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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
(Mark One)
| x | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the fiscal year ended September 30, 2010
OR
| ¨ | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the transition period from to
Commission File Number 333-121322
WMG Acquisition Corp.
(Exact name of Registrant as specified in its charter)
| Delaware | 68-0576630 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) | |
| 75 Rockefeller Plaza New York, NY |
10019 | |
| (Address of principal executive offices) | (Zip Code) | |
Registrant’s telephone number, including area code: (212) 275-2000
Securities registered pursuant to Section 12(b) of the Act:
None
Securities registered pursuant to Section 12(g) of the Act:
None
Indicate by check mark whether the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ¨ No x
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes ¨ No x
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the Registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes x No ¨
Indicate by check mark 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 Regulations S-T (§232.405 of this chapter) during the preceding 12 months (or for shorter period that the registrant was required to submit and post such files). Yes ¨ No ¨
Indicate by check mark if the disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (§229.405 of this chapter) is not contained herein, and will not be contained, to the best of the registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendments to this Form 10-K. x
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer ¨ |
Accelerated filer ¨ | |
| Non-accelerated filer x |
Smaller reporting company ¨ | |
| (Do not check if a smaller reporting company) |
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act.) Yes ¨ No x
As of November 17, 2010, the number of shares of the Registrant’s common stock, par value $0.001 per share, outstanding was 1,000. All of the Registrant’s common stock is indirectly owned by Warner Music Group Corp.
The registrant has omitted certain information from this report as the registrant meets the conditions set forth in General Instruction (I)(1)(a) and (b) of Form 10-K and is therefore filing this Form with the reduced disclosure format.
DOCUMENTS INCORPORATED BY REFERENCE
None
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| ITEM 1. | BUSINESS |
FORWARD-LOOKING STATEMENTS
This Annual Report on Form 10-K includes “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995, Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended. These statements are based on current expectations, estimates, forecasts and projections about the industry in which we operate, management’s beliefs and assumptions made by management. Words such as “may,” “will,” “expect,” “intend,” “estimate,” “anticipate,” “believe,” or “continue” or the negative thereof or variations of such words and similar expressions are intended to identify such forward-looking statements. These statements are not guarantees of future performance and involve risks, uncertainties and assumptions, which are difficult to predict. Therefore, actual outcomes and results may differ materially from what is expressed or forecasted in such forward-looking statements. We disclaim any duty to update or revise any forward-looking statements whether as a result of new information, future events or otherwise. See “Management’s Discussion and Analysis of Financial Condition and Results of Operations—‘Safe Harbor’ Statement Under Private Securities Litigation Reform Act of 1995.”
Our Company
We are one of the world’s major music content companies. Our company is composed of two businesses: Recorded Music and Music Publishing. We believe we are the world’s third-largest recorded music company and also the world’s third-largest music publishing company. We are a global company, generating over half of our revenues in more than 50 countries outside of the U.S. We generated revenues of $2.984 billion during our fiscal year ended September 30, 2010.
Our Recorded Music business produces revenue primarily through the marketing, sale and licensing of recorded music in various physical (such as CDs, LPs and DVDs) and digital (such as downloads and ringtones) formats. We have one of the world’s largest and most diverse recorded music catalogs, including 26 of the top 100 best selling albums in the U.S. of all time. Our Recorded Music business has also expanded its participation in image and brand rights associated with artists, including merchandising, sponsorships, touring and artist management. We often refer to these rights as “expanded rights” and to the recording agreements that provide us with participations in such rights as “expanded-rights deals.” Prior to intersegment eliminations, our Recorded Music business generated revenues of $2.455 billion during our fiscal year ended September 30, 2010.
Our Music Publishing business owns and acquires rights to musical compositions, exploits and markets these compositions and receives royalties or fees for their use. We publish music across a broad range of musical styles. We hold rights in over one million copyrights from over 65,000 songwriters and composers. Prior to intersegment eliminations, our Music Publishing business generated revenues of $556 million during our fiscal year ended September 30, 2010.
Our Business Strengths
We believe the following competitive strengths will enable us to continue to generate stable cash flow through our diverse base of recorded music and music publishing assets:
Industry-Leading Recording Artists and Songwriters. We have been able to consistently attract, develop and retain successful recording artists and songwriters. Our talented artist and repertoire (“A&R”) teams are focused on finding and nurturing future successful recording artists and songwriters, as evidenced by our recent recorded music and music publishing successes. This has enabled us to develop a large and varied catalog of recorded music and music publishing assets that generate stable cash flows. We believe these assets demonstrate our historical success in developing talent and will help to attract future talent in order to enable our continued success.
Stable, Highly Diversified Revenue Base. Our revenue base is derived largely from recurring sources such as our music publishing library, our catalog of recorded music and new releases from our existing base of established artists. In any given year, only a small percentage of our total revenue depends on artists without an established track record. We have built a large and diverse catalog of recordings and compositions that covers a wide breadth of musical styles, including pop, rock, jazz, country, R&B, hip-hop, rap, reggae, Latin, alternative, folk, blues, gospel and other Christian music. We are a significant player in each of our major geographic regions. Broadening our Recorded Music business to participate in expanded rights further diversifies our revenue base. As of the end of fiscal 2010, we have expanded-rights deals in place with over half of our active global Recorded Music roster.
Flexible Cost Structure With Low Capital Expenditure Requirements. We have a highly variable cost structure, with substantial discretionary spending and minimal capital requirements. We spent $51 million in capital expenditures for our fiscal year ended September 30, 2010 and $27 million and $32 million in capital expenditures for our fiscal years ended September 30, 2009 and September 30, 2008, respectively. In fiscal 2010, we completed several information technology infrastructure projects, including the delivery of an SAP enterprise resource planning application in the U.S. for fiscal 2011. We continue to seek sensible opportunities to convert fixed costs to variable costs (such as the sale of our CD and DVD manufacturing, packaging and physical distribution operations in 2003) and to enhance our effectiveness, flexibility, structure and performance by reducing and realigning long-term
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costs. We continue to implement changes to better align our workforce with the changing nature of the music industry by continuing to shift resources from our physical sales channels to efforts focused on digital distribution and emerging technologies and other new revenue streams. In addition, we continue to look for opportunities to outsource additional back-office functions where it can make us more efficient, increase our capabilities and lower our costs. For example, in fiscal 2009 and fiscal 2010 we outsourced our information technology infrastructure and certain finance and accounting functions. Finally, we have contractual flexibility with regard to the timing and amounts of advances paid to existing recording artists and songwriters as well as discretion regarding future investment in new artists and songwriters, which further allows us to respond to changing industry conditions. The vast majority of our contracts cover multiple deliverables, most of which are only deliverable at our option.
Digital Leadership. We derive revenue from different digital business models and products, including digital downloads of single tracks and albums, digital subscription services, interactive webcasting, video streaming and downloads and mobile music, in the form of ringtones, ringback tones, full-track downloads and other products. We have established ourselves as a leader in the music industry’s transition to the digital era by expanding our distribution channels, establishing a strong partnership portfolio and developing innovative products and initiatives.
We have focused on expanding the scope and enhancing the structure of our distribution channels. We have agreements with carriers that have a combined base of approximately two billion wireless network subscribers. We have entered into content distribution agreements with mobile operators around the world to foster growth in digital music. We are seeking to better align our business models with the business drivers of our partners, creating commercial models that allow us to participate in customer acquisition, retention and lifetime-value creation of the consumer. Examples of this approach are new access-based models which bundle music with services or devices such as SingTel’s AMPed as well as Vivo and Vodafone’s music subscription services.
We believe that product innovation is crucial. We have focused on producing new music-based digital products for our digitally connected customers. We have integrated the development of innovative digital products and strategies throughout our business and established a culture of product innovation across the company aimed at leveraging our assets to drive creative product development. Through our digital initiatives we have established strong relationships with our customers, developed new products and become a leader in the expanding worldwide digital music business. This has allowed us to continue to increase our digital revenue to 25% of consolidated revenues in fiscal 2010.
Focus on Innovative A&R. We believe our relative size, the strength and stability of our management team, our ability to respond to industry and consumer trends and challenges, our diverse array of genres, our large catalog of hit releases and songs and our valuable music publishing library have and will help us continue to successfully build our roster of recording artists and songwriters. We are constantly looking for new, innovative ways to develop and execute our A&R strategy and to continue to realize significant success in A&R.
Experienced, Stable Management Team. We have a strong management team with a successful record of managing the transition in the recorded music industry. Our CEO and many other members of top management have been with our company since we were acquired from Time Warner in 2004. Since the current management group took over the company, we have successfully implemented an A&R strategy that focuses on ROI for each artist. The current team has also delivered strong results in our digital business, which, along with our efforts to diversify our revenue mix, are helping us transform our company. At the same time, management has remained vigilant in managing costs and maintaining financial flexibility.
Our Strategy
We intend to increase revenues and cash flow through the following business strategies:
Attract, Develop and Retain Established and Emerging Recording Artists and Songwriters. A critical element of our strategy is to find, develop and retain recording artists and songwriters who achieve long-term success, and we intend to enhance the value of our assets by continuing to attract and develop new recording artists and songwriters with staying power and market potential. Our A&R teams seek to sign talented recording artists with strong potential, who will generate a meaningful level of revenues and increase the enduring value of our catalog by continuing to generate sales on an ongoing basis, with little additional marketing expenditure. We also work to identify promising songwriters who will write musical compositions that will augment the lasting value and stability of our music publishing library. We intend to evaluate our recording artist and songwriter rosters continually to ensure we remain focused on developing the most promising and profitable talent and remain committed to maintaining financial discipline in evaluating agreements with artists. We will also continue to evaluate opportunities to add to our catalog or acquire or make investments in companies engaged in businesses that are similar or complementary to ours on a selective basis.
Maximize the Value of Our Music Assets. Our relationships with recording artists and songwriters, along with our recorded music catalog and our music publishing library are our most valuable assets. We intend to continue to exploit the value of these assets through a variety of distribution channels, formats and products to generate significant cash flow from our music content. We believe that the ability to monetize our music content should improve over time as new distribution channels and the number of formats increase. We will seek to exploit the potential of previously unmonetized content in new channels, formats and product offerings,
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including premium-priced album bundles and full-track video and full-track downloads on mobile phones. For example, we have a large catalog of music videos that we have yet to fully monetize, as well as unexploited album art, lyrics and B-side tracks that have never been released. We will also continue to work with our partners to explore creative approaches and constantly experiment with new deal structures and product offerings to take advantage of new distribution channels.
Enter into Expanded-Rights Deals to Form Closer Relationships with Recording Artists and Capitalize on the Growth Areas of the Music Industry. Since the end of calendar 2005, we have adopted a strategy of entering into expanded-rights deals with new recording artists. We have been very successful in entering into expanded-rights deals. This strategy has allowed us to create closer relationships with our recording artists through our provision of additional artist services and greater financial alignment. This strategy also has allowed us to diversify our recorded music revenue streams in order to capitalize on growth areas of the music industry such as merchandising, fan clubs, sponsorship and touring. We have built significant in-house resources through hiring and acquisitions in order to provide additional services to our recording artists and third-party recording artists. We believe this strategy will contribute to recorded music revenue growth over time.
Focus on Continued Management of Our Cost Structure. We will continue to maintain a disciplined approach to cost management in our business and to pursue additional cost savings with a focus on aligning our cost structure with our strategy and optimizing the enactment of our strategy. As part of this focus, we will continue to monitor industry conditions to ensure that our business remains aligned with industry trends. We will also continue to aggressively shift resources from our physical sales channels to efforts focused on digital distribution and other new revenue streams. As digital makes up a greater portion of total revenue we will manage our cost structure accordingly. In addition, we will continue to look for opportunities to convert fixed costs to variable costs through outsourcing certain functions. These outsourcing initiatives are another component of our ongoing efforts to monitor our costs and to seek additional cost savings.
Capitalize on Digital Distribution. Emerging digital formats should continue to produce new means for the distribution and exploitation of our recorded music and music publishing assets. We believe that the development of legitimate online and mobile channels for the consumption of music content continues to hold significant promise and opportunity for the industry. Digital tracks and albums are not only reasonably priced for the consumer, but also offer a superior customer experience relative to illegal alternatives. Digital music is easy to use, offers uncorrupted, high-quality song files and integrates seamlessly with popular portable music players such as Apple’s iPod/iPhone devices, Microsoft’s Zune player and smartphones which run on operating systems such as Google’s Android, RIM’s Blackberry, Microsoft’s Windows, and Nokia’s Symbian. Research conducted by NPD in December 2009 shows that the above-mentioned characteristics of current digital music offerings are driving additional uptake. More than one-third of U.S. Internet consumers age 13+ who started buying or bought more digital music in the past year did so in order to get content for their portable devices, and more than a quarter did so because it was easy to find music through digital music stores/services and because they found it to be a good value. Conversely, about one-third of U.S. Internet consumers age 13+ who stopped downloading or downloaded less music from file-sharing services in the past year did so because of concerns about getting spyware or viruses through these services—a protection afforded by legitimate digital music services. We believe digital distribution will stimulate incremental catalog sales given the ability to offer enhanced presentation and searchability of our catalog.
We intend to continue to extend our global reach by executing deals with new partners and developing optimal business models that will enable us to monetize our content across various platforms, services and devices. Our research shows that the average U.S. consumer currently actively uses 3.6 different means of consuming music, with online video services like YouTube having emerged as key outlets for music and online radio services like Pandora gaining wider adoption. Research conducted by NPD in December 2009 shows that two out of every five U.S. Internet consumers age 13+ listened to music via an online video site in the past year, and three out of every ten listened to music via an online radio service. Given that worldwide smartphone users are expected to number nearly 1.4 billion by 2015, we expect that the mobile platform will represent an area of significant opportunity for music content. Data from comScore’s MobiLens shows that the uptake of music among users of such phones is significant – three-month averages through September 2010 found that 38% of existing smartphone users in the U.S., and 43% of existing smartphone users in Germany and the U.K., listened to music on their handsets in the past month. We believe that music-related products, services and applications that are optimized for smartphones as well as newer devices like the iPad can be successful.
Contain Digital Piracy. Containing piracy is a major focus of the music industry and we, along with the rest of the industry, are taking multiple measures through the development of new business models, technological innovation, litigation, education and the promotion of legislation to combat piracy. We will continue to take a leadership role in the music industry’s war against piracy as well as continue to support the measures taken by Recording Industry Association of America (“RIAA”), International Federation of the Phonographic Industry (“IFPI”) and National Music Publishers’ Association (“NMPA”), including civil lawsuits, education programs, lobbying for tougher anti-piracy legislation and international efforts to preserve music copyrights. We also believe technologies geared towards degrading the illegal file-sharing process and tracking the source of pirated music offer a means to reduce piracy. Furthermore, legal actions by our industry, both in and outside the U.S., have been designed to educate consumers that obtaining music through unauthorized peer-to-peer networks is against the law and to deter illegal downloads. The industry has also been working with educational institutions to implement solutions to prohibit students from illegally downloading copyrighted material. We believe that consumer awareness of the illegality of piracy has increased as a result of these initiatives. We believe these actions, in
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addition to the expansive growth of legitimate online and mobile music offerings, will help to limit the revenues lost to digital piracy. We also believe that so-called “graduated response programs” with ISPs hold similar promise for limiting the revenues lost to digital piracy.
Company History
Our history dates back to 1929, when Jack Warner, president of Warner Bros. Pictures, founded Music Publishers Holding Company (“MPHC”) to acquire music copyrights as a means of providing inexpensive music for films. Encouraged by the success of MPHC, Warner Bros. extended its presence in the music industry with the founding of Warner Bros. Records in 1958 as a means of distributing movie soundtracks and further exploiting actors’ contracts. For over 50 years, Warner Bros. Records has led the industry both creatively and financially with the discovery of many of the world’s biggest recording artists. Warner Bros. Records acquired Frank Sinatra’s Reprise Records in 1963. Our Atlantic Records label was launched in 1947 by Ahmet Ertegun and Herb Abramson as a small New York-based label focused on jazz and R&B and Elektra Records was founded in 1950 by Jac Holzman as a folk music label. Atlantic Records and Elektra Records were merged in 2004 to form The Atlantic Records Group. Warner Music Group is today home to a collection of record labels, including Asylum, Atlantic, Cordless, East West, Elektra, Nonesuch, Reprise, Rhino, Roadrunner, Rykodisc, Sire, Warner Bros. and Word.
Since 1970, we have operated our Recorded Music business internationally through Warner Music International (“WMI”). WMI is responsible for the sale and marketing of our U.S. recording artists abroad as well as the discovery and development of international recording artists. Chappell & Intersong Music Group, including Chappell & Co., a company whose history dates back to 1811, was acquired in 1987, expanding our Music Publishing business. We continue to diversify our presence through acquisitions and joint ventures with various labels, such as the acquisition of a majority interest in Word Entertainment in 2002, our acquisition of Ryko in 2006, our acquisition of a majority interest in Roadrunner Music Group B.V. (“Roadrunner”) in 2007 (we also acquired the remaining interest in Roadrunner in 2010) and the acquisition of music publishing catalogs and businesses, such as the Non-Stop Music production music catalog.
In 2004, an investor group consisting of Thomas H. Lee Partners L.P. and its affiliates (“THL”), Bain Capital, LLC and its affiliates (“Bain Capital”), Providence Equity Partners, Inc. and its affiliates (“Providence Equity”) and Music Capital Partners L.P. (collectively, the “Investor Group”) acquired Warner Music Group from Time Warner Inc. (“Time Warner”) (the “Acquisition”). Warner Music Group became the only stand-alone music content company with publicly traded common stock in the U.S. in May 2005.
Recorded Music (82% of consolidated revenues, before intersegment eliminations, in each of fiscal 2010, 2009 and 2008)
Our Recorded Music business primarily consists of the discovery and development of artists and the related marketing, distribution and licensing of recorded music produced by such artists.
We are also diversifying our revenues beyond our traditional businesses by entering into expanded-rights deals with recording artists in order to partner with artists in other areas of their careers. Under these agreements, we provide services to and participate in artists’ activities outside the traditional recorded music business. We have built artist services capabilities and platforms for exploiting this broader set of music-related rights and participating more broadly in the monetization of the artist brands we help create. In developing our artist services business, we have both built and expanded in-house capabilities and expertise and have acquired a number of existing artist services companies involved in artist management, merchandising, strategic marketing and brand management, ticketing, concert promotion, fan club, original programming and video entertainment. We believe that entering into expanded-rights deals and enhancing our artist services capabilities will permit us to diversify revenue streams to better capitalize on the growth areas of the music industry and permit us to build stronger long-term relationships with artists and more effectively connect artists and fans.
In the U.S., our Recorded Music operations are conducted principally through our major record labels—Warner Bros. Records and The Atlantic Records Group. Our Recorded Music operations also include Rhino, a division that specializes in marketing our music catalog through compilations and re-issuances of previously released music and video titles, as well as in the licensing of recordings to and from third parties for various uses, including film and television soundtracks. Rhino has also become our primary licensing division focused on acquiring broader licensing rights from certain catalog recording artists. For example, we have an exclusive license with The Grateful Dead to manage the band’s intellectual property and in November 2007 we acquired a 50% interest in Frank Sinatra Enterprises, an entity that administers licenses for use of Frank Sinatra’s name and likeness and manages all aspects of his music, film and stage content. We also conduct our Recorded Music operations through a collection of additional record labels, including, among others, Asylum, Cordless, East West, Elektra, Nonesuch, Reprise, Roadrunner, Rykodisc, Sire and Word.
Outside the U.S., our Recorded Music activities are conducted in more than 50 countries primarily through WMI and its various subsidiaries, affiliates and non-affiliated licensees. WMI engages in the same activities as our U.S. labels: discovering and signing artists and distributing, marketing and selling their recorded music. In most cases, WMI also markets and distributes the records of those artists for whom our domestic record labels have international rights. In certain smaller markets, WMI licenses to unaffiliated
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third-party record labels the right to distribute its records. Our international artist services operations also include a network of concert promoters through which WMI provides resources to coordinate tours.
Our Recorded Music distribution operations include WEA Corp., which markets and sells music and DVD products to retailers and wholesale distributors in the U.S.; ADA, which distributes the products of independent labels to retail and wholesale distributors in the U.S.; various distribution centers and ventures operated internationally; an 80% interest in Word Entertainment, which specializes in the distribution of music products in the Christian retail marketplace; and ADA Global, which provides distribution services outside of the U.S. through a network of affiliated and non-affiliated distributors.
We play an integral role in virtually all aspects of the music value chain from discovering and developing talent to producing albums and promoting artists and their products. After an artist has entered into a contract with one of our record labels, a master recording of the artist’s music is created. The recording is then replicated for sale to consumers primarily in the CD and digital formats. In the U.S., WEA Corp., ADA and Word market, sell and deliver product, either directly or through sub-distributors and wholesalers, to record stores, mass merchants and other retailers. Our recorded music products are also sold in physical form to online physical retailers such as Amazon.com, barnesandnoble.com and bestbuy.com and in digital form to online digital retailers like Apple’s iTunes and mobile full-track download stores such as those operated by Verizon or Sprint. In the case of expanded-rights deals where we acquire broader rights in a recording artist’s career, we may provide more comprehensive career support and actively develop new opportunities for an artist through touring, fan clubs, merchandising and sponsorships, among other areas. We believe expanded-rights deals create a better partnership with our artists, which allows us to work together more closely with them to create and sustain artistic and commercial success.
We have integrated the sale of digital content into all aspects of our Recorded Music and Music Publishing businesses including A&R, marketing, promotion and distribution. Our new media executives work closely with A&R departments to make sure that while a record is being made, digital assets are also created with all of our distribution channels in mind, including subscription services, social networking sites, online portals and music-centered destinations. We also work side by side with our mobile and online partners to test new concepts. We believe existing and new digital businesses will be a significant source of growth for the next several years and will provide new opportunities to monetize our assets and create new revenue streams. As a music-based content company, we have assets that go beyond our recorded music and music publishing catalogs, such as our music video library, which we have begun to monetize through digital channels. The proportion of digital revenues attributed to each distribution channel varies by region and since digital music is still in the relatively early stages of growth, proportions may change as the roll out of new technologies continues. As an owner of musical content, we believe we are well positioned to take advantage of growth in digital distribution and emerging technologies to maximize the value of our assets.
Artists and Repertoire (“A&R”)
We have a decades-long history of identifying and contracting with recording artists who become commercially successful. Our ability to select artists who are likely to be successful is a key element of our Recorded Music business strategy and spans all music genres and all major geographies and includes artists who achieve national, regional and international success. We believe that this success is directly attributable to our experienced global team of A&R executives, to the longstanding reputation and relationships that we have developed in the artistic community and to our effective management of this vital business function.
In the U.S., our major record labels identify potentially successful recording artists, sign them to recording agreements, collaborate with them to develop recordings of their work and market and sell these finished recordings to retail stores and legitimate digital channels. Increasingly, we are also expanding our participation in image and brand rights associated with artists, including merchandising, sponsorships, touring and artist management. Our labels scout and sign talent across all major music genres, including pop, rock, jazz, country, R&B, hip-hop, rap, reggae, Latin, alternative, folk, blues, gospel and other Christian music. WMI markets and sells U.S. and local repertoire from its own network of affiliates and numerous licensees in more than 50 countries. With a roster of local artists performing in various local languages throughout the world, WMI has an ongoing commitment to developing local talent aimed at achieving national, regional or international success.
A significant number of our recording artists have continued to appeal to audiences long after we cease to release their new recordings. We have an efficient process for generating continued sales across our catalog releases, as evidenced by the fact that catalog usually generates more than 40% of our recorded music album sales on a unit basis in the U.S. in a typical year. Relative to our new releases, we spend comparatively small amounts on marketing for catalog sales.
We maximize the value of our catalog of recorded music through our Rhino business unit and through activities of each of our record labels. We use our catalog as a source of material for re-releases, compilations, box sets and special package releases, which provide consumers with incremental exposure to familiar songs and artists.
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Representative Worldwide Recorded Music Artists
| 3Oh!3 The Academy Is. Avenged Sevenfold The Baseballs Jeff Beck Bee Gees Big & Rich The Black Keys Black Sabbath B.o.B James Blunt Michelle Branch Bruno Mars Michael Bublé Cee Lo Green Tracy Chapman Ray Charles Cher Chicago Eric Clapton Biffy Clyro Cobra Starship Phil Collins The Corrs Death Cab for Cutie Deftones Jason Derulo Disturbed Alesha Dixon Donkeyboy The Doors |
The Eagles Missy Elliott The Enemy Enya Estelle Lupé Fiasco Flaming Lips Fleetwood Mac Flo Rida Peter Fox Aretha Franklin Foreigner Genesis Gloriana Gnarls Barkley Goo Goo Dolls Josh Groban Grateful Dead Green Day Gucci Mane Gym Class Heroes H.I.M. Halestorm Johnny Hallyday Emmylou Harris Hard-Fi Faith Hill Hugh Laurie Jaheim Katherine Jenkins Kid Rock |
Killswitch Engage Mark Knopfler Kobukuro Korn k.d. lang Larry the Cable Guy Led Zeppelin Ligabue Linkin Park Lynyrd Skynyrd Christophe Maé Maná Mastodon matchbox twenty MC Solaar Metallica Bette Midler Luis Miguel Janelle Monae The Monkees Jason Mraz Muse Musiq Soulchild My Chemical Romance Nek New Boyz New Order Never Shout Never Nickelback Notorious B.I.G. Paolo Nutini |
Panic At the Disco Pantera Paramore Sean Paul Laura Pausini Pendulum Tom Petty Plan B Plies Daniel Powter Primal Scream The Ramones The Ready Set Red Hot Chili Peppers R.E.M. Rilo Kiley Damien Rice Rumer Todd Rundgren Alejandro Sanz Seal Blake Shelton Shinedown Simple Plan Frank Sinatra Skillet The Smiths Regina Spektor Staind Stone Temple Pilots Billy Talent |
Serj Tankian Rod Stewart The Streets Rob Thomas Rush T.I. Trans-Siberian Orchestra Randy Travis Trey Songz Twisted Sister Uncle Kracker The Used Van Halen Paul Wall Westernhagen White Stripes Wilco Wiz Khalifa The Wombats The Wreckers Neil Young Youssou N’Dour Zac Brown Band |
Recording Artists’ Contracts
Our artists’ contracts define the commercial relationship between our recording artists and our record labels. We negotiate recording agreements with artists that define our rights to use the artists’ copyrighted recordings. In accordance with the terms of the contract, the artists receive royalties based on sales and other forms of exploitation of the artists’ recorded works. We customarily provide up-front payments to artists called advances, which are recoupable by us from future royalties otherwise payable to artists. We also typically pay costs associated with the recording and production of albums, which are treated in certain countries as advances recoupable from future royalties. Our typical contract for a new artist covers a single initial album and provides us with a series of options to acquire subsequent albums from the artist. Royalty rates and advances are often increased for optional albums. Many of our contracts contain a commitment from the record label to fund video production costs, at least a portion of which is generally an advance recoupable from future royalties.
Our established artists’ contracts generally provide for greater advances and higher royalty rates. Typically, established artists’ contracts entitle us to fewer albums, and, of those, fewer are optional albums. In contrast to new artists’ contracts, which typically give us ownership in the artist’s work for the full term of copyright, some established artists’ contracts provide us with an exclusive license for some fixed period of time. It is not unusual for us to renegotiate contract terms with a successful artist during a term of an existing agreement, sometimes in return for an increase in the number of albums that the artist is required to deliver.
We are also continuing to transition to other forms of business models with recording artists to adapt to changing industry conditions. The vast majority of the recording agreements we currently enter into are expanded-rights deals, in which we share in the touring, merchandising, sponsorship/endorsement, fan club or other non-traditional music revenues associated with those artists.
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Marketing and Promotion
WEA Corp., ADA and Word market and sell our recorded music product in the U.S. Our approach to marketing and promoting our artists and their recordings is comprehensive. Our goal is to maximize the likelihood of success for new releases as well as stimulate the success of previous releases. We seek to maximize the value of each artist and release, and to help our artists develop an image that maximizes appeal to consumers.
We work to raise the profile of our artists, through an integrated marketing approach that covers all aspects of their interactions with music consumers. These activities include helping the artist develop creatively in each album release, setting strategic release dates and choosing radio singles, creating concepts for videos that are complementary to the artists’ work and coordinating promotion of albums to radio and television outlets. For example, we recently partnered with MTV Music Group to give MTV Networks exclusive rights to sell ad inventory around our music video content in the U.S. across MTV Music Group’s digital properties and mobile services, as well as on our artist sites and third-party affiliate sites. Through the new partnership, our artists will be able to promote their music through MTV Music Group’s content channels (MTV Networks, VH1 etc), including on the network’s Unplugged series, VH1’s Behind the Music and CMT’s Crossroads. We also continue to experiment with ways to promote our artists through digital channels with initiatives such as windowing of content and creating product bundles by combining our existing album assets with other assets, such as bonus tracks and music videos. Digital distribution channels create greater marketing flexibility that can be more cost effective. For example, direct marketing is possible through access to consumers via websites and pre-release activity can be customized. When possible, we seek to add an additional personal component to our promotional efforts by facilitating television and radio coverage or live appearances for our key artists. Our corporate, label and artist websites provide additional marketing venues for our artists.
In further preparation for and subsequent to the release of an album, we coordinate and execute a marketing plan that addresses specific digital and physical retail strategies to promote the album. Aspects of these promotions include in-store appearances, advertising, displays and placement in album listening stations. These activities are overseen by our label marketing staffs to ensure that maximum visibility is achieved for the artist and the release.
Our approach to the marketing and promotion of recorded music is carefully coordinated to create the greatest sales momentum, while maintaining financial discipline. We have significant experience in our marketing and promotion departments, which we believe allows us to achieve an optimal balance between our marketing expenditure and the eventual sales of our artists’ recordings. We use a budget-based approach to plan marketing and promotions, and we monitor all expenditures related to each release to ensure compliance with the agreed-upon budget. These planning processes are evaluated based on updated artist retail sales reports and radio airplay data, so that a promotion plan can be quickly adjusted if necessary.
While marketing efforts extend to our catalog albums, most of the expenditure is directed toward new releases. Rhino specializes in marketing our catalog through compilations and reissues of previously released music and video titles, licensing tracks to third parties for various uses and coordinating film and television soundtrack opportunities with third-party film and television producers and studios.
Manufacturing, Packaging and Physical Distribution
Cinram International Inc. (collectively, with its affiliates and subsidiaries, “Cinram”) is currently our primary supplier of manufacturing, packaging and physical distribution services in the U.S., Canada and most of Europe. We believe that the pricing terms of our Cinram agreements reflect market rates. Pursuant to the terms of our agreement with Cinram, we have the option to use third-party vendors for up to a certain percentage of the previous year’s volume provided by Cinram (and up to a higher percentage upon the occurrence of certain events). We also have arrangements with other suppliers and distributors as part of our manufacturing, packaging and physical distribution network throughout the rest of the world.
Sales
We generate sales from the new releases of current artists and our catalog of recordings. In addition, we actively repackage music from our catalog to form new compilations. Most of our sales are currently generated through the CD format, although we also sell our music through both historical formats, such as cassettes and vinyl albums, and newer digital formats.
Most of our physical sales represent purchases by a wholesale or retail distributor. Our return policies are in accordance with wholesale and retailer requirements, applicable laws and regulations, territory- and customer-specific negotiations, and industry practice. We attempt to minimize the return of unsold product by working with retailers to manage inventory and SKU counts as well as monitoring shipments and sell-through data.
We sell our physical recorded music products through a variety of different retail and wholesale outlets including music specialty stores, general entertainment specialty stores, supermarkets, mass merchants and discounters, independent retailers and other
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traditional retailers. Although some of our retailers are specialized, many of our customers offer a substantial range of products other than music.
The digital sales channel—both online and mobile—has become an increasingly important sales channel. Online sales include sales of traditional physical formats through both the online distribution arms of traditional retailers such as fye.com and walmart.com and traditional online physical retailers such as Amazon.com, bestbuy.com and barnesandnoble.com. In addition, there has been a proliferation of legitimate online sites, which sell digital music on a per-album or per-track basis or offer subscription and streaming services. Several carriers also offer their subscribers the ability to download music on mobile devices. We currently partner with a broad range of online and mobile providers, such as iTunes, Napster, MOG, Rdio, Rhapsody, MTV, Nokia, Spotify, Sprint, T-Mobile, Verizon Wireless, Orange, Vodafone, eMusic, Virgin Mobile, China Mobile, YouTube and MySpace Music, and are actively seeking to develop and grow our digital business. In digital formats, per-unit costs related directly to physical products such as manufacturing, distribution, inventory and return costs do not apply. While there are some digital-specific variable costs and infrastructure investments needed to produce, market and sell digital products, it is reasonable to expect that we will generally derive a higher contribution margin from digital sales than physical sales.
Our agreements with online and mobile service providers generally last one to two years. We believe that the short-term nature of our contracts enables us to maintain the flexibility that we need given the infancy of the digital business models.
We enter into agreements with digital service providers to make our masters available for sale in digital formats (e.g., digital downloads, mobile ringtones, etc.). We then provide digital assets for our masters to digital service providers in saleable form. Our agreements with digital service providers establish our fees for the sale of our product, which vary based on the type of product being sold. We typically receive sales accounting reports from digital service providers on a monthly basis, detailing the sales activity, with payments rendered on a monthly or quarterly basis
Our business has historically been seasonal. In the recorded music business, purchases have historically been heavily weighted towards the last three months of the calendar year. However, since the emergence of digital sales, we have noted our business is becoming less seasonal in nature and driven more by the timing of our releases. As digital revenue increases as a percentage of our total revenue, this may continue to affect the overall seasonality of our business. For example, sales of MP3 players or gift cards to purchase digital music sold in the holiday season tend to result in sales of digital music in subsequent periods. However, seasonality with respect to the sale of music in new formats, such as digital, is still developing.
Music Publishing (18% of consolidated revenues, before intersegment eliminations, in each of fiscal 2010, 2009 and 2008)
Where recorded music is focused on exploiting a particular recording of a song, music publishing is an intellectual property business focused on the exploitation of the song itself. In return for promoting, placing, marketing and administering the creative output of a songwriter, or engaging in those activities for other rightsholders, our music publishing business garners a share of the revenues generated from use of the song.
Our music publishing operations include Warner/Chappell, our global music publishing company headquartered in Los Angeles with operations in over 50 countries through various subsidiaries, affiliates and non-affiliated licensees. We own or control rights to more than one million musical compositions, including numerous pop hits, American standards, folk songs and motion picture and theatrical compositions. Assembled over decades, our award-winning catalog includes over 65,000 songwriters and composers and a diverse range of genres including pop, rock, jazz, country, R&B, hip-hop, rap, reggae, Latin, folk, blues, symphonic, soul, Broadway, techno, alternative, gospel and other Christian music. Warner/Chappell also administers the music and soundtracks of several third-party television and film producers and studios, including Lucasfilm, Ltd., Hallmark Entertainment, Disney Music Publishing and Turner Music Publishing. In 2007, we entered the production music library business with the acquisition of Non-Stop Music. We have subsequently continued to expand our production music operations with the acquisitions of Groove Addicts Production Music Library and Carlin Recorded Music Library in 2010. These acquisitions doubled the size of our production music library, which now consists of more than 16 catalogs containing about 74,000 cues/songs.
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Music Publishing Portfolio
Representative Songwriters
Representative Songs
| 1950s and Prior |
1960s |
1970s | ||
| Summertime Happy Birthday To You Night And Day The Lady Is A Tramp Too Marvelous For Words Dancing In The Dark Winter Wonderland Ain’t She Sweet Frosty The Snowman When I Fall In Love Misty The Party’s Over On The Street Where You Live Blueberry Hill Makin’ Whoopee Dream A Little Dream Of Me It Had To Be You You Go To My Head As Times Go By Rhapsody In Blue Jingle Bell Rock |
People I Only Want To Be With You When A Man Loves A Woman I Got A Woman People Get Ready Love Is Blue For What It’s Worth This Magic Moment Save The Last Dance For Me Viva Las Vegas Walk On By Build Me Up Buttercup Everyday People Whole Lotta Love |
Behind Closed Doors Ain’t No Stopping Us Now For The Love Of Money A Horse With No Name Moondance Peaceful Easy Feeling Layla Staying Alive Star Wars Theme Killing Me Softly Stairway To Heaven Hot Stuff Superfly Listen to the Music |
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| 1980s |
1990s |
2000 and After | ||
| Eye Of The Tiger Slow Hand The Wind Beneath My Wings Endless Love Morning Train Beat It Jump We Are the World Indiana Jones Theme Celebration Like A Prayer Flashdance |
Creep Macarena Sunny Came Home Amazed This Kiss Believe Smooth Livin’ La Vida Loca Losing My Religion Gonna Make You Sweat All Star |
It’s Been Awhile Photograph Complicated U Got It Bad Crazy In Love Cry Me A River White Flag Dilemma Work It Miss You Burn American Idiot Save A Horse (Ride A Cowboy) We Belong Together Promiscuous Crazy Gold Digger Hey There Delilah Sexy Back Whatever You Like I Kissed A Girl All Summer Long Gotta Be Somebody Single Ladies Blame It Touch My Body | ||
| Rockstar Misery Business 4 Minutes Home Let It Rock Circus Take Me There |
Music Publishing Royalties
Warner/Chappell, as a copyright owner and/or administrator of copyrighted musical compositions, is entitled to receive royalties for the exploitation of musical compositions. We continually add new musical compositions to our catalog, and seek to acquire rights in songs that will generate substantial revenue over long periods of time.
Music publishers generally receive royalties pursuant to mechanical, public performance, synchronization and other licenses. In the U.S., music publishers collect and administer mechanical royalties, and statutory rates are established by the U.S. Copyright Act of 1976, as amended, for the royalty rates applicable to musical compositions for sales of recordings embodying those musical compositions. In the U.S., public performance royalties are typically administered and collected by performing rights organizations and in most countries outside the U.S., collection, administration and allocation of both mechanical and performance income are undertaken and regulated by governmental or quasi-governmental authorities. Throughout the world, each synchronization license is generally subject to negotiation with a prospective licensee and, by contract, music publishers pay a contractually required percentage of synchronization income to the songwriters or their heirs and to any co-publishers.
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Warner/Chappell acquires copyrights or portions of copyrights and/or administration rights from songwriters or other third-party holders of rights in compositions. Typically, in either case, the grantor of rights retains a right to receive a percentage of revenues collected by Warner/Chappell. As an owner and/or administrator of compositions, we promote the use of those compositions by others. For example, we encourage recording artists to record and include our songs on their albums, offer opportunities to include our compositions in filmed entertainment, advertisements and digital media and advocate for the use of our compositions in live stage productions. Examples of music uses that generate publishing revenues include:
Mechanical: sale of recorded music in various physical formats
| • | Physical recordings (e.g., CDs and DVDs) |
Performance: performance of the song to the general public
| • | Broadcast of music on television, radio, cable and satellite |
| • | Live performance at a concert or other venue (e.g., arena concerts, nightclubs) |
| • | Broadcast of music at sporting events, restaurants or bars |
| • | Performance of music in staged theatrical productions |
Synchronization: use of the song in combination with visual images
| • | Films or television programs |
| • | Television commercials |
| • | Videogames |
| • | Merchandising, toys or novelty items |
Digital:
| • | Internet and mobile downloads |
| • | Mobile ringtones |
| • | Online and mobile streaming |
Other:
| • | Licensing of copyrights for use in sheet music |
Composers’ and Lyricists’ Contracts
Warner/Chappell derives its rights through contracts with composers and lyricists (songwriters) or their heirs, and with third-party music publishers. In some instances, those contracts grant either 100% or some lesser percentage of copyright ownership in musical compositions and/or administration rights. In other instances, those contracts only convey to Warner/Chappell rights to administer musical compositions for a period of time without conveying a copyright ownership interest. Our contracts grant us exclusive exploitation rights in the territories concerned excepting any pre-existing arrangements. Many of our contracts grant us rights on a worldwide basis. Contracts typically cover the entire work product of the writer or composer for the duration of the contract. As a result, Warner/Chappell customarily possesses administration rights for every musical composition created by the writer or composer during the duration of the contract.
While the duration of the contract may vary, many of our contracts grant us ownership and/or administration rights for the duration of copyright. See “Intellectual Property-Copyrights”. U.S. copyright law permits authors or their estates to terminate an assignment or license of copyright (for the U.S. only) after a set period of time.
Marketing and Promotion
We actively seek, develop and maintain relationships with songwriters. We actively market our copyrights to licensees such as recorded music companies (including our Recorded Music business), filmed entertainment, television and other media companies, advertising and media agencies, event planners and organizers, computer and video game companies and other multimedia producers. We also market our musical compositions for use in live stage productions and merchandising. In addition, we actively seek new and emerging outlets for the exploitation of songs such as ringtones for mobile phones, new wireless and online uses and webcasting.
Competition
In both recorded music and music publishing we compete based on price (to retailers in recorded music and to various end users in music publishing), on marketing and promotion (including both how we allocate our marketing and promotion resources as well as how much we spend on a dollar basis) and on artist signings. We believe we currently compete favorably in these areas.
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Our Recorded Music business is also dependent on technological development, including access to, selection and viability of new technologies, and is subject to potential pressure from competitors as a result of their technological developments. In recent years, due to the growth in piracy, we have been forced to compete with illegal channels such as unauthorized, online, peer-to-peer file-sharing and CD-R activity. See “Industry Overview—Piracy.” Additionally, we compete, to a lesser extent, for disposable consumer income with alternative forms of entertainment, content and leisure activities, such as cable and satellite television, pre-recorded films on videocassettes and DVD, the Internet, computers, mobile applications and videogames.
The recorded music industry is highly competitive based on consumer preferences, and is rapidly changing. At its core, the recorded music business relies on the exploitation of artistic talent. As such, competitive strength is predicated upon the ability to continually develop and market new artists whose work gains commercial acceptance. According to Music and Copyright, in 2009, the four largest major record companies were Universal, Sony Music Entertainment (“Sony”), WMG and EMI Music (“EMI”), which collectively accounted for approximately 76% of worldwide recorded music sales. There are many mid-sized and smaller players in the industry that accounted for the remaining 24%, including independent music companies. Universal was the market leader with a 28% worldwide market share in 2009, followed by Sony with a 23% share. WMG and EMI held a 15% and 10% share of worldwide recorded music sales, respectively. While market shares change moderately year to year, market shares have not historically changed significantly from year-to-year.
The music publishing business is also highly competitive. The top four music publishers collectively account for approximately 69% of the market. Based on Music & Copyright’s most recent estimates in April 2010, Universal Music Publishing Group, having acquired BMG Music Publishing Group in 2007, was the market leader in music publishing in 2009, holding a 23% global share. EMI Music Publishing was the second largest music publisher with a 19% share, followed by WMG (Warner/Chappell) at 14% and Sony/ATV Music Publishing LLC (“Sony/ATV”) at 12%. Independent music publishers represent the balance of the market, as well as many individual songwriters who publish their own works.
Intellectual Property
Copyrights
Our business, like that of other companies involved in music publishing and recorded music, rests on our ability to maintain rights in musical works and recordings through copyright protection. In the U.S., copyright protection for works created as “works made for hire” (e.g., works of employees or specially commissioned works) after January 1, 1978 lasts for 95 years from first publication or 120 years from creation, whichever expires first. The period of copyright protection for works created on or after January 1, 1978 that are not “works made for hire” lasts for the life of the author plus 70 years. Works created and published or registered in the U.S. prior to January 1, 1978 generally enjoy a total copyright life of 95 years, subject to compliance with certain statutory provisions including notice and renewal. In the U.S., sound recordings created prior to February 15, 1972 are not subject to federal copyright protection but are protected by common law rights or state statutes, where applicable. The term of copyright in the European Union (“E.U.”) for musical compositions in all member states lasts for the life of the author plus 70 years. In the E.U., the term of copyright for sound recordings currently lasts for 50 years from the date of release.
We are largely dependent on legislation in each territory to protect our rights against unauthorized reproduction, distribution, public performance or rental. In all territories where we operate, our products receive some degree of copyright protection, although the period of protection varies widely. In a number of developing countries, the protection of copyright remains inadequate. In the U.S., the Digital Millennium Copyright Act of 1998 (“DMCA”), creates a powerful framework for the protection of copyrights covering musical compositions and recordings in the digital world.
The potential growth of new delivery technologies, such as digital broadcasting, the Internet and entertainment-on-demand has focused attention on the need for new legislation that will adequately protect the rights of producers. We actively lobby in favor of industry efforts to increase copyright protection and support the efforts of organizations such as the RIAA, IFPI and the World Intellectual Property Organization (“WIPO”).
In December 1996, two global copyright treaties, the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, were signed, securing the basic legal framework for the international music industry to trade and invest in online music businesses. The WIPO treaties were ratified by the requisite number of countries, including the U.S. The U.S. implemented these treaties through the DMCA.
The E.U. has implemented these treaties through the European Copyright Directive, which was adopted by the E.U. in 2001. Legislation implementing the European Copyright Directive in each of the member states is underway. The European Copyright Directive harmonizes copyright laws across Europe and extends substantial protection for copyrighted works online. The E.U. has also put forward legislation aimed at assuring cross border coordination of the enforcement of laws related to counterfeit goods, including musical recordings.
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Trademarks
We consider our trademarks to be valuable assets to our business. As such, we endeavor to register our major trademarks in every country where we believe the protection of these trademarks is important for our business. Our major trademarks include Atlantic, Elektra, Sire, Reprise, Rhino, WEA and Warner/Chappell. We also use certain trademarks pursuant to royalty-free license agreements. Of these, the duration of the license relating to the WARNER and WARNER MUSIC marks and “W” logo is perpetual. The duration of the license relating to the WARNER BROS. RECORDS mark and WB & Shield designs is fifteen years from February 29, 2004. Each of the licenses may be terminated under certain limited circumstances, which may include material breaches of the agreement, certain events of insolvency, and certain change of control events if we were to become controlled by a major filmed entertainment company. We actively monitor and protect against activities that might infringe, dilute, or otherwise harm our trademarks.
Joint Ventures
We have entered into joint venture arrangements pursuant to which we or our various subsidiary companies manufacture, distribute and market (in most cases, domestically and internationally) recordings owned by the joint ventures. Examples of these arrangements are Frank Sinatra Enterprises, a joint venture established to administer licenses for use of Frank Sinatra’s name and likeness and manage all aspects of his music, film and stage content.
Employees
As of September 30, 2010 and 2009, we employed approximately 3,700 and 4,000 persons worldwide, respectively, including temporary and part-time employees. None of our employees in the U.S. are subject to collective bargaining agreements; although certain employees in our non-domestic companies are covered by national labor agreements. We believe that our relationship with our employees is good.
Financial Information About Segments and Foreign and Domestic Operations
Financial and other information by segment, and relating to foreign and domestic operations, for each of the last three fiscal years is set forth in Note 18 to the Consolidated Audited Financial Statements.
INDUSTRY OVERVIEW
Recorded Music
Recorded music is one of the primary mediums of entertainment for consumers worldwide and in calendar 2009, according to IFPI, generated $25.4 billion in retail value of sales. Over time, major recorded music companies have built significant recorded music catalogs, which are long-lived assets that are exploited year after year. The sale of catalog material is typically more profitable than that of new releases, given lower development costs and more limited marketing costs. In the first three quarters of calendar 2010, according to SoundScan, 44% of all U.S. album unit sales were from recordings more than 18 months old, with 34% from recordings more than three years old.
According to IFPI, the top five territories (the U.S., Japan, the U.K., Germany and France) accounted for 75% of the related sales in the recorded music market in calendar year 2009. The U.S., which is the most significant exporter of music, is also the largest territory for recorded music sales, constituting 31% of total calendar year 2009 recorded music sales on a retail basis. The U.S. and Japan are largely local music markets, with 93% and 78% of their calendar year 2009 physical music sales consisting of domestic repertoire, respectively. In contrast, markets like the U.K. have higher percentages of international sales, with domestic repertoire in that territory constituting only 39% of sales.
There has been a major shift in distribution of recorded music from specialty shops towards mass-market and online retailers. According to RIAA, record stores’ share of U.S. music sales declined from 45% in calendar year 1999 to 30% in calendar year 2008, and according to the market research firm NPD, record / entertainment / electronics stores’ share of U.S. music sales totaled 18% in 2009. Over the course of the last decade, U.S. mass-market and other stores’ share grew from 38% in calendar 1999 to 54% in calendar year 2004, and with the subsequent growth of sales via online channels since that time, their share contracted to 28% in calendar year 2008 and remained so in 2009. In recent years, online sales of physical product as well as digital downloads have grown to represent an increasing share of U.S. sales and combined they accounted for 48% of music sales in calendar year 2009. In terms of genre, rock remains the most popular style of music in the U.S., representing 35% of 2009 U.S. unit sales, although genres such as rap/hip-hop, R&B, country and Latin music are also popular.
According to RIAA, from calendar years 1990 to 1999, the U.S. recorded music industry grew at a compound annual growth rate of 7.6%, twice the rate of total entertainment spending. This growth, largely paralleled around the world, was driven by demand for music, the replacement of vinyl LPs and cassettes with CDs, price increases and strong economic growth. The industry began experiencing negative growth rates in calendar year 1999, on a global basis, primarily driven by an increase in digital piracy. Other
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drivers of this decline were and are the overall recessionary economic environment, bankruptcies of record retailers and wholesalers, growing competition for consumer discretionary spending and retail shelf space and the maturation of the CD format, which has slowed the historical growth pattern of recorded music sales. Since that time, annual dollar sales of physical music product in the U.S. are estimated to have declined at a compound annual growth rate of 11%, although there was a 2.5% year-over-year increase recorded in 2004. In calendar year 2009, the physical business experienced a 21% year-over-year decline on a value basis. According to SoundScan, through October 31, 2010, calendar year-to-date U.S. recorded music album unit sales (excluding sales of digital tracks) are down approximately 13% year-over year. According to SoundScan, adding digital track sales to the unit album totals based on SoundScan’s standard ten-tracks-per-album equivalent, the U.S. music industry is down 10% in album unit sales calendar year to date through October 31, 2010. Similar declines have occurred in international markets, with the extent of declines driven primarily by differing penetration levels of piracy-enabling technologies, such as broadband access and CD-R technology, and economic conditions.
Notwithstanding these factors, we believe that music industry results could improve based on the continued mobilization of the industry as a whole against piracy and the development of legitimate digital distribution channels.
Piracy
One of the industry’s biggest challenges is combating piracy. Music piracy exists in two primary forms: digital (which includes illegal downloading and CD-R piracy) and industrial:
| • | Digital piracy has grown dramatically, enabled by the increasing penetration of broadband Internet access and the ubiquity of powerful microprocessors, fast optical drives (particularly with writable media, such as CD-R) and large inexpensive disk storage in personal computers. The combination of these technologies has allowed consumers to easily, flawlessly and almost instantaneously make high-quality copies of music using a home computer by “ripping” or converting musical content from CDs into digital files, stored on local disks. These digital files can then be distributed for free over the Internet through anonymous peer-to-peer file sharing networks such as BitTorrent, Frostwire and Limewire (“illegal downloading”). Alternatively, these files can be burned onto multiple CDs for physical distribution (“CD-R piracy”). IFPI estimates that 40 billion songs were illegally downloaded in 2008. |
| • | Industrial piracy (also called counterfeiting or physical piracy) involves mass production of illegal CDs and cassettes in factories. This form of piracy is largely concentrated in developing regions, and has existed for more than two decades. The sale of legitimate recorded music in these developing territories is limited by the dominance of pirated products, which are sold at substantially lower prices than legitimate products. The International Intellectual Property Alliance (IIPA) estimates that U.S. trade losses due to physical piracy of records and music in 39 key countries/territories around the world with copyright protection and/or enforcement deficiencies totaled $1.5 billion in 2009. The IIPA also believes that piracy of records and music is most prevalent in territories such as Indonesia, China, the Philippines, Mexico, India and Argentina, where piracy levels are at 60% or above. |
In 2003, the industry launched an intensive campaign to limit piracy that focused on four key initiatives:
| • | Technological: The technological measures against piracy are geared towards degrading the illegal file-sharing process and tracking providers and consumers of pirated music. These measures include spoofing, watermarking, copy protection, the use of automated webcrawlers and access restrictions. |
| • | Educational: Led by RIAA and IFPI, the industry has launched an aggressive campaign of consumer education designed to spread awareness of the illegality of various forms of piracy through aggressive print and television advertisements. These efforts have yielded positive results in impacting consumer behaviors and attitudes with regard to file-sharing of music. A survey conducted by The NPD Group, a market research firm, in December 2009 showed that one out of five U.S. Internet users aged 13 or older who stopped or decreased their usage of file-sharing services for music in the year covered by the survey did so because they were concerned about being sued and/or the legality of such services. A separate survey conducted by NPD in September 2010 found that half of U.S. consumers aged 13 or older felt that music sales had declined because of people using file-sharing services to obtain music, and 38% agreed that stopping people from freely sharing copyrighted music files through a file-sharing network is the honest and fair thing to do. |
| • | Legal: In conjunction with its educational efforts, the industry has taken aggressive legal action against file-sharers and is continuing to fight industrial pirates. These actions include civil lawsuits in the U.S. and E.U. against individual pirates, arrests of pirates in Japan and raids against file-sharing services in Australia. U.S. lawsuits have largely targeted individuals who illegally share large quantities of music content. A number of court decisions, including the decisions in the cases involving Grokster and KaZaA, have held that one who distributes a device, such as P2P software, with the object of promoting its use to infringe copyright can be liable for the resulting acts of infringement by third parties using the device regardless of the lawful uses of the device. |
| • | Development of online and mobile alternatives: We believe that the development and success of legitimate digital music channels will be an important driver of recorded music sales and monetization going forward, as they represent both an |
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| incremental revenue stream and a potential inhibitor of piracy. The music industry has been encouraged by the proliferation and early success of legitimate digital music distribution options. We believe that these legitimate online distribution channels offer several advantages to illegal peer-to-peer networks, including greater ease of use, higher quality and more consistent music product, faster downloading and streaming, better search and discovery capabilities and seamless integration with portable digital music players. Legitimate online download stores and subscription music services began to be established between early 2002 and April 2003 beginning with the launch of Rhapsody in late 2001 and continuing through the launch of Apple’s iTunes music store in April 2003. Since then, many others (both large and small) have launched download, subscription, and ad-supported music services, offering a variety of models, including per-track pricing, per-album pricing and monthly subscriptions. According to IFPI in their “Digital Music Report 2010” publication, there are about 400 legal digital music services providing alternatives to illegal file-sharing in markets around the world. The mobile music business is also significant, with mobile music revenues delivering nearly $1.6 billion in trade value worldwide in 2009, according to IFPI data. While revenues from ringtones initially drove the mobile music business, new mobile phones equipped with new capabilities are increasingly offering the capability for full-track downloads and streaming audio and video. These categories are accounting for a greater share of mobile music revenues while further expanding legitimate options. |
These efforts are incremental to the long-standing push by organizations such as RIAA and IFPI to curb industrial piracy around the world. In addition to these actions, the music industry is increasingly coordinating with other similarly impacted industries (such as software and filmed entertainment) to combat piracy.
We believe these actions have had a positive effect. A survey conducted by NPD in December 2009 showed that 38% of U.S. Internet users aged 13 or older who downloaded music from a file-sharing service at any point in the past two years stopped or decreased their usage of such file-sharing services in the year covered by the survey.
Internationally, several recent governmental initiatives should also be helpful to the music industry. France recently enacted “graduated response” legislation pursuant to which repeat copyright infringers could have their Internet connections revoked and be subject to criminal penalties. South Korea and Taiwan have also passed graduated response laws. In addition the Digital Economy Act was passed into law in the UK in April 2010. The Act places obligations on UK ISPs to send notifications to subscribers who infringe copyright. It also contains provisions for the Secretary of State to require ISPs to impose technical measures on infringing subscribers, which could include account suspension. In April 2009, Sweden implemented the Intellectual Property Rights Enforcement Directive, which was intended to ensure, among other things, the ability to effectively enforce copyright and other civil remedies. There is evidence to suggest that this is having a positive effect in reducing unlawful filesharing on the Internet in Sweden. Similar legislation is also in the process of being passed into law in New Zealand. We believe these actions, as well as other actions also currently being taken in many countries around the world, represent a positive trend internationally and a recognition by governments around the world that urgent action is required to reduce online piracy and in particular unlawful filesharing because of the harm caused to the creative industries. While these government actions have not come without some controversy abroad, we continue to lobby for legislative change through music industry bodies and trade associations in jurisdictions where enforcement of copyright in the context of online piracy remains problematic due to existing local laws or prior court decisions.
In the U.S., the legislature recently passed the PRO-IP Act of 2008, a law that protects copyrights both domestically and internationally. Echoing similar efforts across Europe and Australia, the PRO-IP Act toughens U.S. criminal laws against piracy and counterfeiting, and adds accountability in the law’s implementation. In addition, the Higher Education Act, which sets out provisions designed to ameliorate the peer-to-peer problem on college campuses was also recently enacted. The Act requires colleges to consistently disseminate information to better educate students about the policies, disciplinary actions, risks and penalties of peer-to-peer activities. Furthermore, for educational institutions to have continuing eligibility for federally funded assistance programs, they have to develop plans to effectively combat unauthorized content distribution on campus. We believe all of these actions further the efforts of the music industry to reduce the level of illegal file-sharing on the Internet.
Music Publishing
Background
Music publishing involves the acquisition of rights to, and licensing of, musical compositions (as opposed to recordings) from songwriters, composers or other rightsholders. Music publishing revenues are derived from five main royalty sources: Mechanical, Performance, Synchronization, Digital and Other.
In the U.S., mechanical royalties are collected directly by music publishers from recorded music companies or via The Harry Fox Agency, a non-exclusive licensing agent affiliated with NMPA, while outside the U.S., collection societies generally perform this function. Once mechanical royalties reach the publisher (either directly from record companies or from collection societies), percentages of those royalties are paid to any co-owners of the copyright in the composition and to the writer(s) and composer(s) of the composition. Mechanical royalties are paid at a penny rate of 9.1 cents per song per unit in the U.S. for physical formats (e.g., CDs
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and vinyl albums) and permanent digital downloads (recordings in excess of five minutes attract a higher rate) and 24 cents for ringtones. There are also rates set for interactive streaming and non-permanent downloads based on a formula that takes into account revenues paid by consumers or advertisers with certain minimum royalties that may apply depending on the type of service. In some cases, “controlled composition” provisions contained in some recording agreements may apply to the rates mentioned above pursuant to which artist/songwriters license their rights to their record companies for as little as 75% of these rates. The foregoing rates are in effect through December 31, 2012. In most other territories, mechanical royalties are based on a percentage of wholesale price for physical product and based on a percentage of consumer price for digital products. In international markets, these rates are determined by multi-year collective bargaining agreements and rate tribunals.
Throughout the world, performance royalties are typically collected on behalf of publishers and songwriters by performance rights organizations and collection societies. Key performing rights organizations and collection societies include: The American Society of Composers, Authors and Publishers (ASCAP), SESAC and Broadcast Music, Inc. (BMI) in the U.S.; Mechanical-Copyright Protection Society and The Performing Right Society (“MCPS/PRS”) in the U.K.; The German Copyright Society in Germany (“GEMA”) and the Japanese Society for Rights of Authors, Composers and Publishers in Japan (“JASRAC”). The societies pay a percentage (which is set in each country) of the performance royalties to the copyright owner(s) or administrators (i.e., the publisher(s)), and a percentage directly to the songwriter(s), of the composition. Thus, the publisher generally retains the performance royalties it receives other than any amounts attributable to co-publishers.
The music publishing market has proven to be more resilient than the recorded music market in recent years as revenue streams other than mechanical royalties are largely unaffected by piracy, and are benefiting from additional sources of income from digital exploitation of music in downloads and mobile ringtones. The worldwide professional music publishing market was estimated to have generated approximately $4.3 billion in revenues in 2009 according to figures contained in the April 21, 2010 issue of Music & Copyright. Trends in music publishing vary by royalty source:
| • | Mechanical & Digital: Although the decline in the physical business has an impact on mechanical royalties, this decline has been partly offset by the regular and predictable statutory increases in the mechanical royalty rate in the U.S. in the past, the increasing efficiency of local collection societies worldwide and the growth of new revenue sources such as mobile ringtones and legitimate online and mobile downloads. |
| • | Performance: Continued growth in the performance royalties category is expected, largely driven by television advertising, live performance and online streaming and advertising royalties. |
| • | Synchronization: We believe synchronization revenues have experienced strong growth in recent years and will continue to do so, benefiting from the proliferation of media channels, a recovery in advertising, robust videogames sales and growing DVD film sales/rentals. |
In addition, major publishers have the opportunity to generate significant value by the acquisition of small publishers by extracting cost savings (as acquired libraries can be administered with little or no incremental cost) and by increasing revenues through more aggressive marketing efforts.
Executive Officers of the Registrant
The following table sets forth information as to our executive officers as of November 17, 2010, together with their positions and ages.
| Name |
Age | Position | ||||
| Edgar Bronfman, Jr. |
55 | Chairman of the Board and CEO | ||||
| Lyor Cohen |
51 | Vice Chairman, Warner Music Group Corp. and Chairman and CEO, Recorded Music—Americas and the U.K. | ||||
| Michael D. Fleisher |
45 | Vice Chairman, Strategy and Operations | ||||
| David H. Johnson |
64 | Chairman and CEO, Warner/Chappell Music | ||||
| Mark Ansorge |
47 | Executive Vice President, Human Resources and Chief Compliance Officer | ||||
| Steven Macri |
42 | Executive Vice President and Chief Financial Officer | ||||
| Michael Nash |
53 | Executive Vice President, Digital Strategy and Business Development | ||||
| Paul M. Robinson |
52 | Executive Vice President and General Counsel | ||||
| Will Tanous |
41 | Executive Vice President and Chief Communications Officer | ||||
Our executive officers are appointed by, and serve at the discretion of, the Board of Directors. Each executive officer is an employee of Warner Music Group or one of its subsidiaries. There are no family relationships among any executive officers or directors of Warner Music Group. The following information provides a brief description of the business experience of each of our executive officers.
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Edgar Bronfman, Jr., 55, has served as our Chairman of the Board and CEO since March 1, 2004. Before joining Warner Music Group, Mr. Bronfman served as Chairman and CEO of Lexa Partners LLC, a management venture capital firm which he founded in April 2002. Prior to Lexa Partners, Mr. Bronfman was appointed Executive Vice Chairman of Vivendi Universal in December 2000. He resigned from his position as an executive officer of Vivendi Universal on December 6, 2001, resigned as an employee of Vivendi Universal on March 31, 2002, and resigned as Vice Chairman of Vivendi Universal’s Board of Directors on December 2, 2003. Prior to the December 2000 formation of Vivendi Universal, Mr. Bronfman was President and CEO of The Seagram Company Ltd., a post he held since June 1994. During his tenure as the CEO of Seagram, he consummated $85 billion in transactions and transformed the company into one of the world’s leading media and communications companies. From 1989 until June 1994, Mr. Bronfman served as President and COO of Seagram. Between 1982 and 1989, he held a series of senior executive positions for The Seagram Company Ltd. in the U.S. and in Europe. Mr. Bronfman serves on the Boards of InterActiveCorp, Accretive Health, Inc. and the New York University Langone Medical Center. He is also the Chairman of the Board of Endeavor Global, Inc. and is a Member of the Council on Foreign Relations. Mr. Bronfman also serves as general partner at Accretive, LLC, a private equity firm, and is Vice President of the Board of Trustees, The Collegiate School.
Lyor Cohen, 51, has served as the Vice Chairman, Warner Music Group Corp. and Chairman and CEO, Recorded Music—Americas and the U.K. since September 2008. Previously, Mr. Cohen was Chairman and CEO, Recorded Music North America from March 2008 to September 2008 and Chairman and CEO of U.S. Recorded Music since joining the company in March 1, 2004 to March 2008. From 2002 to 2004, Mr. Cohen was the Chairman and CEO of Universal Music Group’s Island Def Jam Music Group. Mr. Cohen served as President of Def Jam from 1988 to 2002. Previously, Mr. Cohen served in various capacities at Rush Management, a hip-hop management company, which he founded with partner Russell Simmons. Mr. Cohen is widely credited with expanding Island Def Jam beyond its hip-hop roots to include a wider range of musical genres.
Michael D. Fleisher, 45, has served as our Vice Chairman, Strategy and Operations, since September 2008. Previously Mr. Fleisher was our Executive Vice President and Chief Financial Officer since joining the company on January 1, 2005 to September 2008. Prior to joining Warner Music Group, Mr. Fleisher was Chairman and Chief Executive Officer of Gartner, Inc. Mr. Fleisher joined Gartner in 1993 and served in several roles including Chief Financial Officer prior to being named CEO in 1999. Previous to Gartner, he was at Bain Capital. Mr. Fleisher holds a bachelor’s degree from the Wharton School of the University of Pennsylvania.
David H. Johnson, 64, has served as the CEO of Warner/Chappell Music since December 2006. Mr. Johnson joined Warner Music Group in 1999. From 1999 to December 2006, Mr. Johnson held various positions with Warner Music Group, including Acting CEO of Warner/Chappell Music and Executive Vice President and General Counsel. Prior to joining Warner Music Group, Mr. Johnson spent nine years as Senior Vice President and General Counsel for Sony Music Entertainment. He also held several posts at CBS and was an associate in the law firm Mayer, Nussbaum, Katz & Baker. Mr. Johnson received a B.A. in political science from Yale University, a J.D. from the University of Pennsylvania Law School and an L.L.M. from New York University School of Law.
Mark Ansorge, 47, has served as our Executive Vice President, Human Resources and Chief Compliance Officer since August 2008. He was previously Warner Music Group’s Senior Vice President and Deputy General Counsel and has held various other positions within the legal department since joining the company in 1992. Since the company’s initial public offering in 2005, Mr. Ansorge has also served as Warner Music Group’s Chief Compliance Officer. Prior to joining Warner Music Group he practiced law as an associate at Winthrop, Stimson, Putnam & Roberts (now known as Pillsbury Winthrop Shaw Pittman LLP). Mr. Ansorge holds a bachelor of science degree from Cornell University’s School of Industrial and Labor Relations and a J.D. from Boston University School of Law.
Steven Macri, 42, has served as our Executive Vice President and Chief Financial Officer since September 2008. Previously, Mr. Macri was our Senior Vice President and Controller since joining the company in February 2005. Prior to joining Warner Music Group, he held the position of Vice President Finance at Thomson Learning (now Cengage Learning), which was a division of The Thomson Corporation. From 1998 to 2004, Mr. Macri held various financial and business development positions at Gartner, Inc. including SVP, Business Planning and Operations and SVP, Controller. Before joining Gartner, he held various positions in the accounting and finance departments of consumer packaged goods company Reckitt Benckiser. Mr. Macri began his career at Price Waterhouse LLP where he last served as a manager. Mr. Macri holds a bachelor of science degree from Syracuse University and an MBA from New York University Stern School of Business.
Michael Nash, 53, has served as our Executive Vice President, Digital Strategy and Business Development since June 2008. He was previously Warner Music Group’s Senior Vice President, Digital Strategy and Business Development since February 1, 2000. Prior to joining Warner Music Group, Mr. Nash was Executive Director of the Madison Project, an industry-first secure digital music distribution trial (1999), CEO and founder of Inscape, an interactive entertainment and games publishing joint venture with Warner Music Group and HBO that won numerous product awards (1994 - 1997) and Director of the Criterion Collection, where he worked closely with directors and artists such as Robert Altman, David Bowie, Terry Gilliam, Louis Malle, Nicolas Roeg and John Singleton on numerous special edition laserdiscs, the forerunner of the DVD format (1991 - 1994).
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Paul M. Robinson, 52, has served as our Executive Vice President and General Counsel since December 2006. Mr. Robinson joined Warner Music Group’s legal department in 1995. From 1995 to December 2006, Mr. Robinson held various positions with Warner Music Group, including Acting General Counsel and Senior Vice President, Deputy General Counsel. Before joining Warner Music Group, Mr. Robinson was a partner in the New York City law firm Mayer, Katz, Baker, Leibowitz & Roberts. Mr. Robinson has a B.A. in English from Williams College and a J.D. from Fordham University School of Law.
Will Tanous, 41, has served as our Executive Vice President and Chief Communications Officer since May 2008. He was previously Warner Music Group’s Senior Vice President, Corporate Communications and has held various positions at Warner Music Group since joining the company in 1993. Prior to joining Warner Music Group, Mr. Tanous held positions at Warner Music International and Geffen Records. He also served as president of two independent record labels. Mr. Tanous holds a B.A. from Georgetown University.
WHERE YOU CAN FIND MORE INFORMATION
We are required to file annual, quarterly and current reports, proxy statements and other information with the Securities and Exchange Commission. Unless otherwise stated herein, these filings are not deemed to be incorporated by reference in this report. You may read and copy any documents filed by us at the Public Reference Section of the SEC, 100 F Street, N.E., Washington, D.C. 20549. You may obtain information on the operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330. Our filings with the SEC are also available to the public through the SEC’s website at http://www.sec.gov. Warner Music Group Corp (“Parent”), our parent company, has common stock listed on the NYSE under the symbol “WMG”. You can inspect and copy reports, proxy statements and other information about us and Parent at the NYSE’s offices at 20 Broad Street, New York, New York 10005. We also maintain an Internet site at www.wmg.com. We use our website as a channel of distribution of material company information. Financial and other material information regarding Warner Music Group is routinely posted on and accessible at http://investors.wmg.com. In addition, you may automatically receive email alerts and other information about Warner Music Group by enrolling your email by visiting the “email alerts” section at http://investors.wmg.com. We make available on our Internet website free of charge our annual reports on Form 10-K, quarterly reports on Form 10-Q and current reports on Form 8-K and any amendments to those reports as soon as practicable after we electronically file such reports with the SEC. In addition, copies of our (i) Corporate Governance Guidelines, (ii) charters for the Audit Committee, Compensation Committee and Executive, Nominating and Corporate Governance Committee and (iii) Code of Conduct which is applicable for all or our employees including our principal executive, financial and accounting officers, are available at our Internet site under “Investor Relations—Corporate Governance.” Copies will be provided to any stockholder upon written request to Investor Relations, 75 Rockefeller Plaza, New York, New York 10019, via electronic mail at Investor.Relations@wmg.com or by contacting Investor Relations at (212) 275-2000. Our website and the information posted on it or connected to it shall not be deemed to be incorporated by reference into this report.
| ITEM 1A. | RISK FACTORS |
You should carefully consider the following risks and other information in this report before making an investment decision with respect to shares of Parent’s common stock or any of our other securities. The risks and uncertainties described below may not be the only ones facing us. Additional risks and uncertainties that we do not currently know about or that we currently believe are immaterial may also adversely impact our business operations. If any of the following risks actually occur, our business, financial condition or results of operations would likely suffer. In such case, the trading price of Parent’s common stock or other securities could fall, and you may lose all or part of the money you paid to buy such securities.
Risks Related to our Business
The recorded music industry has been declining and may continue to decline, which may adversely affect our prospects and our results of operations.
The industry began experiencing negative growth rates in 1999 on a global basis and the worldwide recorded music market has contracted considerably. Illegal downloading of music, CD-R piracy, industrial piracy, economic recession, bankruptcies of record wholesalers and retailers, and growing competition for consumer discretionary spending and retail shelf space may all be contributing to a declining recorded music industry. Additionally, the period of growth in recorded music sales driven by the introduction and penetration of the CD format has ended. While CD sales still generate most of the recorded music revenues, CD sales continue to decline industry-wide and we expect that trend to continue. However, new formats for selling recorded music product have been created, including the legal downloading of digital music and the distribution of music on mobile devices and revenue streams from these new channels have emerged. These new digital revenue streams are important as they are beginning to offset declines in physical sales and represent a growing area of our recorded music business. In addition, we are also taking steps to broaden our revenue mix into growing areas of the music business, including sponsorship, fan clubs, artist websites, merchandising, touring, ticketing and artist management. As our expansion into these new areas is recent, we cannot determine how our expansion into these new areas will impact our business. Despite the increase in digital sales, artist services revenues and expanded-rights revenues, revenues from these
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sources have yet to fully offset declining physical sales on a worldwide industry basis and it is too soon to determine the impact that sales of music through new channels might have on the industry or when the decline in physical sales might be offset by the increase in digital sales, artist services revenues and expanded-rights revenues. Accordingly, the recorded music industry performance may continue to negatively impact our operating results. While it is believed within the recorded music industry that growth in digital sales will re-establish a growth pattern for recorded music sales, the timing of the recovery cannot be established with accuracy nor can it be determined how these changes will affect individual markets. A declining recorded music industry is likely to lead to reduced levels of revenue and operating income generated by our Recorded Music business. Additionally, a declining recorded music industry is also likely to have a negative impact on our Music Publishing business, which generates a significant portion of its revenues from mechanical royalties attributable to the sale of music in CD and other physical recorded music formats.
There may be downward pressure on our pricing and our profit margins and reductions in shelf space.
There are a variety of factors that could cause us to reduce our prices and reduce our profit margins. They are, among others, price competition from the sale of motion pictures in Blu-Ray/DVD-Video format and videogames, the negotiating leverage of mass merchandisers, big-box retailers and distributors of digital music, the increased costs of doing business with mass merchandisers and big-box retailers as a result of complying with operating procedures that are unique to their needs and any changes in costs associated with new digital formats. In addition, we are currently dependent on a small number of leading online music stores, which allows them to significantly influence the prices we can charge in connection with the distribution of digital music. Over the course of the last decade, U.S. mass-market and other stores’ share of U.S physical music sales has continued to grow. While we cannot predict how future competition will impact music retailers, as the music industry continues to transform it is possible that the share of music sales by mass-market retailers such as Wal-Mart and Target and online music stores such as Apple’s iTunes will continue to grow as a result of the decline of specialty music retailers, which could further increase their negotiating leverage. Several large specialty music retailers, including Tower Records and Musicland, have filed for bankruptcy protection. The declining number of specialty music retailers may not only put pressure on profit margins, but could also impact catalog sales as mass-market retailers generally sell top chart albums only, with a limited range of back catalog. See “Risk Factors—We are substantially dependent on a limited number of online music stores, in particular Apple’s iTunes Music Store, for the online sale of our music recordings and they are able to significantly influence the pricing structure for online music stores.”
Our prospects and financial results may be adversely affected if we fail to identify, sign and retain artists and songwriters and by the existence or absence of superstar releases and by local economic conditions in the countries in which we operate.
We are dependent on identifying, signing and retaining recording artists with long-term potential, whose debut albums are well received on release, whose subsequent albums are anticipated by consumers and whose music will continue to generate sales as part of our catalog for years to come. The competition among record companies for such talent is intense. Competition among record companies to sell records is also intense and the marketing expenditures necessary to compete have increased as well. We are also dependent on signing and retaining songwriters who will write the hit songs of today and the classics of tomorrow. Our competitive position is dependent on our continuing ability to attract and develop artists whose work can achieve a high degree of public acceptance. Our financial results may be adversely affected if we are unable to identify, sign and retain such artists under terms that are economically attractive to us. Our financial results may also be affected by the existence or absence of superstar artist releases during a particular period. Some music industry observers believe that the number of superstar acts with long-term appeal, both in terms of catalog sales and future releases, has declined in recent years. Additionally, our financial results are generally affected by the worldwide economic and retail environment, as well as the appeal of our Recorded Music catalog and our Music Publishing library.
We may have difficulty addressing the threats to our business associated with home copying and Internet downloading.
The combined effect of the decreasing cost of electronic and computer equipment and related technology such as CD burners and the conversion of music into digital formats have made it easier for consumers to obtain and create unauthorized copies of our recordings in the form of, for example, “burned” CDs and MP3 files. For example, about 95% of the music downloaded in 2008, or more than 40 billion files, were illegal and not paid for, according to the IFPI 2009 Digital Music Report. IFPI also reported in its Recording Industry in Numbers 2010 publication that peer-to-peer (P2P) file-sharing accounts for more than 20% of Internet traffic globally. In addition, while growth of music-enabled mobile consumers offers distinct opportunities for music companies such as ours, it also opens the market up to certain risks from behaviors such as “sideloading” of unauthorized content and illegitimate user-created ringtones. A substantial portion of our revenue comes from the sale of audio products that are potentially subject to unauthorized consumer copying and widespread digital dissemination without an economic return to us. The impact of digital piracy on legitimate music sales is hard to quantify but we believe that illegal file-sharing has a substantial negative impact on music sales. We are working to control this problem in a variety of ways including further litigation, by lobbying governments for new, stronger copyright protection laws and more stringent enforcement of current laws, through graduated response programs achieved through cooperation with ISPs and legislation being advanced or considered in many countries, through technological measures and by establishing legitimate new media business models. We cannot give any assurances that such measures will be effective. If we fail to obtain appropriate relief through the judicial process or the complete enforcement of judicial decisions issued in our favor (or if judicial decisions are not in our favor), if we are unsuccessful in our efforts to lobby governments to enact and enforce stronger legal penalties
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for copyright infringement or if we fail to develop effective means of protecting our intellectual property (whether copyrights or other rights such as patents, trademarks and trade secrets) or our entertainment-related products or services, our results of operations, financial position and prospects may suffer.
Organized industrial piracy may lead to decreased sales.
The global organized commercial pirate trade is a significant threat to the music industry. The IIPA estimates that U.S. trade losses due to physical piracy of records and music in 39 key countries/territories around the world with copyright protection and/or enforcement deficiencies totaled $1.5 billion in 2009. Unauthorized copies and piracy have contributed to the decrease in the volume of legitimate sales and put pressure on the price of legitimate sales. They have had, and may continue to have, an adverse effect on our business.
Legitimate channels for digital distribution of our creative content are a recent development, and their impact on our business is unclear and may be adverse.
We have positioned ourselves to take advantage of online and mobile technology as a sales distribution channel and believe that the continued development of legitimate channels for digital music distribution holds promise for us in the future. Digital revenue streams of all kinds are important to offset continued declining revenue from physical CD sales industry-wide over time. However, legitimate channels for digital distribution are a recent development and we cannot predict their impact on our business. In digital formats, certain costs associated with physical products such as manufacturing, distribution, inventory and return costs do not apply. Partially eroding that benefit are increases in mechanical copyright royalties payable to music publishers that only apply in the digital space. While there are some digital-specific variable costs and infrastructure investments necessary to produce, market and sell music in digital formats, we believe it is reasonable to expect that we will generally derive a higher contribution margin from digital sales than physical sales. However, we cannot be sure that we will generally continue to achieve higher margins from digital sales. Any legitimate digital distribution channel that does develop may result in lower or less profitable sales for us than comparable physical sales. In addition, the transition to greater sales through digital channels introduces uncertainty regarding the potential impact of the “unbundling” of the album on our business. It remains unclear how consumer behavior will continue to change when customers are faced with more opportunities to purchase only favorite tracks from a given album rather than the entire album. In addition, if piracy continues unabated and legitimate digital distribution channels fail to gain consumer acceptance, our results of operations could be harmed. Furthermore, as new distribution channels continue to develop, we may have to implement systems to process royalties on new revenue streams for potential future distribution channels that are not currently known. These new distribution channels could also result in increases in the number of transactions that we need to process. If we are not able to successfully expand our processing capability or introduce technology to allow us to determine and pay royalty amounts due on these new types of transactions in a timely manner, we may experience processing delays or reduced accuracy as we increase the volume of our digital sales, which could have a negative effect on our relationships with artists and brand identity.
We are substantially dependent on a limited number of online music stores, in particular Apple’s iTunes Music Store, for the online sale of our music recordings and they are able to significantly influence the pricing structure for online music stores.
We derive an increasing portion of our revenues from sales of music through digital distribution channels. We are currently dependent on a small number of leading online music stores that sell consumers digital music. Currently, the largest U.S. online music store, iTunes, charges U.S. consumers prices ranging from $0.69 to $1.29 per single-track download. We have limited ability to increase our wholesale prices to digital service providers for digital downloads as we believe Apple’s iTunes controls more than two-thirds of the legitimate digital music track download business in the U.S. If iTunes were to adopt a lower pricing model or if there were structural change to other download pricing models, we may receive substantially less per download for our music, which could cause a material reduction in our revenues, unless it is offset by a corresponding increase in the number of downloads. Additionally, Apple’s iTunes and other online music stores at present accept and make available for sale all the recordings that we and other distributors deliver to them. However, if online stores in the future decide to limit the types or amount of music they will accept from music content owners like us, our revenues could be significantly reduced.
Our involvement in intellectual property litigation could adversely affect our business.
Our business is highly dependent upon intellectual property, an area that has encountered increased litigation in recent years. If we are alleged to infringe the intellectual property rights of a third party, any litigation to defend the claim could be costly and would divert the time and resources of management, regardless of the merits of the claim. There can be no assurance that we would prevail in any such litigation. If we were to lose a litigation relating to intellectual property, we could be forced to pay monetary damages and to cease the sale of certain products or the use of certain technology. Any of the foregoing may adversely affect our business.
Due to the nature of our business, our results of operations and cash flows may fluctuate significantly from period to period.
Our net sales, operating income and profitability, like those of other companies in the music business, are largely affected by the number and quality of albums that we release or that include musical compositions published by us, timing of our release schedule
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and, more importantly, the consumer demand for these releases. We also make advance payments to recording artists and songwriters, which impact our operating cash flows. The timing of album releases and advance payments is largely based on business and other considerations and is made without regard to the impact of the timing of the release on our financial results. We report results of operations quarterly and our results of operations and cash flows in any reporting period may be materially affected by the timing of releases and advance payments, which may result in significant fluctuations from period to period.
We may be unable to compete successfully in the highly competitive markets in which we operate and we may suffer reduced profits as a result.
The industry in which we operate is highly competitive, is based on consumer preferences and is rapidly changing. Additionally, the music industry requires substantial human and capital resources. We compete with other recorded music companies and music publishers to identify and sign new recording artists and songwriters who subsequently achieve long-term success and to renew agreements with established artists and songwriters. In addition, our competitors may from time to time reduce their prices in an effort to expand market share and introduce new services, or improve the quality of their products or services. We may lose business if we are unable to sign successful recording artists or songwriters or to match the prices or the quality of products and services, offered by our competitors. Our Recorded Music business competes not only with other recorded music companies, but also with the recorded music efforts of live events companies and artists who may chose to distribute their own works. Our Music Publishing business competes not only with other music publishing companies, but also with songwriters who publish their own works. Our Recorded Music business is to a large extent dependent on technological developments, including access to and selection and viability of new technologies, and is subject to potential pressure from competitors as a result of their technological developments. For example, our Recorded Music business may be further adversely affected by technological developments that facilitate the piracy of music, such as Internet peer-to-peer file-sharing and CD-R activity, by an inability to enforce our intellectual property rights in digital environments and by a failure to develop successful business models applicable to a digital environment. The Recorded Music business also faces competition from other forms of entertainment and leisure activities, such as cable and satellite television, pre-recorded films on videocassettes and DVD, the Internet and computer and videogames.
Our business operations in some countries subject us to trends, developments or other events in foreign countries which may affect us adversely.
We are a global company with strong local presences, which have become increasingly important as the popularity of music originating from a country’s own language and culture has increased in recent years. Our mix of national and international recording artists and songwriters provides a significant degree of diversification for our music portfolio. However, our creative content does not necessarily enjoy universal appeal. As a result, our results can be affected not only by general industry trends, but also by trends, developments or other events in individual countries, including:
| • | limited legal protection and enforcement of intellectual property rights; |
| • | restrictions on the repatriation of capital; |
| • | fluctuations in interest and foreign exchange rates; |
| • | differences and unexpected changes in regulatory environment, including environmental, health and safety, local planning, zoning and labor laws, rules and regulations; |
| • | varying tax regimes which could adversely affect our results of operations or cash flows, including regulations relating to transfer pricing and withholding taxes on remittances and other payments by subsidiaries and joint ventures; |
| • | exposure to different legal standards and enforcement mechanisms and the associated cost of compliance; |
| • | difficulties in attracting and retaining qualified management and employees or rationalizing our workforce; |
| • | tariffs, duties, export controls and other trade barriers; |
| • | longer accounts receivable settlement cycles and difficulties in collecting accounts receivable; |
| • | recessionary trends, inflation and instability of the financial markets; |
| • | higher interest rates; and |
| • | political instability. |
We may not be able to insure or hedge against these risks, and we may not be able to ensure compliance with all of the applicable regulations without incurring additional costs. Furthermore, financing may not be available in countries with less than investment-grade sovereign credit ratings. As a result, it may be difficult to create or maintain profit-making operations in developing countries.
In addition, our results can be affected by trends, developments and other events in individual countries. There can be no assurance that in the future other country-specific trends, developments or other events will not have such a significant adverse effect
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on our business, results of operations or financial condition. Unfavorable conditions can depress sales in any given market and prompt promotional or other actions that affect our margins.
Our business may be adversely affected by competitive market conditions and we may not be able to execute our business strategy.
We intend to increase revenues and cash flow through a business strategy which requires us, among other things, to continue to maximize the value of our music assets, to significantly reduce costs to maximize flexibility and adjust to new realities of the market, to continue to act to contain digital piracy and to diversify our revenue streams into growing segments of the music business by entering into expanded-rights deals with recording artists and by operating our artist services businesses and to capitalize on digital distribution and emerging technologies.
Each of these initiatives requires sustained management focus, organization and coordination over significant periods of time. Each of these initiatives also requires success in building relationships with third parties and in anticipating and keeping up with technological developments and consumer preferences and may involve the implementation of new business models or distribution platforms. The results of our strategy and the success of our implementation of this strategy will not be known for some time in the future. If we are unable to implement our strategy successfully or properly react to changes in market conditions, our financial condition, results of operations and cash flows could be adversely affected.
Our ability to operate effectively could be impaired if we fail to attract and retain our executive officers.
Our success depends, in part, upon the continuing contributions of our executive officers many of whom have been with us since our acquisition from Time Warner in 2004. Although we have employment agreements with our executive officers, there is no guarantee that they will not leave. The loss of the services of any of our executive officers or the failure to attract other executive officers could have a material adverse effect on our business or our business prospects.
A significant portion of our Music Publishing revenues is subject to rate regulation either by government entities or by local third-party collection societies throughout the world and rates on other income streams may be set by arbitration proceedings, which may limit our profitability.
Mechanical royalties and performance royalties are the two largest sources of income to our Music Publishing business and mechanical royalties are a significant expense to our Recorded Music business. In the U.S., mechanical rates are set pursuant to an arbitration process under the U.S. Copyright Act unless rates are determined through voluntary industry negotiations and performance rates are set by performing rights societies and subject to challenge by performing rights licensees. Outside the U.S., mechanical and performance rates are typically negotiated on an industry-wide basis. The mechanical and performance rates set pursuant to such processes may adversely affect us by limiting our ability to increase the profitability of our Music Publishing business. If the mechanical rates are set too high it may also adversely affect us by limiting our ability to increase the profitability of our Recorded Music business. In addition, rates our Recorded Music business receives in the U.S. for, among other sources of income and potential income, webcasting and satellite radio are set by an arbitration process under the U.S. Copyright Act unless rates are determined through voluntary industry negotiations. It is important as sales shift from physical to diversified distribution channels that we receive fair value for all of the uses of our intellectual property as our business model now depends upon multiple revenue streams from multiple sources. If the rates for Recorded Music income sources that are established through legally prescribed rate-setting processes are set too low, it could have a material adverse impact on our Recorded Music business or our business prospects.
An impairment in the carrying value of goodwill or other intangible and long-lived assets could negatively affect our operating results and shareholder’s equity.
On September 30, 2010, we had $1.057 billion of goodwill and $100 million of indefinite-lived intangible assets. Financial Accounting Standards Codification (“ASC”) Topic 350, Intangibles—Goodwill and other (“ASC 350”) requires that we test these assets for impairment annually (or more frequently should indications of impairment arise) by estimating the fair value of each of our reporting units (calculated using a discounted cash flow method) and comparing that value to the reporting units’ carrying value. If the carrying value exceeds the fair value, there is a potential impairment and additional testing must be performed. In performing our annual tests and determining whether indications of impairment exist, we consider numerous factors including actual and projected operating results of each reporting unit, external market factors such as market prices for similar assets, the market capitalization of our stock, and trends in the music industry. We tested our goodwill and other indefinite-lived intangible assets for impairment in the fourth quarter of fiscal 2010 and concluded that such assets were not impaired. We continue to believe that conclusion is appropriate. However, future events may occur that could adversely affect the estimated fair value of our reporting units. Such events may include, but are not limited to, strategic decisions made in response to changes in economic and competitive conditions and the impact of the economic environment on our operating results. Failure to achieve sufficient levels of cash flow at our reporting units could also result in impairment charges on goodwill and indefinite-lived intangible assets. If the value of the acquired goodwill or acquired indefinite-lived intangible assets is impaired, our operating results and shareholder’s deficit could be adversely affected.
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We also had $1.119 billion of definite-lived intangible assets at September 30, 2010. FASB ASC Topic 360-10-35, (“ASC 360-10-35”) requires companies to review these assets for impairment whenever events or changes in circumstances indicate that the carrying amounts may not be recoverable. If similar events occur as enumerated above such that we believe indicators of impairment are present, we would test for recoverability by comparing the carrying value of the asset to the net undiscounted cash flows expected to be generated from the asset. If those net undiscounted cash flows do not exceed the carrying amount, we would perform the next step, which is to determine the fair value of the asset, which could result in an impairment charge. Any impairment charge recorded would negatively affect our operating results and shareholder’s deficit.
Unfavorable currency exchange rate fluctuations could adversely affect our results of operations.
The reporting currency for our financial statements is the U.S. dollar. We have substantial assets, liabilities, revenues and costs denominated in currencies other than U.S. dollars. To prepare our consolidated financial statements, we must translate those assets, liabilities, revenues and expenses into U.S. dollars at then-applicable exchange rates. Consequently, increases and decreases in the value of the U.S. dollar versus other currencies will affect the amount of these items in our consolidated financial statements, even if their value has not changed in their original currency. These translations could result in significant changes to our results of operations from period to period. Prior to intersegment eliminations, approximately 58% of our revenues related to operations in foreign territories for the fiscal year ended September 30, 2010. From time to time, we enter into foreign exchange contracts to hedge the risk of unfavorable foreign currency exchange rate movements. As of September 30, 2010, we have hedged a portion of our material foreign currency exposures related to royalty payments remitted between our foreign affiliates and our U.S. affiliates for the next fiscal year.
We may not have full control and ability to direct the operations we conduct through joint ventures.
We currently have interests in a number of joint ventures and may in the future enter into further joint ventures as a means of conducting our business. In addition, we structure certain of our relationships with recording artists and songwriters as joint ventures. We may not be able to fully control the operations and the assets of our joint ventures, and we may not be able to make major decisions or may not be able to take timely actions with respect to our joint ventures unless our joint venture partners agree.
The enactment of legislation limiting the terms by which an individual can be bound under a “personal services” contract could impair our ability to retain the services of key artists.
California Labor Code Section 2855 (“Section 2855”) limits the duration of time any individual can be bound under a contract for “personal services” to a maximum of seven years. In 1987, Subsection (b) was added, which provides a limited exception to Section 2855 for recording contracts, creating a damages remedy for record companies. Legislation was introduced in New York in 2009 to create a statute similar to Section 2855 to limit contracts between artists and record companies to a term of seven years which term may be reduced to three years if the artist was not represented in the negotiation and execution of such contracts by qualified counsel experienced with entertainment industry law and practices, potentially affecting the duration of artist contracts. There is no assurance that California will not introduce legislation in the future seeking to repeal Subsection (b). The repeal of Subsection (b) of Section 2855 and/or the passage of legislation similar to Section 2855 by other states could materially affect our results of operations and financial position.
We face a potential loss of catalog if it is determined that recording artists have a right to recapture rights in their recordings under the U.S. Copyright Act.
The U.S. Copyright Act provides authors (or their heirs) a right to terminate U.S. licenses or assignments of rights in their copyrighted works. This right does not apply to works that are “works made for hire.” Since the effective date of U.S. copyright liability for sound recordings (February 15, 1972), virtually all of our agreements with recording artists provide that such recording artists render services under an employment-for-hire relationship. A termination right exists under the U.S. Copyright Act for U.S. rights in musical compositions that are not “works made for hire.” If any of our commercially available sound recordings were determined not to be “works made for hire,” then the recording artists (or their heirs) could have the right to terminate the U.S. rights they granted to us, generally during a five-year period starting at the end of 35 years from the date of a post-1977 license or assignment (or, in the case of a pre-1978 grant in a pre-1978 recording, generally during a five-year period starting either at the end of 56 years from the date of copyright or on January 1, 1978, whichever is later). A termination of U.S. rights could have an adverse effect on our Recorded Music business. From time to time, authors (or their heirs) can terminate our U.S. rights in musical compositions. However, we believe the effect of those terminations is already reflected in the financial results of our Music Publishing business.
If we acquire or invest in other businesses, we will face certain risks inherent in such transactions.
We may acquire, make investments in, or enter into strategic alliances or joint ventures with, companies engaged in businesses that are similar or complementary to ours. If we make such acquisitions or investments or enter into strategic alliances, we will face
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certain risks inherent in such transactions. For example, gaining regulatory approval for significant acquisitions or investments could be a lengthy process and there can be no assurance of a successful outcome and we could increase our leverage in connection with acquisitions or investments. We could face difficulties in managing and integrating newly acquired operations. Additionally, such transactions would divert management resources and may result in the loss of recording artists or songwriters from our rosters. If we invest in companies involved in new businesses or develop our own new business opportunities, we will need to integrate and effectively manage these new businesses before any new line of business can become successful, and as such the progress and success of any new business is uncertain. In addition, investments in new business may result in an increase in capital expenditures to build infrastructure to support our new initiatives. We cannot assure you that if we make any future acquisitions, investments, strategic alliances or joint ventures that they will be completed in a timely manner, that they will be structured or financed in a way that will enhance our credit-worthiness or that they will meet our strategic objectives or otherwise be successful. We also may not be successful in implementing appropriate operational, financial and management systems and controls to achieve the benefits expected to result from these transactions. Failure to effectively manage any of these transactions could result in material increases in costs or reductions in expected revenues, or both. In addition, if any new business in which we invest or which we attempt to develop does not progress as planned, we may not recover the funds and resources we have expended and this could have a negative impact on our businesses or our company as a whole.
We have engaged in substantial restructuring activities in the past, and may need to implement further restructurings in the future and our restructuring efforts may not be successful or generate expected cost savings.
The recorded music industry continues to undergo substantial change. These changes continue to have a substantial impact on our business. See “The recorded music industry has been declining and may continue to decline, which may adversely affect our prospects and our results of operations.” Following the Acquisition, we implemented a broad restructuring plan in order to adapt our cost structure to the changing economics of the music industry. We continue to shift resources from our physical sales channels to efforts focused on digital distribution, emerging technologies and other new revenue streams. In addition, in order to help mitigate the effects of the recorded music transition, we continue our efforts to reduce overhead and manage our variable and fixed cost structure to minimize any impact.
We cannot be certain that we will not be required to implement further restructuring activities, make additions or other changes to our management or workforce based on other cost reduction measures or changes in the markets and industry in which we compete. Our inability to structure our operations based on evolving market conditions could impact our business. Restructuring activities can create unanticipated consequences and negative impacts on the business, and we cannot be sure that any future restructuring efforts will be successful and generate expected cost savings.
We are outsourcing our information technology infrastructure and certain finance and accounting functions and may outsource other back-office functions, which will make us more dependent upon third parties.
In an effort to make our information technology, or IT, more efficient and increase our IT capabilities and reduce potential disruptions, as well as generate cost savings, we signed a contract during the first quarter of fiscal 2009 with a third-party service provider to outsource a significant portion of our IT infrastructure functions. This outsourcing initiative is a component of our ongoing strategy to monitor our costs and to seek additional cost savings. We incurred both transition costs and one-time employee termination costs during fiscal 2009 associated with this outsourcing initiative. As a result, we rely on third parties to ensure that our IT needs are sufficiently met. This reliance subjects us to risks arising from the loss of control over IT processes, changes in pricing that may affect our operating results, and potentially, termination of provisions of these services by our supplier. In addition, in an effort to make our finance and accounting functions more efficient, as well as generate cost savings, we signed a contract during the third quarter of fiscal 2009 with a third-party service provider to outsource certain finance and accounting functions. A failure of our service providers to perform may have a significant adverse effect on our business. We may outsource other back-office functions in the future, which would increase our reliance on third parties.
Changes to our information technology infrastructure to harmonize our systems and processes may fail to operate as designed and intended.
We regularly implement business process improvement initiatives to harmonize our systems and processes and to optimize our performance. Our current business process initiatives include, but are not limited to, the delivery of a SAP enterprise resource planning application in the U.S. for fiscal 2011. While we will experience changes in internal controls over financial reporting in fiscal 2011 as the implementation occurs, we expect to be able to transition to the new processes and controls with no negative impact to our internal control environment. If we fail to effectively implement the SAP application or if the SAP application fails to operate as designed and intended, it may impact our ability to process transactions accurately and efficiently.
We are controlled by entities that may have conflicts of interest with us.
THL, Bain Capital and Providence Equity (collectively, the “Current Investor Group”) control a majority of the common stock of Parent on a fully diluted basis. In addition, representatives of the Current Investor Group occupy substantially all of the seats on the
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Board of Directors of Parent and pursuant to a stockholders agreement, have the right to appoint all of the independent directors to Parent’s board. As a result, the Current Investor Group has the ability to control our policies and operations, including the appointment of management, the entering into of mergers, acquisitions, sales of assets, divestitures and other extraordinary transactions, future issuances of Parent’s common stock or other securities, the payments of dividends, if any, on our or Parent’s common stock, the incurrence of debt by us and the amendment of our certificate of incorporation and Bylaws. The Current Investor Group has the ability to prevent any transaction that requires the approval of our Board of Directors or the stockholders regardless of whether or not other members of our Board of Directors or stockholders believe that any such transaction is in their own best interests. For example, the Current Investor Group could cause us to make acquisitions that increase our indebtedness or to sell revenue-generating assets. Additionally, the Current Investor Group is in the business of making investments in companies and may from time to time acquire and hold interests in businesses that compete directly or indirectly with us. The Current Investor Group may also pursue acquisition opportunities that may be complementary to our business, and, as a result, those acquisition opportunities may not be available to us. So long as the Current Investor Group continues to hold a majority of the outstanding common stock of Parent, they will be entitled to nominate a majority of Parent’s Board of Directors, and will have the ability to effectively control the vote in any election of directors. In addition, so long as the Current Investor Group continues to own a significant amount of Parent’s equity, even if such amount is less than 50%, they will continue to be able to strongly influence or effectively control our decisions.
Our reliance on one company as the primary supplier for the manufacturing, packaging and physical distribution of our products in the U.S. and Canada and part of Europe could have an adverse impact on our ability to meet our manufacturing, packaging and physical distribution requirements.
We have recently renewed our agreements with Cinram. On November 16, 2010, we entered into a series of new agreements with Cinram and its affiliates including an agreement with Cinram Manufacturing LLC (formerly Cinram Manufacturing Inc.), Cinram Distribution LLC and Cinram International Inc. for the United States and Canada and an agreement with Cinram International Inc., Cinram GmbH and Cinram Operations UK Limited for certain territories within the European Union. Both new agreements now expire on January 31, 2014. The terms of the new agreements remain substantially the same as the terms of the original 2003 agreements, as amended, but now provide us with the option to use third-party vendors for up to a certain percentage of the previous year’s volume provided by Cinram (and up to a higher percentage upon the occurrence of certain events). In addition, we have expanded termination rights. As Cinram continues to be our primary supplier of manufacturing and distribution services in the U.S., Canada and part of Europe, our continued ability to meet our manufacturing, packaging and physical distribution requirements in those territories depends largely on Cinram’s continued successful operation in accordance with the service level requirements mandated by us in our service agreements. If, for any reason, Cinram were to fail to meet contractually required service levels, or was unable to otherwise continue to provide services, we may have difficulty satisfying our commitments to our wholesale and retail customers in the short term until we more fully transitioned to an alternate provider, which could have an adverse impact on our revenues. Any inability of Cinram to continue to provide services due to financial distress, refinancing issues or otherwise could also require us to switch to substitute suppliers of these services for more services than currently planned. Even though our agreements with Cinram give us a right to terminate based upon failure to meet mandated service levels and now also permit us to use third-party vendors for a portion of our service requirements, and there are several capable substitute suppliers, it might be costly for us to switch to substitute suppliers for any such services, particularly in the short term, and the delay and transition time associated with finding substitute suppliers could also have an adverse impact on our revenues.
We may be materially and adversely affected by the formation of Live Nation Entertainment.
On February 10, 2009, Live Nation and Ticketmaster Entertainment announced a proposed merger to form Live Nation Entertainment. The Live Nation-Ticketmaster merger attracted intense scrutiny and was reviewed by the U.S. Department of Justice, several State Attorneys General (including New York, California, Illinois, Florida and Massachusetts) and the U.K., where it was referred to the Monopolies and Mergers Commission for a more detailed investigation. The proposed merger would combine the world’s largest online ticketing, concert promotion and management companies including Front Line Management. The combined entity would control venues, ticketing and ancillary revenues derived from concerts, and in some cases would act as a record label as part of the expanded-rights deals Live Nation has signed with several artists. On January 25, 2010, the U.S. Department of Justice cleared the merger but required the companies to make several concessions as a condition of their approval. We cannot predict what impact Live Nation Entertainment might have on us.
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Risks Related to our Leverage
Our substantial leverage on a consolidated basis could adversely affect our ability to raise additional capital to fund our operations, limit our ability to react to changes in the economy or our industry and prevent us from meeting our obligations under our indebtedness.
We are highly leveraged. As of September 30, 2010, our total consolidated indebtedness was $1.687 billion.
Our high degree of leverage could have important consequences for our investors, including:
| • | making it more difficult for us and our subsidiaries to make payments on indebtedness; |
| • | increasing our vulnerability to general economic and industry conditions; |
| • | requiring a substantial portion of cash flow from operations to be dedicated to the payment of principal and interest on indebtedness, therefore reducing our ability to use our cash flow to fund our operations, capital expenditures and future business opportunities; |
| • | limiting our ability and the ability of our subsidiaries to obtain additional financing for working capital, capital expenditures, product development, debt service requirements, acquisitions and general corporate or other purposes; and |
| • | limiting our ability to adjust to changing market conditions and placing us at a competitive disadvantage compared to our competitors who are less highly leveraged. |
We and our subsidiaries may be able to incur substantial additional indebtedness in the future, subject to the restrictions contained in our indentures relating to our outstanding notes. If new indebtedness is added to our current debt levels, the related risks that we and our subsidiaries now face could intensify.
We may not be able to generate sufficient cash to service all of our indebtedness, and may be forced to take other actions to satisfy our obligations under our indebtedness, which may not be successful.
Our ability to make scheduled payments on or to refinance our debt obligations depends on our financial condition and operating performance, which is subject to prevailing economic and competitive conditions and to certain financial, business and other factors beyond our control. We may not maintain a level of cash flows from operating activities sufficient to permit us to pay the principal, premium, if any, and interest on our indebtedness.
While Parent currently has sufficient cash to make scheduled interest payments, in the future WMG Holdings Corp., our immediate parent company, also may rely on us and our subsidiaries to make payments on its borrowings. If we do not dividend funds to Holdings in an amount sufficient to make such payments, if necessary in the future, Holdings may default under the indenture governing its borrowings, which would result in all such notes becoming due and payable. Because our debt agreements have covenants that limit our ability to make payments to Holdings, Holdings may not have access to funds in an amount sufficient to service its indebtedness.
Our debt agreements contain restrictions that limit our flexibility in operating our business.
The indentures governing our outstanding notes contain various covenants that limit our ability to engage in specified types of transactions. These covenants limit our ability, Holdings’ ability and the ability of our restricted subsidiaries to, among other things:
| • | incur additional indebtedness or issue certain preferred shares; |
| • | pay dividends on or make distributions in respect of Parent’s common stock or make other restricted payments; |
| • | make certain investments; |
| • | sell certain assets; |
| • | create liens on certain indebtedness without in certain cases securing the applicable indebtedness; |
| • | consolidate, merge, sell or otherwise dispose of all or substantially all of our assets; |
| • | enter into certain transactions with our affiliates; and |
| • | designate our subsidiaries as unrestricted subsidiaries. |
All of these restrictions could affect our ability to operate our business or may limit our ability to take advantage of potential business opportunities as they arise.
If our cash flows and capital resources are insufficient to fund our debt service obligations, we may be forced to reduce or delay investments in recording artists and songwriters, capital expenditures or dividends, or to sell assets, seek additional capital or restructure or refinance our indebtedness. These alternative measures may not be successful and may not permit us to meet our scheduled debt service obligations. In the absence of such operating results and resources, we could face substantial liquidity problems
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and might be required to dispose of material assets or operations to meet our debt service and other obligations. The indentures governing our outstanding notes restrict our ability to dispose of assets and use the proceeds from dispositions. We may not be able to consummate those dispositions or to obtain the proceeds which we could realize from them and these proceeds may not be adequate to meet any debt service obligations then due.
A reduction in our credit ratings could impact our cost of capital.
Although reductions in our debt ratings may not have an immediate impact on the cost of debt or our liquidity, they may impact the cost of debt and liquidity over the medium term and future access at a reasonable rate to the debt markets may be adversely impacted.
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| ITEM 1B. | UNRESOLVED STAFF COMMENTS |
None.
| ITEM 2. | PROPERTIES |
We own studio and office facilities and also lease certain facilities in the ordinary course of business. Our executive offices are located at 75 Rockefeller Plaza, New York, NY 10019. We have a ten-year lease ending on July 31, 2014 for our headquarters at 75 Rockefeller Plaza, New York, New York 10019. We also have a long-term lease ending on December 31, 2019, for office space in a building located at 3400 West Olive Avenue, Burbank, California 91505, used primarily by our Recorded Music business, and another lease ending on June 30, 2012 for office space at 1290 Avenue of the Americas, New York, New York 10104, used primarily by our Recorded Music business. We also have a five-year lease ending on April 30, 2013 for office space at 10585 Santa Monica Boulevard, Los Angeles, California 90025, used primarily by our Music Publishing business. We consider our properties adequate for our current needs.
| ITEM 3. | LEGAL PROCEEDINGS |
Litigation
Pricing of Digital Music Downloads
On December 20, 2005 and February 3, 2006, the Attorney General of the State of New York served us with requests for information in connection with an industry-wide investigation as to whether the practices of industry participants concerning the pricing of digital music downloads violate Section 1 of the Sherman Act, New York State General Business Law §§ 340 et seq., New York Executive Law §63(12), and related statutes. On February 28, 2006, the Antitrust Division of the U.S. Department of Justice served us with a request for information in the form of a Civil Investigative Demand as to whether its activities relating to the pricing of digitally downloaded music violate Section 1 of the Sherman Act. Both investigations have now been closed. Subsequent to the announcements of the above governmental investigations, more than thirty putative class action lawsuits concerning the pricing of digital music downloads were filed and were later consolidated for pre-trial proceedings in the Southern District of New York. The consolidated amended complaint, filed on April 13, 2007, alleges conspiracy among record companies to delay the release of their content for digital distribution, inflate their pricing of CDs and fix prices for digital downloads. The complaint seeks unspecified compensatory, statutory and treble damages. All defendants, including us, filed a motion to dismiss the consolidated amended complaint on July 30, 2007. On October 9, 2008, the District Court issued an order dismissing the case as to all defendants, including us. On November 20, 2008, plaintiffs filed a Notice of Appeal from the order of the District Court to the Circuit Court for the Second Circuit. Oral argument took place before the Second Circuit Court of Appeals on September 21, 2009. On January 12, 2010, the Second Circuit vacated the judgment of the District Court and remanded the case for further proceedings. On January 27, 2010, all defendants, including us, filed a petition for rehearing en banc with the Second Circuit. On March 26, 2010, the Second Circuit denied the petition for rehearing en banc. On August 20, 2010, all defendants including us, filed a petition for Certiorari before the Supreme Court. Opposition to the petition is due on November 22, 2010. We intend to defend against these lawsuits vigorously, but are unable to predict the outcome of these suits. Any litigation we may become involved in as a result of the inquiries of the Attorney General of the State of New York and the Department of Justice, regardless of the merits of the claim, could be costly and divert the time and resources of management.
Other Matters
In addition to the matter discussed above, we are involved in other litigation arising in the normal course of business. Management does not believe that any legal proceedings pending against us will have, individually, or in the aggregate, a material adverse effect on its business. However, we cannot predict with certainty the outcome of any litigation or the potential for future litigation. Regardless of the outcome, litigation can have an adverse impact on our company, including our brand value, because of defense costs, diversion of management resources and other factors.
| ITEM 4. | (REMOVED AND RESERVED) |
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PART II
| ITEM 5. | MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES |
Warner Music Group Corp. currently indirectly owns 100% of our common stock.
Dividend Policy
We expect to continue to dividend funds to Holdings, in amounts sufficient to fund any debt servicing requirements, the payment of any future dividends on the common stock of Parent and any other working capital or other liquidity requirements of our parent companies as they arise.
Parent has disclosed that it has discontinued its previous policy of paying a regular quarterly dividend. Any future determination to pay dividends will be at the discretion of the Board of Directors of Parent and will depend on, among other things, its results of operations, cash requirements, financial condition, contractual restrictions and other factors the Board of Directors of Parent may deem relevant. We may be required to fund any future dividends through dividends to our parent companies. The ability of Parent to pay any future dividends would be dependent on our cash flows and operations.
The amounts available to us to pay any future cash dividends will be restricted by the indentures governing our outstanding notes, including the indenture governing our 9.5% Senior Secured Notes due 2016 and the indenture governing our 7.375% Senior Subordinated Dollar Notes due 2014 and 8.125% Senior Subordinated Sterling Notes due 2014. The amounts available to Parent to pay any future cash dividends will also be restricted by the indenture governing Holdings’ outstanding 9.5% Senior Discount Notes due 2014. The indentures governing our notes and the Holdings Notes limit our ability, the ability of Holdings and our respective subsidiaries to pay dividends to Parent. However, the indenture governing the Senior Secured Notes allows distributions not in excess of $90 million in any fiscal year, which could be applied to pay regular quarterly cash dividends to holders of Parent’s common stock. In addition, under such indentures, generally we or Holdings may pay dividends or make other restricted payments depending on a formula based on 50% of consolidated net income as defined in our indentures. Furthermore, we and Holdings may also make restricted payments of up to $50 million under the indenture governing the Senior Secured Notes, $45 million under the indenture governing the Senior Subordinated Notes and $75 million under the indenture governing the Holdings Notes. See “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Financial Condition and Liquidity—Liquidity.”
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| ITEM 6. | SELECTED FINANCIAL DATA |
Our summary balance sheet data as of September 30, 2010 and 2009, and the statement of operations and other data for each of fiscal years ended September 30, 2010, 2009 and 2008 have been derived from our audited financial statements included in this annual report on Form 10-K. Our summary statement of operations and other data for the fiscal years ended September 30, 2007 and 2006 have been derived from our audited financial statements that are not included in this annual report on Form 10-K. Our summary balance sheet data as of September 30, 2008, 2007 and 2006 were derived from our audited financial statements that are not included in this annual report on Form 10-K.
The following table sets forth our selected historical financial and other data as of the dates and for the fiscal years ended:
| September 30, 2006 |
September 30, 2007 |
September 30, 2008 |
September 30, 2009 |
September 30, 2010 |
||||||||||||||||
| Statement of Operations Data: |
||||||||||||||||||||
| Revenues |
$ | 3,516 | $ | 3,383 | $ | 3,506 | $ | 3,198 | $ | 2,984 | ||||||||||
| Net income (loss) attributable to WMG Acquisition Corp. |
75 | (6 | ) | (35 | ) | (77 | ) | (114 | ) | |||||||||||
| Balance Sheet Data (at period end): |
||||||||||||||||||||
| Cash and equivalents |
$ | 326 | $ | 259 | $ | 313 | $ | 196 | $ | 263 | ||||||||||
| Total assets |
4,461 | 4,496 | 4,425 | 3,875 | 3,604 | |||||||||||||||
| Total debt (including current portion of long-term debt) |
2,072 | 2,063 | 2,028 | 1,686 | 1,687 | |||||||||||||||
| WMG Acquisition Corp. equity (deficit) |
215 | 121 | 43 | (81 | ) | (174 | ) | |||||||||||||
| Cash Flow Data: |
||||||||||||||||||||
| Cash flows provided by (used in): |
||||||||||||||||||||
| Operating activities |
$ | 310 | $ | 299 | $ | 296 | $ | 237 | $ | 162 | ||||||||||
| Investing activities |
(128 | ) | (273 | ) | (167 | ) | 82 | (85 | ) | |||||||||||
| Financing activities |
(109 | ) | (106 | ) | (75 | ) | (436 | ) | (3 | ) | ||||||||||
| Capital expenditures |
(30 | ) | (29 | ) | (32 | ) | (27 | ) | (51 | ) | ||||||||||
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| ITEM 7. | MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS |
You should read the following discussion of our results of operations and financial condition with the audited financial statements included elsewhere in this Annual Report on Form 10-K for the fiscal year ended September 30, 2010 (the “Annual Report”).
“SAFE HARBOR” STATEMENT UNDER PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995
This Annual Report includes “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995, Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended. All statements other than statements of historical facts included in this Annual Report, including, without limitation, statements regarding our future financial position, business strategy, budgets, projected costs, cost savings, industry trends and plans and objectives of management for future operations, are forward-looking statements. In addition, forward-looking statements generally can be identified by the use of forward-looking terminology such as “may,” “will,” “expect,” “intend,” “estimate,” “anticipate,” “believe” or “continue” or the negative thereof or variations thereon or similar terminology. Such statements include, among others, statements regarding our ability to develop talent and attract future talent, our ability to reduce future capital expenditures, our ability to monetize our music content, including through new distribution channels and formats to capitalize on the growth areas of the music industry, our ability to effectively deploy our capital, the development of digital music and the effect of digital distribution channels on our business, including whether we will be able to achieve higher margins from digital sales, the success of strategic actions we are taking to accelerate our transformation as we redefine our role in the music industry, the effectiveness of our ongoing efforts to reduce overhead expenditures and manage our variable and fixed cost structure and our ability to generate expected cost savings from such efforts, our success in limiting piracy, our ability to compete in the highly competitive markets in which we operate, the growth of the music industry and the effect of our and the music industry’s efforts to combat piracy on the industry, our intention to pay dividends or repurchase our outstanding notes or common stock in open market purchases, privately or otherwise, our ability to fund our future capital needs and the effect of litigation on us. Although we believe that the expectations reflected in such forward-looking statements are reasonable, we can give no assurance that such expectations will prove to have been correct.
There are a number of risks and uncertainties that could cause our actual results to differ materially from the forward-looking statements contained in this Annual Report. Additionally, important factors could cause our actual results to differ materially from the forward-looking statements we make in this Annual Report. As stated elsewhere in this Annual Report, such risks, uncertainties and other important factors include, among others:
| • | the impact of our substantial leverage on our ability to raise additional capital to fund our operations, on our ability to react to changes in the economy or our industry and on our ability to meet our obligations under our indebtedness; |
| • | the continued decline in the global recorded music industry and the rate of overall decline in the music industry; |
| • | our ability to continue to identify, sign and retain desirable talent at manageable costs; |
| • | the threat posed to our business by piracy of music by means of home CD-R activity, Internet peer-to-peer file-sharing and sideloading of unauthorized content; |
| • | the significant threat posed to our business and the music industry by organized industrial piracy; |
| • | the popular demand for particular recording artists and/or songwriters and albums and the timely completion of albums by major recording artists and/or songwriters; |
| • | the diversity and quality of our portfolio of songwriters; |
| • | the diversity and quality of our album releases; |
| • | significant fluctuations in our results of operations and cash flows due to the nature of our business; |
| • | our involvement in intellectual property litigation; |
| • | the possible downward pressure on our pricing and profit margins; |
| • | our ability to continue to enforce our intellectual property rights in digital environments; |
| • | the ability to develop a successful business model applicable to a digital environment and to enter into expanded-rights deals with recording artists in order to broaden our revenue streams in growing segments of the music business; |
| • | the impact of heightened and intensive competition in the recorded music and music publishing businesses and our inability to execute our business strategy; |
| • | risks associated with our non-U.S. operations, including limited legal protections of our intellectual property rights and restrictions on the repatriation of capital; |
| • | the impact of legitimate music distribution on the Internet or the introduction of other new music distribution formats; |
| • | the reliance on a limited number of online music stores and their ability to significantly influence the pricing structure for online music stores; |
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| • | the impact of rate regulations on our Recorded Music and Music Publishing businesses; |
| • | the impact of rates on other income streams that may be set by arbitration proceedings on our business; |
| • | the impact an impairment in the carrying value of goodwill or other intangible and long-lived assets could have on our operating results and shareholder’s deficit; |
| • | risks associated with the fluctuations in foreign currency exchange rates; |
| • | our ability and the ability of our joint venture partners to operate our existing joint ventures satisfactorily; |
| • | the enactment of legislation limiting the terms by which an individual can be bound under a “personal services” contract; |
| • | potential loss of catalog if it is determined that recording artists have a right to recapture recordings under the U.S. Copyright Act; |
| • | changes in law and government regulations; |
| • | trends that affect the end uses of our musical compositions (which include uses in broadcast radio and television, film and advertising businesses); |
| • | the growth of other products that compete for the disposable income of consumers; |
| • | risks inherent in relying on one supplier for manufacturing, packaging and distribution services in North America and Europe; |
| • | risks inherent in our acquiring or investing in other businesses including our ability to successfully manage new businesses that we may acquire as we diversify revenue streams within the music industry; |
| • | the fact that we have engaged in substantial restructuring activities in the past, and may need to implement further restructurings in the future and our restructuring efforts may not be successful or generate expected cost savings; |
| • | the fact that we are outsourcing certain back-office functions, such as IT infrastructure and development and certain finance and accounting functions, which will make us more dependent upon third parties; |
| • | that changes to our information technology infrastructure to harmonize our systems and processes may fail to operate as designed and intended; |
| • | the possibility that our Investor Group’s interests will conflict with ours or yours; |
| • | failure to attract and retain key personnel; and |
| • | the effects associated with the formation of Live Nation Entertainment. |
There may be other factors not presently known to us or which we currently consider to be immaterial that may cause our actual results to differ materially from the forward-looking statements.
All forward-looking statements attributable to us or persons acting on our behalf apply only as of the date of this Annual Report and are expressly qualified in their entirety by the cautionary statements included in this Annual Report. We disclaim any duty to publicly update or revise forward-looking statements to reflect events or circumstances after the date made or to reflect the occurrence of unanticipated events.
INTRODUCTION
WMG Acquisition Corp. (the “Company”) is one of the world’s major music-based content companies and the successor to substantially all of the interests of the recorded music and music publishing businesses of Time Warner Inc. (“Time Warner”). Effective March 1, 2004, the Company acquired such interests from Time Warner for approximately $2.6 billion. The Company is a direct, wholly owned subsidiary of WMG Holdings Corp., which in turn, is a direct, wholly owned subsidiary of Warner Music Group Corp. (“Parent”). Parent, Holdings and the Company were formed by the Investor Group on November 21, 2003 to facilitate the Acquisition.
Parent and Holdings are holding companies that conduct substantially all of their business operations through their subsidiaries, including us. The terms “we,” “us,” “our,” “ours,” and the “Company” refer collectively to WMG Acquisition Corp. and its consolidated subsidiaries, except where otherwise indicated.
Management’s discussion and analysis of results of operations and financial condition (“MD&A”) is provided as a supplement to the audited financial statements and footnotes included elsewhere herein to help provide an understanding of our financial condition, changes in financial condition and results of our operations. MD&A is organized as follows:
| • | Overview. This section provides a general description of our business, as well as recent developments that we believe are important in understanding our results of operations and financial condition and in anticipating future trends. |
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| • | Results of operations. This section provides an analysis of our results of operations for the fiscal years ended September 30, 2010, 2009 and 2008. This analysis is presented on both a consolidated and segment basis. |
| • | Financial condition and liquidity. This section provides an analysis of our cash flows for the fiscal years ended September 30, 2010 and 2009, as well as a discussion of our financial condition and liquidity as of September 30, 2010. The discussion of our financial condition and liquidity includes (i) a summary of our debt agreements and (ii) a summary of the key debt compliance measures under our debt agreements. |
Use of OIBDA
We evaluate our operating performance based on several factors, including our primary financial measure of operating income (loss) before non-cash depreciation of tangible assets, non-cash amortization of intangible assets and non-cash impairment charges to reduce the carrying value of goodwill and intangible assets (which we refer to as “OIBDA”). We consider OIBDA to be an important indicator of the operational strengths and performance of our businesses, including the ability to provide cash flows to service debt. However, a limitation of the use of OIBDA as a performance measure is that it does not reflect the periodic costs of certain capitalized tangible and intangible assets used in generating revenues in our businesses. Accordingly, OIBDA should be considered in addition to, not as a substitute for, operating income, net income (loss) attributable to WMG Acquisition Corp. and other measures of financial performance reported in accordance with U.S. GAAP. In addition, our definition of OIBDA may differ from similarly titled measures used by other companies. A reconciliation of consolidated historical OIBDA to operating income and net income (loss) attributable to WMG Acquisition Corp. is provided in our “Results of Operations.”
Use of Constant Currency
As exchange rates are an important factor in understanding period to period comparisons, we believe the presentation of results on a constant-currency basis in addition to reported results helps improve the ability to understand our operating results and evaluate our performance in comparison to prior periods. Constant-currency information compares results between periods as if exchange rates had remained constant period over period. We use results on a constant-currency basis as one measure to evaluate our performance. We calculate constant currency by calculating prior-year results using current-year foreign currency exchange rates. We generally refer to such amounts calculated on a constant-currency basis as “excluding the impact of foreign currency exchange rates.” These results should be considered in addition to, not as a substitute for, results reported in accordance with U.S. GAAP. Results on a constant-currency basis, as we present them, may not be comparable to similarly titled measures used by other companies and are not a measure of performance presented in accordance with U.S. GAAP.
OVERVIEW
We are one of the world’s major music-based content companies. We classify our business interests into two fundamental operations: Recorded Music and Music Publishing. A brief description of each of those operations is presented below.
Recorded Music Operations
Our Recorded Music business primarily consists of the discovery and development of artists and the related marketing, distribution and licensing of recorded music produced by such artists.
We are also diversifying our revenues beyond our traditional businesses by entering into expanded-rights deals with recording artists in order to partner with artists in other areas of their careers. Under these agreements, we provide services to and participate in artists’ activities outside the traditional recorded music business. We have built artist services capabilities and platforms for exploiting this broader set of music-related rights and participating more broadly in the monetization of the artist brands we help create. In developing our artist services business, we have both built and expanded in-house capabilities and expertise and have acquired a number of existing artist services companies involved in artist management, merchandising, strategic marketing and brand management, ticketing, concert promotion, fan club, original programming and video entertainment. We believe that entering into expanded-rights deals and enhancing our artist services capabilities with respect to our artists and other artists will permit us to diversify revenue streams to better capitalize on the growth areas of the music industry and permit us to build stronger, long-term relationships with artists and more effectively connect artists and fans.
In the U.S., our Recorded Music operations are conducted principally through our major record labels—Warner Bros. Records and The Atlantic Records Group. Our Recorded Music operations also include Rhino, a division that specializes in marketing our music catalog through compilations and reissuances of previously released music and video titles, as well as in the licensing of recordings to and from third parties for various uses, including film and television soundtracks. Rhino has also become our primary licensing division focused on acquiring broader licensing rights from certain recording artists. For example, we have an exclusive license with The Grateful Dead to manage the band’s intellectual property and a 50% interest in Frank Sinatra Enterprises, an entity that administers licenses for use of Frank Sinatra’s name and likeness and manages all aspects of his music, film and stage content.
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We also conduct our Recorded Music operations through a collection of additional record labels, including, among others, Asylum, Cordless, East West, Elektra, Nonesuch, Reprise, Roadrunner, Rykodisc, Sire and Word.
Outside the U.S., our Recorded Music activities are conducted in more than 50 countries primarily through WMI and its various subsidiaries, affiliates and non-affiliated licensees. WMI engages in the same activities as our U.S. labels: discovering and signing artists and distributing, marketing and selling their recorded music. In most cases, WMI also markets and distributes the records of those artists for whom our U.S. record labels have international rights. In certain smaller markets, WMI licenses to unaffiliated third-party record labels the right to distribute its records. Our international artist services operations also include a network of concert promoters through which WMI provides resources to coordinate tours for our artists and other artists.
Our Recorded Music distribution operations include WEA Corp., which markets and sells music and DVD products to retailers and wholesale distributors in the U.S.; ADA, which distributes the products of independent labels to retail and wholesale distributors in the U.S.; various distribution centers and ventures operated internationally; an 80% interest in Word Entertainment, which specializes in the distribution of music products in the Christian retail marketplace; and ADA Global, which provides distribution services outside of the U.S. through a network of affiliated and non-affiliated distributors.
We play an integral role in virtually all aspects of the recorded music value chain from discovering and developing talent to producing albums and promoting artists and their products. After an artist has entered into a contract with one of our record labels, a master recording of the artist’s music is created. The recording is then replicated for sale to consumers primarily in the CD and digital formats. In the U.S., WEA Corp., ADA and Word market, sell and deliver product, either directly or through sub-distributors and wholesalers, to record stores, mass merchants and other retailers. Our recorded music products are also sold in physical form to online physical retailers such as Amazon.com, barnesandnoble.com and bestbuy.com and in digital form to online digital retailers like Apple’s iTunes and mobile full-track download stores such as those operated by Verizon or Sprint. In the case of expanded-rights deals where we acquire broader rights in a recording artist’s career, we may provide more comprehensive career support and actively develop new opportunities for an artist through touring, fan clubs, merchandising and sponsorships, among other areas. We believe expanded-rights deals create better partnerships with our artists, which allow us and our artists to work together more closely to create and sustain artistic and commercial success.
We have integrated the sale of digital content into all aspects of our Recorded Music and Music Publishing businesses including A&R, marketing, promotion and distribution. Our new media executives work closely with A&R departments to make sure that while a record is being made, digital assets are also created with all of our distribution channels in mind, including subscription services, social networking sites, online portals and music-centered destinations. We work side by side with our mobile and online partners to test new concepts. We believe existing and new digital businesses will be a significant source of growth for the next several years and will provide new opportunities to monetize our assets and create new revenue streams. As a music-based content company, we have assets that go beyond our recorded music and music publishing catalogs, such as our music video library, which we have begun to monetize through digital channels. The proportion of digital revenues attributed to each distribution channel varies by region and since digital music is still in the relatively early stages of growth, proportions may change as the roll out of new technologies continues. As an owner of musical content, we believe we are well positioned to take advantage of growth in digital distribution and emerging technologies to maximize the value of our assets.
Recorded Music revenues are derived from three main sources:
| • | Physical and other: the rightsholder receives revenues with respect to sales of physical products such as CDs and DVDs. We are also diversifying our revenues beyond sales of physical products and receive other revenues from our artist services business and our participation in expanded rights associated with our artists and other artists, including sponsorship, fan club, artist websites, merchandising, touring, ticketing and artist and brand management; |
| • | Digital: the rightsholder receives revenues with respect to online and mobile downloads, mobile ringtones or ringback tones and online and mobile streaming; and |
| • | Licensing: the rightsholder receives royalties or fees for the right to use the sound recording in combination with visual images such as in films or television programs, television commercials and videogames. |
The principal costs associated with our Recorded Music operations are as follows:
| • | Royalty costs and artist and repertoire costs—the costs associated with (i) paying royalties to artists, producers, songwriters, other copyright holders and trade unions, (ii) signing and developing artists, (iii) creating master recordings in the studio and (iv) creating artwork for album covers and liner notes; |
| • | Product costs—the costs to manufacture, package and distribute product to wholesale and retail distribution outlets as well as those principal costs related to expanded rights; |
| • | Selling and marketing costs—the costs associated with the promotion and marketing of artists and recorded music products, including costs to produce music videos for promotional purposes and artist tour support; and |
| • | General and administrative costs—the costs associated with general overhead and other administrative costs. |
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Music Publishing Operations
Where recorded music is focused on exploiting a particular recording of a song, music publishing is an intellectual property business focused on the exploitation of the song itself. In return for promoting, placing, marketing and administering the creative output of a songwriter, or engaging in those activities for other rights holders, our Music Publishing business garners a share of the revenues generated from use of the song.
Our Music Publishing operations include Warner/Chappell, our global Music Publishing company headquartered in New York with operations in over 50 countries through various subsidiaries, affiliates and non-affiliated licensees. We own or control rights to more than one million musical compositions, including numerous pop hits, American standards, folk songs and motion picture and theatrical compositions. Assembled over decades, our award-winning catalog includes over 65,000 songwriters and composers and a diverse range of genres including pop, rock, jazz, country, R&B, hip-hop, rap, reggae, Latin, folk, blues, symphonic, soul, Broadway, techno, alternative, gospel and other Christian music. Warner/Chappell also administers the music and soundtracks of several third-party television and film producers and studios, including Lucasfilm, Ltd., Hallmark Entertainment, Disney Music Publishing and Turner Music Publishing. In 2007, we entered the production music library business with the acquisition of Non-Stop Music. We have subsequently continued to expand our production music operations with the acquisitions of Groove Addicts Production Music Library and Carlin Recorded Music Library in 2010. These acquisitions doubled the size of our production music library, which now consists of more than 16 catalogs containing about 74,000 cues/songs.
Publishing revenues are derived from five main sources:
| • | Mechanical: the licensor receives royalties with respect to compositions embodied in recordings sold in any physical format or configuration (e.g., CDs and DVDs); |
| • | Performance: the licensor receives royalties if the composition is performed publicly through broadcast of music on television, radio, cable and satellite, live performance at a concert or other venue (e.g., arena concerts, nightclubs), online and mobile streaming and performance of music in staged theatrical productions; |
| • | Synchronization: the licensor receives royalties or fees for the right to use the composition in combination with visual images such as in films or television programs, television commercials and videogames as well as from other uses such as in toys or novelty items and merchandise; |
| • | Digital: the licensor receives royalties or fees with respect to online and mobile downloads, mobile ringtones and online and mobile streaming; and |
| • | Other: the licensor receives royalties for use in sheet music. |
The principal costs associated with our Music Publishing operations are as follows:
| • | Artist and repertoire costs—the costs associated with (i) signing and developing songwriters and (ii) paying royalties to songwriters, co-publishers and other copyright holders in connection with income generated from the exploitation of their copyrighted works; and |
| • | General and administration costs—the costs associated with general overhead and other administrative costs. |
Factors Affecting Results of Operations and Financial Condition
Market Factors
Since 1999, the recorded music industry has been unstable and the worldwide market has contracted considerably, which has adversely affected our operating results. The industry-wide decline can be attributed primarily to digital piracy. Other drivers of this decline are the bankruptcies of record retailers and wholesalers, growing competition for consumer discretionary spending and retail shelf space, and the maturation of the CD format, which has slowed the historical growth pattern of recorded music sales. While CD sales still generate most of the recorded music revenues, CD sales continue to decline industry-wide and we expect that trend to continue. While new formats for selling recorded music product have been created, including the legal downloading of digital music using the Internet and the distribution of music on mobile devices, revenue streams from these new formats have not yet reached a level where they fully offset the declines in CD sales. The recorded music industry performance may continue to negatively impact our operating results. In addition, a declining recorded music industry could continue to have an adverse impact on portions of the music publishing business. This is because the music publishing business generates a significant portion of its revenues from mechanical royalties from the sale of music in CD and other physical recorded music formats.
Severance Charges
During fiscal 2010 we took additional actions to further align our cost structure with industry trends. This resulted in severance charges of $54 million in the current fiscal year compared to $23 million in the prior fiscal year. We expect to generate approximately $30 million in run-rate savings from these efforts over the next fiscal year, which will help to offset declines in revenue and OIBDA resulting from the transition from physical to digital sales.
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Mechanical Royalties Payment
In the fourth quarter of fiscal 2009, the U.S. recorded music and music publishing industries reached an agreement for payment of mechanical royalties which were accrued by U.S. record companies in prior years. In connection with this agreement, our music publishing business recognized a benefit of $25 million in revenue and $7 million in OIBDA in fiscal 2009 and a benefit of $5 million in revenue and $2 million in OIBDA in fiscal 2010.
Expanding Business Models to Offset Declines in Physical Sales
Digital Sales
A key part of our strategy to offset declines in physical sales is to expand digital sales. New digital models have enabled us to find additional ways to generate revenues from our music content. In the early stages of the transition from physical to digital sales, overall sales have decreased as the increases in digital sales have not yet met or exceeded the decrease in physical sales. Part of the reason for this gap is the shift in consumer purchasing patterns made possible from new digital models. In the digital space, consumers are now presented with the opportunity to not only purchase entire albums, but to “unbundle” albums and purchase only favorite tracks as single-track downloads. While to date, sales of online and mobile downloads have constituted the majority of our digital Recorded Music and Music Publishing revenue, that may change over time as new digital models, such as access models (models that typically bundle the purchase of a mobile device with access to music) and streaming subscription services, continue to develop. In the aggregate, we believe that growth in revenue from new digital models has the potential to offset physical declines and drive overall future revenue growth. In the digital space, certain costs associated with physical products, such as manufacturing, distribution, inventory and return costs, do not apply. Partially eroding that benefit are increases in mechanical copyright royalties payable to music publishers which apply in the digital space. While there are some digital-specific variable costs and infrastructure investments necessary to produce, market and sell music in digital formats, we believe it is reasonable to expect that digital margins will generally be higher than physical margins as a result of the elimination of certain costs associated with physical products. As consumer purchasing patterns change over time and new digital models are launched, we may see fluctuations in contribution margin depending on the overall sales mix.
Expanded-Rights Deals
We have also been seeking to expand our relationships with recording artists as another means to offset declines in physical revenues in Recorded Music. For example, we have been signing recording artists to expanded-rights deals for the last several years. Under these expanded-rights deals, we participate in the recording artist’s revenue streams, other than from recorded music sales, such as live performances, merchandising and sponsorships. We believe that additional revenue from these revenue streams will help to offset declines in physical revenue over time. As we have generally signed newer artists to these deals, increased non-traditional revenue from these deals is expected to come several years after these deals have been signed as the artists become more successful and are able to generate revenue other than from recorded music sales. While non-traditional Recorded Music revenue, which includes revenue from expanded-rights deals as well as revenue from our artist services business, was less than 10% of our total revenue in fiscal 2010, we believe this revenue should continue to grow and represent a larger proportion of our revenue over time. We also believe that the strategy of entering into expanded-rights deals and continuing to develop our artist services business will contribute to Recorded Music growth over time. Margins for the various non-traditional Recorded Music revenue streams can vary significantly. The overall impact on margins will, therefore, depend on the composition of the various revenue streams in any particular period. For instance, revenue from touring under our expanded-rights deals typically flows straight through to net income with little cost. Revenue from our management business and revenue from sponsorship and touring under expanded-rights deals are all high margin, while merchandise revenue under expanded-rights deals and concert promotion revenue from our concert promotion businesses tend to be lower margin than our traditional revenue streams from recorded music and music publishing.
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RESULTS OF OPERATIONS
Fiscal Year Ended September 30, 2010 Compared with Fiscal Year Ended September 30, 2009 and Fiscal Year Ended September 30, 2008
Consolidated Historical Results
Revenues
Our revenues were composed of the following amounts (in millions):
| For the Fiscal Years Ended September 30, |
2010 vs. 2009 | 2009 vs. 2008 | ||||||||||||||||||||||||||
| 2010 | 2009 | 2008 | $ Change | % Change | $ Change | % Change | ||||||||||||||||||||||
| Revenue by Type |
||||||||||||||||||||||||||||
| Physical and other |
$ | 1,524 | $ | 1,763 | $ | 2,076 | $ | (239 | ) | -14 | % | $ | (313 | ) | -15 | % | ||||||||||||
| Digital |
713 | 656 | 599 | 57 | 9 | % | 57 | 10 | % | |||||||||||||||||||
| Licensing |
218 | 223 | 230 | (5 | ) | -2 | % | (7 | ) | -3 | % | |||||||||||||||||
| Total Recorded Music |
2,455 | 2,642 | 2,905 | (187 | ) | -7 | % | (263 | ) | -9 | % | |||||||||||||||||
| Mechanical |
177 | 192 | 225 | (15 | ) | -8 | % | (33 | ) | -15 | % | |||||||||||||||||
| Performance |
207 | 226 | 243 | (19 | ) | -8 | % | (17 | ) | -7 | % | |||||||||||||||||
| Synchronization |
102 | 97 | 99 | 5 | 5 | % | (2 | ) | -2 | % | ||||||||||||||||||
| Digital |
59 | 54 | 40 | 5 | 9 | % | 14 | 35 | % | |||||||||||||||||||
| Other |
11 | 13 | 21 | (2 | ) | -15 | % | (8 | ) | -38 | % | |||||||||||||||||
| Total Music Publishing |
556 | 582 | 628 | (26 | ) | -4 | % | (46 | ) | -7 | % | |||||||||||||||||
| Intersegment elimination |
(27 | ) | (26 | ) | (27 | ) | (1 | ) | 4 | % | 1 | -4 | % | |||||||||||||||
| Total Revenue |
$ | 2,984 | $ | 3,198 | $ | 3,506 | $ | (214 | ) | -7 | % | $ | (308 | ) | -9 | % | ||||||||||||
| Revenue by Geographical Location |
||||||||||||||||||||||||||||
| U.S. Recorded Music |
$ | 1,043 | $ | 1,174 | $ | 1,375 | $ | (131 | ) | -11 | % | $ | (201 | ) | -15 | % | ||||||||||||
| U.S. Publishing |
214 | 242 | 230 | (28 | ) | -12 | % | 12 | 5 | % | ||||||||||||||||||
| Total U.S. |
1,257 | 1,416 | 1,605 | (159 | ) | -11 | % | (189 | ) | -12 | % | |||||||||||||||||
| International Recorded Music |
1,412 | 1,468 | 1,530 | (56 | ) | -4 | % | (62 | ) | -4 | % | |||||||||||||||||
| International Publishing |
342 | 340 | 398 | 2 | 1 | % | (58 | ) | -15 | % | ||||||||||||||||||
| Total International |
1,754 | 1,808 | 1,928 | (54 | ) | -3 | % | (120 | ) | -6 | % | |||||||||||||||||
| Intersegment eliminations |
(27 | ) | (26 | ) | (27 | ) | (1 | ) | 4 | % | 1 | -4 | % | |||||||||||||||
| Total Revenue |
$ | 2,984 | $ | 3,198 | $ | 3,506 | $ | (214 | ) | -7 | % | $ | (308 | ) | -9 | % | ||||||||||||
Total Revenue
2010 vs. 2009
Total revenues decreased by $214 million, or 7%, to $2.984 billion for the fiscal year ended September 30, 2010 from $3.198 billion for the fiscal year ended September 30, 2009. Prior to intersegment eliminations, Recorded Music and Music Publishing revenues comprised 82% and 18% of total revenues for the fiscal years September 30, 2010 and 2009. U.S. and international revenues comprised 42% and 58% of total revenues for the fiscal year ended September 30, 2010, respectively, compared to 44% and 56% for the fiscal year ended September 30, 2009, respectively. Excluding the favorable impact of foreign currency exchange rates, total revenues decreased $280 million, or 9%.
Total digital revenues, after intersegment eliminations, increased by $56 million, or 8%, to $759 million for the fiscal year ended September 30, 2010 from $703 million for the fiscal year ended September 30, 2009. Total digital revenue represented 25% and 22% of consolidated revenues for the fiscal years ended September 30, 2010 and 2009, respectively. Prior to intersegment eliminations, total digital revenues for the fiscal year ended September 30, 2010 were comprised of U.S. revenues of $462 million, or 60% of total digital revenues, and international revenues of $310 million, or 40% of total digital revenues. Prior to intersegment eliminations, total digital revenues for the fiscal year ended September 30, 2009 were comprised of U.S. revenues of $457 million, or 64% of total digital revenues, and international revenues of $253 million, or 36% of total digital revenues. Excluding the favorable impact of foreign currency exchange rates, total digital revenues increased by $44 million, or 6%.
Recorded Music revenues decreased $187 million, or 7% to $2.455 billion for the fiscal year ended September 30, 2010, from $2.642 billion for the fiscal year ended September 30, 2009. This performance reflected the ongoing impact of the transition from physical to digital sales and decreased licensing revenues partially offset by stronger international concert promotion revenue in the current fiscal year, most notably in Italy. Reduced consumer demand for physical products has resulted in a reduction in the amount of
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floor and shelf space dedicated to music by retailers. Retailers still account for the majority of sales of our physical product; however, as the number of physical music retailers has declined significantly, there is increased competition for available display space. This has led to a decrease in the amount and variety of physical product on display. In addition, increases in digital revenue have not yet fully offset the decline in physical revenue. We believe this is attributable to the ability of consumers in the digital space to purchase individual tracks from an album rather than purchase the entire album and the ongoing issue of piracy. Digital revenue increased $57 million, or 9%, for the fiscal year ended September 30, 2010, largely due to strong international download growth and moderate domestic download growth, offset by declines in mobile revenues primarily related to lower ringtone demand in the U.S. Digital revenue in the U.S. is increasingly correlated to our overall release schedule and the timing and success of new products and service introductions. Excluding the favorable impact of foreign currency exchange rates, total Recorded Music revenues decreased $248 million, or 9%, for the fiscal year ended September 30, 2010.
Music Publishing revenues decreased by $26 million, or 4%, to $556 million for the fiscal year ended September 30, 2010 from $582 million for the fiscal year ended September 30, 2009. The decrease in Music Publishing revenue was due primarily to declines in performance revenues and mechanical revenues, which more than offset the increases in synchronization and digital revenue. Performance revenue decreases were due primarily to the timing of cash collections and our decision not to renew certain low margin administrative deals. The decrease in mechanical revenues was due primarily to a $25 million benefit recorded in the 2009 fiscal year, as compared with a $5 million benefit recorded in the 2010 fiscal year, stemming from an agreement reached by the U.S. recorded music and music publishing industries, which resulted in the payment of mechanical royalties accrued in prior years by U.S. record companies. The decrease in mechanical revenues was partially offset by higher physical recorded music royalties earned primarily related to Michael Jackson, Susan Boyle and Michael Bublé. Synchronization revenue increases reflected an improvement in the advertising industry. Digital revenue increased $5 million due to the continued transition from physical to digital sales and the timing of collections. Excluding the favorable impact of foreign currency exchange rates, total Music Publishing revenues decreased $31 million, or 5%, for the fiscal year ended September 30, 2010.
2009 vs. 2008
Total revenues decreased by $308 million, or 9%, to $3.198 billion for the fiscal year ended September 30, 2009 from $3.506 billion for the fiscal year ended September 30, 2008. Prior to intersegment eliminations, Recorded Music and Music Publishing revenues comprised 82% and 18% of total revenues for the fiscal years September 30, 2009 and 2008, respectively. U.S. and international revenues comprised 44% and 56% of total revenues for the fiscal year ended September 30, 2009, respectively, compared to 45% and 55% for the fiscal year ended September 30, 2008, respectively. Excluding the unfavorable impact of foreign currency exchange rates, total revenues decreased $103 million, or 3%.
Total digital revenues after intersegment eliminations increased by $64 million, or 10%, to $703 million for the fiscal year ended September 30, 2009 from $639 million for the fiscal year ended September 30, 2008. Total digital revenue represented 22% and 18% of consolidated revenues for the fiscal years ended September 30, 2009 and 2008, respectively. Prior to intersegment eliminations, total digital revenues for the fiscal year ended September 30, 2009 were comprised of U.S. revenues of $457 million, or 64% of total digital revenues, and international revenues of $253 million, or 36% of total digital revenues. Prior to intersegment eliminations, total digital revenues for the fiscal year ended September 30, 2008 were comprised of U.S. revenues of $413 million, or 65% of total digital revenues, and international revenues of $226 million, or 35% of total digital revenues. Excluding the unfavorable impact of foreign currency exchange rates, total digital revenues increased by $84 million, or 14%.
Recorded Music revenues decreased $263 million, or 9% to $2.642 billion for the fiscal year ended September 30, 2009, from $2.905 billion for the fiscal year ended September 30, 2008. This decrease was driven by the decrease in physical and other revenue of $313 million, which primarily reflected general economic pressures and the transition from physical sales to new forms of digital sales in the recorded music industry, which adversely impacted our physical revenues. In addition, revenues in the prior fiscal year included the release of the largest selling album of calendar 2007 in the U.S. according to SoundScan, “Noel”, which sold approximately 5.6 million units globally, primarily during the first quarter of fiscal 2008. Licensing revenues also decreased $7 million primarily as a result of general economic pressures, which led to reduced domestic advertising spending. The decrease in physical and licensing revenues was partially offset by an increase in concert promotion revenues related to our European concert promotion business and an increase in digital revenues of $57 million. Digital revenue increased as the transition from physical sales to new forms of digital sales in the recorded music industry continued, but the rate of growth during the fiscal year 2009 was negatively impacted by the timing and success of commercial product introductions by our digital partners and continued worldwide economic pressures. As digital revenues become a greater percentage of overall revenues, fluctuations in digital revenues between periods is becoming increasingly driven by the timing of releases. Excluding the unfavorable impact of foreign currency exchange rates, total Recorded Music revenues decreased $112 million, or 4%, for the fiscal year ended September 30, 2009.
Music Publishing revenues decreased by $46 million, or 7%, to $582 million for the fiscal year ended September 30, 2009 from $628 million for the fiscal year ended September 30, 2008. The decrease in Music Publishing revenues was due primarily to declines in mechanical revenues of $33 million and performance revenues of $17 million, which reflected the effects of the industry-wide decrease in physical sales. The decrease in mechanical revenues was partially offset by a $25 million benefit from an agreement
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reached by the U.S. recorded music and music publishing industries, which resulted in the payment of mechanical royalties accrued in prior years by record companies. In addition, the decrease in mechanical and performance revenues was partially offset by an increase in digital revenues of $14 million as the transition from physical sales to digital sales continues. Excluding the unfavorable impact of foreign currency exchange rates, total Music Publishing revenues increased $3 million, or 1%, for the fiscal year ended September 30, 2009.
Revenue by Geographical Location
2010 vs. 2009
U.S. revenues decreased by $159 million, or 11%, to $1.257 billion for the fiscal year ended September 30, 2010 from $1.416 billion for the fiscal year ended September 30, 2009. The overall decline in the U.S. Recorded Music business primarily reflected the on-going transition from physical sales to new forms of digital sales in the recorded music industry. The decline in the U.S. Publishing business was primarily due to declines in performance revenues and mechanical revenues. Performance revenue decreases were due primarily to the timing of cash collections and our decision not to renew certain low margin administrative deals. The decrease in mechanical revenues was due primarily to a $25 million benefit recorded in the 2009 fiscal year, as compared with a $5 million benefit recorded in the 2010 fiscal year, stemming from an agreement reached by the U.S. recorded music and music publishing industries, which resulted in the payment of mechanical royalties accrued in prior years by U.S. record companies. The decrease in mechanical revenues was partially offset by higher physical recorded music royalties earned primarily related to Michael Jackson, Susan Boyle and Michael Bublé.
International revenues decreased by $54 million, or 3%, to $1.754 billion for the fiscal year ended September 30, 2010 from $1.808 billion for the fiscal year ended September 30, 2009. An increase in digital revenue, primarily as a result of growth in digital downloads, was more than offset by the contracting demand for physical product and licensing revenues. The contracting demand for physical product reflected the ongoing impact from transitioning to digital from physical sales in the recorded music industry. Revenue growth in the U.K. and Italy was more than offset by weakness in Japan as well as other parts of Europe. Excluding the favorable impact of foreign currency exchange, international revenues decreased $120 million, or 6%.
2009 vs. 2008
U.S. revenues decreased by $189 million, or 12%, to $1.416 billion for the fiscal year ended September 30, 2009 from $1.605 billion for the fiscal year ended September 30, 2008 due to general economic pressures and the transition from physical sales to new forms of digital sales in the recorded music industry, which also adversely impacted our physical revenues. In addition, domestic revenues in the prior fiscal year included the release of the largest selling album of calendar 2007 in the U.S. according to SoundScan, “Noel”, which sold over 4 million units in the U.S., largely during the first quarter of fiscal year 2008. The decrease in physical and other revenues was partially offset by an increase in digital revenues which continued to increase as the transition from physical sales to new forms of digital sales in the recorded music industry continues, but the rate of growth in the current-fiscal year was negatively impacted by the timing and success of commercial product introductions by our digital partners and continued economic pressures. As digital revenues become a greater percentage of overall revenues, fluctuations in digital revenues between periods are becoming increasingly driven by the timing of our releases.
International revenues decreased by $120 million, or 6%, to $1.808 billion for the fiscal year ended September 30, 2009 from $1.928 billion for the fiscal year ended September 30, 2008. Excluding the unfavorable impact of foreign currency exchange, international revenues increased $85 million, or 5%. The increase was driven by an increase in digital revenues and an increase in revenues from our European concert promotion business. These increases were offset by a decrease in sales of physical product and the related mechanical revenues which were driven by general economic pressures and the ongoing transition from physical sales to new forms of digital sales in the recorded music industry.
See “Business Segment Results” presented hereinafter for a discussion of revenue by type for each business segment.
Cost of revenues
Our cost of revenues was composed of the following amounts (in millions):
| For the Fiscal Years Ended September 30, |
2010 vs. 2009 | 2009 vs. 2008 | ||||||||||||||||||||||||||
| 2010 | 2009 | 2008 | $ Change | % Change | $ Change | % Change | ||||||||||||||||||||||
| Artist and repertoire costs |
$ | 943 | $ | 1,062 | $ | 1,181 | $ | (119 | ) | -11 | % | $ | (119 | ) | -10 | % | ||||||||||||
| Product costs |
559 | 579 | 588 | (20 | ) | -3 | % | (9 | ) | -2 | % | |||||||||||||||||
| Licensing costs |
70 | 78 | 77 | (8 | ) | -10 | % | 1 | 1 | % | ||||||||||||||||||
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| For the Fiscal Years Ended September 30, |
2010 vs. 2009 | 2009 vs. 2008 | ||||||||||||||||||||||||||
| 2010 | 2009 | 2008 | $ Change | % Change | $ Change | % Change | ||||||||||||||||||||||
| Total cost of revenues |
$ | 1,572 | $ | 1,719 | $ | 1,846 | $ | (147 | ) | -9 | % | $ | (127 | ) | -7 | % | ||||||||||||
2010 vs. 2009
Our cost of revenues decreased by $147 million, or 9%, to $1.572 billion for the fiscal year ended September 30, 2010 from $1.719 billion for the fiscal year ended September 30, 2009. Expressed as a percent of revenues, cost of revenues was 53% and 54% for the fiscal years ended September 30, 2010 and 2009, respectively.
Artist and repertoire costs as a percentage of revenues were 32% and 33% for the fiscal years ended September 30, 2010 and 2009, respectively. The decrease in artist and repertoire costs was driven by decreased revenues for the current fiscal year, a cost-recovery benefit related to the early termination of certain artist contracts and a benefit from increased recoupment on artists whose advances were previously written off, partially offset by severance charges taken in the current fiscal year primarily related to our Recorded Music operations.
Product costs as a percentage of revenues were 19% and 18% of revenues in the fiscal years ended September 30, 2010 and 2009, respectively. The increase as a percentage of revenues was driven primarily by production costs associated with our European concert promotion business, which is typically lower in margin than our traditional recorded music business. The decrease in product costs was primarily a result of the change in mix from the sale of physical products to new forms of digital music partially offset by increased production costs associated with our European concert promotion business.
Licensing costs decreased $8 million, or 10%, to $70 million for the fiscal year ended September 30, 2010 from $78 million for the fiscal year ended September 30, 2009. Expressed as a percentage of licensing revenues, licensing costs decreased from 35% for the fiscal year ended September 30, 2009 to 32% for the fiscal year ended September 30, 2010, primarily as a result of changes in revenue mix.
2009 vs. 2008
Our cost of revenues decreased by $127 million, or 7%, to $1.719 billion for the fiscal year ended September 30, 2009 from $1.846 billion for the fiscal year ended September 30, 2008. Expressed as a percent of revenues, cost of revenues was 54% and 53% for the fiscal years ended September 30, 2009 and 2008, respectively.
Artist and repertoire costs as a percentage of revenues were 33% and 34% for the fiscal years ended September 30, 2009 and 2008, respectively. The decrease in artist and repertoire costs was driven by decreased revenues for the 2009 fiscal year as compared with the 2008 fiscal year, resulting from general economic pressures and the transition from physical sales to new forms of digital sales in the recorded music industry.
Product costs decreased primarily as a result of the change in mix from the sale of physical products to new forms of digital music. Product costs as a percentage of revenues were 18% and 17% of revenues in the fiscal years ended September 30, 2009 and 2008, respectively. The increase as a percentage of revenues was driven primarily by international production costs associated with our European concert promotion business, which is typically lower in margin than our traditional recorded music business.
Licensing costs increased $1 million, or 1%, to $78 million for the fiscal year ended September 30, 2009 from $77 million for the fiscal year ended September 30, 2008. Expressed as a percentage of licensing revenues, licensing costs increased to 35% for the fiscal year ended September 30, 2009 from 33% for the fiscal year ended September 30, 2008, primarily as a result of changes in revenue mix.
Selling, general and administrative expenses
Our selling, general and administrative expenses are composed of the following amounts (in millions):
| For the Fiscal Years Ended September 30, |
2010 vs. 2009 | 2009 vs. 2008 | ||||||||||||||||||||||||||
| 2010 | 2009 | 2008 | $ Change | % Change | $ Change | % Change | ||||||||||||||||||||||
| General and administrative expense (1) |
$ | 583 | $ | 564 | $ | 598 | $ | 19 | 3 | % | $ | (34 | ) | -6 | % | |||||||||||||
| Selling and marketing expense |
452 | 489 | 559 | (37 | ) | -8 | % | (70 | ) | -13 | % | |||||||||||||||||
| Distribution expense |
68 | 66 | 77 | 2 | 3 | % | (11 | ) | -14 | % | ||||||||||||||||||
| Total selling, general and administrative expense |
$ | 1,103 | $ | 1,119 | $ | 1,234 | $ | (16 | ) | -1 | % | $ | (115 | ) | -9 | % | ||||||||||||
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| (1) | Includes depreciation expense of $39 million, $37 million and $46 million for the fiscal years ended September 30, 2010, 2009 and 2008, respectively. |
2010 vs. 2009
Selling, general and administrative expense decreased by $16 million, or 1%, to $1.103 billion for the fiscal year ended September 30, 2010 from $1.119 billion for the fiscal year ended September 30, 2009. Expressed as a percent of revenues, selling, general and administrative expense increased to 37% for the fiscal year ended September 30, 2010 from 35% for the fiscal year ended September 30, 2009.
General and administrative expense increased by $19 million, or 3%, to $583 million for the fiscal year ended September 30, 2010 from $564 million for the fiscal year ended September 30, 2009. Expressed as a percentage of revenues, general and administrative expenses increased from 18% for the fiscal year ended September 30, 2009 to 20% for the fiscal year ended September 30, 2010, driven by severance charges of $47 million recorded during the current year primarily related to our Recorded Music operations as compared with $23 million taken during the prior fiscal year, partially offset by realization of cost savings from initiatives taken by management in prior periods.
Selling and marketing expense decreased primarily as a result of our effort to better align selling and marketing expenses with revenues earned partially offset by severance charges of $4 million taken during the current year primarily related to our Recorded Music operations. Expressed as a percentage of revenues, selling and marketing expense remained flat at 15% for the fiscal years ended September 30, 2010 and 2009.
Distribution expense remained flat as a percentage of revenues at 2% for the fiscal years ended September 30, 2010 and September 30, 2009.
2009 vs. 2008
Selling, general and administrative expense decreased by $115 million, or 9%, to $1.119 billion for the fiscal year ended September 30, 2009 from $1.234 billion for the fiscal year ended September 30, 2008. Expressed as a percent of revenues, selling, general and administrative expense remained flat at 35% for the fiscal years ended September 30, 2009 and 2008.
General and administrative expense decreased by $34 million, or 6%, to $564 million for the fiscal year ended September 30, 2009 from $598 million for the fiscal year ended September 30, 2008. The decrease in general and administrative expense was the result of the continued focus on company-wide cost-management efforts, lower compensation expense and lower depreciation expense, partially offset by $23 million of severance taken in the 2009 fiscal year primarily related to our Recorded Music operations.
Selling and marketing expense decreased primarily as a result of our effort to better align selling and marketing expenses with revenues earned. Expressed as a percentage of revenues, selling and marketing expense decreased to 15% for the fiscal year ended September 30, 2009 from 16% for the fiscal year ended September 30, 2008.
Distribution expense remained flat as a percentage of revenues at 2% for the fiscal years ended September 30, 2009 and September 30, 2008.
Other income, net
2009 vs. 2008
Other income, net for the fiscal year ended September 30, 2008, included $3 million related to a contingent payment related to settlement of copyright litigation against the operators of the KaZaA peer-to-peer network.
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Reconciliation of Consolidated Historical OIBDA to Operating Income from Continuing Operations and Net Loss Attributable to WMG Acquisition Corp.
As previously described, we use OIBDA as our primary measure of financial performance. The following table reconciles OIBDA to operating income from continuing operations, and further provides the components from operating income from continuing operations to net loss attributable to WMG Acquisition Corp. for purposes of the discussion that follows (in millions):
| For the Fiscal Years Ended September 30, |
2010 vs. 2009 | 2009 vs. 2008 | ||||||||||||||||||||||||||
| 2010 | 2009 | 2008 | $ Change | % Change | $ Change | % Change | ||||||||||||||||||||||
| OIBDA |
$ | 348 | $ | 397 | $ | 475 | $ | (49 | ) | -12 | % | $ | (78 | ) | -16 | % | ||||||||||||
| Depreciation expense |
(39 | ) | (37 | ) | (46 | ) | (2 | ) | 5 | % | 9 | -20 | % | |||||||||||||||
| Amortization expense |
(219 | ) | (225 | ) | (222 | ) | 6 | -3 | % | (3 | ) | 1 | % | |||||||||||||||
| Operating income from continuing operations |
90 | 135 | 207 | (45 | ) | -33 | % | (72 | ) | -35 | % | |||||||||||||||||
| Interest expense, net |
(165 | ) | (172 | ) | (159 | ) | 7 | 4 | % | (13 | ) | -8 | % | |||||||||||||||
| Gain on sale of equity-method investment |
— | 36 | — | (36 | ) | — | 36 | — | ||||||||||||||||||||
| Gain on foreign exchange transaction |
— | 9 | — | (9 | ) | — | 9 | — | ||||||||||||||||||||
| Impairment of cost-method investments |
(1 | ) | (29 | ) | — | 28 | 97 | % | (29 | ) | — | |||||||||||||||||
| Impairment of equity-method investments |
— | (11 | ) | — | 11 | — | (11 | ) | — | |||||||||||||||||||
| Other income (expense), net |
1 | 1 | (8 | ) | — | — | 9 | — | ||||||||||||||||||||
| (Loss) income from continuing operations before income taxes |
(75 | ) | (31 | ) | 40 | (44 | ) | — | (71 | ) | — | |||||||||||||||||
| Income tax expense |
(41 | ) | (50 | ) | (49 | ) | 9 | -18 | % | (1 | ) | 2 | % | |||||||||||||||
| Loss from continuing operations |
(116 | ) | (81 | ) | (9 | ) | (35 | ) | -43 | % | (72 | ) | — | |||||||||||||||
| Loss from discontinued operations, net of taxes |
— | — | (21 | ) | — | — | 21 | — | ||||||||||||||||||||
| Net loss |
(116 | ) | (81 | ) | (30 | ) | (35 | ) | -43 | % | (51 | ) | — | |||||||||||||||
| Less: loss (income) attributable to noncontrolling interest |
2 | 4 | (5 | ) | (2 | ) | -50 | % | 9 | — | ||||||||||||||||||
| Net loss attributable to WMG Acquisition Corp. |
$ | (114 | ) | $ | (77 | ) | $ | (35 | ) | $ | (37 | ) | -48 | % | $ | (42 | ) | — | ||||||||||
OIBDA
2010 vs. 2009
Our OIBDA decreased by $49 million to $348, or 12%, million for the fiscal year ended September 30, 2010 as compared to $397 million for the fiscal year ended September 30, 2009. Expressed as a percentage of revenues, total OIBDA margin remained flat at 12% for the fiscal years ended September 30, 2010 and 2009. Our OIBDA decrease was primarily driven by decreased revenues and increased severance charges of $31 million primarily related to our Recorded Music operations, partially offset by the realization of cost savings from management initiatives taken in prior periods and the decreases in artist and repertoire and selling and marketing expense noted above.
2009 vs. 2008
Our OIBDA decreased by $78 million to $397, or 16%, million for the fiscal year ended September 30, 2009 as compared to $475 million for the fiscal year ended September 30, 2008. Expressed as a percentage of revenues, total OIBDA margin was 12% and 14% for the fiscal years ended September 30, 2009 and 2008, respectively. The decrease in OIBDA margin was primarily the result of negative operating leverage from lower sales on a similar fixed-cost base and declines related to the recession in Japan, which is a higher-margin territory, partially offset by the effect of continued company-wide cost-management efforts.
See “Business Segment Results” presented hereinafter for a discussion of OIBDA by business segment.
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Depreciation expense
2010 vs. 2009
Depreciation expense increased by $2 million, or 5%, to $39 million for fiscal year ended September 30, 2010. The increase was primarily related to additional depreciation expense from recently acquired companies.
2009 vs. 2008
Depreciation expense decreased by $9 million, or 20%, to $37 million for fiscal year ended September 30, 2009. The decrease was primarily related to the effects of lower capital expenditures during the 2009 fiscal year end as well as lower expenses related to projects that have been fully depreciated.
Amortization expense
2010 vs. 2009
Amortization expense decreased by $6 million, or 3%, to $219 million for the fiscal year ended September 30, 2010. The decrease was due primarily to certain intangible assets being fully amortized during the current fiscal year.
2009 vs. 2008
Amortization expense increased by $3 million, or 1%, to $225 million for the fiscal year ended September 30, 2009. The increase was due primarily to amortization on newly acquired intangible assets.
Operating income from continuing operations
2010 vs. 2009
Our operating income from continuing operations decreased $45 million, or 33%, to $90 million for the fiscal year ended September 30, 2010 as compared to $135 million for the fiscal year ended September 30, 2009. Operating income from continuing operations margin decreased to 3% for the fiscal year ended September 30, 2010, from 4% for the fiscal year ended September 30, 2009. The decrease in operating income from continuing operations was primarily due to the decline in OIBDA and the increase in depreciation expense partially offset by the decrease in amortization expense noted above.
2009 vs. 2008
Our operating income from continuing operations decreased $72 million, or 35%, to $135 million for the fiscal year ended September 30, 2009 as compared to $207 million for the fiscal year ended September 30, 2008. Operating income margin decreased to 4% for the fiscal year ended September 30, 2009, from 6% for the fiscal year ended September 30, 2008. The decrease in operating income was primarily due to the decline in OIBDA and the increase in amortization expense partially offset by the decrease in depreciation expense noted above.
Interest expense, net
2010 vs. 2009
Our interest expense, net, decreased $7 million, or 4%, to $165 million for the fiscal year ended September 30, 2010 as compared to $172 million for the fiscal year ended September 30, 2009. The decrease was primarily driven by deferred financing fees of $18 million, written off during the 2009 fiscal year in connection with the repayment of our senior secured credit facility. The decrease was partially offset by the change in interest terms related to our refinancing in May 2009.
2009 vs. 2008
Our interest expense, net, increased $13 million, or 8%, to $172 million for the fiscal year ended September 30, 2009 as compared to $159 million for the fiscal year ended September 30, 2008. The increase was primarily driven by deferred financing fees of $18 million, written off during the 2009 fiscal year in connection with the repayment of our senior secured credit facility and the change in interest terms related to our refinancing in May of 2009.
See “—Financial Condition and Liquidity” for more information.
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Gain on sale of equity-method investment
During the fiscal year ended September 30, 2009, we sold our remaining equity stake in Front Line Management to Ticketmaster for $123 million in cash. As a result of the transaction, we recorded a gain on sale of equity-method investment of $36 million.
Gain on foreign exchange transaction
During the fiscal year ended September 30, 2009, we recorded a $9 million non-cash gain on a foreign exchange transaction as a result of a settlement of a short-term foreign denominated loan related to the Front Line Management sale.
Impairment of cost-method investments
2010 vs. 2009
During the fiscal year ended September 30, 2010, we recorded a $1 million charge to write off certain cost-method investments based on their current fair value. During the fiscal year ended September 30, 2009, we determined that our cost-method investments in digital venture capital companies, including imeem and lala, were impaired largely due to the current economic environment and changing business conditions from the time of the initial investment. As a result, we recorded one-time charges of $29 million, including $16 million to write off our investment in imeem and $11 million to write down our investment in lala.
2009 vs. 2008
During the fiscal year ended September 30, 2009, we determined that our cost-method investments in digital venture capital companies, including imeem and lala, were impaired largely due to the current economic environment and changing business conditions from the time of the initial investment. As a result, we recorded one-time charges of $29 million, including $16 million to write off our investment in imeem and $11 million to write down our investment in lala. There were no impairment charges recorded for the fiscal year ended September 30, 2008.
Impairment of equity-method investments
During the fiscal year ended September 30, 2009, we chose not to continue our participation in Equatrax, L.P. (formerly known as Royalty Services, L.P.) and Equatrax, LLC (formerly known as Royalty Services, LLC), which were formed in 2004 to develop an outsourced royalty platform. As a result, we wrote off the remaining $10 million related to our investment in the joint venture and another $1 million related to another smaller investment.
Other income (expense), net
2010 vs. 2009
Other expense, net for the fiscal year ended September 30, 2010 included net hedging gains on foreign exchange contracts, which represent currency exchange movements associated with intercompany receivables and payables that are short term in nature, offset by equity in earnings on our share of net income on investments recorded in accordance with the equity method of accounting for an unconsolidated investee.
2009 vs. 2008
Other income, net for the fiscal year ended September 30, 2009 included the gain on sale of a building and equity in earnings on our share of net income on investments recorded in accordance with the equity method of accounting for an unconsolidated investee, partially offset by net hedging losses on foreign exchange contracts, which represent currency exchange movements associated with inter-company receivables and payables that are short term in nature.
Income tax expense
2010 vs. 2009
We provided income tax expense of $41 million and $50 million for the fiscal years ended September 30, 2010 and 2009, respectively. The decrease in income tax expense primarily relates to a decrease in pretax earnings in certain foreign jurisdictions.
2009 vs. 2008
We provided income tax expense of $50 million and $49 million for the fiscal years ended September 30, 2009 and 2008, respectively. The 2009 fiscal year expense reflected the reversal of $15 million of previously recognized tax benefits associated with
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the tax amortization of indefinite lived intangibles from the Acquisition, offset by a benefit of $14 million related to new digital transfer pricing agreements.
During the quarter ended March 31, 2009, we settled our federal income tax audit with the IRS for the fiscal years ended September 30, 2004 through September 30, 2006. The IRS commenced its audit of the fiscal years ended September 30, 2008 and September 30, 2007. Various tax years are currently under examination by state and local and foreign tax authorities.
Loss from continuing operations
2010 vs. 2009
Our loss from continuing operations increased by $35 million to $116 million for the fiscal year ended September 30, 2010 as compared to $81 million for the fiscal year ended September 30, 2009. The increase in loss from continuing operations was driven primarily by our decrease in OIBDA and the increase in depreciation expense partially offset by decreases in our amortization expense, interest expense and income tax expense during the fiscal year ended September 30, 2010. In addition, during the 2009 fiscal year we recorded gains on the sale of our remaining stake in Front Line Management, a foreign exchange transaction and the sale of a building, which were partially offset by impairments of equity and cost-method investments as discussed above.
2009 vs. 2008
Our loss from continuing operations increased by $72 million to $81 million for the fiscal year ended September 30, 2009 as compared to $9 million for the fiscal year ended September 30, 2008. The increase in loss from continuing operations was driven primarily by our decrease in OIBDA, the increase in amortization expense and the increase in interest expense, partially offset by decrease in depreciation expense. In addition, during the 2009 fiscal year we recorded gains on the sale of our remaining stake in Front Line Management, a foreign exchange transaction and the sale of a building, which were partially offset by impairments of equity and cost-method investments as discussed above.
Loss from discontinued operations, net of taxes
During the fiscal year ended September 30, 2008, we discontinued our Bulldog operations. In connection with shutting down Bulldog, we incurred a loss of $18 million representing an impairment of goodwill recorded at the time of the initial disposition and incurred $3 million in severance and other costs.
Net loss
2010 vs. 2009
Our net loss increased by $35 million to $116 million for the fiscal year ended September 30, 2010, as compared to $81 million for the fiscal year ended September 30, 2009. The increase in net loss was primarily the result of the factors noted above with respect to our loss from continuing operations.
2009 vs. 2008
Our net loss increased by $51 million to $81 million for the fiscal year ended September 30, 2009 as compared to $30 million for the fiscal year ended September 30, 2008. The increase in net loss was primarily the result of the factors noted above with respect to our loss from continuing operations and the discontinuing of our Bulldog operations.
Noncontrolling interest
2010 vs. 2009
Net loss attributable to noncontrolling interests for the fiscal years ended September 30, 2010 and 2009 was $2 million and $4 million, respectively.
2009 vs. 2008
Net loss attributable to noncontrolling interests for the fiscal year ended September 30, 2009 was $4 million compared to net income attributable to noncontrolling interests of $5 million for the fiscal year ended September 30, 2008.
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Business Segment Results
Revenue, OIBDA and operating income (loss) from continuing operations by business segment are as follows (in millions):
| For the Fiscal Years Ended September 30, |
2010 vs. 2009 | 2009 vs. 2008 | ||||||||||||||||||||||||||
| 2010 | 2009 | 2008 | $ Change | % Change | $ Change | % Change | ||||||||||||||||||||||
| Recorded Music |
||||||||||||||||||||||||||||
| Revenue |
$ | 2,455 | $ | 2,642 | $ | 2,905 | $ | (187 | ) | -7 | % | $ | (263 | ) | -9 | % | ||||||||||||
| OIBDA |
279 | 332 | 411 | (53 | ) | -16 | % | (79 | ) | -19 | % | |||||||||||||||||
| Operating income from continuing operations |
$ | 102 | $ | 149 | $ | 228 | $ | (47 | ) | -32 | % | $ | (79 | ) | -35 | % | ||||||||||||
| Music Publishing |
||||||||||||||||||||||||||||
| Revenue |
$ | 556 | $ | 582 | $ | 628 | $ | (26 | ) | -4 | % | $ | (46 | ) | -7 | % | ||||||||||||
| OIBDA |
157 | 165 | 167 | (8 | ) | -5 | % | (2 | ) | -1 | % | |||||||||||||||||
| Operating income from continuing operations |
$ | 86 | $ | 97 | $ | 96 | $ | (11 | ) | -11 | % | $ | 1 | 1 | % | |||||||||||||
| Corporate Expenses and Eliminations |
||||||||||||||||||||||||||||
| Revenue |
$ | (27 | ) | $ | (26 | ) | $ | (27 | ) | $ | (1 | ) | -4 | % | $ | 1 | 4 | % | ||||||||||
| OIBDA |
(88 | ) | (100 | ) | (103 | ) | 12 | 12 | % | 3 | 3 | % | ||||||||||||||||
| Operating loss from continuing operations |
$ | (98 | ) | $ | (111 | ) | $ | (117 | ) | $ | 13 | -12 | % | $ | 6 | -5 | % | |||||||||||
| Total |
||||||||||||||||||||||||||||
| Revenue |
$ | 2,984 | $ | 3,198 | $ | 3,506 | $ | (214 | ) | -7 | % | $ | (308 | ) | -9 | % | ||||||||||||
| OIBDA |
348 | 397 | 475 | (49 | ) | -12 | % | (78 | ) | -16 | % | |||||||||||||||||
| Operating income from continuing operations |
$ | 90 | $ | 135 | $ | 207 | $ | (45 | ) | -33 | % | $ | (72 | ) | -35 | % | ||||||||||||
Recorded Music
Revenues
2010 vs. 2009
Recorded Music revenues decreased by $187 million, or 7%, to $2.455 billion for the fiscal year ended September 30, 2010 from $2.642 billion for the fiscal year ended September 30, 2009. Prior to intersegment eliminations, Recorded Music revenues represented 82% of consolidated revenues for the fiscal years ended September 30, 2010 and 2009. U.S. Recorded Music revenues were $1.043 billion and $1.174 billion, or 42% and 44% of Recorded Music revenues for the fiscal years ended September 30, 2010 and 2009, respectively. International Recorded Music revenues were $1.412 billion and $1.468 billion, or 58% and 56% of Recorded Music revenues for the fiscal years ended September 30, 2010 and 2009, respectively.
The decrease in Recorded Music revenues primarily reflected the continued transition from physical sales to new forms of digital sales in the recorded music industry, which adversely impacted our physical revenues. This performance reflected the ongoing impact from transitioning to digital from physical sales and decreased licensing revenues partially offset by stronger international concert promotion results in the current fiscal year, most notably in Italy. Reduced consumer demand for physical products has resulted in a reduction in the amount of floor and shelf space dedicated to music by retailers. Retailers still account for the majority of sales of our physical product; however, as the number of physical music retailers has declined significantly, there is increased competition for available display space. This has led to a decrease in the amount and variety of physical product on display. In addition, increases in digital revenue have not yet fully offset the decline in physical revenue. We believe this is attributable to the ability of consumers in the digital space to purchase individual tracks from an album rather than purchase the entire album and the ongoing issue of piracy. Digital revenue increased $57 million, or 9%, for the fiscal year ended September 30, 2010, largely due to strong international download growth and moderate domestic download growth, offset by declines in mobile revenues primarily related to lower ringtone demand in the U.S. Digital revenue in the U.S. is increasingly correlated to our overall release schedule and the timing and success of new products and service introductions. Excluding the favorable impact of foreign currency exchange rates, total Recorded Music revenues decreased $248 million, or 9%, for the fiscal year ended September 30, 2010.
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2009 vs. 2008
Recorded Music revenues decreased by $263 million, or 9%, to $2.642 billion for the fiscal year ended September 30, 2009 from $2.905 billion for the fiscal year ended September 30, 2008. Prior to intersegment eliminations, Recorded Music revenues represented 82% of consolidated revenues for the fiscal years ended September 30, 2009 and 2008. U.S. Recorded Music revenues were $1.174 billion and $1.375 billion, or 44% and 47% of Recorded Music revenues for the fiscal years ended September 30, 2009 and 2008, respectively. International Recorded Music revenues were $1.468 billion and $1.530 billion, or 56% and 53% of Recorded Music revenues for the fiscal years ended September 30, 2009 and 2008, respectively.
The decrease in Recorded Music revenues primarily reflected general economic pressures and the transition from physical sales to new forms of digital sales in the recorded music industry. This decrease was partially offset by an increase in concert promotion revenues related to our European concert promotion business, and an increase in digital revenues of $57 million. Digital revenue continued to increase as the transition from physical sales to new forms of digital sales in the recorded music industry continues, but the rate of growth in the current year quarter was negatively impacted by the timing and success of commercial product introductions by our digital partners and continued worldwide economic pressures. As digital revenues become a greater percentage of overall revenues, fluctuations in digital revenues between periods is becoming increasingly driven by the timing of releases. Excluding the unfavorable impact of foreign currency exchange rates, total Recorded Music revenues decreased $112 million, or 4%, for the fiscal year ended September 30, 2009.
Recorded Music cost of revenues was composed of the following amounts (in millions):
| For the Fiscal Years Ended September 30, |
2010 vs. 2009 | 2009 vs. 2008 | ||||||||||||||||||||||||||
| 2010 | 2009 | 2008 | $ Change | % Change | $ Change | % Change | ||||||||||||||||||||||
| Artist and repertoire costs |
$ | 637 | $ | 729 | $ | 809 | $ | (92 | ) | -13 | % | $ | (80 | ) | -10 | % | ||||||||||||
| Product costs |
559 | 579 | 588 | (20 | ) | -3 | % | (9 | ) | -2 | % | |||||||||||||||||
| Licensing costs |
70 | 78 | 77 | (8 | ) | -10 | % | 1 | 1 | % | ||||||||||||||||||
| Total cost of revenues |
$ | 1,266 | $ | 1,386 | $ | 1,474 | $ | (120 | ) | -9 | % | $ | (88 | ) | -6 | % | ||||||||||||
Cost of revenues
2010 vs. 2009
Recorded Music cost of revenues decreased by $120 million for the fiscal year ended September 30, 2010. Cost of revenues represented 52% of Recorded Music revenues for the fiscal years ended September 30, 2010 and 2009. The decrease in cost of revenues was driven primarily by the decrease in artist and repertoire costs, product costs and licensing costs. The decrease in artist and repertoire costs was driven by the decrease in revenue, a cost-recovery benefit related to the early termination of certain artist contracts and a benefit from increased recoupment on artists whose advances were previously written off. The decrease in product costs was driven by the decline of physical product revenue as a result of the change in revenue mix from the sale of physical products to new forms of digital music partially offset by production costs associated with our European concert promotion business. The decrease in licensing costs was driven by the decrease in licensing revenue.
2009 vs. 2008
Recorded Music cost of revenues decreased by $88 million for the fiscal year ended September 30, 2009. Cost of revenues represented 52% and 51% of Recorded Music revenues for the fiscal years ended September 30, 2009 and 2008, respectively. The decrease in cost of revenues was driven primarily by decreases in artist and repertoire costs and product costs. The decrease in artist and repertoire costs were driven by the decrease in revenue for the 2009 fiscal year as compared with the 2008 fiscal year resulting from general economic pressures and the transition from physical sales to new forms of digital sales in the recorded music industry. The decrease in product costs was driven by the decline of physical product revenue as a result of the change in revenue mix from the sale of physical products to new forms of digital music partially offset by production costs associated with our European concert promotion business.
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Recorded Music selling, general and administrative expenses were composed of the following amounts (in millions):
| For the Fiscal Years Ended September 30, |
2010 vs. 2009 | 2009 vs. 2008 | ||||||||||||||||||||||||||
| 2010 | 2009 | 2008 | $ Change | % Change | $ Change | % Change | ||||||||||||||||||||||
| General and administrative expense (1) |
$ | 423 | $ | 398 | $ | 431 | $ | 25 | 6 | % | $ | (33 | ) | -8 | % | |||||||||||||
| Selling and marketing expense |
444 | 482 | 544 | (38 | ) | -8 | % | (62 | ) | -11 | % | |||||||||||||||||
| Distribution expense |
68 | 66 | 76 | 2 | 3 | % | (10 | ) | -13 | % | ||||||||||||||||||
| Total selling, general and administrative expense |
$ | 935 | $ | 946 | $ | 1,051 | $ | (11 | ) | -1 | % | $ | (105 | ) | -10 | % | ||||||||||||
| (1) | Includes depreciation expense of $25 million, $22 million and $28 million for the fiscal years ended September 30, 2010, 2009 and 2008, respectively. |
Selling, general and administrative expense
2010 vs. 2009
Selling, general and administrative costs decreased by $11 million for the fiscal year ended September 30, 2010. The decrease in selling, general and administrative expense was driven primarily by the decrease in selling and marketing expense partially offset by the increase in general and administrative expense. The decrease in selling and marketing expense was driven by our continued efforts to better align spending on selling and marketing expense with revenues earned. The increase in general and administrative expense was driven by severance charges $46 million taken during the 2010 fiscal year as compared with $18 million in the 2009 fiscal year, partially offset by the realization of cost savings from management initiatives taken in prior periods. Expressed as a percentage of Recorded Music revenues, selling, general and administrative expenses increased to 38% for fiscal year ended September 30, 2010 from 36% for the fiscal years ended September 30, 2009.
2009 vs. 2008
Selling, general and administrative costs decreased by $105 million for the fiscal year ended September 30, 2009. The decrease in selling, general and administrative expense was driven primarily by the decrease in selling and marketing expense, general and administrative expense and distribution expense. The decrease in selling, general and administrative expense was primarily driven by our efforts to better align selling and marketing expenses with revenues earned and the timing of our releases. The decrease in general and administrative expense was driven by the effect of continued focus on company-wide cost-management efforts and lower compensation expense, partially offset by $18 million of severance charges taken during the 2009 fiscal year. The decrease in distribution expense was commensurate with the reduction of physical product sales. Expressed as a percentage of Recorded Music revenues, selling, general and administrative expenses remained flat at 36% for the fiscal years ended September 30, 2009 and 2008.
OIBDA and Operating income from continuing operations
Recorded Music operating income from continuing operations included the following amounts (in millions):
| For the Fiscal Years Ended September 30, |
2010 vs. 2009 | 2009 vs. 2008 | ||||||||||||||||||||||||||
| 2010 | 2009 | 2008 | $ Change | % Change | $ Change | % Change | ||||||||||||||||||||||
| OIBDA |
$ | 279 | $ | 332 | $ | 411 | $ | (53 | ) | -16 | % | $ | (79 | ) | -19 | % | ||||||||||||
| Depreciation and amortization expense |
(177 | ) | (183 | ) | (183 | ) | 6 | -3 | % | — | — | |||||||||||||||||
| Operating income from continuing operations |
$ | 102 | $ | 149 | $ | 228 | $ | (47 | ) | -32 | % | $ | (79 | ) | -35 | % | ||||||||||||
2010 vs. 2009
Recorded Music OIBDA decreased by $53 million, or 16%, to $279 million for the fiscal year ended September 30, 2010 compared to $332 million for the fiscal year ended September 30, 2009. Expressed as a percentage of Recorded Music revenues, Recorded Music OIBDA margin was 11% and 13% for the fiscal years ended September 30, 2010 and 2009, respectively. Our decreased OIBDA margin was primarily the result of increased severance charges and decreased revenues, partially offset by the realization of cost savings from management initiatives taken in prior periods and the decrease in artist and repertoire costs and product costs noted above.
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Recorded Music operating income from continuing operations decreased by $47 million due to the decrease in OIBDA noted above partially offset by the decrease in depreciation and amortization expense. Recorded Music operating income margin decreased to 4% for the fiscal year ended September 30, 2010 from 6% for the fiscal year ended September 30, 2009.
2009 vs. 2008
Recorded Music OIBDA decreased by $79 million, or 19%, to $332 million for the fiscal year ended September 30, 2009 compared to $411 million for the fiscal year ended September 30, 2008. Expressed as a percentage of Recorded Music revenues, Recorded Music OIBDA margin was 13% and 14% for the fiscal years ended September 30, 2009 and 2008, respectively. Our decreased OIBDA margin was primarily the result of negative operating leverage from lower sales on a similar fixed-cost base, declines related to the recession in Japan, which is a higher-margin territory, partially offset by the effect of continued company-wide cost-management efforts.
Recorded Music operating income from continuing operations decreased by $79 million due to the decrease in OIBDA noted above. Recorded Music operating income margin decreased to 6% for the fiscal year ended September 30, 2009 from 8% for the fiscal year ended September 30, 2008.
Music Publishing
Revenues
2010 vs. 2009
Music Publishing revenues decreased by $26 million, or 4%, to $556 million for the fiscal year ended September 30, 2010 from $582 million for the fiscal year ended September 30, 2009. Prior to intersegment eliminations, Music Publishing revenues represented 18% of consolidated revenues, for the fiscal years ended September 30, 2010 and 2009. U.S. Music Publishing revenues were $214 million and $242 million, or 38% and 42% of Music Publishing revenues for the fiscal years ended September 30, 2010 and 2009, respectively. International Music Publishing revenues were $342 million and $340 million, or 62% and 58% of Music Publishing revenues for the fiscal years ended September 30, 2010 and 2009, respectively.
The decrease in Music Publishing revenue was due primarily to declines in performance revenues and mechanical revenues, which more than offset the increases in synchronization and digital revenue. Performance revenue decreases were due primarily to the timing of cash collections and our decision not to renew certain low margin administrative deals. The decrease in mechanical revenues was due primarily to a $25 million benefit recorded in the 2009 fiscal year, as compared with a $5 million benefit recorded in the 2010 fiscal year, stemming from an agreement reached by the U.S. recorded music and music publishing industries, which resulted in the payment of mechanical royalties accrued in prior years by U.S. record companies. The decrease in mechanical revenues was partially offset by higher physical recorded music royalties earned primarily related to Michael Jackson, Susan Boyle and Michael Bublé. Synchronization revenue increases reflected an improvement in the advertising industry. Digital revenue increased $5 million due to the continued transition from physical to digital sales and the timing of collections. Excluding the favorable impact of foreign currency exchange rates, total Music Publishing revenues decreased $31 million, or 5%, for the fiscal year ended September 30, 2010.
2009 vs. 2008
Music Publishing revenues decreased by $46 million, or 7%, to $582 million for the fiscal year ended September 30, 2009 from $628 million for the fiscal year ended September 30, 2008. Prior to intersegment eliminations, Music Publishing revenues represented 18% of consolidated revenues for the fiscal years ended September 30, 2009 and 2008. U.S. Music Publishing revenues were $242 million and $230 million, or 42% and 37% of Music Publishing revenues for the fiscal years ended September 30, 2009 and 2008, respectively. International Music Publishing revenues were $340 million and $398 million, or 58% and 63% of Music Publishing revenues for the fiscal years ended September 30, 2009 and 2008, respectively.
The decrease in Music Publishing revenues was due primarily to declines in mechanical revenues of $33 million and performance revenues of $17 million, which reflected the effects of the industry-wide decrease in physical sales and general economic pressures. The decrease in mechanical revenues was partially offset by a $25 million benefit from an agreement reached by the U.S. recorded music and music publishing industries, which resulted in the payment of mechanical royalties accrued in prior years by U.S. record companies. In addition, the decrease in mechanical and performance revenues was partially offset by an increase in digital revenues of $14 million as the transition from physical sales to digital sales continues. Excluding the unfavorable impact of foreign currency exchange rates, total Music Publishing revenues increased $3 million, or 1%, for the fiscal year ended September 30, 2009.
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Music Publishing cost of revenues was composed of the following amounts (in millions):
| For the Fiscal Years Ended September 30, |
2010 vs. 2009 | 2009 vs. 2008 | ||||||||||||||||||||||||||
| 2010 | 2009 | 2008 | $ Change | % Change | $ Change | % Change | ||||||||||||||||||||||
| Artist and repertoire costs |
$ | 334 | $ | 359 | $ | 400 | $ | (25 | ) | -7 | % | $ | (41 | ) | -10 | % | ||||||||||||
| Total cost of revenues |
$ | 334 | $ | 359 | $ | 400 | $ | (25 | ) | -7 | % | $ | (41 | ) | -10 | % | ||||||||||||
Cost of revenues
2010 vs. 2009
Music Publishing cost of revenues decreased by $25 million for the fiscal year ended September 30, 2010. Expressed as a percentage of Music Publishing revenues, Music Publishing cost of revenues decreased from 62% for the fiscal year ended September 30, 2009 to 60% for the fiscal year ended September 30, 2010. The decrease was driven primarily by revenue mix, an adjustment in royalty reserves and our continued focus to direct current and future spending on publishing deals that maximize profitability.
2009 vs. 2008
Music Publishing cost of revenues decreased by $41 million for the fiscal year ended September 30, 2009. Expressed as a percentage of Music Publishing revenues, Music Publishing cost of revenues decreased from 64% for the fiscal year ended September 30, 2008 to 62% for the fiscal year ended September 30, 2009. The decrease was related to the decline in associated revenues, the change in revenue mix as different royalty rates apply to different revenue streams as well as our continued focus to efficiently direct current and future spending on publishing deals that maximize profitability.
Music Publishing selling, general and administrative expenses were comprised of the following amounts (in millions):
| For the Fiscal Years Ended September 30, |
2010 vs. 2009 | 2009 vs. 2008 | ||||||||||||||||||||||||||
| 2010 | 2009 | 2008 | $ Change | % Change | $ Change | % Change | ||||||||||||||||||||||
| General and administrative expense (1) |
$ | 67 | $ | 60 | $ | 63 | $ | 7 | 12 | % | $ | (3 | ) | -5 | % | |||||||||||||
| Selling and marketing expense |
2 | 2 | 2 | — | — | — | — | |||||||||||||||||||||
| Total selling, general and administrative expense |
$ | 69 | $ | 62 | $ | 65 | $ | 7 | 11 | % | $ | (3 | ) | -5 | % | |||||||||||||
| (1) | Includes depreciation expense of $4 million for the fiscal years ended September 30, 2010, 2009 and 2008. |
Selling, general and administrative expense
2010 vs. 2009
Music Publishing selling, general and administrative expense increased $7 million to $69 million for the fiscal year ended September 30, 2010 from $62 million for the fiscal year ended September 30, 2009 primarily as a result of increased professional fees and compensation expense. Expressed as a percentage of Music Publishing revenues, Music Publishing selling, general and administrative expense was 12% and 11% for the fiscal years ended September 30, 2010 and 2009, respectively.
2009 vs. 2008
Music Publishing selling, general and administrative expense decreased $3 million to $62 million for the fiscal year ended September 30, 2009 from $65 million for the fiscal year ended September 30, 2008. Expressed as a percentage of Music Publishing revenues, Music Publishing selling, general and administrative expense was 11% and 10% for the fiscal years ended September 30, 2009 and 2008, respectively.
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OIBDA and Operating income from continuing operations
Music Publishing operating income from continuing operations includes the following amounts (in millions):
| For the Fiscal Years Ended September 30, |
2010 vs. 2009 | 2009 vs. 2008 | ||||||||||||||||||||||||||
| 2010 | 2009 | 2008 | $ Change | % Change | $ Change | % Change | ||||||||||||||||||||||
| OIBDA |
$ | 157 | $ | 165 | $ | 167 | $ | (8 | ) | -5 | % | $ | (2 | ) | -1 | % | ||||||||||||
| Depreciation and amortization expense |
(71 | ) | (68 | ) | (71 | ) | (3 | ) | 4 | % | 3 | -4 | % | |||||||||||||||
| Operating income from continuing operations |
$ | 86 | $ | 97 | $ | 96 | $ | (11 | ) | -11 | % | $ | 1 | 1 | % | |||||||||||||
2010 vs. 2009
Music Publishing OIBDA decreased $8 million to $157 million for the fiscal year ended September 30, 2010 from $165 million for the fiscal year ended September 30, 2009. The decrease in Music Publishing OIBDA was due primarily to a $2 million benefit recorded in the 2010 fiscal year, as compared with a $7 million benefit recorded in the 2009 fiscal year, stemming from an agreement reached by the U.S. recorded music and music publishing industries, which resulted in the payment of mechanical royalties accrued in prior years by U.S. record companies. Expressed as a percentage of Music Publishing revenues, Music Publishing OIBDA was flat at 28% for the fiscal years ended September 30, 2009 and 2008.
Music Publishing operating income from continuing operations decreased by $11 million for the fiscal year ended September 30, 2010 due to the increase in depreciation and amortization expense and the decrease in OIBDA as noted above. Music Publishing operating income margin decreased to 15% for the fiscal year ended September 30, 2010 from 17% for the fiscal year ended September 30, 2009.
2009 vs. 2008
Music Publishing OIBDA decreased $2 million to $165 million for the fiscal year ended September 30, 2009 as compared to $167 million for the fiscal year ended September 30, 2008. Expressed as a percentage of Music Publishing revenues, Music Publishing OIBDA was 28% and 27% for the fiscal years ended September 30, 2009 and 2008, respectively. The increase in OIBDA margin was primarily related to a $7 million OIBDA benefit from the agreement reached by the U.S. recorded music and music publishing industries noted above, which resulted in the payment of mechanical royalties accrued in prior years by U.S. record companies, as well as a reduction in cost of revenues as noted above.
Music Publishing operating income increased by $1 million for the fiscal year ended September 30, 2009 due to the decrease in depreciation and amortization expense offset by a slight decrease in OIBDA noted above. Music Publishing operating income margin increased to 17% for the fiscal year ended September 30, 2009 from 15% for the fiscal year ended September 30, 2008.
Corporate Expenses and Eliminations
2010 vs. 2009
Our OIBDA loss from corporate expenses and eliminations decreased $12 million to $88 million for the fiscal year ended September 30, 2010, from $100 million for the fiscal year ended September 30, 2009. The decrease in OIBDA loss from corporate expenses and eliminations was primarily driven by our company-wide cost management efforts and lower professional fees.
Our operating loss from continuing operations from corporate expenses and eliminations decreased to $98 million for the fiscal year ended September 30, 2010, from $111 million for the fiscal year ended September 30, 2009. The decrease in operating loss from continuing operations was primarily driven by the decrease in corporate expenses noted above and amortization expense.
2009 vs. 2008
Our OIBDA loss from corporate expenses and eliminations decreased $3 million to $100 million for the fiscal year ended September 30, 2009, compared to $103 million for the fiscal year ended September 30, 2008. The decrease in OIBDA loss from corporate expenses and eliminations was primarily driven by our company-wide cost management efforts.
Our operating loss from continuing operations from corporate expenses and eliminations decreased from $117 million for the fiscal year ended September 30, 2008 to $111 million for the fiscal year ended September 30, 2009. The decrease in operating loss from continuing operations was primarily driven by the decrease in corporate expenses noted above and decreased depreciation and amortization expense.
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FINANCIAL CONDITION AND LIQUIDITY
Financial Condition at September 30, 2010
At September 30, 2010, we had $1.687 billion of debt, $263 million of cash and equivalents (net debt of $1.424 billion, defined as total debt less cash and equivalents and short-term investments) and $174 million of shareholder’s deficit. At September 30, 2009, we had $1.686 billion of debt, $196 million of cash and equivalents (net debt of $1.490 billion, defined as total debt less cash and equivalents and short-term investments) and $81 million of shareholder’s deficit. Net debt decreased $66 million as a result of (i) a $67 million increase in cash and equivalents as more fully described below, (ii) a $4 million impact in foreign exchange rates on our Sterling-denominated Senior Subordinated Notes, offset by (iii) a $5 million increase related to the accretion on our Senior Secured Notes.
Cash Flows
The following table summarizes our historical cash flows. The financial data for the fiscal year ended September 30, 2010, 2009 and 2008 have been derived from our audited financial statements included elsewhere herein.
| Cash Provided By (Used In): |
For the Fiscal Year Ended September 30, 2010 |
For the Fiscal Year Ended September 30, 2009 |
For the Fiscal Year Ended September 30, 2008 |
|||||||||
| (in millions) | ||||||||||||
| Operating activities |
$ | 162 | $ | 237 | $ | 296 | ||||||
| Investing activities |
(85 | ) | 82 | (167 | ) | |||||||
| Financing activities |
(3 | ) | (436 | ) | (75 | ) | ||||||
Operating Activities
Cash provided by operations was $162 million for the fiscal year ended September 30, 2010 compared to $237 million for the fiscal year ended September 30, 2009. The $75 million decrease reflected the decrease in OIBDA, the increase in cash paid for severance and the expected increase in cash paid for interest of $48 million, partially offset by a decrease in cash paid for taxes.
The difference in cash paid for interest was as follows (in millions):
| Summary of Cash Interest Payments |
||||||||
| Year Ended September 30, 2010 |
Year Ended September 30, 2009 |
|||||||
| 9.5% Senior Secured Notes due 2016—Acquisition Corp. |
$ | 110 | $ | — | ||||
| Senior secured credit facility—Acquisition Corp. |
— | 62 | ||||||
| 7.375% U.S. dollar-denominated Notes due 2014—Acquisition Corp. |
34 | 34 | ||||||
| 8.125% Sterling-denominated Notes due 2014—Acquisition Corp. |
13 | 13 | ||||||
| Total cash interest payments |
$ | 157 | $ | 109 | ||||
In May 2009, we issued the Acquisition Corp. Senior Secured Notes, which have semi-annual interest payments, and we repaid in full the senior secured credit facility, which had quarterly interest payments. This compared with only three quarterly cash interest payments under our senior secured credit facility during fiscal 2009.
Investing Activities
Cash used in investing activities was $85 million for the fiscal year ended September 30, 2010 as compared to cash provided by investing activities of $82 million for the fiscal year ended September 30, 2009. Cash used in investing activities of $85 million for the fiscal year ended September 30, 2010 consisted of $51 million of capital expenditures primarily related to software infrastructure improvements, cash used of $36 million to acquire music publishing rights, cash used for acquisitions totaling $7 million, net of cash acquired, offset by $9 million of cash proceeds received in the connection with the sale of our equity investment in lala media, inc. Cash provided by investing activities of $82 million for the fiscal year ended September 30, 2009 consisted primarily of proceeds received from the sale of our remaining stake in Front Line Management to Ticketmaster for $123 million and proceeds from the sale of a building of $8 million offset by $27 million in capital expenditures, cash used for acquisitions totaling $16 million and $11 million of cash used to acquire music publishing rights.
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Financing Activities
Cash used in financing activities was $3 million for the fiscal year ended September 30, 2010 compared to $436 million for the fiscal year ended September 30, 2009. Cash used in financing activities of $3 million for the fiscal year ended September 30, 2010 consisted of distributions to our noncontrolling interest holders. Cash used in financing activities of $436 million for the fiscal year ended September 30, 2009 consisted of the full repayment of the senior credit facility of $1.371 billion, our dividend payment of $90 million, quarterly repayments of debt of $8 million, $23 million of financing fees related to the Senior Secured Notes and distributions to our noncontrolling interest holders of $3 million, offset by $1.059 billion of net proceeds from the issuance of the Senior Secured Notes.
Liquidity
Our primary sources of liquidity are the cash flows generated from our subsidiaries’ operations and available cash and equivalents and short-term investments. These sources of liquidity are needed to fund our debt service requirements, working capital requirements, capital expenditure requirements, strategic acquisitions and investments, and any dividends or repurchases of our or Holdings’ outstanding notes or common stock in open market purchases, privately negotiated purchases or otherwise, Parent may elect to pay or make in the future. We believe that our existing sources of cash will be sufficient to support our existing operations over the next fiscal year.
As of September 30, 2010, our long-term debt consisted of $1.1 billion aggregate principal amount of Acquisition Corp. Senior Secured Notes less unamortized discount of $35 million and $622 million of Acquisition Corp. Senior Subordinated Notes.
Senior Secured Notes
As of September 30, 2010, we had $1.065 billion of debt represented by the Acquisition Corp. Senior Secured Notes. The Acquisition Corp. Senior Secured Notes were issued at 96.289% of their face value for total net proceeds of $1.059 billion, with an effective interest rate of 10.25%. The original issue discount (OID) was $41 million. The OID is equal to the difference between the stated principal amount and the issue price. The OID will be amortized over the term of the Senior Secured Notes using the effective interest rate method and reported as non-cash interest expense. The Acquisition Corp. Senior Secured Notes mature on June 15, 2016 and bear interest payable semi-annually on June 15 and December 15 of each year at a fixed rate of 9.50% per annum.
The Senior Secured Notes are senior secured obligations that rank senior in right of payment to our subordinated indebtedness, including its existing senior subordinated notes. The obligations under the Senior Secured Notes are fully and unconditionally guaranteed on a senior secured basis by each of our existing direct or indirect wholly owned U.S. subsidiaries and any such subsidiaries that guarantee other indebtedness of Acquisition Corp. in the future. The Senior Secured Notes are not guaranteed by Holdings. All obligations under the Senior Secured Notes and the guarantees of those obligations are secured by first-priority liens, subject to permitted liens, in the assets of Holdings, Acquisition Corp., and the subsidiary guarantors that previously secured our senior secured credit facility, which consist of the shares of Acquisition Corp., our assets and the assets of the subsidiary guarantors, except for certain excluded assets.
At any time prior to June 15, 2012, we, at our option, may redeem up to 35% of the aggregate principal amount of the Senior Secured Notes at a redemption price of 109.50% of the principal amount of the Senior Secured Notes redeemed, plus accrued and unpaid interest with the proceeds of an Equity Offering, as defined in the indenture, provided that after such redemption at least 50% of the originally issued Senior Secured Notes remain outstanding. Prior to June 15, 2013, we may redeem some or all of the Senior Secured Notes at a price equal to 100% of the principal amount plus a make whole premium, as defined in the indenture. The Senior Secured Notes are also redeemable in whole or in part, at our option, at any time on or after June 15, 2013 for the following redemption prices, plus accrued and unpaid interest:
| Twelve month period beginning June 15, |
Percentage | |||
| 2013 |
104.750 | % | ||
| 2014 |
102.375 | % | ||
| 2015 and thereafter |
100.000 | % | ||
Upon the consummation and closing of a Major Music/Media Transaction, as defined in the indenture, at any time prior to June 15, 2013, the Senior Secured Notes may be redeemed in whole or in part, at our option, at a redemption price of 104.75% plus accrued and unpaid interest. In the event of a change in control, as defined in the indenture, each holder of the Senior Secured Notes may require us to repurchase some or all of its respective Senior Secured Notes at a purchase price equal to 101% plus accrued and unpaid interest.
The indenture for the Senior Secured Notes contains a number of covenants that, among other things, limit (subject to certain exceptions), the ability of Acquisition Corp. and our restricted subsidiaries to (i) incur additional debt or issue certain preferred shares; (ii) pay dividends on or make distributions in respect of its capital stock or make other restricted payments (as defined in the indenture); (iii) make certain investments; (iv) sell certain assets; (v) create liens on certain debt; (vi) consolidate, merge, sell or
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otherwise dispose of all or substantially all of its assets; (vii) sell or otherwise dispose of its Music Publishing business; (viii) enter into certain transactions with affiliates and (ix) designate its subsidiaries as unrestricted subsidiaries.
We used the net proceeds from the Senior Secured Notes offering, plus approximately $335 million in existing cash, to repay in full all amounts due under its senior secured credit facility and pay related fees and expenses. In connection with the repayment, we terminated our revolving credit facility.
Senior Subordinated Notes of Acquisition Corp.
Acquisition Corp. has outstanding two tranches of senior subordinated notes due in 2014: $465 million principal amount of U.S. dollar-denominated notes and £100 million principal amount of Sterling-denominated notes (collectively, the “Acquisition Corp. Senior Subordinated Notes”). The Acquisition Corp. Senior Subordinated Notes mature on April 15, 2014 and bear interest payable semi-annually on April 15 and October 15 of each year at a fixed rate of 7.375% per annum on the $465 million dollar notes and 8.125% per annum on the £100 million Sterling-denominated notes.
The indenture governing the Acquisition Corp. Senior Subordinated Notes limits our ability and the ability of our restricted subsidiaries to incur additional indebtedness or issue certain preferred shares; to pay dividends on or make other distributions in respect of our capital stock or make other restricted payments; to make certain investments; to sell certain assets; to create liens on certain debt without securing the notes; to consolidate, merge, sell or otherwise dispose of all or substantially all of our assets; to enter into certain transactions with affiliates and to designate our subsidiaries as unrestricted subsidiaries. Subject to certain exceptions, the indenture governing the notes permits us and our restricted subsidiaries to incur additional indebtedness, including secured indebtedness, and to make certain restricted payments and investments.
Holdings Senior Discount Notes
Our immediate parent company, Holdings, issued debt in December of 2004. While Holdings is the issuer of such debt, it is a holding company that conducts substantially all of its business operations through us, its only asset and wholly owned subsidiary. As such, Holdings will be relying on us to make any payments of principal and interest as they become due.
As of September 30, 2010, Holdings had $258 million of debt represented by the Holdings Senior Discount Notes. The Holdings Senior Discount Notes were issued at a discount and had an initial accreted value of $630.02 per $1,000 principal amount at maturity. Prior to December 15, 2009, no cash interest payments accrued. However, interest accrued on the Holdings Senior Discount Notes in the form of an increase in the accreted value of such notes such that the accreted value of the Holdings Senior Discount Notes equaled the principal amount at maturity of $258 million on December 15, 2009. Thereafter, cash interest on the Holdings Senior Discount Notes is payable semi-annually on June 15 and December 15 of each year at a fixed rate of 9.5% per annum with the initial cash interest payment paid on June 15, 2010. The Holdings Senior Discount Notes mature on December 15, 2014.
Dividends
Parent discontinued its previous policy of paying a regular quarterly dividend during the second quarter of fiscal year 2008. Any future determination to pay dividends will be at the discretion of our Board of Directors and will depend on, among other things, our results of operations, cash requirements, financial condition, contractual restrictions and other factors our Board of Directors may deem relevant.
Covenant Compliance
The indentures governing the Holdings Senior Discount Notes, the Acquisition Corp. Senior Subordinated Notes and the Acquisition Corp. Senior Secured Notes contain certain financial covenants, which limit the ability of us and our restricted subsidiaries as defined in the indentures governing the notes to, among other things, incur additional indebtedness, issue certain preferred shares, pay dividends, make certain investments, sell certain assets, create liens on certain debt, and consolidate, merge, sell or otherwise dispose of all, or some of, our assets. In order for us and Holdings to incur additional debt or make certain restricted payments using certain exceptions provided for in the indentures governing the Acquisition Corp. Senior Subordinated Notes, the Acquisition Corp. Senior Secured Notes and Holdings Senior Discount Notes, the Fixed Charge Coverage Ratio, as defined in such indentures, must exceed a 2.0 to 1.0 ratio. The Fixed Charge Coverage Ratio is the ratio of EBITDA to Fixed Charges, as defined in the indentures. EBITDA, as defined in the indentures, is adjusted to add back certain non-cash, non-recurring and other items that are included in the definitions of EBITDA and consolidated net income in the indentures. Fixed Charges are defined in such indentures as consolidated interest expense excluding certain non-cash interest expense.
The terms of the indentures governing the Acquisition Corp. Senior Subordinated Notes, the Acquisition Corp. Senior Secured Notes and Holdings Senior Discount Notes significantly restrict us, Holdings and our subsidiaries from paying dividends and otherwise transferring assets to Parent. For example, the ability of Acquisition Corp. and Holdings to make such payments is governed by a formula based on 50% of each of their consolidated net income (which, as defined in the indentures governing such notes, excludes goodwill impairment charges and any after-tax extraordinary, unusual or nonrecurring gains and losses) accruing from
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July 1, 2004 under the indentures governing the Acquisition Corp. Senior Subordinated Notes, the Holdings Senior Discount Notes, and July 1, 2009 under the Acquisition Corp. Senior Secured Notes, plus in each case proceeds from equity offerings and capital contributions, among other items. In addition, as a condition to making such payments to us based on such formula, Acquisition Corp. and Holdings must each have a Fixed Charge Coverage Ratio of at least 2.0 to 1.0 after giving effect to any such payments. Notwithstanding such restrictions, the indentures governing the Acquisition Corp. Senior Subordinated Notes, the Holdings Senior Discount Notes and the Acquisition Corp. Senior Secured Notes permit an aggregate of $45 million, $75 million and $50 million, respectively, of such payments to be made by Acquisition Corp. and Holdings pursuant to the indentures, whether or not there is availability under the formula or the conditions to its use are met. The indenture governing the Acquisition Corp. Senior Secured Notes also permits us to make restricted payments not to exceed $90 million in any fiscal year.
We and Holdings may make additional restricted payments using certain other exceptions provided for in the indentures governing the Acquisition Corp. Senior Subordinated Notes, the Acquisition Corp. Senior Secured Notes and Holdings Senior Discount Notes.
Summary
Management believes that funds generated from our operations will be sufficient to fund our debt service requirements, working capital requirements and capital expenditure requirements for the foreseeable future. We also have additional borrowing capacity under our indentures. However, our ability to continue to fund these items and to reduce debt may be affected by general economic, financial, competitive, legislative and regulatory factors, as well as other industry-specific factors such as the ability to control music piracy and the continued industry-wide decline of CD sales. We or any of our affiliates may also, from time to time depending on market conditions and prices, contractual restrictions, our financial liquidity and other factors, seek to repurchase our Holdings Senior Discount Notes, our Acquisition Corp. Senior Subordinated Notes or our Acquisition Corp. Senior Secured Notes and/or Parent’s common stock in open market purchases, privately negotiated purchases or otherwise. The amounts involved in any such transactions, individually or in the aggregate, may be material and may be funded from available cash or from additional borrowings. In addition, we may from time to time, depending on market conditions and prices, contractual restrictions, our financial liquidity and other factors, seek to refinance our Holdings Senior Discount Notes, Acquisition Corp. Senior Subordinated Notes and/or our Acquisition Corp. Senior Secured Notes with existing cash and/or with funds provided from additional borrowings.
Contractual and Other Obligations
Firm Commitments
The following table summarizes the Company’s aggregate contractual obligations at September 30, 2010, and the estimated timing and effect that such obligations are expected to have on the Company’s liquidity and cash flow in future periods.
| Fiscal years | Total | |||||||||||||||||||
| Firm Commitments and Outstanding Debt |
Less than 1 year |
1-3 years |
3-5 years |
After 5 years |
||||||||||||||||
| (in millions) | ||||||||||||||||||||
| Senior Secured Notes |
$ | — | $ | — | $ | — | $ | 1,100 | $ | 1,100 | ||||||||||
| Interest on Senior Secured Notes |
105 | 209 | 209 | 105 | 628 | |||||||||||||||
| Acquisition Corp. Senior Subordinated Notes |
— | — | 622 | — | 622 | |||||||||||||||
| Interest on Acquisition Corp. Senior Subordinated Notes |
47 | 94 | 47 | — | 188 | |||||||||||||||
| Operating leases |
33 | 48 | 21 | 18 | 120 | |||||||||||||||
| Artist, songwriter and co-publisher commitments |
54 | 107 | 107 | — | 268 | |||||||||||||||
| Minimum funding commitments to investees and other obligations. |
3 | 3 | — | — | 6 | |||||||||||||||
| Total firm commitments and outstanding debt |
$ | 242 | $ | 461 | $ | 1,006 | $ | 1,223 | $ | 2,932 | ||||||||||
The following is a description of our firmly committed contractual obligations at September 30, 2010:
| • | Outstanding debt obligations consist of the Senior Secures Noted and Senior Subordinated Notes. These obligations have been presented based on the principal amounts due, current and long term as of September 30, 2010. Amounts do not include any fair value adjustments, bond premiums or discounts. See Note 11 to the audited financial statements for a description of our financing arrangements. |
| • | Operating lease obligations primarily relate to the minimum lease rental obligations for our real estate and operating equipment in various locations around the world. These obligations have been presented with the benefit of $3 million of sublease income expected to be received under non-cancelable agreements. The future minimum payments reflect the amounts owed under our lease arrangements and do not include any fair market value adjustments that may have been recorded as a result of the Acquisition. |
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| • | We enter into long-term commitments with artists, songwriters and co-publishers for the future delivery of music product. Aggregate firm commitments to such talent approximated $268 million across hundreds of artists, songwriters, publishers, songs and albums at September 30, 2010. Such commitments, which are unpaid advances across multiple albums and songs, are payable principally over a ten-year period, generally upon delivery of albums from the artists or future musical compositions by songwriters and co-publishers. Because the timing of payment, and even whether payment occurs, is dependent upon the timing of delivery of albums and musical compositions from talent, the timing and amount of payment of these commitments as presented in the above summary can vary significantly. |
| • | We have minimum funding commitments and other related obligations to support the operations of various investments, which are reflected in the table above. |
MARKET RISK MANAGEMENT
We are exposed to market risk arising from changes in market rates and prices, including movements in foreign currency exchange rates and interest rates.
Foreign Currency Risk
We have significant transactional exposure to changes in foreign currency exchange rates relative to the U.S. dollar due to the global scope of our operations. For the fiscal year ended September 30, 2010, prior to intersegment eliminations, approximately $1.754 billion, or 58%, of our revenues were generated outside of the U.S. The top five revenue-producing international countries are the U.K., Germany, Japan, France and Italy, which use the British pound sterling, Japanese yen and euro as currencies, respectively. See Note 18 to our audited financial statements included elsewhere herein for information on our operations in different geographical areas.
Historically, we have used (and continue to use) foreign exchange forward contracts, primarily to hedge the risk that unremitted or future royalties and license fees owed to our domestic companies for the sale, or anticipated sale, of U.S.-copyrighted products abroad may be adversely affected by changes in foreign currency exchange rates. In addition, we hedge foreign currency risk associated with financing transactions such as third-party and inter-company debt.
We focus on managing the level of exposure to the risk of foreign currency exchange rate fluctuations on our major currencies, which include the euro, British pound sterling, Japanese yen, Canadian dollar, Swedish krona and Australian dollar. See Note 17 to our audited financial statements included elsewhere herein for additional information.
The Company also is exposed to foreign currency exchange rate risk with respect to its £100 million principal amount of Sterling-denominated notes that were issued in April 2004. These sterling notes mature on April 15, 2014. As of September 30, 2010, these sterling notes had a carrying value of $157 million. Based on the principal amount of Sterling-denominated notes outstanding as of September 30, 2010 and assuming that all other market variables are held constant (including the level of interest rates), a 10% weakening or strengthening of the U.S. dollar compared to the British pound sterling would not have an impact on the fair value of these sterling notes, since these notes are completely hedged as of September 30, 2010.
Interest Rate Risk
We have $1.687 billion debt outstanding at September 30, 2010. Based on the level of interest rates prevailing at September 30, 2010, the fair value of this fixed-rate debt was approximately $1.760 billion. Further, based on the amount of our fixed-rate debt, a 25 basis point increase or decrease in the level of interest rates would increase or decrease the fair value of the fixed-rate debt by approximately $16 million. This potential increase or decrease is based on the simplified assumption that the level of fixed-rate debt remains constant with an immediate across the board increase or decrease in the level of interest rates with no subsequent changes in rates for the remainder of the period.
We monitor our positions with, and the credit quality of, the financial institutions that are party to any of our financial transactions.
CRITICAL ACCOUNTING POLICIES
The SEC’s Financial Reporting Release No. 60, “Cautionary Advice Regarding Disclosure About Critical Accounting Policies” (“FRR 60”), suggests companies provide additional disclosure and commentary on those accounting policies considered most critical. FRR 60 considers an accounting policy to be critical if it is important to our financial condition and results, and requires significant judgment and estimates on the part of management in our application. We believe the following list represents critical accounting policies as contemplated by FRR 60. For a summary of all of our significant accounting policies, see Note 3 to our audited consolidated financial statements included elsewhere herein.
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Purchase Accounting
We account for our business acquisitions under the Financial Accounting Standards Board (“FASB”) authoritative guidance for business combinations. The total cost of acquisitions is allocated to the underlying identifiable net assets based on their respective estimated fair values. The excess of the purchase price over the estimated fair values of the net assets acquired is recorded as goodwill. Determining the fair value of assets acquired and liabilities assumed requires management’s judgment and often involves the use of significant estimates and assumptions, including assumptions with respect to future cash inflows and outflows, discount rates, asset lives and market multiples, among other items. In addition, reserves have been established on our balance sheet related to acquired liabilities and qualifying restructuring costs based on assumptions made at the time of acquisition. We evaluate these reserves on a regular basis to determine the adequacy or accuracy of the amounts estimated.
Accounting for Goodwill and Other Intangible Assets
We account for our goodwill and other indefinite-lived intangible assets as required by FASB Accounting Standards Codification (“ASC”) Topic 350, Intangibles—Goodwill and other (“ASC 350”). Under ASC 350, we no longer amortize goodwill, including the goodwill included in the carrying value of investments accounted for using the equity method of accounting, and certain other intangible assets deemed to have an indefinite useful life. ASC 350 requires that goodwill and certain intangible assets be assessed for impairment using fair value measurement techniques on an annual basis and when events occur that may suggest that the fair value of such assets cannot support the carrying value. Goodwill impairment is tested using a two-step process. The first step of the goodwill impairment test is used to identify potential impairment by comparing the fair value of a reporting unit with its net book value (or carrying amount), including goodwill.
In performing the first step, management determines the fair value of its reporting units using a combination of a discounted cash flow (“DCF”) analysis and a market-based approach. Determining fair value requires significant judgment concerning the assumptions used in the valuation model, including discount rates, the amount and timing of expected future cash flows and, growth rates, as well as relevant comparable company earnings multiples for the market-based approach including the determination of whether a premium or discount should be applied to those comparables. The cash flows employed in the DCF analyses are based on management’s most recent budgets and business plans and when applicable, various growth rates have been assumed for years beyond the current business plan periods. Any forecast contains a degree of uncertainty and modifications to these cash flows could significantly increase or decrease the fair value of a reporting unit. For example, if revenue from sales of physical products continues to decline and the revenue from sales of digital products does not continue to grow as expected and we are unable to adjust costs accordingly, it could have a negative impact on future impairment tests. In determining which discount rate to utilize, management determines the appropriate weighted average cost of capital (“WACC”) for each reporting unit. Management considers many factors in selecting a WACC, including the market view of risk for each individual reporting unit, the appropriate capital structure and the appropriate borrowing rates for each reporting unit. The selection of a WACC is subjective and modification to this rate could significantly increase or decrease the fair value of a reporting unit.
If the fair value of a reporting unit exceeds its carrying amount, goodwill of the reporting unit is considered not impaired and the second step of the impairment test is unnecessary. If the carrying amount of a reporting unit exceeds its fair value, the second step of the goodwill impairment test is performed to measure the amount of impairment loss, if any. The second step of the goodwill impairment test compares the implied fair value of the reporting unit’s goodwill with the carrying amount of that goodwill. If the carrying amount of the reporting unit’s goodwill exceeds the implied fair value of that goodwill, an impairment loss is recognized in an amount equal to that excess. The implied fair value of goodwill is determined in the same manner as the amount of goodwill recognized in a business combination. That is, the fair value of the reporting unit is allocated to all of the assets and liabilities of that unit (including any unrecognized intangible assets) as if the reporting unit had been acquired in a business combination and the fair value of the reporting unit was the purchase price paid to acquire the reporting unit.
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As of September 30, 2010, we had recorded goodwill in the amount of $1.057 billion, primarily related to the Acquisition (as defined). We test our goodwill and other indefinite-lived intangible assets for impairment on an annual basis in the fourth quarter of each fiscal year. The performance of our fiscal 2010 impairment analyses did not result in any impairments of the Company’s goodwill and other indefinite-lived intangible assets. The discount rates utilized in the fiscal 2010 analysis ranged from 9% to 10% while the terminal growth rates used in the DCF analysis ranged from 2% to 5%. To illustrate the magnitude of a potential impairment relative to future changes in estimated fair values, had the fair values of each of the reporting units been hypothetically lower by 40% at September 30, 2010, no reporting unit’s book value would have exceeded its fair value. The percentage by which the fair value of each reporting unit exceeded the respective carrying value was as follows:
| Reporting Unit |
Percentage by which Fair Value Exceeded Carrying Value | |
| U.S. Recorded Music |
Greater than 50% | |
| International Recorded Music |
Greater than 200% | |
| Publishing |
Greater than 50% |
The impairment test for other intangible assets not subject to amortization involves a comparison of the estimated fair value of the intangible asset with its carrying value. If the carrying value of the intangible asset exceeds its fair value, an impairment loss is recognized in an amount equal to that excess. The estimates of fair value of intangible assets not subject to amortization are determined using a DCF valuation analysis. Common among such approaches is the “relief from royalty” methodology, which is used in estimating the fair value of the Company’s trademarks. Discount rate assumptions are based on an assessment of the risk inherent in the projected future cash flows generated by the respective intangible assets. Also subject to judgment are assumptions about royalty rates, which are based on the estimated rates at which similar trademarks are being licensed in the marketplace.
See Note 8 to our audited consolidated financial statements contained in our annual report on Form 10-K for the fiscal year ended September 30, 2010 for a further discussion of our goodwill and other intangible assets.
Revenue and Cost Recognition
Sales Returns and Uncollectible Accounts
In accordance with practice in the recorded music industry and as customary in many territories, certain products (such as CDs and DVDs) are sold to customers with the right to return unsold items. Under FASB ASC Topic 605, Revenue Recognition, revenues from such sales are recognized when the products are shipped based on gross sales less a provision for future estimated returns.
In determining the estimate of product sales that will be returned, management analyzes historical returns, current economic trends, changes in customer demand and commercial acceptance of our products. Based on this information, management reserves a percentage of each dollar of product sales to provide for the estimated customer returns.
Similarly, management evaluates accounts receivables to determine if they will ultimately be collected. In performing this evaluation, significant judgments and estimates are involved, including an analysis of specific risks on a customer-by-customer basis for larger accounts and customers, and a receivables aging analysis that determines the percent that has historically been uncollected by aged category. Based on this information, management provides a reserve for the estimated amounts believed to be uncollectible.
Based on management’s analysis of sales returns and uncollectible accounts, reserves totaling $111 million and $135 million were established at September 30, 2010 and September 30, 2009, respectively. The ratio of our receivable allowances to gross accounts receivables was approximately 20% at both September 30, 2010 and September 30, 2009.
Gross Versus Net Revenue Classification
In the normal course of business, we act as an intermediary or agent with respect to certain payments received from third parties. For example, we distribute music product on behalf of third-party record labels.
The accounting issue encountered in these arrangements is whether we should report revenue based on the “gross” amount billed to the ultimate customer or on the “net” amount received from the customer after participation and other royalties paid to third parties. To the extent revenues are recorded gross (in the full amount billed), any participations and royalties paid to third parties are recorded as expenses so that the net amount (gross revenues, less expenses) flows through operating income. Accordingly, the impact on operating income is the same, whether we record the revenue on a gross basis or net basis (less related participations and royalties).
Determining whether revenue should be reported gross or net is based on an assessment of whether we are acting as the “principal” in a transaction or acting as an “agent” in the transaction. To the extent we are acting as a principal in a transaction, we report as revenue the payments received on a gross basis. To the extent we are acting as an agent in a transaction, we report as revenue
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the payments received less participations and royalties paid to third parties, i.e., on a net basis. The determination of whether we are serving as principal or agent in a transaction is judgmental in nature and based on an evaluation of the terms of an arrangement.
In determining whether we serve as principal or agent in these arrangements, we follow the guidance in FASB ASC Subtopic 605-45, Principal Agent Considerations (“ASC 605-45”). Pursuant to such guidance, we serve as the principal in transactions where we have the substantial risks and rewards of ownership. The indicators that we have substantial risks and rewards of ownership are as follows:
| • | we are the supplier of the products or services to the customer; |
| • | we have latitude in establishing prices; |
| • | we have the contractual relationship with the ultimate customer; |
| • | we modify and service the product purchased to meet the ultimate customer specifications; |
| • | we have discretion in supplier selection; and |
| • | we have credit risk. |
Conversely, pursuant to ASC 605-45, we serve as agent in arrangements where we do not have substantial risks and rewards of ownership. The indicators that we do not have substantial risks and rewards of ownership are as follows:
| • | the supplier (not the Company) is responsible for providing the product or service to the customer; |
| • | the supplier (not the Company) has latitude in establishing prices; |
| • | the amount we earn is fixed; |
| • | the supplier (not the Company) has credit risk; and |
| • | the supplier (not the Company) has general inventory risk for a product before it is sold. |
Based on the above criteria and for the more significant transactions that we have evaluated, we record the distribution of product on behalf of third-party record labels on a gross basis, subject to the terms of the contract. However, recorded music compilations distributed by other record companies where we have a right to participate in the profits are recorded on a net basis.
Accounting for Royalty Advances
We regularly commit to and pay royalty advances to our recording artists and songwriters in respect of future sales. We account for these advances under the related guidance in FASB ASC Topic 928, Entertainment—Music (“ASC 928”). Under ASC 928, we capitalize as assets certain advances that we believe are recoverable from future royalties to be earned by the recording artist or songwriter. Advances vary in both amount and expected life based on the underlying recording artist or songwriter. Advances to recording artists or songwriters with a history of successful commercial acceptability will typically be larger than advances to a newer or unproven recording artist or songwriter. In addition, in most cases these advances represent a multi-album release or multi-song obligation and the number of albums releases and songs will vary by recording artist or songwriter.
Management’s decision to capitalize an advance to a recording artist or songwriter as an asset requires significant judgment as to the recoverability of the advance. The recoverability is assessed upon initial commitment of the advance based upon management’s forecast of anticipated revenue from the sale of future and existing albums or songs. In determining whether the advance is recoverable, management evaluates the current and past popularity of the recording artist or songwriter, the sales history of the recording artist or songwriter, the initial or expected commercial acceptability of the product, the current and past popularity of the genre of music that the product is designed to appeal to, and other relevant factors. Based upon this information, management expenses the portion of any advance that it believes is not recoverable. In most cases, advances to recording artists or songwriters without a history of success and evidence of current or past popularity will be expensed immediately. Advances are individually assessed for recoverability continuously and at minimum on a quarterly basis. As part of the ongoing assessment of recoverability, we monitor the projection of future sales based on the current environment, the recording artist’s or songwriter’s ability to meet their contractual obligations as well as our intent to support future album releases or songs from the recording artist or songwriter. To the extent that a portion of an outstanding advance is no longer deemed recoverable, that amount will be expensed in the period the determination is made.
We had $332 million and $380 million of advances in our balance sheet at September 30, 2010 and September 30, 2009, respectively. We believe such advances are recoverable through future royalties to be earned by the applicable recording artists and songwriters.
Stock-Based Compensation
We account for share-based payments in accordance with FASB ASC Topic 718, Compensation—Stock Compensation (“ASC 718”). ASC 718 requires all share-based payments to employees, including grants of employee stock options, to be recognized as
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compensation expense based on their fair value. Under this fair value recognition provision of ASC 718, stock-based compensation cost is measured at the grant date based on the fair value of the award and is recognized as expense over the vesting period. We have applied the modified prospective method and expenses deferred stock-based compensation on an accelerated basis over the vesting period of the stock award.
We estimate the fair value of our grants made using the binomial method, which includes assumptions related to volatility, expected life, dividend yield and risk-free interest rate. We also award or sell restricted shares to our employees. For restricted shares awarded or sold below market value, the accounting charge is measured at the grant date and amortized ratably as non-cash compensation over the vesting term.
Accounting for Income Taxes
As part of the process of preparing the consolidated financial statements, we are required to estimate income taxes payable in each of the jurisdictions in which we operate. This process involves estimating the actual current tax expense together with assessing temporary differences resulting from differing treatment of items for tax and accounting purposes. These differences result in deferred tax assets and liabilities, which are included within our consolidated balance sheets. FASB ASC Topic 740, Income Taxes (“ASC 740”), requires a valuation allowance be established when it is more likely than not that all or a portion of deferred tax assets will not be realized. In circumstances where there is sufficient negative evidence, establishment of a valuation allowance must be considered. We believe that cumulative losses in the most recent three-year period generally represent sufficient negative evidence to consider a valuation allowance under the provisions of ASC 740. As a result, we determined that certain of our deferred tax assets required the establishment of a valuation allowance.
The realization of the remaining deferred tax assets is primarily dependent on forecasted future taxable income. Any reduction in estimated forecasted future taxable income may require that we record additional valuation allowances against our deferred tax assets on which a valuation allowance has not previously been established. The valuation allowance that has been established will be maintained until there is sufficient positive evidence to conclude that it is more likely than not that such assets will be realized. An ongoing pattern of profitability will generally be considered as sufficient positive evidence. Our income tax expense recorded in the future may be reduced to the extent of offsetting decreases in our valuation allowance. The establishment and reversal of valuation allowances could have a significant negative or positive impact on our future earnings.
Tax assessments may arise several years after tax returns have been filed. Predicting the outcome of such tax assessments involves uncertainty; however, we believe that recorded tax liabilities adequately account for our analysis of more likely than not outcomes.
New Accounting Principles
In addition to the critical accounting policies discussed above, we adopted several new accounting policies during the past two years. None of these new accounting principles had a material effect on our audited financial statements. See Note 3 to our audited financial statements included elsewhere herein for a complete summary.
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| ITEM 7A. | QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK |
As discussed in Note 17 to our audited financial statements for the fiscal year ended September 30, 2010, the Company is exposed to market risk arising from changes in market rates and prices, including movements in foreign currency exchange rates and interest rates. As of September 30, 2010, other than as described below, there have been no material changes to the Company’s exposure to market risk since September 30, 2009.
We have transactional exposure to changes in foreign currency exchange rates relative to the U.S. dollar due to the global scope of our operations. We use foreign exchange contracts, primarily to hedge the risk that unremitted or future royalties and license fees owed to our domestic companies for the sale, or anticipated sale, of U.S.-copyrighted products abroad may be adversely affected by changes in foreign currency exchange rates. We focus on managing the level of exposure to the risk of foreign currency exchange rate fluctuations on our major currencies, which include the British pound sterling, euro, Japanese yen, Canadian dollar, Swedish krona and Australian dollar. During the fiscal year ended September 30, 2010, the Company entered into foreign exchange hedge contracts and, as of September 30, 2010, the Company has outstanding hedge contracts for the sale of $180 million and the purchase of $73 million of foreign currencies at fixed rates. Subsequent to September 30, 2010, certain of our foreign exchange contracts expired and were renewed with new foreign exchange contracts with similar features.
The fair value of foreign exchange contracts is subject to changes in foreign currency exchange rates. For the purpose of assessing the specific risks, we use a sensitivity analysis to determine the effects that market risk exposures may have on the fair value of our financial instruments. For foreign exchange forward contracts outstanding at September 30, 2010, assuming a hypothetical 10% depreciation of the U.S dollar against foreign currencies from prevailing foreign currency exchange rates and assuming no change in interest rates, the fair value of the foreign exchange forward contracts would have decreased by $11 million. Because our foreign exchange contracts are entered into for hedging purposes, these losses would be largely offset by gains on the underlying transactions.
We are exposed to foreign currency exchange rate risk with respect to our £100 million principal amount of Sterling-denominated notes that were issued in April 2004. These sterling notes mature on April 15, 2014. As of September 30, 2010, these sterling notes had a fair value and carrying value of approximately $157 million. Based on the principal amount of Sterling-denominated notes outstanding as of September 30, 2010 and assuming that all other market variables are held constant (including the level of interest rates), a 10% weakening or strengthening of the U.S. dollar compared to the British pound sterling would not have an impact on the fair value of these sterling notes, since these notes are completely hedged as of September 30, 2010.
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| ITEM 8. | FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA |
WMG ACQUISITION CORP.
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
Contents
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MANAGEMENT’S REPORT ON INTERNAL CONTROL OVER
FINANCIAL REPORTING
Management is responsible for establishing and maintaining adequate internal control over financial reporting as defined in Rule 13a-15(f) under the U.S. Securities Exchange Act of 1934, as amended. Management designed our internal control systems in order to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with accounting principles generally accepted in the United States of America. Our 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 our assets; (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 are being made only in accordance with authorizations of management and directors; and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of our assets that could have a material effect on the financial statements.
Our internal control systems include the controls themselves, monitoring and internal auditing practices and actions taken to correct deficiencies as identified and are augmented by written policies, an organizational structure providing for division of responsibilities, careful selection and training of qualified financial personnel and a program of internal audits.
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.
Management conducted an evaluation of the effectiveness of our internal control over financial reporting based on the framework in Internal Control—Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission. Based on its evaluation, our management concluded that our internal control over financial reporting was effective as of September 30, 2010. The Company’s independent auditors have issued their report on the Company’s internal control over financial reporting.
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Report of Independent Registered Public Accounting Firm on Internal Control over Financial Reporting
The Board of Directors and Shareholder of WMG Acquisition Corp.
We have audited WMG Acquisition Corp.’s internal control over financial reporting as of September 30, 2010, based on criteria established in Internal Control—Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (the COSO criteria). WMG Acquisition Corp.’s management is responsible 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 Management’s Report on Internal Control over Financial Reporting. Our responsibility is to express an opinion on WMG Acquisition Corp.’s internal control over financial reporting based on our audit.
We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether effective internal control over financial reporting was maintained in all material respects. Our audit included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, testing and evaluating the design and operating effectiveness of internal control based on the assessed risk, and performing such other procedures as we considered necessary in the circumstances. We believe that our audit provides a reasonable basis for our opinion.
A company’s 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 company’s internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (2) 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 (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the company’s 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.
In our opinion, WMG Acquisition Corp. maintained, in all material respects, effective internal control over financial reporting as of September 30, 2010, based on the COSO criteria.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the consolidated balance sheets of WMG Acquisition Corp. as of September 30, 2010 and 2009, and the related consolidated statements of operations, deficit, and cash flows for each of the three years in the period ended September 30, 2010 of WMG Acquisition Corp. and our report dated November 17, 2010 expressed an unqualified opinion thereon.
New York, NY
November 17, 2010
/s/ Ernst & Young LLP
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Report of Independent Registered Public Accounting Firm on Consolidated Financial Statements
The Board of Directors and Shareholder of WMG Acquisition Corp.
We have audited the accompanying consolidated balance sheets of WMG Acquisition Corp. as of September 30, 2010 and 2009, and the related consolidated statements of operations, deficit, and cash flows for each of the three years in the period ended September 30, 2010. Our audits also included the financial statement schedule listed in the Index at Item 15(a). These financial statements and schedule are the responsibility of WMG Acquisition Corp.'s management. Our responsibility is to express an opinion on these financial statements and schedule based on our 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 audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in all material respects, the consolidated financial position of WMG Acquisition Corp. at September 30, 2010 and 2009, and the consolidated results of its operations and its cash flows for each of the three years in the period ended September 30, 2010, in conformity with U.S. generally accepted accounting principles. Also, in our opinion, the related financial statement schedule, when considered in relation to the basic financial statements taken as a whole, presents fairly in all material respects the information set forth therein.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), WMG Acquisition Corp.'s internal control over financial reporting as of September 30, 2010, based on criteria established in Internal Control-Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission and our report dated November 17, 2010 expressed an unqualified opinion thereon.
Our audits were conducted for the purpose of forming an opinion on the financial statements taken as a whole. The consolidating financial statements are presented for purposes of additional analysis and are not a required part of the financial statements. Such information has been subjected to the auditing procedures applied in our audits of the consolidated financial statements and, in our opinion, are fairly stated in all material respects in relation to the basic financial statements taken as a whole.
New York, NY
November 17, 2010
/s/ Ernst & Young LLP
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Consolidated Balance Sheets
| September 30, 2010 |
September 30, 2009 |
|||||||
| (in millions) | ||||||||
| Assets |
||||||||
| Current assets: |
||||||||
| Cash and equivalents |
$ | 263 | $ | 196 | ||||
| Accounts receivable, less allowances of $111 and $135 million |
434 | 550 | ||||||
| Inventories |
37 | 46 | ||||||
| Royalty advances expected to be recouped within one year |
143 | 171 | ||||||
| Deferred tax assets |
30 | 29 | ||||||
| Other current assets |
46 | 48 | ||||||
| Total current assets |
953 | 1,040 | ||||||
| Royalty advances expected to be recouped after one year |
189 | 209 | ||||||
| Investments |
9 | 18 | ||||||
| Property, plant and equipment, net |
121 | 100 | ||||||
| Goodwill |
1,057 | 1,027 | ||||||
| Intangible assets subject to amortization, net |
1,119 | 1,317 | ||||||
| Intangible assets not subject to amortization |
100 | 100 | ||||||
| Other assets |
56 | 64 | ||||||
| Total assets |
$ | 3,604 | $ | 3,875 | ||||
| Liabilities and Deficit |
||||||||
| Current liabilities: |
||||||||
| Accounts payable |
$ | 206 | $ | 212 | ||||
| Accrued royalties |
1,034 | 1,185 | ||||||
| Accrued liabilities |
314 | 282 | ||||||
| Accrued interest |
52 | 57 | ||||||
| Deferred revenue |
100 | 120 | ||||||
| Other current liabilities |
8 | 14 | ||||||
| Total current liabilities |
1,714 | 1,870 | ||||||
| Long-term debt |
1,687 | 1,686 | ||||||
| Deferred tax liabilities |
169 | 164 | ||||||
| Other noncurrent liabilities |
154 | 177 | ||||||
| Total liabilities |
3,724 | 3,897 | ||||||
| Commitments and Contingencies (see Note 16) |
||||||||
| Deficit: |
||||||||
| Additional paid-in capital |
142 | 132 | ||||||
| Accumulated deficit |
(369 | ) | (255 | ) | ||||
| Accumulated other comprehensive income, net |
53 | 42 | ||||||
| Total WMG Acquisition Corp. deficit |
(174 | ) | (81 | ) | ||||
| Noncontrolling interest |
54 | 59 | ||||||
| Total deficit |
(120 | ) | (22 | ) | ||||
| Total liabilities and deficit |
$ | 3,604 | $ | 3,875 | ||||
See accompanying notes.
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Consolidated Statements of Operations
| Fiscal Year Ended September 30, 2010 |
Fiscal Year Ended September 30, 2009 |
Fiscal Year Ended September 30, 2008 |
||||||||||
| (in millions) | ||||||||||||
| Revenues |
$ | 2,984 | $ | 3,198 | $ | 3,506 | ||||||
| Costs and expenses: |
||||||||||||
| Cost of revenues |
(1,572 | ) | (1,719 | ) | (1,846 | ) | ||||||
| Selling, general and administrative expenses (a) |
(1,103 | ) | (1,119 | ) | (1,234 | ) | ||||||
| Other income, net |
— | — | 3 | |||||||||
| Amortization of intangible assets |
(219 | ) | (225 | ) | (222 | ) | ||||||
| Restructuring costs |
— | — | — | |||||||||
| Total costs and expenses |
(2,894 | ) | (3,063 | ) | (3,299 | ) | ||||||
| Operating income from continuing operations |
90 | 135 | 207 | |||||||||
| Interest expense, net |
(165 | ) | (172 | ) | (159 | ) | ||||||
| Gain on sale of equity-method investment |
— | 36 | — | |||||||||
| Gain on foreign exchange transaction |
— | 9 | — | |||||||||
| Impairment of cost-method investments |
(1 | ) | (29 | ) | — | |||||||
| Impairment of equity-method investments |
— | (11 | ) | — | ||||||||
| Other income (expense), net |
1 | 1 | (8 | ) | ||||||||
| (Loss) income from continuing operations before income taxes |
(75 | ) | (31 | ) | 40 | |||||||
| Income tax expense |
(41 | ) | (50 | ) | (49 | ) | ||||||
| Loss from continuing operations |
(116 | ) | (81 | ) | (9 | ) | ||||||
| Loss from discontinued operations (see Note 4) |
— | — | (21 | ) | ||||||||
| Net loss |
$ | (116 | ) | $ | (81 | ) | $ | (30 | ) | |||
| Less: loss (income) attributable to noncontrolling interest |
2 | 4 | (5 | ) | ||||||||
| Net loss attributable to WMG Acquisition Corp. |
$ | (114 | ) | $ | (77 | ) | $ | (35 | ) | |||
|
|
||||||||||||
| (a) Includes depreciation expense of: |
$ | (39 | ) | $ | (37 | ) | $ | (46 | ) | |||
See accompanying notes.
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Consolidated Statements of Cash Flows
| Fiscal Year Ended September 30, 2010 |
Fiscal Year Ended September 30, 2009 |
Fiscal Year Ended September 30, 2008 |
||||||||||
| (in millions) | ||||||||||||
| Cash flows from operating activities |
||||||||||||
| Net loss |
$ | (116 | ) | $ | (81 | ) | $ | (30 | ) | |||
| Loss from discontinued operations |
— | — | 21 | |||||||||
| Loss from continuing operations |
(116 | ) | (81 | ) | (9 | ) | ||||||
| Adjustments to reconcile net loss to net cash provided by operating activities: |
||||||||||||
| Gain on sale of equity investment |
— | (36 | ) | — | ||||||||
| Gain on foreign exchange transaction |
— | (9 | ) | — | ||||||||
| Gain on sale of building |
— | (3 | ) | — | ||||||||
| Impairment of equity investment |
— | 11 | — | |||||||||
| Impairment of cost-method investments |
1 | 29 | — | |||||||||
| Depreciation and amortization |
258 | 262 | 268 | |||||||||
| Deferred taxes |
— | — | (3 | ) | ||||||||
| Non-cash interest expense |
15 | 39 | 25 | |||||||||
| Non-cash, stock-based compensation expense |
10 | 11 | 11 | |||||||||
| Other non-cash adjustments |
— | — | (3 | ) | ||||||||
| Changes in operating assets and liabilities: |
||||||||||||
| Accounts receivable |
118 | (8 | ) | 28 | ||||||||
| Inventories |
8 | 10 | 2 | |||||||||
| Royalty advances |
16 | (20 | ) | (6 | ) | |||||||
| Accounts payable and accrued liabilities |
(147 | ) | 15 | (13 | ) | |||||||
| Accrued interest |
(5 | ) | 25 | (3 | ) | |||||||
| Other balance sheet changes |
4 | (8 | ) | (1 | ) | |||||||
| Net cash provided by operating activities |
162 | 237 | 296 | |||||||||
| Cash flows from investing activities |
||||||||||||
| Capital expenditures |
(51 | ) | (27 | ) | (32 | ) | ||||||
| Acquisition of publishing rights |
(36 | ) | (11 | ) | (25 | ) | ||||||
| Investments and acquisitions of businesses, net of cash acquired |
(7 | ) | (16 | ) | (132 | ) | ||||||
| Proceeds from the sale of investments |
9 | 125 | 25 | |||||||||
| Repayments of loans by (loans to) third parties |
— | 3 | (3 | ) | ||||||||
| Proceeds from the sale of building |
— | 8 | — | |||||||||
| Net cash (used in) provided by investing activities |
(85 | ) | 82 | (167 | ) | |||||||
| Cash flows from financing activities |
||||||||||||
| Debt repayments |
— | (1,379 | ) | (17 | ) | |||||||
| Proceeds from issuance of Senior Discount Notes |
— | 1,059 | — | |||||||||
| Deferred financing costs paid |
— | (23 | ) | — | ||||||||
| Returns of capital and dividends paid |
— | (90 | ) | (58 | ) | |||||||
| Distributions to noncontrolling interest holders |
(3 | ) | (3 | ) | — | |||||||
| Net cash used in financing activities |
(3 | ) | (436 | ) | (75 | ) | ||||||
| Effect of foreign currency exchange rate changes on cash |
(7 | ) | — | — | ||||||||
| Net increase (decrease) in cash and equivalents |
67 | (117 | ) | 54 | ||||||||
| Cash and equivalents at beginning of period |
196 | 313 | 259 | |||||||||
| Cash and equivalents at end of period |
$ | 263 | $ | 196 | $ | 313 | ||||||
See accompanying notes.
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Consolidated Statements of Deficit
| Additional Paid-in Capital |
Accumulated Deficit |
Accumulated Other Comprehensive Income |
Total WMG Acquisition Corp. Shareholder’s Deficit |
Noncontolling Interest |
Total Equity (Deficit) |
|||||||||||||||||||
| Balance at September 30, 2007 |
$ | 268 | $ | (146 | ) | $ | (1 | ) | $ | 121 | $ | 12 | $ | 133 | ||||||||||
| Comprehensive loss: |
||||||||||||||||||||||||
| Net loss |
— | (35 | ) | — | (35 | ) | 5 | (30 | ) | |||||||||||||||
| Foreign currency translation adjustment |
— | — | 17 | 17 | — | 17 | ||||||||||||||||||
| Minimum pension liability |
— | — | (3 | ) | (3 | ) | — | (3 | ) | |||||||||||||||
| Deferred losses on derivative financial instruments |
— | — | (3 | ) | (3 | ) | — | (3 | ) | |||||||||||||||
| Total comprehensive loss |
(24 | ) | 5 | (19 | ) | |||||||||||||||||||
| Noncontrolling interest |
— | — | — | — | 51 | 51 | ||||||||||||||||||
| Dividends paid to Holdings |
(68 | ) | — | — | (68 | ) | — | (68 | ) | |||||||||||||||
| Stock based compensation |
11 | — | — | 11 | — | 11 | ||||||||||||||||||
| Exercises of stock options |
— | — | — | — | — | — | ||||||||||||||||||
| Impact of change in accounting |
— | 3 | — | 3 | — | 3 | ||||||||||||||||||
| Balance at September 30, 2008 |
$ | 211 | $ | (178 | ) | $ | 10 | $ | 43 | $ | 68 | $ | 111 | |||||||||||
| Comprehensive loss: |
||||||||||||||||||||||||
| Net loss |
— | (77 | ) | — | (77 | ) | (4 | ) | (81 | ) | ||||||||||||||
| Foreign currency translation adjustment |
— | — | 20 | 20 | — | 20 | ||||||||||||||||||
| Minimum pension liability |
— | — | 1 | 1 | — | 1 | ||||||||||||||||||
| Deferred gains on derivative financial instruments |
— | — | 11 | 11 | — | 11 | ||||||||||||||||||
| Total comprehensive loss |
(45 | ) | (4 | ) | (49 | ) | ||||||||||||||||||
| Noncontrolling interest |
— | — | — | — | (5 | ) | (5 | ) | ||||||||||||||||
| Dividends paid to Holdings |
(90 | ) | — | — | (90 | ) | — | (90 | ) | |||||||||||||||
| Stock based compensation |
11 | — | — | 11 | — | 11 | ||||||||||||||||||
| Exercises of stock options |
— | — | — | — | — | — | ||||||||||||||||||
| Balance at September 30, 2009 |
$ | 132 | $ | (255 | ) | $ | 42 | $ | (81 | ) | $ | 59 | $ | (22 | ) | |||||||||
| Comprehensive loss: |
||||||||||||||||||||||||
| Net loss |
— | (114 | ) | — | (114 | ) | (2 | ) | (116 | ) | ||||||||||||||
| Foreign currency translation adjustment |
— | — | 18 | 18 | — | 18 | ||||||||||||||||||
| Minimum pension liability |
— | — | (5 | ) | (5 | ) | — | (5 | ) | |||||||||||||||
| Deferred losses on derivative financial instruments |
— | — | (2 | ) | (2 | ) | — | (2 | ) | |||||||||||||||
| Total comprehensive loss |
(103 | ) | (2 | ) | (105 | ) | ||||||||||||||||||
| Noncontrolling interest |
— | — | — | — | (3 | ) | (3 | ) | ||||||||||||||||
| Stock based compensation |
10 | — | — | 10 | — | 10 | ||||||||||||||||||
| Exercises of stock options |
— | — | — | — | — | — | ||||||||||||||||||
| Balance at September 30, 2010 |
$ | 142 | $ | (369 | ) | $ | 53 | $ | (174 | ) | $ | 54 | $ | (120 | ) | |||||||||
See accompanying notes.
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Notes to Consolidated Audited Financial Statements
1. Description of Business
WMG Acquisition Corp. (the “Company”) is a direct, wholly owned subsidiary of WMG Holdings Corp. (“Holdings”), which in turn, is a direct, wholly owned subsidiary of Warner Music Group Corp. (“Parent”). Parent, Holdings and the Company were formed by a private equity consortium of Investors (“Investor Group”), on November 21, 2003 to facilitate the acquisition. The Company is one of the world’s major music-based content companies and the successor to substantially all of the interests of the recorded music and music publishing businesses of Time Warner Inc (“Time Warner”). Effective March 1, 2004, the Company acquired such interests from Time Warner for approximately $2.6 billion (the “Acquisition”). The original Investor Group included affiliates of Thomas H. Lee Partners (“THL”), affiliates of Bain Capital Investors, LLC (“Bain”), affiliates of Providence Equity Partners, Inc. (“Providence”) and Music Capital Partners, L.P. (“Music Capital”). Music Capital’s partnership agreement required that the Music Capital partnership dissolve and commence winding up by the second anniversary of Parent’s May 2005 initial public offering. As a result, on May 7, 2007, Music Capital made a pro rata distribution of all shares of common stock of Parent held by it to its partners. The shares held by Music Capital had been subject to a stockholders agreement among Music Capital, THL, Bain and Providence and certain other parties. As a result of the distribution, the shares distributed by Music Capital ceased to be subject to the voting and other provisions of the stockholders agreement and Music Capital was no longer part of the Investor Group subject to the stockholders agreement.
The Company classifies its business interests into two fundamental operations: Recorded Music and Music Publishing. A brief description of these operations is presented below.
Recorded Music Operations
The Company’s Recorded Music business primarily consists of the discovery and development of artists and the related marketing, distribution and licensing of recorded music produced by such artists.
The Company is also diversifying its revenues beyond its traditional businesses by entering into expanded-rights deals with recording artists in order to partner with artists in other areas of their careers. Under these agreements, the Company provides services to and participates in artists’ activities outside the traditional recorded music business. The Company is building artist services capabilities and platforms for exploiting this broader set of music-related rights and participating more broadly in the monetization of the artist brands it helps create. In developing the Company’s artist services business, the Company has both built and expanded in-house capabilities and expertise and has acquired a number of existing artist services companies involved in artist management, merchandising, strategic marketing and brand management, ticketing, concert promotion, fan clubs, original programming and video entertainment. The Company believes that entering into expanded-rights deals and enhancing its artist services capabilities associated with the Company’s artists and other artists will permit it to diversify revenue streams to better capitalize on the growth areas of the music industry and permit it to build stronger, long-term relationships with artists and more effectively connect artists and fans.
In the U.S., Recorded Music operations are conducted principally through the Company’s major record labels—Warner Bros. Records and The Atlantic Records Group. The Company’s Recorded Music operations also include Rhino, a division that specializes in marketing the Company’s music catalog through compilations and reissuances of previously released music and video titles, as well as in the licensing of recordings to and from third parties for various uses, including film and television soundtracks. Rhino has also become the Company’s primary licensing division focused on acquiring broader licensing rights from certain catalog artists. For example, the Company has an exclusive license with The Grateful Dead to manage the band’s intellectual property and a 50% interest in Frank Sinatra Enterprises, an entity that administers licenses for use of Frank Sinatra’s name and likeness and manages all aspects of his music, film and stage content. The Company also conducts its Recorded Music operations through a collection of additional record labels, including, among others, Asylum, Cordless, East West, Elektra, Nonesuch, Reprise, Roadrunner, Rykodisc, Sire and Word.
Outside the U.S., Recorded Music activities are conducted in more than 50 countries primarily through Warner Music International (“WMI”) and its various subsidiaries, affiliates and non-affiliated licensees. WMI engages in the same activities as the Company’s U.S. labels: discovering and signing artists and distributing, marketing and selling their recorded music. In most cases, WMI also markets and distributes the records of those artists for whom the Company’s U.S. record labels have international rights. In certain smaller markets, WMI licenses to unaffiliated third-party record labels the right to distribute its records. The Company’s international artist services operations also include a network of concert promoters through which WMI provides resources to coordinate tours for the Company’s artists and other artists.
Recorded Music distribution operations include WEA Corp., which markets and sells music and DVD products to retailers and wholesale distributors in the U.S.; ADA, which distributes the products of independent labels to retail and wholesale distributors in the U.S.; various distribution centers and ventures operated internationally; an 80% interest in Word Entertainment, which specializes in the distribution of music products in the Christian retail marketplace and ADA Global, which provides distribution services outside of the U.S. through a network of affiliated and non-affiliated distributors.
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WMG Acquisition Corp.
Notes to Consolidated Audited Financial Statements—(Continued)
The Company plays an integral role in virtually all aspects of the recorded music value chain from discovering and developing talent to producing albums and promoting artists and their products. After an artist has entered into a contract with one of the Company’s record labels, a master recording of the artist’s music is created. The recording is then replicated for sale to consumers primarily in the CD and digital formats. In the U.S., WEA Corp., ADA and Word market, sell and deliver product, either directly or through sub-distributors and wholesalers, to record stores, mass merchants and other retailers. The Company’s recorded music products are also sold in physical form to online physical retailers such as Amazon.com, barnesandnoble.com and bestbuy.com and in digital form to online digital retailers like Apple’s iTunes and mobile full-track download stores such as those operated by Verizon or Sprint. In the case of expanded-rights deals where the Company acquires broader rights in a recording artist’s career, the Company may provide more comprehensive career support and actively develop new opportunities for an artist through touring, fan clubs, merchandising and sponsorships, among other areas. The Company believes expanded-rights deals create better partnerships with its artists, which allow the Company and its artists to work together more closely to create and sustain artistic and commercial success.
The Company has integrated the sale of digital content into all aspects of its Recorded Music and Music Publishing businesses including A&R, marketing, promotion and distribution. The Company’s new media executives work closely with A&R departments to make sure that while a record is being made, digital assets are also created with all of its distribution channels in mind, including subscription services, social networking sites, online portals and music-centered destinations. The Company works side by side with its mobile and online partners to test new concepts. The Company believes existing and new digital businesses will be a significant source of growth for the next several years and will provide new opportunities to monetize its assets and create new revenue streams. As a music-based content company, the Company has assets that go beyond its recorded music and music publishing catalogs, such as its music video library, which it has begun to monetize through digital channels. The proportion of digital revenues attributed to each distribution channel varies by region and since digital music is in the relatively early stages of growth, proportions may change as the roll out of new technologies continues. As an owner of musical content, the Company believes it is well positioned to take advantage of growth in digital distribution and emerging technologies to maximize the value of its assets.
Music Publishing Operations
Where recorded music is focused on exploiting a particular recording of a song, music publishing is an intellectual property business focused on the exploitation of the song itself. In return for promoting, placing, marketing and administering the creative output of a songwriter, or engaging in those activities for other rights holders, the Company’s Music Publishing business garners a share of the revenues generated from use of the song.
The Company’s Music Publishing operations include Warner/Chappell, its global Music Publishing company, headquartered in New York with operations in over 50 countries through various subsidiaries, affiliates and non-affiliated licensees. The Company owns or controls rights to more than one million musical compositions, including numerous pop hits, American standards, folk songs and motion picture and theatrical compositions. Assembled over decades, its award-winning catalog includes over 65,000 songwriters and composers and a diverse range of genres including pop, rock, jazz, country, R&B, hip-hop, rap, reggae, Latin, folk, blues, symphonic, soul, Broadway, techno, alternative, gospel and other Christian music. Warner/Chappell also administers the music and soundtracks of several third-party television and film producers and studios, including Lucasfilm, Ltd., Hallmark Entertainment, Disney Music Publishing and Turner Music Publishing. In 2007, the Company entered the production music library business with the acquisition of Non-Stop Music. The Company subsequently continued to expand its production music operations in 2010 with the acquisitions of Groove Addicts Production Music Library and Carlin Recorded Music Library in 2010. These acquisitions doubled the size of the Company’s production music library, which now consists of more than 16 catalogs containing about 74,000 cues/songs.
2. Basis of Presentation
The accompanying financial statements present the consolidated accounts of all entities in which the Company has a controlling voting interest and/or variable interest entities required to be consolidated in accordance with accounting principles generally accepted in the United States of America (“U.S. GAAP”). Significant inter-company balances and transactions have been eliminated. Certain reclassifications have been made to the prior fiscal years’ consolidated financial statements to conform with the current fiscal year presentation.
The Company maintains a 52-53 week fiscal year ending on the last Friday in September. Fiscal 2010 ended on September 24, 2010, fiscal 2009 ended on September 25, 2009 and fiscal 2008 ended on September 26, 2008. For convenience purposes, the Company continues to date its financial statements as of September 30.
The Company has performed a review of all subsequent events through the date the financial statements were issued, and has deemed that no additional disclosures are necessary.
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WMG Acquisition Corp.
Notes to Consolidated Audited Financial Statements—(Continued)
3. Summary of Significant Accounting Policies
Use of Estimates
The preparation of consolidated financial statements in conformity with U.S. GAAP requires management to make estimates and assumptions that affect the amounts reported in the financial statements and the accompanying notes. Actual results could differ from those estimates.
Cash and Equivalents
The Company considers all highly liquid investments with maturities of three months or less at the date of purchase to be cash equivalents.
Foreign Currency Translation
The financial position and operating results of substantially all foreign operations are consolidated using the local currency as the functional currency. Local currency assets and liabilities are translated at the rates of exchange on the balance sheet date, and local currency revenues and expenses are translated at average rates of exchange during the period. Resulting translation gains or losses are included in the accompanying consolidated statements of deficit as a component of accumulated other comprehensive income (loss).
Derivative and Financial Instruments
The Company accounts for these investments as required by the FASB ASC Topic 815, Derivatives and Hedging (“ASC 815”), which requires that all derivative instruments be recognized on the balance sheet at fair value. ASC 815 also provides that, for derivative instruments that qualify for hedge accounting, changes in the fair value are either (a) offset against the change in fair value of the hedged assets, liabilities, or firm commitments through earnings or (b) recognized in equity until the hedged item is recognized in earnings, depending on whether the derivative is being used to hedge changes in fair value or cash flows. In addition, the ineffective portion of a derivative’s change in fair value is immediately recognized in earnings.
The carrying value of the Company’s financial instruments approximates fair value, except for certain differences relating to long-term, fixed-rate debt (see Note 20) and other financial instruments that are not significant. The fair value of financial instruments is generally determined by reference to market values resulting from trading on a national securities exchange or an over-the-counter market. In cases where quoted market prices are not available, fair value is based on estimates using present value or other valuation techniques.
Revenues
Recorded Music
As required by FASB ASC Topic 605, Revenue Recognition (“ASC 605”), the Company recognizes revenue when persuasive evidence of an arrangement exists, delivery has occurred, the sales price is fixed or determinable and collection is probable.
Revenues from the sale of physical Recorded Music products are recognized upon delivery, which occurs once the product has been shipped and title and risk of loss have been transferred. In accordance with industry practice and as is customary in many territories, certain products, such as CDs and DVDs, are sold to customers with the right to return unsold items. Revenues from such sales are recognized upon shipment based on gross sales less a provision for future estimated returns. Revenues from the sale of recorded music products through digital distribution channels are recognized when the products are sold and related sales accounting reports are delivered by the providers.
Music Publishing
Music Publishing revenues are earned from the receipt of royalties relating to the licensing of rights in musical compositions, and the sale of published sheet music and songbooks. The receipt of royalties principally relates to amounts earned from the public performance of copyrighted material, the mechanical reproduction of copyrighted material on recorded media including digital formats, and the use of copyrighted material in synchronization with visual images. Consistent with industry practice, music publishing royalties, except for synchronization royalties, generally are recognized as revenue when cash is received. Synchronization revenue is recognized as revenue on an accrual basis when all revenue recognition criteria are met in accordance with ASC 605.
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Notes to Consolidated Audited Financial Statements—(Continued)
Gross Versus Net Revenue Classification
In the normal course of business, the Company acts as an intermediary or agent with respect to certain payments received from third parties. For example, the Company distributes music product on behalf of third-party record labels. As required by FASB ASC Subtopic 605-45, Principal Agent Considerations, such transactions are recorded on a “gross” or “net” basis depending on whether the Company is acting as the “principal” in the transaction or acting as an “agent” in the transaction. The Company serves as the principal in transactions in which it has substantial risks and rewards of ownership and, accordingly, revenues are recorded on a gross basis. For those transactions in which the Company does not have substantial risks and rewards of ownership, the Company is considered an agent and, accordingly, revenues are recorded on a net basis.
To the extent revenues are recorded on a gross basis, any participations and royalties paid to third parties are recorded as expenses so that the net amount (gross revenues less expenses) flows through operating income. To the extent revenues are recorded on a net basis, revenues are reported based on the amounts received, less participations and royalties paid to third parties. In both cases, the impact on operating income is the same whether the Company records the revenues on a gross or net basis.
Based on an evaluation of the individual terms of each contract and whether the Company is acting as principal or agent, the Company generally records revenues from the distribution of recorded music product on behalf of third-party record labels on a gross basis. However, revenues are recorded on a net basis for recorded music compilations distributed by other record companies where the Company has a right to participate in the profits.
Royalty Advances and Royalty Costs
The Company regularly commits to and pay royalty advances to its recording artists and songwriters in respect of future sales. The Company accounts for these advances under the related guidance in FASB ASC Topic 928, Entertainment—Music (“ASC 928”). Under ASC 928, the Company capitalizes as assets certain advances that it believes are recoverable from future royalties to be earned by the recording artist or songwriter. Advances vary in both amount and expected life based on the underlying recording artist or songwriter. Advances to recording artists or songwriters with a history of successful commercial acceptability will typically be larger than advances to a newer or unproven recording artist or songwriter. In addition, in most cases these advances represent a multi-album release or multi-song obligation and the number of albums releases and songs will vary by recording artist or songwriter.
The Company’s decision to capitalize an advance to a recording artist or songwriter as an asset requires significant judgment as to the recoverability of the advance. The recoverability is assessed upon initial commitment of the advance based upon the Company’s forecast of anticipated revenue from the sale of future and existing albums or songs. In determining whether the advance is recoverable, the Company evaluates the current and past popularity of the recording artist or songwriter, the sales history of the recording artist or songwriter, the initial or expected commercial acceptability of the product, the current and past popularity of the genre of music that the product is designed to appeal to, and other relevant factors. Based upon this information, the Company expenses the portion of any advance that it believes is not recoverable. In most cases, advances to recording artists or songwriters without a history of success and evidence of current or past popularity will be expensed immediately. Advances are individually assessed for recoverability continuously and at minimum on a quarterly basis. As part of the ongoing assessment of recoverability, the Company monitors the projection of future sales based on the current environment, the recording artist’s or songwriter’s ability to meet their contractual obligations as well as its intent to support future album releases or songs from the recording artist or songwriter. To the extent that a portion of an outstanding advance is no longer deemed recoverable, that amount will be expensed in the period the determination is made.
Inventories
Inventories consist of DVDs, CDs and related music products, as well as published sheet music and songbooks. Inventories are stated at the lower of cost or estimated realizable value. Cost is determined using first-in, first-out (“FIFO”) and average cost methods, which approximate cost under the FIFO method. Returned goods included in inventory are valued at estimated realizable value, but not in excess of cost.
Advertising
As required by the FASB ASC Subtopic 720-35, Advertising Costs (“ASC 720-35”) advertising costs, including costs to produce music videos used for promotional purposes, are expensed as incurred. Advertising expense amounted to approximately $106 million, $120 million and $144 million for the fiscal years ended September 30, 2010, 2009, and 2008, respectively. Deferred advertising costs, which principally relate to advertisements that have been paid for but not been exhibited or services that have not been received, were not material as of current or prior fiscal years.
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Notes to Consolidated Audited Financial Statements—(Continued)
Concentration of Credit Risk
The Company has ten significant recorded music customers that individually represent less than 10% of the Company’s consolidated gross accounts receivable, and approximately 20% in the aggregate. Based on a history of cash collection, the Company does not believe there is any significant collection risk from such customers.
In the music publishing business, the Company collects a significant portion of its royalties from copyright collection societies around the world. Collection societies and associations generally are not-for-profit organizations that represent composers, songwriters and music publishers. These organizations seek to protect the rights of their members by licensing, collecting license fees and distributing royalties for the use of their works. Accordingly, the Company does not believe there is any significant collection risk from such societies.
Shipping and Handling
The costs associated with shipping goods to customers are recorded as cost of revenues. Shipping and handling charges billed to customers are included in revenues.
Investments
FASB ASC Topic 810, Consolidation (“ASC 810”), requires the Company to first evaluate its investments to determine if any qualify as a variable interest entity (“VIE”). An entity is a VIE if it meets any of the following criteria: (i) the entity has insufficient equity to finance its activities without additional subordinated financial support from other parties, (ii) the equity investors cannot make significant decisions about the entity’s operations or (iii) the voting rights of some investors are not proportional to their obligations to absorb the expected losses of the entity or receive the expected returns of the entity and substantially all of the entity’s activities involve or are conducted on behalf of the investor with disproportionately few voting rights. A VIE is consolidated if the Company is deemed to be the primary beneficiary of the VIE, which is the party involved with the VIE that has a majority of the expected losses or a majority of the expected residual returns or both. The Company consolidates VIEs for which it is the primary beneficiary.
The Company uses the equity method of accounting for investments in which the Company has significant influence, but less than a controlling voting interest and do not qualify as a VIE under the provisions of ASC 810. Significant influence is generally presumed to exist when the Company owns between 20% and 50% of the investee. The Company would also use the equity method of accounting if it had greater than 50% ownership interest in an investee but the minority shareholders held certain substantive participating rights that allowed them to participate in the ordinary course of the business. Under the equity method, only the Company’s investment in and amounts due to and from the equity investee are included in the consolidated balance sheets; only the Company’s share of the investee’s earnings (losses) is included in the consolidated operating results; and only the dividends, cash distributions, loans or other cash received from the investee, additional cash investments, loan repayments or other cash paid to the investee are included in the consolidated cash flows.
Investments in companies in which the Company does not have a controlling interest and is unable to exert significant influence are accounted for at market value if the investments are publicly traded and there are no resale restrictions greater than one year (“available-for-sale investments”). If there are resale restrictions greater than one year, or if the investment is not publicly traded, then the investment is accounted for at cost.
Property, Plant and Equipment
Property, plant and equipment are recorded at historical cost. Depreciation is calculated using the straight-line method based upon the estimated useful lives of depreciable assets as follows: five to seven years for furniture and fixtures, periods of up to five years for computer equipment and periods of up to seven years for machinery and equipment. Buildings are depreciated over periods of up to forty years. Leasehold improvements are depreciated over periods up to the life of the lease.
Internal-Use Software Development Costs
As required by FASB ASC Subtopic 350-40, Internal-Use Software (“ASC Topic 350-40”), the Company capitalizes certain external and internal computer software costs incurred during the application development stage. The application development stage generally includes software design and configuration, coding, testing and installation activities. Training and maintenance costs are expensed as incurred, while upgrades and enhancements are capitalized if it is probable that such expenditures will result in additional functionality. Capitalized software costs are depreciated over the estimated useful life of the underlying project on a straight-line basis, generally not exceeding five years.
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WMG Acquisition Corp.
Notes to Consolidated Audited Financial Statements—(Continued)
Accounting for Goodwill and Other Intangible Assets
In accordance with FASB ASC Topic 350, Intangibles-Goodwill and Other (“ASC Topic 350”), the Company accounts for business combinations using the acquisition method of accounting and accordingly, the assets and liabilities of the acquired entities are recorded at their estimated fair values at the acquisition date. Goodwill represents the excess of the purchase price over the fair value of net assets, including the amount assigned to identifiable intangible assets. Pursuant to this guidance, the Company does not amortize the goodwill balance and instead, performs an annual impairment review to assess the fair value of goodwill over its carrying value. Identifiable intangible assets with finite lives are amortized over their useful lives.
Goodwill impairment is determined using a two-step process. The first step involves a comparison of the estimated fair value of the reporting unit to its carrying amount, including goodwill. If the estimated fair value of the reporting unit exceeds its carrying amount, its goodwill is not impaired and the second step of the impairment test is not necessary. If the carrying amount of the reporting unit exceeds its estimated fair value, then the second step of the goodwill impairment test must be performed. The second step of the goodwill impairment test compares the implied fair value of the reporting unit goodwill with its carrying amount to measure the amount of impairment, if any. The implied fair value of goodwill is determined in the same manner as the amount of goodwill recognized in a business combination. If the carrying amount of the reporting unit goodwill exceeds the implied fair value of that goodwill, an impairment is recognized in an amount equal to that excess. Goodwill is tested annually for impairment during the fourth quarter or earlier upon the occurrence of certain events or substantive changes in circumstances.
The Company performs an annual impairment review of its indefinite-lived intangible assets unless events occur which trigger the need for an earlier impairment review. The impairment test involves a comparison of the estimated fair value of the intangible asset with its carrying value. If the carrying value of the intangible asset exceeds its fair value, an impairment loss is recognized in an amount equal to that excess. The impairment review requires management to make assumptions about future conditions impacting the value of the indefinite-lived intangible assets, including projected growth rates, cost of capital, effective tax rates, tax amortization periods, royalty rates, market share and others.
Valuation of Long-Lived Assets
The Company periodically reviews the carrying value of its long-lived assets, including property, plant and equipment, whenever events or changes in circumstances indicate that the carrying value may not be recoverable. To the extent the estimated future cash inflows attributable to the asset, less estimated future cash outflows, are less than the carrying amount, an impairment loss is recognized in an amount equal to the difference between the carrying value of such asset and its fair value. Assets to be disposed of and for which there is a committed plan to dispose of the assets, whether through sale or abandonment, are reported at the lower of carrying value or fair value less costs to sell.
Stock-Based Compensation
The Company accounts for share based payments as required by FASB ASC Topic 718, Compensation-Stock Compensation (“ASC 718”). ASC 718 requires all share-based payments to employees, including grants of employee stock options, to be recognized as compensation expense based on their fair value. Under this fair value recognition provision of ASC 718, stock-based compensation cost is measured at the grant date based on the fair value of the award and is recognized as expense over the vesting period. The Company has applied the modified prospective method and expenses deferred stock-based compensation on an accelerated basis over the vesting period of the stock award. Expected forfeitures are included in determining share-based employee compensation expense.
The Company estimates the fair value of its grants made using the binomial method, which includes assumptions related to volatility, dividend yield and risk-free interest rate. The Company also awards or sells restricted shares to its employees. For restricted shares awarded or sold below market value, the accounting charge is measured at the grant date and amortized ratably as non-cash compensation over the vesting term.
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Notes to Consolidated Audited Financial Statements—(Continued)
Income Taxes
Income taxes are provided using the asset and liability method presented by FASB ASC Topic 740, Income Taxes (“ASC Topic 740”). Under this method, income taxes (i.e., deferred tax assets, deferred tax liabilities, taxes currently payable/refunds receivable and tax expense) are recorded based on amounts refundable or payable in the current fiscal year and include the results of any differences between U.S. GAAP and tax reporting. Deferred income taxes reflect the tax effect of net operating loss, capital loss and general business credit carryforwards and the net tax effects of temporary differences between the carrying amount of assets and liabilities for financial statements and income tax purposes, as determined under enacted tax laws and rates. Valuation allowances are established when management determines that it is more likely than not that some portion or the entire deferred tax asset will not be realized. The financial effect of changes in tax laws or rates is accounted for in the period of enactment.
Comprehensive Income (Loss)
Comprehensive income (loss), which is reported in the accompanying consolidated statements of deficit, consists of net income (loss) and other gains and losses affecting equity that, under U.S. GAAP, are excluded from net income (loss). For the Company, the components of other comprehensive income (loss) primarily consist of foreign currency translation gains and losses and deferred gains and losses on financial instruments designated as hedges under ASC 815, which include interest-rate swap and foreign exchange contracts. The following summary sets forth the components of other comprehensive income (loss), net of related taxes, that have been accumulated in deficit since September 30, 2007:
| Foreign Currency Translation Gain (Losses) |
Minimum Pension Liability Adjustment |
Derivative Financial Instruments Gain (Losses) |
Accumulated Other Comprehensive Income (Losses) |
|||||||||||||
| (in millions) | ||||||||||||||||
| Balance at September 30, 2007 |
$ | 3 | $ | 4 | $ | (8 | ) | $ | (1 | ) | ||||||
| Activity through September 30, 2008 |
17 | (3 | ) | (3 | ) | 11 | ||||||||||
| Balance at September 30, 2008 |
$ | 20 | $ | 1 | $ | (11 | ) | $ | 10 | |||||||
| Activity through September 30, 2009 |
20 | 1 | 11 | 32 | ||||||||||||
| Balance at September 30, 2009 |
$ | 40 | $ | 2 | $ | — | $ | 42 | ||||||||
| Activity through September 30, 2010 |
18 | (5 | ) | (2 | ) | 11 | ||||||||||
| Balance at September 30, 2010 |
$ | 58 | $ | (3 | ) | $ | (2 | ) | $ | 53 | ||||||
New Accounting Pronouncements
In December 2007, the FASB revised the authoritative guidance for accounting and reporting for the noncontrolling interest in a subsidiary (previously referred to as minority interest) and for the deconsolidation of a subsidiary. The new guidance requires the recognition of a noncontrolling interest as a component of equity in the consolidated financial statements as opposed to as a liability or mezzanine equity. The new guidance also changes the computation of net income of a consolidated group such that earnings attributed to the noncontrolling interest will no longer be deducted in determining net income. Instead, it must be separately presented on the face of the consolidated income statement. The carrying amount of the noncontrolling interest is adjusted to reflect the change in ownership interest, and any difference between the amount by which the noncontrolling interests are adjusted and the fair value of the consideration paid or received is recognized directly in equity attributable to the controlling interest (i.e., as additional paid in capital). Any transaction that results in the loss of control of a subsidiary is considered a remeasurement event with any retained interest remeasured at fair value. The gain or loss recognized in income includes both the realized gain or loss related to the portion of the ownership interest sold and the gain or loss on the remeasurement to fair value of the retained interest. This guidance became effective for fiscal years beginning after December 15, 2008 and thus, the Company adopted the provisions of this guidance effective October 1, 2009. This guidance changes the Company’s accounting treatment of business combinations and dispositions with noncontrolling interests on a prospective basis, except for the presentation and disclosure requirements, which were applied on a retrospective basis. As of September 30, 2010 and 2009, noncontrolling interests of $54 million and $59 million have been classified as a component of deficit in the consolidated balance sheet. Losses attributable to noncontrolling interests of $2 million and $4 million are included in net loss for the fiscal years ended September 30, 2010 and 2009, respectively. Income attributable to noncontrolling interests of $5 is included in net loss for the fiscal year ended September 30, 2008.
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Notes to Consolidated Audited Financial Statements—(Continued)
In June 2009, the FASB issued FASB Statement No. 167, “Amendments to FASB Interpretation No. 46(R)” (“FAS 167”), which amends the consolidation guidance for variable interest entities. The amendments include: (1) the elimination of the exemption from consolidation for qualifying special purpose entities, (2) a new approach for determining the primary beneficiary of a VIE, which requires that the primary beneficiary have both (i) the power to control the most significant activities of the VIE and (ii) either the obligation to absorb losses or the right to receive benefits that could potentially be significant to the VIE, and (3) the requirement to continually reassess who should consolidate a variable-interest entity. FAS 167 is effective for the beginning of an entity’s first annual reporting period that begins after November 15, 2009, for interim periods within that first annual reporting period and for interim and annual reporting periods thereafter. The company will adopt the new guidance beginning in the first quarter of fiscal year 2011. The company has completed its assessment and concluded that the adoption of the new standard will not have a material impact on its financial statements.
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WMG Acquisition Corp.
Notes to Consolidated Audited Financial Statements—(Continued)
4. Acquisitions and Dispositions
Discontinued Operations
During the fiscal year ended September 30, 2008, the Company shut down the operations of Bulldog Entertainment (“Bulldog”), an entertainment services company, which was recorded in its Recorded Music operations. As a result of this triggering event, the Company performed an impairment test and determined that an $18 million impairment charge was necessary to adjust the assets to fair market value, based on the discounted value of future cash flows. The Company shut down this operation in January 2008 and recorded an additional $3 million in shut down costs during the three months ended March 31, 2008. Bulldog’s results are reported as a discontinued operation in the consolidated statement of operations.
Discontinued operations consist of the following:
| Fiscal Year Ended September 30, 2008 |
||||
| (in millions) | ||||
| Revenues |
$ | — | ||
| Costs and expenses: |
||||
| Cost of revenues |
— | |||
| Selling, general and administrative expenses |
(21 | ) | ||
| Total costs and expenses |
(21 | ) | ||
| Loss before income taxes |
(21 | ) | ||
| Income tax expense |
— | |||
| Loss from discontinued operations |
$ | (21 | ) | |
5. Investments
The Company’s investments consist of:
| September 30, 2010 |
September 30, 2009 |
|||||||
| (in millions) | ||||||||
| Cost-method investments |
$ | 3 | $ | 13 | ||||
| Equity-method investments |
6 | 5 | ||||||
| $ | 9 | $ | 18 | |||||
During the fiscal year ended September 30, 2010, the Company sold its equity interest in lala media, inc. and terminated a memorandum of terms related to the formation of an international joint venture. The Company received cash consideration of approximately $9 million, which resulted in an immaterial gain.
6. Inventories
Inventories consist of the following:
| September 30, 2010 |
September 30, 2009 |
|||||||
| (in millions) | ||||||||
| Compact discs and other music-related products |
$ | 36 | $ | 45 | ||||
| Published sheet music and song books |
1 | 1 | ||||||
| $ | 37 | $ | 46 | |||||
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Notes to Consolidated Audited Financial Statements—(Continued)
7. Property, Plant and Equipment
Property, plant and equipment consist of the following:
| September 30, 2010 |
September 30, 2009 |
|||||||
| (in millions) | ||||||||
| Land |
$ | 11 | $ | 11 | ||||
| Buildings and improvements |
116 | 115 | ||||||
| Furniture and fixtures |
24 | 26 | ||||||
| Computer hardware and software |
186 | 172 | ||||||
| Construction in progress |
35 | 9 | ||||||
| Machinery and equipment |
2 | 7 | ||||||
| 374 | 340 | |||||||
| Less accumulated depreciation |
(253 | ) | (240 | ) | ||||
| $ | 121 | $ | 100 | |||||
8. Goodwill and Intangible Assets
Goodwill
The following analysis details the changes in goodwill for each reportable segment during the years ended September 30, 2010 and September 30, 2009:
| Recorded Music |
Music Publishing |
Total | ||||||||||
| (in millions) | ||||||||||||
| Balance at September 30, 2008 |
$ | 494 | $ | 591 | $ | 1,085 | ||||||
| Acquisitions |
10 | — | 10 | |||||||||
| Dispositions |
— | — | — | |||||||||
| Other adjustments |
(68 | ) | — | (68 | ) | |||||||
| Balance at September 30, 2009 |
436 | 591 | 1,027 | |||||||||
| Acquisitions |
29 | 3 | 32 | |||||||||
| Dispositions |
— | — | — | |||||||||
| Other adjustments |
(2 | ) | — | (2 | ) | |||||||
| Balance at September 30, 2010 |
$ | 463 | $ | 594 | $ | 1,057 | ||||||
The acquisition of goodwill in 2010 primarily include the following: (a) $21 million related to the consideration for the remaining 26.5% acquisition of Roadrunner Music Group, (b) $7 million related to the acquisition of a touring company and (c) $3 million related to the deferred tax liability established in relation to the acquisition of a production music company. The other adjustments to goodwill in 2010 represent foreign currency translation adjustments.
The acquisition of goodwill in 2009 primarily relates to purchase accounting adjustments recorded during the fiscal year ended September 30, 2009. The other adjustments to goodwill in 2009 represent foreign currency translation adjustments and adjustments to the tax basis of acquired assets and liabilities, which were recorded as a decrease to deferred taxes.
The Company performs its annual goodwill impairment test in accordance with ASC 350 during the fourth quarter of each fiscal year. The Company may conduct an earlier review if events or circumstances occur that would suggest the carrying value of the Company’s goodwill may not be recoverable. The results of the tests were that no impairment occurred.
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Notes to Consolidated Audited Financial Statements—(Continued)
Other Intangible Assets
Other intangible assets consist of the following:
| September 30, 2009 |
Acquisitions (a) | Other (b) | September 30, 2010 |
|||||||||||||
| (in millions) | ||||||||||||||||
| Intangible assets subject to amortization: |
||||||||||||||||
| Recorded music catalog |
$ | 1,379 | $ | — | $ | (3 | ) | $ | 1,376 | |||||||
| Music publishing copyrights |
952 | 46 | (22 | ) | 976 | |||||||||||
| Artist contracts |
80 | — | (1 | ) | 79 | |||||||||||
| Trademarks |
31 | — | — | 31 | ||||||||||||
| Other intangible assets |
8 | 1 | — | 9 | ||||||||||||
| 2,450 | 47 | (26 | ) | 2,471 | ||||||||||||
| Accumulated amortization |
(1,133 | ) | (1,352 | ) | ||||||||||||
| Total net intangible assets subject to amortization |
1,317 | 1,119 | ||||||||||||||
| Intangible assets not subject to amortization: |
||||||||||||||||
| Trademarks and brands |
100 | 100 | ||||||||||||||
| Total net other intangible assets |
$ | 1,417 | $ | 1,219 | ||||||||||||
| (a) | The acquisition of music publishing copyrights in 2010 primarily includes Groove Addicts Production Music Library and Carlin Recorded Music Library. |
| (b) | Other represents foreign currency translation adjustments. |
Amortization
Based on the amount of intangible assets subject to amortization at September 30, 2010, the expected amortization for each of the next five fiscal years and thereafter are as follows:
| Fiscal Years Ended September 30, |
||||
| (in millions) | ||||
| 2011 |
$ | 210 | ||
| 2012 |
209 | |||
| 2013 |
208 | |||
| 2014 |
158 | |||
| 2015 |
76 | |||
| Thereafter |
258 | |||
| $ | 1,119 | |||
The life of all acquired intangible assets is evaluated based on the expected future cash flows associated with the asset. The expected amortization expense above reflects estimated useful lives assigned to the Company’s identifiable, finite-lived intangible assets established in the accounting for the Acquisition effective as of March 1, 2004 as follows: ten years for recorded music catalog, fifteen years for music publishing copyrights and fifteen years for trademarks. Newly acquired recorded music catalog balances have estimated useful lives ranging from five to ten years. Newly acquired music publishing copyright balances have useful lives ranging from ten to fifteen years. Artist contracts acquired by the Company have variable estimated useful lives which do not exceed ten years.
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Notes to Consolidated Audited Financial Statements—(Continued)
9. Restructuring Costs
Acquisition-Related Restructuring Costs
In connection with the Acquisition, the Company reviewed its operations and implemented several plans to restructure its operations. As part of these restructuring plans, the Company recorded a restructuring liability during 2004, which included costs to exit and consolidate certain activities of the Company, costs to exit certain leased facilities and operations such as international distribution operations, costs to terminate employees and costs to terminate certain artist, songwriter, co-publisher and other contracts. Such liabilities were recognized as part of the cost of the Acquisition. As of September 30, 2010, the Company had approximately $19 million of liabilities outstanding primarily related to unfavorable long-term lease obligations for vacated facilities, which are expected to be settled by 2019 and $50 million of liabilities outstanding primarily related to unfavorable revaluations of artist and other contracts
10. Other Noncurrent Liabilities
Other noncurrent liabilities consist of the following:
| September 30, 2010 |
September 30, 2009 |
|||||||
| (in millions) | ||||||||
| Deferred income |
$ | 4 | $ | 3 | ||||
| Accrued compensation and benefits |
39 | 33 | ||||||
| Acquisition and merger-related restructuring liabilities |
1 | 8 | ||||||
| Unfavorable and other contractual obligations |
80 | 98 | ||||||
| Other |
30 | 35 | ||||||
| $ | 154 | $ | 177 | |||||
11. Debt
Debt Capitalization
Long-term debt consisted of the following:
| September 30, 2010 |
September 30, 2009 |
|||||||
| (in millions) | ||||||||
| 9.5% Senior Secured Notes due 2016 (a) |
$ | 1,065 | $ | 1,060 | ||||
| 7.375% U.S. dollar-denominated Notes due 2014 |
465 | 465 | ||||||
| 8.125% Sterling-denominated Notes due 2014(b) |
157 | 161 | ||||||
| Total long term debt |
$ | 1,687 | $ | 1,686 | ||||
| (a) | 9.5% Senior Secured Notes due 2016; face amount of $1.1 billion less unamortized discount of $35 million and $40 million, respectively. |
| (b) | Decrease represents the impact of foreign currency exchange rates on the carrying value of the Sterling-denominated notes. |
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Notes to Consolidated Audited Financial Statements—(Continued)
Senior Secured Notes due 2016
As of September 30, 2010, Acquisition Corp. had $1.065 billion of debt represented by the Acquisition Corp. Senior Secured Notes. The Senior Secured Notes were issued at 96.289% of their face value, for total net proceeds of $1.059 billion, with an effective interest rate of 10.25%. The original issue discount (“OID”) was $41 million. The OID is equal to the difference between the stated principal amount and the issue price. The OID will be amortized over the term of the notes using the effective interest rate method and reported as non-cash interest expense. The Acquisition Corp. Senior Secured Notes mature on June 15, 2016 and bear interest payable semi-annually on June 15 and December 15 of each year at a fixed rate of 9.50% per annum.
The Senior Secured Notes are senior secured obligations of Acquisition Corp. that rank senior in right of payment to Acquisition Corp.’s subordinated indebtedness, including its senior subordinated notes. The obligations under the Senior Secured Notes are fully and unconditionally guaranteed on a senior secured basis by each of Acquisition Corp.’s existing direct or indirect wholly owned domestic subsidiaries and any such subsidiaries that guarantee other indebtedness of Acquisition Corp. in the future. The Senior Secured Notes are not guaranteed by Holdings. All obligations under the Senior Secured Notes and the guarantees of those obligations are secured by first-priority liens, subject to permitted liens, in the assets of Holdings, Acquisition Corp., and the guarantors, which consist of the shares of Acquisition Corp., Acquisition Corp.’s assets and the assets of the guarantors, except for certain excluded assets.
At any time prior to June 15, 2012, Acquisition Corp., at its option, may redeem up to 35% of the aggregate principal amount of the Senior Secured Notes at a redemption price of 109.50% of the principal amount of the Senior Secured Notes redeemed, plus accrued and unpaid interest provided that after such redemption at least 50% of the originally issued Senior Secured Notes remain outstanding. Prior to June 15, 2013, Acquisition Corp. may redeem some or all of the Senior Secured Notes at a price equal to 100% of the principal amount plus a make whole premium, as defined in the Indenture. The Senior Secured Notes are also redeemable in whole or in part, at Acquisition Corp.’s option, at any time on or after June 15, 2013 for the following redemption prices, plus accrued and unpaid interest:
| Twelve month period beginning June 15, |
Percentage | |||
| 2013 |
104.750 | % | ||
| 2014 |
102.375 | % | ||
| 2015 and thereafter |
100.000 | % | ||
Upon the consummation and closing of a Major Music/Media Transaction, as defined in the Indenture, at any time prior to June 15, 2013, the Senior Secured Notes may be redeemed in whole or in part, at Acquisition Corp.’s option, at a redemption price of 104.75% plus accrued and unpaid interest. In the event of a change in control, as defined in the Indenture, each holder of the Senior Secured Notes may require Acquisition Corp. to repurchase some or all of the respective Senior Secured Notes at a purchase price equal to 101% plus accrued and unpaid interest.
The Indenture contains a number of covenants that, among other things, limit (subject to certain exceptions), the ability of Acquisition Corp. and most of its subsidiaries to (i) incur additional debt or issue certain preferred shares; (ii) pay dividends on or make distributions in respect of its capital stock or make other restricted payments (as defined in the Indenture); (iii) make certain investments; (iv) sell certain assets; (v) create liens on certain debt; (vi) consolidate, merge, sell or otherwise dispose of all or substantially all of its assets; (vii) sell or otherwise dispose of its Music Publishing business; (viii) enter into certain transactions with affiliates; and (ix) designate its subsidiaries as unrestricted subsidiaries.
Acquisition Corp. used the net proceeds from the Senior Secured Notes offering, plus approximately $335 million in existing cash, to repay in full all amounts due under its existing senior secured credit facility and pay related fees and expenses. In connection with the repayment, Acquisition Corp. terminated its revolving facility. Included in interest expense for the fiscal year ended September 30, 2009 was $18 million of previously unamortized deferred financing fees related to the senior secured credit facility. Such amounts were recognized as a result of the repayment of the senior secured credit facility. There were no premiums or penalties incurred by Acquisition Corp. in connection with the termination of the senior secured credit facility.
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Notes to Consolidated Audited Financial Statements—(Continued)
Senior Subordinated Notes due 2014
Acquisition Corp. has outstanding two tranches of senior subordinated notes due 2014: $465 million principal amount of U.S. dollar-denominated notes and £100 million principal amount of Sterling-denominated notes (collectively, the “Acquisition Corp. Senior Subordinated Notes”). The Acquisition Corp. Senior Subordinated Notes mature on April 15, 2014 and bear interest payable semi-annually on April 15 and October 15 of each year at a fixed rate of 7.375% per annum on the $465 million dollar notes and 8.125% per annum on the £100 million Sterling-denominated notes.
The indenture governing the notes limits the Company’s ability and the ability of its restricted subsidiaries to incur additional indebtedness or issue certain preferred shares; to pay dividends on or make other distributions in respect of its capital stock or make other restricted payments; to make certain investments; to sell certain assets; to create liens on certain debt without securing the notes; to consolidate, merge, sell or otherwise dispose of all or substantially all of its assets; to enter into certain transactions with affiliates; and to designate its subsidiaries as unrestricted subsidiaries. Subject to certain exceptions, the indenture governing the notes permits the Company and its restricted subsidiaries to incur additional indebtedness, including secured indebtedness, and to make certain restricted payments and investments.
Holdings Senior Discount Notes
The Company’s immediate parent company, Holdings, issued debt in December 2004. While Holdings is the issuer of such debt, it is a holding company that conducts substantially all of its business operations through the Company, its only asset and wholly owned subsidiary. As such, Holdings will be relying on the Company to make any payments of principal and interest as they become due.
Interest Expense
Total interest expense was $170 million, $177 million, and $159 million for the fiscal years ended September 30, 2010, 2009 and 2008, respectively. The weighted-average interest rate of the Company’s total debt was 8.80% for both September 30, 2010 and 2009.
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Notes to Consolidated Audited Financial Statements—(Continued)
12. Income Taxes
For the fiscal years ended September 30, 2010, 2009, and 2008, the domestic and foreign pretax (loss) income from continuing operations is as follows:
| Fiscal Year Ended September 30, 2010 |
Fiscal Year Ended September 30, 2009 |
Fiscal Year Ended September 30, 2008 |
||||||||||
| (in millions) | ||||||||||||
| Domestic |
$ | (80 | ) | $ | (109 | ) | $ | (39 | ) | |||
| Foreign |
5 | 78 | 79 | |||||||||
| Total |
$ | (75 | ) | $ | (31 | ) | $ | 40 | ||||
Current and deferred income taxes (tax benefits) provided are as follows:
| Fiscal Year Ended September 30, 2010 |
Fiscal Year Ended September 30, 2009 |
Fiscal Year Ended September 30, 2008 |
||||||||||
| (in millions) | ||||||||||||
| Federal: |
||||||||||||
| Current |
$ | 1 | $ | 5 | $ | 3 | ||||||
| Deferred (a) |
4 | 13 | (2 | ) | ||||||||
| Foreign (b): |
||||||||||||
| Current (c) |
31 | 42 | 46 | |||||||||
| Deferred (a) |
— | (13 | ) | (1 | ) | |||||||
| U.S. State: |
||||||||||||
| Current |
5 | 3 | 3 | |||||||||
| Deferred |
— | — | — | |||||||||
| Total |
$ | 41 | $ | 50 | $ | 49 | ||||||
| (a) | The fiscal year ended September 30, 2009 amounts reflect the reversal of $15 million of previously recognized tax benefits associated with the tax amortization of indefinite lived intangibles from the Acquisition. |
| (b) | The total foreign tax provision for the fiscal year ended September 30, 2009 reflects a $14 million benefit from the implementation of new digital transfer pricing agreements. |
| (c) | Includes cash withholding taxes of $12 million, $13 million and $15 million for the fiscal years ended September 30, 2010, 2009, and 2008, respectively. |
The differences between the U.S. federal statutory income tax rate of 35% and income taxes provided are as follows:
| Fiscal Year Ended September 30, 2010 |
Fiscal Year Ended September 30, 2009 |
Fiscal Year Ended September 30, 2008 |
||||||||||
| (in millions) | ||||||||||||
| Taxes on income at the U.S. federal statutory rate |
$ | (26 | ) | $ | (11 | ) | $ | 14 | ||||
| U.S. state and local taxes |
5 | 3 | 3 | |||||||||
| Foreign income taxed at different rates, including withholding taxes |
19 | 12 | 17 | |||||||||
| Loss without benefit / (release of valuation allowance), net |
43 | 46 | 13 | |||||||||
| Other |
— | — | 2 | |||||||||
| Total income tax expense |
$ | 41 | $ | 50 | $ | 49 | ||||||
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Notes to Consolidated Audited Financial Statements—(Continued)
During the year ended September 30, 2010, the Company incurred losses in the U.S. and certain foreign territories and have offset the tax benefit associated with these losses with a valuation allowance as the Company has determined that it is more likely than not that these losses will not be utilized. The balance of the U.S. tax attributes remaining at the end of September 30, 2010 continues to be offset by a full valuation allowance as the Company has determined that it is more likely than not that these attributes will not be realized. The Company is an indirect, wholly-owned subsidiary of Parent, and, therefore, its results are included as part of Parent’s U.S. consolidated federal income tax return. Significant components of the Company’s net deferred tax assets/(liabilities) are summarized below:
| September 30, 2010 | September 30, 2009 | |||||||
| (in millions) | ||||||||
| Deferred tax assets: |
||||||||
| Allowances and reserves |
$ | 44 | $ | 50 | ||||
| Employee benefits and compensation |
44 | 35 | ||||||
| Other accruals |
60 | 66 | ||||||
| Depreciation and amortization |
92 | 79 | ||||||
| Tax attribute carryforwards |
314 | 298 | ||||||
| Other |
— | 2 | ||||||
| Total deferred tax assets |
554 | 530 | ||||||
| Valuation allowance |
(489 | ) | (441 | ) | ||||
| Net deferred tax assets |
65 | 89 | ||||||
| Deferred tax liabilities: |
||||||||
| Assets acquired in business combinations |
(204 | ) | (224 | ) | ||||
| Total deferred tax liabilities |
(204 | ) | (224 | ) | ||||
| Net deferred tax liabilities |
$ | (139 | ) | $ | (135 | ) | ||
At September 30, 2010, Parent has U.S. federal tax net operating loss carry-forwards of $243 million, which will begin to expire in fiscal year 2024. Tax net operating loss carryforwards in state, local and foreign jurisdictions expire in various periods. In addition, Parent has foreign tax credit carry-forwards for U.S. tax purposes of $123 million, which will begin to expire in 2014.
Parent’s U.S. income and foreign withholding taxes have not been recorded on permanently reinvested earnings of certain foreign subsidiaries of approximately $255 million at September 30, 2010. As such, no deferred income taxes have been provided for these undistributed earnings. Should these earnings be distributed, foreign tax credits may be available to reduce the additional federal income tax that would be payable. However, availability of these foreign tax credits is subject to limitations which make it impracticable to estimate the amount of the ultimate tax liability, if any, on these accumulated foreign earnings.
The Company classifies interest and penalties related to uncertain tax positions as a component of income tax expense. As of the September 30, 2010, the Company had accrued no material interest or penalties.
A reconciliation of the beginning and ending amount of unrecognized tax benefits are as follows:
| 2010 | 2009 | |||||||
| (in millions) | ||||||||
| Balance at beginning of the year |
$ | 7 | $ | 1 | ||||
| Additions for current year tax positions |
1 | 1 | ||||||
| Additions for prior year tax positions |
2 | 5 | ||||||
| Balance at end of the year |
$ | 10 | $ | 7 | ||||
Included in the total unrecognized tax benefits at September 30, 2010 and 2009 is $10 million and $7 million, respectively, that if recognized, would favorably affect the effective income tax rate. Parent expects that $7 million of the total reserve for uncertain tax positions to be paid during the next twelve months; however, events may occur that could cause Parent’s current expectations to change in the future.
Parent and its subsidiaries file income tax returns in the U.S. and various foreign jurisdictions. The Internal Revenue Service has completed the audit of Parent’s U.S. income tax returns for the fiscal years through September 30, 2008.
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Notes to Consolidated Audited Financial Statements—(Continued)
13. Pensions
Certain international employees, such as those in Germany and Japan, participate in locally sponsored defined benefit plans, which are not considered to be material in the aggregate and have a combined projected benefit obligation of approximately $52 million and $46 million for the fiscal years September 30, 2010 and 2009, respectively. Pension benefits under the plans are based on formulas that reflect the employees’ years of service and compensation levels during their employment period. Parent had an aggregate pension liability relating to these plans of approximately $36 million and $29 million recorded in its balance sheets as of September 30, 2010 and 2009, respectively. Parent uses a September 30 measurement date for its plans for the fiscal year ended September 30, 2010. For each of the fiscal years ended September 30, 2010 and 2009, pension expense amounted to $3 million.
Certain employees also participate in pre-tax defined contribution plans. Parent’s contributions to the defined contribution plans are based upon a percentage of the employees’ elected contributions. Parent’s defined contribution plan expense amounted to approximately $4 million, $4 million and $5 million for the fiscal years ended September 30, 2010, 2009 and 2008, respectively.
14. Stock-Based Compensation Plans
LTIP and Individual Stock Option and Restricted Stock Agreements
In 2004, Parent’s Board of Directors approved a form of LTIP stock option agreement for grants of options to eligible individuals. Eligible individuals include any employee, director or consultant of Parent or any of its affiliates, or any other entity designated by Parent’s Board of Directors in which Parent has an interest, who is selected by the Parent’s compensation committee to receive an award. The board authorized the granting of options to purchase up to 1,355,066 shares of common stock pursuant to the LTIP program. Parent has granted options and may grant additional stock options under the LTIP stock option agreements to certain members of current or future management. The board also approved the sale of 5,676,300 restricted shares of Parent’s stock, the awarding of 2,629,091 restricted shares of Parent’s stock, and the granting of options to purchase 3,701,850 shares of Parent’s common stock under stock option agreements with certain members of management. Individual option agreements and options granted under the LTIP program generally will have a 10-year term and the exercise price will equal at least 100% of the fair market value on the date of the grant. All of these option grants are now fully vested.
2005 Omnibus Stock Plan
In May 2005, the board of Parent adopted the 2005 Omnibus Stock Plan, or 2005 Plan, which authorized the granting of stock based awards to purchase up to 3,416,133 shares of Parent’s common stock. The 2005 Plan was amended and restated as of February 23, 2007 and again as of February 26, 2008. The 2008 amendment increased the maximum number of shares available for awards under the plan to 19,916,133 shares. Under the 2005 Plan, the Board of Directors or the compensation committee of Parent will administer the plan and has the power to make awards, to determine when and to whom awards will be granted, the form of each award, the amount of each award, and any other terms or conditions of each award consistent with the terms of the 2005 Plan. Awards may be made to employees, directors and others as set forth in the 2005 Plan. The types of awards that may be granted include restricted and unrestricted stock, incentive and non-statutory stock options, stock appreciation rights, performance units and other stock based awards. Options granted generally have a 10-year term, the exercise price will equal at least 100% of the fair market value on the date of the grant and generally vest in four equal installments on the day prior to each of first through fourth anniversaries of the effective date of the stock option agreement, subject to the employee’s continued employment.
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Notes to Consolidated Audited Financial Statements—(Continued)
Stock Options
The following is a summary of Parent’s stock option awards for the fiscal year ended September 30, 2010:
| Number of options granted |
Weighted-average exercise price |
|||||||
| Shares options outstanding at September 30, 2009 |
13,602,538 | $ | 6.47 | |||||
| Granted in 2010 |
235,000 | $ | 5.93 | |||||
| Exercised in 2010 |
(330,916 | ) | $ | 2.67 | ||||
| Forfeited in 2010 |
(1,105,185 | ) | $ | 12.19 | ||||
| Shares options outstanding at September 30, 2010 |
12,401,437 | $ | 6.05 | |||||
| Share options exercisable at September 30, 2010 |
6,985,065 | $ | 7.50 | |||||
The share options that were vested and exercisable as of September 30, 2010 have an aggregate intrinsic value of $1.7 million and a weighted-average remaining contractual term of 7.92 years.
Parent granted its employees stock option awards as follows:
| Fiscal Year Ended September 30, 2010 |
Fiscal Year Ended September 30, 2009 |
Fiscal Year Ended September 30, 2008 |
||||||||||
| Share options granted |
235,000 | 2,330,000 | 7,717,010 | |||||||||
| Weighted-average grant date fair value |
$ | 3.07 | $ | 1.31 | $ | 2.49 | ||||||
Assumptions
In calculating the compensation expense for options granted, Parent utilizes a binomial lattice-based model for the valuation of stock option grants. Assumptions utilized in the model, which are evaluated and revised, as necessary, to reflect market conditions and experience, were as follows:
| Weighted average assumptions used to calculate fair market value of stock options: |
Fiscal Year Ended September 30, 2010 |
Fiscal Year Ended September 30, 2009 |
Fiscal Year Ended September 30, 2008 |
|||||||||
| Dividend yield |
0 | % | 0 | % | 0 | % | ||||||
| Expected volatility |
71.00 | % | 62.43 | % | 45.0 | % | ||||||
| Risk-free interest rate |
2.94 | % | 1.97 | % | 2.80 | % | ||||||
| Expected term |
6.95 years | 7.07 years | 6.00 years | |||||||||
Because lattice-based option valuation models incorporate ranges of assumptions for inputs, the weighted average of those assumptions are disclosed in the preceding table. Expected volatilities are based on Parent’s historical stock price volatility. In periods when sufficient historical data was not available, Parent based its expected volatility on the historical stock price volatility of comparative companies. Parent uses historical data to estimate option exercise and employee termination patterns within the valuation model. The expected term of options granted is derived from the output of the option valuation model and represents the average period of time that options granted are expected to be outstanding. The interest rate for periods within the contractual life of the options is based on the U.S. Treasury yield curve in effect at the time of grant.
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Notes to Consolidated Audited Financial Statements—(Continued)
Option Exercises
During the fiscal year ended September 30, 2010 and 2009, employees exercised 330,916 and 28,467 stock options with a total intrinsic value of $0.9 million and $0.1 million, respectively. Total cash received from stock option exercises in 2010 and 2009 was less than $0.9 million and $0.1 million, respectively.
Restricted Stock
The following is a summary of Parent’s restricted stock awards for the fiscal year ended September 30, 2010:
| Number of restricted shares |
Weighted-average grant date fair value |
|||||||
| Unvested restricted shares at September 30, 2009 |
5,067,200 | $ | 4.17 | |||||
| Granted in 2010 |
35,309 | $ | 7.08 | |||||
| Vested in 2010 |
(110,825 | ) | $ | 3.62 | ||||
| Forfeited in 2010 |
(6,375 | ) | $ | 25.47 | ||||
| Unvested restricted shares at September 30, 2010 |
4,985,309 | $ | 4.18 | |||||
The weighted-average grant date fair value of restricted shares awarded in the fiscal year ended September 30, 2010, 2009, and 2008 was $7.08, $2.69, and $4.28, respectively.
The total fair value of the restricted shares that vested in the fiscal years ended September 30, 2010, 2009, and 2008 was $0.4 million, $3.3 million and $6.9 million, respectively.
Compensation Expense
Parent recognized non-cash compensation expense related to its stock-based compensation plans of $10 million, $11 million and $11 million for the fiscal years ended September 30, 2010, 2009, and 2008, respectively. In addition, as of September 30, 2010 and 2009, Parent had approximately $8 million and $15 million, respectively, of unrecognized compensation costs related to its unvested stock option and restricted stock awards. The weighted average period over which total compensation related to non-vested awards is expected to be recognized is 5.5 years.
15. Related Party Transactions
Distribution Arrangements with Related Parties
In the normal course of business the Company enters into arrangements to distribute the products of third parties. In addition, the Company enters into joint ventures, and the Company distributes the products of certain companies that are its joint venture partners. During the fiscal year ended September 30, 2010, 2009 and 2008, the Company recorded operating income of $2 million, $2 million and $3 million, respectively, in the statement of operations related to these arrangements. Such distribution arrangements are negotiated on an arm’s-length basis and reflect market rates.
16. Commitments and Contingencies
Leases
The Company occupies various facilities and uses certain equipment under many operating leases. Net rent expense was approximately $40 million, $38 million, and $35 million for the fiscal years ended September 30, 2010, 2009, and 2008, respectively.
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Notes to Consolidated Audited Financial Statements—(Continued)
At September 30, 2010, annual future minimum payments under non-cancelable operating leases (net of sublease income) are as follows:
| September 30, | ||||
| (in millions) | ||||
| 2011 |
33 | |||
| 2012 |
28 | |||
| 2013 |
20 | |||
| 2014 |
14 | |||
| 2015 |
7 | |||
| Thereafter |
18 | |||
| Total |
$ | 120 | ||
The future minimum payments reflect the amounts owed under lease arrangements and do not include any fair market value adjustments that may have been recorded as a result of the Acquisition.
Guaranteed Minimum Talent Advances
The Company routinely enters into long-term commitments with artists, songwriters and co-publishers for the future delivery of music product. Aggregate firm commitments to such talent approximated $268 million and $395 million as of September 30, 2010 and 2009, respectively. Such commitments are payable principally over a ten-year period, generally upon delivery of albums from the artists or future musical compositions by songwriters and co-publishers.
Other
Other off-balance sheet, firm commitments, which primarily includes minimum funding commitments to investees, amounted to approximately $6 million and $14 million at September 30, 2010 and 2009, respectively.
Litigation
Pricing of Digital Music Downloads
On December 20, 2005 and February 3, 2006, the Attorney General of the State of New York served the Company with requests for information in connection with an industry-wide investigation as to whether the practices of industry participants concerning the pricing of digital music downloads violate Section 1 of the Sherman Act, New York State General Business Law §§ 340 et seq., New York Executive Law §63(12), and related statutes. On February 28, 2006, the Antitrust Division of the U.S. Department of Justice served the Company with a request for information in the form of a Civil Investigative Demand as to whether its activities relating to the pricing of digitally downloaded music violate Section 1 of the Sherman Act. Both investigations have now been closed. Subsequent to the announcements of the above governmental investigations, more than thirty putative class action lawsuits concerning the pricing of digital music downloads were filed and were later consolidated for pre-trial proceedings in the Southern District of New York. The consolidated amended complaint, filed on April 13, 2007, alleges conspiracy among record companies to delay the release of their content for digital distribution, inflate their pricing of CDs and fix prices for digital downloads. The complaint seeks unspecified compensatory, statutory and treble damages. All defendants, including the Company, filed a motion to dismiss the consolidated amended complaint on July 30, 2007. On October 9, 2008, the District Court issued an order dismissing the case as to all defendants, including the Company. On November 20, 2008, plaintiffs filed a Notice of Appeal from the order of the District Court to the Circuit Court for the Second Circuit. Oral argument took place before the Second Circuit Court of Appeals on September 21, 2009. On January 12, 2010, the Second Circuit vacated the judgment of the District Court and remanded the case for further proceedings. On January 27, 2010, all defendants, including the Company, filed a petition for rehearing en banc with the Second Circuit. On March 26, 2010, the Second Circuit denied the petition for rehearing en banc. On August 20, 2010 all defendants including the Company, filed a petition for Certiorari before the Supreme Court. Opposition to the petition is due on November 22, 2010. The Company intends to defend against these lawsuits vigorously, but is unable to predict the outcome of these suits. Any litigation the Company may become involved in as a result of the inquiries of the Attorney General and Department of Justice, regardless of the merits of the claim, could be costly and divert the time and resources of management.
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Notes to Consolidated Audited Financial Statements—(Continued)
In addition to the matter discussed above, the Company is involved in other litigation arising in the normal course of business. Management does not believe that any legal proceedings pending against the Company will have, individually, or in the aggregate, a material adverse effect on its business. However, the Company cannot predict with certainty the outcome of any litigation or the potential for future litigation. Regardless of the outcome, litigation can have an adverse impact on the Company, including its brand value, because of defense costs, diversion of management resources and other factors.
17. Derivative Financial Instruments
The Company uses derivative financial instruments, primarily foreign currency forward exchange contracts (“FX Contracts”) for the purpose of managing foreign currency exchange risk by reducing the effects of fluctuations in foreign currency exchange rates.
The Company enters into FX Contracts primarily to hedge its royalty payments and balance sheet items denominated in foreign currency. The Company applies hedge accounting to FX Contracts for cash flows related to royalty payments. The Company records these FX Contracts in the consolidated balance sheet at fair value and changes in fair value are recognized in Other Comprehensive Income (“OCI”) for unrealized items and recognized in earnings for realized items. The Company elects to not apply hedge accounting to foreign currency exposures related to balance sheet items. The Company records these FX Contracts in the consolidated balance sheet at fair value and changes in fair value are immediately recognized in earnings. Fair value is determined by using observable market transactions of spot and forward rates (i.e., Level 2 inputs) which is discussed further in Note 20.
Netting provisions are provided for in existing International Swap and Derivative Association Inc. (“ISDA”) agreements in situations where the Company executes multiple contracts with the same counterparty. As a result, net assets or liabilities resulting from foreign exchange derivatives subject to these netting agreements are classified within other current assets or other current liabilities in the Company’s consolidated balance sheets. The Company monitors its positions with, and the credit quality of, the financial institutions that are party to any of its financial transactions.
Interest Rate Risk Management
The Company has $1.687 billion of debt outstanding at September 30, 2010. Based on the level of interest rates prevailing at September 30, 2010, the fair value of this fixed-rate debt was approximately $1.760 billion. Further, based on the amount of its fixed-rate debt, a 25 basis point increase or decrease in the level of interest rates would increase or decrease the fair value of the fixed-rate debt by approximately $16 million. This potential increase or decrease is based on the simplified assumption that the level of fixed-rate debt remains constant with an immediate across the board increase or decrease in the level of interest rates with no subsequent changes in rates for the remainder of the period.
The Company monitors its positions with, and the credit quality of, the financial institutions that are party to any of its financial transactions.
Foreign Currency Risk Management
Historically, the Company has used, and continues to use, foreign exchange forward contracts and foreign exchange options primarily to hedge the risk that unremitted or future royalties and license fees owed to its domestic companies for the sale, or anticipated sale, of U.S.-copyrighted products abroad may be adversely affected by changes in foreign currency exchange rates. The Company focuses on managing the level of exposure to the risk of foreign currency exchange rate fluctuations on its major currencies, which include the euro, British pound sterling, Japanese yen, Canadian dollar, Swedish krona and Australian dollar. In addition, the Company currently hedges foreign currency risk associated with financing transactions such as third-party and inter-company debt and other balance sheet items.
For royalty related hedges, the Company records foreign exchange contracts at fair value on its balance sheet and the related gains or losses on these contracts are deferred in shareholder’s deficit (as a component of comprehensive income (loss). These deferred gains and losses are recognized in income in the period in which the related royalties and license fees being hedged are received and recognized in income. However, to the extent that any of these contracts are not considered to be perfectly effective in offsetting the change in the value of the royalties and license fees being hedged, any changes in fair value relating to the ineffective
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Notes to Consolidated Audited Financial Statements—(Continued)
portion of these contracts are immediately recognized in income, and have been immaterial. For hedges of financing transactions and other balance sheet items, hedge gains and losses are taken directly to the statement of operations since there is an equal and offsetting statement of operations entry related to the underlying exposure. Gains and losses on foreign exchange contracts generally are included as a component of other income (expense), net, in the Company’s consolidated statement of operations.
As of September 30, 2010, the Company had outstanding hedge contracts for the sale of $180 million and the purchase of $73 million of foreign currencies at fixed rates. As of September 30, 2010, the Company had $2 million of deferred losses in comprehensive loss related to foreign exchange hedging. As of September 30, 2009, the Company had outstanding hedge contracts for the sale of $445 million and the purchase of $109 million of foreign currencies at fixed rates. As of September 30, 2009, the Company did not have any deferred net gains or losses in comprehensive income (loss) related to foreign exchange hedging.
18. Segment Information
As discussed more fully in Note 1, based on the nature of its products and services, the Company classifies its business interests into two fundamental operations: recorded music and music publishing, which also represent the aggregated reportable segments of the Company. Information as to each of these operations is set forth below. The Company evaluates performance based on several factors, of which the primary financial measure is operating income (loss) before non-cash depreciation of tangible assets, non-cash amortization of intangible assets and non-cash impairment charges to reduce the carrying value of goodwill and intangible assets (“OIBDA”). The Company has supplemented its analysis of OIBDA results by segment with an analysis of operating income (loss) by segment.
The accounting policies of the Company’s business segments are the same as those described in the summary of significant accounting policies included elsewhere herein. The Company accounts for intersegment sales at fair value as if the sales were to third parties. While intercompany transactions are treated like third-party transactions to determine segment performance, the revenues (and corresponding expenses recognized by the segment that is counterparty to the transaction) are eliminated in consolidation, therefore, do not themselves impact consolidated results.
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Notes to Consolidated Audited Financial Statements—(Continued)
| Recorded music |
Music publishing |
Corporate expenses and eliminations |
Total | |||||||||||||
| (in millions) | ||||||||||||||||
| 2010 |
||||||||||||||||
| Revenues |
$ | 2,455 | $ | 556 | $ | (27 | ) | $ | 2,984 | |||||||
| OIBDA |
279 | 157 | (88 | ) | 348 | |||||||||||
| Depreciation of property, plant and equipment |
(25 | ) | (4 | ) | (10 | ) | (39 | ) | ||||||||
| Amortization of intangible assets |
(152 | ) | (67 | ) | — | (219 | ) | |||||||||
| Operating income (loss) |
102 | 86 | (98 | ) | 90 | |||||||||||
| Total assets |
2,086 | 1,563 | (45 | ) | 3,604 | |||||||||||
| Capital expenditures |
37 | 3 | 11 | 51 | ||||||||||||
| 2009 |
||||||||||||||||
| Revenues |
$ | 2,642 | $ | 582 | $ | (26 | ) | $ | 3,198 | |||||||
| OIBDA |
332 | 165 | (100 | ) | 397 | |||||||||||
| Depreciation of property, plant and equipment |
(22 | ) | (4 | ) | (11 | ) | (37 | ) | ||||||||
| Amortization of intangible assets |
(161 | ) | (64 | ) | — | (225 | ) | |||||||||
| Operating income (loss) |
149 | 97 | (111 | ) | 135 | |||||||||||
| Total assets |
2,412 | 1,596 | (133 | ) | 3,875 | |||||||||||
| Capital expenditures |
25 | 2 | — | 27 | ||||||||||||
| 2008 |
||||||||||||||||
| Revenues |
$ | 2,905 | $ | 628 | $ | (27 | ) | $ | 3,506 | |||||||
| OIBDA |
411 | 167 | (103 | ) | 475 | |||||||||||
| Depreciation of property, plant and equipment |
(28 | ) | (4 | ) | (14 | ) | (46 | ) | ||||||||
| Amortization of intangible assets |
(155 | ) | (67 | ) | — | (222 | ) | |||||||||
| Operating income (loss) |
228 | 96 | (117 | ) | 207 | |||||||||||
| Total assets |
2,621 | 1,629 | 175 | 4,425 | ||||||||||||
| Capital expenditures |
27 | 2 | 3 | 32 | ||||||||||||
Revenues and total assets relating to operations in different geographical areas are set forth below. (Note that Revenues are attributed to countries based on the location of the customer)
| 2010 | 2009 | 2008 | ||||||||||||||||||||||
| Revenue | Long-lived Assets |
Revenue | Long-lived Assets |
Revenue | Long-lived Assets |
|||||||||||||||||||
| (in millions) | ||||||||||||||||||||||||
| United States |
$ | 1,257 | $ | 1,324 | $ | 1,416 | $ | 1,498 | $ | 1,605 | $ | 1,862 | ||||||||||||
| United Kingdom |
393 | 225 | 341 | 225 | 411 | 350 | ||||||||||||||||||
| All other territories |
1,334 | 1,102 | 1,441 | 1,112 | 1,490 | 1,063 | ||||||||||||||||||
| Total |
$ | 2,984 | $ | 2,651 | $ | 3,198 | $ | 2,835 | $ | 3,506 | $ | 3,275 | ||||||||||||
Customer Concentration
In the fiscal years ended September 30, 2010, 2009 and 2008, one customer represented 12%, 8% and 6% of total revenues, respectively. This customer’s revenues are included in the recorded music segment.
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WMG Acquisition Corp.
Notes to Consolidated Audited Financial Statements—(Continued)
19. Additional Financial Information
Cash Interest and Taxes
The Company made interest payments of approximately $157 million, $109 million, and $149 million during the fiscal years ended September 30, 2010, 2009, and 2008, respectively. The Company paid approximately $41 million, $66 million, and $69 million of foreign income and withholding taxes in the fiscal years ended September 30, 2010, 2009, and 2008, respectively. The Company received $12 million, $11 million, and $17 million of foreign income tax refunds in the fiscal years ended September 30, 2010, 2009, and 2008, respectively.
20. Fair Value Measurements
ASC 820 defines fair value as the price that would be received upon sale of an asset or paid upon transfer of a liability in an orderly transaction between market participants at the measurement date and in the principal or most advantageous market for that asset or liability. The fair value should be calculated based on assumptions that market participants would use in pricing the asset or liability, not on assumptions specific to the entity.
In addition to defining fair value, ASC 820 expands the disclosure requirements around fair value and establishes a fair value hierarchy for valuation inputs. The hierarchy prioritizes the inputs into three levels based on the extent to which inputs used in measuring fair value are observable in the market. Each fair value measurement is reported in one of the three levels which is determined by the lowest level input that is significant to the fair value measurement in its entirety. These levels are:
| • | Level 1 – inputs are based upon unadjusted quoted prices for identical instruments traded in active markets. |
| • | Level 2 – inputs are based upon quoted prices for similar instruments in active markets, quoted prices for identical or similar instruments in markets that are not active and model-based valuation techniques for which all significant assumptions are observable in the market or can be corroborated by observable market data for substantially the full term of the assets or liabilities. |
| • | Level 3 – inputs are generally unobservable and typically reflect management’s estimates of assumptions that market participants would use in pricing the asset or liability. The fair values are therefore determined using model-based techniques that include option pricing models, discounted cash flow models and similar techniques. |
In accordance with the fair value hierarchy, described above, the following table shows the fair value of the Company’s financial instruments that are required to be measured at fair value as of September 30, 2010. Derivatives not designated as hedging instruments primarily represent the balances below and the gains and losses on these financial instruments are not material to the statement of operations. Derivatives designated as hedging instruments are not material to the Company’s financial statements.
| Fair Value Measurements as of September 30, 2010 | ||||||||||||||||
| (Level 1) | (Level 2) | (Level 3) | Total | |||||||||||||
| (in millions) | ||||||||||||||||
| Other Current Assets: |
||||||||||||||||
| Foreign Currency Forward Exchange Contracts (a) |
$ | — | $ | 4 | $ | — | $ | 4 | ||||||||
| Other Current Liabilities: |
||||||||||||||||
| Foreign Currency Forward Exchange Contracts (a) |
$ | — | $ | (6 | ) | $ | — | $ | (6 | ) | ||||||
| (a) | The fair value of the foreign currency forward exchange contracts is based on dealer quotes of market forward rates and reflects the amount that the Company would receive or pay at their maturity dates for contracts involving the same currencies and maturity dates. |
The majority of the Company’s non-financial instruments, which include goodwill, intangible assets, inventories, and property, plant, and equipment, are not required to be re-measured to fair value on a recurring basis. These assets are evaluated for impairment if certain triggering events occur. If such evaluation indicates that an impairment exists, the asset is written down to its fair value. In addition, an impairment analysis is performed at least annually for goodwill and indefinite-lived intangible assets.
Fair Value of Debt
Based on the level of interest rates prevailing at September 30, 2010, the fair value of the Company’s fixed-rate debt exceeded the carrying value by approximately $73 million. Unrealized gains or losses on debt do not result in the realization or expenditure of cash and generally are not recognized for financial reporting purposes unless the debt is retired prior to its maturity.
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2010 QUARTERLY FINANCIAL INFORMATION
(unaudited)
The following table sets forth the quarterly information for WMG Acquisition Corp.
| Three months ended | ||||||||||||||||
| September 30, 2010 (a) |
June 30, 2010 (a) |
March 31, 2010 (a) |
December 31, 2009 (a) |
|||||||||||||
| (in millions) | ||||||||||||||||
| Revenues |
$ | 752 | $ | 652 | $ | 662 | $ | 918 | ||||||||
| Costs and expenses |
||||||||||||||||
| Cost of revenues |
(386 | ) | (352 | ) | (323 | ) | (511 | ) | ||||||||
| Selling, general and administrative expenses |
(292 | ) | (246 | ) | (261 | ) | (304 | ) | ||||||||
| Amortization of intangible assets |
(54 | ) | (55 | ) | (54 | ) | (56 | ) | ||||||||
| Total costs and expenses |
(732 | ) | (653 | ) | (638 | ) | (871 | ) | ||||||||
| Operating income |
20 | (1 | ) | 24 | 47 | |||||||||||
| Interest expense, net |
(41 | ) | (39 | ) | (40 | ) | (45 | ) | ||||||||
| Other income (expense), net |
1 | 2 | (4 | ) | 1 | |||||||||||
| (Loss) income from before income taxes |
(20 | ) | (38 | ) | (20 | ) | 3 | |||||||||
| Income tax expense |
(17 | ) | (9 | ) | (2 | ) | (13 | ) | ||||||||
| Net loss |
(37 | ) | (47 | ) | (22 | ) | (10 | ) | ||||||||
| Less: loss (income) attributable to noncontrolling interest |
— | — | 3 | (1 | ) | |||||||||||
| Net loss attributable to WMG Acquisition Corp. |
$ | (37 | ) | $ | (47 | ) | $ | (19 | ) | $ | (11 | ) | ||||
| (a) | The Company’s business is seasonal. Therefore, quarterly operating results are not necessarily indicative of the results that may be expected for the full fiscal year. |
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WMG ACQUISITION CORP.
2009 QUARTERLY FINANCIAL INFORMATION
(unaudited)
The following table sets forth the quarterly information for WMG Acquisition Corp.
| Three months ended | ||||||||||||||||
| September 30, 2009 (a) |
June 30, 2009 (a) |
March 31, 2009 (a) |
December 31, 2008 (a) |
|||||||||||||
| (in millions) | ||||||||||||||||
| Revenues |
$ | 867 | $ | 773 | $ | 671 | $ | 887 | ||||||||
| Costs and expenses |
||||||||||||||||
| Cost of revenues |
(450 | ) | (435 | ) | (341 | ) | (493 | ) | ||||||||
| Selling, general and administrative expenses |
(307 | ) | (258 | ) | (259 | ) | (295 | ) | ||||||||
| Amortization of intangible assets |
(56 | ) | (55 | ) | (56 | ) | (58 | ) | ||||||||
| Total costs and expenses |
(813 | ) | (748 | ) | (656 | ) | (846 | ) | ||||||||
| Operating income |
54 | 25 | 15 | 41 | ||||||||||||
| Interest expense, net |
(42 | ) | (56 | ) | (35 | ) | (39 | ) | ||||||||
| Gain on sale of equity-method investments |
— | — | — | 36 | ||||||||||||
| Gain on foreign exchange transaction |
— | — | — | 9 | ||||||||||||
| Impairment of cost-method investments |
— | — | (29 | ) | — | |||||||||||
| Impairment of equity-method investments |
(1 | ) | — | — | (10 | ) | ||||||||||
| Other income (expense), net |
— | 4 | (3 | ) | — | |||||||||||
| Income (loss) from before income taxes |
11 | (27 | ) | (52 | ) | 37 | ||||||||||
| Income tax expense |
(20 | ) | (4 | ) | (10 | ) | (16 | ) | ||||||||
| Net (loss) income |
(9 | ) | (31 | ) | (62 | ) | 21 | |||||||||
| Less: (income) loss attributable to noncontrolling interest |
(2 | ) | (1 | ) | — | 7 | ||||||||||
| Net (loss) income attributable to WMG Acquisition Corp. |
$ | (11 | ) | $ | (32 | ) | $ | (62 | ) | $ | 28 | |||||
| (a) | The Company’s business is seasonal. Therefore, quarterly operating results are not necessarily indicative of the results that may be expected for the full fiscal year. |
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Table of Contents
Supplementary Information
Consolidating Financial Statements
The Company is one of the world’s major music-based content companies and the successor to substantially all of the interests of the recorded music and music publishing businesses of Time Warner.
The Company has issued $1.1 billion principal amount of 9.50% Senior Secured Notes due 2016, $465 million principal amount of 7.375% Senior Subordinated Notes due 2014 and £100 million sterling principal amount of 8.125% Senior Subordinated notes due 2014 (together, the “Notes”). The Notes are guaranteed by all of the Company’s domestic wholly owned subsidiaries. The Senior Secured Notes are guaranteed on a senior secured basis and the Senior Subordinated Notes are guaranteed on an unsecured senior subordinated basis. These guarantees are full, unconditional, joint and several. The following condensed consolidating financial statements are presented for the information of the holders of the Notes and present the results of operations, financial position and cash flows of (i) the Company, which is the issuer of the Notes, (ii) the guarantor subsidiaries of the Company, (iii) the non-guarantor subsidiaries of the Company and (iv) the eliminations necessary to arrive at the information for the Company on a consolidated basis. Investments in consolidated subsidiaries are presented under the equity method of accounting. There are no restrictions on the Company’s ability to obtain funds from any of its wholly owned subsidiaries through dividends, loans or advances.
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WMG ACQUISITION CORP.
Supplementary Information
Consolidating Balance Sheet
September 30, 2010
| WMG Acquisition Corp. |
Guarantor Subsidiaries |
Non- Guarantor Subsidiaries |
Eliminations | WMG Acquisition Corp. Consolidated |
||||||||||||||||
| (in millions) | ||||||||||||||||||||
| Assets: |
||||||||||||||||||||
| Current assets: |
||||||||||||||||||||
| Cash and equivalents |
$ | — | $ | 135 | $ | 128 | $ | — | $ | 263 | ||||||||||
| Accounts receivable, net |
2 | 171 | 261 | — | 434 | |||||||||||||||
| Due (to) from parent companies |
(1,121 | ) | 1,207 | (85 | ) | (1 | ) | — | ||||||||||||
| Inventories |
— | 13 | 24 | — | 37 | |||||||||||||||
| Royalty advances expected to be recouped within one year |
— | 82 | 61 | — | 143 | |||||||||||||||
| Deferred tax asset |
— | — | 30 | — | 30 | |||||||||||||||
| Other current assets |
2 | 14 | 30 | — | 46 | |||||||||||||||
| Total current assets |
(1,117 | ) | 1,622 | 449 | (1 | ) | 953 | |||||||||||||
| Royalty advances expected to be recouped after one year |
— | 109 | 80 | — | 189 | |||||||||||||||
| Investments in and advances to (from) consolidated subsidiaries |
2,559 | 762 | — | (3,321 | ) | — | ||||||||||||||
| Investments |
— | 5 | 4 | — | 9 | |||||||||||||||
| Property, plant, and equipment, net |
— | 85 | 36 | — | 121 | |||||||||||||||
| Goodwill |
— | 298 | 759 | — | 1,057 | |||||||||||||||
| Intangible assets subject to amortization, net |
— | 603 | 516 | — | 1,119 | |||||||||||||||
| Intangible assets not subject to amortization |
— | 90 | 10 | — | 100 | |||||||||||||||
| Other assets |
29 | 13 | 14 | — | 56 | |||||||||||||||
| Total assets |
$ | 1,471 | $ | 3,587 | $ | 1,868 | $ | (3,322 | ) | $ | 3,604 | |||||||||
| Liabilities and (Deficit) Equity |
||||||||||||||||||||
| Current liabilities: |
||||||||||||||||||||
| Accounts payable |
$ | — | $ | 103 | $ | 103 | $ | — | $ | 206 | ||||||||||
| Accrued royalties |
— | 612 | 422 | — | 1,034 | |||||||||||||||
| Accrued liabilities |
2 | 126 | 186 | — | 314 | |||||||||||||||
| Accrued interest |
52 | — | — | — | 52 | |||||||||||||||
| Deferred revenue |
— | 29 | 71 | — | 100 | |||||||||||||||
| Other current liabilities |
— | 6 | 2 | — | 8 | |||||||||||||||
| Total current liabilities |
54 | 876 | 784 | — | 1,714 | |||||||||||||||
| Long-term debt |
1,687 | — | — | — | 1,687 | |||||||||||||||
| Deferred tax liabilities, net |
— | 56 | 113 | — | 169 | |||||||||||||||
| Other non-current liabilities |
5 | 97 | 47 | 5 | 154 | |||||||||||||||
| Total liabilities |
1,746 | 1,029 | 944 | 5 | 3,724 | |||||||||||||||
| Total WMG Acquisition Corp. shareholder’s (deficit) equity |
(275 | ) | 2,558 | 870 | (3,327 | ) | (174 | ) | ||||||||||||
| Noncontrolling interest |
— | — | 54 | — | 54 | |||||||||||||||
| Total (deficit) equity |
(275 | ) | 2,558 | 924 | (3,327 | ) | (120 | ) | ||||||||||||
| Total liabilities and (deficit) equity |
$ | 1,471 | $ | 3,587 | $ | 1,868 | $ | (3,322 | ) | $ | 3,604 | |||||||||
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WMG ACQUISITION CORP.
Supplementary Information
Consolidating Balance Sheet
September 30, 2009
| WMG Acquisition Corp. |
Guarantor Subsidiaries |
Non-Guarantor Subsidiaries |
Eliminations | WMG Acquisition Corp. Consolidated |
||||||||||||||||
| (in millions) | ||||||||||||||||||||
| Assets: |
||||||||||||||||||||
| Current assets: |
||||||||||||||||||||
| Cash and equivalents |
$ | — | $ | 59 | $ | 137 | $ | — | $ | 196 | ||||||||||
| Accounts receivable, net |
— | 241 | 309 | — | 550 | |||||||||||||||
| Due (to) from parent companies |
(761 | ) | 819 | (56 | ) | (2 | ) | — | ||||||||||||
| Inventories |
— | 16 | 30 | — | 46 | |||||||||||||||
| Royalty advances expected to be recouped within one year |
— | 101 | 70 | — | 171 | |||||||||||||||
| Deferred tax assets |
— | — | 29 | — | 29 | |||||||||||||||
| Other current assets |
— | 12 | 36 | — | 48 | |||||||||||||||
| Total current assets |
(761 | ) | 1,248 | 555 | (2 | ) | 1,040 | |||||||||||||
| Royalty advances expected to be recouped after one year |
— | 124 | 85 | — | 209 | |||||||||||||||
| Investments in and advances to (from) consolidated subsidiaries |
2,527 | 861 | — | (3,388 | ) | — | ||||||||||||||
| Investments |
— | 15 | 3 | — | 18 | |||||||||||||||
| Property, plant and equipment, net |
— | 68 | 32 | — | 100 | |||||||||||||||
| Goodwill |
— | 351 | 676 | — | 1,027 | |||||||||||||||
| Intangible assets subject to amortization, net |
— | 723 | 594 | — | 1,317 | |||||||||||||||
| Intangible assets not subject to amortization |
— | 90 | 10 | — | 100 | |||||||||||||||
| Other assets |
35 | 17 | 12 | — | 64 | |||||||||||||||
| Total assets |
$ | 1,801 | $ | 3,497 | $ | 1,967 | $ | (3,390 | ) | $ | 3,875 | |||||||||
| Liabilities and Equity (Deficit) |
||||||||||||||||||||
| Current liabilities: |
||||||||||||||||||||
| Accounts payable |
$ | — | $ | 119 | $ | 93 | $ | — | $ | 212 | ||||||||||
| Accrued royalties |
— | 716 | 469 | — | 1,185 | |||||||||||||||
| Accrued liabilities |
11 | 124 | 147 | — | 282 | |||||||||||||||
| Accrued interest |
57 | — | — | — | 57 | |||||||||||||||
| Deferred revenue |
— | 21 | 99 | — | 120 | |||||||||||||||
| Other current liabilities |
— | — | 14 | 14 | ||||||||||||||||
| Total current liabilities |
68 | 980 | 822 | — | 1,870 | |||||||||||||||
| Long-term debt |
1,686 | — | — | — | 1,686 | |||||||||||||||
| Deferred tax liabilities, net |
— | 51 | 113 | — | 164 | |||||||||||||||
| Other noncurrent liabilities |
— | 116 | 55 | 6 | 177 | |||||||||||||||
| Total liabilities |
1,754 | 1,147 | 990 | 6 | 3,897 | |||||||||||||||
| Total WMG Acquisition Corp. shareholder’s equity (deficit) |
47 | 2,350 | 918 | (3,396 | ) | (81 | ) | |||||||||||||
| Noncontrolling interest |
— | — | 59 | — | 59 | |||||||||||||||
| Total equity (deficit) |
47 | 2,350 | 977 | (3,396 | ) | (22 | ) | |||||||||||||
| Total liabilities and equity (deficit) |
$ | 1,801 | $ | 3,497 | $ | 1,967 | $ | (3,390 | ) | $ | 3,875 | |||||||||
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WMG ACQUISITION CORP.
Supplementary Information
Consolidating Statement of Operations
For The Fiscal Year Ended September 30, 2010
| WMG Acquisition Corp. |
Guarantor Subsidiaries |
Non-Guarantor Subsidiaries |
Eliminations | WMG Acquisition Corp. Consolidated |
||||||||||||||||
| (in millions) | ||||||||||||||||||||
| Revenues |
$ | — | $ | 1,321 | $ | 1,858 | $ | (195 | ) | $ | 2,984 | |||||||||
| Costs and expenses: |
||||||||||||||||||||
| Cost of revenues |
— | (664 | ) | (1,086 | ) | 178 | (1,572 | ) | ||||||||||||
| Selling, general and administrative expenses |
— | (449 | ) | (657 | ) | 3 | (1,103 | ) | ||||||||||||
| Other income, net |
— | — | — | |||||||||||||||||
| Amortization of intangible assets |
— | (127 | ) | (92 | ) | — | (219 | ) | ||||||||||||
| Total costs and expenses |
— | (1,240 | ) | (1,835 | ) | 181 | (2,894 | ) | ||||||||||||
| Operating income (loss) from continuing operations |
— | 81 | 23 | (14 | ) | 90 | ||||||||||||||
| Interest expense, net |
(154 | ) | (1 | ) | (10 | ) | — | (165 | ) | |||||||||||
| Equity gains (losses) from equity-method investees |
187 | 28 | — | (215 | ) | — | ||||||||||||||
| Gain on sale of equity-method investments |
— | — | — | — | — | |||||||||||||||
| Gain on foreign exchange transaction |
— | — | — | — | — | |||||||||||||||
| Impairment of cost-method investments |
— | (1 | ) | — | — | (1 | ) | |||||||||||||
| Impairment of equity-method investments |
— | — | — | — | — | |||||||||||||||
| Other income (expense), net |
2 | (10 | ) | 9 | — | 1 | ||||||||||||||
| Income (loss) before income taxes |
35 | 97 | 22 | (229 | ) | (75 | ) | |||||||||||||
| Income tax expense |
(41 | ) | (43 | ) | (24 | ) | 67 | (41 | ) | |||||||||||
| Net (loss) income |
(6 | ) | 54 | (2 | ) | (162 | ) | (116 | ) | |||||||||||
| Less: loss attributable to noncontrolling interest |
— | — | 2 | — | 2 | |||||||||||||||
| Net (loss) income attributable to WMG Acquisition Corp. |
$ | (6 | ) | $ | 54 | $ | — | $ | (162 | ) | $ | (114 | ) | |||||||
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WMG ACQUISITION CORP.
Supplementary Information
Consolidating Statement of Operations
For The Fiscal Year Ended September 30, 2009
| WMG Acquisition Corp. |
Guarantor Subsidiaries |
Non-Guarantor Subsidiaries |
Eliminations | WMG Acquisition Corp. Consolidated |
||||||||||||||||
| (in millions) | ||||||||||||||||||||
| Revenues |
$ | — | $ | 1,354 | $ | 1,943 | $ | (99 | ) | $ | 3,198 | |||||||||
| Costs and expenses: |
||||||||||||||||||||
| Cost of revenues |
— | (744 | ) | (1,077 | ) | 102 | (1,719 | ) | ||||||||||||
| Selling, general and administrative expenses |
— | (404 | ) | (703 | ) | (12 | ) | (1,119 | ) | |||||||||||
| Other income, net |
— | — | — | — | ||||||||||||||||
| Amortization of intangible assets |
— | (138 | ) | (87 | ) | — | (225 | ) | ||||||||||||
| Total costs and expenses |
— | (1,286 | ) | (1,867 | ) | 90 | (3,063 | ) | ||||||||||||
| Operating income from continuing operations |
— | 68 | 76 | (9 | ) | 135 | ||||||||||||||
| Interest expense, net |
(149 | ) | (19 | ) | (4 | ) | — | (172 | ) | |||||||||||
| Equity gains (losses) from equity-method investees |
132 | 81 | — | (213 | ) | — | ||||||||||||||
| Gain on sale of equity-method investments |
— | (3 | ) | 39 | — | 36 | ||||||||||||||
| Gain on foreign exchange transaction |
— | 9 | — | — | 9 | |||||||||||||||
| Impairment of cost-method investments |
— | (29 | ) | — | — | (29 | ) | |||||||||||||
| Impairment of equity-method investments |
— | (11 | ) | — | — | (11 | ) | |||||||||||||
| Other (expense) income, net |
— | (2 | ) | 7 | (4 | ) | 1 | |||||||||||||
| (Loss) income before income taxes |
(17 | ) | 94 | 118 | (226 | ) | (31 | ) | ||||||||||||
| Income tax expense |
(50 | ) | (52 | ) | (25 | ) | 77 | (50 | ) | |||||||||||
| (Loss) income |
(67 | ) | 42 | 93 | (149 | ) | (81 | ) | ||||||||||||
| Less: (income) loss attributable to noncontrolling interest |
— | (1 | ) | 5 | — | 4 | ||||||||||||||
| Net (loss) income attributable to WMG Acquisition Corp. |
$ | (67 | ) | $ | 41 | $ | 98 | $ | (149 | ) | $ | (77 | ) | |||||||
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WMG ACQUISITION CORP.
Supplementary Information
Consolidating Statement of Operations
For The Fiscal Year Ended September 30, 2008
| WMG Acquisition Corp. |
Guarantor Subsidiaries |
Non-Guarantor Subsidiaries |
Eliminations | WMG Acquisition Corp. Consolidated |
||||||||||||||||
| Revenue |
$ | — | $ | 1,658 | $ | 2,055 | $ | (207 | ) | $ | 3,506 | |||||||||
| Costs and expenses: |
||||||||||||||||||||
| Cost of revenues |
2 | (1,022 | ) | (1,033 | ) | 207 | (1,846 | ) | ||||||||||||
| Selling, general and administrative expenses |
— | (458 | ) | (776 | ) | — | (1,234 | ) | ||||||||||||
| Other income, net |
— | 2 | 1 | — | 3 | |||||||||||||||
| Amortization of intangible assets |
— | (137 | ) | (85 | ) | — | (222 | ) | ||||||||||||
| Total costs and expenses |
2 | (1,615 | ) | (1,893 | ) | 207 | (3,299 | ) | ||||||||||||
| Operating income from continuing operations |
2 | 43 | 162 | — | 207 | |||||||||||||||
| Interest expense, net |
(134 | ) | (18 | ) | (7 | ) | — | (159 | ) | |||||||||||
| Equity gains (losses) from equity-method investees |
150 | 87 | — | (237 | ) | — | ||||||||||||||
| Other (expense) income, net |
(12 | ) | 4 | 1 | (1 | ) | (8 | ) | ||||||||||||
| Income from continuing operations before income taxes |
6 | 116 | 156 | (238 | ) | 40 | ||||||||||||||
| Income tax expense |
(49 | ) | (45 | ) | (35 | ) | 80 | (49 | ) | |||||||||||
| (Loss) income from continuing operations |
(43 | ) | 71 | 121 | (158 | ) | (9 | ) | ||||||||||||
| Loss from discontinued operations |
— | (21 | ) | — | — | (21 | ) | |||||||||||||
| Net (loss) income |
(43 | ) | 50 | 121 | (158 | ) | (30 | ) | ||||||||||||
| Less: income attributable to noncontrolling interest |
— | (2 | ) | (3 | ) | — | (5 | ) | ||||||||||||
| Net (loss) income attributable to WMG Acquisition Corp. |
$ | (43 | ) | $ | 48 | $ | 118 | $ | (158 | ) | $ | (35 | ) | |||||||
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Table of Contents
WMG ACQUISITION CORP.
Supplementary Information
Consolidating Statement of Cash Flows
For The Fiscal Year Ended September 30, 2010
| WMG Acquisition Corp. |
Guarantor Subsidiaries |
Non-Guarantor Subsidiaries |
Eliminations | WMG Acquisition Corp. Consolidated |
||||||||||||||||
| (in millions) | ||||||||||||||||||||
| Cash flows from operating activities: |
||||||||||||||||||||
| Net (loss) income |
$ | (6 | ) | $ | 54 | $ | (2 | ) | $ | (162 | ) | $ | (116 | ) | ||||||
| Adjustments to reconcile net (loss) income to net cash used in operating activities: |
||||||||||||||||||||
| Impairment of cost-method investments |
— | 1 | — | — | 1 | |||||||||||||||
| Depreciation and amortization |
— | 155 | 103 | — | 258 | |||||||||||||||
| Non-cash interest expense |
10 | 5 | — | — | 15 | |||||||||||||||
| Non-cash, stock-based compensation expense |
— | 10 | — | — | 10 | |||||||||||||||
| Equity (gains) losses from consolidated subsidiaries |
(187 | ) | (28 | ) | — | 215 | — | |||||||||||||
| Other non-cash items |
— | — | — | — | — | |||||||||||||||
| Changes in operating assets and liabilities: |
||||||||||||||||||||
| Accounts receivable |
(2 | ) | 71 | 49 | — | 118 | ||||||||||||||
| Inventories |
— | 3 | 5 | — | 8 | |||||||||||||||
| Royalty advances |
— | 20 | (4 | ) | — | 16 | ||||||||||||||
| Accounts payable and accrued liabilities |
190 | (165 | ) | (119 | ) | (53 | ) | (147 | ) | |||||||||||
| Accrued interest |
(5 | ) | — | — | — | (5 | ) | |||||||||||||
| Other balance sheet changes |
— | (3 | ) | 7 | — | 4 | ||||||||||||||
| Net cash provided by operating activities |
— | 123 | 39 | — | 162 | |||||||||||||||
| Cash flows from investing activities: |
— | |||||||||||||||||||
| Investments and acquisitions of businesses, net of cash aquired |
— | — | (7 | ) | — | (7 | ) | |||||||||||||
| Acquisition of publishing rights |
— | (20 | ) | (16 | ) | — | (36 | ) | ||||||||||||
| Proceeds from the sale of investments |
— | 9 | — | — | 9 | |||||||||||||||
| Capital expenditures |
— | (36 | ) | (15 | ) | — | (51 | ) | ||||||||||||
| Net cash used in investing activities |
— | (47 | ) | (38 | ) | — | (85 | ) | ||||||||||||
| Cash flows from financing activities: |
||||||||||||||||||||
| Distributions to noncontrolling interest holders |
— | — | (3 | ) | — | (3 | ) | |||||||||||||
| Net cash used in financing activities |
— | — | (3 | ) | — | (3 | ) | |||||||||||||
| Effect of foreign currency exchange rate changes on cash |
— | — | (7 | ) | — | (7 | ) | |||||||||||||
| Net increase (decrease) in cash and equivalents |
— | 76 | (9 | ) | — | 67 | ||||||||||||||
| Cash and equivalents at beginning of period |
— | 59 | 137 | — | 196 | |||||||||||||||
| Cash and equivalents at end of period |
$ | — | $ | 135 | $ | 128 | $ | — | $ | 263 | ||||||||||
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WMG ACQUISITION CORP.
Supplementary Information
Consolidating Statement of Cash Flows
For The Fiscal Year Ended September 30, 2009
| WMG Acquisition Corp. |
Guarantor Subsidiaries |
Non-Guarantor Subsidiaries |
Eliminations | WMG Acquisition Corp. Consolidated |
||||||||||||||||
| (in millions) | ||||||||||||||||||||
| Cash flows from operating activities: |
||||||||||||||||||||
| Net (loss) income |
$ | (67 | ) | $ | 42 | $ | 93 | $ | (149 | ) | $ | (81 | ) | |||||||
| Adjustments to reconcile net loss to net cash provided by (used in) operating activities: |
||||||||||||||||||||
| Gain on sale of equity investment |
— | 3 | (39 | ) | — | (36 | ) | |||||||||||||
| Gain on foreign exchange transaction |
— | (9 | ) | — | — | (9 | ) | |||||||||||||
| Gain on sale of building |
— | — | (3 | ) | — | (3 | ) | |||||||||||||
| Impairment of equity investment |
— | 11 | — | — | 11 | |||||||||||||||
| Impairment of cost-method investments |
— | 29 | — | — | 29 | |||||||||||||||
| Depreciation and amortization |
— | 165 | 97 | — | 262 | |||||||||||||||
| Non-cash interest expense |
30 | 9 | — | — | 39 | |||||||||||||||
| Non-cash stock-based compensation expense |
— | 11 | — | — | 11 | |||||||||||||||
| Equity (gains) losses from consolidated subsidiaries |
(76 | ) | (80 | ) | — | 156 | — | |||||||||||||
| Changes in operating assets and liabilities: |
||||||||||||||||||||
| Accounts receivable |
— | 29 | (37 | ) | — | (8 | ) | |||||||||||||
| Inventories |
— | 4 | 6 | — | 10 | |||||||||||||||
| Royalty advances |
— | (10 | ) | (10 | ) | — | (20 | ) | ||||||||||||
| Accounts payable and accrued liabilities |
521 | (295 | ) | (204 | ) | (7 | ) | 15 | ||||||||||||
| Accrued interest |
25 | — | — | — | 25 | |||||||||||||||
| Other balance sheet changes |
— | 3 | (11 | ) | — | (8 | ) | |||||||||||||
| Net cash provided by (used in) operating activities |
433 | (88 | ) | (108 | ) | — | 237 | |||||||||||||
| Cash flows from investing activities: |
||||||||||||||||||||
| Repayments of loans by third parties |
— | 3 | — | — | 3 | |||||||||||||||
| Investments and acquisitions of businesses, net of cash acquired |
— | (8 | ) | (8 | ) | — | (16 | ) | ||||||||||||
| Acquisition of publishing copyrights |
(4 | ) | (7 | ) | (11 | ) | ||||||||||||||
| Proceeds from the sale of investments |
— | 4 | 121 | — | 125 | |||||||||||||||
| Proceeds from sale of building |
— | — | 8 | — | 8 | |||||||||||||||
| Capital expenditures |
— | (19 | ) | (8 | ) | — | (27 | ) | ||||||||||||
| Net cash used in investing activities |
— | (24 | ) | 106 | — | 82 | ||||||||||||||
| Cash flows from financing activities: |
||||||||||||||||||||
| Debt repayments |
(1,379 | ) | — | — | — | (1,379 | ) | |||||||||||||
| Proceeds from issuance of Senior Discount Notes |
1,059 | — | — | — | 1,059 | |||||||||||||||
| Deferred financing costs paid |
(23 | ) | — | — | — | (23 | ) | |||||||||||||
| Returns of capital and dividends paid |
(90 | ) | — | — | — | (90 | ) | |||||||||||||
| Distribution to noncontrolling interest holders |
— | — | (3 | ) | — | (3 | ) | |||||||||||||
| Net cash provided by (used in) financing activities |
(433 | ) | — | (3 | ) | — | (436 | ) | ||||||||||||
| Effect of foreign currency on cash |
— | — | — | — | — | |||||||||||||||
| Net increase (decrease) in cash |
— | (112 | ) | (5 | ) | — | (117 | ) | ||||||||||||
| Cash and equivalents at beginning of period |
— | 171 | 142 | — | 313 | |||||||||||||||
| Cash and equivalents at end of period |
$ | — | $ | 59 | $ | 137 | $ | — | $ | 196 | ||||||||||
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WMG ACQUISITION CORP.
Supplementary Information
Consolidating Statement of Cash Flows
For The Fiscal Year Ended September 30, 2008
| WMG Acquisition Corp. |
Guarantor Subsidiaries |
Non-Guarantor Subsidiaries |
Eliminations | WMG Acquisition Corp. Consolidated |
||||||||||||||||
| Cash flows from operating activities: |
||||||||||||||||||||
| Net (loss) income |
$ | (43 | ) | $ | 50 | $ | 121 | $ | (158 | ) | $ | (30 | ) | |||||||
| Loss from discontinued operations |
— | 21 | — | — | 21 | |||||||||||||||
| (Loss) income from continuing operations |
(43 | ) | 71 | 121 | (158 | ) | (9 | ) | ||||||||||||
| Adjustments to reconcile net income (loss) to net cash provided by (used in) operating activities: |
||||||||||||||||||||
| Depreciation and amortization |
— | 168 | 100 | — | 268 | |||||||||||||||
| Deferred taxes |
— | (3 | ) | — | — | (3 | ) | |||||||||||||
| Non-cash interest expense |
13 | 12 | — | — | 25 | |||||||||||||||
| Non-cash, stock-based compensation expense |
— | 10 | 1 | — | 11 | |||||||||||||||
| Equity (gains) losses from consolidated subsidiaries |
— | (237 | ) | — | 237 | — | ||||||||||||||
| Other non-cash adjustments |
— | (3 | ) | — | — | (3 | ) | |||||||||||||
| Changes in operating assets and liabilities |
— | — | — | — | — | |||||||||||||||
| Accounts receivable |
— | 23 | 5 | — | 28 | |||||||||||||||
| Inventories |
— | 2 | — | — | 2 | |||||||||||||||
| Royalty advances |
— | (20 | ) | 14 | — | (6 | ) | |||||||||||||
| Accounts payable and accrued liabilities |
3 | 13 | (30 | ) | 1 | (13 | ) | |||||||||||||
| Accrued interest |
(3 | ) | — | — | — | (3 | ) | |||||||||||||
| Other balance sheet changes |
— | (2 | ) | 1 | — | (1 | ) | |||||||||||||
| Net cash (used in) provided by operating activities |
(30 | ) | 34 | 212 | 80 | 296 | ||||||||||||||
| Cash flows from investing activities: |
||||||||||||||||||||
| Other investments and acquisitions |
— | (52 | ) | (80 | ) | — | (132 | ) | ||||||||||||
| Loan to third party |
— | (3 | ) | — | — | (3 | ) | |||||||||||||
| Acquisition of publishing rights |
— | (4 | ) | (21 | ) | — | (25 | ) | ||||||||||||
| Proceeds from investments |
— | 15 | 10 | — | 25 | |||||||||||||||
| Capital expenditures |
— | (23 | ) | (9 | ) | — | (32 | ) | ||||||||||||
| Net cash used in investing activities |
— | (67 | ) | (100 | ) | — | (167 | ) | ||||||||||||
| Cash flows from financing activities: |
||||||||||||||||||||
| Debt repayments |
(17 | ) | — | — | — | (17 | ) | |||||||||||||
| Returns of capital and dividends paid |
47 | 95 | (120 | ) | (80 | ) | (58 | ) | ||||||||||||
| Net cash (used in) provided by financing activities |
30 | 95 | (120 | ) | (80 | ) | (75 | ) | ||||||||||||
| Effect of foreign currency exchange rate changes on cash |
— | — | — | — | — | |||||||||||||||
| Net increase (decrease) in cash and equivalents |
— | 62 | (8 | ) | — | 54 | ||||||||||||||
| Cash and equivalents at beginning of period |
— | 109 | 150 | — | 259 | |||||||||||||||
| Cash and equivalents at end of period |
$ | — | $ | 171 | $ | 142 | $ | — | $ | 313 | ||||||||||
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Schedule II—Valuation and Qualifying Accounts
| Description |
Balance at Beginning of Period |
Additions Charged to Cost and Expenses |
Deductions | Balance at End of Period |
||||||||||||
| (in millions) | ||||||||||||||||
| Year Ended September 30, 2010 |
||||||||||||||||
| Allowance for doubtful accounts |
$ | 26 | $ | 15 | $ | (21 | ) | $ | 20 | |||||||
| Reserves for sales returns and allowances |
106 | 286 | (305 | ) | 87 | |||||||||||
| Allowance for deferred tax asset |
441 | 59 | (11 | ) | 489 | |||||||||||
| Year Ended September 30, 2009 |
||||||||||||||||
| Allowance for doubtful accounts |
$ | 21 | $ | 14 | $ | (9 | ) | $ | 26 | |||||||
| Reserves for sales returns and allowances |
134 | 327 | (355 | ) | 106 | |||||||||||
| Allowance for deferred tax asset |
390 | 116 | (65 | ) | 441 | |||||||||||
| Year Ended September 30, 2008 |
||||||||||||||||
| Allowance for doubtful accounts |
$ | 20 | $ | (3 | ) | $ | 4 | $ | 21 | |||||||
| Reserves for sales returns and allowances |
169 | 445 | (480 | ) | 134 | |||||||||||
| Allowance for deferred tax asset |
349 | 53 | (12 | ) | 390 | |||||||||||
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| ITEM 9. | CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE |
None.
| ITEM 9A. | CONTROLS AND PROCEDURES |
Certification
The certifications of the principal executive officer and the principal financial officer (or persons performing similar functions) required by Rules 13a-14(a) and 15d-14(a) of the Securities Exchange Act of 1934, as amended (the “Certifications”) are filed as exhibits to this report. This section of the report contains the information concerning the evaluation of our disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) (“Disclosure Controls”) and changes to internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) (“Internal Controls”) referred to in the Certifications and this information should be read in conjunction with the Certifications for a more complete understanding of the topics presented.
Introduction
The Securities and Exchange Commission’s rules define “disclosure controls and procedures” as controls and procedures that are designed to ensure that information required to be disclosed by public companies in the reports filed or submitted under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the SEC’s rules and forms. Disclosure controls and procedures include, without limitation, controls and procedures designed to ensure that information required to be disclosed by public companies in the reports that they file or submit under the Exchange Act is accumulated and communicated to a company’s management, including its principal executive and principal financial officers, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure.
The Securities and Exchange Commission’s rules define “internal control over financial reporting” as a process designed by, or under the supervision of, a public company’s principal executive and principal financial officers, or persons performing similar functions, and effected by our board of directors, management and other personnel, 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, or U.S. GAAP, including 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 U.S. GAAP, 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 our assets that could have a material effect on the financial statements.
Our management, including the principal executive officer and principal financial officer, does not expect that our Disclosure Controls or Internal Controls will prevent or detect all error and all fraud. A control system, no matter how well conceived and operated, can provide only reasonable, not absolute, assurance that the objectives of the control system are met. Because of the limitations in any and all control systems, no evaluation of controls can provide absolute assurance that all control issues and instances of fraud, if any, within our company have been detected. Further, the design of any control system is based in part upon certain assumptions about the likelihood of future events, and there can be no assurance that any design will succeed in achieving its stated goals under all potential future conditions. Because of these inherent limitations in a cost-effective control system, misstatements due to error or fraud may occur and not be detected even when effective Disclosure Controls and Internal Controls are in place.
Evaluation of Disclosure Controls and Procedures
Based on our management’s evaluation (with the participation of our principal executive officer and principal financial officer), as of the end of the period covered by this report, our principal executive officer and principal financial officer have concluded that our Disclosure Controls provided reasonable assurance that information required to be disclosed by us in reports that we file or submit under the Exchange Act will be recorded, processed, summarized and reported within the time periods specified in SEC rules and forms, including that such information is accumulated and communicated to management, including the principal executive officer and principal financial officer, as appropriate to allow timely decisions regarding required disclosure.
Changes in Internal Control over Financial Reporting
There have been no changes, other than as noted below, in our Internal Controls over financial reporting or other factors during the quarter ended September 30, 2010 that have materially affected, or are reasonably likely to materially affect, our Internal Controls.
In an effort to make our information technology, or IT, more efficient and increase our IT capabilities and reduce potential disruptions, as well as generate cost savings, we signed a contract during the first quarter of fiscal 2009 with a third-party service provider to outsource a significant portion of our IT functions. We began transitioning work to the service provider in December 2008, and we completed the transition during the fourth quarter of fiscal 2010. In addition, in an effort to make our finance and accounting
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functions more efficient, as well as generate cost savings, we signed a contract during the third quarter of fiscal 2009 with a third-party service provider to outsource certain accounting and finance functions. We began transitioning work to the service provider in April 2009, and the transition was substantially completed by April 2010. The outsourcing arrangements are expected to enhance the cost efficiency of these administrative functions. The outsourcing of these functions will have an immediate effect with regard to the responsibilities for the performance of certain processes and internal controls over financial reporting. We anticipate that internal controls over financial reporting could be further impacted in the future as these outsourced functions benefit from expected innovations and improvements from our service providers.
In October 2010, we implemented a new SAP enterprise resource planning application in the U.S. for fiscal 2011. While we will experience changes in internal controls over financial reporting in fiscal 2011 as the implementation occurs, we expect to be able to transition to the new processes and controls with no negative impact to our internal control environment. If we fail to effectively implement the SAP application or if the SAP application fails to operate as designed or intended, it may impact our ability to process transactions accurately and efficiently.
Management’s Report on Internal Control Over Financial Reporting
Management’s report on internal control over financial reporting is located on page 63 of this report and Ernst & Young LLP’s Report of Independent Registered Public Accounting Firm on Internal Control Over Financial Reporting is located on page 64 of this report.
| ITEM 9B. | OTHER INFORMATION |
New Cinram Agreements
On November 16, 2010, Warner-Elektra-Atlantic Corporation (“WEA”), a wholly-owned subsidiary of Parent, entered into a series of new manufacturing, packaging and physical distribution agreements with Cinram International Inc. (collectively, with its affiliates and subsidiaries, “Cinram”), including an agreement with Cinram Manufacturing LLC (formerly Cinram Manufacturing Inc.), Cinram Distribution LLC and Cinram International Inc. for the United States and Canada and an agreement with Cinram International Inc., Cinram GmbH and Cinram Operations UK Limited for certain territories within the European Union. The terms of the new agreements remain substantially the same as the terms of the original 2003 agreements, as amended, but now provides us with the option to use third-party vendors for up to a certain percentage of the previous year’s volume provided by Cinram (and up to a higher percentage upon the occurrence of certain events). In addition, the Agreement provides WEA with expanded termination rights. We believe that the pricing terms in the new agreements continue to reflect market rates. The agreements expire on January 31, 2014.
The foregoing description of the new agreements is qualified in its entirety by the full text of the agreements, copies of which we intend to file as exhibits to our Quarterly Report on Form 10-Q for the three months ending December 31, 2010. We intend to request confidential treatment for certain portions of the agreements which will be omitted from the exhibits.
Lime Wire Decision
In an Order dated May 11, 2010 (and amended May 25, 2010), the U.S. District Court for the Southern District of New York granted in part the motion for summary judgment in the Lime Wire case filed by the plaintiffs (the four major recorded music groups, including us). Lime Wire is the world's most widely used peer-to-peer (P2P) file-sharing client. The Lime Wire client is the creation of Mark Gorton, who was Lime Wire's CEO when the company released the client in 2000. The court held that Lime Wire, Lime Group (which until 2005 owned almost all of Lime Wire), and Mark Gorton (personally) all are liable for secondary copyright infringement. The court applied the standard set by the Supreme Court in the Grokster decision and held that all three defendants intentionally induced direct infringement by Lime Wire users. A jury trial is scheduled to take place in 2011 to determine, among other things, what the size of the damages award will be. In October 2010, an injunction, issued by the U.S. District Court for the Southern District of New York, compelled Lime Wire to stop distributing and supporting its file-sharing software, effective immediately.
French Legal Proceedings
As previously disclosed by Parent , APPAC, a minority shareholder group of Vivendi Universal, initiated an inquiry in the Paris Court of Appeal into various issues relating to Vivendi, including Vivendi's financial disclosures, the appropriateness of executive compensation, and trading in Vivendi stock by certain individuals previously associated with Vivendi. The inquiry has encompassed certain trading by Mr. Bronfman in Vivendi stock. Several individuals, including Mr. Bronfman (the former Vice Chairman of Vivendi) and the former CEO, CFO and COO of Vivendi, had been given the status of “mis en examen” in connection
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with the inquiry. Although there is no equivalent to “mis en examen” in the U.S. system of jurisprudence, it is a preliminary stage of proceedings that does not entail any filing of charges.
In January 2009, the Paris public prosecutor formally recommended that no charges be filed and that Mr. Bronfman not be referred for trial. On October 22, 2009, the investigating magistrate rejected the prosecutor's recommendation and released an order referring for trial Mr. Bronfman and six other individuals, including the former CEO, CFO and COO of Vivendi. While the inquiry encompassed various issues, Mr. Bronfman was referred for trial solely with respect to certain trading in Vivendi stock. The trial concluded on June 25, 2010. The court originally announced that it would deliver its verdict on November 19, 2010. The court has advised that the verdict date is being postponed to a date that we expect will be announced on November 19, 2010. At the trial, the public prosecutor argued that Mr. Bronfman and all of the other defendants in the trial should be acquitted. In addition, the lead civil claimant in the case, APPAC, stated that it believed Mr. Bronfman should be acquitted. The outcome of the trial and any subsequent proceedings with respect to Mr. Bronfman is uncertain at this time. Mr. Bronfman believes that his trading in Vivendi stock was at all times proper.
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PART III
| ITEM 10. | DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT |
The registrant has omitted this information from this report as the registrant meets the conditions set forth in General Instruction (I)(1)(a) and (b) of Form 10-K and is therefore filing this Form with the reduced disclosure format.
| ITEM 11. | EXECUTIVE COMPENSATION |
The registrant has omitted this information from this report as the registrant meets the conditions set forth in General Instructions (I)(1)(a) and (b) of Form 10-K and is therefore filing this Form with the reduced disclosure format.
| ITEM 12. | SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS |
The registrant has omitted this information from this report as the registrant meets the conditions set forth in General Instructions (I)(1)(a) and (b) of Form 10-K and is therefore filing this Form with the reduced disclosure format.
| ITEM 13. | CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS |
The registrant has omitted this information from this report as the registrant meets the conditions set forth in General Instructions (I)(1)(a) and (b) of Form 10-K and is therefore filing this Form with the reduced disclosure format.
| ITEM 14. | PRINCIPAL ACCOUNTANT FEES AND SERVICES |
The following table sets forth the aggregate fees paid to Ernst & Young for services rendered in connection with the consolidated financial statements, and reports for the fiscal years ended September 30, 2010 and 2009 on behalf of the Company and its subsidiaries, as well as all out-of-pocket costs incurred in connection with these services (in thousands):
| Year Ended September 30, 2010 |
Year Ended September 30, 2009 |
|||||||
| Audit Fees |
$ | 6,807 | $ | 7,046 | ||||
| Audit-Related Fees |
506 | 147 | ||||||
| Tax Fees |
80 | 138 | ||||||
| All Other Fees |
— | — | ||||||
| Total Fees |
$ | 7,393 | $ | 7,331 | ||||
These fees include out-of-pocket costs of approximately $0.1 million for the period ended September 30, 2010 and $0.2 million for the period ended September 30, 2009.
Audit Fees: Consists of fees billed for professional services rendered for the audit of the Company’s consolidated financial statements, the review of the interim condensed consolidated financial statements included in quarterly reports and services that are normally provided by Ernst & Young in connection with statutory and regulatory filings or engagements and attest services, except those not required by statute or regulation.
Audit-Related Fees: Consists of fees billed for assurance and related services that are reasonably related to the performance of the audit or review of the Company’s consolidated financial statements and are not reported under “Audit Fees”. These services include employee benefit plan audits, auditing work on proposed transactions, attest services that are not required by statute or regulation, and consultations concerning financial accounting and reporting standards.
Tax Fees: Consists of tax compliance/preparation and other tax services. Tax compliance/preparation consists of fees billed for professional services related to federal, state and international tax compliance, assistance with tax audits and appeals, expatriate tax services, and assistance related to the impact of mergers, acquisitions and divestitures on tax return preparation. Other tax services consist of fees billed for other miscellaneous tax consulting and planning.
All Other Fees: For the fiscal years ended September 30, 2010 and 2009, the Company paid no other fees to Ernst & Young LLP for services rendered, other than those services covered in the sections captioned “Audit Fees,” “Audit-Related Fees,” and “Tax Fees.”
Pre-approval of audit and permissible non-audit services of independent auditors
The Audit Committee pre-approves all audit and permissible non-audit services provided by Ernst & Young. These services may include audit services, audit-related services, tax services and other services. The Audit Committee has adopted a policy for the pre-approval of services provided by Ernst & Young. Under this policy, pre-approval is generally provided for up to one year and any pre-approval is detailed as to the particular service or category of services and includes an anticipated budget. In addition, the Committee may also pre-approve particular services on a case-by-case basis. The Audit Committee has delegated pre-approval authority to the Chair of the Committee. Pursuant to this delegation, the Chair must report any pre-approval decision to the Committee at its first meeting after the pre-approval was obtained.
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WMG Acquisition Corp. became subject to the rules of the SEC regarding qualifications of accountants, including the pre-approval provisions, on February 10, 2005, the effective date of our registration statement relating to the exchange offer to exchange outstanding unregistered notes for freely tradeable exchange notes that were registered under the Securities Act of 1933, as amended. Subsequent to becoming subject to the pre-approval provisions, the waiver of pre-approval provisions set forth in the applicable rules of the SEC were not utilized for the services related to Audit-Related Fees or Tax Fees above and the Audit Committee did not approve any such fees subject to the waiver of pre-approval provisions (i.e., all such fees were pre-approved).
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PART IV
| ITEM 15. | EXHIBIT AND FINANCIAL STATEMENT SCHEDULES |
(a)(1) Financial Statements
The Financial Statements listed in the Index to Consolidated Financial Statements, filed as part of this Annual Report on Form 10-K.
(a)(2) Financial Statement Schedule
The Financial Statements Schedule listed in the Index to Consolidated Financial Statements, filed as part of this Annual Report on Form 10-K.
(a)(3) Exhibits
See Item 15(b) below.
(b) Exhibits
The agreements and other documents filed as exhibits to this report are not intended to provide factual information or other disclosure other than with respect to the terms of the agreements or other documents themselves, and you should not rely on them for that purpose. In particular, any representations and warranties made by us in these agreements or other documents were made solely within the specific context of the relevant agreement or document and may not describe the actual state of affairs as of the date they were made or at any other time.
| Exhibit No. |
Description | |
| 2.1(1) | Purchase Agreement, dated as of November 24, 2003 as amended, between Time Warner Inc. and WMG Acquisition Corp. | |
| 2.2(2) | Settlement Agreement, dated as of July 13, 2005, between Time Warner Inc. and WMG Acquisition Corp. | |
| 3.1(3) | Amended and Restated Certificate of Incorporation of WMG Acquisition Corp. | |
| 3.2(4) | Amended and Restated By-laws of WMG Acquisition Corp. | |
| 4.1(5) | Indenture, dated as of April 8, 2004, among WMG Acquisition Corp., the Guarantors named therein and Wells Fargo Bank, National Association, as Trustee | |
| 4.2(5) | First Supplemental Indenture, dated as of November 16, 2004, among WMG Acquisition Corp., Wells Fargo Bank, National Association, as Trustee, WEA Urban LLC and WEA Rock LLC | |
| 4.3(6) | Second Supplemental Indenture, dated as of May 17, 2005, among WMG Acquisition Corp., Wells Fargo Bank, National Association, as Trustee, NonZero (since renamed Cordless Recordings LLC) and The Biz LLC | |
| 4.4(7) | Third Supplemental Indenture, dated as of September 28, 2005, among WMG Acquisition Corp., Wells Fargo Bank, National Association, as Trustee, and Lava Records LLC | |
| 4.5(8) | Fourth Supplemental Indenture, dated as of October 26, 2005, among WMG Acquisition Corp., Wells Fargo Bank, National Association, as Trustee, and BB Investments LLC | |
| 4.6(9) | Fifth Supplemental Indenture, dated as of November 29, 2005, among WMG Acquisition Corp., Wells Fargo Bank, National Association, as Trustee, and Perfect Game Recording Company LLC | |
| 4.7(10) | Sixth Supplemental Indenture, dated as of June 30, 2006, among WMG Acquisition Corp., the additional subsidiary guarantors party thereto and Wells Fargo Bank, National Association, as Trustee | |
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| Exhibit No. |
Description | |
| 4.8(11) | Seventh Supplemental Indenture, dates as of September 29, 2006, among WMG Acquisition Corp., the additional subsidiary guarantors party thereto and Wells Fargo Bank, National Association, as Trustee | |
| 4.9(12) | Eighth Supplemental Indenture, dated as of November 29, 2006, among WMG Acquisition Corp., the additional subsidiary guarantors party thereto and Wells Fargo Bank, National Association as Trustee. | |
| 4.10(13) | Ninth Supplemental Indenture, dated as of August 3, 2007, to the Indenture dated April 8, 2004, as amended, among WMG Acquisition Corp., the additional subsidiary guarantors party thereto and Wells Fargo Bank, National Association, as Trustee | |
| 4.11(14) | Tenth Supplemental Indenture, dated as of November 28, 2007 to the Indenture dated April 8, 2004, as amended among WMG Acquisition Corp., the additional subsidiary guarantors party there to and Wells Fargo Bank, Nation Association, as Trustee | |
| 4.12(15) | Eleventh Supplemental Indenture, dated as of February 5, 2008 to the Indenture dated April 8, 2004, as amended among WMG Acquisition Corp., the additional subsidiary guarantors party there to and Wells Fargo Bank, Nation Association, as Trustee | |
| 4.13(16) | Indenture, dated as of December 23, 2004, between WMG Holdings Corp. and Wells Fargo Bank, National Association, as Trustee | |
| 4.14(30) | Twelfth Supplemental Indenture dates as of February 2, 2009 to the Indenture dated April 18, 2004, as amended, among WMG Acquisition Corp., the additional subsidiary guarantors party there to and Wells Fargo Bank, Nation Association, as Trustee | |
| 4.15(2) | Guarantee of Warner Music Group Corp. | |
| 4.16(17) | Indenture, dated as of May 28, 2009, among WMG Acquisition Corp., the Guarantors party thereto and Wells Fargo Bank, National Association, as Trustee. | |
| 4.17(17) | Security Agreement, dated as of May 28, 2009, among WMG Acquisition Corp., WMG Holdings Corp., the Grantors party thereto and Wells Fargo Bank, National Association, as Collateral Agent for the Secured Parties and as Notes Authorized Representative. | |
| 4.18(17) | Copyright Security Agreement, dated as of May 28, 2009, made by the Grantors listed on the signature pages thereto in favor of Wells Fargo Bank, National Association, as Collateral Agent for the Secured Parties | |
| 4.19(17) | Patent Security Agreement, dated as of May 28, 2009, made by the Grantors listed on the signature pages thereto in favor of Wells Fargo Bank, National Association, as Collateral Agent for the Secured Parties. | |
| 4.20(17) | Trademark Security Agreement, dated as of May 28, 2009, made by the Grantors listed on the signature pages thereto in favor of Wells Fargo Bank, National Association, as Collateral Agent for the Secured Parties. | |
| 10.1(6) | Amended and Restated Stockholders Agreement dated as of May 10, 2005 between Warner Music Group Corp., WMG Holdings Corp., WMG Acquisition Corp. and certain stockholders of Warner Music Group Corp. | |
| 10.2(18) | Seller Administrative Services Agreement, dated as of February 29, 2004, between Time Warner Inc. and WMG Acquisition Corp. | |
| 10.3(18) | Amendment No. 1 to Seller Administrative Services Agreement, dated as of July 1, 2004, between Time Warner Inc. and WMG Acquisition Corp. | |
| 10.4(18) | Purchaser Administrative Services Agreement, dated as of February 29, 2004, between Time Warner Inc. and WMG Acquisition Corp. | |
| 10.5(18) | Management Agreement, dated as of February 29, 2004, among WMG Parent Corp., WMG Holdings Corp., WMG Acquisition Corp., THL Managers V, L.L.C., Bain Capital Partners, LLC, Providence Equity Partners IV Inc. and Music Partners Management, LLC | |
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| Exhibit No. |
Description | |
| 10.6(6) | Termination Agreement of the Management Agreement dated as of May 10, 2005, between Warner Music Group Corp., WMG Holdings Corp., WMG Acquisition Corp., THL Managers V, L.L.C., Bain Capital Partners, LLC, Providence Equity Partners IV Inc. and Music Partners Management, LLC | |
| 10.7(18) | Warrant Agreement (MMT Warrants), February 29, 2004, WMG Parent Corp., WMG Holdings Corp. and Historic TW Inc. | |
| 10.8(18) | Warrant Agreement (Three-Year Warrants), February 29, 2004, WMG Parent Corp., WMG Holdings Corp. and Historic TW Inc. | |
| 10.9(19) | Warrant Repurchase Agreement, dated as of April 20, 2005, between Warner Music Group Corp. and Historic TW Inc. | |
| 10.10†(20) | Amended and Restated Employment Agreement, dated as of March 14, 2008, between WMG Acquisition Corp. and Edgar Bronfman, Jr. | |
| 10.11†(21) | Amended and Restated Employment Agreement, dated as of March 14, 2008, between WMG Acquisition Corp. and Lyor Cohen | |
| 10.12†(22) | Employment Agreement Amendment, dated as of May 14, 2008, between Warner/Chappell Music, Inc. and David H. Johnson | |
| 10.13†(24) | Employment Agreement, dated as of November 14, 2008 between WMG Acquisition Corp. and Michael D. Fleisher. | |
| 10.14†(23) | Letter Agreement, dated as of July 21, 2008, between Warner Music Inc. and Steven Macri. | |
| 10.15†(18) | Restricted Stock Award Agreement, dated as of March 1, 2004, between Warner Music Group Corp. (formerly known as WMG Parent Corp.) and Edgar Bronfman, Jr. | |
| 10.16†(20) | Stock Option Agreement, dated as of March 15, 2008, between Warner Music Group Corp. and Edgar Bronfman, Jr. | |
| 10.17†(20) | Restricted Stock Award Agreement, dated as of March 15, 2008, between Warner Music Group Corp. and Edgar Bronfman, Jr. | |
| 10.18†(18) | Restricted Stock Award Agreement, dated as of March 1, 2004, between Warner Music Group Corp. (formerly known as WMG Parent Corp.) and Lyor Cohen | |
| 10.19†(21) | Stock Option Agreement, dated as of March 15, 2008, between Warner Music Group Corp. and Lyor Cohen | |
| 10.20†(21) | Restricted Stock Award Agreement, dated as of March 15, 2008, between Warner Music Group Corp. and Lyor Cohen | |
| 10.21†(29) | Restricted Stock Award Agreement, dated as of January 28, 2005, between Warner Music Group Corp. (formerly known as WMG Parent Corp.) and David H. Johnson | |
| 10.22†(18) | Restricted Stock Award Agreement, dated as of December 21, 2004, between Warner Music Group Corp. (formerly known as WMG Parent Corp.) and Michael D. Fleisher | |
| 10.23†(25) | Stock Option Agreement, dated as of November 15, 2008, between Warner Music Group Corp. and Michael D. Fleisher | |
| 10.24†(25) | Restricted Stock Award Agreement, dated as of November 15, 2008, between Warner Music Group Corp. and Michael D. Fleisher | |
| 10.25†(18) | Form of WMG Parent Corp. LTIP Stock Option Agreement | |
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| Exhibit No. |
Description | |
| 10.26†(26) | Warner Music Group Corp. Amended and Restated 2005 Omnibus Award Plan | |
| 10.27†(12) | Form of Restricted Stock Award Agreement | |
| 10.28†(12) | Form of Director Restricted Stock Award Agreement | |
| 10.29†(12) | Form of Option Agreement | |
| 10.30†(12) | Form of Stock Appreciation Rights Agreement | |
| 10.31(18) | Office Lease, June 27, 2002, by and between Media Center Development, LLC and Warner Music Group Inc., as amended | |
| 10.32(18) | Lease, dated as of February 1, 1996, between 1290 Associates, L.L.C. and Warner Communications Inc. | |
| 10.33(18) | Consent to Assignment of Sublease, dated as of October 5, 2001, between 1290 Partners, L.P. and Warner Music Group | |
| 10.34(18) | Lease, dated as of February 29, 2004, between Historical TW Inc. and Warner Music Group Inc. regarding 75 Rockefeller Plaza | |
| 10.35*(18) | U.S. Pick, Pack and Shipping Services Agreement, dated as of October 24, 2003, between Warner-Elektra-Atlantic Corporation and Cinram Distribution LLC | |
| 10.36*(18) | U.S. Manufacturing and Packaging Agreement, dated as of October 24, 2003, between Warner-Elektra-Atlantic Corporation and Cinram Manufacturing Inc. | |
| 10.37*(18) | International Pick, Pack and Shipping Services Agreement, dated as of October 24, 2003, between WEA International Inc. and Warner Music Manufacturing Europe GmbH Company | |
| 10.38*(18) | International Manufacturing and Packaging Agreement, dated as of October 24, 2003, between WEA International Inc. and Warner Music Manufacturing Europe GmbH Company | |
| 10.39*(27) | Amendment dated March 13, 2007 to U.S. Manufacturing and Packaging Agreement, dated as of October 24, 2003, between Warner-Elektra-Atlantic Corporation and Cinram Manufacturing LLC, formerly known as Cinram Manufacturing Inc., and International Manufacturing and Packaging Agreement, dated as of October 24, 2003, between WEA International Inc. and Cinram GmbH | |
| 10.40*(27) | Amendment dated March 13, 2007 to U.S. Pick, Pack and Shipping Services Agreement, dated as of October 24, 2003, between Warner-Elektra-Atlantic Corporation and Cinram Distribution LLC and International Pick, Pack and Shipping Services Agreement, dated as of October 24, 2003, between WEA International Inc. and Cinram GmbH | |
| 10.41(28) | Assurance of Discontinuance dated November 22, 2005 | |
| 21.1** | List of Subsidiaries | |
| 24.1** | Power of Attorney (see signature page) | |
| 31.1** | Certification of the Chief Executive Officer pursuant to Rule 13a-14(a) of the Securities Exchange Act, as amended | |
| 31.2** | Certification of the Chief Financial Officer pursuant to Rule 13a-14(a) of the Securities Exchange Act, as amended | |
| 32.1*** | Certification of the Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 | |
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| Exhibit No. |
Description | |
| 32.2*** | Certification of the Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 | |
| (c) | Financial Statement Schedules | |
| Schedule II—Valuation and Qualifying Accounts | ||
| * | Exhibit omits certain information that has been filed separately with the Securities and Exchange Commission and has been granted confidential treatment. |
| ** | Filed herewith. |
| *** | Pursuant to SEC Release No. 33-8212, this certification will be treated as “accompanying” this Annual Report on Form 10-K and not “filed” as part of such report for purposes of Section 18 of the Securities Exchange Act, as amended, or otherwise subject to the liability of Section 18 of the Securities Exchange Act, as amended, and this certification will not be deemed to be incorporated by reference into any filing under the Securities Act of 1933, as amended, except to the extent that the registrant specifically incorporates it by reference. |
| † | Represents management contract, compensatory plan or arrangement in which directors and/or executive officers are eligible to participate. |
| (1) | Incorporated by reference to WMG Acquisition Corp.’s Amendment No. 1 to the Registration Statement on Form S-4 (File No. 333-121322). |
| (2) | Incorporated by reference to Warner Music Group Corp.’s Registration Statement on Form S-4 (File No. 333-126786-01). |
| (3) | Incorporated by reference to Exhibit 3.196 WMG Acquisition Corp.’s Amendment No. 1 to the Registration Statement on Form S-4 (File No. 333-121322). |
| (4) | Incorporated by reference to Exhibit 3.197 WMG Acquisition Corp.’s Amendment No. 1 to the Registration Statement on Form S-4 (File No. 333-121322). |
| (5) | Incorporated by reference to WMG Acquisition Corp.’s Registration Statement on Form S-4 (File No. 333-121322) |
| (6) | Incorporated by reference to Warner Music Group Corp.’s Current Report on Form 8-K filed May 19, 2005 (File No. 001-32502). |
| (7) | Incorporated by reference to Warner Music Group Corp.’s Current Report on Form 8-K filed October 3, 2005 (File No. 001-32502). |
| (8) | Incorporated by reference to Warner Music Group Corp.’s Current Report on Form 8-K filed October 27, 2005 (File No. 001-32502). |
| (9) | Incorporated by reference to Warner Music Group Corp.’s Annual Report on Form 10-K for the Fiscal year ended September 30, 2005 (File No. 001-32502). |
| (10) | Incorporated by reference to Warner Music Group Corp.’s Current Report on Form 8-K filed June 30, 2006 (File No. 001-32502). |
| (11) | Incorporated by reference to Warner Music Group Corp.’s Current Report on Form 8-K filed on September 29, 2006 (File No. 001-32502). |
| (12) | Incorporated by reference to Warner Music Group Corp.’s Annual Report on Form 10-K for the Fiscal year ended September 30, 2006 (File No. 001-32502) |
| (13) | Incorporated by reference to Warner Music Group Corp.’s Quarterly Report on Form 10-Q for the period ended June 30, 2007 (File No. 001-32502). |
| (14) | Incorporated by reference to Warner Music Group Corp.’s Annual Report on Form 10-K for the Fiscal year ended September 30, 2007 (File No. 001-32502). |
| (15) | Incorporated by reference to Warner Music Group Corp.’s Quarterly Report on Form 10-Q for the period ended December 31, 2007 (File No. 001-32502). |
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| (16) | Incorporated by reference to Warner Music Group Corp.’s Amendment No. 2 to the Registration Statement on Form S-1 (File No. 333-123249). |
| (17) | Incorporated by reference to Warner Music Group Corp.’s Current Report on Form 8-K filed on May 29, 2009 (File No. 001-32502). |
| (18) | Incorporated by reference to WMG Acquisition Corp.’s Amendment No. 2 to the Registration Statement on Form S-4 (File No. 333-121322). |
| (19) | Incorporated by reference to Warner Music Group Corp.’s Amendment No. 3 to the Registration Statement on Form S-1 (File No. 333-123249). |
| (20) | Incorporated by reference to Warner Music Group Corp.’s Current Report on Form 8-K filed on March 17, 2008 (File No. 001-32502). |
| (21) | Incorporated by reference to Warner Music Group Corp.’s Current Report on Form 8-K filed on March 19, 2008 (File No. 001-32502). |
| (22) | Incorporated by reference to Warner Music Group Corp.’s Current Report on Form 8-K filed on May 16, 2008 (File No. 001-32502). |
| (23) | Incorporated by reference to Warner Music Group Corp.’s Current Report on Form 8-K filed on September 16, 2008 (File No. 001-32502). |
| (24) | Incorporated by reference to Warner Music Group Corp.’s Current Report on Form 8-K filed on November 14, 2008 (File No. 001-32502). |
| (25) | Incorporated by reference to Warner Music Group Corp.’s Annual Report on Form 10-K for the fiscal year ended September 30, 2008 (File No. 001-32502). |
| (26) | Incorporated by reference to Warner Music Group Corp.’s Quarterly Report on Form 10-Q for the period ended June 30, 2009 (File No. 001-32502). |
| (27) | Incorporated by reference to Warner Music Group Corp.’s Quarterly Report on Form 10-Q for the period ended March 31, 2007 (File No. 001-32502). |
| (28) | Incorporated by reference to Warner Music Group Corp.’s Current Report on Form 8-K filed November 23, 2005 (File No. 001-32502). |
| (29) | Incorporated by reference to Warner Music Group Corp.’s Annual Report on Form 10-K for the fiscal year ended September 30, 2009 (File No. 001-32502). |
| (30) | Incorporated by reference to Warner Music Group Corp.’s Quarterly Report on Form 10-Q for the period ended December 31, 2008 (File No. 001-32502). |
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Pursuant to the requirements of Section 13 or 15(d) the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized, on November 17, 2010.
| WMG ACQUISITION CORP. | ||
| By: | /S/ EDGAR BRONFMAN, JR. | |
| Name: | Edgar Bronfman, Jr. | |
| Title: | Chief Executive Officer and Chairman of the Board of Directors (Principal Executive Officer) | |
| By: | /S/ STEVEN MACRI | |
| Name: | Steven Macri | |
| Title: | Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) | |
POWER OF ATTORNEY
KNOW BY ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints jointly and severally, Paul M. Robinson and Trent N. Tappe, and each of them, his attorneys-in-fact, each with the power of substitution, for him in any and all capacities, to sign any and all amendments to the this Annual Report on Form 10-K and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each said attorneys-in-fact, or his substitute or substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed by the following persons on behalf of the Registrant and in the capacities indicated on November 17, 2010.
| Signature |
Title | |
| /S/ EDGAR BRONFMAN, JR. Edgar Bronfman, Jr. |
Chief Executive Officer and Chairman of the Board of Directors (Principal Executive Officer) | |
| /S/ STEVEN MACRI Steven Macri |
Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) | |
| /S/ SHELBY W. BONNIE Shelby W. Bonnie |
Director | |
| /S/ RICHARD BRESSLER Richard Bressler |
Director | |
| /S/ JOHN P. CONNAUGHTON John P. Connaughton |
Director | |
| /S/ PHYLLIS E. GRANN Phyllis E. Grann |
Director | |
| /S/ MICHELE J. HOOPER Michele J. Hooper |
Director | |
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| Signature |
Title | |
| /S/ SCOTT L. JAECKEL Scott L. Jaeckel |
Director | |
| /S/ SETH W. LAWRY Seth W. Lawry |
Director | |
| /S/ THOMAS H. LEE Thomas H. Lee |
Director | |
| /S/ IAN LORING Ian Loring |
Director | |
| /S/ MARK NUNNELLY Mark Nunnelly |
Director | |
| /S/ SCOTT M. SPERLING Scott M. Sperling |
Director | |
118
Exhibit 21.1
WMG ACQUISITION CORP.
SUBSIDIARIES OF THE REGISTRANT
| Legal Name |
State or Jurisdiction of Incorporation or Organization | |
| A.P. Schmidt Company |
Delaware | |
| Atlantic/143 L.L.C. |
Delaware | |
| Atlantic Mobile LLC. |
Delaware | |
| Atlantic/MR Ventures Inc. |
Delaware | |
| Atlantic Pix LLC |
Delaware | |
| Atlantic Productions LLC. |
Delaware | |
| Atlantic Recording Corporation |
Delaware | |
| Atlantic Scream LLC. |
Delaware | |
| Alternative Distribution Alliance |
New York | |
| Asylum Records LLC (f/k/a WEA Urban LLC) |
Delaware | |
| BB Investments LLC. |
Delaware | |
| Berna Music, Inc. |
California | |
| Big Beat Records Inc. |
Delaware | |
| Bulldog Entertainment Group LLC. |
Delaware | |
| Bulldog Island Events LLC. |
New York | |
| Bute Sound LLC. |
Delaware | |
| Cafe Americana Inc. |
Delaware | |
| Chappell & Intersong Music Group (Australia) Limited |
Delaware | |
| Chappell And Intersong Music Group (Germany) Inc. |
Delaware | |
| Chappell Music Company, Inc. |
Delaware | |
| Chorus LLC (f/k/a Network Licensing Collection LLC) |
Delaware | |
| Cordless Recordings LLC. |
Delaware | |
| Cota Music, Inc. |
New York | |
| Cotillion Music, Inc. |
Delaware | |
| CRK Music Inc. |
Delaware | |
| E/A Music, Inc. |
Delaware | |
| East West Records LLC. |
Delaware | |
| Eleksylum Music, Inc. |
Delaware | |
| Elektra/Chameleon Ventures Inc. |
Delaware | |
| Elektra Entertainment Group Inc. |
Delaware | |
| Elektra Group Ventures Inc. |
Delaware | |
| EN Acquisition Corp. |
Delaware | |
| FBR Investments LLC. |
Delaware | |
| FHK, Inc. |
Tennessee | |
| Fiddleback Music Publishing Company, Inc. |
Delaware | |
| Foster Frees Music, Inc. |
California | |
| Foz Man Music LLC. |
Delaware | |
| Fueled By Ramen LLC. |
Delaware | |
| Insound Acquisition Inc (f/k/a Atlantic/MR II Inc.). |
Delaware | |
| Inside Job, Inc. |
New York | |
| Intersong U.S.A., LLC. |
Delaware | |
| Jadar Music Corp. |
Delaware | |
| Lava Records LLC. |
Delaware | |
| Lava Trademark Holding Company LLC. |
Delaware | |
| LEM America, Inc. . |
Delaware |
| Legal Name |
State or Jurisdiction of Incorporation or Organization | |
| London-Sire Records Inc. |
Delaware | |
| Made of Stone LLC (f/k/a Griffen Corp). |
Delaware | |
| Maverick Recording Company |
California | |
| Maverick Partner Inc. |
Delaware | |
| McGuffin Music Inc. |
Delaware | |
| Mixed Bag Music, Inc. |
New York | |
| MM Investment Inc. (f/k/a Warner Bluesky Holding Inc.) |
Delaware | |
| NC Hungary Holdings Inc. |
Delaware | |
| New Chappell Inc. |
Delaware | |
| Nonesuch Records Inc. |
Delaware | |
| Non-Stop Cataclysmic Music, LLC. |
Utah | |
| Non-Stop International Publishing, LLC. |
Utah | |
| Non-Stop Music Holdings, Inc. |
Delaware | |
| Non-Stop Music Library, LLC. |
Utah | |
| Non-Stop Music Publishing, LLC. |
Utah | |
| Non-Stop Outrageous Publishing, LLC. |
Utah | |
| Non-Stop Productions, LLC. |
Utah | |
| NVC International Inc. |
Delaware | |
| Octa Music, Inc. |
New York | |
| Penalty Records L.L.C. |
New York | |
| Pepamar Music Corp. |
New York | |
| Perfect Game Recording Company LLC. |
Delaware | |
| Rep Sales, Inc. |
Minnesota | |
| Restless Acquisition Corp. |
Delaware | |
| Revelation Music Publishing Corporation |
New York | |
| Rhino Entertainment Company |
Delaware | |
| Rhino/FSE Holdings LLC. |
Delaware | |
| Rhino Name and Likeness Holdings LLC. |
Delaware | |
| Rick’s Music Inc. |
Delaware | |
| RightSong Music Inc. |
Delaware | |
| Rodra Music, Inc. |
California | |
| Ryko Corporation |
Delaware | |
| Rykodisc, Inc. |
Minnesota | |
| Rykomusic, Inc. |
Minnesota | |
| Sea Chime Music, Inc. |
California | |
| SR/MDM Venture Inc. |
Delaware | |
| Summy-Birchard, Inc. |
Wyoming | |
| Super Hype Publishing, Inc. |
New York | |
| T-Boy Music L.L.C. |
New York | |
| T-Girl Music L.L.C. |
New York | |
| The Biz LLC. |
Delaware | |
| The Rhythm Method Inc. |
Delaware | |
| Tommy Boy Music, Inc. |
New York | |
| Tommy Valando Publishing Group, Inc. |
Delaware | |
| TW Music Holdings Inc. |
Delaware | |
| Unichappell Music Inc. |
Delaware | |
| Upped.com LLC (f/k/a Big Tree Recording Corporation) |
Delaware | |
| W.B.M. Music Corp. |
Delaware | |
| Walden Music, Inc. |
New York | |
| Warner Alliance Music Inc. |
Delaware |
| Legal Name |
State or Jurisdiction of Incorporation or Organization | |
| Warner Brethren Inc. |
Delaware | |
| Warner Bros. Music International Inc. |
Delaware | |
| Warner Bros. Records Inc. |
Delaware | |
| Warner/Chappell Music, Inc. |
Delaware | |
| Warner/Chappell Music (Services), Inc. |
New Jersey | |
| Warner/Chappell Production Music Inc (f/k/a Tri-Chappell Music Inc.) |
Delaware | |
| Warner Custom Music Corp. |
California | |
| Warner Domain Music Inc. |
Delaware | |
| Warner-Elektra-Atlantic Corporation |
New York | |
| Warner Music Discovery Inc. |
Delaware | |
| Warner Music Distribution Inc. |
Delaware | |
| Warner Music Inc. (f/k/a Warner Music Group Inc.) |
Delaware | |
| Warner Music Latina Inc. |
Delaware | |
| Warner Music Nashville LLC |
Tennessee | |
| Warner Music SP Inc. |
Delaware | |
| Warner Sojourner Music Inc. |
Delaware | |
| WarnerSongs Inc. |
Delaware | |
| Warner Special Products Inc. |
Delaware | |
| Warner Strategic Marketing Inc. |
Delaware | |
| Warner-Tamerlane Publishing Corp. |
California | |
| Warprise Music Inc. |
Delaware | |
| WB Gold Music Corp. |
Delaware | |
| WB Music Corp. |
California | |
| WBM/House of Gold Music, Inc. |
Delaware | |
| WBR Management Services Inc. |
Delaware | |
| WBR/QRI Venture, Inc. |
Delaware | |
| WBR/Ruffnation Ventures, Inc. |
Delaware | |
| WBR/Sire Ventures Inc. |
Delaware | |
| WEA Europe Inc. |
Delaware | |
| WEA Inc. |
Delaware | |
| WEA International Inc. |
Delaware | |
| WEA Management Services Inc. |
Delaware | |
| Wide Music, Inc. |
California | |
| WMG Management Services Inc. |
Delaware | |
| WMG Trademark Holding Company LLC |
Delaware |
Exhibit 31.1
CHIEF EXECUTIVE OFFICER CERTIFICATION
I, Edgar Bronfman, Jr., certify that:
1. I have reviewed this annual report on Form 10-K for the period ended September 30, 2010 of WMG Acquisition Corp. (the “Registrant”);
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the Registrant as of, and for, the periods presented in this report;
4. The Registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the Registrant and have:
a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the Registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c) Evaluated the effectiveness of the Registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d) Disclosed in this report any change in the Registrant’s internal control over financial reporting that occurred during the Registrant’s most recent fiscal quarter (the Registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the Registrant’s internal control over financial reporting; and
5. The Registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the Registrant’s auditors and the audit committee of the Registrant’s Board of Directors (or persons performing the equivalent functions):
a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the Registrant’s ability to record, process, summarize and report financial information; and
b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the Registrant’s internal control over financial reporting.
Dated: November 17, 2010
| /s/ EDGAR BRONFMAN, JR. |
| Chief Executive Officer and Chairman of the Board of Directors (Principal Executive Officer) |
Exhibit 31.2
CHIEF FINANCIAL OFFICER CERTIFICATION
I, Steven Macri, certify that:
1. I have reviewed this annual report on Form 10-K for the period ended September 30, 2010 of WMG Acquisition Corp. (the “Registrant”);
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the Registrant as of, and for, the periods presented in this report;
4. The Registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the Registrant and have:
a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the Registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c) Evaluated the effectiveness of the Registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d) Disclosed in this report any change in the Registrant’s internal control over financial reporting that occurred during the Registrant’s most recent fiscal quarter (the Registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the Registrant’s internal control over financial reporting; and
5. The Registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the Registrant’s auditors and the audit committee of the Registrant’s Board of Directors (or persons performing the equivalent functions):
a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the Registrant’s ability to record, process, summarize and report financial information; and
b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the Registrant’s internal control over financial reporting.
Dated: November 17, 2010
| /s/ STEVEN MACRI |
| Chief Financial Officer (Principal Financial and Accounting Officer) |
Exhibit 32.1
Certification of the Chief Executive Officer
Pursuant to 18 U.S.C. Section 1350,
As Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
In connection with the Annual Report of WMG Acquisition Corp. (the “Company”) on Form 10-K for the period ended September 30, 2010 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Edgar Bronfman, Jr., Chief Executive Officer of the Company, certify, pursuant to 18 U.S.C. § 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
(1) the Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
Dated: November 17, 2010
| /s/ EDGAR BRONFMAN, JR. |
| Edgar Bronfman, Jr. |
| Chief Executive Officer |
Exhibit 32.2
Certification of the Chief Financial Officer
Pursuant to 18 U.S.C. Section 1350,
As Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
In connection with the Annual Report of WMG Acquisition Corp. (the “Company”) on Form 10-K for the period ended September 30, 2010 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Steven Macri, Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C. § 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
(1) the Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
Dated: November 17, 2010
| /s/ STEVEN MACRI |
| Steven Macri |
| Chief Financial Officer |