UNITED STATES   

SECURITIES AND EXCHANGE COMMISSION   

Washington, D.C. 20549   

  

FORM 10-Q   

  

 Quarterly report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934   

  

For the quarterly period ended:  June 30, 2015 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   

  

NATI-20120630X10QG1.JPG   

NATIONAL INSTRUMENTS CORPORATION   

(Exact name of registrant as specified in its charter)   

 

 

 

 

Delaware   

(State or other jurisdiction of incorporation or organization)

 

74-1871327   

(I.R.S. Employer 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   

__________________________

  

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  No   

  

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes  No   

  

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer”, “accelerated filer”, and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):   

  

Large accelerated filer Accelerated filer Non-accelerated filer Smaller reporting company   

  

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes  No   

  

Indicate the number of shares outstanding of each of the issuer's classes of common stock, as of the latest practicable date.   

 

 

 

Class

Outstanding at July 28 , 2015

Common Stock - $0.01 par value

128,859,698

  

   

 

 

  


 

 

 

NATIONAL INSTRUMENTS CORPORATION   

  

INDEX   

 

 

 

 

 

 

 

 

 

 

PART I.  FINANCIAL INFORMATION  

Page No.

 

 

 

Item 1

Financial Statements:

 

 

 

 

 

Consolidated Balance Sheets

 

 

June  3 0 , 2015   (unaudited) and December 31, 201 4

2

 

 

 

 

Consolidated Statements of Income

 

 

(unaudited) for the three and six   month periods ended June  3 0 , 2015 and 2014

3

 

 

 

 

Consolidated Statements of Comprehensive Income

 

 

(unaudited) for the three and six   month periods   ended June 30 , 2015 and 2014

4

 

 

 

 

Consolidated Statements of Cash Flows

 

 

(unaudited) for the six month periods ended June 30 , 2015 and 2014

5

 

 

 

 

Notes to Consolidated Financial Statements

6

 

 

 

Item 2

Management's Discussion and Analysis of Financial Condition and Results of Operations

2 1

 

 

 

Item 3

Quantitative and Qualitative Disclosures about Market Risk

31

 

 

 

Item 4

Controls and Procedures

3 3

 

 

 

 

 

 

PART II.  OTHER INFORMATION  

 

 

 

 

 

 

 

Item 1

Legal Proceedings

3 4

 

 

 

Item 1A

Risk Factors

3 4

 

 

 

Item 2

Unregistered Sales of Equity Securities and Use of Proceeds

4 3

 

 

 

Item 5

Other Information

4 3

 

 

 

Item 6

Exhibits

44

 

 

 

 

Signatures and Certifications

4 5

 

  

    

1


 

 

   

  

PART I - FINANCIAL INFORMATION   

  

ITEM 1. Financial Statements   

  

NATIONAL INSTRUMENTS CORPORATION   

CONSOLIDATED BALANCE SHEETS   

(in thousands, except share data)   

  

  

  

  

 

 

 

 

 

 

 

 

June 30,

 

December 31,

 

 

2015

 

2014

Assets

 

(unaudited)

 

 

Current assets:

 

 

 

 

Cash and cash equivalents

$

232,784 

$

274,030 

Short-term investments

 

190,016 

 

197,163 

Accounts receivable, net

 

205,568 

 

202,329 

Inventories, net

 

187,411 

 

173,052 

Prepaid expenses and other current assets

 

80,885 

 

70,075 

Deferred income taxes, net

 

30,016 

 

31,171 

Total current assets

 

926,680 

 

947,820 

Property and equipment, net

 

264,146 

 

264,086 

Goodwill

 

167,491 

 

144,325 

Intangible assets, net

 

76,488 

 

78,282 

Other long-term assets

 

21,397 

 

20,978 

Total assets

$

1,456,202 

$

1,455,491 

Liabilities and stockholders' equity

 

 

 

 

Current liabilities:

 

 

 

 

Accounts payable

$

57,289 

$

58,603 

Accrued compensation

 

27,679 

 

33,774 

Deferred revenue - current

 

109,514 

 

105,964 

Accrued expenses and other liabilities

 

12,985 

 

14,714 

Other taxes payable

 

36,333 

 

34,602 

Total current liabilities

 

243,800 

 

247,657 

Deferred income taxes

 

45,765 

 

47,406 

Liability for uncertain tax positions

 

10,280 

 

10,127 

Deferred revenue - long-term

 

26,705 

 

26,452 

Other long-term liabilities

 

10,026 

 

6,353 

Total liabilities

 

336,576 

 

337,995 

Commitments and contingencies

 

 

 

 

Stockholders' equity:

 

 

 

 

Preferred stock:  par value $0.01;   5,000,000 shares authorized; none issued and outstanding  

 

 -

 

 -

Common stock:  par value $0.01;   360,000,000 shares authorized; 128,860,566 shares and 127,849,271 shares issued and outstanding , respectively

 

1,289 

 

1,278 

Additional paid-in capital

 

693,107 

 

662,889 

Retained earnings

 

449,023 

 

464,993 

Accumulated other comprehensive loss

 

(23,793)

 

(11,664)

Total stockholders’ equity

 

1,119,626 

 

1,117,496 

Total liabilities and stockholders’ equity

$

1,456,202 

$

1,455,491 

 

The accompanying notes are an integral part of the financial statements. 

2


 

 

  

NATIONAL INSTRUMENTS CORPORATION  

CONSOLIDATED STATEMENTS OF INCOME   

(in thousands, except per share data)  

(unaudited)  

  

  

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended

 

Six Months Ended

 

 

June 30,

 

June 30,

 

 

2015

 

2014

 

2015

 

2014

 

 

 

 

 

 

 

 

 

Net sales:

 

 

 

 

 

 

 

 

Product

$

273,807 

$

288,224 

$

535,381 

$

550,488 

Software maintenance

 

27,984 

 

24,487 

 

55,923 

 

46,897 

Total net sales

 

301,791 

 

312,711 

 

591,304 

 

597,385 

 

 

 

 

 

 

 

 

 

Cost of sales:

 

 

 

 

 

 

 

 

Product

 

75,621 

 

80,642 

 

150,502 

 

150,263 

Software maintenance

 

1,054 

 

1,179 

 

2,509 

 

2,760 

Total cost of sales

 

76,675 

 

81,821 

 

153,011 

 

153,023 

 

 

 

 

 

 

 

 

 

Gross profit

 

225,116 

 

230,890 

 

438,293 

 

444,362 

 

 

 

 

 

 

 

 

 

Operating expenses:

 

 

 

 

 

 

 

 

Sales and marketing

 

111,855 

 

119,374 

 

221,408 

 

231,290 

Research and development

 

55,409 

 

55,851 

 

115,929 

 

111,110 

General and administrative

 

23,165 

 

23,640 

 

46,136 

 

46,113 

Total operating expenses

 

190,429 

 

198,865 

 

383,473 

 

388,513 

 

 

 

 

 

 

 

 

 

Operating income

 

34,687 

 

32,025 

 

54,820 

 

55,849 

 

 

 

 

 

 

 

 

 

Other income:

 

 

 

 

 

 

 

 

Interest income

 

341 

 

234 

 

694 

 

431 

Net foreign exchange loss

 

(577)

 

(603)

 

(2,251)

 

(553)

Other income, net

 

25 

 

265 

 

653 

 

353 

Income before income taxes

 

34,476 

 

31,921 

 

53,916 

 

56,080 

Provision for income taxes

 

9,534 

 

7,398 

 

13,970 

 

12,834 

 

 

 

 

 

 

 

 

 

Net income

$

24,942 

$

24,523 

$

39,946 

$

43,246 

 

 

 

 

 

 

 

 

 

Basic earnings per share

$

0.19 

$

0.19 

$

0.31 

$

0.34 

 

 

 

 

 

 

 

 

 

Weighted average shares outstanding - basic

 

128,682 

 

126,887 

 

128,363 

 

126,433 

 

 

 

 

 

 

 

 

 

Diluted earnings per share

$

0.19 

$

0.19 

$

0.31 

$

0.34 

 

 

 

 

 

 

 

 

 

Weighted average shares outstanding - diluted

 

129,337 

 

127,512 

 

129,013 

 

127,123 

 

 

 

 

 

 

 

 

 

Dividends declared per share

$

0.19 

$

0.15 

$

0.38 

$

0.30 

 

Th e accompanying notes are an integral part of these financial statements .

3


 

 

   

  

NATIONAL INSTRUMENTS CORPORATION   

  CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME   

(in thousands )   

(unaudited)   

  

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended

 

Six Months Ended

 

 

June 30,

 

June 30,

 

 

2015

 

2014

 

2015

 

2014

 

 

 

 

 

 

 

 

 

Net income

$

24,942 

$

24,523 

$

39,946 

$

43,246 

Other comprehensive income, before tax and net of reclassification adjustments:

 

 

 

 

 

 

 

 

Foreign currency translation adjustment

 

4,467 

 

581 

 

(10,484)

 

(558)

Unrealized (loss) gain on securities available-for-sale

 

283 

 

(100)

 

789 

 

92 

Unrealized (loss) gain on derivative instruments

 

(7,718)

 

(87)

 

(6,736)

 

(1,960)

Other comprehensive (loss) gain, before tax

 

(2,968)

 

394 

 

(16,431)

 

(2,426)

Tax (benefit) expense related to items of other comprehensive income

 

(1,387)

 

133 

 

(4,302)

 

(640)

Other comprehensive (loss) gain, net of tax

 

(1,581)

 

261 

 

(12,129)

 

(1,786)

Comprehensive income

$

23,361 

$

24,784 

$

27,817 

$

41,460 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The accompanying notes are an integral part of these financial statements.

 

 

4


 

 

  

NATIONAL INSTRUMENTS CORPORATION  

CONSOLIDATED STATEMENTS OF CASH FLOWS   

(in thousands)   

(unaudited)   

  

  

 

 

 

 

 

 

 

 

 

 

 

 

 

Six Months Ended

 

 

June 30,

 

 

2015

 

2014

Cash flow from operating activities:

 

 

 

 

Net income

$

39,946 

$

43,246 

Adjustments to reconcile net income to net cash provided by operating activities:

 

 

 

 

Depreciation and amortization

 

36,502 

 

33,357 

Stock-based compensation

 

12,745 

 

12,881 

Tax (benefit) expense from deferred income taxes

 

(1,561)

 

1,398 

Tax benefit from stock option plans

 

(937)

 

(1,055)

Changes in operating assets and liabilities:

 

 

 

 

Accounts receivable

 

(2,748)

 

(30,140)

Inventories

 

(12,228)

 

4,815 

Prepaid expenses and other assets

 

(19,544)

 

(25,942)

Accounts payable

 

(2,082)

 

7,368 

Deferred revenue

 

3,692 

 

10,499 

Taxes, accrued expenses and other liabilities

 

(3,002)

 

12,011 

Net cash provided by operating activities

 

50,783 

 

68,438 

 

 

 

 

 

Cash flow from investing activities:

 

 

 

 

Capital expenditures

 

(20,626)

 

(22,109)

Capitalization of internally developed software

 

(11,446)

 

(16,797)

Additions to other intangibles

 

(520)

 

(1,634)

Acquisitions, net of cash received

 

(24,523)

 

 -

Purchases of short-term investments

 

(29,649)

 

(80,515)

Sales and maturities of short-term investments

 

36,796 

 

79,647 

Net cash used in investing activities

 

(49,968)

 

(41,408)

 

 

 

 

 

Cash flow from financing activities:

 

 

 

 

Proceeds from issuance of common stock

 

14,416 

 

17,124 

Repurchase of common stock

 

(8,545)

 

 -

Dividends paid

 

(48,869)

 

(37,976)

Tax benefit from stock option plans

 

937 

 

1,055 

Net cash used in financing activities

 

(42,061)

 

(19,797)

 

 

 

 

 

Net change in cash and cash equivalents

 

(41,246)

 

7,233 

Cash and cash equivalents at beginning of period

 

274,030 

 

230,263 

Cash and cash equivalents at end of period

$

232,784 

$

237,496 

 

The accompanying notes are an integral part of these financial statements.  

5


 

 

  

NATIONAL INSTRUMENTS CORPORATION 

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS   

  

Note 1 – Basis of presentation  

  

The accompanying unaudited consolidated financial statements should be read in conjunction with the consolidated financial statements and notes thereto for the year ended December 31, 2014, included in our annual report on Form 10-K, filed with the Securities and Exchange Commission. In our opinion, the accompanying consolidated financial statements reflect all adjustments (consisting only of normal recurring items) considered necessary to present fairly our financial position at June 30, 2015 and December 31, 2014, and the results of our operations and comprehensive income for the three and six month periods ended June 30, 2015, and the cash flows for the six month period ended June 30, 2015. Our operating results for the three and six month periods ended June 30, 2015 are not necessarily indicative of the results that may be expected for the year ending December 31, 2015. These financial statements have been prepared in accordance with accounting principles generally accepted in the United States.

 

 

  

    

Note 2 – 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. The number of common share equivalents, which include stock options and restricted stock units (“RSUs”), is computed using the treasury stock method.  

  

The reconciliation of the denominators used to calculate basic EPS and diluted EPS for the three and six month periods ended June 30, 2015 and 2014 , are as follows:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended June 30,

 

Six Months Ended June 30,

 

(In thousands)

 

(In thousands)

 

(Unaudited)

 

(Unaudited)

 

2015

 

2014

 

2015

 

2014

Weighted average shares outstanding-basic

128,682 

 

126,887 

 

128,363 

 

126,433 

Plus: Common share equivalents

 

 

 

 

 

 

 

Stock options and RSUs

655 

 

625 

 

650 

 

690 

Weighted average shares outstanding-diluted

129,337 

 

127,512 

 

129,013 

 

127,123 

  

Stock awards to acquire 556,000 shares and 13,500 shares for the three month periods ended June 30, 2015 and 2014, respectively, and 304,000 shares and 29,400 shares for the six month periods ended June 30, 2015 and 2014, respectively, were excluded in the computations of diluted EPS because the effect of including the stock awards would have been anti-dilutive.

 

   

Note 3 – Cash, cash equivalents and short-term investments  

  

The following tables summarize unrealized gains and losses related to our cash, cash equivalents, and short-term investments designated as available-for-sale:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

As of June 30, 2015

(In thousands)

 

(Unaudited)

 

 

 

 

Gross

 

Gross

 

Cumulative

 

 

 

 

Adjusted Cost

 

Unrealized Gain

 

Unrealized Loss

 

Translation Adjustment

 

Fair Value

Cash

$

133,791 

$

 -

$

 -

$

 -

$

133,791 

Money Market Accounts

 

98,993 

 

 -

 

 -

 

 -

 

98,993 

Corporate bonds

 

126,798 

 

60 

 

(132)

 

(8,922)

 

117,804 

U.S. treasuries and agencies

 

69,231 

 

69 

 

 -

 

 -

 

69,300 

Foreign government bonds

 

 -

 

 -

 

 -

 

 -

 

 -

Time deposits

 

2,912 

 

 -

 

 -

 

 -

 

2,912 

Cash, cash equivalents, and short-term investments

$

431,725 

$

129 

$

(132)

$

(8,922)

$

422,800 

 

6


 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(In thousands)

 

December 31, 2014

 

 

 

 

Gross

 

Gross

 

Cumulative

 

 

 

 

Adjusted Cost

 

Unrealized Gain

 

Unrealized Loss

 

Translation Adjustment

 

Fair Value

Cash

$

149,598 

$

 -

$

 -

$

 -

$

149,598 

Money Market Accounts

 

124,432 

 

 -

 

 -

 

 -

 

124,432 

Corporate bonds

 

118,242 

 

54 

 

(254)

 

(4,966)

 

113,076 

U.S. treasuries and agencies

 

73,919 

 

 

(8)

 

 -

 

73,912 

Foreign government bonds

 

8,841 

 

 

 -

 

(1,586)

 

7,263 

Time deposits

 

2,912 

 

 -

 

 -

 

 -

 

2,912 

Cash, cash equivalents, and short-term investments

$

477,944 

$

63 

$

(262)

$

(6,552)

$

471,193 

  

The following tables summarize the contractual maturities of our short-term investments designated as available-for-sale:

 

 

 

 

 

 

 

 

 

 

 

 

 

As of June 30, 2015

(In thousands)

 

(Unaudited)

 

 

Adjusted Cost

 

Fair Value

Due in less than 1 year

$

104,303 

$

104,371 

Due in 1 to 5 years

 

94,638 

 

85,645 

Total available-for-sale debt securities

$

198,941 

$

190,016 

 

 

 

 

 

Due in less than 1 year

 

Adjusted Cost

 

Fair Value

Corporate bonds

$

36,937 

$

36,959 

U.S. treasuries and agencies

 

64,454 

 

64,500 

Foreign government bonds

 

 -

 

 -

Time deposits

 

2,912 

 

2,912 

Total available-for-sale debt securities

$

104,303 

$

104,371 

 

 

 

 

 

Due in 1 to 5 years

 

Adjusted Cost

 

Fair Value

Corporate bonds

$

89,861 

$

80,845 

U.S. treasuries and agencies

 

4,777 

 

4,800 

Total available-for-sale debt securities

$

94,638 

$

85,645 

  

 

  

    

Note 4 – Fair value measurements 

  

We define fair value to be the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date. When determining the fair value measurements for assets and liabilities required or permitted to be recorded at fair value, we consider the principal or most advantageous market that market participants may use when pricing the asset or liability.   

We follow a fair value hierarchy that prioritizes the inputs to valuation techniques used to measure fair value. Fair value measurement is determined based on the lowest level input that is significant to the fair value measurement. The three values of the fair value hierarchy are the following:   

Level 1 – Quoted prices in active markets for identical assets or liabilities   

Level 2 – Inputs other than quoted prices included within Level 1 that are observable for the asset or liability, either directly or indirectly   

Level 3 – Inputs that are not based on observable market data   

7


 

 

Assets and liabilities measured at fair value on a recurring basis are summarized below:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Fair Value Measurements at Reporting Date Using

(In thousands)

 

(Unaudited)

Description

 

June 30, 2015

 

Quoted Prices in Active Markets for Identical Assets (Level 1)

 

Significant Other Observable Inputs (Level 2)

 

Significant Unobservable Inputs (Level 3)

Assets

 

 

 

 

 

 

 

 

Cash and cash equivalents available for sale:

 

 

 

 

 

 

 

 

Money Market Funds

$

98,993 

$

98,993 

$

 -

$

 -

Short-term investments available for sale:

 

 

 

 

 

 

 

 

Corporate bonds

 

117,804 

 

 -

 

117,804 

 

 -

U.S. treasuries and agencies

 

69,300 

 

 -

 

69,300 

 

 -

Time deposits

 

2,912 

 

2,912 

 

 -

 

 -

Derivatives

 

12,356 

 

 -

 

12,356 

 

 -

Total Assets  

$

301,365 

$

101,905 

$

199,460 

$

 -

 

 

 

 

 

 

 

 

 

Liabilities

 

 

 

 

 

 

 

 

Derivatives

$

(8,131)

$

 -

$

(8,131)

$

 -

Total Liabilities  

$

(8,131)

$

 -

$

(8,131)

$

 -

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(In thousands)

 

Fair Value Measurements at Reporting Date Using

Description

 

December 31, 2014

 

Quoted Prices in Active Markets for Identical Assets (Level 1)

 

Significant Other Observable Inputs (Level 2)

 

Significant Unobservable Inputs (Level 3)

Assets

 

 

 

 

 

 

 

 

Cash and cash equivalents available for sale:

 

 

 

 

 

 

 

 

Money Market Funds

$

124,432 

$

124,432 

$

 -

$

 -

Short-term investments available for sale:

 

 

 

 

 

 

 

 

Corporate bonds

 

113,076 

 

 -

 

113,076 

 

 -

U.S. treasuries and agencies

 

73,912 

 

 -

 

73,912 

 

 -

Foreign government bonds

 

7,263 

 

 -

 

7,263 

 

 -

Time deposits

 

2,912 

 

2,912 

 

 -

 

 -

Derivatives

 

16,151 

 

 -

 

16,151 

 

 -

Total Assets  

$

337,746 

$

127,344 

$

210,402 

$

 -

 

 

 

 

 

 

 

 

 

Liabilities

 

 

 

 

 

 

 

 

Derivatives

$

(4,253)

$

 -

$

(4,253)

$

 -

Total Liabilities  

$

(4,253)

$

 -

$

(4,253)

$

 -

 

We value our available-for-sale short-term investments based on pricing from third party pricing vendors, who may use quoted prices in active markets for identical assets (Level 1 inputs) or inputs other than quoted prices that are observable either directly or indirectly (Level 2 inputs) in determining fair value. We classify all of our fixed income available-for-sale securities as having Level 2 inputs. The valuation techniques used to measure the fair value of our financial instruments having Level 2 inputs were derived from non-binding market consensus prices that are corroborated by observable market data, quoted market prices for similar instruments, or pricing models, such as discounted cash flow techniques. We believe all of these sources reflect the credit risk associated with each of our available-for-sale short-term investments. Short-term investments available-for-sale consists of debt securities issued by states of the U.S. and political subdivisions of the U.S., corporate debt securities and debt securities issued by U.S. government organizations and agencies as well as debt securities issued by foreign governments. All short-term investments available-for-sale have contractual maturities  of less than 36 months .  

  

8


 

 

Derivatives include foreign currency forward and option contracts. Our foreign currency forward contracts are valued using an income approach (Level 2) based on the spot rate less the contract rate multiplied by the notional amount. Our foreign currency option contracts are valued using a market approach based on the quoted market prices which are derived from observable inputs including current and future spot rates, interest rate spreads as well as quoted market prices of similar instruments. We consider counterparty credit risk in the valuation of our derivatives. However, counterparty credit risk did not impact the valuation of our derivatives during the six month period ended June 30, 2015. There were no transfers in or out of Level 1 or Level 2 during the   six month period ended June 30, 2015 .   

  

As of June 30, 2015, our short-term investments did not include sovereign debt from any country other than the United States.  

  

We did not have any items that were measured at fair value on a nonrecurring basis at June 30, 2015 and December 31, 2014 .  

  

The carrying value of net accounts receivable and accounts payable contained in the Consolidated Balance Sheets approximates fair value.

 

Note 5 – Derivative instruments and hedging activities  

  

We recognize all of our derivative instruments as either assets or liabilities in our statement of financial position at fair value. The accounting for changes in the fair value (i.e., gains or losses) of a derivative instrument depends on whether it has been designated and qualifies as part of a hedging relationship and further, on the type of hedging relationship. For those derivative instruments that are designated and qualify as hedging instruments, we designate the hedging instrument, based upon the exposure being hedged, as a fair value hedge, cash flow hedge, or a hedge of a net investment in a foreign operation.

   

We have operations in over 50 countries. Sales outside of the Americas accounted for approximately 58% and 62% of our net sales during the three month periods ended June 30, 2015 and 2014, respectively, and 59% and 61% of our net sales during the six month periods ended June 30, 2015 and 2014, respectively. Our activities expose us to a variety of market risks, including the effects of changes in foreign currency exchange rates. These financial risks are monitored and managed by us as an integral part of our overall risk management program.   

  

We maintain a foreign currency risk management strategy that uses derivative instruments (foreign currency forward and purchased option contracts) to help protect our earnings and cash flows from fluctuations caused by the volatility in currency exchange rates. Movements in foreign currency exchange rates pose a risk to our operations and competitive position, in that exchange rate changes may affect our profitability and cash flow, and the business or pricing strategies of our non-U.S. based competitors.

   

The vast majority of our foreign sales are denominated in the customers’ local currency. We purchase foreign currency forward and option 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 help 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. We also purchase foreign currency forward contracts as hedges of forecasted expenses that are denominated in foreign currencies. These contracts are entered into to help protect against the risk that the eventual dollar-net-cash outflows resulting from foreign currency operating and cost of sales expenses will be adversely affected by changes in exchange rates.

   

We designate foreign currency forward and purchased option contracts as cash flow hedges of forecasted net sales or forecasted expenses. In addition, we hedge our foreign currency denominated balance sheet exposures using foreign currency forward contracts that are not designated as hedging instruments. None of our derivative instruments contain a credit-risk-related contingent feature.

 

   Cash flow hedges  

 

  To help protect against the reduction in value caused by a fluctuation in foreign currency exchange rates of forecasted foreign currency cash flows resulting from international sales over the next one to three years, we have instituted a foreign currency cash flow hedging program. We hedge portions of our forecasted net sales and forecasted expenses denominated in foreign currencies with forward and purchased option contracts. For forward contracts, when the dollar strengthens significantly against the foreign currencies, the change in the present value of future foreign currency cash flows may be offset by the change in the fair value of the forward contracts designated as hedges. For option contracts, when the dollar strengthens significantly against the foreign currencies, the change in the present value of future foreign currency cash flows may be offset by the change in the fair value of the option contracts net of the premium paid designated as hedges. Our foreign currency purchased option contracts are purchased “at-the-money” or “out-of-the-money . ” We purchase foreign currency forward and option contracts for up to 100 % of our forecasted exposures in selected currencies (primarily in Euro, Japanese yen, Hungarian forint , British pound, and Malaysian ringgit ) and limit the duration of these contracts to 40 months or less.  

9


 

 

 

For derivative instruments that are designated and qualify as a cash flow hedge, the effective portion of the gain or loss on the derivative is reported as a component of accumulated other comprehensive income (“OCI”) and reclassified into earnings in the same line item (net sales, operating expenses, or cost of sales) associated with the forecasted transaction and in the same period or periods during which the hedged transaction affects earnings. Gains and losses on the derivative representing either hedge ineffectiveness or hedge components excluded from the assessment of effectiveness are recognized in current earnings or expenses during the current period and are classified as a component of “net foreign exchange loss.” Hedge effectiveness of foreign currency forwards and purchased option contracts designated as cash flow hedges are measured by comparing the hedging instrument’s cumulative change in fair value from inception to maturity to the forecasted transaction’s terminal value.    

 

We held forward contracts with the following notional amounts:

 

 

 

 

 

 

 

 

 

 

(In thousands)

 

US Dollar Equivalent

 

 

As of June 30, 2015

 

As of December 31,

 

 

(Unaudited)

 

2014

Euro

$

54,053 

$

97,198 

Japanese yen

 

3,451 

 

7,798 

Hungarian forint

 

52,086 

 

61,067 

British pound

 

11,227 

 

22,809 

Malaysian ringgit

 

16,072 

 

10,241 

Total forward contracts notional amount

$

136,889 

$

199,113 

  

The contracts in the foregoing table had contractual maturities of 36 months or less at June 30, 2015 and December 31, 2014.  

  

At June 30, 2015, we expect to reclassify $12 million of gains on derivative instruments from accumulated OCI to net sales during the next twelve months when the hedged international sales occur, $1.9 million of losses on derivative instruments from accumulated OCI to cost of sales during the next twelve months when the cost of sales are incurred and $1.5 million of losses on derivative instruments from accumulated OCI to operating expenses during the next twelve months when the hedged operating expenses occur. Expected amounts are based on derivative valuations at June 30, 2015. Actual results may vary materially as a result of changes in the corresponding exchange rates subsequent to this date.  

  

We did not record any ineffectiveness from our hedges during the three and six month periods ended June 30, 2015 and 2014.  

 

Other Derivatives  

Other derivatives not designated as hedging instruments consist primarily of foreign currency forward contracts that we use to hedge our foreign denominated net receivable or net payable positions to protect against the change in value caused by a fluctuation in foreign currency exchange rates. We typically attempt to hedge up to 90 % of our outstanding foreign denominated net receivables or net payables and typically limit the duration of these foreign currency forward contracts to approximately 120 days or less. The gain or loss on the derivatives as well as the offsetting gain or loss on the hedge item attributable to the hedged risk is recognized in current earnings under the line item “net foreign exchange loss.” As of June 30, 2015 and December 31, 2014, we held foreign currency forward contracts with a notional amount of $ 81 million and $ 78 million , respectively.   

10


 

 

The following tables present the fair value of derivative instruments on our Consolidated Balance Sheets at June 30, 2015 and December 31, 2014 , respectively.    

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Asset Derivatives

 

June 30, 2015

December 31, 2014

(In thousands)

(Unaudited)

 

 

 

 

 

 

 

 

 

 

 

Balance Sheet Location

 

Fair Value

Balance Sheet Location

 

Fair Value

Derivatives designated as hedging instruments

 

 

 

 

 

 

Foreign exchange contracts - ST forwards

Prepaid expenses and other current assets

$

11,598 

Prepaid expenses and other current assets

$

14,492 

 

 

 

 

 

 

 

Foreign exchange contracts - LT forwards

Other long-term assets

 

 -

Other long-term assets

 

 -

Total derivatives designated as hedging instruments

 

$

11,598 

 

$

14,492 

 

 

 

 

 

 

 

Derivatives not designated as hedging instruments

 

 

 

 

 

 

 

 

 

 

 

 

 

Foreign exchange contracts - ST forwards

Prepaid expenses and other current assets

$

758 

Prepaid expenses and other current assets

$

1,659 

Total derivatives not designated as hedging instruments

 

$

758 

 

$

1,659 

 

 

 

 

 

 

 

Total derivatives

 

$

12,356 

 

$

16,151 

 

   

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Liability Derivatives

 

June 30, 2015

December 31, 2014

(In thousands)

(Unaudited)

 

 

 

 

 

 

 

 

 

 

 

Balance Sheet Location

 

Fair Value

Balance Sheet Location

 

Fair Value

Derivatives designated as hedging instruments

 

 

 

 

 

 

Foreign exchange contracts - ST forwards

Accrued expenses and other liabilities

$

(3,373)

Accrued expenses and other liabilities

$

(1,937)

 

 

 

 

 

 

 

Foreign exchange contracts - LT forwards

Other long-term liabilities

 

(3,830)

Other long-term liabilities

 

(1,536)

Total derivatives designated as hedging instruments

 

$

(7,203)

 

$

(3,473)

 

 

 

 

 

 

 

Derivatives not designated as hedging instruments

 

 

 

 

 

 

 

 

 

 

 

 

 

Foreign exchange contracts - ST forwards

Accrued expenses and other liabilities

$

(928)

Accrued expenses and other liabilities

$

(780)

Total derivatives not designated as hedging instruments

 

$

(928)

 

$

(780)

 

 

 

 

 

 

 

Total derivatives

 

$

(8,131)

 

$

(4,253)

 

11


 

 

The following tables present the effect of derivative instruments on our Consolidated Statements of Income for three month periods ended June 30, 2015 and 2014, respectively:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

June 30, 2015

(In thousands)

(Unaudited)

Derivatives in Cash Flow Hedging Relationship

 

Gain or (Loss) Recognized in OCI on Derivative (Effective Portion)

Location of Gain or (Loss) Reclassified from Accumulated OCI into Income (Effective Portion)

 

Gain or (Loss) Reclassified from Accumulated OCI into Income (Effective Portion)

Location of Gain or (Loss) Recognized in Income on Derivative (Ineffective Portion)

 

Gain or (Loss) Recognized in Income on Derivative (Ineffective Portion)

Foreign exchange contracts - forwards and options

$

(8,096)

Net sales

$

5,201 

Net foreign exchange gain/(loss)

$

 -

 

 

 

 

 

 

 

 

 

Foreign exchange contracts - forwards and options

 

258 

Cost of sales

 

(509)

Net foreign exchange gain/(loss)

 

 -

 

 

 

 

 

 

 

 

 

Foreign exchange contracts - forwards and options

 

120 

Operating expenses

 

(378)

Net foreign exchange gain/(loss)

 

 -

Total

$

(7,718)

 

$

4,314 

 

$

 -

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

June 30, 2014

(In thousands)

(Unaudited)

Derivatives in Cash Flow Hedging Relationship

 

Gain or (Loss) Recognized in OCI on Derivative (Effective Portion)

Location of Gain or (Loss) Reclassified from Accumulated OCI into Income (Effective Portion)

 

Gain or (Loss) Reclassified from Accumulated OCI into Income (Effective Portion)

Location of Gain or (Loss) Recognized in Income on Derivative (Ineffective Portion)

 

Gain or (Loss) Recognized in Income on Derivative (Ineffective Portion)

Foreign exchange contracts - forwards and options

$

58 

Net sales

$

(231)

Net foreign exchange gain/(loss)

$

 -

 

 

 

 

 

 

 

 

 

Foreign exchange contracts - forwards and options

 

(142)

Cost of sales

 

101 

Net foreign exchange gain/(loss)

 

 -

 

 

 

 

 

 

 

 

 

Foreign exchange contracts - forwards and options

 

(3)

Operating expenses

 

86 

Net foreign exchange gain/(loss)

 

 -

Total

$

(87)

 

$

(44)

 

$

 -

 

 

 

 

 

 

 

 

(In thousands)

 

 

 

 

 

Derivatives not Designated as Hedging Instruments

Location of Gain (Loss) Recognized in Income

 

Amount of Gain (Loss) Recognized in Income

 

Amount of Gain (Loss) Recognized in Income

 

 

 

June 30, 2015

 

June 30, 2014

 

 

 

(Unaudited)

 

(Unaudited)

Foreign exchange contracts - forwards

Net foreign exchange gain/(loss)

$

(1,306)

$

(742)

 

 

 

 

 

 

Total

 

$

(1,306)

$

(742)

  

 

12


 

 

The following tables present the effect of derivative instruments on our Consolidated Statements of Income for the six month periods ended June 30, 2015 and 2014, respectively:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

June 30, 2015

(In thousands)

(Unaudited)

Derivatives in Cash Flow Hedging Relationship

 

Gain or (Loss) Recognized in OCI on Derivative (Effective Portion)

Location of Gain or (Loss) Reclassified from Accumulated OCI into Income (Effective Portion)

 

Gain or (Loss) Reclassified from Accumulated OCI into Income (Effective Portion)

Location of Gain or (Loss) Recognized in Income on Derivative (Ineffective Portion)

 

Gain or (Loss) Recognized in Income on Derivative (Ineffective Portion)

Foreign exchange contracts - forwards and options

$

(2,893)

Net sales

$

10,282 

Net foreign exchange gain/(loss)

$

 -

 

 

 

 

 

 

 

 

 

Foreign exchange contracts - forwards and options

 

(1,959)

Cost of sales

 

(842)

Net foreign exchange gain/(loss)

 

 -

 

 

 

 

 

 

 

 

 

Foreign exchange contracts - forwards and options

 

(1,884)

Operating expenses

 

(742)

Net foreign exchange gain/(loss)

 

 -

Total

$

(6,736)

 

$

8,698 

 

$

 -

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

June 30, 2014

(In thousands)

(Unaudited)

Derivatives in Cash Flow Hedging Relationship

 

Gain or (Loss) Recognized in OCI on Derivative (Effective Portion)

Location of Gain or (Loss) Reclassified from Accumulated OCI into Income (Effective Portion)

 

Gain or (Loss) Reclassified from Accumulated OCI into Income (Effective Portion)

Location of Gain or (Loss) Recognized in Income on Derivative (Ineffective Portion)

 

Gain or (Loss) Recognized in Income on Derivative (Ineffective Portion)

Foreign exchange contracts - forwards and options

$

(977)

Net sales

$

115 

Net foreign exchange gain/(loss)

$

 -

 

 

 

 

 

 

 

 

 

Foreign exchange contracts - forwards and options

 

(739)

Cost of sales

 

182 

Net foreign exchange gain/(loss)

 

 -

 

 

 

 

 

 

 

 

 

Foreign exchange contracts - forwards and options

 

(244)

Operating expenses

 

104 

Net foreign exchange gain/(loss)

 

 -

Total

$

(1,960)

 

$

401 

 

$

 -

 

 

 

 

 

 

 

 

 

 

(In thousands)

 

 

 

 

 

Derivatives not Designated as Hedging Instruments

Location of Gain (Loss) Recognized in Income

 

Amount of Gain (Loss) Recognized in Income

 

Amount of Gain (Loss) Recognized in Income

 

 

 

June 30, 2015

 

June 30, 2014

 

 

 

(Unaudited)

 

(Unaudited)

Foreign exchange contracts - forwards

Net foreign exchange gain/(loss)

$

639 

$

(810)

 

 

 

 

 

 

Total

 

$

639 

$

(810)

 

  

    

 

13


 

 

Note 6 – Inventories , net  

  

Inventories, net consist of the following:  

 

 

 

 

 

 

 

June 30, 2015

 

December 31,

(In thousands)

 

(Unaudited)

 

2014

 

 

 

 

 

Raw materials  

$

96,154 

$

79,376 

Work-in-process

 

8,564 

 

6,675 

Finished goods

 

82,693 

 

87,001 

 

$

187,411 

$

173,052 

 

  

Note 7 – Intangible assets, net   

  

Intangible assets at June 30, 2015 and December 31, 2014 are as follows:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

June 30, 2015

 

 

(In thousands)

 

(Unaudited)

 

December 31, 2014

 

 

Gross Carrying Amount

 

Accumulated Amortization

 

Net Carrying Amount

 

Gross Carrying Amount

 

Accumulated Amortization

 

Net Carrying Amount

Capitalized software development costs

$

68,892 

$

(30,710)

$

38,182 

$

58,343 

$

(22,853)

$

35,490 

Acquired technology

 

85,528 

 

(65,398)

 

20,130 

 

88,216 

 

(65,663)

 

22,553 

Patents

 

28,373 

 

(13,812)

 

14,561 

 

27,791 

 

(12,859)

 

14,932 

Other

 

27,149 

 

(23,534)

 

3,615 

 

28,380 

 

(23,073)

 

5,307 

 

$

209,942 

$

(133,454)

$

76,488 

$

202,730 

$

(124,448)

$

78,282 

  

  

Software development costs capitalized for each of the three month periods ended June 30, 2015 and 2014 were  $ 9.6 million, and related amortization expense was $4.6 million and $3.0 million, respectively. For the six month periods ended June 30, 2015 and 2014, capitalized software development costs were $12 million and $18 million, respectively, and related amortization expense was $9.2 million and $6.1 million, respectively. Capitalized software development costs for the three month periods ended June 30, 2015 and 2014 included costs related to stock based compensation of $ 375,000 and $ 422,000 , respectively. For the six month periods ended June 30, 2015 and 2014, capitalized software development costs included costs related to stock based compensation of $471,000 and $800,000 , respectively. The related amounts in the table above are net of fully amortized assets.

 

Amortization of capitalized software development costs is computed on an individual product basis for those products available for market and is recognized based on the product’s estimated economic life, generally three years. Acquired technology and other intangible assets are amortized over their useful lives, which range from three to eight years. Patents are amortized using the straight-line method over their estimated period of benefit, generally 10 to 17 years. Total intangible assets amortization expenses were $ 8.9 million and $ 7.3 million for the three months ended June 30, 2015 and 2014, respectively, and $18 m illion and $15 million for the six month periods ended June 30, 2015 and 2014, respectively.

 

 Note 8 – Goodwill  

  

The carrying amount of goodwill as of June 30, 2015 , was as follows:

 

 

 

 

 

 

 

 

Amount

 

 

(In thousands)

Balance as of December 31, 2014

$

144,325 

Acquisitions

 

24,429 

Foreign currency translation impact

 

(1,263)

Balance as of June 30, 2015 (unaudited)

$

167,491 

 

The excess purchase price over the fair value of assets acquired is recorded as goodwill. As we have one operating segment, we allocate goodwill to one reporting unit for goodwill impairment testing. Goodwill is tested for impairment on an annual basis, and between annual tests if indicators of potential impairment exist, using a fair-value-based approach based on the market capitalization of the reporting unit. Our annual impairment test was performed as of February 28, 201 5 .   No impairment of goodwill was identified during 201 5 or 2014 .  

 

See “Note 17 – Acquisitions” of Notes to Consolidated Financial Statements for additional discussion related to our acquisitions in the first quarter of 2015.

14


 

 

 

     

Note 9 – Income taxes   

  

We account for income taxes under the asset and liability method. 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.  

  

We account for uncertainty in income taxes recognized in our financial statements using prescribed recognition thresholds and measurement attributes for financial statement disclosure of tax positions taken or expected to be taken on our tax returns. We had $ 11.2 million and $ 11.1 million of unrecognized tax benefits at June 30, 2015 and December 31, 2014, respectively, all of which would affect our effective income tax rate if recognized. We recorded a gross decrease in unrecognized tax benefits of $52,000 for the three month period ended June 30, 2015, as a result of tax positions taken during this period. Our continuing policy is to recognize interest and penalties related to income tax matters in income tax expense. As of June 30, 2015, we had approximately $1.0 million accrued for interest related to uncertain tax positions. The tax years 2008 through 2014 remain open to examination by the major taxing jurisdictions to which we are subject.  

 

Our provision for income taxes reflected an effective tax rate of 28% and 23% for the three month periods ended June 30, 2015 and 2014, respectively, and 26% and 23% for the six month periods ended June 30, 2015 and 2014, respectively. For the three and six month periods ended June 30, 2015 and 2014, our effective tax rate was lower than the U.S. federal statutory rate of 35 % as a result of an enhanced deduction for certain research and development expenses, profits in foreign jurisdictions with reduced income tax rates, and a tax benefit from disqualifying dispositions of equity awards that do not ordinarily result in a tax benefit.

 

Our earnings in Hungary are subject to a statutory tax rate of 19 %. The difference between this rate and the statutory U.S. rate of 35% resulted in income tax benefits of $ 837,000 and $ 2.4 million for the three month periods ended June 30, 2015 and 2014, respectively, and $1.7 million and   $4.0 million for the six month periods ended June 30, 2015 and 2014, respectively.

  

The tax position of our Hungarian operation continues to benefit from assets created by the restructuring of our operations in Hungary. In addition, our research and development activities in Hungary continue to benefit from a tax law in Hungary that provides for an enhanced deduction for qualified research and development expenses. Partial release of the valuation allowance on assets from the restructuring and the enhanced tax deduction for research expenses resulted in income tax benefits of $2.4 million and $ 3.2 million for the three month periods ended June 30, 2015 and 2014, respectively , and $4.2 million and   $5.8 million for the six month periods ended June 30, 2015 and 2014, respectively.

 

Earnings from our operations in Malaysia are free of tax under a tax holiday effective January 1, 2013. This tax holiday expires in 2027. If we fail to satisfy the conditions of the tax holiday, this tax benefit may be terminated early. The tax holiday resulted in income tax benefits of $1.3 million and $6,000 for the three month periods ended June 30, 2015 and 2014, respectively, and $1.8 million and $311,000 for the six month periods ended June 30, 2015 and 2014, respectively.

 

No other taxing jurisdictions had a significant impact on our effective tax rate. We have not entered into any advanced pricing or other agreements with the IRS with regard to any foreign jurisdictions.

       

 

15


 

 

Note 10 – Comprehensive income     

 

Our comprehensive income is comprised of net income, foreign currency translation, unrealized gains and losses on forward and option contracts and securities classified as available-for-sale. The accumulated other comprehensive income, net of tax, for the six month periods ended June 30, 2015 and 2014 , consisted of the following:    

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

June 30, 2015

 

 

(Unaudited)

(In thousands)

 

Currency translation adjustment

 

Investments

 

Derivative instruments

 

Accumulated other comprehensive income/(loss)

Balance as of December 31, 2014

$

(17,304)

$

(1,399)

$

7,039 

$

(11,664)

Current-period other comprehensive (loss) income

 

(10,484)

 

789 

 

1,962 

 

(7,733)

Reclassified from accumulated OCI into income

 

 -

 

 -

 

(8,698)

 

(8,698)

Income tax (benefit) expense

 

(2,177)

 

193 

 

(2,318)

 

(4,302)

Balance as of  June 30, 2015

$

(25,611)

$

(803)

$

2,621 

$

(23,793)

 

 

 

 

 

 

 

 

 

 

 

 

 

June 30, 2014

 

 

(Unaudited)

(In thousands)

 

Currency translation adjustment

 

Investments

 

Derivative instruments

 

Accumulated other comprehensive income/(loss)

Balance as of December 31, 2013

$

1,311 

$

(1,066)

$

2,305 

$

2,550 

Current-period other comprehensive (loss) income

 

(558)

 

92 

 

(1,559)

 

(2,025)

Reclassified from accumulated OCI into income

 

 -

 

 -

 

(401)

 

(401)

Income tax (benefit) expense

 

(120)

 

39 

 

(559)

 

(640)

Balance as of  June 30, 2014

$

873 

$

(1,013)

$

904 

$

764 

 

 

  

    

Note 11 – Authorized shares of common and preferred stock and stock-based compensation plans

  

Authorized shares of common and preferred stock

 

Following approval by the Company’s Board of Directors and stockholders, on May 14, 2013, the Company’s certificate of incorporation was amended to increase the authorized shares of common stock by 180,000,000 shares to a total of 360,000,000 shares. As a result of this amendment, the total number of shares which the Company is authorized to issue is 365,000,000 shares, consisting of (i) 5,000,000 shares of preferred stock, par value $.01 per share, and (ii) 360,000,000 shares of common stock, par value $.01 per share.

 

Stock option plans  

  

Our stockholders approved the 1994 Incentive Stock Option Plan (the “1994 Plan”) in May 1994. At the time of approval, 13,668,750 shares of our common stock were reserved for issuance under this plan. In 1997, an additional 10,631,250 shares of our common stock were reserved for issuance under this plan, and an additional 1,125,000 shares were reserved for issuance under this plan in 2004. The 1994 Plan terminated in May 2005, except with respect to outstanding awards previously granted thereunder.  

  

Awards under the plan were either incentive stock options within the meaning of Section 422 of the Internal Revenue Code or nonqualified options. The right to purchase shares under the options vested over a five to ten -year period, beginning on the date of grant. Vesting of ten year awards may have accelerated based on the Company’s previous year’s earnings and revenue growth but shares could not accelerate to vest over a period of less than five years. Stock options were required to be exercised within ten years from date of grant. Stock options were issued with an exercise price which was equal to the market price of our common stock at the grant date. We estimated the potential forfeitures of stock grants and adjusted the compensation cost recorded accordingly. During the six month period ended June 30, 2015, we did not make any changes in accounting principles or methods of estimates related to the 1994 Plan.  

16


 

 

Restricted stock plan  

  

Our stockholders approved our 2005 Incentive Plan (the “2005 Plan”) in May 2005. At the time of approval, 4,050,000 shares of our common stock were reserved for issuance under this plan, as well as the number of shares which had been reserved but not issued under the 1994 Plan (our incentive stock option plan which terminated in May 2005), and any shares that returned to the 1994 Plan as a result of termination of options or repurchase of shares issued under such plan. The 2005 Plan, administered by the Compensation Committee of the Board of Directors, provided for granting of incentive awards in the form of restricted stock and RSUs to directors, executive officers and employees of the Company and its subsidiaries. Awards vest over a three ,   five or ten -year period, beginning on the date of grant. Vesting of ten year awards may accelerate based on the Company’s previous year’s earnings and growth but ten year awards cannot accelerate to vest over a period of less than five years. The 2005 Plan terminated on May 11, 2010, except with respect to outstanding awards previously granted thereunder. There were 3,362,304 shares of common stock that were reserved but not issued under the 2005 Plan as of May 11, 2010.  

  

Our stockholders approved our 2010 Incentive Plan (the “2010 Plan”) on May 11, 2010. At the time of approval, 3,000,000 shares of our common stock were reserved for issuance under this plan, as well as the 3,362,304 shares of common stock that were reserved but not issued under the 1994 Plan and the 2005 Plan as of May 11, 2010, and any shares that are returned to the 1994 Plan and the 2005 Plan as a result of the forfeiture or termination of options or RSUs or repurchase of shares issued under these plans. The 2010 Plan, administered by the Compensation Committee of the Board of Directors, provides for granting of incentive awards in the form of restricted stock and RSUs to employees, directors and consultants of the Company and employees and consultants of any parent or subsidiary of the Company. Awards vest over a three ,   five or ten -year period, beginning on the date of grant. Vesting of ten year awards may accelerate based on the Company’s previous year’s earnings and growth but ten year awards cannot accelerate to vest over a period of less than five years. The 2010 Plan terminated on May 12, 2015, except with respect to the outstanding awards previously granted thereunder. There were 2,518,416 shares of common stock that were reserved but not issued under the 2010 Plan as of May 12, 2015.

 

Our stockholders approved our 2015 Incentive Plan (the “2015 Plan”) on May 12, 2015. At the time of approval, 3,000,000 shares of our common stock were reserved for issuance under this plan, as well as the 2,518,416 shares of common stock that were reserved but not issued under the 2010 Plan as of May 12, 2015, and any shares that were returned to the 1994, 2005, and the 2010 Plans as a result of the forfeiture or termination of options or RSUs or repurchase of shares issued under these plans. The 2015 Plan, administered by the Compensation Committee of the Board of Directors, provides for the granting of incentive awards in the form of restricted stock and RSUs to employees, directors and consultants of the Company and employees and consultants of any parent or subsidiary of the Company. Awards vest over a three ,   five or ten -year period, beginning on the date of grant. Vesting of ten year awards may accelerate based on the Company’s previous year’s earnings and growth but ten year awards cannot accelerate to vest over a period of less than five years. There were 5,555,523 shares available for grant under the 2015 Plan at June 30, 2015.   

    

We estimate potential forfeitures of RSUs and adjust compensation cost recorded accordingly. The estimate of forfeitures will be adjusted over the requisite service period to the extent that actual forfeitures differ, or are expected to differ, from such estimates. Changes in estimated forfeitures will be recognized through a cumulative catch-up adjustment in the period of change and will also impact the amount of stock compensation expense to be recognized in future periods. During the six month period ended June 30, 2015, we did not make any changes in accounting principles or methods of estimates related to the 2010 and 2015 Plans.   

  

Employee stock purchase plan  

  

Our employee stock purchase plan permits substantially all domestic employees and employees of designated subsidiaries to acquire our common stock at a purchase price of 85 % of the lower of the market price at the beginning or the end of the purchase period. The plan has quarterly purchase periods generally beginning on February 1, May 1, August 1 and November 1 of each year. Employees may designate up to 15 % of their compensation for the purchase of common stock under this plan. On May 13, 2014, our stockholders approved an additional 3,000,000 shares for issuance under our employee stock purchase plan. At June 30, 2015, we had 2,697,481 shares of common stock reserved for future issuance under this plan. We issued 561,552 shares under this plan in the six month period ended June 30, 2015. The weighted average purchase price of the employees’ purchase rights was $ 24.93 per share. During the six month period ended June 30, 2015, we did not make any changes in accounting principles or methods of estimates with respect to such plan.   

  

Authorized Preferred Stock and Preferred Stock Purchase Rights Plan  

  

We have 5,000,000 authorized shares of preferred stock. On January 21, 2004, our Board of Directors designated   750,000 of these shares as Series A Participating Preferr ed Stock in conjunction with the adoption of a Preferred Stock Rights Agreement which expired on May 10, 2014. There were no shares of preferred stock issued and outstanding at June 30, 2015 .

 

17


 

 

Stock repurchases and retirements

   

From time to time, our Board of Directors has authorized various programs to repurchase shares of our common stock depending on market conditions and other factors. Under the current program, we repurchased a total of 288,004 shares of our common stock at a weighted average price per share of $29.67 during the six months ended June 30, 2015. We did not make any purchases under this program during the years ended December 31, 2014 and 2013. At June 30, 2015, there were 3,644,241 shares remaining available for repurchase under this program. This repurchase program does not have an expiration date.

   

During the six month period ended June 30, 2015, we received less proceeds from the exercise of stock options compared to the six month period ended June 30, 2014. Since 2005, it has been our practice to issue RSUs and not stock options to eligible employees which, over time, reduced the number of stock options available for exercise. Unlike the exercise of stock options, the issuance of shares upon vesting of RSUs does not result in any cash proceeds to us. At June 30, 2015, there were no options outstanding as all remaining options were either exercised or expired during the six month period ended June 30, 2015. As such, we will not generate any proceeds from stock option exercises in the future

        

Note 12 –   Segment information   

  

We determine operating 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 our operating segments. It also requires disclosures about products and services, geographic areas and major customers.  

 

We define the term “chief operating decision maker” to be our Chief Executive Officer. Our Chief Executive Officer reviews our financial information on a consolidated basis for purposes of allocating resources and evaluating financial performance. Accordingly, we have determined that we operate a single operating segment and a single reporting unit.

  

We sell our products in four geographic regions. Our sales to these regions share similar economic characteristics, similar product mix, similar customers, and similar distribution methods. Revenue from the sale of our products which are similar in nature and software maintenance is reflected as total net sales in our Consolidated Statements of Income.      

 

  Total net sales by the major geographic areas in which we operate, are as follows:

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended June 30,

 

Six Months Ended June 30,

(In thousands)

 

(Unaudited)

 

(Unaudited)

 

 

2015

 

2014

 

2015

 

2014

Net sales:

 

 

 

 

 

 

 

 

Americas

$

126,614 

$

120,013 

$

245,002 

$

235,119 

Europe

 

83,473 

 

83,597 

 

164,389 

 

167,454 

East Asia

 

70,084 

 

80,742 

 

134,614 

 

142,090 

Emerging Markets

 

21,620 

 

28,359 

 

47,299 

 

52,722 

 

$

301,791 

$

312,711 

$

591,304 

$

597,385 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Based on the billing location of the customer, total sales outside the U.S. for the three month periods ended June 30, 2015 and 2014 were $ 185 million and $ 200 million, respectively, and $364 million and $379 million for the six month periods ended June 30, 2015 and 2014, respectively. 

 

Total property and equipment, net, outside the U.S. was $145 million as of June 30, 2015 and December 31, 2014.

 

 

Note 13 - Debt

 

On May 9, 2013, we entered into a Loan Agreement (the “ Loan Agreement ”) with Wells Fargo Bank, National Association. The Loan Agreement provides for a $50 million unsecured revolving line of credit with a scheduled maturity date of May 9, 2018 (the “ Maturity Date ”). Proceeds of loans made under the Loan Agreement may be used for working capital and other general corporate purposes. We may prepay the loans under the Loan Agreement in whole or in part at any time without premium or penalty. Certain of our existing and future material domestic subsidiaries are required to guaranty our obligations under the Loan Agreement. As of June 30, 2015 , we had $50 million available for borrowings under this revolving line of credit.

 

 

 

 

 

18


 

 

 

The loans bear interest, at our option, at a base rate determined in accordance with the Loan Agreement, plus a spread of 0.0% to 0.5% , or a LIBOR rate plus a spread of 1.125% to 2.0% , in each case with such spread determined based on a ratio of consolidated indebtedness to EBITDA, determined in accordance with the Loan Agreement. Principal, together with all accrued and unpaid interest, is due and payable on the Maturity Date. We are also obligated to pay a quarterly commitment fee, payable in arrears, based on the available commitments at a rate of 0.175% to 0.300% , with such rate determined based on the ratio described above. The Loan Agreement contains customary affirmative and negative covenants. The affirmative covenants include, among other things, delivery of financial statements, compliance certificates and notices; payment of taxes and other obligations; maintenance of existence; maintenance of properties and insurance; and compliance with applicable laws and regulations. The negative covenants include, among other things, limitations on indebtedness, liens, mergers, consolidations, acquisitions and sales of assets, investments, changes in the nature of the business, affiliate transactions and certain restricted payments. The Loan Agreement also requires us to maintain a ratio of consolidated indebtedness to EBITDA equal to or less than 3.25 to 1.00, and a ratio of consolidated EBITDA to interest expense greater than or equal to 3.00 to 1.00, in each case determined in accordance with the Loan Agreement. As of June 30, 2015 , we were in compliance with all covenants in the Loan Agreement.

 

T he Loan Agreement contains customary events of default including, among other things, payment defaults, breaches of covenants or representations and warranties, cross-defaults with certain other indebtedness, bankruptcy and insolvency events, judgment defaults and change in control events, subject to grace periods in certain instances. Upon an event of default, the lender may declare all or a portion of the outstanding obligations payable by us to be immediately due and payable and exercise other rights and remedies provided for under the Loan Agreement . Under certain circumstances, a default interest rate will apply on all obligations during the existence of an event of default under the Loan Agreement at a per annum rate of interest equal to 2.00% above the otherwise applicable interest rate.

 

 

Note 14 – Commitments and contingencies  

  

We offer a one -year limited warranty on most hardware products which is included in the terms of sale of such products. We also offer optional two, three and five year warranties on our hardware products. Provision is made for estimated future warranty costs at the time of the sale for the estimated costs that may be incurred under the standard limited warranty. Our estimate is based on historical experience and product sales during the period.  

  

The warranty reserve for the six month periods ended June 30, 2015 and 2014 was as follows:

 

 

 

 

 

 

 

 

 

 

 

 

Six Months Ended June 30,

(In thousands)

 

(Unaudited)

 

 

2015

 

2014

Balance at the beginning of the period

$

1,885 

$

1,764 

Accruals for warranties issued during the period

 

2,523 

 

3,225 

Settlements made (in cash or in kind) during the period

 

(2,689)

 

(3,119)

Balance at the end of the period

$

1,719 

$

1,870 

  

As of June 30, 2015 , we had non-cancelable purchase commitments with various suppliers of customized inventory and inventory components totaling approximately $ 7 million over the next twelve months.  

 

As of June 30, 2015 , we had outstanding guarantees for payment of customs and foreign grants totaling approximately $4.0   million, which are generally payable over the next twelve months.   

   

Note 15 – Recently issued accounting pronouncements  

  

In May 2014, the FASB issued Accounting Standards Update (“ASU”) 2014-09, Revenue from Contracts with Customers. The update is a comprehensive new revenue recognition model that requires a company to recognize revenue to depict the transfer of goods or services to a customer at an amount that reflects the consideration it expects to receive in exchange for those goods or services. ASU 2014-09 also requires additional disclosure about the nature, amount, timing and uncertainty of revenue and cash flows arising from customer contracts, including significant judgments and changes in judgments and assets recognized from costs incurred to obtain or fulfill a contract. As of the date of this filing, the FASB is drafting a final ASU that will change the effective date of ASU 2014-09. Once issued, ASU 2014-09 will be effective for our fiscal year 2018 with early adoption permitted for our fiscal year 2017. Companies may use either a full retrospective or a modified retrospective approach to adopt ASU 2014-09. We are currently evaluating the effect that the adoption of this ASU will have on our financial statements.

 

 

 

 

19


 

 

 

In August 2014, the FASB issued new guidance related to the disclosures around going concern in ASU 2014-15. The new standard provides guidance around management's responsibility to evaluate whether there is substantial doubt about an entity's ability to continue as a going concern and to provide related footnote disclosures. The new standard is effective for fiscal years, and interim periods within those fiscal years, beginning after December 15, 2016. Early adoption is permitted. The adoption of this standard is not expected to have a material impact on our financial statements.

 

In April 2015, the FASB issued ASU 2015-03,   Interest - Imputation of Interest (Subtopic 835-30): Simplifying the Presentation of Debt Issuance Costs   ("ASU 2015-03"). The amendments in ASU 2015-03 require that debt issuance costs related to a recognized debt liability be presented in the balance sheet as a direct deduction from the carrying amount of that debt liability, consistent with debt discounts. ASU 2015-03 is effective for annual and interim periods beginning on or after December 15, 2015. The adoption of this standard is not expected to have a material impact on our financial statements.

 

In April 2015, the FASB issued ASU No. 2015-05, Customer’s Accounting for Fees Paid in a Cloud Computing Arrangement, which amends ASC 350, Intangibles - Goodwill and Other. The amendments provide guidance as to whether a cloud computing arrangement (e.g., software as a service, platform as a service, infrastructure as a service, and other similar hosting arrangements) includes a software license and, based on that determination, how to account for such arrangements. The amendments are effective for fiscal years, and interim periods within those years, beginning after December 15, 2015 and may be applied on either a prospective or retrospective basis. We are currently evaluating the impact that the adoption of these provisions will have on the Company’s consolidated financial statements.

 

 

      

Note 16 – Litigation  

  

We are not currently a party to any material litigation. However, in the ordinary course of our business, we are involved in a limited number of legal actions, both as plaintiff and defendant, and could incur uninsured liability in any one or more of them. We also periodically receive notifications from various third parties related to alleged infringement of patents or intellectual property rights, commercial disputes or other matters. No assurances can be given with respect to the extent or outcome of any future litigation or dispute.

 

 

 

Note 17 – Acquisitions

 

During the first quarter of 2015, we acquired BEECube, a technology innovator and leading supplier of high-performance FPGA prototyping and deployment products for advanced wireless research, wireless infrastructure and military/defense applications and we acquired a PXI modular instruments hardware product line from Cobham plc. As of June 30, 2015, we had not finalized our valuation of acquired identified intangibles and therefore our purchase price allocations remain preliminary. Our consolidated financial statements include the operating results from the dates of acquisition. Pro -forma results of operation s have not been presented because the effects of the acquired operations were not material.

 

Note 1 8 – Subsequent events  

  

  

On July 22, 2015 , our Board of Directors declared a quarterly cash dividend of $ 0.19 per common share, payable on August 31, 2015 , to stockholders of record on August 10, 2015 .  

 

We have evaluated subsequent events through the date the financial statements were issued.   

 

 

    

 

20


 

 

Item 2. Management’s Dis c ussion and Analysis of Financial Condition and Results of Operations   

  

This Quarterly Report on Form 10-Q contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934. Any statements contained herein regarding our future financial performance, operations or other matters (including, without limitation, statements to the effect that we “believe,” "expect," "plan," "may," "will," "project," "continue," or "estimate" or other variations thereof or comparable terminology or the negative thereof) should be considered forward-looking statements. Actual results could differ materially from those projected in the forward-looking statements as a result of a number of important factors, including those set forth under the heading “Risk Factors” beginning on page 3 4 , and in the discussion below. Readers are also encouraged to refer to the documents regularly filed by us with the Securities and Exchange Commission, including our Annual Report on Form 10-K for the year ended December 31, 2014 ,  for further discussion of our business and the risks attendant thereto.   

  

Overview   

  

National Instruments Corporation (“we”, “us” or “our”) designs, manufactures and sells systems to engineers and scientists that accelerate productivity, innovation and discovery. Our graphical system design approach to engineering provides an integrated software and hardware platform that speeds the development of systems needing measurement and control. We believe that our long-term vision and focus on technology supports the success of our customers, employees, suppliers and stockholders. We sell to a large number of customers in a wide variety of industries. We have been profitable in every year since 1990.   

  

The key strategies that we focus on in running our business are the following:   

  

Expanding our broad customer base   

  

We strive to increase our already broad customer base and to grow our large order business by serving a large market on many computer platforms, through a global marketing and distribution network. We also seek to acquire new technologies and expertise from time to time to open new opportunities for our existing product portfolio.  

 

Maintaining a high level of customer satisfaction   

  

To maintain a high level of customer satisfaction we strive to offer innovative, modular and integrated products through a global sales and support network. We strive to maintain a high degree of backwards compatibility across different platforms to preserve the customer’s investment in our products. In this time of intense global competition, we believe that it is crucial that we continue to offer products with high quality and reliability, and that our products provide cost-effective solutions for our customers.   

 

Leveraging external and internal technology   

  

Our product strategy is to provide superior products by leveraging generally available technology, supporting open architectures on multiple platforms and leveraging our core technologies such as custom application specific integrated circuits (“ASICs”)   across multiple   products.

 

We sell into test and measurement (“T&M”) and industrial/embedded applications in a broad range of industries and are subject to the economic and industry forces that drive those markets. It has been our experience that the performance of these industries and our performance are impacted by general trends in industrial production for the global economy and by the specific performance of certain vertical markets that are intensive consumers of measurement technologies. Examples of these markets are semiconductor capital equipment, telecom and mobile devices, consumer electronics, defense, aerospace and automotive.

 

Leveraging a worldwide sales, distribution and manufacturing network  

 

We distribute and sell our software and hardware products primarily through a direct sales organization. We also use independent distributors, OEMs, VARs, system integrators, and consultants to market and sell our products. We have sales offices in the U.S. and sales offices and distributors in key international markets. Sales outside of the Americas accounted for approximately 58% and 62% of our net sales during the three month periods ended June 30, 2015 and 2014, respectively, and approximately 59% and 61% of our net sales during the six month periods ended June 30, 2015 and 2014, respectively. The vast majority of our foreign sales are denominated in th e customers’ local currency, which exposes us to the effects of changes in foreign currency exchange rates. We expect that a significant portion of our total net sales will continue to be derived from international sales. (See “Note 12 – Segment information” of Notes to Consolidated Financial Statements for details concerning the geographic breakdown of our net sales).

  

21


 

 

We manufacture a substantial majority of our product volume at our facilities in Debrecen, Hungary and Penang, Malaysia. Additional production, primarily of RF products and of low volume, complex or newly introduced products is done in Austin, Texas, however, we are transitioning all of our Austin based manufacturing activities to our manufacturing facilities in Hungary and Malaysia by the end of the third quarter. As of June 30, 2015, we had successfully transferred approximately 75% of our Austin based production into Hungary and Malaysia. In 2015, our site in Malaysia is expected to produce approximately 30% of our global production. This production is being generated by transferring existing products from our Austin production facility in support of anticipated growth in our business and introducing new products directly into our Malaysian facility. Our site in Hungary is expected to produce approximately 65% of our global production in 2015. Our product manufacturing operations can be divided into four areas: electronic circuit card and module assembly; chassis and cable assembly; technical manuals and product support documentation; and software duplication. Most of our electronic circuit card assemblies, modules and chassis are manufactured in house, although subcontractors are used from time to time. The majority of our electronic cable assemblies are produced by subcontractors; however, we do manufacture some on an exception basis. Our software duplication, technical manuals and product support documentation is primarily produced by subcontractors. 

 

Delivering high quality, reliable products

 

We believe that our long-term growth and success depend on delivering high quality software and hardware products on a timely basis. Accordingly, we focus significant efforts on research and development. We focus our 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, price and performance. Our success also depends on our ability to obtain and maintain patents and other proprietary rights related to technologies used in our products. We have engaged in litigation and where necessary, will likely engage in future litigation to protect our intellectual property rights. In monitoring and policing our intellectual property rights, we have been and may be required to spend significant resources.

 

Our operating results fluctuate from period to period due to changes in global economic conditions and a number of other factors. As a result, we believe our historical results of operations should not be relied upon as indications of future performance. There can be no assurance that our net sales will grow or that we will remain profitable in future periods.   

 

Current business outlook  

  

Many of the industries we serve have historically been cyclical and have experienced periodic downturns. In assessing our business, we consider the trends in the Global Purchasing Managers’ Index (“PMI”), global industrial production as well as industry reports on the specific vertical industries that we target. Historically, our business cycles have generally followed the expansion and contraction cycles in the global industrial economy as measured by the Global PMI. In the three month period ended June 30, 2015, the average of the Global PMI was 51.1, the lowest quarterly average since the first quarter of 2013. The average of the new order element of the Global PMI was 51.3 for the quarter ended June 30, 2015. During the three month period ended June 30, 2015, the PMI in the U.S. and the Eurozone maintained readings above 50. We are unable to predict whether the industrial economy, as measured by the PMI, will remain above the neutral reading of 50, strengthen or contract during the remainder of 2015.

 

During the three month periods ended June 30, 2015 and 2014, we received $10 million and $27 million in new orders from our largest customer, respectively, and in the six month periods ended June 30, 2015 and 2014, we received $13 million and $39 million in new orders from this customer, respectively. During the three month periods ended June 30, 2015 and 2014, we recognized net sales of $9 million and $20 million from these orders, respectively, and in the six month periods ended June 30, 2015 and 2014, we recognized net sales of $14 million and $27 million from these orders, respectively. The timing and amount of orders from this customer are unpredictable and therefore can cause unusual variations in the results and trends of our business.

 

During the second quarter of 2015, we continued to experience challenges in our business as a result of the continued   strength of the U.S. dollar and increasing weakness in the personal computer (“PC”) market. In the second quarter of 2015, we also saw a 1.7% year over year decrease from orders under $20,000, a 4.6% year over year decrease from orders between $20,000 and $100,000, and a 16% year over year decrease from orders over $100,000. Excluding our largest customer, orders over $100,000 were up 9% year over year.

 

22


 

 

During the second quarter of 2015, we continued to experience broad volatility in the foreign exchange markets and a strong U.S. dollar in many of the currency markets where we have exposure. As of the date of this filing, the U.S. dollar index, as tracked by the St. Louis Federal Reserve, remains near a ten year high. The change in exchange rates in the second quarter of 2015 compared to the second quarter of 2014 had the effect of decreasing our net sales by $19 million or 6%, decreasing Americas sales by $3.9 million or 3.3%, decreasing European sales by $12 million or 14%, decreasing East Asia sales by $2.1 million or 2.6%, and decreasing sales in Emerging Markets by $1.5 million or 5.2% . For the third quarter of 2015, we expect that the strong U.S. dollar will continue to have a negative impact on the U.S. dollar equivalent of our foreign currency denominated sales. The Euro represents our most significant exposure and where we expect to see the greatest negative impact from the strength of the U.S. dollar during the third quarter of 2015 compared to third quarter of 2014. We have hedging programs in place to help mitigate the risks associated with these types of foreign currency risks. However, there can be no assurance the hedges will offset more than a portion of the financial impact resulting from movements in the foreign currency markets in which we do business. (See “Note 5 – Derivative instruments and hedging activities” of Notes to Consolidated Financial Statements for additional details concerning hedging programs.)

 

Results of Operations   

  

The following table sets forth, for the periods indicated, the percentage of net sales represented by certain items reflected in our Consolidated Statements of Income:   

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended June 30,

 

Six Months Ended June 30,

 

 

(Unaudited)

 

(Unaudited)

 

 

2015

 

2014

 

2015

 

2014

 

Net sales:

 

 

 

 

 

 

 

 

 Americas

42.0 

%

38.4 

%

41.4 

%

39.4 

%

 Europe

27.6 

 

26.7 

 

27.8 

 

28.0 

 

 East Asia

23.2 

 

25.8 

 

22.8 

 

23.8 

 

 Emerging Markets

7.2 

 

9.1 

 

8.0 

 

8.8 

 

Total net sales

100.0 

 

100.0 

 

100.0 

 

100.0 

 

Cost of sales

25.4 

 

26.2 

 

25.9 

 

25.6 

 

Gross profit

74.6 

 

73.8 

 

74.1 

 

74.4 

 

Operating expenses:

 

 

 

 

 

 

 

 

 Sales and marketing

37.1 

 

38.2 

 

37.4 

 

38.7 

 

 Research and development

18.4 

 

17.9 

 

19.6 

 

18.6 

 

 General and administrative

7.7 

 

7.6 

 

7.8 

 

7.7 

 

Total operating expenses

63.1 

 

63.6 

 

64.9 

 

65.0 

 

Operating income

11.5 

 

10.2 

 

9.3 

 

9.3 

 

Other income (expense):

 

 

 

 

 

 

 

 

Interest income

0.1 

 

0.1 

 

0.1 

 

0.1 

 

Net foreign exchange loss

(0.2)

 

(0.2)

 

(0.4)

 

(0.1)

 

Other income, net

0.0 

 

0.1 

 

0.1 

 

0.1 

 

Income before income taxes

11.4 

 

10.2 

 

9.1 

 

9.4 

 

Provision for income taxes

3.2 

 

2.4 

 

2.4 

 

2.1 

 

Net income

8.3 

%

7.8 

%

6.8 

%

7.2 

%

    Figures may not sum due to rounding.

 

Results of Operations for the three and six month periods ended June 30, 2015 and 2014   

 

Net Sales.     Our net sales were $302 million and $313 million for the three month periods ended June 30, 2015 and 2014, respectively, a decrease of 3.5%. For such periods, product sales were $274 million and $288 million, respectively, a decrease of 5% and software maintenance sales were $28 million and $24 million, respectively, an increase of 14%. Software maintenance sales grew at a faster rate than our overall net sales as a result of increased sales of our enterprise software agreements.

 

For the six month periods ended June 30, 2015 and 2014, our net sales were $591 million and $597 million, respectively, a decrease of 1%. For the same periods, product sales were $535 million and $550 million, respectively, a decrease of 3%, and software maintenance sales were $56 million and $47 million, respectively, an increase of 19%. Software maintenance sales grew at a faster rate than overall net sales as a result of a greater mix of software sales during the six month period ended June 30, 2015, compared to the six month period ended June 30, 2014.

 

 

23


 

 

We do not typically maintain a large amount of order backlog as orders typically translate to sales quickly. As such, any weakness in orders typically has a pronounced impact on our net sales in the short term.

 

The factors that most significantly impacted our net sales were the year over year change in orders from our largest customer and the year over year impact of chang es in the foreign currency exchange markets, both discussed in more detail below.  

 

Large orders, defined as orders with a value greater than $100,000, decreased by 16% year over year during the three months ended June 30, 2015, compared to the year over year increase of 43% in the three month period ended June 30, 2014. In the six month period ended June 30, 2015, large orders decreased by 5% year over year compared to the year over year increase of 15% during the six month period ended June 30, 2014. A significant factor in the contraction of our large orders in the three and six month periods ended June 30, 2015, compared to the comparable periods in 2014 was the result of a decrease in orders from our largest customer. Year over year, orders from our largest customer decreased by 64% in the three months ended June 30, 2015, and decreased by 66% in the six month period ended June 30, 2015. Excluding the impact of our largest customer, large orders increased by 9% year over year during the three month period ended June 30, 2015, and increased by 22% year over year during the six month period ended June 30, 2015. Orders from our largest customer are discussed in more detail below. During the three month periods ended June 30, 2015 and 2014, large orders were 23% and 26% of our total orders, respectively, and for each of the six month periods ended June 30, 2015 and 2014, large orders were 23% of our total orders. Large orders are more volatile, are subject to greater discount variability and may contract at a faster pace during an economic downturn.

 

We are serving several different applications for our largest customer. During the three month periods ended June 30, 2015 and 2014, we received $10 million and $27 million, respectively, in orders from our largest customer. During the six month periods ended June 30, 2015 and 2014, we received $13 million and $39 million, respectively, in new orders from our largest customer. In the three month periods ended June 30, 2015 and 2014, we recognized net sales of $9 million and $20 million, respectively, from these orders, and in the six month periods ended June 30, 2015 and 2014, we recognized net sales of $14 million and $27 million, respectively.

 

For the three month periods ended June 30, 2015 and 2014, net sales in the Americas were $127 million and $120 million, respectively, an increase of 6%. Sales in the Americas, as a percentage of net sales were 42% and 38% in the three month periods ended June 30, 2015 and 2014, respectively. In Europe, net sales were $83 million and $84 million in the three month periods ended June 30, 2015 and 2014, respectively, a decrease of less than 1%. Sales in Europe, as a percentage of net sales were 28% and 27% in the three month periods ended June 30, 2015 and 2014, respectively. In East Asia, net sales were $70 million and $81 million in the three month periods ended June 30, 2015 and 2014, respectively, a decrease of 13%. Sales in East Asia, as a percentage of net sales were 23% and 26% in three month periods ended June 30, 2015 and 2014, respectively. In Emerging Markets, net sales were $22 million and $28 million in the three month periods ended June 30, 2015 and 2014, respectively, a decrease of 24%. Sales in Emerging Markets, as a percentage of net sales were 7% and 9%, respectively, in the three month periods ended June 30, 2015 and 2014.

 

For the six month periods ended June 30, 2015 and 2014, net sales in the Americas were $245 million and $235 million, respectively, an increase of 4%. Sales in the Americas, as a percentage of net sales were 41% and 39% in the six month periods ended June 30, 2015 and 2014, respectively. In Europe, net sales were $164 million and $167 million in the six month periods ended June 30, 2015 and 2014, respectively, a decrease of 2%. Sales in Europe, as a percentage of net sales were 28% in each of the six month periods ended June 30, 2015 and 2014. In East Asia, net sales were $135 million and $142 million in the six month periods ended June 30, 2015 and 2014, respectively, a decrease of 5%. Sales in East Asia, as a percentage of net sales were 23% and 24% in the six month periods ended June 30, 2015 and 2014, respectively. In Emerging Markets, net sales were $47 million and $53 million in the six month periods ended June 30, 2015 and 2014, respectively, a decrease of 10%. Sales in Emerging Markets, as a percentage of net sales were 8% and 9% in the six month periods ended June 30, 2015 and 2014, respectively.

 

We expect sales outside of the Americas to continue to represent a significant portion of our net sales. We intend to continue to expand our international operations by increasing our presence in existing markets, adding a presence in some new geographical markets and continuing the use of distributors to sell our products in some countries.  

 

Almost all of the sales made by our direct sales offices in the Americas (excluding the U.S.), Europe, East Asia, and Emerging Markets are denominated in local currencies, and accordingly, the U.S. dollar equivalent of these sales is affected by changes in foreign currency exchange rates. For the three month period ended June 30, 2015, in local currency terms, our net sales increased by $9 million or 2.7%, Americas sales increased by $11 million or 9%, European sales increased by $ 12 million or 14%, East Asia sales decreased by $8.6 million or 11%, and Emerging Markets sales decreased by $5.3 million or 19%, compared to the three month period ended June 30, 2014. During this same period, the change in exchange rates had the effect of decreasing our net sales by $19 million or 6.2%, decreasing Americas sales by $3.9 million or 3.3%, decreasing European sales by $12 million or 14.3%, decreasing East Asia sales by $2.1 million or 2.6%, and decreasing sales in Emerging Markets by $1.5 million or 5.2%, respectively.   

 

 

24


 

 

For the six month period ended June 30, 2015, in local currency terms, our net sales increased by $30 million or 5%, Americas sales increased by $15 million or 6%, European sales increased by $20 million or 12%, sales in East Asia decreased by $4.4 million or 3%, and sales in Emerging Markets decreased by $794,000 or 2%, compared to the six month period ended June 30, 2014. During this same period, the change in exchange rates had the effect of decreasing our net sales by $36 million or 6.1%, decreasing Americas sales by $5.4 million or 2.3%, decreasing European sales by $23 million or 14%, decreasing East Asia sales by $3 million or 2.2%, and decreasing sales in Emerging Markets by $4.6 million or 8.8%. 

 

To help protect against changes in U.S. dollar equivalent value caused by fluctuations in foreign currency exchange rates of forecasted foreign currency cash flows resulting from international sales, we have instituted a foreign currency cash flow hedging program. We hedge portions of our forecasted net sales denominated in foreign currencies with average rate forward contracts. During the three month periods ended June 30, 2015 and 2014, these hedges had the effect of increasing our net sales by $5.2 million and decreasing our net sales by $231,000, respectively. During the six month periods ended June 30, 2015 and 2014, these hedges had the effect of increasing our net sales by $10.3 million and $115,000, respectively. (See “Note 5 - Derivative instruments and hedging activities” of Notes to Consolidated Financial Statements for further discussion regarding our cash flow hedging program and its related impact on our net sales for 2015 and 2014). 

 

Gross Profit. For the three month periods ended June 30, 2015 and 2014, gross profit was $225 million and $231 million, respectively. As a percentage of sales, gross profit was 75% and 74% for the three month periods ended June 30, 2015 and 2014, respectively. For the six month periods ended June 30, 2015 and 2014, gross profit was $438 million and $444 million, respectively. As a percentage of sales, gross profit was 74% for each of the six month periods ended June 30, 2015 and 2014.  Our gross profit as a percent age of sales is impacted by many factors including changes in the amount of orders from our largest customer and changes in the foreign currency exchange markets. We continue to focus on cost control and cost reduction measures throughout our manufacturing cycle.  

   

For the three month periods ended June 30, 2015 and 2014, the change in exchange rates had the effect of decreasing our cost of sales by $2.5 million and $93,000, respectively. For the six month periods ended June 30, 2015 and 2014, the change in exchange rates had the effect of decreasing our cost of sales by $4.3 million and $596,000, respectively. To help protect against changes in our cost of sales caused by a fluctuation in foreign currency exchange rates of forecasted foreign currency cash flows, we have a foreign currency cash flow hedging program. We hedge portions of our forecasted costs of sales denominated in foreign currencies with average rate forward contracts. During the three month periods ended June 30, 2015 and 2014, these hedges had the effect of increasing our cost of sales by $509,000 and decreasing our cost of sales by $101,000, respectively. During the six month periods ended June 30, 2015 and 2014, these hedges had the effect of increasing our cost of sales by $842,000 and decreasing our cost of sales by $182,000, respectively. (See “Note 5 - Derivative instruments and hedging activities” of Notes to Consolidated Financial Statements for further discussion regarding our cash flow hedging program and its related impact on our cost of sales for 2015 and 2014).

 

Operating Expenses. For the three month periods ended June 30, 2015 and 2014, operating expenses were $190 million and $199 million, respectively, a decrease of 4%. As a percentage of sales, operating expenses were 63% and 64% for the three month periods ended June 30, 2015 and 2014, respectively .   During the three month period ending June 30, 2015, the year over year change in exchange rates had the effect of decreasing our operating expenses by $11 million. Additionally, there were increases in operating expenses including travel, building and equipment costs of $4.0 million which were partially offset by decreases in personnel, marketing, and outside services costs of $1.6 million.

 

For the six month periods ended June 30, 2015 and 2014, operating expenses were $383 million and $389 million, respectively, a decrease of 1%. As a percentage of sales, operating expenses were 65% for each of the six month periods ended June 30, 2015 and 2014. During the six month period ending June 30, 2015, the year over year change in exchange rates had the effect of decreasing our operating expenses by $19 million. During the six month period ended June 30, 2015, software development costs increased by $5.4 million as a result of a decrease in capitalization of software development costs compared to the six month period ended June 30, 2014. Additionally, there were increases in operating expenses including personnel related expenses of $2.3 million and travel, building and equipment costs of $8 million which were partially offset by decreases in marketing and outside services costs of $1.5 million.

 

We believe that our long-term growth and success depends on developing high quality software and hardware products on a timely basis. We are focused on leveraging recent investments in research and development and in our field sales force and taking actions to help ensure those resources are concentrated in areas and on initiatives that will contribute to future growth in our business. For the three month periods ended June 30, 2015 and 2014, our sales and marketing expenses were $112 million and $119 million, respectively, and our research and development expenses were $55 million and $56 million, respectively. For the six month periods ended June 30, 2015 and 2014, our sales and marketing expenses were $221 million and $231 million, respectively, and our research and development expenses were $116 million and $111 million, respectively. The increase in research and development expenses for the six month period ended June 30, 2015, compared to the six month period ended June 30, 2014, was primarily driven by the decrease in capitalized software development costs during the first quarter of 2015. Overall headcount for our operating functions increased by 79 from June 30, 2014 to June 30, 2015.

 

 

25


 

 

Operating Income.  For the three month periods ended June 30, 2015 and 2014, operating income was $35 million and $32 million, respectively, an increase of 8%. As a percentage of net sales, operating income was 11% and 10%, respectively, in these same periods .   For the six month periods ended June 30, 2015 and 2014, operating income was $55 million and $56 million, respectively, a decrease of 2%. As a percentage of net sales, operating income was 9% in each of these same periods . The increases in operating income in absolute dollars and as a percentage of sales for the three month period ended June 30, 2015 , compared to the three month period ended June 30, 2014 ,   and the decrease in operating income in absolute dollars for the six month period ended June 30, 2015 compared to the six month period ended June 30, 2014, is attributable to the factors discussed in Net Sales, Gross Profit and Operating Expenses above.

 

Interest Income.     For the three month periods ended June 30, 2015 and 2014, interest income was $341,000 and $234,000, respectively. For the six month periods ended June 30, 2015 and 2014, interest income was $694,000 and $431,000, respectively. We continue to see low yields for high quality investment alternatives that comply with our corporate investment policy. We do not expect yields in these types of investments to increase significantly during the remainder of 2015.    

 

Net Foreign Exchange Loss.     For the three month periods ended June 30, 2015 and 2014, net foreign exchange loss was $(577,000) and $(603,000), respectively. During the six month periods ended June 30, 2015 and 2014, net foreign exchange loss was $(2.3) million and $(553,000), respectively. These results are attributable to movements in the foreign currency exchange rates between the U.S. dollar and foreign currencies in subsidiaries for which our functional currency is not the U.S. dollar. During the second quarter of 2015, we continued to see broad volatility in the foreign currency exchange markets and a strong U.S. dollar in many of the currency markets where we have exposure, with the U.S. dollar index, as tracked by the St. Louis Federal Reserve, near a ten year high. We cannot predict the direction or degree of future volatility in these exchange rates. In the past, we have noted that significant volatility in foreign currency exchange rates in the markets in which we do business has had a significant impact on the revaluation of our foreign currency denominated firm commitments, on our ability to forecast our U.S. dollar equivalent net sales and expenses and on the effectiveness of our hedging programs. In the past, these dynamics have also adversely affected our net sales growth in international markets and may pose similar challenges in the future. We recognize the local currency as the functional currency in virtually all of our international subsidiaries.    

 

We utilize foreign currency forward contracts to hedge our foreign denominated net foreign currency balance sheet positions to help protect against the change in value caused by a fluctuation in foreign currency exchange rates. We typically hedge up to 90% of our outstanding foreign denominated net receivable or payable positions and typically limit the duration of these foreign currency forward contracts to approximately 90 days. The gain or loss on these derivatives as well as the offsetting gain or loss on the hedged item attributable to the hedged risk is recognized in current earnings under the line item “Net foreign exchange loss”. Our hedging strategy decreased our foreign exchange gains by $1.3 million and $742,000 in the three month period ended June 30, 2015 and June 30, 2014, respectively. Our hedging strategy decreased our foreign exchange losses by $639,000 in the six month period ended June 30, 2015 and decreased our foreign exchange gains by $810,000 in the six month period ended June 30, 2014.  (See “Note 5 - Derivative instruments and hedging activities” of Notes to Consolidated Financial Statements for a further description of our derivative instruments and hedging activities.)

 

Provision for Income Taxes.     For the three month periods ended June 30, 2015 and 2014, our provision for income taxes reflected an effective tax rate of 28% and 23%, respectively. For the six month periods ended June 30, 2015 and 2014, our provision for income taxes reflected an effective tax rate of 26% and 23%, respectively.   The factors that caused our effective tax rate to change year-over-year are detailed in the table below:

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended

 

Six Months Ended

 

 

June 30, 2015

 

June 30, 2015

 

 

(Unaudited)

 

(Unaudited)

 

Effective tax rate at June 30, 2014

23 

%

23 

%

Change in profit in foreign jurisdictions with reduced tax rates

 

 -

 

Change in enhanced deduction for certain research and development expenses

 

 

Change in intercompany profit

 

 

Change in tax benefit from equity awards

 

 

Decrease in unrecognized tax benefits

(2)

 

(2)

 

Effective tax rate at June 30, 2015

28 

%

26 

%

 

    (See “Note 9 – Income taxes” of Notes to Consolidated Financial Statements for further discussion regarding our effective tax rate).

 

26


 

 

Other operational metrics  

  

We believe that the following additional unaudited operational metrics assist investors in assessing our operational performance relative to our others in our industry and to our historical results.   

 

Charges related to stock-based compensation, amortization of acquired intangibles and acquisition related transaction costs.    For the three and six month periods ended June 30, 2015 and 2014 ,   the gross charges related to stock-based compensation as a component of cost of sales, sales and marketing, research and development, general and administrative expenses, the provision for income taxes and the total charges were as follows:  

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended June 30,

 

Six Months Ended June 30,

(In thousands)

 

(Unaudited)

 

(Unaudited)

 

 

2015

 

2014

 

2015

 

2014

Stock-based compensation

 

 

 

 

 

 

 

 

Cost of sales

$

472 

$

358 

$

928 

$

799 

Sales and marketing

 

2,806 

 

2,767 

 

5,449 

 

5,578 

Research and development

 

2,171 

 

2,273 

 

4,632 

 

4,724 

General and administrative

 

904 

 

930 

 

1,735 

 

1,780 

Provision for income taxes

 

(1,920)

 

(1,797)

 

(3,486)

 

(3,633)

Total

$

4,433 

$

4,531 

$

9,258 

$

9,248 

 

For the three and six month periods ended June 30, 2015 and 2014 ,   the gross charges related to the amortization of acquisition related intangibles as a component of cost of sales, sales and marketing, research and dev elopment, other income , net,  the provision for income taxes and the total charges were as follows:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended June 30,

 

Six Months Ended June 30,

(In thousands)

 

(Unaudited)

 

(Unaudited)

 

 

2015

 

2014

 

2015

 

2014

Amortization of acquired intangibles

 

 

 

 

 

 

 

 

Cost of sales

$

2,640 

$

2,663 

$

5,215 

$

5,329 

Sales and marketing

 

438 

 

452 

 

876 

 

918 

Research and development

 

318 

 

400 

 

662 

 

806 

Other income, net

 

149 

 

167 

 

303 

 

337 

Provision for income taxes

 

(1,155)

 

(1,216)

 

(2,317)

 

(2,440)

Total

$

2,390 

$

2,466 

$

4,739 

$

4,950 

 

For the three and six month periods ended June 30, 2015 and 2014 ,   the gross charges related to acquisition related transaction costs as a component of cost of sales, sales and marketing, research and development, general and administrative expenses, the provision for income taxes and the total charges were as follows:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended June 30,

 

Six Months Ended June 30,

(In thousands)

 

(Unaudited)

 

(Unaudited)

 

 

2015

 

2014

 

2015

 

2014

Acquisition transaction costs and restructuring

 

 

 

 

 

 

 

 

Cost of sales

$

232 

$

 -

$

805 

$

 -

Sales and marketing

 

 -

 

88 

 

 -

 

176 

Research and development

 

 -

 

153 

 

 -

 

306 

General and administrative

 

 

42 

 

205 

 

107 

Provision for income taxes

 

(82)

 

(99)

 

(331)

 

(206)

Total

$

154 

$

184 

$

679 

$

383 

 

 

27


 

 

Liquidity and Capital Resources  

  

Working Capital, Cash and Cash Equivalents and Short-term Investments.  Cash, cash equivalents and short-term investments decreased by $48 million to $423 million at June 30, 2015 from $471 million at December 31, 2014. The following table presents our working capital, cash and cash equivalents and short-term investments:    

 

 

 

 

 

 

 

 

 

 

June 30, 2015

 

December 31,

 

Increase/

(In thousands)

 

(unaudited)

 

2014

 

(Decrease)

 

 

 

 

 

 

 

Working capital

$

682,880 

$

700,163 

$

(17,283)

Cash and cash equivalents (1)

 

232,784 

 

274,030 

 

(41,246)

Short-term investments (1)

 

190,016 

 

197,163 

 

(7,147)

Total cash, cash equivalents and short-term investments

$

422,800 

$

471,193 

$

(48,393)

 

 

 

 

 

 

 

(1) Included in working capital

 

 

 

 

 

 

  

During the six month period ended June 30, 2015, our working capital decreased by $17 million compared to December 31, 2014. Overall, current assets decreased by $21 million while current liabilities decreased by $3.9 million. The decrease in our current assets was the result of a $48 million decrease in cash, cash equivalents and short-term investments, offset by an increase in accounts receivable of $3.2 million, an increase in prepaid expenses and other current assets of $11 million and an increase in inventory of $14 million. The decrease in current liabilities was the result of a decrease in accrued compensation of $6.1 million and a decrease in accounts payable, accrued expenses and other liabilities of $1.3 million, offset by an increase in deferred revenue of $3.6 million. The overall decrease in our working capital was primarily the result of the decrease in our cash, cash equivalents and short-term investments due to payments related to our acquisitions of $25 million, our corporate dividend of $49 million, and the repurchase of shares of our common stock of $8.5 million.  

 

Accounts receivable increased by $3.2 million to $206 million at June 30, 2015, from $202 million at December 31, 2014. Days sales outstanding increased to 62 days at June 30, 2015, compared to 56 days at December 31, 2014. The increase in our days sales outstanding is due to lower net sales as well as aging of some accounts in E merging M arkets, primarily in Russia and India.

 

Inventory increased by $14 million to $187 million at June 30, 2015, from $173 million at December 31, 2014. Inventory turns were 1.7 and 1.8 at June 30, 2015 and December 31, 2014, respectively. The increase in our inventory balance was driven by planned increases in product levels to support the transition of our manufacturing operations from Austin, Texas to Debrecen, Hungary and Penang, Malaysia.

 

Prepaid expenses and other current assets increased $11 million to $81 million at June 30, 2015, from $70 million at December 31, 2014. The increase in our prepaid expenses and other current assets was primarily the result of an increase in other receivables of $ 11 million primarily related to a 2015 tax provision and reclaimable value added taxes, offset by a $5.4 million decrease in the fair value of our currency hedging contracts. The timing of payments of insurance, maintenance, and other service contracts accounted for the remaining $5.1 million of this change. (See “Note 5 - Derivative instruments and hedging activities of Notes to Consolidated Financial Statements for a further description of our derivative instruments and hedging activities .)

 

Our cash and cash equivalent balances are held in numerous financial institutions throughout the world, including substantial amounts held outside of the U.S., however, the majority of our cash and investments that are located outside of the U.S. are denominated in the U.S. dollar with the exception of $28 million U.S. dollar equivalent of corporate bonds that are denominated in Euro. At June 30, 2015, we had $423 million in cash, cash equivalents and short-term investments. Approximately $79 million or 19% of these amounts were held in domestic accounts with various financial institutions and $344 million or 81% was held in accounts outside of the U.S. with various financial institutions. At June 30, 2015, we had cash and cash equivalents of $233 million, of which $79 million or 34% was held in domestic accounts and $154 million or 66% was held in various accounts of our foreign subsidiaries. At June 30, 2015, we had short-term investments of $190 million, all of which was held in investment accounts of our foreign subsidiaries. Most of the amounts held outside of the U.S. could be repatriated to the U.S., but under current law, would be subject to U.S. federal income taxes, less applicable foreign tax credits. We have provided for the U.S. federal tax liability on these amounts for financial statement purposes, except for foreign earnings that are considered indefinitely reinvested outside of the U.S. Repatriation could result in additional U.S. federal income tax payments in future years. We utilize a variety of tax planning and financing strategies with the objective of having our worldwide cash available in the locations in which it is needed.  

28


 

 

Cash Provided by and (Used in) in the three and six month periods ended June 30, 2015 and 2014 . The following table summarizes the proceeds and (uses) of cash:   

 

 

 

 

 

 

 

 

Six Months Ended June 30,

(In thousands)

 

(unaudited)

 

 

2015

 

2014

Cash provided by operating activities

$

50,783 

$

68,438 

Cash used in investing activities

 

(49,968)

 

(41,408)

Cash used in financing activities

 

(42,061)

 

(19,797)

Net change in cash equivalents

 

(41,246)

 

7,233 

Cash and cash equivalents at beginning of year

 

274,030 

 

230,263 

Cash and cash equivalents at end of period

$

232,784 

$

237,496 

    

For the six month periods ended June 30, 2015 and 2014, cash provided by operating activities was $51 million and $68 million, respectively, a decrease of $18 million. This decrease was due to a decrease in net income of $3.3 million and a decrease in cash provided by our operating items of $14 million.

  

Investing activities used cash of $50 million during the six month period ended June 30, 2015, as a result of the purchase price of two acquisitions for $25 million, net of cash received, capital expenditures of $21 million, capitalization of internally developed software and other intangibles of $11 million offset by the net sale of short-term investments of $7 million. Capital expenditures during the six month period ended June 30, 2015 included leasehold improvements, expansion of existing facilities, computers, equipment and furniture and fixtures to support operations throughout our business. Investing activities used cash of $41 million during the six month period ended June 30, 2014, as the result of capital expenditures of $22 million and capitalization of internally developed software and other intangibles of $18 million.

 

Financing activities used cash of $42 million during the six month period ended June 30, 2015, which was the net result of $49 million used to pay dividends and $8.5 million used to repurchase shares of our common stock, offset by $14 million received from the issuance of our common stock from the exercise of employee stock options and from our employee stock purchase plan. Financing activities used cash of $20 million during the six month period ended June 30, 2014, which was the net result of $17 million received from the issuance of our common stock from the exercise of employee stock options and from our employee stock purchase plan, offset by $38 million used to pay dividends to our stockholders.  

 

From time to time, our Board of Directors has authorized various programs to repurchase shares of our common stock depending on market conditions and other factors. Under the current program, we repurchased a total of 288,004 shares of our common stock at a weighted average price per share of $29.67 during the six months ended June 30, 2015. We did not make any purchases under this program during the years ended December 31, 2014 and 2013. At June 30, 2015, there were 3,644,241 shares remaining available for repurchase under this program. This repurchase program does not have an expiration date.  

   

During the six month period ended June 30, 2015 , we received less proceeds from the exercise of stock options compared to the six month period ended June 30, 2014 . At June 30, 2015 , there were no options outstanding as all remaining options were either exercised or expired during the six month period ended June 30, 2015. (See “Note 11 – Authorized shares of common and preferred stock and stock-based compensation plans” of Notes to Consolidated Financial Statements for additional discussion about our equity compensation plans).

  

Contractual Cash Obligations.     Purchase obligations primarily represent purchase commitments for customized inventory and inventory components. At June 30, 2015, we had non-cancelable purchase commitments with various suppliers of customized inventory and inventory components totaling approximately $7 million.

 

Guarantees are related to payments of customs and foreign grants. At June 30, 2015, we had outstanding guarantees for payment of customs and foreign grants totaling approximately $4.0 million. At December 31, 2014, we had outstanding guarantees for payment of customs, foreign grants and potential customer disputes totaling approximately $ 1 2 million.

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Loan Agreement. On May 9, 2013, we entered into a Loan Agreement (the “ Loan Agreement ”) with Wells Fargo Bank, National Association. The Loan Agreement provides for a $50 million unsecured revolving line of credit with a scheduled maturity date of May 9, 2018 (the “ Maturity Date ”). Proceeds of loans made under the Loan Agreement may be used for working capital and other general corporate purposes. We may prepay the loans under the Loan Agreement in whole or in part at any time without premium or penalty. Certain of our existing and future material domestic subsidiaries are required to guaranty our obligations under the Loan Agreement. We may choose to borrow funds against this line of credit in future periods to have sufficient domestic cash to fund continued dividends to our stockholders, to fund potential acquisitions or other domestic gene ral corporate purposes without the need to repatriate foreign earnings. At June 30, 2015 , we did not have any amounts outstanding   under this line of credit.   

 

Off-Balance Sheet Arrangements.     We do not have any off-balance sheet debt. At June 30, 2015 , we 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, we are not exposed to any financing, liquidity, market or credit risk that could arise if we were engaged in such relationships.  

  

Prospective Capital Needs.     We believe that our existing cash, cash equivalents and short-term investments, together with cash generated from operations as well as from the purchase of common stock through our employee stock purchase plan and available borrowings under our loan agreement will be sufficient to cover our working capital needs, capital expenditures, investment requirements, commitments, payment of dividends to our stockholders and repurchases of our common stock for at least the next 12 months, although the use of certain of our funds for domestic purposes may require us to repatriate foreign earnings which would be subject to the U.S. federal statutory tax rate of 35%. We may also seek to pursue additional financing or to raise additional funds by selling equity or debt to the public or in private transactions. If we elect to raise additional funds, we may not be able to obtain such funds on a timely basis on acceptable terms, if at all. If we raise additional funds by issuing additional equity or convertible debt securities, the ownership percentages of our existing stockholders would be reduced. In addition, the equity or debt securities that we issue may have rights, preferences or privileges senior to those of our common stock. We may also choose to repatriate foreign earnings which would be subject to the U.S. federal statutory tax rate of 35% and therefore, would likely have a material adverse effect on our effective tax rate and on our net income and earnings per share. We could also choose to reduce certain expenditures or payments of dividends or suspend our program to repurchase shares of our common stock. Historically, we have not had to rely on debt, public or private, to fund our operating, financing or investing activities.

 

Although we believe that we have sufficient capital to fund our operating activities for at least the next 12 months, our future capital requirements may vary materially from those now planned. We anticipate that the amount of capital we will need in the future will depend on many factors, including:   

 

·

repurchases of our common stock; 

·

payment of dividends to our stockholders ;

·

acquisitions of other businesses, assets, products or technologies;  

·

difficulties and the high tax costs associated with the repatriation of earnings;

·

required levels of research and development and other operating costs;

·

our business, product, capital expenditure and research and development plans, and product and technology roadmaps; 

·

the overall levels of sales of our products and gross profit margins;

·

the levels of inventory and accounts receivable that we maintain;

·

general economic and political uncertainty and specific conditions in the markets we address, including any volatility in the industrial economy in the various geographic regions in which we do business;

·

the inability of certain of our customers who depend on credit to have access to their traditional sources of credit to finance the purchase of products from us, which may lead them to reduce their level of purchases or to seek credit or other accommodations from us;

·

capital improvements for new and existing facilities; 

·

our relationships with suppliers and customers; and 

·

the level of stock   purchases under our employee stock purchase plan.  

  

Recently Issued Accounting Pronouncements  

  

See Note 15 – Recently issued accounting pronouncements in Notes to Consolidated Financial Statements.   

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Item 3. Quantitative and Qualitative Disclosures About Market Risk   

  

Financial Risk Management  

  

Our international sales are subject to inherent risks, including fluctuations in local economies; fluctuations in foreign currencies relative to the U.S. dollar; 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 and costs in the repatriation of earnings and burdens of complying with a wide variety of foreign laws.         

 

The vast majority of our sales outside of North America 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. The change in exchange rates had the effect of decreasing our net sales by $19 million in the three month period ended June 30, 2015, and increasing our net sales by $1.5 million in the three month period ended June 30, 2014. The change in exchange rates had the effect of decreasing our net sales by $36 million in the six month period ended June 30, 2015, and decreasing our net sales by $2.9 million in the six month period ended June 30, 2014. Since most of our international operating expenses are also incurred in local currencies, the change in exchange rates had the effect of decreasing our net operating expenses by $11 million in the three month period ended June 30, 2015, and increasing our net operating expenses by $127,000 in the three month period ended June 30, 2014.  The change in exchange rates had the effect of decreasing our net operating expenses by $19 million in the six month period ended June 30, 2015, and decreasing our net operating expenses by $1.6 million in the six month period ended June 30, 2014. 

  

During the second quarter of 2015, we continued to experience broad volatility in the foreign currency exchange markets and a strong U.S. dollar in many of the currency markets where we have exposure, with the U.S. dollar index, as tracked by the St. Louis Federal Reserve, near a ten year high. We cannot predict the direction or degree of future volatility in these exchange rates. In the past, we have noted that significant volatility in foreign currency exchange rates in the markets in which we do business has had a significant impact on the revaluation of our foreign currency denominated firm commitments, on our ability to forecast our U.S. dollar equivalent net sales and expenses and on the effectiveness of our hedging programs. In the past, these dynamics have also adversely affected our net sales growth in international markets and may pose similar challenges in the future. We recognize the local currency as the functional currency in virtually all of our international subsidiaries.      

 

If the local currencies in which we sell our products strengthen against the U.S. dollar, we may need to lower our prices in the local currency to remain competitive in our international markets which could have a material adverse effect on our gross and net profit margins. If the local currencies in which we sell our products weaken against the U.S. dollar and if the local sales price increases cannot be passed through to our customers due to competitive pressures, we will experience a deterioration of our gross and net profit margins. To help protect against the change in the value caused by a fluctuation in foreign currency exchange rates of forecasted foreign currency cash flows resulting from international sales and expenses over the next one to two years, we have a foreign currency cash flow hedging program. We hedge portions of our forecasted net sales, cost of sales and operating expenses denominated in foreign currencies with foreign currency forward contracts. For forward contracts, when the dollar strengthens significantly against the foreign currencies, the change in the present value of future foreign currency cash flows may be offset by the change in the fair value of the forward contracts designated as hedges. For purchased option contracts, when the dollar strengthens significantly against the foreign currencies, the change in the present value of future foreign currency cash flows may be offset by the change in the fair value of the option contracts designated as hedges, net of the premium paid. Our foreign currency purchased option contracts are purchased “at-the-money” or “out-of-the-money.” We purchase foreign currency forward and option contracts for up to 100% of our forecasted exposures in selected currencies (primarily in Euro, Japanese yen, Hungarian forint, British pound, and Malaysian ringgit ) and limit the duration of these contracts to 40 months or less. As a result, our hedging activities only partially address our risks from foreign currency transactions, and there can be no assurance that this strategy will be successful. We do not invest in contracts for speculative purposes.

 

During the three month period ended June 30, 2015, our hedges had the effect of increasing our net sales by $5.2 million, increasing our cost of sales by $509,000 and increasing our operating expenses by $378,000. During the three month period ended June 30, 2014, our hedges had the effect of decreasing our net sales by $231,000, decreasing our cost of sales by $101,000, and decreasing our operating expenses by $86,000. During the six month period ended June 30, 2015, our hedges had the effect of increasing our net sales by $10 million, increasing our cost of sales by $842,000 and increasing our operating expenses by $742,000. During the six month period ended June 30, 2014, our hedges had the effect of increasing our net sales by $115,000, decreasing our cost of sales by $182,000, and decreasing our operating expenses by $104,000. (See “Note 5 - Derivative instruments and hedging activities” of Notes to Consolidated Financial Statements for further discussion regarding our cash flow hedging program and its related impacted on our net sales, cost of sales and operating expenses for the three and six month periods ended June 30, 2015 and 2014).  

 

 

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Inventory Management  

  

The markets for our products dictate that many of our products be shipped very quickly after an order is received. As a result, we are required to maintain significant inventories. Therefore, inventory obsolescence is a risk for us due to frequent engineering changes, shifting customer demand, the emergence of new industry standards and rapid technological advances including the introduction by us or our competitors of products embodying new technology. However, our risk of obsolescence may be mitigated as many of our products have interchangeable parts and many have long lives. While we adjust for excess and obsolete inventories and we monitor the valuation of our inventories, there can be no assurance that our valuation adjustments will be sufficient.

 

In recent years, we have made a concentrated effort to increase our net sales through the pursuit of orders with a value greater than $1.0 million. Fulfillment of these contracts can severely challenge our supply chain capabilities at the component acquisition, assembly and delivery stages. These contracts can also require us to develop specific product mitigation plans for product delivery constraints caused by unexpected or catastrophic situations to help assure timely production recovery and to comply with critical delivery commitments where severe contractual liabilities can be imposed on us if we fail to provide the quantity of products at the required delivery times. In order to help mitigate the risks associated with these contractual requirements, we may choose to build inventory levels for certain parts or systems. Because our contracts with such customers may allow the customer to cancel or delay orders without liability, such actions expose our business to increased risk of inventory obsolescence. 

       

Market Risk  

  

We are exposed to a variety of risks, including foreign currency fluctuations and changes in the market value of our investments. In the normal course of business, we employ established policies and procedures to manage our exposure to fluctuations in foreign currency values and changes in the market value of our investments.      

 

Cash, Cash Equivalents and Short-Term Investments  

  

At June 30, 2015, we had $423 million in cash, cash equivalents and short-term investments. See Liquidity and Capital Resources   above for further discussion regarding our cash, cash equivalents and short-term investments

    

We report our available-for-sale short-term investments at fair value. (See “Note 4 – Fair value measurements” of Notes to Consolidated Financial Statements for a further description of the fair value measurement of our short term investments).

 

The goal of our investment policy is to manage our investment portfolio to preserve principal and liquidity while maximizing the return on our investment portfolio through the full investment of available funds. We place our cash investments in instruments that meet credit quality standards, as specified in our corporate investment policy guidelines. These guidelines also limit the amount of credit exposure to any one issue, issuer or type of instrument. Our cash equivalents and short-term investments carried ratings from the major credit rating agencies that were in accordance with our corporate investment policy. Our investment policy allows investments in the following: government and federal agency obligations, repurchase agreements (“Repos”), certificates of deposit and time deposits, corporate obligations, medium term notes and deposit notes, commercial paper including asset-backed commercial paper (“ABCP”), puttable bonds, general obligation and revenue bonds, money market funds, taxable commercial paper, corporate notes/bonds, municipal notes, municipal obligations, and tax exempt commercial paper. All such instruments must carry minimum ratings of A1/P1/F1, MIG1/VMIG1/SP1 and A2/A/A, as applicable, all of which are considered “investment grade.” Our investment policy for marketable securities requires that all securities mature in five years or less, with a weighted average maturity of no longer than 24 months with at least 10% maturing in 90 days or less.

      

We account for our investments in debt and equity instruments under FASB ASC 320 Investments – Debt and Equity Securities (FASB ASC 320). Our investments are classified as available-for-sale and accordingly are reported at fair value, with unrealized gains and losses reported as other comprehensive income, a component of stockholders’ equity. Unrealized losses are charged against income when a decline in fair value is determined to be other-than-temporary. 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 fair value of our short-term investments at June 30, 2015 and December 31, 2014 was $190 million and $197 million, respectively. 

  

We follow the guidance provided by FASB ASC 320 to assess whether our investments with unrealized loss positions are other than temporarily impaired. Realized gains and losses and declines in value judged to be other-than-temporary are determined based on the specific identification method and are reported in other income, net, in our Consolidated Statements of Income. There were not any other-than-temporary impairments recognized in other expense during six month periods ended June 30, 2015 .   

 

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Interest Rate Risk  

  

Investments in both fixed rate and floating rate instruments carry a degree of interest rate risk. Fixed rate securities may have their market value adversely impacted due to an increase in interest rates, while floating rate securities may produce less income than expected if interest rates fall. Due to these factors, our future investment income may fall short of expectations due to changes in interest rates or if the decline in the fair value of our publicly traded debt investments is judged to be other-than-temporary. We may suffer losses in principal if we are forced to sell securities that have declined in market value due to changes in interest rates. However, because any debt securities we hold are classified as available-for-sale, no gains or losses are realized in our income statement due to changes in interest rates unless such securities are sold prior to maturity or unless declines in value are determined to be other-than-temporary. These securities are reported at fair value with the related unrealized gains and losses included in accumulated other comprehensive income (loss), a component of stockholders’ equity, net of tax.

 

In a declining interest rate environment, as short-term investments mature, reinvestment occurs at less favorable market rates. Given the short-term nature of certain of our investments, the current interest rate environment of low rates has negatively impacted our investment income.     

 

In order to assess the interest rate risk associated with our investment portfolio, we performed a sensitivity analysis to determine the impact a change in interest rates would have on the value of our investment portfolio assuming a 100 basis point parallel shift in the yield curve. Based on our investment positions as of June 30, 2015, a 100 basis point increase or decrease in interest rates across all maturities would result in a $930,000 increase or decrease in the fair market value of our portfolio. As of December 31, 2014 , a similar 100 basis point increase or decrease in interest rates across all maturities would have result ed in a $ 965 ,000 increase or decrease in the fair market value of our portfolio. Such losses would only be realized if we sold the investments prior to maturity or if there is an other-than-temporary impairment. Actual future gains and losses associated with our investments may differ from the sensitivity analyses performed as of June 30, 2015 , due to the inherent limitations associated with predicting the changes in the timing and level of interest rates and our actual exposures and positions.  

  

We continue to monitor the stability of the financial markets, particularly those in the European region and have taken steps to limit our direct and indirect exposure to these markets; however, we can give no assurance that we will not be negatively impacted by any adverse outcomes in those markets. We also continue to weigh the benefit of the higher yields associated with longer maturities against the interest rate risk and credit rating risk, also associated with these longer maturities when making these decisions. We cannot predict when or if interest rates and investment yields will rise. If yields continue to stay at these low levels, our investment income will continue to be negatively impacted.       

 

Exchange Rate Risk  

  

Our objective in managing our exposure to foreign currency exchange rate fluctuations is to reduce the impact of adverse fluctuations in such exchange rates on our earnings and cash flow. Accordingly, we utilize purchased foreign currency option and forward contracts to hedge our exposure on anticipated transactions and firm commitments. There can be no assurance that our foreign currency hedging activities will substantially offset the impact of fl uctuations in currency exchange rates on our results of operations and financial position.   Based on the foreign exchange instruments outstanding at June 30, 2015 and December 31, 2014 , 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 settlement value of all of our instruments outstanding of approximately $10 million and $13 million, respectively. However, as we utilize foreign currency instruments for hedging anticipated and firmly committed transactions, we believe that a loss in settlement value for those instruments will be substantially offset by increases in the value of the underlying exposure. (See “Note 5 - Derivative instruments and hedging activities” of Notes to Consolidated Financial Statements for a further description of our derivative instruments and hedging activities).  

    

Item 4. Controls and Procedures  

  

Evaluation of Disclosure Controls and Procedures

 

Based on an evaluation under the supervision and with the participation of our management, our principal executive officer and our principal financial officer have concluded that our disclosure controls and procedures as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act were effective as of June 30, 2015, to ensure that information required to be disclosed by us in reports that we file or submit under the Exchange Act is (i) recorded, processed, summarized and reported within the time periods specified in the SEC rules and forms and (ii) accumulated and communicated to our management, including our principal executive officer and principal financial officer, as appropriate to allow timely decisions regarding required disclosure.

 

Changes in Internal Control Over Financial Reporting

 

There were no changes in our internal control over financial reporting during the second quarter of 2015, which were identified in connection with management’s evaluation required by paragraph (d) of Rules 13a-15 and 15d-15 under the Exchange Act, that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.

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PART II - OTHER INFORMATION

  

ITEM 1.       LEGAL PROCEEDINGS   

  

We are not currently a party to any material litigation. However, in the ordinary course of our business, we are involved in a limited number of legal actions, both as plaintiff and defendant, and could incur uninsured liability in any one or more of them. We also periodically receive notifications from various third parties related to alleged infringement of patents or intellectual property rights, commercial disputes or other matters. No assurances can be given with respect to the extent or outcome of any future litigation or dispute.  

 

ITEM 1A.    RISK FACTORS   

 

In addition to the other information set forth in this Form 10-Q, you should carefully consider the risk factors discussed below. The risks described below are not the only risks that we face. Additional risks and uncertainties not currently known to us or that we currently deem to be immaterial also may materially adversely affect our business, financial condition, and/or operating results.

 

 

Our F inancial P erformance is S ubject to R isks A ssociated with C hanges in the V alue of the U.S. D ollar versus L ocal C urrencies . The vast majority of our sales outside of North America 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. If the local currencies in which we sell our products strengthen against the U.S. dollar, we may need to lower our prices in the local currency to remain competitive in our international markets which could have a material adverse effect on our gross and net profit margins. If the local currencies in which we sell our products weaken against the U.S. dollar and if the local sales price increases cannot be passed through to our customers due to competitive pressures, we will experience a deterioration of our gross and net profit margins. (See Financial Risk Management under Item 3. Quantitative and Qualitative Disclosures About Market Risk for further discussion on the effect changes in the foreign currency exchange rates have on our operating results.) See “Current business outlook” beginning on page 22 of this Form 10-Q for information regarding recent business conditions.

   

We cannot predict to what degree or how long the recent volatility in the foreign currency exchange markets will continue. In the past, we have noted that significant volatility in foreign currency exchange rates in the markets in which we do business has had a significant impact on the revaluation of our foreign currency denominated firm commitments, on our ability to forecast our U.S. dollar equivalent net sales and expenses and on the effectiveness of our hedging programs. In the past, these dynamics have also adversely affected our net sales growth in international markets and may pose similar challenges in the future. We recognize the local currency as the functional currency in virtually all of our international subsidiaries. 

 

Uncertain Global Economic Conditions Could Materially Adversely Affect Our Business and Results of Operations.  Our operations and performance are sensitive to fluctuations in general economic conditions, both in the U.S. and globally. The ongoing uncertainty created by volatile currency markets, the continued impact of the sanctions against Russia, the increasing weakness in the PC market and volatile oil prices, alone or in combination, may continue to have a material adverse effect on our net sales and the financial results of our operations. In addition, we remain concerned about the geopolitical instability in the Middle East as well as the continued volatility of the equity markets. These factors as well as others we may not contemplate could have a material adverse effect on the spending patterns of businesses including our current and potential customers which could have a material adverse effect our net sales and our results of operations. Other factors that could adversely influence demand for our products include  unemployment, labor and healthcare costs, access to credit, consumer and business confidence, and other macroeconomic factors that could have a negative impact on capital investment and spending behavior.  See “Current business outlook” beginning on page 22 of this Form 10-Q for information regarding recent business conditions.

  

Our Current Domestic Cash Position May Not Be Sufficient to Fund our Domestic Cash Needs in the Next Twelve Months and We May Need to Borrow Under our Credit Agreement, Seek Funding from External Sources or Repatriate Foreign Earnings.     On May 9, 2013, we entered into a Loan Agreement (the “Loan Agreement”) with Wells Fargo Bank, National Association. The Loan Agreement provides for a $50 million unsecured revolving line of credit with a scheduled maturity date of May 9, 2018 (the “Maturity Date”). Proceeds of loans made under the Loan Agreement may be used for working capital and other general corporate purposes. We may choose to borrow funds against this line of credit in future periods in order to have sufficient domestic cash to fund continued dividends to our stockholders, to fund potential acquisitions, to purchase shares under our board authorized share repurchase program or other domestic general corporate purposes without the need to repatriate foreign earnings. Future dividends are subject to declaration by our Board of Directors, and our share repurchase program does not obligate us to acquire any specific number of shares. At June 30, 2015 , we did not have any amounts outstanding under the Loan Agreement.

 

 

 

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We may also seek to pursue additional financing or to raise additional funds by selling equity or debt to the public or in private transactions. If we elect to raise additional funds, we may not be able to obtain such funds on a timely basis or on acceptable terms, if at all. If we raise additional funds by issuing additional equity or convertible debt securities, the ownership percentages of our existing stockholders would be reduced. In addition, the equity or debt securities that we issue may have rights, preferences or privileges senior to those of our common stock. We may also choose to repatriate foreign earnings which would be subject to the U.S. federal statutory tax rate of 35% and therefore, would likely have a material adverse effect on our effective tax rate and on our net income and earnings per share. We could also choose to reduce certain expenditures or payments of dividends or suspend our program to repurchase shares of our common stock. Historically, we have not had to rely on debt, public or private, to fund our operating, financing or investing activities.

 

Orders With a Value of Greater than One Million Dollars Expose Us to Significant Additional Business and Legal Risks that Could Have a Material Adverse Impact on our Business, Results of Operations and Financial Condition. In recent years, we have made a concentrated effort to increase our net sales through the pursuit of orders with a value greater than $1.0 million. These types of orders expose us to significant additional business and legal risks compared to smaller orders. Our very large customers frequently require contract terms that vary substantially from our standard terms of sale. These orders can be accompanied by critical delivery commitments and severe contractual liabilities can be imposed on us if we fail to provide the quantity of product at the required delivery times. These customers may also impose product acceptance requirements and product performance evaluations which create uncertainty with respect to the timing of our ability to recognize revenue from such orders. In addition, these larger orders are more volatile, are subject to greater discount variability and may contract at a faster pace during an economic downturn. These contracts may also have supply constraint requirements which mandate that we allocate large product inventories for a specific contract. These inventory requirements expose us to higher risks of inventory obsolescence and can adversely impact our ability to provide adequate product supply to other customers. 

 

Fulfillment of these contracts can severely challenge our supply chain capabilities at the component acquisition, assembly and delivery stages. Our contracts with such customers may allow the customer to cancel or delay orders without liability which exposes our business and financial results to significant risk. These contracts can require us to develop specific product mitigation plans for product delivery constraints caused by unexpected or catastrophic situations to help assure quick production recovery. We can attempt to manage this risk but there can be no assurance that we will be successful in our efforts. These customers may demand most favored customer pricing, significant discounts, extended payment terms and volume rebates and such terms can adversely impact our net sales, margins and financial results and may also negatively impact our days sales outstanding to the extent these orders become a larger proportion of our overall net sales. These customers may request broad indemnity obligations and large direct and consequential damage provisions in the event their contracts with us are breached, and these provisions may expose us to risk and liabilities in excess of our standard terms and conditions of sale. While we attempt to limit the number of contracts that contain the non-standard terms of sale described above and attempt to contractually limit our potential liability under such contracts, we have been and expect to be required to agree to some or all of such provisions to secure these customers and to continue to grow our business. Such actions expose us to significant additional risks which could result in a material adverse impact on our business, results of operations and financial condition.   

   

Revenue Derived from Large Orders Could Adversely Affect our Gross Margin and Could Lead to Greater Variability in our Quarterly Results.     We define our large order business as orders with a value greater than $100,000. These orders may be more sensitive to changes in the global industrial economy, may be subject to greater discount variability, lower gross margins, and may contract at a faster pace during an economic downturn.   To the extent that the amount of our net sales derived from large orders increases in future periods, either in absolute dollars or as a percentage of our overall business, our gross margins could decline, and we could experience greater volatility and see a greater negative impact from future downturns in the global industrial economy. This dynamic may also have an adverse effect on the historical seasonal pattern of our net sales and our results of operations. These types of orders also make managing inventory levels more difficult as we have in the past and may have to in the future build large quantities of inventory in anticipation of future demand that may not materialize.

 

Our Product Revenues are Dependent on Certain Industries and Contractions in these Industries Could Have a Material Adverse Effect on Our Results of Operations.     Sales of our products are dependent on customers in certain industries, particularly the telecommunications, semiconductor, consumer electronics, automotive, energy, automated test equipment, defense and aerospace industrie s.   As we have experienced in the past, and as we may continue to experience in the future, downturns characterized by diminished product demand in any one or more of these industries may result in decreased sales, and a material adverse effect on our operating results. We cannot predict when and to what degree contractions in these industries may occur, however any sharp or prolonged contraction in one or more of these industries could have a material adverse effect on our business and results of operations.

 

 

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We are Subject to Various Risks Associated with International Operations and Foreign Economies. Our international sales are subject to inherent risks, including:  

  

·

fluctuations in foreign currencies relative to the U.S. dollar;

·

difficulties and the high tax costs associated with the repatriation of earnings;  

·

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; and,  

·

the burdens of complying with a wide variety of foreign laws.  

  

In many foreign countries, particularly in those with developing economies, it is common to engage in business practices that are prohibited by U.S. regulations applicable to us such as the Foreign Corrupt Practices Act. Although we have policies and procedures designed to ensure compliance with these laws, there can be no assurance that all of our employees, contractors and agents, including those based in or from countries where practices which violate such U.S. laws may be customary, will not take actions in violation of our policies. Any violation of foreign or U.S. laws by our employees, contractors or agents, even if such violation is prohibited by our policies, could have a material adverse effect on our business. We must also comply with various import and export regulations. The application of these various regulations depends on the classification of our products which can change over time as such regulations are modified or interpreted. As a result, even if we are currently in compliance with applicable regulations, there can be no assurance that we will not have to incur additional costs or take additional compliance actions in the future. Failure to comply with these regulations could result in fines or termination of import and export privileges, which could have a material adverse effect on our 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.

     

Our Success Depends on New Product Introductions and Market Acceptance of Our Products.   The market for our 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. Our success is dependent on our 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. As has occurred in the past and as may be expected to occur in the future, we have 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 our operating results. There can be no assurance that we will be able to introduce new products in accordance with announced release dates, that our new products will achieve market acceptance or that any such acceptance will be sustained for any significant period. Failure of our new products to achieve or sustain market acceptance could have a material adverse effect on our operating results. Moreover, there can be no assurance that our international sales will continue at existing levels or grow in accordance with our efforts to increase foreign market penetration.   

 

We Operate in Intensely Competitive Markets.     The markets in which we operate are characterized by intense competition from numerous competitors, some of which are divisions of large corporations having far greater resources than we have, and we may face further competition from new market entrants in the future. A key competitor is Keysight Technologies Inc. (“Keysight”) which was formerly part of Agilent. Agilent completed the spin off of Keysight in November 2014. Keysight offers hardware and software products that provide solutions that directly compete with our virtual instrumentation products including its own line of PXI based hardware. Keysight is aggressively advertising and marketing products that are competitive with our products. Because of Keysight’s strong position in the instrumentation business, changes in its marketing strategy or product offerings could have a material adverse effect on our operating results.  In May 2015, Danaher Corporation announced its intention to separate into two publicly traded companies. The split-off will result in a new public company comprised of Danaher’s t est and m easurement platform and other specialty industrial businesses which can compete directly with us.

 

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We believe our ability to compete successfully depends on a number of factors both within and outside our control, including: 

 

·

general market and economic conditions;

·

our ability to maintain and grow our business with our largest customers;

·

our ability to meet the volume and service requirements of our very large customers;

·

industry consolidation, including acquisitions by us or our competitors;

·

capacity utilization and the efficiency of manufacturing operations;  

·

success in developing new products;

·

timing of our new product introductions; 

·

new product introductions by competitors; 

·

the ability of competitors to more fully leverage low cost geographies for manufacturing and/or distribution; 

·

product pricing; 

·

effectiveness of sales and marketing resources and strategies; 

·

adequate manufacturing capacity and supply of components and materials; 

·

strategic relationships with our suppliers; 

·

product quality and performance; 

·

protection of our products by effective use of intellectual property laws; 

·

the financial strength of our competitors; 

·

the outcome of any future litigation or commercial dispute; 

·

barriers to entry imposed by competitors with significant market power in new markets; or

·

government actions throughout the world. 

 

There can be no assurance that we will be able to compete successfully in the future.    

 

 We Have Established a Budget and Variations From Our Budget Will Affect Our Financial Results.     We have an operating budget for 2015. Our budget was established based on the estimated revenue from sales of our products which are based on anticipated economic conditions in the markets in which we do business as well as the timing and volume of our new products and the expected penetration of both new and existing products in the marketplace. If demand for our products in the remainder of 2015 is less than the demand we anticipated in setting our 2015 budget, our operating results could be negatively impacted.

 

If we exceed our budgeted level of expenses or if we cannot reduce expenditures in response to a decrease in net sales, our operating results could be adversely affected. Our spending could exceed our budget due to a number of factors, including:   

 

·

continued foreign currency fluctuations;

·

additional costs related to acquisitions, if any ;

·

less than expected capacity utilization of our manufacturing facility in Penang, Malaysia;

·

increased manufacturing costs resulting from component supply shortages or component price fluctuations; 

·

additional marketing costs for new product introductions or for conferences and tradeshows; 

·

the timing, cost or outcome of any future intellectual property litigation or commercial disputes; or

·

increased component costs resulting from vendors increasing their sales price. 

 

Our Acquisitions are Subject to a Number of Related Costs and Challenges that Could Have a Material Adverse Effect on Our Business and Results of Operations.     In the six month period ended June 30, 2015 and in recent years, we have completed several acquisitions. Achieving the anticipated benefits of an acquisition depends upon whether the integration of the acquired business, products or technology is accomplished efficiently and effectively. In addition, successful acquisitions generally require, among other things, integration of product offerings, manufacturing operations and coordination of sales and marketing and R&D efforts. These difficulties can become more challenging due to the need to coordinate geographically separated organizations, the complexities of the technologies being integrated , and the necessities of integrating personnel with disparate business backgrounds and combining different corporate cultures. The integration of operations following an acquisition also requires the dedication of management resources, which may distract attention from our day-to-day business and may disrupt key R&D, marketing or sales efforts. Our inability to successfully integrate any of our acquisitions could harm our business. The existing products previously sold by entities we have acquired may be of a lesser quality than our products and/or could contain errors that produce incorrect results on which users rely or cause failure or interruption of systems or processes that could subject us to liability claims that could have a material adverse effect on our operating results or financial position. Furthermore, products acquired in connection with acquisitions may not gain acceptance in our markets, and we may not achieve the anticipated or desired benefits of such transactions.

 

37


 

 

Our Quarterly Results are Subject to Fluctuations Due to Various Factors that May Adversely Affect Our Business and Result of Operations.  Our quarterly operating results have fluctuated in the past and may fluctuate significantly in the future due to a number of factors, including: 

 

·

fluctuations in foreign currency exchange rates; 

·

changes in the global economy or global credit markets; 

·

increasing concentration in the amount of revenue derived from very large orders and the pricing, margins, and other terms of such orders; 

·

changes in the capacity utilization including at our facility in Malaysia;

·

changes in the mix of products sold; 

·

the availability and pricing of components from third parties (especially limited sources); 

·

the difficulty in maintaining margins, including the higher margins traditionally achieved in international sales; 

·

changes in pricing policies by us, our competitors or suppliers; 

·

the timing, cost or outcome of any future intellectual property litigation or commercial disputes; 

·

delays in product shipments caused by human error or other factors; or

·

disruptions in transportation channels.  

 

Our Revenues are Subject to Seasonal Variations.     In previous years, our revenues have been characterized by seasonality, with revenues typically growing from the first quarter to the second quarter, being relatively constant from the second quarter to the third quarter, growing in the fourth quarter compared to the third quarter and declining in the first quarter of the following year from the fourth quarter of the preceding year. This historical trend has been affected and may continue to be affected in the future by broad fluctuations in the global industrial economy as well as the timing of new product introductions or any acquisitions. In addition, revenue derived from very large orders, including those from our largest customer, have had a significant impact on our historical seasonal trends as these orders may be more sensitive to changes in the global industrial economy, may be subject to greater volatility in timing and amount, greater discount variability, lower gross margins, and may contract at a faster pace during economic downturns.

 

Our Reported Financial Results May be Adversely Affected by Changes in Accounting Principles Generally Accepted in the United States.   We prepare our financial statements in conformity with accounting principles generally accepted in the U.S. These accounting principles are subject to interpretation by the Financial Accounting Standards Board (“FASB”) and the Securities and Exchange Commission. A change in these policies or interpretations could have a significant effect on our reported financial results, and could affect the reporting of transactions completed before the announcement of a change. In May 2014, the FASB issued ASU 2014-09, Revenue from Contracts with Customers. The update is a comprehensive new revenue recognition model that will require a company to recognize revenue to depict the transfer of goods or services to a customer at an amount that reflects the consideration it expects to receive in exchange for those goods or services. This new standard will also require additional disclosure about the nature, amount, timing and uncertainty of revenue and cash flows arising from customer contracts, including significant judgments and changes in judgments and assets recognized from costs incurred to obtain or fulfill a contract. As of the date of this filing, the FASB is drafting a final Accounting Standards Update that is expected to change the effective date of ASU 2014-09 so that it will be effective for our fiscal year 2018 with early adoption permitted for our fiscal year 2017. We are currently evaluating the effect that the adoption of this ASU will have on our financial statements.

 

Our Tax Returns and Other Tax Matters are Subject to Examination by the U.S. Internal Revenue Service and Other Tax Authorities and Governmental Bodies and the Results of These Examinations Could Have a Material Adverse Effect on Our Financial Condition. We account for uncertainty in income taxes recognized in our financial statements using prescribed recognition thresholds and measurement attributes for financial statement disclosure of tax positions taken or expected to be taken on our tax returns. These uncertain tax positions are subject to examination by the U.S. Internal Revenue Service and other tax authorities. There can be no assurance as to the outcome of any future examinations. If the ultimate determination of our taxes owed is for an amount in excess of amounts previously accrued, our operating results, cash flows, and financial condition could be materially adversely affected.

 

Tax Law Changes in U.S. Could Have a Negative Impact on our Effective Tax Rate, Earnings and Results of Operations. In 2014, our effective tax rate benefited from the research tax credit in the U.S. This credit expired at the end of 2014 and unless it is extended, we will not be able to take this credit in 2015 or beyond which will have a material negative impact on our effective tax rate in future periods.  

 

38


 

 

Tax Law Changes in Hungary Could Have a Negative Impact on our Effective Tax Rate, Earnings and Results of Operations . The profit from our Hungarian operation benefits from the fact that it is subject to an effective income tax rate that is lower than the U.S. federal statutory tax rate of 35%. Our earnings in Hungary are subject to a statutory tax rate of 19%.   In addition, effective January 1, 2010, certain qualified research and development expenses in Hungary became eligible for an enhanced tax deduction. These tax benefit s may not be available in future years due to changes in political conditions in Hungary or changes in tax laws in Hungary or in the U.S. The reduction or elimination of these benefits in Hungary or future changes in U.S. law pertaining to the taxation of foreign earnings could result in an increase in our future effective income tax rate which could have a material adverse effect on our operating results. (See “Note 9 – Income taxes” of Notes to Consolidated Financial Statements for additional discussion regarding the impact of these matters on our income taxes).

 

  Our Income Tax Rate could be Adversely Affected by the Expiration of a Tax Holiday in Malaysia. Profits from our manufacturing facility in Penang, Malaysia are free of tax under a 15 year tax holiday effective January 1, 2013. If we fail to satisfy the conditions of the tax holiday, this tax benefit may be terminated early. The expiration of the tax holiday in Malaysia or future changes in U.S. law pertaining to the taxation of foreign earnings could have a material adverse effect on our operating results. (See “Note 9 – Income taxes” of Notes to Consolidated Financial Statements for additional discussion regarding the impact of this tax holiday on our income taxes).

 

A Substantial Majority of our Manufacturing, Warehousing and Distribution Capacity is Located Outside of the United States. We manufacture a substantial majority of our product volume at our facilities in Debrecen, Hungary and Penang, Malaysia. Additional production, primarily of RF products and of low volume, complex or newly introduced products is done in Austin, Texas, however, we are transitioning all of our Austin based manufacturing activities to our manufacturing facilities in Hungary and Malaysia by the end of the third quarter. As of June 30, 2015, we had successfully transferred approximately 75% of our remaining Austin based production into Hungary and Malaysia. In 2015, our site in Malaysia is expected to produce approximately 30% of our global production. This production is being generated by transferring existing products from our Austin production facility in support of anticipated growth in our business and introducing new products directly into our Malaysian facility. Our site in Hungary is expected to produce approximately 65 % of our global production in 2015.

 

In order to enable timely shipment of products to our customers we also maintain the vast majority of our inventory at our international locations. In addition to being subject to the risks of maintaining such a concentration of manufacturing capacity and global inventory, these facilities and their operations are also subject to risks associated with doing business internationally, including:    

·

the volatility of the Hungarian forint and the Malaysian ringgit relative to the U.S. dollar; 

·

changing and potentially unstable political environment s

·

signi ficant and frequent changes in corporate tax laws; 

·

difficulty in managing manufacturing operations in foreign countries; 

·

challenges in expanding capacity to meet increased demand; 

·

difficulty in achieving or maintaining product quality; 

·

interruption to transportation flows for delivery of components to us and finished goods to our customers; 

·

restrictive labor codes; and, 

·

increasing labor costs. 

 

No assurance can be given that our efforts to mitigate these risks will be successful. Any failure to effectively deal with the risks above could result in an interruption in the operations of our facilities in Hungary or Malaysia which could have a material adverse effect on our operating results. 

 

Our centralization of inventory and distribution from a limited number of shipping points is subject to inherent risks, including:

 

·

burdens of complying with additional and/or more complex VAT and customs regulations; and, 

·

concentration of inventory increasing the risks associated with fire, natural disasters and logistics disruptions to customer order fulfillment. 

 

Any difficulties with the centralization of our distribution or delays in the implementation of the systems or processes to support this centralized distribution could result in an interruption of our normal operations, including our ability to process orders and ship products to our customers. Any failure or delay in distribution from our facilities in Hungary and Malaysia could have a material adverse effect on our operating results.

 

39


 

 

Our Manufacturing Facility in Penang, Malaysia Could Adversely Affect our Gross Margin, Results of Operations and Earnings if Anticipated Demand is Not Achieved.   Our facility in Malaysia is intended to support our long term manufacturing and warehousing capacity needs. In 2015, our site in Malaysia is expected to produce approximately 30% of our global production. If demand for our products does not grow as expected or if it contracts in future periods, we will have excess warehousing and manufacturing capacity which will cause an increase in overhead that will likely negatively impact our gross margins and results of operations in future periods.

 

Our Business is Dependent on Key Suppliers and Distributors and Disruptions in these Businesses Could Adversely Affect our Business and Results of Operations.   Our manufacturing processes use large volumes of high-quality components and subassemblies supplied by outside sources. Several of these components are only available through limited sources. Limited source components purchased include custom ASICs, chassis and other components. We have in the past experienced delays and quality problems in connection with limited source components, and there can be no assurance that these problems will not recur in the future. Accordingly, our failure to receive components from limited suppliers could result in a material adverse effect on our net sales and operating results. In the event that any of our limited source suppliers experience significant financial or operational difficulties due to adverse global economic conditions or otherwise, our business and operating results would likely be adversely impacted until we are able to secure another source for the required materials.

 

In some countries, we use distributors to support our sales channels. In the event that any of our distributors experience significant financial or operational difficulties due to adverse global economic conditions or if we experience disruptions in the use of these distributors, our business and operating results would likely be adversely impacted until we are able to secure another distributor or establish direct sales capabilities in the affected market.      

 

We May Experience Component Shortages that May Adversely Affect Our Business and Result of Operations.     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 limited source components, can result in significant additional costs and inefficiencies in manufacturing. If we are unsuccessful in resolving any such component shortages in a timely manner, we will experience a significant impact on the timing of revenue, a possible loss of revenue, and/or an increase in manufacturing costs, any of which would have a material adverse impact on our operating results. 

 

Concentrations of Credit Risk and Uncertain Conditions in the Global Financial Markets May Adversely Affect Our Business and Result of Operations.     By virtue of our holdings of cash, investment securities and foreign currency derivatives, we have exposure to many different counterparties, and routinely execute transactions with counterparties in the financial services industry, including commercial banks and investment banks. Many of these transactions expose us to credit risk in the event of a default of our counterparties. We continue to monitor the stability of the financial markets, particularly those in the European region and have taken steps to limit our direct and indirect exposure to these markets; however, we can give no assurance that we will not be negatively impacted by any adverse outcomes in those markets. There can be no assurance that any losses or impairments to the carrying value of our financial assets as a result of defaults by our counterparties, would not materially and adversely affect our business, financial position and results of operations.  

 

We Rely on Management Information Systems and Interruptions in our Information Technology Systems Could Adversely Affect our Business.     We rely on the efficient and uninterrupted operation of complex information technology systems and networks to operate our business. We rely on a primary global center for our management information systems and on multiple systems in branches not covered by our global center. As with any information system, unforeseen issues may arise that could affect our ability to receive adequate, accurate and timely financial information, which in turn could inhibit effective and timely decisions. Furthermore, it is possible that our global center for information systems or our branch operations could experience a complete or partial shutdown. A significant system or network disruption could be the result of new system implementations, computer viruses, security breaches, facility issues or energy blackouts. If such a shutdown or disruption occurred, it would adversely impact our product shipments and net sales , as order processing and product distribution are heavily dependent on our management information systems. Such an interruption could also result in a loss of our intellectual property or the release of sensitive competitive information or partner, customer or employee personal data. Any loss of such information could harm our competitive position, result in a loss of customer confidence, and cause us to incur significant costs to remedy the damages caused by the disruptions or security breaches. Accordingly, our operating results in such periods would be adversely impacted.

  

We are continually working to maintain reliable systems to control costs and improve our ability to deliver our products in our markets worldwide. Our efforts include, but are not limited to the following: firewalls, antivirus protection, patches, log monitors, routine backups with offsite retention of storage media, system audits, data partitioning and routine password modifications. No assurance can be given that o ur efforts will be successful.

 

40


 

 

We are Subject to Risks Associated with Our Website.     We devote significant resources to maintain our Website, ni.com, as a key marketing, sales and support tool and expect to continue to do so in the future. However, there can be no assurance that we will be successful in our attempt to leverage the Web to increase sales. Failure to properly maintain our Website may interrupt normal operations, including our ability to provide quotes, process orders, ship products, provide services and support to our customers, bill and track our customers, fulfill contractual obligations and otherwise run our business which would have a material adverse effect on our results of operations. We host our Website internally. Any failure to successfully maintain our Website or any significant downtime or outages affecting our Website could have a material adverse impact on our operating results.

 

Adoption of Complex Health Care Legislation and Related Regulations and Financial Reform Have Increased our Operating Costs and Adversely Affected Our Result of Operations.   The adoption of the Patient Protection and Affordable Care Act and the related reconciliation measure, the Health Care and Education Reconciliation Act of 2010, and the regulations resulting from such legislation have increased the costs of providing health care to our employees as well as caused us to incur additional administrative burdens and costs to comply with certain provisions of this legislation. We are unable to predict the ultimate amount or timing of any such increased costs or to what extent we may need to divert other resources to comply with various provisions of this legislation. Additionally, the Dodd-Frank Wall Street Reform and Consumer Protection Act has resulted in increased costs to us as a result of fees as well as incremental efforts we have had to undertake to comply with provisions of this law which are applicable to our derivative contracts or other financial instruments. In addition to the fees and efforts we have already incurred and undertaken to comply with the Dodd-Frank Wall Street Reform and Consumer Protection Act, we may incur additional costs in future periods as new rules are published and become effective.

 

Our Products are Complex and May Contain Bugs or Errors.  As has occurred in the past and as may be expected to occur in the future, our new software products or new operating systems of third parties on which our products are based often contain bugs or errors that can result in reduced sales or cause our support costs to increase, either of which could have a material adverse impact on our operating results.  

  

Our Business Depends on Our Proprietary Rights and We Have Been Subject to Intellectual Property Litigation.   Our success depends on our ability to obtain and maintain patents and other proprietary rights relative to the technologies used in our principal products. Despite our efforts to protect our proprietary rights, unauthorized parties may have in the past infringed or violated certain of our intellectual property rights. We from time to time engage in litigation to protect our intellectual property rights. In monitoring and policing our intellectual property rights, we have been and may be required to spend significant resources. We from time to time may be notified that we are infringing certain patent or intellectual property rights of others. There can be no assurance that any future intellectual property dispute or litigation will not result in significant expense, liability, injunction against the sale of some of our products, and a diversion of management’s attention, any of which may have a material adverse effect on our operating results.

  

Our Business Depends on the Continued Service of Key Management and Technical Personnel Our success depends upon the continued contributions of our key management, sales, marketing, research and development and operational personnel, including Dr. Truchard, our Chairman and Chief Executive Officer, and other members of our senior management and key technical personnel. We have no agreements providing for the employment of any of our key employees for any fixed term and our key employees may voluntarily terminate their employment with us at any time. The loss of the services of one or more of our key employees in the future could have a material adverse effect on our operating results. We also believe our future success will depend upon our 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. The market for hiring and retaining certain technical personnel, including software engineers, has become more competitive and intense in recent periods. Failure to attract a sufficient number of technical personnel, including software engineers or retain our key personnel could have a material adverse effect on our operating results.  

 

Our Manufacturing Operations are Subject to a Variety of Environmental Regulations and Costs that May Have a Material Adverse Effect on our Business and Results of our Operations.     We must comply with many different governmental regulations related to the use, storage, discharge and disposal of toxic, volatile or otherwise hazardous chemicals used in our manufacturing operations in the U.S., Hungary, and Malaysia. Although we believe that our activities conform to presently applicable environmental regulations, our failure to comply with present or future regulations could result in the imposition of fines, suspension of production or a cessation of operations. Any such environmental regulations could require us to acquire costly equipment or to incur other significant expenses to comply with such regulations. Any failure by us to control the use of or adequately restrict the discharge of hazardous substances could subject us to future liabilities.

 

41


 

 

W e Are Subject to the Risk of Product Liability Claims.     Our products are designed to provide information upon which users may rely. Our products are also used in “real time” applications requiring extremely rapid and continuous processing and constant feedback. Such applications give rise to the risk that a failure or interruption of the system or application could result in economic damage or bodily harm. We attempt to assure the quality and accuracy of the processes contained in our products, and to limit our product liability exposure through contractual limitations on liability, limited warranties, express disclaimers and warnings as well as disclaimers contained in our “shrink wrap” license agreements with end-users. If our products contain errors that produce incorrect results on which users rely or cause failure or interruption of systems or processes, customer acceptance of our products could be adversely affected. Further, we could be subject to liability claims that could have a material adverse effect on our operating results or financial position. Although we maintain liability insurance for product liability matters, there can be no assurance that such insurance or the contractual limitations used by us to limit our liability will be sufficient to cover or limit any claims which may occur.

 

  Provisions in Our Charter Documents and Delaware Law 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 our 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.

 

Compliance With Sections 302 and 404 of the Sarbanes-Oxley Act of 2002 is Costly and Challenging .  As required by Section 302 of the Sarbanes-Oxley Act of 2002, this Form 10-Q contains our management’s certification of adequate disclosure controls and procedures as of June 30, 2015 . Our most recent annual report on Form 10-K also contains a report by our management on our internal control over financial reporting including an assessment of the effectiveness of our internal control over financial reporting as of December 31, 2014 . Our most recent annual report on Form 10-K also contains an attestation and report by our external auditors with respect to the effectiveness of our internal control over financial reporting under Section 404. While these assessments and reports did not reveal any material weaknesses in our internal control over financial reporting, compliance with Sections 302 and 404 is required for each future fiscal year end. We expect that the ongoing compliance with Sections 302 and 404 will continue to be both very costly and very challenging and there can be no assurance that material weaknesses will not be identified in future periods. Any adverse results from such ongoing compliance efforts could result in a loss of investor confidence in our financial reports and have an adverse effect on our stock price.     

42


 

 

ITEM 2. UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS   

  

At June 30, 2015 , there were 3,644,241 shares available for repurchase under a repurchase plan approved on April 21, 2010. This repurchase plan does not have an expiration date. The following table provides information as of June 30, 2015 with respect to the shares of our common stock that we repurchased during the second quarter of 2015.

 

 

 

 

 

 

 

 

 

 

 

Period

 

Total number of shares purchased

 

Average price paid per share

 

Total number of shares purchased as part of publicly announced plans or programs

 

Maximum number of shares that may yet be purchased under the plans or programs (1)

 

 

 

 

 

 

 

 

 

April 1, 2015 to April 30, 2015

 

 -

 

 -

 

 -

 

3,932,245 

 

 

 

 

 

 

 

 

 

May 1, 2015 to May 31, 2015

 

288,004 

$

29.67 

 

288,004 

 

3,644,241 

 

 

 

 

 

 

 

 

 

June 1, 2015 to June 30, 2015

 

 -

 

 -

 

 -

 

3,644,241 

Total

 

288,004 

$

29.67 

 

288,004 

 

3,644,241 

 

 

  ITEM 5. OTHER INFORMATION

  

From time to time our 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. Jeffrey L. Kodosky and James J. Truchard have made periodic sales of our stock pursuant to such plans.

43


 

 

 

 

 

 

 

 

 

 

 

ITEM 6

EXHIBITS

3.1(1)

Certificate of Incorporation, as amended, of the Company.

3.2(2)

Amended and Restated Bylaws of the Company.

3.3(3)

Certificate of Designation of Rights, Preferences and Privileges of Series A Participating Preferred Stock of the Company.

4.1(4)

Specimen of Common Stock certificate of the Company.

10.1(4)

Form of Indemnification Agreement.

10. 2 ( 5 )

1994 Employee Stock Purchase Plan, as amended.*

10.3( 6 )

National Instruments Corporation Annual Incentive Program, as amended.*

10.4(7)

2005 Incentive Plan.*

10.5 (8 )

2005 Form of Restricted Stock Unit Award Agreement (Non-Employee Director).*

10.6( 9 )

2005 Form of Restricted Stock Unit Award Agreement (Performance Vesting).*

10.7( 10 )

2005 Form of Restricted Stock Unit Award Agreement (Current Employee).*

10.8(1 1 )

2005 Form of Restricted Stock Unit Award Agreement (Newly Hired Employee).*

10.9(1 2 )

2010 Incentive Plan.*

10.10(1 3 )

2010 Form of Restricted Stock Unit Award Agreement (Non-Employee Director).*

10.11(1 4 )

2010 Form of Restricted Stock Unit Award Agreement (Performance Vesting).*

10.12(1 5 )

2010 Form of Restricted Stock Unit Award Agreement (Current Employee).*

10.13(1 6 )

2010 Form of Restricted Stock Unit Award Agreement (Newly Hired Employee).*

10.14(1 7 )

2010 Form of Restricted Stock Unit Award Agreement (Performance Vesting).*

10.15(1 8 )

RSU Vesting Acceleration Agreement between the Company and Alexander M. Davern, effective as of October 28, 2014.

10.16 ( 19 )

Loan Agreement, dated as of May 9, 2013, by and among National Instruments Corporation, the guarantors from time to time party thereto and Wells Fargo Bank, National Association, as lender.

10.17(20)

2015 Equity Incentive Plan.*

10.18

2015 Form of Restricted Stock Unit Award Agreement (Non-Employee Director).*

10.19

2015 Form of Restricted Stock Unit Award Agreement (Performance Vesting).*

10.20

2015 Form of Restricted Stock Unit Award Agreement (Current Employee).*

10.21

2015 Form of Restricted Stock Unit Award Agreement (Newly Hired Employee).*

10.22

2015 Form of Restricted Stock Unit Award Agreement (Performance Vesting – Threshold Performance Goal).*

10.23(21)

Performance Cash Incentive Plan.*

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.

101.INS

XBRL Instance Document

101.SCH

XBRL Taxonomy Extension Schema Document

101.CAL

XBRL Taxonomy Extension Calculation Linkbase Document

101.LAB

XBRL Taxonomy Extension Label Linkbase Document

101.PRE

XBRL Taxonomy Extension Presentation Linkbase Document

 

 

(1)

Incorporated by reference to the same-numbered exhibit filed with the Company’s Form 10-K for the fiscal year ended December 31, 2013.

(2)

Incorporated by reference to the same-numbered exhibit filed with the Company’s Form 10-K for the fiscal year ended December 31, 2007.

(3)

Incorporated by reference to the same-numbered exhibit filed with the Company’s Form 8-A on April 27, 2004.

(4)

Incorporated by reference to the Company’s Form S-1 (Reg. No. 33-88386) declared effective March 13, 1995.

( 5 )

Incorporated by reference to exhibit B of the Company’s Proxy Statement filed on April 1, 2014.

(6)

Incorporated by reference to exhibit 10.4 filed with the Company’s Form 10-K for the fiscal year ended December 31, 2014

(7)

Incorporated by reference to exhibit A of the Company’s Proxy Statement filed on April 4, 2005.

( 8 )

Incorporated by reference to exhibit 10.8 filed with the Company’s Form 10-Q on August 2, 2006.

( 9 )

Incorporated by reference to exhibit 10.9 filed with the Company’s Form 10-Q on August 2, 2006.

(10)

Incorporated by reference to exhibit 10.10 filed with the Company’s Form 10-Q on August 2, 2006.

(11)

Incorporated by reference to exhibit 10.11 filed with the Company’s Form 10-Q on August 2, 2006.

(12)

Incorporated by reference to exhibit 10.1 filed with the Company’s Form 8-K filed on May 17, 2010.

(13)

Incorporated by reference to exhibit 10.2 filed with the Company’s Form 8-K filed on June 24, 2010.

(14)

Incorporated by reference to exhibit 10.3 filed with the Company’s Form 8-K filed on June 24, 2010.

(15)

Incorporated by reference to exhibit 10.4 filed with the Company’s Form 8-K filed on June 24, 2010.

(16)

Incorporated by reference to exhibit 10.5 filed with the Company’s Form 8-K filed on June 24, 2010.

(17)

Incorporated by reference to exhibit 10.1 filed with the Company’s Form 8-K filed on April 25, 2014.

(18)

Incorporated by reference to exhibit 10.16 filed with the Company’s Form 10-K for the fiscal year ended December 31, 2014.

(19 )

Incorporated by reference to exhibit 10.1 filed with the Company’s Form 8-K filed on May 13, 2013.

(20)

Incorporated by reference to exhibit B of the Company’s Proxy Statement filed on April 1, 2015.

(21)

Incorporated by reference to exhibit C of the Company’s Proxy Statement filed on April 1, 2015.

 

 

   *

Management Contract or Compensatory Plan or Arrangement

 

44


 

 

SIGN A TURE

  

  

Pursuant to the requirements 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.   

  

Date d:  July 31 , 2015   

  

NATIONAL INSTRUMENTS CORPORATION

By:  /s/ Alex M. Davern

Alex M. Davern

EVP, Chief Operating Officer,

Chief Financial Officer and Treasurer

(Principal Financial and Accounting Officer)

 

  

45


EXHIBIT 10.18

 

NATIONAL INSTRUMENTS CORPORATION

Restricted Stock Unit Award Agreement

(Non-Employee Director)

Grant Number: «RSU_Number»

National Instruments Corporation (the “Company”) hereby grants you, «First»   «Middle»   «Last»   (the “Participant”), an award of restricted stock units (“Restricted Stock Units”) under the National Instruments Corporation 201 5 Equity   Incentive Plan (the “Plan”).  Subject to the provisions of Appendix A (attached) and of the Plan, the principal features of this Award are as follows:

Date of Grant :        «Option_Date (Month date, year)»

Number of Restricted Stock Units : «RSU_Shares»

Vesting Commencement Date : «Vest_Base_Date (Month date, year)»

Vesting of Restricted Stock Units :   Subject to any accelerated vesting provisions in the Plan, the Restricted Stock Units will vest as follows:

One-third (1/3) of the Restricted Stock Units will vest on each anniversary of the Vesting Commencement Date, subject to Participant continuing to be a non-employee Director through such dates.

Unless otherwise defined herein or in Appendix A, capitalized terms herein or in Appendix A will have the defined meanings ascribed to them in the Plan.

IMPORTANT:

The Company’s obligation to deliver Shares pursuant to this Award of Restricted Stock Units is subject to all of the term s and conditions contained in Appendix A and the Plan .  Before the Company delivers any Shares pursuant to this Restricted Stock Unit Award   Agreement, you must click on the link to each of the documents required for acceptance, including, without limitation, the Restricted Stock Unit Award Agreement and App endix A thereto, the Plan, and the Restricted Stock Unit Award Tax Obligations (collectively, the “Award Documents”) and review each.     PLEASE BE SURE TO READ APPENDIX A , WHICH CONTAINS THE SPECIFIC TERMS AND CONDITIONS OF THIS AWARD .

By cl icking the “ACCEPT” button , you agree to the following: 

You acknowledge and agree that:

(a) you have been able to access and view the Award Documents and understand that all rights and obligations with respect to this Award are set forth in such documents ;

(b) you agree to all terms and conditions contained in the Award Documents ; and

(c) the Award Documents set forth the entire understanding between the Company and you regarding this Award and your right to acquire Shares thereunder .

 

 

 

APPENDIX A

TERMS AND CONDITIONS OF RESTRICTED STOCK UNIT AWARDS

1. Grant The Company hereby grants to the Participant under the Plan an Award for a number of Restricted Stock Units set forth in the Restricted Stock Unit Award Agreement, subject to all of the terms and conditions of the Restricted Stock Unit Award Agreement, including this Appendix A (collectively, the “Award Agreement”), and the Plan.

2. Company’s Obligation to Pay .  Each Restricted Stock Unit represents the right to receive a Share on the date it becomes vested.  Unless and until the Restricted Stock Units will have vested in the manner set forth in Sections 3 and 4, the Participant will have no right to payment of any such Restricted Stock Units.  Prior to actual payment of any vested Restricted Stock Units, such Restricted Stock Units will represent an unsecured obligation of the Company, payable (if at all) only from the general assets of the Company.  Subject to the provisions of Section 5, such vested Restricted Stock Units will be paid in Shares as soon as practicable after vesting, but in each such case within the period ending no later than the fifteenth (15 th ) day of the third (3 rd ) month following the end of the Fiscal Year that includes the vesting date .

3. Vesting Schedule Except as provided in Sections 4 and 5, and subject to Section 6, the Restricted Stock Units awarded by this Award Agreement will vest in the Participant according to the vesting schedule set forth i n the Award Agreement.  In the event any Restricted Stock Units have not vested by the fifteenth (15 th ) anniversary of the Vesting Commencement Date, the then-unvested Restricted Stock Units awarded by this Award Agreement will thereupon be forfeited at no cost to the Company and the Participant will have no further rights thereunder.    

4. Acceleration of Vesting upon Death or Disability .  In the event Participant ceases to be a Director as the result of Participant’s death or Disability prior to the fifteenth (15 th ) anniversary of the Vesting Commencement Date, 100% of the Restricted Stock Units that have not vested as of such date will immediately vest .  For these purposes, “Disability” will mean a total and permanent disability as defined in Section 22(e)(3) of the Code   as determined by the Administrator and in accordance with the Plan .

5. Administrator Discretion .  The Administrator, in its discretion, may accelerate the vesting of the balance, or some lesser portion of the balance, of the unvested Restricted Stock Units at any time.  If so accelerated, such Restricted Stock Units will be considered as having vested as of the date specified by the Administrator.

Notwithstanding anything in the Plan or this Award Agreement to the contrary, if the vesting of the balance, or some lesser portion of the balance, of the Restricted Stock Units is accelerated in connection with Participant’s termination as a Service Provider (provided that such termination is a “separation from service” within the meaning of Section 409A, as determined by the Company ) , other than due to death, and i f (x) Participant is a “specified employee” within the meaning of Section 409A at the time of such termination as a Service Provider and (y) the payment of such accelerated Restricted Stock Units will result in the imposition of additional tax under Section 409A if paid to Participant on or within the six (6) month period following Participant’s termination as a Service Provider, then the payment of such accelerated Restricted Stock Units will not be made until the date six (6) months and one (1) day following the date of Participant’s termination as a Service Provider , unless the Participant dies following his or her termination as a Service Provider, in which case, the Restricted Stock Units will be paid in Shares to the Participant’s estate as soon as practicable following his or her death .     It is the intent of this Award Agreement to comply with the requirements of Section 409A so that none of the Restricted Stock Units provided under this Award Agreement or Shares issuable thereunder will be subject to the additional tax imposed under Section 409A , and any ambiguities herein will be interpreted to so comply.  Each payment payable under this Award Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2).  For purposes of this Award Agreement, “Section 409A” means Section 409A of the Code, and any proposed, temporary or final Treasury Regulations and Internal Revenue Service guidance thereunder , as each may be amended from time to time.

 


 

 

6. Forfeiture upon Termination of Continuous Service I f Participant ceases to be a Director for any reason other than death or Disability , the then-unvested Restricted Stock Units (after taking into any accelerated vesting that may occur as the result of any such termination) awarded by this Award Agreement will thereupon be forfeited at no cost to the Company and the Participant will have no further rights thereunder.

7. Payment after Vesting .  Any Restricted Stock Units that vest in accordance with Sections 3, 4 or 5 will be paid to the Participant (or in the event of the Participant’s death, to his or her estate) in whole Shares, and no fractional Shares shall be issued.  As determined by the Administrator, any fraction of a Share shall be paid in cash based on the F air M arket V alue of a Share.

8. Payments after Death or Disability .  Any distribution or delivery to be made to the Participant under this Agreement will, if the Participant is then deceased or Disabled , be made to the Participant’s legal representatives, heirs, legatees or distributees , as applicable .  Any such transferee must furnish the Company with (a) written notice of his or her status as transferee, and (b) evidence satisfactory to the Company to establish the validity of the transfer and compliance with any laws or regulations pertaining to said transfer.

9. Tax Obligations Participant acknowledges that, regardless of any action taken by the Company, the ultimate liability for any tax and/or social insurance liability obligations and requirements in connection with the Restricted Stock Units, including, without limitation, (1) all federal, state, and local taxes (including the Participant’s Federal Insurance Contributions Act (FICA) obligation) or other payment of tax-related items related to Participant’s participation in the Plan and legally applicable to Participant, (2) the Participant’s and, to the extent required by the Company, the Company’s fringe benefit tax liability, if any, associated with the grant or vesting of the Restricted Stock Units or the issuance or sale of Shares, and (3) any other Company taxes the responsibility for which the Participant has, or has agreed to bear, with respect to the Restricted Stock Units (or the grant or vesting thereof or the issuance or sale of Shares) (collectively, the “Tax Obligations”), is and remains Participant’s responsibility.  Participant further acknowledges that the Company (i) make s no representations or undertakings regarding the treatment of any Tax Obligations in connection with any aspect of the Restricted Stock Units, including, but not limited to, the grant, vesting or settlement of the Restricted Stock Units, the subsequent sale of Shares acquired pursuant to such settlement and the receipt of any dividends or other distributions, and (ii) do es not commit to and is under no obligation to structure the terms of the grant or any aspect of the Restricted Stock Units to reduce or eliminate Participant’s liability for Tax Obligations or achieve any particular tax result.  When Shares are issued as payment for vested Restricted Stock Units, Participant generally will recognize immediate U.S. taxable income if Participant is a U.S. taxpayer.  If Participant is a non-U.S. taxpayer, Participant will be subject to applicable taxes in his or her jurisdiction.

10. Nature of Grant In accepting the award, Participant acknowledges, understands and agrees that:

(a) the Plan is established voluntarily by the Company , it is discretionary in nature and it may be modified, amended, suspended or terminated by the Company at any time, to the extent permitted by the Plan;

(b) the Award of Restricted Stock Units is voluntary and occasional and does not create any contractual or other right to receive future awards of Restricted Stock Units, or benefits in lieu of Restricted Stock Units, even if Restricted Stock Units have been awarded in the past;

(c) Participant is voluntarily participating in the Plan;

(d) the Award of Restricted Stock Units and the Shares subject to the Restricted Stock Units, and the income and value of same, are not intended to replace any compensation;

(e) the Award of Restricted Stock Units and the Shares subject to the Restricted Stock Units, and the income and value of same, are not part of normal or expected compensation for purposes of calculating any severance, resignation, termination, redundancy, dismissal, end-of-service payments, bonuses, long-service awards, pension or retirement or welfare benefits or similar payments;

 


 

(f) the future value of the underlying Shares is unknown, indeterminable and cannot be predicted with certainty; and

(g) unless otherwise provided in the Plan or by the Company in its discretion, the Restricted Stock Units and the benefits evidenced by this Award Agreement do not create any entitlement to have the Restricted Stock Units or any such benefits transferred to, or assumed by, another company nor be exchanged, cashed out or substituted for, in connection with any corporate transaction affecting the Common Stock .

1 1 . Rights as Stockholder .  Neither the Participant nor any person claiming under or through the Participant will have any of the rights or privileges of a stockholder of the Company in respect of any Shares deliverable hereunder unless and until certificates representing such Shares will have been issued (including in book entry), recorded on the records of the Company or its transfer agents or registrars, and, if applicable, delivered to the Participant.

1 2 . No Guarantee of Continued Service .  PARTICIPANT ACKNOWLEDGES AND AGREES THAT THE VESTING OF THE RESTRICTED STOCK UNITS PURSUANT TO THE VESTING SCHEDULE HEREOF IS EARNED ONLY BY CONTINUING AS A NON-EMPLOYEE DIRECTOR OF THE COMPANY, AND NOT THROUGH THE ACT OF BEING APPOINTED AS A DIRECTOR , BEING GRANTED THIS AWARD OF RESTRICTED STOCK UNITS OR ACQUIRING SHARES HEREUNDER.  PARTICIPANT FURTHER ACKNOWLEDGES AND AGREES THAT THIS AWARD AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREUNDER AND THE VESTING SCHEDULE SET FORTH HEREIN DO NOT CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF CONTINUED ENGAGEMENT AS A DIRECTOR FOR THE VESTING PE RIOD, FOR ANY PERIOD, OR AT ALL.  

1 3 . Address for Notices .  Any notice to be given to the Company under the terms of this Agreement will be addressed to the Company at 11500 N. Mopac Expressway, Building A, Austin, Texas 78759, Attn: Stock Administrator, or at such other address as the Company may hereafter designate in writing.

1 4 . Grant is Not Transferable .  Except to the limited extent provided in Section 8, this grant and the rights and privileges conferred hereby will not be transferred, assigned, pledged or hypothecated in any way (whether by operation of law or otherwise) and will not be subject to sale under execution, attachment or similar process.  Upon any attempt to transfer, assign, pledge, hypothecate or otherwise dispose of this grant, or any right or privilege conferred hereby, or upon any attempted sale under any execution, attachment or similar process, this grant and the rights and privileges conferred hereby immediately will become null and void.

1 5 . Binding Agreement .  Subject to the limitation on the transferability of this grant contained herein, this Award Agreement will be binding upon and inure to the benefit of the heirs, legatees, legal representatives, successors and assigns of the parties hereto.

1 6 . Additional Conditions to Issuance of Stock .  If at any time the Company will determine, in its discretion, that the listing, registration or qualification of the Shares upon any securities exchange or under any state or federal law, or the consent or approval of any governmental regulatory authority is necessary or desirable as a condition to the issuance of shares to the Participant (or his or her estate), such issuance will not occur unless and until such listing, registration, qualification, consent or approval will have been effected or obtained free of any conditions not acceptable to the Company.  The Company will make all reasonable efforts to meet the requirements of any such state or federal law or securities exchange and to obtain any such consent or approval of any such governmental authority. 

1 7 . Plan Governs .  This Award Agreement is subject to all terms and provisions of the Plan.  In the event of a conflict between one or more provisions of this Award Agreement and one or more provisions of the Plan, the provisions of the Plan will govern.

 


 

 

1 8 . Administrator Authority .  The Administrator will have the power to interpret the Plan and this Award Agreement and to adopt such rules for the administration, interpretation and application of the Plan as are consistent therewith and to interpret or revoke any such rules (including, but not limited to, the determination of whether or not any Restricted Stock Units have vested).  All actions taken and all interpretations and determinations made by the Administrator in good faith will be final and binding upon Participant, the Company and all other interested persons.  No member of the Board or its Committee administering the Plan will be personally liable for any action, determination or interpretation made in good faith with respect to the Plan or this Award Agreement.

19 . Captions .  Captions provided herein are for convenience only and are not to serve as a basis for interpretation or construction of this Award Agreement.

20 . Agreement Severable .  In the event that any provision in this Award Agreement will be held invalid or unenforceable, such provision will be severable from, and such invalidity or unenforceability will not be construed to have any effect on, the remaining provisions of this Award Agreement.

 


EXHIBIT 10.19

 

NATIONAL INSTRUMENTS CORPORATION

Restricted Stock Unit Award Agreement

(Performance Vesting)

 

Grant Number: «RSU_Number»

National Instruments Corporation (the “Company”) hereby grants you, «First»   «Middle»   «Last»   (the “Participant”), an award of restricted stock units (“Restricted Stock Units”) under the National Instruments Corporation 201 5 Equity   Incentive Plan (the “Plan”).  Subject to the provisions of Appendix A (attached) and of the Plan, the principal features of this Award are as follows:

Date of Grant :         «Option_Date (Month date, year)»

Number of Restricted Stock Units : «RSU_Shares»

Vesting Commencement Date : «Vest_Base_Date (Month date, year)»

Vesting of Restricted Stock Units :   Subject to any accelerated vesting provisions in the Plan, the Restricted Stock Units will vest as follows:

Ten percent (10%) of the Restricted Stock Units will vest on each anniversary of the Vesting Commencement Date, subject to Participant continuing to be an Employee through such dates, and satisfying the Full-Time Employment Requirement for an Eligible Vesting Year.

Restricted Stock Units will not vest during any Eligible Vesting Year if for six months or more during such Eligible Vesting Year (i) Participant is on a Nonstatutory Leave of Absence, and/or (ii) Participant is not a Full-Time Employee ( (i) and (ii), individually and collectively, being referred to as   the “Full-Time Employment Requirement”). 

In the event that no Restricted Stock Units vest during an Eligible Vesting Year for failure to satisfy the Full-Time Employment Requirement (the “Forgone Annual Units”), then the Forgone Annual Units that fail to so vest will be eligible to vest in a subsequent Eligible Vesting Year during which the Full-Time Employment Requirement is satisfied; provided, however, that no more than one Eligible Vesting Year’s worth of Forgone Annual Units will be able to vest in any such subsequent Eligible Vesting Year; provided, further, that any Restricted Stock Units that fail to vest hereunder by the fifteenth (15 th ) anniversary of the Vesting Commencement Date will not be eligible to vest thereafter and will automatically be forfeited at no cost to the Company and the Participant will have no further rights with respect thereto.

In addition to the vesting provided for above, each Eligible Vesting Year beginning with the Vesting Commencement Date, a number of Restricted Stock Units will become vested based upon the Company’s achievement of certain performance goals for the Fiscal Year that ends during an applicable Eligible Vesting Year as follows:

 

Total Number of Restricted Stock Units subject to this Award

x  0.1

 

x

 

Earnings Attainment for applicable Fiscal Year

x

Sales Attainment for applicable Fiscal Year

 


 

In order to be eligible for vesting acceleration pursuant to these performance-based vesting provisions for any Eligible Vesting Year, Participant must be an Employee through the end of such Eligible Vesting Year and must satisfy the Full-Time Employment Requirement for such Eligible Vesting Year. 

For these purposes, an “Eligible Vesting Year” means the period between May 1 through the following April 30 of each year from the Vesting Commencement Date through the fifteenth (15 th ) anniversary of the Vesting Commencement Date.

For these purposes, “Full-Time Employee” means that Participant works in a position of employment with the Company or any Subsidiary of the Company in which Participant is regularly scheduled to work forty (40) or more hours per week or a normal full-time work week pursuant to Applicable Law .

For these purposes, “Nonstatutory Leave of Absence” means any unpaid leave of absence approved by the Company that the Company is not required to provide to Participant pursuant to Applicable Law. 

Unless otherwise defined herein or in Appendix A, capitalized terms herein or in Appendix A will have the defined meanings ascribed to them in the Plan.

IMPORTANT:

The Company’s obligation to deliver Shares pursuant to this Award of Restricted Stock Units is subject to all of the term s and conditions contained in Appendix A and the Plan .  Before the Company delivers any Shares pursuant to this Restricted Stock Unit Award Agreement, you must click on the link to each of the documents required for acceptance, including, without limitation, the Restricted Stock Unit Award Agreement and App endix A thereto, the Plan, and the Restricted Stock Unit Award Tax Obligations (collectively, the “Award Documents”) and review each.     PLEASE BE SURE TO READ APPENDIX A , WHICH CONTAINS THE SPECIFIC TERMS AND CONDITIONS OF THIS AWARD .

 

By cl icking the “ACCEPT” button , you agree to the following: 

 

You acknowledge and agree that:

 

(a)

you have been able to access and view the Award Documents and understand that all rights and obligations with respect to this Award are set forth in such documents;

 

(b)

you agree to all terms and conditions contained in the Award Documents;

 

(c)

the Award Documents set forth the entire understanding between the Company and you regarding this Award and your right to acquire Shares thereunder;

 

(d)

if you are employed in or are o therwise subject to taxation in Norway, Switzerland or the United Kingdom on the date of this Award, you have previously executed an Agreement for the Transfer of Employer’s Share Award Tax Liability to the Employee, and you understand that this Award is subject to the terms of the Agreement for the Transfer of Employer’s Share Award Tax Liability ;  

 

(e)

if you are employed in or are otherwise subject to taxation in Malaysia on the date of this Award, you have previously executed an Agreement (Employee’s Election on Income Tax with respect to Employee Stock Incentive Plan), and you understand that this Award is subject to the terms of the Agreement (Employee’s Election on Income Tax with respect to Employee Stock Incentive Plan); and

 

(f ) you have previously executed an Employee Confidentiality Agreement as consideration for this Award.

 


 

APPENDIX A

TERMS AND CONDITIONS OF RESTRICTED STOCK UNIT AWARD S

1. Grant The Company hereby grants to the Participant under the Plan an Award for a number of Restricted Stock Units set forth in the Restricted Stock Unit Award Agreement, subject to all of the terms and conditions of the Restricted Stock Unit Award Agreement, including this Appendix A (collectively, the “Award Agreement”), and the Plan.

2. Company’s Obligation to Pay Each Restricted Stock Unit represents the right to receive a Share on the date it becomes vested.  Unless and until the Restricted Stock Units will have vested in the manner set forth in Sections 3 and 4, the Participant will have no right to payment of any such Restricted Stock Units.  Prior to actual payment of any vested Restricted Stock Units, such Restricted Stock Units will represent an unsecured obligation of the Company, payable (if at all) only from the general assets of the Company.  Subject to the provisions of Section 5, such vested Restricted Stock Units will be paid in Shares as soon as practicable after vesting, but in each such case within the period ending no later than the fifteenth (15 th ) day of the third (3 rd ) month following the end of the Fiscal Year that includes the vesting date .

 

3. Vesting Schedule Except as provided in Sections 4 and 5, and subject to Section  6, the Restricted Stock Units awarded by this Award Agreement will vest in the Participant according to the vesting schedule set forth in the Award Agreement.  In the event any Restricted Stock Units have not vested by the fifteenth (15 th ) anniversary of the Vesting Commencement Date, the then-unvested Restricted Stock Units awarded by this Award Agreement will thereupon be forfeited at no cost to the Company and the Participant will have no further rights thereunder.

 

4. Acceleration of Vesting upon Death or Disability .  In the event Participant ceases to be an Employee as the result of Participant’s death or Disability prior to the fifteenth (15 th ) anniversary of the Vesting Commencement Date, 100% of the Restricted Stock Units that have not vested as of such date will immediately vest .  For these purposes, “Disability” will have the meaning given to such term in the employment agreement between Participant and the Company ;   provided ,   however , that if Participant has no employment agreement, “Disability” will mean a total and permanent disability as defined in Section 22(e)(3) of the Code   as determined by the Administrator and in accordance with the Plan .

5. Administrator Discretion .  The Administrator, in its discretion, may accelerate the vesting of the balance, or some lesser portion of the balance, of the unvested Restricted Stock Units at any time.  If so accelerated, such Restricted Stock Units will be considered as having vested as of the date specified by the Administrator.

Notwithstanding anything in the Plan or this Award Agreement to the contrary, if the vesting of the balance, or some lesser portion of the balance, of the Restricted Stock Units is accelerated in connection with Participant’s termination as a Service Provider (provided that such termination is a “separation from service” within the meaning of Section 409A, as determined by the Company ) , other than due to death, and i f (x) Participant is a “specified employee” within the meaning of Section 409A at the time of such termination as a Service Provider and (y) the payment of such accelerated Restricted Stock Units will result in the imposition of additional tax under Section 409A if paid to Participant on or within the six (6) month period following Participant’s termination as a Service Provider, then the payment of such accelerated Restricted Stock Units will not be made until the date six (6) months and one (1) day following the date of Participant’s termination as a Service Provider , unless the Participant dies following his or her termination as a Service Provider, in which case, the Restricted Stock Units will be paid in Shares to the Participant’s estate as soon as practicable following his or her death .     It is the intent of this Award Agreement to comply with the requirements of Section 409A so that none of the Restricted Stock Units provided under this Award Agreement or Shares issuable thereunder will be subject to the additional tax imposed under Section 409A , and any ambiguities herein will be interpreted to so comply.     Each payment payable under this Award Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2).   For purposes of this Award Agreement, “Section 409A” means Section 409A of the Code, and any proposed, temporary or final Treasury Regulations and Internal Revenue Service guidance thereunder , as each may be amended from time to time.


 

 

6. Forfeiture upon Termination of Continuous Service If Participant ceases to be an Employee for any reason other than death or Disability, the then-unvested Restricted Stock Units (after taking into any accelerated vesting that may occur as the result of any such termination) awarded by this Award Agreement will thereupon be forfeited at no cost to the Company and the Participant will have no further rights thereunder.

7. Payment after Vesting .  Any Restricted Stock Units that vest in accordance with Sections 3, 4 or 5 will be paid to the Participant (or in the event of the Participant’s death, to his or her estate) in whole Shares, and no fractional Shares shall be issued.  As determined by the Administrator, any fraction of a Share shal l be paid in cash based on the F air M arket V alue of a Share.

8. Payments after Death or Disability .  Any distribution or delivery to be made to the Participant under this Agreement will, if the Participant is then deceased or Disabled , be made to the Participant’s legal representatives, heirs, legatees or distributees , as applicable .  Any such transferee must furnish the Company with (a) written notice of his or her status as transferee, and (b) evidence satisfactory to the Company to establish the validity of the transfer and compliance with any laws or regulations pertaining to said transfer.

9. Tax Obligations .

(a) Responsibility for Taxes .  Participant acknowledges that, regardless of any action taken by the Company or, if different, Participant’s employer (the “Employer”), the ultimate liability for any tax and/or social insurance liability obligations and requirements in connection with the Restricted Stock Units, including, without limitation, ( 1 ) all federal, state, and local taxes (including the Participant’s Federal Insurance Contributions Act (FICA) obligation) that are required to be withheld by the Company or the Employer or other payment of tax-related items related to Participant’s participation in the Plan and legally applicable to Participant, ( 2 ) the Participant’s and, to the extent required by the Company (or Employer), the Company’s (or Employer’s) fringe benefit tax liability, if any, associated with the grant or vesting of the Restricted Stock Units or the issuance or sale of Shares, and ( 3 ) any other Company (or Employer) taxes the responsibility for which the Participant has, or has agreed to bear, with respect to the Restricted Stock Units (or the grant or vesting thereof or the issuance or sale of Shares)   (collectively, the “Tax Obligations”), is and remains Participant’s responsibility and may exceed the amount actually withheld by the Company or the Employer.  Participant further acknowledges that the Company and/or the Employer (i) make no representations or undertakings regarding the treatment of any Tax Obligations in connection with any aspect of the Restricted Stock Units, including, but not limited to, the grant, vesting or settlement of the Restricted Stock Units, the subsequent sale of Shares acquired pursuant to such settlement and the receipt of any dividends or other distributions, and (ii) do not commit to and are under no obligation to structure the terms of the grant or any aspect of the Restricted Stock Units to reduce or eliminate Participant’s liability for Tax Obligations or achieve any particular tax result.  Further, if Participant is subject to Tax Obligations in more than one jurisdiction between the Date of Grant and the date of any relevant taxable or tax withholding event, as applicable, Participant acknowledges that the Company and/or the Employer (or former employer, as applicable) may be required to withhold or account for Tax Obligations in more than one jurisdiction.  If Participant fails to make satisfactory arrangements for the payment of any required Tax Obligations hereunder at the time of the applicable taxable event, Participant acknowledges and agrees that the Company may refuse to issue or deliver the Shares.


 

(b) Tax Withholding . When Shares are issued as payment for vested Restricted Stock Units, Participant generally will recognize immediate U.S. taxable income if Participant is a U.S. taxpayer.  If Participant is a non-U.S. taxpayer, Participant will be subject to applicable taxes in his or her jurisdiction .  Pursuant to such procedures as the Administrator may specify from time to time, the Company and/or Employer shall withhold the minimum amount required to be withheld for the payment of Tax Obligations.  The Administrator, in its sole discretion and pursuant to such procedures as it may specify from time to time, may permit Participant to satisfy such Tax Obligations, in whole or in part (without limitation), if permissible by applicable local law, by (1) paying cash, (2) electing to have the Company withhold otherwise deliverable Shares having a Fair Market Value equal to the amount of such Tax Obligations, (3) withholding the amount of such Tax Obligations from Participant’s wages or other cash compensation paid to Participant by the Company and/or the Employer, ( 4 ) delivering to the Company already vested and owned Shares having a Fair Market Value equal to such Tax Obligations , or (5) selling a sufficient number of such Shares otherwise deliverable to Participant through such means as the Company may determine in its sole discretion (whether through a broker or otherwise) equal to the amount of the Tax Obligations.  To the extent determined appropriate by the Company in its discretion, it will have the right (but not the obligation) to satisfy any Tax Obligations by reducing the number of Shares otherwise deliverable to Participant .  Further, if Participant is subject to tax in more than one jurisdiction between the Date of Grant and a date of any relevant taxable or tax withholding event, as applicable, Participant acknowledges and agrees that the Company and/or the Employer (and/or former employer, as applicable) may be required to withhold or account for tax in more than one jurisdiction. If Participant fails to make satisfactory arrangements for the payment of such Tax Obligations hereunder at the time any applicable Restricted Stock Units otherwise are scheduled to vest pursuant to Sections 3 or 4, Participant will permanently forfeit such Restricted Stock Units and any right to receive Shares thereunder and the Restricted Stock Units will be returned to the Company at no cost to the Company.  Participant acknowledges and agrees that the Company may refuse to deliver the Shares if such Tax Obligations are not delivered at the time they are due. Without limitation on any of the foregoing rights or remedies of Company, if Participant fails to make satisfactory arrangements for the payment of such Tax Obligations hereunder at the time any applicable Restricted Stock Units otherwise are scheduled to vest pursuant to Sections 3 or 4, Company has the right, at Company’s sole discretion, to sell a sufficient number of such Shares otherwise deliverable to Participant through such means as the Company may determine in its sole discretion (whether through a broker or otherwise) equal to the amount of the Tax Obligations, or to withhold otherwise deliverable Shares having a Fair Market Value equal to the amount of such Tax Obligations.

10. Participant Bears Risks of Selling Otherwise Distributable Shares to Cover Tax Obligations . If any Tax Obligations are to be satisfied by selling a sufficient number of Shares otherwise deliverable to Participant, Participant hereby acknowledges and agrees that such sales will be subject to market pricing and trade execution risks, including trading delays and timing, which could result in the sale of a greater amount of Shares than expected and at a lower price than expected, including in comparison to other market sales within same trading day or adjacent trading days; and that Participant bears all risks associated with such sales, including all market pricing and trade execution risks. Participant hereby agrees to save and hold the Company, its officers, directors and employees, harmless from any and all liabilities arising from or as a consequence of any such sales. Participant agrees that Participant will be responsible for any commissions and related costs with respect to such sales. 

11. Nature of Grant In accepting the award, Participant acknowledges, understands and agrees that:

(a) the Plan is established voluntarily by the Company , it is discretionary in nature and it may be modified, amended, suspended or terminated by the Company at any time, to the extent permitted by the Plan;

(b) the Award of Restricted Stock Units is voluntary and occasional and does not create any contractual or other right to receive future awards of Restricted Stock Units, or benefits in lieu of Restricted Stock Units, even if Restricted Stock Units have been awarded in the past;

(c) all decisions with respect to future Restricted Stock Units or other awards, if any, will be at the sole discretion of the Company;


 

(d) Participant is voluntarily participating in the Plan;

(e) the Award of Restricted Stock Units and the Shares subject to the Restricted Stock Units, and the income and value of same, are not intended to replace any pension rights or compensation;

(f) the Award of Restricted Stock Units and the Shares subject to the Restricted Stock Units, and the income and value of same, are not part of normal or expected compensation for purposes of calculating any severance, resignation, termination, redundancy, dismissal, end-of-service payments, bonuses, long-service awards, pension or retirement or welfare benefits or similar payments;

(g) the future value of the underlying Shares is unknown, indeterminable and cannot be predicted with certainty;

(h) unless otherwise provided in the Plan or by the Company in its discretion, the Restricted Stock Units and the benefits evidenced by this Award Agreement do not create any entitlement to have the Restricted Stock Units or any such benefits transferred to, or assumed by, another company nor be exchanged, cashed out or substituted for, in connection with any corporate transaction affecting the Common Stock;

(i) unless otherwise agreed with the Company, the Restricted Stock Units and the Shares subject to the Restricted Stock Units, and the income and value of same, are not granted as consideration for, or in connection with, the service Participant may provide as a director of a Subsidiary or affiliate of the Company; and

(j) the following provisions apply only if Participant is providing services outside the United States:

(i) no claim or entitlement to compensation or damages shall arise from forfeiture of the Restricted Stock Units resulting from the termination of Participant as a Service Provider (for any reason whatsoever whether or not later found to be invalid or in breach of employment laws in the jurisdiction where Participant is employed or the terms of Participant’s employment or service agreement, if any), and in consideration of the award of the Restricted Stock Units to which Participant is otherwise not entitled, Participant irrevocably agrees never to institute any claim against the Company, the Employer or any other Parent or Subsidiary, waives his or her ability, if any, to bring any such claim, and releases the Company, the Employer or any other Parent or Subsidiary from any such claim; if, notwithstanding the foregoing, any such claim is allowed by a court of competent jurisdiction, then, by participating in the Plan, Participant shall be deemed irrevocably to have agreed not to pursue such claim and agrees to execute any and all documents necessary to request dismissal or withdrawal of such claim; and

(ii) Participant acknowledges and agrees that neither the Company , the Employer nor any Parent or Subsidiary shall be liable for any foreign exchange rate fluctuation between Participant’s local currency and the United States Dollar that may affect the value of the Restricted Stock Units or of any amounts due to Participant pursuant to the settlement of the Restricted Stock Units or the subsequent sale of any Shares acquired upon settlement.

12. Data Privacy .  Participant hereby explicitly and unambiguously consents to the collection, use and transfer, in electronic or other form, of Participant’s personal data as described in this Award Agreement and any other grant materials (“Data”) by and among, as applicable, the Employer, the Company and any Parent or Subsidiary for the purpose of implementing, administering and managing Participant’s participation in the Plan.

Participant understands that the Company and the Employer may hold certain personal information about Participant, including, but not limited to, Participant’s name ; home address ; telephone number s; date of birth ; age; social insurance number , social security number, taxpayer identification number and/ or other identification number ; tax related information; salary ; salary history; nationality ; job title ; any shares of stock or directorships held in the Company ; details of all Restricted Stock Units or any other entitlement to shares of stock awarded, canceled, exercised, vested, unvested or outstanding in Participant’s favor ; and benefit enrollment forms; for the   purpose of implementing, administering and managing the Plan. 


 

Participant understands that Data will be transferred to such stock plan service provider as may be selected by the Company from time to time, which is assisting the Company with the implementation, administration and management of the Plan.  Participant understands that the recipients of Data may be located in the United States or elsewhere, and that the recipients’ country ( e.g. , the United States) may have different data privacy laws and protections than Participant’s country.  Participant understands that if he or she resides outside the United States, he or she may request a list with the names and addresses of any potential recipients of Data by contacting his or her local human resources representative .  Participant authorizes the Company and any possible recipients which may assist the Company (presently or in the future) with implementing, administering and managing the Plan to receive, possess, use, process, retain and transfer Data, in electronic or other form, for the purpose of implementing, administering and managing his or her participation in the Plan.  Participant understands that Data will be held as long as is necessary to implement, administer and manage Participant’s participation in the Plan.  Participant understands if he or she resides outside the United States, he or she may, at any time, view Data, request additional information about the storage and processing of Data, require any necessary amendments to Data or refuse or withdraw the consents herein, in any case without cost, by contacting in writing his or her local human resources representative.  Further, Participant understands that he or she is providing the consents herein on a purely voluntary basis.  If Participant does not consent, or if Participant later seeks to revoke his or her consent, his or her employment status or service and career with the Employer will not be adversely affected thereby ; the only consequence of refusing or withdrawing Participant’s consent is that the Company would not be able to grant Participant Restricted Stock Units or other equity awards or administer or maintain such awards.  Therefore, Participant understands that refusing or withdrawing his or her consent may affect Participant’s ability to participate in the Plan.  For more information on the consequences of Participant’s refusal to consent or withdrawal of consent, Participant understands that he or she may contact his or her local human resources representative.  Nothing in this Section 12 shall be understood as limiting or restricting any other rights of Company, including without limitation under any other consents given by Participant, to receive, possess, use,  process, retain and transfer any Data. 

1 3 . Rights as Stockholder .  Neither the Participant nor any person claiming under or through the Participant will have any of the rights or privileges of a stockholder of the Company in respect of any Shares deliverable hereunder unless and until certificates representing such Shares will have been issued (including in book entry), recorded on the records of the Company or its transfer agents or registrars, and, if applicable, delivered to the Participant.

1 4 . N o Guarantee of Continued Service .  PARTICIPANT ACKNOWLEDGES AND AGREES THAT THE VESTING OF THE RESTRICTED STOCK UNITS PURSUANT TO THE VESTING SCHEDULE HEREOF IS EARNED ONLY BY CONTINUING AS A SERVICE PROVIDER AT THE WILL OF THE COMPANY OR THE EMPLOYER, AND NOT THROUGH THE ACT OF BEING HIRED, BEING GRANTED THIS AWARD OF RESTRICTED STOCK UNITS OR ACQUIRING SHARES HEREUNDER.  PARTICIPANT FURTHER ACKNOWLEDGES AND AGREES THAT THIS AWARD AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREUNDER AND THE VESTING SCHEDULE SET FORTH HEREIN DO NOT CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF CONTINUED ENGAGEMENT AS A SERVICE PROVIDER FOR THE VESTING PERIOD, FOR ANY PERIOD, OR AT ALL, AND WILL NOT INTERFERE IN ANY WAY WITH PARTICIPANT’S RIGHT OR THE RIGHT OF THE COMPANY OR THE EMPLOYER TO TERMINATE PARTICIPANT’S RELATIONSHIP AS A SERVICE PROVIDER AT ANY TIME, WITH OR WITHOUT CAUSE.

1 5 . Address for Notices .  Any notice to be given to the Company under the terms of this Agreement will be addressed to the Company at 11500 N. Mopac Expressway, Building A, Austin, Texas 78759, Attn: Stock Administrator, or at such other address as the Company may hereafter designate in writing.


 

 

1 6 . Grant is Not Transferable .  Except to the limited extent provided in Section 8, this grant and the rights and privileges conferred hereby will not be transferred, assigned, pledged or hypothecated in any way (whether by operation of law or otherwise) and will not be subject to sale under execution, attachment or similar process.  Upon any attempt to transfer, assign, pledge, hypothecate or otherwise dispose of this grant, or any right or privilege conferred hereby, or upon any attempted sale under any execution, attachment or similar process, this grant and the rights and privileges conferred hereby immediately will become null and void.

1 7 . Binding Agreement .  Subject to the limitation on the transferability of this grant contained herein, this Award Agreement will be binding upon and inure to the benefit of the heirs, legatees, legal representatives, successors and assigns of the parties hereto.

1 8 . Additional Conditions to Issuance of Stock .  If at any time the Company will determine, in its discretion, that the listing, registration or qualification of the Shares upon any securities exchange or under any state or federal law, or the consent or approval of any governmental regulatory authority is necessary or desirable as a condition to the issuance of shares to the Participant (or his or her estate), such issuance will not occur unless and until such listing, registration, qualification, consent or approval will have been effected or obtained free of any conditions not acceptable to the Company.  The Company will make all reasonable efforts to meet the requirements of any such state or federal law or securities exchange and to obtain any such consent or approval of any such governmental authority. 

1 9 . Plan Governs .  This Award Agreement is subject to all terms and provisions of the Plan.  In the event of a conflict between one or more provisions of this Award Agreement and one or more provisions of the Plan, the provisions of the Plan will govern.

20 . Administrator Authority .  The Administrator will have the power to interpret the Plan and this Award Agreement and to adopt such rules for the administration, interpretation and application of the Plan as are consistent therewith and to interpret or revoke any such rules (including, but not limited to, the determination of whether or not any Restricted Stock Units have vested).  All actions taken and all interpretations and determinations made by the Administrator in good faith will be final and binding upon Participant, the Company and all other interested persons.  No member of the Board or its Committee administering the Plan will be personally liable for any action, determination or interpretation made in good faith with respect to the Plan or this Award Agreement.

21. C ountry Appendix .   The Restricted Stock Units are subject to any special terms and conditions for Participant’s country set forth in the Country Appendix, if any, to this Award Agreement. If Participant relocates to a country included in the Appendix, the special terms and conditions for that country will apply to Participant to the extent the Company determines that applying such terms and conditions is necessary or advisable for legal or administrative reasons.

22 . Captions .  Captions provided herein are for convenience only and are not to serve as a basis for interpretation or construction of this Award Agreement.

23 . Agreement Severable .  In the event that any provision in this Award Agreement will be held invalid or unenforceable, such provision will be severable from, and such invalidity or unenforceability will not be construed to have any effect on, the remaining provisions of this Award Agreement.


EXHIBIT 10.20

 

NATIONAL INSTRUMENTS CORPORATION

Restricted Stock Unit Award Agreement

(Current Employee)

Grant Number: «RSU_Number»

National Instruments Corporation (the “Company”) hereby grants you, «First»   «Middle»   «Last»   (the “Participant”), an a ward of restricted stock units (“Restricted Stock Units”) under the National Instruments Corporation 2015 Equity Incentive Plan (the “Plan”).  Subject to the provisions of Appendix A (attached) and of the Plan, the principal features of this Award are as follows:

Date of Grant :      __________

Number of Restricted Stock Units : «RSU_Shares»

Vesting Commencement Date : [ May 1, 20 1 _]

Vesting of Restricted Stock Units :   Subject to any accelerated vesting provisions in the Plan, the Restricted Stock Units will vest as follows:

Twenty percent (20%) of the Restricted Stock Units will vest on each anniversary of the Vesting Commencement Date, subject to Participant continuing to be an Employee through such dates, and satisfying the Full-Time Employment Requirement for an Eligible Vesting Year.

Restricted Stock Units will not vest during any Eligible Vesting Year if for six months or more during such Eligible Vesting Year (i) Participant is on a Nonstatutory Leave of Absence, and/or (ii) Participant is not a Full-Time Employee ((i) and (ii), individually and collectively, being referred to as the “Full-Time Employment Requirement”). 

In the event that no Restricted Stock Units vest during an Eligible Vesting Year for failure to satisfy the Full-Time Employment Requirement (the “Forgone Annual Units”), then the Forgone Annual Units that fail to so vest will be eligible to vest in a subsequent Eligible Vesting Year during which the Full-Time Employment Requirement is satisfied; provided, however, that no more than one Eligible Vesting Year’s worth of Forgone Annual Units will be able to vest in any such subsequent Eligible Vesting Year; provided, further, that any Restricted Stock Units that fail to vest hereunder by the fifteenth (15 th ) anniversary of the Vesting Commencement Date will not be eligible to vest thereafter and will automatically be forfeited at no cost to the Company and the Participant will have no further rights with respect thereto.

For these purposes, an “Eligible Vesting Year” means the period between May 1 through the following April 30 of each year from the Vesting Commencement Date through the fifteenth (15 th ) anniversary of the Vesting Commencement Date.

For these purposes, “Full-Time Employee” means that Participant works in a position of employment with the Company or any Subsidiary of the Company in which Participant is regularly scheduled to work forty (40) or more hours per week or a normal full-time work week pursuant to Applicable Law.

For these purposes, “Nonstatutory Leave of Absence” means any unpaid leave of absence approved by the Company that the Company is not required to provide to Participant pursuant to Applicable Law. 

Unless otherwise defined herein or in Appendix A, capitalized terms herein or in Appendix A will have the defined meanings ascribed to them in the Plan.


 

IMPORTANT:

The Company’s obligation to deliver Shares pursuant to this Award of Restricted Stock Units is subject to all of the term s and conditions contained in Appendix A and the Plan .  Before the Company delivers any Shares pursuant to this Restricted Stock Unit Award   Agreement , you must click on the link to   each of the documents required for acceptance, including, without limitation, the Restricted Stock Unit Award Agreement and Appendix A thereto, the Plan, and the Restricted Stock Unit Award Tax Obligations (collectively, the “Award Documents”) and review each .     PLEASE BE SURE TO READ APPENDIX A , WHICH CONTAINS THE SPECIFIC TERMS AND CONDITIONS OF THIS AWARD .

By cl icking the “ACCEPT” button , you agree to the following: 

You acknowledge and agree that:

(a) you have been able to access and view the Award Documents and understand that all rights and obligations with respect to this Award are set forth in such documents ;

(b) you agree to all terms and conditions contained in the Award Documents ;

(c ) the   Award Documents   set forth the entire understanding between the Company and you regarding this Award and your right to acquire Shares thereunder ;  

(d) if you are employed in or are otherwise subject to taxation in Norway, Switzerland or the United Kingdom on the date of this Award ,   you have previously executed an Agreement for the Transfer of Employer’s Share Award Tax Liability to the Employee, and you understand that this Award is subject to the terms of the Agreement for the Transfer of Employer’s Share Award Tax Liability ;  

(e) if you are employed in or are otherwise subject to taxation in Malaysia on the date of this Award, you have previously executed an Agreement (Employee s Election on Income Tax with respect to Employee Stock Incentive Plan), and you understand that this Award is subject to the terms of the Agreement (Employee s Election on Income Tax with respect to Employee Stock Incentive Plan);   and

( f ) you have previously executed an Employee Confidentiality Agreement as consideration for this Award.

 

 


 

APPENDIX A

TERMS AND COND ITIONS OF RESTRICTED STOCK UNIT AWARDS

1. Grant .  The Company hereby grants to the Participant under the Plan an Award for a number of Restricted Stock Units set forth in the Restricted Stock Unit Award Agreement , subject to all of the terms and conditions of the Restricted Stock Unit Award Agreement, including this Appendix A (collectively, the “Award Agreement”), and the Plan.

2. Company’s Obligation to Pay .  Each Restricted Stock Unit represents the right to receive a Share on the date it becomes vested.  Unless and until the Restricted Stock Units will have vested in the manner set forth in Sections 3 and 4, the Participant will have no right to payment of any such Restricted Stock Units.  Prior to actual payment of any vested Restricted Stock Units, such Restricted Stock Units will represent an unsecured obligation of the Company, payable (if at all) only from the general assets of the Company.  Subject to the provisions of Section 5, such vested Restricted Stock Units will be paid in Shares as soon as practicable after vesting, but in each such case within the period ending no later than the fifteenth (15 th ) day of the third (3 rd ) month following the end of the Fiscal Year that includes the vesting date .

3. Vesting Schedule Except as provided in Sections 4 and 5, and subject to Section  6, the Restricted Stock Units awarded by this Award Agreement will vest in the Participant according to the vesting schedule set forth i n the Award Agreement.  In the event any Restricted Stock Units have not vested by the fifteenth (15 th ) anniversary of the Vesting Commencement Date, the then-unvested Restricted Stock Units awarded by this Award Agreement will thereupon be forfeited at no cost to the Company and the Participant will have no further rights thereunder.

4. Acceleration of Vesting upon Death or Disability .  In the event Participant ceases to be an Employee as the result of Participant’s death or Disability prior to the fifteenth (15 th ) anniversary of the Vesting Commencement Date, 100% of the Restricted Stock Units that have not vested as of such date will immediately vest .  For these purposes, “Disability” will have the meaning given to such term in the employment agreement between Participant and the Company ;   provided ,   however , that if Participant has no employment agreement, “Disability” will mean a total and permanent disability as defined in Section 22(e)(3) of the Code   as determined by the Administrator and in accordance with the Plan .

5. Administrator Discretion .  The Administrator, in its discretion, may accelerate the vesting of the balance, or some lesser portion of the balance, of the unvested Restricted Stock Units at any time.  If so accelerated, such Restricted Stock Units will be considered as having vested as of the date specified by the Administrator.

Notwithstanding anything in the Plan or this Award Agreement to the contrary, if the vesting of the balance, or some lesser portion of the balance, of the Restricted Stock Units is accelerated in connection with Participant’s termination as a Service Provider (provided that such termination is a “separation from service” within the meaning of Section 409A, as determined by the Company ) , other than due to death, and i f (x) Participant is a “specified employee” within the meaning of Section 409A at the time of such termination as a Service Provider and (y) the payment of such accelerated Restricted Stock Units will result in the imposition of additional tax under Section 409A if paid to Participant on or within the six (6) month period following Participant’s termination as a Service Provider, then the payment of such accelerated Restricted Stock Units will not be made until the date six (6) months and one (1) day following the date of Participant’s termination as a Service Provider , unless the Participant dies following his or her termination as a Service Provider, in which case, the Restricted Stock Units will be paid in Shares to the Participant’s estate as soon as practicable following his or her death .     It is the intent of this Award Agreement to comply with the requirements of Section 409A so that none of the Restricted Stock Units provided under this Award Agreement or Shares issuable thereunder will be subject to the additional tax imposed under Section 409A , and any ambiguities herein will be interpreted to so comply.     Each payment payable under this Award Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2).   For purposes of this Award Agreement, “Section 409A” means Section 409A of the Code, and any proposed, temporary or final Treasury Regulations and Internal Revenue Service guidance thereunder , as each may be amended from time to time.


 

6. Forfeiture upon Termination of Continuous Service I f Participant ceases to be an Employee for any reason other than death or Disability , the then-unvested Restricted Stock Units (after taking into any accelerated vesting that may occur as the result of any such termination) awarded by this Award Agreement will thereupon be forfeited at no cost to the Company and the Participant will have no further rights thereunder.

7. Payment after Vesting .  Any Restricted Stock Units that vest in accordance with Sections 3, 4 or 5 will be paid to the Participant (or in the event of the Participant’s death, to his or her estate) in whole Shares, and no fractional Shares shall be issued.  As determined by the Administrator, any fraction of a Share shall be paid in cash based on the F air M arket V alue of a Share.

8. Payments after Death or Disability .  Any distribution or delivery to be made to the Participant under this Agreement will, if the Participant is then deceased or Disabled , be made to the Participant’s legal representatives, heirs, legatees or distributees , as applicable .  Any such transferee must furnish the Company with (a) written notice of his or her status as transferee, and (b) evidence satisfactory to the Company to establish the validity of the transfer and compliance with any laws or regulations pertaining to said transfer.

9. Tax Obligations

(a) Responsibility for Taxes .  Participant acknowledges that, regardless of any action taken by the Company or, if different, Participant’s employer (the “Employer”), the ultimate liability for any tax and/or social insurance liability obligations and requirements in connection with the Restricted Stock Units, including, without limitation, ( 1 ) all federal, state, and local taxes (including the Participant’s Federal Insurance Contributions Act (FICA) obligation) that are required to be withheld by the Company or the Employer or other payment of tax-related items related to Participant’s participation in the Plan and legally applicable to Participant, ( 2 ) the Participant’s and, to the extent required by the Company (or Employer), the Company’s (or Employer’s) fringe benefit tax liability, if any, associated with the grant or vesting of the Restricted Stock Units or the issuance or sale of Shares, and ( 3 ) any other Company (or Employer) taxes the responsibility for which the Participant has, or has agreed to bear, with respect to the Restricted Stock Units (or the grant or vesting thereof or the issuance or sale of Shares)   (collectively, the “Tax Obligations”), is and remains Participant’s responsibility and may exceed the amount actually withheld by the Company or the Employer.  Participant further acknowledges that the Company and/or the Employer (i) make no representations or undertakings regarding the treatment of any Tax Obligations in connection with any aspect of the Restricted Stock Units, including, but not limited to, the grant, vesting or settlement of the Restricted Stock Units, the subsequent sale of Shares acquired pursuant to such settlement and the receipt of any dividends or other distributions, and (ii) do not commit to and are under no obligation to structure the terms of the grant or any aspect of the Restricted Stock Units to reduce or eliminate Participant’s liability for Tax Obligations or achieve any particular tax result.  Further, if Participant is subject to Tax Obligations in more than one jurisdiction between the Date of Grant and the date of any relevant taxable or tax withholding event, as applicable, Participant acknowledges that the Company and/or the Employer (or former employer, as applicable) may be required to withhold or account for Tax Obligations in more than one jurisdiction.  If Participant fails to make satisfactory arrangements for the payment of any required Tax Obligations hereunder at the time of the applicable taxable event, Participant acknowledges and agrees that the Company may refuse to issue or deliver the Shares.


 

(b) Tax Withholding . When Shares are issued as payment for vested Restricted Stock Units, Participant generally will recognize immediate U.S. taxable income if Participant is a U.S. taxpayer.  If Participant is a non-U.S. taxpayer, Participant will be subject to applicable taxes in his or her jurisdiction .  Pursuant to such procedures as the Administrator may specify from time to time, the Company and/or Employer shall withhold the minimum amount required to be withheld for the payment of Tax Obligations.  The Administrator, in its sole discretion and pursuant to such procedures as it may specify from time to time, may permit Participant to satisfy such Tax Obligations, in whole or in part (without limitation), if permissible by applicable local law, by ( 1 ) paying cash, ( 2 ) electing to have the Company withhold otherwise deliverable Shares having a Fair Market Value equal to the amount of such Tax Obligations, ( 3 ) withholding the amount of such Tax Obligations from Participant’s wages or other cash compensation paid to Participant by the C ompany and/or the Employer, ( 4 ) delivering to the Company already vested and owned Shares having a Fair Market Value equal to such Tax Obligations , or ( 5 ) selling a sufficient number of such Shares otherwise deliverable to Participant through such means as the Company may determine in its sole discretion (whether through a broker or otherwise) equal to the amount of the Tax Obligations.  To the extent determined appropriate by the Company in its discretion, it will have the right (but not the obligation) to satisfy any Tax Obligations by reducing the number of Shares otherwise deliverable to Participant Further, if Participant is subject to tax in more than one jurisdiction between the Date of Grant and a date of any relevant taxable or tax withholding event, as applicable, Participant acknowledges and agrees that the Company and/or the Employer (and/or former employer, as applicable) may be required to withhold or account for tax in more than one jurisdiction. If Participant fails to make satisfactory arrangements for the payment of such Tax Obligations hereunder at the time any applicable Restricted Stock Units otherwise are scheduled to vest pursuant to Sections 3 or 4, Participant will permanently forfeit such Restricted Stock Units and any right to receive Shares thereunder and the Restricted Stock Units will be returned to the Company at no cost to the Company.  Participant acknowledges and agrees that the Company may refuse to deliver the Shares if such Tax Obligations are not delivered at the time they are due. Without limitation on any of the foregoing rights or remedies of Company, if Participant fails to make satisfactory arrangements for the payment of such Tax Obligations hereunder at the time any applicable Restricted Stock Units otherwise are scheduled to vest pursuant to Sections 3 or 4, Company has the right, at Company’s sole discretion, to sell a sufficient number of such Shares otherwise deliverable to Participant through such means as the Company may determine in its sole discretion (whether through a broker or otherwise) equal to the amount of the Tax Obligations, or to withhold otherwise deliverable Shares having a Fair Market Value equal to the amount of such Tax Obligations.

10. Participant Bears Risks of Selling Otherwise Distributable Shares to Cover Tax Obligations . If any Tax Obligations are to be satisfied by selling a sufficient number of Shares otherwise deliverable to Participant, Participant hereby acknowledges and agrees that such sales will be subject to market pricing and trade execution risks, including trading delays and timing, which could result in the sale of a greater amount of Shares than expected and at a lower price than expected, including in comparison to other market sales within same trading day or adjacent trading days; and that Participant bears all risks associated with such sales, including all market pricing and trade execution risks. Participant hereby agrees to save and hold the Company, its officers, directors and employees, harmless from any and all liabilities arising from or as a consequence of any such sales. Participant agrees that Participant will be responsible for any commissions and related costs with respect to such sales. 

11. Nature of Grant In accepting the award, Participant acknowledges, understands and agrees that:

(a) the Plan is established voluntarily by the Company , it is discretionary in nature and it may be modified, amended, suspended or terminated by the Company at any time, to the extent permitted by the Plan;

(b) the Award of Restricted Stock Units is voluntary and occasional and does not create any contractual or other right to receive future awards of Restricted Stock Units, or benefits in lieu of Restricted Stock Units, even if Restricted Stock Units have been awarded in the past;

(c) all decisions with respect to future Restricted Stock Units or other awards, if any, will be at the sole discretion of the Company;

(d) Participant is voluntarily participating in the Plan;


 

(e) the Award of Restricted Stock Units and the Shares subject to the Restricted Stock Units, and the income and value of same, are not intended to replace any pension rights or compensation;

(f) the Award of Restricted Stock Units and the Shares subject to the Restricted Stock Units, and the income and value of same, are not part of normal or expected compensation for purposes of calculating any severance, resignation, termination, redundancy, dismissal, end-of-service payments, bonuses, long-service awards, pension or retirement or welfare benefits or similar payments;

(g) the future value of the underlying Shares is unknown, indeterminable and cannot be predicted with certainty;

(h) unless otherwise provided in the Plan or by the Company in its discretion, the Restricted Stock Units and the benefits evidenced by this Award Agreement do not create any entitlement to have the Restricted Stock Units or any such benefits transferred to, or assumed by, another company nor be exchanged, cashed out or substituted for, in connection with any corporate transaction affecting the Common Stock;

(i) unless otherwise agreed with the Company, the Restricted Stock Units and the Shares subject to the Restricted Stock Units, and the income and value of same, are not granted as consideration for, or in connection with, the service Participant may provide as a director of a Subsidiary or affiliate of the Company; and

(j) the following provisions apply only if Participant is providing services outside the United States:

(i) no claim or entitlement to compensation or damages shall arise from forfeiture of the Restricted Stock Units resulting from the termination of Participant as a Service Provider (for any reason whatsoever whether or not later found to be invalid or in breach of employment laws in the jurisdiction where Participant is employed or the terms of Participant’s employment or service agreement, if any), and in consideration of the award of the Restricted Stock Units to which Participant is otherwise not entitled, Participant irrevocably agrees never to institute any claim against the Company, the Employer or any other Parent or Subsidiary, waives his or her ability, if any, to bring any such claim, and releases the Company, the Employer or any other Parent or Subsidiary from any such claim; if, notwithstanding the foregoing, any such claim is allowed by a court of competent jurisdiction, then, by participating in the Plan, Participant shall be deemed irrevocably to have agreed not to pursue such claim and agrees to execute any and all documents necessary to request dismissal or withdrawal of such claim; and

(ii) Participant acknowledges and agrees that neither the Company , the Employer nor any Parent or Subsidiary shall be liable for any foreign exchange rate fluctuation between Participant’s local currency and the United States Dollar that may affect the value of the Restricted Stock Units or of any amounts due to Participant pursuant to the settlement of the Restricted Stock Units or the subsequent sale of any Shares acquired upon settlement.

12. Data Privacy .  Participant hereby explicitly and unambiguously consents to the collection, use and transfer, in electronic or other form, of Participant’s personal data as described in this Award Agreement and any other grant materials (“Data”) by and among, as applicable, the Employer, the Company and any Parent or Subsidiary for the purpose of implementing, administering and managing Participant’s participation in the Plan.

Participant understands that the Company and the Employer may hold certain personal information about Participant, including, but not limited to, Participant’s name ; home address ; telephone number s; date of birth ; age; social insurance number , social security number, taxpayer identification number and/ or other identification number ;   tax related information; salary ; salary history; nationality ; job title ; any shares of stock or directorships held in the Company ; details of all Restricted Stock Units or any other entitlement to shares of stock awarded, canceled, exercised, vested, unvested or outstanding in Participant’s favor ; and benefit enrollment forms; for the   purpose of implementing, administering and managing the Plan. 


 

Participant understands that Data will be transferred to such stock plan service provider as may be selected by the Company from time to time, which is assisting the Company with the implementation, administration and management of the Plan.  Participant understands that the recipients of Data may be located in the United States or elsewhere, and that the recipients’ country ( e.g. , the United States) may have different data privacy laws and protections than Participant’s country.  Participant understands that if he or she resides outside the United States, he or she may request a list with the names and addresses of any potential recipients of Data by contacting his or her local human resources representative .  Participant authorizes the Company and any possible recipients which may assist the Company (presently or in the future) with implementing, administering and managing the Plan to receive, possess, use, process, retain and transfer Data, in electronic or other form, for the purpose of implementing, administering and managing his or her participation in the Plan.  Participant understands that Data will be held as long as is necessary to implement, administer and manage Participant’s participation in the Plan.  Participant understands if he or she resides outside the United States, he or she may, at any time, view Data, request additional information about the storage and processing of Data, require any necessary amendments to Data   or refuse or withdraw the consents herein, in any case without cost, by contacting in writing his or her local human resources representative.  Further, Participant understands that he or she is providing the consents herein on a purely voluntary basis.  If Participant does not consent, or if Participant later seeks to revoke his or her consent, his or her employment status or service and career with the Employer will not be adversely affected thereby ; the only consequence of refusing or withdrawing Participant’s consent is that the Company would not be able to grant Participant Restricted Stock Units or other equity awards or administer or maintain such awards.  Therefore, Participant understands that refusing or withdrawing his or her consent may affect Participant’s ability to participate in the Plan.  For more information on the consequences of Participant’s refusal to consent or withdrawal of consent, Participant understands that he or she may contact his or her local human resources representative.     Nothing in this Section 12 shall be understood as limiting or restricting any other rights of Company, including without limitation under any other consents given by Participant, to receive, possess, use,  process, retain and transfer any Data. 

13. Rights as Stockholder .  Neither the Participant nor any person claiming under or through the Participant will have any of the rights or privileges of a stockholder of the Company in respect of any Shares deliverable hereunder unless and until certificates representing such Shares will have been issued (including in book entry), recorded on the records of the Company or its transfer agents or registrars, and, if applicable, delivered to the Participant.

14. No Guarantee of Continued Service .  PARTICIPANT ACKNOWLEDGES AND AGREES THAT THE VESTING OF THE RESTRICTED STOCK UNITS PURSUANT TO THE VESTING SCHEDULE HEREOF IS EARNED ONLY BY CONTINUING AS A SERVICE PROVIDER AT THE WILL OF THE COMPANY OR THE EMPLOYER, AND NOT THROUGH THE ACT OF BEING HIRED, BEING GRANTED THIS AWARD OF RESTRICTED STOCK UNITS OR ACQUIRING SHARES HEREUNDER.  PARTICIPANT FURTHER ACKNOWLEDGES AND AGREES THAT THIS AWARD AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREUNDER AND THE VESTING SCHEDULE SET FORTH HEREIN DO NOT CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF CONTINUED ENGAGEMENT AS A SERVICE PROVIDER FOR THE VESTING PERIOD, FOR ANY PERIOD, OR AT ALL, AND WILL NOT INTERFERE IN ANY WAY WITH PARTICIPANT’S RIGHT OR THE RIGHT OF THE COMPANY OR THE EMPLOYER TO TERMINATE PARTICIPANT’S RELATIONSHIP AS A SERVICE PROVIDER AT ANY TIME, WITH OR WITHOUT CAUSE.

15. Address for Notices .  Any notice to be given to the Company under the terms of this Agreement will be addressed to the Company at 11500 N. Mopac Expressway, Building A, Austin, Texas 78759, Attn: Stock Administrator, or at such other address as the Company may hereafter designate in writing.


 

16. Grant is Not Transferable .  Except to the limited extent provided in Section 8, this grant and the rights and privileges conferred hereby will not be transferred, assigned, pledged or hypothecated in any way (whether by operation of law or otherwise) and will not be subject to sale under execution, attachment or similar process.  Upon any attempt to transfer, assign, pledge, hypothecate or otherwise dispose of this grant, or any right or privilege conferred hereby, or upon any attempted sale under any execution, attachment or similar process, this grant and the rights and privileges conferred hereby immediately will become null and void.

17. Binding Agreement .  Subject to the limitation on the transferability of this grant contained herein, this Award Agreement will be binding upon and inure to the benefit of the heirs, legatees, legal representatives, successors and assigns of the parties hereto.

18. Additional Conditions to Issuance of Stock .  If at any time the Company will determine, in its discretion, that the listing, registration or qualification of the Shares upon any securities exchange or under any state or federal law, or the consent or approval of any governmental regulatory authority is necessary or desirable as a condition to the issuance of shares to the Participant (or his or her estate), such issuance will not occur unless and until such listing, registration, qualification, consent or approval will have been effected or obtained free of any conditions not acceptable to the Company.  The Company will make all reasonable efforts to meet the requirements of any such state or federal law or securities exchange and to obtain any such consent or approval of any such governmental authority. 

19. Plan Governs .  This Award Agreement is subject to all terms and provisions of the Plan.  In the event of a conflict between one or more provisions of this Award Agreement and one or more provisions of the Plan, the provisions of the Plan will govern.

20. Administrator Authority .  The Administrator will have the power to interpret the Plan and this Award Agreement and to adopt such rules for the administration, interpretation and application of the Plan as are consistent therewith and to interpret or revoke any such rules (including, but not limited to, the determination of whether or not any Restricted Stock Units have vested).  All actions taken and all interpretations and determinations made by the Administrator in good faith will be final and binding upon Participant, the Company and all other interested persons.  No member of the Board or its Committee administering the Plan will be personally liable for any action, determination or interpretation made in good faith with respect to the Plan or this Award Agreement.

21. Country Appendix . The R estricted Stock Units are subject to any special terms and conditions for Participant’s country set forth in the Country Appendix , if any, to this Award Agreement . If Participant relocates to a country included in the Appendix, the special terms and conditions for that country will apply to Participant to the extent the Company determines that applying such terms and conditions is necessary or advisable for legal or administrative reasons.

22. Captions .  Captions provided herein are for convenience only and are not to serve as a basis for interpretation or construction of this Award Agreement.

23. Agreement Severable .  In the event that any provision in this Award Agreement will be held invalid or unenforceable, such provision will be severable from, and such invalidity or unenforceability will not be construed to have any effect on, the remaining provisions of this Award Agreement.


EXHIBIT 10.21

NATIONAL INSTRUMENTS CORPORATION

Restricted Stock Unit Award Agreement

(Newly Hired Employee)

Grant Number: «RSU_Number»

National Instruments Corporation (the “Company”) hereby grants you, «First»   «Middle»   «Last»   (the “Participant”), an award of restricted stock units (“Restricted Stock Units”) under the National Instruments Corporation 201 5   Equity Incentive Plan (the “Plan”).  Subject to the provisions of Appendix A (attached) and of the Plan, the principal features of this Award are as follows:

Date of Grant :       « Option_Date (Month date, year)»

Number of Restricted Stock Units : «RSU_Shares»

Vesting Commencement Date : «Vest_Base_Date (Month date, year)»

Vesting of Restricted Stock Units : Subject to any accelerated vesting provisions in the Plan, the Restricted Stock Units will vest as follows:

Sixty percent (60%) of the Restricted Stock Units will vest on the third anniversary of the Vesting Commencement Date and twenty percent (20%) of the Restricted Stock Units will vest on each anniversary of the Vesting Commencement Date thereafter, subject to Participant continuing to be an Employee through such dates, and satisfying the Full-Time Employment Requirement for an Eligible Vesting Year.

Restricted Stock Units will not vest during any Eligible Vesting Year if for six months or more during such Eligible Vesting Year (i) Participant is on a Nonstatutory Leave of Absence, and/or (ii) Participant is not a Full-Time Employee ((i) and (ii), individually and collectively, being referred to as the “Full-Time Employment Requirement”). 

In the event that Participant does not satisfy the Full-Time Employment Requirement for an Eligible Vesting Year, the applicable vesting date(s) pursuant to the foregoing paragraph will be extended an additional year for each Eligible Vesting Year for which such requirement is not satisfied; provided, however, that any Restricted Stock Units that fail to vest hereunder by the fifteenth (15 th ) anniversary of the Vesting Commencement Date will not be eligible to vest thereafter and will automatically be forfeited at no cost to the Company and the Participant will have no further rights with respect thereto.

For these purposes, an “Eligible Vesting Year” means the period between May 1 through the following April 30 of each year from the Vesting Commencement Date through the fifteenth (15 th ) anniversary of the Vesting Commencement Date.

For these purposes, “Full-Time Employee” means that Participant works in a position of employment with the Company or any Subsidiary of the Company in which Participant is regularly scheduled to work forty (40) or more hours per week or a normal full-time work week pursuant to Applicable Law .

For these purposes, “Nonstatutory Leave of Absence” means any unpaid leave of absence approved by the Company that the Company is not required to provide to Participant pursuant to Applicable Law. 

Unless otherwise defined herein or in Appendix A, capitalized terms herein or in Appendix A will have the defined meanings ascribed to them in the Plan.


 

IMPORTANT:

The Company’s obligation to deliver Shares pursuant to this Award of Restricted Stock Units is subject to all of the term s and conditions contained in Appendix A and the Plan .  Before the Company delivers any Shares pursuant to this Restricted Stock Unit Award Agreement, you must click on the link to each of the documents required for acceptance, including, without limitation, the Restricted Stock Unit Award Agreement and App endix A thereto, the Plan, and the Restricted Stock Unit Award Tax Obligations (collectively, the “Award Documents”) and review each.     PLEASE BE SURE TO READ APPENDIX A , WHICH CONTAINS THE SPECIFIC TERMS AND CONDITIONS OF THIS AWARD .

By cl icking the “ACCEPT” button , you agree to the following: 

You acknowledge and agree that:

(a) you have been able to access and view the Award Documents and understand that all rights and obligations with respect to this Award are set forth in such documents ;

(b) you agree to all terms and conditions contained in the Award Documents ;

(c) the Award Documents set forth the entire understanding between the Company and you regarding this Award and your right to acquire Shares thereunder;

(d) if you are employed in or are otherwise subject to taxation in Norway, Switzerland or the United Kingdom on the date of this Award, you have previously executed an Agreement for the Transfer of Employer’s Share Award Tax Liability to the Employee, and you understand that this Award is subject to the terms of the Agreement for the Transfer of Employer’s Share Award Tax Liability ;  

(e) if you are employed in or are otherwise subject to taxation in Malaysia on the date of this Award, you have previously executed an Agreement (Employee’s Election on Income Tax with respect to Employee Stock Incentive Plan), and you understand that this Award is subject to the terms of the Agreement (Employee’s Election on Income Tax with respect to Employee Stock Incentive Plan) ; and

( f ) you have previously executed an Employee Confidentiality Agreement as consideration for this Award .

 


 

APPENDIX A

TERMS AND CONDITION S OF RESTRICTED STOCK UNIT AWARDS

1. Grant The Company hereby grants to the Participant under the Plan an Award for a number of Restricted Stock Units set forth in the Restricted Stock Unit Award Agreement, subject to all of the terms and conditions of the Restricted Stock Unit Award Agreement, including this Appendix A (collectively, the “Award Agreement”), and the Plan.

2. Company’s Obligation to Pay .  Each Restricted Stock Unit represents the right to receive a Share on the date it becomes vested.  Unless and until the Restricted Stock Units will have vested in the manner set forth in Sections 3 and 4, the Participant will have no right to payment of any such Restricted Stock Units.  Prior to actual payment of any vested Restricted Stock Units, such Restricted Stock Units will represent an unsecured obligation of the Company, payable (if at all) only from the general assets of the Company.  Subject to the provisions of Section 5, such vested Restricted Stock Units will be paid in Shares as soon as practicable after vesting, but in each such case within the period ending no later than the fifteenth (15 th ) day of the third (3 rd ) month following the end of the Fiscal Year that includes the vesting date .

3. Vesting Schedule Except as provided in Sections 4 and 5, and subject to Section 6, the Restricted Stock Units awarded by this Award Agreement will vest in the Participant according to the vesting schedule set forth i n the Award Agreement.  In the event any Restricted Stock Units have not vested by the fifteenth (15 th ) anniversary of the Vesting Commencement Date, the then-unvested Restricted Stock Units awarded by this Award Agreement will thereupon be forfeited at no cost to the Company and the Participant will have no further rights thereunder.    

4. Acceleration of Vesting upon Death or Disability .  In the event Participant ceases to be an Employee as the result of Participant’s death or Disability prior to the fifteenth (15 th ) anniversary of the Vesting Commencement Date, 100% of the Restricted Stock Units that have not vested as of such date will immediately vest .  For these purposes, “Disability” will have the meaning given to such term in the employment agreement between Participant and the Company ;   provided ,   however , that if Participant has no employment agreement, “Disability” will mean a total and permanent disability as defined in Section 22(e)(3) of the Code   as determined by the Administrator and in accordance with the Plan .

5. Administrator Discretion .  The Administrator, in its discretion, may accelerate the vesting of the balance, or some lesser portion of the balance, of the unvested Restricted Stock Units at any time.  If so accelerated, such Restricted Stock Units will be considered as having vested as of the date specified by the Administrator.

Notwithstanding anything in the Plan or this Award Agreement to the contrary, if the vesting of the balance, or some lesser portion of the balance, of the Restricted Stock Units is accelerated in connection with Participant’s termination as a Service Provider (provided that such termination is a “separation from service” within the meaning of Section 409A, as determined by the Company ) , other than due to death, and i f (x) Participant is a “specified employee” within the meaning of Section 409A at the time of such termination as a Service Provider and (y) the payment of such accelerated Restricted Stock Units will result in the imposition of additional tax under Section 409A if paid to Participant on or within the six (6) month period following Participant’s termination as a Service Provider, then the payment of such accelerated Restricted Stock Units will not be made until the date six (6) months and one (1) day following the date of Participant’s termination as a Service Provider , unless the Participant dies following his or her termination as a Service Provider, in which case, the Restricted Stock Units will be paid in Shares to the Participant’s estate as soon as practicable following his or her death .     It is the intent of this Award Agreement to comply with the requirements of Section 409A so that none of the Restricted Stock Units provided under this Award Agreement or Shares issuable thereunder will be subject to the additional tax imposed under Section 409A , and any ambiguities herein will be interpreted to so comply.   Each payment payable under this Award Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2).     For purposes of this Award Agreement, “Section 409A” means Section 409A of the Code, and any proposed, temporary or final Treasury Regulations and Internal Revenue Service guidance thereunder , as each may be amended from time to time.

 


 

6. Forfeiture upon Termination of Continuous Service I f Participant ceases to be an Employee for any reason other than death or Disability , the then-unvested Restricted Stock Units (after taking into any accelerated vesting that may occur as the result of any such termination) awarded by this Award Agreement will thereupon be forfeited at no cost to the Company and the Participant will have no further rights thereunder.

7. Payment after Vesting .  Any Restricted Stock Units that vest in accordance with Sections 3, 4 or 5 will be paid to the Participant (or in the event of the Participant’s death, to his or her estate) in whole Shares, and no fractional Shares shall be issued.  As determined by the Administrator, any fraction of a Share shall be paid in cash based on the F air M arket V alue of a Share.

8. Payments after Death or Disability .  Any distribution or delivery to be made to the Participant under this Agreement will, if the Participant is then deceased or Disabled , be made to the Participant’s legal representatives, heirs, legatees or distributees , as applicable .  Any such transferee must furnish the Company with (a) written notice of his or her status as transferee, and (b) evidence satisfactory to the Company to establish the validity of the transfer and compliance with any laws or regulations pertaining to said transfer.

9. Tax Obligations

(a) Responsibility for Taxes .  Participant acknowledges that, regardless of any action taken by the Company or, if different, Participant’s employer (the “Employer”), the ultimate liability for any tax and/or social insurance liability obligations and requirements in connection with the Restricted Stock Units, including, without limitation, ( 1 ) all federal, state, and local taxes (including the Participant’s Federal Insurance Contributions Act (FICA) obligation) that are required to be withheld by the Company or the Employer or other payment of tax-related items related to Participant’s participation in the Plan and legally applicable to Participant, ( 2 ) the Participant’s and, to the extent required by the Company (or Employer), the Company’s (or Employer’s) fringe benefit tax liability, if any, associated with the grant or vesting of the Restricted Stock Units or the issuance or sale of Shares, and ( 3 ) any other Company (or Employer) taxes the responsibility for which the Participant has, or has agreed to bear, with respect to the Restricted Stock Units (or the grant or vesting thereof or the issuance or sale of Shares)   (collectively, the “Tax Obligations”), is and remains Participant’s responsibility and may exceed the amount actually withheld by the Company or the Employer.  Participant further acknowledges that the Company and/or the Employer (i) make no representations or undertakings regarding the treatment of any Tax Obligations in connection with any aspect of the Restricted Stock Units, including, but not limited to, the grant, vesting or settlement of the Restricted Stock Units, the subsequent sale of Shares acquired pursuant to such settlement and the receipt of any dividends or other distributions, and (ii) do not commit to and are under no obligation to structure the terms of the grant or any aspect of the Restricted Stock Units to reduce or eliminate Participant’s liability for Tax Obligations or achieve any particular tax result.  Further, if Participant is subject to Tax Obligations in more than one jurisdiction between the Date of Grant and the date of any relevant taxable or tax withholding event, as applicable, Participant acknowledges that the Company and/or the Employer (or former employer, as applicable) may be required to withhold or account for Tax Obligations in more than one jurisdiction.  If Participant fails to make satisfactory arrangements for the payment of any required Tax Obligations hereunder at the time of the applicable taxable event, Participant acknowledges and agrees that the Company may refuse to issue or deliver the Shares.


 

(b) Tax Withholding . When Shares are issued as payment for vested Restricted Stock Units, Participant generally will recognize immediate U.S. taxable income if Participant is a U.S. taxpayer.  If Participant is a non-U.S. taxpayer, Participant will be subject to applicable taxes in his or her jurisdiction .  Pursuant to such procedures as the Administrator may specify from time to time, the Company and/or Employer shall withhold the minimum amount required to be withheld for the payment of Tax Obligations.  The Administrator, in its sole discretion and pursuant to such procedures as it may specify from time to time, may permit Participant to satisfy such Tax Obligations, in whole or in part (without limitation), if permissible by applicable local law, by ( 1 ) paying cash, ( 2 ) electing to have the Company withhold otherwise deliverable Shares having a Fair Market Value equal to the amount of such Tax Obligations, ( 3 ) withholding the amount of such Tax Obligations from Participant’s wages or other cash compensation paid to Participant by the Company and/or the Employer, ( 4 ) delivering to the Company already vested and owned Shares having a Fair Market Value equal to such Tax Obligations , or ( 5 ) selling a sufficient number of such Shares otherwise deliverable to Participant through such means as the Company may determine in its sole discretion (whether through a broker or otherwise) equal to the amount of the Tax Obligations.  To the extent determined appropriate by the Company in its discretion, it will have the right (but not the obligation) to satisfy any Tax Obligations by reducing the number of Shares otherwise deliverable to Participant .  Further, if Participant is subject to tax in more than one jurisdiction between the Date of Grant and a date of any relevant taxable or tax withholding event, as applicable, Participant acknowledges and agrees that the Company and/or the Employer (and/or former employer, as applicable) may be required to withhold or account for tax in more than one jurisdiction. If Participant fails to make satisfactory arrangements for the payment of such Tax Obligations hereunder at the time any applicable Restricted Stock Units otherwise are scheduled to vest pursuant to Sections 3 or 4, Participant will permanently forfeit such Restricted Stock Units and any right to receive Shares thereunder and the Restricted Stock Units will be returned to the Company at no cost to the Company.  Participant acknowledges and agrees that the Company may refuse to deliver the Shares if such Tax Obligations are not delivered at the time they are due. Without limitation on any of the foregoing rights or remedies of Company, if Participant fails to make satisfactory arrangements for the payment of such Tax Obligations hereunder at the time any applicable Restricted Stock Units otherwise are scheduled to vest pursuant to Sections 3 or 4, Company has the right, at Company’s sole discretion, to sell a sufficient number of such Shares otherwise deliverable to Participant through such means as the Company may determine in its sole discretion (whether through a broker or otherwise) equal to the amount of the Tax Obligations, or to withhold otherwise deliverable Shares having a Fair Market Value equal to the amount of such Tax Obligations.

10. Participant Bears Risks of Selling Otherwise Distributable Shares to Cover Tax Obligations . If any Tax Obligations are to be satisfied by selling a sufficient number of Shares otherwise deliverable to Participant, Participant hereby acknowledges and agrees that such sales will be subject to market pricing and trade execution risks, including trading delays and timing, which could result in the sale of a greater amount of Shares than expected and at a lower price than expected, including in comparison to other market sales within same trading day or adjacent trading days; and that Participant bears all risks associated with such sales, including all market pricing and trade execution risks. Participant hereby agrees to save and hold the Company, its officers, directors and employees, harmless from any and all liabilities arising from or as a consequence of any such sales. Participant agrees that Participant will be responsible for any commissions and related costs with respect to such sales. 

11. Nature of Grant In accepting the award, Participant acknowledges, understands and agrees that:

(a) the Plan is established voluntarily by the Company , it is discretionary in nature and it may be modified, amended, suspended or terminated by the Company at any time, to the extent permitted by the Plan;

(b) the Award of Restricted Stock Units is voluntary and occasional and does not create any contractual or other right to receive future awards of Restricted Stock Units, or benefits in lieu of Restricted Stock Units, even if Restricted Stock Units have been awarded in the past;

(c) all decisions with respect to future Restricted Stock Units or other awards, if any, will be at the sole discretion of the Company;

(d) Participant is voluntarily participating in the Plan;

(e) the Award of Restricted Stock Units and the Shares subject to the Restricted Stock Units, and the income and value of same, are not intended to replace any pension rights or compensation;


 

(f) the Award of Restricted Stock Units and the Shares subject to the Restricted Stock Units, and the income and value of same, are not part of normal or expected compensation for purposes of calculating any severance, resignation, termination, redundancy, dismissal, end-of-service payments, bonuses, long-service awards, pension or retirement or welfare benefits or similar payments;

(g) the future value of the underlying Shares is unknown, indeterminable and cannot be predicted with certainty;

(h) unless otherwise provided in the Plan or by the Company in its discretion, the Restricted Stock Units and the benefits evidenced by this Award Agreement do not create any entitlement to have the Restricted Stock Units or any such benefits transferred to, or assumed by, another company nor be exchanged, cashed out or substituted for, in connection with any corporate transaction affecting the Common Stock;

(i) unless otherwise agreed with the Company, the Restricted Stock Units and the Shares subject to the Restricted Stock Units, and the income and value of same, are not granted as consideration for, or in connection with, the service Participant may provide as a director of a Subsidiary or affiliate of the Company; and

(j) the following provisions apply only if Participant is providing services outside the United States:

(i) no claim or entitlement to compensation or damages shall arise from forfeiture of the Restricted Stock Units resulting from the termination of Participant as a Service Provider (for any reason whatsoever whether or not later found to be invalid or in breach of employment laws in the jurisdiction where Participant is employed or the terms of Participant’s employment or service agreement, if any), and in consideration of the award of the Restricted Stock Units to which Participant is otherwise not entitled, Participant irrevocably agrees never to institute any claim against the Company, the Employer or any other Parent or Subsidiary, waives his or her ability, if any, to bring any such claim, and releases the Company, the Employer or any other Parent or Subsidiary from any such claim; if, notwithstanding the foregoing, any such claim is allowed by a court of competent jurisdiction, then, by participating in the Plan, Participant shall be deemed irrevocably to have agreed not to pursue such claim and agrees to execute any and all documents necessary to request dismissal or withdrawal of such claim; and

(ii) Participant acknowledges and agrees that neither the Company , the Employer nor any Parent or Subsidiary shall be liable for any foreign exchange rate fluctuation between Participant’s local currency and the United States Dollar that may affect the value of the Restricted Stock Units or of any amounts due to Participant pursuant to the settlement of the Restricted Stock Units or the subsequent sale of any Shares acquired upon settlement.

12. Data Privacy .  Participant hereby explicitly and unambiguously consents to the collection, use and transfer, in electronic or other form, of Participant’s personal data as described in this Award Agreement and any other grant materials (“Data”) by and among, as applicable, the Employer, the Company and any Parent or Subsidiary for the purpose of implementing, administering and managing Participant’s participation in the Plan.

Participant understands that the Company and the Employer may hold certain personal information about Participant, including, but not limited to, Participant’s name ; home address ; telephone number s; date of birth ; age; social insurance number , social security number, taxpayer identification number and/ or other identification number ; tax related information; salary ; salary history; nationality ; job title ; any shares of stock or directorships held in the Company ; details of all Restricted Stock Units or any other entitlement to shares of stock awarded, canceled, exercised, vested, unvested or outstanding in Participant’s favor ; and benefit enrollment forms; for the   purpose of implementing, administering and managing the Plan. 


 

 

Participant understands that Data will be transferred to such stock plan service provider as may be selected by the Company from time to time, which is assisting the Company with the implementation, administration and management of the Plan.  Participant understands that the recipients of Data may be located in the United States or elsewhere, and that the recipients’ country ( e.g. , the United States) may have different data privacy laws and protections than Participant’s country.  Participant understands that if he or she resides outside the United States, he or she may request a list with the names and addresses of any potential recipients of Data by contacting his or her local human resources representative .  Participant authorizes the Company and any possible recipients which may assist the Company (presently or in the future) with implementing, administering and managing the Plan to receive, possess, use, process, retain and transfer Data, in electronic or other form, for the purpose of implementing, administering and managing his or her participation in the Plan.  Participant understands that Data will be held as long as is necessary to implement, administer and manage Participant’s participation in the Plan.  Participant understands if he or she resides outside the United States, he or she may, at any time, view Data, request additional information about the storage and processing of Data, require any necessary amendments to Data or refuse or withdraw the consents herein, in any case without cost, by contacting in writing his or her local human resources representative.  Further, Participant understands that he or she is providing the consents herein on a purely voluntary basis.  If Participant does not consent, or if Participant later seeks to revoke his or her consent, his or her employment status or service and career with the Employer will not be adversely affected thereby ; the only consequence of refusing or withdrawing Participant’s consent is that the Company would not be able to grant Participant Restricted Stock Units or other equity awards or administer or maintain such awards.  Therefore, Participant understands that refusing or withdrawing his or her consent may affect Participant’s ability to participate in the Plan.  For more information on the consequences of Participant’s refusal to consent or withdrawal of consent, Participant understands that he or she may contact his or her local human resources representative.  Nothing in this Section 12 shall be understood as limiting or restricting any other rights of Company, including without limitation under any other consents given by Participant, to receive, possess, use,  process, retain and transfer any Data. 

1 3 . Rights as Stockholder .  Neither the Participant nor any person claiming under or through the Participant will have any of the rights or privileges of a stockholder of the Company in respect of any Shares deliverable hereunder unless and until certificates representing such Shares will have been issued (including in book entry), recorded on the records of the Company or its transfer agents or registrars, and, if applicable, delivered to the Participant.

14. No Guarantee of Continued Service .  PARTICIPANT ACKNOWLEDGES AND AGREES THAT THE VESTING OF THE RESTRICTED STOCK UNITS PURSUANT TO THE VESTING SCHEDULE HEREOF IS EARNED ONLY BY CONTINUING AS A SERVICE PROVIDER AT THE WILL OF THE COMPANY OR THE EMPLOYER, AND NOT THROUGH THE ACT OF BEING HIRED, BEING GRANTED THIS AWARD OF RESTRICTED STOCK UNITS OR ACQUIRING SHARES HEREUNDER.  PARTICIPANT FURTHER ACKNOWLEDGES AND AGREES THAT THIS AWARD AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREUNDER AND THE VESTING SCHEDULE SET FORTH HEREIN DO NOT CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF CONTINUED ENGAGEMENT AS A SERVICE PROVIDER FOR THE VESTING PERIOD, FOR ANY PERIOD, OR AT ALL, AND WILL NOT INTERFERE IN ANY WAY WITH PARTICIPANT’S RIGHT OR THE RIGHT OF THE COMPANY OR THE EMPLOYER TO TERMINATE PARTICIPANT’S RELATIONSHIP AS A SERVICE PROVIDER AT ANY TIME, WITH OR WITHOUT CAUSE.

1 5 . Address for Notices .  Any notice to be given to the Company under the terms of this Agreement will be addressed to the Company at 11500 N. Mopac Expressway, Building A, Austin, Texas 78759, Attn: Stock Administrator, or at such other address as the Company may hereafter designate in writing.


 

1 6 . Grant is Not Transferable .  Except to the limited extent provided in Section 8, this grant and the rights and privileges conferred hereby will not be transferred, assigned, pledged or hypothecated in any way (whether by operation of law or otherwise) and will not be subject to sale under execution, attachment or similar process.  Upon any attempt to transfer, assign, pledge, hypothecate or otherwise dispose of this grant, or any right or privilege conferred hereby, or upon any attempted sale under any execution, attachment or similar process, this grant and the rights and privileges conferred hereby immediately will become null and void.

1 7 . Binding Agreement .  Subject to the limitation on the transferability of this grant contained herein, this Award Agreement will be binding upon and inure to the benefit of the heirs, legatees, legal representatives, successors and assigns of the parties hereto.

1 8 . Additional Conditions to Issuance of Stock .  If at any time the Company will determine, in its discretion, that the listing, registration or qualification of the Shares upon any securities exchange or under any state or federal law, or the consent or approval of any governmental regulatory authority is necessary or desirable as a condition to the issuance of shares to the Participant (or his or her estate), such issuance will not occur unless and until such listing, registration, qualification, consent or approval will have been effected or obtained free of any conditions not acceptable to the Company.  The Company will make all reasonable efforts to meet the requirements of any such state or federal law or securities exchange and to obtain any such consent or approval of any such governmental authority. 

1 9 . Plan Governs .  This Award Agreement is subject to all terms and provisions of the Plan.  In the event of a conflict between one or more provisions of this Award Agreement and one or more provisions of the Plan, the provisions of the Plan will govern.

20 . Administrator Authority .  The Administrator will have the power to interpret the Plan and this Award Agreement and to adopt such rules for the administration, interpretation and application of the Plan as are consistent therewith and to interpret or revoke any such rules (including, but not limited to, the determination of whether or not any Restricted Stock Units have vested).  All actions taken and all interpretations and determinations made by the Administrator in good faith will be final and binding upon Participant, the Company and all other interested persons.  No member of the Board or its Committee administering the Plan will be personally liable for any action, determination or interpretation made in good faith with respect to the Plan or this Award Agreement.

21. Country Appendix . The Restricted Stock Units are subject to any special terms and conditions for Participant’s country set forth in the Country Appendix, if any, to this Award Agreement. If Participant relocates to a country included in the Appendix, the special terms and conditions for that country will apply to Participant to the extent the Company determines that applying such terms and conditions is necessary or advisable for legal or administrative reasons.

22 . Captions .  Captions provided herein are for convenience only and are not to serve as a basis for interpretation or construction of this Award Agreement.

23 . Agreement Severable .  In the event that any provision in this Award Agreement will be held invalid or unenforceable, such provision will be severable from, and such invalidity or unenforceability will not be construed to have any effect on, the remaining provisions of this Award Agreement.

 


EXHIBIT 10.22

NATIONAL INSTRUMENTS CORPORATION

Restricted Stock Unit Award Agreement

(Performance Vesting – Threshold Performance Goal )

 

Grant Number: «RSU_Number»

National Instruments Corporation (the “Company”) hereby grants you, «First»   «Middle»   «Last»   (the “Participant”), an award of restricted stock units (“Restricted Stock Units”) under the National Instruments Corporation 201 5   Equity Incentive Plan (the “Plan”).  Subject to the provisions of Appendix A (attached) and of the Plan, the principal features of this Award are as follows:

Date of Grant :       «Option_Date (Month date, year)»

Number of Restricted Stock Units : «RSU_Shares»

Vesting Commencement Date : «Vest_Base_Date (Month date, year)»

Vesting of Restricted Stock Units :    

Threshold Performance Goal .  If during the Performance Period beginning ______ and ending ________, the Company’s (a) Operating Income, minus Excluded Items, divided by (b) the Company’s Net Sales, is equal to or greater than ____________ percent (___%) (the “Profit Goal”), the Participant will be eligible to vest in the full number of Restricted Stock Units subject to this Award Agreement pursuant to the terms and conditions of the Vesting Schedule below.  If the Company fails to achieve the Profit Goal, all Restricted Stock Units subject to this Award Agreement will be forfeited at no cost to the Company effective at the end of the Performance Period and the Participant will have no further rights to the Restricted Stock units subject to this Award Agreement.

 

Vesting Schedule .     Subject to any accelerated vesting provisions in the Plan, and to the achievement of the Profit Goal, the Restricted Stock Units will vest as follows:

Ten percent (10%) of the Restricted Stock Units will vest on each anniversary of the Vesting Commencement Date, subject to Participant continuing to be an Employee through such dates, and satisfying the Full-Time Employment Requirement for an Eligible Vesting Year.

Restricted Stock Units will not vest during any Eligible Vesting Year if for six months or more during such Eligible Vesting Year (i) Participant is on a Nonstatutory Leave of Absence, and/or (ii) Participa nt is not a Full-Time Employee ( (i) and (ii), individually and collectively, being referred to as   the “Full-Time Employment Requirement”). 

In the event that no Restricted Stock Units vest during an Eligible Vesting Year for failure to satisfy the Full-Time Employment Requirement (the “Forgone Annual Units”), then the Forgone Annual Units that fail to so vest will be eligible to vest in a subsequent Eligible Vesting Year during which the Full-Time Employment Requirement is satisfied; provided, however, that no more than one Eligible Vesting Year’s worth of Forgone Annual Units will be able to vest in any such subsequent Eligible Vesting Year; provided, further, that any Restricted Stock Units that fail to vest hereunder by the fifteenth (15 th ) anniversary of the Vesting Commencement Date will not be eligible to vest thereafter and will automatically be forfeited at no cost to the Company and the Participant will have no further rights with respect thereto.

In addition to the vesting provided for above, each Eligible Vesting Year beginning with the Vesting Commencement Date, a number of Restricted Stock Units will become vested based upon the Company’s achievement of certain performance goals for the Fiscal Year that ends during an applicable Eligible Vesting Year as follows:


 

 

Total Number of Restricted Stock Units subject to this Award

x  0.1

 

x

 

Earnings Attainment for applicable Fiscal Year

x

Sales Attainment for applicable Fiscal Year

 

In order to be eligible for vesting acceleration pursuant to these performance-based vesting provisions for any Eligible Vesting Year, Participant must be an Employee through the end of such Eligible Vesting Year and must satisfy the Full-Time Employment Requirement for such Eligible Vesting Year. 

For these purposes, an “Eligible Vesting Year” means the period between May 1 through the following April 30 of each year from the Vesting Commencement Date through the fifteenth (15 th ) anniversary of the Vesting Commencement Date.

For these purposes, “Full-Time Employee” means that Participant works in a position of employment with the Company or any Subsidiary of the Company in which Participant is regularly scheduled to work forty (40) or more hours per week or a normal full-time work week pursuant to Applicable Law .

For these purposes, “Nonstatutory Leave of Absence” means any unpaid leave of absence approved by the Company that the Company is not required to provide to Participant pursuant to Applicable Law. 

Unless otherwise defined herein or in Appendix A, capitalized terms herein or in Appendix A will have the defined meanings ascribed to them in the Plan.

IMPORTANT:

The Company’s obligation to deliver Shares pursuant to this Award of Restricted Stock Units is subject to all of the term s and conditions contained in Appendix A and the Plan .  Before the Company delivers any Shares pursuant to this Restricted Stock Unit Award Agreement, you must click on the link to each of the documents required for acceptance, including, without limitation, the Restricted Stock Unit Award Agreement and Appendix A thereto, the Plan, and the Restricted Stock Unit Award Tax Obligations (collectively, the “Award Documents”) and review each.     PLEASE BE SURE TO READ APPENDIX A , WHICH CONTAINS THE SPECIFIC TERMS AND CONDITIONS OF THIS AWARD .

By cl icking the “ACCEPT” button , you agree to the following: 

You acknowledge and agree that:

(a) you have been able to access and view the Award Documents and understand that all rights and obligations with respect to this Award are set forth in such documents ;

(b) you agree to all terms and conditions contained in the Award Documents ;

(c) the Award Documents set forth the entire understanding between the Company and you regarding this Award and your right to acquire Shares thereunder;

(d) if you are employed in or are otherwise subject to taxation in Norway, Switzerland or the United Kingdom on the date of this Award, you have previously executed an Agreement for the Transfer of Employer’s Share Award Tax Liability to the Employee, and you understand that this Award is subject to the terms of the Agreement for the Transfer of Employer’s Share Award Tax Liability ;  

(e)  if you are employed in or are otherwise subject to taxation in Malaysia on the date of this Award, you have previously executed an Agreement (Employee’s Election on Income Tax with respect to Employee Stock Incentive Plan), and you understand that this Award is subject to the terms of the Agreement (Employee’s Election on Income Tax with respect to Employee Stock Incentive Plan); and

( f ) you have previously executed an Employee Confidentiality Agreement as consideration for this Award.

 


 

APPENDIX A

TERMS AND CONDITIONS OF RESTRICTED STOCK UNIT AWARD S

1. Grant The Company hereby grants to the Participant under the Plan an Award for a number of Restricted Stock Units set forth in the Restricted Stock Unit Award Agreement, subject to all of the terms and conditions of the Restricted Stock Unit Award Agreement, including this Appendix A (collectively, the “Award Agreement”), and the Plan.

2. Company’s Obligation to Pay Each Restricted Stock Unit represents the right to receive a Share on the date it becomes vested.  Unless and until the Restricted Stock Units will have vested in the manner set forth in Sections 3 and 4, the Participant will have no right to payment of any such Restricted Stock Units.  Prior to actual payment of any vested Restricted Stock Units, such Restricted Stock Units will represent an unsecured obligation of the Company, payable (if at all) only from the general assets of the Company.  Subject to the provisions of Section 5, such vested Restricted Stock Units will be paid in Shares as soon as practicable after vesting, but in each such case within the period ending no later than the fifteenth (15 th ) day of the third (3 rd ) month following the end of the Fiscal Year that includes the vesting date .

3. Vesting Schedule Except as provided in Sections 4 and 5, and subject to Section  6, the Restricted Stock Units awarded by this Award Agreement will vest in the Participant according to the vesting schedule set forth in the Award Agreement.  In the event any Restricted Stock Units have not vested by the fifteenth (15 th ) anniversary of the Vesting Commencement Date, the then-unvested Restricted Stock Units awarded by this Award Agreement will thereupon be forfeited at no cost to the Company and the Participant will have no further rights thereunder.

4. Acceleration of Vesting upon Death or Disability .  In the event Participant ceases to be an Employee as the result of Participant’s death or Disability prior to the fifteenth (15 th ) anniversary of the Vesting Commencement Date, 100% of the Restricted Stock Units that have not vested as of such date will immediately vest .  For these purposes, “Disability” will have the meaning given to such term in the employment agreement between Participant and the Company ;   provided ,   however , that if Participant has no employment agreement, “Disability” will mean a total and permanent disability as defined in Section 22(e)(3) of the Code   as determined by the Administrator and in accordance with the Plan .

5. Administrator Discretion .  The Administrator, in its discretion, may accelerate the vesting of the balance, or some lesser portion of the balance, of the unvested Restricted Stock Units at any time.  If so accelerated, such Restricted Stock Units will be considered as having vested as of the date specified by the Administrator.

Notwithstanding anything in the Plan or this Award Agreement to the contrary, if the vesting of the balance, or some lesser portion of the balance, of the Restricted Stock Units is accelerated in connection with Participant’s termination as a Service Provider (provided that such termination is a “separation from service” within the meaning of Section 409A, as determined by the Company ) , other than due to death, and i f (x) Participant is a “specified employee” within the meaning of Section 409A at the time of such termination as a Service Provider and (y) the payment of such accelerated Restricted Stock Units will result in the imposition of additional tax under Section 409A if paid to Participant on or within the six (6) month period following Participant’s termination as a Service Provider, then the payment of such accelerated Restricted Stock Units will not be made until the date six (6) months and one (1) day following the date of Participant’s termination as a Service Provider , unless the Participant dies following his or her termination as a Service Provider, in which case, the Restricted Stock Units will be paid in Shares to the Participant’s estate as soon as practicable following his or her death .     It is the intent of this Award Agreement to comply with the requirements of Section 409A so that none of the Restricted Stock Units provided under this Award Agreement or Shares issuable thereunder will be subject to the additional tax imposed under Section 409A , and any ambiguities herein will be interpreted to so comply.     Each payment payable under this Award Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2).  For purposes of this Award Agreement, “Section 409A” means Section 409A of the Code, and any proposed, temporar y or final Treasury Regulations and Internal Revenue Service guidance thereunder , as each may be amended from time to time.


 

 

6. Forfeiture upon Termination of Continuous Service If Participant ceases to be an Employee for any reason other than death or Disability, the then-unvested Restricted Stock Units (after taking into any accelerated vesting that may occur as the result of any such termination) awarded by this Award Agreement will thereupon be forfeited at no cost to the Company and the Participant will have no further rights thereunder.

7. Payment after Vesting .  Any Restricted Stock Units that vest in accordance with Sections 3, 4 or 5 will be paid to the Participant (or in the event of the Participant’s death, to his or her estate) in whole Shares, and no fractional Shares shall be issued.  As determined by the Administrator, any fraction of a Share shal l be paid in cash based on the F air M arket V alue of a Share.

8. Payments after Death or Disability .  Any distribution or delivery to be made to the Participant under this Agreement will, if the Participant is then deceased or Disabled , be made to the Participant’s legal representatives, heirs, legatees or distributees , as applicable .  Any such transferee must furnish the Company with (a) written notice of his or her status as transferee, and (b) evidence satisfactory to the Company to establish the validity of the transfer and compliance with any laws or regulations pertaining to said transfer.

9. Tax Obligations

(a) Responsibility for Taxes .  Participant acknowledges that, regardless of any action taken by the Company or, if different, Participant’s employer (the “Employer”), the ultimate liability for any tax and/or social insurance liability obligations and requirements in connection with the Restricted Stock Units, including, without limitation, ( 1 ) all federal, state, and local taxes (including the Participant’s Federal Insurance Contributions Act (FICA) obligation) that are required to be withheld by the Company or the Employer or other payment of tax-related items related to Participant’s participation in the Plan and legally applicable to Participant, ( 2 ) the Participant’s and, to the extent required by the Company (or Employer), the Company’s (or Employer’s) fringe benefit tax liability, if any, associated with the grant or vesting of the Restricted Stock Units or the issuance or sale of Shares, and ( 3 ) any other Company (or Employer) taxes the responsibility for which the Participant has, or has agreed to bear, with respect to the Restricted Stock Units (or the grant or vesting thereof or the issuance or sale of Shares)   (collectively, the “Tax Obligations”), is and remains Participant’s responsibility and may exceed the amount actually withheld by the Company or the Employer.  Participant further acknowledges that the Company and/or the Employer (i) make no representations or undertakings regarding the treatment of any Tax Obligations in connection with any aspect of the Restricted Stock Units, including, but not limited to, the grant, vesting or settlement of the Restricted Stock Units, the subsequent sale of Shares acquired pursuant to such settlement and the receipt of any dividends or other distributions, and (ii) do not commit to and are under no obligation to structure the terms of the grant or any aspect of the Restricted Stock Units to reduce or eliminate Participant’s liability for Tax Obligations or achieve any particular tax result.  Further, if Participant is subject to Tax Obligations in more than one jurisdiction between the Date of Grant and the date of any relevant taxable or tax withholding event, as applicable, Participant acknowledges that the Company and/or the Employer (or former employer, as applicable) may be required to withhold or account for Tax Obligations in more than one jurisdiction.  If Participant fails to make satisfactory arrangements for the payment of any required Tax Obligations hereunder at the time of the applicable taxable event, Participant acknowledges and agrees that the Company may refuse to issue or deliver the Shares.


 

(b) Tax Withholding . When Shares are issued as payment for vested Restricted Stock Units, Participant generally will recognize immediate U.S. taxable income if Participant is a U.S. taxpayer.  If Participant is a non-U.S. taxpayer, Participant will be subject to applicable taxes in his or her jurisdiction .  Pursuant to such procedures as the Administrator may specify from time to time, the Company and/or Employer shall withhold the minimum amount required to be withheld for the payment of Tax Obligations.  The Administrator, in its sole discretion and pursuant to such procedures as it may specify from time to time, may permit Participant to satisfy such Tax Obligations, in whole or in part (without limitation), if permissible by applicable local law, by (1) paying cash, (2) electing to have the Company withhold otherwise deliverable Shares having a Fair Market Value equal to the amount of such Tax Obligations, (3) withholding the amount of such Tax Obligations from Participant’s wages or other cash compensation paid to Participant by the Company and/or the Employer, ( 4 ) delivering to the Company already vested and owned Shares having a Fair Market Value equal to such Tax Obligations , or (5) selling a sufficient number of such Shares otherwise deliverable to Participant through such means as the Company may determine in its sole discretion (whether through a broker or otherwise) equal to the amount of the Tax Obligations.  To the extent determined appropriate by the Company in its discretion, it will have the right (but not the obligation) to satisfy any Tax Obligations by reducing the number of Shares otherwise deliverable to Participant .  Further, if Participant is subject to tax in more than one jurisdiction between the Date of Grant and a date of any relevant taxable or tax withholding event, as applicable, Participant acknowledges and agrees that the Company and/or the Employer (and/or former employer, as applicable) may be required to withhold or account for tax in more than one jurisdiction. If Participant fails to make satisfactory arrangements for the payment of such Tax Obligations hereunder at the time any applicable Restricted Stock Units otherwise are scheduled to vest pursuant to Sections 3 or 4, Participant will permanently forfeit such Restricted Stock Units and any right to receive Shares thereunder and the Restricted Stock Units will be returned to the Company at no cost to the Company.  Participant acknowledges and agrees that the Company may refuse to deliver the Shares if such Tax Obligations are not delivered at the time they are due. Without limitation on any of the foregoing rights or remedies of Company, if Participant fails to make satisfactory arrangements for the payment of such Tax Obligations hereunder at the time any applicable Restricted Stock Units otherwise are scheduled to vest pursuant to Sections 3 or 4, Company has the right, at Company’s sole discretion, to sell a sufficient number of such Shares otherwise deliverable to Participant through such means as the Company may determine in its sole discretion (whether through a broker or otherwise) equal to the amount of the Tax Obligations, or to withhold otherwise deliverable Shares having a Fair Market Value equal to the amount of such Tax Obligations.

10. Participant Bears Risks of Selling Otherwise Distributable Shares to Cover Tax Obligations . If any Tax Obligations are to be satisfied by selling a sufficient number of Shares otherwise deliverable to Participant, Participant hereby acknowledges and agrees that such sales will be subject to market pricing and trade execution risks, including trading delays and timing, which could result in the sale of a greater amount of Shares than expected and at a lower price than expected, including in comparison to other market sales within same trading day or adjacent trading days; and that Participant bears all risks associated with such sales, including all market pricing and trade execution risks. Participant hereby agrees to save and hold the Company, its officers, directors and employees, harmless from any and all liabilities arising from or as a consequence of any such sales. Participant agrees that Participant will be responsible for any commissions and related costs with respect to such sales. 

11. Nature of Grant In accepting the award, Participant acknowledges, understands and agrees that:

(a) the Plan is established voluntarily by the Company , it is discretionary in nature and it may be modified, amended, suspended or terminated by the Company at any time, to the extent permitted by the Plan;

(b) the Award of Restricted Stock Units is voluntary and occasional and does not create any contractual or other right to receive future awards of Restricted Stock Units, or benefits in lieu of Restricted Stock Units, even if Restricted Stock Units have been awarded in the past;

(c) all decisions with respect to future Restricted Stock Units or other awards, if any, will be at the sole discretion of the Company;

(d) Participant is voluntarily participating in the Plan;


 

(e) the Award of Restricted Stock Units and the Shares subject to the Restricted Stock Units, and the income and value of same, are not intended to replace any pension rights or compensation;

(f) the Award of Restricted Stock Units and the Shares subject to the Restricted Stock Units, and the income and value of same, are not part of normal or expected compensation for purposes of calculating any severance, resignation, termination, redundancy, dismissal, end-of-service payments, bonuses, long-service awards, pension or retirement or welfare benefits or similar payments;

(g) the future value of the underlying Shares is unknown, indeterminable and cannot be predicted with certainty;

(h) unless otherwise provided in the Plan or by the Company in its discretion, the Restricted Stock Units and the benefits evidenced by this Award Agreement do not create any entitlement to have the Restricted Stock Units or any such benefits transferred to, or assumed by, another company nor be exchanged, cashed out or substituted for, in connection with any corporate transaction affecting the Common Stock;

(i) unless otherwise agreed with the Company, the Restricted Stock Units and the Shares subject to the Restricted Stock Units, and the income and value of same, are not granted as consideration for, or in connection with, the service Participant may provide as a director of a Subsidiary or affiliate of the Company; and

(j) the following provisions apply only if Participant is providing services outside the United States:

(i) no claim or entitlement to compensation or damages shall arise from forfeiture of the Restricted Stock Units resulting from the termination of Participant as a Service Provider (for any reason whatsoever whether or not later found to be invalid or in breach of employment laws in the jurisdiction where Participant is employed or the terms of Participant’s employment or service agreement, if any), and in consideration of the award of the Restricted Stock Units to which Participant is otherwise not entitled, Participant irrevocably agrees never to institute any claim against the Company, the Employer or any other Parent or Subsidiary, waives his or her ability, if any, to bring any such claim, and releases the Company, the Employer or any other Parent or Subsidiary from any such claim; if, notwithstanding the foregoing, any such claim is allowed by a court of competent jurisdiction, then, by participating in the Plan, Participant shall be deemed irrevocably to have agreed not to pursue such claim and agrees to execute any and all documents necessary to request dismissal or withdrawal of such claim; and

(ii) Participant acknowledges and agrees that neither the Company , the Employer nor any Parent or Subsidiary shall be liable for any foreign exchange rate fluctuation between Participant’s local currency and the United States Dollar that may affect the value of the Restricted Stock Units or of any amounts due to Participant pursuant to the settlement of the Restricted Stock Units or the subsequent sale of any Shares acquired upon settlement.

12. Data Privacy .  Participant hereby explicitly and unambiguously consents to the collection, use and transfer, in electronic or other form, of Participant’s personal data as described in this Award Agreement and any other grant materials (“Data”) by and among, as applicable, the Employer, the Company and any Parent or Subsidiary for the purpose of implementing, administering and managing Participant’s participation in the Plan.

Participant understands that the Company and the Employer may hold certain personal information about Participant, including, but not limited to, Participant’s name ; home address ; telephone number s; date of birth ; age; social insurance number , social security number, taxpayer identification number and/ or other identification number ; tax related information; salary ; salary history; nationality ; job title ; any shares of stock or directorships held in the Company ; details of all Restricted Stock Units or any other entitlement to shares of stock awarded, canceled, exercised, vested, unvested or outstanding in Participant’s favor ; and benefit enrollment forms; for the   purpose of implementing, administering and managing the Plan. 


 

 

Participant understands that Data will be transferred to such stock plan service provider as may be selected by the Company from time to time, which is assisting the Company with the implementation, administration and management of the Plan.  Participant understands that the recipients of Data may be located in the United States or elsewhere, and that the recipients’ country ( e.g. , the United States) may have different data privacy laws and protections than Participant’s country.  Participant understands that if he or she resides outside the United States, he or she may request a list with the names and addresses of any potential recipients of Data by contacting his or her local human resources representative .  Participant authorizes the Company and any possible recipients which may assist the Company (presently or in the future) with implementing, administering and managing the Plan to receive, possess, use, process, retain and transfer Data, in electronic or other form, for the purpose of implementing, administering and managing his or her participation in the Plan.  Participant understands that Data will be held as long as is necessary to implement, administer and manage Participant’s participation in the Plan.  Participant understands if he or she resides outside the United States, he or she may, at any time, view Data, request additional information about the storage and processing of Data, require any necessary amendments to Data or refuse or withdraw the consents herein, in any case without cost, by contacting in writing his or her local human resources representative.  Further, Participant understands that he or she is providing the consents herein on a purely voluntary basis.  If Participant does not consent, or if Participant later seeks to revoke his or her consent, his or her employment status or service and career with the Employer will not be adversely affected thereby ; the only consequence of refusing or withdrawing Participant’s consent is that the Company would not be able to grant Participant Restricted Stock Units or other equity awards or administer or maintain such awards.  Therefore, Participant understands that refusing or withdrawing his or her consent may affect Participant’s ability to participate in the Plan.  For more information on the consequences of Participant’s refusal to consent or withdrawal of consent, Participant understands that he or she may contact his or her local human resources representative.  Nothing in this Section 12 shall be understood as limiting or restricting any other rights of Company, including without limitation under any other consents given by Participant, to receive, possess, use,  process, retain and transfer any Data. 

1 3 . Rights as Stockholder .  Neither the Participant nor any person claiming under or through the Participant will have any of the rights or privileges of a stockholder of the Company in respect of any Shares deliverable hereunder unless and until certificates representing such Shares will have been issued (including in book entry), recorded on the records of the Company or its transfer agents or registrars, and, if applicable, delivered to the Participant.

14. No Guarantee of Continued Service .  PARTICIPANT ACKNOWLEDGES AND AGREES THAT THE VESTING OF THE RESTRICTED STOCK UNITS PURSUANT TO THE VESTING SCHEDULE HEREOF IS EARNED ONLY BY CONTINUING AS A SERVICE PROVIDER AT THE WILL OF THE COMPANY OR THE EMPLOYER, AND NOT THROUGH THE ACT OF BEING HIRED, BEING GRANTED THIS AWARD OF RESTRICTED STOCK UNITS OR ACQUIRING SHARES HEREUNDER.  PARTICIPANT FURTHER ACKNOWLEDGES AND AGREES THAT THIS AWARD AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREUNDER AND THE VESTING SCHEDULE SET FORTH HEREIN DO NOT CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF CONTINUED ENGAGEMENT AS A SERVICE PROVIDER FOR THE VESTING PERIOD, FOR ANY PERIOD, OR AT ALL, AND WILL NOT INTERFERE IN ANY WAY WITH PARTICIPANT’S RIGHT OR THE RIGHT OF THE COMPANY OR THE EMPLOYER TO TERMINATE PARTICIPANT’S RELATIONSHIP AS A SERVICE PROVIDER AT ANY TIME, WITH OR WITHOUT CAUSE.

1 5 . Address for Notices .  Any notice to be given to the Company under the terms of this Agreement will be addressed to the Company at 11500 N. Mopac Expressway, Building A, Austin, Texas 78759, Attn: Stock Administrator, or at such other address as the Company may hereafter designate in writing.


 

1 6 . Grant is Not Transferable .  Except to the limited extent provided in Section 8, this grant and the rights and privileges conferred hereby will not be transferred, assigned, pledged or hypothecated in any way (whether by operation of law or otherwise) and will not be subject to sale under execution, attachment or similar process.  Upon any attempt to transfer, assign, pledge, hypothecate or otherwise dispose of this grant, or any right or privilege conferred hereby, or upon any attempted sale under any execution, attachment or similar process, this grant and the rights and privileges conferred hereby immediately will become null and void.

1 7 . Binding Agreement .  Subject to the limitation on the transferability of this grant contained herein, this Award Agreement will be binding upon and inure to the benefit of the heirs, legatees, legal representatives, successors and assigns of the parties hereto.

1 8 . Additional Conditions to Issuance of Stock .  If at any time the Company will determine, in its discretion, that the listing, registration or qualification of the Shares upon any securities exchange or under any state or federal law, or the consent or approval of any governmental regulatory authority is necessary or desirable as a condition to the issuance of shares to the Participant (or his or her estate), such issuance will not occur unless and until such listing, registration, qualification, consent or approval will have been effected or obtained free of any conditions not acceptable to the Company.  The Company will make all reasonable efforts to meet the requirements of any such state or federal law or securities exchange and to obtain any such consent or approval of any such governmental authority. 

1 9 . Plan Governs .  This Award Agreement is subject to all terms and provisions of the Plan.  In the event of a conflict between one or more provisions of this Award Agreement and one or more provisions of the Plan, the provisions of the Plan will govern.

20 . Administrator Authority .  The Administrator will have the power to interpret the Plan and this Award Agreement and to adopt such rules for the administration, interpretation and application of the Plan as are consistent therewith and to interpret or revoke any such rules (including, but not limited to, the determination of whether or not any Restricted Stock Units have vested).  All actions taken and all interpretations and determinations made by the Administrator in good faith will be final and binding upon Participant, the Company and all other interested persons.  No member of the Board or its Committee administering the Plan will be personally liable for any action, determination or interpretation made in good faith with respect to the Plan or this Award Agreement.

21. C ountry Appendix .   The Restricted Stock Units are subject to any special terms and conditions for Participant’s country set forth in the Country Appendix, if any, to this Award Agreement. If Participant relocates to a country included in the Appendix, the special terms and conditions for that country will apply to Participant to the extent the Company determines that applying such terms and conditions is necessary or advisable for legal or administrative reasons.

22 . Captions .  Captions provided herein are for convenience only and are not to serve as a basis for interpretation or construction of this Award Agreement.

23 . Agreement Severable .  In the event that any provision in this Award Agreement will be held invalid or unenforceable, such provision will be severable from, and such invalidity or unenforceability will not be construed to have any effect on, the remaining provisions of this Award Agreement.


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 J. Truchard, certify that:

 

 

 

 

1.

I have reviewed this report on Form 10- Q 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 report; 

3.

Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4.

The registrant's other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

 

a)

Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

b)

Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

c)

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

 

d)

Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5.

The registrant's other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):

 

a)

All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and

 

b)

Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.

 

Date :   July 31 , 2015

 

 

By:

/s/ James J. Truchard

 

James J. 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, Alex M. Davern, certify that:

 

 

 

 

1.

I have reviewed this report on Form 10- Q 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 report;

3.

Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4.

The registrant's other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

 

a)

Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

b)

Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

c)

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

 

d)

Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5.

The registrant's other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):

 

a)

All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and

 

b)

Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.

 

Date:  July 31 , 2015

 

 

By :

/s/ Alex M. Davern                                         

 

Alex M. 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 J. 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 Quarterly Report of National Instruments Corporation on Form 10- Q for the fiscal quarter ended June 30 , 2015 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- Q fairly presents in all material respects the financial condition and results of operations of National Instruments Corporation.

   

 

 

 

By:

/s/ James J. Truchard

 

James J. Truchard

 

Chief Executive Officer

 

 

I, Alex M. 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 Quarterly Report of National Instruments Corporation on Form 10- Q for the fiscal quarter ended June 30, 2015   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- Q fairly presents in all material respects the financial condition and results of operations of National Instruments Corporation.

 

 

 

 

 

By:

/s/ Alex M. Davern

 

Alex M. Davern

 

Chief Financial Officer