UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 10-K
(Mark One)
þ | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the fiscal year ended December 31, 2011
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 No. 001-33202
UNDER ARMOUR, INC.
(Exact name of registrant as specified in its charter)
Maryland | 52-1990078 | |
(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) | |
1020 Hull Street Baltimore, Maryland 21230 |
(410) 454-6428 | |
(Address of principal executive offices) (Zip Code) | (Registrants Telephone Number, Including Area Code) |
Securities registered pursuant to Section 12(b) of the Act:
Class A Common Stock | New York Stock Exchange | |
(Title of each class) | (Name of each exchange on which registered) |
Securities registered pursuant to Section 12(g) of the Act:
None
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes þ No ¨
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes ¨ No þ
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 þ 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 (§229.405 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 þ No ¨
Indicate by check mark if the disclosure of delinquent filers pursuant to Item 405 or Regulation S-K (§229.405 of this chapter) is not contained herein, and will not be contained, to the best of registrants knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. ¨
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 definitions of large accelerated filer, accelerated filer, and smaller reporting company in Rule 12b-2 of the Exchange Act.
Large accelerated filer þ | Accelerated filer ¨ | |||
Non-accelerated filer ¨ (Do not check if a smaller reporting company) | Smaller reporting company ¨ |
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act). Yes ¨ No þ
As of June 30, 2011, the last business day of our most recently completed second fiscal quarter, the aggregate market value of the registrants Class A Common Stock held by non-affiliates was $2,854,001,980.
As of January 31, 2012, there were 40,515,652 shares of Class A Common Stock and 11,250,000 shares of Class B Convertible Common Stock outstanding.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of Under Armour, Inc.s Proxy Statement for the Annual Meeting of Stockholders to be held on May 1, 2012 are incorporated by reference in Part III of this Form 10-K.
ANNUAL REPORT ON FORM 10-K
TABLE OF CONTENTS
ITEM 1. | BUSINESS |
Our principal business activities are the development, marketing and distribution of branded performance apparel, footwear and accessories for men, women and youth. The brands moisture-wicking fabrications are engineered in many designs and styles for wear in nearly every climate to provide a performance alternative to traditional products. Our products are sold worldwide and are worn by athletes at all levels, from youth to professional, on playing fields around the globe, as well as by consumers with active lifestyles.
Our net revenues are generated primarily from the wholesale distribution of our products to national, regional, independent and specialty retailers. We also generate net revenue from product licensing and from the sale of our products through our direct to consumer sales channel, which includes sales through our factory house and specialty stores and websites. Our products are offered in over twenty five thousand retail stores worldwide. A large majority of our products are sold in North America; however we believe that our products appeal to athletes and consumers with active lifestyles around the globe. Internationally, we sell our products in certain countries in Europe, a third party licensee sells our products in Japan, and distributors sell our products in other foreign countries. In addition, we opened our first store in China in 2011. We plan to continue to grow our business over the long term through increased sales of our apparel, footwear and accessories, expansion of our wholesale distribution, growth in our direct to consumer sales channel and expansion in international markets. Virtually all of our products are manufactured by unaffiliated manufacturers operating in 16 countries outside of the United States.
We were incorporated as a Maryland corporation in 1996. As used in this report, the terms we, our, us, Under Armour and the Company refer to Under Armour, Inc. and its subsidiaries unless the context indicates otherwise. We have registered trademarks around the globe, including UNDER ARMOUR®, HEATGEAR®, COLDGEAR®, ALLSEASONGEAR® and the Under Armour UA Logo, and we have applied to register many other trademarks. This Annual Report on Form 10-K also contains additional trademarks and tradenames of our Company. All trademarks and tradenames appearing in this Annual Report on Form 10-K are the property of their respective holders.
Our product offerings consist of apparel, footwear and accessories for men, women and youth. We market our products at multiple price levels and provide consumers with products that we believe are a superior alternative to traditional athletic products. In 2011, sales of apparel, footwear and accessories represented 76%, 12% and 9% of net revenues, respectively. Licensing arrangements for the sale of our products represented the remaining 3% of net revenues. Refer to Note 16 to the Consolidated Financial Statements for net revenues by product.
Apparel
Our apparel is offered in a variety of styles and fits intended to enhance comfort and mobility, regulate body temperature and improve performance regardless of weather conditions. Our apparel is engineered to replace traditional non-performance fabrics in the world of athletics and fitness with performance alternatives designed and merchandised along gearlines. Our three gearlines are marketed to tell a very simple story about our highly technical products and extend across the sporting goods, outdoor and active lifestyle markets. We market our apparel for consumers to choose HEATGEAR® when it is hot, COLDGEAR® when it is cold and ALLSEASONGEAR® between the extremes. Within each gearline our apparel comes in three primary fit types: compression (tight fit), fitted (athletic fit) and loose (relaxed).
1
HEATGEAR® is designed to be worn in warm to hot temperatures under equipment or as a single layer. Our first compression T-shirt was the original HEATGEAR® product and remains one of our signature styles. While a sweat-soaked traditional non-performance T-shirt can weigh two to three pounds, HEATGEAR® is engineered with a microfiber blend designed to wick moisture from the body which helps the body stay cool, dry and light. We offer HEATGEAR® in a variety of tops and bottoms in a broad array of colors and styles for wear in the gym or outside in warm weather.
Because athletes sweat in cold weather as well as in the heat, COLDGEAR® is designed to wick moisture from the body while circulating body heat from hot spots to help maintain core body temperature. Our COLDGEAR® apparel provides both dryness and warmth in a single light layer that can be worn beneath a jersey, uniform, protective gear or ski-vest, and our COLDGEAR® outerwear products protect the athlete, as well as the coach and the fan from the outside in. Our COLDGEAR® products generally sell at higher prices than our other gearlines.
ALLSEASONGEAR® is designed to be worn in changing temperatures and uses technical fabrics to keep the wearer cool and dry in warmer temperatures while preventing a chill in cooler temperatures.
Footwear
We began offering footwear for men, women and youth in 2006, and each year we have expanded our footwear offerings. Our footwear offerings include football, baseball, lacrosse, softball and soccer cleats, slides, performance training footwear, running footwear, basketball footwear and new in 2011, hunting boots. Our footwear is light, breathable and built with performance attributes for athletes. Our footwear is designed with innovative technologies which provide stabilization, directional cushioning and moisture management engineered to maximize the athletes comfort and control.
Accessories
During 2011, we began selling hats and bags in house. Previously these products were sold by one of our licensees. In addition, our accessories include baseball batting, football, golf and running gloves. Our accessories include HEATGEAR® and COLDGEAR® technologies and are designed with advanced fabrications to provide the same level of performance as our other products. Net revenues generated from the sale of gloves, and beginning in 2011, from the sale of hats and bags, are included in our accessories category.
We also have agreements with our licensees to develop Under Armour accessories. Our product, marketing and sales teams are actively involved in all steps of the design process in order to maintain brand standards and consistency. During 2011, our licensees offered socks, team uniforms, baby and kids apparel, eyewear and custom-molded mouth guards that feature performance advantages and functionality similar to our other product offerings. License revenues generated from the sale of these accessories are included in our net revenues.
We currently focus on marketing and selling our products to consumers primarily for use in athletics, fitness, training and outdoor activities. We seek to drive consumer demand by building brand equity and awareness that our products deliver advantages that help athletes perform better.
Sports Marketing
Our marketing and promotion strategy begins with selling our products to high-performing athletes and teams on the high school, collegiate and professional levels. We execute this strategy through outfitting agreements, professional and collegiate sponsorships, individual athlete agreements and by selling our products directly to team equipment managers and to individual athletes. As a result, our products are seen on the field,
2
giving them exposure to various consumer audiences through the internet, television, magazines and live at sporting events. This exposure to consumers helps us establish on-field authenticity as consumers can see our products being worn by high-performing athletes.
We are the official outfitter of athletic teams in several high-profile collegiate conferences, and since 2006 we have been an official supplier of footwear to the National Football League (NFL). In 2010, we signed an agreement to become an official supplier of gloves to the NFL beginning in 2011 and we are the official combine scouting partner to the NFL with the right to sell combine training apparel beginning in 2012. In addition, in 2011 we became the Official Performance Footwear Supplier of Major League Baseball, as well as becoming a partner with the National Basketball Association (NBA) which allows us to market our NBA athletes in game uniforms in connection with our basketball footwear starting with the 2011/2012 season.
Internationally, we are selling our products to European soccer and rugby teams. Beginning with the 2012 season, we will provide the Tottenham Hotspur Football Club with performance apparel, including training wear and playing kit for the Clubs First and Academy teams, together with replica product for the Clubs supporters around the world. Were the official technical kit supplier to the Welsh Rugby Union and have exclusive retail rights on the replica products.
We also seek to sponsor events to drive awareness and brand authenticity from a grassroots level. We host combines, camps and clinics for many sports at regional sites across the country for male and female athletes. These events, along with the products we make, are designed to help young athletes improve their training methods and their overall performance. We are also the title sponsor of a collection of high school All-America Games that create significant on-field product and brand exposure that contributes to our on-field authenticity.
Media
We feature our products in a variety of national digital, broadcast, and print media outlets. We also utilize social marketing to engage consumers and promote conversation around our brand and our products. In 2011, we significantly grew our fan base via social sites like Facebook and Twitter, surpassing the million-fan mark and bringing attention to our most compelling brand stories.
Retail Presentation
The primary component of our retail marketing strategy is to increase and brand floor space dedicated to our products within our major retail accounts. The design and funding of Under Armour concept shops within our major retail accounts has been a key initiative for securing prime floor space, educating the consumer and creating an exciting environment for the consumer to experience our brand. Under Armour concept shops enhance our brands presentation within our major retail accounts with a shop-in-shop approach, using dedicated floor space exclusively for our products, including flooring, lighting, walls, displays and images.
The majority of our sales are generated through wholesale channels which include independent and specialty retailers, institutional athletic departments, leagues and teams, national and regional sporting goods chains and department store chains. In addition, we sell our products to independent distributors in various countries where we generally do not have direct sales operations and through licensees. Our products are offered in over twenty five thousand retail stores worldwide.
We also sell our products directly to consumers through our own network of specialty and factory house stores in our North American Operating Segment, and through our website operations in the United States, Canada and certain countries in Europe. These factory house stores serve an important role in our overall inventory management by allowing us to sell a significant portion of excess, discontinued and out-of-season
3
products while maintaining the integrity of our brand. Through our specialty stores, consumers experience our brand first-hand and have broader access to our performance products. In 2011, sales through our wholesale, direct to consumer and licensing channels represented 70%, 27% and 3% of net revenues, respectively.
We operate in four geographic segments: (1) North America, (2) Europe, the Middle East and Africa (EMEA), (3) Asia, and (4) Latin America. Each geographic segment operates predominantly in one industry: the design, development, marketing and distribution of performance apparel, footwear and accessories. While our international operating segments are currently not material and we combine them into other foreign countries for reporting purposes, we believe that the trend toward performance products is global. We plan to continue to introduce our products and simple merchandising story to athletes throughout the world. We are introducing our performance apparel, footwear and accessories in a manner consistent with our past brand-building strategy, including selling our products directly to teams and individual athletes in these markets, thereby providing us with product exposure to broad audiences of potential consumers. The following table presents net sales to unrelated entities and approximate percentages of net revenues by geographic distribution for each of the years ending December 31, 2011, 2010 and 2009:
Year ended December 31, | ||||||||||||||||||||||||
2011 | 2010 | 2009 | ||||||||||||||||||||||
(In thousands) |
Net Revenues | % of Net Revenues |
Net Revenues | %
of Net Revenues |
Net Revenues | %
of Net Revenues |
||||||||||||||||||
North America |
$ | 1,383,346 | 93.9 | % | $ | 997,816 | 93.8 | % | $ | 808,020 | 94.3 | % | ||||||||||||
Other foreign countries |
89,338 | 6.1 | % | 66,111 | 6.2 | % | 48,391 | 5.7 | % | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total net revenues |
$ | 1,472,684 | 100.0 | % | $ | 1,063,927 | 100.0 | % | $ | 856,411 | 100.0 | % | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
North America
North America accounted for 94% of our net sales for 2011. We sell our branded apparel, footwear and accessories in North America to approximately eighteen thousand retail stores and through our own direct to consumer channels. In 2011, our two largest customers were, in alphabetical order, Dicks Sporting Goods and The Sports Authority. These two customers accounted for a total of 26% of our total net revenues in 2011, and one of these customers individually accounted for at least 10% of our net revenues in 2011.
Our direct to consumer sales are generated primarily through our specialty and factory house stores and websites. As of December 31, 2011, we had 80 factory house stores, of which the majority is located at outlet centers on the East Coast of the United States. As of December 31, 2011, we had 5 specialty stores located near Annapolis, Maryland, Chicago, Illinois, Boston, Massachusetts, Washington, D.C. and Vail, Colorado. Consumers can purchase our products directly from our e-commerce website, www.underarmour.com.
In addition, we earn licensing income in North America based on our licensees sale of socks, team uniforms, baby and kids apparel, eyewear and custom-molded mouth guards, as well as the distribution of our products to college bookstores and golf pro shops. In order to maintain consistent quality and performance, we pre-approve all products manufactured and sold by our licensees, and our quality assurance team strives to ensure that the products meet the same quality and compliance standards as the products that we sell directly.
We distribute the majority of our products sold to our North American wholesale customers and our own retail stores from distribution centers of approximately 667.0 thousand square feet that we lease and operate approximately 15 miles from our corporate headquarters in Baltimore, Maryland. In addition, we distribute our products in North America through a third-party logistics provider with primary locations in California and in Florida. In late 2011, we began leasing a new distribution facility in California of approximately 300.0 thousand square feet which is also operated by this provider. The agreement with this provider continues until December 2013. In some instances, we arrange to have products shipped from the independent factories that manufacture our products directly to customer-designated facilities.
4
Other Foreign Countries
Only 6% of our net revenues were generated outside of North America in 2011. We believe the future success of our brand is dependent on developing our business outside of North America.
EMEA
We sell our apparel, footwear and accessories to approximately four thousand retail stores and through our websites in certain European countries. We also sell our apparel, footwear and accessories to independent distributors in various European countries where we do not have direct sales operations. In addition, we sell our branded products to soccer, running and golf clubs in the United Kingdom, soccer teams in France, Germany, Greece, Ireland, Italy, Spain and Sweden, as well as First Division Rugby clubs in France, Ireland, Italy and the United Kingdom. Beginning in 2012, we will sell the Tottenham Hotspur Football Club replica product for the Clubs supporters around the world.
We generally distribute our products to our retail customers and e-commerce consumers in EMEA through a third-party logistics provider based out of Venlo, The Netherlands. This agreement continues until April 2013.
Asia
Since 2002 we have had a license agreement with Dome Corporation, which produces, markets and sells our branded apparel, footwear and accessories in Japan. We are actively involved with this licensee to develop variations of our products for the different sizes, sports interests and preferences of the Japanese consumer. Our branded products are now sold in Japan to professional sports teams, including Omiya Ardija, a professional soccer club in Saitama, Japan, as well as baseball and other soccer teams, and to over twenty five hundred independent specialty stores and large sporting goods retailers. We made a cost-based minority investment in Dome Corporation in January 2011.
We also sell our apparel, footwear and accessories to independent distributors in Australia and New Zealand where we do not have direct sales operations.
During 2011, we opened our first specialty store in Shanghai, China to begin to learn about the Chinese consumer. We generally distribute our products to our retail customers in Asia through a third-party logistics provider based out of Hong Kong.
Latin America
We sell to Latin American consumers through independent distributors in Latin American countries where we do not have direct sales operations. We generally distribute our products to these independent distributors through our distribution facilities in the United States.
Historically, we have recognized a significant portion of our income from operations in the last two quarters of the year, driven primarily by increased sales volume of our products during the fall selling season, reflecting our historical strength in fall sports, and the seasonality of our higher priced COLDGEAR® line. The majority of our net revenues were generated during the last two quarters in each of 2011, 2010 and 2009. The level of our working capital generally reflects the seasonality and growth in our business. We generally expect inventory, accounts payable and certain accrued expenses to be higher in the second and third quarters in preparation for the fall selling season.
5
Product Design and Development
Our products are manufactured with technical fabrications produced by third parties and developed in collaboration with our product development team. This approach enables us to select and create superior, technically advanced fabrics, produced to our specifications, while focusing our product development efforts on design, fit, climate and product end use.
We seek to regularly upgrade and improve our products with the latest in innovative technology while broadening our product offerings. Our goal, to deliver superior performance in all our products, provides our developers and licensees with a clear, overarching direction for the brand and helps them identify new opportunities to create performance products that meet the changing needs of athletes. We design products with visible technology, utilizing color, texture and fabrication to enhance our customers perception and understanding of product use and benefits.
Our product development team works closely with our sports marketing and sales teams as well as professional and collegiate athletes to identify product trends and determine market needs. For example, these teams worked closely to identify the opportunity and market for our CHARGED COTTON® products, which are made from natural cotton but perform like our synthetic products, drying faster and wicking away moisture from the body, and our CHARGED COTTON® Storm Fleece products with a unique, water-resistant finish that repels water, without stifling airflow.
Sourcing, Manufacturing and Quality Assurance
Many of the specialty fabrics and other raw materials used in our products are technically advanced products developed by third parties and may be available, in the short term, from a limited number of sources. The fabric and other raw materials used to manufacture our products are sourced by our manufacturers from a limited number of suppliers pre-approved by us. In 2011, approximately 50% to 55% of the fabric used in our products came from six suppliers. These fabric suppliers have locations in Malaysia, Mexico, Peru, Taiwan and the United States. We continue to seek new suppliers and believe, although there can be no assurance, that this concentration will decrease over time. The fabrics used by our suppliers and manufacturers are primarily synthetic fabrics and involve raw materials, including petroleum based products, that may be subject to price fluctuations and shortages. In 2011 we introduced CHARGED COTTON® products which primarily use cotton fabrics that also may be subject to price fluctuations and shortages.
Substantially all of our products are manufactured by unaffiliated manufacturers and, in 2011, seven manufacturers produced approximately 45% of our products. In 2011, our products were manufactured by 23 primary manufacturers, operating in 16 countries, with approximately 60% of our products manufactured in Asia, 22% in Central and South America, 8% in Mexico and 8% in the Middle East. All manufacturers are evaluated for quality systems, social compliance and financial strength by our quality assurance team prior to being selected and on an ongoing basis. Where appropriate, we strive to qualify multiple manufacturers for particular product types and fabrications. We also seek out vendors that can perform multiple manufacturing stages, such as procuring raw materials and providing finished products, which helps us to control our cost of goods sold. We enter into a variety of agreements with our manufacturers, including non-disclosure and confidentiality agreements, and we require that all of our manufacturers adhere to a code of conduct regarding quality of manufacturing and working conditions and other social concerns. We do not, however, have any long term agreements requiring us to utilize any manufacturer, and no manufacturer is required to produce our products in the long term. We have a subsidiary in Hong Kong to support our manufacturing, quality assurance and sourcing efforts for apparel and a subsidiary in Guangzhou, China to support our manufacturing, quality assurance and sourcing efforts for footwear and accessories.
We also manufacture a limited number of apparel products on-premises in our quick turn, Special Make-Up Shop located at one of our distribution facilities in Maryland. Through this 17,000 square-foot shop, we are able
6
to build and ship apparel products on tight deadlines for high-profile athletes, leagues and teams. While the apparel products manufactured in the quick turn, Special Make-Up Shop represent an immaterial portion of our total net revenues, we believe the facility helps us to provide superior service to select customers.
Inventory management is important to the financial condition and operating results of our business. We manage our inventory levels based on any existing orders, anticipated sales and the rapid-delivery requirements of our customers. Our inventory strategy is focused on continuing to meet consumer demand while improving our inventory efficiency over the long term by putting systems and processes in place to improve our inventory management. These systems and processes are designed to improve our forecasting and supply planning capabilities. In addition to systems and processes, key areas of focus that we believe will enhance inventory performance are SKU rationalization, added discipline around the purchasing of product, production lead time reduction, and better planning and execution in selling of excess inventory through our factory house stores and other liquidation channels. With regards to SKU rationalization, we anticipate a reduction of our total number of SKUs by approximately 20% from 2011 to 2012.
Our practice, and the general practice in the apparel, footwear and accessory industries, is to offer retail customers the right to return defective or improperly shipped merchandise. As it relates to new product introductions, which can often require large initial launch shipments, we commence production before receiving orders for those products from time to time. This can affect our inventory levels as we build pre-launch quantities.
We believe we own the internally developed material trademarks used in connection with the marketing, distribution and sale of all our products, both domestically and internationally, where our products are currently sold or manufactured. Our major trademarks include the UA Logo and UNDER ARMOUR®, both of which are registered in the United States, Canada, Mexico, the European Union, Japan, China and several other foreign countries in which we sell or plan to sell our products. We also own trademark registrations for UA®, ARMOUR®, HEATGEAR®, COLDGEAR®, ALLSEASONGEAR®, PROTECT THIS HOUSE®, THE ADVANTAGE IS UNDENIABLE ®, DUPLICITY®, MPZ®, BOXERJOCK®, RECHARGE®, COMBINE®, CHARGED COTTON®, MICRO G® and several other trademarks, including numerous trademarks that incorporate the term ARMOUR such as ARMOURBITE®, ARMOURLOFT®, ARMOURSTORM®, ARMOUR FLEECE®, BABY ARMOUR®, and several others. In addition, we have applied to register numerous other trademarks including: ARE YOU FROM HERE?, E39 and 4D FOAM. We also own domain names for our primary trademarks (most notably underarmour.com and ua.com) and hold copyright registrations for several commercials, as well as for certain artwork. We intend to continue to strategically register, both domestically and internationally, trademarks and copyrights we utilize today and those we develop in the future. We will continue to aggressively police our trademarks and pursue those who infringe, both domestically and internationally.
We believe the distinctive trademarks we use in connection with our products are important in building our brand image and distinguishing our products from those of others. These trademarks are among our most valuable assets. In addition to our distinctive trademarks, we also place significant value on our trade dress, which is the overall image and appearance of our products, and we believe our trade dress helps to distinguish our products in the marketplace.
The intellectual property rights in much of the technology, materials and processes used to manufacture our products are often owned or controlled by our suppliers. However, we seek to protect certain innovative products and features that we believe to be new, strategic and important to our business. In 2011, we filed several patent applications in connection with certain of our products and designs that we believe offer a unique utility or function. We will continue to file patent applications where we deem appropriate to protect our inventions and designs, and we expect the number of applications to grow as our business grows and as we continue to innovate.
7
The market for performance apparel, footwear and accessories is highly competitive and includes many new competitors as well as increased competition from established companies expanding their production and marketing of performance products. The fabrics and technology used in manufacturing our products are generally not unique to us, and we do not currently own any fabric or process patents. Many of our competitors are large apparel, footwear and sporting goods companies with strong worldwide brand recognition and significantly greater resources than us, such as Nike and adidas. We also compete with other manufacturers, including those specializing in outdoor apparel, and private label offerings of certain retailers, including some of our customers.
In addition, we must compete with others for purchasing decisions, as well as limited floor space at retailers. We believe we have been successful in this area because of the relationships we have developed and as a result of the strong sales of our products. However, if retailers earn higher margins from our competitors products, they may favor the display and sale of those products.
We believe we have been able to compete successfully because of our brand image and recognition, the performance and quality of our products and our selective distribution policies. We also believe our focused gearline merchandising story differentiates us from our competition. In the future we expect to compete for consumer preferences and expect that we may face greater competition on pricing. This may favor larger competitors with lower production costs per unit that can spread the effect of price discounts across a larger array of products and across a larger customer base than ours. The purchasing decisions of consumers for our products often reflect highly subjective preferences that can be influenced by many factors, including advertising, media, product sponsorships, product improvements and changing styles.
As of December 31, 2011, we had approximately fifty four hundred employees, including approximately twenty nine hundred in our factory house and specialty stores and eight hundred at our distribution facilities. Approximately eighteen hundred of our employees were full-time. Most of our employees are located in the United States and none of our employees are currently covered by a collective bargaining agreement. We have had no labor-related work stoppages, and we believe our relations with our employees are good.
We will make available free of charge on or through our website at www.underarmour.com our annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K and amendments to these reports filed or furnished pursuant to Section 13(a) or 15(d) of the Exchange Act as soon as reasonably practicable after we file these materials with the Securities and Exchange Commission. We also post on this website our key corporate governance documents, including our board committee charters, our corporate governance guidelines and our ethics policy.
8
ITEM 1A. | RISK FACTORS |
Forward-Looking Statements
Some of the statements contained in this Form 10-K and the documents incorporated herein by reference constitute forward-looking statements. Forward-looking statements relate to expectations, beliefs, projections, future plans and strategies, anticipated events or trends and similar expressions concerning matters that are not historical facts, such as statements regarding our future financial condition or results of operations, our prospects and strategies for future growth, the development and introduction of new products, and the implementation of our marketing and branding strategies. In many cases, you can identify forward-looking statements by terms such as may, will, should, expects, plans, anticipates, believes, estimates, predicts, outlook, potential or the negative of these terms or other comparable terminology.
The forward-looking statements contained in this Form 10-K and the documents incorporated herein by reference reflect our current views about future events and are subject to risks, uncertainties, assumptions and changes in circumstances that may cause events or our actual activities or results to differ significantly from those expressed in any forward-looking statement. Although we believe that the expectations reflected in the forward-looking statements are reasonable, we cannot guarantee future events, results, actions, levels of activity, performance or achievements. Readers are cautioned not to place undue reliance on these forward-looking statements. A number of important factors could cause actual results to differ materially from those indicated by these forward-looking statements, including, but not limited to, those factors described in Risk Factors and Managements Discussion and Analysis of Financial Condition and Results of Operations. These factors include without limitation:
| changes in general economic or market conditions that could affect consumer spending and the financial health of our retail customers; |
| our ability to effectively manage our growth and a more complex, global business; |
| our ability to effectively develop and launch new, innovative and updated products; |
| our ability to accurately forecast consumer demand for our products and manage our inventory in response to changing demands; |
| increased competition causing us to reduce the prices of our products or to increase significantly our marketing efforts in order to avoid losing market share; |
| fluctuations in the costs of our products; |
| loss of key suppliers or manufacturers or failure of our suppliers or manufacturers to produce or deliver our products in a timely or cost-effective manner; |
| our ability to further expand our business globally and to drive brand awareness and consumer acceptance of our products in other countries; |
| our ability to accurately anticipate and respond to seasonal or quarterly fluctuations in our operating results; |
| our ability to effectively market and maintain a positive brand image; |
| the availability, integration and effective operation of management information systems and other technology; and |
| our ability to attract and maintain the services of our senior management and key employees. |
The forward-looking statements contained in this Form 10-K reflect our views and assumptions only as of the date of this Form 10-K. We undertake no obligation to update any forward-looking statement to reflect events or circumstances after the date on which the statement is made or to reflect the occurrence of unanticipated events.
9
Our results of operations and financial condition could be adversely affected by numerous risks. You should carefully consider the risk factors detailed below in conjunction with the other information contained in this Form 10-K. Should any of these risks actually materialize, our business, financial condition and future prospects could be negatively impacted.
During a downturn in the economy, consumer purchases of discretionary items are affected, which could materially harm our sales, profitability and financial condition.
Many of our products may be considered discretionary items for consumers. Factors affecting the level of consumer spending for such discretionary items include general economic conditions, the availability of consumer credit and consumer confidence in future economic conditions. Consumer purchases of discretionary items tend to decline during recessionary periods when disposable income is lower or during other periods of economic instability or uncertainty. We have limited experience operating a business during a recessionary period or during periods of slow economic growth and high unemployment and can therefore not predict the full impact of a downturn in the economy on our sales and profitability, including how our business responds when the economy is recovering from a recession or periods of slow growth. A downturn in the economy in markets in which we sell our products may materially harm our sales, profitability and financial condition.
If the financial condition of our retail customers declines, our financial condition and results of operations could be adversely impacted.
We extend credit to our customers based on an assessment of a customers financial condition, generally without requiring collateral. We face increased risk of order reduction or cancellation when dealing with financially ailing customers or customers struggling with economic uncertainty. A slowing economy in our key markets or a continued decline in consumer purchases of sporting goods generally could have an adverse effect on the financial health of our retail customers, which could in turn have an adverse effect on our sales, our ability to collect on receivables and our financial condition.
A decline in sales to, or the loss of, one or more of our key customers could result in a material loss of net revenues and negatively impact our prospects for growth.
In 2011, approximately 26% of our net revenues were generated from sales to our two largest customers in alphabetical order, Dicks Sporting Goods and The Sports Authority. We currently do not enter into long term sales contracts with these or our other key customers, relying instead on our relationships with these customers and on our position in the marketplace. As a result, we face the risk that one or more of these key customers may not increase their business with us as we expect, or may significantly decrease their business with us or terminate their relationship with us. The failure to increase our sales to these customers as much as we anticipate would have a negative impact on our growth prospects and any decrease or loss of these key customers business could result in a material decrease in our net revenues and net income.
If we continue to grow at a rapid pace, we may not be able to effectively manage our growth and the increased complexity of a global business and as a result our brand image, net revenues and profitability may decline.
We have expanded our operations rapidly since our inception and our net revenues have increased to $1,472.7 million in 2011 from $606.6 million in 2007. If our operations continue to grow at a rapid pace, we may experience difficulties in obtaining sufficient raw materials and manufacturing capacity to produce our products, as well as delays in production and shipments, as our products are subject to risks associated with overseas sourcing and manufacturing. We could be required to continue to expand our sales and marketing, product development and distribution functions, to upgrade our management information systems and other processes and technology, and to obtain more space to support our expanding workforce. This expansion could increase the strain on these and other resources, and we could experience serious operating difficulties, including difficulties in hiring, training and managing an increasing number of employees. In addition, as our business becomes more
10
complex through the introduction of more new products, such as new footwear, and the expansion of our distribution channels, including additional specialty and factory house stores and expanded distribution in malls and department stores, and expanded international distribution, these operational strains and other difficulties could increase. These difficulties could result in the erosion of our brand image and a decrease in net revenues and net income.
If we are unable to anticipate consumer preferences and successfully develop and introduce new, innovative and updated products, we may not be able to maintain or increase our net revenues and profitability.
Our success depends on our ability to identify and originate product trends as well as to anticipate and react to changing consumer demands in a timely manner. All of our products are subject to changing consumer preferences that cannot be predicted with certainty. Our new products may not receive consumer acceptance as consumer preferences could shift rapidly to different types of performance or other sports products or away from these types of products altogether, and our future success depends in part on our ability to anticipate and respond to these changes. Failure to anticipate and respond in a timely manner to changing consumer preferences could lead to, among other things, lower sales and excess inventory levels.
Even if we are successful in anticipating consumer preferences, our ability to adequately react to and address those preferences will in part depend upon our continued ability to develop and introduce innovative, high-quality products. In addition, if we fail to introduce technical innovation in our products, consumer demand for our products could decline, and if we experience problems with the quality of our products, we may incur substantial expense to remedy the problems. The failure to effectively introduce new products and enter into new product categories that are accepted by consumers could result in a decrease in net revenues and excess inventory levels, which could have a material adverse effect on our financial condition.
Our results of operations could be materially harmed if we are unable to accurately forecast demand for our products.
To ensure adequate inventory supply, we must forecast inventory needs and place orders with our manufacturers before firm orders are placed by our customers. In addition, a significant portion of our net revenues are generated by at-once orders for immediate delivery to customers, particularly during our historical peak season from August through November. If we fail to accurately forecast customer demand we may experience excess inventory levels or a shortage of product to deliver to our customers.
Factors that could affect our ability to accurately forecast demand for our products include:
| an increase or decrease in consumer demand for our products; |
| our failure to accurately forecast consumer acceptance for our new products; |
| product introductions by competitors; |
| unanticipated changes in general market conditions or other factors, which may result in cancellations of advance orders or a reduction or increase in the rate of reorders placed by retailers; |
| the impact on consumer demand due to unseasonable weather conditions; |
| weakening of economic conditions or consumer confidence in future economic conditions, which could reduce demand for discretionary items, such as our products; and |
| terrorism or acts of war, or the threat thereof, or political instability or unrest which could adversely affect consumer confidence and spending or interrupt production and distribution of product and raw materials. |
11
Inventory levels in excess of customer demand may result in inventory write-downs or write-offs and the sale of excess inventory at discounted prices, which would have an adverse effect on gross margin. In addition, if we underestimate the demand for our products, our manufacturers may not be able to produce products to meet our customer requirements, and this could result in delays in the shipment of our products and our ability to recognize revenue, as well as damage to our reputation and customer relationships.
The difficulty in forecasting demand also makes it difficult to estimate our future results of operations and financial condition from period to period. A failure to accurately predict the level of demand for our products could adversely impact our profitability.
We operate in a highly competitive market and the size and resources of some of our competitors may allow them to compete more effectively than we can, resulting in a loss of our market share and a decrease in our net revenues and gross profit.
The market for performance apparel, footwear and accessories is highly competitive and includes many new competitors as well as increased competition from established companies expanding their production and marketing of performance products. Because we currently do not own any fabric or process patents, our current and future competitors are able to manufacture and sell products with performance characteristics and fabrications similar to our products. Many of our competitors are large apparel and footwear companies with strong worldwide brand recognition. Because of the fragmented nature of the industry, we also compete with other manufacturers, including those specializing in outdoor apparel and private label offerings of certain retailers, including some of our retail customers. Many of our competitors have significant competitive advantages, including greater financial, distribution, marketing and other resources, longer operating histories, better brand recognition among consumers, more experience in global markets and greater economies of scale. In addition, our competitors have long term relationships with our key retail customers that are potentially more important to those customers because of the significantly larger volume and product mix that our competitors sell to them. As a result, these competitors may be better equipped than we are to influence consumer preferences or otherwise increase their market share by:
| quickly adapting to changes in customer requirements; |
| readily taking advantage of acquisition and other opportunities; |
| discounting excess inventory that has been written down or written off; |
| devoting resources to the marketing and sale of their products, including significant advertising, media placement and product endorsement; |
| adopting aggressive pricing policies; and |
| engaging in lengthy and costly intellectual property and other disputes. |
In addition, while one of our growth strategies is to increase floor space for our products in retail stores and generally expand our distribution to other retailers, retailers have limited resources and floor space, and we must compete with others to develop relationships with them. Increased competition by existing and future competitors could result in reductions in floor space in retail locations, reductions in sales or reductions in the prices of our products, and if retailers earn greater margins from our competitors products, they may favor the display and sale of those products. Our inability to compete successfully against our competitors and maintain our gross margin could have a material adverse effect on our business, financial condition and results of operations.
Our profitability may decline as a result of increasing pressure on margins.
Our industry is subject to significant pricing pressure caused by many factors, including intense competition, consolidation in the retail industry, pressure from retailers to reduce the costs of products and changes in consumer demand. These factors may cause us to reduce our prices to retailers and consumers, which
12
could cause our profitability to decline if we are unable to offset price reductions with comparable reductions in our operating costs. This could have a material adverse effect on our results of operations and financial condition.
Fluctuations in the cost of products could negatively affect our operating results.
The fabrics used by our suppliers and manufacturers are made of raw materials including petroleum-based products and cotton. Significant price fluctuations or shortages in petroleum or other raw materials can materially adversely affect our cost of goods sold, results of operations and financial condition.
We rely on third-party suppliers and manufacturers to provide fabrics for and to produce our products, and we have limited control over these suppliers and manufacturers and may not be able to obtain quality products on a timely basis or in sufficient quantity.
Many of the specialty fabrics used in our products are technically advanced textile products developed by third parties and may be available, in the short-term, from a very limited number of sources. Substantially all of our products are manufactured by unaffiliated manufacturers, and, in 2011, seven manufacturers produced approximately 45% of our products. We have no long term contracts with our suppliers or manufacturing sources, and we compete with other companies for fabrics, raw materials, production and import quota capacity.
We may experience a significant disruption in the supply of fabrics or raw materials from current sources or, in the event of a disruption, we may be unable to locate alternative materials suppliers of comparable quality at an acceptable price, or at all. In addition, our unaffiliated manufacturers may not be able to fill our orders in a timely manner. If we experience significant increased demand, or we lose or need to replace an existing manufacturer or supplier as a result of adverse economic conditions or other reasons, additional supplies of fabrics or raw materials or additional manufacturing capacity may not be available when required on terms that are acceptable to us, or at all, or suppliers or manufacturers may not be able to allocate sufficient capacity to us in order to meet our requirements. In addition, even if we are able to expand existing or find new manufacturing or fabric sources, we may encounter delays in production and added costs as a result of the time it takes to train our suppliers and manufacturers on our methods, products and quality control standards. Any delays, interruption or increased costs in the supply of fabric or manufacture of our products could have an adverse effect on our ability to meet retail customer and consumer demand for our products and result in lower net revenues and net income both in the short and long term.
We have occasionally received, and may in the future continue to receive, shipments of product that fail to conform to our quality control standards. In that event, unless we are able to obtain replacement products in a timely manner, we risk the loss of net revenues resulting from the inability to sell those products and related increased administrative and shipping costs. In addition, because we do not control our manufacturers, products that fail to meet our standards or other unauthorized products could end up in the marketplace without our knowledge, which could harm our brand and our reputation in the marketplace.
Labor disruptions at ports or our suppliers or manufacturers may adversely affect our business.
Our business depends on our ability to source and distribute products in a timely manner. As a result, we rely on the free flow of goods through open and operational ports worldwide and on a consistent basis from our suppliers and manufacturers. Labor disputes at various ports or at our suppliers or manufacturers create significant risks for our business, particularly if these disputes result in work slowdowns, lockouts, strikes or other disruptions during our peak importing or manufacturing seasons, and could have an adverse effect on our business, potentially resulting in cancelled orders by customers, unanticipated inventory accumulation or shortages and reduced net revenues and net income.
Our limited operating experience and limited brand recognition in new markets may limit our expansion strategy and cause our business and growth to suffer.
Our future growth depends in part on our expansion efforts outside of the North America. During the year ended December 31, 2011, 94% of our net revenues were earned in North America. We have limited experience
13
with regulatory environments and market practices outside of North America, and may face difficulties in expanding to and successfully operating in markets outside of North America. In connection with expansion efforts outside of North America, we may face cultural and linguistic differences, differences in regulatory environments, labor practices and market practices and difficulties in keeping abreast of market, business and technical developments and customers tastes and preferences. We may also encounter difficulty expanding into new markets because of limited brand recognition leading to delayed acceptance of our products. Failure to develop new markets outside of North America will limit our opportunities for growth.
The operations of many of our manufacturers are subject to additional risks that are beyond our control and that could harm our business.
In 2011, our products were manufactured by 23 primary manufacturers, operating in 16 countries. Of these, seven manufactured approximately 45% of our products, at locations in Cambodia, China, Honduras, Indonesia, Jordan, Mexico, Nicaragua, the Philippines, Vietnam and San Salvador. During 2011, approximately 60% of our products were manufactured in Asia, 22% in Central and South America, 8% in Mexico and 8% in the Middle East. As a result of our international manufacturing, we are subject to risks associated with doing business abroad, including:
| political or labor unrest, terrorism and economic instability resulting in the disruption of trade from foreign countries in which our products are manufactured; |
| currency exchange fluctuations; |
| the imposition of new laws and regulations, including those relating to labor conditions, quality and safety standards, imports, duties, taxes and other charges on imports, trade restrictions and restrictions on the transfer of funds, as well as rules and regulations regarding climate change; |
| reduced protection for intellectual property rights in some countries; |
| disruptions or delays in shipments; and |
| changes in local economic conditions in countries where our manufacturers and suppliers are located. |
Sales of performance products may not continue to grow and this could adversely impact our ability to grow our business.
We believe continued growth in industry-wide sales of performance apparel, footwear and accessories will be largely dependent on consumers continuing to transition from traditional alternatives to performance products. If consumers are not convinced these products are a better choice than traditional alternatives, growth in the industry and our business could be adversely affected. In addition, because performance products are often more expensive than traditional alternatives, consumers who are convinced these products provide a better alternative may still not be convinced they are worth the extra cost. If industry-wide sales of performance products do not grow, our ability to continue to grow our business and our financial condition and results of operations could be materially adversely impacted.
Our revolving credit facility provides our lenders with a first-priority lien against substantially all of our assets and contains financial covenants and other restrictions on our actions, and it could therefore limit our operational flexibility or otherwise adversely affect our financial condition.
We have, from time to time, financed our liquidity needs in part from borrowings made under a revolving credit facility. Our revolving credit facility provides for a committed revolving credit line of up to $300.0 million. The agreement for our revolving credit facility contains a number of restrictions that limit our ability, among other things, to:
| use our accounts receivable, inventory, trademarks and most of our other assets as security in other borrowings or transactions; |
14
| incur additional indebtedness; |
| sell certain assets; |
| make certain investments; |
| guarantee certain obligations of third parties; |
| undergo a merger or consolidation; and |
| materially change our line of business. |
Our revolving credit facility also provides the lenders with the ability to reduce the borrowing base, even if we are in compliance with all conditions of the revolving credit facility, upon a material adverse change to our business, properties, assets, financial condition or results of operations. In addition, we must maintain a certain leverage ratio and interest coverage ratio as defined in the credit agreement. Failure to comply with these operating or financial covenants could result from, among other things, changes in our results of operations or general economic conditions. These covenants may restrict our ability to engage in transactions that would otherwise be in our best interests. Failure to comply with any of the covenants under the credit agreement could result in a default. In addition, the credit agreement includes a cross default provision whereby an event of default under certain other debt obligations will be considered an event of default under the credit agreement. A default under the credit agreement could cause the lenders to accelerate the timing of payments and exercise their lien on essentially all of our assets, which would have a material adverse effect on our business, operations, financial condition and liquidity. In addition, because borrowings under the revolving credit facility bear interest at variable interest rates, which we do not anticipate hedging against, increases in interest rates would increase our cost of borrowing, resulting in a decline in our net income and cash flow. There were no amounts outstanding under our revolving credit facility as of December 31, 2011.
We may need to raise additional capital required to grow our business, and we may not be able to raise capital on terms acceptable to us or at all.
Growing and operating our business will require significant cash outlays and capital expenditures and commitments. If cash on hand and cash generated from operations are not sufficient to meet our cash requirements, we will need to seek additional capital, potentially through debt or equity financing, to fund our growth. We may not be able to raise needed cash on terms acceptable to us or at all. Financing may be on terms that are dilutive or potentially dilutive to our stockholders, and the prices at which new investors would be willing to purchase our securities may be lower than the current price per share of our common stock. The holders of new securities may also have rights, preferences or privileges which are senior to those of existing holders of common stock. If new sources of financing are required, but are insufficient or unavailable, we will be required to modify our growth and operating plans based on available funding, if any, which would harm our ability to grow our business.
Our operating results are subject to seasonal and quarterly variations in our net revenues and net income, which could adversely affect the price of our Class A Common Stock.
We have experienced, and expect to continue to experience, seasonal and quarterly variations in our net revenues and net income. These variations are primarily related to increased sales of our products during the fall season, reflecting our historical strength in fall sports, and the seasonality of sales of our higher priced COLDGEAR® line. The majority of our net revenues were generated during the last two quarters in each of 2011, 2010 and 2009, respectively.
Our quarterly results of operations may also fluctuate significantly as a result of a variety of other factors, including, among other things, the timing and introduction of advertising for new products and changes in our product mix. Variations in weather conditions may also have an adverse effect on our quarterly results of
15
operations. For example, warmer than normal weather conditions throughout the fall or winter may reduce sales of our COLDGEAR® line, leaving us with excess inventory and operating results below our expectations.
As a result of these seasonal and quarterly fluctuations, we believe that comparisons of our operating results between different quarters within a single year are not necessarily meaningful and that these comparisons cannot be relied upon as indicators of our future performance. Any seasonal or quarterly fluctuations that we report in the future may not match the expectations of market analysts and investors. This could cause the price of our Class A Common Stock to fluctuate significantly.
The value of our brand and sales of our products could be diminished if we are associated with negative publicity.
We require our suppliers, independent manufacturers and licensees of our products to operate their businesses in compliance with the laws and regulations that apply to them as well as the social and other standards and policies we impose on them. We do not control these suppliers, manufacturers or licensees or their labor practices. A violation of our policies, labor laws or other laws by our suppliers, manufacturers or licensees could interrupt or otherwise disrupt our sourcing or damage our brand image. Negative publicity regarding the production methods of any of our suppliers, manufacturers or licensees could adversely affect our reputation and sales and force us to locate alternative suppliers, manufacturing sources or licensees.
In addition, we have sponsorship contracts with a variety of athletes and feature those athletes in our advertising and marketing efforts, and many athletes and teams use our products, including those teams or leagues for which we are an official supplier. Actions taken by athletes, teams or leagues associated with our products could harm the reputations of those athletes, teams or leagues. As a result, our brand image, net revenues and profitability could be adversely affected.
Sponsorships and designations as an official supplier may become more expensive and this could impact the value of our brand image.
A key element of our marketing strategy has been to create a link in the consumer market between our products and professional and collegiate athletes. We have developed licensing agreements to be the official supplier of performance apparel and footwear to a variety of sports teams and leagues at the collegiate and professional level and sponsorship agreements with athletes. However, as competition in the performance apparel and footwear industry has increased, the costs associated with athlete sponsorships and official supplier licensing agreements have increased, including the costs associated with obtaining and retaining these sponsorships and agreements. If we are unable to maintain our current association with professional and collegiate athletes, teams and leagues, or to do so at a reasonable cost, we could lose the on-field authenticity associated with our products, and we may be required to modify and substantially increase our marketing investments. As a result, our brand image, net revenues, expenses and profitability could be materially adversely affected.
If we encounter problems with our distribution system, our ability to deliver our products to the market could be adversely affected.
We rely on a limited number of distribution facilities for our product distribution. Our distribution facilities utilize computer controlled and automated equipment, which means the operations are complicated and may be subject to a number of risks related to security or computer viruses, the proper operation of software and hardware, power interruptions or other system failures. In addition, because the majority of our products are distributed from two nearby locations in Maryland, our operations could also be interrupted by floods, fires or other natural disasters near our distribution facilities, as well as labor difficulties. We maintain business interruption insurance, but it may not adequately protect us from the adverse effects that could be caused by significant disruptions in our distribution facilities, such as the long term loss of customers or an erosion of our brand image. In addition, our distribution capacity is dependent on the timely performance of services by third
16
parties, including the shipping of product to and from our distribution facilities. If we encounter problems with our distribution facilities, our ability to meet customer expectations, manage inventory, complete sales and achieve objectives for operating efficiencies could be materially adversely affected.
We rely significantly on information technology and any failure, inadequacy, interruption or security lapse of that technology could harm our ability to effectively operate our business.
Our ability to effectively manage and maintain our inventory and internal reports, and to ship products to customers and invoice them on a timely basis depends significantly on our enterprise resource planning, warehouse management, and other information systems. The failure of these systems to operate effectively or to integrate with other systems, or a breach in security of these systems could cause delays in product fulfillment and reduced efficiency of our operations, and it could require significant capital investments to remediate any such failure, problem or breach.
Hackers and data thieves are increasingly sophisticated and operate large scale and complex automated attacks. Any breach of our network may result in the loss of valuable business data, our customers or employees personal information or a disruption of our business, which could give rise to unwanted media attention, damage our customer relationships and reputation and result in lost sales, fines or lawsuits. In addition, we must comply with increasingly complex regulatory standards enacted to protect this business and personal data. An inability to maintain compliance with these regulatory standards could subject us to legal risks.
Changes in tax laws and unanticipated tax liabilities could adversely affect our effective income tax rate and profitability.
We are subject to income taxes in the United States and numerous foreign jurisdictions. Our effective income tax rate could be adversely affected in the future by a number of factors, including: changes in the mix of earnings in countries with differing statutory tax rates, changes in the valuation of deferred tax assets and liabilities, changes in tax laws, the outcome of income tax audits in various jurisdictions around the world, and any repatriation of non-US earnings for which we have not previously provided for U.S. taxes. We regularly assess all of these matters to determine the adequacy of our tax provision, which is subject to significant discretion.
Our financial results may be adversely affected if substantial investments in businesses and operations fail to produce expected returns.
From time to time, we may invest in business infrastructure, new businesses, and expansion of existing businesses, such as recent investments in our direct to consumer sales channel or our recent minority investment in our Japanese licensee. These investments require substantial cash investments and management attention. We believe cost effective investments are essential to business growth and profitability. However, significant investments are subject to typical risks and uncertainties inherent in acquiring or expanding a business. The failure of any significant investment to provide the returns or profitability we expect could have a material adverse effect on our financial results and divert management attention from more profitable business operations.
Our future success is substantially dependent on the continued service of our senior management and other key employees.
Our future success is substantially dependent on the continued service of our senior management and other key employees, particularly Kevin A. Plank, our founder, President and Chief Executive Officer. The loss of the services of our senior management or other key employees could make it more difficult to successfully operate our business and achieve our business goals.
We also may be unable to retain existing management, product creation, sales, marketing, operational and other support personnel that are critical to our success, which could result in harm to key customer relationships, loss of key information, expertise or know-how and unanticipated recruitment and training costs.
17
If we are unable to attract and retain new team members, including senior management, we may not be able to achieve our business objectives.
Our growth has largely been the result of significant contributions by our current senior management, product design teams and other key employees. However, to be successful in continuing to grow our business, we will need to continue to attract, retain and motivate highly talented management and other employees with a range of skills and experience. Competition for employees in our industry is intense and we have experienced difficulty from time to time in attracting the personnel necessary to support the growth of our business, and we may experience similar difficulties in the future. If we are unable to attract, assimilate and retain management and other employees with the necessary skills, we may not be able to grow or successfully operate our business.
Our failure to comply with trade and other regulations could lead to investigations or actions by government regulators and negative publicity.
The labeling, distribution, importation, marketing and sale of our products are subject to extensive regulation by various federal agencies, including the Federal Trade Commission, Consumer Product Safety Commission and state attorneys general in the U.S., as well as by various other federal, state, provincial, local and international regulatory authorities in the locations in which our products are distributed or sold. If we fail to comply with those regulations, we could become subject to significant penalties or claims, which could harm our results of operations or our ability to conduct our business. In addition, the adoption of new regulations or changes in the interpretation of existing regulations may result in significant compliance costs or discontinuation of product sales and may impair the marketing of our products, resulting in significant loss of net revenues.
Our President and Chief Executive Officer controls the majority of the voting power of our common stock.
Our Class A Common Stock has one vote per share and our Class B Convertible Common Stock has 10 votes per share. Our President and Chief Executive Officer, Kevin A. Plank, beneficially owns all outstanding shares of Class B Convertible Common Stock. As a result, Mr. Plank has the majority voting control and is able to direct the election of all of the members of our Board of Directors and other matters we submit to a vote of our stockholders. This concentration of ownership may have various effects including, but not limited to, delaying or preventing a change of control.
Our fabrics and manufacturing technology are not patented and can be imitated by our competitors.
The intellectual property rights in the technology, fabrics and processes used to manufacture our products are generally owned or controlled by our suppliers and are generally not unique to us. Our ability to obtain patent protection for our products is limited and we currently own no fabric or process patents. As a result, our current and future competitors are able to manufacture and sell products with performance characteristics and fabrications similar to our products. Because many of our competitors have significantly greater financial, distribution, marketing and other resources than we do, they may be able to manufacture and sell products based on our fabrics and manufacturing technology at lower prices than we can. If our competitors do sell similar products to ours at lower prices, our net revenues and profitability could be materially adversely affected.
Our trademark and other proprietary rights could potentially conflict with the rights of others and we may be prevented from selling some of our products.
Our success depends in large part on our brand image. We believe our registered and common law trademarks have significant value and are important to identifying and differentiating our products from those of our competitors and creating and sustaining demand for our products. There may be obstacles that arise as we expand our product line and geographic scope of our marketing. From time to time, we have received claims relating to intellectual property rights of others, and we expect third parties will continue to assert intellectual property claims against us, particularly as we expand our business and the number of products we offer. Any
18
claim, regardless of its merit, could be expensive and time consuming to defend. Successful infringement claims against us could result in significant monetary liability or prevent us from selling some of our products. In addition, resolution of claims may require us to redesign our products, license rights belonging to third parties or cease using those rights altogether. Any of these events could harm our business and have a material adverse effect on our results of operations and financial condition.
Our failure to protect our intellectual property rights could diminish the value of our brand, weaken our competitive position and reduce our net revenues.
We currently rely on a combination of copyright, trademark and trade dress laws, patent laws, unfair competition laws, confidentiality procedures and licensing arrangements to establish and protect our intellectual property rights. The steps taken by us to protect our proprietary rights may not be adequate to prevent infringement of our trademarks and proprietary rights by others, including imitation of our products and misappropriation of our brand. In addition, intellectual property protection may be unavailable or limited in some foreign countries where laws or law enforcement practices may not protect our proprietary rights as fully as in the United States, and it may be more difficult for us to successfully challenge the use of our proprietary rights by other parties in these countries. If we fail to protect and maintain our intellectual property rights, the value of our brand could be diminished and our competitive position may suffer.
From time to time, we discover unauthorized products in the marketplace that are either counterfeit reproductions of our products or unauthorized irregulars that do not meet our quality control standards. If we are unsuccessful in challenging a third partys products on the basis of trademark infringement, continued sales of their products could adversely impact our brand, result in the shift of consumer preferences away from our products and adversely affect our business.
We have licensed in the past, and expect to license in the future, certain of our proprietary rights, such as trademarks or copyrighted material, to third parties. These licensees may take actions that diminish the value of our proprietary rights or harm our reputation.
ITEM 1B. UNRESOLVED | STAFF COMMENTS |
Not applicable.
19
ITEM 2. PROPERTIES |
Our principal executive and administrative offices are located at an office complex in Baltimore, Maryland. We own part of this office complex and lease part of this complex. We believe that our current location will be sufficient for the operation of our business over the next twelve months. Our primary distribution facilities are in Glen Burnie, Maryland and Rialto, California. We believe our distribution facilities and space available through our third-party logistics providers will be adequate to meet our short term needs. We may expand to additional distribution facilities in the future.
The location, general use, approximate size and lease term, if applicable, of our properties as of December 31, 2011 are set forth below:
Location |
Use |
Approximate Square Feet |
Lease End Date | |||||
Baltimore, MD |
Corporate headquarters | 538,200 | (1) | |||||
Amsterdam, The Netherlands |
European headquarters | 11,900 | December 2015 | |||||
Glen Burnie, MD |
Distribution facilities, 17,000 square foot quick-turn, Special Make-Up Shop manufacturing facility and 6,000 square foot factory house store | 667,000 | (2) | |||||
Rialto, CA |
Distribution facility | 300,000 | (3) | |||||
Denver, CO |
Sales office | 6,000 | August 2013 | |||||
Ontario, Canada |
Sales office | 17,000 | December 2016 | |||||
Guangzhou, China |
Quality assurance & sourcing for footwear | 4,600 | December 2012 | |||||
Hong Kong |
Quality assurance & sourcing for apparel | 20,900 | September 2014 | |||||
Various |
Retail store space | 429,000 | (4) |
(1) | Includes 400.0 thousand square feet of office space that we purchased during 2011 and 138.2 thousand square feet that we are leasing with an option to renew in November 2014. Of the 400.0 thousand square feet of office space we own, 163.6 thousand square feet is leased to third party tenants with remaining lease terms ranging from 3 months to 14.5 years. We intend to occupy additional space as it becomes available. |
(2) | Includes a 359.0 thousand square foot facility with an option to renew in September 2021 and a 308.0 thousand square foot facility with an option to renew in May 2013. |
(3) | Includes a lease for 300.0 thousand square feet within a 1.2 million square foot facility with a lease term through December 2012, expanding to 703.2 thousand square feet in January 2013 and to 1.2 million square feet in January 2014 or sooner in January 2013 if the space becomes available. |
(4) | Includes eighty four factory house and specialty stores located in the United States with lease end dates of April 2012 through October 2021. We also have an additional factory house store which is included in the Glen Burnie, Maryland location in the table above. Excluded in the table above are executed lease agreements for factory house stores that we did not yet occupy as of December 31, 2011. We anticipate that we will be able to extend these leases that expire in the near future on satisfactory terms or relocate to other locations. |
ITEM 3. LEGAL | PROCEEDINGS |
From time to time, we have been involved in various legal proceedings. We believe all such litigation is routine in nature and incidental to the conduct of our business, and we believe no such litigation will have a material adverse effect on our financial condition, cash flows or results of operations.
20
EXECUTIVE OFFICERS OF THE REGISTRANT
Our executive officers are:
Name |
Age | Position | ||||
Kevin A. Plank |
39 | President, Chief Executive Officer and Chairman of the Board of Directors | ||||
Byron K. Adams, Jr. |
57 | Chief Performance Officer, Member of the Board of Directors | ||||
Brad Dickerson |
47 | Chief Financial Officer | ||||
Kip J. Fulks . |
39 | Chief Operating Officer | ||||
Eugene R. McCarthy |
55 | Senior Vice President of Footwear | ||||
Adam Peake |
43 | Senior Vice President of U.S. Sales | ||||
J. Scott Plank |
46 | Executive Vice President of Business Development | ||||
John S. Rogers |
49 | Vice President, General Manager of E-Commerce | ||||
Daniel J. Sawall |
57 | Vice President of Retail | ||||
Henry B. Stafford |
37 | Senior Vice President of Apparel |
Kevin A. Plank has served as our Chief Executive Officer and Chairman of the Board of Directors since 1996, and as our President from 1996 to July 2008 and since August 2010. Mr. Plank also serves on the Board of Directors of the National Football Foundation and College Hall of Fame, Inc. and is a member of the Board of Trustees of the University of Maryland College Park Foundation. Mr. Planks brother is J. Scott Plank, our Executive Vice President of Business Development.
Byron K. Adams, Jr. has been a member of our Board of Directors since September 2003 and our Chief Performance Officer since October 2011 with primary responsibility for the development of company-wide business strategy, human resources and organizational alignment and processes. Prior to joining our Company, Mr. Adams founded and was a managing director of Rosewood Capital, LLC from 1985 to September 2011. Rosewood Capital was a private equity firm focused on consumer brands that, through its affiliates, was the institutional investor in our Company prior to our initial public offering. At Rosewood Capital, Mr. Adams was primarily responsible for assisting management teams in the development of their business strategies and organizations.
Brad Dickerson has been our Chief Financial Officer since March 2008. Prior to that, he served as Vice President of Accounting and Finance from February 2006 to February 2008 and Corporate Controller from July 2004 to January 2006. Prior to joining our Company, Mr. Dickerson served as Chief Financial Officer of Macquarie Aviation North America from January 2003 to July 2004 and in various capacities for Network Building & Consulting from 1994 to 2003, including Chief Financial Officer from 1998 to 2003.
Kip J. Fulks has been our Chief Operating officer since September 2011. Prior to that, he served as Executive Vice President of Product from January 2011 to August 2011, Senior Vice President of Outdoor and Innovation from March 2008 to December 2010, as Senior Vice President of Outdoor from October 2007 to February 2008, as Senior Vice President of Sourcing, Quality Assurance and Product Development from March 2006 to September 2007, and Vice President of Sourcing and Quality Assurance from 1997 to February 2006.
Eugene R. McCarthy has been our Senior Vice President of Footwear since August 2009. Prior to joining our Company, he served as Co-President of The Timberland brand from December 2007 to July 2009, President of its Authentic Youth Division from February 2007 to November 2007 and Group Vice President of Product and Design from April 2006 to January 2007. Prior thereto, Mr. McCarthy served as Senior Vice President of Product
21
and Design for Reebok International from July 2003 to November 2005 and in a variety of capacities for Nike from 1982 to 2003, including Global Director of Sales and Retail Marketing for Brand Jordan, from 1999 to 2003.
Adam Peake has been our Senior Vice President of U.S. Sales since September 2011. Prior to that, he served as Vice President of North American Sales from January 2010 to August 2011, as interim Vice President of Footwear from May 2009 to December 2009 and as Vice President of Sales for Key and Independent Accounts from January 2008 to April 2009, and from 2002 to 2007 he held various senior management positions in Sales.
J. Scott Plank has been our Executive Vice President of Business Development since August 2009 focusing on domestic and international business development opportunities. Prior to that, he served as Senior Vice President of Retail from March 2006 to July 2009 with responsibility for factory house and specialty stores and e-commerce, as Chief Administrative Officer from January 2004 to February 2006 and Vice President of Finance from 2000 to 2003 with operational and strategic responsibilities. Mr. Plank was a director of Under Armour, Inc. from 2001 until July 2005. Mr. Plank is the brother of Kevin A. Plank, our President, Chief Executive Officer and Chairman of the Board of Directors.
John S. Rogers has been Vice President, General Manager of Global E-commerce since May 2010. Prior to joining our Company, he served in a variety of capacities for The Orvis Company, Inc., including Vice President of Multi-Channel Marketing and General Manager of the UK Division from 2006 to April 2010, Director of Multi-Channel Marketing from 2004 to 2006 and Director of E-commerce Marketing from 2000 to 2004. Prior thereto, Mr. Rogers served as Director of Branding for Toysmart.com, a Walt Disney company, from 1999 to 2000 and Director of Global Brands for Hasbro, from 1994 to 1999.
Daniel J. Sawall has been Vice President of Retail since February 2010. Prior to joining our Company, he served as Senior Vice President and General Merchandise Manager of Golfsmith from August 2009 to January 2010. Prior thereto, Mr. Sawall served as General Manager for US Nike Factory Stores from February 2007 to April 2009, an independent marketing and business consultant from January 2003 to January 2007, Vice President and General Merchandise Manager for the d.e.m.o. division of Pacific Sunwear from July 2000 to May 2002 and General Merchandise Manager, Retail Stores for Guess? from 1998 to 2000. He began his career as a buyer for Federated Department Stores and then worked as a buyer and in various management capacities for 15 years for Dillards Department Stores.
Henry B. Stafford has been Senior Vice President of Apparel since June 2010. Prior to joining our company, he worked with American Eagle Outfitters as Senior Vice President and Chief Merchandising Officer of The AE Brand from April 2007 to May 2010, General Merchandise Manager and Senior Vice President of Mens and AE Canadian Division from April 2005 to March 2007 and General Merchandise Manager and Vice President of Mens from September 2003 to March 2005. Prior thereto, Mr. Stafford served in a variety of capacities for Old Navy from 1998 to 2003, including Divisional Merchandising Manager for Mens Tops from 2001 to 2003, and served as a buyer for Abercrombie and Fitch from 1996 to 1998.
ITEM 4. | MINE SAFETY DISCLOSURES |
Not applicable.
22
ITEM 5. | MARKET FOR REGISTRANTS COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES |
Under Armours Class A Common Stock is traded on the New York Stock Exchange (NYSE) under the symbol UA. As of January 31, 2012, there were 1,137 record holders of our Class A Common Stock and 5 record holders of Class B Convertible Common Stock which are beneficially owned by our President and Chief Executive Officer Kevin A. Plank. The following table sets forth by quarter the high and low sale prices of our Class A Common Stock on the NYSE during 2011 and 2010.
High | Low | |||||||
2011 |
||||||||
First Quarter (January 1 March 31) |
$ | 70.69 | $ | 51.77 | ||||
Second Quarter (April 1 June 30) |
$ | 80.00 | $ | 61.56 | ||||
Third Quarter (July 1 September 30) |
$ | 82.95 | $ | 52.62 | ||||
Fourth Quarter (October 1 December 31) |
$ | 87.40 | $ | 62.50 | ||||
2010 |
||||||||
First Quarter (January 1 March 31) |
$ | 31.16 | $ | 23.72 | ||||
Second Quarter (April 1 June 30) |
$ | 38.87 | $ | 29.12 | ||||
Third Quarter (July 1 September 30) |
$ | 46.10 | $ | 31.63 | ||||
Fourth Quarter (October 1 December 31) |
$ | 60.14 | $ | 44.07 |
Dividends
No cash dividends were declared or paid during 2011 or 2010 on any class of our common stock. We currently anticipate we will retain any future earnings for use in our business. As a result, we do not anticipate paying any cash dividends in the foreseeable future. In addition, we may be limited in our ability to pay dividends to our stockholders under our credit facility. Refer to Financial Position, Capital Resources and Liquidity within Managements Discussion and Analysis and Note 7 to the Consolidated Financial Statements for further discussion of our credit facility.
Stock Compensation Plans
The following table contains certain information regarding our equity compensation plans.
Plan Category |
Number of securities to be issued upon exercise of outstanding options, warrants and rights (a) |
Weighted-average exercise price of outstanding options, warrants and rights (b) |
Number of securities remaining available for future issuance under equity compensation plans (excluding securities reflected in column (a)) (c) |
|||||||||
Equity Compensation plans approved by security holders |
3,065,067 | $ | 27.99 | 6,129,414 | ||||||||
Equity Compensation plans not approved by security holders |
480,000 | $ | 36.99 | |
The number of securities to be issued upon exercise of outstanding options, warrants and rights issued under equity compensation plans approved by security holders includes 661.4 thousand restricted stock units and deferred stock units issued to employees, non-employees and directors of Under Armour; these restricted stock units and deferred stock units are not included in the weighted average exercise price calculation above. The number of securities remaining available for future issuance includes 5.3 million shares of our Class A Common
23
Stock under our Amended and Restated 2005 Omnibus Long-Term Incentive Plan (2005 Stock Plan) and 0.8 million shares of our Class A Common Stock under our Employee Stock Purchase Plan. In addition to securities issued upon the exercise of stock options, warrants and rights, the 2005 Stock Plan authorizes the issuance of restricted and unrestricted shares of our Class A Common Stock and other equity awards. Refer to Note 13 to the Consolidated Financial Statements for information required by this Item regarding the material features of each plan.
The number of securities issued under equity compensation plans not approved by security holders includes 480.0 thousand fully vested and non-forfeitable warrants granted in 2006 to NFL Properties LLC as partial consideration for footwear promotional rights. Refer to Note 13 to the Consolidated Financial Statements for a further discussion on the warrants.
Recent Sales of Unregistered Equity Securities
On January 31, 2012, we issued 10.0 thousand shares of Class A Common Stock upon the exercise of previously granted stock options to an employee at an exercise price of $0.83 per share, for an aggregate amount of consideration of $8.3 thousand.
The issuances of securities described above were made in reliance upon Section 4(2) under the Securities Act in that any issuance did not involve a public offering or under Rule 701 promulgated under the Securities Act, in that they were offered and sold either pursuant to written compensatory plans or pursuant to a written contract relating to compensation, as provided by Rule 701.
24
Stock Performance Graph
The stock performance graph below compares cumulative total return on Under Armour, Inc. Class A Common Stock to the cumulative total return of the NYSE Market Index and S&P 500 Apparel, Accessories and Luxury Goods Index from December 31, 2006 through December 31, 2011. The graph assumes an initial investment of $100 in Under Armour and each index as of December 31, 2006 and reinvestment of any dividends. The performance shown on the graph below is not intended to forecast or be indicative of possible future performance of our common stock.
12/31/2006 | 12/31/2007 | 12/31/2008 | 12/31/2009 | 12/31/2010 | 12/31/2011 | |||||||||||||||||||
Under Armour, Inc. |
$ | 100.00 | $ | 86.56 | $ | 47.25 | $ | 54.05 | $ | 108.70 | $ | 142.30 | ||||||||||||
NYSE Market Index |
$ | 100.00 | $ | 109.14 | $ | 66.42 | $ | 85.40 | $ | 97.01 | $ | 93.45 | ||||||||||||
S&P 500 Apparel, Accessories & Luxury Goods |
$ | 100.00 | $ | 69.55 | $ | 46.07 | $ | 74.86 | $ | 105.70 | $ | 131.66 |
25
ITEM 6. SELECTED | FINANCIAL DATA |
The following selected financial data is qualified by reference to, and should be read in conjunction with, the Consolidated Financial Statements, including the notes thereto, and Managements Discussion and Analysis of Financial Condition and Results of Operations included elsewhere in this Form 10-K.
Year Ended December 31, | ||||||||||||||||||||
(In thousands, except per share amounts) |
2011 | 2010 | 2009 | 2008 | 2007 | |||||||||||||||
Net revenues |
$ | 1,472,684 | $ | 1,063,927 | $ | 856,411 | $ | 725,244 | $ | 606,561 | ||||||||||
Cost of goods sold |
759,848 | 533,420 | 446,286 | 372,203 | 302,083 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Gross profit |
712,836 | 530,507 | 410,125 | 353,041 | 304,478 | |||||||||||||||
Selling, general and administrative expenses |
550,069 | 418,152 | 324,852 | 276,116 | 218,213 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Income from operations |
162,767 | 112,355 | 85,273 | 76,925 | 86,265 | |||||||||||||||
Interest income (expense), net |
(3,841 | ) | (2,258 | ) | (2,344 | ) | (850 | ) | 749 | |||||||||||
Other income (expense), net |
(2,064 | ) | (1,178 | ) | (511 | ) | (6,175 | ) | 2,029 | |||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Income before income taxes |
156,862 | 108,919 | 82,418 | 69,900 | 89,043 | |||||||||||||||
Provision for income taxes |
59,943 | 40,442 | 35,633 | 31,671 | 36,485 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Net income |
$ | 96,919 | $ | 68,477 | $ | 46,785 | $ | 38,229 | $ | 52,558 | ||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Net income available per common share |
||||||||||||||||||||
Basic |
$ | 1.88 | $ | 1.35 | $ | 0.94 | $ | 0.78 | $ | 1.09 | ||||||||||
Diluted |
$ | 1.85 | $ | 1.34 | $ | 0.92 | $ | 0.76 | $ | 1.05 | ||||||||||
Weighted average common shares outstanding |
||||||||||||||||||||
Basic |
51,570 | 50,798 | 49,848 | 49,086 | 48,345 | |||||||||||||||
Diluted |
52,526 | 51,282 | 50,650 | 50,342 | 50,141 | |||||||||||||||
Dividends declared |
$ | | $ | | $ | | $ | | $ | |
At December 31, | ||||||||||||||||||||
(In thousands) |
2011 | 2010 | 2009 | 2008 | 2007 | |||||||||||||||
Cash and cash equivalents |
$ | 175,384 | $ | 203,870 | $ | 187,297 | $ | 102,042 | $ | 40,588 | ||||||||||
Working capital (1) |
506,056 | 406,703 | 327,838 | 263,313 | 226,546 | |||||||||||||||
Inventories |
324,409 | 215,355 | 148,488 | 182,232 | 166,082 | |||||||||||||||
Total assets |
919,210 | 675,378 | 545,588 | 487,555 | 390,613 | |||||||||||||||
Total debt and capital lease obligations, including current maturities |
77,724 | 15,942 | 20,223 | 45,591 | 14,332 | |||||||||||||||
Total stockholders equity |
$ | 636,432 | $ | 496,966 | $ | 399,997 | $ | 331,097 | $ | 280,485 |
(1) | Working capital is defined as current assets minus current liabilities. |
ITEM 7. | MANAGEMENTS DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS |
The information contained in this section should be read in conjunction with our Consolidated Financial Statements and related notes and the information contained elsewhere in this Form 10-K under the captions Risk Factors, Selected Financial Data, and Business.
Overview
We are a leading developer, marketer and distributor of branded performance apparel, footwear and accessories. The brands moisture-wicking fabrications are engineered in many different designs and styles for wear in nearly every climate to provide a performance alternative to traditional products. Our products are sold worldwide and worn by athletes at all levels, from youth to professional, on playing fields around the globe, as well as by consumers with active lifestyles.
26
Our net revenues grew to $1,472.7 million in 2011 from $606.6 million in 2007. We believe that our growth in net revenues has been driven by a growing interest in performance products and the strength of the Under Armour brand in the marketplace. We plan to continue to increase our net revenues over the long term by increased sales of our apparel, footwear and accessories, expansion of our wholesale distribution sales channel, growth in our direct to consumer sales channel and expansion in international markets. Our direct to consumer sales channel includes our factory house and specialty stores and websites. New offerings for 2011 include hats and bags, as well as CHARGED COTTON® products.
Our products are currently offered in approximately twenty five thousand retail stores worldwide. A large majority of our products are sold in North America; however, we believe our products appeal to athletes and consumers with active lifestyles around the globe. Outside of North America, our products are offered primarily in Austria, France, Germany, Ireland and the United Kingdom, as well as in Japan through a licensee, and through distributors located in other foreign countries. We hold a minority investment in our licensee in Japan.
Our operating segments are geographic and include North America; Latin America; Europe, the Middle East and Africa (EMEA); and Asia. Due to the insignificance of the EMEA, Latin America and Asia operating segments, they have been combined into other foreign countries for disclosure purposes.
We believe there is an increasing recognition of the health benefits of an active lifestyle. We believe this trend provides us with an expanding consumer base for our products. We also believe there is a continuing shift in consumer demand from traditional non-performance products to our performance products, which are intended to provide better performance by wicking perspiration away from the skin, helping to regulate body temperature and enhancing comfort. We believe that these shifts in consumer preferences and lifestyles are not unique to the United States, but are occurring in a number of markets globally, thereby increasing our opportunities to introduce our performance products to new consumers.
Although we believe these trends will facilitate our growth, we also face potential challenges that could limit our ability to take advantage of these opportunities, including, among others, the risk of general economic or market conditions that could affect consumer spending and the financial health of our retail customers. In addition, we may not be able to effectively manage our growth and a more complex business. We may not consistently be able to anticipate consumer preferences and develop new and innovative products that meet changing preferences in a timely manner. Furthermore, our industry is very competitive, and competition pressures could cause us to reduce the prices of our products or otherwise affect our profitability. We also rely on third-party suppliers and manufacturers outside the U.S. to provide fabrics and to produce our products, and disruptions to our supply chain could harm our business. For a more complete discussion of the risks facing our business, refer to the Risk Factors section included in Item 1A.
General
Net revenues comprise both net sales and license revenues. Net sales comprise sales from our primary product categories, which are apparel, footwear and accessories. Our license revenues consist of fees paid to us by our licensees in exchange for the use of our trademarks on core products of socks, team uniforms, baby and kids apparel, eyewear, custom-molded mouth guards, as well as the distribution of our products in Japan. Prior to 2011, hats and bags were sold by a licensee. Net revenues increased by approximately $65 million from 2010 to 2011 as a result of developing our own hats and bags, which includes an increase in accessories revenues and a decrease in our license revenues in 2011. In addition, related cost of goods sold increased.
Cost of goods sold consists primarily of product costs, inbound freight and duty costs, outbound freight costs, handling costs to make products floor-ready to customer specifications, royalty payments to endorsers based on a predetermined percentage of sales of selected products and write downs for inventory obsolescence. The fabrics in many of our products are made primarily of petroleum-based synthetic materials. Therefore our product costs, as well as our inbound and outbound freight costs, could be affected by long term pricing trends of
27
oil. In general, as a percentage of net revenues, we expect cost of goods sold associated with our apparel and accessories to be lower than that of our footwear. No cost of goods sold is associated with license revenues.
We include outbound freight costs associated with shipping goods to customers as cost of goods sold; however, we include the majority of outbound handling costs as a component of selling, general and administrative expenses. As a result, our gross profit may not be comparable to that of other companies that include outbound handling costs in their cost of goods sold. Outbound handling costs include costs associated with preparing goods to ship to customers and certain costs to operate our distribution facilities. These costs were $26.1 million, $14.7 million and $12.2 million for the years ended December 31, 2011, 2010 and 2009, respectively.
Our selling, general and administrative expenses consist of costs related to marketing, selling, product innovation and supply chain and corporate services. Personnel costs are included in these categories based on the employees function. Personnel costs include salaries, benefits, incentives and stock-based compensation related to the employee. Our marketing costs are an important driver of our growth. Marketing costs consist primarily of commercials, print ads, league, team, player and event sponsorships, amortization of footwear promotional rights and depreciation expense specific to our in-store fixture program. In addition, marketing costs include costs associated with our Special Make-Up Shop (SMU Shop) located at one of our distribution facilities where we manufacture a limited number of products primarily for our league, team, player and event sponsorships. Selling costs consist primarily of costs relating to sales through our wholesale channel, commissions paid to third parties and the majority of our direct to consumer sales channel costs, including the cost of factory house and specialty store leases. Product innovation and supply chain costs include our apparel, footwear and accessories product innovation, sourcing and development costs, distribution facility operating costs, and costs relating to our Hong Kong and Guangzhou, China offices which help support product development, manufacturing, quality assurance and sourcing efforts. Corporate services primarily consist of corporate facility operating costs and company-wide administrative expenses.
Other expense, net consists of unrealized and realized gains and losses on our derivative financial instruments and unrealized and realized gains and losses on adjustments that arise from fluctuations in foreign currency exchange rates relating to transactions generated by our international subsidiaries.
28
Results of Operations
The following table sets forth key components of our results of operations for the periods indicated, both in dollars and as a percentage of net revenues:
Year Ended December 31, | ||||||||||||
(In thousands) |
2011 | 2010 | 2009 | |||||||||
Net revenues |
$ | 1,472,684 | $ | 1,063,927 | $ | 856,411 | ||||||
Cost of goods sold |
759,848 | 533,420 | 446,286 | |||||||||
|
|
|
|
|
|
|||||||
Gross profit |
712,836 | 530,507 | 410,125 | |||||||||
Selling, general and administrative expenses |
550,069 | 418,152 | 324,852 | |||||||||
|
|
|
|
|
|
|||||||
Income from operations |
162,767 | 112,355 | 85,273 | |||||||||
Interest expense, net |
(3,841 | ) | (2,258 | ) | (2,344 | ) | ||||||
Other expense, net |
(2,064 | ) | (1,178 | ) | (511 | ) | ||||||
|
|
|
|
|
|
|||||||
Income before income taxes |
156,862 | 108,919 | 82,418 | |||||||||
Provision for income taxes |
59,943 | 40,442 | 35,633 | |||||||||
|
|
|
|
|
|
|||||||
Net income |
$ | 96,919 | $ | 68,477 | $ | 46,785 | ||||||
|
|
|
|
|
|
Year Ended December 31, | ||||||||||||
(As a percentage of net revenues) |
2011 | 2010 | 2009 | |||||||||
Net revenues |
100.0 | % | 100.0 | % | 100.0 | % | ||||||
Cost of goods sold |
51.6 | 50.1 | 52.1 | |||||||||
|
|
|
|
|
|
|||||||
Gross profit |
48.4 | 49.9 | 47.9 | |||||||||
Selling, general and administrative expenses |
37.3 | 39.3 | 37.9 | |||||||||
|
|
|
|
|
|
|||||||
Income from operations |
11.1 | 10.6 | 10.0 | |||||||||
Interest expense, net |
(0.3 | ) | (0.3 | ) | (0.3 | ) | ||||||
Other expense, net |
(0.1 | ) | (0.1 | ) | (0.1 | ) | ||||||
|
|
|
|
|
|
|||||||
Income before income taxes |
10.7 | 10.2 | 9.6 | |||||||||
Provision for income taxes |
4.1 | 3.8 | 4.1 | |||||||||
|
|
|
|
|
|
|||||||
Net income |
6.6 | % | 6.4 | % | 5.5 | % | ||||||
|
|
|
|
|
|
Consolidated Results of Operations
Year Ended December 31, 2011 Compared to Year Ended December 31, 2010
Net revenues increased $408.8 million, or 38.4%, to $1,472.7 million in 2011 from $1,063.9 million in 2010. Net revenues by product category are summarized below:
Year Ended December 31, | ||||||||||||||||
(In thousands) |
2011 | 2010 | $ Change | % Change | ||||||||||||
Apparel |
$ | 1,122,031 | $ | 853,493 | $ | 268,538 | 31.5 | % | ||||||||
Footwear |
181,684 | 127,175 | 54,509 | 42.9 | ||||||||||||
Accessories |
132,400 | 43,882 | 88,518 | 201.7 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total net sales |
1,436,115 | 1,024,550 | 411,565 | 40.2 | ||||||||||||
License revenues |
36,569 | 39,377 | (2,808 | ) | (7.1 | ) | ||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total net revenues |
$ | 1,472,684 | $ | 1,063,927 | $ | 408,757 | 38.4 | % | ||||||||
|
|
|
|
|
|
|
|
29
Net sales increased $411.5 million, or 40.2%, to $1,436.1 million in 2011 from $1,024.6 million in 2010 as noted in the table above. The increase in net sales primarily reflects:
| $152.7 million, or 62.2%, increase in direct to consumer sales, which include 26 additional factory house stores, or a 48% increase, since December 31, 2010, along with the launch of our updated e-commerce website; |
| unit growth driven by increased distribution and new offerings in multiple product categories, most significantly in our training (including fleece and our new CHARGED COTTON® product), graphics (primarily including Tech-Tees), baselayer, running, hunting and golf apparel categories, along with running and basketball shoes; and |
| $88.5 million, or 201.7%, increase in wholesale accessories sales primarily due to bringing hats and bags sales in-house effective January 2011. |
License revenues decreased $2.8 million, or 7.1%, to $36.6 million for the year ended December 31, 2011 from $39.4 million during the same period in 2010. This decrease in license revenues was a result of a $9.7 million reduction in license revenues related to hats and bags, partially offset by increased sales by our licensees due to increased distribution and continued unit volume growth.
Gross profit increased $182.3 million to $712.8 million for the year ended December 31, 2011 from $530.5 million for the same period in 2010. Gross profit as a percentage of net revenues, or gross margin, decreased 150 basis points to 48.4% for the year ended December 31, 2011 compared to 49.9% during the same period in 2010. The decrease in gross margin percentage was primarily driven by the following:
| approximate 110 basis point decrease driven primarily by higher apparel product input costs, now including cotton, in the current year period. We expect the higher input costs will continue to negatively impact apparel product margins through the first half of 2012. A smaller contributor to the decrease was a lower percentage mix of higher margin North American wholesale apparel and Factory House product sales in the current year period. A significant driver to the sales mix impact included a lower percentage of higher margin baselayer and underwear product, partially due to the significant expansion of training apparel product offerings, including fleece and the introduction of CHARGED COTTON®; and |
| approximate 45 basis point decrease driven by a lower license revenues due to bringing hats and bags sales in-house effective January 1, 2011. We do not expect this trend to continue beyond 2011 following the anniversary of this transition of our hats and bags sales in-house. |
The above decreases were partially offset by the below increase:
| approximate 10 basis point increase driven by a decreasing negative margin impact of sales apparel discounts and returns. |
Selling, general and administrative expenses increased $131.9 million to $550.1 million for the year ended December 31, 2011 from $418.2 million for the same period in 2010. As a percentage of net revenues, selling, general and administrative expenses decreased to 37.3% for the year ended December 31, 2011 from 39.3% for the same period in 2010. These changes were primarily attributable to the following:
| Marketing costs increased $39.7 million to $167.9 million for the year ended December 31, 2011 from $128.2 million for the same period in 2010 primarily due to increased sponsorships of events and collegiate and professional teams and athletes, increased television and digital campaign costs, including media campaigns for specific customers. As a percentage of net revenues, marketing costs decreased to 11.4% for the year ended December 31, 2011 from 12.0% for the same period in 2010 primarily due to decreased marketing costs for specific customers as a percentage of net revenues. |
30
| Selling costs increased $44.2 million to $138.8 million for the year ended December 31, 2011 from $94.6 million for the same period in 2010. This increase was primarily due to higher personnel and other costs incurred for the continued expansion of our direct to consumer distribution channel and higher selling personnel costs. As a percentage of net revenues, selling costs increased to 9.4% for the year ended December 31, 2011 from 8.9% for the same period in 2010 primarily due to higher personnel and other costs incurred for the continued expansion of our direct to consumer distribution channel. |
| Product innovation and supply chain costs increased $32.3 million to $129.1 million for the year ended December 31, 2011 from $96.8 million for the same period in 2010 primarily due to higher distribution facilities operating and personnel costs to support our growth in net revenues and higher personnel costs for the design and sourcing of our expanding apparel, footwear and accessories lines. As a percentage of net revenues, product innovation and supply chain costs decreased to 8.8% for the year ended December 31, 2011 from 9.1% for the same period in 2010 primarily due to decreased personnel costs for the design and sourcing of our expanding apparel, footwear and accessories lines as a percentage of net revenues. |
| Corporate services costs increased $15.7 million to $114.3 million for the year ended December 31, 2011 from $98.6 million for the same period in 2010. This increase was attributable primarily to increased corporate personnel, facility costs and information technology initiatives necessary to support our growth. As a percentage of net revenues, corporate services costs decreased to 7.7% for the year ended December 31, 2011 from 9.3% for the same period in 2010 primarily due to decreased corporate personnel and facility costs as a percentage of net revenues, as well as the net impact of the acquisition of our corporate headquarters in 2011. The acquisition is not expected to have a material impact to our consolidated statements of income in future periods. |
Income from operations increased $50.4 million, or 44.9%, to $162.8 million in 2011 from $112.4 million in 2010. Income from operations as a percentage of net revenues increased to 11.1% in 2011 from 10.6% in 2010. This increase was a result of the items discussed above.
Interest expense, net increased $1.5 million to $3.8 million in 2011 from $2.3 million in 2010. This increase was primarily due to the assumed loan for the acquisition of our corporate headquarters.
Other expense, net increased $0.9 million to $2.1 million in 2011 from $1.2 million in 2010. This increase was due to higher net losses in 2011 on the combined foreign currency exchange rate changes on transactions denominated in foreign currencies and our derivative financial instruments as compared to 2010.
Provision for income taxes increased $19.5 million to $59.9 million in 2011 from $40.4 million in 2010. Our effective tax rate was 38.2% in 2011 compared to 37.1% in 2010, primarily due to federal and state tax credits that reduced the effective tax rate in the prior year period, partially offset by the 2011 reversal of a valuation allowance established in 2010 against a portion of our deferred tax assets related to foreign net operating loss carryforwards.
31
Year Ended December 31, 2010 Compared to Year Ended December 31, 2009
Net revenues increased $207.5 million, or 24.2%, to $1,063.9 million in 2010 from $856.4 million in 2009. Net revenues by product category are summarized below:
Year Ended December 31, | ||||||||||||||||
(In thousands) |
2010 | 2009 | $ Change | % Change | ||||||||||||
Apparel |
$ | 853,493 | $ | 651,779 | $ | 201,714 | 30.9 | % | ||||||||
Footwear |
127,175 | 136,224 | (9,049 | ) | (6.6 | ) | ||||||||||
Accessories |
43,882 | 35,077 | 8,805 | 25.1 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total net sales |
1,024,550 | 823,080 | 201,470 | 24.5 | ||||||||||||
License revenues |
39,377 | 33,331 | 6,046 | 18.1 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total net revenues |
$ | 1,063,927 | $ | 856,411 | $ | 207,516 | 24.2 | % | ||||||||
|
|
|
|
|
|
|
|
Net sales increased $201.5 million, or 24.5%, to $1,024.6 million in 2010 from $823.1 million in 2009 as noted in the table above. The increase in net sales primarily reflects:
| $88.9 million, or 56.8%, increase in direct to consumer sales, which includes 19 additional stores in 2010; and |
| unit growth driven by increased distribution and new offerings in multiple product categories, most significantly in our training, base layer, mountain, golf and underwear categories; partially offset by |
| $9.0 million decrease in footwear sales driven primarily by a decline in running and training footwear sales. |
License revenues increased $6.1 million, or 18.1%, to $39.4 million in 2010 from $33.3 million in 2009. This increase in license revenues was primarily a result of increased sales by our licensees due to increased distribution and continued unit volume growth. We have developed our own headwear and bags, and beginning in 2011, these products are being sold by us rather than by one of our licensees.
Gross profit increased $120.4 million to $530.5 million in 2010 from $410.1 million in 2009. Gross profit as a percentage of net revenues, or gross margin, increased 200 basis points to 49.9% in 2010 compared to 47.9% in 2009. The increase in gross margin percentage was primarily driven by the following:
| approximate 100 basis point increase driven by increased direct to consumer higher margin sales; |
| approximate 50 basis point increase driven by decreased sales markdowns and returns, primarily due to improved sell-through rates at retail; and |
| approximate 50 basis point increase driven primarily by liquidation sales and related inventory reserve reversals. The current year period benefited from reversals of inventory reserves established in the prior year relative to certain cleated footwear, sport specific apparel and gloves. These products have historically been more difficult to liquidate at favorable prices. |
Selling, general and administrative expenses increased $93.3 million to $418.2 million in 2010 from $324.9 million in 2009. As a percentage of net revenues, selling, general and administrative expenses increased to 39.3% in 2010 from 37.9% in 2009. These changes were primarily attributable to the following:
| Marketing costs increased $19.3 million to $128.2 million in 2010 from $108.9 million in 2009 primarily due to an increase in sponsorship of events and collegiate and professional teams and athletes, increased television and digital campaign costs, including media campaigns for specific customers and additional personnel costs. In addition, we incurred increased expenses for our performance incentive plan as compared to the prior year. As a percentage of net revenues, marketing costs decreased to 12.0% in 2010 from 12.7% in 2009 primarily due to decreased marketing costs for specific customers. |
32
| Selling costs increased $25.0 million to $94.6 million in 2010 from $69.6 million in 2009. This increase was primarily due to higher personnel and other costs incurred for the continued expansion of our direct to consumer distribution channel and higher selling personnel costs, including increased expenses for our performance incentive plan as compared to the prior year. As a percentage of net revenues, selling costs increased to 8.9% in 2010 from 8.1% in 2009 primarily due to higher personnel and other costs incurred for the continued expansion of our factory house stores. |
| Product innovation and supply chain costs increased $25.0 million to $96.8 million in 2010 from $71.8 million in 2009 primarily due to higher personnel costs for the design and sourcing of our expanding apparel, footwear and accessories lines and higher distribution facilities operating and personnel costs as compared to the prior year to support our growth in net revenues. In addition, we incurred higher expenses for our performance incentive plan as compared to the prior year. As a percentage of net revenues, product innovation and supply chain costs increased to 9.1% in 2010 from 8.4% in 2009 primarily due to the items noted above. |
| Corporate services costs increased $24.0 million to $98.6 million in 2010 from $74.6 million in 2009. This increase was attributable primarily to higher corporate facility costs, information technology initiatives and corporate personnel costs, including increased expenses for our performance incentive plan as compared to the prior year. As a percentage of net revenues, corporate services costs increased to 9.3% in 2010 from 8.7% in 2009 primarily due to the items noted above. |
Income from operations increased $27.1 million, or 31.8%, to $112.4 million in 2010 from $85.3 million in 2009. Income from operations as a percentage of net revenues increased to 10.6% in 2010 from 10.0% in 2009. This increase was a result of the items discussed above.
Interest expense, net remained unchanged at $2.3 million in 2010 and 2009.
Other expense, net increased $0.7 million to $1.2 million in 2010 from $0.5 million in 2009. The increase in 2010 was due to higher net losses on the combined foreign currency exchange rate changes on transactions denominated in the Euro and Canadian dollar and our derivative financial instruments as compared to 2009.
Provision for income taxes increased $4.8 million to $40.4 million in 2010 from $35.6 million in 2009. Our effective tax rate was 37.1% in 2010 compared to 43.2% in 2009, primarily due to tax planning strategies and federal and state tax credits reducing the effective tax rate, partially offset by a valuation allowance recorded against our foreign net operating loss carryforward.
Segment Results of Operations
Year Ended December 31, 2011 Compared to Year Ended December 31, 2010
Net revenues by geographic region are summarized below:
Year Ended December 31, | ||||||||||||||||
(In thousands) |
2011 | 2010 | $ Change | % Change | ||||||||||||
North America |
$ | 1,383,346 | $ | 997,816 | $ | 385,530 | 38.6 | % | ||||||||
Other foreign countries |
89,338 | 66,111 | 23,227 | 35.1 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total net revenues |
$ | 1,472,684 | $ | 1,063,927 | $ | 408,757 | 38.4 | % | ||||||||
|
|
|
|
|
|
|
|
Net revenues in our North American operating segment increased $385.5 million to $1,383.3 million in 2011 from $997.8 million in 2010 primarily due to the items discussed above in the Consolidated Results of Operations. Net revenues in other foreign countries increased by $23.2 million to $89.3 million in 2011 from $66.1 million in 2010 primarily due to footwear shipments to our Dome licensee, as well as unit sales growth to our distributors in our Latin American operating segment.
33
Operating income by geographic region is summarized below:
Year Ended December 31, | ||||||||||||||||
(In thousands) |
2011 | 2010 | $ Change | % Change | ||||||||||||
North America |
$ | 150,559 | $ | 102,806 | $ | 47,753 | 46.4 | % | ||||||||
Other foreign countries |
12,208 | 9,549 | 2,659 | 27.8 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total operating income |
$ | 162,767 | $ | 112,355 | $ | 50,412 | 44.9 | % | ||||||||
|
|
|
|
|
|
|
|
Operating income in our North American operating segment increased $47.8 million to $150.6 million in 2011 from $102.8 million in 2010 primarily due to the items discussed above in the Consolidated Results of Operations. Operating income in other foreign countries increased by $2.7 million to $12.2 million in 2011 from $9.5 million in 2010 primarily due to increased unit sales growth as discussed above, partially offset by higher costs associated with our continued investment to support our international expansion in our EMEA, Asian and Latin American operating segments.
Year Ended December 31, 2010 Compared to Year Ended December 31, 2009
Net revenues by geographic region are summarized below:
Year Ended December 31, | ||||||||||||||||
(In thousands) |
2010 | 2009 | $ Change | % Change | ||||||||||||
North America |
$ | 997,816 | $ | 808,020 | $ | 189,796 | 23.5 | % | ||||||||
Other foreign countries |
66,111 | 48,391 | 17,720 | 36.6 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total net revenues |
$ | 1,063,927 | $ | 856,411 | $ | 207,516 | 24.2 | % | ||||||||
|
|
|
|
|
|
|
|
Net revenues in our North American operating segment increased $189.8 million to $997.8 million in 2010 from $808.0 million in 2009 primarily due to the items discussed above in the Consolidated Results of Operations. Net revenues in other foreign countries increased by $17.7 million to $66.1 million in 2010 from $48.4 million in 2009 primarily due to increased apparel unit sales in our EMEA operating segment and increased product distribution by our licensee in Japan.
Operating income by geographic region is summarized below:
Year Ended December 31, | ||||||||||||||||
(In thousands) |
2010 | 2009 | $ Change | % Change | ||||||||||||
North America |
$ | 102,806 | $ | 83,239 | $ | 19,567 | 23.5 | % | ||||||||
Other foreign countries |
9,549 | 2,034 | 7,515 | 369.5 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total operating income |
$ | 112,355 | $ | 85,273 | $ | 27,082 | 31.8 | % | ||||||||
|
|
|
|
|
|
|
|
Operating income in our North American operating segment increased $19.6 million to $102.8 million in 2010 from $83.2 million in 2009 primarily due to the items discussed above in the Consolidated Results of Operations. Operating income in other foreign countries increased by $7.5 million to $9.5 million in 2010 from $2.0 million in 2009 primarily due to increased unit sales growth as discussed above, partially offset by higher costs associated with our continued investment to support our international expansion in our EMEA, Asian and Latin American operating segments.
Seasonality
Historically, we have recognized a significant portion of our income from operations in the last two quarters of the year, driven primarily by increased sales volume of our products during the fall selling season, reflecting
34
our historical strength in fall sports, and the seasonality of our higher priced COLDGEAR® line. The majority of our net revenues were generated during the last two quarters in each of 2011, 2010 and 2009. The level of our working capital generally reflects the seasonality and growth in our business.
The following table sets forth certain financial information for the periods indicated. The data is prepared on the same basis as the audited consolidated financial statements included elsewhere in this Form 10-K. All recurring, necessary adjustments are reflected in the data below.
Quarter Ended | ||||||||||||||||||||||||||||||||
(In thousands) |
Mar 31, 2011 |
Jun 30, 2011 |
Sep 30, 2011 |
Dec 31, 2011 |
Mar 31, 2010 |
Jun 30, 2010 |
Sep 30, 2010 |
Dec 31, 2010 |
||||||||||||||||||||||||
Net revenues |
$ | 312,699 | $ | 291,336 | $ | 465,523 | $ | 403,126 | $ | 229,407 | $ | 204,786 | $ | 328,568 | $ | 301,166 | ||||||||||||||||
Gross profit |
145,051 | 134,779 | 225,101 | 207,905 | 107,631 | 99,926 | 167,372 | 155,578 | ||||||||||||||||||||||||
Marketing SG&A expenses |
41,437 | 34,136 | 48,450 | 43,883 | 31,198 | 27,438 | 36,015 | 33,539 | ||||||||||||||||||||||||
Other SG&A expenses |
82,472 | 89,285 | 101,686 | 108,720 | 62,849 | 65,596 | 74,668 | 86,849 | ||||||||||||||||||||||||
Income from operations |
21,142 | 11,358 | 74,965 | 55,302 | 13,584 | 6,892 | 56,689 | 35,190 | ||||||||||||||||||||||||
(As a percentage of annual totals) |
||||||||||||||||||||||||||||||||
Net revenues |
21.2 | % | 19.8 | % | 31.6 | % | 27.4 | % | 21.6 | % | 19.2 | % | 30.9 | % | 28.3 | % | ||||||||||||||||
Gross profit |
20.3 | % | 18.9 | % | 31.6 | % | 29.2 | % | 20.3 | % | 18.8 | % | 31.6 | % | 29.3 | % | ||||||||||||||||
Marketing SG&A expenses |
24.7 | % | 20.3 | % | 28.9 | % | 26.1 | % | 24.3 | % | 21.4 | % | 28.1 | % | 26.2 | % | ||||||||||||||||
Other SG&A expenses |
21.6 | % | 23.4 | % | 26.6 | % | 28.4 | % | 21.7 | % | 22.6 | % | 25.8 | % | 29.9 | % | ||||||||||||||||
Income from operations |
13.0 | % | 7.0 | % | 46.0 | % | 34.0 | % | 12.1 | % | 6.1 | % | 50.5 | % | 31.3 | % |
Financial Position, Capital Resources and Liquidity
Our cash requirements have principally been for working capital and capital expenditures. We fund our working capital, primarily inventory, and capital investments from cash flows from operating activities, cash and cash equivalents on hand and borrowings available under our credit and long term debt facilities. Our working capital requirements generally reflect the seasonality and growth in our business as we recognize the majority of our net revenues in the back half of the year. Our capital investments have included expanding our in-store fixture and branded concept shop program, improvements and expansion of our distribution and corporate facilities to support our growth, leasehold improvements to our new factory house and specialty stores, and investment and improvements in information technology systems. Our capital expenditures in 2011 included the acquisition of our corporate headquarters for $60.5 million along with approximately $2.2 million in additional related investments and improvements. In connection with the acquisition, we assumed a $38.6 million loan secured by the acquired property. The remaining purchase price was funded through a $25.0 million term loan. A $1.0 million deposit was paid upon signing the purchase agreement in November 2010.
Our inventory strategy is focused on continuing to meet consumer demand while improving our inventory efficiency over the long term by putting systems and processes in place to improve our inventory management. These systems and processes are designed to improve our forecasting and supply planning capabilities. In addition to systems and processes, key areas of focus that we believe will enhance inventory performance are SKU rationalization, added discipline around the purchasing of product, production lead time reduction, and better planning and execution in selling of excess inventory through our factory house stores and other liquidation channels. With regards to SKU rationalization, we anticipate a reduction of our total number of SKUs by approximately 20% from 2011 to 2012.
We believe our cash and cash equivalents on hand, cash from operations and borrowings available to us under our credit and long term debt facilities will be adequate to meet our liquidity needs and capital expenditure requirements for at least the next twelve months. We may require additional capital to meet our longer term liquidity and future growth needs. Although we believe we have adequate sources of liquidity over the long term, a prolonged economic recession or a slow recovery could adversely affect our business and liquidity (refer to the Risk Factors section included in Item 1A). In addition, instability in or tightening of the capital markets could adversely affect our ability to obtain additional capital to grow our business and will affect the cost and terms of such capital.
35
Cash Flows
The following table presents the major components of net cash flows used in and provided by operating, investing and financing activities for the periods presented:
Year Ended December 31, | ||||||||||||
(In thousands) |
2011 | 2010 | 2009 | |||||||||
Net cash provided by (used in): |
||||||||||||
Operating activities |
$ | 15,218 | $ | 50,114 | $ | 119,041 | ||||||
Investing activities |
(89,436 | ) | (41,785 | ) | (19,880 | ) | ||||||
Financing activities |
45,807 | 7,243 | (16,467 | ) | ||||||||
Effect of exchange rate changes on cash and cash equivalents |
(75 | ) | 1,001 | 2,561 | ||||||||
|
|
|
|
|
|
|||||||
Net increase (decrease) in cash and cash equivalents |
$ | (28,486 | ) | $ | 16,573 | $ | 85,255 | |||||
|
|
|
|
|
|
Operating Activities
Operating activities consist primarily of net income adjusted for certain non-cash items. Adjustments to net income for non-cash items include depreciation and amortization, unrealized foreign currency exchange rate gains and losses, losses on disposals of property and equipment, stock-based compensation, deferred income taxes and changes in reserves and allowances. In addition, operating cash flows include the effect of changes in operating assets and liabilities, principally inventories, accounts receivable, income taxes payable and receivable, prepaid expenses and other assets, accounts payable and accrued expenses.
Cash provided by operating activities decreased $34.9 million to $15.2 million in 2011 from $50.1 million in 2010. The decrease in cash provided by operating activities was due to decreased net cash flows from operating assets and liabilities of $86.8 million, partially offset by an increase in net income of $28.4 million and adjustments to net income for non-cash items which increased $23.5 million year over year. The decrease in net cash flows related to changes in operating assets and liabilities period over period was primarily driven by the following:
| an increase in inventory investments of $49.4 million. In line with our prior guidance, inventory grew at a rate higher than net sales growth due to higher input costs and increased safety stock in core product offerings and seasonal products; and |
| a larger increase in prepaid expenses and other assets of $38.5 million in 2011 as compared to 2010 primarily due to income taxes paid during the last six months of 2011, related to our 2011 tax planning strategies, that will be recognized in income tax expense in future periods. |
Adjustments to net income for non-cash items increased in 2011 as compared to 2010 primarily due to a decrease in deferred taxes in 2011 as compared to an increase in deferred taxes in 2010.
Cash provided by operating activities decreased $68.9 million to $50.1 million in 2010 from $119.0 million in 2009. The decrease in cash provided by operating activities was due to decreased net cash flows from operating assets and liabilities of $99.1 million, partially offset by an increase in net income of $21.7 million and adjustments to net income for non-cash items which increased $8.5 million year over year. The decrease in net cash flows related to changes in operating assets and liabilities period over period was primarily driven by the following:
| an increase in net inventory investments of $98.2 million, partially offset by an increase in accounts payable of $20.5 million. In line with our prior guidance, inventory grew in the fourth quarter of 2010 at a rate higher than net sales growth due to increased safety stock, primarily COLDGEAR®, to better meet anticipated consumer demand, investments around new products in 2011 including headwear, |
36
bags and CHARGED COTTON®, and continued increases in our made-for strategy across our factory house store base. In 2009, operational initiatives were put in place to improve our inventory management which assisted in the decrease of inventory for that period; and |
| an increase in accounts receivable during 2010 primarily due to a 36.9% increase in net sales during the fourth quarter of 2010; partially offset by |
| higher income taxes payable in 2010 as compared to 2009. |
Adjustments to net income for non-cash items increased in 2010 as compared to 2009 primarily due to unrealized foreign currency exchange rate losses in 2010 as compared to unrealized foreign currency exchange rate gains in 2009.
Investing Activities
Cash used in investing activities increased $47.6 million to $89.4 million in 2011 from $41.8 million in 2010. This increase in cash used in investing activities was primarily due to the acquisition of our corporate headquarters and increased investments in our direct to consumer sales channel, in-store fixture program and corporate and distribution facilities. In addition, in connection with the assumed loan for the acquisition of our corporate headquarters, we were required to set aside $5.0 million in restricted cash. Refer to Note 7 of the consolidated financial statements for a discussion of restricted cash.
Cash used in investing activities increased $21.9 million to $41.8 million in 2010 from $19.9 million in 2009. This increase in cash used in investing activities was primarily due to increased investments in new factory house stores and corporate and distribution facilities, partially offset by lower investments in our in-store fixture program and branded concept shops. In addition, cash used in investing activities increased due to a deposit made in late December 2010 for a minority investment completed in early 2011 in Dome Corporation, our Japanese licensee.
Total capital expenditures were $115.4 million, $33.1 million and $24.6 million in 2011, 2010 and 2009, respectively, which includes the acquisition of our corporate headquarters and other related expenditures in 2011. Total capital expenditures in 2011, 2010 and 2009 included non-cash transactions of $36.0 million, $2.9 million and $4.8 million, respectively. Because we receive certain capital expenditures prior to transmitting payment for these capital investments, total capital expenditures exceed capital investments included in our consolidated statements of cash flows. Capital expenditures for 2012 are expected to be in the range of $60 million to $65 million.
Financing Activities
Cash provided by financing activities increased $38.6 million to $45.8 million in 2011 from $7.2 million in 2010. This increase was primarily due to the term loan borrowed under the credit facility to partially fund the purchase of our corporate headquarters, as well as excess tax benefits and proceeds from stock-based compensation arrangements.
Cash provided by financing activities increased $23.7 million to $7.2 million in 2010 from cash used in financing activities of $16.5 million in 2009. This increase was primarily due to the final payment made on our prior revolving credit facility that was terminated during 2009.
Credit Facility
In March 2011, we entered into a new $325.0 million credit facility with certain lending institutions and terminated our prior $200.0 million revolving credit facility in order to increase our available financing and to expand our lending syndicate. The credit facility has a term of four years and provides for a committed revolving
37
credit line of up to $300.0 million, in addition to a $25.0 million term loan facility. The commitment amount under the revolving credit facility may be increased by an additional $50.0 million, subject to certain conditions and approvals as set forth in the credit agreement. We incurred and capitalized $1.6 million in deferred financing costs in connection with the credit facility.
The credit facility may be used for working capital and general corporate purposes and is collateralized by substantially all of our assets and certain of our domestic subsidiaries (other than trademarks and the land, buildings and other assets comprising our corporate headquarters) and by a pledge of 65% of the equity interests of certain of our foreign subsidiaries. Up to $5.0 million of the facility may be used to support letters of credit, of which none were outstanding as of December 31, 2011. We are required to maintain a certain leverage ratio and interest coverage ratio as set forth in the credit agreement. As of December 31, 2011, we were in compliance with these ratios. The credit agreement also provides the lenders with the ability to reduce the borrowing base, even if we are in compliance with all conditions of the credit agreement, upon a material adverse change to the business, properties, assets, financial condition or results of operations. The credit agreement contains a number of restrictions that limit our ability, among other things, and subject to certain limited exceptions, to incur additional indebtedness, pledge our assets as security, guaranty obligations of third parties, make investments, undergo a merger or consolidation, dispose of assets, or materially change our line of business. In addition, the credit agreement includes a cross default provision whereby an event of default under other debt obligations, as defined in the credit agreement, will be considered an event of default under the credit agreement.
Borrowings under the credit facility bear interest based on the daily balance outstanding at LIBOR (with no rate floor) plus an applicable margin (varying from 1.25% to 1.75%) or, in certain cases a base rate (based on a certain lending institutions Prime Rate or as otherwise specified in the credit agreement, with no rate floor) plus an applicable margin (varying from 0.25% to 0.75%). The credit facility also carries a commitment fee equal to the unused borrowings multiplied by an applicable margin (varying from 0.25% to 0.35%). The applicable margins are calculated quarterly and vary based on our leverage ratio as set forth in the credit agreement.
Upon entering into the credit facility in March 2011, we terminated our prior $200.0 million revolving credit facility. The prior revolving credit facility was collateralized by substantially all of our assets, other than trademarks, and included covenants, conditions and other terms similar to our new credit facility.
In May 2011, we borrowed $25.0 million under the term loan facility to finance a portion of the acquisition of our corporate headquarters. The interest rate on the term loan was 1.5% during the year ended December 31, 2011. The maturity date of the term loan is March 2015, which is the end of the credit facility term. In early 2013, we expect to refinance both the term loan and the loan assumed in the acquisition of our corporate headquarters. During the three months ended September 30, 2011, we borrowed $30.0 million under the revolving credit facility to fund seasonal working capital requirements and repaid it during the three months ended December 31, 2011. The interest rate under the revolving credit facility was 1.5% during the year ended December 31, 2011, and no balance was outstanding as of December 31, 2011. No balances were outstanding under the prior revolving credit facility during the year ended December 31, 2010.
Long Term Debt
We have long term debt agreements with various lenders to finance the acquisition or lease of qualifying capital investments. Loans under these agreements are collateralized by a first lien on the related assets acquired. As these agreements are not committed facilities, each advance is subject to approval by the lenders. Additionally, these agreements include a cross default provision whereby an event of default under other debt obligations, including our credit facility, will be considered an event of default under these agreements. These agreements require a prepayment fee if we pay outstanding amounts ahead of the scheduled terms. The terms of the credit facility limit the total amount of additional financing under these agreements to $40.0 million, of which $21.5 million was available for additional financing as of December 31, 2011. At December 31, 2011 and 2010, the outstanding principal balance under these agreements was $14.5 million and $15.9 million, respectively.
38
Currently, advances under these agreements bear interest rates which are fixed at the time of each advance. The weighted average interest rates on outstanding borrowings were 3.5%, 5.3% and 5.9% for the years ended December 31, 2011, 2010 and 2009, respectively.
We monitor the financial health and stability of our lenders under our credit and long term debt facilities, however during any period of instability in the credit markets lenders could be negatively impacted in their ability to perform under these facilities.
In July 2011, in connection with the acquisition of our corporate headquarters, we assumed a $38.6 million nonrecourse loan secured by a mortgage on the acquired property. The acquisition of our corporate headquarters was accounted for as a business combination, and the carrying value of the loan secured by the acquired property approximates fair value. The assumed loan had an original term of approximately ten years with a scheduled maturity date of March 1, 2013. The loan includes a balloon payment of $37.3 million due at maturity, and may not be prepaid. The assumed loan is a nonrecourse loan with the lenders remedies for non-performance limited to action against the acquired property and certain required reserves and a cash collateral account, except for nonrecourse carveouts related to fraud, breaches of certain representations, warranties or covenants, including those related to environmental matters, and other standard carveouts for a loan of this type. The loan requires certain minimum cash flows and financial results from the property, and if those requirements are not met, additional reserves may be required. The assumed loan requires prior approval of the lender for certain matters related to the property, including material leases, changes to property management, transfers of any part of the property and material alterations to the property. The loan has an interest rate of 6.73%. In connection with the assumed loan, we incurred and capitalized $0.8 million in deferred financing costs. As of December 31, 2011, the outstanding balance on the loan was $38.2 million. In addition, in connection with the assumed loan for the acquisition of our corporate headquarters, we were required to set aside amounts in reserve and cash collateral accounts. As of December 31, 2011, $2.0 million of restricted cash was included in prepaid expenses and other current assets, and the remaining $3.0 million of restricted cash was included in other long term assets.
Acquisitions
In July 2011, we acquired approximately 400.0 thousand square feet of office space comprising part of our corporate headquarters for $60.5 million. The acquisition included land, buildings, tenant improvements and third party lease-related intangible assets. As of the purchase date, 163.6 thousand square feet of the 400.0 thousand square feet of office space acquired was leased to third party tenants. These leases had remaining lease terms ranging from 9 months to 15 years as of the purchase date. We intend to occupy additional space as it becomes available. Since the acquisition, we have invested $2.2 million in additional improvements.
The acquisition included the assumption of a $38.6 million loan secured by the property and the remaining purchase price was paid in cash funded primarily by a $25.0 million term loan borrowed in May 2011. The carrying value of the assumed loan approximated its fair value on the date of the acquisition. Refer above and to Note 7 to the Consolidated Financial Statements for a discussion of the assumed loan and term loan. A $1.0 million deposit was paid upon signing the purchase agreement in November 2010.
The aggregate fair value of the acquisition was $63.8 million. The fair value was estimated using a combination of market, income and cost approaches. The acquisition was accounted for as a business combination, and as such we recognized a bargain purchase gain of $3.3 million as the amount by which the fair value of the net assets acquired exceeded the fair value of the purchase price.
In connection with this acquisition, we incurred acquisition related expenses of approximately $1.9 million. Both the acquisition related expenses and pre-tax bargain purchase gain were included in selling, general and administrative expenses on the consolidated statements of income during the year ended December 31, 2011. This transaction is not expected to have a material impact to our consolidated statements of income in future periods.
39
We believe that we were able to negotiate the acquisition of the net assets for less than fair value because the seller marketed the property in a limited manner, and thus the property did not have adequate exposure to the market prior to the measurement date to allow for marketing activities that are usual and customary for real estate transactions. In addition, we were the majority tenant immediately prior to the acquisition and were willing and qualified to assume the secured loan.
Contractual Commitments and Contingencies
We lease warehouse space, office facilities, space for our factory house and specialty stores and certain equipment under non-cancelable operating and capital leases. The leases expire at various dates through 2023, excluding extensions at our option, and contain various provisions for rental adjustments. In addition, this table includes executed lease agreements for factory house stores that we did not yet occupy as of December 31, 2011. The operating leases generally contain renewal provisions for varying periods of time. Our significant contractual obligations and commitments as of December 31, 2011 are summarized in the following table:
Payments Due by Period | ||||||||||||||||||||
(in thousands) |
Total | Less Than 1 Year |
1 to 3 Years | 3 to 5 Years | More Than 5 Years |
|||||||||||||||
Contractual obligations |
||||||||||||||||||||
Long term debt obligations (1) |
$ | 77,724 | $ | 6,882 | $ | 68,891 | $ | 1,951 | $ | | ||||||||||
Operating lease obligations (2) |
185,178 | 22,926 | 49,511 | 43,697 | 69,044 | |||||||||||||||
Product purchase obligations (3) |
288,724 | 288,724 | | | | |||||||||||||||
Sponsorships and other (4) |
169,514 | 52,855 | 89,424 | 26,269 | 966 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total |
$ | 721,140 | $ | 371,387 | $ | 207,826 | $ | 71,917 | $ | 70,010 | ||||||||||
|
|
|
|
|
|
|
|
|
|
(1) | Excludes a total of $4.0 million in interest payments on long term debt obligations. Includes the repayment of $25.0 million borrowed under the term loan facility which is due in March 2015 but is planned to be refinanced in early 2013 with the loan assumed in the acquisition of our corporate headquarters. |
(2) | Includes the minimum payments for operating lease obligations. The operating lease obligations do not include any contingent rent expense we may incur at our factory house stores based on future sales above a specified minimum or payments made for maintenance, insurance and real estate taxes. Contingent rent expense was $3.6 million for the year ended December 31, 2011. |
(3) | We generally place orders with our manufacturers at least three to four months in advance of expected future sales. The amounts listed for product purchase obligations primarily represent our open production purchase orders for our apparel, footwear and accessories, including expected inbound freight, duties and other costs. These open purchase orders specify fixed or minimum quantities of products at determinable prices. The reported amounts exclude product purchase liabilities included in accounts payable as of December 31, 2011. When compared to the product purchase obligation included in our 2010 Form 10-K, product purchase obligations have decreased by 19% primarily due to the timing of product purchases and improvements in inventory management. |
(4) | Includes footwear promotional rights fees, sponsorships of individual athletes, sports teams and athletic events and other marketing commitments in order to promote our brand. Some of these sponsorship agreements provide for additional performance incentives and product supply obligations. It is not possible to determine how much we will spend on product supply obligations on an annual basis as contracts generally do not stipulate specific cash amounts to be spent on products. The amount of product provided to these sponsorships depends on many factors including general playing conditions, the number of sporting events in which they participate and our decisions regarding product and marketing initiatives. In addition, the costs to design, develop, source and purchase the products furnished to the endorsers are incurred over a period of time and are not necessarily tracked separately from similar costs incurred for products sold to customers. In addition, it is not possible to determine the amounts we may be required to pay under these agreements as they are primarily subject to certain performance based variables. The amounts listed above are the fixed minimum amounts required to be paid under these agreements. |
40
The table above excludes a liability of $11.2 million for uncertain tax positions, including the related interest and penalties, recorded in accordance with applicable accounting guidance, as we are unable to reasonably estimate the timing of settlement. Refer to Note 11 to the Consolidated Financial Statements for a further discussion of our uncertain tax positions.
Off-Balance Sheet Arrangements
In connection with various contracts and agreements, we have agreed to indemnify counterparties against certain third party claims relating to the infringement of intellectual property rights and other items. Generally, such indemnification obligations do not apply in situations in which our counterparties are grossly negligent, engage in willful misconduct, or act in bad faith. Based on our historical experience and the estimated probability of future loss, we have determined the fair value of such indemnifications is not material to our financial position or results of operations.
Critical Accounting Policies and Estimates
Our consolidated financial statements have been prepared in accordance with accounting principles generally accepted in the United States of America. To prepare these financial statements, we must make estimates and assumptions that affect the reported amounts of assets, liabilities, revenues and expenses, as well as the disclosures of contingent assets and liabilities. Actual results could be significantly different from these estimates. We believe the following discussion addresses the critical accounting policies that are necessary to understand and evaluate our reported financial results.
Revenue Recognition
Net revenues consist of both net sales and license revenues. Net sales are recognized upon transfer of ownership, including passage of title to the customer and transfer of risk of loss related to those goods. Transfer of title and risk of loss are based upon shipment under free on board shipping point for most goods or upon receipt by the customer depending on the country of the sale and the agreement with the customer. In some instances, transfer of title and risk of loss take place at the point of sale, for example at our retail stores. We may also ship product directly from our supplier to the customer and recognize revenue when the product is delivered to and accepted by the customer. License revenues are recognized based upon shipment of licensed products sold by our licensees. Sales taxes imposed on our revenues from product sales are presented on a net basis on the consolidated statements of income and therefore do not impact net revenues or costs of goods sold.
We record reductions to revenue for estimated customer returns, allowances, markdowns and discounts. We base our estimates on historical rates of customer returns and allowances as well as the specific identification of outstanding returns, markdowns and allowances that have not yet been received by us. The actual amount of customer returns and allowances, which is inherently uncertain, may differ from our estimates. If we determine that actual or expected returns or allowances are significantly higher or lower than the reserves we established, we would record a reduction or increase, as appropriate, to net sales in the period in which we make such a determination. Provisions for customer specific discounts are based on contractual obligations with certain major customers. Reserves for returns, allowances, markdowns and discounts are recorded as an offset to accounts receivable as settlements are made through offsets to outstanding customer invoices. As of December 31, 2011 and 2010, there were $27.1 million and $25.2 million, respectively, in reserves for customer returns, allowances, markdowns and discounts.
Allowance for Doubtful Accounts
We make ongoing estimates relating to the collectability of our accounts receivable and maintain a reserve for estimated losses resulting from the inability of our customers to make required payments. In determining the amount of the reserve, we consider our historical levels of credit losses and significant economic developments
41
within the retail environment that could impact the ability of our customers to pay outstanding balances and make judgments about the creditworthiness of significant customers based on ongoing credit evaluations. Because we cannot predict future changes in the financial stability of our customers, future losses from uncollectible accounts may differ from our estimates. If the financial condition of our customers were to deteriorate, resulting in their inability to make payments, a larger reserve might be required. In the event we determine that a smaller or larger reserve was appropriate, we would record a benefit or charge to selling, general and administrative expenses in the period in which we made such a determination.
Inventory Valuation and Reserves
We value our inventory at standard cost which approximates our landed cost, using the first-in, first-out method of cost determination. Market value is estimated based upon assumptions made about future demand and retail market conditions. If we determine that the estimated market value of our inventory is less than the carrying value of such inventory, we record a charge to cost of goods sold to reflect the lower of cost or market. If actual market conditions are less favorable than those projected by us, further adjustments may be required that would increase our cost of goods sold in the period in which we make such a determination.
Impairment of Long-Lived Assets
We continually evaluate whether events and circumstances have occurred that indicate the remaining estimated useful life of long-lived assets may warrant revision or that the remaining balance may not be recoverable. These factors may include a significant deterioration of operating results, changes in business plans, or changes in anticipated cash flows. When factors indicate that an asset should be evaluated for possible impairment, we review long-lived assets to assess recoverability from future operations using undiscounted cash flows. Impairments are recognized in earnings to the extent that the carrying value exceeds fair value. No material impairments were recorded in the years ended December 31, 2011, 2010 and 2009.
Income Taxes
Income taxes are accounted for under the asset and liability method. Deferred income tax assets and liabilities are established for temporary differences between the financial reporting basis and the tax basis of our assets and liabilities at tax rates expected to be in effect when such assets or liabilities are realized or settled. Deferred income tax assets are reduced by valuation allowances when necessary.
Assessing whether deferred tax assets are realizable requires significant judgment. We consider all available positive and negative evidence, including historical operating performance and expectations of future operating performance. The ultimate realization of deferred tax assets is often dependent upon future taxable income and therefore can be uncertain. To the extent we believe it is more likely than not that all or some portion of the asset will not be realized, valuation allowances are established against our deferred tax assets, which increase income tax expense in the period when such a determination is made.
Income taxes include the largest amount of tax benefit for an uncertain tax position that is more likely than not to be sustained upon audit based on the technical merits of the tax position. Settlements with tax authorities, the expiration of statutes of limitations for particular tax positions, or obtaining new information on particular tax positions may cause a change to the effective tax rate. We recognize accrued interest and penalties related to unrecognized tax benefits in the provision for income taxes on the consolidated statements of income.
Stock-Based Compensation
We account for stock-based compensation in accordance with accounting guidance that requires all stock-based compensation awards granted to employees and directors to be measured at fair value and recognized as an expense in the financial statements. As of December 31, 2011, we had $24.6 million of unrecognized
42
compensation expense, excluding performance-based equity awards, expected to be recognized over a weighted average period of 1.9 years. As of December 31, 2011, we had $7.3 million of unrecognized compensation expense related to performance-based stock options expected to be recognized over a weighted average period of 1.8 years.
Determining the appropriate fair value model and calculating the fair value of stock-based compensation awards require the input of highly subjective assumptions, including the expected life of the stock-based compensation awards, stock price volatility and estimated forfeiture rates. We use the Black-Scholes option-pricing model to determine the fair value of stock-based compensation awards. The assumptions used in calculating the fair value of stock-based compensation awards represent managements best estimates, but the estimates involve inherent uncertainties and the application of management judgment. In addition, compensation expense for performance-based awards is recorded over the related service period when achievement of the performance target is deemed probable, which requires management judgment. For example, the achievement of the operating income targets related to the performance-based restricted stock units granted in 2011 were not deemed probable as of December 31, 2011. Additional stock-based compensation of up to $5.6 million would have been recorded in 2011 for these performance-based restricted stock units had the full achievement of these operating targets been deemed probable. As a result, if factors change and we use different assumptions, our stock-based compensation expense could be materially different in the future. Refer to Note 2 and Note 13 to the Consolidated Financial Statements for a further discussion on stock-based compensation.
Recently Issued Accounting Standards
In June 2011, the Financial Accounting Standards Board (FASB) issued an Accounting Standards Update which eliminates the option to report other comprehensive income and its components in the statement of changes in stockholders equity. It requires an entity to present total comprehensive income, which includes the components of net income and the components of other comprehensive income, either in a single continuous statement or in two separate but consecutive statements. In December 2011, the FASB issued an amendment to this pronouncement which defers the specific requirement to present components of reclassifications of other comprehensive income on the face of the income statement. These pronouncements are effective for financial statements issued for fiscal years, and interim periods within those years, beginning after December 15, 2011. We believe the adoption of these pronouncements will not have a material impact on our consolidated financial statements.
In May 2011, the FASB issued an Accounting Standards Update which clarifies the requirements for how to measure fair value and for disclosing information about fair value measurements common to accounting principles generally accepted in the United States of America and International Financial Reporting Standards. This guidance is effective for interim and annual periods beginning on or after December 15, 2011. We believe the adoption of this guidance will not have a material impact on our consolidated financial statements.
ITEM 7A. QUANTITATIVE | AND QUALITATIVE DISCLOSURE ABOUT MARKET RISK |
Foreign Currency Exchange and Foreign Currency Risk Management and Derivatives
We currently generate a small amount of our consolidated net revenues in Canada and Europe. The reporting currency for our consolidated financial statements is the U.S. dollar. To date, net revenues generated outside of the United States have not been significant. However, as our net revenues generated outside of the United States increase, our results of operations could be adversely impacted by changes in foreign currency exchange rates. For example, if we recognize foreign revenues in local foreign currencies (as we currently do in Canada and Europe) and if the U.S. dollar strengthens, it could have a negative impact on our foreign revenues upon translation of those results into the U.S. dollar upon consolidation of our financial statements. In addition, we are exposed to gains and losses resulting from fluctuations in foreign currency exchange rates on transactions generated by our foreign subsidiaries in currencies other than their local currencies. These gains and losses are primarily driven by intercompany transactions. These exposures are included in other expense, net on the consolidated statements of income.
43
From time to time, we may elect to use foreign currency forward contracts to reduce the risk from exchange rate fluctuations on intercompany transactions and projected inventory purchases for our European and Canadian subsidiaries. In addition, we may elect to enter into foreign currency forward contracts to reduce the risk associated with foreign currency exchange rate fluctuations on Pound Sterling denominated balance sheet items. We do not enter into derivative financial instruments for speculative or trading purposes.
Based on the foreign currency forward contracts outstanding as of December 31, 2011, we receive U.S. Dollars in exchange for Canadian Dollars at a weighted average contractual forward foreign currency exchange rate of 1.03 CAD per $1.00, U.S. Dollars in exchange for Euros at a weighted average contractual foreign currency exchange rate of 0.77 per $1.00 and Euros in exchange for Pounds Sterling at a weighted average contractual foreign currency exchange rate of £0.84 per 1.00. As of December 31, 2011, the notional value of our outstanding foreign currency forward contracts for our Canadian subsidiary was $51.1 million with contract maturities of 1 month or less, and the notional value of our outstanding foreign currency forward contracts for our European subsidiary was $50.0 million with contract maturities of 1 month. As of December 31, 2011, the notional value of our outstanding foreign currency forward contract used to mitigate the foreign currency exchange rate fluctuations on Pound Sterling denominated balance sheet items was 10.5 million, or $13.6 million, with a contract maturity of 1 month. The foreign currency forward contracts are not designated as cash flow hedges, and accordingly, changes in their fair value are recorded in other expense, net on the consolidated statements of income. The fair values of our foreign currency forward contracts were liabilities of $0.7 million and $0.6 million as of December 31, 2011 and 2010, respectively, and were included in accrued expenses on the consolidated balance sheet. Refer to Note 10 to the Consolidated Financial Statements for a discussion of the fair value measurements. Included in other expense, net were the following amounts related to changes in foreign currency exchange rates and derivative foreign currency forward contracts:
Year Ended December 31, | ||||||||||||
(In thousands) |
2011 | 2010 | 2009 | |||||||||
Unrealized foreign currency exchange rate gains (losses) |
$ | (4,027 | ) | $ | (1,280 | ) | $ | 5,222 | ||||
Realized foreign currency exchange rate gains (losses) |
298 | (2,638 | ) | (261 | ) | |||||||
Unrealized derivative losses |
(31 | ) | (809 | ) | (1,060 | ) | ||||||
Realized derivative gains (losses) |
1,696 | 3,549 | (4,412 | ) |
We enter into foreign currency forward contracts with major financial institutions with investment grade credit ratings and are exposed to credit losses in the event of non-performance by these financial institutions. This credit risk is generally limited to the unrealized gains in the foreign currency forward contracts. However, we monitor the credit quality of these financial institutions and consider the risk of counterparty default to be minimal. Although we have entered into foreign currency forward contracts to minimize some of the impact of foreign currency exchange rate fluctuations on future cash flows, we cannot be assured that foreign currency exchange rate fluctuations will not have a material adverse impact on our financial condition and results of operations.
Inflation
Inflationary factors such as increases in the cost of our product and overhead costs may adversely affect our operating results. Although we do not believe that inflation has had a material impact on our financial position or results of operations to date, a high rate of inflation in the future may have an adverse effect on our ability to maintain current levels of gross margin and selling, general and administrative expenses as a percentage of net revenues if the selling prices of our products do not increase with these increased costs.
44
ITEM 8. | FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA |
Report of Management on Internal Control Over Financial Reporting
Management is responsible for establishing and maintaining adequate internal control over financial reporting for the Company. We conducted an evaluation of the effectiveness of our internal control over financial reporting based on the framework in Internal ControlIntegrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO). This evaluation included review of the documentation of controls, evaluation of the design effectiveness of controls, testing of the operating effectiveness of controls and a conclusion on this evaluation. Based on our evaluation, we have concluded that our internal control over financial reporting was effective as of December 31, 2011.
The effectiveness of our internal control over financial reporting as of December 31, 2011, has been audited by PricewaterhouseCoopers LLP, an independent registered public accounting firm, as stated in their report which appears herein.
/s/ KEVIN A. PLANK Kevin A. Plank |
President, Chief Executive Officer and Chairman of the Board of Directors | |
/s/ BRAD DICKERSON Brad Dickerson |
Chief Financial Officer |
Dated: February 24, 2012
45
Report of Independent Registered Public Accounting Firm
To the Board of Directors and Stockholders of Under Armour, Inc.:
In our opinion, the consolidated financial statements listed in the index appearing under Item 15(a)(1) present fairly, in all material respects, the financial position of Under Armour, Inc. and its subsidiaries (the Company) at December 31, 2011 and 2010, and the results of their operations and their cash flows for each of the three years in the period ended December 31, 2011 in conformity with accounting principles generally accepted in the United States of America. In addition, in our opinion, the financial statement schedule listed in the index appearing under Item 15(a)(2) presents fairly, in all material respects, the information set forth therein when read in conjunction with the related consolidated financial statements. Also in our opinion, the Company maintained, in all material respects, effective internal control over financial reporting as of December 31, 2011, based on criteria established in Internal ControlIntegrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO). The Companys management is responsible for these financial statements and financial statement schedule, for maintaining effective internal control over financial reporting and for its assessment of the effectiveness of internal control over financial reporting, included in the accompanying Report of Management on Internal Control over Financial Reporting. Our responsibility is to express opinions on these financial statements, on the financial statement schedule, and on the Companys internal control over financial reporting based on our integrated audits. We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audits to obtain reasonable assurance about whether the financial statements are free of material misstatement and whether effective internal control over financial reporting was maintained in all material respects. Our audits of the financial statements included examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, and evaluating the overall financial statement presentation. Our audit of internal control over financial reporting included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, and testing and evaluating the design and operating effectiveness of internal control based on the assessed risk. Our audits also included performing such other procedures as we considered necessary in the circumstances. We believe that our audits provide a reasonable basis for our opinions.
A companys internal control over financial reporting is a process designed 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. A companys internal control over financial reporting includes those policies and procedures that (i) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the companys assets that could have a material effect on the financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
/s/ PricewaterhouseCoopers LLP
Baltimore, Maryland
February 24, 2012
46
Under Armour, Inc. and Subsidiaries
Consolidated Balance Sheets
(In thousands, except share data)
December 31, 2011 |
December 31, 2010 |
|||||||
Assets |
||||||||
Current assets |
||||||||
Cash and cash equivalents |
$ | 175,384 | $ | 203,870 | ||||
Accounts receivable, net |
134,043 | 102,034 | ||||||
Inventories |
324,409 | 215,355 | ||||||
Prepaid expenses and other current assets |
39,643 | 19,326 | ||||||
Deferred income taxes |
16,184 | 15,265 | ||||||
|
|
|
|
|||||
Total current assets |
689,663 | 555,850 | ||||||
Property and equipment, net |
159,135 | 76,127 | ||||||
Intangible assets, net |
5,535 | 3,914 | ||||||
Deferred income taxes |
15,885 | 21,275 | ||||||
Other long term assets |
48,992 | 18,212 | ||||||
|
|
|
|
|||||
Total assets |
$ | 919,210 | $ | 675,378 | ||||
|
|
|
|
|||||
Liabilities and Stockholders Equity |
||||||||
Current liabilities |
||||||||
Accounts payable |
$ | 100,527 | $ | 84,679 | ||||
Accrued expenses |
69,285 | 55,138 | ||||||
Current maturities of long term debt |
6,882 | 6,865 | ||||||
Other current liabilities |
6,913 | 2,465 | ||||||
|
|
|
|
|||||
Total current liabilities |
183,607 | 149,147 | ||||||
Long term debt, net of current maturities |
70,842 | 9,077 | ||||||
Other long term liabilities |
28,329 | 20,188 | ||||||
|
|
|
|
|||||
Total liabilities |
282,778 | 178,412 | ||||||
|
|
|
|
|||||
Commitments and contingencies (see Note 8) |
||||||||
Stockholders equity |
||||||||
Class A Common Stock, $.0003 1/3 par value; 100,000,000 shares authorized as of December 31, 2011 and 2010; 40,496,126 shares issued and outstanding as of December 31, 2011 and 38,660,355 shares issued and outstanding as of December 31, 2010. |
13 | 13 | ||||||
Class B Convertible Common Stock, $.0003 1/3 par value; 11,250,000 shares authorized, issued and outstanding as of December 31, 2011, 12,500,000 shares authorized, issued and outstanding as of December 31, 2010. |
4 | 4 | ||||||
Additional paid-in capital |
268,223 | 224,887 | ||||||
Retained earnings |
366,164 | 270,021 | ||||||
Accumulated other comprehensive income |
2,028 | 2,041 | ||||||
|
|
|
|
|||||
Total stockholders equity |
636,432 | 496,966 | ||||||
|
|
|
|
|||||
Total liabilities and stockholders equity |
$ | 919,210 | $ | 675,378 | ||||
|
|
|
|
See accompanying notes.
47
Under Armour, Inc. and Subsidiaries
Consolidated Statements of Income
(In thousands, except per share amounts)
Year Ended December 31, | ||||||||||||
2011 | 2010 | 2009 | ||||||||||
Net revenues |
$ | 1,472,684 | $ | 1,063,927 | $ | 856,411 | ||||||
Cost of goods sold |
759,848 | 533,420 | 446,286 | |||||||||
|
|
|
|
|
|
|||||||
Gross profit |
712,836 | 530,507 | 410,125 | |||||||||
Selling, general and administrative expenses |
550,069 | 418,152 | 324,852 | |||||||||
|
|
|
|
|
|
|||||||
Income from operations |
162,767 | 112,355 | 85,273 | |||||||||
Interest expense, net |
(3,841 | ) | (2,258 | ) | (2,344 | ) | ||||||
Other expense, net |
(2,064 | ) | (1,178 | ) | (511 | ) | ||||||
|
|
|
|
|
|
|||||||
Income before income taxes |
156,862 | 108,919 | 82,418 | |||||||||
Provision for income taxes |
59,943 | 40,442 | 35,633 | |||||||||
|
|
|
|
|
|
|||||||
Net income |
$ | 96,919 | $ | 68,477 | $ | 46,785 | ||||||
|
|
|
|
|
|
|||||||
Net income available per common share |
||||||||||||
Basic |
$ | 1.88 | $ | 1.35 | $ | 0.94 | ||||||
Diluted |
$ | 1.85 | $ | 1.34 | $ | 0.92 | ||||||
Weighted average common shares outstanding |
||||||||||||
Basic |
51,570 | 50,798 | 49,848 | |||||||||
Diluted |
52,526 | 51,282 | 50,650 |
See accompanying notes.
48
Under Armour, Inc. and Subsidiaries
Consolidated Statements of Stockholders Equity and Comprehensive Income
(In thousands)
Class A Common Stock |
Class B Convertible Common Stock |
Additional Paid-In Capital |
Retained Earnings |
Unearned Compen- sation |
Accum- ulated Other Compre- hensive Income (Loss) |
Compre- hensive Income |
Total Stockholders Equity |
|||||||||||||||||||||||||||||||||
Shares | Amount | Shares | Amount | |||||||||||||||||||||||||||||||||||||
Balance as of December 31, 2008 |
36,809 | $ | 12 | 12,500 | $ | 4 | $ | 174,725 | $ | 156,011 | $ | (60 | ) | $ | 405 | $ | 331,097 | |||||||||||||||||||||||
Exercise of stock options |
853 | 1 | | | 4,000 | | | | 4,001 | |||||||||||||||||||||||||||||||
Shares withheld in consideration of employee tax obligations relative to stock-based compensation arrangements |
(26 | ) | | | | | (608 | ) | | | (608 | ) | ||||||||||||||||||||||||||||
Issuance of Class A Common Stock, net of forfeitures |
112 | | | | 1,509 | | | | 1,509 | |||||||||||||||||||||||||||||||
Stock-based compensation expense |
| | | | 12,864 | | 46 | | 12,910 | |||||||||||||||||||||||||||||||
Net excess tax benefits from stock-based compensation arrangements |
| | | | 4,244 | | | | 4,244 | |||||||||||||||||||||||||||||||
Comprehensive income : |
||||||||||||||||||||||||||||||||||||||||
Net income |
| | | | | 46,785 | | | $ | 46,785 | 46,785 | |||||||||||||||||||||||||||||
Foreign currency translation adjustment, net of tax of $101 |
| | | | | | | 59 | 59 | 59 | ||||||||||||||||||||||||||||||
|
|
|||||||||||||||||||||||||||||||||||||||
Comprehensive income |
46,844 | |||||||||||||||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||||
Balance as of December 31, 2009 |
37,748 | 13 | 12,500 | 4 | 197,342 | 202,188 | (14 | ) | 464 | 399,997 | ||||||||||||||||||||||||||||||
Exercise of stock options |
799 | | | | 6,104 | | | | 6,104 | |||||||||||||||||||||||||||||||
Shares withheld in consideration of employee tax obligations relative to stock-based compensation arrangements |
(19 | ) | | | | | (644 | ) | | | (644 | ) | ||||||||||||||||||||||||||||
Issuance of Class A Common Stock, net of forfeitures |
132 | | | | 1,788 | | | | 1,788 | |||||||||||||||||||||||||||||||
Stock-based compensation expense |
| | | | 16,170 | | 14 | | 16,184 | |||||||||||||||||||||||||||||||
Net excess tax benefits from stock-based compensation arrangements |
| | | | 3,483 | | | | 3,483 | |||||||||||||||||||||||||||||||
Comprehensive income : |
||||||||||||||||||||||||||||||||||||||||
Net income |
| | | | | 68,477 | | | 68,477 | 68,477 | ||||||||||||||||||||||||||||||
Foreign currency translation adjustment |
| | | | | | | 1,577 | 1,577 | 1,577 | ||||||||||||||||||||||||||||||
|
|
|||||||||||||||||||||||||||||||||||||||
Comprehensive income |
70,054 | |||||||||||||||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||||
Balance as of December 31, 2010 |
38,660 | 13 | 12,500 | 4 | 224,887 | 270,021 | | 2,041 | 496,966 | |||||||||||||||||||||||||||||||
Exercise of stock options |
563 | | | | 12,853 | | | | 12,853 | |||||||||||||||||||||||||||||||
Shares withheld in consideration of employee tax obligations relative to stock-based compensation arrangements |
(12 | ) | | | | | (776 | ) | | | (776 | ) | ||||||||||||||||||||||||||||
Issuance of Class A Common Stock, net of forfeitures |
35 | | | | 2,041 | | | | 2,041 | |||||||||||||||||||||||||||||||
Class B Convertible Common Stock converted to Class A Common Stock |
1,250 | | (1,250 | ) | | | | | | | ||||||||||||||||||||||||||||||
Stock-based compensation expense |
| | | | 18,063 | | | | 18,063 | |||||||||||||||||||||||||||||||
Net excess tax benefits from stock-based compensation arrangements |
| | | | 10,379 | | | | 10,379 | |||||||||||||||||||||||||||||||
Comprehensive income : |
||||||||||||||||||||||||||||||||||||||||
Net income |
| | | | | 96,919 | | | 96,919 | 96,919 | ||||||||||||||||||||||||||||||
Foreign currency translation adjustment |
| | | | | | | (13 | ) | (13 | ) | (13 | ) | |||||||||||||||||||||||||||
|
|
|||||||||||||||||||||||||||||||||||||||
Comprehensive income |
$ | 96,906 | ||||||||||||||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||
Balance as of December 31, 2011 |
40,496 | $ | 13 | 11,250 | $ | 4 | $ | 268,223 | $ | 366,164 | $ | | $ | 2,028 | $ | 636,432 | ||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
See accompanying notes.
49
Under Armour, Inc. and Subsidiaries
Consolidated Statements of Cash Flows
(In thousands)
Year Ended December 31, | ||||||||||||
2011 | 2010 | 2009 | ||||||||||
Cash flows from operating activities |
||||||||||||
Net income |
$ | 96,919 | $ | 68,477 | $ | 46,785 | ||||||
Adjustments to reconcile net income to net cash provided by operating activities |
||||||||||||
Depreciation and amortization |
36,301 | 31,321 | 28,249 | |||||||||
Unrealized foreign currency exchange rate (gains) losses |
4,027 | 1,280 | (5,222 | ) | ||||||||
Loss on disposal of property and equipment |
36 | 44 | 37 | |||||||||
Stock-based compensation |
18,063 | 16,227 | 12,910 | |||||||||
Gain on bargain purchase of corporate headquarters (excludes transaction costs of $1.9 million) |
(3,300 | ) | | | ||||||||
Deferred income taxes |
3,620 | (10,337 | ) | (5,212 | ) | |||||||
Changes in reserves and allowances |
5,536 | 2,322 | 1,623 | |||||||||
Changes in operating assets and liabilities: |
||||||||||||
Accounts receivable |
(33,923 | ) | (32,320 | ) | 3,792 | |||||||
Inventories |
(114,646 | ) | (65,239 | ) | 32,998 | |||||||
Prepaid expenses and other assets |
(42,633 | ) | (4,099 | ) | 1,870 | |||||||
Accounts payable |
17,209 | 16,158 | (4,386 | ) | ||||||||
Accrued expenses and other liabilities |
23,442 | 21,330 | 11,656 | |||||||||
Income taxes payable and receivable |
4,567 | 4,950 | (6,059 | ) | ||||||||
|
|
|
|
|
|
|||||||
Net cash provided by operating activities |
15,218 | 50,114 | 119,041 | |||||||||
|
|
|
|
|
|
|||||||
Cash flows from investing activities |
||||||||||||
Purchase of property and equipment |
(56,228 | ) | (30,182 | ) | (19,845 | ) | ||||||
Purchase of corporate headquarters and related expenditures |
(23,164 | ) | | | ||||||||
Purchase of long term investment |
(3,862 | ) | (11,125 | ) | | |||||||
Purchases of other assets |
(1,153 | ) | (478 | ) | (35 | ) | ||||||
Change in restricted cash |
(5,029 | ) | | | ||||||||
|
|
|
|
|
|
|||||||
Net cash used in investing activities |
(89,436 | ) | (41,785 | ) | (19,880 | ) | ||||||
|
|
|
|
|
|
|||||||
Cash flows from financing activities |
||||||||||||
Proceeds from revolving credit facility |
30,000 | | | |||||||||
Payments on revolving credit facility |
(30,000 | ) | | (25,000 | ) | |||||||
Proceeds from term loan |
25,000 | | | |||||||||
Proceeds from long term debt |
5,644 | 5,262 | 7,649 | |||||||||
Payments on long term debt |
(7,418 | ) | (9,446 | ) | (7,656 | ) | ||||||
Payments on capital lease obligations |
| (97 | ) | (361 | ) | |||||||
Excess tax benefits from stock-based compensation arrangements |
10,260 | 4,189 | 5,127 | |||||||||
Proceeds from exercise of stock options and other stock issuances |
14,645 | 7,335 | 5,128 | |||||||||
Payments of debt financing costs |
(2,324 | ) | | (1,354 | ) | |||||||
|
|
|
|
|
|
|||||||
Net cash provided by (used in) financing activities |
45,807 | 7,243 | (16,467 | ) | ||||||||
Effect of exchange rate changes on cash and cash equivalents |
(75 | ) | 1,001 | 2,561 | ||||||||
|
|
|
|
|
|
|||||||
Net increase (decrease) in cash and cash equivalents |
(28,486 | ) | 16,573 | 85,255 | ||||||||
Cash and cash equivalents |
||||||||||||
Beginning of year |
203,870 | 187,297 | 102,042 | |||||||||
|
|
|
|
|
|
|||||||
End of year |
$ | 175,384 | $ | 203,870 | $ | 187,297 | ||||||
|
|
|
|
|
|
|||||||
Non-cash financing and investing activities |
||||||||||||
Debt assumed in connection with purchase of corporate headquarters |
$ | 38,556 | $ | | $ | | ||||||
Other supplemental information |
||||||||||||
Cash paid for income taxes |
56,940 | 38,773 | 40,834 | |||||||||
Cash paid for interest |
2,305 | 992 | 1,273 |
See accompanying notes.
50
Under Armour, Inc. and Subsidiaries
Notes to the Audited Consolidated Financial Statements
1. Description of the Business
Under Armour, Inc. is a developer, marketer and distributor of branded performance apparel, footwear and accessories. These products are sold worldwide and worn by athletes at all levels, from youth to professional on playing fields around the globe, as well as by consumers with active lifestyles.
2. Summary of Significant Accounting Policies
Basis of Presentation
The accompanying consolidated financial statements include the accounts of Under Armour, Inc. and its wholly owned subsidiaries (the Company). All intercompany balances and transactions have been eliminated. The accompanying consolidated financial statements were prepared in accordance with accounting principles generally accepted in the United States of America.
Cash and Cash Equivalents
The Company considers all highly liquid investments with an original maturity of three months or less at date of inception to be cash and cash equivalents. Included in interest expense, net for the years ended December 31, 2011, 2010 and 2009 was interest income of $30.0 thousand, $48.7 thousand and $102.8 thousand, respectively, related to cash and cash equivalents.
Concentration of Credit Risk
Financial instruments that subject the Company to significant concentration of credit risk consist primarily of accounts receivable. The majority of the Companys accounts receivable is due from large sporting goods retailers. Credit is extended based on an evaluation of the customers financial condition and collateral is not required. The most significant customers that accounted for a large portion of net revenues and accounts receivable are as follows:
Customer A |
Customer B |
Customer C |
||||||||||
Net revenues |
||||||||||||
2011 |
18.2 | % | 7.4 | % | 5.6 | % | ||||||
2010 |
18.5 | % | 8.7 | % | 5.0 | % | ||||||
2009 |
19.4 | % | 9.4 | % | 4.6 | % | ||||||
Accounts receivable |
||||||||||||
2011 |
25.4 | % | 8.6 | % | 5.5 | % | ||||||
2010 |
23.3 | % | 11.0 | % | 5.4 | % | ||||||
2009 |
17.6 | % | 10.7 | % | 6.0 | % |
Allowance for Doubtful Accounts
The Company makes ongoing estimates relating to the collectability of accounts receivable and maintains an allowance for estimated losses resulting from the inability of its customers to make required payments. In determining the amount of the reserve, the Company considers historical levels of credit losses and significant economic developments within the retail environment that could impact the ability of its customers to pay outstanding balances and makes judgments about the creditworthiness of significant customers based on ongoing credit evaluations. Because the Company cannot predict future changes in the financial stability of its customers, actual future losses from uncollectible accounts may differ from estimates. If the financial condition of customers were to deteriorate, resulting in their inability to make payments, a larger reserve might be required. In the event
51
the Company determines a smaller or larger reserve is appropriate, it would record a benefit or charge to selling, general and administrative expense in the period in which such a determination was made. As of December 31, 2011 and 2010, the allowance for doubtful accounts was $4.1 million and $4.9 million, respectively.
Inventories
Inventories consist of finished goods, raw materials and work-in-process. Costs of finished goods inventories include all costs incurred to bring inventory to its current condition, including inbound freight, duties and other costs. The Company values its inventory at standard cost which approximates landed cost, using the first-in, first-out method of cost determination. Market value is estimated based upon assumptions made about future demand and retail market conditions. If the Company determines that the estimated market value of its inventory is less than the carrying value of such inventory, it records a charge to cost of goods sold to reflect the lower of cost or market. If actual market conditions are less favorable than those projected by the Company, further adjustments may be required that would increase the cost of goods sold in the period in which such a determination was made.
Income Taxes
Income taxes are accounted for under the asset and liability method. Deferred income tax assets and liabilities are established for temporary differences between the financial reporting basis and the tax basis of the Companys assets and liabilities at tax rates expected to be in effect when such assets or liabilities are realized or settled. Deferred income tax assets are reduced by valuation allowances when necessary.
Assessing whether deferred tax assets are realizable requires significant judgment. The Company considers all available positive and negative evidence, including historical operating performance and expectations of future operating performance. The ultimate realization of deferred tax assets is often dependent upon future taxable income and therefore can be uncertain. To the extent the Company believes it is more likely than not that all or some portion of the asset will not be realized, valuation allowances are established against the Companys deferred tax assets, which increase income tax expense in the period when such a determination is made.
Income taxes include the largest amount of tax benefit for an uncertain tax position that is more likely than not to be sustained upon audit based on the technical merits of the tax position. Settlements with tax authorities, the expiration of statutes of limitations for particular tax positions, or obtaining new information on particular tax positions may cause a change to the effective tax rate. The Company recognizes accrued interest and penalties related to unrecognized tax benefits in the provision for income taxes on the consolidated statements of income.
Property and Equipment
Property and equipment are stated at cost, including the cost of internal labor for software customized for internal use, less accumulated depreciation and amortization. Property and equipment is depreciated using the straight-line method over the estimated useful lives of the assets: 3 to 5 years for furniture, office equipment, software and plant equipment and 10 to 35 years for site improvements, buildings and building equipment. Leasehold and tenant improvements are amortized over the shorter of the lease term or the estimated useful lives of the assets. The cost of in-store apparel and footwear fixtures and displays are capitalized, included in furniture, fixtures and displays, and depreciated over 3 years.
The Company capitalizes the cost of interest for long term property and equipment projects based on the Companys weighted average borrowing rates in place while the projects are in progress. Capitalized interest was $0.7 million as of December 31, 2011 and 2010.
Upon retirement or disposition of property and equipment, the cost and accumulated depreciation are removed from the accounts and any resulting gain or loss is reflected in selling, general and administrative expenses for that period. Major additions and betterments are capitalized to the asset accounts while maintenance and repairs, which do not improve or extend the lives of assets, are expensed as incurred.
52
Impairment of Long-Lived Assets
The Company continually evaluates whether events and circumstances have occurred that indicate the remaining estimated useful life of long-lived assets may warrant revision or that the remaining balance may not be recoverable. These factors may include a significant deterioration of operating results, changes in business plans, or changes in anticipated cash flows. When factors indicate that an asset should be evaluated for possible impairment, the Company reviews long-lived assets to assess recoverability from future operations using undiscounted cash flows. If future undiscounted cash flows are less than the carrying value, an impairment is recognized in earnings to the extent that the carrying value exceeds fair value. No material impairments were recorded during the years ended December 31, 2011, 2010 and 2009.
Accrued Expenses
At December 31, 2011, accrued expenses primarily included $31.4 million and $14.2 million of accrued compensation and benefits and marketing expenses, respectively. At December 31, 2010, accrued expenses primarily included $31.0 million and $7.8 million of accrued compensation and benefits and marketing expenses, respectively.
Foreign Currency Translation and Transactions
The functional currency for each of the Companys wholly owned foreign subsidiaries is generally the applicable local currency. The translation of foreign currencies into U.S. dollars is performed for assets and liabilities using current foreign currency exchange rates in effect at the balance sheet date and for revenue and expense accounts using average foreign currency exchange rates during the period. Capital accounts are translated at historical foreign currency exchange rates. Translation gains and losses are included in stockholders equity as a component of accumulated other comprehensive income. Adjustments that arise from foreign currency exchange rate changes on transactions, primarily driven by intercompany transactions, denominated in a currency other than the functional currency are included in other expense, net on the consolidated statements of income.
Derivatives
The Company uses derivative financial instruments in the form of foreign currency forward contracts to minimize the risk associated with foreign currency exchange rate fluctuations. The Company accounts for derivative financial instruments pursuant to applicable accounting guidance. This guidance establishes accounting and reporting standards for derivative financial instruments and requires all derivatives to be recognized as either assets or liabilities on the balance sheet and to be measured at fair value. Unrealized derivative gain positions are recorded as other current assets or other long term assets, and unrealized derivative loss positions are recorded as accrued expenses or other long term liabilities, depending on the derivative financial instruments maturity date.
Currently, the Companys foreign currency forward contracts are not designated as cash flow hedges, and accordingly, changes in their fair value are included in other expense, net on the consolidated statements of income. The Company does not enter into derivative financial instruments for speculative or trading purposes.
Revenue Recognition
The Company recognizes revenue pursuant to applicable accounting standards. Net revenues consist of both net sales and license revenues. Net sales are recognized upon transfer of ownership, including passage of title to the customer and transfer of risk of loss related to those goods. Transfer of title and risk of loss is based upon shipment under free on board shipping point for most goods or upon receipt by the customer depending on the country of the sale and the agreement with the customer. In some instances, transfer of title and risk of loss takes place at the point of sale, for example, at the Companys retail stores. The Company may also ship product
53
directly from its supplier to the customer and recognize revenue when the product is delivered to and accepted by the customer. License revenues are recognized based upon shipment of licensed products sold by the Companys licensees. Sales taxes imposed on the Companys revenues from product sales are presented on a net basis on the consolidated statements of income and therefore do not impact net revenues or costs of goods sold.
The Company records reductions to revenue for estimated customer returns, allowances, markdowns and discounts. The Company bases its estimates on historical rates of customer returns and allowances as well as the specific identification of outstanding returns, markdowns and allowances that have not yet been received by the Company. The actual amount of customer returns and allowances, which is inherently uncertain, may differ from the Companys estimates. If the Company determines that actual or expected returns or allowances are significantly higher or lower than the reserves it established, it would record a reduction or increase, as appropriate, to net sales in the period in which it makes such a determination. Provisions for customer specific discounts are based on contractual obligations with certain major customers. Reserves for returns, allowances, markdowns and discounts are recorded as an offset to accounts receivable as settlements are made through offsets to outstanding customer invoices. As of December 31, 2011 and 2010, there were $27.1 million and $25.2 million, respectively, in reserves for customer returns, allowances, markdowns and discounts.
Advertising Costs
Advertising costs are charged to selling, general and administrative expenses. Advertising production costs are expensed the first time an advertisement related to such production costs is run. Media (television, print and radio) placement costs are expensed in the month during which the advertisement appears, and costs related to event sponsorships are expensed when the event occurs. In addition, advertising costs include sponsorship expenses. Accounting for sponsorship payments is based upon specific contract provisions and the payments are generally expensed uniformly over the term of the contract after recording expense related to specific performance incentives once they are deemed probable. Advertising expense, including amortization of in-store marketing fixtures and displays, was $167.9 million, $128.2 million and $108.9 million for the years ended December 31, 2011, 2010 and 2009, respectively. At December 31, 2011 and 2010, prepaid advertising costs were $10.4 million and $3.2 million, respectively.
Shipping and Handling Costs
The Company charges certain customers shipping and handling fees. These fees are recorded in net revenues. The Company includes the majority of outbound handling costs as a component of selling, general and administrative expenses. Outbound handling costs include costs associated with preparing goods to ship to customers and certain costs to operate the Companys distribution facilities. These costs, included within selling, general and administrative expenses, were $26.1 million, $14.7 million and $12.2 million for the years ended December 31, 2011, 2010 and 2009, respectively. The Company includes outbound freight costs associated with shipping goods to customers as a component of cost of goods sold.
Minority Investment
Beginning in January 2011, the Company has held a minority equity investment in Dome Corporation (Dome), the Companys Japanese licensee. The Company invested ¥1,140.0 million, or $15.5 million, in exchange for 19.5% common stock ownership in Dome. As of December 31, 2011, the carrying value of the Companys investment was $14.4 million, and was included in other long term assets on the consolidated balance sheet. The investment is subject to foreign currency translation rate fluctuations as it is held by the Companys European subsidiary.
The Company accounts for its investment in Dome under the cost method given that it does not have the ability to exercise significant influence. Additionally, the Company concluded that no event or change in circumstances occurred during the period that may have a significant adverse effect on the fair value of the investment.
54
Earnings per Share
Basic earnings per common share is computed by dividing net income available to common stockholders for the period by the weighted average number of common shares outstanding during the period. Any stock-based compensation awards that are determined to be participating securities, which are stock-based compensation awards that entitle the holders to receive dividends prior to vesting, are included in the calculation of basic earnings per share using the two class method. Diluted earnings per common share is computed by dividing net income available to common stockholders for the period by the diluted weighted average common shares outstanding during the period. Diluted earnings per share reflects the potential dilution from common shares issuable through stock options, warrants, restricted stock units and other equity awards. Refer to Note 12 for further discussion of earnings per share.
Stock-Based Compensation
The Company accounts for stock-based compensation in accordance with accounting guidance that requires all stock-based compensation awards granted to employees and directors to be measured at fair value and recognized as an expense in the financial statements. In addition, this guidance requires that excess tax benefits related to stock-based compensation awards be reflected as financing cash flows.
The Company uses the Black-Scholes option-pricing model to estimate the fair market value of stock-based compensation awards. As the Company does not have sufficient historical exercise data to provide a reasonable basis upon which to estimate the expected life due to the limited period of time its shares of Class A Common Stock have been publicly traded, it uses the simplified method as permitted by accounting guidance. The simplified method calculates the expected life of a stock option equal to the time from grant to the midpoint between the vesting date and contractual term, taking into account all vesting tranches. The risk free interest rate is based on the yield for the U.S. Treasury bill with a maturity equal to the expected life of the stock option. Expected volatility is based on an average for a peer group of companies similar in terms of type of business, industry, stage of life cycle and size. Compensation expense is recognized net of forfeitures on a straight-line basis over the total vesting period, which is the implied requisite service period. Compensation expense for performance-based awards is recorded over the implied requisite service period when achievement of the performance target is deemed probable. The forfeiture rate is estimated at the date of grant based on historical rates.
In addition, the Company recognized expense for stock-based compensation awards granted prior to the Companys initial filing of its S-1 Registration Statement in accordance with accounting guidance that allows the intrinsic value method. Under the intrinsic value method, stock-based compensation expense of fixed stock options is based on the difference, if any, between the fair value of the companys stock on the grant date and the exercise price of the option. The stock-based compensation expense for these awards was fully amortized in 2010. Had the Company elected to account for all stock-based compensation awards at fair value, the impact to net income and earnings per share for the years ended December 31, 2010 and 2009 would not have been material to its consolidated financial position or results of operations.
The Company issues new shares of Class A Common Stock upon exercise of stock options, grant of restricted stock or share unit conversion. Refer to Note 13 for further details on stock-based compensation.
Management Estimates
The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the consolidated financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from these estimates.
55
Fair Value of Financial Instruments
The carrying amounts shown for the Companys cash and cash equivalents, accounts receivable and accounts payable approximate fair value because of the short term maturity of those instruments. The fair value of the long term debt approximates its carrying value based on the variable nature of interest rates and current market rates available to the Company. The fair value of foreign currency forward contracts is based on the net difference between the U.S. dollars to be received or paid at the contracts settlement date and the U.S. dollar value of the foreign currency to be sold or purchased at the current forward exchange rate.
Recently Issued Accounting Standards
In June 2011, the Financial Accounting Standards Board (FASB) issued an Accounting Standards Update which eliminates the option to report other comprehensive income and its components in the statement of changes in stockholders equity. It requires an entity to present total comprehensive income, which includes the components of net income and the components of other comprehensive income, either in a single continuous statement or in two separate but consecutive statements. In December 2011, the FASB issued an amendment to this pronouncement which defers the specific requirement to present components of reclassifications of other comprehensive income on the face of the income statement. These pronouncements are effective for financial statements issued for fiscal years, and interim periods within those years, beginning after December 15, 2011. The Company believes the adoption of these pronouncements will not have a material impact on its consolidated financial statements.
In May 2011, the FASB issued an Accounting Standards Update which clarifies requirements for how to measure fair value and for disclosing information about fair value measurements common to accounting principles generally accepted in the United States of America and International Financial Reporting Standards. This guidance is effective for interim and annual periods beginning on or after December 15, 2011. The Company believes the adoption of this guidance will not have a material impact on its consolidated financial statements.
3. Inventories
Inventories consisted of the following:
December 31, | ||||||||
(In thousands) |
2011 | 2010 | ||||||
Finished goods |
$ | 323,606 | $ | 214,524 | ||||
Raw materials |
803 | 831 | ||||||
|
|
|
|
|||||
Total inventories |
$ | 324,409 | $ | 215,355 | ||||
|
|
|
|
4. Acquisitions
In July 2011, the Company acquired approximately 400.0 thousand square feet of office space comprising its corporate headquarters for $60.5 million. The acquisition included land, buildings, tenant improvements and third party lease-related intangible assets. As of the purchase date, 163.6 thousand square feet of the 400.0 thousand square feet acquired was leased to third party tenants. These leases had remaining lease terms ranging from 9 months to 15 years on the purchase date. The Company intends to occupy additional space as it becomes available. Since the acquisition, the Company has invested $2.2 million in additional improvements.
The acquisition included the assumption of a $38.6 million loan secured by the property and the remaining purchase price was paid in cash funded primarily by a $25.0 million term loan borrowed in May 2011. The carrying value of the assumed loan approximated its fair value on the date of the acquisition. Refer to Note 7 for
56
a discussion of the assumed loan and term loan. A $1.0 million deposit was paid upon signing the purchase agreement in November 2010.
The aggregate fair value of the acquisition was $63.8 million. The fair value was estimated using a combination of market, income and cost approaches. The acquisition was accounted for as a business combination, and as such the Company recognized a bargain purchase gain of $3.3 million as the amount by which the fair value of the net assets acquired exceeded the fair value of the purchase price.
In connection with this acquisition, the Company incurred acquisition related expenses of approximately $1.9 million. Both the acquisition related expenses and pre-tax bargain purchase gain were included in selling, general and administrative expenses on the consolidated statements of income during the year ended December 31, 2011. This transaction is not expected to have a material impact to the Companys consolidated statements of income in future periods.
The Company believes that it was able to negotiate the acquisition of the net assets for less than fair value because the seller marketed the property in a limited manner, and thus the property did not have adequate exposure to the market prior to the measurement date to allow for marketing activities that are usual and customary for real estate transactions. In addition, the Company was the majority tenant immediately prior to the acquisition and was willing and qualified to assume the secured loan.
5. Property and Equipment, Net
Property and equipment consisted of the following:
December 31, | ||||||||
(In thousands) |
2011 | 2010 | ||||||
Leasehold and tenant improvements |
$ | 60,217 | $ | 38,739 | ||||
Furniture, fixtures and displays |
49,445 | 41,907 | ||||||
Buildings |
42,141 | | ||||||
Software |
36,796 | 30,579 | ||||||
Office equipment |
30,427 | 21,271 | ||||||
Plant equipment |
27,026 | 21,653 | ||||||
Land |
17,628 | | ||||||
Construction in progress |
9,160 | 7,223 | ||||||
Other |
970 | 1,534 | ||||||
|
|
|
|
|||||
Subtotal property and equipment |
273,810 | 162,906 | ||||||
Accumulated depreciation |
(114,675 | ) | (86,779 | ) | ||||
|
|
|
|
|||||
Property and equipment, net |
$ | 159,135 | $ | 76,127 | ||||
|
|
|
|
Construction in progress primarily includes costs incurred for software systems, leasehold improvements and in-store fixtures and displays not yet placed in use.
Depreciation expense related to property and equipment was $32.7 million, $28.7 million and $25.3 million for the years ended December 31, 2011, 2010 and 2009, respectively.
57
6. Intangible Assets, Net
The following table summarizes the Companys intangible assets as of the periods indicated:
December 31, 2011 | December 31, 2010 | |||||||||||||||||||||||
(In thousands) |
Gross Carrying Amount |
Accumulated Amortization |
Net Carrying Amount |
Gross Carrying Amount |
Accumulated Amortization |
Net Carrying Amount |
||||||||||||||||||
Intangible assets subject to amortization: |
||||||||||||||||||||||||
Footwear promotional rights |
$ | 8,500 | $ | (8,125 | ) | $ | 375 | $ | 8,500 | $ | (6,625 | ) | $ | 1,875 | ||||||||||
Lease-related intangible assets |
3,896 | (743 | ) | 3,153 | | | | |||||||||||||||||
Other |
2,982 | (1,576 | ) | 1,406 | 2,982 | (943 | ) | 2,039 | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total |
$ | 15,378 | $ | (10,444 | ) | $ | 4,934 | $ | 11,482 | $ | (7,568 | ) | $ | 3,914 | ||||||||||
|
|
|
|
|
|
|
|
|||||||||||||||||
Indefinite-lived intangible assets |
601 | | ||||||||||||||||||||||
|
|
|
|
|||||||||||||||||||||
Intangible assets, net |
$ | 5,535 | $ | 3,914 | ||||||||||||||||||||
|
|
|
|
Intangible assets, excluding lease-related intangible assets, are amortized using estimated useful lives of 55 months to 89 months with no residual value. Lease-related intangible assets were acquired with the purchase of the Companys corporate headquarters and are amortized over the remaining third party lease terms, which ranged from 9 months to 15 years on the date of purchase. Amortization expense, which is included in selling, general and administrative expenses, was $2.9 million, $2.0 million and $1.9 million for the years ended December 31, 2011, 2010 and 2009, respectively. The estimated amortization expense of the Companys intangible assets is $2.2 million and $0.9 million for the years ending December 31, 2012 and 2013, respectively, and $0.3 million for each of the years ending December 31, 2014, 2015 and 2016.
7. Credit Facility and Long Term Debt
Credit Facility
In March 2011, the Company entered into a new $325.0 million credit facility with certain lending institutions and terminated its prior $200.0 million revolving credit facility in order to increase the Companys available financing and to expand its lending syndicate. The credit facility has a term of four years and provides for a committed revolving credit line of up to $300.0 million, in addition to a $25.0 million term loan facility. The commitment amount under the revolving credit facility may be increased by an additional $50.0 million, subject to certain conditions and approvals as set forth in the credit agreement. The Company incurred and capitalized $1.6 million in deferred financing costs in connection with the credit facility.
The credit facility may be used for working capital and general corporate purposes and is collateralized by substantially all of the assets of the Company and certain of its domestic subsidiaries (other than trademarks and the land, buildings and other assets comprising the Companys corporate headquarters) and by a pledge of 65% of the equity interests of certain of the Companys foreign subsidiaries. Up to $5.0 million of the facility may be used to support letters of credit, of which none were outstanding as of December 31, 2011. The Company is required to maintain a certain leverage ratio and interest coverage ratio as set forth in the credit agreement. As of December 31, 2011, the Company was in compliance with these ratios. The credit agreement also provides the lenders with the ability to reduce the borrowing base, even if the Company is in compliance with all conditions of the credit agreement, upon a material adverse change to the business, properties, assets, financial condition or results of operations of the Company. The credit agreement contains a number of restrictions that limit the Companys ability, among other things, and subject to certain limited exceptions, to incur additional indebtedness, pledge its assets as security, guaranty obligations of third parties, make investments, undergo a merger or consolidation, dispose of assets, or materially change its line of business. In addition, the credit agreement includes a cross default provision whereby an event of default under other debt obligations, as defined in the credit agreement, will be considered an event of default under the credit agreement.
58
Borrowings under the credit facility bear interest based on the daily balance outstanding at LIBOR (with no rate floor) plus an applicable margin (varying from 1.25% to 1.75%) or, in certain cases a base rate (based on a certain lending institutions Prime Rate or as otherwise specified in the credit agreement, with no rate floor) plus an applicable margin (varying from 0.25% to 0.75%). The credit facility also carries a commitment fee equal to the unused borrowings multiplied by an applicable margin (varying from 0.25% to 0.35%). The applicable margins are calculated quarterly and vary based on the Companys leverage ratio as set forth in the credit agreement.
Upon entering into the credit facility in March 2011, the Company terminated its prior $200.0 million revolving credit facility. The prior revolving credit facility was collateralized by substantially all of the Companys assets, other than trademarks, and included covenants, conditions and other terms similar to the Companys new credit facility.
In May 2011, the Company borrowed $25.0 million under the term loan facility to finance a portion of the acquisition of the Companys corporate headquarters. The interest rate on the term loan was 1.5% during the year ended December 31, 2011. The maturity date of the term loan is March 2015, which is the end of the credit facility term. The Company expects to refinance the term loan in early 2013 with the loan assumed in the acquisition of the Companys corporate headquarters. During the three months ended September 30, 2011, the Company borrowed $30.0 million under the revolving credit facility to fund seasonal working capital requirements and repaid it during the three months ended December 31, 2011. The interest rate under the revolving credit facility was 1.5% during the year ended December 31, 2011, and no balance was outstanding as of December 31, 2011. No balances were outstanding under the prior revolving credit facility during the year ended December 31, 2010.
Long Term Debt
The Company has long term debt agreements with various lenders to finance the acquisition or lease of qualifying capital investments. Loans under these agreements are collateralized by a first lien on the related assets acquired. As these agreements are not committed facilities, each advance is subject to approval by the lenders. Additionally, these agreements include a cross default provision whereby an event of default under other debt obligations, including the Companys credit facility, will be considered an event of default under these agreements. These agreements require a prepayment fee if the Company pays outstanding amounts ahead of the scheduled terms. The terms of the credit facility limit the total amount of additional financing under these agreements to $40.0 million, of which $21.5 million was available for additional financing as of December 31, 2011. At December 31, 2011 and 2010, the outstanding principal balance under these agreements was $14.5 million and $15.9 million, respectively. Currently, advances under these agreements bear interest rates which are fixed at the time of each advance. The weighted average interest rates on outstanding borrowings were 3.5%, 5.3% and 5.9% for the years ended December 31, 2011, 2010 and 2009, respectively.
The following are the scheduled maturities of long term debt as of December 31, 2011:
(In thousands) |
||||
2012 |
$ | 6,882 | ||
2013 (1) |
65,919 | |||
2014 |
2,972 | |||
2015 |
1,951 | |||
2016 |
| |||
|
|
|||
Total scheduled maturities of long term debt |
77,724 | |||
Less current maturities of long term debt |
(6,882 | ) | ||
|
|
|||
Long term debt obligations |
$ | 70,842 | ||
|
|
(1) | Includes the repayment of $25.0 million borrowed under the term loan facility, which is due in March 2015, but is planned to be refinanced in early 2013 with the loan assumed in the acquisition of the Companys corporate headquarters. |
59
The Company monitors the financial health and stability of its lenders under the revolving credit and long term debt facilities, however during any period of significant instability in the credit markets lenders could be negatively impacted in their ability to perform under these facilities.
In July 2011, in connection with the Companys acquisition of its corporate headquarters, the Company assumed a $38.6 million nonrecourse loan secured by a mortgage on the acquired property. The acquisition of the Companys corporate headquarters was accounted for as a business combination, and the carrying value of the loan secured by the acquired property approximates fair value. The assumed loan had an original term of approximately ten years with a scheduled maturity date of March 1, 2013. The loan includes a balloon payment of $37.3 million due at maturity, and may not be prepaid. The assumed loan is nonrecourse with the lenders remedies for non-performance limited to action against the acquired property and certain required reserves and a cash collateral account, except for nonrecourse carve outs related to fraud, breaches of certain representations, warranties or covenants, including those related to environmental matters, and other standard carve outs for a loan of this type. The loan requires certain minimum cash flows and financial results from the property, and if those requirements are not met, additional reserves may be required. The assumed loan requires prior approval of the lender for certain matters related to the property, including material leases, changes to property management, transfers of any part of the property and material alterations to the property. The loan has an interest rate of 6.73%. In connection with the assumed loan, the Company incurred and capitalized $0.8 million in deferred financing costs. As of December 31, 2011, the outstanding balance on the loan was $38.2 million. In addition, in connection with the assumed loan for the acquisition of its corporate headquarters, the Company was required to set aside amounts in reserve and cash collateral accounts. As of December 31, 2011, $2.0 million of restricted cash was included in prepaid expenses and other current assets, and the remaining $3.0 million of restricted cash was included in other long term assets.
Interest expense was $3.9 million, $2.3 million and $2.4 million for the years ended December 31, 2011, 2010 and 2009, respectively. Interest expense includes the amortization of deferred financing costs and interest expense under the credit and long term debt facilities, as well as the assumed loan discussed above.
8. Commitments and Contingencies
Obligations Under Operating Leases
The Company leases warehouse space, office facilities, space for its retail stores and certain equipment under non-cancelable operating leases. The leases expire at various dates through 2023, excluding extensions at the Companys option, and include provisions for rental adjustments. The table below includes executed lease agreements for factory house stores that the Company did not yet occupy as of December 31, 2011 and does not include contingent rent the company may incur at its retail stores based on future sales above a specified limit. The following is a schedule of future minimum lease payments for non-cancelable real property operating leases as of December 31, 2011:
(In thousands) |
Operating | |||
2012 |
$ | 22,926 | ||
2013 |
23,470 | |||
2014 |
26,041 | |||
2015 |
24,963 | |||
2016 |
18,734 | |||
2017 and thereafter |
69,044 | |||
|
|
|||
Total future minimum lease payments |
$ | 185,178 | ||
|
|
Included in selling, general and administrative expense was rent expense of $26.7 million, $21.3 million and $14.1 million for the years ended December 31, 2011, 2010 and 2009, respectively, under non-cancelable
60
operating lease agreements. Included in these amounts was contingent rent expense of $3.6 million, $2.0 million and $0.6 million for the years ended December 31, 2011, 2010 and 2009, respectively. The operating lease obligations included above do not include any contingent rent.
Sponsorships and Other Marketing Commitments
Within the normal course of business, the Company enters into contractual commitments in order to promote the Companys brand and products. These commitments include sponsorship agreements with teams and athletes on the collegiate and professional levels, official supplier agreements, athletic event sponsorships and other marketing commitments. The following is a schedule of the Companys future minimum payments under its sponsorship and other marketing agreements as of December 31, 2011:
(In thousands) |
||||
2012 |
$ | 52,855 | ||
2013 |
46,910 | |||
2014 |
42,514 | |||
2015 |
22,689 | |||
2016 |
3,580 | |||
2017 and thereafter |
966 | |||
|
|
|||
Total future minimum sponsorship and other marketing payments |
$ | 169,514 | ||
|
|
The amounts listed above are the minimum obligations required to be paid under the Companys sponsorship and other marketing agreements. The amounts listed above do not include additional performance incentives and product supply obligations provided under certain agreements. It is not possible to determine how much the Company will spend on product supply obligations on an annual basis as contracts generally do not stipulate specific cash amounts to be spent on products. The amount of product provided to the sponsorships depends on many factors including general playing conditions, the number of sporting events in which they participate and the Companys decisions regarding product and marketing initiatives. In addition, the costs to design, develop, source and purchase the products furnished to the endorsers are incurred over a period of time and are not necessarily tracked separately from similar costs incurred for products sold to customers.
Other
The Company is, from time to time, involved in routine legal matters incidental to its business. The Company believes that the ultimate resolution of any such current proceedings and claims will not have a material adverse effect on its consolidated financial position, results of operations or cash flows.
In connection with various contracts and agreements, the Company has agreed to indemnify counterparties against certain third party claims relating to the infringement of intellectual property rights and other items. Generally, such indemnification obligations do not apply in situations in which the counterparties are grossly negligent, engage in willful misconduct, or act in bad faith. Based on the Companys historical experience and the estimated probability of future loss, the Company has determined that the fair value of such indemnifications is not material to its consolidated financial position or results of operations.
9. Stockholders Equity
The Companys Class A Common Stock and Class B Convertible Common Stock have an authorized number of shares of 100.0 million shares and 11.3 million shares, respectively, and each have a par value of $0.0003 1/3 per share. Holders of Class A Common Stock and Class B Convertible Common Stock have identical rights, including liquidation preferences, except that the holders of Class A Common Stock are entitled to one vote per share and holders of Class B Convertible Common Stock are entitled to 10 votes per share on all matters submitted to a stockholder vote. Class B Convertible Common Stock may only be held by Kevin Plank,
61
the Companys founder and Chief Executive Officer (CEO), or a related party of Mr. Plank, as defined in the Companys charter. As a result, Mr. Plank has a majority voting control over the Company. Upon the transfer of shares of Class B Convertible Stock to a person other than Mr. Plank or a related party of Mr. Plank, the shares automatically convert into shares of Class A Common Stock on a one-for-one basis. In addition, all of the outstanding shares of Class B Convertible Common Stock will automatically convert into shares of Class A Common Stock on a one-for-one basis upon the death or disability of Mr. Plank or on the next record date for the stockholders meeting following the date upon which the shares of Class A Common Stock and Class B Convertible Common Stock beneficially owned by Mr. Plank is less than 15% of the total shares of Class A Common Stock and Class B Convertible Common Stock outstanding. Holders of the Companys common stock are entitled to receive dividends when and if authorized and declared out of assets legally available for the payment of dividends.
During the year ended December 31, 2011, 1.2 million shares of Class B Convertible Common Stock were converted into shares of Class A Common Stock on a one-for-one basis in connection with stock sales.
10. Fair Value Measurements
Fair value is defined as 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 (an exit price). The fair value accounting guidance outlines a valuation framework, creates a fair value hierarchy in order to increase the consistency and comparability of fair value measurements and the related disclosures, and prioritizes the inputs used in measuring fair value as follows:
Level 1: |
Observable inputs such as quoted prices in active markets; | |
Level 2: |
Inputs, other than quoted prices in active markets, that are observable either directly or indirectly; and | |
Level 3: |
Unobservable inputs for which there is little or no market data, which require the reporting entity to develop its own assumptions. |
Financial assets and (liabilities) measured at fair value as of December 31, 2011 are set forth in the table below:
(In thousands) |
Level 1 | Level 2 | Level 3 | |||||||||
Derivative foreign currency forward contracts (see Note 15) |
$ | | $ | (659 | ) | $ | | |||||
TOLI policies held by the Rabbi Trust (see Note 14) |
| 3,943 | | |||||||||
Deferred Compensation Plan obligations (see Note 14) |
| (3,485 | ) | |
Fair values of the financial assets and liabilities listed above are determined using inputs that use as their basis readily observable market data that are actively quoted and are validated through external sources, including third-party pricing services and brokers. The foreign currency forward contracts represent gains and losses on derivative contracts, which is the net difference between the U.S. dollar value to be received or paid at the contracts settlement date and the U.S. dollar value of the foreign currency to be sold or purchased at the current forward exchange rate. The fair value of the trust owned life insurance (TOLI) policies held by the Rabbi Trust is based on the cash-surrender value of the life insurance policies, which are invested primarily in mutual funds and a separately managed fixed income fund. These investments are in the same funds and purchased in substantially the same amounts as the selected investments of participants in the Under Armour, Inc. Deferred Compensation Plan (the Deferred Compensation Plan), which represent the underlying liabilities to participants in the Deferred Compensation Plan. Liabilities under the Deferred Compensation Plan are recorded at amounts due to participants, based on the fair value of participants selected investments.
62
11. Provision for Income Taxes
Income (loss) before income taxes is as follows:
Year Ended December 31, | ||||||||||||
(In thousands) |
2011 | 2010 | 2009 | |||||||||
Income (loss) before income taxes: |
||||||||||||
United States |
$ | 122,774 | $ | 96,179 | $ | 86,752 | ||||||
Foreign |
34,088 | 12,740 | (4,334 | ) | ||||||||
|
|
|
|
|
|
|||||||
Total |
$ | 156,862 | $ | 108,919 | $ | 82,418 | ||||||
|
|
|
|
|
|
The components of the provision for income taxes consisted of the following:
Year Ended December 31, | ||||||||||||
(In thousands) |
2011 | 2010 | 2009 | |||||||||
Current |
||||||||||||
Federal |
$ | 38,209 | $ | 39,139 | $ | 32,215 | ||||||
State |
10,823 | 8,020 | 7,285 | |||||||||
Other foreign countries |
7,291 | 3,620 | 1,345 | |||||||||
|
|
|
|
|
|
|||||||
56,323 | 50,779 | 40,845 | ||||||||||
|
|
|
|
|
|
|||||||
Deferred |
||||||||||||
Federal |
5,604 | (6,617 | ) | (2,421 | ) | |||||||
State |
548 | (3,487 | ) | 244 | ||||||||
Other foreign countries |
(2,532 | ) | (233 | ) | (3,035 | ) | ||||||
|
|
|
|
|
|
|||||||
3,620 | (10,337 | ) | (5,212 | ) | ||||||||
|
|
|
|
|
|
|||||||
Provision for income taxes |
$ | 59,943 | $ | 40,442 | $ | 35,633 | ||||||
|
|
|
|
|
|
A reconciliation from the U.S. statutory federal income tax rate to the effective income tax rate is as follows:
Year Ended December 31, | ||||||||||||
2011 | 2010 | 2009 | ||||||||||
U.S. federal statutory income tax rate |
35.0 | % | 35.0 | % | 35.0 | % | ||||||
State taxes, net of federal tax impact |
4.1 | 1.2 | 5.7 | |||||||||
Unrecognized tax benefits |
3.1 | 2.3 | 1.1 | |||||||||
Nondeductible expenses |
0.8 | 1.4 | 2.2 | |||||||||
Foreign rate differential |
(4.8 | ) | (1.6 | ) | (0.7 | ) | ||||||
Other |
| (1.2 | ) | (0.1 | ) | |||||||
|
|
|
|
|
|
|||||||
Effective income tax rate |
38.2 | % | 37.1 | % | 43.2 | % | ||||||
|
|
|
|
|
|
The increase in the 2011 full year effective income tax rate, as compared to 2010, is primarily attributable to federal and state tax credits that reduced the effective tax rate in 2010, partially offset by the 2011 reversal of a valuation allowance established in 2010 against a portion of the Companys deferred tax assets related to foreign net operating loss carryforwards.
63
Deferred tax assets and liabilities consisted of the following:
December 31, | ||||||||
(In thousands) |
2011 | 2010 | ||||||
Deferred tax asset |
||||||||
Stock-based compensation |
$ | 11,238 | $ | 8,790 | ||||
Foreign net operating loss carryforward |
11,078 | 10,917 | ||||||
Allowance for doubtful accounts and other reserves |
9,576 | 8,996 | ||||||
Deferred rent |
4,611 | 2,975 | ||||||
Tax basis inventory adjustment |
4,317 | 3,052 | ||||||
Inventory obsolescence reserves |
3,789 | 2,264 | ||||||
Foreign tax credits |
1,784 | | ||||||
Deferred compensation |
1,448 | 1,449 | ||||||
State tax credits, net of federal tax impact |
| 1,750 | ||||||
Other |
3,427 | 2,709 | ||||||
|
|
|
|
|||||
Total deferred tax assets |
51,268 | 42,902 | ||||||
Less: valuation allowance |
(1,784 | ) | (1,765 | ) | ||||
|
|
|
|
|||||
Total net deferred tax assets |
49,484 | 41,137 | ||||||
|
|
|
|
|||||
Deferred tax liability |
||||||||
Intangible asset |
(341 | ) | 372 | |||||
Prepaid expenses |
(2,968 | ) | (1,865 | ) | ||||
Property, plant and equipment |
(13,748 | ) | (3,104 | ) | ||||
|
|
|
|
|||||
Total deferred tax liabilities |
(17,057 | ) | (4,597 | ) | ||||
|
|
|
|
|||||
Total deferred tax assets, net |
$ | 32,427 | $ | 36,540 | ||||
|
|
|
|
As of December 31, 2011, the Company had $11.1 million in deferred tax assets associated with foreign net operating loss carryforwards which will begin to expire in 4 to 9 years. As of December 31, 2010, the Company believed certain deferred tax assets associated with foreign net operating loss carryforwards would expire unused based on the Companys forward-looking financial information during 2010. Therefore, a valuation allowance of $1.8 million was recorded against the Companys net deferred tax assets as of December 31, 2010. Based upon updated forward-looking financial information, during September 2011, the Company reversed the full valuation allowance of $1.8 million as the Company believed, and continues to believe as of December 31, 2011, the foreign net operating loss carryfowards will not expire unused. The reversal of the valuation allowance resulted in a decrease to income tax expense of $1.8 million for the year ended December 31, 2011.
During 2011, the Company recorded $1.8 million in deferred tax assets associated with foreign tax credits. As of December 31, 2011 the Company believed that the foreign taxes paid would not be creditable against its future income taxes and therefore, the Company recorded a valuation allowance against these deferred tax assets. The recording of the valuation allowance associated with foreign tax credits resulted in an increase to income tax expense of $1.8 million for the year ended December 31, 2011.
As of December 31, 2011, withholding and U.S. taxes have not been provided on approximately $23.4 million of cumulative undistributed earnings of the Companys non-U.S. subsidiaries because the Company intends to indefinitely reinvest these earnings in its non-U.S. subsidiaries.
64
As of December 31, 2011 and 2010, the total liability for unrecognized tax benefits, including related interest and penalties, was approximately $11.2 million and $6.4 million, respectively. The following table represents a reconciliation of the Companys total unrecognized tax benefits balances, excluding interest and penalties, for the years ended December 31, 2011, 2010 and 2009:
Year Ended December 31, | ||||||||||||
(In thousands) |
2011 | 2010 | 2009 | |||||||||
Beginning of year |
$ | 5,165 | $ | 2,598 | $ | 1,675 | ||||||
Increases as a result of tax positions taken in a prior period |
| | | |||||||||
Decreases as a result of tax positions taken in a prior period |
| | | |||||||||
Increases as a result of tax positions taken during the current period |
4,959 | 2,632 | 1,163 | |||||||||
Decreases as a result of tax positions taken during the current period |
| | | |||||||||
Decreases as a result of settlements during the current period |
| | (43 | ) | ||||||||
Reductions as a result of a lapse of statute of limitations during the current period |
(341 | ) | (65 | ) | (197 | ) | ||||||
|
|
|
|
|
|
|||||||
End of year |
$ | 9,783 | $ | 5,165 | $ | 2,598 | ||||||
|
|
|
|
|
|
As of December 31, 2011, $8.9 million of unrecognized tax benefits, excluding interest and penalties, would impact the Companys effective tax rate if recognized.
As of December 31, 2011, 2010 and 2009, the liability for unrecognized tax benefits included $1.4 million, $1.3 million and $0.9 million, respectively, for the accrual of interest and penalties. For each of the years ended December 31, 2011, 2010 and 2009, the Company recorded $0.4 million, $0.3 million and $0.2 million, respectively, for the accrual of interest and penalties in its consolidated statement of income.
The Company files income tax returns in the U.S. federal jurisdiction and various state and foreign jurisdictions. The majority of the Companys returns for years before 2008 are no longer subject to U.S. federal, state and local or foreign income tax examinations by tax authorities. The Company does not expect any material changes to the total unrecognized tax benefits within the next twelve months.
65
12. Earnings per Share
The calculation of earnings per share for common stock shown below excludes the income attributable to outstanding restricted stock awards from the numerator and excludes the impact of these awards from the denominator. The following is a reconciliation of basic earnings per share to diluted earnings per share:
Year Ended December 31, | ||||||||||||
(In thousands, except per share amounts) |
2011 | 2010 | 2009 | |||||||||
Numerator |
||||||||||||
Net income |
$ | 96,919 | $ | 68,477 | $ | 46,785 | ||||||
Net income attributable to participating securities |
(582 | ) | (548 | ) | (468 | ) | ||||||
|
|
|
|
|
|
|||||||
Net income available to common shareholders (1) |
$ | 96,337 | $ | 67,929 | $ | 46,317 | ||||||
|
|
|
|
|
|
|||||||
Denominator |
||||||||||||
Weighted average common shares outstanding |
51,227 | 50,379 | 49,341 | |||||||||
Effect of dilutive securities |
956 | 484 | 803 | |||||||||
|
|
|
|
|
|
|||||||
Weighted average common shares and dilutive securities outstanding |
52,183 | 50,863 | 50,144 | |||||||||
|
|
|
|
|
|
|||||||
Earnings per sharebasic |
$ | 1.88 | $ | 1.35 | $ | 0.94 | ||||||
Earnings per sharediluted |
$ | 1.85 | $ | 1.34 | $ | 0.92 | ||||||
|
||||||||||||
(1) Basic weighted average common shares outstanding |
51,227 | 50,379 | 49,341 | |||||||||
Basic weighted average common shares outstanding and participating securities |
51,570 | 50,798 | 49,848 | |||||||||
Percentage allocated to common stockholders |
99.4 | % | 99.2 | % | 99.0 | % |
Effects of potentially dilutive securities are presented only in periods in which they are dilutive. Stock options, restricted stock units and warrants representing 0.1 million, 0.9 million and 1.1 million shares of common stock were outstanding for each of the years ended December 31, 2011, 2010 and 2009, respectively, but were excluded from the computation of diluted earnings per share because their effect would be anti-dilutive.
13. Stock-Based Compensation
Stock Compensation Plans
The Under Armour, Inc. Amended and Restated 2005 Omnibus Long-Term Incentive Plan (the 2005 Plan) provides for the issuance of stock options, restricted stock, restricted stock units and other equity awards to officers, directors, key employees and other persons. In 2009, stockholders approved amendments to the 2005 Plan, including an increase in the maximum number of shares available for issuance under the 2005 Plan from 2.7 million shares to 10.0 million shares, as well as limiting the number of stock options awarded in any calendar year to 1.0 million for any one participant. Stock options and restricted stock and restricted stock unit awards under the 2005 Plan generally vest ratably over a four to five year period. The exercise period for stock options is generally ten years from the date of grant. The Company generally receives a tax deduction for any ordinary income recognized by a participant in respect to an award under the 2005 Plan. The 2005 Plan terminates in 2015. As of December 31, 2011, 5.3 million shares are available for future grants of awards under the 2005 Plan.
The Companys 2000 Stock Option Plan (the 2000 Plan) provided for the issuance of stock options, restricted stock and other equity awards to officers, directors, key employees and other persons. The 2000 Plan was terminated and superseded by the 2005 Plan upon the Companys initial public offering in 2005. No further awards may be granted under the 2000 Plan. The Company generally receives a tax deduction for any ordinary income recognized by a participant in respect to an award under the 2000 Plan.
Total stock-based compensation expense for the years ended December 31, 2011, 2010 and 2009 was $18.1 million, $16.2 million and $12.9 million, respectively. As of December 31, 2011, the Company had $25.5
66
million of unrecognized compensation expense expected to be recognized over a weighted average period of 1.9 years. This does not include any expense related to performance-based stock options or restricted stock units. Refer to Stock Options and Restricted Stock and Restricted Stock Units below for further information on these awards.
Employee Stock Purchase Plan
The Companys Employee Stock Purchase Plan (the ESPP) allows for the purchase of Class A Common Stock by all eligible employees at a 15% discount from fair market value subject to certain limits as defined in the ESPP. The maximum number of shares available under the ESPP is 1.0 million shares. During the years ended December 31, 2011, 2010 and 2009, 30.0 thousand, 39.6 thousand and 59.8 thousand shares were purchased under the ESPP, respectively.
Non-Employee Director Compensation Plan and Deferred Stock Unit Plan
The Companys Non-Employee Director Compensation Plan (the Director Compensation Plan) provides for cash compensation and equity awards to non-employee directors of the Company under the 2005 Plan. Non-employee directors have the option to defer the value of their annual cash retainers as deferred stock units in accordance with the Under Armour, Inc. Non-Employee Deferred Stock Unit Plan (the DSU Plan). Each new non-employee director receives an award of restricted stock units upon the initial election to the Board of Directors, with the units covering stock valued at $0.1 million on the grant date and vesting in three equal annual installments. In addition, each non-employee director receives, following each annual stockholders meeting, a grant under the 2005 Plan of restricted stock units covering stock valued at $75.0 thousand on the grant date. Each award vests 100% on the date of the next annual stockholders meeting following the grant date.
The receipt of the shares otherwise deliverable upon vesting of the restricted stock units automatically defers into deferred stock units under the DSU Plan. Under the DSU Plan each deferred stock unit represents the Companys obligation to issue one share of the Companys Class A Common Stock with the shares delivered six months following the termination of the directors service.
Stock Options
The weighted average fair value of a stock option granted for the years ended December 31, 2011, 2010 and 2009 was $38.55, $16.71 and $7.79, respectively. The fair value of each stock option granted is estimated on the date of grant using the Black-Scholes option-pricing model with the following weighted average assumptions:
Year Ended December 31, | ||||||||||||
2011 | 2010 | 2009 | ||||||||||
Risk-free interest rate |
1.2% - 2.6% | 1.6% - 3.1% | 2.0% - 3.2% | |||||||||
Average expected life in years |
6.25 | 6.25 - 7.0 | 5.0 - 6.5 | |||||||||
Expected volatility |
54.4% - 56.1% | 55.2% - 55.8% | 53.4% - 56.2% | |||||||||
Expected dividend yield |
0% | 0% | 0% |
67
A summary of the Companys stock options as of December 31, 2011, 2010 and 2009, and changes during the years then ended is presented below:
(In thousands, except per share amounts) |
Year Ended December 31, | |||||||||||||||||||||||
2011 | 2010 | 2009 | ||||||||||||||||||||||
Number of Stock Options |
Weighted Average Exercise Price |
Number of Stock Options |
Weighted Average Exercise Price |
Number of Stock Options |
Weighted Average Exercise Price |
|||||||||||||||||||
Outstanding, beginning of year |
2,974 | $ | 25.31 | 2,831 | $ | 18.02 | 2,456 | $ | 15.92 | |||||||||||||||
Granted, at fair market value |
110 | 72.10 | 1,435 | 29.32 | 1,364 | 14.53 | ||||||||||||||||||
Exercised |
(563 | ) | 22.83 | (799 | ) | 7.64 | (853 | ) | 4.69 | |||||||||||||||
Expired |
(13 | ) | 18.95 | (7 | ) | 41.26 | (34 | ) | 33.87 | |||||||||||||||
Forfeited |
(104 | ) | 26.82 | (486 | ) | 23.52 | (102 | ) | 27.04 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Outstanding, end of year |
2,404 | $ | 27.99 | 2,974 | $ | 25.31 | 2,831 | $ | 18.02 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Options exercisable, end of year |
423 | $ | 25.42 | 304 | $ | 33.04 | 908 | $ | 11.58 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
The intrinsic value of stock options exercised during the years ended December 31, 2011, 2010 and 2009 was $27.4 million, $7.6 million and $14.8 million, respectively.
The following table summarizes information about stock options outstanding and exercisable as of December 31, 2011:
(In thousands, except per share amounts)
Options Outstanding |
Options Exercisable | |||||||||||||
Number of |
Weighted |
Weighted |
Total |
Number of |
Weighted |
Weighted |
Total | |||||||
2,404 |
$27.99 | 7.6 | $105,280 | 423 | $25.42 | 6.2 | $19,615 |
Included in the tables above are 1.1 million and 1.3 million performance-based stock options granted to officers and key employees under the 2005 Plan during the years ended December 31, 2010 and 2009, respectively. These performance-based stock options have a weighted average exercise price of $20.75, and a term of ten years. These performance-based options have vestings that are tied to the achievement of certain combined annual operating income targets. Upon the achievement of each of the combined operating income targets, 50% of the options vest and the remaining 50% vest one year later. If certain lower levels of combined operating income are achieved, fewer or no options vest at that time and one year later, and the remaining stock options are forfeited. As of December 31, 2010, the combined operating income targets related to the performance-based stock options granted during the year ended December 31, 2009 were met; 50% of the options vested on February 15, 2011, and the remaining 50% will vest on February 15, 2012, subject to continued employment.
The weighted average fair value of these performance-based stock options is $11.66, and was estimated using the Black-Scholes option-pricing model consistent with the weighted average assumptions included in the table above. During the years ended December 31, 2011 and 2010, the Company recorded $7.5 million and $6.2 million, respectively, in stock-based compensation expense for these performance-based stock options. As of December 31, 2011, the Company had $7.3 million of unrecognized compensation expense expected to be recognized over a weighted average period of 1.8 years.
68
Restricted Stock and Restricted Stock Units
A summary of the Companys restricted stock and restricted stock units as of December 31, 2011, 2010 and 2009, and changes during the years then ended is presented below:
Year Ended December 31, | ||||||||||||||||||||||||
(In thousands, except per share amounts) |
2011 | 2010 | 2009 | |||||||||||||||||||||
Number of Restricted Shares |
Weighted Average Value |
Number of Restricted Shares |
Weighted Average Value |
Number of Restricted Shares |
Weighted Average Value |
|||||||||||||||||||
Outstanding, beginning of year |
412 | $ | 36.04 | 488 | $ | 37.40 | 639 | $ | 38.27 | |||||||||||||||
Granted |
788 | 66.19 | 195 | 33.46 | 63 | 24.36 | ||||||||||||||||||
Forfeited |
(227 | ) | 59.52 | (102 | ) | 39.68 | (19 | ) | 44.96 | |||||||||||||||
Vested |
(150 | ) | 37.19 | (169 | ) | 34.81 | (195 | ) | 35.32 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Outstanding, end of year |
823 | $ | 58.23 | 412 | $ | 36.04 | 488 | $ | 37.40 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
Included in the table above are 0.4 million performance-based restricted stock units awarded during 2011 to certain executives and key employees under the 2005 Plan. These performance-based restricted stock units have a weighted average fair value of $67.83 and have vesting that is tied to the achievement of a certain combined annual operating income target for 2012 and 2013. Upon the achievement of the combined operating income target, 50% of the restricted stock units will vest on February 15, 2014 and the remaining 50% will vest on February 15, 2015. If certain lower levels of combined operating income for 2012 and 2013 are achieved, fewer or no restricted stock units will vest at that time and one year later, and the remaining restricted stock units will be forfeited. As of December 31, 2011, the Company had not begun recording stock-based compensation expense for these performance-based restricted stock units as the Company determined the achievement of the combined operating income targets was not probable. The Company will assess the probability of the achievement of the operating income targets at the end of each reporting period. If it becomes probable that the performance targets related to these performance-based restricted stock units will be achieved, a cumulative adjustment will be recorded as if ratable stock-based compensation expense had been recorded since the grant date. Additional stock based compensation of up to $5.6 million would have been recorded through December 31, 2011 for these performance-based restricted stock units had the full achievement of these operating income targets been deemed probable.
Warrants
In 2006, the Company issued fully vested and non-forfeitable warrants to purchase 480.0 thousand shares of the Companys Class A Common Stock to NFL Properties as partial consideration for footwear promotional rights which were recorded as an intangible asset, refer to Note 6 for further information on this intangible asset. With the assistance of an independent third party valuation firm, the Company assessed the fair value of the warrants using various fair value models. Using these measures, the Company concluded that the fair value of the warrants was $8.5 million. The warrants have a term of 12 years from the date of issuance and an exercise price of $36.99 per share, which was the closing price of the Companys Class A Common Stock on the date of issuance. As of December 31, 2011, all outstanding warrants were exercisable, and no warrants were exercised.
14. Other Employee Benefits
The Company offers a 401(k) Deferred Compensation Plan for the benefit of eligible employees. Employee contributions are voluntary and subject to Internal Revenue Service limitations. The Company matches a portion of the participants contribution and recorded expense of $1.8 million, $1.2 million and $1.3 million for the years ended December 31, 2011, 2010 and 2009, respectively. Shares of the Companys Class A Common Stock are not an investment option in this plan.
In addition, the Company offers the Under Armour, Inc. Deferred Compensation Plan which allows a select group of management or highly compensated employees, as approved by the Compensation Committee, to make
69
an annual base salary and/or bonus deferral for each year. As of December 31, 2011 and 2010, the Deferred Compensation Plan obligations were $3.5 million and $3.6 million, respectively, and were included in other long term liabilities on the consolidated balance sheets.
The Company established the Rabbi Trust to fund obligations to participants in the Deferred Compensation Plan. As of December 31, 2011 and 2010, the assets held in the Rabbi Trust were TOLI policies with cash-surrender values of $3.9 million and $3.6 million, respectively. These assets are consolidated as allowed by accounting guidance, and are included in other long term assets on the consolidated balance sheet. Refer to Note 10 for a discussion of the fair value measurements of the assets held in the Rabbi Trust and the Deferred Compensation Plan obligations.
15. Foreign Currency Risk Management and Derivatives
The Company is exposed to gains and losses resulting from fluctuations in foreign currency exchange rates relating to transactions generated by its international subsidiaries in currencies other than their local currencies. These gains and losses are primarily driven by intercompany transactions. From time to time, the Company may elect to enter into foreign currency forward contracts to reduce the risk associated with foreign currency exchange rate fluctuations on intercompany transactions and projected inventory purchases for its European and Canadian subsidiaries. In addition, the Company may elect to enter into foreign currency forward contracts to reduce the risk associated with foreign currency exchange rate fluctuations on Pound Sterling denominated balance sheet items.
As of December 31, 2011, the notional value of the Companys outstanding foreign currency forward contracts used to mitigate the foreign currency exchange rate fluctuations on its Canadian subsidiarys intercompany transactions was $51.1 million with contract maturities of 1 month or less. As of December 31, 2011, the notional value of the Companys outstanding foreign currency forward contracts used to mitigate the foreign currency exchange rate fluctuations on its European subsidiarys intercompany transactions was $50.0 million with contract maturities of 1 month. As of December 31, 2011, the notional value of the Companys outstanding foreign currency forward contract used to mitigate the foreign currency exchange rate fluctuations on Pounds Sterling denominated balance sheet items was 10.5 million, or $13.6 million, with a contract maturity of 1 month. The foreign currency forward contracts are not designated as cash flow hedges, and accordingly, changes in their fair value are recorded in earnings. The fair values of the Companys foreign currency forward contracts were liabilities of $0.7 million and $0.6 million as of December 31, 2011 and 2010, respectively, and were included in accrued expenses on the consolidated balance sheets. Refer to Note 10 for a discussion of the fair value measurements. Included in other expense, net were the following amounts related to changes in foreign currency exchange rates and derivative foreign currency forward contracts:
(In thousands) |
Year Ended December 31, | |||||||||||
2011 | 2010 | 2009 | ||||||||||
Unrealized foreign currency exchange rate gains (losses) |
$ | (4,027 | ) | $ | (1,280 | ) | $ | 5,222 | ||||
Realized foreign currency exchange rate gains (losses) |
298 | (2,638 | ) | (261 | ) | |||||||
Unrealized derivative losses |
(31 | ) | (809 | ) | (1,060 | ) | ||||||
Realized derivative gains (losses) |
1,696 | 3,549 | (4,412 | ) |
The Company enters into foreign currency forward contracts with major financial institutions with investment grade credit ratings and is exposed to credit losses in the event of non-performance by these financial institutions. This credit risk is generally limited to the unrealized gains in the foreign currency forward contracts. However, the Company monitors the credit quality of these financial institutions and considers the risk of counterparty default to be minimal.
16. Related Party Transactions
The Company has an agreement to license a software system with a vendor whose Co-CEO is a director of the Company. During the years ended December 31, 2011, 2010 and 2009, the Company paid $1.8 million, $1.5 million and $2.0 million, respectively, in licensing fees and related support services to this vendor. There were no amounts payable to this related party as of December 31, 2011 and 2010.
70
The Company has an operating lease agreement with an entity controlled by the Companys CEO to lease an aircraft for business purposes. The Company paid $0.7 million, $1.0 million and $0.6 million in usage fees to this entity for its use of the aircraft during the years ended December 31, 2011, 2010 and 2009, respectively. No amounts were payable to this related party as of December 31, 2011 and 2010. The Company determined the usage fees charged are at or below market.
17. Segment Data and Related Information
The Companys operating segments are based on how the Chief Operating Decision Maker (CODM) makes decisions about allocating resources and assessing performance. As such, the CODM receives discrete financial information by geographic region based on the Companys strategy to become a global brand. These geographic regions include North America; Latin America; Europe, the Middle East and Africa (EMEA); and Asia. The Companys operating segments are based on these geographic regions. Each geographic segment operates exclusively in one industry: the development, marketing and distribution of branded performance apparel, footwear and accessories. Due to the insignificance of the EMEA, Latin America and Asia operating segments, they have been combined into other foreign countries for disclosure purposes.
The geographic distribution of the Companys net revenues, operating income and total assets are summarized in the following tables based on the location of its customers and operations. Net revenues represent sales to external customers for each segment. In addition to net revenues, operating income is a primary financial measure used by the Company to evaluate performance of each segment. Intercompany balances were eliminated for separate disclosure and corporate expenses from North America have not been allocated to other foreign countries.
(In thousands) |
Year Ended December 31, | |||||||||||
2011 | 2010 | 2009 | ||||||||||
Net revenues |
||||||||||||
North America |
$ | 1,383,346 | $ | 997,816 | $ | 808,020 | ||||||
Other foreign countries |
89,338 | 66,111 | 48,391 | |||||||||
|
|
|
|
|
|
|||||||
Total net revenues |
$ | 1,472,684 | $ | 1,063,927 | $ | 856,411 | ||||||
|
|
|
|
|
|
(In thousands) |
Year Ended December 31, | |||||||||||
2011 | 2010 | 2009 | ||||||||||
Operating income |
||||||||||||
North America |
$ | 150,559 | $ | 102,806 | $ | 83,239 | ||||||
Other foreign countries |
12,208 | 9,549 | 2,034 | |||||||||
|
|
|
|
|
|
|||||||
Total operating income |
162,767 | 112,355 | 85,273 | |||||||||
Interest expense, net |
(3,841 | ) | (2,258 | ) | (2,344 | ) | ||||||
Other expense, net |
(2,064 | ) | (1,178 | ) | (511 | ) | ||||||
|
|
|
|
|
|
|||||||
Income before income taxes |
$ | 156,862 | $ | 108,919 | $ | 82,418 | ||||||
|
|
|
|
|
|
(In thousands) |
December 31, | |||||||
2011 | 2010 | |||||||
Total assets |
||||||||
North America |
$ | 842,121 | $ | 613,515 | ||||
Other foreign countries |
77,089 | 61,863 | ||||||
|
|
|
|
|||||
Total assets |
$ | 919,210 | $ | 675,378 | ||||
|
|
|
|
71
Net revenues by product category are as follows:
(In thousands) |
Year Ended December 31, | |||||||||||
2011 | 2010 | 2009 | ||||||||||
Apparel |
$ | 1,122,031 | $ | 853,493 | $ | 651,779 | ||||||
Footwear |
181,684 | 127,175 | 136,224 | |||||||||
Accessories |
132,400 | 43,882 | 35,077 | |||||||||
|
|
|
|
|
|
|||||||
Total net sales |
1,436,115 | 1,024,550 | 823,080 | |||||||||
License revenues |
36,569 | 39,377 | 33,331 | |||||||||
|
|
|
|
|
|
|||||||
Total net revenues |
$ | 1,472,684 | $ | 1,063,927 | $ | 856,411 | ||||||
|
|
|
|
|
|
As of December 31, 2011 and 2010, substantially all of the Companys long-lived assets were located in the United States. Net revenues in the United States were $1,325.8 million, $952.9 million and $771.2 million for the years ended December 31, 2011, 2010 and 2009, respectively.
18. Unaudited Quarterly Financial Data
(In thousands) |
Quarter Ended (unaudited) | Year
Ended December 31, |
||||||||||||||||||
March 31, | June 30, | September 30, | December 31, | |||||||||||||||||
2011 |
||||||||||||||||||||
Net revenues |
$ | 312,699 | $ | 291,336 | $ | 465,523 | $ | 403,126 | $ | 1,472,684 | ||||||||||
Gross profit |
145,051 | 134,779 | 225,101 | 207,905 | 712,836 | |||||||||||||||
Income from operations |
21,142 | 11,358 | 74,965 | 55,302 | 162,767 | |||||||||||||||
Net income |
12,139 | 6,241 | 45,987 | 32,552 | 96,919 | |||||||||||||||
Earnings per share-basic |
$ | 0.24 | $ | 0.12 | $ | 0.89 | $ | 0.63 | $ | 1.88 | ||||||||||
Earnings per share-diluted |
$ | 0.23 | $ | 0.12 | $ | 0.88 | $ | 0.62 | $ | 1.85 | ||||||||||
2010 |
||||||||||||||||||||
Net revenues |
$ | 229,407 | $ | 204,786 | $ | 328,568 | $ | 301,166 | $ | 1,063,927 | ||||||||||
Gross profit |
107,631 | 99,926 | 167,372 | 155,578 | 530,507 | |||||||||||||||
Income from operations |
13,584 | 6,892 | 56,689 | 35,190 | 112,355 | |||||||||||||||
Net income |
7,170 | 3,502 | 34,857 | 22,948 | 68,477 | |||||||||||||||
Earnings per share-basic |
$ | 0.14 | $ | 0.07 | $ | 0.68 | $ | 0.45 | $ | 1.35 | ||||||||||
Earnings per share-diluted |
$ | 0.14 | $ | 0.07 | $ | 0.68 | $ | 0.44 | $ | 1.34 |
19. Subsequent Events
Stockholders Equity
In February 2012, 150.0 thousand shares of Class B Convertible Common Stock were converted into shares of Class A Common Stock on a one-for-one basis in connection with a stock sale.
Stock-Based Compensation
In February 2012, 0.4 million performance-based restricted stock units were awarded to certain officers and key employees under the 2005 Plan. The performance-based restricted stock units have vesting that is tied to the achievement of a certain combined annual operating income target for 2013 and 2014. Upon the achievement of the combined operating income target, 50% of the restricted stock units will vest on February 15, 2015 and the remaining 50% will vest on February 15, 2016. If certain lower levels of combined operating income for 2013 and 2014 are achieved, fewer or no restricted stock units will vest at that time and one year later, and the remaining restricted stock units will be forfeited.
72
ITEM 9. | CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE |
None
ITEM 9A. | CONTROLS AND PROCEDURES |
Our management has evaluated, under the supervision and with the participation of our Chief Executive Officer and Chief Financial Officer, the effectiveness of our disclosure controls and procedures as of December 31, 2011 pursuant to Rule 13a-15(b) under the Securities Exchange Act of 1934 (the Exchange Act). Based on that evaluation, our Chief Executive Officer and Chief Financial Officer have concluded that, as of December 31, 2011, our disclosure controls and procedures are effective in ensuring that information required to be disclosed in our Exchange Act reports is (1) recorded, processed, summarized and reported in a timely manner and (2) accumulated and communicated to our management, including our Chief Executive Officer and Chief Financial Officer, as appropriate to allow timely decisions regarding required disclosure. Refer to Item 8 of this report for the Report of Management on Internal Control over Financial Reporting.
There has been no change in our internal control over financial reporting during the most recent fiscal quarter that has materially affected, or that is reasonably likely to materially affect our internal control over financial reporting.
ITEM 9B. | OTHER INFORMATION |
None
73
ITEM 10. | DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE |
The information required by this Item regarding directors is incorporated herein by reference from the 2012 Proxy Statement, under the headings NOMINEES FOR ELECTION AT THE ANNUAL MEETING, CORPORATE GOVERNANCE AND RELATED MATTERS: Audit Committee and SECTION 16(a) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE. Information required by this Item regarding executive officers is included under Executive Officers of the Registrant in Part 1 of this Form 10-K.
Code of Ethics
We have a written code of ethics in place that applies to all our employees, including our principal executive officer, principal financial officer, and principal accounting officer and controller. A copy of our ethics policy is available on our website: www.underarmour.com. We are required to disclose any change to, or waiver from, our code of ethics for our senior financial officers. We intend to use our website as a method of disseminating this disclosure as permitted by applicable SEC rules.
ITEM 11. | EXECUTIVE COMPENSATION |
The information required by this Item is incorporated by reference herein from the 2012 Proxy Statement under the headings CORPORATE GOVERNANCE AND RELATED MATTERS: Compensation of Directors, EXECUTIVE COMPENSATION, and COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION.
ITEM 12. | SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS |
The information required by this Item is incorporated by reference herein from the 2012 Proxy Statement under the heading SECURITY OWNERSHIP OF MANAGEMENT AND CERTAIN BENEFICIAL OWNERS OF SHARES. Also refer to Item 5 Market for Registrants Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities.
ITEM 13. | CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE |
The information required by this Item is incorporated by reference herein from the 2012 Proxy Statement under the heading TRANSACTIONS WITH RELATED PERSONS and CORPORATE GOVERNANCE AND RELATED MATTERSIndependence of Directors.
ITEM 14. | PRINCIPAL ACCOUNTANT FEES AND SERVICES |
The information required by this Item is incorporated by reference herein from the 2012 Proxy Statement under the heading INDEPENDENT AUDITORS.
74
ITEM 15. | EXHIBITS AND FINANCIAL STATEMENT SCHEDULES |
a. The following documents are filed as part of this Form 10-K:
1. Financial Statements: |
||||
46 | ||||
Consolidated Balance Sheets as of December 31, 2011 and 2010 |
47 | |||
Consolidated Statements of Income for the Years Ended December 31, 2011, 2010 and 2009 |
48 | |||
49 | ||||
Consolidated Statements of Cash Flows for the Years Ended December 31, 2011, 2010 and 2009 |
50 | |||
51 | ||||
2. Financial Statement Schedule |
||||
79 |
All other schedules are omitted because they are not applicable or the required information is shown in the consolidated financial statements or notes thereto.
3. Exhibits
The following exhibits are incorporated by reference or filed herewith. References to the Companys 2005 Form 10-K are to the Registrants Annual Report on Form 10-K for the year ended December 31, 2005. References to the Companys 2007 Form 10-K are to the Registrants Annual Report on Form 10-K for the year ended December 31, 2007. References to the Companys 2009 Form 10-K are to the Registrants Annual Report on Form 10-K for the year ended December 31, 2009. References to the Companys 2010 Form 10-K are to the Registrants Annual Report on Form 10-K for the year ended December 31, 2010.
Exhibit |
||
3.01 | Amended and Restated Articles of Incorporation (incorporated by reference to Exhibit 3.01 of the Companys 2005 Form 10-K). | |
3.02 | Amended and Restated By-Laws (incorporated by reference to Exhibit 3.02 of the Companys 2005 Form 10-K). | |
4.01 | Warrant Agreement between the Company and NFL Properties LLC dated as of August 3, 2006 (incorporated by reference to Exhibit 4.1 of the Current Report on Form 8-K filed August 7, 2006). | |
10.01 | Credit Agreement among PNC Bank, National Association, as Administrative Agent, SunTrust Bank, as Syndication Agent, Bank of America, N.A., as Documentation Agent, and the Lenders and the Guarantors that are party thereto and the Company dated March 29, 2011 (incorporated by reference to Exhibit 10.04 of the Companys Form 10-Q for the quarterly period ended June 30, 2011), as amended by First Amendment to Credit Agreement dated September 16, 2011 (incorporated by reference to Exhibit 10.01 of the Companys Form 10-Q for the quarterly period ended September 30, 2011). |
75
Exhibit |
||
10.02 | Office lease by and between Beason Properties LLLP (as successor to 1450 Beason Street LLC) and the Company dated December 14, 2007 (portions of this exhibit have been omitted pursuant to a request for confidential treatment) (incorporated by reference to Exhibit 10.1 of the Current Report on Form 8-K filed on December 20, 2007), as amended by the First Amendment dated June 4, 2008 (incorporated by reference to Exhibit 10.04 of the Companys Form 10-Q for the quarterly period ended June 30, 2008) and the Second Amendment to Office Lease dated October 1, 2009 (portions of this exhibit have been omitted pursuant to a request for confidential treatment) (incorporated by reference to Exhibit 10.01 of the Companys Form 10-Q for the quarterly period ended September 30, 2009). | |
10.03 | Under Armour, Inc. Executive Incentive Plan (incorporated by reference to Exhibit 10.01 of the Companys Form 10-Q for the quarterly period ended March 31, 2008).* | |
10.04 | Under Armour, Inc. Deferred Compensation Plan (incorporated by reference to Exhibit 10.15 of the Companys 2007 Form 10-K) and Amendment One to this plan (incorporated by reference to Exhibit 10.14 of the Companys 2010 Form 10-K).* | |
10.05 | Form of Change in Control Severance Agreement.* | |
10.06 | Under Armour, Inc. Amended and Restated 2005 Omnibus Long-Term Incentive Plan (incorporated by reference to Exhibit 10.01 of the Companys Form 10-Q for the quarterly period ending March 31, 2009).* | |
10.07 | Forms of Restricted Stock Grant Agreement under the Amended and Restated 2005 Omnibus Long-Term Incentive Plan (filed herewith and incorporated by reference to Exhibits 10.22 a-b of the Companys 2007 Form 10-K and Exhibit 10.21 of the Companys 2009 Form 10-K).* | |
10.08 | Forms of Non-Qualified Stock Option Grant Agreement under the Amended and Restated 2005 Omnibus Long-Term Incentive Plan (filed herewith and incorporated by reference to Exhibits 10.23 b-c of the Companys 2007 Form 10-K, Exhibit 10.22 of the Companys 2009 Form 10-K and Exhibit 10.18 of the Companys 2010 Form 10-K).* | |
10.09 | Form of Restricted Stock Unit Grant Agreement under the Amended and Restated 2005 Omnibus Long-Term Incentive Plan.* | |
10.10 | Forms of Performance-Based Stock Option Grant Agreement under the Amended and Restated 2005 Omnibus Long-Term Incentive Plan (incorporated by reference to Exhibits 10.02 of the Companys Form 10-Q for the quarterly period ended March 31, 2009 and Exhibit 10.03 of the Companys Form 10-Q for the quarterly period ended March 31, 2010).* | |
10.11 | Amendment to Stock Option Awards Effective August 3, 2011.* | |
10.12 | Forms of Performance-Based Restricted Stock Unit Grant Agreement under the Amended and Restated 2005 Omnibus Long-Term Incentive Plan (filed herewith and incorporated by reference to Exhibit 10.05 of the Companys Form 10-Q for the quarterly period ended June 30, 2011).* | |
10.13 | Employee Confidentiality, Non-Competition and Non-Solicitation Agreement by and between Henry Stafford and the Company dated April 12, 2010 (incorporated by reference to Exhibit 10.03 of the Companys Form 10-Q for the quarterly period ended March 31, 2011).* | |
10.14 | Form of Employee Confidentiality, Non-Competition and Non-Solicitation Agreement by and between certain executives and the Company.* | |
10.15 | Agreement and Mutual General Release by and between Mark Dowley and the Company dated April 8, 2011.* |
76
Exhibit |
||
10.16 | Under Armour, Inc. 2010 Non-Employee Director Compensation Plan (incorporated by reference to Exhibit 10.01 of the Companys Form 10-Q for the quarterly period ended March 31, 2010), Amendment One to this plan (incorporated by reference to Exhibit 10.06 of the Companys Form 10-Q for the quarterly period ended June 30, 2011), Form of Initial Restricted Stock Unit Grant (incorporated by reference to Exhibit 10.1 of the Current Report on Form 8-K filed June 6, 2006), Form of Annual Stock Option Award (incorporated by reference to Exhibit 10.3 of the Current Report on Form 8-K filed June 6, 2006) and Form of Annual Restricted Stock Unit Grant (incorporated by reference to Exhibit 10.6 of the Companys Form 10-Q for the quarterly period ended June 30, 2011).* | |
10.17 | Under Armour, Inc. 2006 Non-Employee Director Deferred Stock Unit Plan (incorporated by reference to Exhibit 10.02 of the Companys Form 10-Q for the quarterly period ended March 31, 2010) and Amendment One to this plan (incorporated by reference to Exhibit 10.23 of the Companys 2010 Form 10-K).* | |
21.01 | List of Subsidiaries. | |
23.01 | Consent of PricewaterhouseCoopers LLP. | |
31.01 | Section 302 Chief Executive Officer Certification. | |
31.02 | Section 302 Chief Financial Officer Certification. | |
32.01 | Section 906 Chief Executive Officer Certification. | |
32.02 | Section 906 Chief Financial Officer Certification. | |
101.INS | XBRL Instance Document | |
101.SCH | XBRL Taxonomy Extension Schema Document | |
101.CAL | XBRL Taxonomy Extension Calculation Linkbase Document | |
101.DEF | XBRL Taxonomy Extension Definition Linkbase Document | |
101.LAB | XBRL Taxonomy Extension Label Linkbase Document | |
101.PRE | XBRL Taxonomy Extension Presentation Linkbase Document |
* | Management contract or a compensatory plan or arrangement required to be filed as an Exhibit pursuant to Item 15(b) of Form 10-K. |
77
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
UNDER ARMOUR, INC. | ||
By: |
/s/ KEVIN A. PLANK | |
Kevin A. Plank | ||
President, Chief Executive Officer and Chairman of the Board of Directors |
Dated: February 24, 2012
Pursuant to the requirements of the Securities Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the date indicated.
/S/ KEVIN A. PLANK Kevin A. Plank |
President, Chief Executive Officer and Chairman of the Board of Directors (principal executive officer) | |
/S/ BRAD DICKERSON Brad Dickerson |
Chief Financial Officer (principal accounting and financial officer) | |
/S/ BYRON K. ADAMS, JR. Byron K. Adams, Jr. |
Director | |
/S/ DOUGLAS E. COLTHARP Douglas E. Coltharp |
Director | |
/S/ ANTHONY W. DEERING Anthony W. Deering |
Director | |
/S/ A.B. KRONGARD A.B. Krongard |
Director | |
/S/ WILLIAM R. MCDERMOTT William R. McDermott |
Director | |
/S/ HARVEY L. SANDERS Harvey L. Sanders |
Director | |
/S/ THOMAS J. SIPPEL Thomas J. Sippel |
Director |
Dated: February 24, 2012
78
Valuation and Qualifying Accounts
(In thousands)
Description |
Balance at |
Charged to |
Write-Offs |
Balance at |
||||||||||||
Allowance for doubtful accounts |
||||||||||||||||
For the year ended December 31, 2011 |
$ | 4,869 | $ | 699 | $ | (1,498 | ) | $ | 4,070 | |||||||
For the year ended December 31, 2010 |
5,156 | 190 | (477 | ) | 4,869 | |||||||||||
For the year ended December 31, 2009 |
4,180 | 1,637 | (661 | ) | 5,156 | |||||||||||
Sales returns and allowances |
||||||||||||||||
For the year ended December 31, 2011 |
$ | 16,827 | $ | 74,245 | $ | (70,472 | ) | $ | 20,600 | |||||||
For the year ended December 31, 2010 |
13,969 | 48,136 | (45,278 | ) | 16,827 | |||||||||||
For the year ended December 31, 2009 |
15,961 | 61,499 | (63,491 | ) | 13,969 | |||||||||||
Deferred tax asset valuation allowance |
||||||||||||||||
For the year ended December 31, 2011 |
$ | 1,765 | $ | 1,784 | $ | (1,765 | ) | $ | 1,784 | |||||||
For the year ended December 31, 2010 |
| 1,765 | | 1,765 |
79
Exhibit 10.05
CHANGE IN CONTROL SEVERANCE AGREEMENT
This CHANGE IN CONTROL SEVERANCE AGREEMENT (this Agreement) is made as of the day of , , between Under Armour, Inc., a corporation organized under the laws of the State of Maryland (together with its affiliates, the Company), and (Executive).
WITNESSETH THAT:
WHEREAS, should Under Armour, Inc. or shareholders of Under Armour, Inc. receive any proposal from a third person regarding a possible Change in Control, the Board of Directors of Under Armour, Inc. (the Board) believes it is important that the Company be able to rely upon the Executive to continue in his position until after such Change in Control and that Under Armour, Inc. be able to receive and rely upon the Executives advice, if requested, as to the best interest of Under Armour, Inc. and its shareholders in connection with any such Change in Control, without concern that the Executive might be distracted or his advice affected by the personal uncertainties and risks created by such a Change in Control.
NOW THEREFORE, in order to provide an incentive to the Executive for the continued dedication of Executive and the availability of his advice and counsel notwithstanding the possibility of a Change in Control, and to encourage Executive to remain in the employ of the Company, and for other good and valuable consideration, the Company and Executive hereby agree as follows:
1. Definitions.
(i) AAA shall have the meaning set forth in Section 7(ii).
(ii) Accrued Obligations shall mean the sum of the following: (a) the full base salary earned by the Executive through the Termination Date and unpaid as of the Termination Date, calculated at the highest rate of base salary in effect at any time during the twelve (12) months immediately preceding the Termination Date; (b) the amount of any base salary attributable to vacation earned by the Executive but not taken before the Termination Date; (c) any Bonus accrued to the Executive with respect to the calendar year preceding the termination of employment and unpaid as of the Termination Date; (d) a pro-rata Bonus for the year in which the Change in Control occurs, equal to the Bonus times a fraction, the numerator of which is the number of days during the calendar year preceding the Termination Date and the denominator of which is 365; and (e) all other amounts earned by the Executive and unpaid as of the Termination Date.
1
(iii) Arbitration Rules shall have the meaning set forth in Section 7(ii).
(iv) Bonus shall mean the greater of: (a) the annual average of the Executives bonus paid to the Executive with respect to the two (2) calendar years prior to Executives termination of employment with the Company or (b) the Executives target bonus for the year of such termination of employment.
(v) Cause shall mean the occurrence of any of the following: (a) the Executives material misconduct or neglect in the performance of his duties; (b) the Executives commission of any felony; offense punishable by imprisonment in a state or federal penitentiary; any offense, civil or criminal, involving material dishonesty, fraud, moral turpitude or immoral conduct; or any crime of sufficient import to potentially discredit or adversely affect the Companys ability to conduct its business in the normal course; (c) the Executives use of illegal drugs or abusive use of prescription drugs; (d) the Executives material breach of the Companys written Code of Conduct, as in effect from time to time; (e) the Executives commission of any act that results in severe harm to the Company excluding any act taken by the Executive in good faith that he reasonably believed was in the best interests of the Company; or (f) the Executives material breach of this Agreement, including, but not limited to, a material breach of the Employee Confidentiality, Non-Competition and Non-Solicitation Agreement attached hereto as Attachment A.
(vi) Change in Control shall mean the occurrence of any of the following:
a. | Any person (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended) becomes the beneficial owner (as defined in Rule 13d-3 under said Act), directly or indirectly, of securities of Under Armour, Inc. representing fifty percent (50%) or more of the total voting power represented by Under Armour, Inc.s then-outstanding voting securities, provided, however that a Change in Control shall not be deemed to occur if an employee benefit plan (or a trust forming a part thereof) maintained by Under Armour, Inc., and/or Kevin Plank and/or his immediate family members, directly or indirectly, become the beneficial owner, of more than fifty percent (50%) of the then-outstanding voting securities of Under Armour, Inc. after such acquisition; |
b. | A change in the composition of the Board occurring within a two-year period, as a result of which fewer than a majority of the directors are Incumbent Directors. Incumbent Directors shall mean directors who either (A) are directors of Under Armour, Inc. as of the date hereof, or (B) are elected, or nominated for election, to the Board with the affirmative votes of at least a majority of the Incumbent Directors at the time of such election or nomination (but shall not include an individual |
2
whose election or nomination is in connection with an actual or threatened proxy contest relating to the election of directors to Under Armour, Inc.); |
c. | The consummation of a merger or consolidation of Under Armour, Inc. with any other corporation, other than a merger or consolidation which would result in (a) the voting securities of Under Armour, Inc. outstanding immediately prior thereto continuing to represent (either by remaining outstanding or being converted into voting securities of the surviving entity) at least fifty percent (50%) of the total voting power represented by the voting securities of Under Armour, Inc. or such surviving entity outstanding immediately after such merger or consolidation in substantially the same proportion as prior to such merger or consolidation; or (b) the directors of Under Armour, Inc. immediately prior thereto continuing to represent at least fifty percent (50%) of the directors of Under Armour, Inc. or such surviving entity immediately after such merger or consolidation; or |
d. | The consummation of the sale or disposition by Under Armour, Inc. of all or substantially all of Under Armour, Inc.s assets. |
(vii) Code shall mean the Internal Revenue Code of 1986, as amended from time to time.
(viii) Contract Period shall mean the period staring on the date hereof and ending on the second anniversary of the date hereof. The Company, in its sole discretion, shall have the right to extend the Contract Period.
(ix) Disability shall mean a physical or mental incapacity of the Executive which entitles the Executive to benefits at least as favorable as the benefits provided under the long term disability plan applicable to and maintained by the Company as in effect immediately prior to the Change in Control.
(x) Good Reason, shall mean the occurrence of any of the following events: (a) a diminishment in the scope of the Executives duties or responsibilities with the Company; (b) a reduction in the Executives current base salary, bonus opportunity or a material reduction in the aggregate benefits or perquisites; (c) a requirement that the Executive relocate more than fifty (50) miles from his primary place of business as of the date of a Change in Control, or a significant increase in required travel as part of the Executives duties and responsibilities with the Company; (d) a failure by any successor to the Company to assume this Agreement pursuant to Section 5(a) hereof; or (e) a material breach by the Company of any of the terms of this Agreement.
(xi) Protection Period shall mean the twelve (12) month period following a Change in Control.
3
(xii) Termination Date shall mean the effective date as provided hereunder of the termination of Executives Employment.
(xiii) Without Cause shall mean the termination of the Executives employment by the Company other than for Cause, death or Disability.
2. Application of this Agreement. This Agreement shall apply if and only if: (a) the Executives employment terminates during the Protection Period and (b) the Change in Control occurs during the Contract Period. This Agreement shall not apply to any termination of the Executives employment other than what is described in the preceding sentence. Notwithstanding the foregoing, if three (3) months prior to the date on which a Change in Control occurs, the Executives employment with the Company is terminated by the Company other than by reason of the Executives death, Disability or circumstances that would constitute Cause or the terms and conditions of the Executives employment are adversely changed in a manner which would constitute grounds for a termination of employment by the Executive for Good Reason, and it is reasonably demonstrated that such termination of employment or adverse change (i) was at the request of a third party who has taken steps reasonably calculated to effect the Change in Control, or (ii) otherwise arose in connection with or in anticipation of the Change in Control, then for all purposes of this Agreement such termination of employment shall be deemed to have occurred during the Protection Period and shall be considered either termination of the Executives employment Without Cause by the Company or termination of the Executives employment by the Executive for Good Reason, as the case may be.
3. Termination of Employment of Executive. The Executives employment may be terminated by following the procedures specified in this Section 3.
(i) Cause. The Executive may not be terminated for Cause unless and until a notice of intent to terminate the Executives employment for Cause, specifying the particulars of the conduct of the Executive forming the basis for such termination, is given to the Executive by the Company and, subsequently, a majority of the Board finds, after reasonable notice to the Executive (but in no event less than fifteen (15) days prior notice) and an opportunity for the Executive and his counsel to be heard by the Board, that termination of the Executives employment for Cause is justified. Termination of the Executives employment for Cause shall become effective after such finding has been made by the Board and five (5) business days after the Board gives to the Executive notice thereof, specifying in detail the particulars of the conduct of the Executive found by the Board to justify termination for Cause. It shall not constitute Good Reason to the Executive to the extent the Executive is relieved of any duties and responsibilities during the period the Board is considering whether such termination for Cause is justified.
(ii) Disability. Termination of the Executives employment for Disability shall become effective thirty (30) days after a notice of intent to terminate the Executives employment, specifying Disability as the basis for such termination, is given to the Executive by the Company.
4
(iii) Termination Without Cause. At all times, the Company shall have the right by notice to the Executive of the Companys intention to terminate Executives employment Without Cause. Termination of Executives employment by the Company Without Cause shall become effective immediately upon the receipt by the Executive of such notice.
(iv) Voluntary Termination by the Executive. The Executive may terminate his employment with the Company by giving a notice of voluntary termination to the Company, and if such termination is for Good Reason, such notice shall set forth in reasonable detail the acts and circumstances claimed by the Executive to constitute Good Reason. Termination of the Executives employment by the Executive without Good Reason shall be effective five (5) business days after the Executive gives notice thereof to the Company. The Company shall have twenty (20) days after receipt of such notice from the Executive of claimed Good Reason to cure any Good Reason. If the Company is unable to cure the Good Reason during such cure period, termination of the Executives employment by the Executive for Good Reason shall be effective five (5) business days after the expiration of such cure period.
(v) Death. Termination of the Executives employment for death shall be effective on the date of the Executives death.
4. Benefits Upon Termination of Employment.
(i) Termination Without Cause or by the Executive for Good Reason. Upon the termination of the employment of Executive Without Cause by the Company or by the Executive for Good Reason, the Company shall pay or provide to the Executive:
(a) a lump sum payment equal to the sum of the following:
1. the Accrued Obligations; and
2. an amount equal to the sum of the annual base salary of the Executive at the highest rate in effect during the Protection Period and the Bonus.
The payment described in this Section 4(i)(a)(1) shall be made by the Company not later than the earlier of the date required by applicable law or five (5) days following the Termination Date. The payment described in Section 4(i)(a)(2) shall be paid in accordance with Section 4(vi). Executive shall not be required to mitigate the amount of the payment provided for in this Section 4(i)(a) by seeking other employment or otherwise. The amount of the payment provided for in this Section 4(i)(a) shall not be reduced by any compensation or other amounts paid to or earned by Executive as the result of employment with another employer after the date on which his employment with the Company terminates or otherwise.
5
(b) the continuance of the Executives life, medical, dental, prescription drug and long and short-term disability plans, programs or arrangements, whether group or individual, of the Company in which the Executive was entitled to participate at any time during the twelve (12) month period prior to the Termination Date until the earliest to occur of (1) one (1) year after the Termination Date; (2) the Executives death (provided that compensation and benefits payable to his beneficiaries shall not terminate upon his death); or (3) with respect to any particular plan, program or arrangement, the date the Executive is afforded a comparable benefit at a comparable cost to the Executive by a subsequent employer.
(ii) Cobra Continuation Coverage. Upon the expiration of the provision of benefits in Section 4(i)(b), the Executive and his dependents shall be entitled to exercise such rights as they may have under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA).
(iii) Death and Disability. Upon a termination of the Executives employment on account of the Executives death or Disability, the Company shall pay to the Executive or his estate or beneficiary (in the event of his death), the Accrued Obligations within five (5) days of the Termination Date and the Company shall provide to the Executive or his estate or beneficiary (in the event of his death), such benefits that the Company provides in the event of an employees death or Disability.
(iv) Cause, Voluntary Termination by the Executive. Upon the termination of the Executives employment by the Company for Cause or by the Executive without Good Reason, the Company shall pay to the Executive the Accrued Obligations within five (5) days of the Termination Date.
(v) Effect of Stock Options and Other Equity Awards. The terms and conditions of the Executives award agreements or employment agreement (as applicable to such Executive) shall govern the effect of termination of the Executives employment on equity awards granted by the Company and held by the Executive as of the Termination Date.
(vi) Conditions to Receiving Benefits. The benefits described in Sections 4(i)(a)(2) and 4(i)(b) shall be subject to the Executives execution of the Employee Confidentiality, Non-Competition, and Non-Solicitation Agreement attached hereto as Attachment A, and the benefits described in Sections 4(i)(a)(2) and 4(i)(b) will be paid within the sixty (60) day period following the Termination Date provided the Executive executes the release attached hereto as Attachment B, and such release becomes effective and irrevocable within such sixty (60) day period and provided, further, that if such sixty (60) day period begins in one calendar year and ends in a second calendar year, the payment will be made in the second calendar year.
(vii) No Further Payments due to Executive. Except as provided in this Section 4, the Company shall have no obligation to make any other payment, in the nature of severance or termination pay.
6
(viii) Exception to Benefit Entitlements. The Executive shall not receive the payments and benefits under this Agreement if the Executive has executed an individually negotiated employment contract, agreement or offer letter with the Company relating to severance benefits that is in effect on the Termination Date, unless the Executive waives any such severance benefits under such contract, agreement or letter.
(viii) Retirement Payments. No amounts paid pursuant to this Agreement will constitute compensation for any purpose under any retirement plan or other employee benefit plan, program, arrangement or agreement of the Company or any of its affiliates, unless such plan, program, arrangement or agreement specifically so provides.
5. Successors; Binding Agreement.
(a) This Agreement shall be binding upon any successor (whether direct or indirect, by purchase, merger, consolidation, liquidation or otherwise) to all or substantially all of the business and/or assets of Under Armour, Inc. Additionally, Under Armour, Inc. shall require any such successor expressly to agree to assume and to assume of the obligations of the Company under this Agreement upon or prior to such succession taking place. A copy of such assumption and agreement shall be delivered to the Executive promptly after its execution by the successor.
(b) This Agreement is personal to the Executive and the Executive may not assign or transfer any part of his rights or duties hereunder, or any payments due to the Executive hereunder, to any other person, except that this Agreement shall inure to the benefit of and be enforceable by Executives personal or legal representatives, executors, administrators, heirs, distributees, devisees, legatees or beneficiaries. No payment pursuant to any will or the laws of descent and distribution shall be made hereunder unless the Company shall have been furnished with a copy of such will and/or such other evidence as the Board may deem necessary to establish the validity of the payment.
6. Modification; Waiver. No provisions of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in a writing signed by Executive and by an officer of the Company thereunto expressly authorized by the Board. Waiver by any party of any breach of or failure to comply with any provision of this Agreement by the other party shall not be construed as, or constitute, a continuing waiver of such provision, or a waiver of any other breach of, or failure to comply with, any other provision of this Agreement.
7. Arbitration of Disputes.
(i) Any disagreement, dispute, controversy or claim arising out of or relating to this Agreement or the interpretation or validity hereof shall be settled exclusively and finally by arbitration. It is specifically understood and agreed that any such disagreement, dispute or controversy which cannot be resolved between the parties, including without limitation any matter relating to interpretation of this Agreement, may
7
be submitted to arbitration irrespective of the magnitude thereof, the amount in controversy or whether such disagreement, dispute or controversy would otherwise be considered justiciable or ripe for resolution by a court or arbitral tribunal.
(ii) The arbitration shall be conducted in accordance with the Commercial Arbitration Rules (the Arbitration Rules) of the American Arbitration Association (AAA).
(iii) The arbitral tribunal shall consist of one arbitrator. The parties to the arbitration jointly shall directly appoint such arbitrator within thirty (30) days of initiation of the arbitration. If the parties shall fail to appoint such arbitrator as provided above, such arbitrator shall be appointed by the AAA as provided in the Arbitration Rules and shall be a person who (a) maintains his principal place of business within thirty (30) miles of the City of Baltimore and (b) has substantial experience in executive compensation. The parties shall each pay an equal portion of the fees, if any, and expenses of such arbitrator.
(iv) The arbitration shall be conducted within thirty (30) miles of the City of Baltimore or in such other city in the United States of America as the parties to the dispute may designate by mutual written consent.
(v) At any oral hearing of evidence in connection with the arbitration, each party thereto or its legal counsel shall have the right to examine its witnesses and to cross-examine the witnesses of any opposing party. No evidence of any witness shall be presented unless the opposing party or parties shall have the opportunity to cross-examine such witness, except as the parties to the dispute otherwise agree in writing or except under extraordinary circumstances where the interests of justice require a different procedure.
(vi) Any decision or award of the arbitral tribunal shall be final and binding upon the parties to the arbitration proceeding. The parties hereto hereby waive to the extent permitted by law any rights to appeal or to seek review of such award by any court or tribunal. The parties hereto agree that the arbitral award may be enforced against the parties to the arbitration proceeding or their assets wherever they may be found and that a judgment upon the arbitral award may be entered in any court having jurisdiction.
(vii) Nothing herein contained shall be deemed to give the arbitral tribunal any authority, power, or right to alter, change, amend, modify, add to or subtract from any of the provisions of this Agreement.
(viii) If any dispute is not resolved within sixty (60) days from the date of the commencement of an arbitration, then the Company shall, at its option, elect to pay Executive either (a) within five (5) days after the end of such sixty (60)-day period, the amount or amounts which would have been payable to Executive had there been no dispute, subject to reimbursement to the extent consistent with the final disposition of the dispute or (b) following final disposition of the dispute, the amount determined in such final disposition to have been payable, together with Interest from the date when such sums were originally payable to the date of actual payment. For purpose of this paragraph (viii) the term Interest means interest at a rate equal to the Companys borrowing rate per annum, compounded monthly.
8
(ix) Notwithstanding anything to the contrary in this Agreement, the arbitration provisions set forth in this Section 7 shall be governed exclusively by the Federal Arbitration Act, Title 9, United States Code.
(x) If the Executive prevails in the arbitration concerning any substantial matter of this Agreement or the rights and duties of any party hereunder, in addition to such other relief as may be granted, the Company shall reimburse the Executive for the Executives reasonable attorneys fees incurred by reason of such arbitration to the extent the attorneys fees relate to such substantial matter, and any such reimbursement payments shall be made no later than March 15 of the year following the year in which such arbitration award is final.
8. Notice. All notices, requests, demands and other communications required or permitted to be given by either party to the other party to this Agreement (including, without limitation, any notice of termination of employment and any notice of an intention to arbitrate) shall be in writing and shall be deemed to have been duly given when delivered personally or received by certified or registered mail, return receipt requested, postage prepaid, at the address of the other party, as follows:
If to the Company, to: | If to the Executive, to: | |
Under Armour, Inc. |
| |
Attn: Vice President, |
| |
Human Resources |
| |
1020 Hull Street | ||
Baltimore, Maryland 21230 | ||
With a copy to: | With a copy to: | |
Under Armour, Inc. |
| |
Attn: Legal Department |
| |
1020 Hull Street |
| |
Baltimore, Maryland 21230 |
Either party hereto may change its address for purposes of this Section 8 by giving fifteen (15) days prior notice to the other party hereto.
9. Severability. If any term or provision of this Agreement or the application thereof to any person or circumstance shall to any extent be invalid or unenforceable, the remainder of this Agreement or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable shall not be affected thereby, and each term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
9
10. Headings. The headings in this Agreement are inserted for convenience of reference only and shall not be a part of or control or affect the meaning of this Agreement.
11. Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed an original.
12. Governing Law. This Agreement has been executed and delivered in the State of Maryland and shall in all respects be governed by, and construed and enforced in accordance with, the laws of the State of Maryland without reference to its principles of conflicts of law.
13. Certain Withholdings. The Company shall withhold from any amounts payable to Executive hereunder all federal, state, city and other taxes and withholdings that the Company determines are required to be withheld pursuant to any applicable law or regulation.
14. Entire Agreement. This Agreement supersedes any and all other oral or written agreements heretofore made relating to amounts payable pursuant to a change in control and constitutes the entire agreement relating to such change in control. Any existing employment agreement is hereby superseded only with regard to amounts payable pursuant to a change in control.
15. Code Section 409A. To the extent that the right to any payment under this Agreement provides for deferred compensation within the meaning of Section 409A of the Code that is not exempt from Code Section 409A as involuntary separation pay or a short-term deferral (or otherwise), a termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for any payment or benefits upon or following a termination of employment unless such termination is also a separation from service within the meaning of Code Section 409A and, for purposes of any such provision, references to a termination, termination of employment, or like terms shall mean separation from service. In addition, notwithstanding any provision to the contrary in this agreement, if Executive is deemed on the date of Executives separation from service (within the meaning of Code Section 409A) to be a specified employee (within the meaning of Code Section 409A), then with regard to any payment under this Agreement that is required to be delayed pursuant to Code Section 409A(a)(2)(B), such payment shall not be made prior to the later of (1) June 30, 2012, or (2) the earlier of (a) the expiration of the six (6) month period measured from the date of Executives separation from service and (b) the date of Executives death. Each payment under this Agreement shall be treated as a separate payment for purposes of Code Section 409A. In addition, to the extent that any reimbursement or in-kind benefit under this Agreement or under any other reimbursement or in-kind benefit plan or arrangement in which Executive participates during the term of Executives employment under this Agreement or thereafter provides for a deferral of compensation within the meaning of Section 409A of the Code, (i) the amount eligible for reimbursement or in-kind benefit in one calendar year may not affect the amount eligible for reimbursement or in-kind benefit in any other calendar year (except that a plan providing medical or health benefits may impose a generally applicable limit on the
10
amount that may be reimbursed or paid), (ii) the right to reimbursement or an in-kind benefit is not subject to liquidation or exchange for another benefit, and (iii) subject to any shorter time periods provided herein, any such reimbursement of an expense must be made on or before the last day of the calendar year following the calendar year in which the expense was incurred.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
UNDER ARMOUR, INC. |
||
By: |
By: | |
Title |
Title |
11
ATTACHMENT A
EMPLOYEE CONFIDENTIALITY, NON-COMPETITION, AND
NON-SOLICITATION AGREEMENT
This Confidentiality, Non-Competition, and Non-Solicitation Agreement (Agreement) is entered into this day of , , by and between Under Armour, Inc. (together with its affiliates, the Company) and (Employee).
EXPLANATORY NOTE
The Employee recognizes that the Employee has had or will have access to confidential proprietary information during the course of his or her employment and that the Employees subsequent employment with a Competitor Business, as defined in Section 3, would inevitably result in the disclosure of that information and, thereby, create unfair competition and would likely cause substantial loss and harm to the Company. The Employee further acknowledges that employment with the Company is based on the Employees agreement to abide by the covenants contained herein.
NOW THEREFORE, in consideration of Employees employment with the Company and for other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties agree as follows:
1. Confidentiality. Employee acknowledges Employees fiduciary duty and duty of loyalty to the Company. Further, Employee acknowledges that the Company, in reliance on this Agreement, will provide Employee access to trade secrets, customers, proprietary data and other confidential information. Employee agrees to retain said information as confidential and not to use said information for the Employees personal benefit or to disclose same to any third party, except when required to do so to properly perform duties to the Company. Further, as a condition of employment, during the time Employee is employed by the Company and continuing after any termination of the Employees employment with the Company, Employee agrees to protect and hold in a fiduciary capacity for the benefit of the Company all Confidential Information, as defined below, unless the Employee is required to disclose Confidential Information pursuant to the terms of a valid and effective order issued by a court of competent jurisdiction or a governmental authority. The Employee shall use Confidential Information solely for the purpose of carrying out those duties assigned Employee as an employee of the Company and not for any other purpose. The disclosure of Confidential Information to the Employee shall not be construed as granting to the Employee any license under any copyright, trade secret, or any right of ownership or right to use the Confidential Information whatsoever. In the event that Employee is compelled, pursuant to a subpoena or order of a court or other body having jurisdiction over such matter, to produce any Confidential Information or other information relevant to the Company, Employee agrees to promptly provide the Company with written notice of such subpoena or order so that the Company may timely move to quash if appropriate.
12
(a) For the purposes of this Agreement, Confidential Information shall mean all information related to the Companys business that is not generally known to the public. Confidential Information shall include, but shall not be limited to: any financial (whether historical, projections or forecasts), pricing, cost, business, planning, operations, services, potential services, products, potential products, technical information, intellectual property, trade secrets and/or know-how, formulas, production, purchasing, marketing, sales, personnel, customer, supplier, or other information of the Company; any papers, data, records, processes, methods, techniques, systems, models, samples, devices, equipment, compilations, invoices, customer lists, or documents of the Company; any confidential information or trade secrets of any third party provided to the Company in confidence or subject to other use or disclosure restrictions or limitations; this Agreement and its terms; and any other information, written, oral or electronic, whether existing now or at some time in the future, whether pertaining to current or future developments or prospects, and whether accessed prior to the Employees tenure with the Company or to be accessed during Employees future employment or association with the Company, which pertains to the Companys affairs or interests or with whom or how the Company does business. The Company acknowledges and agrees that Confidential Information shall not include information which is or becomes publicly available other than as a result of a disclosure by the Employee.
(b) The Employee shall promptly notify the Company if he or she has reason to believe that the unauthorized use, possession, or disclosure of any Confidential Information has occurred or may occur.
(c) All physical items containing Confidential Information, including, but not limited to, the business plan, know-how, collection methods and procedures, advertising techniques, marketing plans and methods, sales techniques, documentation, contracts, reports, letters, notes, any computer media, customer lists and all other information and materials of the Companys business and operations, shall remain the exclusive and confidential property of the Company and shall be returned, along with any copies or notes that the Employee made thereof or therefrom, to the Company when the Employee ceases employment with the Company. The Employee further agrees to return copies of any Confidential Information contained on Employees home computer, portable computer or other similar device. Employee also agrees to allow the Company, upon reasonable notice and for just cause, access to any home computer, portable computer or other similar device maintained by Employee, including but not limited to, for the purpose of determining whether said Confidential Information has been misappropriated. The Employee further agrees to promptly return all other property belonging to the Company upon the termination of Employees employment.
2. Ownership of Works for Hire.
(a) The Employee agrees that any inventions, ideas, developments, methods, improvements, discoveries, innovations, software, works of authorship and any other intangible property (hereinafter collectively referred to as Intellectual Property), whether patentable or not, which are developed, partially developed, considered, contemplated or reduced to practice by the Employee or under his or her direction or jointly with others during his or her employment with the Company, whether or not
13
during normal working hours or on the premises of the Company, shall be considered Works for Hire for the exclusive use and benefit of the Company. The Employee will make full and prompt disclosure to the Company of all such Works for Hire. The Company shall own all rights to any Works for Hire, including all copyrights and the right to market (or not to market) any such property, and the Employee agrees to assign and does hereby assign to the Company (or any person or entity designated by the Company) all his or her right, title and interest in and to all Works for Hire and all related patents, patent applications, copyrights and copyright applications.
(b) The Employee agrees to cooperate fully with the Company, both during and after his or her employment with the Company, with respect to the procurement, maintenance and enforcement of copyrights and patents (both in the United States and foreign countries) relating to Works for Hire. The Employee shall sign all papers, including, without limitation, copyright applications, patent applications, declarations, oaths, formal assignments, assignment of priority rights, and powers of attorney, which the Company may deem necessary or desirable in order to protect its rights and interests in any Works for Hire.
(c) The Employee specifically acknowledges that his or her compensation and benefits constitute full payment for any Works for Hire and waives any claim of right to the Company.
(d) The Company may, at its election and discretion, waive and/or relinquish any of its rights of ownership and royalties with respect to any Works for Hire, by agreeing to do so in a written instrument executed by the Company.
3. Non-Competition. Except as otherwise provided in this Agreement, without the prior written consent of the Company, the Employee hereby covenants and agrees that at no time during the Employees employment with Company and for a period of one (1) year immediately following termination of Employees employment with the Company, whether voluntary or involuntary, shall the Employee:
(a) directly or indirectly work for or engage in any capacity in any activities or provide strategic advice to Competitor Businesses. Competitor Businesses shall be defined as (i) any business that is involved in the manufacture, sale, development of fabrications or manufacturing methods, or marketing of: athletic apparel or footwear (e.g., Reebok, Nike, Adidas); sporting goods; tactical (military and/or law enforcement) apparel; hunting and fishing apparel; mountain sports apparel; accessories of such industries; or any business substantially similar to the present business of the Company or such other business activity in which the Company may substantially engage; and (ii) retail enterprises which sell products that compete with the Companys products;
(b) act in any way, directly or indirectly, with the purpose or effect of soliciting, diverting or taking away any business, customer, client or any supplier of the Company; or
14
(c) otherwise compete with Company in the sale or licensing, directly or indirectly, as principal, agent or otherwise, of any products competitive with the products, or services competitive with the services, developed or marketed by Company.
Written request for consent to be released from the Non-Competition provisions of this Agreement may be submitted by the Employee to the Company following the termination of Employees employment and must include all available information described in Section 5 below. The Company will respond to the request for such consent within two (2) weeks of the request, except as provided in Section 5. In the Companys sole discretion, it may release Employee from the Non-Competition provisions of this Agreement, or reduce the non-competition period from a period of one (1) year immediately following Employees termination to a shorter duration (Non-Competition Period). In the event the Company does not release the Employee from the Non-Competition provision, for the duration of the Non-Competition Period, the Company will pay Employee an amount equal to sixty percent (60%) of Employees base salary as of the date of the termination of Employees employment (Non-Competition Payment), in accordance with the Companys customary pay practices in effect at the time each payment is made. The Non-Competition Payment shall be reduced by (a) the amount of any severance Employee receives from the Company; and (b) the amount of any salary received during the Non-Competition Period from employment in any capacity with an entity that is not a Competitor Business to the extent that any such salary exceeds forty percent (40%) of Employees base salary as of the date of Employees termination from employment with the Company (annualized or pro-rated to correspond to the Non-Competition Period). By way of example, assuming that the Non-Competition Period is six (6) months and that Employees base salary as of the termination date is $100,000, the Non-Competition Payment would not be reduced pursuant to subsection (b) herein so long as any salary received during the Non-Competition Period by Employee from an entity that is not a Competitor Business remained under $20,000.
4. Non-Solicitation and Non-Interference. The Employee hereby covenants and agrees that at no time during the Employees employment with Company and for a period of one (1) year immediately following termination of Employees employment with the Company, whether voluntary or involuntary, shall the Employee:
(a) solicit (other than on behalf of the Company) business or contracts for any products or services of the type provided, developed or under development by the Company during the Employees employment by the Company, from or with any person or entity which was a customer of the Company for such products or services, or any prospective customer which the Company had solicited as of, or within one (1) year prior to, the Employees termination of employment with the Company; or directly or indirectly contract with any such customer or prospective customer for any product or service of the type provided, developed or which was under development by the Company during the Employees employment with the Company; or
(b) knowingly interfere or attempt to interfere with any transaction, agreement or business relationship in which the Company was involved during the Employees employment with the Company, nor will the Employee act in any way with the purpose or effect of hiring anyone who has been an employee of the Company, its
15
divisions or subsidiaries; or soliciting, recruiting or encouraging, directly or indirectly, any of the Companys employees to leave the employ of the Company, its divisions or its subsidiaries.
5. Notification of New Employment. Employee acknowledges and agrees that for a period of one (1) year following the date of termination of Employees employment with the Company, Employee will inform the Company, prior to the acceptance of any job or any work as an independent contractor, of the identity of any new employer or other entity to which Employee is providing consulting or other services, along with Employees starting date, title, job description, salary, and any other information which the Company may reasonably request to confirm Employees compliance with the terms of this Agreement. If Employee does not provide all information reasonably requested by the Company as provided in this Section, the Companys time to respond to a request for release from the Non-Competition provision under Section 3 will be extended to six (6) weeks, or until such time as the information is provided for the Company to make an informed decision.
6. Reasonableness of Restrictions. Employee acknowledges and agrees that the restrictions imposed by this Agreement are fair and reasonably required for the protection of the Company, and will not preclude Employee from becoming gainfully employed following the termination, for any reason, of employment with the Company. The Employee acknowledges that Employee will provide unique services to the Company and that this covenant has unique, substantial, and immeasurable value to the Company. In the event that the provisions of this Agreement should ever be deemed to exceed the limitations permitted by applicable laws, Employee and the Company agree that such provisions shall be reformed to the maximum limitations permitted by the applicable laws. The Employee further acknowledges that the decision whether to consent to release Employee from the provisions of this Agreement is within the sole discretion of the Company.
7. Injunctive Relief. Employee acknowledges and agrees that in the event of a violation or threatened violation of any provision of this Agreement, the Company will sustain irreparable harm and will have the full right to seek injunctive relief, in addition to any other legal remedies available, without the requirement of posting bond.
8. Survivability. This Agreement shall remain binding in the event of the termination, for any reason, of employment with the Company.
9. Governing Law. The formation, construction and interpretation of this Agreement shall at all times and in all respects be governed by the laws of the State of Maryland.
10. Severable Provisions. The provisions of this Agreement are severable, and if any court determines that any provision of this Agreement is invalid or unenforceable, in whole or in part, any invalidity or unenforceability shall affect only that provision, and shall not make any other provision of this Agreement invalid or unenforceable; and this Agreement shall be narrowed by the court to the extent required to be valid and enforceable.
16
11. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter contained herein, and may not be modified except in a written document signed by each of the parties hereto. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any other breach of that or any other provision hereof.
IN WITNESS WHEREOF, the parties have executed the Agreement as of the date first above written.
UNDER ARMOUR, INC. | ||
By: | ||
Name: | ||
Title: | ||
WITNESS: | EMPLOYEE | |
(signature) | ||
Print Name: |
17
ATTACHMENT B
RELEASE AGREEMENT
I understand and agree completely to the terms set forth in the Under Armour, Inc Change in Control Severance Agreement (the Agreement).
I understand that this Release, together with the Agreement, constitutes the complete, final and exclusive embodiment of the entire agreement between the Company and me with regard to the subject matter hereof. I am not relying on any promise or representation by the Company that is not expressly stated therein. Certain capitalized terms used in this Release are defined in the Agreement.
I hereby confirm my obligations under the Companys Employee Confidentiality, Non-Competition and Non-Solicitation Agreement.
Except as otherwise set forth in this Release, I hereby generally and completely release the Company and its parents, subsidiaries, successors, predecessors and affiliates, and its and their partners, members, directors, officers, employees, stockholders, shareholders, agents, attorneys, predecessors, insurers, affiliates and assigns, from any and all claims, liabilities and obligations, both known and unknown, that arise out of or are in any way related to events, acts, conduct, or omissions occurring at any time prior to and including the date I sign this Release. This general release includes, but is not limited to: (a) all claims arising out of or in any way related to my employment with the Company or the termination of that employment; (b) all claims related to my compensation or benefits, including salary, bonuses, commissions, vacation pay, expense reimbursements, severance pay, fringe benefits, stock, stock options, or any other ownership interests in the Company (other than compensation and benefits accrued before any termination of employment or any rights you may have under stock option grants); (c) all claims for breach of contract, wrongful termination, and breach of the implied covenant of good faith and fair dealing; (d) all tort claims, including claims for fraud, defamation, emotional distress, and discharge in violation of public policy; and (e) all federal, state, and local statutory claims, including claims for discrimination, harassment, retaliation, attorneys fees, or other claims arising under the federal Civil Rights Act of 1964 (as amended), the federal Americans with Disabilities Act of 1990 (as amended), the federal Age Discrimination in Employment Act (as amended), and the federal Employee Retirement Income Security Act of 1974 (as amended).
I understand that I may consider whether to agree to the terms contained herein for a period of twenty-one days after the date hereof. Accordingly, I will sign and return the acknowledgment copy of this Release to acknowledge my understanding of and agreement with the foregoing. Prior to my signing this Release, I was advised to consult with an attorney.
This Release will become effective, enforceable and irrevocable seven days after the date on which I sign it. During the seven-day period prior to this date, I may revoke this Release to accept the terms hereof by indicating in writing to the Company my intention to revoke. I understand that if I exercise my right to revoke hereunder, I will
18
forfeit my right to receive any of the special benefits offered to me under the Agreement, and to the extent such payments have already been made, I agree that I will immediately reimburse the Company for the amounts of such payment.
|
By: |
Date: |
19
Exhibit 10.07a
RESTRICTED STOCK GRANT AGREEMENT
THIS AGREEMENT, made as of this 1st day of June, 2010 (the Agreement), between UNDER ARMOUR, INC. (the Company) and Henry Stafford (the Grantee).
WHEREAS, the Company has adopted the Amended and Restated 2005 Omnibus Long-Term Incentive Plan (the Plan), attached hereto as Attachment A, or otherwise delivered or made available to Grantee, to promote the interests of the Company and its stockholders by providing the Companys key employees and others with an appropriate incentive to encourage them to continue in the employ of the Company and to improve the growth and profitability of the Company; and
WHEREAS, the Plan provides for the grant to Grantees in the Plan of restricted shares of Stock of the Company;
NOW, THEREFORE, in consideration of the premises and the mutual covenants hereinafter set forth, the parties hereto hereby agree as follows:
1. Investment. The Grantee represents that the shares of Restricted Stock (as defined herein) are being acquired for investment and not with a view toward the distribution thereof.
2. Grant of Restricted Stock. Pursuant to, and subject to, the terms and conditions set forth herein and in the Plan, the Company hereby grants to the Grantee an Award of 40,000 shares of Stock of the Company (collectively, the Restricted Stock). The Purchase Price for the Restricted Stock shall be paid by the Grantees services to the Company.
3. Grant Date. The Grant Date of the Restricted Stock hereby granted is June 1, 2010.
4. Incorporation of the Plan. All terms, conditions and restrictions of the Plan are incorporated herein and made part hereof as if stated herein. If there is any conflict between the terms and conditions of the Plan and this Agreement, the terms and conditions of this Agreement, as interpreted by the Board, or a Committee thereof, shall govern. Unless otherwise indicated herein, all capitalized terms used herein shall have the meanings given to such terms in the Plan.
5. Vesting Date. The Restricted Stock shall vest in four equal annual installments on each May 15th beginning May 15, 2011; provided that the Grantee remains continuously employed by the Company through each such applicable vesting date. Notwithstanding the foregoing, (i) in the event that the Grantees employment is terminated on account of the Grantees death or Disability at any time, all unvested shares of Restricted Stock not previously forfeited shall immediately vest on such date of termination, (ii) in the event of a Change in Control, all unvested shares of Restricted Stock not previously forfeited shall vest on such Change in Control and (iii) in the event that the Grantees employment is terminated by the Company without Cause within three years from the Grant Date, any Restricted Stock that would have vested within one year after the date of such termination of employment shall vest on the date of such termination of employment. For purposes of this Section 5, Cause shall be defined as any of the following: (a) the Grantees material misconduct or neglect in the performance of his duties; (b) the Grantees conviction for, or plea of nolo contendere to any felony, or a misdemeanor (excluding a petty misdemeanor) involving dishonesty, fraud, financial impropriety, or moral turpitude, or any crime of sufficient import to potentially discredit or adversely affect the Companys ability to conduct its business in the normal course; (c) the Grantees use of illegal drugs; (d) the Grantees material breach of the Companys written Code of Ethics and Business Conduct, as in effect from time to time; (e) the Grantees material breach of this Agreement, including but not limited to breach of the Confidentiality, Non-Compete and Non-Solicitation Agreement attached hereto as Attachment B; (f) Grantees commission of any act that results in severe harm to the Company excluding any act taken by the Grantee in good faith that he
reasonably believed was in the best interest of the Company; or (g) the Grantees failure to move himself and his family to Maryland by July 1, 2011.
Notwithstanding the foregoing, if the shares of stock would otherwise vest during a period in which Grantee is (i) subject to a lock-up agreement restricting Grantees ability to sell the shares in the open market or (ii) restricted from selling the shares in the open market because Grantee is not then eligible to sell under the Companys insider trading or similar plan as then in effect (whether because a trading window is not open or Grantee is otherwise restricted from trading), delivery of the shares will be delayed until the first date on which Grantee is no longer prohibited from selling the shares due to a lock-up agreement or insider trading or similar plan restriction.
6. Forfeiture. Subject to the provisions of the Plan and Section 5 of this Agreement, with respect to the shares of Restricted Stock which have not become vested on the date the Grantees employment is terminated, the Award of Restricted Stock shall expire and such unvested shares of Restricted Stock shall immediately be forfeited on such date.
7. Employment Confidentiality Agreement. As a condition to the grant of the Restricted Stock, Grantee shall have executed and become a party to the Employee Confidentiality, Non-Competition and Non-Solicitation Agreement by and between Grantee and the Company (the Confidentiality, Non-Compete and Non-Solicitation Agreement) attached hereto as Attachment B.
8. Delays or Omissions. No delay or omission to exercise any right, power, or remedy accruing to any party hereto upon any breach or default of any party under this Agreement, shall impair any such right, power or remedy of such party nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or of any similar breach or default thereafter occurring nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of any party of any breach or default under this Agreement, or any waiver on the part of any party or any provisions or conditions of this Agreement, shall be in writing and shall be effective only to the extent specifically set forth in such writing.
9. Integration. This Agreement and the Plan contain the entire understanding of the parties with respect to its subject matter. There are no restrictions, agreements, promises, representations, warranties, covenants or undertakings with respect to the subject matter hereof other than those expressly set forth herein and in the Plan. This Agreement and the Plan supersede all prior agreements and understandings between the parties with respect to its subject matter.
10. Withholding Taxes. Grantee agrees, as a condition of this grant, that Grantee will make acceptable arrangements to pay any withholding or other taxes that may be due as a result of vesting of the Restricted Stock. Grantee may elect to satisfy such obligations, in whole or in part, by delivering to the Company shares of Restricted Stock that have vested as provided under the Plan. In the event that the Company determines that any federal, state, local, municipal or foreign tax or withholding payment is required relating to the vesting of the Restricted Stock, the Company shall have the right to require such payments from Grantee in the form and manner as provided in the Plan.
11. Electronic Delivery. The Company may choose to deliver certain statutory materials relating to the Plan in electronic form. By accepting this grant Grantee agrees that the Company may deliver the Plan prospectus and the Companys annual report to Grantee in an electronic format. If at any time Grantee would prefer to receive paper copies of these documents, as Grantee is entitled to receive, the Company would be pleased to provide copies. Grantee should contact the Stock Plan Administrator to request paper copies of these documents.
2
12. Counterparts; Electronic Signature. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. This Agreement may be signed by the Company through application of an authorized officers signature, and may be signed by Grantee through an electronic signature.
13. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Maryland, without regard to the provisions governing conflict of laws.
14. Grantee Acknowledgment. The Grantee hereby acknowledges receipt of a copy of the Plan. The Grantee hereby acknowledges that all decisions, determinations and interpretations of the Board, or a Committee thereof, in respect of the Plan, this Agreement and this Award of Restricted Stock shall be final and conclusive.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly executed by its duly authorized officer and said Grantee has hereunto signed this Agreement on the Grantees own behalf, thereby representing that the Grantee has carefully read and understands this Agreement and the Plan as of the day and year first written above.
UNDER ARMOUR, INC. |
By:/s/ John P. Stanton |
GRANTEE |
/s/ Henry Stafford |
3
Attachment A
[Attachment A, the Under Armour, Inc. Amended and Restated 2005 Omnibus Long-Term Incentive Plan, was previously filed with the Companys Form 10-Q for the quarterly period ending March 31, 2009 as Exhibit 10.01]
4
Attachment B
[Attachment B, the Employee Confidentiality, Non-Competition and Non-Solicitation Agreement by and between the executive and the Company, was previously filed with the Companys Form 10-Q for the quarterly period ended March 31, 2011 as Exhibit 10.03]
5
Exhibit 10.07b
RESTRICTED STOCK GRANT AGREEMENT
THIS AGREEMENT, made as of this 1st day of February, 2011 (the Agreement), between UNDER ARMOUR, INC. (the Company) and Mark Dowley (the Grantee).
WHEREAS, the Company has adopted the Amended and Restated 2005 Omnibus Long-Term Incentive Plan (the Plan), attached hereto as Attachment A, or otherwise delivered or made available to Grantee, to promote the interests of the Company and its stockholders by providing the Companys key employees and others with an appropriate incentive to encourage them to continue in the employ of the Company and to improve the growth and profitability of the Company; and
WHEREAS, the Plan provides for the grant to Grantees in the Plan of restricted shares of Stock of the Company;
NOW, THEREFORE, in consideration of the premises and the mutual covenants hereinafter set forth, the parties hereto hereby agree as follows:
1. Investment. The Grantee represents that the shares of Restricted Stock (as defined herein) are being acquired for investment and not with a view toward the distribution thereof.
2. Grant of Restricted Stock. Pursuant to, and subject to, the terms and conditions set forth herein and in the Plan, the Company hereby grants to the Grantee an Award of 200,000 shares of Stock of the Company (collectively, the Restricted Stock). The Purchase Price for the Restricted Stock shall be paid by the Grantees services to the Company.
3. Grant Date. The Grant Date of the Restricted Stock hereby granted is February 1, 2011.
4. Incorporation of the Plan. All terms, conditions and restrictions of the Plan are incorporated herein and made part hereof as if stated herein. If there is any conflict between the terms and conditions of the Plan and this Agreement, the terms and conditions of this Agreement, as interpreted by the Board, or a Committee thereof, shall govern. Unless otherwise indicated herein, all capitalized terms used herein shall have the meanings given to such terms in the Plan.
5. Vesting Date. The Restricted Stock shall vest as follows: 10,000 shares on February 15, 2012, 23,334 shares on February 15, 2013, 23,333 shares on February 15, 2014, 23,333 shares on February 15, 2015, and 120,000 shares in six equal annual installments on each February 15th beginning February 15, 2016; provided that the Grantee remains continuously employed by the Company through each such applicable vesting date. Notwithstanding the foregoing, (i) in the event that the Grantees employment is terminated on account of the Grantees death or Disability at any time, all unvested shares of Restricted Stock not previously forfeited shall immediately vest on such date of termination, (ii) in the event of a Change in Control, all unvested shares of Restricted Stock not previously forfeited shall vest on such Change in Control and (iii) in the event that the Grantees employment is terminated by the Company without Cause prior to February 15, 2014, any Restricted Stock that would have vested within one year after the date of such termination of employment shall vest on the date of such termination of employment. For purposes of this Section 5, Cause shall be defined as any of the following: (a) the Grantees material misconduct or neglect in the performance of his duties; (b) the Grantees conviction for, or plea of nolo contendere to any felony, or a misdemeanor (excluding a petty misdemeanor) involving dishonesty, fraud, financial impropriety, or moral turpitude, or any crime of sufficient import to potentially discredit or adversely affect the Companys ability to conduct its business in the normal course; (c) the Grantees use of illegal drugs; (d) the Grantees material breach of the Companys written Code of Ethics and Business
Conduct, as in effect from time to time; (e) the Grantees material breach of this Agreement, including but not limited to breach of the Confidentiality, Non-Compete and Non-Solicitation Agreement attached hereto as Attachment B; or (f) Grantees commission of any act that results in severe harm to the Company excluding any act taken by the Grantee in good faith that he reasonably believed was in the best interest of the Company. Notwithstanding the foregoing, if the shares of stock would otherwise vest during a period in which Grantee is (i) subject to a lock-up agreement restricting Grantees ability to sell the shares in the open market or (ii) restricted from selling the shares in the open market because Grantee is not then eligible to sell under the Companys insider trading or similar plan as then in effect (whether because a trading window is not open or Grantee is otherwise restricted from trading), delivery of the shares will be delayed until the first date on which Grantee is no longer prohibited from selling the shares due to a lock-up agreement or insider trading or similar plan restriction.
6. Forfeiture. Subject to the provisions of the Plan and Section 5 of this Agreement, with respect to the shares of Restricted Stock which have not become vested on the date the Grantees employment is terminated, the Award of Restricted Stock shall expire and such unvested shares of Restricted Stock shall immediately be forfeited on such date.
7. Employment Confidentiality Agreement. As a condition to the grant of the Restricted Stock, Grantee shall have executed and become a party to the Employee Confidentiality, Non-Competition and Non-Solicitation Agreement by and between Grantee and the Company (the Confidentiality, Non-Compete and Non-Solicitation Agreement) attached hereto as Attachment B.
8. Delays or Omissions. No delay or omission to exercise any right, power, or remedy accruing to any party hereto upon any breach or default of any party under this Agreement, shall impair any such right, power or remedy of such party nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or of any similar breach or default thereafter occurring nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of any party of any breach or default under this Agreement, or any waiver on the part of any party or any provisions or conditions of this Agreement, shall be in writing and shall be effective only to the extent specifically set forth in such writing.
9. Integration. This Agreement and the Plan contain the entire understanding of the parties with respect to its subject matter. There are no restrictions, agreements, promises, representations, warranties, covenants or undertakings with respect to the subject matter hereof other than those expressly set forth herein and in the Plan. This Agreement and the Plan supersede all prior agreements and understandings between the parties with respect to its subject matter.
10. Withholding Taxes. Grantee agrees, as a condition of this grant, that Grantee will make acceptable arrangements to pay any withholding or other taxes that may be due as a result of vesting of the Restricted Stock. Grantee may elect to satisfy such obligations, in whole or in part, by delivering to the Company shares of Restricted Stock that have vested as provided under the Plan. In the event that the Company determines that any federal, state, local, municipal or foreign tax or withholding payment is required relating to the vesting of the Restricted Stock, the Company shall have the right to require such payments from Grantee in the form and manner as provided in the Plan.
11. Electronic Delivery. The Company may choose to deliver certain statutory materials relating to the Plan in electronic form. By accepting this grant Grantee agrees that the Company may deliver the Plan prospectus and the Companys annual report to Grantee in an electronic format. If at any time Grantee would prefer to receive paper copies of these documents, as
Grantee is entitled to receive, the Company would be pleased to provide copies. Grantee should contact Jeanne Hofferberth, Director Total Rewards to request paper copies of these documents.
12. Counterparts; Electronic Signature. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. This Agreement may be signed by the Company through application of an authorized officers signature, and may be signed by Grantee through an electronic signature.
13. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Maryland, without regard to the provisions governing conflict of laws.
14. Grantee Acknowledgment. The Grantee hereby acknowledges receipt of a copy of the Plan. The Grantee hereby acknowledges that all decisions, determinations and interpretations of the Board, or a Committee thereof, in respect of the Plan, this Agreement and this Award of Restricted Stock shall be final and conclusive.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly executed by its duly authorized officer and said Grantee has hereunto signed this Agreement on the Grantees own behalf, thereby representing that the Grantee has carefully read and understands this Agreement and the Plan as of the day and year first written above.
UNDER ARMOUR, INC. |
By: /s/ John P. Stanton |
GRANTEE |
/s/ Mark Dowley |
Mark Dowley |
Attachment A
[Attachment A, the Under Armour, Inc. Amended and Restated 2005 Omnibus Long-Term Incentive Plan, was previously filed with the Companys Form 10-Q for the quarterly period ending March 31, 2009 as Exhibit 10.01]
Attachment B
[not attached to signed agreement]
Exhibit 10.08
Form of Option Grant Agreement
THIS OPTION GRANT AGREEMENT, made as of the day of , between UNDER ARMOUR, INC. (the Company) and (the Grantee).
WHEREAS, the Company has adopted and maintains the Amended and Restated 2005 Omnibus Long-Term Incentive Plan (the Plan), attached hereto as Attachment A, or otherwise delivered or made available to Grantee, to promote the interests of the Company and its stockholders by providing key employees and others with an appropriate incentive to encourage them to continue in the employ or service of the Company and to improve the growth and profitability of the Company;
WHEREAS, the Plan provides for the grant to Grantees of Options to purchase Stock of the Company;
NOW, THEREFORE, in consideration of the premises and the mutual covenants hereinafter set forth, the parties hereto hereby agree as follows:
1. Grant of Options. Pursuant to, and subject to, the terms and conditions set forth herein and in the Plan, and further subject to the approval by the Companys stockholders of the Plan, the Company hereby grants to the Grantee a non-qualified stock option (the Option) with respect to shares of Stock of the Company.
2. Grant Date. The Grant Date of the Option hereby granted is , .
3. Incorporation of Plan. All terms, conditions and restrictions of the Plan are incorporated herein and made part hereof as if stated herein. If there is any conflict between the terms and conditions of the Plan and this Option Grant Agreement, the terms and conditions of this Option Grant Agreement, as interpreted by the Committee in its sole discretion, shall govern, unless explicitly provided to the contrary in the Plan or this Option Grant Agreement. Unless otherwise indicated herein, all capitalized terms used herein shall have the meaning given to such terms in the Plan.
4. Option Price. The exercise price per share of Stock underlying the Option granted hereby is $ .
5. Vesting. Except as provided in Section 9 and unless the Option has earlier terminated pursuant to this Agreement, the Option shall become exercisable as follows: 25% of the shares of Stock underlying the Option shall become exercisable on each of the first four anniversaries of the Grant Date, provided the Grantee remains employed by the Company on each such anniversary.
6. Term. Unless the Option has earlier terminated pursuant to the provisions of this Option Grant Agreement or the Plan, all unexercised portions of the Option shall terminate, and all rights to purchase shares of Stock thereunder shall cease, upon the expiration of ten years from the Grant Date.
7. Employment Confidentiality Agreement. As a condition to the grant of the Option, Grantee shall have executed and become a party to the Employee Confidentiality, Non-Competition and Non-Solicitation Agreement by and between Grantee and the Company (the Confidentiality, Non-Compete and Non-Solicitation Agreement) attached hereto as Attachment B.
8. Forfeiture. If Grantee should take any actions in violation of the Confidentiality, Non-Competition and Non-Solicitation Agreement, or in violation of any non-competition agreement entered into between the Grantee and the Company, it will be considered grounds for termination for Cause as defined in Section 9(a) of this Option Grant Agreement, and all unexercised portions of the Option, whether vested or not, will terminate, be forfeited and will lapse, as provided in Section 9(a).
9. Termination of Service.
(a) Termination of Service for Cause. Unless the Option has earlier terminated pursuant to the provisions of this Option Grant Agreement or the Plan, all unexercised portions of the Option, whether vested or unvested, will terminate and be forfeited upon a termination of the Grantees Service for Cause. For purposes of this Option Grant Agreement only, Cause shall be defined as any of the following:
i. | the Grantees material misconduct or neglect in the performance of his duties as determined by the Grantees supervisor, division head, or Chief Executive Officer of the Company; |
ii. | the Grantees conviction by a court of competent jurisdiction, or the entry of a plea of guilty or nolo contendere by the Grantee, of any felony; offense punishable by imprisonment in a state or federal penitentiary; any offense, civil or criminal, involving material dishonesty, fraud, moral turpitude or immoral conduct; or any crime of sufficient import to potentially discredit or adversely affect the Companys ability to conduct its business in the normal course; |
iii. | the Grantees use of illegal drugs; |
iv. | the Grantees material breach of this Option Grant Agreement, including but not limited to breach of the Confidentiality, Non-Compete and Non-Solicitation Agreement attached hereto as Attachment B; or |
v. | any other conduct that is materially injurious to the reputation, business or business relationships of the Company. |
(b) Termination of Service Upon Death or Disability. Unless the Option has earlier terminated pursuant to the provisions of this Option Grant Agreement or the Plan, all unvested portions of the Option shall immediately vest upon termination of the Grantees service due to death or Disability, and the Option shall terminate one hundred eighty (180) days following such termination of employment.
(c) Termination of Service other than for Cause, Death or Disability. Unless the Option has earlier terminated pursuant to the provisions of this Option Grant Agreement or the Plan, the vested portion of the Option shall terminate thirty (30) days following the termination of the Grantees Service for any other reason other than for Cause, death or Disability.
(d) Post Termination Exercise. The Grantee (or the Grantees guardian, legal representative, executor, personal representative or the person to whom the Option shall have been transferred by will or the laws of descent and distribution, as the case may be) may exercise all or any part of the vested portion of the Option during such post termination of employment period, but not later than the end of the term of the Option. Any portion of the Option which is unvested as of the date of termination of service shall immediately terminate.
Nothing in this Option Grant Agreement shall be construed as a contract of employment between the Company (or an affiliate) and Grantee, or as a contractual right of Grantee to continue in the employ of the Company (or an affiliate), or as a limitation of the right of the Company (or an affiliate) to discharge Grantee at any time for any reason, including reasons other than for Cause as defined herein.
10. Effect of a Change in Control. In the event of a Change in Control, any portion of the Option which would become vested within the twelve months following the effective date of such Change in Control had the Grantee remained employed with the Company during such twelve month period shall be immediately vested on such Change in Control.
11. Delays or Omissions. No delay or omission to exercise any right, power or remedy accruing to any party hereto upon any breach or default of any party under this Option Grant Agreement, shall impair any such right, power or remedy of such party nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or of or in any similar breach or default thereafter occurring nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of any party of any breach or default under this Option Grant Agreement, or any waiver on the part of any party or any provisions or conditions of this Option Grant Agreement, shall be in writing and shall be effective only to the extent specifically set forth in such writing.
12. Transferability of Options. During the lifetime of the Grantee, only the Grantee or a Family Member who received all or part of the Option, not for value, (or, in the event of legal incapacity or incompetence, the Grantees guardian or legal representative) may exercise the Option. The Option shall not be assignable or transferable by the Grantee other than to a Family Member, not for value, or by will or the laws of descent and distribution.
13. Manner of Exercise. The vested portion of the Option may be exercised, in whole or in part, by delivering written notice to the Stock Option Administrator designated by the Company. Such notice may be in electronic or other form as used by the Stock Option Administrator in its ordinary course of business and as may be amended from time to time, and shall:
(a) state the election to exercise the Option and the number of shares in respect of which it is being exercised;
(b) be accompanied by (i) cash, check, bank draft or money order in the amount of the Option Price payable to the order of the Stock Option Administrator designated by the Company; or (ii) certificates for shares of the Companys Stock (together with duly executed stock powers) or other written authorization as may be required by the Company to transfer shares of such Stock to the Company, with an aggregate value equal to the Option Price of the Stock being acquired; or (iii) a combination of the consideration described in clauses (i) and (ii). Grantee may transfer Stock to pay the Option Price for Stock being acquired pursuant to clauses (ii) and (iii) above only if such transferred Stock (x) was acquired by the Grantee in open market transactions, (y) has been owned by Grantee for longer than six months, and (z) the Grantee is not subject to any other restrictions on transferring Company securities pursuant to Company policy or federal law.
In addition to the exercise methods described above and subject to other restrictions which may apply, the Grantee may exercise the Option through a procedure known as a cashless exercise, whereby the Grantee delivers to the Stock Option Administrator designated by the Company an irrevocable notice of exercise in exchange for the Company issuing shares of the Companys Stock subject to the Option to a broker previously designated or approved by the Company, versus payment of the Option Price by the broker to the Company, to the extent permitted by the Committee or the Company and subject to such rules and procedures as the Committee or the Company may determine. Grantee may elect to satisfy any tax withholding obligations due upon exercise of the Option, in whole or in part, by delivering to the Company shares of Stock otherwise deliverable upon exercise of the Option as provided under the Plan.
14. Integration. This Option Grant Agreement, and the other documents referred to herein or delivered pursuant hereto, which form a part hereof contain the entire understanding of the parties with respect to its subject matter and there are no restrictions, agreements, promises, representations, warranties, covenants or undertakings with respect to the subject matter hereof other than those expressly set forth in such documents. This Option Grant Agreement and the Plan supersede all prior agreements and understandings between the parties with respect to its subject matter.
15. Electronic Delivery. The Company may choose to deliver certain statutory materials relating to the Plan in electronic form. By accepting this grant Grantee agrees that the Company may deliver the Plan prospectus and the Companys annual report to Grantee in an electronic format. If at any time Grantee would prefer to receive paper copies of these documents, as Grantee is entitled to receive, the Company would be pleased to provide copies. Grantee should contact to request paper copies of these documents.
16. Counterparts; Electronic Signature. This Option Grant Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. This Option Grant Agreement may be signed by the Company through application of an authorized officers signature, and may be signed by Grantee through an electronic signature.
17. Governing Law. This Option Grant Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Maryland without regard to the provisions thereof governing conflict of laws.
18. Grantee Acknowledgment. The Grantee hereby acknowledges receipt of a copy of the Plan and that the Option is subject to the terms of the Plan. The Participant hereby acknowledges that all decisions, determinations and interpretations of the Committee in respect of the Plan, this Option Grant Agreement and the Option shall be final and conclusive.
IN WITNESS WHEREOF, the Company has caused this Option Grant Agreement to be duly executed by its duly authorized officer and said Participant has hereunto signed this Option Grant Agreement on his own behalf, thereby representing that he has carefully read and understands this Option Grant Agreement and the Plan as of the day and year first written above.
UNDER ARMOUR, INC. |
By: |
GRANTEE |
|
Attachment A
[Attachment A, the Under Armour, Inc. Amended and Restated 2005 Omnibus Long-Term Incentive Plan, was previously filed with the Companys Form 10-Q for the quarterly period ending March 31, 2009 as Exhibit 10.01]
Attachment B
[Attachment B, the Form of Employee Confidentiality, Non-Competition and Non-Solicitation Agreement by and between certain executives and the Company, has been separately filed with the Companys 2011 Form 10-K as Exhibit 10.14]
Exhibit 10.09
FORM OF RESTRICTED STOCK UNIT GRANT AGREEMENT
THIS AGREEMENT, made as of this day of , , (the Agreement) between UNDER ARMOUR, INC. (the Company) and (the Grantee).
WHEREAS, the Company has adopted the Amended and Restated 2005 Omnibus Long-Term Incentive Plan (the Plan), attached hereto as Attachment A or otherwise delivered or made available to Grantee, to promote the interests of the Company and its stockholders by providing the Companys key employees and others with an appropriate incentive to encourage them to continue in the employ of the Company and to improve the growth and profitability of the Company; and
WHEREAS, the Plan provides for the Grant to Grantees in the Plan of restricted share units for shares of Stock of the Company;
NOW, THEREFORE, in consideration of the premises and the mutual covenants hereinafter set forth, the parties hereto hereby agree as follows:
1. Investment. The Grantee represents that the Restricted Stock Units (as defined herein) are being acquired for investment and not with a view toward the distribution thereof.
2. Grant of Restricted Stock Units. Pursuant to, and subject to, the terms and conditions set forth herein and in the Plan, the Company hereby grants to the Grantee an Award of Restricted Share Units for shares of Stock of the Company (collectively, the Restricted Stock Units). The Purchase Price for the Restricted Stock Units shall be paid by the Grantees services to the Company.
3. Grant Date. The Grant Date of the Restricted Stock Units hereby granted is , .
4. Incorporation of the Plan. All terms, conditions and restrictions of the Plan are incorporated herein and made part hereof as if stated herein. If there is any conflict between the terms and conditions of the Plan and this Agreement, the terms and conditions of this Agreement, as interpreted by the Board, or a Committee thereof, shall govern. Unless otherwise indicated herein, all capitalized terms used herein shall have the meanings given to such terms in the Plan.
5. Vesting and Delivery Date. The Restricted Stock Units shall vest in four equal annual installments on each beginning , ; provided that the Grantee remains continuously employed by the Company through each such applicable vesting date. Notwithstanding the foregoing, (i) in the event that the Grantees employment is terminated on account of the Grantees death or Disability at any time, all unvested Restricted Stock Units not previously forfeited shall immediately vest on such date of termination and (ii) in the event of a Change in Control, all unvested Restricted Stock Units not previously forfeited shall vest on such Change in Control. On the first business day after each vesting date, the Company shall deliver to Grantee the shares of stock to which the Restricted Stock Units relate, provided, however, that if the shares of stock would otherwise vest during a period in which Grantee is (i) subject to a lock-up agreement restricting Grantees ability to sell the shares in the open market or (ii) restricted from selling the shares in the open market because Grantee is not then eligible to sell under the Companys insider trading or similar plan as then in effect (whether because a trading window is not open or Grantee is otherwise restricted from trading), delivery of the shares will be delayed until the first date on which Grantee is no longer prohibited from selling the shares due to a lock-up agreement or insider trading or similar plan restriction.
6. Forfeiture. Subject to the provisions of the Plan and Section 5 of this Agreement, with respect to the Restricted Stock Units which have not become vested on the date the Grantees employment is terminated, the Award of Restricted Stock Units shall expire and such unvested Restricted Stock Units shall immediately be forfeited on such date.
7. Employment Confidentiality Agreement. As a condition to the grant of the Restricted Stock Units, Grantee shall have executed and become a party to the Employee Confidentiality, Non-Competition and Non-Solicitation Agreement by and between Grantee and the Company (the Confidentiality, Non-Compete and Non-Solicitation Agreement) attached hereto as Attachment B.
8. No Shareholder Rights. Grantee does not have any rights of a shareholder with respect to the Restricted Stock Units. No dividend equivalents will be earned or paid with regard to the Restricted Stock Units.
9. Delays or Omissions. No delay or omission to exercise any right, power, or remedy accruing to any party hereto upon any breach or default of any party under this Agreement, shall impair any such right, power or remedy of such party nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or of any similar breach or default thereafter occurring nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of any party of any breach or default under this Agreement, or any waiver on the part of any party or any provisions or conditions of this Agreement, shall be in writing and shall be effective only to the extent specifically set forth in such writing.
10. Integration. This Agreement and the Plan contain the entire understanding of the parties with respect to its subject matter. There are no restrictions, agreements, promises, representations, warranties, covenants or undertakings with respect to the subject matter hereof other than those expressly set forth herein and in the Plan. This Agreement and the Plan supersede all prior agreements and understandings between the parties with respect to its subject matter.
11. Withholding Taxes. Grantee agrees, as a condition of this grant, that Grantee will make acceptable arrangements to pay any withholding or other taxes that may be due as a result of vesting in Restricted Stock Units or delivery of shares acquired under this grant. Grantee may elect to satisfy such obligations, in whole or in part, by causing the Company to withhold shares of Stock otherwise issuable to the Grantee as provided under the Plan. In the event that the Company determines that any federal, state, local, municipal or foreign tax or withholding payment is required relating to the vesting in Restricted Stock Units or delivery of shares arising from this grant, the Company shall have the right to require such payments from Grantee in the form and manner as provided in the Plan.
12. Data Privacy. In order to administer the Plan, the Company may process personal data about Grantee. Such data includes but is not limited to the information provided in this Agreement and any changes thereto, other appropriate personal and financial data about you such as home address and business address and other contact information, payroll information and any other information that might be deemed appropriate by the Company to facilitate the administration of the Plan. By accepting this grant, Grantee gives explicit consent to the Company to process any such personal data. Grantee also gives explicit consent to the Company to transfer any such personal data outside the country in which Grantee works or is employed, including, with respect to non-U.S. resident Grantees, to the United States, to transferees who shall include the Company and other persons who are designated by the Company to administer the Plan.
13. Electronic Delivery. The Company may choose to deliver certain statutory materials relating to the Plan in electronic form. By accepting this grant Grantee agrees that the Company may deliver the Plan prospectus and the Companys annual report to Grantee in an electronic format. If at any time Grantee would prefer to receive paper copies of these documents, as Grantee is entitled to receive, the Company would be pleased to provide copies. Grantee should contact to request paper copies of these documents.
14. Counterparts; Electronic Signature. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. This Agreement may be signed by the Company through application of an authorized officers signature, and may be signed by Grantee through an electronic signature.
15. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Maryland, without regard to the provisions governing conflict of laws.
16. Grantee Acknowledgment. The Grantee hereby acknowledges receipt of a copy of the Plan. The Grantee hereby acknowledges that all decisions, determinations and interpretations of the Board, or a Committee thereof, in respect of the Plan, this Agreement and this Award of Restricted Stock Units shall be final and conclusive.
The Company has caused this Agreement to be duly executed by its duly authorized officer and said Grantee has hereunto signed this Agreement on the Grantees own behalf, thereby representing that the Grantee has carefully read and understands this Agreement and the Plan as of the day and year first written above.
UNDER ARMOUR, INC. |
By: |
GRANTEE |
|
Attachment A
[Attachment A, the Under Armour, Inc. Amended and Restated 2005 Omnibus Long-Term Incentive Plan, was previously filed with the Companys Form 10-Q for the quarterly period ending March 31, 2009 as Exhibit 10.01]
Attachment B
[Attachment B, the Form of Employee Confidentiality, Non-Competition and Non-Solicitation Agreement by and between certain executives and the Company, has been separately filed with the Companys 2011 Form 10-K as Exhibit 10.14]
Exhibit 10.11
Under Armour, Inc.
Amendment to Stock Option Awards
Vesting Upon Death or Disability
Effective Date: August 3, 2011
The Option Grant Agreements for all outstanding Under Armour, Inc. stock options under the Amended and Restated 2005 Omnibus Long-Term Incentive Plan (the Stock Plan) have been amended effective August 3, 2011 to provide that all unvested stock options vest immediately upon the death or Disability (as defined under the Stock Plan) of the person to whom the stock option was awarded.
This amendment applies to all outstanding Option Grant Agreements under the Stock Plan, including Option Grant Agreements that provide for vesting over time or Performance Based Option Grant Agreements that provide for vesting following achievement of certain performance targets.
Please keep this amendment with the Option Grant Agreements. All other terms of the Option Grant Agreements remain unchanged.
Exhibit 10.12
RESTRICTED STOCK UNIT GRANT AGREEMENT
THIS AGREEMENT, made as of this day of , , (the Agreement) between UNDER ARMOUR, INC. (the Company) and (the Grantee).
WHEREAS, the Company has adopted the Amended and Restated 2005 Omnibus Long-Term Incentive Plan as amended by Amendment Number One (the Plan), attached hereto as Attachment A or otherwise delivered or made available to Grantee, to promote the interests of the Company and its stockholders by providing the Companys key employees and others with an appropriate incentive to encourage them to continue in the employ of the Company and to improve the growth and profitability of the Company; and
WHEREAS, the Plan provides for the Grant to Grantees in the Plan of restricted share units for shares of Stock of the Company;
NOW, THEREFORE, in consideration of the premises and the mutual covenants hereinafter set forth, the parties hereto hereby agree as follows:
1. Investment. The Grantee represents that the Restricted Stock Units (as defined herein) are being acquired for investment and not with a view toward the distribution thereof.
2. Grant of Restricted Stock Units. Pursuant to, and subject to, the terms and conditions set forth herein and in the Plan, and further subject to the approval by the Companys stockholders of Amendment Number One to the Plan, the Company hereby grants to the Grantee an award of Restricted Stock Units for shares of Stock of the Company (collectively, the Restricted Stock Units). The Purchase Price for the Restricted Stock Units shall be paid by the Grantees services to the Company.
3. Grant Date. The Grant Date of the Restricted Stock Units hereby granted is , .
4. Incorporation of the Plan. All terms, conditions and restrictions of the Plan are incorporated herein and made part hereof as if stated herein. If there is any conflict between the terms and conditions of the Plan and this Agreement, the terms and conditions of this Agreement, as interpreted by the Board, or a Committee thereof, shall govern. Unless otherwise indicated herein, all capitalized terms used herein shall have the meanings given to such terms in the Plan.
5. Vesting and Delivery Date. The Restricted Stock Units shall vest as follows provided the Grantee remains employed by the Company on each such date:
(a) (a) Forty percent (40%) of the Restricted Stock Units (rounded down to the nearest whole share) shall vest if the combined Operating Income for the Company for 2013 and 2014 is equal to or greater than $ million but less than $ million, with 50% of such number of Restricted Stock Units vesting on February 15, 2015 and 50% of such number of Restricted Stock Units vesting on February 15, 2016; OR
(b) Eighty percent (80%) of the Restricted Stock Units (rounded down to the nearest whole share) shall vest if the combined Operating Income for the Company for 2013 and 2014 is equal to or greater than $ million but less than $ million, with 50% of such number of Restricted Stock Units vesting on February 15, 2015 and 50% of such number of Restricted Stock Units vesting on February 15, 2016; OR
(c) All of the Restricted Stock Units shall vest if the combined Operating Income for the Company for 2013 and 2014 is equal to or greater than $ million, with 50% of such number of Restricted Stock Units vesting on February 15, 2015 and 50% of such number of Restricted Stock Units vesting on February 15, 2016.
As used in this Section 5, the term Operating Income shall mean the Companys income from operations as reported in the Companys audited financial statements prepared in accordance with generally accepted accounting principles excluding the impact of any generally accepted accounting principle changes implemented after the date hereof.
Notwithstanding the foregoing, (i) in the event that the Grantees employment is terminated on account of the Grantees death or Disability at any time, all unvested Restricted Stock Units not previously forfeited shall immediately vest on such date of termination and (ii) in the event of a Change in Control, all unvested Restricted Stock Units not previously forfeited shall vest on such Change in Control. On the first business day after each vesting date, the Company shall deliver to Grantee the shares of stock to which the Restricted Stock Units relate, provided, however, that if the shares of stock would otherwise vest during a period in which Grantee is (i) subject to a lock-up agreement restricting Grantees ability to sell the shares in the open market or (ii) restricted from selling the shares in the open market because Grantee is not then eligible to sell under the Companys insider trading or similar plan as then in effect (whether because a trading window is not open or Grantee is otherwise restricted from trading), delivery of the shares will be delayed until the first date on which Grantee is no longer prohibited from selling the shares due to a lock-up agreement or insider trading or similar plan restriction.
6. Forfeiture. Subject to the provisions of the Plan and Section 5 of this Agreement, with respect to the Restricted Stock Units which have not become vested on the date the Grantees employment is terminated, the Award of Restricted Stock Units shall expire and such unvested Restricted Stock Units shall immediately be forfeited on such date.
7. Employment Confidentiality Agreement. As a condition to the grant of the Restricted Stock Units, Grantee shall have executed and become a party to the Employee Confidentiality, Non-Competition and Non-Solicitation Agreement by and between Grantee and the Company (the Confidentiality, Non-Compete and Non-Solicitation Agreement) attached hereto as Attachment B.
8. No Shareholder Rights. Grantee does not have any rights of a shareholder with respect to the Restricted Stock Units. No dividend equivalents will be earned or paid with regard to the Restricted Stock Units.
9. Delays or Omissions. No delay or omission to exercise any right, power, or remedy accruing to any party hereto upon any breach or default of any party under this Agreement, shall impair any such right, power or remedy of such party nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or of any similar breach or default thereafter occurring nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of any party of any breach or default under this Agreement, or any waiver on the part of any party or any provisions or conditions of this Agreement, shall be in writing and shall be effective only to the extent specifically set forth in such writing.
10. Integration. This Agreement and the Plan contain the entire understanding of the parties with respect to its subject matter. There are no restrictions, agreements, promises, representations, warranties, covenants or undertakings with respect to the subject matter hereof other than those expressly set forth herein and in the Plan. This Agreement and the Plan supersede all prior agreements and understandings between the parties with respect to its subject matter.
11. Withholding Taxes. Grantee agrees, as a condition of this grant, that Grantee will make acceptable arrangements to pay any withholding or other taxes that may be due as a result of vesting in Restricted Stock Units or delivery of shares acquired under this grant. Grantee may elect to satisfy such obligations, in whole or in part, by causing the Company to withhold shares of Stock otherwise issuable to the Grantee as provided under the Plan In the event that the Company determines that any federal, state, local, municipal or foreign tax or withholding payment is required relating to the vesting in Restricted Stock Units or delivery of shares arising from this grant, the Company shall have the right to require such payments from Grantee in the form and manner as provided in the Plan.
12. Data Privacy. In order to administer the Plan, the Company may process personal data about Grantee. Such data includes but is not limited to the information provided in this Agreement and any changes thereto, other appropriate personal and financial data about you such as home address and business address and other contact information, payroll information and any other information that might be deemed appropriate by the Company to facilitate the administration of the Plan. By accepting this grant, Grantee gives explicit consent to the Company to process any such personal data. Grantee also gives explicit consent to the Company to transfer any such personal data outside the country in which Grantee works or is employed, including, with respect to non-U.S. resident Grantees, to the United States, to transferees who shall include the Company and other persons who are designated by the Company to administer the Plan.
13. Electronic Delivery. The Company may choose to deliver certain statutory materials relating to the Plan in electronic form. By accepting this grant Grantee agrees that the Company may deliver the Plan prospectus and the Companys annual report to Grantee in an electronic format. If at any time Grantee would prefer to receive paper copies of these documents, as Grantee is entitled to receive, the Company would be pleased to provide copies. Grantee should contact to request paper copies of these documents.
14. Counterparts; Electronic Signature. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. This Agreement may be signed by the Company through application of an authorized officers signature, and may be signed by Grantee through an electronic signature.
15. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Maryland, without regard to the provisions governing conflict of laws.
16. Grantee Acknowledgment. The Grantee hereby acknowledges receipt of a copy of the Plan. The Grantee hereby acknowledges that all decisions, determinations and interpretations of the Board, or a Committee thereof, in respect of the Plan, this Agreement and this Award of Restricted Stock Units shall be final and conclusive.
The Company has caused this Agreement to be duly executed by its duly authorized officer and said Grantee has hereunto signed this Agreement on the Grantees own behalf, thereby representing that the Grantee has carefully read and understands this Agreement and the Plan as of the day and year first written above.
UNDER ARMOUR, INC. | ||
By: |
| |
GRANTEE | ||
|
Attachment A
[Part of Attachment A, the Under Armour, Inc. Amended and Restated 2005 Omnibus Long-Term Incentive Plan, was previously filed with the Companys Form 10-Q for the quarterly period ending March 31, 2009 as Exhibit 10.01]
Amendment One to the Under Armour, Inc.
Amended and Restated 2005 Omnibus Long-Term Incentive Plan
WHEREAS, Under Armour Inc. (the Company) has established the Under Armour, Inc. Amended and Restated 2005 Omnibus Long-Term Incentive Plan Inc., effective November 18, 2005 (the Plan);
WHEREAS, the Companys Board of Directors (the Board) has the authority under Section 5.2 of the Plan to amend the Plan; and
WHEREAS, the Board desires to amend the Plan to include certain provisions required for performance awards to constitute performance-based compensation under Section 162(m) of the Internal Revenue Code of 1986, as amended.
NOW, THEREFORE, pursuant to the power of amendment set forth in the Plan, the Plan is hereby amended as follows effective as of the date hereof:
1. By adding the following new Section 17:
17. TERMS AND CONDITIONS OF PERFORMANCE AWARDS
17.1. Performance Awards.
Performance Award means an Award made subject to the attainment of performance goals (as described in Section 17.3) over a performance period established by the Committee in its discretion.
17.2. Performance Conditions.
The right of a Grantee to exercise or receive a grant or settlement of any Award, and the timing thereof, may be subject to such performance conditions as may be specified by the Committee. The Committee may use such business criteria and other measures of performance as it may deem appropriate in establishing any performance conditions, and may exercise its discretion to adjust the amounts payable under any Award subject to performance conditions, except as limited under Sections 17.3 hereof in the case of a Performance Award intended to qualify under Code Section 162(m).
17.3. Performance Awards Qualifying as Performance-Based Compensation.
If and to the extent that the Committee determines that an Award to be granted to a Grantee should qualify as performance-based compensation for purposes of Code Section 162(m), the grant, exercise and/or settlement of such Performance Award shall be contingent upon achievement of pre-established, objective performance goals and other terms set forth in this Section 17.3.
17.3.1. Performance Goals Generally.
The performance goals for such Performance Awards shall consist of one or more business criteria and a targeted level or levels of performance with respect to each of such criteria, as specified by the Committee consistent with this Section 17.3. Performance goals shall be objective and shall otherwise meet the requirements of Code Section 162(m) and regulations thereunder. A performance goal is objective if a third party having knowledge of the relevant facts could determine whether the goal is met. The Committee may determine that such Performance Awards shall be granted, exercised and/or settled upon achievement of any one performance goal or that two or more of the performance goals must be achieved as a condition to grant, exercise and/or settlement of such Performance Awards. Performance goals may differ for Performance Awards granted to any one Grantee or to different Grantees.
17.3.2. Business Criteria.
One or more of the following business criteria for the Company, on a consolidated basis, and/or specified subsidiaries or business units of the Company (except with respect to the total stockholder return and earnings per share criteria), shall be used exclusively by the Committee in establishing performance goals for such Performance Awards: (1) total stockholder return; (2) such total stockholder return as compared to total return (on a comparable basis) of a publicly available index such as, but not limited to, a Standard & Poors stock index; (3) net revenues; (4) net income; (5) earnings per share; (6) income from operations; (7) operating margin; (8) gross profit; (9) gross margin; (10) pretax earnings; (11) earnings before interest expense, taxes, depreciation and amortization; (12) return on equity; (13) return on capital; (14) return on investment; (15) return on assets; (16) working capital; (17) free cash flow; and (18) ratio of debt to stockholders equity.
17.3.3. Timing for Establishing Performance Goals.
Performance goals shall be established in writing by the Committee not later than 90 days after the beginning of any performance period applicable to such Performance Awards, provided that the outcome is substantially uncertain at the time the Committee actually establishes the goal and provided that it is established at or before 25 percent of the performance period has elapsed, or at such other date as may be required or permitted for performance-based compensation under Code Section 162(m).
17.3.4. Settlement of Performance Awards; Other Terms.
Settlement of such Performance Awards shall be in cash, Stock, other Awards or other property, in the discretion of the Committee. The Committee may, in its discretion, reduce (but not increase) the amount of a settlement otherwise to be made in connection with such Performance Awards. The Committee shall specify the circumstances in which such Performance Awards shall be paid or forfeited in the event of termination of Service by the Grantee prior to the end of a performance period or settlement of Performance Awards.
17.3.5. Committee Certification.
The Committee must certify in writing prior to payment of, or other event that results in the inclusion of income (for example, the vesting of Restricted Stock) from, the related compensation that the performance goals and any other material terms were in fact satisfied. Approved minutes of the Committee meeting in which the certification is made shall be treated as a written certification.
17.3.6. Annual Share Limits.
Section 4 sets forth the maximum number of shares of Stock with respect to which Options or Stock Appreciation Rights may be granted pursuant to the Plan in any calendar year to any one Service Provider. Subject to adjustment as provided in Section 15 hereof, the maximum number of shares of Stock that may be granted to any one Service Provider under a Performance Award, other than an Option or Stock Appreciation Right, in any calendar year shall be 500,000.
17.4. Written Determinations.
All determinations by the Committee as to the establishment of performance goals, the amount of any Performance Award pool or potential individual Performance Awards, and the achievement of performance goals relating to Performance Awards shall be made in writing in the case of any Award intended to qualify under Code Section 162(m). To the extent permitted by Code Section 162(m), the Committee may delegate any responsibility relating to such Performance Awards.
17.5. Status of Section 17.3 Awards Under Code Section 162(m).
It is the intent of the Company that Performance Awards under Section 17.3 hereof shall constitute qualified performance-based compensation within the meaning of Code Section 162(m) and regulations thereunder. Accordingly, the terms of Section 17.3 and other terms used therein, shall be interpreted in a manner consistent with Code Section 162(m) and regulations thereunder. If any provision of the Plan or any agreement relating to such Performance Awards does not comply or is inconsistent with the requirements of Code Section 162(m) or regulations thereunder, such provision shall be construed or deemed amended to the extent necessary to conform to such
requirements. In addition, in the event that changes are made to Code Section 162(m) to permit greater flexibility with respect to any Performance Awards, the Committee may make any adjustments to the process described in Section 17.3 it deems appropriate.
2. Except as hereinabove amended and modified, the Plan shall remain in full force and effect.
Attachment B
[Attachment B, the Employee Confidentiality, Non-Competition and Non-Solicitation Agreement by and between certain executives and the Company, has been separately filed; see Exhibit 10.14 of the Companys 2011 Form 10-K and Exhibit 10.03 of the Companys Form 10-Q for the quarterly period ended March 31, 2011.]
Exhibit 10.14
EMPLOYEE CONFIDENTIALITY, NON-COMPETITION, AND
NON-SOLICITATION AGREEMENT
This Confidentiality, Non-Competition, and Non-Solicitation Agreement (Agreement) is entered into this day of , , by Under Armour, Inc. (together with its affiliates, the Company) and (Employee).
EXPLANATORY NOTE
The Employee recognizes that the Employee has had or will have access to confidential proprietary information during the course of his or her employment and that the Employees subsequent employment with a Competitor Business, as defined in Section 3, would inevitably result in the disclosure of that information and, thereby, create unfair competition and would likely cause substantial loss and harm to the Company. The Employee further acknowledges that employment with the Company is based on the Employees agreement to abide by the covenants contained herein.
NOW THEREFORE, in consideration of Employees employment with the Company and for other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties agree as follows:
1. Confidentiality. Employee acknowledges Employees fiduciary duty and duty of loyalty to the Company. Further, Employee acknowledges that the Company, in reliance on this Agreement, will provide Employee access to trade secrets, customers, proprietary data and other confidential information. Employee agrees to retain said information as confidential and not to use said information for the Employees personal benefit or to disclose same to any third party, except when required to do so to properly perform duties to the Company. Further, as a condition of employment, during the time Employee is employed by the Company and continuing after any termination of the Employees employment with the Company, Employee agrees to protect and hold in a fiduciary capacity for the benefit of the Company all Confidential Information, as defined below, unless the Employee is required to disclose Confidential Information pursuant to the terms of a valid and effective order issued by a court of competent jurisdiction or a governmental authority. The Employee shall use Confidential Information solely for the purpose of carrying out those duties assigned Employee as an employee of the Company and not for any other purpose. The disclosure of Confidential Information to the Employee shall not be construed as granting to the Employee any license under any copyright, trade secret, or any right of ownership or right to use the Confidential Information whatsoever. In the event that Employee is compelled, pursuant to a subpoena or order of a court or other body having jurisdiction over such matter, to produce any Confidential Information or other information relevant to the Company, Employee agrees to promptly provide the Company with written notice of such subpoena or order so that the Company may timely move to quash if appropriate.
1
(a) For the purposes of this Agreement, Confidential Information shall mean all information related to the Companys business that is not generally known to the public. Confidential Information shall include, but shall not be limited to: any financial (whether historical, projections or forecasts), pricing, cost, business, planning, operations, services, potential services, products, potential products, technical information, intellectual property, trade secrets and/or know-how, formulas, production, purchasing, marketing, sales, personnel, customer, supplier, or other information of the Company; any papers, data, records, processes, methods, techniques, systems, models, samples, devices, equipment, compilations, invoices, customer lists, or documents of the Company; any confidential information or trade secrets of any third party provided to the Company in confidence or subject to other use or disclosure restrictions or limitations; this Agreement and its terms; and any other information, written, oral or electronic, whether existing now or at some time in the future, whether pertaining to current or future developments or prospects, and whether accessed prior to the Employees tenure with the Company or to be accessed during Employees future employment or association with the Company, which pertains to the Companys affairs or interests or with whom or how the Company does business. The Company acknowledges and agrees that Confidential Information shall not include information which is or becomes publicly available other than as a result of a disclosure by the Employee.
(b) The Employee shall promptly notify the Company if he or she has reason to believe that the unauthorized use, possession, or disclosure of any Confidential Information has occurred or may occur.
(c) All physical items containing Confidential Information, including, but not limited to, the business plan, know-how, collection methods and procedures, advertising techniques, marketing plans and methods, sales techniques, documentation, contracts, reports, letters, notes, any computer media, customer lists and all other information and materials of the Companys business and operations, shall remain the exclusive and confidential property of the Company and shall be returned, along with any copies or notes that the Employee made thereof or therefrom, to the Company when the Employee ceases employment with the Company. The Employee further agrees to return copies of any Confidential Information contained on Employees home computer, portable computer or other similar device. Employee also agrees to allow the Company, upon reasonable notice and for just cause, access to any home computer, portable computer or other similar device maintained by Employee, including but not limited to, for the purpose of determining whether said Confidential Information has been misappropriated. The Employee further agrees to promptly return all other property belonging to the Company upon the termination of Employees employment.
2. Ownership of Works for Hire.
(a) The Employee agrees that any inventions, ideas, developments, methods, improvements, discoveries, innovations, software, works of authorship and any other intangible property (hereinafter collectively referred to as Intellectual Property), whether patentable or not, which are
2
developed, partially developed, considered, contemplated or reduced to practice by the Employee or under his or her direction or jointly with others during his or her employment with the Company, whether or not during normal working hours or on the premises of the Company, shall be considered Works for Hire for the exclusive use and benefit of the Company. The Employee will make full and prompt disclosure to the Company of all such Works for Hire. The Company shall own all rights to any Works for Hire, including all copyrights and the right to market (or not to market) any such property, and the Employee agrees to assign and does hereby assign to the Company (or any person or entity designated by the Company) all his or her right, title and interest in and to all Works for Hire and all related patents, patent applications, copyrights and copyright applications.
(b) The Employee agrees to cooperate fully with the Company, both during and after his or her employment with the Company, with respect to the procurement, maintenance and enforcement of copyrights and patents (both in the United States and foreign countries) relating to Works for Hire. The Employee shall sign all papers, including, without limitation, copyright applications, patent applications, declarations, oaths, formal assignments, assignment of priority rights, and powers of attorney, which the Company may deem necessary or desirable in order to protect its rights and interests in any Works for Hire.
(c) The Employee specifically acknowledges that his or her compensation and benefits constitute full payment for any Works for Hire and waives any claim of right to the Company.
(d) The Company may, at its election and discretion, waive and/or relinquish any of its rights of ownership and royalties with respect to any Works for Hire, by agreeing to do so in a written instrument executed by the Company.
3. Non-Competition. Except as otherwise provided in this Agreement, without the prior written consent of the Company, the Employee hereby covenants and agrees that at no time during the Employees employment with Company and for a period of one (1) year immediately following termination of Employees employment with the Company, whether voluntary or involuntary, shall the Employee:
(a) directly or indirectly work for or engage in any capacity in any activities or provide strategic advice to Competitor Businesses. Competitor Businesses shall be defined as any business that competes with the Company in the apparel, footwear, sports equipment, and/or accessories business (for example, and not by way of limitation, companies such as Reebok, Nike, Adidas or Puma or other athletic brands or athletic retailers) or competes with any other line of business that the Company is involved in during Employees employment with the Company.
(b) act in any way, directly or indirectly, with the purpose or effect of soliciting, diverting or taking away any business, customer, client or any supplier of the Company; or
3
(c) otherwise compete with Company in the sale or licensing, directly or indirectly, as principal, agent or otherwise, of any products competitive with the products, or services competitive with the services, developed or marketed by Company.
(d) Written request for consent to be released from the Non-Competition provisions of this Agreement may be submitted by the Employee to the Company following the termination of Employees employment and must include all available information described in Section 5 below. The Company will respond to the request for such consent within two (2) weeks of the request, except as provided in Section 5. In the Companys sole discretion, it may release Employee from the Non-Competition provisions of this Agreement, or reduce the non-competition period from a period of one (1) year immediately following Employees termination to a shorter duration (Non-Competition Period). In the event the Company does not release the Employee from the Non-Competition provision, for the duration of the Non-Competition Period, the Company will pay Employee an amount equal to sixty percent (60%) of Employees base salary as of the date of the termination of Employees employment (Non-Competition Payment), in accordance with the Companys customary pay practices in effect at the time each payment is made. The Non-Competition Payment shall be reduced by (a) the amount of any severance Employee receives from the Company; and (b) the amount of any salary received during the Non-Competition Period from employment in any capacity with an entity that is not a Competitor Business to the extent that any such salary exceeds forty percent (40%) of Employees base salary as of the date of Employees termination from employment with the Company (annualized or pro-rated to correspond to the Non-Competition Period). By way of example, assuming that the Non-Competition Period is six (6) months and that Employees base salary as of the termination date is $100,000, the Non-Competition Payment would not be reduced pursuant to subsection (b) herein so long as any salary received during the Non-Competition Period by Employee from an entity that is not a Competitor Business remained under $20,000.
4. Non-Solicitation and Non-Interference. The Employee hereby covenants and agrees that at no time during the Employees employment with Company and for a period of one (1) year immediately following termination of Employees employment with the Company, whether voluntary or involuntary, shall the Employee:
(a) solicit (other than on behalf of the Company) business or contracts for any products or services of the type provided, developed or under development by the Company during the Employees employment by the Company, from or with any person or entity which was a customer of the Company for such products or services, or any prospective customer which the Company had solicited as of, or within one (1) year prior to, the Employees termination of employment with the Company; or directly or indirectly contract with any such customer or prospective customer for any product or service of the type provided, developed or which was under development by the Company during the Employees employment with the Company; or
4
(b) knowingly interfere or attempt to interfere with any transaction, agreement or business relationship in which the Company was involved during the Employees employment with the Company, nor will the Employee act in any way with the purpose or effect of hiring anyone who has been an employee of the Company, its divisions or subsidiaries; or soliciting, recruiting or encouraging, directly or indirectly, any of the Companys employees to leave the employ of the Company, its divisions or its subsidiaries.
5. Notification of New Employment. Employee acknowledges and agrees that for a period of one (1) year following the date of termination of Employees employment with the Company, Employee will inform the Company, prior to the acceptance of any job or any work as an independent contractor, of the identity of any new employer or other entity to which Employee is providing consulting or other services, along with Employees starting date, title, job description, salary, and any other information which the Company may reasonably request to confirm Employees compliance with the terms of this Agreement. If Employee does not provide all information reasonably requested by the Company as provided in this Section, the Companys time to respond to a request for release from the Non-Competition provision under Section 3 will be extended to six (6) weeks, or until such time as the information is provided for the Company to make an informed decision.
6. Reasonableness of Restrictions. Employee acknowledges and agrees that the restrictions imposed by this Agreement are fair and reasonably required for the protection of the Company, and will not preclude Employee from becoming gainfully employed following the termination, for any reason, of employment with the Company. The Employee acknowledges that Employee will provide unique services to the Company and that this covenant has unique, substantial, and immeasurable value to the Company. In the event that the provisions of this Agreement should ever be deemed to exceed the limitations permitted by applicable laws, Employee and the Company agree that such provisions shall be reformed to the maximum limitations permitted by the applicable laws. The Employee further acknowledges that the decision whether to consent to release Employee from the provisions of this Agreement is within the sole discretion of the Company.
7. Injunctive Relief. Employee acknowledges and agrees that in the event of a violation or threatened violation of any provision of this Agreement, the Company will sustain irreparable harm and will have the full right to seek injunctive relief, in addition to any other legal remedies available, without the requirement of posting bond.
5
8. Survivability. This Agreement shall remain binding in the event of the termination, for any reason, of employment with the Company.
9. Governing Law. The formation, construction and interpretation of this Agreement shall at all times and in all respects be governed by the laws of the State of Maryland.
10. Severable Provisions. The provisions of this Agreement are severable, and if any court determines that any provision of this Agreement is invalid or unenforceable, in whole or in part, any invalidity or unenforceability shall affect only that provision, and shall not make any other provision of this Agreement invalid or unenforceable; and this Agreement shall be narrowed by the court to the extent required to be valid and enforceable.
11. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter contained herein, and may not be modified except in a written document signed by each of the parties hereto. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any other breach of that or any other provision hereof.
IN WITNESS WHEREOF, the parties have executed the Agreement as of the date first above written.
UNDER ARMOUR, INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
WITNESS: |
EMPLOYEE | |||
|
| |||
(signature) | ||||
Print Name: |
6
Exhibit 10.15
Confidential
AGREEMENT AND MUTUAL GENERAL RELEASE
This confidential Agreement and Mutual General Release (Agreement) is entered into by and between Under Armour, Inc. (the Company) and Mark Dowley (Executive), each a Party and collectively the Parties, to resolve any and all disputes concerning Executives services for and relationship with the Company both presently as an employee and previously as an independent consultant, and Executives separation from employment on close of business on May 1, 2011 (Separation Date). The Effective Date of this Agreement is the eighth day after Executive signs it, on the condition that Executive does not revoke it, as described below. Accordingly, in exchange for the consideration and mutual promises set forth herein, the parties do hereby agree as follows:
1. Separation Date and Consideration. The Company and Executive hereby agree that Executives employment will end on the Separation Date. The Parties agree that they shall, for the purposes of this Agreement, treat the Separation Date as the date on which Executive voluntarily resigned Executives employment with the Company. On the Separation Date (and not prior to that date) the Parties agree to sign the Mutual General Release Agreement attached as Attachment A. The parties acknowledge that the Mutual General Release Agreement provides the Parties with a release for any claims or actions that may arise between the Effective Date of this Agreement and the Executives Separation Date. On the eighth day after Executive executes the Mutual General Release Agreement attached as Attachment A, provided that Executive does not revoke this Agreement under paragraph 5(e) and does not revoke the General Release Agreement attached as Attachment A, and in consideration of Executives release of any and all claims Executive might have against the Company, including employment-related claims under his unsigned letter of January 3, 2011 captioned as Offer of Employment with Under Armour, Inc. (Offer Letter) and unsigned Employee Confidentiality, Non-Competition, and Non-Solicitation Agreement (Confidentiality Agreement), the Company agrees to (a) pay Executive a lump sum of $250,000 within fifteen (15) days of the Separation Date (Settlement Fee); and (b) enter into and perform the attached Marketing Services Consulting Agreement which is incorporated into this Agreement as set forth in Attachment B.
2. Additional Payments or Benefits. The Parties acknowledge and agree that Executive will receive no additional payments or benefits other than as set forth herein or as required by law, but Executive will receive, in addition to paragraph 1, the following:
a) Executive shall be reimbursed for all reasonable business expenses that are consistent with Company policy, supported by proper written documentation and incurred by Executive on behalf of or in connection with his services to the Company from December 2010 to the present provided that Executive submits such reimbursement request and supporting documentation to the Company no later than the Separation Date. The Company shall pay such reimbursements within ten (10) days of receipt, and shall provide an accounting of all reimbursement requests submitted and whether and when paid.
b) Executive shall retain all rights to indemnity for any acts undertaken on behalf of the Company, which rights shall be unaffected in any way by this Agreement.
c) Executives legal expenses for Fenwick & West, LLP through the last invoice submitted to the Company covering services through February, 2011, shall be paid in full.
3. Release. In exchange for the promises herein which each Party acknowledges as good and valuable consideration, and except as provided in paragraphs 2 and 4 and except with respect to the obligations under this Agreement, including Executives obligations with respect to confidentiality as set forth in Section 12, each Party releases and discharges the other Party, and its past, present and future parents, divisions, subsidiaries, and affiliates, predecessors, successors and assigns, and their past, present, and future officers, directors, members, partners, attorneys, employees, independent contractors, agents, clients, employers, attorneys and representatives (Released Parties) from any and all actions, causes of action, debts, dues, claims and demands of every name and nature, without limitation, at law, in equity, or administrative, against the Released Parties which each Party may have had, now has, or may have, by reason of any matter or services provided to the Company in any capacity from the beginning of time up to the Effective Date of this Agreement, including matters concerning Executives Offer Letter, Confidentiality Agreement, employment and the ending of his employment on the Separation Date Those claims and causes of action from which Executive releases the Released Parties include, but are not limited to, any known or unknown claim or action sounding in tort, contract, and discrimination of any kind, and/or any cause of action arising under federal, state or local statute or ordinance, including, but not limited to, Title VII of the Civil Rights Act of 1964, as amended, the Age Discrimination in Employment Act (including the Older Worker Benefit Protection Act), as amended, the Americans With Disabilities Act, as amended, the Family and Medical Leave Act, as amended, The Employee Retirement Income Security Act, as amended, the Equal Pay Act, as amended, Section 1981 of the Civil Rights Act of 1866, as amended, the Sarbanes-Oxley Act of 2002, as amended, the Worker Adjustment and Retraining Notification Act, as amended, Article 49B of the Maryland Code, as amended, and any other employee-protective law of any jurisdiction that may apply, and/or any claim for attorneys fees or costs, whether presently accrued, accruing to, or to accrue to Executive on account of, arising out of, or in any way connected with any acts or activities by Executive or the Released Parties arising up to the Effective Date of this Agreement. Each party expressly acknowledges that no claim or cause of action against the Released Parties from the beginning of time to the Effective Date of this Agreement (other than as provided in paragraphs 2 and 4) shall be deemed to be outside the scope of this Agreement whether mentioned herein or not.
4. Rights and Claims Preserved. Nothing in this Agreement prevents Executive from filing a charge with the United States Equal Employment Opportunity Commission (EEOC) or from cooperating with the EEOC; however, Executive understands and agrees that Executive shall not accept, and shall not be entitled to retain, any compensation or other relief recovered by the EEOC on Executives behalf as a result of such charge with respect to any matter covered by this Agreement. Nothing in this Agreement prevents Executive from filing a lawsuit challenging the validity of Executives waiver of federal age discrimination claims under the Age Discrimination in Employment Act and the Older Workers Benefit Protection Act.
5. OWBPA. The release in paragraph 3 of this Agreement includes a waiver of claims against the Released Parties under the Age Discrimination in Employment Act (ADEA) and the Older Workers Benefit Protection Act (OWBPA). Therefore, pursuant to the requirements of the ADEA and the OWBPA, Executive specifically acknowledges the following:
2
(a) that Executive is and has been advised to consult with an attorney of Executives choosing concerning the legal significance of this Agreement;
(b) that this Agreement is written in a manner Executive understands;
(c) that the consideration set forth in paragraph 1 of the Agreement is adequate and sufficient for Executive to enter into this Agreement and consists of benefits to which the Company contends Executive is not otherwise entitled;
(d) that Executive has been afforded twenty-one (21) days to consider this Agreement before signing it (although Executive may sign it at any time prior to those 21 days) and that any changes to this Agreement subsequently agreed upon by the parties, whether material or immaterial, do not restart this period for consideration; and
(e) that Executive has been advised that during the seven (7) day period after Executive signs the Agreement, Executive may revoke his acceptance of this Agreement by delivering written notice to Cynthia Raposo, VP, Legal, and that this Agreement shall not become effective or enforceable until after the revocation period has expired.
6. No Admission of Wrongdoing and Non-Disclosure. Neither the Company nor Executive admit any wrongdoing of any kind, and both agree that neither they nor anyone acting on their behalf will disclose this Agreement, or its terms and conditions, except that the parties may make disclosures required by legal process and may disclose this Agreement to their attorneys, accountants and/or financial advisors as necessary to prepare tax returns or other filings required by law.
7. Non-Disparagement. Executive agrees that he will not disparage any of the Company or its executive officers or board members or make or publish any communication that reflects adversely upon any of them. The Company agrees that its executive officers and board members shall not disparage Executive or make or publish any communication that reflects adversely upon Executive.
8. No Filing of Claims. Executive represents that Executive has not filed, and to the maximum extent permitted by law and except as provided in paragraph 4, agrees that Executive will not file, any charge, complaint, lawsuit or claim (collectively, Claim) with any administrative agency, federal, state or local court (collectively, Agency) related in any way to Executives relationship with the Company, either as an employee or through his prior consulting relationship, or the separation of Executives employment with the Company. Executive further agrees that he will not accept, and will not be entitled to retain, any judgment, award, settlement or other payment or other relief resulting from, or related to, any Claim filed with any Agency related in any way to Executives relationship with the Company, including the termination of Executives employment with the Company.
9. No Adverse Action. Except as provided in paragraphs 4 and 6, and/or unless required to do so by court order or subpoena or in a direct dispute between the Parties, each party agrees that he will not (i) voluntarily make statements, take action, or give testimony adverse or detrimental to the interests of the other Party; or (ii) aid or assist in any manner the efforts of any third party to sue or prosecute a claim against the other Party. Should Executive ever be required to give testimony concerning any matter related to Executives relationship with the Company, either as an employee or through his prior consulting relationship, Executive agrees that Executive will provide written notice of such compulsory process to Cynthia Raposo, VP, Legal,
3
within two (2) business days of its receipt so that the Company may take appropriate measures to quash or otherwise defend its interests and the Company agrees to pay the cost of counsel, if any, reasonably required to advise or represent Executive through December 31, 2011.
10. No-Reemployment. Executive agrees that he will not seek reemployment with the Company or any current or future parent, subsidiary, joint venture, successor, assignee or otherwise affiliated business or other entity of the Company, except at the request of the Company.
11. Return of Company Property. Executive agrees that, by the Separation Date Executive will return all property belonging to the Company, including, but not limited to, corporate credit cards; keys and access cards; documents; tapes; cell phones; computers, laptops, BlackBerry and other computer equipment and software; and any and all confidential and proprietary information. Executives access to the Companys property and facilities will end immediately upon the Separation Date. Executive will submit all requests for Company reimbursements as described in paragraph 2.
12. Non-Disclosure of Confidential Information. Executive acknowledges and agrees that, with respect to his employment by the Company, Executive remains bound by Executives continuing obligations to the Company with respect to confidentiality and other matters as set forth in the Employee Confidentiality Agreement with the Company dated February 1, 2011 (the Confidentiality Agreement), which is incorporated into this Agreement as set forth in Attachment C.
13. Cooperation with the Company after Separation. Executive agrees that after the Separation Date, the Executive shall provide such assistance to the Company as it may reasonably request upon reasonable advance notice in regard to business and transition matters, including any pending litigation or other legal matters in which Executive may be involved currently or in which Executive may be involved in the future as a result of or arising out of his employment with Company, including the review and execution of such truthful affidavits or written statements as may be prepared by Company. Company shall reimburse Executive for Executives reasonable out-of-pocket expenses, including attorneys fees, incurred in connection with any such assistance provided such expenses are approved by Company in writing before they are incurred.
14. Attorneys Fees and Jury Waiver. The prevailing party in any action seeking to enforce this Agreement, including Exhibit A hereto (except for a lawsuit covered by paragraph 4 of this Agreement), will have all its costs and attorneys fees paid by the party found to have breached. Executive and the Company hereby waive trial by jury as to any and all litigation arising out of and/or relating to this Agreement.
15. Certification of Understanding and Competence. Executive acknowledges and agrees that: (a) Executive has read this Agreement in its entirety; (b) Executive is competent to understand, and does understand, the content and effect of this Agreement; (c) by entering into this Agreement, Executive is releasing forever the Released Parties from any claim or liability (including claims for attorneys fees and costs) arising from Executives relationship with the Company; (d) Executive is entering into this Agreement of Executives own free will in exchange for the good consideration herein; and (e) neither the Company nor the Released
4
Parties have made any representations to Executive concerning the terms or effect of this Agreement, other than those contained in the Agreement.
16. No Other Understandings. This Agreement, consisting of four (4) pages and Attachments A and B constitutes the entire Agreement between the parties, and is binding upon and shall inure to the benefit of the parties and their respective heirs, executors, administrators, personal or legal representatives, successors and/or assigns. This Agreement may be amended only by a written agreement signed by the Company and Executive.
17. Headings. The headings in this Agreement are for convenience only and are not to be considered a construction of the provisions hereof.
5
18. Severability and Governing Law. If any provision of this Agreement is found to be invalid, unenforceable or void for any reason, such provision shall be severed from the Agreement and shall not affect the validity or enforceability of the remaining provisions. This Agreement shall be interpreted, enforced and governed by the laws of the State of Maryland.
Dated: | April 8, 2011 | /s/ Mark Dowley | ||||||
Mark Dowley | ||||||||
Executive | ||||||||
Dated: | April 8, 2011 | /s/ John P. Stanton | ||||||
John P. Stanton | ||||||||
VP, Corporate Governance & Compliance | ||||||||
Under Armour, Inc. |
6
ATTACHMENT A
THIS EXHIBIT MAY NOT BE SIGNED UNTIL
EXECUTIVES DATE OF SEPARATION
General Release Agreement
This General Release Agreement (Agreement) is entered into by and between Under Armour, Inc. (Company) and Mark Dowley (Executive), each a Party and collectively the Parties, to resolve any and all disputes concerning Executives services for and relationship with the Company both presently as an employee and previously as an independent consultant, and Executives separation from employment, as described herein. Accordingly, in exchange for the consideration and mutual promises set forth herein, the parties agree as follows:
1. The Parties acknowledge that Executives employment has ended. The Parties previously entered into a confidential Agreement and Mutual General Release (Prior Release Agreement) that provides for certain separation benefits to be made available to Executive after the date on which Executives employment with the Company ends, on the condition that Executive complies with Executives obligations under the Prior Release Agreement and enters into this Agreement and does not revoke it. The parties agree that the Effective Date of this Agreement is the eighth day after Executive signs it, on the condition that it is not revoked by Executive as described below.
2. In exchange for the release and other commitments made in this Agreement, the Company agrees to provide Executive with the consideration that is described in the Prior Release Agreement, subject to the terms and conditions of the Prior Release Agreement. Executive acknowledges and agrees that Executive will receive no additional payments or benefits other than as set forth in that agreement, or as required by law.
3. In exchange for the commitments and promises as described in the Prior Release Agreement, which each Party acknowledges as good and valuable consideration, and except as provided in paragraph 4 and except with respect to the obligations under this Agreement and the Prior Release Agreement, including Executives obligations with respect to confidentiality as set forth in Section 12 of the Prior Release Agreement, each Party releases and discharges the other Party, and its past, present and future parents, divisions, subsidiaries, and affiliates, predecessors, successors and assigns, and their past, present, and future officers, directors, members, partners, attorneys, employees, independent contractors, agents, clients, employers, attorneys and representatives (Released Parties) from any and all actions, causes of action, debts, dues, claims and demands of every name and nature, without limitation, at law, in equity, or administrative, against the Released Parties which each Party may have had, now has, or may have, by reason of any matter or services provided to the Company in any capacity from the beginning of time up to the Effective Date of this Agreement, including matters concerning Executives Offer Letter, Confidentiality Agreement, employment and the ending of his employment on the Separation Date Those claims and causes of action from which Executive releases the Released Parties include, but are not limited to, any known or unknown claim or action sounding in tort, contract, and discrimination of any kind, and/or any cause of action
7
arising under federal, state or local statute or ordinance, including, but not limited to, Title VII of the Civil Rights Act of 1964, as amended, the Age Discrimination in Employment Act (including the Older Worker Benefit Protection Act), as amended, the Americans With Disabilities Act, as amended, the Family and Medical Leave Act, as amended, The Executive Retirement Income Security Act, as amended, the Equal Pay Act, as amended, Section 1981 of the Civil Rights Act of 1866, as amended, the Sarbanes-Oxley Act of 2002, as amended, the Worker Adjustment and Retraining Notification Act, as amended, Article 49B of the Maryland Code, as amended, and any other employee-protective law of any jurisdiction that may apply, and/or any claim for attorneys fees or costs, whether presently accrued, accruing to, or to accrue to Executive on account of, arising out of, or in any way connected with any acts or activities by Executive or the Released Parties arising up to the Effective Date of this Agreement. Each Party expressly acknowledges that no claim or cause of action against the Released Parties from the beginning of time to the Effective Date of this Agreement (other than as provided in paragraphs 2 and 4) shall be deemed to be outside the scope of this Agreement whether mentioned herein or not.
4. Nothing in this Agreement prevents Executive from filing a charge with the United States Equal Employment Opportunity Commission (EEOC) or from cooperating with the EEOC; however, Executive understands and agrees that Executive shall not accept, and shall not be entitled to retain, any compensation or other relief recovered by the EEOC on Executives behalf as a result of such charge with respect to any matter covered by this Agreement. Nothing in this Agreement prevents Executive from filing a lawsuit challenging the validity of Executives waiver of federal age discrimination claims under the Age Discrimination in Employment Act and the Older Workers Benefit Protection Act.
5. The release in paragraph 3 of this Agreement includes a waiver of claims against the Released Parties under the Age Discrimination in Employment Act (ADEA) and the Older Workers Benefit Protection Act (OWBPA). Therefore, pursuant to the requirements of the ADEA and the OWBPA, Executive specifically acknowledges the following:
(a) that Executive is and has been advised to consult with an attorney of Executives choosing concerning the legal significance of this Agreement;
(b) that this Agreement is written in a manner Executive understands;
(c) that the consideration set forth in paragraph 1 of the Agreement is adequate and sufficient for Executive to enter into this Agreement and consists of benefits to which the Company contends Executive is not otherwise entitled;
(d) that Executive has been afforded twenty-one (21) days to consider this Agreement before signing it (although Executive may sign it at any time prior to those 21 days) and that any changes to this Agreement subsequently agreed upon by the parties, whether material or immaterial, do not restart this period for consideration; and
(e) that Executive has been advised that during the seven (7) day period after Executive signs the Agreement, Executive may revoke his acceptance of this Agreement by delivering written notice to Cynthia Raposo, VP, Legal, and that this Agreement shall not become effective or enforceable until after the revocation period has expired.
8
6. Neither the Company nor Executive admit any wrongdoing of any kind, and both agree that neither they nor anyone acting on their behalf will disclose this Agreement, or its terms and conditions, except that the parties may make disclosures required by legal process and may disclose this Agreement to their attorneys, accountants and/or financial advisors as necessary to prepare tax returns or other filings required by law.
7. Executive represents that Executive has not filed, and to the maximum extent permitted by law and except as provided in paragraph 4, agrees that Executive will not file, any charge, complaint, lawsuit or claim (collectively, Claim) with any administrative agency, federal, state or local court (collectively, Agency) related in any way to Executives relationship with the Company, either as an employee or through his prior consulting relationship, or the separation of Executives employment with the Company. Executive further agrees that he will not accept, and will not be entitled to retain, any judgment, award, settlement or other payment or other relief resulting from, or related to, any Claim filed with any Agency related in any way to Executives relationship with the Company, including the termination of Executives employment with the Company.
8. The prevailing party in any action seeking to enforce this Agreement (except for a lawsuit covered by paragraph 4 of this Agreement), will have all its costs and attorneys fees paid by the party found to have breached. Executive and the Company hereby waive trial by jury as to any and all litigation arising out of and/or relating to this Agreement.
9. Executive acknowledges and agrees that: (a) Executive has read this Agreement in its entirety; (b) Executive is competent to understand, and does understand, the content and effect of this Agreement; (c) by entering into this Agreement, Executive is releasing forever the Released Parties from any claim or liability (including claims for attorneys fees and costs) arising from Executives relationship with the Company; (d) Executive is entering into this Agreement of Executives own free will in exchange for the good consideration herein; and (e) neither the Company nor the Released Parties have made any representations to Executive concerning the terms or effect of this Agreement, other than those contained in the Agreement.
10. This Agreement constitutes the entire Agreement between the parties, and is binding upon and shall inure to the benefit of the parties and their respective heirs, executors, administrators, personal or legal representatives, successors and/or assigns. This Agreement may be amended only by a written agreement signed by the Company and Executive.
9
11. If any provision of this Agreement is found to be invalid, unenforceable or void for any reason, such provision shall be severed from the Agreement and shall not affect the validity or enforceability of the remaining provisions. This Agreement shall be interpreted, enforced and governed by the laws of the State of Maryland.
Dated: |
| |||
Mark Dowley | ||||
Executive | ||||
Dated: |
| |||
Cynthia Raposo | ||||
VP, Legal | ||||
Under Armour, Inc. |
10
Attachment B
MARKETING SERVICES CONSULTING AGREEMENT
THIS MARKETING SERVICES CONSULTING AGREEMENT (the Agreement) between Tecumseh Capital, LLC, located at 6 Cliffdale Road, Greenwich, Connecticut, (hereinafter Consultant), Mark Dowley (Dowley), and Under Armour, Inc., a Maryland corporation located at 1020 Hull Street, Baltimore, MD 21230 (Under Armour) is entered into effective as of May 1, 2011 and shall set forth the agreement of the parties to the following in connection with the Under Armour brand:
1. | ENGAGEMENT: Under Armour hereby engages Consultant for the marketing services as more specifically set forth in Paragraph 3 below. |
2. | TERM: The term of this Agreement shall commence as of May 1, 2011, and continue in full force and effect from that date until December 31, 2011 (the Term). |
3. | SCOPE OF SERVICES: Consultant shall provide the marketing services included in the Scope of Work set forth in Exhibit A hereto (Scope of Work). All services provided by Consultant shall be of high professional standards and all deliverables shall be subject to review and reasonable approval of Under Armour. |
4. | COMPENSATION: In consideration of the marketing services to be rendered by Consultant as set forth herein, Under Armour shall pay Consultant a monthly fee of Sixty-Two Thousand Five Hundred Dollars ($62,500) for the Term payable no later than the fifteenth day of the applicable monthly period. Any amounts due under this Agreement not timely made shall accrue interest at the rate of 1.5% per month or fraction thereof. |
5. | EXPENSES: In addition to the Consultant compensation, Under Armour shall pay Consultant the following: |
A. | Out of Pocket Expenses. All reasonable and necessary travel expenses incurred for Under Armours account that have been preapproved by Under Armour in writing in connection with Consultants rendition of services and performance of duties hereunder, including, but not limited to travel and lodging and business meals. As to such expenses, Consultant will be paid within 10 days of submission to Under Armour of proper receipts for such expenses. Any other expenses incurred by Consultant at Under Armours special request require Under Armours prior written approval. |
B. | Product Placement/Integration. Under Armour shall, at its option and its own expense, provide Consultant, Consultant clientele, prospective and confirmed UA strategic content creator partners with a reasonable amount of product to establish relationships that will lead to opportunities for product placement and brand integration. |
6. | USE OF INTELLECTUAL PROPERTY: Under Armour shall give Consultant the right to use Under Armour intellectual property in the performance of the services addressed in this Agreement. However, any such use of the Under Armour intellectual property, other than proper use of the Under Armour logo and name, shall be subject to the prior written approval of Under Armour. |
7. | NONCOMPETE: Consultant and Dowley hereby each covenants and agrees that at no time during the Term of this Agreement, without the prior written consent of Under Armour, whether voluntary or involuntary, shall the Consultant or Dowley: |
(a) directly or indirectly work for or engage in any capacity in any activities or provide strategic advice to Competitor Businesses. Competitor Businesses shall be defined as any business that competes with Under Armour in the athletic apparel, footwear and/or accessories business (for example, and not by way of limitation, companies such as Reebok, Nike, Adidas or Puma or other athletic brands or athletic retailers);
1
(b) act in any way, directly or indirectly, with the purpose or effect of soliciting, diverting or taking away any business, customer, client or any supplier of Under Armour; or
(c) otherwise compete with Under Armour in the sale or licensing, directly or indirectly, as principal, agent or otherwise, of any products competitive with the products, or services competitive with the services, developed or marketed by Under Armour in the area of athletic apparel, footwear and/or accessories.
Consultant and Dowley each acknowledges and agrees that the restrictions imposed by this Section 7 are fair and reasonably required for the protection of Under Armour. Consultant and Dowley each acknowledges that Consultant and Dowley will provide unique services to Under Armour and that this covenant has unique, substantial, and immeasurable value to Under Armour. In the event that the provisions of this Section 7 should ever be deemed to exceed the limitations permitted by applicable laws, Consultant, Dowley and Under Armour agree that such provisions shall be reformed to the maximum limitations permitted by the applicable laws. Consultant and Dowley each further acknowledges that the decision whether to consent to release Consultant and/or Dowley from the provisions of this Section 7 is within the sole discretion of Under Armour. Consultant and Dowley each acknowledges and agrees that in the event of a violation or threatened violation of any provision of this Section 7, Under Armour will sustain irreparable harm and will have the full right to seek injunctive relief, in addition to any other legal remedies available, without the requirement of posting bond.
8. | ASSIGNMENT: This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns; provided, however, that the duties of Consultant hereunder shall only be assignable or delegable by Consultant to an enterprise that retains the ability to provide all services through Dowley. |
9. | PUBLICITY APPROVALS; CONFIDENTIALITY: No party shall make any public statements about the terms and conditions of this Agreement, which shall be treated as Confidential Information (as defined below), or the relationship between the parties, without the prior written consent of the other parties. Any such statements must be coordinated with the in-house publicity staff of the other party. Each party (the Receiving Party) shall receive, have access to, create, and learn of documents, records, and information of a confidential and proprietary nature to the other party, and its customers, subsidiaries, and affiliated companies including, but not limited to material non-public information, trade secrets, customer lists, marketing and promotional plans, formulas, policies and procedures (the Confidential Information), all of which would not be available to the parties except for the relationship created by this Agreement. The parties acknowledge that the Confidential Information is not generally known to the trade, is of a confidential nature, is an asset of and to the party who discloses such information (the Disclosing Party), and to preserve the Disclosing Partys goodwill must be kept strictly confidential and used only in the performance of this Agreement. The Receiving Party shall keep the Confidential Information and any related data under this Agreement confidential. Confidential Information shall not include information which (a) has become publicly known to the Receiving Party independent and without breach of this Agreement or any other confidentiality obligation; (b) has been given to the Receiving Party by a third party with a legal right to so disclose; (c) was known to the Receiving Party at the time of disclosure as evidenced by its written records; or (d) was independently developed by Receiving Party without reference to or use of the Confidential Information. Upon termination of this Agreement for any reason, each party shall either return or destroy, at the Disclosing Partys option and cost, all Confidential Information received during the Term of this Agreement. |
10. | REPRESENTATIONS AND WARRANTIES: Each of Under Armour, Consultant and Dowley hereto warrants and represents that it is authorized to enter into this Agreement and that it has no contract or other commitment which would prevent it from entering into this Agreement. Under Armour further warrants and represents that any information provided to Consultant in furtherance of Consultants services hereunder shall be accurate and shall not infringe upon any confidentiality or non-disclosure agreement or any other right of any person, firm or corporation. Consultant further warrants and represents that the Work Product (as defined below) shall be accurate and shall not infringe upon any confidentiality or non-disclosure agreement or any other right of any person, firm, or corporation. |
2
11. | INTELLECTUAL PROPERTY: Consultant acknowledges and agrees that Under Armour owns all right, title, and interest in and to all work product (including deliverables) created by Consultant under this Agreement or incorporating the Confidential Information of Under Armour (the Work Product). Consultant hereby assigns and conveys to Under Armour the entire right, title, and interest in and to such Work Product including Work Product created by Consultant prior to the date of execution of this Agreement. Consultant shall cooperate with Under Armour and execute documents of assignment and any other documents, and take other necessary actions as reasonably directed by Under Armour to effect the foregoing. Notwithstanding the foregoing, if the Work Product includes any preexisting intellectual property owned by Consultant and identified as such to Under Armour, Consultant shall retain ownership of such Consultant intellectual property; however, Consultant grants Under Armour a royalty-free, non-exclusive, worldwide license to use such Consultant intellectual property solely to the extent necessary to exploit the Work Product. |
12. | RELATIONSHIPS OF THE PARTIES: The parties to this Agreement are independent contractors and this Agreement shall not be construed to create a partnership, joint venture, employment or principal agent relationship between the parties. Neither Under Armour nor Consultant, nor any person or entity employed by either Under Armour or Consultant are authorized to make any warranty concerning the other party or incur or assume any obligation or liability for the other party. |
13. | COMPLIANCE WITH LAWS: This Agreement shall be subject to and governed by the laws of the State of Maryland. |
14. | TERMINATION AND REMEDIES: (a) Consultant may terminate this Agreement upon a material breach of any term or condition of this Agreement by Under Armour and a failure by Under Armour to timely cure the breach by giving notice as provided herein. In the event of such a breach, Consultant shall provide Under Armour with written notice of the breach specifying in reasonable detail the nature of the breach. If Under Armour does not cure the breach within thirty (30) days after receipt of the written notice, Consultant may immediately terminate this Agreement upon provision of written notice to Under Armour. |
(b) In the event Consultant gives notice of termination arising out of non-payment by Under Armour, Under Armour shall pay all unpaid monthly compensation through the termination date within ten (10) days of such termination, and shall continue to pay the monthly compensation amounts on the fifteenth of each month until the end of the Term. If Under Armour disputes whether proper grounds for termination by Consultant exist, it shall nonetheless pay all such compensation and reserve any rights to recover same through legal process. Consultant shall be entitled to expedited injunctive relief if necessary to enforce this provision.
(c) Under Armour may not terminate this Agreement. Under Armour shall provide Consultant with written notice of any asserted breach specifying in reasonable detail the nature of the breach. If Consultant does not cure the breach within thirty (30) days after receipt of the written notice, including by making up any services not performed, Under Armour may immediately suspend payments of the monthly fee until such performance is corrected.
15. | WAIVER: No waiver of any breach or violation of any of the provisions of this Agreement shall constitute or be deemed to constitute a waiver of any other breach or violation of any provisions of this Agreement, whether or not similar, nor shall any waiver constitute a continuing waiver. |
16. | NOTICES: All notices and other communications from either party to the other under this Agreement shall be in writing and shall be deemed received upon (a) actual receipt, including by email, (b) the expiration of the fifth business day after being deposited in the United States mails, postage prepaid, or (c) the next business day following deposit with an internationally recognized overnight delivery service (e.g., Federal Express), addressed to the other party at the address set forth below: |
3
UNDER ARMOUR:
Under Armour, Inc. 1020 Hull Street Baltimore, Maryland 21230 Attn: Chief Executive Officer |
CONSULTANT AND DOWLEY:
Tecumseh Capital, LLC 6 Cliffdale Road Greenwich, CN 06831 Attn: Mark Dowley | |
with a copy to: |
||
Under Armour, Inc. 1020 Hull Street Baltimore, Maryland 21230 Attn: VP, Legal |
with a copy to: Laurence Pulgram Fenwick & West LLP lpulgram@fenwick.com |
17. Intentionally left blank
4
18. | ENTIRE AGREEMENT: This Agreement and the Agreement and General Release embodies the entire agreement and understanding of the parties hereto and supersedes any and all prior agreements, arrangements and understanding relating to the matters provided for herein. No waiver or amendment hereto shall be binding or effective unless the same is set forth in writing signed by a duly authorized representative of each party. |
IN WITNESS HEREOF, the parties have executed this Agreement as of the date first set forth above.
UNDER ARMOUR, INC. | CONSULTANT | |||||||
By: |
|
By: |
| |||||
Name: |
|
Name: |
| |||||
Title: |
|
Title: |
|
MARK DOWLEY
5
EXHIBIT A
STATEMENT OF WORK
Consultants services hereunder will be provided through Dowley.
Consultant will serve as special advisor to Under Armours Chief Executive Officer (CEO) on key brand initiatives including global marketing strategies, plans, vision, talent acquisition and other special projects or initiatives as may be requested by the CEO.
Consultant will report directly to the CEO.
Consultant will commit no less than an average of 5 to 10 hours per week in providing such services.
Consultant will provide a monthly report to the CEO on or before the last day of the month summarizing Consultants activities pursuant to this Agreement.
6
Attachment C
EMPLOYEE CONFIDENTIALITY AGREEMENT
This Confidentiality Agreement (Agreement) is entered into this 1st day of February, 2011, by and between Under Armour, Inc. (together with its affiliates, the Company) and Mark Dowley (Employee).
EXPLANATORY NOTE
The Employee recognizes that his or her employment with the Company will, of necessity, provide Employee with specialized and unique knowledge, which, if misappropriated or used in competition with the Company, would likely cause substantial loss and harm to the Company. The Employee further acknowledges that employment with the Company is based on the Employees agreement to abide by the covenants contained herein.
NOW THEREFORE, in consideration of Employees employment with the Company and for other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties agree as follows:
1. Confidentiality. Employee acknowledges Employees fiduciary duty and duty of loyalty to the Company. Further, Employee acknowledges that the Company, in reliance on this Agreement, will provide Employee access to trade secrets, customers, proprietary data and other confidential information. Employee agrees to retain said information as confidential and not to use said information for the Employees personal benefit or to disclose same to any third party, except when required to do so to properly perform duties to the Company. Further, as a condition of employment, during the time Employee is employed by the Company and continuing after any termination of the Employees employment with the Company, Employee agrees to protect and hold in a fiduciary capacity for the benefit of the Company all Confidential Information, as defined below, unless the Employee is required to disclose Confidential Information pursuant to the terms of a valid and effective order issued by a court of competent jurisdiction or a governmental authority. The Employee shall use Confidential Information solely for the purpose of carrying out those duties assigned Employee as an employee of the Company and not for any other purpose. The disclosure of Confidential Information to the Employee shall not be construed as granting to the Employee any license under any copyright, trade secret, or any right of ownership or right to use the Confidential Information whatsoever. In the event that Employee is compelled, pursuant to a subpoena or order of a court or other body having jurisdiction over such matter, to produce any Confidential Information or other information relevant to the Company, Employee agrees to promptly provide the Company with written notice of such subpoena or order so that the Company may timely move to quash if appropriate.
(a) For the purposes of this Agreement, Confidential Information shall mean all information related to the Companys business that is not generally known to the public. Confidential
1
Information shall include, but shall not be limited to: any financial (whether historical, projections or forecasts), pricing, cost, business, planning, operations, services, potential services, products, potential products, technical information, intellectual property, trade secrets and/or know-how, formulas, production, purchasing, marketing, sales, personnel, customer, supplier, or other information of the Company; any papers, data, records, processes, methods, techniques, systems, models, samples, devices, equipment, compilations, invoices, customer lists, or documents of the Company; any confidential information or trade secrets of any third party provided to the Company in confidence or subject to other use or disclosure restrictions or limitations; this Agreement and its terms; and any other information, written, oral or electronic, whether existing now or at some time in the future, whether pertaining to current or future developments or prospects, and whether accessed prior to the Employees tenure with the Company or to be accessed during Employees future employment or association with the Company, which pertains to the Companys affairs or interests or with whom or how the Company does business. The Company acknowledges and agrees that Confidential Information shall not include information which is or becomes publicly available other than as a result of a disclosure by the Employee.
(b) The Employee shall promptly notify the Company if he or she has reason to believe that the unauthorized use, possession, or disclosure of any Confidential Information has occurred or may occur.
(c) All physical items containing Confidential Information, including, but not limited to, the business plan, know-how, collection methods and procedures, advertising techniques, marketing plans and methods, sales techniques, documentation, contracts, reports, letters, notes, any computer media, customer lists and all other information and materials of the Companys business and operations, shall remain the exclusive and confidential property of the Company and shall be returned, along with any copies or notes that the Employee made thereof or therefrom, to the Company when the Employee ceases employment with the Company. The Employee further agrees to return copies of any Confidential Information contained on Employees home computer, portable computer or other similar device. Employee also agrees to allow the Company, upon reasonable notice and for just cause, access to any home computer, portable computer or other similar device maintained by Employee, including but not limited to, for the purpose of determining whether said Confidential Information has been misappropriated. The Employee further agrees to promptly return all other property belonging to the Company upon the termination of Employees employment.
2. Ownership of Works for Hire.
(a) The Employee agrees that any inventions, ideas, developments, methods, improvements, discoveries, innovations, software, works of authorship and any other intangible property (hereinafter collectively referred to as Intellectual Property), whether patentable or not, which are developed, partially developed, considered, contemplated or reduced to practice by the Employee or under his or her direction or jointly with others during his or her employment with the Company, whether or not
2
during normal working hours or on the premises of the Company, shall be considered Works for Hire for the exclusive use and benefit of the Company. The Employee will make full and prompt disclosure to the Company of all such Works for Hire. The Company shall own all rights to any Works for Hire, including all copyrights and the right to market (or not to market) any such property, and the Employee agrees to assign and does hereby assign to the Company (or any person or entity designated by the Company) all his or her right, title and interest in and to all Works for Hire and all related patents, patent applications, copyrights and copyright applications.
(b) The Employee agrees to cooperate fully with the Company, both during and after his or her employment with the Company, with respect to the procurement, maintenance and enforcement of copyrights and patents (both in the United States and foreign countries) relating to Works for Hire. The Employee shall sign all papers, including, without limitation, copyright applications, patent applications, declarations, oaths, formal assignments, assignment of priority rights, and powers of attorney, which the Company may deem necessary or desirable in order to protect its rights and interests in any Works for Hire.
(c) The Employee specifically acknowledges that his or her compensation and benefits constitute full payment for any Works for Hire and waives any claim of right to the Company.
(d) The Company may, at its election and discretion, waive and/or relinquish any of its rights of ownership and royalties with respect to any Works for Hire, by agreeing to do so in a written instrument executed by the Company.
3. Injunctive Relief. Employee acknowledges and agrees that in the event of a violation or threatened violation of any provision of this Agreement, the Company will sustain irreparable harm and will have the full right to seek injunctive relief, in addition to any other legal remedies available, without the requirement of posting bond.
4. Survivability. This Agreement shall remain binding in the event of the termination, for any reason, of employment with the Company.
5. Governing Law. The formation, construction and interpretation of this Agreement shall at all times and in all respects be governed by the laws of the State of Maryland.
6. Severable Provisions. The provisions of this Agreement are severable, and if any court determines that any provision of this Agreement is invalid or unenforceable, in whole or in part, any invalidity or unenforceability shall affect only that provision, and shall not make any other provision of this Agreement invalid or unenforceable; and this Agreement shall be narrowed by the court to the extent required to be valid and enforceable.
7. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter contained herein, and may not be modified except in a written
3
document signed by each of the parties hereto. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any other breach of that or any other provision hereof.
IN WITNESS WHEREOF, the parties have executed the Agreement as of the date first above written.
UNDER ARMOUR, INC. | ||||
By: /s/ John P. Stanton | ||||
Name: John P. Stanton | ||||
Title: VP, Corporate Governance | ||||
WITNESS: | EMPLOYEE | |||
Charles Hall | /s/ Mark Dowley | |||
(signature) | ||||
Print Name: Mark Dowley |
4
Exhibit 21.01
Subsidiaries |
Incorporation | |
Under Armour Europe B.V. | The Netherlands | |
Under Armour Retail, Inc. | Maryland | |
UA Global Sourcing Ltd. | Hong Kong |
Exhibit 23.01
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in the Registration Statements on Form S-8 (Nos. 333-130567, 333-129932 and 333-172423) of Under Armour, Inc. of our report dated February 24, 2012 relating to the financial statements, financial statement schedule and the effectiveness of internal control over financial reporting, which appears in this Form 10-K.
/s/ PricewaterhouseCoopers LLP
Baltimore, Maryland
February 24, 2012
Exhibit 31.01
Certification of Chief Executive Officer
Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
I, Kevin A. Plank, certify that:
1. I have reviewed this annual report on Form 10-K of Under Armour, Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrants other certifying officer 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 registrants 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 registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and
5. The registrants other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrants auditors and the audit committee of the registrants 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 registrants 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 registrants internal control over financial reporting.
Date: February 24, 2012
/s/ KEVIN A. PLANK |
Kevin A. Plank |
President, Chief Executive Officer and Chairman of the Board of Directors |
Exhibit 31.02
Certification of Chief Financial Officer
Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
I, Brad Dickerson, certify that:
1. I have reviewed this annual report on Form 10-K of Under Armour, Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrants other certifying officer 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 registrants 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 registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and
5. The registrants other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrants auditors and the audit committee of the registrants 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 registrants 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 registrants internal control over financial reporting.
Date: February 24, 2012
/s/ BRAD DICKERSON |
Brad Dickerson |
Chief Financial Officer |
Exhibit 32.01
Certification of Chief Executive Officer
Pursuant to 18 U.S.C. Section 1350, as created by Section 906 of the Sarbanes-Oxley Act of 2002, the undersigned officer of Under Armour, Inc. (the Company) hereby certifies, to such officers knowledge, that:
(i) the annual report on Form 10-K of the Company for the period ended December 31, 2011 (the Report) fully complies with the requirements of Section 13(a) or Section 15(d), as applicable, of the Securities Exchange Act of 1934, as amended; and
(ii) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
Dated: February 24, 2012 | /s/ KEVIN A. PLANK | |||
Kevin A. Plank | ||||
President, Chief Executive Officer and Chairman of the Board of Directors |
A signed original of this written statement required by Section 906 of the Sarbanes-Oxley Act of 2002 has been provided to Under Armour, Inc. and will be retained by Under Armour, Inc. and furnished to the Securities and Exchange Commission or its staff upon request.
Exhibit 32.02
Certification of Chief Financial Officer
Pursuant to 18 U.S.C. Section 1350, as created by Section 906 of the Sarbanes-Oxley Act of 2002, the undersigned officer of Under Armour, Inc. (the Company) hereby certifies, to such officers knowledge, that:
(i) the annual report on Form 10-K of the Company for the period ended December 31, 2011 (the Report) fully complies with the requirements of Section 13(a) or Section 15(d), as applicable, of the Securities Exchange Act of 1934, as amended; and
(ii) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
Dated: February 24, 2012 | /s/ BRAD DICKERSON | |||
Brad Dickerson | ||||
Chief Financial Officer |
A signed original of this written statement required by Section 906 of the Sarbanes-Oxley Act of 2002 has been provided to Under Armour, Inc. and will be retained by Under Armour, Inc. and furnished to the Securities and Exchange Commission or its staff upon request.
2UP#ZL:EP?6?^.N9[+?^+J_1_\`"/7H+6M:T-:`&@0`-``%
MXC]7_K/U/H-^_%?OQW&;<9Y]CO\`TG9_PC5[#T7K&)UKI]>=B'V/T A6
ML2S1;G+4ELOXFYQ*3GY4$8P<(4DK:0*C.,Y65S2^IJ>0?O6]F?(5R^&[Y"RF
MGJX\2M(ZGH!DC5K)@DF5Y(EK:8T[S9AL*0K">SF><>*4X[=LY5E2S5S76>&V
M?:VW6XWWDWRXL-ZMMFND^YTU2OF9RV3TI8YAQ_6YO\^3F'3QZ7_$O/3B=^HM
MDZ;,=`'0!T!DNPW*'DCQ_P!F71WI#?.W=4+;W>U%2WH6P;368TV26!^8HWL1
M%R;>+D&YRY\B".$@B9_O)SU+?$LYAR_%K[F?F]J%Q'1'(*%I7*&G!6(;QW+,
M&.MMF#:))V\6-LIT4BLN5B`KMY/X)V !3%HD6[=#VM-0JPWC3M
M?)DIF$>`*R+">I;S&)A\O](U8/VH/_H3EC_PU2O][FZ<1OU%Q75,AT`=`'0&
M0IR%`%MOW>+9L$3=NWW!LL```&@00!%=)H8@A$/"4#$-"<82G&,8QC';'4.B
M=1X_T!3E]OO*>R.@L>0COBOI!M=-97V#IT@WL6W&DG$:@Q?*O>8:(?YK\L>T
M48$W8\Z_GYGYD4:_6M)&33YI.4H$G+F4;XXS7__4L;YU_P#07]I3?_0']A_V
MS_F?I?[S?1?J7SW@CYC]O/B_UG^IO@]NWZ?_`-1^'W\?R]^@YGQ`YS`BO1U*
M6J=1Q2OO.>C($5:V)VFI*!M;4+W"4Y4)M7FFU-UZ:W/%MR*QXK-*G>%1W\DB
M7VRA4\-9]>X-4^UC;UAMR4Y9CJ 1B%(XII8-WKF*1)9,+(F*Z4160&O3L\2N5JB&YLW_P#3$-")
M,::G/5'#-+&J=+5T[MNU>C;0YYD-GNS,U,TUI+7FQ73X.+W/8P$,Y=^0.K0Q12![*^*J.>80KNGX:L?FZEOSB84.^LY
M/VVJ)2'1(FLCG;2"LDL''L);13*'.\20^#&;,Z^[?\:VC
759J(8FNO2E9!J&0V`'81
M*1>>E8=C\TQP#-M?KO:._ $,!@,#__5]4=\5=UM([UG
M$BK5TZ/98BZ2N.Q=:JA=U5JT0]QHK521I5(&2MZ^F[KIN@=H*K?]*T*9Z0Z?
M"$!BLM.HV`*'2>-17EL#HU*UH:4I]$QQ[U194=6U^E:(IZS;FOJPUIXFT%-\
M>]
O5F./K[`ZK!FEL'UWPC7T:FS),.G_E)
M;;3PVNT.3O4(Y(ACBREWJ^(%K;,%@69\L!(\I88S'*1)P;5/IQY)GB(]ZU%C
ME?6.':B$>88G&*DDS'&HPS-<=CS(W**[3M[.QLJ$AM:6M`G!._,(1-Z!,624
M#7W`@!K6O\,J=NY]:'O[.9G\.KWV\P=GK0]_9S,_AU>^WF#L]:'O[.9G\.KW
MV\P=GK0]_9S,_AU>^WF#L]:'O[.9G\.KWV\P=GK0]_9S,_AU>^WF#L]:'O[.
M9G\.KWV\P=GK0]_9S,_AU>^WF#L]:'O[.9G\.KWV\P=GK0]_9S,_AU>^WF#L
M]:'O[.9G\.KWV\P=GK0]_9S,_AU>^WF#L]:'O[.9G\.KWV\P=J:^ZUWL7`7-
M`MA$#>X6Z;V`7F[$#>YC)=["+8!#!L0?\-^3>]?\MX)W*_N$,!@,#__2]_&`
MP&`P(W34W4**-N,-1U56Z2(.[AMV=HHF@T8(C;HZ[*)(VY.+&4U@:UKALA.6
M#QC2A&>8`.O+Y`Z\@=L]5S7LD+>"9#!(:_%2$EJ3OY3U%V1T+?$[$%4%D(>`
M+D)X7,EG"N/TE"=H84^CA^'H/GB\H=B=$8HHD#=+%$8CQ\J9T)K6T24YE;39
M`U-A^C@GMS<\C3"<4*$X*DS0R2C`EBT8+RZ_S;\H4D]ZG_3<[?\`W:+8_)1P
MR3IKU_:%_,K)@,!@,!@,!@,!@?D00C"(`PA&`8=A$$6M""((M>001!WY=""+
M6_)O6_\`'`UCR?GBV.-9`_6]PVQ`E]3O;FMDEP\*G."9GCKHI6#VI>)YRFYK
MC"FBJ;($;L9RJ+F;)BDC\\>@Z;UVBCS(U=XE;>FKOI'KRK'1\A*M)+8JYZ>H
M)8\`ES*-ODT1?/1S&R85=;5?/Q`7.,R1O`>8F<&QP(UHTH>A@\9,:6:94S"H
M/-[T[\77&V<(V.Z."^EYH2\O/!%CO:L]<,$892!NDGY'E3PM,-5"E]/MF]JH
M@]L]=_Z=JXABB.W'&*ONOH:T8\QR
M/GB%
9HU<<<2I)(;(2[`Z'4QEK,,B*A8J(TU,73QD.$B<$2A8I*.5
MDC.3&I0[4%ICS[V9/HI7)\NDD?C03BH%RK;CXOC,:DTK'!8+TW*)[%ODXN`)
M9*BDMLOT$
QX\=7$4;X1&&**61+X[%28LA/ITY2+17HH"-
MF:T7H9@A[+;/TM:MA4Q.FS@^29_B6-,&'($+:@?-15*4VICB_
ME`EK!K0EQJX:0)J@M+L@E2H+-(Z6*TC#H:R(&-D4R0D#6R6(PMCGM]4`>D"6
MTI*DETO4I')*!,<2XJ']"2>F/U_G1[+T$GS`^76RVPR,
N^4+'CT+5U
MG*W.)K81+^P[UZ8G_JQ-)Q'7XY@LJX)S>T&B+"[L\>97E([0JQ)"T'J5A"Y!
MZ<4Q[!_D*6FDE"9_IB4PXEL843]X/5%>22+M]4]IU8_LS"DF$PL&3R6!W#-J
MC74Y/K$=7)\02%<]L\H82F968WZ7:-`N9S!Z._\`L1[2B]?AF5?