UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended September 27, 1996
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from ________ to ____________
Commission File No. 0-24784
PINNACLE SYSTEMS, INC.
----------------------
(Exact name of Registrant as specified in its charter)
California 94-3003809
- ------------------------------- ------------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
870 West Maude Avenue
Sunnyvale, California 94086
- --------------------------------------- ---------
(Address of principal executive offices) (Zip Code)
(408) 720-9669
----------------------------------------------------
(Registrant's telephone number, including area code)
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
--- ---
The number of shares of common stock outstanding as of September 27, 1996 was
7,481,808.
Page 1
<PAGE>
INDEX
PART I - FINANCIAL INFORMATION
ITEM 1 - Condensed consolidated financial statements
Condensed consolidated balance sheets -
September 30, 1996 and June 30, 1996 3
Condensed consolidated statements of operations -
three months ended September 30, 1996 and 1995 4
Condensed consolidated statements of cash flows -
three months ended September 30, 1996 and 1995 5
Notes to condensed consolidated financial statements 6
ITEM 2 - Management's Discussion and Analysis of Financial
Condition and Results of Operations 8
PART II - OTHER INFORMATION
ITEM 6 - Exhibits and Reports on Form 8-K 11
Signatures 12
See accompanying notes to condensed consolidated financial statements.
2
<PAGE>
PART I - FINANCIAL INFORMATION
Item 1. Financial Statements
<TABLE>
PINNACLE SYSTEMS, INC. AND SUBSIDARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
(In thousands)
<CAPTION>
September 30, June 30,
1996 1996
---- ----
<S> <C> <C>
Assets
Current assets:
Cash and cash equivalents $39,702 $27,846
Marketable securities 15,265 29,315
Accounts receivable, less allowance for doubtful
accounts and returns of $997 and $840 as of
September 30, 1996 and June 30, 1996,
respectively 9,206 7,526
Inventories 9,238 9,611
Deferred taxes 2,091 2,091
Prepaid expenses 306 311
-------- -------
Total current assets 75,808 76,700
Property and equipment, net 3,616 2,204
Marketable securities 3,978 3,973
Deferred taxes 1,154 1,154
Other assets 705 530
-------- -------
$85,261 $84,561
======== =======
Liabilities and Shareholders' Equity
Current liabilities:
Accounts payable $ 1,431 $ 1,495
Accrued expenses 2,765 2,621
Deferred revenue 189 247
-------- -------
Total current liabilities 4,385 4,363
-------- -------
Contingencies
Shareholders' equity:
Common stock; authorized 15,000 shares; 7,482 and
7,468 issued and outstanding as of September 30, and
June 30, 1996, respectively 77,962 77,902
Deferred compensation, net (28) (34)
Retained earnings 2,942 2,330
-------- -------
Total shareholders' equity 80,876 80,198
-------- -------
$85,261 $84,561
======== =======
<FN>
See accompanying notes to condensed consolidated financial statements.
</FN>
</TABLE>
3
<PAGE>
PINNACLE SYSTEMS, INC. AND SUBSIDIARIES
CONDENSED COLSOLIDATED STATEMENTS OF OPERATIONS
(In thousands, except per share data)
Three
Months Ended
September 30,
------------------------
1996 1995
---- ----
Net sales $ 11,443 $ 9,321
Cost of sales 5,996 4,811
--------- -------
Gross profit 5,447 4,510
--------- -------
Operating expenses:
Engineering and product development 1,782 932
Sales and marketing 2,694 1,876
General and administrative 764 441
--------- -------
Total operating expenses 5,240 3,249
--------- -------
Operating income 207 1,261
Interest income, net 763 681
--------- -------
Income before income taxes 970 1,942
Income tax expense (358) (679)
--------- -------
Net income $ 612 $ 1,263
========= =======
Net income per share $ 0.08 $ 0.17
========= =======
Shares used to compute net income per share 7,823 7,534
========= =======
See accompanying notes to condensed consolidated financial statements.
4
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<TABLE>
PINNACLE SYSTEMS, INC. AND SUBSIDARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOW
(In thousands)
<CAPTION>
Three Months Ended September 30,
--------------------------------
1996 1995
---- ----
<S> <C> <C>
Cash flows from operating activities:
Net income $ 612 $ 1,263
Adjustments to reconcile net income to net cash provided by
(used in) operating activities:
Depreciation and amortization 254 116
Tax benefit from exercise of common stock options -- 679
Changes in operating assets and liabilities:
Accounts receivable (1,680) (520)
Inventories 373 (743)
Accrued expenses 144 346
Other (293) (31)
--------- --------
Net cash provided by (used in) operating activities (590) 1,110
--------- --------
Cash flows investing activities:
Purchases of property and equipment (1,659) (323)
Purchase of marketable securities (3,955) (21,047)
Proceeds from maturity of marketable securities 18,000 --
--------- --------
Net cash provided by (used in) investing activities 12,386 (21,370)
--------- --------
Cash flow from financing activities:
Proceeds from issuance of common stock 60 43,987
--------- --------
Net cash provided by financing activities 60 43,987
--------- --------
Net increase in cash and cash equivalents 11,856 23,727
Cash and cash equivalents at beginning of period 27,846 12,626
--------- --------
Cash and cash equivalents at end of period $ 39,702 $ 36,353
========= ========
Supplemental disclosures of cash paid during the period:
Interest $ 2 $ 1
========= ========
Income taxes $ 285 $ 33
========= ========
<FN>
See accompanying notes to condensed consolidated financial statements.
</FN>
</TABLE>
5
<PAGE>
PINNACLE SYSTEMS, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(In thousands)
1. General
The accompanying financial statements have been prepared in conformity with
generally accepted accounting principles. However, certain information or
footnote disclosures normally included in financial statements prepared in
accordance with generally accepted accounting principles have been condensed or
omitted pursuant to the rules and regulations of the Securities and Exchange
Commission. The information furnished in this report reflects all adjustments
which, in the opinion of management, are necessary for a fair statement of the
consolidated financial position, results of operations and cash flows as of and
for the interim periods. Such adjustments consist of items of a normal recurring
nature. The condensed consolidated financial statements included herein should
be read in conjunction with the financial statements and notes thereto, which
include information as to significant accounting policies, for the fiscal year
ended June 30, 1996 included in the Company's Annual Report on Form 10-K as
filed with the Securities and Exchange Commission on September 17, 1996. Results
of operations for interim periods are not necessarily indicative of results for
the full year.
2. Significant Accounting Policies
Fiscal Year
Pinnacle Systems, Inc. and its subsidiaries (the Company) reports on a fiscal
year which ends on June 30. The Company's first three fiscal quarters end on the
last Friday in September, December, and March. For financial statement
presentation, the Company has indicated its fiscal quarters as ending on the
month-end.
Net Income Per Share
Net income per share is computed using the weighted average number of common
shares and dilutive common stock equivalents outstanding using the treasury
stock method.
3. Financial Instruments
In May 1993, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 115, "Accounting for Certain Investments in
Debt and Equity Securities" (FAS 115). The Company adopted the provisions of FAS
115 for investments held as of or acquired after July 1, 1994. Under the
provisions of FAS 115, debt securities that the Company has both the positive
intent and ability to hold to maturity are carried at amortized cost. Presently,
the Company classifies all debt securities as held-to-maturity and carries them
at amortized cost. Interest income is recorded using an effective interest rate,
with the associated premium or discount amortized to "Interest income." The
adoption of FAS 115 did not have a material impact on the Company's consolidated
financial statements.
The fair value of marketable securities is substantially equal to their carrying
value as of September 30, 1996. All investments at September 30, 1996 were
classified as held-to-maturity. Such investments mature through November 1997.
4. Inventories
A summary of inventories follows:
September 30, June 30,
1996 1996
---- ----
Raw materials $6,806 7,695
Work in process 228 405
Finished goods 2,204 1,511
------- -------
$9,238 $9,611
======= =======
6
<PAGE>
PINNACLE SYSTEMS, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(In thousands)
5. Customers and Credit Concentrations
During the three months ended September 30, 1996 and 1995, Avid Technology Inc.
accounted for approximately 27.2% and 33.8%, respectively, of net sales. During
the three months ended September 30, 1996, Data Translation, Inc. accounted for
approximately 12.8% of net sales. No other customers accounted for more than 10%
of sales.
Avid Technology Inc. accounted for approximately 25.3% and 36.7% of accounts
receivable at September 30, 1996 and June 30, 1996, respectively. Data
Translation, Inc. accounted for approximately 15.7% of accounts receivable at
September 30, 1996.
6. Related Parties
The Company and Bell Microproducts Inc. ("Bell") are parties to an agreement
("the Bell Agreement") under which value-added turnkey services are to be
performed by Bell on behalf of the Company. A director of the Company is also a
director of Bell. The Bell Agreement provides that Bell will build certain
products in accordance with the Company's specifications. During the three
months ended September 30, 1996 and 1995, the Company paid $2,087 and $3,349,
respectively, to Bell pursuant to the Bell Agreement.
7
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Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations
Certain Forward-Looking Information
Certain statements in this Management's Discussions and Analysis are
forward-looking statements based on current expectations, and entail various
risks and uncertainties that could cause actual results to differ materially
from those expressed in such forward-looking statements. Such risks and
uncertainties are set forth below under "Overview." These forward-looking
statements include paragraphs below relating to "Net Sales," the last sentence
of the paragraph below relating to "Engineering and Product Development," the
statements below under "Overview," the statements regarding the Company's
expected investment in property, machinery and equipment under "Liquidity and
Capital Resources" below, among others.
Overview
The Company designs, manufactures, markets and supports video
post-production tools for high quality real time video processing. The Company's
products are used to perform a variety of video manipulation functions,
including the addition of special effects, graphics and titles to multiple
streams of live or previously recorded video material. From the Company's
inception in 1986 until 1994, substantially all of the Company's revenues were
derived from the sale of products into the traditional video market. The Company
currently has two product families designed to serve this market; Prizm, and
FlashFile. Prizm provides real time digital video effects capabilities,
compositing, 3D modeling and animation tools, and FlashFile provides
sophisticated still store library management capabilities with optional titling,
paint and video clips.
With the introduction of Alladin in June 1994, the Company began sales
into the desktop video market. The Alladin product family provides real time
digital video manipulation capabilities for the desktop video market. Since the
introduction of Alladin, the Company's sales growth has been largely dependent
on the success of the Alladin. Sales of Alladin products represented
approximately 48.3% and 70.4% of net sales for the three month periods ended
September 30, 1996 and 1995, respectively. A decline in demand for Alladin or
the failure of Alladin to maintain market acceptance, as a result of
competition, technological change or other factors, would have a material
adverse effect on the Company's business, operating results and financial
condition.
In June 1996, the Company commenced shipment of Genie, a new desktop
video product family. The Company is critically dependent upon the successful
market acceptance, manufacture, distribution and sale of Genie to increase
revenue and maintain profitability in the future. Sales of Genie products
represented approximately 23.4% of net sales for the three month period ended
September 30, 1996. In order to successfully promote and sell Genie, the Company
will be required to rapidly bring it into volume production, a process that will
require the attainment of acceptable manufacturing yields and costs. New
products typically have lower initial manufacturing yields and higher initial
manufacturing costs then more mature products. In addition, despite testing by
the Company, as is typical with any new product introduction, quality and
reliability problems may arise and any such problems could result in reduced
bookings, manufacturing rework costs, delays in collecting accounts receivable,
additional service warranty costs and a limitation on market acceptance of the
product. The success of Genie will also require the Company to manage the
introduction in order to minimize disruption in customer's ordering patterns for
Alladin. Sales of Genie will also be dependent on the successful integration of
Genie by various original equipment manufacturers ("OEMs") into their non-linear
editing products. Any delay in the Company's ability to manufacture and ship
Genie, the failure of Genie to gain market acceptance, and the timing and
success in which Genie is integrated into non-linear OEM systems could adversely
affect the Company's business, operating results and financial condition,
particularly on a quarterly basis.
In June 1996, the Company acquired the Video Director product line from
Gold Disk, Inc. Video Director is low-cost video software package sold primarily
to home video enthusiasts. Pinnacle anticipates developing a new family of
products that combine a subset of its video manipulation technology with Video
Director technology to create a new category of products enabling home video
enthusiasts to create professional-looking video content. The introduction of
these products is directed at a new market and depends on expected technology
and market acceptance. There can be no assurance that the market for home video
systems will expand, or that these new products will be accepted by that market.
The sources of competition on the home video market are not yet well defined.
The Company expects that existing computer software manufacturers and new market
entrants will develop new products that may compete directly with the Video
Director derivative products to be developed by the Company. Suppliers or other
computer software products have established distribution channels and experience
in marketing low price products and may acquire or develop high quality home
video editing and manipulation products for this market. Increased competition
could result in lower prices, margins, and market
8
<PAGE>
share than are currently anticipated in designing and developing these products.
There can be no assurance that the Company will be able to compete successfully
against current and future competitors in the video markets. To the extent the
Company is not successful with the development and sales of products in this
market segment, the Company's business, operating results and financial
condition could be adversely affected.
The Company distributes and sells its products to end users through the
combination of independent domestic and international dealers, OEMs and, to a
lesser extent, a direct sales force. Sales to dealers and OEMs are generally at
a discount to the published list prices. Generally, products sold to OEMs are
integrated into systems sold by the OEMs to their customers. The amount of
discount, and consequently the Company's gross profit, varies depending on the
product and the channel of distribution through which it is sold, the volume of
product purchased and other factors. In the United States, the Company supports
the sale of desktop products with independent sales representatives that earn
commissions based on sales into their region.
The Company is highly dependent on sales of Alladin and Genie products
through OEM's, in particular Avid Technology, Inc. ("Avid") and Data
Translation, Inc. ("Data Translation"). Sales to Avid accounted for
approximately 27.2% and 33.8% of net sales during the three months ended
September 30, 1996 and 1995, respectively, while sales to Data Translation
accounted for approximately 12.8% and 0% of net sales during the three months
ended September 30, 1996 and 1995. This concentration of the Company's net sales
subjects the Company to a number of risks, in particular the risk that its
operating results will vary on a quarter to quarter basis as a result of
variations in the ordering patterns of the OEM customers. Variations in the
timing of revenues can cause significant fluctuations in quarterly results of
operations. The Company's results of operations could be materially adversely
affected by the failure of anticipated orders to materialize and by deferrals or
cancellations of orders as a result of changes in Avid and Data Translation's
requirements. For example, sales to Avid in the first quarter of fiscal 1997
were lower than sales in the fourth quarter of fiscal 1996 leading to a decline
in overall net sales, partially offset by the commencement of sales to Data
Translation. If the Company were to lose Avid or Data Translation as a customer,
or if orders from these customers were to otherwise decrease, the Company's
business, operating results and financial condition would be materially
adversely affected. See "Results of Operations-Net Sales."
The Company currently intends to develop and market follow-on products
for the traditional video market. The introduction of such products would have
the same market acceptance, manufacture, distribution and sales risks as
described for the Genie family. The introduction of new traditional products
could significantly slow or replace sales of Prizm and/or FlashFile. If this
were to occur prior to shipment of any new products, sales of the Company's
traditional video product and total sales could be adversely affected. In
addition, if sales of the Prizm and/or FlashFile products were to decrease more
rapidly than expected, the Company could be left with excess Prizm and FlashFile
inventory which could materially affect the Company's financial condition.
The Company is preparing for a move from its Sunnyvale, California
headquarters to another facility in Mountain View, California. The Company
expects to move into the new facility, located approximately one mile from the
current facility, in October 1996. During the transition to the new facility,
the Company will be required to maintain an uninterrupted supply of products in
order to avoid any disruption in customer shipments. Any failure to maintain
acceptable production levels during the transition to the new facility could
adversely affect the Company's operating results, particularly in the quarter of
the transition. The Company is obligated to continue lease payments on the
Sunnyvale facility through November 15, 1996. The Company's financial results
may be affected as a result of this move, since the Company will incur
relocation and other moving costs of up to $200,000 and rent expenses will be
incurred on two facilities through November 15, 1996.
Results of Operations
Net Sales. The Company's net sales increased by 23% to $11,443,000 in
the three months ended September 30, 1996 from $9,321,000 during the comparable
three months in the prior year. The increase was primarily attributable to sales
of the new Genie and Video Director product lines, partially offset by a decline
in sales of Alladin and traditional video products. Sales outside of North
America were approximately 36.2% and 38.3% of net sales in the three months
ended September 30, 1996 and 1995, respectively.
As previously mentioned, sales to the Company's largest customer, Avid,
declined from the fourth quarter of fiscal 1996 to the first quarter of fiscal
1997. The Company believes this trend will likely continue into the second
quarter of fiscal 1997 and that net sales to Avid in the second quarter of
fiscal 1997 will likely decline sequentially from the first quarter of fiscal
1997. To the extent that sales do decline sequentially, the Company's business,
operating results and financial condition would be materially adversely
effected, if such decline is not offset by an increase in other sales.
9
<PAGE>
Cost of Sales. Cost of sales consists primarily of costs related to the
acquisition of components and subassemblies, labor and overhead associated with
procurement, assembly, and testing of finished products, warehousing, shipping
and warranty costs. Gross profit as a percentage of net sales was substantially
unchanged at 47.6% in the three months ended September 30, 1996 compared to
48.4% in the three months ended September 30, 1995.
Engineering and Product Development. Engineering and product
development expenses increased 91.2% to $1,782,000 in the three months ended
September 30, 1996 from $932,000 for the same period in 1995. Engineering and
product development expenses as a percentage of net sales were 15.6% and 10.0%
during the three months ended September 30, 1996 and 1995, respectively. The
increase was primarily attributable to increased expenditures in connection with
the continued expansion of the Company's engineering design team. The Company
expects to continue to allocate significant resources to engineering and product
development efforts.
Sales and Marketing. Sales and marketing expenses include compensation
and benefits for sales and marketing personnel, commissions paid to independent
sales representatives, trade show and advertising expenses and professional fees
for marketing services. Sales and marketing expenses increased by 43.6% to
$2,694,000 in the three months ended September 30, 1996 from $1,876,000 for the
same period in 1995. Sales and marketing as a percentage of net sales were 23.5%
and 20.1% for the three month periods ending September 30, 1996 and 1995,
respectively. The increase in sales and marketing expenses was primarily
attributable to increased expenditures related to continued promotion of Alladin
and the introduction and subsequent promotion and sale of the Genie products,
including expenditures for trade shows, advertising creation and placement,
professional fees for marketing services and increases in the number of sales
and marketing personnel.
General and Administrative. General and administrative expenses
increased 73.2% to $764,000 in the three months ended September 30, 1996 from
$441,000 for the same period in 1995. General and administrative expenses as a
percentage of net sales were 6.7% and 4.7% for the three month periods ending
September 30, 1996 and 1995, respectively. Included in general and
administrative expenses in the three months ended September 30, 1996 is
approximately $122,000 relating to pre-move costs, rent and utilities for the
Company's new facility in Mountain View, California. The Company is preparing to
move into the new facility in October, 1996, and will be subject to rental
expense on two facilities until November 15, 1996, at which time the Company's
lease on the current Sunnyvale, California facility will terminate. The
remaining change resulted from an increase in expenditures related to the
overall growth of the Company's operations.
Interest Income, Net. In the three months ended September 30, 1996,
interest income, net was $763,000 as compared to $681,000 in the comparable
period a year ago. The change is primarily due to the investment of cash
proceeds received from the Company's follow-on public offering of common stock
in July 1995.
Income Tax Expense. The Company recorded a provision for income taxes
of $358,000 and $679,000 for the three months ended September 30, 1996 and 1995,
respectively, at effective rates of 37% and 35%, respectively. As of June 30,
1996, the Company's reported net operating loss carryforwards were approximately
$122,000 for federal income tax purposes. The Company's general business credit
carryforwards were estimated to be approximately $286,000 for federal income tax
purposes. If not utilized, these carryforwards will expire in various amounts
from 2006 through 2011. The Company's ability to utilize these carryforwards is
subject to certain limitations due to an ownership change as defined by the
provisions of Section 382 of the Internal Revenue Code of 1986.
Significant Fluctuations in Quarterly Operating Results
The Company's quarterly operating results have in the past varied, and
are expected to vary significantly in the future as a result of a number of
factors, including the timing of significant orders from and shipments to
customers, in particular Avid and Data Translation, the timing and market
acceptance of new products or technological advances by the Company and its
competitors, the mix of distribution channels through which the Company's
products are sold, changes in pricing policies by the Company and its
competitors, the accuracy of resellers' forecasts of end user demand, the
ability of the Company to obtain sufficient supplies of the major subassemblies
used in its products from its subcontractors, the ability of the Company and its
subcontractors to obtain sufficient supplies of sole or limited source
components for the Company's products, and general economic conditions both
domestically and internationally. The Company's expense levels are based, in
part, on its expectations as to future revenue and, as a result, net income
would be disproportionately affected by a reduction in net sales. The Company
experiences significant fluctuations in orders and sales, due mainly to reduced
customer purchasing activity during the summer months and the timing of major
trade shows. The Company expects that its operating results will fluctuate in
the future as a result of these and other factors, including changes in the rate
of sales to
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OEM customers, in particular Avid and Data Translation, and the Company's
success in developing, introducing and shipping new products, in particular
Genie and new products designed for the consumer market. Due to these factors
and the potential quarterly fluctuations in operating results, the Company
believes that quarter-to-quarter comparisons of its results of operations are
not necessarily meaningful and should not be relied upon as indicators of future
performance.
Liquidity and Capital Resources
The Company has financed its operations through private placements of
equity securities with aggregate net proceeds of approximately $6.9 million,
long-term debt, short-term bank borrowings and cash generated from operations.
In addition, the Company completed public offerings of common stock in November
1994 and July 1995 raising approximately $65.5 million, net of offering
expenses.
The Company's operating activities used cash of $590,000 in the three
months ended September 30, 1996, and generated $1,110,000 for the same period in
1995. The cash used in operating activities during the three months ended
September 30, 1996 was the result of net increases in the components of working
capital, primarily accounts receivable, partially offset by net income as
adjusted by the effects of depreciation and amortization.
During the three months ended September 30, 1996, $1,659,000 was
invested in property and equipment, compared to $323,000 in the three months
ended September 30, 1995. The current year's additions are primarily related to
leasehold improvements for the new Mountain View facility. See "Overview." The
Company expects to invest between $2.5 million and $3.0 million during the first
two quarters of fiscal 1997 in capital and leasehold improvements for the new
Mountain View facility. In addition to leasehold improvements, the Company
expects to continue to purchase property and equipment at an increased rate
during fiscal 1997. Such investing will be financed from working capital.
As of September 30, 1996, the Company had working capital of
approximately $71.4 million, including $39.7 million in cash and cash
equivalents and $15.3 million in marketable securities, and an additional $4.0
million in marketable securities with maturity dates between one and two years.
The Company believes that the existing cash and cash equivalent balances as well
as marketable securities and anticipated cash flow from operations will be
sufficient to support the Company's working capital requirements for the
foreseeable future.
PART II - OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits:
10.19.1* OEM Agreement between Registrant and Data Translation,
Incorporated
10.19.2* Amendment to OEM Agreement between Registrant and Data
Translation, Incorporated
11.1 Statement of Computation of Net Income Per Share
(b) Reports on Form 8-K. No reports on Form 8-K were filed by the
Company during the quarter ended September 30, 1996.
- -----------------------
* Confidential treatment has been requested with respect to certain
portions of this exhibit. Omitted portions have been filed separately
with the Securities and Exchange Commission.
11
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this Report to be signed on its behalf by the
undersigned, thereunto duly authorized.
PINNACLE SYSTEMS, INC.
Date: October 21, 1996 By: /s/Mark L. Sanders
-------------------------------------
Mark L. Sanders
President, Chief Executive Officer
and Director
Date: October 21, 1996 By: /s/Arthur D. Chadwick
-------------------------------------
Arthur D. Chadwick
Vice President, Finance and
Administration and
Chief Financial Officer
12
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INDEX TO EXHIBITS
SEQUENTIALLY
NUMBERED
EXHIBIT PAGE
- --------------------------------------------------------------------------------
10.19.1 OEM Agreement between Registrant and Data Translation, Incorporated
10.19.2 Amendment to OEM Agreement between Registrant and Data Translation,
Incorporated
11.1 Statement of computation of net income per share
13
PINNACLE SYSTEMS INC.
OEM AGREEMENT
THIS OEM AGREEMENT (the "Agreement") is entered into as of September 4,
1996 ("Effective Date"), between Pinnacle Systems, Inc. ("PINNACLE"), a
California corporation with its principal office at 870 West Maude Avenue,
Sunnyvale, California 94086, and Data Translation, Incorporated ("OEM"), a
Massachusetts corporation with its principal office at 100 Locke Drive,
Marlborough, Massachusetts 01752.
In consideration of the mutual promises contained in this Agreement,
the parties agree as follows:
1. DEFINITIONS
1.1 The following definitions will apply when used in this
Agreement:
(a) "Documentation" means the documentation and
related materials accompanying the Products.
(b) "Product(s)" means those products provided
by PINNACLE as listed in Exhibit A, as
amended from time to time by mutual written
agreement.
(c) "Software" means those software programs
contained within the Products.
2. GRANT OF DISTRIBUTION RIGHTS
2.1 Distribution. During the term of this Agreement, PINNACLE
grants to OEM and OEM accepts, the nontransferable, worldwide right to sell the
Products to resellers, distributors and end users. PINNACLE grants to OEM and
OEM accepts the exclusive right to distribute the Software for use with products
designed, developed and marketed by OEM, provided that OEM accepts greater than
[REDACTED***] units per quarter after [REDACTED***]. PINNACLE shall take all
steps necessary to ensure that all versions of its Software that are distributed
by PINNACLE to parties other than OEM [REDACTED***] (b) do not contain any
software or artwork provided by OEM. OEM may copy PINNACLE documentation as
supplied to OEM for distribution with Product. Documentation is copyrighted and
Pinnacle Copyright should be indicated in end user documentation copied by OEM.
2.2 Software. The Products contain Software, which is
licensed, but not sold. All right, title and interest in and to the Software
remains in PINNACLE, except for those portions of the Software which have been
provided by OEM, all right, title and interest to which remains with OEM.
PINNACLE grants to OEM the nontransferable right to sublicense the Software in
object code format only and the Documentation to Third Party customers provided
that customers agree to be bound by the terms and conditions of the end user
software license agreement attached hereto as Exhibit B (the
- -----------
*** Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted
portions have been filed separately with the Commission.
-1-
<PAGE>
"Software License Agreement"), and further provided that OEM continues to be
bound by all provisions in this Agreement with respect to such Software and
Documentation. OEM may not modify, create derivative works, reverse engineer or
otherwise derive source code from the Software. OEM may copy the Software for
distribution with product or to update previously distributed Software and will
distribute a copy of Exhibit B with the Software. The Software is copyrighted.
3. PURCHASE ORDERS AND PRICES
3.1 Order and Acceptance. Orders will be made by means of
signed written or electronic purchase orders mailed, faxed or otherwise
transmitted to PINNACLE's Order Administration Department. All purchase orders
must include a requested shipment date and shipment location. PINNACLE will
normally accept or reject an order in writing within twenty-four (24) hours with
a written order acknowledgment but is under no obligation to do so. No order
will be binding until accepted by PINNACLE in writing, and PINNACLE will have no
liability to OEM with respect to purchase orders that are not accepted in
writing.
3.2 Terms and Conditions. All purchases of Products by OEM
from PINNACLE during the term of this Agreement will be subject to the terms and
conditions of this Agreement. Where the terms and conditions of any purchase
order are in conflict with the provisions of this Agreement, the provisions of
this Agreement shall take precedence.
3.3 Prices. All prices are F.O.B. PINNACLE's shipping
location. Product prices (the "Purchase Price") and additional price terms, if
any, are listed in Exhibit A. PINNACLE reserves the right to change the terms in
Exhibit A with ninety (90) days notice to OEM.
4. SHIPMENT
4.1 Products will be suitably packed for surface or air
shipment, in PINNACLE's discretion and will be shipped F.O.B. PINNACLE's
shipping location (at which time risk of loss will pass to OEM) in PINNACLE's
standard shipping cartons marked for shipment to the address of the OEM
specified in OEM's purchase order. OEM will select the carrier by written
instruction to PINNACLE or, if no such instruction is received, PINNACLE will
select the carrier. All freight, insurance, and other shipping expenses, as well
as any special packing or packaging expense, will be paid by OEM.
4.2 All shipments will be deemed correct unless PINNACLE
receives from OEM, no later than thirty (30) days after date of receipt of the
shipment, a written notice (addressed to the attention of PINNACLE' s Order
Administration Department) specifying the shipment, the purchase order number,
and the exact nature of the discrepancy between the order and the shipment.
5. INVOICING, PAYMENT TERMS, AND TAXES
5.1 Invoicing. PINNACLE will invoice OEM upon shipment to OEM.
Each invoice will include the aggregate Purchase Price for the shipment plus
freight, taxes, duties and other costs prepaid by PINNACLE, if any.
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5.2 Payment Terms. All payments under this Agreement will be
made in U.S. Dollars. OEM shall pay PINNACLE in full for the Products within
thirty (30) days of the date of invoice. PINNACLE may, if OEM fails to make
payments when due, or otherwise defaults hereunder, either alter terms of
payment, delay shipment until terms are met, or pursue any remedies provided by
this Agreement or by law.
5.3 Taxes and Customs Duties. OEM's Purchase Price does not
include any governmental taxes, duties or similar charges of any kind that may
be applicable to the purchase or transportation of the Products. OEM will pay
all such taxes, duties and charges levied against OEM (including, without
limitation, sales, withholding, value-added and similar taxes) and customs
duties paid or payable, however designated, levied, or based, in a timely
manner. PINNACLE will provide prompt notice to OEM of any assessment for which
OEM may be liable hereunder, and will provide to OEM the opportunity to defend
or settle such assessment.
5.4 U.S. Sales and Use Taxes
(a) OEM hereby certifies that it holds a valid
Reseller Exemption Certificate for Products purchased for resale in each
applicable taxing jurisdiction. Based on this certification, PINNACLE agrees,
where the law permits, to treat OEM as exempt from applicable state and/or local
sales tax for Products purchased hereunder. Where required by state or local
law, OEM agrees to provide PINNACLE with a valid Resellers Exemption Certificate
for each taxing jurisdiction to which Products will be shipped by PINNACLE.
(b) OEM agrees to notify PINNACLE promptly in writing
of any addition(s), modification(s), deletion(s) or revocation of its exempt
status, and further agrees to reimburse PINNACLE for any and all assessments
resulting from a refusal by a taxing jurisdiction to recognize any of OEM's
exemption certificates or from OEM's failure to have a valid certificate.
(c) OEM will notify PINNACLE of any Products it is
acquiring under the Agreement for internal use and agrees to pay applicable
sales tax for such Products.
6. MARKETING FORECASTS, MINIMUM ORDER QUANTITIES, ORDER LEAD
TIMES, RESCHEDULING AND CANCELLATION
6.1 Placement of Orders/Releases. It is the desire of PINNACLE
to support OEM with products in a timely fashion, and with a continuous flow of
products, as uninterruptable as possible.
Therefore:
(a) OEM will issue orders/releases for individual
items set forth under Exhibit A attached hereto, including quantities, delivery
requirements and contract pricing.
(b) Initial delivery of the order/releases shall be
in accordance with the material/assembly lead-times stated in PINNACLE's
quotation.
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<PAGE>
(c) OEM agrees that subsequent with placement of the
initial orders/releases, OEM will place additional orders/releases through a
[REDACTED***] window. As time moves on and the [REDACTED***] window shrinks to
[REDACTED***] days, OEM will place additional orders/releases that again
increases the order/releases window up to [REDACTED***] days. OEM agrees to
maintain this [REDACTED***] day window with orders/releases through the term of
this Agreement.
(d) In order for PINNACLE to maintain a continuous
flow of long lead-time material, OEM agrees to issue nonbinding rolling
forecasts to PINNACLE that covers an additional [REDACTED***] day period beyond
the existing orders/releases that exist at any given time.
(e) OEM agrees to take delivery of [REDACTED***]
units of GenieDVE Product by [REDACTED***]. Payment terms [REDACTED***] units
shall be [REDACTED***] days from date of shipment. PINNACLE will extend terms
day for day, up to a maximum of [REDACTED***] days, for each day that delivery
from PINNACLE to OEM of [REDACTED***] of the Media 100 Genie Plug-in application
software [REDACTED***]. Terms will be net 30 for the balance of units shipped by
PINNACLE to OEM. OEM agrees to take delivery of an additional [REDACTED***]
units of GenieDVE by [REDACTED***]. OEM agrees to take delivery of an additional
[REDACTED***] units, for a total of [REDACTED***] units, by [REDACTED***]. Terms
of Section 6.2 are not applicable to the [REDACTED***] units.
(f) PINNACLE agrees that for every [REDACTED***]
units, up to [REDACTED***] units, purchased by OEM, PINNACLE will ship
[REDACTED***] GenieDVE Product units [REDACTED***] OEM to be used as OEM deems
necessary to support the distribution of the products.
6.2 Rescheduling/Cancellation of Orders/Releases. PINNACLE
recognizes that OEM's requirements will change from time to time, and it is the
desire of the PINNACLE to support as much of these changes as possible without
PINNACLE bearing a financial burden to do so. Therefore:
(a) OEM agrees that all orders/releases that call for
delivery from [REDACTED***] out are non-rescheduleable/non-cancelable.
(b) OEM agrees that all orders/release that call for
delivery from [REDACTED***] days out are rescheduleable out, to a maximum of
[REDACTED***] days from the original delivery date.
(c) OEM agrees that all orders/releases that call for
delivery from [REDACTED***] days out are rescheduleable out to a maximum of
[REDACTED***] days from the original delivery date.
(d) After OEM takes delivery of the first
[REDACTED***] units, PINNACLE agrees that OEM may cancel any order/release that
calls for delivery more than [REDACTED***] days out from the date that notice of
cancellation is given. OEM understands that OEM will be obligated for the
inventory and cancellation charges with respect to material associated with any
canceled order/release; provided that PINNACLE shall use its best efforts to
cancel orders for material and/or transfer material to other PINNACLE products
or programs to the maximum extent possible to reduce OEM's cancellation
liability.
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*** Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted
portions have been filed separately with the Commission.
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<PAGE>
7. LIMITED WARRANTY AND DISCLAIMER
7.1 Warranty and Disclaimer. PINNACLE makes a limited
[REDACTED***] warranty to OEM as set forth in the attached Limited Warranty as
Exhibit C (the "Pinnacle Systems, Inc. Limited Warranty"). EXCEPT FOR SUCH
EXPRESS LIMITED WARRANTY, PINNACLE MAKES AND OEM RECEIVES NO OTHER WARRANTIES OR
CONDITIONS ON THE PRODUCTS, EXPRESS, IMPLIED, STATUTORY, OR IN ANY OTHER
PROVISION OF THIS AGREEMENT OR COMMUNICATION WITH OEM, AND PINNACLE SPECIFICALLY
DISCLAIMS ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE. NOTWITHSTANDING THE FOREGOING, PINNACLE DOES NOT EXCLUDE
LIABILITY TO THE EXTENT THAT SUCH LIABILITY MAY NOT BE EXCLUDED OR LIMITED BY
LAW.
8. RETURNS AND REPLACEMENTS
8.1 Out of Warranty Repairs. Subsequent to the expiration of
the applicable warranty period, PINNACLE shall service and maintain the GenieDVE
Product at a price to OEM equal to PINNACLE's standard out-of-warranty terms for
so long as PINNACLE is generally servicing and maintaining its product similar
to the GenieDVE Product.
8.2 Warranty Returns. For Product to be returned under the
provisions of Section 7.1, OEM must provide serial numbers of Products to be
returned, and obtain a Return Material Authorization number ("RMA") from
PINNACLE's Order Administration Department for the specific product and quantity
to be returned. OEM will return the Product, freight prepaid and properly
insured, in a suitable shipping carton with the RMA number displayed on the
outside of the carton. OEM will use such carrier as PINNACLE may specify or, if
no such specification is made, OEM will select the carrier. PINNACLE may refuse
to accept return shipments that do not have an RMA number on the outside of the
carton. The return must be received by PINNACLE within thirty (30) days from
date of issuance of the RMA number. OEM will prepay the cost of freight and
insurance related to the shipment of units to PINNACLE. PINNACLE will reimburse
OEM for such freight and insurance costs with respect to all Products returned
and confirmed as defective. In addition, PINNACLE will bear freight and
insurance costs on the shipment of all replacement units to OEM. Shipment of
replacement units to OEM will be made by PINNACLE within fourteen (14) days from
date of receipt of returned Product. If PINNACLE finds no defects or deviations
from the PINNACLE Product specification, and OEM cannot duplicate the problem
for PINNACLE, OEM agrees to accept such Products and pay the cost of return
shipment.
8.3 No Other Right to Return. Except as set forth in this
Section 8, OEM has no right to return any other Product purchased from PINNACLE
pursuant to the terms of this Agreement.
9. EXPORT REQUIREMENTS
OEM agrees that it will comply with export licensing
requirements imposed by the United States Government and import requirements of
destination countries for all exported Products, and will
- -----------
*** Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted
portions have been filed separately with the Commission.
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<PAGE>
require all of its authorized resellers to agree to similar compliance
provisions in their respective agreements.
10. TERM AND TERMINATION
10.1 This Agreement will continue in force for [REDACTED***]
after the Effective Date. The Agreement will be renewed for [REDACTED***]
periods unless either party notifies the other party of its desire to terminate
[REDACTED***] days prior to the applicable anniversary of the Effective Date.
10.2 Termination for Convenience. After [REDACTED***], this
Agreement may be terminated by either party at any time and for any reason by
giving the other party written notice [REDACTED***] days in advance of said
termination. In the event of such termination, neither party will be liable to
the other party other than for payment for delivery of all Product prior to the
effective date of termination and such other obligations as set forth in Section
7.2 hereof.
10.3 Termination for Cause.
(a) Either party's failure to perform any of its
obligations under this Agreement in any material respect will be a default. In
the event of a default, the nondefaulting party may send a written notice to the
defaulting party describing the nature of the default. If the default is not
corrected within thirty (30) days from the date of such notice, the
nondefaulting party may immediately terminate the Agreement by written notice to
the defaulting party.
(b) If PINNACLE terminates the Agreement for default
by OEM, OEM will pay PINNACLE for all Products already delivered.
(c) If PINNACLE is determined to be in default, OEM
is under no obligation to accept further delivery of Products following the
termination date. OEM will pay for all Products received by the OEM under the
terms and conditions of the Agreement.
10.4 Termination for Insolvency. This Agreement will terminate
immediately without notice (i) upon the institution by or against either party
of insolvency, receivership or bankruptcy proceedings, or any other proceedings
for the settlement of debt, (ii) following either party's making an assignment
for the benefit of creditors, or (iii) following either party's dissolution.
10.5 Return of Materials. All of PINNACLE's trademarks,
Confidential Information, trade names, patents, copyrights, designs, drawings,
formulas or other data, photographs, samples, literature, and sales aides of
every kind will remain the property of PINNACLE. Within thirty (30) days after
the termination of this Agreement, OEM will destroy all such items in its
possession or prepare the same for shipment, as PINNACLE may direct, at
PINNACLE' s expense. OEM will not make or retain any copies of any confidential
items or information which may have been entrusted to it. Effective upon the
termination of this Agreement, OEM will cease to use all trademarks and trade
names of PINNACLE, except as otherwise permitted by this Agreement in connection
with resale of Products delivered to OEM.
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*** Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted
portions have been filed separately with the Commission.
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<PAGE>
10.6 Survival of Certain Terms. There will be no liability
under this Agreement if it terminates according to its terms. The provisions of
Sections 5, 7, 8, 10, 11, 13, 14, 15 and 16 will survive the termination of this
Agreement for any reason. All other rights and obligations of the parties will
cease upon termination of this Agreement.
11. LIMITED LIABILITY
PINNACLE'S AGGREGATE LIABILITY TO OEM ARISING OUT OF OR RELATING TO
THIS AGREEMENT, ANY TERMINATION THEREOF AND/OR SALE OF THE PRODUCTS, (OTHER THAN
LIABILITY TO OEM FOR LOSSES ATTRIBUTABLE TO PINNACLE'S FAILURE TO HONOR ITS
WARRANTIES SET FORTH IN EXHIBITS B AND C HERETO (SUBJECT TO THE LIMIATIONS AND
DISCLAIMERS SET FORTH THEREIN) OR LOSSES FOR WHICH OEM IS ENTITLED TO
INDEMNIFICATION PURSUANT TO SECTION 15 HEREOF), WILL BE LIMITED TO THE AMOUNT
PAID BY OEM FOR THE PRODUCT. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR COSTS
OF PROCUREMENT OF SUBSTITUTE GOODS BY ANYONE. IN NO EVENT WILL PINNACLE BE
LIABLE TO OEM OR ANY OTHER PARTY FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR
OTHER DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE OR
OTHERWISE, AND WHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGE. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY
FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
12. PRODUCT REFINEMENTS AND ENGINEERING CHANGE ORDERS
12.1 Product Refinements. PINNACLE reserves the right to
modify or change the Products to include such form, fit, function or interface
refinements it deems appropriate. For all modifications to the Products,
PINNACLE agrees to maintain compatibility with Media 100. If PINNACLE modifies
its Products, PINNACLE shall have no obligation to supply new Products without
such modifications or to modify or change any previously delivered to OEM.
12.2 Engineering Change Orders. PINNACLE will notify OEM of
Engineering Change Orders for the Products. OEM will receive notification from
PINNACLE within 21 days of the proposed change. If the proposed change is deemed
to affect form, fit, function or Media 100 compatibility of the product OEM
agrees to respond to PINNACLE in writing within 10 days with notification of
such. OEM will receive software updates in advance for testing purposes.
12.3 Software Errors and Defects Fixes (Bug Fixes). PINNACLE
agrees to use its best efforts to correct all errors, defects and malfunctions
in the Product that are identified and reported by the OEM. PINNACLE will supply
bug fixes to OEM at no charge.
13. PROPRIETARY RIGHTS AND CONFIDENTIALITY
13.1 Proprietary Rights. No rights other than those rights
expressly granted in Section 2 are conveyed by this Agreement. PINNACLE does not
grant to OEM any right, title or interest
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in or to the Products now or in the future covered by this Agreement or in or to
any of PINNACLE's patents, trademarks, trade names, inventions, copyrights, know
how, and trade secrets relating to the design, manufacture, operation or service
of the Products or Documentation. Upon termination of this Agreement for any
reason, such authorization will cease, except as otherwise permitted by this
Agreement in connection with resale of Products delivered to OEM.
13.2 License Conveys No Right to Manufacture or Copy. The
Products are offered and are sold by PINNACLE subject, in every case, to the
condition that such sale (and license of Software) does not convey any license,
expressly or by implication, to manufacture, duplicate or otherwise copy or
reproduce any of the Products. OEM will take appropriate steps with its
customers, as PINNACLE may request, to inform them of and assure compliance with
the restrictions contained in this subsection. Notwithstanding the foregoing, in
the event of any software update or upgrade PINNACLE will provide to OEM a
mutually agreed means to update Products in OEM's inventory as of the effective
date of the change.
13.3 Confidentiality
(a) The parties acknowledge that by reason of their
relationship to each other hereunder each will have access to certain
information and materials concerning the other's business, plans, customers,
technology, and/or products that is confidential and of substantial value to
that party, which value would be impaired if such information were disclosed to
third parties ("Confidential Information"). Each party agrees that it will not
use in any way for its own account or the account of any third party, nor
disclose to any third party, any such Confidential Information revealed to it by
the other party, and will take every reasonable precaution to protect the
confidentiality of such information and no less precautions than it takes to
protect its own confidential information. Upon request by either party, the
other party will advise whether or not it considers any particular information
or materials to be Confidential Information. OEM will not publish any technical
description of the Products beyond the description published by PINNACLE. In the
event of termination of this Agreement, for a period of five (5) years after the
date of termination there will be no use or disclosure by a party of any
Confidential Information of the other party, and neither party will manufacture
or have manufactured any devices, components or assemblies utilizing the other
party's Confidential Information.
(b) Confidential Information does not include
information, technical data or know-how which: (i) is in the possession of the
receiving party at the time of disclosure as shown by the receiving party's
files and records immediately prior to the time of disclosure; (ii) prior or
after the time of disclosure becomes part of the public knowledge or literature,
not as a result of any inaction or action of the receiving party; (iii) is
independently developed by a party without the use of any Confidential
Information of the other party; (iv) is approved for release by the disclosing
party; or (v) is required by the order or requirement of a court or governmental
agency. Upon request, each party will advise the other whether or not it
considers any particular information or materials to be Confidential
Information.
13.4 Proprietary Notices. OEM will not remove, alter or
obstruct any copyright and other proprietary notices included in the Products by
PINNACLE, and will include in the Products such other notices as PINNACLE may
reasonably request.
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<PAGE>
14. TRADEMARKS AND TRADE NAMES
14.1 Right to Use Marks. During the term of this Agreement,
OEM will have the right, at its discretion, to advertise the Products under the
trademarks, marks and trade names that PINNACLE may adopt from time to time
("PINNACLE Trademarks"). OEM may utilize PINNACLE's Trademarks in any
advertising, promotional materials and other documentation for the Products,
provided that in any such event the PINNACLE Trademarks will be used in
accordance with the guidelines set forth in Section 14.2 and OEM will indicate
that the PINNACLE Trademarks are trademarks or registered trademarks of
PINNACLE. OEM will not alter or remove any PINNACLE Trademarks applied to the
Products. Nothing in this Agreement will grant to OEM any right, title or
interest in the PINNACLE Trademarks. At no time during or after the term of this
Agreement will OEM challenge or assist others to challenge the PINNACLE
Trademarks or the registration thereof or attempt to register any trademark,
marks or trade names confusingly similar to those of PINNACLE. OEM will preserve
the quality of the Products and associated good will.
14.2 Use of Trademarks. OEM may use PINNACLE's trademarks in
OEM's advertising and promotional media provided that (i) OEM conspicuously
indicates in each such medium that such trademarks are trademarks of PINNACLE;
(ii) OEM submits samples of all such media to PINNACLE for prior approval; and
(iii) follows trademark usage guidelines communicated by PINNACLE.
14.3 Termination. Upon termination of this Agreement for any
reason, OEM will cease to use as soon as practicable thereafter, all PINNACLE
Trademarks, except as otherwise permitted by this Agreement in connection with
the resale of Products delivered to OEM. In addition, OEM will deliver to
PINNACLE all materials in OEM's control or possession which bear such PINNACLE
Trademarks, except Products delivered to OEM and related Documentation.
15. PATENT, COPYRIGHT AND TRADEMARK INDEMNITY
15.1 Indemnification. OEM agrees that PINNACLE has the right
to defend, or at its option to settle, and PINNACLE agrees, at its own expense,
(i) to defend or at its option to settle, any claim, suit or proceeding brought
or asserted against OEM, its distributors and resellers and their respective
customers for infringement of any United States patent, copyright or trademark
of any third party by the Products sold hereunder or the use thereof and (ii) to
indemnify OEM, distributors and resellers and their respective customers against
any money damages and/or costs awarded in any such claim, suit or proceeding;
provided that (a) PINNACLE is given sole or exclusive control of any such action
or settlement negotiations and (b) PINNACLE is promptly notified in writing of
such claim, suit or proceeding by OEM, its distributor or reseller or their
respective customer, as the case may be, and is given authority, information and
reasonable assistance at PINNACLE's expense to proceed as contemplated herein,
provided that failure to give such notice as provided in this Section 15.1 shall
not relieve PINNACLE of its obligations under this Section 15.1 except to the
extent that PINNACLE is actually prejudiced by such failure to give notice, and
provided that OEM must give notice within 10 days of OEM's receipt of service of
process or a complaint or sooner if necessary for PINNACLE to formulate an
adequate response should OEM be named as a defendant in a lawsuit or other
formal action in
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connection with the Products provided under this Agreement. If it is
adjudicatively determined that the Products, or any part thereof, infringe any
United States patent, copyright, or trademark, or if the sale or use of the
Products, or any part thereof, is, as a result, enjoined, then PINNACLE shall,
at its option and expense: (i) procure for OEM and its customers the right under
such United States patent, copyright or trademark to sell or use, as
appropriate, the Products or such parts thereof; (ii) replace the Products, or
part thereof, with other suitable Products or parts, and extend this indemnity
thereto; or (iii) suitably modify the Products or parts thereof; or (iv) remove
the Products, or any parts thereof and refund the aggregate payments paid
therefor by OEM, less a sum for use and damage based on five (5) years
straight-line depreciation. PINNACLE will not be liable for any costs or
expenses incurred without its prior written authorization.
15.2 Limitation. Notwithstanding the provisions of this
Section 15, PINNACLE assumes no liability for (i) infringement of patent or
copyright claims covering completed equipment or any assembly, circuit,
combination, method or process in which any of the Products may be used but not
covering the Products standing alone (unless the third party claiming
infringement demonstrates that there is no intentional non-infringing use of the
Products other than within such assemblies, circuits, combinations, method or
process); (ii) any trademark infringements involving any marking or branding not
applied by PINNACLE or involving any marking or branding applied at the request
of OEM; or (iii) the modification of the Products, or any part thereof, unless
the modification was made by PINNACLE or with its consent.
15.3 ENTIRE LIABILITY. THE FOREGOING PROVISIONS OF THIS
SECTION 15, STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF PINNACLE AND THE
EXCLUSIVE REMEDY OF OEM AND ITS CUSTOMERS, WITH RESPECT TO ANY ALLEGED PATENT,
COPYRIGHT OR TRADEMARK INFRINGEMENT BY THE PRODUCTS OR ANY PART THEREOF.
[REDACTED***].
16. GENERAL PROVISIONS
16.1 Independent Contractors. The relationship of PINNACLE and
OEM established by the Agreement is that of independent contractors, and nothing
contained in this Agreement will be construed (i) to give either party the power
to direct and control the day-today activities of the other, (ii) constitute the
parties as partners, joint ventures, co-owners or otherwise as participants in a
joint or common undertaking, or (iii) to allow either party to create or assume
any obligation on behalf of the other party for any purpose whatsoever. All
financial obligations associated with OEM's business are the sole responsibility
of OEM. All sales and other agreements between OEM and its customers are OEM's
exclusive responsibility and will have no effect on OEM's obligations under this
Agreement. Except as expressly provided in this Agreement, OEM will be solely
responsible for, and will indemnify and hold PINNACLE free and harmless from,
any and all claims, damages or lawsuits (including PINNACLE's reasonable
attorneys' fees) arising out of the acts of OEM, its employees or its agents.
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*** Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted
portions have been filed separately with the Commission.
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<PAGE>
16.2 Governing Law. This Agreement will be governed by and
construed and enforced in accordance with the laws of the State of California as
they apply to contracts entered into and wholly to be performed within such
state.
16.3 Arbitration. Any dispute or claim arising out of or in
connection with this Agreement will be finally settled by binding arbitration
under the Rules of the American Arbitration Association by one arbitrator
appointed in accordance with said rules in San Jose, California, in the case of
arbitration requested by OEM, or in Boston, Massachusetts, in the case of
arbitration requested by PINNACLE. In the arbitration, (i) the parties may
require reasonable discovery, pursuant to the Federal Rules of Civil Procedure
then in effect, (ii) each party shall have the right to cross-examine witnesses
of other parties, (iii) testimony shall be transcribed and (iv) any award shall
be accompanied by written findings of fact and statement of reasons. Judgment on
the award rendered by the arbitrator may be entered in any court having
jurisdiction thereof. Notwithstanding the foregoing, the parties may apply to
any court of competent jurisdiction for injunctive relief without breach of this
arbitration provision. The costs of arbitration shall be apportioned between the
parties as determined by the arbitrator in such manner as the arbitrator deems
reasonable taking into account the circumstances of the case, the conduct of the
parties during the proceeding, and the result of the arbitration.
16.4 Notices. Any notice required or permitted by this
Agreement will be in writing and will be sent by prepaid registered or certified
mail, return receipt requested, or by Federal Express or similar overnight
courier that provides a record of delivery, addressed to the other party at the
address shown at the beginning of this Agreement or at such other address for
which such party gives notice hereunder. Notices may also be sent by facsimile
if confirming notice is sent according to the provisions of this subsection.
Such notice will be deemed to have been given when delivered or, if delivery is
not accomplished by some fault of the addressee, when tendered.
16.5 Force Majeure. Nonperformance of either party will be
excused to the extent that performance is rendered impossible by strike, fire,
flood, earthquake, governmental acts or orders or restrictions, failure of
suppliers, or any other reason where failure to perform is beyond the reasonable
control and not caused by the negligence of the non-performing party.
16.6 Nonassignability and Binding Effect. Each party agrees
that its rights and obligations under this Agreement may not be transferred or
assigned directly or indirectly (including assignment by operation of law)
without the prior written consent of the other party, except to a successor in
interest to all (or substantially all) of the first party's business (whether by
operation of law or otherwise). Subject to the foregoing sentence, this
Agreement will be binding upon and inure to the benefit of the parties hereto,
their successors and assigns.
16.7 Partial Invalidity. If any provision of this Agreement is
held to be invalid by a court of competent jurisdiction, then the remaining
provisions will nevertheless remain in full force and effect. The parties agree
to renegotiate in good faith any term held invalid and be bound by the mutually
agreed substitute provision.
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16.8 Counterparts. This Agreement may be executed in two or
more counterparts, each of which will be deemed an original and all of which
together will constitute one instrument.
16.9 No Waiver. No waiver of any term or condition of this
Agreement will be valid or binding on either party unless the same will have
been mutually assented to in writing by an officer of both parties. The failure
of either party to enforce at any time any of the provisions of the Agreement,
or the failure to require at any time performance by the other party of any of
the provisions of this Agreement, will in no way be construed to be a present or
future waiver of such provisions, nor in any way affect the validity of either
party to enforce each and every such provision thereafter.
16.10 ENTIRE AGREEMENT. THIS AGREEMENT SETS FORTH THE ENTIRE
AGREEMENT AND UNDERSTANDING OF THE PARTIES RELATING TO THE SUBJECT MATTER HEREIN
AND SUPERSEDES ALL PRIOR DISCUSSIONS BETWEEN THEM. NO MODIFICATION OF OR
AMENDMENT TO THIS AGREEMENT, NOR ANY WAIVER OF ANY RIGHTS UNDER THIS AGREEMENT,
WILL BE EFFECTIVE UNLESS IN WRITING SIGNED BY AN AUTHORIZED REPRESENTATIVE OF
BOTH PARTIES.
IN WITNESS WHEREOF, the undersigned are duly authorized to execute this
first set forth above.
PINNACLE DATA TRANSLATION, INC.
By: /s/ Mark Sanders By: /s/ John Molinari
--------------------------------------- -------------------------------
Mark Sanders John Molinari
- ------------------------------------------ ----------------------------------
(Print Name) (Print Name)
Title: President & Chief Executive Officer Title: VP/GM Multimedia Group
------------------------------------ ----------------------------
-12-
<PAGE>
<TABLE>
EXHIBIT A
PRODUCTS
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------
Software
Product Name Description Warranty Period Product
=======================================================================================================================
<S> <C> <C> <C>
GenieDVE Single PCI card. (no cables, manuals or [REDACTED***] No
(PPN 173000) diskettes)
- -----------------------------------------------------------------------------------------------------------------------
Media 100 Genie Version of PINNACLE Genie Plug-in [REDACTED***] Yes
"Plug-in" application specifically designed for use with Media 100
application software. Licensed as "plug-in"
software for duplication and re-distribution
by OEM.
- -----------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
PURCHASE PRICE
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------
Product Name Quantity Unit Price** Payment Terms
===========================================================================================================================
<S> <C> <C> <C> <C>
GenieDVE [REDACTED***] [REDACTED***] [REDACTED***] See Section 6.1(e)
Net 30
Net 30
Net 30
- ---------------------------------------------------------------------------------------------------------------------------
Media 100 Genie [REDACTED***]
"Plug-in" Royalty Fee
- ---------------------------------------------------------------------------------------------------------------------------
<FN>
[REDACTED***]
** PINNACLE and OEM agree to review the price schedule for units beyond the [REDACTED***] no later than [REDACTED***].
</FN>
</TABLE>
- -----------
*** Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted
portions have been filed separately with the Commission.
-13-
<PAGE>
EXHIBIT B
SOFTWARE
LICENSE AGREEMENT
This is a legal document between you and Pinnacle Systems, Inc.
("Pinnacle Systems"). By using the disk attached hereto, you are accepting and
agreeing to be bound by the terms of this License. If you are not willing to be
bound by the terms of this License, promptly return the unopened disk package
and accompanying items together with your receipt to your place of purchase for
a full refund.
SOFTWARE LICENSE AND RESTRICTIONS
The enclosed SOFTWARE delivered to you pursuant to these terms and
conditions may embody and include certain software programs in object code
(machine-readable but not human-readable form). Use of the SOFTWARE can result
in the production of human-readable features such as documentation, report
formats, menus, audible prompts and tone sequences. Such SOFTWARE and features
constitute either the copyrighted property or proprietary trade secret
information, or both, of Pinnacle Systems' or its LICENSOR(s), and shall be held
in confidence by you. Pinnacle Systems or its LICENSOR(s) retain title to the
SOFTWARE (excluding media on which recorded), all copies thereof, and all
intellectual property rights, and no title to the SOFTWARE, copies thereof or
intellectual property rights is transferred to you. You are hereby granted, for
internal use only, a personal, nontransferable, nonexclusive and perpetual
license to use only one copy of the SOFTWARE on the computer on which the
SOFTWARE was originally mounted. Except as specifically authorized by this
License, you may not copy the SOFTWARE or the human-readable features referred
to above for any purpose (except for a copy for backup purposes). All such
copies are the proprietary information of Pinnacle Systems and its LICENSOR(s)
and suppliers and are subject to their copyrights. You shall not, whether
through the use of disassemblers or any other means whatsoever (including but
not limited to manual, mechanical or electrical means) reverse engineer,
decompile, disassemble or derive source code from the SOFTWARE, or attempt to
permit any third party to do any of the foregoing, including causing the
SOFTWARE to be destroyed or disabled or deriving the "rules" or "protocols"
embodied in the SOFTWARE. Any attempt to do any of these things shall be a
material breach of this License, which shall immediately entitle Pinnacle
Systems to exercise any remedy that may exist at law or in equity. You may not
transfer, loan, rent, lease, distribute or grant any rights in the SOFTWARE or
accompanying documentation in any form without the prior written consent of
Pinnacle Systems.
LIMITED WARRANTY
Pinnacle Systems warrants that the SOFTWARE licensed to you under this
License will perform in accordance with Pinnacle Systems' published
specifications for a period of [REDACTED***] after the date of delivery to you
as evidenced by your receipt ("Warranty Period"). If the SOFTWARE does not
conform during the Warranty Period, you agree to provide written notice of such
failure to Pinnacle Systems and Pinnacle Systems will repair or replace the
SOFTWARE or refund the full purchase price. Pinnacle Systems does not warrant
that the use of the SOFTWARE will be uninterrupted or error-free and hereby
disclaims all liability on account thereof. THE REMEDIES PROVIDED HEREIN ARE
YOUR SOLE AND EXCLUSIVE REMEDIES FOR BREACH OF WARRANTY. THIS WARRANTY IS IN
LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING
WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. SOME STATES OR COUNTRIES DO NOT ALLOW THE EXCLUSION OF IMPLIED
WARRANTIES OR CONDITIONS, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
LIMITED LIABILITY
NOTWITHSTANDING ANY PROVISION IN THIS LICENSE TO THE CONTRARY, PINNACLE
SYSTEMS OR ITS LICENSOR(S) WILL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL,
INDIRECT OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, OR ANY THEORY OF LIABILITY,
WHETHER OR NOT PINNACLE SYSTEMS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGE OR LOSS. IN NO EVENT SHALL PINNACLE SYSTEMS'
- -----------
*** Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted
portions have been filed separately with the Commission.
-14-
<PAGE>
LIABILITY ARISING UNDER THIS LICENSE EXCEED THE AMOUNT PAID BY YOU FOR THE
SOFTWARE GIVING RISE TO SUCH LIABILITY. THIS LIMITATION IS INTENDED TO LIMIT THE
LIABILITY OF PINNACLE SYSTEMS AND SHALL APPLY NOTWITHSTANDING ANY FAILURE OF
ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. SOME STATES OR COUNTRIES MAY NOT ALLOW
THE FOREGOING LIMITATION, SO THE FOREGOING MAY NOT APPLY TO YOU.
CONFIDENTIALITY
The SOFTWARE contains confidential trade secret information belonging
to Pinnacle Systems or its LICENSOR(S), and you may use the SOFTWARE only
pursuant to the license set forth herein. In addition, you may not disclose the
SOFTWARE to any third party.
RESTRICTED RIGHTS NOTICE
You may terminate this License at any time by destroying all copies,
mergers or modifications of the SOFTWARE and accompanying materials. Pinnacle
Systems may immediately terminate your License upon notice for failure to comply
with the terms and conditions of this License. Upon such termination, you agree
to destroy all copies, mergers and modifications of the SOFTWARE and
accompanying documents. You agree that a breach of this License will result in
irreparable damages to Pinnacle Systems. This License is the entire agreement
between you and Pinnacle Systems with respect to the use and licensing of the
SOFTWARE, and supersedes all proposals, warranties, prior agreements or any
other communications between the parties relating to the subject matter hereof.
This License will be governed by and construed in accordance with the laws of
California without regard to conflicts of law principles or the UN Convention on
the Sale of Goods. If for any reason a court of competent jurisdiction finds any
provision of this License, or portion thereof, to be unenforceable, that
provision of the License shall be enforced to the maximum extent permissible so
as to effect the intent of the parties, and the remainder of this License shall
continue in full force and effect. Should you have any questions concerning this
License, please write Pinnacle Systems, Inc., 870 West Maude Avenue, Sunnyvale,
California 94086.
-15-
<PAGE>
EXHIBIT C
PINNACLE SYSTEMS, INC.
LIMITED WARRANTY
Pinnacle Systems, Inc. ("Seller") warrants exclusively to the OEM
("Buyer") that all Goods sold or repaired hereunder will be free of all defects
in design, material, and workmanship, and will perform in accordance with
Seller's published specifications for a period of [REDACTED***] from the date of
invoice. This is a limited warranty.
Seller's sole and exclusive liability, and Buyer's exclusive remedies,
for breach of this warranty are as follows:
1. Seller, at its sole option, will repair or replace any Good or
replacement part found to be defective, except as otherwise provided in (B) and
(C) below:
2. If Seller elects to repair a defective Good or replacement part but
is unable to do so within fourteen (14) days after receiving such Good or
replacement part, then Buyer may elect to obtain a refund of the price paid to
the Seller for such good, provided that the Buyer first must so notify Seller in
writing and return the defective Good or replacement part to Seller, all freight
and insurance prepaid; and
3. In all cases, Seller's liability under this warranty is subject
to the following additional conditions:
3.1 Goods and replacement parts that the Buyer considers
defective shall be returned to the Seller's designated facility for examination
and testing. A Return Merchandise Authorization (RMA) number must be obtained
from Customer Service prior to, and must be included with, the shipment. Seller
will pay return freight, provided Buyer complies with all terms of this warranty
and that Seller's examination and testing disclose a defect.
3.2 Seller shall not be liable under this warranty if testing
and examination by Seller disclose that the Goods or replacement parts have been
modified or altered in any material manner after shipment by Seller.
3.3 Seller shall not be liable under this warranty if its
testing and examination disclose that the alleged defect in the Goods or
replacement parts does not exist, or was caused by Buyer's or any third party's
misuse, neglect, improper installation or testing, unauthorized attempts to
repair, or any other cause beyond the range of their intended use, whether by
accident, fire, or other hazard.
- -----------
*** Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted
portions have been filed separately with the Commission.
-16-
<PAGE>
3.4 Seller shall not be liable under any warranty under this
agreement with respect to any Goods or replacement parts that are not returned
in their original shipping container or a functionally equivalent container.
3.5 If Seller's testing and examination do not disclose
defect warranted under this agreement:
(a) Seller shall so advise Buyer and dispose of
such Goods or replacement parts in accordance with Buyer's instructions and at
the Buyer's cost; and
(b) Buyer shall reimburse Seller for its expense
in testing and examining the Goods or replacement parts calculated at Seller's
then-current rates.
Seller's liability under this warranty is expressly conditioned upon Buyer's
notification of Seller of any claim by Buyer under this warranty within thirty
(30) days following Buyer's discovery of facts indicating to Buyer that the
Goods or replacement parts shipped hereunder constitute a breach of this
warranty.
Buyer and Seller agree that the price offered to Buyer by Seller for
the Goods or replacement parts is a consideration in limiting the Seller's
liability as provided herein. Accordingly, Buyer agrees that the remedy provided
by the Seller for any breach of this warranty inadequately protects Buyer's
interests and expectations in the event it receives defective Goods or
replacement parts from Seller, regardless of circumstances that may arise after
the date of this agreement and when the Goods or replacement parts are used by
the Buyer or its customers.
All computer software and other licensed materials are transferred by
the Seller to the Buyer pursuant to the terms and conditions of a separate
software license agreement. Seller makes no warranties with respect to any
software transferred to the Buyer except for those warranties, if any, set forth
in such software license agreement.
Pinnacle Systems, Inc. provides a limited warranty of ninety (90) days
on parts and labor involved in service, exchanges, and upgrades performed by
Pinnacle Systems, Inc. personnel on systems whose warranty has expired. Shipping
costs both ways are to be paid by the Buyer.
Upgrades performed within the original warranty period are covered for
ninety (90) days regardless of when they are performed. Shipping costs both ways
are to be paid by the Buyer.
LIMITATION ON WARRANTIES, LIABILITY, AND BRINGING ACTIONS
Buyer agrees that all claims against the Seller, other than for breach
of warranty, arising under this agreement shall expire and be barred forever
unless an action thereon is commenced in a court of competent jurisdiction in
the County of Santa Clara, State of California within one (1) year following
Buyer's discovery of the facts indicating to Buyer that a cause of action on
such claims may exist against the Seller.
-17-
<PAGE>
NO LAWSUIT PERTAINING TO ANY MATTER ARISING UNDER OR GROWING OUT OF
THIS AGREEMENT SHALL BE COMMENCED AND PROSECUTED IN ANY COURT OTHER THAN A COURT
SITUATED IN THE COUNTY OF SANTA CLARA, STATE OF CALIFORNIA, U.S.A.
THE WARRANTIES OF SELLER SET FORTH IN THIS AGREEMENT ARE IN LIEU OF,
AND BUYER HEREBY WAIVES, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE AND ALL OTHER WARRANTIES OF SALE, RESALE, AND PURCHASE
OF SELLER'S GOODS OR PARTS, OR THE USE, REPAIR, OR PERFORMANCE THEREOF, OR THE
COURSE OF DEALING OR PERFORMANCE UNDER ANY AGREEMENT BETWEEN BUYER AND SELLER TO
WHICH THESE TERMS AND CONDITIONS APPLY.
EXCEPT AS PROVIDED EXPRESSLY ABOVE, SELLER SHALL NOT BE LIABLE TO
BUYER, TO BUYER'S CUSTOMER'S OR TO ANY OTHER PERSON. BUYER AGREES TO INDEMNIFY
SELLER WITH RESPECT TO ANY CLAIMS AGAINST SELLER FOR INCIDENTAL, SPECIAL,
INDIRECT, OR CONSEQUENTIAL DAMAGES INCLUDING LOSS OF PROFIT, AND LOSS OF PLANT,
EQUIPMENT OR PRODUCTION, ARISING FROM THE SALE, PURCHASE, RESALE, REPAIR OR
SUBSEQUENT USE OF SELLER'S GOODS OR PARTS, AND FROM ANY PROMISE OR OFFER TO
SELL, PURCHASE OR REPAIR SUCH GOODS OR PARTS, REGARDLESS OF WHETHER SELLER HAS
BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. BUYER AGREES THAT THIS
LIMITATION OF DAMAGES IS REASONABLE AND WILL NOT CAUSE IT TO LOSE ANY EXPECTED
BENEFITS, RIGHTS, OR REMEDIES UNDER THIS AGREEMENT.
-18-
PINNACLE SYSTEMS INC.
AMENDMENT TO OEM AGREEMENT
THIS AMENDMENT TO OEM AGREEMENT (the "Amendment") is entered into as of
September 13, 1996, between Pinnacle Systems, Inc. ("PINNACLE"), a California
corporation with its principal office at 870 West Maude Avenue, Sunnyvale,
California 94086, and Data Translation, Incorporated ("OEM"), a Massachusetts
corporation with its principal office at 100 Locke Drive, Marlborough,
Massachusetts 01752.
WHEREAS, PINNACLE and OEM are parties to an OEM Agreement dated
September 4, 1996 (the "Agreement"); and
WHEREAS, PINNACLE and OEM desire to amend the Agreement to read as set
forth below;
NOW, THEREFORE, PINNACLE and OEM agree as follows:
1. Section 6.1(e) of the Agreement is hereby amended to read in its
entirety as follows:
"(e) OEM agrees to take delivery of [REDACTED***]
units of GenieDVE Product by [REDACTED***]. Payment terms for the [REDACTED***]
shall be [REDACTED***] days from date of shipment. Terms will be net 30 for the
balance of units shipped by PINNACLE to OEM. OEM agrees to take delivery of an
additional [REDACTED***] units of GenieDVE by [REDACTED***]. OEM agrees to take
delivery of an additional [REDACTED***] units, for a total of [REDACTED***]
units, by [REDACTED***]. Terms of Section 6.2 are not applicable to the first
[REDACTED***] units."
2. This Amendment will be governed by and construed and enforced in
accordance with the laws of the State of California as they apply to contracts
entered into and wholly to be performed within such state.
3. This Amendment may be executed in two or more counterparts, each of
which will be deemed an original and all of which together will constitute one
instrument.
4. Except as expressly amended by this Amendment, all provisions of the
Agreement shall remain in full force and effect and terms not otherwise defined
herein shall have their respective meanings as set forth in the Agreement.
IN WITNESS WHEREOF, the undersigned are duly authorized to execute this
first set forth above.
PINNACLE DATA TRANSLATION , INC.
By: /s/ Mark Sanders By: /s/ John Molinari
----------------------------------------- ----------------------------
Mark Sanders John Molinari
- -------------------------------------------- -------------------------------
(Print Name) (Print Name)
Title: President and Chief Executive Officer Title: VP/GM Multimedia
-------------------------------------- -------------------------
- -----------
*** Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted
portions have been filed separately with the Commission.
PINNACLE SYSTEMS, INC. AND SUBSIDIARIES
Exhibit 11.1 - Statement of Computation of Net Income Per Share
(In thousands, except per share data)
Three
Months Ended
September 30,
-----------------
1996 1995
---- ----
Weighted average shares of common stock outstanding 7,473 6,655
Weighted average common stock equivalent shares 350 879
------ ------
Shares used to compute net income per share 7,823 7,534
====== ======
Net income used in per share calculation $ 612 $1,263
====== ======
Net income per share $ 0.08 $ 0.17
====== ======
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> JUN-30-1997
<PERIOD-START> JUL-01-1996
<PERIOD-END> SEP-27-1996
<CASH> 39,702,000
<SECURITIES> 19,243,000
<RECEIVABLES> 9,206,000
<ALLOWANCES> 997,000
<INVENTORY> 9,238,000
<CURRENT-ASSETS> 75,808,000
<PP&E> 5,408,000
<DEPRECIATION> 1,792,000
<TOTAL-ASSETS> 85,266,000
<CURRENT-LIABILITIES> 4,385,000
<BONDS> 0
<COMMON> 77,962,000
0
0
<OTHER-SE> 2,914,000
<TOTAL-LIABILITY-AND-EQUITY> 85,261,000
<SALES> 11,443,000
<TOTAL-REVENUES> 11,443,000
<CGS> 5,996,000
<TOTAL-COSTS> 5,996,000
<OTHER-EXPENSES> 5,240,000
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 763,000
<INCOME-PRETAX> 910,000
<INCOME-TAX> 358,000
<INCOME-CONTINUING> 612,000
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 612,000
<EPS-PRIMARY> 0.08
<EPS-DILUTED> 0.08
</TABLE>
