x
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QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
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¨
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TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
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Delaware
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|
32-0097377
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(State or other jurisdiction of
incorporation or organization)
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|
(I.R.S. Employer
Identification No.)
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Large accelerated filer
|
¨
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|
Accelerated filer
|
x
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Non-accelerated filer
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¨
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(Do not check if a smaller reporting company)
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Smaller reporting company
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¨
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Page
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PART I – FINANCIAL INFORMATION
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Item 1.
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Item 2.
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Item 3.
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Item 4.
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PART II – OTHER INFORMATION
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Item 1.
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Item 1A.
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Item 2.
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Item 3.
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Item 4.
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Item 5.
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Item 6.
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December 31, 2013
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June 30, 2013
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||||
Assets
|
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||||
Current assets:
|
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|
||||
Cash and cash equivalents
|
$
|
305,553
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$
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227,826
|
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Accounts receivable, net of allowance for doubtful accounts of $1,800 and $2,200, respectively
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36,809
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35,884
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Inventories
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32,323
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|
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15,880
|
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Current deferred tax asset
|
733
|
|
|
733
|
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Prepaid income taxes
|
2,799
|
|
|
—
|
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Prepaid expenses and other current assets
|
4,425
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|
3,151
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Total current assets
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382,642
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283,474
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Property and equipment, net
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6,793
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|
5,976
|
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Long-term deferred tax asset
|
4
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|
|
4
|
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Other long–term assets
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3,105
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|
|
2,886
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Total assets
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$
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392,544
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$
|
292,340
|
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Liabilities and Stockholders’ Equity
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||||
Current liabilities:
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|
||||
Accounts payable
|
$
|
49,688
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|
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$
|
36,187
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Customer deposits
|
3,930
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|
|
5,123
|
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||
Deferred revenues
|
898
|
|
|
691
|
|
||
Income taxes payable
|
—
|
|
|
1,257
|
|
||
Debt - short-term
|
5,642
|
|
|
5,013
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|
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Other current liabilities
|
12,953
|
|
|
11,150
|
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Total current liabilities
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73,111
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|
59,421
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|
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Long-term taxes payable
|
13,380
|
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|
11,857
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|
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Debt - long-term
|
68,006
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71,116
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|
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Deferred revenues - long-term
|
3,017
|
|
|
2,510
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Total liabilities
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157,514
|
|
|
144,904
|
|
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Commitments and contingencies (Note 8)
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Stockholders’ equity:
|
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|
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Preferred stock—$0.001 par value; 50,000,000 shares authorized; none issued
|
—
|
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—
|
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Common stock—$0.001 par value; 500,000,000 shares authorized:
|
|
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87,739,935 and 87,213,803 outstanding at December 31, 2013 and June 30, 2013, respectively
|
88
|
|
|
87
|
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Additional paid–in capital
|
140,255
|
|
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134,982
|
|
||
Treasury stock—44,238,960 shares held in treasury at December 31, 2013 and June 30, 2013
|
(123,864
|
)
|
|
(123,864
|
)
|
||
Retained earnings
|
218,551
|
|
|
136,231
|
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Total stockholders’ equity
|
235,030
|
|
|
147,436
|
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Total liabilities and stockholders’ equity
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$
|
392,544
|
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$
|
292,340
|
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Three Months Ended December 31,
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Six Months Ended December 31,
|
||||||||||||
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2013
|
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2012
|
|
2013
|
|
2012
|
||||||||
Revenues
|
$
|
138,439
|
|
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$
|
74,901
|
|
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$
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268,126
|
|
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$
|
136,436
|
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Cost of revenues
|
77,468
|
|
|
44,416
|
|
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149,132
|
|
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80,931
|
|
||||
Gross profit
|
60,971
|
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30,485
|
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118,994
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55,505
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Operating expenses:
|
|
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|
|
|
|
|
||||||||
Research and development
|
8,077
|
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5,052
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14,394
|
|
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9,763
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|
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Sales, general and administrative
|
5,774
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|
|
5,314
|
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11,584
|
|
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9,848
|
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||||
Total operating expenses
|
13,851
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10,366
|
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25,978
|
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19,611
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Income from operations
|
47,120
|
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20,119
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93,016
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35,894
|
|
||||
Interest expense and other, net
|
(249
|
)
|
|
(197
|
)
|
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(495
|
)
|
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(283
|
)
|
||||
Income before provision for income taxes
|
46,871
|
|
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19,922
|
|
|
92,521
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|
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35,611
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|
||||
Provision for income taxes
|
5,079
|
|
|
2,119
|
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10,201
|
|
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4,629
|
|
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Net income and comprehensive income
|
$
|
41,792
|
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$
|
17,803
|
|
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$
|
82,320
|
|
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$
|
30,982
|
|
Net income per share of common stock:
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Basic
|
$
|
0.48
|
|
|
$
|
0.20
|
|
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$
|
0.94
|
|
|
$
|
0.35
|
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Diluted
|
$
|
0.47
|
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$
|
0.20
|
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$
|
0.92
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$
|
0.34
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Weighted average shares used in computing net income per share of common stock:
|
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||||||||
Basic
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87,661
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88,094
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87,536
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89,532
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||||
Diluted
|
89,653
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90,056
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89,593
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91,493
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|
||||
Cash dividends declared per common share
|
$
|
—
|
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$
|
0.18
|
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$
|
—
|
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$
|
0.18
|
|
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Six Months Ended December 31,
|
||||||
|
2013
|
|
2012
|
||||
Cash Flows from Operating Activities:
|
|
|
|
||||
Net income and comprehensive income
|
$
|
82,320
|
|
|
$
|
30,982
|
|
Adjustments to reconcile net income to net cash provided by operating activities:
|
|
|
|
||||
Depreciation and amortization
|
1,330
|
|
|
753
|
|
||
Provision for inventory obsolescence
|
925
|
|
|
875
|
|
||
Deferred taxes
|
1,523
|
|
|
—
|
|
||
Excess tax benefit from employee stock-based awards
|
(2,591
|
)
|
|
(61
|
)
|
||
Stock-based compensation
|
2,589
|
|
|
1,549
|
|
||
Write-off of intangible assets
|
74
|
|
|
—
|
|
||
Provision for doubtful accounts
|
(303
|
)
|
|
1,200
|
|
||
Changes in operating assets and liabilities:
|
|
|
|
||||
Accounts receivable
|
(622
|
)
|
|
18,542
|
|
||
Inventories
|
(17,368
|
)
|
|
(7,764
|
)
|
||
Deferred cost of revenues
|
(246
|
)
|
|
—
|
|
||
Prepaid income taxes
|
(2,799
|
)
|
|
—
|
|
||
Prepaid expenses and other assets
|
(1,318
|
)
|
|
(1,621
|
)
|
||
Accounts payable
|
13,334
|
|
|
1,829
|
|
||
Taxes payable
|
1,334
|
|
|
4,407
|
|
||
Deferred revenues
|
714
|
|
|
10
|
|
||
Accrued liabilities and other
|
608
|
|
|
(176
|
)
|
||
Net cash provided by operating activities
|
79,504
|
|
|
50,525
|
|
||
Cash Flows from Investing Activities:
|
|
|
|
||||
Purchase of property and equipment and other long-term assets
|
(1,962
|
)
|
|
(3,467
|
)
|
||
Net cash used in investing activities
|
(1,962
|
)
|
|
(3,467
|
)
|
||
Cash Flows from Financing Activities:
|
|
|
|
||||
Proceeds from term loan, net
|
—
|
|
|
50,833
|
|
||
Repayments on term loan balance
|
(2,500
|
)
|
|
(1,833
|
)
|
||
Repurchases of common stock
|
—
|
|
|
(54,354
|
)
|
||
Payment of special common stock dividend
|
—
|
|
|
(15,652
|
)
|
||
Proceeds from exercise of stock options
|
1,002
|
|
|
161
|
|
||
Excess tax benefit from employee stock-based awards
|
2,591
|
|
|
61
|
|
||
Tax withholdings related to net share settlements of restricted stock units
|
(908
|
)
|
|
(33
|
)
|
||
Net cash provided by (used in) financing activities
|
185
|
|
|
(20,817
|
)
|
||
Net increase in cash and cash equivalents
|
77,727
|
|
|
26,241
|
|
||
Cash and cash equivalents at beginning of period
|
227,826
|
|
|
122,060
|
|
||
Cash and cash equivalents at end of period
|
$
|
305,553
|
|
|
$
|
148,301
|
|
|
December 31, 2013
|
|
June 30, 2013
|
||||||||||||||||||||||||||||
|
Fair
Value
|
|
Level 1
|
|
Level 2
|
|
Level 3
|
|
Fair
Value
|
|
Level 1
|
|
Level 2
|
|
Level 3
|
||||||||||||||||
Debt
|
$
|
73,648
|
|
|
$
|
—
|
|
|
$
|
73,648
|
|
|
$
|
—
|
|
|
$
|
76,129
|
|
|
$
|
—
|
|
|
$
|
76,129
|
|
|
$
|
—
|
|
|
Three Months Ended December 31,
|
|
Six Months Ended December 31,
|
||||||||||||
|
2013
|
|
2012
|
|
2013
|
|
2012
|
||||||||
Numerator:
|
|
|
|
||||||||||||
Net income attributable to common stockholders
|
$
|
41,792
|
|
|
$
|
17,803
|
|
|
$
|
82,320
|
|
|
$
|
30,982
|
|
Denominator:
|
|
|
|
||||||||||||
Weighted-average shares used in computing basic net income per share
|
87,661
|
|
|
88,094
|
|
|
87,536
|
|
|
89,532
|
|
||||
Add—dilutive potential common shares:
|
|
|
|
|
|
|
|
||||||||
Stock options
|
1,747
|
|
|
1,806
|
|
|
1,795
|
|
|
1,808
|
|
||||
Restricted stock units
|
245
|
|
|
156
|
|
|
262
|
|
|
153
|
|
||||
Weighted-average shares used in computing diluted net income per share
|
89,653
|
|
|
90,056
|
|
|
89,593
|
|
|
91,493
|
|
||||
Net income per share of common stock:
|
|
|
|
||||||||||||
Basic
|
$
|
0.48
|
|
|
$
|
0.20
|
|
|
$
|
0.94
|
|
|
$
|
0.35
|
|
Diluted
|
$
|
0.47
|
|
|
$
|
0.20
|
|
|
$
|
0.92
|
|
|
$
|
0.34
|
|
|
Three Months Ended December 31,
|
|
Six Months Ended December 31,
|
||||||||
|
2013
|
|
2012
|
|
2013
|
|
2012
|
||||
Stock options
|
—
|
|
|
355
|
|
|
1
|
|
|
196
|
|
Restricted stock units
|
9
|
|
|
367
|
|
|
32
|
|
|
340
|
|
|
9
|
|
|
722
|
|
|
33
|
|
|
536
|
|
|
December 31, 2013
|
|
June 30, 2013
|
||||
Finished goods
|
$
|
32,136
|
|
|
$
|
15,618
|
|
Raw materials
|
187
|
|
|
262
|
|
||
|
$
|
32,323
|
|
|
$
|
15,880
|
|
|
December 31, 2013
|
|
June 30, 2013
|
||||
Non-trade receivables
|
$
|
1,546
|
|
|
$
|
2,203
|
|
Other current assets
|
2,879
|
|
|
948
|
|
||
|
$
|
4,425
|
|
|
$
|
3,151
|
|
|
December 31, 2013
|
|
June 30, 2013
|
||||
Testing equipment
|
$
|
3,642
|
|
|
$
|
3,309
|
|
Computer and other equipment
|
946
|
|
|
841
|
|
||
Tooling equipment
|
2,633
|
|
|
1,737
|
|
||
Furniture and fixtures
|
727
|
|
|
652
|
|
||
Leasehold improvements
|
2,421
|
|
|
1,858
|
|
||
Software
|
245
|
|
|
245
|
|
||
|
10,614
|
|
|
8,642
|
|
||
Less: Accumulated depreciation and amortization
|
(3,821
|
)
|
|
(2,666
|
)
|
||
|
$
|
6,793
|
|
|
$
|
5,976
|
|
|
December 31, 2013
|
|
June 30, 2013
|
||||
Intangible assets, net
|
$
|
958
|
|
|
$
|
1,029
|
|
Long-term deferred cost of revenues
|
1,431
|
|
|
1,185
|
|
||
Other long-term assets
|
716
|
|
|
672
|
|
||
|
$
|
3,105
|
|
|
$
|
2,886
|
|
|
December 31, 2013
|
|
June 30, 2013
|
||||
Accrued compensation and benefits
|
$
|
3,258
|
|
|
$
|
2,712
|
|
Accrued accounts payable
|
479
|
|
|
323
|
|
||
Accrual for an export compliance matter
|
1,625
|
|
|
1,625
|
|
||
Warranty accrual
|
3,575
|
|
|
2,913
|
|
||
Other accruals
|
4,016
|
|
|
3,577
|
|
||
|
$
|
12,953
|
|
|
$
|
11,150
|
|
|
Six Months Ended December 31,
|
||||||
|
2013
|
|
2012
|
||||
Beginning balance
|
$
|
2,913
|
|
|
$
|
1,381
|
|
Accruals for warranties issued during the period
|
2,698
|
|
|
1,684
|
|
||
Warranty costs incurred during the period
|
(2,036
|
)
|
|
(1,115
|
)
|
||
|
$
|
3,575
|
|
|
$
|
1,950
|
|
|
2014 (remainder)
|
|
2015
|
|
2016
|
|
2017
|
|
2018
|
|
Total
|
||||||||||||
Debt payment obligations
|
$
|
2,500
|
|
|
$
|
6,875
|
|
|
$
|
39,375
|
|
|
$
|
10,000
|
|
|
$
|
15,000
|
|
|
$
|
73,750
|
|
Interest payments on debt payment obligations
|
911
|
|
|
1,723
|
|
|
1,043
|
|
|
532
|
|
|
125
|
|
|
4,334
|
|
||||||
Total
|
$
|
3,411
|
|
|
$
|
8,598
|
|
|
$
|
40,418
|
|
|
$
|
10,532
|
|
|
$
|
15,125
|
|
|
$
|
78,084
|
|
|
2014
(remainder)
|
|
2015
|
|
2016
|
|
2017
|
|
2018
|
|
Thereafter
|
|
Total
|
||||||||||||||
Operating leases
|
$
|
1,184
|
|
|
$
|
2,494
|
|
|
$
|
2,497
|
|
|
$
|
1,537
|
|
|
$
|
297
|
|
|
$
|
53
|
|
|
$
|
8,062
|
|
Period
|
Total Number
of Shares
Purchased
|
|
Average Price
Paid per Share
|
|
Estimated remaining balance available for share repurchase
|
|||||
August 13, 2012 – August 31, 2012
|
2,179,900
|
|
|
$
|
8.88
|
|
|
$
|
80,599
|
|
September 1, 2012 – September 30, 2012
|
992,014
|
|
|
$
|
11.93
|
|
|
$
|
68,742
|
|
October 1, 2012 - October 31, 2012
|
371,665
|
|
|
$
|
11.72
|
|
|
$
|
64,377
|
|
November 1, 2012 - November 30, 2012
|
657,700
|
|
|
$
|
11.16
|
|
|
$
|
57,024
|
|
December 1, 2012 - December 31, 2012
|
957,771
|
|
|
$
|
11.86
|
|
|
$
|
45,646
|
|
Total
|
5,159,050
|
|
|
$
|
10.52
|
|
|
$
|
45,646
|
|
|
Three Months Ended December 31,
|
|
Six Months Ended December 31,
|
||||||||||||
|
2013
|
|
2012
|
|
2013
|
|
2012
|
||||||||
Cost of sales
|
$
|
148
|
|
|
$
|
104
|
|
|
$
|
292
|
|
|
$
|
185
|
|
Research and development
|
553
|
|
|
401
|
|
|
1,049
|
|
|
667
|
|
||||
Sales, general and administrative
|
721
|
|
|
388
|
|
|
1,248
|
|
|
697
|
|
||||
|
$
|
1,422
|
|
|
$
|
893
|
|
|
$
|
2,589
|
|
|
$
|
1,549
|
|
|
Common Stock Options Outstanding
|
|||||||||||
|
Number
of Shares
|
|
Weighted
Average
Exercise
Price
|
|
Weighted
Average
Remaining
Contractual
Life (Years)
|
|
Aggregate
Intrinsic
Value
|
|||||
|
|
|
|
|
|
|
(In thousands)
|
|||||
Balance, June 30, 2013
|
3,614,262
|
|
|
$
|
3.07
|
|
|
|
|
|
||
Exercised
|
(455,980
|
)
|
|
2.20
|
|
|
|
|
|
|||
Forfeitures and cancellations
|
(107,318
|
)
|
|
10.55
|
|
|
|
|
|
|||
Balance, December 31, 2013
|
3,050,964
|
|
|
$
|
2.93
|
|
|
5.65
|
|
$
|
131,270
|
|
Vested and expected to vest as of December 31, 2013
|
3,016,040
|
|
|
$
|
2.85
|
|
|
5.61
|
|
$
|
130,033
|
|
Vested and exercisable as of December 31, 2013
|
2,421,183
|
|
|
$
|
1.30
|
|
|
4.97
|
|
$
|
108,131
|
|
|
Three And Six Months Ended December 31, 2012
|
||
Expected term
|
6.1 years
|
|
|
Expected volatility
|
52
|
%
|
|
Risk-free interest rate
|
0.8
|
%
|
|
Expected dividend yield
|
—
|
|
|
Weighted average grant date fair value
|
$
|
5.37
|
|
|
Number of Shares
|
|
Weighted Average Grant Date Fair Value
|
|||
Non-vested RSUs, June 30, 2013
|
744,906
|
|
|
$
|
14.74
|
|
RSUs granted
|
77,033
|
|
|
32.48
|
|
|
RSUs vested
|
(100,431
|
)
|
|
16.09
|
|
|
RSUs canceled
|
(188,905
|
)
|
|
14.98
|
|
|
Non-vested RSUs, December 31, 2013
|
532,603
|
|
|
$
|
16.96
|
|
•
|
Service Provider Technology
includes the Company's airMAX, EdgeMAX and airFiber platforms, as well as embedded radio products and other 802.11 standard products including base stations, radios, backhaul equipment and Customer Premise Equipment (“CPE”). Additionally, Service Provider Technology includes antennas and other products in the 2.0 to 6.0GHz spectrum and miscellaneous products such as mounting brackets, cables and power over Ethernet adapters.
|
•
|
Enterprise Technology
includes the Company's UniFi, mFi and airVision platforms.
|
|
Three Months Ended December 31,
|
|
Six Months Ended December 31,
|
||||||||||||||||||||||||
|
2013
|
|
2012
|
|
2013
|
|
2012
|
||||||||||||||||||||
Service Provider Technology
|
$
|
111,454
|
|
|
81
|
%
|
|
$
|
68,170
|
|
|
91
|
%
|
|
$
|
205,671
|
|
|
77
|
%
|
|
$
|
119,787
|
|
|
88
|
%
|
Enterprise Technology
|
26,985
|
|
|
19
|
%
|
|
6,731
|
|
|
9
|
%
|
|
62,455
|
|
|
23
|
%
|
|
16,649
|
|
|
12
|
%
|
||||
Total revenues
|
$
|
138,439
|
|
|
100
|
%
|
|
$
|
74,901
|
|
|
100
|
%
|
|
$
|
268,126
|
|
|
100
|
%
|
|
$
|
136,436
|
|
|
100
|
%
|
|
Three Months Ended December 31,
|
|
Six Months Ended December 31,
|
||||||||||||||||||||||||
|
2013
|
|
2012
|
|
2013
|
|
2012
|
||||||||||||||||||||
North America(1)
|
$
|
32,567
|
|
|
24
|
%
|
|
$
|
12,106
|
|
|
16
|
%
|
|
$
|
70,000
|
|
|
26
|
%
|
|
$
|
32,467
|
|
|
24
|
%
|
South America
|
27,992
|
|
|
20
|
%
|
|
17,081
|
|
|
23
|
%
|
|
48,768
|
|
|
18
|
%
|
|
27,324
|
|
|
20
|
%
|
||||
Europe, the Middle East and Africa
|
58,842
|
|
|
42
|
%
|
|
35,929
|
|
|
48
|
%
|
|
111,708
|
|
|
42
|
%
|
|
59,073
|
|
|
43
|
%
|
||||
Asia Pacific
|
19,038
|
|
|
14
|
%
|
|
9,785
|
|
|
13
|
%
|
|
37,650
|
|
|
14
|
%
|
|
17,572
|
|
|
13
|
%
|
||||
Total revenues
|
$
|
138,439
|
|
|
100
|
%
|
|
$
|
74,901
|
|
|
100
|
%
|
|
$
|
268,126
|
|
|
100
|
%
|
|
$
|
136,436
|
|
|
100
|
%
|
(1)
|
Revenue for the United States was
$31.1 million
and
$11.4 million
for the three months ended
December 31, 2013
and
2012
, respectively. Revenue for the United States was
$67.3 million
and
$30.7 million
for the
six months ended
December 31, 2013
and
2012
, respectively.
|
|
Percentage of Revenues
|
|
Percentage of Accounts Receivable
|
||||||||||||||
|
Three Months Ended December 31,
|
|
Six Months Ended December 31,
|
|
December 31,
|
|
June 30,
|
||||||||||
|
2013
|
|
2012
|
|
2013
|
|
2012
|
|
2013
|
|
2013
|
||||||
Customer A
|
17
|
%
|
|
15
|
%
|
|
14
|
%
|
|
12
|
%
|
|
20
|
%
|
|
12
|
%
|
Customer B
|
*
|
|
|
14
|
%
|
|
*
|
|
|
*
|
|
|
11
|
%
|
|
11
|
%
|
Customer C
|
*
|
|
|
*
|
|
|
*
|
|
|
*
|
|
|
16
|
%
|
|
15
|
%
|
•
|
Rapid customer and community driven product development.
We have an active, loyal community built from our customers that we believe is a sustainable competitive advantage. Our solutions benefit from the active engagement between the Ubiquiti Community and our development engineers throughout the product development cycle, which eliminates long and expensive multistep internal processes and results in rapid introduction and adoption of our products. This approach significantly reduces our development costs and time to market.
|
•
|
Scalable sales and marketing model.
We do not currently have, nor do we plan to hire, a direct sales force, but instead utilize the Ubiquiti Community to drive market awareness and demand for our products and solutions. This community-propagated viral marketing enables us to reach underserved and underpenetrated markets far more efficiently and cost-effectively than is possible through traditional sales models. Leveraging the information transparency of the Internet allows customers to research, evaluate and validate our solutions with the Ubiquiti Community and via third party web sites. This allows us to operate a scalable sales and marketing model and effectively create awareness of our brand and products. Word of mouth referrals from the Ubiquiti Community generate high quality leads for our distributors at relatively little cost.
|
•
|
Self-sustaining product support.
The engaged members of the Ubiquiti Community have enabled us to foster a large, cost efficient, highly-scalable and, we believe, self-sustaining mechanism for rapid product support and dissemination of information.
|
•
|
Service Provider Technology
includes our airMAX, EdgeMAX and airFiber platforms, as well as embedded radio products and other 802.11 standard products including base stations, radios, backhaul equipment and Customer Premise Equipment (“CPE”). Additionally, Service Provider Technology includes antennas and other products in the
|
•
|
Enterprise Technology
includes the Company's UniFi, mFi and airVision platforms.
|
•
|
Research and development expenses
consist primarily of salary and benefit expenses, including stock-based compensation, for employees and costs for contractors engaged in research, design and development activities, as well as costs for prototypes, facilities and travel. Over time, we expect our research and development costs to increase as we continue making significant investments in developing new products and developing new versions of our existing products.
|
•
|
Sales, general and administrative expenses
include salary and benefit expenses, including stock-based compensation, for employees and costs for contractors engaged in sales, marketing and general and administrative activities, as well as the costs of legal expenses, trade shows, marketing programs, promotional materials, bad debt expense, professional services, facilities, general liability insurance and travel. As our product portfolio and targeted markets expand, we may need to employ different sales models, such as building a direct sales force. These sales models would likely increase our costs. Over time, we expect our sales, general and administrative expenses to increase in absolute dollars due to continued growth in headcount, expansion of our efforts to register and defend trademarks and patents and to support our business and operations.
|
|
Three Months Ended December 31,
|
|
Six Months Ended December 31,
|
||||||||||||||||||||||||
|
2013
|
|
2012
|
|
2013
|
|
2012
|
||||||||||||||||||||
|
(in thousands, except percentages)
|
||||||||||||||||||||||||||
Service Provider Technology
|
$
|
111,454
|
|
|
81
|
%
|
|
$
|
68,170
|
|
|
91
|
%
|
|
$
|
205,671
|
|
|
77
|
%
|
|
$
|
119,787
|
|
|
88
|
%
|
Enterprise Technology
|
26,985
|
|
|
19
|
%
|
|
6,731
|
|
|
9
|
%
|
|
62,455
|
|
|
23
|
%
|
|
16,649
|
|
|
12
|
%
|
||||
Total revenues
|
$
|
138,439
|
|
|
100
|
%
|
|
$
|
74,901
|
|
|
100
|
%
|
|
$
|
268,126
|
|
|
100
|
%
|
|
$
|
136,436
|
|
|
100
|
%
|
|
Three Months Ended December 31,
|
|
Six Months Ended December 31,
|
||||||||||||||||||||||||
|
2013
|
|
2012
|
|
2013
|
|
2012
|
||||||||||||||||||||
North America(1)
|
$
|
32,567
|
|
|
24
|
%
|
|
$
|
12,106
|
|
|
16
|
%
|
|
$
|
70,000
|
|
|
26
|
%
|
|
$
|
32,467
|
|
|
24
|
%
|
South America
|
27,992
|
|
|
20
|
%
|
|
17,081
|
|
|
23
|
%
|
|
48,768
|
|
|
18
|
%
|
|
27,324
|
|
|
20
|
%
|
||||
Europe, the Middle East and Africa
|
58,842
|
|
|
42
|
%
|
|
35,929
|
|
|
48
|
%
|
|
111,708
|
|
|
42
|
%
|
|
59,073
|
|
|
43
|
%
|
||||
Asia Pacific
|
19,038
|
|
|
14
|
%
|
|
9,785
|
|
|
13
|
%
|
|
37,650
|
|
|
14
|
%
|
|
17,572
|
|
|
13
|
%
|
||||
Total revenues
|
$
|
138,439
|
|
|
100
|
%
|
|
$
|
74,901
|
|
|
100
|
%
|
|
$
|
268,126
|
|
|
100
|
%
|
|
$
|
136,436
|
|
|
100
|
%
|
(1)
|
Revenue for the United States was
$31.1 million
and
$11.4 million
for the three months ended
December 31, 2013
and
2012
, respectively. Revenue for the United States was
$67.3 million
and
$30.7 million
for the
six months ended
December 31, 2013
and
2012
, respectively.
|
|
Six Months Ended December 31,
|
||||||
|
2013
|
|
2012
|
||||
|
(In thousands)
|
||||||
Net cash provided by operating activities
|
$
|
79,504
|
|
|
$
|
50,525
|
|
Net cash used in investing activities
|
(1,962
|
)
|
|
(3,467
|
)
|
||
Net cash provided by (used in) financing activities
|
185
|
|
|
(20,817
|
)
|
||
Net increase in cash and cash equivalents
|
$
|
77,727
|
|
|
$
|
26,241
|
|
|
2014
(remainder)
|
|
2015
|
|
2016
|
|
2017
|
|
2018
|
|
Thereafter
|
|
Total
|
||||||||||||||
Operating leases
|
$
|
1,184
|
|
|
$
|
2,494
|
|
|
$
|
2,497
|
|
|
$
|
1,537
|
|
|
$
|
297
|
|
|
$
|
53
|
|
|
$
|
8,062
|
|
Debt payment obligations
|
2,500
|
|
|
6,875
|
|
|
39,375
|
|
|
10,000
|
|
|
15,000
|
|
|
—
|
|
|
73,750
|
|
|||||||
Interest payments on debt payment obligations
|
911
|
|
|
1,723
|
|
|
1,043
|
|
|
532
|
|
|
125
|
|
|
—
|
|
|
4,334
|
|
|||||||
Total
|
$
|
4,595
|
|
|
$
|
11,092
|
|
|
$
|
42,915
|
|
|
$
|
12,069
|
|
|
$
|
15,422
|
|
|
$
|
53
|
|
|
$
|
86,146
|
|
|
Three Months Ended December 31,
|
|
Six Months Ended December 31,
|
||||||||||||
|
2013
|
|
2012
|
|
2013
|
|
2012
|
||||||||
|
(In thousands, except per share amounts)
|
||||||||||||||
Non-GAAP net income and comprehensive income
|
$
|
42,645
|
|
|
$
|
18,339
|
|
|
$
|
83,873
|
|
|
$
|
31,911
|
|
Non-GAAP diluted net income per share of common stock
|
$
|
0.48
|
|
|
$
|
0.20
|
|
|
$
|
0.94
|
|
|
$
|
0.35
|
|
|
Three Months Ended December 31,
|
|
Six Months Ended December 31,
|
||||||||||||
|
2013
|
|
2012
|
|
2013
|
|
2012
|
||||||||
|
(In thousands, except per
share amounts)
|
||||||||||||||
Net income and comprehensive income
|
$
|
41,792
|
|
|
$
|
17,803
|
|
|
$
|
82,320
|
|
|
$
|
30,982
|
|
Stock-based compensation:
|
|
|
|
|
|
|
|
||||||||
Cost of revenues
|
148
|
|
|
104
|
|
|
292
|
|
|
185
|
|
||||
Research and development
|
553
|
|
|
401
|
|
|
1,049
|
|
|
667
|
|
||||
Sales, general and administrative
|
721
|
|
|
388
|
|
|
1,248
|
|
|
697
|
|
||||
Tax effect of non-GAAP adjustments
|
(569
|
)
|
|
(357
|
)
|
|
(1,036
|
)
|
|
(620
|
)
|
||||
Non-GAAP net income and comprehensive income
|
$
|
42,645
|
|
|
$
|
18,339
|
|
|
$
|
83,873
|
|
|
$
|
31,911
|
|
Non-GAAP diluted net income per share of common stock
|
$
|
0.48
|
|
|
$
|
0.20
|
|
|
$
|
0.94
|
|
|
$
|
0.35
|
|
Weighted-average shares used in computing non-GAAP diluted net income per share of common stock
|
89,653
|
|
|
90,056
|
|
|
89,593
|
|
|
91,493
|
|
•
|
varying demand for our products due to the financial and operating condition of our distributors and their customers, distributor inventory management practices and general economic conditions;
|
•
|
shifts in our fulfillment practices including increasing inventory levels in attempt to decrease customer lead times;
|
•
|
inability of our contract manufacturers and suppliers to meet our demand;
|
•
|
success and timing of new product introductions by us and the performance of our products;
|
•
|
announcements by us or our competitors regarding products, promotions or other transactions;
|
•
|
lost sales due to the proliferation of counterfeit versions of our products;
|
•
|
costs related to the protection of our intellectual property rights, including defense against counterfeiting efforts;
|
•
|
costs related to responding to government inquiries related to regulatory compliance;
|
•
|
our ability to control and reduce product costs;
|
•
|
expenses of our entry into new markets, such as video surveillance microwave backhaul and machine-to-machine communications;
|
•
|
commencement of litigation or adverse results in litigation;
|
•
|
changes in the manner in which we sell products;
|
•
|
increased warranty costs;
|
•
|
volatility in foreign exchange rates, changes in interest rates and/or the availability and cost of financing or other working capital to our distributors and their customers;
|
•
|
the impact of write downs of excess and obsolete inventory; and
|
•
|
the impact of any provisions for doubtful accounts.
|
•
|
price and total cost of ownership and return on investment associated with the solutions;
|
•
|
simplicity of deployment and use of the solutions;
|
•
|
ability to rapidly develop high performance integrated solutions;
|
•
|
reliability and scalability of the solutions;
|
•
|
market awareness of a particular brand;
|
•
|
ability to provide secure access to wireless networks;
|
•
|
ability to offer a suite of products and solutions;
|
•
|
ability to allow centralized management of the solutions; and
|
•
|
ability to provide quality product support.
|
•
|
adversely affect our relationships with our current or future network operators and service providers or suppliers;
|
•
|
cause delays or stoppages in the shipment of our products, or cause us to modify or redesign our products;
|
•
|
cause us to incur significant expenses in defending claims brought against us, for which we may not be able to obtain indemnification, if applicable, from our suppliers;
|
•
|
divert management’s attention and resources;
|
•
|
subject us to significant damages or settlements;
|
•
|
require us to enter into settlements, royalty or licensing agreements on unfavorable terms; or
|
•
|
require us to cease certain activities.
|
•
|
assure the quality of our products;
|
•
|
manage capacity during periods of volatile demand;
|
•
|
qualify appropriate component suppliers;
|
•
|
ensure adequate supplies of materials;
|
•
|
protect our intellectual property rights;
|
•
|
deliver finished products at agreed upon prices and schedules; and
|
•
|
safeguard consigned materials and finished goods.
|
•
|
increasing our vulnerability to general economic and industry conditions;
|
•
|
requiring a substantial portion of cash flows from operations to be dedicated to the payment of principal and interest on our indebtedness, therefore reducing our ability to use our cash flows to fund our operations, capital expenditures and future business opportunities;
|
•
|
restricting us from making strategic acquisitions or causing us to make non-strategic divestitures;
|
•
|
limiting our ability to obtain additional financing for working capital, capital expenditures, debt service requirements, acquisitions and general corporate or other purposes; and
|
•
|
limiting our ability to adjust to changing market conditions and placing us at a competitive disadvantage compared to our competitors who are less highly leveraged.
|
•
|
the burdens of complying with a wide variety of U.S. laws applicable to export controls, foreign operations, foreign laws and different legal standards;
|
•
|
fluctuations in currency exchange rates;
|
•
|
unexpected changes in foreign regulatory requirements;
|
•
|
counterfeiting of our products or infringement on our intellectual property rights by third parties;
|
•
|
difficulties in managing the staffing of remote operations;
|
•
|
potentially adverse tax consequences, including the complexities of foreign value added tax systems, restrictions on the repatriation of earnings and changes in tax rates;
|
•
|
dependence on distributors in various countries with different pricing policies, inventory management and forecasting practices;
|
•
|
reduced or varied protection for intellectual property rights in some countries;
|
•
|
demand for reliable wireless broadband networks in those countries;
|
•
|
requirements that we comply with local telecommunication regulations in those countries;
|
•
|
increased financial accounting and reporting burdens and complexity;
|
•
|
political, social and economic instability in some jurisdictions; and
|
•
|
terrorist attacks and security concerns in general.
|
•
|
difficulties in integrating and managing the operations, technologies and products of the companies we acquire, particularly in light of our lean organizational structure;
|
•
|
diversion of our management’s attention from normal daily operation of our business;
|
•
|
our inability to maintain the key business relationships and the brand equity of the businesses we acquire;
|
•
|
our inability to retain key personnel of the acquired company, particularly in light of the demands we place on individual contributors;
|
•
|
uncertainty of entry into markets in which we have limited or no prior experience and in which competitors have stronger market positions;
|
•
|
our dependence on unfamiliar affiliates and partners of the companies we acquire;
|
•
|
insufficient revenues to offset our increased expenses associated with acquisitions;
|
•
|
our responsibility for the liabilities of the businesses we acquire, including those which we may not anticipate; and
|
•
|
our inability to maintain internal standards, controls, procedures and policies, particularly in light of our lean organizational structure.
|
Exhibit
Number
|
|
|
Incorporated by
Reference from Form
|
|
Incorporated by
Reference from Exhibit Number |
|
Date Filed
|
|
|
|
|
|
|
|
|
10.1
|
|
Aircraft Lease Agreement between Ubiquiti Networks, Inc. and RJP Manageco LLC, dated November 13, 2013.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
31.1
|
|
Certification of Principal Executive Officer Required Under Rule 13a-14(a) and 15d-14(a) of the Securities Exchange Act of 1934, as amended.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
31.2
|
|
Certification of Principal Financial Officer Required Under Rule 13a-14(a) and 15d-14(a) of the Securities Exchange Act of 1934, as amended.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
32.1
|
|
Certification of Principal Executive Officer and Principal Financial Officer Required Under Rule 13a-14(b) of the Securities Exchange Act of 1934, as amended, and 18 U.S.C. §1350.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
101.INS(1)
|
|
XBRL Instance Document
|
|
|
|
|
|
|
|
|
|
|
|
|
|
101.SCH(1)
|
|
XBRL Taxonomy Schema Linkbase Document
|
|
|
|
|
|
|
|
|
|
|
|
|
|
101.CAL(1)
|
|
XBRL Taxonomy Calculation Linkbase Document
|
|
|
|
|
|
|
|
|
|
|
|
|
|
101.DEF(1)
|
|
XBRL Taxonomy Definition Linkbase Document
|
|
|
|
|
|
|
|
|
|
|
|
|
|
101.LAB(1)
|
|
XBRL Taxonomy Labels Linkbase Document
|
|
|
|
|
|
|
|
|
|
|
|
|
|
101.PRE(1)
|
|
XBRL Taxonomy Presentation Linkbase Document
|
|
|
|
|
|
(1)
|
In accordance with Rule 406T of Regulation S-T, the information in these exhibits is furnished and deemed not filed or part of a registration statement or prospectus for purposes of sections 11 or 12 of the Securities Act of 1933, is deemed not filed for purposes of section 18 of the Exchange Act of 1934, and otherwise is not subject to liability under these sections.
|
|
|
|
UBIQUITI NETWORKS, INC.
|
||
|
|
|
|
|
|
Dated:
|
February 6, 2014
|
|
By:
|
|
/s/ Robert J. Pera
|
|
|
|
|
|
Robert J. Pera
|
|
|
|
|
|
|
|
|
|
|
|
Chief Executive Officer and Director
(Principal Executive Officer)
|
|
|
|
|
|
|
Dated:
|
February 6, 2014
|
|
By:
|
|
/s/ Craig L. Foster
|
|
|
|
|
|
Craig L. Foster
|
|
|
|
|
|
|
|
|
|
|
|
Chief Financial Officer
(Principal Financial Officer)
|
Exhibit
Number |
|
|
Incorporated by
Reference from Form |
|
Incorporated by
Reference from Exhibit Number |
|
Date Filed
|
|
|
|
|
|
|
|
|
10.1
|
|
Aircraft Lease Agreement between Ubiquiti Networks, Inc. and RJP Manageco LLC, dated November 13, 2013.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
31.1
|
|
Certification of Principal Executive Officer Required Under Rule 13a-14(a) and 15d-14(a) of the Securities Exchange Act of 1934, as amended.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
31.2
|
|
Certification of Principal Financial Officer Required Under Rule 13a-14(a) and 15d-14(a) of the Securities Exchange Act of 1934, as amended.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
32.1
|
|
Certification of Principal Executive Officer and Principal Financial Officer Required Under Rule 13a-14(b) of the Securities Exchange Act of 1934, as amended, and 18 U.S.C. §1350.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
101.INS(1)
|
|
XBRL Instance Document
|
|
|
|
|
|
|
|
|
|
|
|
|
|
101.SCH(1)
|
|
XBRL Taxonomy Schema Linkbase Document
|
|
|
|
|
|
|
|
|
|
|
|
|
|
101.CAL(1)
|
|
XBRL Taxonomy Calculation Linkbase Document
|
|
|
|
|
|
|
|
|
|
|
|
|
|
101.DEF(1)
|
|
XBRL Taxonomy Definition Linkbase Document
|
|
|
|
|
|
|
|
|
|
|
|
|
|
101.LAB(1)
|
|
XBRL Taxonomy Labels Linkbase Document
|
|
|
|
|
|
|
|
|
|
|
|
|
|
101.PRE(1)
|
|
XBRL Taxonomy Presentation Linkbase Document
|
|
|
|
|
|
(1)
|
In accordance with Rule 406T of Regulation S-T, the information in these exhibits is furnished and deemed not filed or part of a registration statement or prospectus for purposes of sections 11 or 12 of the Securities Act of 1933, is deemed not filed for purposes of section 18 of the Exchange Act of 1934, and otherwise is not subject to liability under these sections.
|
1.1
|
The following terms shall have the following meanings for all purposes of this Agreement:
|
(i)
|
loss of such property or of the use thereof due to theft or disappearance (with loss being conclusive following 30 days or such other period specified in applicable insurance), destruction, damage beyond economic repair or rendition of such property permanently unfit for normal use for any reason;
|
(ii)
|
any damage to such property which results in an insurance settlement with respect to such property on the basis of an actual, constructive or compromised total loss; or
|
(iii)
|
the condemnation, confiscation or seizure of, or requisition of title to or use of, such property by private persons or by any governmental or purported governmental authority.
|
2.1
|
Lease
. Lessor agrees to lease to Lessee, and Lessee agrees to lease from Lessor, the Aircraft, on the terms and conditions of this Agreement.
|
1.
|
Delivery
. The Aircraft shall be delivered to Lessee on a mutually agreed date (the "
Delivery Date
") at the Operating Base and "AS IS," "WHERE IS," AND SUBJECT TO EACH AND EVERY DISCLAIMER OF WARRANTY AND REPRESENTATION AS SET FORTH IN SECTION 4 HEREOF. Lessor shall not be liable for delay or failure to furnish the Aircraft pursuant to this Agreement when such failure is caused by government regulation or authority, mechanical difficulty, war, civil commotion, acts of terrorism, strikes or labor disputes, weather conditions, or acts of God.
|
2.3
|
Non-Exclusivity.
Lessee and Lessor acknowledge that the Aircraft is leased to Lessee on a non-exclusive basis, and that the Aircraft may be otherwise subject to lease to others during the Term, subject to reasonable notice. During any period which another lessee of Lessor or any other person or entity leasing an interest in the Aircraft has scheduled use of the Aircraft, Lessee’s leasehold rights to possession of the Aircraft under this Agreement shall temporarily abate, but all other provisions of this Agreement shall nevertheless continue in full force and effect.
|
3.1
|
Term
. This Agreement shall have a term of twelve (12) months from the Effective Date and shall continue thereafter on an annual basis unless terminated by Lessor or Lessee as provided herein. Either Lessor or Lessee may terminate this Lease at any time upon delivery of thirty (30) days prior written notice of termination to the other party.
|
3.2
|
Scheduling
. Lessee's use of the Aircraft during the Term of this Lease is non-exclusive. The parties agree as follows:
|
(i)
|
Use by Other Parties
. Lessor and Lessee agree that Lessor may Lease the Aircraft to one or more other lessees during the Term on a non-exclusive basis.
|
(ii)
|
Minimum Usage by Lessee
. Nothing contained herein shall obligate Lessee to any minimum usage of the Aircraft, it being understood and agreed that Lessee's usage shall be on an "as-needed" basis.
|
3.3
|
Rent
. Lessee shall pay rent in an amount equal to the Hourly Rent, specified in
Exhibit B
attached hereto for each Flight Hour of use by Lessee, which amount may be amended in writing by mutual agreement of the parties from time to time. All rent shall be paid to the Lessor in immediately available U.S. funds and in form and manner as the Lessor in its sole discretion may instruct Lessee from time to time.
|
4.1
|
“As Is” Condition
. THE AIRCRAFT IS BEING LEASED BY THE LESSOR TO THE LESSEE HEREUNDER ON A COMPLETELY "AS IS," "WHERE IS," BASIS, WHICH IS HEREBY ACKNOWLEDGED AND AGREED TO BY THE LESSEE.
|
4.2
|
No Lessor Representations
. LESSOR HAS NOT MADE AND SHALL NOT BE CONSIDERED OR DEEMED TO HAVE MADE (WHETHER BY VIRTUE OF HAVING LEASED THE AIRCRAFT UNDER THIS AGREEMENT, OR HAVING ACQUIRED THE AIRCRAFT, OR HAVING DONE OR FAILED TO DO ANY ACT, OR HAVING ACQUIRED OR FAILED TO ACQUIRE ANY STATUS UNDER OR IN RELATION TO THIS AGREEMENT OR OTHERWISE), ANY REPRESENTATION OR WARRANTY OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO THE AIRCRAFT OR TO ANY PART THEREOF.
|
4.3
|
Lessor’s Disclaimers
. LESSOR SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY ARISING FROM A COURSE OF PERFORMANCE OR DEALING OR USAGE OF TRADE, WITH RESPECT TO THE AIRCRAFT OR ANY PART THEREOF, INCLUDING AS TO THE TITLE, AIRWORTHINESS, VALUE, CONDITION, DESIGN, MERCHANTABILITY, COMPLIANCE WITH SPECIFICATIONS, CONSTRUCTION, CONDITION OF THE AIRCRAFT, OR FITNESS FOR A PARTICULAR PURPOSE OR USE OF THE AIRCRAFT. FURTHER, LESSOR DISCLAIMS AS TO THE ABSENCE OF LATENT AND OTHER DEFECTS, WHETHER OR NOT DISCOVERABLE, AS TO THE ABSENCE OF ANY INFRINGEMENT OR THE LIKE HEREUNDER OF ANY PATENT, TRADEMARK, OR COPYRIGHT, AS TO THE ABSENCE OF OBLIGATIONS BASED ON STRICT LIABILITY IN TORT, OR AS TO THE QUALITY OF THE MATERIAL OR WORKMANSHIP OF THE AIRCRAFT OR ANY PART THEREOF.
|
4.4
|
Lessee’s Waiver and Release
. THE LESSEE HEREBY WAIVES, RELEASES, DISCLAIMS AND RENOUNCES ALL EXPECTATION OF OR RELIANCE UPON ANY SUCH WARRANTIES, OBLIGATIONS, OR LIABILITIES OF LESSOR AND RIGHTS, CLAIMS AND REMEDIES OF THE LESSEE AGAINST LESSOR, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, INCLUDING BUT NOT LIMITED TO (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY OF FITNESS FOR ANY PARTICULAR USE OR PURPOSE, (B) ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE, (C) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM, OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF LESSOR, ACTUAL OR IMPUTED, AND (D) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR LOSS OF OR DAMAGE TO THE AIRCRAFT, FOR LOSS OF USE, REVENUE OR PROFIT WITH RESPECT TO THE AIRCRAFT, OR FOR ANY OTHER DIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES.
|
5.1
|
Title and Registration; Subordination
. Lessor has title to the Aircraft. Lessee acknowledges that title to the Aircraft shall remain vested in Lessor and Lessee undertakes, to the extent permitted by Applicable Law, to do all such further acts, deeds, assurances, or things as may, (i) in the reasonable opinion of the Lessor, be necessary or desirable in order to protect or preserve title to the Aircraft and (ii) in the reasonable opinion of the Lessor, be necessary or desirable in order to protect or preserve Lessor’s rights in the Aircraft or hereunder. Notwithstanding anything in this Agreement to the
|
5.2
|
Use and Operation of the Aircraft
. Except as otherwise expressly provided herein, Lessor shall be solely and exclusively responsible for the use, operation and control of the Aircraft during the Term of this Agreement. Lessee (i) shall operate the Aircraft in accordance with the provisions of Part 91 of the FAR, (ii) shall not operate the Aircraft in commercial service, as a common carrier, or otherwise on a compensatory or "for hire" basis except to the limited extent permitted under Subpart F of Part 91 of the FAR, if applicable, (iii) shall not operate or locate the Airframe or any Engine, or suffer the Airframe or any Engine to be operated or located, in any area excluded from coverage by any insurance policy in effect or required to be maintained hereunder with respect to the Airframe or Engines, or in any war zone, (iv) shall not operate the Airframe or any Engine or permit the Airframe or any Engine to be operated during the Term except in operations for which Lessee is duly authorized, or use or permit the Aircraft to be used for a purpose for which the Aircraft is not designed or reasonably suitable, (v) shall not permit the Airframe or any Engine to be maintained, used or operated during the Term in violation of any Applicable Law, or contrary to any manufacturer's operating manuals or instructions, and (vi) shall not knowingly permit the Aircraft to be used for the carriage of any persons or property prohibited by law, nor knowingly permit the Aircraft to be used during the existence of any known defect except in accordance with the FAR.
|
5.3
|
Lessee to Pay All Operating Costs
. Lessee shall arrange for and pay all operating costs associated with Lessee’s use of the Aircraft incurred during the Term, including, without limitation, costs of pilots, cabin personnel, mechanics, and other ground support personnel (the foregoing collectively, the "
Flight Crew
"); landing and navigation fees; airport charges; passenger service and any and all other expenses of any kind or nature, arising directly or indirectly in connection with, or related to the use, movement or operation of the Aircraft by Lessee during the Term. Lessee’s obligation hereunder shall not include fuel, oil, or lubricants. The obligations of Lessee under this provision shall survive the end of the Term.
|
5.4
|
Maintenance of Aircraft
. Lessor agrees to maintain and to deliver the Aircraft to Lessee in a good and airworthy operating condition and in compliance with applicable maintenance standards and practices. Lessee shall thereafter be solely responsible for any repairs or maintenance of the Aircraft that shall be required during the term of this Agreement associated with Lessee’s use, movement or operation of the Aircraft. The term "repairs" shall include all necessary service, repairs, tests, and maintenance of the Aircraft as appropriate to maintain the Aircraft in accordance with Applicable Law. During its operation of the Aircraft, Lessee shall maintain or cause to be maintained all Aircraft Documents required by the FAA, the Airframe manufacturer, the Engine manufacturer, and the manufacturers of component Parts, and said Aircraft Documents shall be maintained in a current, accurate, and complete manner and shall be available at all reasonable times for examination and inspection by Lessor. Lessee also agrees to use its best efforts promptly to furnish Lessor such information with respect to its use of the Aircraft as shall be required to enable Lessor to maintain all Aircraft Documents, and to file all reports required by any government authority relating to Lessor’s interest in the Aircraft. Lessor shall have no expense or liability for repair or maintenance delays and shall not be liable to Lessee for any damage from loss of profit or loss of use of Aircraft, either before or after delivery of Aircraft to Lessee.
|
5.5
|
Flight Crew
. Lessee shall locate and retain (either through direct employment or contracting with an independent contractor for flight services) a properly qualified Flight Crew. All members of the Flight Crew shall be fully competent and experienced, duly licensed, and qualified in accordance with the requirements of Applicable Law and all insurance policies covering the Aircraft. All members of the Flight Crew who are pilots shall be fully trained in accordance with an FAA-approved training program, including initial and recurrent training and, where appropriate, contractor-provided simulator training.
|
5.6
|
Operational Control.
THE PARTIES EXPRESSLY AGREE THAT LESSEE SHALL AT ALL TIMES WHILE OPERATING THE AIRCRAFT DURING THE TERM MAINTAIN OPERATIONAL CONTROL OF THE AIRCRAFT, AND THAT THE INTENT OF THE PARTIES IS THAT THIS AGREEMENT CONSTITUTE A "DRY" OPERATING LEASE. Lessee shall exercise exclusive authority over initiating, conducting, or terminating any flight conducted pursuant to this Agreement, and the Flight Crew shall be under the exclusive command and control of Lessee in all phases of such flights.
|
5.7
|
Authority of Pilot in Command.
Notwithstanding that Lessee shall have operational control of the Aircraft during any flight conducted pursuant to this Agreement, Lessor and Lessee expressly agree that the Pilot in Command, in his or her sole discretion, may terminate any flight, refuse to commence any flight, or take any other flight-related action which in the judgment of the Pilot in Command is necessitated by considerations of safety. The Pilot in Command shall have final and complete authority to postpone or cancel any flight for any reason or condition, which in his or her judgment would compromise the safety of the flight. No such action of the Pilot in Command shall create or support any liability for loss, injury, damage or delay to Lessor.
|
5.8
|
Right to Inspect
. Lessor and its agents shall have the right to inspect the Aircraft or the Aircraft Documents at any reasonable time, upon giving Lessee reasonable notice, to ascertain the condition of the Aircraft and to satisfy Lessor that the Aircraft is being properly repaired and maintained in accordance with the requirements of this Agreement. All required repairs shall be performed as soon as practicable after such inspection.
|
5.9
|
Aircraft Documents
. Lessee shall, at its expense, for all periods during which Lessee is operating the Aircraft, maintain and preserve, or cause to be maintained and preserved, in the English language, all Aircraft Documents in a complete, accurate, and up-to-date manner.
|
6.1
|
Return
. Upon Lessee’s return of the Aircraft to Lessor from time to time during the Term, or upon the date of termination of this Agreement, Lessee shall return the Aircraft to the Lessor by delivering the same, at the Lessee’s own risk and expense, to the Operating Base, fully equipped with all Engines installed thereon. The Aircraft at the time of its return shall be in the condition set forth in this Section 6 and shall be free and clear of all Liens.
|
6.2
|
Condition of Aircraft
. The Aircraft at the time of its return to Lessor shall have been maintained and repaired in accordance with the provisions of this Agreement with the same care and consideration for the technical condition of the Aircraft as if it were to have been kept in continued regular service by the Lessee, and shall meet the following requirements:
|
(a)
|
Operating Condition
. The Aircraft shall be in as good operating condition as on the Delivery Date, ordinary wear and tear excepted.
|
(b)
|
Cleanliness Standards
. The Aircraft shall be clean and free of debris and any personal property of the Lessee.
|
(c)
|
Certificate of Airworthiness
. The Aircraft shall have, and be in compliance with, a current valid certificate of airworthiness issued by the FAA, and shall be airworthy according to manufacturer's specifications and FAA regulations.
|
6.3
|
Aircraft Documents
. Lessee shall deliver, or cause to be delivered to Lessor, at the time the Aircraft is returned to Lessor, all of the Aircraft Documents, updated and maintained by Lessee, or on behalf of Lessee, through the date of return of the Aircraft.
|
7.1
|
Lessee shall ensure that no Liens are created or placed against the Aircraft by Lessee or third parties as a result of Lessee’s actions. Lessee shall notify Lessor promptly upon learning of any Liens not permitted by these terms. Lessee shall, at its own cost and expense, take all such actions as may be necessary to discharge and satisfy in full any such Lien promptly after the same becomes known to it. Lessee shall pay all charges related to the Aircraft as they become due and payable.
|
8.1
|
Liability; Lessee as Additional Insured.
Lessor shall maintain, or cause to be maintained, bodily injury and property damage, liability insurance in an amount no less than the amount outlined on
Exhibit “A
,” and with the coverage described on
Exhibit “D”
attached hereto. Combined Single Limit for the benefit of itself, Lessee, and Lessor, in connection with the use of the Aircraft. Said policy shall be an occurrence policy, naming Lessee, and its Officers, Directors, employees, agents, and guests as an Additional Named Insured.
|
8.2
|
Hull.
Lessor shall maintain, or cause to be maintained, all risks aircraft hull insurance in an amount equal to the fair market value of the Aircraft, which the parties agree is not less than the amount outlined on
Exhibit “A
,” and with the coverage described on
Exhibit “D”
attached hereto, and such insurance shall name Lessor and Lessee as loss payees as their interests may appear.
|
8.3
|
Insurance Certificates.
Lessor will provide Lessee with a Certificate of Insurance upon execution of this Agreement.
|
1.
|
Upon the occurrence of any failure of Lessee to duly observe or perform any of its obligations hereunder and at any time thereafter so long as the same shall be continuing, the Lessor may, at its option, declare in writing to the Lessee that this Agreement is in default; and at any time thereafter, so long as the Lessee shall not have remedied the outstanding default within five (5) days of such written notice, the Lessor may cancel, terminate, or rescind this Agreement.
|
10.1
|
All communications, declarations, demands, consents, directions, approvals, instructions, requests and notices required or permitted by this Agreement shall be in writing and shall be deemed to have been duly given or made when delivered personally or transmitted electronically by e-mail or facsimile, receipt acknowledged, or in the case of documented overnight delivery service or registered
|
1.
|
Risk of Loss.
At all times during Lessee’s operation of the Aircraft during the Term, Lessee shall bear the risk of (i) damage to the Aircraft, or (ii) an Event of Loss to the Aircraft, to the extent such damage or Event of Loss arises from Lessee’s use, operation, or storage of the Aircraft. Notwithstanding the foregoing, Lessee shall not bear the risk of damage to the Aircraft, or an Event of Loss to the Aircraft, which arises out of Lessor’s failure to maintain the Aircraft, or otherwise provide the Aircraft to Lessee in the condition required under this Agreement. In the event of damage to the Aircraft, or an Event of Loss to the Aircraft, Lessee shall immediately (i) report the damage and/or Event of Loss to Lessor, the insurance company or companies, and to any and all applicable governmental agencies, and (ii) furnish such information and execute such documents as may be required and necessary to collect the proceeds from any insurance policies.
|
11.2
|
Limitation of Liability.
Each party to this Agreement agrees to defend, indemnify, and hold harmless the other party and its respective officers, directors, members, managers, partners, employees, shareholders, and affiliates from any claim, damage, loss, or reasonable expense, including any insurance deductible, reasonable attorney’s fees resulting from the bodily injury or property damage caused by an occurrence and arising out of the ownership, maintenance, or use of the Aircraft which results from the gross negligence or willful misconduct of such party, provided that neither party shall be liable for any such loss to the extent: (a) such loss is covered through the payment of insurance proceeds from the insurance policies described in Section 8
,
(b) such loss is covered by such policies, but the amount of such loss exceeds the policy limits; or (c) such loss consists of expenses incurred in connection with any loss covered, in whole or in part, by the insurance policies in effect, but such expenses are not payable under the insurance policies in effect, excluding any insurance deductibles.
|
12.1
|
Lessee shall report and pay promptly all Taxes arising from Lessee’s lease of the Aircraft under this Agreement. Lessee shall promptly reimburse (on an after tax basis) Lessor for any Taxes charged to or assessed against Lessor. Lessee shall show Lessor as the Lessor of the Aircraft on all tax reports or returns, and send Lessor a copy of each report or return and evidence of Lessees payment of Taxes upon request.
|
12.2
|
If any taxing authority requires that a tax required to be paid by Lessee hereunder be paid to the taxing authority directly by Lessor, including the Commercial Transportation Tax, Lessee shall, within thirty (30) days of his receipt of written notice from Lessor, pay to Lessor the amount of such tax, unless such tax is being contested pursuant to Section 12.3.
|
12.3
|
Lessor hereby acknowledges and agrees that Lessee may, from time to time, pursue refunds of any Taxes that Lessee is required to pay, to or on behalf of Lessor or otherwise, hereunder. Lessor agrees to fully cooperate in the process of obtaining such refunds, which may require the submission of claims for refund by Lessor in Lessor’s own name. Upon receipt of any such refund, Lessor agrees to immediately pay the amount of such refund to Lessee. In connection with any such refund pursuit by Lessee under the circumstances described above, (i) Lessor shall not be required to take any action pursuant thereto unless Lessor, in its sole discretion, determines there exists a reasonable basis in law and/or fact so to do, and (ii) in any event, Lessee hereby agrees to indemnify Lessor for any liability or loss which Lessor may incur as a result of or in any way relating to such contest or related proceeding and agrees to pay Lessor on demand all costs and expenses, including attorneys' fees, incurred by or on behalf of Lessor in connection with such contest/pursuit.
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12.4
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Notwithstanding the foregoing, the term “Taxes” shall not include Taxes to the extent they are (1) taxes imposed by the United States of America or any state or political subdivision thereof which are on or measured by the gross or net income of Lessor; (2) in the nature of franchise or conduct or business taxes imposed on Lessor; (3) the result of Lessor’s own bankruptcy or any act on the part of Lessor in contravention of the provisions of this Lease or any failure of Lessor to observe the provisions of this Lease; (4) imposed as a result of any voluntary sale, assignment, transfer, or other disposition by Lessor of any interest in the Aircraft, unless such transfer or disposition occurs during the existence of default under this Agreement, in which case, Lessor agrees to use commercially reasonably efforts to minimize any adverse tax consequences related to such disposition; (5) so long as no default under this Agreement shall have occurred and be continuing, any personal property taxes imposed with respect to the Aircraft; (6) imposed solely as a result of a transaction which is unrelated to the transactions contemplated under this Agreement; (7) interest or penalties resulting from Lessor’s failure to file timely and proper tax returns unless such failure is a result of Lessee’s failure to provide Lessor in a timely manner with the information needed to pay such Taxes; or (8) a result of the willful misconduct or gross negligence of Lessor.
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12.5
|
For purposes of this Section 12, all references to “Lessor” shall be deemed to include any assignee of Lessor.
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12.6
|
Lessee shall also be liable for and shall pay any and all fees for licenses, registrations, permits, and other certificates as may be required for the lawful operation of the Aircraft and as applicable to the
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12.7
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Lessee hereby agrees to reimburse Lessor for any amount paid by Lessor on behalf of Lessee or otherwise for any of Lessee’s obligations under this Section 12 within thirty (30) days after Lessee’s receipt of a written demand for such reimbursement from Lessor together with supporting invoices relating to such payments.
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13.1
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Entire Agreement.
This Agreement, and all terms, conditions, warranties, and representations herein, are for the sole and exclusive benefit of the signatories hereto. This Agreement constitutes the entire agreement of the parties as of its Effective Date and supersedes all prior or independent, oral or written agreements, understandings, statements, representations, commitments, promises, and warranties made with respect to the subject matter of this Agreement.
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13.2
|
Other Transactions.
Except as specifically provided in this Agreement, none of the provisions of this Agreement, nor any oral or written statements, representations, commitments, promises, or warranties made with respect to the subject matter of this Agreement shall be construed or relied upon by any party as the basis of, consideration for, or inducement to engage in, any separate agreement, transaction or commitment for any purpose whatsoever.
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13.3
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Prohibited and Unenforceable Provisions.
Any provision of this Agreement, which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibitions or unenforceability in any jurisdiction. To the extent permitted by applicable law, each of Lessor and Lessee hereby waives any provision of applicable law which renders any provision hereof prohibited or unenforceable in any respect.
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13.4
|
Enforcement.
This Agreement, including all agreements, covenants, representations and warranties, shall be binding upon and inure to the benefit of, and may be enforced by Lessor, Lessee, and each of their agents, servants and personal representatives.
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13.5
|
Headings.
The section and subsection headings in this Agreement are for convenience of reference only and shall not modify, define, expand, or limit any of the terms or provisions hereof.
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13.6
|
Counterparts.
This Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute but one and the same instrument.
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13.7
|
Amendments.
No term or provision of this Agreement may be amended, changed, waived, discharged, or terminated orally, but only by an instrument in writing signed by the party against which the enforcement of the change, waiver, discharge, or termination is sought.
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13.8
|
No Waiver.
No delay or omission in the exercise or enforcement or any right or remedy hereunder by either party shall be construed as a waiver of such right or remedy. All remedies, rights, undertakings, obligations, and agreements contained herein shall be cumulative and not mutually exclusive, and in addition to all other rights and remedies which either party possesses at law or in equity.
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13.9
|
No Assignments.
Neither party may assign its rights or obligations under this Agreement without the prior written permission of the other.
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13.10
|
Governing Law.
This Agreement shall in all respects be governed by, and construed in accordance with, the laws of the state designated in
Exhibit A
, including all matters of construction, validity and performance, without giving effect to its conflict of laws provisions.
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13.11
|
Truth In Leasing.
|
AVIATION LIABILITY
COVERAGES
|
POLICY LIMITS
BUT NOT LESS THAN
|
Liability for Scheduled Aircraft, Including War Risks
*Note: certain aircraft must carry minimum liability limits including war risks based on the maximum takeoff weight of the aircraft. This is a requirement of the EU member countries in order to overfly or land in those areas.
|
$150,000,000 BI/PD each occurrence for aircraft with 9 or fewer passenger seats, or $200,000,000 BI/PD each occurrence (or higher if necessary to meet EU requirements) for aircraft with 10 or more passenger seats*
* War risks liability limit for passengers is same as applicable liability limit above. A sublimit of $50,000,000 per occurrence for bodily injury to persons and property damage automatically applies with respect to war liability to non-passengers.
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Liability for Use of Non-Owned Aircraft, Including War Risks
|
Up to 40 non-crew seats
Not less than the policy limit set forth above for Scheduled Aircraft.*
*
Same terms and conditions regarding war risk and liability limits as above.
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Liability for Physical Damage to Non-Owned Aircraft
|
$50,000,000 each aircraft/each occurrence
|
Host Liquor Liability
|
Not less than the policy limit set forth above for Scheduled Aircraft
|
Liability Assumed Under Written Contractual Agreements
|
Not less than the policy limit set forth above for Scheduled Aircraft
|
Liability for Personal Injury
|
$25,000,000 each occurrence/aggregate
|
Voluntary Settlement, Including Passengers and Flight Crew
|
$500,000 each person x maximum seats
|
Voluntary Settlement for Non-Owned Aircraft, Including Passengers and Flight Crew employed by Solairus Aviation.
|
$500,000 each person x maximum seats
|
Medical Payments for Scheduled and Non-Owned Aircraft
|
$50,000 each person
|
Cargo Liability
|
$1,000,000 each occurrence
|
Liability for Personal Effects & Baggage
|
$500,000 each passenger/each occurrence
$500,000 each crew member/each occurrence
|
Liability for Property Damage to Non-Owned Hangars and Contents
|
$10,000,000 aggregate
|
Products Liability for Sale of Owned Aircraft or Parts
|
Not less than the policy limit set forth above for Scheduled Aircraft.
|
Mexican Liability Insurance
|
Statutory Limits required by Mexico
|
AIRCRAFT PHYSICAL DAMAGE
COVERAGES
|
POLICY LIMITS
BUT NOT LESS THAN
|
All-Risks Aircraft Physical Damage for Scheduled Aircraft (Including War Risks/Confiscation)
|
$18,000,000.00
|
Automatic Insurance for Increased Value of Scheduled Aircraft
|
Actual Amount Paid
|
Spare Engines and Spare Parts
|
$6,000,000 maximum any one loss
|
Extra Expenses Resulting from Covered Loss:
Temporary Substitute Aircraft
Temporary Replacement Parts
|
NIL per day/$2,000,000 per occurrence (180 days maximum)
$500,000 per occurrence
|
Trip Interruption Expense (arising from covered loss)
|
$75,000 each passenger any one occurrence
$75,000 each crew member any one occurrence
|
Search and Rescue Expense
|
$1,000,000 any one occurrence
|
Runway Foaming & Crash Control Expense
|
$1,000,000 any one occurrence
|
Emergency Landing
|
Cost to transport
|
OTHER PROVISIONS
|
|
Reciprocal Breach of Warranty/Invalidation of Interest
|
Coverage for one insured party will not be voided or invalidated by any act or neglect of another insured party under the policy, provided no knowing consent or prior knowledge that such action would void coverage.
|
Loss Payable Payee for Hull claims
|
Loss payment claim reimbursements will be paid to Solairus Aviation, Lessor, and Lessee, and any lienholder, as their interest may appear
|
Purpose of Use
|
Any use (including passenger carrying for a charge)
|
|
|
Territory
|
Worldwide
|
Notice of Cancellation
|
90 days (10 days for non-payment of premium) except for Agreement termination (up to 15 days as mutually agreed). War risk per the policy in effect at the time.
|
•
|
Deductibles: Nil unless specifically indicated.
|
1.
|
Mail a copy of the Lease to the following address via certified mail, return receipt requested immediately upon the execution of the Lease: (14 C.F.R. 91.23 requires that the copy be sent within twenty four hours after it is signed.)
|
2.
|
Telephone (or fax) the nearest Flight Standards District Office at least forty-eight hours prior to the first flight under this Lease.
|
3.
|
Carry a copy of the Lease in the Aircraft at all times.
|
|
|
Date:
|
February 6, 2014
|
|
|
|
/s/ Robert J. Pera
|
|
Robert J. Pera
Chief Executive Officer and Director
(Principal Executive Officer)
|
|
|
Date:
|
February 6, 2014
|
|
|
/s/ Craig L. Foster
|
|
Craig L. Foster
Chief Financial Officer
(Principal Financial Officer)
|
|
|
|
By:
|
|
/s/ Robert J. Pera
|
Name:
|
|
Robert J. Pera
|
Title:
|
|
Chief Executive Officer and Director
(Principal Executive Officer)
|
|
|
|
By:
|
|
/s/ Craig L. Foster
|
Name:
|
|
Craig L. Foster
|
Title:
|
|
Chief Financial Officer
(Principal Financial Officer)
|