicated, the percentage
of net sales represented by certain items reflected in the Company's
consolidated statements of income:
Years Ended December 31,
2003 2002 2001
-------- -------- --------
Net sales:
North America.................................. 47.0% 50.1% 50.8%
Europe......................................... 32.4 31.4 33.4
Asia Pacific................................... 20.6 18.5 15.8
-------- -------- --------
Consolidated net sales......................... 100.0 100.0 100.0
Cost of sales...................................... 26.2 26.9 26.3
-------- -------- --------
Gross profit................................... 73.8 73.1 73.7
Operating expenses:
Sales and marketing............................ 37.7 37.3 37.8
Research and development....................... 16.6 16.4 15.8
General and administrative..................... 10.0 9.1 7.5
-------- -------- --------
Total operating expenses.................... 64.3 62.8 61.1
-------- -------- --------
Operating income............................ 9.5 10.3 12.6
Other income (expense):
Interest income................................ 0.6 0.8 1.5
Interest expense............................... -- -- --
Net foreign exchange gain (loss) and other..... 0.3 -- (0.2)
-------- -------- --------
Income before income taxes......................... 10.4 11.1 13.9
Provision for income taxes......................... 2.6 3.1 4.5
-------- -------- --------
Net income......................................... 7.8% 8.0% 9.4%
======== ======== ========
Net Sales. In 2003, net sales for the Company's products were $425.9
million, a 9% increase from the level achieved in 2002, which followed an
increase in net sales of 1% in 2002 from the level achieved in 2001. The Company
believes the increase in sales in 2003 is primarily attributable to the
introduction of new and upgraded products, an early stage recovery in the global
economy and an increased market acceptance of the Company's products in Asia.
The Company believes the increase in sales in 2002 was primarily attributable to
the introduction of new and upgraded products and an increased market acceptance
of the Company's products in Asia.
Sales in North America increased 2% to $200.2 million in 2003 compared to
2002. North America sales in 2002 were flat with sales in 2001. Sales outside of
North America, as a percentage of consolidated sales for 2003, increased to
53.0% from 49.9% in 2002, as a result of stronger sales in Asia Pacific and a
stronger Euro. European revenue was $137.8 million in 2003, an increase of 12%
from 2002, following a 4% decrease in 2002 from 2001. Asia Pacific revenue grew
22% to $87.9 million in 2003, which followed a 19% increase in 2002 over 2001
levels. The Company expects sales outside of North America to continue to
represent a significant portion of its revenue. The Company intends to continue
to expand its international operations by increasing its presence in existing
markets, adding a market presence in some new geographical markets and
continuing the use of distributors to sell its products in some countries.
Sales made by the Company's direct sales offices in Europe and Asia Pacific
are denominated in local currencies, and accordingly, the U.S. dollar equivalent
of these sales is affected by changes in the foreign currency exchange rates.
Between 2003 and 2002, net of hedging results, the change in the exchange rates
had the effect of increasing the Company's consolidated sales by 2.5%,
increasing European sales by 13% and decreasing sales in Asia Pacific by 13%.
The increase in sales in Europe as a result of the change in exchange rates was
partially offset by the decrease in local currency product pricing in Europe.
Since most of the Company's international operating expenses are also incurred
in local currencies, the change in exchange rates had the effect of increasing
operating expenses $6.5 million, or 2.4%, in 2003 and $4.5 million, or 1.9%, in
2002, and decreasing operating expenses $2.0 million, or 0.9%, in 2001.
Gross Profit. As a percentage of sales, gross profit represented 74%, 73%
and 74% in 2003, 2002 and 2001, respectively. The increase in gross margin in
2003 compared to the prior year is primarily attributable to favorable foreign
currency exchange rates and the favorable impact of higher sales volume. There
can be no assurance that the Company will maintain its historical margins. The
Company believes its current manufacturing capacity is adequate to meet current
needs.
Sales and Marketing. Sales and marketing expense in 2003 increased to
$160.5 million, a 10% increase from 2002. Sales and marketing expenses in 2002
were flat with 2001. Sales and marketing expense as a percentage of revenue was
38% in 2003, up from 37% in 2002 and flat with 38% in 2001. Approximately $9.1
million of the increase in sales and marketing expenses in 2003 compared to 2002
is attributable to the increase in international sales and marketing personnel
costs, and approximately $5.4 million of the increase is attributable to
increases in advertising and literature costs and special event activity. The
Company expects sales and marketing expenses in future periods to increase in
absolute dollars, and to fluctuate as a percentage of sales based on recruiting,
initial marketing and advertising campaign costs associated with major new
product releases and entry into new market areas, investment in web sales and
marketing efforts, increasing product demonstration costs and the timing of
domestic and international conferences and trade shows.
Research and Development. Research and development expense in 2003
increased 11% compared to 2002 following an increase of 5% in 2002 over 2001.
The increase in research and development costs in each period was primarily due
to increases in personnel costs from hiring of additional product development
engineers. Research and development personnel increased from 791 at December 31,
2002 to 852 at December 31, 2003. The Company plans to continue making a
significant investment in research and development in order to remain
competitive and support revenue growth.
The Company capitalizes software development costs in accordance with
Statement of Financial Accounting Standards ("SFAS") No. 86, "Accounting for the
Costs of Computer Software to be Sold, Leased, or Otherwise Marketed." The
Company amortizes such costs over the related product's estimated economic
useful life, generally three years, beginning when a product becomes available
for general release. Software amortization expense totaled $5.6 million, $3.8
million and $3.1 million during 2003, 2002 and 2001, respectively. Software
development costs capitalized during such years were $10.7 million, $5.8 million
and $3.9 million, respectively. (See Note 5 of Notes to Consolidated Financial
Statements for a description of intangibles.)
General and Administrative. General and administrative expenses in 2003
increased 19% from 2002, which followed an increase of 22% in 2002 from 2001.
The increase in general and administrative expenses in 2003 from 2002 is
primarily attributable to the upgrade of the Company's America's business
applications suite to Oracle's latest web-based release 11i, continued
investment in the Company's web and e-commerce offerings and $8.0 million for
patent litigation. The patent litigation expense consisted primarily of a $3.8
million charge recorded in the fourth quarter of 2003 for the probable loss
resulting solely from anticipated patent defense costs related to the legal
action brought against the Company by SoftWIRE Technology, LLC ("SoftWIRE") and
Measurement Computing Corporation ("MCC"), and $3.8 million associated with the
legal action brought by the Company against The MathWorks. (See Note 13 of Notes
to Consolidated Financial Statements.) The increase in general and
administrative expenses in 2002 from 2001 is attributable to increased
litigation costs of $4.7 million associated with a legal action brought by the
Company against The MathWorks, Inc. in 2001 to enforce the Company's
intellectual property rights, compared to a net gain of approximately $1.2
million in 2001 recorded as a result of the receipt of unexpected insurance
proceeds from a case with Cognex Corporation. General and administrative
expenses as a percentage of revenue increased to 10.0% during 2003 from 9.1%
during 2002. The Company expects that general and administrative expenses in
future periods will fluctuate in absolute amounts and as a percentage of
revenue.
During 2002, the Company and Trilogy Software, Inc. ("Trilogy") settled a
dispute regarding Trilogy's buy-out of the lease of the Company's Millenium
office building which resulted in a gain of approximately $6.0 million from
lease termination. As a result of additional facility lease consolidation, the
Company incurred lease termination costs of approximately $2.4 million in 2002.
In 2002, the Company irrevocably contributed approximately $3.6 million to
the National Instruments Foundation, a 501(c)(3) charitable foundation
established in 2002 for the purpose of continued promotion of scientific and
engineering research and education at higher education institutions worldwide.
Two of the four directors of the National Instruments Foundation are current
officers of National Instruments.
Interest Income and Expense. Interest income decreased 24% in 2003 from
2002, which followed a decrease of 44% in 2002 from 2001 and a decrease of 9% in
2001 from 2000. The decrease in interest income in each year was due to lower
yields on the Company's investments. The primary source of interest income is
from the investment of the Company's cash. Net cash provided by operating
activities in 2003 totaled $63.9 million.
Net Foreign Exchange Gain (Loss). The Company experienced net foreign
exchange gains of $1.1 million in 2003, compared to losses of $724,000 in 2002
and losses of $1.4 million in 2001. These results are attributable to movements
between the U.S. dollar and the local currencies in countries in which the
Company's subsidiaries are located. The Company recognizes the local currency as
the functional currency of its international subsidiaries.
The Company utilizes foreign currency forward contracts to hedge a majority
of its foreign currency-denominated receivables in order to reduce its exposure
to significant foreign currency fluctuations. The Company typically limits the
duration of its "receivables" foreign currency forward contracts to 90 days.
The Company also utilizes foreign currency forward contracts and foreign
currency purchased option contracts in order to reduce its exposure to
fluctuations in future foreign currency cash flows. The Company purchases these
contracts for up to 100% of its forecasted cash flows in selected currencies
(primarily the euro, yen and pound sterling) and limits the duration of these
contracts to 40 months. The foreign currency purchased option contracts are
purchased "at-the-money" or "out-of-the-money." As a result, the Company's
hedging activities only partially address its risks in foreign currency
transactions, and there can be no assurance that this strategy will be
successful. The Company does not invest in contracts for speculative purposes.
(See Note 10 of Notes to Consolidated Financial Statements for a description of
the Company's forward and purchased option contracts and hedged positions.) The
Company's hedging strategy reduced the foreign exchange gains for December 31,
2003 by $11.5 million and increased the net foreign exchange loss for December
31, 2002 by $1.4 million.
Provision for Income Taxes. The provision for income taxes reflects an
effective tax rate of 25% in 2003, 28% in 2002 and 32% in 2001. The decrease in
the effective rate resulted from income tax benefits attributable to the
extraterritorial income exclusion and a change in the distribution of income
among taxing jurisdictions, particularly the impact of the Company's
manufacturing facility in Hungary. The Company's effective tax rate is lower
than the U.S. federal statutory rate of 35% primarily as a result of the
extraterritorial income exclusion, tax-exempt interest and reduced tax rates in
certain foreign jurisdictions.
Liquidity and Capital Resources
The Company is currently financing its operations and capital expenditures
through cash flow from operations. At December 31, 2003, the Company had working
capital of approximately $255.3 million compared to $211.5 million at December
31, 2002. Net cash provided by operating activities in 2003, 2002 and 2001
totaled $63.1 million, $49.1 million and $57.2 million, respectively.
Accounts receivable increased to $78.0 million at December 31, 2003 from
$63.0 million at December 31, 2002, as a result of higher sales levels in the
fourth quarter of 2003 compared to the fourth quarter of 2002. Days sales
outstanding at December 31, 2003 increased to 58 days from 54 days at December
31, 2002. Consolidated inventory balances have decreased to $38.9 million at
December 31, 2003 from $39.2 million at December 31, 2002. Inventory turns of
3.2 per year for 2003 represent an increase from turns of 2.8 per year for 2002.
Cash used in 2003 for the purchase of property and equipment totaled $18.0
million, for the capitalization of internally developed software costs totaled
$9.7 million, for acquisitions totaled $6.3 million and for additions to other
intangibles totaled $2.5 million. Cash used in 2002 for the purchase of property
and equipment totaled $30.8 million, for the capitalization of internally
developed software costs totaled $5.8 million and for additions to other
intangibles totaled $3.0 million. Cash used in 2001 for the purchase of property
and equipment totaled $65.3 million, for the capitalization of internally
developed software costs totaled $3.9 million and for additions to other
intangibles totaled $1.0 million.
Cash provided by the issuance of common stock totaled $19.4 million, $13.4
million and $12.2 million in 2003, 2002 and 2001, respectively, and cash used
for payment of dividends totaled $5.2 million in 2003. The issuance of common
stock was primarily to employees under the Employee Stock Purchase and Stock
Option Plans.
The following summarizes the Company's contractual cash obligations as of
December 31, 2003 (in thousands):
--------------------------------------------------------------------
Payments Due by Period
--------------------------------------------------------------------
Total 2004 2005 2006 2007 2008 Beyond
-------- -------- -------- -------- -------- -------- --------
Long-term debt $ -- $ -- $ -- $ -- $ -- $ -- $ --
Capital lease obligations -- -- -- -- -- -- --
Operating leases 24,686 7,113 5,387 3,202 2,089 881 6,014
Other long-term obligations -- -- -- -- -- -- --
-------- -------- -------- -------- -------- -------- --------
Total contractual cash
obligations $ 24,686 $ 7,113 $ 5,387 $ 3,202 $ 2,089 $ 881 $ 6,014
======== ======== ======== ======== ======== ======== ========
The following summarizes the Company's other commercial commitments as of
December 31, 2003 (in thousands):
------------------------------------------------------
Total 2004 2005 2006 2007 2008 Beyond
------ ------ ------ ------ ------ ------ ------
Guarantees $3,500 $3,500 $ -- $ -- $ -- $ -- $ --
Purchase obligations 3,400 3,400 -- -- -- -- --
------ ------ ------ ------ ------ ------ ------
Total commercial
commitments $6,900 $6,900 $ -- $ -- $ -- $ -- $ --
====== ====== ====== ====== ====== ====== ======
The Company currently expects to fund expenditures for capital requirements
as well as liquidity needs created by changes in working capital from a
combination of available cash and short-term investment balances and internally
generated funds. As of December 31, 2003 and 2002, the Company had no debt
outstanding. The Company believes that the cash flow from operations, if any,
existing cash balances and short-term investments, will be sufficient to meet
its cash requirements for at least the next twelve months. Cash requirements for
periods beyond the next twelve months will depend on the Company's
profitability, its ability to manage working capital requirements and its rate
of growth.
Financial Risk Management
The Company's international sales are subject to inherent risks, including
fluctuations in local economies; difficulties in staffing and managing foreign
operations; greater difficulty in accounts receivable collection; costs and
risks of localizing products for foreign countries; unexpected changes in
regulatory requirements, tariffs and other trade barriers; difficulties in the
repatriation of earnings and burdens of complying with a wide variety of foreign
laws. The Company's sales outside of North America are denominated in local
currencies, and accordingly, the Company is subject to the risks associated with
fluctuations in currency rates. In particular, increases in the value of the
dollar against foreign currencies decrease the U.S. dollar value of foreign
sales requiring the Company either to increase its price in the local currency,
which could render the Company's product prices noncompetitive, or to suffer
reduced revenues and gross margins as measured in U.S. dollars. These dynamics
have adversely affected revenue growth in international markets in previous
years. The Company's foreign currency hedging program includes both foreign
currency forward and purchased option contracts to reduce the effect of exchange
rate fluctuations. However, the hedging program will not eliminate all of the
Company's foreign exchange risks. (See "Net Foreign Exchange Gain (Loss)" and
Note 10 of Notes to Consolidated Financial Statements.)
The marketplace for the Company's products dictates that many of the
Company's products be shipped very quickly after an order is received. As a
result, the Company is required to maintain significant inventories. Therefore,
inventory obsolescence is a risk for the Company due to frequent engineering
changes, shifting customer demand, the emergence of new industry standards and
rapid technological advances including the introduction by the Company or its
competitors of products embodying new technology. While the Company maintains
valuation allowances for excess and obsolete inventories and management
continues to monitor the adequacy of such valuation allowances, there can be no
assurance that such valuation allowances will be sufficient.
The Company has no debt or off-balance sheet debt. As of December 31, 2003,
the Company has non-cancelable operating lease obligations of approximately
$24.7 million and contractual purchase commitments with various suppliers of
general components and customized inventory components of approximately $3.4
million. As of December 31, 2003, the Company has outstanding guarantees for
payment of foreign operating leases, customs and foreign grants totaling
approximately $3.5 million. (See Note 12 of Notes to Consolidated Financial
Statements.) As of December 31, 2003, the Company did not have any relationships
with any unconsolidated entities or financial partnerships, such as entities
often referred to as structured finance entities, which would have been
established for the purpose of facilitating off-balance sheet arrangements. As
such, the Company is not exposed to any financing, liquidity, market or credit
risk that could arise if the Company were engaged in such relationships.
Market Risk
The Company is exposed to a variety of risks, including foreign currency
fluctuations and changes in the market value of its investments. In the normal
course of business, the Company employs established policies and procedures to
manage its exposure to fluctuations in foreign currency values and changes in
the market value of its investments.
Foreign Currency Hedging Activities. The Company's objective in managing
its exposure to foreign currency exchange rate fluctuations is to reduce the
impact of adverse fluctuations in such exchange rates on the Company's earnings
and cash flow. Accordingly, the Company utilizes purchased foreign currency
option contracts and forward contracts to hedge its exposure on anticipated
transactions and firm commitments. The principal currencies hedged are the euro,
British pound and Japanese yen. The Company monitors its foreign exchange
exposures regularly to ensure the overall effectiveness of its foreign currency
hedge positions. However, there can be no assurance the Company's foreign
currency hedging activities will substantially offset the impact of fluctuations
in currency exchange rates on its results of operations and financial position.
Based on the foreign exchange instruments outstanding at December 31, 2003, an
adverse change (defined as 20% in the Asian currencies and 10% in all other
currencies) in exchange rates would result in a decline in the aggregate fair
market value of all instruments outstanding of approximately $12.0 million.
However, as the Company utilizes foreign currency instruments for hedging
anticipated and firmly committed transactions, management believes that a loss
in fair value for those instruments will be substantially offset by increases in
the value of the underlying exposure. (See Note 9 of Notes to Consolidated
Financial Statements for a description of the Company's financial instruments at
December 31, 2003 and 2002.)
Short-term Investments. The fair value of the Company's investments in
marketable securities at December 31, 2003 was $141.2 million. Investments with
maturities beyond one year are classified as short-term based on their highly
liquid nature and because such marketable securities represent the investment of
cash that is available for current operations. The Company's investment policy
is to manage its investment portfolio to preserve principal and liquidity while
maximizing the return on the investment portfolio through the full investment of
available funds. The Company diversifies the marketable securities portfolio by
investing in multiple types of investment-grade securities. The Company's
investment portfolio is primarily invested in securities with at least an
investment grade rating to minimize interest rate and credit risk as well as to
provide for an immediate source of funds. Based on the Company's investment
portfolio and interest rates at December 31, 2003, a 100 basis point increase or
decrease in interest rates would result in a decrease or increase of
approximately $700,000, respectively, in the fair value of the investment
portfolio. Although changes in interest rates may affect the fair value of the
investment portfolio and cause unrealized gains or losses, such gains or losses
would not be realized unless the investments are sold.
Recently Issued Accounting Pronouncement
In May 2003, the Financial Accounting Standards Board ("FASB") issued
Statement of Financial Accounting Standards ("SFAS") No. 150, Accounting for
Certain Financial Instruments with Characteristics of Both Liabilities and
Equity. This Statement establishes standards for how an issuer classifies and
measures certain financial instruments with characteristics of both liabilities
and equity. It requires that an issuer classify a financial instrument that is
within its scope as a liability (or an asset in some circumstances) because that
financial instrument embodies an obligation of the issuer. This Statement is
effective for financial instruments entered into or modified after May 31, 2003,
and otherwise is effective at the beginning of the first interim period
beginning after June 15, 2003. It is to be implemented by reporting the
cumulative effect of a change in an accounting principle for financial
instruments created before the issuance date of the Statement and still existing
at the beginning of the interim period of adoption. The adoption of SFAS No. 150
did not have a material effect on the Company's financial position or results of
operations.
Critical Accounting Policies
The Company's critical accounting policies are as follows:
o Revenue recognition
Revenue from the sale and licensing of products is generally
recognized on the date the product is shipped to the customer.
Revenue related to the sale of maintenance contracts is deferred
and amortized on a straight-line basis over the service period.
o Estimating allowances, specifically sales returns, the allowance for
doubtful accounts and the valuation allowance for excess and obsolete
inventories
The preparation of financial statements requires the Company to
make estimates and assumptions that affect the reported amount of
assets and liabilities and disclosure of contingent assets and
liabilities at the date of the financial statements and the
reported amounts of revenues and expenses during the reported
period. Specifically, the Company must make estimates of
potential future product returns related to current period
product revenue. Management analyzes historical returns, current
economic trends, and changes in customer demand and acceptance of
its products when evaluating the adequacy of the sales returns
and other allowances. Significant management judgments and
estimates must be made and used in connection with establishing
the sales returns and other allowances in any accounting period.
The allowance for sales returns was $1.1 million at December 31,
2003. Material differences may result in the amount and timing of
the Company's revenue for any period if management made different
judgments or utilized different estimates. Similarly, management
must make estimates of the uncollectability of the Company's
accounts receivables. Management specifically analyzes accounts
receivable and analyzes historical bad debts, customer
concentrations, customer credit-worthiness and current economic
trends when evaluating the adequacy of the allowance for doubtful
accounts. The allowance for doubtful accounts was $2.1 million at
December 31, 2003. The Company writes down its inventory for
estimated obsolescence or unmarketable inventory equal to the
difference between the cost of inventory and estimated market
value based on assumptions of future demand and market
conditions. The valuation allowance for excess and obsolete
inventories was $3.8 million at December 31, 2003. If actual
market conditions are less favorable than those projected by
management, additional inventory write downs may be required.
o Accounting for costs of computer software
The Company capitalizes costs related to the development and
acquisition of certain software products. Capitalization of costs
begins when technological feasibility has been established and
ends when the product is available for general release to
customers. Amortization is computed on an individual product
basis for those products available for market and has been
recognized based on the product's estimated economic life,
generally three years. At each balance sheet date, the
unamortized costs are reviewed by management and reduced to net
realized value when necessary. As of December 31, 2003,
unamortized capitalized software development costs was $14.2
million.
o Valuation of long-lived and intangible assets
The Company assesses the impairment of identifiable intangibles,
long-lived assets and related goodwill whenever events or changes
in circumstances indicate that the carrying value may not be
recoverable. Factors considered important which could trigger an
impairment review include the following:
o Significant underperformance relative to expected historical
or projected future operating results; o Significant changes
in the manner of the Company's use of the acquired assets or
the strategy for the overall business;
o Significant negative industry or economic trends;
o The Company's market capitalization relative to net book
value.
When it is determined that the carrying value of intangibles,
long-lived assets and related goodwill may not be recoverable
based upon the existence of one or more of the above indicators
of impairment, the measurement of any impairment is determined
and the carrying value is reduced as appropriate. As of December
31, 2003, the Company had net goodwill of approximately $10.3
million.
o Accounting for income taxes
The Company accounts for income taxes under the asset and
liability method that requires the recognition of deferred tax
assets and liabilities for the expected future tax consequences
of events that have been recognized in the Company's financial
statements or tax returns. In estimating future tax consequences,
all expected future events are considered other than enactments
of changes in tax laws or rates. Valuation allowances are
established when necessary to reduce deferred tax assets to
amounts which are more likely than not to be realized.
o Loss contingencies
The Company accrues for probable losses from contingencies
including legal defense costs, on an undiscounted basis, in
accordance with SFAS No. 5, Accounting for Loss Contingencies,
when such costs are considered probable of being incurred and are
reasonably estimable. The Company periodically evaluates
available information, both internal and external, relative to
such contingencies and adjusts this accrual as necessary.
Factors Affecting the Company's Business and Prospects
U.S./Global Economic Slowdown. As occurred in recent years, the markets in
which the Company does business could again experience the negative effects of a
slowdown in the U.S. and/or Global economies. Additionally, the Company could be
impacted by the effects of any recurrence of the SARS virus, either through
increased difficulty or costs for the export of products into affected regions,
the import of components used in the Company's products from affected regions,
and/or the effects the virus or costs to contain the virus have on the economy
in regions in which the Company does business, particularly Asia, which has been
the highest growth region of the Company over the past two years. The Company
could also be subject to or impacted by acts of terrorism and/or the effects
that war or continued U.S. military action would have on the U.S. and/or global
economies. The worsening of the U.S. or Global economies could result in reduced
purchasing and capital spending in any of the markets served by the Company
which could have a material adverse effect on the Company's operating results.
Budgets. The Company has established an operating budget for 2004. The
Company's spending for 2004 could exceed this budget due to a number of factors;
including: additional marketing costs for conferences and tradeshows; increased
costs from the over-hiring of product development engineers or other personnel;
increased manufacturing costs resulting from component supply shortages and/or
component price fluctuations and/or additional expenses related to intellectual
property litigation. Any future decreased demand for the Company's products
could result in decreased revenue and could require the Company to revise its
budget and reduce expenditures. Exceeding the established operating budget or
failing to reduce expenditures in response to any decrease in revenue could have
a material adverse effect on the Company's operating results.
Risk of Component Shortages. As has occurred in the past, and as may be
expected to occur in the future, supply shortages of components used in our
products, including sole source components, can result in significant additional
costs and inefficiencies in manufacturing. If the Company is unsuccessful in
resolving any such component shortages, it will experience a significant impact
on the timing of revenue and/or an increase in manufacturing costs, either of
which would have a material adverse impact on the Company's operating results.
Fluctuations in Quarterly Results. The Company's quarterly operating
results have fluctuated in the past and may fluctuate significantly in the
future due to a number of factors, including: changes in the mix of products
sold; the availability and pricing of components from third parties (especially
sole sources); the timing of orders; level of pricing of international sales;
fluctuations in foreign currency exchange rates; the difficulty in maintaining
margins, including the higher margins traditionally achieved in international
sales; and changes in pricing policies by the Company, its competitors or
suppliers. Specifically, if the local currencies in which the Company sells
weaken against the U.S. dollar, and if the local sales prices cannot be raised,
the Company will experience a deterioration of its gross and net profit margins.
If the U.S. dollar strengthens in the future, it could have a material adverse
effect on gross and net profit margins.
As has occurred in the past and as may be expected to occur in the future,
new software products of the Company or new operating systems of third parties
on which the Company's products are based, often contain bugs or errors that can
result in reduced sales and/or cause the Company's support costs to increase,
either of which could have a material adverse impact on the Company's operating
results. Furthermore, the Company has significant revenues from customers in
industries such as semiconductors, automated test equipment, telecommunications,
aerospace, defense and automotive which are cyclical in nature. Downturns in
these industries could have a material adverse effect on the Company's operating
results.
In recent years, the Company's revenues have been characterized by
seasonality, with revenues typically being relatively constant in the first,
second and third quarters, growing in the fourth quarter and being relatively
flat or declining from the fourth quarter of the year to the first quarter of
the following year. The Company believes the seasonality of its revenue results
from the international mix of its revenue and the variability of the budgeting
and purchasing cycles of its customers throughout each international region. In
addition, total operating expenses have in the past tended to be higher in the
second and third quarters of each year, due to recruiting and increased intern
personnel expenses.
New Product Introductions and Market Acceptance. The market for the
Company's products is characterized by rapid technological change, evolving
industry standards, changes in customer needs and frequent new product
introductions, and is therefore highly dependent upon timely product innovation.
The Company's success is dependent on its ability to successfully develop and
introduce new and enhanced products on a timely basis to replace declining
revenues from older products, and on increasing penetration in domestic and
international markets. In the past, the Company has experienced significant
delays between the announcement and the commercial availability of new products.
Any significant delay in releasing new products could have a material adverse
effect on the ultimate success of a product and other related products and could
impede continued sales of predecessor products, any of which could have a
material adverse effect on the Company's operating results. There can be no
assurance that the Company will be able to introduce new products in accordance
with announced release dates, that new products will achieve market acceptance
or that any such acceptance will be sustained for any significant period.
Failure of new products to achieve or sustain market acceptance could have a
material adverse effect on the Company's operating results. Moreover, there can
be no assurance that the Company's international sales will continue at existing
levels or grow in accordance with the Company's efforts to increase foreign
market penetration.
Risks Associated with Increased Development of Web Site. The Company has
devoted significant resources in developing its Web site as a key marketing and
sales tool and expects to continue to do so in the future. There can be no
assurance that the Company will be successful in its attempt to leverage the Web
to increase sales. The Company hosts its Web site internally. Any failure to
successfully maintain the Web site and to protect it from attack could have a
significant adverse impact on the Company's operating results.
Operation in Intensely Competitive Markets. The markets in which the
Company operates are characterized by intense competition from numerous
competitors, some of which are divisions of large corporations having far
greater resources than the Company, and the Company expects to face further
competition from new market entrants in the future. A key competitor is Agilent
Technologies Inc. ("Agilent"). Agilent offers its own line of instrument
controllers, and also offers hardware and software add-on products for
third-party desktop computers and workstations that provide solutions that
directly compete with the Company's virtual instrumentation products. Agilent is
aggressively advertising and marketing products that are competitive with the
Company's products. Because of Agilent's strong position in the instrumentation
business, changes in its marketing strategy or product offerings could have a
material adverse effect on the Company's operating results.
The Company believes its ability to compete successfully depends on a
number of factors both within and outside its control, including: new product
introductions by competitors; product pricing; quality and performance; success
in developing new products; adequate manufacturing capacity and supply of
components and materials; efficiency of manufacturing operations; effectiveness
of sales and marketing resources and strategies; strategic relationships with
other suppliers; timing of new product introductions by the Company; protection
of the Company's products by effective use of intellectual property laws;
general market and economic conditions; and government actions throughout the
world. There can be no assurance that the Company will be able to compete
successfully in the future.
Management Information Systems. During 2003, the Company successfully
upgraded its America's business applications suite to Oracle's latest web-based
release 11i. However, there can be no assurance that the Company will not
experience difficulties with the new system. Difficulties with the system may
interrupt normal Company operations, including the ability to: provide quotes,
process orders, ship products, provide services and support to its customers,
bill and track its customers, fulfill contractual obligations and otherwise run
its business. Any disruptions of the system may have a material adverse effect
on the Company's operating results. In 2003, the Company also continued
development of its web offerings. In 2004, the Company will be focusing on the
upgrade of its European business applications suite to Oracle's latest web-based
release 11i, as well as the management information system for the Company's
current warehouse facilities, and will continue to devote significant resources
to the development of the Company's web offerings. Any failure to successfully
implement these initiatives could have a material adverse effect on the
Company's operating results.
The Company relies on three primary regional centers for its management
information systems. As with any information system, unforeseen issues may arise
that could affect management's ability to receive adequate, accurate and timely
financial information which in turn could inhibit effective and timely
decisions. Furthermore, it is possible that one or more of the Company's three
regional information systems could experience a complete or partial shutdown. If
such a shutdown occurred near the end of a quarter it could impact the Company's
product shipments and revenues, as product distribution is heavily dependent on
the integrated management information systems in each region. Accordingly,
operating results in that quarter would be adversely impacted. The Company is
working to achieve reliable regional management information systems to control
costs and improve its ability to deliver its products in substantially all of
its direct markets worldwide. No assurance can be given that the Company's
efforts will be successful. The failure to receive adequate, accurate and timely
financial information could inhibit management's ability to make effective and
timely decisions.
Risks Associated with International Operations and Foreign Economies.
International sales are subject to inherent risks, including fluctuations in
local economies, difficulties in staffing and managing foreign operations,
greater difficulty in accounts receivable collection, costs and risks of
localizing products for foreign countries, unexpected changes in regulatory
requirements, tariffs and other trade barriers, difficulties in the repatriation
of earnings and the burdens of complying with a wide variety of foreign laws.
The Company must also comply with various import and export regulations. Failure
to comply with these regulations could result in fines and/or termination of
import and export privileges, which could have a material adverse effect on the
Company's operating results. Additionally, the regulatory environment in some
countries is very restrictive as their governments try to protect their local
economy and value of their local currency against the U.S. dollar. Sales made by
the Company's international direct sales offices are denominated in local
currencies, and accordingly, the U.S. dollar equivalent of these sales is
affected by changes in the foreign currency exchange rates. Net of hedging
results, the change in exchange rates had the effect of increasing the Company's
consolidated sales by $16.5 million, or 4.0%, in 2003 compared to 2002. Since
most of the Company's international operating expenses are also incurred in
local currencies, the change in exchange rates had the effect of increasing
operating expenses by $6.5 million for 2003 compared to 2002. If the U.S. dollar
weakens in the future, it could result in the Company having to reduce prices
locally in order for its products to remain competitive in the local
marketplace. If the U.S. dollar strengthens in the future and the Company is
unable to successfully raise its international selling prices, it could have a
materially adverse effect on the Company's operating results.
Expansion of Manufacturing Capacity. During 2001, the Company completed
construction of a second manufacturing facility. This facility is located in
Hungary and became operational in the fourth quarter of 2001. This facility
sources a significant portion of the Company's sales. Currently the Company is
continuing to develop and implement information systems to support the operation
of this facility. This facility and its operation are also subject to risks
associated with a relatively new manufacturing facility and with doing business
internationally, including difficulty in managing manufacturing operations in a
foreign country, difficulty in achieving or maintaining product quality,
interruption to transportation flows for delivery of components to us and
finished goods to our customers, and changes in the country's political or
economic conditions. No assurance can be given that the Company's efforts will
be successful. Accordingly, any failure to deal with these factors could result
in interruption in the facility's operation or delays in expanding its capacity,
either of which could have a material adverse effect on the Company's operating
results.
Income Tax Rate. The Company established a manufacturing facility in
Hungary in 2001. As a result of certain foreign investment incentives available
under Hungarian law, the profit from the Company's Hungarian operation is
currently exempt from income tax. These benefits may not be available in the
future due to changes in Hungary's political condition and/or tax laws. The
reduction or elimination of these foreign investment incentives would result in
the reduction or elimination of certain tax benefits thereby increasing the
Company's future effective income tax rate, which could have a material adverse
effect on the Company's operating results.
The Company receives a substantial income tax benefit from the
extraterritorial income exemption ("ETI") under U.S. law. The ETI rules provide
that a percentage of the profits from products and intangibles exported from the
U.S. are exempt from U.S. tax. This benefit may not be available in the future
as the ETI has been ruled an illegal export subsidy by the World Trade
Organization. The repeal of the ETI would result in the elimination of this tax
benefit thereby increasing the Company's future effective income tax rate, which
could have a material adverse effect on the Company's operating results.
Products Dependent on Certain Industries. Sales of the Company's products
are dependent on customers in certain industries, particularly the
telecommunications, semiconductor, automotive, automated test equipment, defense
and aerospace industries. As experienced in the past, and as may be expected to
occur in the future, downturns characterized by diminished product demand in any
one or more of these industries could result in decreased sales, which could
have a material adverse effect on the Company's operating results.
Dependence on Key Suppliers. The Company's manufacturing processes use
large volumes of high-quality components and subassemblies supplied by outside
sources. Several of these components are available through sole or limited
sources. Sole-source components purchased by the Company include custom
application-specific integrated circuits ("ASICS") and other components. The
Company has in the past experienced delays and quality problems in connection
with sole-source components, and there can be no assurance that these problems
will not recur in the future. Accordingly, the failure to receive sole-source
components from suppliers could result in a material adverse effect on the
Company's revenues and operating results.
Stock-based Compensation Plans. The Company has two active stock-based
compensation plans and one inactive plan. The two active stock-based
compensation plans are the 1994 Incentive Stock Option Plan and the Employee
Stock Purchase Plan. The Company currently adheres to the disclosure only
provisions of SFAS No. 123 as amended by SFAS No. 148, Accounting for
Stock-Based Compensation - Transition and Disclosure, and as such, no
compensation cost has been recognized in the Company's financial statements for
the stock option plan and the stock purchase plan. The Company is currently
monitoring the recent discussions related to possible new regulations regarding
the accounting treatment for stock options. The Company will comply with any
changes in the accounting of stock options required by the FASB and the
Securities and Exchange Commission. If the fair value based method of accounting
for stock options established under SFAS No. 123 were adopted effective January
1, 2003 under the prospective method, the Company estimates it would have
recognized stock option expense of approximately $880,000 in 2003. The impact of
the adoption of the fair value based method of accounting for stock options
established under SFAS No. 123 effective January 1, 2003 under the retroactive
restatement method is reflected in Stock Based Compensation Plans in Note 1 of
Notes to Consolidated Financial Statements.
Provisions in Our Charter Documents and Delaware Law and Our Stockholder
Rights Plan May Delay or Prevent an Acquisition of Us. Our certificate of
incorporation and bylaws and Delaware law contain provisions that could make it
more difficult for a third party to acquire us without the consent of our Board
of Directors. These provisions include a classified Board of Directors,
prohibition of stockholder action by written consent, prohibition of
stockholders to call special meetings and the requirement that the holders of at
least 80% of our shares approve any business combination not otherwise approved
by two-thirds of the Board of Directors. Delaware law also imposes some
restrictions on mergers and other business combinations between us and any
holder of 15% or more of our outstanding common stock. In addition, our Board of
Directors has the right to issue preferred stock without stockholder approval,
which could be used to dilute the stock ownership of a potential hostile
acquirer. Our Board of Directors adopted a new stockholders rights plan on
January 21, 2004, pursuant to which we declared and will pay a dividend of one
right for each share of our common stock outstanding as of May 10, 2004. This
rights plan will replace a similar rights plan that has been in effect since our
initial public offering in 1995. Unless redeemed by us prior to the time the
rights are exercised, upon the occurrence of certain events, the rights will
entitle the holders to receive upon exercise thereof shares of our preferred
stock, or shares of an acquiring entity, having a value equal to twice the
then-current exercise price of the right. The issuance of the rights could have
the effect of delaying or preventing a change of control of us.
Proprietary Rights and Intellectual Property Litigation. The Company's
success depends on its ability to obtain and maintain patents and other
proprietary rights relative to the technologies used in its principal products.
Despite the Company's efforts to protect its proprietary rights, unauthorized
parties may have in the past infringed or violated certain of the Company's
intellectual property rights. The Company from time to time engages in
litigation to protect its intellectual property rights. In monitoring and
policing its intellectual property rights, the Company has been and may be
required to spend significant resources. The Company from time to time may be
notified that it is infringing certain patent or intellectual property rights of
others. There can be no assurance that the SoftWIRE case and/or other existing
litigation, and any other intellectual property litigation initiated in the
future, will not cause significant litigation expense, liability, injunction
against some of the Company's products, and a diversion of management's
attention any of which may have a material adverse effect on the Company's
operating results.
Dependence on Key Management and Technical Personnel. The Company's success
depends to a significant degree upon the continued contributions of its key
management, sales, marketing, research and development and operational
personnel, including Dr. Truchard, the Company's Chairman and Chief Executive
Officer, and other members of senior management and key technical personnel. The
Company has no agreements providing for the employment of any of its key
employees for any fixed term and the Company's key employees may voluntarily
terminate their employment with the Company at any time. The loss of the
services of one or more of the Company's key employees in the future could have
a material adverse affect on the Company's operating results. The Company also
believes its future success will depend upon its ability to attract and retain
additional highly skilled management, technical, marketing, research and
development, and operational personnel with experience in managing large and
rapidly changing companies, as well as training, motivating and supervising
employees. In addition, the recruiting environment for software engineering,
sales and other technical professionals is very competitive. Competition for
qualified software engineers is particularly intense and is likely to result in
increased personnel costs. Failure to attract or retain qualified software
engineers could have an adverse effect on the Company's operating results. The
Company also recruits and employs foreign nationals to achieve its hiring goals
primarily for engineering and software positions. There can be no guarantee that
the Company will continue to be able to recruit foreign nationals at the current
rate. These factors further intensify competition for key personnel, and there
can be no assurance that the Company will be successful in retaining its
existing key personnel or attracting and retaining additional key personnel.
Failure to attract and retain a sufficient number of the Company's key personnel
could have a material adverse effect on the Company's operating results.
Risk of Product Liability Claims. The Company's products are designed to
provide information upon which the users may rely. The Company attempts to
assure the quality and accuracy of the processes contained in its products, and
to limit its product liability exposure through contractual limitations on
liability, including disclaimers in its "shrink wrap" license agreements with
end-users. If future products contain errors that produce incorrect results on
which users rely, customer acceptance of the Company's products could be
adversely affected. Further, the Company could be subject to liability claims
that could have a material adverse effect on the Company's operating results or
financial position. Although the Company maintains liability insurance, there
can be no assurance that such insurance or the contractual provisions used by
the Company to limit its liability will be sufficient.
ITEM 7(a). MARKET RISK
Response to this item is included in "Item 7--Management's Discussion and
Analysis of Financial Condition and Results of Operations--Market Risk" above.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The information required by this item is incorporated by reference to the
Consolidated Financial Statements set forth on pages F-1 through F-22 and S-1
hereof.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
Not applicable.
ITEM 9A. CONTROLS AND PROCEDURES
The Company's Chief Executive Officer and Chief Financial Officer, based on
the evaluation of the Company's disclosure controls and procedures (as defined
in Rules 13a-15(e) and 15d-15(e) of the Securities and Exchange Act of 1934, as
amended) required by paragraph (b) of Rule 13a-15 or Rule 15d-15, as of December
31, 2003, have concluded that the Company's disclosure controls and procedures
were effective to ensure the timely collection, evaluation and disclosure of
information relating to the Company that would potentially be subject to
disclosure under the Securities Exchange Act of 1934, as amended, and the rules
and regulations promulgated thereunder. During the quarter ended December 31,
2003, there were no changes in the Company's internal controls over financial
reporting identified in connection with the evaluation required by paragraph (d)
of the Rule 13a-15 or Rule 15d-15 that has materially affected, or is reasonably
likely to materially affect, the internal controls over financial reporting.
PART III
Certain information required by Part III is omitted from this Report in
that the Registrant intends to file a definitive proxy statement pursuant to
Regulation 14A with the Securities and Exchange Commission (the "Proxy
Statement") relating to its annual meeting of stockholders not later than 120
days after the end of the fiscal year covered by this Report, and such
information is incorporated by reference herein.
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The information concerning the Company's directors required by this Item is
incorporated by reference to the Company's Proxy Statement under the heading
"Election of Directors."
The information concerning the Company's compliance with Section 16(a) of
the Securities Exchange Act of 1934, as amended, required by this Item is
incorporated by reference to the Company's Proxy Statement under the heading
"Section 16(a) Beneficial Ownership Reporting Compliance."
The information concerning the Company's executive officers required by
this Item is incorporated by reference to the Company's Proxy Statement under
the heading "Executive Officers."
The information concerning the Company's code of ethics that applies to the
Company's principal executive officer, the Company's principal financial
officer, the Company's controller, or person performing similar functions
required by this Item is incorporated by reference to the Company's Proxy
Statement under the heading "Code of Ethics."
ITEM 11. EXECUTIVE COMPENSATION
The information required by this Item is incorporated by reference to the
Company's Proxy Statement under the heading "Executive Compensation."
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
From time to time the Company's directors, executive officers and other
insiders may adopt stock trading plans pursuant to Rule 10b5-1(c) promulgated by
the Securities and Exchange Commission under the Securities Exchange Act of
1934, as amended. Starting in the fourth quarter of 2000, Jeffrey L. Kodosky and
James J. Truchard have made periodic sales of the Company's stock pursuant to
such plans.
The information concerning security ownership of certain beneficial owners
and management required by this Item pursuant to Item 403 of Regulation S-K is
incorporated by reference to the Company's Proxy Statement under the heading
"Security Ownership."
The information concerning securities authorized for issuance under equity
compensation plans required by this Item pursuant to Item 201(d) of Regulation
S-K is incorporated by reference to the Company's Proxy Statement under the
heading "Equity Compensation Plans Information."
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
During 2002, the Company irrevocably contributed approximately $3.6 million
to the National Instruments Foundation, a 501(c)(3) charitable foundation
established in 2002 for the purpose of continued promotion of scientific and
engineering research and education at higher education institutions worldwide.
Two of the four directors of the National Instruments Foundation are current
officers of National Instruments.
In addition, the information required by this item is incorporated by
reference to the Company's Proxy Statement under the heading "Certain
Relationships and Related Transactions."
ITEM 14. PRINCIPAL ACCOUNTING FEES AND SERVICES
The information concerning principal accountant fees and services required
by this Item is incorporated by reference to the Company's Proxy Statement under
the heading "Independent Public Accountants."
The information concerning pre-approval policies for audit and non-audit
services required by this Item is incorporated by reference to the Company's
Proxy Statement under the heading "Audit Committee Pre-Approval of Audit and
Permissible Non-Audit Services of Independent Auditors."
PART IV
ITEM 15. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
(a) Documents Filed with Report
1. Financial Statements. See Index to Consolidated Financial Statements
at page F-1 of this Form 10-K and the Financial Statements and Notes
thereto which are included at pages F-2 to F-22 of this Form 10-K.
2. Financial Statement Schedules. See S-1.
3. Exhibits.
Exhibit
Number Description
- ------- -----------
3.1 Certificate of Incorporation, as amended, of the Company.
3.2 Amended and Restated Bylaws of the Company.
4.1* Specimen of Common Stock certificate of the Company.
4.2* Rights Agreement dated as of May 19, 1994, between the Company and The
First National Bank of Boston.
10.1* Form of Indemnification Agreement.
10.2* 1994 Incentive Plan.**
10.3* 1994 Employee Stock Purchase Plan.**
10.4 Agreement Regarding Terms of Employment.***
21.1 Subsidiaries of the Company.
23.0 Consent of Independent Accountants.
24.0 Power of Attorney (included on page 27).
31.1 Certification of Chief Executive Officer Pursuant to 18 U.S.C. Section
1350, as Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of
2002.
31.2 Certification of Chief Financial Officer Pursuant to 18 U.S.C. Section
1350, as Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of
2002.
32.1 Certification of Chief Executive Officer and Chief Financial Officer
Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906
of the Sarbanes-Oxley Act of 2002.
* Incorporated by reference to the Company's Registration Statement on Form
S-1 (Reg. No. 33-88386) declared effective March 13, 1995.
** Management Contract or Compensatory, Plan or Arrangement.
*** Incorporated by reference to the Company's Annual Report on Form 10-K for
the fiscal year ended December 31, 2002.
(b) Reports on Form 8-K
Form 8-K furnished on October 23, 2003, regarding the Company's press
release announcing financial results for the three months ended
September 30, 2003.
(c) Exhibits
See Item 15(a)(3) above.
SIGNATURES
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.
Registrant
NATIONAL INSTRUMENTS CORPORATION
January 26, 2004 BY: /s/ Dr. James J. Truchard
Dr. James J. Truchard
Chairman of the Board and President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Dr. James J. Truchard and Alexander M.
Davern, jointly and severally, his or her attorneys-in-fact, each with the power
of substitution, for him or her in any and all capacities, to sign any
amendments to this Report on Form 10-K, and to file the same, with exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, hereby ratifying and conforming all that each of said
attorneys-in-fact, or his substitute or substitutes, any do or cause to be done
by virtue hereof.
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 the dates indicated.
Signature Capacity in Which Signed Date
--------- ------------------------ ----
/s/ Dr. James J. Truchard Chairman of the Board and
Dr. James J. Truchard President (Principal Executive
Officer) January 26, 2004
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
/s/ Alexander M. Davern Chief Financial Officer
Alexander M. Davern and Treasurer
(Principal Financial and
Accounting Officer) January 26, 2004
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
/s/ Jeffrey L. Kodosky
Jeffrey L. Kodosky Director January 26, 2004
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
/s/ Dr. Donald M. Carlton
Dr. Donald M. Carlton Director January 24, 2004
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
/s/ Ben G. Streetman
Ben G. Streetman Director January 26, 2004
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
/s/ R. Gary Daniels
R. Gary Daniels Director January 25, 2004
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
/s/ Charles J. Roesslein
Charles J. Roesslein Director January 25, 2004
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
/s/ Duy-Loan T. Le
Duy-Loan T. Le Director January 26, 2004
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
NATIONAL INSTRUMENTS CORPORATION
INDEX TO FINANCIAL STATEMENTS
Page
No.
Financial Statements:
Report of Independent Auditors............................................. F-2
Consolidated Balance Sheets as of December 31, 2003 and 2002............... F-3
Consolidated Statements of Income for each of the Three Years
in the period Ended December 31, 2003...................................... F-4
Consolidated Statements of Cash Flows for each of the Three Years
in the period Ended December 31, 2003...................................... F-5
Consolidated Statements of Stockholders' Equity for each of the Three Years
in the period Ended December 31, 2003...................................... F-6
Notes to Consolidated Financial Statements................................. F-7
Financial Statement Schedules:
For each of the Three Years in the period Ended December 31, 2003
Schedule II--Valuation and Qualifying Accounts......................... S-1
All other schedules are omitted because they are not applicable.
Report of Independent Auditors
To the Board of Directors and Stockholders
of National Instruments Corporation
In our opinion, the consolidated financial statements listed in the
accompanying index present fairly, in all material respects, the financial
position of National Instruments Corporation and its subsidiaries at December
31, 2003 and 2002, and the results of their operations and their cash flows for
each of the three years in the period ended December 31, 2003 in conformity with
accounting principles generally accepted in the United States of America. In
addition, in our opinion, the financial statement schedule listed in the
accompanying index presents fairly, in all material respects, the information
set forth therein when read in conjunction with the related consolidated
financial statements. These financial statements and financial statement
schedule are the responsibility of the Company's management; our responsibility
is to express an opinion on these financial statements and financial statement
schedule based on our audits. We conducted our audits of these statements in
accordance with auditing standards generally accepted in the United States of
America, which 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
PricewaterhouseCoopers LLP
Austin, Texas
January 21, 2004
NATIONAL INSTRUMENTS CORPORATION
CONSOLIDATED BALANCE SHEETS
(In thousands, except share data)
December 31,
2003 2002
---------- ----------
ASSETS
Current assets:
Cash and cash equivalents........................... $ 53,446 $ 40,240
Short-term investments.............................. 141,227 113,638
Accounts receivable, net............................ 77,970 62,981
Inventories, net.................................... 38,813 39,247
Prepaid expenses and other current assets........... 9,742 13,756
Deferred income taxes, net.......................... 9,927 8,104
---------- ----------
Total current assets............................. 331,125 277,966
Property and equipment, net............................. 151,612 152,133
Intangibles and other assets............................ 42,414 28,615
---------- ----------
Total assets..................................... $ 525,151 $ 458,714
========== ==========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable.................................... $ 29,567 $ 25,578
Accrued compensation................................ 12,302 9,555
Accrued expenses and other liabilities.............. 24,419 13,507
Income taxes payable................................ -- 6,153
Other taxes payable................................. 9,507 11,720
---------- ----------
Total current liabilities........................ 75,795 66,513
Deferred income taxes, net.............................. 9,904 5,738
---------- ----------
Total liabilities................................ 85,699 72,251
---------- ----------
Commitments and contingencies (Notes 12 and 13) -- --
Stockholders' equity:
Preferred stock: par value $0.01; 5,000,000 shares
authorized; 0 and 0 shares issued and outstanding,
respectively....................................... -- --
Common stock: par value $0.01; 180,000,000 shares
authorized; 52,179,490 and 51,074,607 shares
issued and outstanding, respectively............... 522 511
Additional paid-in capital.......................... 95,331 72,063
Retained earnings................................... 349,994 321,813
Accumulated other comprehensive loss................ (6,395) (7,924)
---------- ----------
Total stockholders' equity....................... 439,452 386,463
---------- ----------
Total liabilities and stockholders' equity....... $ 525,151 $ 458,714
========== ==========
The accompanying notes are an integral part of these consolidated financial
statements.
NATIONAL INSTRUMENTS CORPORATION
CONSOLIDATED STATEMENTS OF INCOME
(In thousands, except share and per share data)
For the Years
Ended December 31,
2003 2002 2001
---------- ---------- ----------
Net sales............................... $ 425,892 $ 390,790 $ 385,275
Cost of sales........................... 111,672 105,086 101,297
---------- ---------- ----------
Gross profit........................ 314,220 285,704 283,978
Operating expenses:
Sales and marketing................. 160,478 145,671 145,555
Research and development............ 70,896 63,964 60,745
General and administrative.......... 42,497 35,714 29,234
---------- ---------- ----------
Total operating expenses......... 273,871 245,349 235,534
---------- ---------- ----------
Operating income.................... 40,349 40,355 48,444
Other income (expense):
Interest income..................... 2,511 3,295 5,837
Interest expense.................... (62) (128) (26)
Net foreign exchange gain (loss).... 1,125 (724) (1,424)
Other income, net................... 568 820 702
---------- ---------- ----------
Income before income taxes.............. 44,491 43,618 53,533
Provision for income taxes.............. 11,123 12,213 17,131
Net income....................... $ 33,368 $ 31,405 $ 36,402
========== ========== ==========
Basic earnings per share................ $ 0.65 $ 0.61 $ 0.72
========== ========== ==========
Weighted average shares
outstanding - basic................... 51,625 51,219 50,910
Diluted earnings per share.............. $ 0.62 $ 0.59 $ 0.68
========== ========== ==========
Weighted average shares
outstanding - diluted................. 53,964 53,411 53,651
========== ========== ==========
Dividend paid per share................. $ 0.10 $ -- $ --
========== ========== ==========
The accompanying notes are an integral part of these consolidated financial
statements.
NATIONAL INSTRUMENTS CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS
(In thousands)
For the Years Ended
December 31,
2003 2002 2001
---------- ---------- ----------
Cash flow from operating activities:
Net income................................................. $ 33,368 $ 31,405 $ 36,402
Adjustments to reconcile net income to net cash provided
by operating activities:
Charges to income not requiring cash outlays:
Depreciation and amortization....................... 24,774 20,748 16,802
Provision (benefit) for deferred income taxes....... 2,329 (207) 822
Tax benefit from stock option plans................. 3,849 1,835 1,665
Changes in operating assets and liabilities:
Decrease (increase) in accounts receivable.......... (14,989) (9,357) 21,080
Decrease (increase) in inventories.................. 434 (6,640) 685
Decrease (increase) in prepaid expenses and other
assets............................................ 4,049 1,823 (9,574)
(Decrease) increase in accounts payable............. 3,989 (3,380) (1,407)
(Decrease) increase in taxes and other liabilities.. 5,293 12,906 (9,322)
---------- ---------- ----------
Net cash provided by operating activities........ 63,096 49,133 57,153
---------- ---------- ----------
Cash flow from investing activities:
Payment for acquisitions, net of cash received............. (6,324) -- --
Capital expenditures....................................... (17,983) (30,817) (65,274)
Capitalization of internally developed software............ (9,717) (5,757) (3,923)
Additions to other intangibles............................. (2,520) (2,993) (980)
Purchases of short-term investments........................ (143,991) (134,434) (149,505)
Sales of short-term investments............................ 116,402 122,218 127,608
---------- ---------- ----------
Net cash used in investing activities............ (64,133) (51,783) (92,074)
---------- ---------- ----------
Cash flow from financing activities:
Proceeds from issuance of common stock..................... 19,430 13,424 12,242
Repurchase of common stock................................. -- (19,623) (3,509)
Dividends paid............................................. (5,187) -- --
---------- ---------- ----------
Net cash provided by (used in) financing
activities..................................... 14,243 (6,199) 8,733
---------- ---------- ----------
Net increase (decrease) in cash and cash equivalents....... 13,206 (8,849) (26,188)
Cash and cash equivalents at beginning of period........... 40,240 49,089 75,277
---------- ---------- ----------
Cash and cash equivalents at end of period................. $ 53,446 $ 40,240 $ 49,089
========== ========== ==========
Cash paid for interest and income taxes
Interest............................................... $ 62 $ 128 $ 26
Income taxes........................................... $ 10,899 $ 5,052 $ 15,814
The accompanying notes are an integral part of these consolidated financial
statements.
NATIONAL INSTRUMENTS CORPORATION
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
(In thousands, except share data)
Accumulated
Common Common Additional Other Total
Stock Stock Paid-In Retained Comprehensive Stockholders'
(Shares) Amount Capital Earnings Income/(Loss Equity
----------- ------ ---------- --------- ------------- -------------
Balance at December 31, 2000...................... 50,634,603 $ 506 $ 69,534 $254,006 $ (3,023) $ 321,023
Net income........................................ 36,402 36,402
Foreign currency translation adjustment
(net of $1,137 tax benefit)..................... (2,417) (2,417)
Unrealized loss on securities available for sale
(net of $0 tax benefit)......................... (167) (167)
Unrealized gain on derivative instruments
(net of $1,449 tax expense)..................... 2,590 2,590
Issuance of common stock under employee plans..... 649,666 6 12,236 12,242
Repurchase and retirement of common stock......... (121,800) (3,509) (3,509)
----------- ------ ---------- --------- ------------- -------------
Balance at December 31, 2001...................... 51,162,469 $ 512 $ 78,261 $290,408 $ (3,017) $ 366,164
Net income........................................ 31,405 31,405
Foreign currency translation adjustment
(net of $1,355 tax expense)..................... 3,483 3,483
Unrealized gain on securities available for sale
(net of $0 tax expense)......................... 147 147
Unrealized loss on derivative instruments
(net of $3,320 tax benefit)..................... (8,537) (8,537)
Issuance of common stock under employee plans..... 725,488 7 13,417 13,424
Repurchase and retirement of common stock......... (813,350) (8) (19,615) (19,623)
----------- ------ ---------- --------- ------------- -------------
Balance at December 31, 2002...................... 51,074,607 $ 511 $ 72,063 $321,813 $ (7,924) $ 386,463
Net income........................................ 33,368 33,368
Foreign currency translation adjustment
(net of $1,666 tax expense)..................... 4,997 4,997
Unrealized loss on securities available for sale
(net of $0 tax benefit)......................... (148) (148)
Unrealized loss on derivative instruments
(net of $1,107 tax benefit)..................... (3,320) (3,320)
Issuance of common stock under employee plans..... 1,080,833 11 22,268 22,279
Issuance of common stock.......................... 24,050 1,000 1,000
Dividends declared................................ (5,187) (5,187)
----------- ------ ---------- --------- ------------- -------------
Balance at December 31, 2003...................... 52,179,490 $ 522 $ 95,331 $349,994 $ (6,395) $ 439,452
The accompanying notes are an integral part of these consolidated financial
statements.
NATIONAL INSTRUMENTS CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Note 1: Operations and summary of significant accounting policies
National Instruments Corporation (the "Company") is a Delaware Corporation.
The Company engages in the design, development, manufacture and marketing of
instrumentation software and specialty computer plug-in cards and accessories
that users combine with industry standard computers, networks and the Internet
to create measurement and automation systems. The Company offers hundreds of
products used to create virtual instrumentation systems for general, commercial,
industrial and scientific applications. The Company's products may be used in
different environments, and consequently, specific application of the Company's
products is determined by the customer and often is not known to the Company.
The Company approaches all markets with essentially the same products, which are
used in a variety of applications from research and development to production
testing and industrial control. The following industries and applications are
served worldwide by the Company: advanced research, automotive, commercial
aerospace, computers and electronics, continuous process manufacturing,
education, government/defense, medical research/pharmaceutical, power/energy,
semiconductors, automated test equipment, telecommunications and others. The
financial statements have been prepared in accordance with accounting principles
generally accepted in the United States of America.
Principles of consolidation
The consolidated financial statements include the accounts of the Company
and its wholly-owned subsidiaries. All significant intercompany accounts and
transactions have been eliminated.
Certain prior year amounts have been reclassified to conform with the 2003
presentation.
Use of estimates
Judgments and estimates by management are required in the preparation of
financial statements to conform with U.S. generally accepted accounting
principles. The estimates and underlying assumptions affect the reported amounts
of assets and liabilities, the disclosure of contingencies at the balance sheet
date and the reported revenues and expenses for the period. Actual results could
differ from those estimates.
Cash and cash equivalents
Cash and cash equivalents include cash and highly liquid investments with
original maturities of three months or less at the date of acquisition.
Short-term investments
Short-term investments consist of corporate, state and municipal securities
with readily determinable fair market values and original maturities in excess
of three months. Investments with maturities beyond one year are classified as
short-term based on their highly liquid nature and because such marketable
securities represent the investment of cash that is available for current
operations. The Company's investments are classified as available-for-sale and
accordingly are reported at fair value, with unrealized gains and losses
reported as other comprehensive income. Unrealized losses are charged against
income when a decline in fair value is determined to be other than temporary.
The specific identification method is used to determine the cost of securities
sold.
Inventories
Inventories are stated at the lower-of-cost or market. Cost is determined
using standard costs, which approximate the first-in first-out (FIFO) method.
Cost includes the acquisition cost of purchased components, parts and
subassemblies, in-bound freight costs, labor and overhead. Market is replacement
cost with respect to raw materials and, is net realizable value with respect to
work in process and finished goods.
Inventory is shown net of valuation allowance for excess and obsolete
inventories of $3.8 million and $3.5 million at December 31, 2003 and 2002,
respectively.
Property and equipment
Property and equipment are recorded at cost. Depreciation is computed using
the straight-line method over the estimated useful lives of the assets, which
range from twenty to forty years for buildings, three to seven years for
purchased internal use software and three to five years for equipment. Leasehold
improvements are depreciated over the shorter of the life of the lease or the
asset.
Intangible assets
The Company has capitalized costs related to the development and
acquisition of certain software products. In accordance with Statement of
Financial Accounting Standards ("SFAS") No. 86, Accounting for the Costs of
Computer Software to Be Sold, Leased or Otherwise Marketed, capitalization of
costs begins when technological feasibility has been established and ends when
the product is available for general release to customers. Technological
feasibility for National Instruments products is established when the product is
available for beta release. Amortization is computed on an individual product
basis for those products available for market and has been recognized based on
the product's estimated economic life, generally three years. Patents are
amortized using the straight-line method over their estimated period of benefit,
generally seventeen years. At each balance sheet date, the unamortized costs for
all intangible assets are reviewed by management and reduced to net realizable
value when necessary.
The excess purchase price over the fair value of assets acquired is
recorded as goodwill. Beginning in 2002 with the adoption of SFAS No. 142,
Goodwill and Other Intangible Assets, goodwill is no longer amortized, but
instead tested for impairment at least annually. Prior to 2002, goodwill was
amortized using the straight-line method over its estimated period of benefit,
ten years.
Concentrations of credit risk
Financial instruments that potentially subject the Company to
concentrations of credit risk consist principally of foreign currency forward
and option contracts, cash and cash equivalents, short-term investments and
trade accounts receivable. In management's opinion, no significant concentration
of credit risk exists for the Company.
The Company's counterparties in its foreign currency forward and option
contracts are major financial institutions. The Company does not anticipate
nonperformance by these counterparties. The Company maintains cash and cash
equivalents with various financial institutions located in many countries
worldwide. The Company's short-term investments are diversified among and
limited to high-quality securities with high credit ratings. Concentration of
credit risk with respect to trade accounts receivable is limited due to the
large number of customers and their dispersion across many countries and
industries. The amount of sales to any individual customer did not exceed 3% of
revenue for the periods presented. The largest trade account receivable from any
individual customer at December 31, 2003 was approximately $628,000.
Revenue recognition
Sales revenue is generally recognized on the date the product is shipped to
the customer. Provision is made for estimated sales returns based on actual
historical experience. Revenue related to the sale of maintenance contracts is
deferred and amortized on a straight-line basis over the service period.
Deferred revenue at December 31, 2003 and 2002 was $8.1 million and $5.4
million, respectively.
Accounts receivable are net of allowances for doubtful accounts and sales
returns of $3.2 million and $3.8 million at December 31, 2003 and 2002,
respectively.
Warranty reserve
The Company offers a one-year limited warranty on most hardware products
and a 90-day warranty on software products, which is included in the sales price
of many of its products. Provision is made for estimated future warranty costs
at the time of sale.
The warranty reserve at December 31, was as follows (in thousands):
Dollar Amount of Liability
--------------------------
2003 2002
---------- ----------
Balance at the beginning of the period.............. $ 715 $ 865
Accruals for warranties issued during the period.... 1,087 988
Settlements made (in cash or in kind) during the
period............................................. (1,087) (1,138)
---------- ----------
Balance at the end of the period.................... $ 715 $ 715
========== ==========
Legal defense costs
The Company accrues for probable losses from contingencies including legal
defense costs, on an undiscounted basis, in accordance with SFAS No. 5,
Accounting for Loss Contingencies, when such costs are considered probable of
being incurred and are reasonably estimable. The Company periodically evaluates
available information, both internal and external, relative to such
contingencies and adjusts this accrual as necessary.
Advertising expense
The Company expenses its costs of advertising as incurred. Advertising
expense for the years ended December 31, 2003, 2002 and 2001 was $35.0 million,
$29.6 million and $30.4 million, respectively.
Foreign currency translation
The functional currency for the Company's international operations is the
applicable local currency. The assets and liabilities of these operations are
translated at the rate of exchange in effect on the balance sheet date; sales
and expenses are translated at average rates. The resultant gains or losses from
translation are included in a separate component of other comprehensive income.
Gains and losses resulting from re-measuring monetary asset and liability
accounts that are denominated in a currency other than a subsidiary's functional
currency are included in determining net income.
Foreign currency hedging instruments
All of the Company's derivative instruments are recognized on the balance
sheet at their fair value. The Company currently uses foreign currency forward
and purchased option contracts to hedge its exposure to material foreign
currency denominated receivables and forecasted foreign currency cash flows.
On the date the derivative contract is entered into, the Company designates
its derivative as either a hedge of the fair value of foreign currency
denominated receivables ("fair-value" hedge) or as a hedge of the variability of
foreign currency cash flows to be received ("cash flow" hedge). Changes in the
fair market value of a fair-value hedge are recorded, along with the loss or
gain on the re-measurement of foreign-currency-denominated receivables, in
current earnings. Changes in the fair value of derivatives that are highly
effective as--and that are designated and qualify as--cash flow hedges under
SFAS No. 133 are recorded in other comprehensive income. These amounts are
subsequently reclassified into earnings in the period during which the hedge
transaction is realized. The Company does not enter into derivative contracts
for speculative purposes.
The Company formally documents all relationships between hedging
instruments and hedged items, as well as its risk-management objective and
strategy for undertaking various hedge transactions. This process includes
linking all derivatives that are designated as fair-value or cash flow hedges to
specific assets and liabilities on the balance sheet or to specific firm
commitments or forecasted transactions. The Company also formally assesses, both
at the hedge's inception and on an ongoing basis, whether the derivatives that
are used to hedge forecasted transactions are highly effective in offsetting
changes in cash flows of hedged items.
The Company prospectively discontinues hedge accounting if (1) it is
determined that the derivative is no longer highly effective in offsetting
changes in the fair value of a hedged item (forecasted transactions); or (2) the
derivative is de-designated as a hedge instrument, because it is unlikely that a
forecasted transaction will occur. When hedge accounting is discontinued, the
derivative is sold and the resulting gains and losses will be recognized
immediately in earnings.
Income taxes
The Company accounts for income taxes under the asset and liability method
as set forth in SFAS No. 109, Accounting for Income Taxes. Deferred tax assets
and liabilities are recognized for the expected tax consequences of temporary
differences between the tax bases of assets and liabilities and their reported
amounts. Valuation allowances are established when necessary to reduce deferred
tax assets to amounts which are more likely than not to be realized.
Earnings per share
Basic earnings per share ("EPS") is computed by dividing net income by the
weighted average number of common shares outstanding during each period. Diluted
EPS is computed by dividing net income by the weighted average number of common
shares and common share equivalents outstanding (if dilutive) during each
period. Common share equivalents include stock options. The number of common
share equivalents outstanding relating to stock options is computed using the
treasury stock method.
The reconciliation of the denominators used to calculate basic EPS and
diluted EPS for the years ended December 31, 2003, 2002 and 2001, respectively,
are as follows (in thousands):
Years Ended December 31,
2003 2002 2001
-------- -------- --------
Weighted average shares outstanding-basic..... 51,625 51,219 50,910
Plus: Common share equivalents
Stock options................................ 2,339 2,192 2,741
-------- -------- --------
Weighted average shares outstanding-diluted... 53,964 53,411 53,651
======== ======== ========
Stock options to acquire 1,454,000, 1,649,000 and 1,394,000 shares for the
years ended December 31, 2003, 2002 and 2001, respectively, were excluded from
the computations of diluted earnings per share because the effect of including
these stock options would have been anti-dilutive.
Stock-based compensation plans
The Company has two active stock-based compensation plans and one inactive
plan. The two active stock-based compensation plans are the 1994 Incentive Stock
Option Plan and the Employee Stock Purchase Plan. The Company follows the
disclosure-only provisions of SFAS No. 123, Accounting for Stock-Based
Compensation as amended by SFAS No.148, Accounting for Stock-Based Compensation
- - Transition and Disclosure. As allowed by SFAS No. 123, the Company continues
to apply the provisions of Accounting Principles Board Opinion No. 25,
Accounting for Stock issued to Employees, and related interpretations in
accounting for its plans. Accordingly, compensation cost for stock options is
measured as the excess, if any, of the quoted market price of the Company's
stock at the date of the grant over the amount an employee must pay to acquire
the stock. No compensation cost has been recognized in the Company's financial
statements for the stock option plan and the stock purchase plan. If
compensation cost for the Company's two active stock-based compensation plans
were determined based on the fair value at the grant date for awards under those
plans consistent with the method established by SFAS No. 123, the Company's net
income and earnings per share would approximate the pro-forma amounts below (in
thousands, except per share data):
Years Ended December 31,
----------------------------------
2003 2002 2001
---------- ---------- ----------
Net income, as reported..................... $ 33,368 $ 31,405 $ 36,402
Stock-based compensation included in
reported net income, net of related
tax effects............................... -- -- --
Total stock-based compensation expense
determined under fair value method for
all awards, net of related tax effects.... (12,290) (14,019) (14,086)
---------- ---------- ----------
Pro-forma net income........................ $ 21,078 $ 17,386 $ 22,316
---------- ---------- ----------
Earnings per share:
Basic - as reported......................... $ 0.65 $ 0.61 $ 0.72
Basic - pro-forma........................... $ 0.41 $ 0.34 $ 0.44
Diluted - as reported....................... $ 0.62 $ 0.59 $ 0.68
Diluted - pro-forma......................... $ 0.39 $ 0.33 $ 0.42
Comprehensive income
The Company follows SFAS No. 130, Reporting Comprehensive Income, which
established standards for reporting comprehensive income and its components. The
Company's other comprehensive income is from foreign currency translation and
unrealized gains and losses on forward and option contracts and securities
available for sale. Total comprehensive income for 2003, 2002 and 2001 was $34.9
million, $26.5 million and $36.4 million, respectively.
Recently issued accounting pronouncement
In May 2003, the Financial Accounting Standards Board ("FASB") issued
Statement of Financial Accounting Standards ("SFAS") No. 150, Accounting for
Certain Financial Instruments with Characteristics of Both Liabilities and
Equity. This Statement establishes standards for how an issuer classifies and
measures certain financial instruments with characteristics of both liabilities
and equity. It requires that an issuer classify a financial instrument that is
within its scope as a liability (or an asset in some circumstances) because that
financial instrument embodies an obligation of the issuer. This Statement is
effective for financial instruments entered into or modified after May 31, 2003,
and otherwise is effective at the beginning of the first interim period
beginning after June 15, 2003. It is to be implemented by reporting the
cumulative effect of a change in an accounting principle for financial
instruments created before the issuance date of the Statement and still existing
at the beginning of the interim period of adoption. The adoption of SFAS No. 150
did not have a material effect on the Company's financial position or results of
operations.
Note 2: Short-term investments
Short-term investments at December 31, 2003 and 2002, consisting of
corporate, state and municipal securities, were acquired at an aggregate cost of
$141.2 million and $113.6 million, respectively. The contractual maturities of
these securities, which are classified as available-for-sale and carried at fair
value, are as follows (in thousands):
December 31,
2003 2002
---------- ----------
Less than 90 days................................. $ 21,265 $ 33,237
90 days to one year............................... 59,831 40,377
One year through two years........................ 35,586 38,876
Two years through three years..................... 24,545 1,148
---------- ----------
$ 141,227 $ 113,638
========== ==========
Note 3: Inventories
Inventories, net consist of the following (in thousands):
December 31,
2003 2002
---------- ----------
Raw materials..................................... $ 17,513 $ 21,127
Work-in-process................................... 1,625 1,324
Finished goods.................................... 19,675 16,796
---------- ----------
$ 38,813 $ 39,247
========== ==========
Note 4: Property and equipment
Property and equipment consist of the following (in thousands):
December 31,
2003 2002
---------- ----------
Land.............................................. $ 5,805 $ 5,850
Buildings......................................... 126,019 121,320
Furniture and equipment........................... 127,495 114,166
---------- ----------
259,319 241,336
Accumulated depreciation.......................... (107,707) (89,203)
---------- ----------
$ 151,612 $ 152,133
========== ==========
Depreciation expense for the years ended December 31, 2003, 2002 and 2001,
was $18.5 million, $16.0 million and $12.6 million, respectively.
Note 5: Intangibles and other assets
Intangibles and other assets, net of accumulated amortization at December
31, 2003 and 2002 are as follows:
December 31,
2003 2002
---------- ----------
Capitalized software development costs and
acquired technology............................... $ 17,234 $ 9,312
Goodwill............................................ 10,280 5,795
Patents............................................. 5,978 5,636
Investment.......................................... 2,500 2,500
Long-term deferred tax asset........................ 2,123 2,109
Deposits and other.................................. 4,299 3,263
---------- ----------
$ 42,414 $ 28,615
At December 31, 2003 and 2002, accumulated amortization on capitalized
software development costs and acquired technology was $22.1 million and $15.6
million, respectively, accumulated amortization on goodwill was $2.3 million and
$1.9 million, respectively, and accumulated amortization on patents was $1.5
million and $1.1 million, respectively. Total amortization costs were $6.2
million, $4.7 million and $4.2 million for the years ended December 31, 2003,
2002 and 2001, respectively. Software development costs capitalized during 2003,
2002 and 2001 were $10.7 million, $5.8 million and $3.9 million, respectively,
and related amortization was $5.6 million, $3.8 million and $3.1 million,
respectively.
In 2001, the FASB issued SFAS No. 142, Goodwill and Other Intangible
Assets. SFAS No. 142, discontinues amortization of acquired goodwill and instead
requires annual impairment testing. The Company adopted SFAS No. 142 effective
January 1, 2002. Adoption of SFAS No. 142 did not have a material impact on the
Company's financial position or results of operations.
Note 6: Income taxes
The components of income before the provision for income taxes are as
follows (in thousands):
Years Ended December 31,
2003 2002 2001
-------- -------- --------
Domestic..................................... $35,717 $38,965 $45,902
Foreign...................................... 8,774 4,653 7,631
-------- -------- --------
$44,491 $43,618 $53,533
======== ======== ========
The provision for income taxes charged to operations is as follows (in
thousands):
Years Ended December 31,
2003 2002 2001
-------- -------- --------
Current tax expense:
U.S. federal.............................. $ 8,434 $ 8,288 $13,007
State..................................... 477 654 1,575
Foreign................................... 698 3,478 1,727
-------- -------- --------
Total current.......................... 9,609 12,420 16,309
-------- -------- --------
Deferred tax expense (benefit):
U.S. federal.............................. 1,023 697 590
State..................................... 39 56 123
Foreign................................... 452 (960) 109
-------- -------- --------
Total deferred......................... 1,514 (207) 822
-------- -------- --------
Total provision........................ $11,123 $12,213 $17,131
======== ======== ========
Deferred tax liabilities (assets) at December 31, 2003 and 2002 as follows
(in thousands):
December 31,
2003 2002
---------- ----------
Capitalized software................................ $ 4,657 $ 3,246
Unrealized gain on derivative instruments........... 1,827 967
Depreciation and amortization....................... 5,910 2,906
Unrealized exchange gain............................ 193 --
Accrued legal expenses.............................. -- 116
Undistributed earnings of foreign subsidiaries...... 203 183
---------- ----------
Gross deferred tax liabilities..................... 12,790 7,418
---------- ----------
Operating loss carryforwards........................ (2,543) (2,465)
Vacation and other accruals......................... (1,785) (1,852)
Inventory valuation and warranty provisions......... (5,945) (3,218)
Doubtful accounts and sales provisions.............. (1,018) (1,184)
Unrealized exchange loss............................ -- (588)
Intercompany profit................................. (2,820) (1,911)
Accrued rent expenses............................... (193) (818)
Accrued legal expenses.............................. (997) --
Other............................................... (563) (473)
---------- ----------
Gross deferred tax assets.......................... (15,864) (12,509)
---------- ----------
Valuation allowance................................. 927 615
---------- ----------
Net deferred tax asset............................. $ (2,147) $ (4,476)
========== ==========
A reconciliation of income taxes at the U.S. federal statutory income tax
rate to the effective tax rate follows:
Years Ended
December 31,
2003 2002 2001
---- ---- ----
U.S. federal statutory tax rate........................... 35% 35% 35%
Foreign sales corporation/ETI benefit..................... (4) (6) (2)
Foreign taxes more (less) than federal statutory rate..... (4) 2 (1)
Research and development tax credit....................... (1) (2) (1)
Tax exempt interest....................................... (2) (2) (2)
State income taxes, net of federal tax benefit............ 1 1 3
---- ---- ----
Effective tax rate........................................ 25% 28% 32%
==== ==== ====
As of December 31, 2003, twenty of the Company's subsidiaries have
available, for income tax purposes, foreign net operating loss carryforwards of
approximately $15.9 million, of which $2.0 million expire during the years 2005
- - 2013 and $13.9 million of which may be carried forward indefinitely. The
Company's tax valuation allowance relates to the realizability of certain of
these foreign net operating loss carryforwards. As a result of certain foreign
investment incentives available under Hungarian law, the profit from the
Company's Hungarian operation is currently exempt from income tax.
The Company has not provided for U.S. federal income and foreign
withholding taxes on approximately $17.4 million of certain non-U.S.
subsidiaries' undistributed earnings as of December 31, 2003. These earnings
would become subject to taxes of approximately $5.0 million, if they were
actually or deemed to be remitted to the parent company as dividends or if the
Company should sell its stock in these subsidiaries. The Company currently
intends to reinvest indefinitely these undistributed earnings.
Note 7: Stockholders' equity
Stock repurchases and retirements
In 1998, the Company's Board of Directors approved the repurchase and
retirement of shares of common stock to reduce the dilutive effect of the
Company's stock plans. Pursuant to this repurchase program, the Company has
repurchased and retired a total of 935,150 shares for approximately $23.1
million.
Stock option plans
The stockholders of the Company approved the 1994 Incentive Stock Option
Plan on May 9, 1994. At the time of approval, 6,075,000 shares of the Company's
common stock were reserved for issuance under this plan. In 1997, an additional
4,725,000 shares of the Company's common stock were reserved for issuance under
this plan. The 1994 Plan, administered by the Compensation Committee of the
Board of Directors, provides for granting of incentive awards in the form of
stock options to directors, executive officers and employees of the Company and
its subsidiaries. Awards under the plan must be granted within ten years of the
effective date of the 1994 Plan. Options granted may be either incentive stock
options within the meaning of Section 422 of the Internal Revenue Code or
nonqualified options. The right to purchase shares vests over a five to ten-year
period, beginning on the date of grant. Stock options must be exercised within
ten years from date of grant. Stock options are issued at market price at the
grant date. Shares available for grant at December 31, 2003 were 1,606,326.
Transactions under all plans are summarized as follows:
Weighted
Number of average
shares under exercise
option price
------------ --------
Outstanding at December 31, 2000.................... 6,314,514 $ 22.40
Exercised....................................... (388,474) 11.52
Canceled........................................ (188,255) 33.39
Granted......................................... 1,507,998 32.13
------------ --------
Outstanding at December 31, 2001.................... 7,245,783 $ 24.72
Exercised....................................... (386,012) 11.42
Canceled........................................ (175,303) 35.99
Granted......................................... 317,900 36.25
------------ --------
Outstanding at December 31, 2002.................... 7,002,368 $ 25.70
Exercised....................................... (747,993) 15.43
Canceled........................................ (208,021) 35.32
Granted......................................... 450,650 33.24
------------ --------
Outstanding at December 31, 2003.................... 6,497,004 $ 27.10
Options exercisable at December 31:
2001............................................ 3,765,856 $ 17.82
2002............................................ 4,202,831 20.48
2003............................................ 4,137,003 22.92
Number of Weighted
shares under average
option fair value
------------ ----------
Weighted average, grant date fair value of options
granted during:
2001............................................ 1,507,998 $ 20.03
2002............................................ 317,900 21.34
2003............................................ 450,650 18.05
December 31, 2003
------------------------------------------------------------------
Options Outstanding Options Exercisable
----------------------------------- ----------------------------
Weighted
Number Weighted average Number
outstanding average remaining exercisable Weighted
as of exercise contractual as of average
Exercise price 12/31/2003 price life 12/31/2003 exercise price
-------------- ----------- -------- ----------- ----------- --------------
$ 6.44 - $ 8.89............. 860,244 $ 8.21 2.0 856,792 $ 8.20
9.78 - 14.44............. 934,222 $14.35 3.0 842,464 $ 14.36
14.83 - 22.96............ 1,439,080 $21.03 5.0 1,183,902 $ 21.09
23.33 - 31.56............ 1,527,282 $30.84 8.0 461,972 $ 30.85
31.88 - 51.56............ 1,736,176 $45.05 7.0 791,873 $ 46.07
----------- -----------
6,497,004 $27.10 6.0 4,137,003 $ 22.92
=========== ===========
The fair value of each option grant is estimated on the date of grant using
the Black-Scholes option-pricing model with the following weighted-average
assumptions:
2003 2002 2001
---------- ---------- ----------
Dividend expense yield................ 0.1% 0% 0%
Expected life......................... 5 years 5 years 5 years
Expected volatility................... 55.8% 60.2% 59.0%
Risk-free interest rate............... 2.7% 4.5% 4.7%
Employee stock purchase plan
The Company's employee stock purchase plan permits substantially all
domestic employees and employees of designated subsidiaries to acquire the
Company's common stock at a purchase price of 85% of the lower of the market
price at the beginning or the end of the participation period. The semi-annual
periods begin on October 1 and April 1 of each year. Employees may designate up
to 15% of their compensation for the purchase of common stock. Common stock
reserved for future employee purchases aggregated 1,471,518 shares at December
31, 2003. Shares issued under this plan were 353,810 in 2003. The weighted
average fair value of the employees' purchase rights, as shown below was
estimated using the Black-Scholes model with the following assumptions:
2003 2002 2001
---------- ---------- ----------
Dividend expense yield................ 0.1% 0% 0%
Expected life......................... 6 months 6 months 6 months
Expected volatility................... 33% 49% 63%
Risk-free interest rate............... 1.1% 2.3% 5.1%
Weighted average, grant date fair value of purchase rights granted under
the Employee Stock Purchase Plan:
Weighted
Number average
of shares fair value
--------- ----------
2001....................................... 290,082 $ 9.62
2002....................................... 323,265 8.22
2003....................................... 259,909 9.20
Authorized Preferred Stock and Preferred Stock Purchase Rights Plan
National Instruments has 5,000,000 authorized shares of preferred stock. On
January 21, 2004, the Board of Directors of National Instruments designated
500,000 of these shares as Series A Participating Preferred Stock in conjunction
with its adoption of a Preferred Stock Rights Agreement (the "Rights Agreement")
and declaration of a dividend of one preferred share purchase right (a "Right")
for each share of common stock outstanding held as of May 10, 2004 or issued
thereafter. Each Right will entitle its holder to purchase one one-thousandth of
a share of National Instruments' Series A Participating Preferred Stock at an
exercise price of $200 (after giving effect to the 3 for 2 stock split in the
form of a stock dividend declared by the Board of Directors of the Company on
January 21, 2004), subject to adjustment, under certain circumstances. The
Rights Agreement was not adopted in response to any effort to acquire control of
National Instruments.
The Rights only become exercisable in certain limited circumstances
following the tenth day after a person or group announces acquisitions of or
tender offers for 20% or more of National Instruments' common stock. In
addition, if an acquirer (subject to certain exclusions for certain current
stockholders of National Instruments, an "Acquiring Person") obtains 20% or more
of National Instruments' common stock, then each Right (other than the Rights
owned by an Acquiring Person or its affiliates) will entitle the holder to
purchase, for the exercise price, shares of National Instruments' common stock
having a value equal to two times the exercise price. Under certain
circumstances, the National Instruments' Board of Directors may redeem the
Rights, in whole, but not in part, at a purchase price of $0.01 per Right. The
Rights have no voting privileges and are attached to and automatically traded
with National Instruments common stock until the occurrence of specified trigger
events. The Rights will expire on the earlier of May 10, 2014 or the exchange or
redemption of the Rights.
Note 8: Employee retirement plan
The Company has a defined contribution retirement plan pursuant to Section
401(k) of the Internal Revenue Code. Substantially all domestic employees with
at least thirty days of continuous service are eligible to participate and may
contribute up to 15% of their compensation. The Board of Directors has elected
to make matching contributions equal to 50% of employee contributions, which may
be applied, to a maximum of 6% of each participant's compensation. Employees are
eligible for the Company's matching contributions after one year of continuous
service. Company contributions vest immediately. The Company's policy prohibits
participants from direct investment in shares of common stock of the Company.
Company contributions charged to expense were $2.0 million, $1.8 million and
$1.6 million in 2003, 2002 and 2001, respectively.
Note 9: Financial instruments
Fair value of financial instruments
The estimated fair value amounts disclosed below have been determined by
the Company using available market information and valuation methodologies
described below. For certain financial instruments of the Company, including
cash and cash equivalents, accounts receivable, accounts payable and accrued
liabilities, the carrying amount approximates fair value due to the short-term
maturity of these instruments. The estimated fair values of the other assets
(liabilities) of the Company's remaining financial instruments at December 31,
2003 and 2002 are as follows (in thousands):
December 31,
2003 2002
-------------------- --------------------
Carrying Fair Carrying Fair
Amount Value Amount Value
--------- --------- --------- ---------
Short-term investments............... $141,227 $141,227 $113,638 $113,638
Other assets/liabilities:
Forward contracts................ (5,552) (5,552) (2,685) (2,685)
Purchased options................ (35) (35) 694 694
The fair values of short-term investments and foreign currency forward and
purchased option contracts were estimated based upon quotes from brokers as of
the applicable balance sheet date.
Note 10: Derivative instruments and hedging activities
The Company has operations in 40 countries. Approximately 53% of the
Company's revenues are generated outside North America. The Company's activities
expose it to a variety of market risks, including the effects of changes in
foreign-currency exchange rates and interest rates. These financial risks are
monitored and managed by the Company as an integral part of its overall risk
management program.
The Company maintains a foreign-currency risk management strategy that uses
derivative instruments (foreign currency forward and purchased options
contracts) to protect its interests from fluctuations in earnings and cash flows
caused by the volatility in currency exchange rates. Movements in
foreign-currency exchange rates pose a risk to the Company's operations and
competitive position, since exchange rate changes may affect the profitability
and cash flow of the Company, and business and/or pricing strategies of non-U.S.
based competitors.
Foreign currency fair value and cash flow hedges
The Company's foreign sales are denominated in the customers' local
currency. The Company purchases foreign currency forward and purchased options
contracts as hedges of forecasted sales that are denominated in foreign
currencies and as hedges of foreign currency denominated receivables. These
contracts are entered into to protect against the risk that the eventual
dollar-net-cash inflows resulting from such sales or firm commitments will be
adversely affected by changes in exchange rates.
The Company held forward contracts with notional amounts totaling $27.7
million and $24.1 million at December 31, 2003 and 2002, respectively, that were
designated as foreign currency fair value hedges of the Company's foreign
denominated receivables. The fair value of these contracts, which are for 90-day
periods, is a liability of $1.6 million at December 31, 2003, and a liability of
$1.3 million at December 31, 2002. The Company recorded a net loss of $4.6
million and $4.9 million for fair value hedges for the years ended December 31,
2003 and 2002, respectively, and a net gain of $2.0 million for fair value
hedges for the year ended December 31, 2001, which was recorded in "Foreign
Currency Gain(Loss)." The Company hedges up to 90% of its outstanding foreign
denominated receivables.
The Company held forward contracts with a notional amount of $48.6 million
and $48.1 million and option contracts with notional amounts totaling $42.4
million and $86.4 million at December 31, 2003 and 2002, respectively, that were
designated as foreign currency cash flow hedges related to the Company's
anticipated sales transactions. The fair value of these contracts, which are for
terms up to twenty-four months, is a liability of $4.0 million and $2.8 million
at December 31, 2003 and 2002, respectively, and a net unrealized deferred loss
of $4.0 million and $2.8 million at December 31, 2003 and 2002, respectively,
recorded in "Accumulated Other Comprehensive Income." The Company hedges up to
100% of anticipated foreign currency denominated cash inflows for the following
1 to 36 months. The Company recorded a net loss of $6.9 million and net gains of
$3.6 million and $4.4 million for cash flow hedges for the year ended December
31, 2003, 2002 and 2001, respectively, which was included in "Net Revenue."
As of December 31, 2003, $3.4 million of deferred losses on cash flow
hedges recorded in "Accumulated Other Comprehensive Income" are expected to be
reclassified to earnings during the next twelve months. The actual foreign sales
expected to occur over the next twelve months will necessitate the reclassifying
to earnings of these derivative losses.
Hedge ineffectiveness of a foreign currency option contract designated as a
cash flow hedge is measured by comparing the hedging instrument's cumulative
change in fair value from inception to maturity to the forecasted transaction's
terminal value. No amounts were excluded from the assessment of hedge
effectiveness for the years ended December 31, 2003 and 2002.
Note 11: Segment information
In accordance with SFAS No. 131, Disclosures about Segments of an
Enterprise and Related Information, the Company determines segments using the
management approach. The management approach designates the internal
organization that is used by management for making operating decisions and
assessing performance as the source of the Company's reportable segments. It
also requires disclosures about products and services, geographic areas and
major customers.
While the Company sells its products to many different markets, its
management has chosen to organize the Company by geographic areas, and as a
result has determined that it has one reportable segment. Substantially all of
the interest income, interest expense, depreciation and amortization is recorded
in North America. Net sales, operating income and identifiable assets,
classified by the major geographic areas in which the Company operates, are as
follows (in thousands):
Years Ended December 31,
2003 2002 2001
---------- ---------- ----------
Net sales:
North America:
Unaffiliated customer sales......... $ 200,210 $ 195,770 $ 195,842
Geographic transfers................ 63,483 58,330 58,041
---------- ---------- ----------
263,693 254,100 253,883
---------- ---------- ----------
Europe:
Unaffiliated customer sales......... 137,761 122,800 128,523
Geographic transfers................ 50,301 35,027 6,981
---------- ---------- ----------
188,062 157,827 135,504
---------- ---------- ----------
Asia Pacific:
Unaffiliated customer sales......... 87,921 72,220 60,910
---------- ---------- ----------
Eliminations........................... (113,784) (93,357) (65,022)
---------- ---------- ----------
$ 425,892 $ 390,790 $ 385,275
========== ========== ==========
Years Ended December 31,
2003 2002 2001
---------- ---------- ----------
Operating income:
North America.............................. $ 31,649 $ 31,031 $ 40,624
Europe..................................... 44,428 37,789 41,229
Asia Pacific............................... 35,168 35,499 27,336
Unallocated:
Research and development expenses.......... (70,896) (63,964) (60,745)
---------- ---------- ----------
$ 40,349 $ 40,355 $ 48,444
========== ========== ==========
December 31,
2003 2002
---------- ----------
Identifiable assets:
North America.............................. $ 420,082 $ 373,066
Europe..................................... 77,963 63,600
Asia Pacific............................... 27,106 22,048
---------- ----------
$ 525,151 $ 458,714
========== ==========
Total sales outside the United States for 2003, 2002 and 2001 were $244.9
million, $212.7 million and $189.8 million, respectively.
Note 12: Commitments, contingencies and leases
The Company has commitments under non-cancelable operating leases primarily
for office facilities and equipment. Future minimum lease payments as of
December 31, 2003, for each of the next five years are as follows (in
thousands):
2004................................ $ 7,113
2005................................ 5,387
2006................................ 3,202
2007................................ 2,089
2008................................ 881
Thereafter.......................... 6,014
-------
$24,686
During 2002, the Company and Trilogy Software ("Trilogy") settled a dispute
regarding Trilogy's buy-out of the lease of the Company's Millenium office
building which resulted in a gain of approximately $6.0 million from lease
termination. As a result of additional facility lease consolidation, the Company
incurred lease termination costs of approximately $2.4 million in 2002. These
amounts were included in general and administrative expenses.
Rent expense under operating leases was approximately $6.3 million, $6.3
million and $5.4 million for the years ended December 31, 2003, 2002 and 2001,
respectively.
As of December 31, 2003, the Company has non-cancelable purchase
commitments with various suppliers of customized inventory and inventory
components totaling approximately $3.4 million over the next twelve months.
As of December 31, 2003, the Company has outstanding guarantees for payment
of foreign operating leases, customs and foreign grants totaling approximately
$3.5 million.
Note 13: Litigation
The Company has filed two complaints against The MathWorks, Inc.
("Defendant") for patent infringement. In both complaints, the Company claimed
the Defendant infringes certain of its U.S. patents and the Defendant challenged
the validity and enforceability of those patents and asserts that it does not
infringe the claims of those patents.
The first complaint was filed on January 25, 2001 in the U.S. District
Court, Eastern District of Texas (Marshall Division). On January 30, 2003, the
jury found infringement by the Defendant of three of the patents involved and
awarded the Company specified damages. On June 23, 2003, the Court entered final
judgement in favor of the Company in an amount of approximately $4 million and
entered an injunction against Defendant's sale of its Simulink and related
products. The Court stayed the injunction pending appeal of the case and
required the Defendant to pay a specified royalty on its U.S. sales of the same
products during the pendency of appeal. The initial judgement and the royalties
on the sales of infringing products through December 31, 2003 total $4.9 million
and are escrowed. On July 22, 2003, Defendant filed its Notice of Appeal and the
case is currently pending on appeal before the U.S. Court of Appeals for the
Federal Circuit. The final judgement has not been recorded in the financial
statements of the Company pending the disposition of the appeal.
The second complaint was filed October 21, 2002, also in the U.S. District
Court, Eastern District of Texas (Marshall Division) and on August 27, 2003, the
complaint was dismissed by agreement of the parties.
On January 15, 2003, SoftWIRE Technology, LLC ("SoftWIRE") and Measurement
Computing Corporation ("MCC") filed a complaint against the Company in the U.S.
District Court for the District of Massachusetts asking the court to declare
that SoftWIRE does not infringe certain of the Company's U.S. patents and that
such patents are invalid and unenforceable. On February 21, 2003, the Company
filed a complaint against SoftWIRE and MCC in the U.S. District Court, Eastern
District of Texas (Marshall Division) claiming that both SoftWIRE and MCC
infringe the same and certain other of the Company's U.S. patents. SoftWIRE and
MCC challenge the validity and enforceability of these patents and assert that
they do not infringe any of these patents. In the Eastern District action, the
Company seeks monetary damages and injunction of the sale of certain products of
SoftWIRE and MCC as well as attorney's fees and costs. By order of the Court,
the Eastern District action was transferred to the U.S. District Court for the
District of Massachusetts on May 9, 2003, and has been consolidated with the
previously-filed SoftWIRE action, which also includes counterclaims by the
Company that are the same in substance as the Company's claims in the Eastern
District action. On June 12, 2003, SoftWIRE moved for leave to amend its
complaint in order to allege that the Company infringes two U.S. patents that
SoftWIRE acquired by purchase on May 23, 2003. On November 5, 2003, the Court
granted SoftWIRE's motion to amend, thereby adding SoftWIRE's two patents to the
litigation. With respect to those two SoftWIRE patents, SoftWIRE seeks monetary
damages and injunction of the sale of certain products of the Company as well as
attorney's fees and costs. The Company challenges the validity, enforceability
and alleged infringement of those patents and intends to vigorously defend
against SoftWIRE's claims. Discovery in the litigation is underway. During the
fourth quarter of 2003, the Company accrued $3.8 million related to its probable
loss from this contingency, which consists solely of anticipated patent defense
costs that are probable of being incurred. However, the outcome of any
litigation is inherently uncertain and there can be no assurance as to the
ultimate outcome of this matter or any other litigation. The Company did not
make any charges against this accrual during calendar 2003.
Note 14: Related party transactions
During 2002, the Company contributed approximately $3.6 million to the
National Instruments Foundation, a 501(c)(3) charitable foundation established
in 2002 for the purpose of continued promotion of scientific and engineering
research and education at higher education institutions worldwide. This
contribution was recorded as general and administrative expense in 2002. Two of
the four directors of the National Instruments Foundation are current officers
of National Instruments.
Note 15: Quarterly results (unaudited)
The following quarterly results have been derived from unaudited
consolidated financial statements that, in the opinion of management, reflect
all adjustments (consisting only of normal recurring adjustments) necessary for
a fair presentation of such quarterly information. The operating results for any
quarter are not necessarily indicative of the results to be expected for any
future period. The unaudited quarterly financial data for each of the eight
quarters in the two years ended December 31, 2003 are as follows (in thousands,
except per share data):
Three Months Ended
--------------------------------------
Mar. 31, Jun. 30, Sep. 30, Dec. 31,
2003 2003 2003 2003
-------- -------- -------- --------
Net sales............................ $ 99,173 $100,165 $104,644 $121,910
Gross profit......................... 73,160 73,015 77,210 90,835
Operating income..................... 8,324 8,814 9,758 13,453
Net income........................... 6,763 7,404 7,954 11,248
Basic earnings per share............. $ 0.13 $ 0.14 $ 0.15 $ 0.22
Weighted average shares
outstanding-basic................... 51,156 51,490 51,532 51,869
Diluted earnings per share........... $ 0.13 $ 0.14 $ 0.15 $ 0.21
Weighted average shares
outstanding-diluted................. 53,273 53,633 53,932 54,408
Dividends declared per share......... $ -- $ -- $ 0.05 $ 0.05
Three Months Ended
--------------------------------------
Mar. 31, Jun. 30, Sep. 30, Dec. 31,
2002 2002 2002 2002
-------- -------- -------- --------
Net sales............................ $ 94,739 $ 93,505 $ 96,020 $106,525
Gross profit......................... 69,381 66,902 70,824 78,597
Operating income..................... 10,255 8,760 8,606 12,735
Net income........................... 7,367 7,388 6,685 9,965
Basic earnings per share............. $ 0.14 $ 0.14 $ 0.13 $ 0.20
Weighted average shares
outstanding-basic................... 51,205 51,449 51,195 51,013
Diluted earnings per share........... $ 0.14 $ 0.14 $ 0.13 $ 0.19
Weighted average shares
outstanding-diluted................. 53,953 53,974 52,906 52,875
Note 16: Subsequent Events
The Company's Board of Directors declared on January 21, 2004, a quarterly cash
dividend of $0.05 per common share, payable February 20, 2004, to shareholders
of record February 5, 2004.
The Company's Board of Directors declared on January 21, 2004, a stock split
effected in the form of a dividend of one share of common stock for each two
shares of common stock outstanding. The dividend is payable on or about February
20, 2004 to holders of record as of the close of business on February 5, 2004.
SCHEDULE II
NATIONAL INSTRUMENTS CORPORATION
VALUATION AND QUALIFYING ACCOUNTS
(In thousands)
Allowance for doubtful accounts:
Balance at Provision for Write-Offs Balance at
Beginning Bad Debt Charged to End of
Year Description of Period Expense Allowances Period
- ---- ----------- --------- ------------- ---------- ----------
2001... Allowance for doubtful accounts $ 4,516 $ 1,579 $ 1,175 $ 4,920
2002... Allowance for doubtful accounts 4,920 (840) 329 3,751
2003... Allowance for doubtful accounts 3,751 501 1,008 3,244
Valuation allowances for excess and obsolete inventories:
Balance at Provision Write-Offs Balance at
Beginning Charged to Charged to End of
Year Description of Period Cost of Sales Allowances Period
- ---- ----------- --------- ------------- ---------- ----------
2001... Valuation allowances for excess
and obsolete inventories $ 2,466 $ 1,082 $ 682 $ 2,866
2002... Valuation allowances for excess
and obsolete inventories 2,866 1,818 1,212 3,472
2003... Valuation allowances for excess
and obsolete inventories 3,472 766 391 3,847
EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
NATIONAL INSTRUMENTS CORPORATION
I, the undersigned natural person acting as an incorporator of a
corporation (hereinafter called the "Corporation") under the General Corporation
Law of the State of Delaware, do hereby adopt the following Certificate of
Incorporation for the Corporation:
FIRST: The name of the Corporation is National Instruments Corporation.
SECOND: The registered office of the Corporation in the State of Delaware
is located at Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, County of New Castle. The name of the registered agent of the
Corporation at such address is The Corporation Trust Company.
THIRD: The purpose for which the Corporation is organized is to engage in
any and all lawful acts and activity for which corporations may be organized
under the General Corporation Law of Delaware. The Corporation will have
perpetual existence.
FOURTH: The total number of shares of stock which the Corporation shall
have authority to issue is sixty-five million (65,000,000) shares of capital
stock, classified as (i) five million (5,000,000) shares of preferred stock, par
value $.01 per share ("Preferred Stock"), and (ii) sixty million (60,000,000)
shares of common stock, par value $.01 per share ("Common Stock").
The designations and the powers, preferences, rights, qualifications,
limitations, and restrictions of the Preferred Stock and Common Stock are as
follows:
1. Provisions Relating to the Preferred Stock.
(a) The Preferred Stock may be issued from time to time in one or more
classes or series, the shares of each class or series to have such
designations and powers, preferences, and rights, and qualifications,
limitations, and restrictions thereof, as are stated and expressed herein
and in the resolution or resolutions providing for the issue of such class
or series adopted by the board of directors of the Corporation as hereafter
prescribed.
(b) Authority is hereby expressly granted to and vested in the board
of directors of the Corporation to authorize the issuance of the Preferred
Stock from time to time in one or more classes or series, and with respect
to each class or series of the Preferred Stock, to fix and state by the
resolution or resolutions from time to time adopted providing for the
issuance thereof the following:
i. whether or not the class or series is to have voting rights,
full, special, or limited, or is to be without voting rights, and
whether or not such class or series is to be entitled to vote as a
separate class either alone or together with the holders of one or
more other classes or series of stock;
ii. the number of shares to constitute the class or series and
the designations thereof;
iii. the preferences, and relative, participating, optional, or
other special rights, if any, and the qualifications, limitations, or
restrictions thereof, if any, with respect to any class or series;
iv. whether or not the shares of any class or series shall be
redeemable at the option of the Corporation or the holders thereof or
upon the happening of any specified event, and, if redeemable, the
redemption price or prices (which may be payable in the form of cash,
notes, securities, or other property), and the time or times at which,
the terms and conditions upon which, such shares shall be redeemable
and the manner of redemption;
v. whether or not the shares of a class or series shall be
subject to the operation of retirement or sinking funds to be applied
to the purchase or redemption of such shares for retirement, and, if
such retirement or sinking fund or funds are to be established, the
annual amount thereof, and the terms and provisions relative to the
operation thereof;
vi. the dividend rate, whether dividends are payable in cash,
stock of the Corporation, or other property, the conditions upon which
and the times when such dividends are payable, the preference to or
the relation to the payment of dividends payable on any other class or
classes or series of stock, whether or not such dividends shall be
cumulative or noncumulative, and if cumulative, the date or dates from
which such dividends shall accumulate;
vii. the preferences, if any, and the amounts thereof which the
holders of any class or series thereof shall be entitled to receive
upon the voluntary or involuntary dissolution of, or upon any
distribution of the assets of, the Corporation;
viii. whether or not the shares of any class or series, at the
option of the Corporation or the holder thereof or upon the happening
of any specified event, shall be convertible into or exchangeable for,
the shares of any other class or classes or of any other series of the
same or any other class or classes of stock, securities, or other
property of the Corporation and the conversion price or prices or
ratio or ratios or the rate or rates at which such exchange may be
made, with such adjustments, if any, as shall be stated and expressed
or provided for in such resolution or resolutions; and
ix. such other special rights and protective provisions with
respect to any class or series as may to the board of directors of the
Corporation seem advisable.
(c) The shares of each class or series of the Preferred Stock may vary
from the shares of any other class or series thereof in any or all of the
foregoing respects. The board of directors of the Corporation may increase
the number of shares of the Preferred Stock designated for any existing
class or series by a resolution adding to such class or series authorized
and unissued shares of the Preferred Stock not designated for any other
class or series. The board of directors of the Corporation may decrease the
number of shares of the Preferred Stock designated for any existing class
or series by a resolution subtracting from such class or series authorized
and unissued shares of the Preferred Stock designated for such existing
class or series, and the shares so subtracted shall become authorized,
unissued, and undesignated shares of the Preferred Stock.
2. Provisions Relating to the Common Stock.
(a) Each share of Common Stock of the Corporation shall have identical
rights and privileges in every respect. The holders of shares of Common
Stock shall be entitled to vote upon all manners submitted to a vote of the
stockholders of the Corporation and shall be entitled to one vote for each
share of Common Stock held.
(b) Subject to the prior rights and preferences, if any, applicable to
shares of the Preferred Stock or any series thereof, the holders of shares
of the Common Stock shall be entitled to receive such dividends (payable in
cash, stock, or otherwise) as may be declared thereon by the board of
directors at any time and from time to time out of any funds of the
Corporation legally available therefor.
(c) In the event of any voluntary or involuntary liquidation,
dissolution, or winding-up of the Corporation, after distribution in full
of the preferential amounts, if any, to be distributed to the holders of
shares of the Preferred Stock or any series thereof, the holders of shares
of the Common Stock shall be entitled to receive all of the remaining
assets of the Corporation available for distribution to its stockholders,
ratably in proportion to the number of shares of the Common Stock held by
them. A liquidation, dissolution, or winding-up of the Corporation, as such
terms are used in this paragraph (c), shall not be deemed to be occasioned
by or to include any consolidation or merger of the Corporation with or
into any other corporation or corporations or other entity or a sale,
lease, exchange, or conveyance of all or a part of the assets of the
Corporation.
3. General.
(a) Subject to the foregoing provisions of this Certificate of
Incorporation, the Corporation may issue shares of its Preferred Stock and
Common Stock from time to time for such consideration (not less than the
par value thereof) as may be fixed by the board of directors of the
Corporation, which is expressly authorized to fix the same in its absolute
and uncontrolled discretion subject to the foregoing conditions. Shares so
issued for which the consideration shall have been paid or delivered to the
Corporation shall be deemed fully paid stock and shall not be liable to any
further call or assessment thereon, and the holders of such shares shall
not be liable for any further payments in respect of such shares.
(b) The Corporation shall have authority to create and issue rights
and options entitling their holders to purchase shares of the Corporation's
capital stock of any class or series or other securities of the
Corporation, and such rights and options shall be evidenced by
instrument(s) approved by the board of directors of the Corporation. The
board of directors of the Corporation shall be empowered to set the
exercise price, duration, times for exercise, and other terms of such
options or rights; provided, however, that the consideration to be received
for any shares of capital stock subject thereto shall not be less that the
par value thereof.
FIFTH: The name of the incorporator of the Corporation is Susan E. Casey,
and the mailing address of such incorporator is 100 Congress Avenue, Suite 1400,
Austin, Texas 78701.
SIXTH: (a) General. The number of directors constituting the initial board
of directors is eight, and the name and mailing address of each person who is to
serve as director until his or her successor is elected and qualified are Class
I: Gerald T. Olson and Jim A. Smith; Class II: William C. Nowlin, Jr., L. Wayne
Ashby and Dr. Donald M. Carlton; Class III: Dr. James J. Truchard, Jeffrey L.
Kodosky and Dr. Peter T. Flawn. The number of directors constituting the entire
Board of Directors shall be not less than three nor more than twelve as fixed
from time to time by vote of a majority of the entire Board; provided, however,
that the number or directors shall not be reduced so as to shorten the term of
any director at the time in office. Election of directors need not be by written
ballot unless the bylaws of the Corporation so provide.
(b) Classification of Directors. The directors shall be divided into three
classes of equal or approximately equal number and designated Class I, Class II
and Class III. If the number of directors is not evenly divisible by three, the
remainder positions shall be allocated first to Class III and second to Class
II. The initial term of office of Class I will expire at the annual meeting of
stockholders in 1995; of Class II at the annual meeting of stockholders in 1996;
and of Class III at the annual meeting of stockholders in 1997. Each director
elected shall hold office until his successor shall be elected and shall
qualify. At each annual meeting of stockholders beginning with the annual
meeting of stockholders in 1995, directors elected to succeed those whose terms
are then expiring shall be elected for a full term of office expiring at the
third succeeding annual meeting of stockholders after their election. Should the
number of directors which constitutes the whole Board of Directors be changed as
permitted by paragraph (a) of this Article, such majority of the whole Board of
Directors shall also fix and determine the number of directors of which each
class shall be comprised.
(c) Term of Office; Vacancies. A director shall hold office until the
annual meeting for the year in which his or her term expires and until his or
her successor shall be elected and shall qualify, subject, however, to prior
death, resignation, retirement or removal from office. Except as provided in
paragraph (b) of this Article, the directors have the exclusive power to fill
vacancies and newly created directorships resulting from any increase in the
authorized number of directors. Any newly created directorship resulting from an
increase in the number of directors or any other vacancy on the Board of
Directors, however caused, shall be filled by a majority of the directors then
in office, although less than a quorum, or by a sole remaining director. Any
director elected by one or more directors to fill a newly created directorship
or other vacancy shall hold office until the next election of the class for
which such directors shall have been chosen and until his or her successor shall
have been elected and qualified. Notwithstanding the foregoing, and except as
otherwise required by law, whenever the holders of any one or more series of
Preferred Stock shall have the right, voting separately as a class, to elect one
or more directors of the Corporation, the terms of the director or directors
elected by such holders shall expire at the next succeeding annual meeting of
stockholders.
(d) Removal. Notwithstanding any other provisions of this Certificate of
Incorporation or the bylaws of the Corporation (and notwithstanding the fact
that some lesser percentage may be specified by law, this Certificate of
Incorporation or the bylaws of the Corporation), any director or the entire
Board of Directors of the Corporation may be removed at any time, but only for
cause and only by the affirmative vote of the holders of at least 80% of the
votes of the outstanding shares of stock generally entitled to vote in the
election of directors (considered for this purpose as one class) ("Voting
Stock") cast at a meeting of stockholders called for that purpose.
(e) Notice of Nominations. Advance notice of nominations for the election
of directors, other than nominations by the Board of Directors or a committee
thereof, shall be given to the Corporation in the manner provided in the bylaws.
(f) Election of Directors by Holders of Particular Classes or Series of
Stock. Notwithstanding the foregoing, whenever the holders of any one or more
classes or series of stock issued by the Corporation shall have the right,
voting separately by class or series, to elect directors at an annual or special
meeting of stockholders, the election, term of office, filling of vacancies and
other features of such directorships shall be governed by the provisions of this
Certificate of Incorporation, including any applicable resolutions of the Board
of Directors, adopted pursuant to Article FOURTH. Directors so elected shall not
be divided into classes and shall be elected by such holders annually unless
expressly provided otherwise by those provisions or resolutions, and, during the
prescribed terms of office of those directors, the Board of Directors shall
consist of a number of directors equal to the number of those directors plus the
number of directors determined as provided in the first paragraph of this
Article.
SEVENTH: A director of the Corporation shall not be personally liable to
the Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived an improper
personal benefit. Any repeal or amendment of this Article by the stockholders of
the Corporation shall be prospective only, and shall not adversely affect any
limitation on the personal liability of a director of the Corporation arising
from an act or omission occurring prior to the time of such repeal or amendment.
In addition to the circumstances in which a director of the Corporation is not
personally liable as set forth in the foregoing provisions of this Article, a
director shall not be liable to the Corporation or its stockholders to such
further extent as permitted by any law hereafter enacted, including without
limitation any subsequent amendment to the Delaware General Corporation Law.
EIGHTH: The Corporation shall indemnify any person who was, is, or is
threatened to be made a party to a proceeding (as hereinafter defined) by reason
of the fact he or she (i) is or was a director or officer of the Corporation or
(ii) while a director or officer of the Corporation, is or was serving at the
request of the Corporation as a director, officer, partner, venturer,
proprietor, trustee, employee, agent, or similar functionary of another foreign
or domestic corporation, partnership, joint venture, sole proprietorship, trust,
employee benefit plan, or other enterprise, to the fullest extent permitted
under the Delaware General Corporation Law, as the same exists or may hereafter
be amended. Such right shall be a contract right and as such shall run to the
benefit of any director or officer who is elected and accepts the position of
director or officer of the Corporation or elects to continue to serve as a
director or officer of the Corporation while this Article is in effect. Any
repeal or amendment of this Article shall be prospective only and shall not
limit the rights of any such director or officer or the obligations of the
Corporation with respect to any claim arising from or related to the services of
such director or officer in any of the foregoing capacities prior to any such
repeal or amendment to this Article. Such right shall include the right to be
paid by the Corporation expenses incurred in defending any such proceeding in
advance of its final disposition to the maximum extent permitted under the
Delaware General Corporation Law, as the same exists or may hereafter be
amended. If a claim for indemnification or advancement of expenses hereunder is
not paid in full by the Corporation within sixty (60) days after a written claim
has been received by the Corporation, the claimant may at any time thereafter
bring suit against the Corporation to recover the unpaid amount of the claim,
and if successful in whole or in part, the claimant shall also be entitled to be
paid the expenses of prosecuting such claim. It shall be a defense to any such
action that such indemnification or advancement of costs of defense are not
permitted under the Delaware General Corporation Law, but the burden of proving
such defense shall be on the Corporation. Neither the failure of the Corporation
(including its board of directors or any committee thereof, independent legal
counsel, or stockholders) to have made its determination prior to the
commencement of such action that indemnification of, or advancement of costs of
defense to, the claimant is permissible in the circumstances nor an actual
determination by the Corporation (including its board of directors or any
committee thereof, independent legal counsel, or stockholders) that such
indemnification or advancement is not permissible shall be a defense to the
action or create a presumption that such indemnification or advancement is not
permissible. In the event of the death of any person having a right of
indemnification under the foregoing provisions, such right shall inure to the
benefit of his or her heirs, executors, administrators, and personal
representatives. The rights conferred above shall not be exclusive of any other
right which any person may have or hereafter acquire under any statute, by-law,
resolution of stockholders or directors, agreement, or otherwise.
The Corporation may additionally indemnify any employee or agent of the
Corporation to the fullest extent permitted by law.
As used herein, the term "proceeding" means any threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal, administrative,
arbitrative, or investigative, any appeal in such an action, suit, or
proceeding, and any inquiry or investigation that could lead to such an action,
suit, or proceeding.
NINTH: After the Corporation first has a class of securities registered
under Sections 12 or 15 of the Securities Exchange Act of 1934, as amended, or
its equivalent, any action required or permitted to be taken by the stockholders
of the Corporation must be taken at a duly called annual or special meeting of
the stockholders and may not be taken by consent in writing or otherwise.
TENTH: Except as otherwise required by law or provided in the bylaws of the
Corporation, and subject to the rights of the holders of any class or series of
shares issued by the Corporation having a preference over the Common Stock as to
dividends or upon liquidation to elect directors in certain circumstances,
special meetings of the stockholders of the Corporation may be called only by
the Board of Directors pursuant to a resolution approved by the affirmative vote
of a majority of the directors then in office.
ELEVENTH: The Board of Directors shall have the power to adopt, alter,
amend or repeal the Bylaws of the Corporation by vote of not less than a
majority of the directors then in office. The holders of shares of capital stock
of the Corporation entitled at the time to vote for the election of directors
shall, to the extent such power is at the time conferred on them by applicable
law, also have the power to adopt, alter, amend or repeal the bylaws of the
Corporation, but only if such action receives the affirmative vote of at least
80% of the outstanding Voting Stock, voting together as a single class.
TWELFTH: (a) 1. In addition to any affirmative vote required by law, and
except as otherwise expressly provided in sections (b) and (c) of this Article,
any business combination (as hereinafter defined) shall require the affirmative
vote of the holders of at least 80% of the outstanding Voting Stock voting
together as a single class. Such affirmative vote shall be required
notwithstanding the fact that no vote may be required, or that some lesser
percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
2. The term "business combination" as used in this Article shall
mean any transaction which is referred to in any one or more of the
following clauses (A) through (E):
a. any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with or into (i) any
Interested Stockholder (as hereinafter defined) or (ii) any other
corporation (whether or not itself an Interested Stockholder)
which, after such merger or consolidation, would be an Affiliate
(as hereinafter defined) of an Interested Stockholder, or
b. any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of related
transactions) to or with any Interested Stockholders of any
assets of the Corporation or any Subsidiary having an aggregate
fair market value of $5,000,000 or more, or
c. the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of related
transactions) of any securities of the Corporation or any
Subsidiary to any Interested Stockholder or any Affiliate of any
Interested Stockholder in exchange for cash, securities or other
property (or a combination thereof) having an aggregate fair
market value of $5,000,000 or more, or
d. the adoption of any plan or proposal for the liquidation
or dissolution of the Corporation, or
e. any reclassification of securities (including any reverse
stock split), or recapitalization of the Corporation, or any
merger or consolidation of the Corporation with any of its
Subsidiaries or any similar transaction (whether or not with or
into or otherwise involving an Interested Stockholder) which has
the effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any class of
equity or convertible securities of the Corporation or any
Subsidiary which is directly or indirectly owned by any
Interested Stockholder or any Affiliate of any Interested
Stockholder.
(b) The provisions of section (a) of this Article shall not be applicable
to any particular business combination, and such business combination shall
require only such affirmative vote as is required by law and any other provision
of this Certificate of Incorporation, if the business combination has been
approved by two-thirds of the whole Board of Directors.
(c) For the purposes of this Article:
1. A "person" shall mean any individual, firm, corporation or other
entity.
2. "Interested Stockholder" shall mean, in respect of any business
combination, any person (other than the Corporation or any Subsidiary) who
or which, as of the record date for the determination of stockholders
entitled to notice of and to vote on such business combination, or
immediately prior to the consummation of any such transaction;
a. is the beneficial owner, directly or indirectly, of more than
10% of the Voting Stock, or
b. is an Affiliate of the Corporation and at any time within two
years prior thereto was the beneficial owner, directly or indirectly,
of not less than 10% of the then outstanding Voting Stock, or
c. is an assignee of or has otherwise succeeded to any shares of
capital stock of the Corporation which were at any time within two
years prior thereto beneficially owned by any Interested Stockholder,
and such assignment or succession shall have occurred in the course of
stockholders entitled to notice of and to vote on such business coming
within the meaning of the Securities Act of 1933.
3. A "person" shall be the "beneficial owner" of any Voting Stock:
a. which such person or any of its Affiliates and Associates (as
hereinafter defined) beneficially own, directly or indirectly, or
b. which such person or any of its Affiliates or Associates has
(i) the right to acquire (whether such right is exercisable
immediately or only after the passage of time), pursuant to any
agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or otherwise,
or (ii) the right to vote pursuant to any agreement, arrangement or
understanding, or
c. which are beneficially owned, directly or indirectly, by any
other person with which such first mentioned person or any of its
Affiliates or Associates has any agreement, arrangement or
understanding for the purposes of acquiring, holding, voting or
disposing of any shares of capital stock of the Corporation.
4. The outstanding Voting Stock shall include shares deemed owned
through application of paragraph 3 above but shall not include any other
Voting Stock which may be issuable pursuant to any agreement, or upon
exercise of conversion rights, warrants or options, or otherwise.
5. "Affiliate" and "Associate" shall have the respective meanings
given those terms in Rule 12b-2 of the General Rules and Regulations under
the Securities Exchange Act of 1934, as in effect on the date of adoption
of this Article.
6. "Subsidiary" shall mean any corporation of which a majority of any
class of equity security (as defined in Rule 3a11-1 of the General Rules
and Regulations under the Securities Exchange Act of 1934, as in effect on
the date of the adoption of this Article) is owned, directly or indirectly,
by the Corporation; provided however, that for the purposes of the
definition of Interested Stockholder set forth in paragraph 2 of this
section (c) the term "Subsidiary" shall mean only a corporation of which a
majority of each class of equity security is owned, directly or indirectly,
by the Corporation.
(d) A majority of the directors shall have the power and duty to
determine for the purposes of this Article on the basis of information
known to them, (1) the number of shares of Voting Stock beneficially
owned by any person, (2) whether a person is an Affiliate or Associate
of another, (3) whether a person has an agreement, arrangement or
understanding with another as to the matters referred to in paragraph
3 of section (d), or (4) whether the assets subject to any business
combination or the consideration received for the issuance or transfer
of securities by the Corporation or any Subsidiary has an aggregate
fair market value of $5,000,000 or more.
(e) Nothing contained in this Article shall be construed to
relieve any Interested Stockholder from any fiduciary obligation
imposed by law.
THIRTEENTH: No holder of shares of the Corporation of any class or series
shall have any preemptive right to subscribe for, purchase, or receive any
shares of the Corporation of any class or series now or hereafter authorized, or
any options or warrants for such shares, or any securities convertible into or
exchangeable for such shares, which may at any time be issued, sold or offered
for sale by the Corporation. Cumulative voting by the stockholders of the
Corporation at any election of directors of the Corporation is hereby
prohibited.
FOURTEENTH: Notwithstanding anything to the contrary in this Certificate of
Incorporation, the affirmative vote of the holders of at least 80% of the votes
of the outstanding Voting Stock, voting together as a single class, shall be
required to amend, repeal or adopt any provision inconsistent with any of
Articles SIXTH, NINTH, TENTH, ELEVENTH, TWELFTH, THIRTEENTH and FOURTEENTH of
this Certificate of Incorporation.
FIFTEENTH: No contract or transaction between the Corporation and one or
more of its directors, officers, or stockholders or between the Corporation and
any person (as used herein "person" means other corporation, partnership,
association, firm, trust, joint venture, political subdivision, or
instrumentality) or other organization in which one or more of its directors,
officers, or stockholders are directors, officers, or stockholders, or have a
financial interest, shall be void or voidable solely for this reason, or solely
because the director or officer is present at or participates in the meeting of
the board or committee which authorizes the contract or transaction, or solely
because his, her or their votes are counted for such purpose, if: (i) the
material facts as to his or her relationship or interest and as to the contract
or transaction are disclosed or are known to the board of directors or the
committee, and the board of directors or committee in good faith authorizes the
contract or transaction by the affirmative votes of a majority of the
disinterested directors, even though the disinterested directors be less than a
quorum; or (ii) the material facts as to his or her relationship or interest and
as to the contract or transaction are disclosed or are known to the stockholders
entitled to vote thereon, and the contract or transaction is specifically
approved in good faith by vote of the stockholders; or (iii) the contract or
transaction is fair as to the Corporation as of the time it is authorized,
approved, or ratified by the board of directors, a committee thereof, or the
stockholders. Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the board of directors or of a committee
which authorizes the contract or transaction.
I, the undersigned, for the purpose of forming the Corporation under the
laws of the State of Delaware, do make, file, and record this Certificate of
Incorporation and do certify that this is my act and deed and that the facts
stated therein are true and, accordingly, I do hereunto set my hand on this 3rd
day of May, 1994.
/s/ Susan E. Casey
---------------------------------
Susan E. Casey
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
NATIONAL INSTRUMENTS CORPORATION
National Instruments Corporation (hereinafter called the "Corporation"), a
corporation organized and existing under and by virtue of the General
Corporation Law of the State of Delaware, does hereby certify:
1. That the Board of Directors of the Corporation has determined that
it is advisable and in the best interests of the Corporation that the
Certificate of Incorporation of the Corporation be hereby amended by
deleting the current text of the first paragraph of Article FOURTH in its
entirety and by substituting in lieu thereof the following:
"FOURTH: The total number of shares of stock which the
Corporation shall have the authority to issue is one-hundred and
eighty-five million (185,000,000) shares of capital stock, classified
as (i) five million (5,000,000) shares of preferred stock, par value
$.01 per share ("Preferred Stock"), and (ii) one-hundred and eighty
million (180,000,000) shares of common stock, par value of $.01 per
share ("Common Stock")."
2. That upon notice in accordance with Section 222 of the General
Corporation Law of the State of Delaware, a majority of all the shares of
capital stock entitled to vote as a class voted in favor of such amendment.
3. The amendment of the Certificate of Incorporation herein certified
has been duly adopted in accordance with the provisions of Section 242 of
the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment to be executed by its duly authorized officer as of the 19th day of
June, 1998.
NATIONAL INSTRUMENTS CORPORATION
/s/ David G. Hugley
---------------------------------------
Name: David G. Hugley
Title: Secretary
EXHIBIT 3.2
AMENDED AND RESTATED BY-LAWS
(as of March 21, 2001)
OF
NATIONAL INSTRUMENTS CORPORATION
A Delaware Corporation
PREAMBLE
These by-laws are subject to, and governed by, the General Corporation Law
of the State of Delaware (the "Delaware General Corporation Law") and the
certificate of incorporation of National Instruments Corporation, a Delaware
corporation (the "Corporation"). In the event of a direct conflict between the
provisions of these by-laws and the mandatory provisions of the Delaware General
Corporation Law or the provisions of the certificate of incorporation of the
Corporation, such provisions of the Delaware General Corporation Law or the
certificate of incorporation of the Corporation, as the case may be, will be
controlling.
ARTICLE ONE: OFFICES
1.1 Registered Office and Agent. The registered office and registered agent
of the Corporation shall be as designated from time to time by the appropriate
filing by the Corporation in the office of the Secretary of State of the State
of Delaware.
1.2 Other Offices. The Corporation may also have offices at such other
places, both within and without the State of Delaware, as the board of directors
may from time to time determine or as the business of the Corporation may
require.
ARTICLE TWO: MEETINGS OF STOCKHOLDERS
2.1 Annual Meeting. An annual meeting of stockholders of the Corporation
shall be held each calendar year on such date and at such time as shall be
designated from time to time by the board of directors and stated in the notice
of the meeting or in a duly executed waiver of notice of such meeting. At such
meeting, the stockholders shall elect directors and transact such other business
as may properly be brought before the meeting. Failure to hold an annual meeting
as required by these by-laws shall not invalidate any action taken by the board
of directors or officers of the Corporation.
2.2 Special Meeting. A special meeting of the stockholders, for any purpose
or purposes, may be called only by the Chairman of the Board, the President or
the board of directors pursuant to a resolution approved by the affirmative vote
of a majority of directors then in office.
2.3 Place of Meetings. An annual meeting of stockholders may be held at any
place within or without the State of Delaware designated by the board of
directors. A special meeting of stockholders may be held at any place within or
without the State of Delaware designated in the notice of the meeting or a duly
executed waiver of notice of such meeting. Meetings of stockholders shall be
held at the principal office of the Corporation unless another place is
designated for meetings in the manner provided herein.
2.4 Notice. Written or printed notice stating the place, day, and time of
each meeting of the stockholders and, in case of a special meeting, the purpose
or purposes for which the meeting is called shall be delivered not less than ten
nor more than 60 days before the date of the meeting, either personally or by
mail, by or at the direction of the President, the Secretary, or the officer or
person(s) calling the meeting, to each stockholder of record entitled to vote at
such meeting. If such notice is to be sent by mail, it shall be directed to such
stockholder at his address as it appears on the records of the Corporation,
unless he shall have filed with the Secretary of the Corporation a written
request that notices to him be mailed to some other address, in which case it
shall be directed to him at such other address. Notice of any meeting of
stockholders shall not be required to be given to any stockholder who shall
attend such meeting in person or by proxy and shall not, at the beginning of
such meeting, object to the transaction of any business because the meeting is
not lawfully called or convened, or who shall, either before or after the
meeting, submit a signed waiver of notice, in person or by proxy.
2.5 Voting List. At least ten days before each meeting of stockholders, the
Secretary or other officer of the Corporation who has charge of the
Corporation's stock ledger, either directly or through another officer appointed
by him or through a transfer agent appointed by the board of directors, shall
prepare a complete list of stockholders entitled to vote thereat, arranged in
alphabetical order and showing the address of each stockholder and number of
shares registered in the name of each stockholder. For a period of ten days
prior to such meeting, such list shall be kept on file at a place within the
city where the meeting is to be held, which place shall be specified in the
notice of meeting or a duly executed waiver of notice of such meeting or, if not
so specified, at the place where the meeting is to be held and shall be open to
examination by any stockholder during ordinary business hours. Such list shall
be produced at such meeting and kept at the meeting at all times during such
meeting and may be inspected by any stockholder who is present.
2.6 Quorum. The holders of a majority of the outstanding shares entitled to
vote on a matter, present in person or by proxy, shall constitute a quorum at
any meeting of stockholders, except as otherwise provided by law, the
certificate of incorporation of the Corporation, or these by-laws. If a quorum
shall not be present, in person or by proxy, at any meeting of stockholders, the
stockholders entitled to vote thereat who are present, in person or by proxy,
or, if no stockholder entitled to vote is present, any officer of the
Corporation may adjourn the meeting from time to time, without notice other than
announcement at the meeting (unless the board of directors, after such
adjournment, fixes a new record date for the adjourned meeting), until a quorum
shall be present, in person or by proxy. At any adjourned meeting at which a
quorum shall be present, in person or by proxy, any business may be transacted
which may have been transacted at the original meeting had a quorum been
present; provided that, if the adjournment is for more than 30 days or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice
of the adjourned meeting shall be given to each stockholder of record entitled
to vote at the adjourned meeting.
2.7 Required Vote; Withdrawal of Quorum. When a quorum is present at any
meeting, the vote of the holders of at least a majority of the outstanding
shares entitled to vote who are present, in person or by proxy, shall decide any
question brought before such meeting, unless the question is one on which, by
express provision of statute, the certificate of incorporation of the
Corporation, or these by-laws, a different vote is required, in which case such
express provision shall govern and control the decision of such question. The
stockholders present at a duly constituted meeting may continue to transact
business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum.
2.8 Method of Voting; Proxies. Except as otherwise provided in the
certificate of incorporation of the Corporation or by law, each outstanding
share, regardless of class, shall be entitled to one vote on each matter
submitted to a vote at a meeting of stockholders. Elections of directors need
not be by written ballot. At any meeting of stockholders, every stockholder
having the right to vote may vote either in person or by a proxy executed in
writing by the stockholder or by his duly authorized attorney-in-fact. Each such
proxy shall be filed with the Secretary of the Corporation before or at the time
of the meeting. No proxy shall be valid after three years from the date of its
execution, unless otherwise provided in the proxy. If no date is stated in a
proxy, such proxy shall be presumed to have been executed on the date of the
meeting at which it is to be voted. Each proxy shall be revocable unless
expressly provided therein to be irrevocable and coupled with an interest
sufficient in law to support an irrevocable power or unless otherwise made
irrevocable by law.
2.9 Record Date. For the purpose of determining stockholders entitled to
notice of or to vote at any meeting of stockholders, or any adjournment thereof,
or entitled to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion, or exchange of stock or for the purpose of any other lawful
action, the board of directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is adopted
by the board of directors, for any such determination of stockholders, such date
in any case to be not more than 60 days and not less than ten days prior to such
meeting nor more than 60 days prior to any other action. If no record date is
fixed:
(i) The record date for determining stockholders entitled to notice of
or to vote at a meeting of stockholders shall be at the close of business
on the day next preceding the day on which notice is given or, if notice is
waived, at the close of business on the day next preceding the day on which
the meeting is held.
(ii) The record date for determining stockholders for any other
purpose shall be at the close of business on the day on which the board of
directors adopts the resolution relating thereto.
(iii) A determination of stockholders of record entitled to notice of
or to vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the board of directors may fix a new
record date for the adjourned meeting.
2.10 Conduct of Meeting. The Chairman of the Board, if such office has been
filled, and, if not or if the Chairman of the Board is absent or otherwise
unable to act, the President shall preside at all meetings of stockholders. The
Secretary shall keep the records of each meeting of stockholders. In the absence
or inability to act of any such officer, such officer's duties shall be
performed by the officer given the authority to act for such absent or
non-acting officer under these by-laws or by some person appointed by the
meeting.
2.11 Stockholder Proposals and Nominations of Persons for Election to the
Board of Directors. Nominations of persons for election to the board of
directors of the corporation and the proposal of business to be considered by
the stockholders may be made at an annual meeting of stockholders only (a)
pursuant to the corporation's notice of meeting, (b) by or at the direction of
the board of directors, or (c) by any stockholder of the corporation who was a
stockholder of record at the time of giving of notice provided for in these
by-laws, who is entitled to vote at the meeting and who complies with the notice
procedures set forth in this by-law.
For nominations or other business to be properly brought before an annual
meeting by a stockholder pursuant to clause (c) of the foregoing paragraph, (1)
the stockholder must have given timely notice thereof in writing to the
secretary of the corporation, (2) such business must be a proper matter for
stockholder action under the General Corporation Law of Delaware, (3) if the
stockholder, or the beneficial owner on whose behalf any such proposal or
nomination is made, has provided the corporation with a Solicitation Notice, as
that term is defined in subclause (c)(iii) of this paragraph, such stockholder
or beneficial owner must, in the case of a proposal, have delivered a proxy
statement and form of proxy to holders of at least the percentage of the
corporation's voting shares required under applicable law to carry any such
proposal, or, in the case of a nomination or nominations, have delivered a proxy
statement and form of proxy to holders of a percentage of the corporation's
voting shares reasonably believed by such stockholder or beneficial holder to be
sufficient to elect the nominee or nominees proposed to be nominated by such
stockholder, and must, in either case, have included in such materials the
Solicitation Notice and (4) if no Solicitation Notice relating thereto has been
timely provided pursuant to this section, the stockholder or beneficial owner
proposing such business or nomination must not have solicited a number of
proxies sufficient to have required the delivery of such a Solicitation Notice
under this section. To be timely, a stockholder's notice shall be delivered to
the secretary of the corporation at the principal executive offices of the
corporation not less than 60 or more than 90 days prior to the first anniversary
(the "Anniversary") of the date on which the corporation first mailed its proxy
materials for the preceding year's annual meeting of stockholders; provided,
however, that if the date of the annual meeting is advanced more than 30 days
prior to or delayed by more than 30 days after the anniversary of the preceding
year's annual meeting, notice by the stockholder to be timely must be so
delivered not later than the close of business on the later of (i) the 90th day
prior to such annual meeting or (ii) the 10th day following the day on which
public announcement of the date of such meeting is first made. Such
stockholder's notice shall be set forth (a) as to each person whom the
stockholder proposes to nominate for election or reelection as a director all
information relating to such person as would be required to be disclosed in
solicitations of proxies for the election of such nominees as directors pursuant
to Regulation 14A under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and such person's written consent to serve as a director if
elected; (b) as to any other business that the stockholder proposes to bring
before the meeting, a brief description of such business, the reasons for
conducting such business at the meeting and any material interest in such
business of such stockholder and the beneficial owner, if any, on whose behalf
the proposal is made; (c) as to the stockholder giving the notice and the
beneficial owner, if any, on whose behalf the nomination or proposal is made (i)
the name and address of such stockholder, as they appear on the corporation's
books, and of such beneficial owner, (ii) the class and number of shares of the
corporation that are owned beneficially and of record by such stockholder and
such beneficial owner, and (iii) whether either such stockholder or beneficial
owner intends to deliver a proxy statement and form of proxy to holders of, in
the case of a proposal, at least the percentage of the corporation's voting
shares required under applicable law to carry the proposal or, in the case of a
nomination or nominations, a sufficient number of holders of the corporation's
voting shares to elect such nominee or nominees (an affirmative statement of
such intent, a "Solicitation Notice").
Only persons nominated in accordance with the procedures set forth in this
by-law shall be eligible to serve as directors and only such business shall be
conducted at an annual meeting of stockholders as shall have been brought before
the meeting in accordance with the procedures set forth in this section. The
chair of the meeting shall have the power and the duty to determine whether a
nomination or any business proposed to be brought before the meeting has been
made in accordance with the procedures set forth in these by-laws and, if any
proposed nomination or business is not in compliance with these by-laws, to
declare that such defective proposed business or nomination shall not be
presented for stockholder action at the meeting and shall be disregarded.
For the purposes of this section, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or a comparable national news service or in a document publicly filed by
the corporation with the Securities and Exchange Commission pursuant to Section
13, 14 or 15(d) of the Exchange Act."
2.12 Inspectors. The board of directors may, in advance of any meeting of
stockholders, appoint one or more inspectors to act at such meeting or any
adjournment thereof. If any of the inspectors so appointed shall fail to appear
or act, the chairman of the meeting shall, or if inspectors shall not have been
appointed, the chairman of the meeting may, appoint one or more inspectors. Each
inspector, before entering upon the discharge of his duties, shall take and sign
an oath faithfully to execute the duties of inspector at such meeting with
strict impartiality and according to the best of his ability. The inspectors
shall determine the number of shares of capital stock of the Corporation
outstanding and the voting power of each, the number of shares represented at
the meeting, the existence of a quorum, and the validity and effect of proxies
and shall receive votes, ballots, or consents, hear and determine all challenges
and questions arising in connection with the right to vote, count and tabulate
all votes, ballots, or consents, determine the results, and do such acts as are
proper to conduct the election or vote with fairness to all stockholders. On
request of the chairman of the meeting, the inspectors shall make a report in
writing of any challenge, request, or matter determined by them and shall
execute a certificate of any fact found by them. No director or candidate for
the office of director shall act as an inspector of an election of directors.
Inspectors need not be stockholders.
ARTICLE THREE: DIRECTORS
3.1 Management. The business and property of the Corporation shall be
managed by the board of directors. Subject to the restrictions imposed by law,
the certificate of incorporation of the Corporation, or these by-laws, the board
of directors may exercise all the powers of the Corporation.
3.2 Number; Qualification; Election; Term. The number of directors which
shall constitute the entire board of directors shall be not less than three. The
first board of directors shall consist of the number of directors named in the
certificate of incorporation of the Corporation or, if no directors are so
named, shall consist of the number of directors elected by the incorporator(s)
at an organizational meeting or by unanimous written consent in lieu thereof.
Thereafter, within the limits above specified, the number of directors which
shall constitute the entire board of directors shall be determined by resolution
of the board of directors. Except as otherwise required by law, the certificate
of incorporation of the Corporation, or these by-laws, the directors shall be
elected at an annual meeting of stockholders at which a quorum is present.
Directors shall be elected by a plurality of the votes of the shares present in
person or represented by proxy and entitled to vote on the election of
directors. At each annual meeting of stockholders, directors elected to succeed
those whose terms are then expiring shall be elected for a full term of office
expiring at the third succeeding annual meeting of stockholders after their
election. Except as otherwise required by law, whenever the holders of any one
or more series of preferred stock shall have the right, voting separately as a
class, to elect one or more directors of the corporation, the terms of the
director or directors elected by such holders shall expire at the next
succeeding annual meeting of stockholders. Each director shall hold office until
his successor shall have been elected and qualified or until his earlier death,
resignation or removal. Directors need not be residents of Delaware or
stockholders of the corporation. Each director must have attained the age of
majority.
3.3 Change in Number. No decrease in the number of directors constituting
the entire board of directors shall have the effect of shortening the term of
any incumbent director.
3.4 Vacancies. Unless otherwise provided in the certificate of
incorporation, any vacancy or any newly-created directorship resulting from any
increase in the authorized number of directors may be filled by a majority of
the directors then in office, though less than a quorum, or by the affirmative
vote of two directors if there are only two directors remaining, or by the sole
remaining director. Any director elected by one or more directors to fill a
newly created directorship or other vacancy shall hold office until the next
election of the class for which such directors shall have been chosen and until
his or her successor shall have been elected and qualified, or, if earlier,
until his death, resignation, or removal from office. If there are no directors
in office, an election of directors may be held in the manner provided by
statute. When one or more directors shall resign from the board of directors,
effective at a future date, a majority of the directors then in office,
including those who have so resigned, shall have the power to fill such vacancy
or vacancies, the vote thereon to take effect when such resignation or
resignations shall become effective, and each director so chosen shall hold
office as provided in these by-laws with respect to the filling of other
vacancies.
3.5 Meetings of Directors. The directors may hold their meetings and may
have an office and keep the books of the Corporation, except as otherwise
provided by statute, in such place or places within or without the State of
Delaware as the board of directors may from time to time determine or as shall
be specified in the notice of such meeting or duly executed waiver of notice of
such meeting.
3.6 First Meeting. Each newly elected board of directors may hold its first
meeting for the purpose of organization and the transaction of business, if a
quorum is present, immediately after and at the same place as the annual meeting
of stockholders, and no notice of such meeting shall be necessary.
3.7 Election of Officers. At the first meeting of the board of directors
after each annual meeting of stockholders at which a quorum shall be present,
the board of directors shall elect the officers of the Corporation.
3.8 Regular Meetings. Regular meetings of the board of directors shall be
held at such times and places as shall be designated from time to time by
resolution of the board of directors. Notice of such regular meetings shall not
be required.
3.9 Special Meetings. Special meetings of the board of directors shall be
held whenever called by the Chairman of the Board, the President, or any other
two directors.
3.10 Notice. The Secretary shall give notice of each special meeting to
each director at least 24 hours before the meeting. Notice of any such meeting
need not be given to any director who shall, either before or after the meeting,
submit a signed waiver of notice or who shall attend such meeting without
protesting, prior to or at its commencement, the lack of notice to him. Neither
the business to be transacted at, nor the purpose of, any regular or special
meeting of the board of directors need be specified in the notice or waiver of
notice of such meeting.
3.11 Quorum; Majority Vote. At all meetings of the board of directors, a
majority of the directors fixed in the manner provided in these by-laws shall
constitute a quorum for the transaction of business. If at any meeting of the
board of directors there be less than a quorum present, a majority of those
present or any director solely present may adjourn the meeting from time to time
without further notice. Unless the act of a greater number is required by law,
the certificate of incorporation of the Corporation, or these by-laws, the act
of a majority of the directors present at a meeting at which a quorum is in
attendance shall be the act of the board of directors. At any time that the
certificate of incorporation of the Corporation provides that directors elected
by the holders of a class or series of stock shall have more or less than one
vote per director on any matter, every reference in these by-laws to a majority
or other proportion of directors shall refer to a majority or other proportion
of the votes of such directors.
3.12 Procedure. At meetings of the board of directors, business shall be
transacted in such order as from time to time the board of directors may
determine. The Chairman of the Board, if such office has been filled, and, if
not or if the Chairman of the Board is absent or otherwise unable to act, the
President shall preside at all meetings of the board of directors. In the
absence or inability to act of either such officer, a chairman shall be chosen
by the board of directors from among the directors present. The Secretary of the
Corporation shall act as the secretary of each meeting of the board of directors
unless the board of directors appoints another person to act as secretary of the
meeting. The board of directors shall keep regular minutes of its proceedings
which shall be placed in the minute book of the Corporation.
3.13 Presumption of Assent. A director of the Corporation who is present at
the meeting of the board of directors at which action on any corporate matter is
taken shall be presumed to have assented to the action unless his dissent shall
be entered in the minutes of the meeting or unless he shall file his written
dissent to such action with the person acting as secretary of the meeting before
the adjournment thereof or shall forward any dissent by certified or registered
mail to the Secretary of the Corporation immediately after the adjournment of
the meeting. Such right to dissent shall not apply to a director who voted in
favor of such action.
3.14 Action Without a Meeting. Any action required or permitted to be taken
at any meeting of the board of directors may be taken without a meeting, without
prior notice and without a vote, if all members of the board consent thereto in
writing and the writing or writings are filed with the minutes of the
proceedings of the board.
3.15 Compensation. The board of directors shall have the authority to fix
the compensation, including fees and reimbursement of expenses, paid to
directors for attendance at regular or special meetings of the board of
directors or any committee thereof; provided, that nothing contained herein
shall be construed to preclude any director from serving the Corporation in any
other capacity or receiving compensation therefor.
ARTICLE FOUR: COMMITTEES
4.1 Designation. The board of directors may, by resolution adopted by a
majority of the entire board of directors, designate one or more committees.
4.2 Number; Qualification; Term. Each committee shall consist of one or
more directors appointed by resolution adopted by a majority of the entire board
of directors. The number of committee members may be increased or decreased from
time to time by resolution adopted by a majority of the entire board of
directors. Each committee member shall serve as such until the earliest of (i)
the expiration of his term as director, (ii) his resignation as a committee
member or as a director, or (iii) his removal as a committee member or as a
director.
4.3 Authority. Each committee, to the extent expressly provided in the
resolution establishing such committee, shall have and may exercise all of the
authority of the board of directors in the management of the business and
property of the Corporation except to the extent expressly restricted by law,
the certificate of incorporation of the Corporation, or these by-laws.
4.4 Committee Changes. The board of directors shall have the power at any
time to fill vacancies in, to change the membership of, and to discharge any
committee.
4.5 Alternate Members of Committees. The board of directors may designate
one or more directors as alternate members of any committee. Any such alternate
member may replace any absent or disqualified member at any meeting of the
committee. If no alternate committee members have been so appointed to a
committee or each such alternate committee member is absent or disqualified, the
member or members of such committee present at any meeting and not disqualified
from voting, whether or not he or they constitute a quorum, may unanimously
appoint another member of the board of directors to act at the meeting in the
place of any such absent or disqualified member.
4.6 Regular Meetings. Regular meetings of any committee may be held without
notice at such time and place as may be designated from time to time by the
committee and communicated to all members thereof.
4.7 Special Meetings. Special meetings of any committee may be held
whenever called by any committee member. The committee member calling any
special meeting shall cause notice of such special meeting, including therein
the time and place of such special meeting, to be given to each committee member
at least two days before such special meeting. Neither the business to be
transacted at, nor the purpose of, any special meeting of any committee need be
specified in the notice or waiver of notice of any special meeting.
4.8 Quorum; Majority Vote. At meetings of any committee, a majority of the
number of members designated by the board of directors shall constitute a quorum
for the transaction of business. If a quorum is not present at a meeting of any
committee, a majority of the members present may adjourn the meeting from time
to time, without notice other than an announcement at the meeting, until a
quorum is present. The act of a majority of the members present at any meeting
at which a quorum is in attendance shall be the act of a committee, unless the
act of a greater number is required by law, the certificate of incorporation of
the Corporation, or these by-laws.
4.9 Minutes. Each committee shall cause minutes of its proceedings to be
prepared and shall report the same to the board of directors upon the request of
the board of directors. The minutes of the proceedings of each committee shall
be delivered to the Secretary of the Corporation for placement in the minute
books of the Corporation.
4.10 Compensation. Committee members may, by resolution of the board of
directors, be allowed a fixed sum and expenses of attendance, if any, for
attending any committee meetings or a stated salary.
4.11 Responsibility. The designation of any committee and the delegation of
authority to it shall not operate to relieve the board of directors or any
director of any responsibility imposed upon it or such director by law.
ARTICLE FIVE: NOTICE
5.1 Method. Whenever by statute, the certificate of incorporation of the
Corporation, or these by-laws, notice is required to be given to any committee
member, director, or stockholder and no provision is made as to how such notice
shall be given, personal notice shall not be required and any such notice may be
given (a) in writing, by mail, postage prepaid, addressed to such committee
member, director, or stockholder at his address as it appears on the books or
(in the case of a stockholder) the stock transfer records of the Corporation, or
(b) by any other method permitted by law (including but not limited to overnight
courier service, telegram, telex, or facsimile). Any notice required or
permitted to be given by mail shall be deemed to be delivered and given at the
time when the same is deposited in the United States mail as aforesaid. Any
notice required or permitted to be given by overnight courier service shall be
deemed to be delivered and given at the time delivered to such service with all
charges prepaid and addressed as aforesaid. Any notice required or permitted to
be given by telegram, telex, or telefax shall be deemed to be delivered and
given at the time transmitted with all charges prepaid and addressed as
aforesaid.
5.2 Waiver. Whenever any notice is required to be given to any stockholder,
director, or committee member of the Corporation by statute, the certificate of
incorporation of the Corporation, or these by-laws, a waiver thereof in writing
signed by the person or persons entitled to such notice, whether before or after
the time stated therein, shall be equivalent to the giving of such notice.
Attendance of a stockholder, director, or committee member at a meeting shall
constitute a waiver of notice of such meeting, except where such person attends
for the express purpose of objecting to the transaction of any business on the
ground that the meeting is not lawfully called or convened.
ARTICLE SIX: OFFICERS
6.1 Number; Titles; Term of Office. The officers of the Corporation shall
be a President, a Secretary, and such other officers as the board of directors
may from time to time elect or appoint, including a Chairman of the Board, one
or more Vice Presidents (with each Vice President to have such descriptive
title, if any, as the board of directors shall determine), and a Treasurer. Each
officer shall hold office until his successor shall have been duly elected and
shall have qualified, until his death, or until he shall resign or shall have
been removed in the manner hereinafter provided. Any two or more offices may be
held by the same person. None of the officers need be a stockholder or a
director of the Corporation or a resident of the State of Delaware.
6.2 Removal. Any officer or agent elected or appointed by the board of
directors may be removed by the board of directors whenever in its judgment the
best interest of the Corporation will be served thereby, but such removal shall
be without prejudice to the contract rights, if any, of the person so removed.
Election or appointment of an officer or agent shall not of itself create
contract rights.
6.3 Vacancies. Any vacancy occurring in any office of the Corporation (by
death, resignation, removal, or otherwise) may be filled by the board of
directors.
6.4 Authority. Officers shall have such authority and perform such duties
in the management of the Corporation as are provided in these by-laws or as may
be determined by resolution of the board of directors not inconsistent with
these by-laws.
6.5 Compensation. The compensation, if any, of officers and agents shall be
fixed from time to time by the board of directors; provided, however, that the
board of directors may delegate the power to determine the compensation of any
officer and agent (other than the officer to whom such power is delegated) to
the Chairman of the Board or the President.
6.6 Chairman of the Board. The Chairman of the Board, if elected by the
board of directors, shall have such powers and duties as may be prescribed by
the board of directors. Such officer shall preside at all meetings of the
stockholders and of the board of directors. Such officer may sign all
certificates for shares of stock of the Corporation.
6.7 President. The President shall be the chief executive officer of the
Corporation and, subject to the board of directors, he shall have general
executive charge, management, and control of the properties and operations of
the Corporation in the ordinary course of its business, with all such powers
with respect to such properties and operations as may be reasonably incident to
such responsibilities. If the board of directors has not elected a Chairman of
the Board or in the absence or inability to act of the Chairman of the Board,
the President shall exercise all of the powers and discharge all of the duties
of the Chairman of the Board. As between the Corporation and third parties, any
action taken by the President in the performance 6f the duties of the Chairman
of the Board shall be conclusive evidence that there is no Chairman of the Board
or that the Chairman of the Board is absent or unable to act.
6.8 Vice Presidents. Each Vice President shall have such powers and duties
as may be assigned to him by the board of directors, the Chairman of the Board,
or the President, and (in order of their seniority as determined by the board of
directors or, in the absence of such determination, as determined by the length
of time they have held the office of Vice President) shall exercise the powers
of the President during that officer's absence or inability to act. As between
the Corporation and third parties, any action taken by a Vice President in the
performance of the duties of the President shall be conclusive evidence of the
absence or inability to act of the President at the time such action was taken.
6.9 Treasurer. The Treasurer shall have custody of the Corporation's funds
and securities, shall keep full and accurate account of receipts and
disbursements, shall deposit all monies and valuable effects in the name and to
the credit of the Corporation in such depository or depositories as may be
designated by the board of directors, and shall perform such other duties as may
be prescribed by the board of directors, the Chairman of the Board, or the
President.
6.10 Assistant Treasurers. Each Assistant Treasurer shall have such powers
and duties as may be assigned to him by the board of directors, the Chairman of
the Board, or the President. The Assistant Treasurers (in the order of their
seniority as determined by the board of directors or, in the absence of such a
determination, as determined by the length of time they have held the office of
Assistant Treasurer) shall exercise the powers of the Treasurer during that
officer's absence or inability to act.
6.11 Secretary. Except as otherwise provided in these by-laws, the
Secretary shall keep the minutes of all meetings of the board of directors and
of the stockholders in books provided for that purpose, and he shall attend to
the giving and service of all notices. He may sign with the Chairman of the
Board or the President, in the name of the Corporation, all contracts of the
Corporation and affix the seal of the Corporation thereto. He may sign with the
Chairman of the Board or the President all certificates for shares of stock of
the Corporation, and he shall have charge of the certificate books, transfer
books, and stock papers as the board of directors may direct, all of which shall
at all reasonable times be open to inspection by any director upon application
at the office of the Corporation during business hours. He shall in general
perform all duties incident to the office of the Secretary, subject to the
control of the board of directors, the Chairman of the Board, and the President.
6.12 Assistant Secretaries. Each Assistant Secretary shall have such powers
and duties as may be assigned to him by the board of directors, the Chairman of
the Board, or the President. The Assistant Secretaries (in the order of their
seniority as determined by the board of directors or, in the absence of such a
determination, as determined by the length of time they have held the office of
Assistant Secretary) shall exercise the powers of the Secretary during that
officer's absence or inability to act.
ARTICLE SEVEN: CERTIFICATES AND SHAREHOLDERS
7.1 Certificates for Shares. Certificates for shares of stock of the
Corporation shall be in such form as shall be approved by the board of
directors. The certificates shall be signed by the Chairman of the Board or the
President or a Vice President and also by the Secretary or an Assistant
Secretary or by the Treasurer or an Assistant Treasurer. Any and all signatures
on the certificate may be a facsimile and may be sealed with the seal of the
Corporation or a facsimile thereof. If any officer, transfer agent, or registrar
who has signed, or whose facsimile signature has been placed upon, a certificate
has ceased to be such officer, transfer agent, or registrar before such
certificate is issued, such certificate may be issued by the Corporation with
the same effect as if he were such officer, transfer agent, or registrar at the
date of issue. The certificates shall be consecutively numbered and shall be
entered in the books of the Corporation as they are issued and shall exhibit the
holder's name and the number of shares.
7.2 Replacement of Lost or Destroyed Certificates. The board of directors
may direct a new certificate or certificates to be issued in place of a
certificate or certificates theretofore issued by the Corporation and alleged to
have been lost or destroyed, upon the making of an affidavit of that fact by the
person claiming the certificate or certificates representing shares to be lost
or destroyed. When authorizing such issue of a new certificate or certificates
the board of directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost or destroyed certificate or
certificates, or his legal representative, to advertise the same in such manner
as it shall require and/or to give the Corporation a bond with a surety or
sureties satisfactory to the Corporation in such sum as it may direct as
indemnity against any claim, or expense resulting from a claim, that may be made
against the Corporation with respect to the certificate or certificates alleged
to have been lost or destroyed.
7.3 Transfer of Shares. Shares of stock of the Corporation shall be
transferable only on the books of the Corporation by the holders thereof in
person or by their duly authorized attorneys or legal representatives. Upon
surrender to the Corporation or the transfer agent of the Corporation of a
certificate representing shares duly endorsed or accompanied by proper evidence
of succession, assignment, or authority to transfer, the Corporation or its
transfer agent shall issue a new certificate to the person entitled thereto,
cancel the old certificate, and record the transaction upon its books.
7.4 Registered Stockholders. The Corporation shall be entitled to treat the
holder of record of any share or shares of stock as the holder in fact thereof
and, accordingly, shall not be bound to recognize any equitable or other claim
to or interest in such share or shares on the part of any other person, whether
or not it shall have express or other notice thereof, except as otherwise
provided by law.
7.5 Regulations. The board of directors shall have the power and authority
to make all such rules and regulations as they may deem expedient, including
without limitation a requirement that a transferor furnish a legal opinion or
such other evidence as is reasonably satisfactory to the Corporation and its
counsel that any proposed transfer of shares does not violate the registration
requirements of any state or federal securities law, concerning the issue,
transfer, and registration or the replacement of certificates for shares of
stock of the Corporation.
7.6 Legends. The board of directors shall have the power and authority to
provide that certificates representing shares of stock bear such legends as the
board of directors deems appropriate to assure that the Corporation does not
become liable for violations of federal or state securities laws or other
applicable law.
ARTICLE EIGHT: MISCELLANEOUS PROVISIONS
8.1 Dividends. Subject to provisions of law and the certificate of
incorporation of the Corporation, dividends may be declared by the board of
directors at any regular or special meeting and may be paid in cash, in
property, or in shares of stock of the Corporation. Such declaration and payment
shall be at the discretion of the board of directors.
8.2 Reserves. There may be created by the board of directors out of funds
of the Corporation legally available therefor such reserve or reserves as the
directors from time to time, in their discretion, consider proper to provide for
contingencies, to equalize dividends, or to repair or maintain any property of
the Corporation, or for such other purpose as the board of directors shall
consider beneficial to the Corporation, and the board of directors may modify or
abolish any such reserve in the manner in which it was created.
8.3 Books and Records. The Corporation shall keep correct and complete
books and records of account, shall keep minutes of the proceedings of its
stockholders and board of directors and shall keep at its registered office or
principal place of business, or at the office of its transfer agent or
registrar, a record of its stockholders, giving the names and addresses of all
stockholders and the number and class of the shares held by each.
8.4 Fiscal Year. The fiscal year of the Corporation shall be fixed by the
board of directors; provided, that if such fiscal year is not fixed by the board
of directors and the selection of the fiscal year is not expressly deferred by
the board of directors, the fiscal year shall be the calendar year.
8.5 Seal. The seal of the Corporation shall be such as from time to time
may be approved by the board of directors.
8.6 Resignations. Any director, committee member, or officer may resign by
so stating at any meeting of the board of directors or by giving written notice
to the board of directors, the Chairman of the Board, the President, or the
Secretary. Such resignation shall take effect at the time specified therein or,
if no time is specified therein, immediately upon its receipt. Unless otherwise
specified therein, the acceptance of such resignation shall not be necessary to
make it effective.
8.7 Securities of Other Corporations. The Chairman of the Board, the
President, or any Vice President of the Corporation shall have the power and
authority to transfer, endorse for transfer, vote, consent, or take any other
action with respect to any securities of another issuer which may be held or
owned by the Corporation and to make, execute, and deliver any waiver, proxy, or
consent with respect to any such securities.
8.8 Telephone Meetings. Stockholders (acting for themselves or through a
proxy), members of the board of directors, and members of a committee of the
board of directors may participate in and hold a meeting of such stockholders,
board of directors, or committee by means of a conference telephone or similar
communications equipment by means of which persons participating in the meeting
can hear each other, and participation in a meeting pursuant to this section
shall constitute presence in person at such meeting, except where a person
participates in the meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
8.9 Invalid Provisions. If any part of these by-laws shall be held invalid
or inoperative for any reason, the remaining parts, so far as it is possible and
reasonable, shall remain valid and operative.
8.10 Mortgages, etc. With respect to any deed, deed of trust, mortgage, or
other instrument executed by the Corporation through its duly authorized officer
or officers, the attestation to such execution by the Secretary of the
Corporation shall not be necessary to constitute such deed, deed of trust,
mortgage, or other instrument a valid and binding obligation against the
Corporation unless the resolutions, if any, of the board of directors
authorizing such execution expressly state that such attestation is necessary.
8.11 Headings. The headings used in these by-laws have been inserted for
administrative convenience only and do not constitute matter to be construed in
interpretation.
8.12 References. Whenever herein the singular number is used, the same
shall include the plural where appropriate, and words of any gender should
include each other gender where appropriate.
8.13 Amendments. The Board of Directors shall have the power to adopt,
alter, amend or repeal the by-laws of the Corporation by vote of not less than a
majority of the directors then in office. The holders of shares of capital stock
of the Corporation entitled at the time to vote for the election of directors
shall, to the extent such power is at the time conferred on them by applicable
law, also have the power to adopt, alter, amend or repeal the by-laws of the
Corporation, but only if such action receives the affirmative vote of at least
80% of the outstanding Voting Stock (as defined in the Corporation's Certificate
of Incorporation), voting together as a single class.
The undersigned, the Secretary of the Corporation, hereby certifies that
the foregoing by-laws were adopted by resolution of the directors of the
Corporation as of March 21, 2001.
/s/ David G. Hugley
David G. Hugley, Secretary
EXHIBIT 21.1
SUBSIDIARIES OF THE COMPANY
Unless noted as a Texas corporation, all subsidiaries are formed under
local law.
DASYTEC USA, Incorporated, a New Hampshire corporation
Hyperception, Inc.
measX GmbH
measX GmbH & Co., Kg
National Instruments Australia Corporation, a Texas corporation
National Instruments Belgium N.V., Belgium
National Instruments Brazil, Brazil
National Instruments Canada Corporation, a Texas corporation
National Instruments China Corporation, a Texas corporation
National Instruments (Czech Republic) s.r.o., Czech Republic
National Instruments Corporation (UK) Limited, United Kingdom
National Instruments de Mexico, S.A. de C.V., Mexico
National Instruments de Mexico Servicios, S.A. de C.V., Mexico
National Instruments Engineering GmbH, Germany
National Instruments Engineering GmbH & Co. KG, Germany
National Instruments Europe Corporation, a Texas corporation
National Instruments Europe Software and Hardware Manufacturing Limited
Liability Company Kft., Hungary
National Instruments Finland Oy, Finland
National Instruments France Corporation, a Texas corporation
National Instruments Germany GmbH, Germany
National Instruments Gesellschaft m.b.H., Salzburg, Austria
National Instruments Hellas Measurement and Automation Systems, E.P.E.,
Greece
National Instruments Hong Kong Limited, Hong Kong
National Instruments Hungary Trading Limited Liability Company
National Instruments (Ireland) Limited, Ireland
National Instruments Ireland Resources Limited
National Instruments Instrumentacija, avtomatizacija in upravljanje procesov
d.o.o., Slovenija
National Instruments International Holdings B.V., Netherlands
National Instruments Israel Ltd., Israel
National Instruments Italy s.r.l., Italy
National Instruments Japan Kabushiki Kaisha, Japan
National Instruments (Korea) Corporation, Korea
National Instruments Netherlands B.V., Netherlands
National Instruments New Zealand Limited, New Zealand
National Instruments Poland Sp.Zo.o, Poland
National Instruments Portugal Unipessoal Lda, Portugal
National Instruments Russia Corporation, a Texas corporation
National Instruments Scandinavia Corporation, a Texas corporation
National Instruments Services B.V., Netherlands
National Instruments Singapore (PTE) Ltd., Singapore
National Instruments Spain, S.L., Spain
National Instruments Sweden A.B., Sweden
National Instruments Switzerland Corporation, a Texas corporation
National Instruments Taiwan Corporation, a Texas corporation
National Instruments Thailand Ltd.
NICEC, Inc.
NI Hungary Software and Hardware Manufacturing Limited Liability Company
NI Solutions (Proprietary) Limited, South Africa
NI Systems (India) Private Limited, India
N.I. Export (Barbados) Ltd.
Shanghai NI Instruments LTD, China
Virtual Instruments SDN BHD, Malaysia
Washington Holding and Finance B.V.
EXHIBIT 23
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 (No. 333-91671) of National Instruments Corporation of our
report dated January 21, 2004 relating to the consolidated financial statements
and the financial statement schedule, which appears in this Form 10-K.
/S/ PRICEWATERHOUSECOOPERS LLP
--------------------------------
PricewaterhouseCoopers LLP
Austin, Texas
January 26, 2004
EXHIBIT 31.1
CERTIFICATION OF CHIEF EXECUTIVE OFFICER
PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, James Truchard, certify that:
1. I have reviewed this report on Form 10-K of National Instruments
Corporation;
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 annual
report;
3. Based on my knowledge, the financial statements, and other financial
information included in this annual 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 we
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 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: January 26, 2004
/s/ James Truchard
James Truchard
Chief Executive Officer
EXHIBIT 31.2
CERTIFICATION OF CHIEF FINANCIAL OFFICER
PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Alexander Davern, certify that:
1. I have reviewed this report on Form 10-K of National Instruments
Corporation;
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 annual
report;
3. Based on my knowledge, the financial statements, and other financial
information included in this annual 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 we
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 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: January 26, 2004
/s/ Alexander Davern
Alexander Davern
Chief Financial Officer
EXHIBIT 32.1
CERTIFICATION OF CHIEF EXECUTIVE OFFICER AND CHIEF FINANCIAL OFFICER
PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
I, James Truchard, 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 National Instruments Corporation on Form 10-K for the fiscal year
ended December 31, 2003 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 Form 10-K fairly presents in all material respects the financial condition
and results of operations of National Instruments Corporation.
By: /s/ James Truchard
Name: James Truchard
Title: Chief Executive Officer
I, Alexander Davern, 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 National Instruments Corporation on Form 10-K for the fiscal year
ended December 31, 2003 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 Form 10-K fairly presents in all material respects the financial condition
and results of operations of National Instruments Corporation.
By: /s/ Alexander Davern
Name: Alexander Davern
Title: Chief Financial Officer