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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 1997
or
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from _______ to ________
Commission File Number 0-25580
DIAMOND MULTIMEDIA SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 77-0390654
- -------- -----------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
2880 JUNCTION AVENUE, SAN JOSE, CALIFORNIA 95134
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (408) 325-7000
---------------
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 outstanding of the registrant's common stock at
June 30, 1997 was 34,290,533.
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DIAMOND MULTIMEDIA SYSTEMS, INC.
INDEX TO FORM 10-Q
<TABLE>
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Page
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PART I - FINANCIAL INFORMATION:
ITEM 1- Financial Statements
Consolidated Condensed Balance Sheets as of June 30, 1997
and December 31, 1996 3
Consolidated Condensed Statements of Operations for the three
and six months ended June 30, 1997 and 1996 4
Consolidated Condensed Statements of Cash Flows
for the six months ended June 30, 1997 and 1996 5
Notes to Consolidated Condensed Financial Statements 6
ITEM 2 - Management's Discussion and Analysis of
Financial Condition And Results of Operations 8
PART II - OTHER INFORMATION
ITEM 1 - Legal proceedings 25
ITEM 2 - Changes in securities 25
ITEM 3 - Defaults Upon Senior Securities 25
ITEM 4 - Submission of Matters to a Vote of Security Holders 25
ITEM 5 - Other Information 26
ITEM 6 - Exhibits and Reports on Form 8-K 26
SIGNATURE(S) 27
</TABLE>
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PART I - FINANCIAL INFORMATION
ITEM 1 - FINANCIAL STATEMENTS
DIAMOND MULTIMEDIA SYSTEMS, INC. AND SUBSIDIARIES
CONSOLIDATED CONDENSED BALANCE SHEETS
(UNAUDITED; IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
JUNE 30, 1997 DECEMBER 31, 1996
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<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 101,236 $ 120,147
Trade accounts receivable, net of allowance for doubtful accounts
of $2,437 and $1,943 as of June 30, 1997 and
December 31, 1996 43,446 85,268
Inventories 52,782 63,704
Prepaid expenses and other current assets 6,443 9,043
Deferred income taxes 40,796 21,944
--------- ---------
Total current assets 244,703 300,106
Property, plant and equipment, net 14,188 12,883
Other assets 3,617 3,222
Goodwill and other intangibles, net 3,660 16,227
--------- ---------
Total assets $ 266,168 $ 332,438
========= =========
LIABILITIES
Current liabilities:
Current portion of long-term debt $ 24,491 $ 18,068
Trade accounts payable 48,180 68,770
Other accrued liabilities 16,136 17,740
--------- ---------
Total current liabilities 88,807 104,578
Long-term debt, net of current portion 2,254 2,730
Deferred income taxes -- 835
--------- ---------
Total liabilities 91,061 108,143
--------- ---------
STOCKHOLDERS' EQUITY
Preferred stock, par value $.001; Authorized - 8,000 shares at June 30, 1997 and
December 31, 1996; none issued
and outstanding -- --
Common stock, par value $.001;
Authorized - 75,000 at June 30, 1997 and December 31, 1996 Issued and
outstanding - 34,291 at June 30, 1997 and 34,163
at December 31, 1996 34 34
Additional paid-in capital 306,917 306,046
Distributions in excess of net book value (56,775) (56,775)
Accumulated deficit (75,069) (25,010)
--------- ---------
Total stockholders' equity 175,107 224,295
--------- ---------
Total liabilities and stockholders' equity $ 266,168 $ 332,438
========= =========
</TABLE>
The accompanying notes are an integral part of these consolidated
condensed financial statements.
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DIAMOND MULTIMEDIA SYSTEMS, INC. AND SUBSIDIARIES
CONSOLIDATED CONDENSED STATEMENTS OF OPERATIONS
(UNAUDITED; IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
<CAPTION>
THREE MONTHS ENDED SIX MONTHS ENDED
----------------------------- -----------------------------
JUNE 30, JUNE 30, JUNE 30, JUNE 30,
1997 1996 1997 1996
--------- --------- --------- ---------
<S> <C> <C> <C> <C>
Net sales $ 52,982 $ 120,219 $ 165,384 $ 307,824
Cost of sales 76,100 109,052 168,917 256,595
--------- --------- --------- ---------
Gross profit (23,118) 11,167 (3,533) 51,229
--------- --------- --------- ---------
Operating expenses:
Research and development 6,529 4,631 12,221 9,434
Selling, general and administrative 22,572 13,851 45,083 29,834
Amortization of intangibles 1,343 1,187 2,659 2,394
Write-off of intangibles 9,938 -- 9,938 ---
--------- --------- --------- ---------
Total operating expenses 40,382 19,669 69,901 41,662
--------- --------- --------- ---------
Income (loss) from operations (63,500) (8,502) (73,434) 9,567
Interest income, net 494 660 1,037 885
Other income (expense), net 788 53 733 (40)
--------- --------- --------- ---------
Income (loss) before provision for income taxes (62,218) (7,789) (71,664) 10,412
Provision (benefit) for income taxes (18,109) (2,999) (21,604) 4,008
--------- --------- --------- ---------
Net income (loss) ($ 44,109) ($ 4,790) ($ 50,060) $ 6,404
========= ========= ========= =========
Net income (loss) per share ($ 1.29) ($ 0.14) ($ 1.46) $ 0.18
========= ========= ========= =========
Shares used in computing per share amounts 34,254 34,328 34,217 35,111
</TABLE>
The accompanying notes are an integral part of these consolidated
condensed financial statements.
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DIAMOND MULTIMEDIA SYSTEMS, INC. AND SUBSIDIARIES
CONSOLIDATED CONDENSED STATEMENTS OF CASH FLOWS
(UNAUDITED; IN THOUSANDS)
<TABLE>
<CAPTION>
SIX MONTHS ENDED
------------------------------
JUNE 30, 1997 JUNE 30, 1996
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Cash flows from operating activities:
Net income (loss) ($ 50,060) $ 6,404
Adjustments to reconcile net income (loss) to net cash
provided by (used in) operating activities
Depreciation and amortization 5,222 3,817
Provision for doubtful accounts 772 263
Provision for excess and obsolete inventories 6,200 13,819
Loss on disposal of fixed assets 232 -
Write-off of intangibles 9,938 -
Deferred income taxes (19,687) (2,125)
Changes in assets and liabilities:
Trade accounts and other receivables 41,050 34,569
Inventories 4,722 6,072
Prepaid expenses and other assets 2,205 251
Trade accounts payable and other liabilities (22,194) (58,095)
Other . (65)
--------- ---------
Net cash provided by (used in) operating activities (21,600) 4,910
--------- ---------
Cash flows from investing activities:
Purchases of property and equipment (4,130) (3,068)
Proceeds from the sale of short-term investments - 5,940
--------- ---------
Net cash provided by (used in) investing activities (4,130) 2,872
--------- ---------
Cash flows from financing activities:
Proceeds from issuance of common stock 877 799
Repurchases of common stock (5) (18)
Proceeds from term loans and revolving credit facilities 78,123 3,939
Payments of term loans and revolving credit facilities (71,716) (14,285)
Repayments of capital lease financings (460) (376)
--------- ---------
Net cash provided by (used in) financing activities 6,819 (9,941)
--------- ---------
Net decrease in cash and cash equivalents (18,911) (2,159)
Cash and cash equivalents at beginning of period 120,147 93,971
--------- ---------
Cash and cash equivalents at end of period $ 101,236 $ 91,812
========= =========
Supplemental Disclosure of cash flow information:
Income taxes paid during the period $ 1,400 $ 6,980
========= =========
Interest paid during the period $ 396 $ 657
========= =========
</TABLE>
The accompanying notes are an integral part of these consolidated
condensed financial statements.
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DIAMOND MULTIMEDIA SYSTEMS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
(Unaudited)
1. BASIS OF PRESENTATION
The accompanying unaudited condensed consolidated financial statements have been
prepared by the Company in accordance with generally accepted accounting
principles for interim financial information and pursuant to rules and
regulations of the Securities and Exchange Commission. In the opinion of
management, all adjustments (consisting only of normal recurring adjustments)
considered necessary for a fair presentation have been included. These financial
statements should be read in conjunction with the Company's consolidated
financial statements and notes thereto contained in the Company's Form 10-K for
the fiscal year ended December 31, 1996.
The Company operates under a 52-53 week fiscal year with thirteen week quarters
that end on the Sunday closest to calendar quarter end. For convenience of
presentation, the accompanying consolidated financial statements have been shown
as ending on June 30.
Operating results for the quarter and six months ended June 30, 1997 may not
necessarily be indicative of the results to be expected for any other interim
period or for the full year.
2. INVENTORIES
Inventories are stated at the lower of cost (determined on a first-in, first-out
basis) or market. Inventories consisted of (in thousands):
<TABLE>
<CAPTION>
June 30, 1997 December 31, 1996
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Raw materials $ 25,236 $22,080
Work in process 20,763 20,847
Finished goods 6,783 20,777
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$ 52,782 $63,704
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</TABLE>
The Company has approximately $3 million of inventory in excess of its normal
short-term needs for certain product lines at June 30, 1997. Management has
developed a program to reduce this inventory to desired levels over the near
term; however, it is reasonably possible that the program will not be wholly
successful and a material loss could ultimately result on the disposal of this
inventory. No estimate can be made of the range of amounts of such loss.
3. WRITE-OFF OF INTANGIBLE ASSETS
The Company recorded a one-time write-off of intangible assets of $9.9
million in the second quarter of 1997 to reflect a decrease in the carrying
value of goodwill and purchased technology associated with the acquisitions of
Supra and Spea. The carrying value of the assets was deemed to be impaired based
on the current financial condition of the Company and an analysis using the
discounted cash flow method for those products incorporating the intangible
benefit of the goodwill and existing technology. The anticipated future cash
flows related to those products indicated that the recoverability of the assets
were not reasonably assured.
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4. LITIGATION
The Company has been named as a defendant in several putative class action
lawsuits which were filed in June and July, 1996 and June, 1997 in the
California Superior Court for Santa Clara County and the U.S. District Court for
the Northern District of California. Certain executive officers and directors of
the Company are also named as defendants. The plaintiffs purport to represent a
class of all persons who purchased the Company's Common Stock between October
18, 1995 and June 20, 1996 (the "Class Period"). The complaints allege claims
under the federal securities laws and California law. The plaintiffs allege that
the Company and the other defendants made various material misrepresentations
and omissions during the Class Period. The complaints do not specify the amount
of damages sought. The Company believes that it has good defenses to the claims
alleged in the lawsuits and will defend itself vigorously against these actions.
These cases are in the early stages and no trial date has been set. The ultimate
outcome of these actions cannot be presently determined. Accordingly, no
provision for any liability or loss that may result from adjudication or
settlement thereof has been made in the accompanying consolidated financial
statements.
The Company is also party to other claims and pending legal proceedings that
generally involve employment and trademark issues. These cases are, in the
opinion of management, ordinary and routine matters incidental to the normal
business conducted by the Company. In the opinion of management, the ultimate
disposition of such proceedings will not have a materially adverse effect on the
Company's consolidated financial position or future results of operations.
5. RECENT ACCOUNTING PRONOUNCEMENTS
In February 1997, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 128, "Earnings Per Share" (SFAS 128), which
specifies the computation, presentation and disclosure requirements for earnings
per share. SFAS 128 supersedes Accounting Principles Board Opinion No. 15 and is
effective for financial statements issued for periods ending after December 15,
1997. SFAS 128 requires restatement of all prior-period earnings per share data
presented after the effective date. SFAS will not have a material impact on the
Company's financial position, results of operations or cash flows.
In June 1997, the Financial Accounting Standards Board issued a Statement of
Financial Accounting Standards No. 130, "Reporting Comprehensive Income" (SFAS
130). SFAS 130 establishes standards for reporting and display of comprehensive
income and its components in a full set of general-purpose financial statements.
Comprehensive income is defined as the "change in equity of a business
enterprise during a period from transactions and other events and circumstances
from nonowner sources. It includes all changes in equity during a period except
those resulting from investments by owners and distributions to owners." SFAS
130 is effective for fiscal years beginning after December 15, 1997, and
reclassification of financial statements for earlier periods provided for
comparative purposes is required. SFAS 130 is not expected to have a material
impact on the Company's financial position, results of operations or cash flows.
In June 1997, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 131, "Disclosures about Segments of an
Enterprise and Related Information" (SFAS 131). SFAS 131 establishes standards
for the way that public business enterprises report information about operating
segments in annual financial statements and requires that those enterprises
report selected information about operating segments in interim financial
reports issued to stockholders. SFAS 131 generally supersedes Statement of
Financial Accounting Standards No. 14, "Financial Reporting for Segments of a
Business Enterprise." Under SFAS 131, operating segments are components of an
enterprise about which separate financial information is available that is
evaluated regularly by the chief operating decision maker in deciding how to
allocate resources and in assessing performance. Generally, financial
information is required to be reported on the basis it is used internally. SFAS
131 is effective for financial statements for periods beginning after December
15, 1997, and restatement of comparative information for earlier years is
required. However, SFAS 131 is not required to be applied to interim financial
statements in the initial year of application. SFAS 131 will not have a material
impact on the Company's financial position, results of operations or cash flows.
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ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
The discussion and analysis below contains trend analysis and other
forward-looking statements within the meaning of Section 27A of the Securities
Act of 1933 and Section 21E of the Securities Exchange Act of 1934. Actual
results could differ materially from those projected in the forward-looking
statements as a result of the risk factors set forth under "Certain Factors That
May Affect Future Performance" below and elsewhere in this report.
The following discussion should be read in conjunction with the Company's
consolidated financial statements and the notes thereto. All references to years
represent fiscal years unless otherwise noted.
OVERVIEW
The Company develops, manufactures, markets and supports multimedia and
connectivity solutions for home, business and professional desktop computer
users, enabling them to create, access and experience compelling new media
content from their desktops and through the Internet. Products include the
Stealth and Monster 3D(TM) series of media accelerators, the Fire series of
professional 3D graphics accelerators, and SCSI I/O adapters, and the Supra(R)
series of fax/modems and ISDN adapters. Diamond also markets multimedia and
video phone upgrade kits. Headquartered in San Jose, CA, Diamond has sales,
marketing or technical offices in Vancouver (Wash.), Singapore, Sydney, Hong
Kong, Seoul, Tokyo, Starnberg (Germany), Saarbrecken (Germany), Paris, Winnersh
(U.K.) and Sweden. Diamond's products are sold through regional, national and
international distributors as well as directly to major computer retailers, VARs
and OEMs worldwide.
NET SALES
Net sales for the second quarter of 1997 decreased $67.2 million (56%) to
$53.0 million compared to the second quarter of 1996 while net sales for the
first six months of 1997 decreased $142.4 million (46%) to $165.4 million
compared to the corresponding prior year period. The decrease in net sales was
primarily attributable to lower unit demand and significant price erosion in the
Company's base business, which in the second quarter had largely transitioned
into a commodity phase triggering large price protection charges. Additionally,
continued lower demand and increased competition in the high end of the
mainstream graphics market contributed to the decline in sales of the Stealth
series of graphics accelerator cards. Further, the product transition from
33.6Kbps to 56Kbps modems has been slower than expected. Sales of 33.6 Kbps
modems have slowed, and the relatively slow growth in sales of the 56Kbps modems
has not compensated for the decline in 33.6 Kbps modem shipments.
International net sales decreased in absolute dollars in both the second
quarter and first six months of 1997 compared to the corresponding prior year
periods due to continued weak demand in Europe, Korea and Japan. As a percentage
of net sales, international net sales represented 47% in the second quarter of
1997 compared to 36% in the second quarter of 1996, and 37% in the first six
months of 1997 compared to 42% in the corresponding prior year period. The
increase in the percentage of international sales in the second quarter of 1997
was primarily due to the large price protection charges and relatively weak
market demand occurring in the domestic market.
Inventory levels of the Company's products in the two-tier distribution
channels used by the Company ("Channel Inventory Levels") generally are
maintained in a range of one to three months of customer demand. These Channel
Inventory Levels tend toward the low end of the months-of-supply range when
demand is stronger, sales are higher and products are in short supply.
Conversely, when demand is slower, sales are lower and products are abundant,
then Channel Inventory Levels tend toward the high end of the months-of-supply
range. Frequently, in such situations, the Company attempts to ensure that
distributors devote their working capital, sales and logistics resources to the
Company's products to a greater degree than to those of competitors. Similarly,
the Company's competitors attempt to ensure that their own products are
receiving a disproportionately higher share of the distributors' working capital
and logistics resources. The Company believes that it is currently operating in
a period of slower demand, lower sales and abundant products, leading
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to existing Channel Inventory Levels that are higher than desirable.
Consequently, the Company, in taking steps to bring its Channel Inventory Levels
down to a more desirable level, may cause a shortfall in revenue during one or
more accounting periods. Further, in such an environment of slower demand and
abundant supply of products, price declines are more likely to occur and, should
they occur, are more likely to be severe. In such an event, high Channel
Inventory Levels may result in substantial price protection charges. Such price
protection charges have the effect of reducing net revenue and gross profit.
GROSS MARGIN
Gross margin for the second quarter of 1997 decreased $34.3 million to a
gross deficit of $23.1 million compared to a positive gross margin of $11.2
million in the second quarter of 1996, and decreased $54.8 million to a gross
deficit of $3.5 million in the first six months of 1997 compared to a positive
$51.2 million in the corresponding prior year period. Gross margin decreased to
negative 44% of net sales during the second quarter of 1997 from positive 9% for
the second quarter of 1996 and decreased to negative 2% in the first six months
of 1997 compared to positive 17% for the corresponding prior year period. The
large decreases in gross margin in absolute terms were primarily due to price
protection credits granted to customers as a result of sales price decreases,
inventory write-down charges to record inventory at lower-of-cost or market
value, sales rebate deductions, and competitive pricing pressures across most
product lines. Further, the gross margin was adversely impacted by significantly
lower shipment volume levels over which indirect manufacturing costs could be
absorbed.
RESEARCH AND DEVELOPMENT
Research and development (R&D) expenses increased $1.9 million (41%) and
$2.8 million (30%) for the second quarter and the first six months of 1997,
respectively, compared to the corresponding periods in 1996. These increases
were due primarily to higher personnel-related expenses and, to a lesser extent,
the material and outside service costs associated with new product development,
including products that will offer various functions or combinations of
functions including graphics, digital video, 3D animation, 3D CAD, sound, ISDN
adapter, analog modem, telephony, television, MPEG-2, AC-3 and other functions
increasingly being implemented on personal computers. As a percentage of sales,
R&D expenses were 12% and 4% in the second quarters of 1997 and 1996,
respectively, and 7% and 3% in the first six months of 1997 and 1996,
respectively. The increase in expenses as a percentage of net sales resulted
primarily from the large decline in net sales and, to a lesser extent, increases
in engineering expenses.
SELLING, GENERAL AND ADMINISTRATIVE
Selling, general and administrative (SG&A) expenses increased $8.7 million
(63%) and $15.2 million (51%) for the second quarter and the first six months of
1997, respectively, compared to the corresponding periods in 1996. The increase
is primarily due to higher costs related to sales incentive and promotion
programs, including a channel sales incentive program that was first implemented
during the third quarter of 1996, to higher advertising, marketing and
personnel-related expenses associated with increased sales efforts, and to an
approximately $1.2 million restructuring charge associated with a Company-wide
reorganization and reduction in force.
As a percentage of sales, SG&A expenses were 43% and 12% in the second
quarters of 1997 and 1996, respectively, and 27% and 10% for the first six
months of 1997 and 1996, respectively. The increase in expenses, as a percentage
of sales, resulted primarily from the significant decline in net sales in the
second quarter and first six months of 1997, and from an increase in sales and
marketing costs associated primarily with greater sales incentive program costs,
increased marketing development costs, increased advertising, and increased
sales personnel headcount in the second quarter and first six months of 1997.
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AMORTIZATION OF INTANGIBLE ASSETS
The Company incurred amortization expense of $1.3 million and $2.7 in the
second quarter and the first six months of 1997 compared to $1.2 million and
$2.4 million in the corresponding prior year periods. These expenses relate to
amortization of purchased technology and goodwill from the Supra Corporation and
SPEA Software AG acquisitions which occurred in the third and fourth quarters of
1995, respectively.
WRITE-OFF OF INTANGIBLE ASSETS
The Company recorded a write-off of intangible assets of $9.9 million in
the second quarter of 1997 to reflect a decrease in the carrying value of
goodwill and purchased technology associated with the acquisitions of Supra and
Spea. The carrying value of the assets was deemed to be impaired based on the
current financial condition of the Company and an analysis using the discounted
cash flow method for those products incorporating the intangible benefit of the
goodwill and existing technology. The anticipated future cash flows related to
those products indicated that the recoverability of the assets were not
reasonably assured.
INTEREST INCOME, NET
Interest income was $0.5 million and $1.0 million in the second quarter and
first six months of 1997 compared to $0.7 million and $0.9 million in the
corresponding periods in 1996, respectively. The decrease in net interest income
in the second quarter of 1997 resulted from higher bank borrowings outstanding
during the period compared to the second quarter of 1996. The change in interest
income in the first six months of 1997 compared to the corresponding prior year
period was immaterial.
PROVISION (BENEFIT) FOR INCOME TAXES
The Company's effective tax rate was 29% and 30% for the second quarter and
first six months of 1997, respectively, compared to 38.5% for the corresponding
periods in 1996. The decrease in the effective tax rate was primarily due to the
write-off of goodwill and existing technology which is not deductible for tax
purposes. Without the write-off of goodwill and existing technology, the tax
rate for the second quarter and first six months of 1997 would have been 35%.
Differences from the statutory rate consisted principally of the effect of state
income taxes, federal tax-exempt interest income and the research and
development tax credit.
RECENT ACCOUNTING PRONOUNCEMENTS
In February 1997, the Financial Accounting Standards Board issued Statement
of Financial Accounting Standards No. 128, "Earnings Per Share" (SFAS 128),
which specifies the computation, presentation and disclosure requirements for
earnings per share. SFAS 128 supersedes Accounting Principles Board Opinion No.
15 and is effective for financial statements issued for periods ending after
December 15, 1997. SFAS 128 requires restatement of all prior-period earnings
per share data presented after the effective date. SFAS will not have a material
impact on the Company's financial position, results of operations or cash flows.
In June 1997, the Financial Accounting Standards Board issued a Statement of
Financial Accounting Standards No. 130, "Reporting Comprehensive Income" (SFAS
130). SFAS 130 establishes standards for reporting and display of comprehensive
income and its components in a full set of general-purpose financial statements.
Comprehensive income is defined as the "change in equity of a business
enterprise during a period from transactions and other events and circumstances
from nonowner sources. It includes all changes in equity during a period except
those resulting from investments by owners and distributions to owners." SFAS
130 is effective for fiscal years beginning after December 15, 1997, and
reclassification of financial statements for earlier periods provided for
comparative purposes is required. SFAS 130 is not expected to have a material
impact on the Company's financial position, results of operations or cash flows.
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<PAGE> 11
In June 1997, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 131, "Disclosures about Segments of an
Enterprise and Related Information" (SFAS 131). SFAS 131 establishes standards
for the way that public business enterprises report information about operating
segments in annual financial statements and requires that those enterprises
report selected information about operating segments in interim financial
reports issued to stockholders. SFAS 131 generally supersedes Statement of
Financial Accounting Standards No. 14, "Financial Reporting for Segments of a
Business Enterprise." Under SFAS 131, operating segments are components of an
enterprise about which separate financial information is available that is
evaluated regularly by the chief operating decision maker in deciding how to
allocate resources and in assessing performance. Generally, financial
information is required to be reported on the basis it is used internally. SFAS
131 is effective for financial statements for periods beginning after December
15, 1997, and restatement of comparative information for earlier years is
required. However, SFAS 131 is not required to be applied to interim financial
statements in the initial year of application. SFAS 131 will not have a material
impact on the Company's financial position, results of operations or cash flows.
LIQUIDITY AND CAPITAL RESOURCES
Cash and equivalents decreased by $18.9 million during the first six months
of 1997. Operating activities used $21.6 million in cash and the primary uses of
cash were as follows: a net loss of $50.1 million; a decrease in trade payables
and other accrued liabilities of $22.2 million; and an increase in deferred
income taxes of $19.7 million. These uses of cash from operating activities were
offset, in part, by a decrease in trade receivables, net of the provision for
doubtful accounts of $41.8 million, a decrease in inventories, net of the
provision for excess and obsolete inventories, of $10.9 million; the non-cash
write-off of intangible assets of $9.9 million, depreciation and amortization
expense of $5.2 million, and a decrease in prepaid expenses and other assets of
$2.2 million.
The Company used $4.1 million in cash from investing activities due
primarily to purchases of property and equipment. Net cash provided by financing
activities was $6.8 million, primarily due to proceeds of $78.1 million on term
loans and revolving credit facilities and $0.9 million from the issuance of
common stock, offset in part by $72.2 million of payments on debt financings and
facilities.
At June 30, 1997, the Company had $101.2 million of cash and cash
equivalents. Further, as of such date, the Company had lines of credit and bank
credit facilities totaling $63.2 million, of which $36.5 million was unused and
available. At June 30, 1997, the Company was in default with its loan covenants
regarding tangible net worth and profitability. The Company has received waivers
for these violations.
The Company currently expects to spend approximately $7 million for capital
equipment in 1997, principally relating to computer and office equipment. The
Company believes that its cash balances, short-term investments and available
credit under existing bank lines will be sufficient to meet anticipated
operating and investing requirements for the foreseeable future. However, there
can be no assurance that additional capital beyond the amounts currently
forecasted by the Company will not be required or that any such required
additional capital will be available on reasonable terms, if at all, at such
time or times as required by the Company.
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CERTAIN FACTORS THAT MAY AFFECT FUTURE PERFORMANCE
In addition to other information in this Form 10-Q, the following are
important factors that should be considered carefully in evaluating the Company
and its business.
POTENTIAL FLUCTUATIONS IN FUTURE OPERATING RESULTS
The Company's future operating results may vary significantly from period
to period as a result of a number of factors. The Company's revenue in a given
period depends on the volume and timing of orders received during the period,
the timing of new product introductions by the Company and its competitors,
product line maturation, the impact of price competition on the Company's
average selling prices, the availability of components for the Company's
products, changes in product or distribution channel mix, the level of inventory
carried by the Company's distribution and retail channel customers, and product
returns and price protection charges from customers. For example, the Company's
operating results in the second quarter of 1997 were impacted by lower demand
and significant price erosion in its base business which in the second quarter
had largely transitioned into a commodity phase.
The Company's gross margins are also impacted by short product life cycles,
the mix of products sold, the mix of distribution channels, competitive price
pressures, the availability and cost of components from the Company's suppliers,
component price inflation or deflation, end-of-life inventory write downs and
general economic conditions. For example, the Company intends to increase the
proportion of its revenue generated by sales to OEMs, which historically have
yielded lower gross margins, and to the retail/mass merchant channel, which
typically provides higher gross margins than OEM sales but requires higher sales
and marketing expenses and carries price-protection, stock-rotation and
customer-return liabilities. Individual product lines generally provide higher
margins at the beginning of the typical six-to-twelve-month product life cycle,
and lower margins as the product line matures. Product lines with less
technology value-added, however, such as multimedia upgrade kits, generally
provide lower margins than product lines with higher technology value-added.
Moreover, if a product's life should end prior to expectations, then there is
also a risk of unexpected channel inventory returns and end-of-life and obsolete
inventory charges, which could depress the Company's revenue and gross margin in
the affected period.
Many of these factors are beyond the Company's control. For example, the
Company's operating results in the second and third quarters of 1996 and the
first half of 1997 were adversely impacted by significantly lower unit prices as
a result of competitive pricing pressures, and, in the second quarters of 1996
and 1997, lower unit volumes due in part to weak market conditions. There can be
no assurance that lower unit prices or volumes will not affect the Company's
operating results in the future. In addition, due to the short product life
cycles that characterize the Company's markets, the Company's failure to
successfully introduce competitive products in a timely manner would adversely
affect operating results for one or more product cycles.
Due to the foregoing factors, it is likely that the operating results of
the Company for some future quarter or quarters will fall below the expectations
of securities analysts and investors. In such an event, the trading price of the
Company's Common Stock could be materially and adversely affected.
REVENUE VOLATILITY AND DEPENDENCE ON ORDERS RECEIVED AND SHIPPED IN A QUARTER
The volume and timing of orders received during a quarter are difficult to
forecast. Customers generally order on an as-needed basis and, accordingly, the
Company has historically operated with a relatively small backlog. Moreover, the
Company has emphasized its ability to respond quickly to customer orders as part
of its competitive strategy. This strategy, combined with current industry
supply-demand conditions and emphasis on just-in-time inventory management, has
resulted in customers placing orders with relatively short delivery schedules.
This has the effect of increasing such short-lead orders ("turns orders") as a
portion of the Company's business and reducing the Company's ability to
accurately forecast net revenue. Because turns orders are more difficult to
predict, there can be no assurance that the combination of turns orders and
backlog in any quarter will be sufficient to achieve either sequential or
year-over-year growth in net revenue during that quarter. If the
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Company does not achieve a sufficient level of turns orders in a particular
quarter, the Company's revenues and operating results would be materially
adversely affected.
Also, at any time and with no advance notice, during periods of uncertainty
in the personal computer industry's outlook for future demand or pricing, the
Company's customers may choose to draw down their inventory levels thereby
adversely impacting the Company's revenue during the period of adjustment. The
second quarter of 1997 comprised such a period due to the transition from older,
legacy 33.6 kilobits per second (Kbps) modems and 2D graphics products to new 56
Kbps modems and 3D graphics products. This major product transition period will
likely continue through the rest of 1997. Also, as is common and frequent in the
personal computer industry, a disproportionate percentage of the Company's
revenue in any quarter may be generated in the last month or weeks of a quarter.
As a result, a shortfall in sales in any quarter as compared to expectations may
not be identifiable until at or near the end of the quarter. In addition, from
time to time, a significant portion of the Company's revenue may be derived from
a limited number of customers, the loss of one or more of which could adversely
impact operating results.
Notwithstanding the difficulty in forecasting future sales and the
relatively small level of backlog at any given time, the Company generally must
plan production, order components and undertake its development, sales and
marketing activities and other commitments months in advance. Accordingly, any
shortfall in revenue in a given quarter may materially impact the Company's
operating results and cash balances in a magnified way due to the Company's
inability to adjust expenses or inventory levels during the quarter to match the
level of revenue for the quarter. Excess inventory could also result in cash
flow difficulties as well as added costs of goods sold and expenses associated
with inventory write-offs or sell-offs. Conversely, in its efforts to adjust
inventory levels to a slower order rate, the Company may overcorrect its
component purchases and inventory levels, thereby experiencing periodic
shortages of inventory and delivery delays and negatively impacting its revenue,
market share and customer satisfaction levels in the current quarter or in
future quarters.
DECLINING SELLING PRICES
The Company's markets are characterized by intense ongoing competition and
coupled with a past history and a current trend of declining average selling
prices. A decline in selling prices may cause the revenue in a quarter to be
lower than the revenue of a preceding quarter or corresponding prior year's
quarter even if more units were sold during such quarter than in the preceding
or corresponding prior year's quarter. Accordingly, it is likely that the
Company's average selling prices will decline, and the Company's revenue and
margins may decline in the future, from the levels experienced to date. The
Company's gross margins may also be adversely affected by shortages of, or
higher prices for, key components for the Company's products, including its
modems, 3-D graphics accelerators, SCSI I/O adapters, 3D audio accelerators and
DVD/MPEG-2 video products, some of which have been impacted from time-to-time by
a scarcity in the supply of associated chipsets and other components. In
addition, the Company's revenues, average selling prices and gross margins will
be adversely affected if the market prices for certain components used or
expected to be used by the Company, such as DRAMs, VRAMs, SGRAMs, CD-ROMs, DVD
drives, multimedia controller chips or bundled software, decline more rapidly
than the Company is able to process component inventory bought earlier at higher
prices into finished products, book and ship the related orders, and move such
products through third-party distribution channels, some of which may be price
protected, to the final customer. For example, operating results were negatively
impacted in the second and third quarters of 1996 by declining market prices for
the Company's products, caused in part by a sharp reduction in the market price
for DRAMs. Conversely, an increase in the price of semiconductor components may
adversely impact the Company's gross margin due to higher unit costs, and a
decrease in the supply of semiconductor components may adversely impact the
Company's revenue due to lower unit shipments.
SEASONALITY
The Company believes that, due to industry seasonality, demand for its
products is strongest during the fourth calendar quarter of each year. This
seasonality may become more pronounced and material in the future to the extent
that a greater proportion of the Company's sales consist of sales into the
retail/mass merchant channel, that PCs become more consumer-oriented or
entertainment-driven products, or that the Company's
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revenue becomes increasingly based on entertainment-centric products. Also, to
the extent the Company is successful in expanding its European operations, it
may experience relatively weak demand in third calendar quarters due to
historically weak summer sales in Europe. The potential material effect of
seasonality on the Company's revenue is illustrated through market research
results published by International Data Corporation (Worldwide Quarterly PC
Market Tracker, 1997) showing that worldwide personal computer shipments in the
world were spread across the four (4) calendar quarters of 1996 in the ratio of
23%, 23%, 24% and 30%, respectively. The foregoing example is merely an
illustration of historical trends, however, and in no way is intended to be a
prediction or any indication of how the Company's sales will develop.
MANAGEMENT OF GROWTH
In recent years, the Company has experienced a significant expansion in the
overall level of its business and the scope of its operations, including
manufacturing, research and development, marketing, technical support, customer
service, sales and logistics. In addition, through its acquisitions of Supra in
September 1995 and Spea in November 1995, the Company increased the scope of its
product lines and multinational operations. This expansion in scope has resulted
in a need for significant investment in infrastructure, processes and
information systems, as well as the integration of Supra and Spea into the
Company's infrastructure. This requirement includes, without limitation:
Securing adequate financial resources to successfully integrate and manage the
acquired businesses; retention of key employees; integration of management
information, control and telecommunications systems; consolidation of
geographically dispersed manufacturing and distribution facilities;
consolidation and coordination of suppliers; rationalization of distribution
channels; establishment and documentation of business processes; and integration
of various functions and groups of employees. Each of these requirements could
pose significant, material challenges. For example, the Company established a
restructuring reserve in the second quarter of 1997 to account for the expected
expenses of, among other actions, integrating customer service and distribution
from Supra into Diamond, transitioning manufacturing from Supra's facility in
Oregon to a subcontractor facility in Mexico, and integrating technical support
from Diamond's San Jose, CA facility to Supra's technical support organization
in Oregon. Moreover, Spea historically has not been profitable and the Company's
management has taken significant steps to reduce expenses at Spea and integrate
its operations with those of the Company. Accordingly, the Company has
reorganized Spea to function principally as follows: a product localization and
marketing operation for Europe; a sales, technical support and customer service
operation for Germany; and a product development and launch facility for
professional 3D graphics, including CAD and digital animation, for the Company's
worldwide markets. The Company discontinued manufacturing, test, packaging and
logistics operations at Spea effective October 1, 1996. Since the acquisition of
Spea in November 1995, the Company's efforts to improve Spea's financial
performance have been adversely impacted by economic recession in Germany and
the associated downturn in the German computer market, and there can be no
assurance that the Company will be successful in improving the financial
performance of its operations in Europe. Moreover, prior to its acquisition by
the Company, Spea made certain investments including entering into the shared
ownership (at 49.5%) with Philips Semiconductor (at 50.5%) of a 3D graphics
semiconductor design subsidiary, SP3D. The Company's 49.5% ownership of SP3D is
carried on the Company's balance sheet at the same approximately $3.4 million
value as it was on Spea's balance sheet prior to the acquisition. Philips
Semiconductor has full day-to-day operating management control of SP3D and holds
the majority of seats on the SP3D board. There can be no assurance that the
Company will be able to achieve a reasonable return on this asset, or that the
asset will not need to be written down, in whole or in part, during subsequent
accounting periods.
The Company's future operating results will depend in large measure on its
success in implementing operating, manufacturing and financial procedures and
controls, improving communication and coordination among the different operating
functions, integrating certain functions such as sales, procurement and
operations, strengthening management information and telecommunications systems,
and continuing to hire additional qualified personnel in all areas. There can be
no assurance that the Company will be able to manage these activities and
implement these additional systems, procedures and controls successfully, and
any failure to do so could have a material adverse effect upon the Company's
short-term and long-term operating results.
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SHORT PRODUCT LIFE CYCLES; DEPENDENCE ON NEW PRODUCTS
The market for the Company's products is characterized by frequent new
product introductions and rapid product obsolescence. These factors typically
result in short product life cycles, frequently ranging from six to twelve
months. The Company must develop and introduce new products in a timely manner
that compete effectively on the basis of price and performance and that address
customer needs and meet customer requirements. To do this, the Company must
continually monitor industry trends and make difficult choices regarding the
selection of new technologies and features to incorporate into its new products,
as well as the timing of when to introduce such new products, all of which may
impair the orders for or the prices of the Company's existing products. The
success of new product introductions depends on various factors, some of which
are outside the Company's direct control. Such factors may include: selection of
new products; selection of controller or memory chip architectures; timely
completion and introduction of new product designs; trade-offs between the time
of first customer shipment and the optimization of software for speed, stability
and compatibility; development of supporting content by independent software
vendors ("ISV"s); development and production of collateral product literature;
prompt delivery to OEM accounts of such prototypes; support of such prototypes;
and coordination of advertising, press relations, channel promotion and VAR
evaluation programs.
In the current transition of mainstream PC graphics subsystem architectures
from 2D graphics and the PCI bus to 3D graphics and the accelerated graphics
port (AGP), expected to occur during 1997 and 1998, controller and memory chip
selection and the timely introduction of new products will be key factors in
achieving market success. In addition, in the current transition from the widely
accepted V.34 modem protocol (33.6Kbps) to the new higher speed V.PCM protocol
(56Kbps), including its initial proprietary implementations under the K56flex
and x2 versions, selection of the appropriate protocol version or versions to
support, the timing of such support, the chip selection to implement and deploy
such support, and the industry alliances to convert such support into revenue
and market share growth will all be key factors in achieving market success.
There can be no assurance that the Company will select the proper chips to
implement and support its efforts in the various markets or that the Company
will execute its strategy in a timely manner during this transition period.
Each new product cycle presents new opportunities for current or
prospective competitors of the Company to gain a product advantage or increase
their market share. If the Company does not successfully introduce new products
within a given product cycle, the Company's sales will be adversely affected for
that cycle and possibly for subsequent cycles. Any such failure could also
impair the Company's brand name and ability to command retail shelf space in
future periods. Moreover, because of the short product life cycles coupled with
the long lead times for procuring many of the components used in the Company's
products, the Company may not be able, in a timely manner, or at all, to reduce
its component procurement commitments, software license commitments, production
rates or inventory levels in response to unexpected delays in product launch,
shortfalls in sales, technological obsolescence or declines in prices or,
conversely, to increase production in response to unexpected increases in
demand, particularly if such demand increases are in a new product or new
technology area where component supply may be hard to secure. Therefore, changes
in actual or expected demand could result in excess inventory, inventory write
downs, price protection and gross margin compression or, conversely, in lost
sales and revenue compression due to product or component unavailability.
NEW OPERATING SYSTEMS
The PC industry has recently been characterized by significant operating
system changes, such as the introduction of OS/2 Warp in 1994, Windows 95 in
1995 and Windows NT 4.0 in 1996, and the introduction of significant new
operating systems components, such as Microsoft's Direct X and ActiveX for
Windows 95. While new operating systems can provide new market opportunities,
such as the growing market for graphical user interface ("GUI") accelerators
that occurred with the introduction of Windows 3.0 and the expected growth in
the PC games market with the introduction of Windows 95, new operating systems
and operating systems components also place a significant research and
development burden on the Company. New drivers, applications and user interfaces
must be developed for the new operating systems and operating systems components
in order to maintain revenue levels and customer satisfaction. Perhaps more
significantly, such drivers, applications and interfaces customarily are ported
to the recently shipped portion of the Company's installed base. This effort
involves a substantial software engineering, compatibility testing and customer
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technical support investment with only limited near-term incremental revenue
return since these driver updates are usually provided via electronic
distribution free to the Company's installed customer base. In addition, the
installation of this software may result in technical support calls, thereby
generating expenses that do not have offsetting revenue. Moreover, during the
introductory period of a major new operating system release such as Windows 95,
such installed base support may reduce the research and development and customer
technical support resources available for launching new products. For example,
after substantial investment in porting the Company's software, graphics
accelerator and modem products over to Windows 95, the Company was at year-end
1996 still developing for final release improved, accelerated Windows 95 drivers
for the Viper Pro Video series of accelerator add-in cards (since completed).
While this product line does not represent a current or future revenue
opportunity for the Company, the Company nevertheless believed that it was
important to make the significant software development investment represented by
this effort in order to maintain relations with its installed customer base and
its reputation for reliable on-going product support. Furthermore, new operating
systems for which the Company prospectively develops driver support may not be
successful, or the drivers themselves may not be successful or accepted by
customers, and a reasonable financial return on the corollary research and
development investment may never be achieved.
DEPENDENCE ON THIRD PARTY SOFTWARE DEVELOPERS
The Company's business strategy includes developing relationships with
major ISVs that serve the 3D graphics and 3D audio markets, including the 3D
computer games market and the professional 3D graphics market. The Company
believes that the availability of a sufficient number of high quality,
commercially successful entertainment 3D software titles will be a significant
factor in the sale of multimedia hardware to the PC-based interactive 3D
entertainment market. The Company also believes that compelling professional 3D
graphics applications developed for PCs or ported from traditional workstations,
such as those supplied by Silicon Graphics and Sun Microsystems, to PCs based on
advanced Intel microprocessors and Microsoft's NT 4.0 operating system will be
significant factors in the sale of 3D graphics hardware to the PC-based NT
workstation market. The Company depends on third party software developers and
publishers to create, produce and market software entertainment titles and
professional graphics applications that will operate with the Company's 3D
products, such as Monster, Stealth, Viper and Fire GL. Only a limited number of
software developers are capable of creating high quality professional 3D and
entertainment 3D software. Competition for these resources is intense and is
expected to increase. There can be no assurance that the Company will be able to
attract the number and quality of software developers and publishers necessary
to develop a sufficient number of high quality, commercially successful software
titles and applications that are compatible with the Company's 3D products.
Further, in the case of the Company's entertainment 3D products, there can
be no assurance that third parties will publish a substantial number of
entertainment 3D software titles or, if entertainment 3D software titles are
available, that they will be of high quality or that they will achieve market
acceptance. The development and marketing of game titles that do not fully
demonstrate the technical capabilities of the Company's entertainment 3D
products could create the impression that the Company's products offer less
compelling performance over competing 3D games platforms, such as TV games
console platforms. This may slow or stop any migration from the current
widespread use of TV games consoles to the use of computer games on PCs, or the
enhancement of PCs to operate such games. Further, because the Company has no
control over the content of the entertainment titles produced by software
developers and publishers, the entertainment 3D software titles developed may
represent only a limited number of game categories and are likely to be of
varying quality.
SEMICONDUCTOR OR SOFTWARE DEFECTS
Product components may contain undetected errors or "bugs" when first
supplied to the Company that, despite testing by the Company, are discovered
only after certain of the Company's products have been installed and used by
customers. There can be no assurance that errors will not be found in the
Company's products due to errors in such products' components, or that any such
errors will not impair the market acceptance of these products or require
significant product recalls. Problems encountered by customers or product
recalls could materially adversely affect the Company's business, financial
condition and results of operations. Further, the
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Company continues to upgrade the firmware, software drivers and software
utilities that are incorporated into or included with its hardware products. The
Company's software products, and its hardware products incorporating such
software, are extremely complex as a result of factors including advanced
functionality, the diverse operating environments in which the products may be
deployed, the need for interoperability, and the multiple versions of such
products that must be supported for diverse operating platforms, languages and
standards. These products may contain undetected errors or failures when first
introduced or as new versions are released. The Company generally provides a
five-year warranty for its products and, in general, the Company's return
policies permit return within thirty days after receipt of products that do not
meet product specifications. There can be no assurance that, despite testing by
the Company, by its suppliers and by current or potential customers, errors will
not be found in new products after commencement of commercial shipments,
resulting in loss of or delay in market acceptance or product acceptance or in
warranty returns. Such loss or delay would likely have a material adverse effect
on the Company's business, financial condition and results of operations.
Additionally, new versions or upgrades to operating systems or ISV titles
or applications may require upgrades to the Company's software products to
maintain compatibility with these new versions or upgrades. There can be no
assurance that the Company will be successful in developing new versions or
enhancements to its software or that the Company will not experience delays in
the upgrade of its software products. In the event that the Company experiences
delays or is unable to maintain compatibility with operating systems and ISV
titles or applications, the Company's business, financial condition and results
of operations could be materially adversely affected.
MARKET ANTICIPATION OF NEW PRODUCTS, NEW TECHNOLOGIES OR LOWER PRICES
Since the environment in which the Company operates is characterized by
rapid new product and technology introductions and generally falling prices for
existing products, the Company's customers may from time to time postpone
purchases in anticipation of such new product introductions or lower prices. If
such anticipated changes are viewed as significant by the market, such as the
introduction of a new operating system or microprocessor architecture, then this
may have the effect of temporarily slowing overall market demand and negatively
impacting the Company's operating results. For example, the substantial
pre-release publicity surrounding the release of Windows 95 may have contributed
to a slowing of the consumer PC market in the summer of 1995. Similarly, there
may have been a slowing in the corporate PC market prior to the release of
Windows NT 4.0, the Pentium Pro and the Pentium II. Moreover, a similar reaction
may have occurred in the modem market as a result of the recent announcements of
modems based on 56 Kbps technology which became available in 1997, or in the
overall PC market in anticipation of Intel Corporation's transition to MMX-based
microprocessors during 1997. Additionally, the substantial publicity by Intel
Corporation on its MMX technology may have confused and slowed the market for
add-in multimedia accelerators, such as those sold by the Company, during the
first half of 1997. If so, this effect may continue into future periods. Other
anticipated new product releases that may influence future market growth or the
timing of such growth include Microsoft's release of its "Memphis" upgrade to
Windows 95, now anticipated to be generally available to the public in the first
quarter of 1998, and Intel's release of its new Pentium II CPU and associated
chipset supporting the AGP architecture.
The potential negative impact on the Company's operating results as a
result of customer decisions to postpone purchases in favor of new and
"publicized" technology can be further magnified if products or components based
on such new technology are not available in a timely manner or in sufficient
supply to meet the demand caused by the market's shift to the new technology
from an older technology. For example, the Company believes that the PC market
may have slowed in early 1997 in part as customers waited for the availability
of Intel's new MMX-enabled Pentium CPUs. Further, the Company's operating
results could be adversely affected if the Company makes poor selections of chip
architectures or chip suppliers to pursue 3D graphics, AGP or 56Kbps modem
market opportunities and, as a result, is unable to achieve market acceptance of
its new products or is unable to secure enough supply of such components.
Also, if the Company announces a product that the market views as having
more desirable features or pricing than the Company's existing products, demand
for the Company's existing products may be curtailed
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even though the new product is not yet available. Similarly, if the Company's
customers anticipate that the Company may reduce its prices in the near term,
they may postpone their purchases until such price reductions are effected,
reducing the Company's near-term shipments and revenue. In general, market
anticipation of new products, new technologies or lower prices, even though
potentially positive in the longer term, can negatively impact the Company's
operating results in the short term.
COMPONENT SHORTAGES; RELIANCE ON SOLE OR LIMITED SOURCE SUPPLIERS
The Company is dependent on sole or limited source suppliers for certain key
components used in its products, particularly chipsets that provide graphics,
digital video, DVD control, television (TV), sound or other multimedia
functions, random access memory (including VRAM, DRAM and SGRAM) chips, and
speakerphone modem and fax/modem chipsets. Although the price and availability
of many semiconductor components improved during 1996 and the first half of
1997, these components are periodically in short supply and on allocation by
semiconductor manufacturers. For example, it is expected that the Company may
experience substantial constraints in the supply of high-performance SGRAMs and
high-performance 3D graphics chips for the foreseeable future. There can be
assurances that the Company can obtain adequate supplies of such components, or
that such shortages or the costs of these components will not adversely affect
future operating results. The Company's dependence on sole or limited source
suppliers, and the risks associated with any delay or shortfall in supply, can
be exacerbated by the short life cycles that characterize multimedia and
communications ASIC chipsets and the Company's products in general. Although the
Company maintains ongoing efforts to obtain required supplies of components,
including working closely with vendors and qualifying alternative components for
inclusion in the Company's products, component shortages continue to exist from
time to time, and there can be no assurances that the Company can continue to
obtain adequate supplies or obtain such supplies at their historical or
competitive cost levels. Conversely, in its attempt to counter actual or
perceived component shortages, the Company may overpurchase certain components,
resulting in excess inventory and reducing the Company's liquidity or, in the
event of unexpected inventory obsolescence or a decline in the market value of
such inventory, causing inventory write-offs or sell-offs that adversely affect
the Company's gross margin and profitability. Further, such inventory sell-offs
could trigger channel price protection charges, further reducing the Company's
gross margins and profitability.
As noted above, supply-demand conditions for semiconductor components are
unpredictable and may change from time to time. During periods of oversupply,
prices are likely to fall and certain vendors of such semiconductor chips may
liquidate their inventories in a rapid manner. If such semiconductor vendors are
suppliers to the Company's competitors, then such actions could enable
competitors of the Company to enjoy a cost advantage vis-a-vis the Company, and
any resultant price reduction for such competitors' products could in turn
require the Company to reduce its prices, thereby depressing the Company's
revenues or margins in one or more operating periods.
During periods of component oversupply and associated price deflation,
customers of the Company, particularly those comprising channels that do not
receive price protection from the Company, may seek to draw down the inventory
they hold since such inventory likely would bear a price deflation risk. As a
consequence, the Company may see its orders, unit shipments and average selling
prices depressed from time to time during such price-deflation and
inventory-reduction periods, which could adversely affect revenues or gross
margin in the related operating period or periods.
Conversely, when the PC or PC peripherals markets emerge from a period of
oversupply, it is normal for most manufacturers, distributors and resellers that
have substantially drawn down their inventory levels to be unprepared for a
possible rapid increase in sales. Accordingly, the Company may not have enough
inventory, scheduled component purchase orders or available manufacturing
capacity to meet short-lead increases in market demand, thereby missing orders
and revenue opportunities, and perhaps causing customer dissatisfaction and
losing market share. Moreover, the inability of the Company to obtain product
components at their historical cost levels and being forced to pay higher prices
to achieve timely delivery would directly affect the cost of the Company's
products and could adversely affect the Company's gross margin.
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DEPENDENCE ON SUBCONTRACTORS
The Company relies on independent surface mount technology ("SMT") and
printed circuit board ("PCB") subcontractors to manufacture, assemble or test
the Company's products. The Company procures its components and products through
purchase orders and does not have specific volume purchase agreements with each
of its subcontractors. Many of the Company's subcontractors could cease
supplying the services, products or components at any time with limited or no
penalty. In the event that it becomes necessary for the Company to replace a key
subcontractor, the Company could incur significant manufacturing set-up costs
and delays. Moreover, there can be no assurance that the Company would be able
to find suitable replacement subcontractors. In addition, the Company's emphasis
on maintaining low inventory may accentuate the effects of any shortages that
may result from sole-source subcontractors during periods of tight supply or
rapid order growth The Company's ability to respond to greater than anticipated
market demand may be constrained by the availability of SMT or PCB
subcontracting services. Further, various of the Company's subcontractors are
located in international locations that, while offering low labor costs, may
comprise political, infrastructure, transportation, tariff, regulatory, legal,
import, export, economic or supply risks.
DEPENDENCE ON GRAPHICS AND MULTIMEDIA ACCELERATOR MARKET
Sales of graphics and multimedia accelerator subsystems accounted for
greater than 75% and 70% of the Company's revenue in the second quarter and
first six months of 1997 and greater than 75% in the corresponding prior year
periods. Although the Company has introduced audio subsystems, ISDN adapters
subsystems and SCSI host adapters, entered the modem market through the
acquisition of Supra Corporation and is developing DVD/MPEG-2 products, graphics
accelerator subsystems are expected to continue to account for a majority of the
Company's sales for the foreseeable future. A decline in demand or average
selling prices for graphics accelerator subsystems, whether as a result of new
competitive product introductions, price competition, excess supply, widespread
cost reduction, technological change, incorporation of the products'
functionality onto personal computer motherboards or otherwise, would have a
material adverse effect on the Company's sales and operating results.
MIGRATION TO PERSONAL COMPUTER MOTHERBOARDS
The Company's graphics and multimedia accelerator subsystems are individual
products that function within personal computers to provide additional
multimedia functionality. Historically, as a given functionality becomes
technologically stable and widely accepted by personal computer users, the cost
of providing such functionality is typically reduced by means of large scale
integration into semiconductor chips, which can be subsequently incorporated
onto personal computer motherboards. The Company expects that such migration
will not occur in a substantial way with 3D graphics or Intel's accelerated
graphics port (AGP) in the near term, although the Company recognizes that such
migration could occur with respect to the functionality provided by the
Company's current products. While the Company believes that a market will
continue to exist for add-in subsystems that provide advanced or multiple
functions and offer flexibility in systems configuration, such as 3D graphics,
3D audio, MPEG-2 digital video, high-speed I/O and modems, there can be no
assurance that the incorporation of new multimedia functions onto personal
computer motherboards or into CPU microprocessors, such as under Intel's MMX or
AGP technologies, will not adversely affect the future market for the Company's
products. In large part, the continuation of a robust market for add-in graphics
and video subsystems may depend on the timing and market acceptance of 3-D
graphics and digital video MPEG-2 acceleration. This, in turn, may depend on the
availability of compelling 3-D and MPEG-2 content, including games and
entertainment, broadcast digital video, PC video phones, desktop video
conferencing, and digital video, audio and VRML on the Internet. Similarly, the
robustness of the modem market may depend largely on the widespread adoption of
56 Kbps and digital subscriber line (xDSL) technologies in both client-side
modems attached to the PC and server-side modems provided by Internet Service
Providers and telephone network central offices. The timing of major technology
introductions and the market acceptance of these new technologies and standards
is largely out of the control of the Company. For example, the new 56 Kbps modem
technology currently has two competing protocols: K56flex supported by Rockwell
Semiconductor and Lucent Technologies and x2 supported by U.S. Robotics. The
Company believes that most industry experts are of the opinion that the
International Telecommunications Union will not ratify a 56Kbps standard until
late 1997 or
19
<PAGE> 20
early 1998, thereby causing market confusion and potentially slowing market
acceptance of the new 56 Kbps modem technology.
COMPETITION
The market for the Company's products is highly competitive. The Company
competes directly against a large number of suppliers of add-in visual and audio
subsystems and data communications products for the PC such as Matrox Graphics,
Inc. and indirectly against PC systems OEMs to the extent that they manufacture
their own add-in subsystems or incorporate on PC motherboards the functionality
provided by the Company's products. In certain markets where the Company is a
relatively new entrant, such as modems, sound cards and SCSI host adapters, the
Company may face dominant competitors including U.S. Robotics (modems), Creative
Technology (sound cards) and Adaptec (SCSI host adapters). In addition, the
Company's markets are expected to become increasingly competitive as multimedia
functions continue to converge and companies that previously supplied products
providing distinct functions (for example, companies today primarily in the
sound, fax/modem, telephony, digital signal processing, central processing unit
or motherboard markets) emerge as competitors across broader or more integrated
product categories.
In addition, manufacturers of chipsets or other components used in the
Company's products could become future competitors of the Company to the extent
that such manufacturers elect to integrate forward into the add-in subsystem or
value-added software market, or as such multimedia chipset manufacturers provide
increasingly higher quality and more sophisticated software to their chipset
customers, including subsystem suppliers competitive to the Company. Also,
certain of the Company's current and potential competitors have significantly
greater market presence, name recognition and financial and technical resources
relative to the Company, and many have long-standing market positions and
established brand names in their respective markets. In addition, certain of the
Company's current and potential competitors also have a competitive cost
advantage as a result of being located in areas that impose significantly lower
taxes than the United States or offer a substantially lower cost of labor or
provide governmental subsidies, such as research and development and training
funds. Many of the Company's current and potential competitors also design and
manufacture their own graphics acceleration, video, sound, fax/modem or other
multimedia processing chipsets. While the Company believes that its
semiconductor vendor flexibility enables it to select, within certain limits,
from among the most advanced and price competitive chipsets available on the
open market, the captive semiconductor operations of certain of the Company's
current and potential competitors could provide them with significant
advantages, including greater control over semiconductor architecture and
technology, component design, component performance, systems and software
design, availability and cost.
The Company also believes that the strategy of certain of its current and
potential competitors is to compete largely on the basis of price, which may
result in significant price competition and lead to lower margins for the
Company's products or otherwise adversely affect the market for the Company's
products. To the extent that semiconductor availability is relatively robust and
software drivers and reference hardware designs from multimedia chipset
manufacturers are of high quality and sophistication, then competitors who sell
such reference designs and compete largely on price with little valued added
engineering may have a competitive cost or expense advantage relative to the
Company. There can be no assurance that the Company will be able to continue to
compete successfully in its current and future markets, or will be able to
compete successfully against current and new competitors, as the Company's
technology, markets and products continue to evolve.
DISTRIBUTION RISKS
The Company sells its products through a network of domestic and
international distributors, and directly to major retailers/mass merchants, VARs
and OEM customers. The Company's future success is dependent on the continued
viability and financial stability of its customer base. The computer
distribution and retail channels historically have been characterized by rapid
change, including periods of widespread financial difficulties and consolidation
and the emergence of alternative sales channels, such as direct mail order,
telephone sales by PC manufacturers and electronic commerce on the World Wide
Web. The loss of, or reduction in, sales to certain of the Company's key
customers as a result of changing market conditions, competition, or customer
credit problems could have a material adverse effect on the Company's operating
results. Likewise, changes in
20
<PAGE> 21
distribution channel patterns, such as increased commerce on the Internet,
increased use of mail-order catalogues, increased use of consumer-electronics
channels for personal computer sales, or increased use of channel assembly to
configure PC systems to fit customers' requirements could affect the Company in
ways not yet known. Moreover, additions to or changes in the types of products
the Company sells, such as the introduction of professional-grade products or
the migration toward more communications-centric products, may require
specialized value-added reseller channels, relations with which the Company has
only begun to establish.
Inventory levels of the Company's products in the two-tier distribution
channels used by the Company ("Channel Inventory Levels") generally are
maintained in a range of one to three months of customer demand. These Channel
Inventory Levels tend toward the low end of the months-of-supply range when
demand is stronger, sales are higher and products are in short supply.
Conversely, when demand is slower, sales are lower and products are abundant,
then Channel Inventory Levels tend toward the high end of the months-of-supply
range. Frequently, in such situations, the Company attempts to ensure that
distributors devote their working capital, sales and logistics resources to the
Company's products to a greater degree than to those of competitors. Similarly,
the Company's competitors attempt to ensure that their own products are
receiving a disproportionately higher share of the distributors' working capital
and logistics resources. The Company believes that it is currently operating in
a period of slower demand, lower sales and abundant products, leading to
existing Channel Inventory Levels that are higher than desirable. Consequently,
the Company, in taking steps to bring its Channel Inventory Levels down to a
more desirable level, may cause a shortfall in revenue during one or more
accounting periods. Further, in such an environment of slower demand and
abundant supply of products, price declines are more likely to occur and, should
they occur, are more likely to be severe. In such an event, high Channel
Inventory Levels may result in substantial price protection charges. Such price
protection charges have the effect of reducing net revenue and gross profit.
PRODUCT RETURNS; PRICE PROTECTION
The Company frequently grants limited rights to customers to return certain
unsold inventories of the Company's products in exchange for new purchases
("Stock Rotation"), as well as price protection on unsold inventory. Moreover,
certain of the Company's retail customers will readily accept returned product
from their own retail customers, and these returned products are, in turn,
returned to the Company for credit. The Company estimates returns and accrues
for potential price protection on unsold channel inventory. However, there can
be no assurance that these estimates or accruals will be sufficient, or that any
future returns or price reductions will not have a material adverse effect on
operating results, including through the mechanisms of Stock Rotation or price
protection, particularly in light of the rapid product obsolescence which often
occurs during product transitions. The short product life cycles of the
Company's products, the evolving markets for new multimedia and connectivity
technologies such as the new 56 Kbps modem and 3D graphics technologies, and the
difficulty in predicting future sales through the distribution channels to the
final end customer all increase the risk that new product introductions, price
reductions by the Company or its competitors, or other factors affecting the
personal computer and add-in subsystems industry could result in significant and
unforeseen product returns, with such returns creating a material adverse effect
on the Company's financial performance. In addition, there can be no assurance
that new product introductions by competitors or other market factors, such as
the integration of graphics acceleration or modem connectivity by OEMs onto
system motherboards, will not require the Company to reduce prices in a manner
or at a time that gives rise to significant price protection charges and has a
material adverse impact upon the Company's gross margins.
Furthermore, the markets that the Company serves include end users who buy
from computer retail and consumer electronics mass merchant outlets to upgrade
their existing PCs. Such customers frequently decide to return products to the
retail outlets from which they earlier purchased the product. Such returns are
made for a variety of reasons, including the customer changing his or her mind
regarding his or her purchase decision, the customer has difficulty with the
installation or use of the product, the product does not offer the features,
functions, or performance that the customer expected or the customer experiences
incompatibilities between the product and his or her existing PC hardware or
software. Since many of the products that the Company sells incorporate advanced
computer technology, the Company expects that end-user customer returns,
including warranty returns, will be a continuing negative attribute of the PC
installed-base upgrade market. There can be no assurance that the Company will
be able to achieve gross margins in the PC installed-base upgrade market
21
<PAGE> 22
that will be high enough to offset the expenses of end-user customer returns and
still generate an acceptable return on sales to the Company.
OEM CUSTOMER RISKS
The Company currently has only a limited number of OEM customers. While the
Company is seeking to increase its sales to OEMs, certain OEMs maintain internal
add-in subsystem design and manufacturing capabilities or have long-standing
relationships with competitors of the Company, and there can be no assurance
that the Company will be successful in its efforts to increase its OEM sales.
Moreover, developing supplier relationships with major PC systems OEMs and
installing the processes, procedures and controls required by such OEMs can be
an expensive and time-consuming process, and there can be no assurance that the
Company will achieve an acceptable financial return on this investment. It is
expected that OEM revenue will carry a lower gross margin percentage compared to
sales to other channels due to perceived lower expenses to support such OEM
revenue and the buying power exercised by large OEMs. Furthermore, the Company's
products are priced for and generally aimed at the higher performance and higher
quality segment of the market. Therefore, to the extent that OEMs focus on
low-cost solutions rather than high-performance solutions, an increase in the
proportion of the Company's sales to OEMs may result in an increase in the
proportion of the Company's revenue that is generated by lower-selling-price or
lower-gross-margin products, which could adversely affect future gross margins
and operating results of the Company.
RAPID TECHNOLOGICAL CHANGE
The markets for the Company's products are characterized by rapidly
changing technology, evolving industry standards, frequent new product
introductions and rapid product obsolescence. For example, 3D technology is
evolving rapidly in the graphics and audio markets, DVD and MPEG-2 decryption
techniques and navigation technologies are still being refined, and two
competing 56 Kbps proprietary protocols were deployed by the modem industry
during 1997. Product life cycles in the Company's markets frequently range from
six to twelve months. The Company's success will be substantially dependent upon
its ability to continue to develop and introduce competitive products and
technologies on a timely basis with features and functionalities that meet
changing customer requirements in a cost-effective manner. Further, if the
Company is successful in the development and market introduction of new
products, it must still correctly forecast customer demand for such new products
so as to avoid either excessive unsold inventory or excessive unfilled orders
related to the products. The task of forecasting such customer demand is
unusually difficult for new products, for which there is little sales history,
and for indirect channels, where the Company's customers are not the final end
customers. Moreover, whenever the Company launches new products, it must also
successfully manage the corollary obsolescence and price erosion of those of its
older products that are impacted by such new products, as well as any resulting
price protection charges and Stock Rotations from its distribution channels.
RISKS OF INTERNATIONAL SALES
The Company's international sales are subject to a number of risks
generally associated with international business operations, including the
effect on demand for the Company's products in international markets as a result
of a strengthening or weakening U.S. dollar, the effect of currency fluctuations
on consolidated multinational financial results, any state-imposed restrictions
on the repatriation of funds, any import and export duties and restrictions,
certain international economic conditions, the expenses, time and technical
resources required to localize the Company's various products and to support
local languages, the logistical difficulties of managing multinational
operations and dispersed product inventory designed or manufactured to meet
specific countries' requirements, and the delays and expenses associated with
homologating the Company's telecommunications products and securing the
necessary governmental approvals for shipment to various countries.
The Company's international sales can also be affected if inventory sold by
the Company to its international distributors and OEMs and held by them or their
customers does not sell through to final end customers, which may impact
international distributor or OEM orders in the succeeding periods. The Company
believes that at this stage of its development it has generally less information
with respect to the inventory levels held by its
22
<PAGE> 23
international OEMs and distributors vis-a-vis their domestic counterparts, and
therefore generally less visibility on how this held inventory might affect
future orders to and sales by the Company.
INFORMATION TECHNOLOGY AND TELECOMMUNICATIONS SYSTEMS
The Company is currently making significant investments in establishing
systems, processes and procedures to more efficiently and effectively manage its
worldwide business and enable communications and data sharing among its
employees and various business units. This effort comprises a significant
investment of expense and capital funds, as well as a drain on management
resources, for the installation of information technology ("IT") and
telecommunications equipment and IT applications. As part of this program to
install IT systems throughout the Company, management believes that the Company
will be required to install an enhanced enterprise-wide business management,
resource planning and decision support application. Further, in order to more
effectively manage the Company's business and avert Year 2000 issues, the
Company believes that this new application will need to be installed and
operational no later than by early 1999. Such an effort is expected to comprise
a further substantial investment of expenses and management resources by the
Company.
CAPITAL NEEDS
There can be no assurance that additional capital beyond the amounts
currently forecasted by the Company will not be required or that any required
additional capital will be available on reasonable terms, if at all, at such
time or times as required by the Company. Any shortfall in capital resources
compared to the Company's level of operations or any inability to secure
additional capital as needed could impair the Company's ability to finance
inventory, accounts receivable and other operational needs. Such capital
limitations could also impair the Company's ability to invest in research and
development, improve customer service and support, deploy information technology
systems, and expand manufacturing and other operations. Failure to keep pace
with competitive requirements in any of these areas could have a material
adverse effect on the Company's business and operating results. Moreover, any
need to raise additional capital through the issuance of equity securities may
result in additional dilution to earnings per share.
PROPRIETARY RIGHTS
While the Company had one (1) issued U.S. Patent and 16 pending U.S. Patent
Applications at June 30, 1997, it nonetheless relies primarily on a combination
of trademark, copyright and trade secret protection together with licensing
arrangements and nondisclosure and confidentiality agreements to establish and
protect its proprietary rights. There can be no assurance that the Company's
measures to protect its proprietary rights will deter or prevent unauthorized
use of the Company's technology, brand or other proprietary or intellectual
property. In addition, the laws of certain foreign countries may not protect the
Company's proprietary rights to the same extent as do the laws of the United
States or the EC. As is typical in its industry, the Company from time to time
is subject to legal claims asserting that the Company has violated intellectual
property rights of third parties. In the event that a third party was to sustain
a valid claim against the Company, and any required licenses were not available
on commercially reasonable terms, the Company's operating results could be
materially and adversely affected. Litigation, which could result in substantial
cost to and diversion of the resources of the Company, may also be necessary to
enforce intellectual property rights of the Company or to defend the Company
against claimed infringement of the rights of others.
STOCK PRICE VOLATILITY
The trading price of the Company's Common Stock has been subject to
significant fluctuations to date, and could be subject to wide fluctuations in
the future in response to quarter-to-quarter variations in operating results,
announcements of technological innovations, new products or significant OEM
systems design wins by the Company or its competitors, general conditions in the
markets for the Company's products or the computer industry, the price and
availability of purchased components, general financial market conditions,
market conditions for PC or semiconductor stocks, changes in earnings estimates
by analysts, or other events or factors. In this regard, the Company does not
endorse and accepts no responsibility for the estimates or recommendations
issued by stock research analysts from time to time. In addition, the public
stock markets in
23
<PAGE> 24
general, and technology stocks in particular, have experienced extreme price and
trading volume volatility. This volatility has significantly affected the market
prices of securities of many high technology companies for reasons frequently
unrelated to the operating performance of the specific companies. These broad
market fluctuations may adversely affect the market price of the Company's
Common Stock.
DEPENDENCE ON KEY PERSONNEL
The Company's future success will depend to a significant extent upon the
efforts and abilities of its senior management and professional, technical,
sales and marketing personnel. The competition for such personnel is intense,
particularly in the San Jose, CA area ("Silicon Valley"). There can be no
assurance that the Company will be successful in retaining its existing key
personnel or in attracting and retaining the additional key personnel that it
requires. The loss of services of one or more of its key personnel or the
inability to add or replace key personnel could have a material adverse effect
on the Company. The salary, performance bonus and stock option packages
necessary to recruit or retain key personnel, particularly in Silicon Valley,
may significantly increase the Company's expense levels or result in dilution to
the Company's earnings per share. The Company does not carry "key person" life
insurance on any of its employees.
LEGAL MATTERS
The Company has been named as a defendant in several putative class action
lawsuits which were filed in June and July, 1996 and June, 1997 in the
California Superior Court for Santa Clara County and the U.S. District Court for
the Northern District of California. Certain executive officers and directors of
the Company are also named as defendants. The plaintiffs purport to represent a
class of all persons who purchased the Company's Common Stock between October
18, 1995 and June 20, 1996 (the "Class Period"). The complaints allege claims
under the federal securities laws and California law. The plaintiffs allege that
the Company and the other defendants made various material misrepresentations
and omissions during the Class Period. The complaints do not specify the amount
of damages sought. The Company believes that it has good defenses to the claims
alleged in the lawsuits and will defend itself vigorously against these actions.
These cases are in the early stages and no trial date has been set. The ultimate
outcome of these actions cannot be presently determined. Accordingly, no
provision for any liability or loss that may result from adjudication or
settlement thereof has been made in the accompanying consolidated financial
statements.
The Company is also party to other claims and pending legal proceedings
that generally involve employment and trademark issues. These cases are, in the
opinion of management, ordinary and routine matters incidental to the normal
business conducted by the Company. In the opinion of management, the ultimate
disposition of such proceedings will not have a materially adverse effect on the
Company's consolidated financial position or future results of operations.
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PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
The Company has been named as a defendant in several putative class action
lawsuits which were filed in June and July 1996 and June, 1997 in the California
Superior Court for Santa Clara County and the U.S. District Court for the
Northern District of California. Certain executive officers and directors of the
Company are also named as defendants. The plaintiffs purport to represent a
class of all persons who purchased the Company's Common Stock between October
18, 1995 and June 20, 1996 (the "Class Period"). The complaints allege claims
under the federal securities laws and California law. The plaintiffs allege that
the Company and the other defendants made various material misrepresentations
and omissions during the Class Period. The complaints do not specify the amount
of damages sought. The Company believes that it has good defenses to the claims
alleged in the lawsuits and will defend itself vigorously against these actions.
These cases are in the early stages and no trial date has been set. The ultimate
outcome of these actions cannot be presently determined. Accordingly, no
provision for any liability or loss that may result from adjudication or
settlement thereof has been made in the accompanying consolidated financial
statements.
The Company is also party to other claims and pending legal proceedings
that generally involve employment and trademark issues. These cases are, in the
opinion of management, ordinary and routine matters incidental to the normal
business conducted by the Company. In the opinion of management, the ultimate
disposition of such proceedings will not have a materially adverse effect on the
Company's consolidated financial position or future results of operations.
ITEM 2. CHANGES IN SECURITIES
Not applicable.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
Not applicable.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
The following matters were approved at the Company's Annual Meeting of
Stockholders held on May 21, 1997:
a) The following Directors were elected:
<TABLE>
<CAPTION>
Votes
Directors Votes For Withheld
----------------------------------------------------------------
<S> <C> <C>
Chong-Moon Lee 26,800,329 194,644
William Schroeder 26,798,444 196,529
Jeffrey T. Chambers 26,827,738 167,235
Bruce C. Edwards 26,827,998 166,975
Walter G. Kortschak 26,827,388 167,585
Gregorio Reyes 26,827,868 167,105
Jeffrey D. Saper 26,828,098 166,875
</TABLE>
b) The shareholders approved the following proposal:
<TABLE>
<CAPTION>
Number of Common Shares Voted
For Against Abstain
--------------------------------------
<S> <C> <C> <C>
Appointment of Coopers & Lybrand L.L.P. 26,865,560 66,205 63,208
as independent accountants
</TABLE>
25
<PAGE> 26
ITEM 5. OTHER INFORMATION
Not applicable.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
A. Exhibit
<TABLE>
<CAPTION>
Exhibit # Description of Document
--------- -----------------------
<S> <C>
10.26 Line of Credit Agreement between the Registrant
and Sanwa Bank California dated March 17, 1997
11.1 Statement Regarding Computation of Net Income (Loss) per Share
</TABLE>
B. Reports on Form 8-K
The Company did not file any reports on Form 8-K during the
quarter ended June 30, 1997.
26
<PAGE> 27
SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
DIAMOND MULTIMEDIA SYSTEMS, INC.
Date: August 11, 1997 /s/ William J. Schroeder
---------------------------------------
William J. Schroeder
President and Chief Executive Officer
Date: August 11, 1997 /s/ James M. Walker
---------------------------------------
James M. Walker
Senior Vice President and
Chief Financial Officer
27
<PAGE> 28
INDEX TO EXHIBIT
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
--------- -----------------------
<S> <C>
10.26 Credit Agreement
11.1 Statement Regarding Computation of Net Income (Loss) per Share
27 Financial Data Schedule
</TABLE>
<PAGE> 1
EXHIBIT 10.26
[LOGO] Sanwa Bank
California
CREDIT AGREEMENT
($30,000,000 Line)
($10,000,000 Letter of Credit & $5,000,000 Foreign Exchange Subfacilities)
THIS CREDIT AGREEMENT (the "Agreement") is made and entered into this 17th
day of March, 1997 by and between SANWA BANK CALIFORNIA (the "Bank") and DIAMOND
MULTIMEDIA SYSTEMS, INC. (the "Borrower") and terminates two existing loan
agreements referred to as the Amended and Restated Credit Agreement dated as of
November 2, 1995, and all amendments, including the Amended and Restated Credit
Agreement dated January 24, 1997, ("1995 Credit Agreement") and the Credit
Agreement ($5,000,000 Line) dated January 24, 1997.
SECTION I
DEFINITIONS
1.01 Certain Defined Terms: Unless elsewhere defined in this Agreement,
the following terms shall have the following meanings (such meanings to be
generally applicable to the singular and plural forms of the terms defined):
(a) "Account Debtor": shall mean the person or entity
obligated to the Borrower upon an account.
(b) "Advance": shall mean (i) an advance to the Borrower under
the Line of Credit. The outstanding balance, as of the date hereof, under any
prior agreements, including the 1995 Credit Agreement and the Credit Agreement
($5,000,000 Line), shall be deemed Advances made under this Agreement and
subject to all the terms and conditions of this Agreement.
(c) "Alternate Currency": shall mean any lawful currency of
Japanese Yen, English Pounds, or German Marks, or any other currencies which the
Bank make available, which are freely transferable and convertible into Dollars.
(d) "Business Day": shall mean a day other than a Saturday or
Sunday on which commercial banks are open for business in California, USA, and,
with respect to LIBOR Advances, on which dealings are carried on in the London
interbank market and banks are open for business in London and in the country of
issue of the currency of such Advance.
(e) "Dollars" and the sign "$": shall mean lawful money of the
United States.
(f) "Debt": shall mean all liabilities of the Borrower as set
forth on its balance sheet less Subordinated Debt.
(g) "Effective Tangible Net Worth": shall mean the Borrower's
stated net worth plus Subordinated Debt but less all intangible assets of the
Borrower (i.e., goodwill,
PAGE 1
<PAGE> 2
trademarks, patents, copyrights, organization expense, loans and advances to
employees, affiliates or subsidiaries, investments in subsidiaries and similar
intangible items).
(h) "ERISA": shall mean the Employee Retirement Income
Security Act of 1974, as amended from time to time, including (unless the
context otherwise requires) any rules or regulations promulgated thereunder.
(i) "Event of Default": shall have the meaning set forth in
Section VII.
(j) "Expiration Date": shall mean May 31, 1998 or the date of
termination of the Bank's commitment to lend under this Agreement pursuant to
Section VIII, whichever shall occur first.
(k) "Line of Credit": shall mean the credit facility described
in Section II.
(l) "Liquid Assets": shall mean all unrestricted cash and cash
equivalents of the Borrower.
(m) "Obligations": shall mean all amounts owing by the
Borrower to the Bank pursuant to this Agreement including, but not limited to,
the unpaid principal amount of Advances.
(n) "Redenominate", "Redenomination" and "Redenominated": each
refers to redenomination of each Advance from Dollars into an Alternate Currency
or from an Alternate Currency into Dollars or another Alternate Currency
pursuant to Section 2.06.
(o) "Subordinated Debt": shall mean such liabilities of the
Borrower which have been subordinated to those owed to the Bank in a manner
acceptable to the Bank.
1.02 Accounting Terms: All references to financial statements, assets,
liabilities, and similar accounting items not specifically defined herein shall
mean such financial statements or such items prepared or determined in
accordance with generally accepted accounting principles consistently applied
and, except where otherwise specified, all financial data submitted pursuant to
this Agreement shall be prepared in accordance with such principles.
1.03 Other Terms: Other terms not otherwise defined shall have the
meanings attributed to such terms in the California Uniform Commercial Code.
1.04 Currency Equivalents Generally: For all purposes of this Agreement
other than Section 2, the equivalent in any Alternate Currency of an amount in
Dollars shall be determined at the rate of exchange quoted by the Bank in Los
Angeles, at 9:00 A.M. on the date of determination, for the spot purchase in the
relevant foreign exchange market of such amount of Dollars with such Alternate
Currency.
1.05 Late Payment: If any payment of principal or interest, or any
portion thereof, under this Agreement is not paid within ten (10) calendar days
after it is due, a late payment charge equal to five percent (5%) of such past
due payment may be assessed and shall be immediately payable.
PAGE 2
<PAGE> 3
SECTION II
THE LINE OF CREDIT
2.01 THE LINE OF CREDIT: On terms and conditions as set forth herein,
the Bank agrees to make Advances in Dollars or the Dollar equivalent in
Alternate Currency to the Borrower from time to time from the date hereof to the
Expiration Date, provided the aggregate amount of such Advances outstanding at
any time does not exceed $30,000,000 or the Dollar equivalent of $30,000,000
("Line of Credit"). Within the foregoing limits, the Borrower may borrow,
partially or wholly prepay, and reborrow under this Section 2.01.
2.02 MAKING LINE ADVANCES: Each Advance shall be conclusively deemed to
have been made at the request of and for the benefit of the Borrower (i) when
credited to any deposit account of the Borrower maintained with the Bank or (ii)
when paid in accordance with the Borrower's written instructions. Subject to the
requirements of Section 5, Advances shall be made by the Bank upon telephonic or
facsimile request received from the Borrower, and confirmed in writing within
two Business Days, which request shall be received not later than 12:00 p.m.
(Pacific Standard Time) on the date specified for a Variable Rate Advance and
7:00 a.m. (Pacific Standard Time) two business days prior to the date specified
for a LIBOR Advance or a Cost of Funds Advance, each of which dates shall be a
Business Day. The rates for a LIBOR Advance or a Cost of Funds Advance shall be
set on the same Business Day as the request is received if received by 7:00 a.m.
and on the next Business Day if received after 7:00 a.m.. Requests for Advances
received after such time may, at the Bank's option, be deemed to be a request
for an Advance to be made on the next succeeding Business Day for a Variable
Rate Advance and the third succeeding Business Day for a LIBOR Advance or a Cost
of Funds Advance.
2.03 MANDATORY REPAYMENT:
On the Expiration Date, the Borrower hereby promises and
agrees to pay to the Bank in full the aggregate unpaid principal amount of all
Advances then outstanding, together with all accrued and unpaid interest
thereon, provided, however, that any Advance denominated in Dollars must be
repaid in Dollars and any Advance denominated in an Alternate Currency must be
repaid in the same Alternate Currency.
2.04 INTEREST ON ADVANCES: Interest shall accrue from the date of each
Advance under the Line of Credit at one of the following rates, as quoted by the
Bank and as elected by the Borrower pursuant to paragraph 2.05 or paragraph 2.06
below:
(a) VARIABLE RATE ADVANCES: For Advances denominated in
Dollars, a variable rate per annum equivalent to an index for a variable
interest rate which is quoted, published or announced from time to time by the
Bank as its reference rate (the "Reference Rate") and as to which loans may be
made by the Bank at, below or above such Reference Rate (the "Variable Rate").
Interest shall be adjusted concurrently with any change in the Reference Rate.
An Advance which bears interest at the Variable Rate is hereinafter referred to
as a "Variable Rate Advance".
(b) LIBOR ADVANCES: A fixed rate quoted by the Bank for 1, 2,
3 or 6 months or for such other period of time that the Bank may quote and offer
(provided that any such period of time does not extend beyond the Expiration
Date) [the "Interest Period"] for Advances in the
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minimum amount of $100,000.00. Such interest rate shall be a percentage
approximately equivalent to 1.50% in excess of the Bank's LIBOR Rate which is
that rate determined by the Bank's Treasury Desk as being the arithmetic mean
(rounded upwards, if necessary, to the nearest whole multiple of one-sixteenth
of one percent (1/16%)) of the U. S. dollar London Interbank Offered Rates for
such period appearing on page 3750 (or such other page as may replace page 3750
of the Telerate screen at or about 11:00 a.m. (London time) on the second
business day prior to the first day of such period (adjusted for any and all
assessments, surcharges and reserve requirements) [the "LIBOR Rate"]. An Advance
based upon the LIBOR Rate is hereinafter referred to as the "LIBOR Advance".
(c) COST OF FUNDS ADVANCES. For Advances denominated in
Dollars, the Bank hereby agrees to make Advances to the Borrower, at Borrower's
election, at a fixed rate quoted by Bank for 1, 2, 3, or 6 months or for such
other period of time that the Bank may quote and offer (provided that such any
period of time does not extend beyond the Expiration Date (the "Cost of Funds
Interest Period"). Such interest rate shall be a percentage approximately
equivalent to 1.50 % per annum in excess of the rate which the Bank determines
in its sole and absolute discretion to be equal to the Bank's cost of acquiring
funds (adjusted for any and all assessments, surcharges and reserve requirements
pertaining to the borrowing or purchase by the Bank of such funds) in an amount
approximately equal to the amount of the relevant Advance and for a period of
time approximately equal to the relevant Interest Period (the "Cost of Funds
Rate") for Advances in the minimum amount $500,000 and in $100,000 increments
thereafter. Advances based upon the Cost of Funds Rate are hereinafter referred
to as "Cost of Funds Advances". The Bank shall provide the Borrower with a
statement of the Borrower's Cost of Funds Rate, which statement shall be
considered to be correct and conclusively binding on the Borrower unless the
Borrower notifies the Bank to the contrary within 30 days after the Borrower's
receipt of any such statement which it deems to be incorrect.
LIBOR Advances and Cost of Funds Advances are sometimes
hereinafter referred to as a "Fixed Rate Advance".
Interest on Variable Rate Advances and Cost of Funds Advances
shall be paid in Dollars in monthly installments commencing on the first day of
the month following the date of the first such Advance and continuing on the
first day of each month thereafter.
Interest on any LIBOR Advance shall be paid on the last day of
the LIBOR Interest Period pertaining to such LIBOR Advance and shall be paid in
Dollars or in the relevant Alternate Currency as the case may be. The Borrower
further promises and agrees to pay the Bank interest on any LIBOR Advance with
an LIBOR Interest Period in excess of 90 days on a quarterly basis (i.e., on the
last day of each 90-day period occurring in such LIBOR Interest Period) and on
the last day of the relevant LIBOR Interest Period.
If interest is not paid as and when it is due, it shall be
added to the principal, become and be treated as a part thereof, and shall
thereafter bear like interest.
2.05 NOTICE OF ELECTION TO ADJUST INTEREST RATE: The Borrower may elect
that interest on a Fixed Rate Advance shall continue to accrue at a newly quoted
LIBOR Rate or Cost of Funds Rate; provided, however, that such notice shall be
received by the Bank no later than 7:00 a.m. two business days prior to the last
day of the LIBOR Interest Period for a LIBOR Advance and 1:00 p.m. one business
day prior to the last day of a Cost of Funds Interest Period for a Cost of Funds
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Advance. Such notice may be by telephone if confirmed in writing by telecopy
with the original of such writing deposited in the US mail or with an air
courier on the same day. The Bank shall not incur any liability to the Borrower
in acting upon any telephonic notice referred to above that the Bank believes in
good faith to have been given by a duly authorized officer or other person
authorized to act on behalf of the Borrower and upon any borrowing,
Redenomination or continuation by the Bank in accordance with this Agreement
pursuant to any telephonic notice, the Borrower shall have effected the
borrowing, redenomination or continuation of Advances hereunder. The Borrower
may elect that interest on a Fixed Rate Advance shall accrue at the Variable
Rate; provided, however, that such notice shall be received by the Bank no later
than one business day prior to the last day of the Interest Period pertaining to
such Fixed Rate Advance, and provided further, however, that such Fixed Rate
Advance shall be in Dollars or Redenominated in Dollars pursuant to the terms of
Section 2.06. If the Bank shall not have received notice (as prescribed herein)
of Borrower's election that interest on any Fixed Rate Advance shall continue to
accrue at the newly quoted LIBOR Rate or Cost of Funds Rate or Variable Rate as
the case may be, the Borrower shall be deemed to have elected that interest
thereon shall be adjusted to accrue at the Variable Rate then in effect and any
Alternate Currency shall be Redenominated in Dollars.
2.06 Redenomination of Advances:
The Borrower may, upon notice given to the Bank at least four
Business Days prior to the date of the proposed Redenomination, request that a
LIBOR Advance be Redenominated from Dollars into an Alternate Currency or from
an Alternate Currency into Dollars or another Alternate Currency; provided,
however, that any Redenomination shall be made on, and only on, the last day of
an Interest Period for such Advances. Each such notice of request of a
Redenomination ("Notice of Redenomination") shall be by telecopier, telex or
cable, confirmed immediately in writing, or may be by telephone if confirmed in
writing by telecopy with the original of such writing deposited in the US mail
or with an air courier on the same day, and the Bank shall not incur any
liability to the Borrower in acting upon any telephonic notice referred to above
that the Bank believes in good faith to have been given by a duly authorized
officer or other person authorized to act on behalf of the Borrower and upon any
borrowing, Redenomination or continuation by the Bank in accordance with this
Agreement pursuant to any telephonic notice, the Borrower shall have effected
the borrowing, redenomination or continuation of Advances hereunder, specify in
writing (i) the LIBOR Advance(s) to be Redenominated, (ii) the date of the
proposed Redenomination, (iii) the Alternate currency into which such Advances
are to be Redenominated, and (iv) the duration of the Interest Period for such
Advances upon being so Redenominated. In the case of a Notice of Redenomination
which requests a Redenomination of Advances into an Alternate Currency, such
Redenomination is subject to confirmation by Bank not later than the third
Business Day before the requested date of such Redenomination that such Bank
agrees to such Redenomination, which confirmation shall be notified to the
Borrower. If no confirmation is provided the Redenomination will not occur. Each
Advance so requested to be Redenominated will be Redenominated, on the date
specified therefor in such Notice of Redenomination, into an equivalent amount
thereof in the currency requested in such Notice of Redenomination, such
equivalent amount to be determined on such date in accordance with Section 2.13,
and, upon being so Redenominated, will have an initial Interest Period as
requested in such Notice of Redenomination.
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2.07 Prepayment:
(a) The Borrower may prepay any Advance in whole or in part,
at any time and without penalty, provided, however, that: (i) any partial
prepayment shall first be applied, at the Bank's option, to accrued and unpaid
interest and next to the outstanding principal balance; and (ii) during any
period of time in which interest is accruing on any Advance on the basis of the
LIBOR Rate or the Cost of Funds Rate, no prepayment shall be made except on a
day which is the last day of the Interest Period pertaining thereto provided,
however, if the whole or any part of any Fixed Rate Advance is prepaid by reason
of acceleration or otherwise, the Borrower shall, upon the Bank's request,
promptly pay to and indemnify the Bank for all costs and any loss actually
incurred by the Bank, excluding loss of profit on any margin, but including any
loss resulting from the reemployment of funds, sustained by the Bank as a
consequence of such prepayment, and provided further, that any prepayment
hereunder shall not be deemed to be an event of default.
(b) If, on the last day of any Interest Period, the equivalent
in Dollars of the aggregate principal amount of all LIBOR Advances then
outstanding when combined with the aggregate principal amount of all Variable
Rate Advances and Cost of Funds Advances then outstanding exceeds the Line of
Credit, the Borrower shall on such last day prepay an aggregate principal amount
of such Advances to the Bank in an amount at least equal to such excess, with
accrued interest to the date of such prepayment on the principal amount prepaid.
2.08 Indemnification for LIBOR Rate and Cost of Funds Rate
Costs: During any period of time in which interest on any Advance is accruing on
the basis of the LIBOR Rate or the Cost of Funds Rate, the Borrower shall, upon
the Bank's written request, which request shall explain in reasonable detail the
reason for such costs or payments, promptly pay to and reimburse the Bank for
all costs incurred and payments made by the Bank by reason of any future
assessment, reserve, deposit or similar requirement or any surcharge, tax or fee
imposed upon the Bank or as a result of the Bank's compliance with any directive
or requirement of any regulatory authority pertaining or relating to the
Alternate Currency or Dollars or cost of funds used by the Bank in quoting and
determining the LIBOR Rate or the Cost of Funds Rate under this Agreement. Bank
shall use its best efforts to provide Borrower, in advance, with an estimate of
any such costs which may potential]), be incurred hereunder.
2.09 LIBOR Rate or Cost of Funds Rate Infeasible: In the event
that the Bank shall at any time determine that the accrual of interest, on the
basis of the LIBOR Rate or the Cost of Funds Rate (i) is infeasible at the time
of any borrowing, continuation or Redenomination because the Bank is unable to
determine the LIBOR Rate or Cost of Funds Rate due to the unavailability of
Dollars or Alternate Currency deposits, contracts or time deposits in an amount
approximately equal to the amount of the relevant Advance and for a period of
time approximately equal to relevant Interest Period or (ii) is or has become
unlawful or infeasible by reason of the Bank's compliance with any new law,
rule, regulation, guideline or order, or any new interpretation of any present
law, rule, regulation, guideline or order, then the Bank shall give telephonic
notice thereof (confirmed in writing) to the Borrower, in which event such Fixed
Rate Advance shall be immediately prepaid but then may be converted or
Redenominated into a Variable Rate Advance at the election of Borrower.
2.10 Failure to Borrow: In the case of any Fixed Rate Advance,
the Borrower shall indemnify Bank against any loss, cost or expense incurred by
Bank as a result of any Mum to borrow on the date specified for such Fixed Rate
Advance (other than as a result of Bank's failure,
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to make funds available for such Advance), including, without limitation, any
loss (excluding loss of anticipated profits), cost or expense incurred by reason
of the liquidation or reemployment of deposits or other funds acquired by Bank
to fund such Fixed Rate Advance to be made by Bank when such Fixed Rate Advance
is not made on such date.
2.11 Computations and Payments: Interest on any Advance shall be
computed on the basis of 360 days per year, but charged on the actual number of
days elapsed. Whenever any payment hereunder shall be stated to be due on a day
other than a Business Day, such payment shall be made on the next succeeding
Business Day, and such extension of time shall in such case be included in the
computation of payment of interest; provided, however, if such extension would
cause payment of interest on or principal of LIBOR Advances to be made in the
next following calendar month, such payment shall be made on the immediately
preceding Business Day.
2.12 Taxes:
(a) Any and all payments by the Borrower shall be made
hereunder free and clear of and without deduction for any and all present or
future taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, taxes imposed on the Bank's income,
and franchise taxes imposed on it, by the jurisdiction under the laws of which
Bank is organized or any political subdivision thereof (all such non-excluded
taxes, levies, imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes"). If Borrower shall be required by law to
deduct any Taxes from or in respect of any sum payable hereunder (i) the sum
payable shall be increased as may be necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 2.12) the Bank receives an amount equal to the sum it would have
received had no such deductions been made, (ii) Borrower shall make such
deductions and (iii) Borrower shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance with applicable law. Bank
shall use its best efforts to advise Borrower of any taxes or levies to the best
of Bank's knowledge thereof.
(b) In addition, Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any payment or registration of, or otherwise
with respect to, this Agreement (hereinafter referred to as "Other Taxes").
(c) Borrower will indemnify Bank for the full amount of Taxes
or Other Taxes (including, without limitation, any Taxes or Other Taxes imposed
by any jurisdiction on amounts payable under this Section 2.12) paid by Bank and
any liability (including penalties, interest and expenses) arising therefrom or
with respect thereto, other than liabilities arising from Bank's gross
negligence or willful misconduct, whether or not such Taxes or Other Taxes were
correctly or legally asserted. This indemnification shall be made within 30 days
from the date Bank makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the
Borrower will furnish to the Bank at its address referred to hereinbelow, the
original or a certified copy of a receipt evidencing payment thereof. If no
taxes are payable in respect of any payment hereunder, Borrower will furnish to
the Bank at such address, a certificate from each appropriate taxing authority,
or an opinion of counsel acceptable to the Bank, in either case stating that
such payment is exempt from or not subject to Taxes.
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(e) To the extent that any Taxes were not lawfully payable, any
recovery ultimately received by the Bank in respect of any such Taxes shall be
refunded to the Borrower to the extent of the applicable indemnification
payment.
(f) Bank agrees that, upon receiving written notice from
Borrower, Bank shall take all such actions as are reasonably necessary to enable
the Borrower to pay all Taxes in a timely manner and to claim such exemptions as
the Bank may be entitled to claim in respect of all or any portion of any Taxes
which are otherwise required to be paid or deducted or withheld pursuant to this
Section 2.12 in respect of any payments under this Agreement.
(g) Without prejudice to the survival of any other agreement
of the Borrower hereunder, the agreements and obligations of the Borrower
contained in this Section 2.12 shall survive the payment in full of principal
and interest hereunder.
2.13 Currency Equivalents: For purposes of the provisions of this
Section 2, (i) the equivalent in Dollars of Alternate Currency shall be
determined by using the quoted spot rate at which Bank's principal office in Los
Angeles offers to exchange Dollars for such Alternate Currency at 9:00 A.M. (Los
Angeles time) two Business Days prior to the date on which such equivalent is to
be determined, (ii) the equivalent in any Alternate Currency of any other
Alternate Currency shall be determined by using the quoted spot rate at which
Bank's principal office in Los Angeles offers to exchange such Alternate
Currency for the equivalent in Dollars of such other Alternate Currency at 9:00
A.M. (Los Angeles time) two Business Days prior to the date on which such
equivalent is to be determined, and (iii) the equivalent in any Alternate
Currency of Dollars shall be determined by using the quoted spot rate at which
Bank's principal office in Los Angeles offers to exchange such Alternate
Currency for Dollars at 9:00 A.M. (Los Angeles time) two Business Days prior to
the date on which such equivalent is to be determined. Except as specified in
Section 1.04, the equivalent in Dollars of each LIBOR Rate Advance made in an
Alternative Currency shall be recalculated hereunder on each date that it shall
be necessary to determine the unused portion of Bank's Line of Credit or any or
all Advance or Advances outstanding on such date.
2.14 Line Account:
(a) The Bank shall maintain on its books a record of account
in which the Bank shall make entries for each Advance and such other debits and
credits as shall be appropriate in connection with the Line of Credit (the "Line
Account"). The Bank shall provide the Borrower with a monthly statement of the
Borrower's Line Account, which statement shall be considered to be correct and
conclusively binding on the Borrower unless the Borrower notifies the Bank to
the contrary within 30 days after the Borrower's receipt of any such statement
which it deems to be incorrect.
(b) The Borrower hereby authorizes the Bank, if and to the
extent payment owed to the Bank under the Line of Credit is not made when due,
after giving effect to any grace period, to charge, from time to time, against
any or all of the Borrower's deposit accounts with the Bank any amount so due.
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2.15. Commitment Fee. Borrower agrees to pay to Bank a commitment fee
on the unused portion of the Line of Credit of .10% per annum, payable quarterly
in arrears, and computed on a year of 360 days for actual days elapsed.
SECTION III
LETTERS OF CREDIT AND FOREIGN EXCHANGE
3.01 Letters of Credit. The Bank agrees to issue stand-by and
commercial letters of credit (each a "Letter of Credit") in Dollars or in
Alternate Currency on behalf of the Borrower, provided, however, at no time
shall the total face amount of all Letters of Credit outstanding less any
partial draws paid by the Bank and not reimbursed by the Borrower exceed the sum
of $10,000,000.00 or the Dollar equivalent of $10,000,000 ("Letter of Credit
Sub-Facility") and provided further, at no time shall the total undrawn amount
of all Letters of Credit outstanding plus any partial draws paid by the Bank and
not reimbursed by the Borrower, together with the total principal amount of all
Advances outstanding exceed the Line of Credit or the Dollar equivalent of the
Line of Credit. Letters of Credit, if any, issued and outstanding as of the date
of this Agreement, shall be included as Letters of Credit under this
subfacility.
(a) Upon the Bank's request, the Borrower shall promptly pay
to the Bank issuance fees of .75% per annum for stand-by letters of credit and
such other fees omissions, costs and any out-of-pocket expenses charged or
incurred by the Bank with respect to any Letter of Credit.
(b) The commitment by the Bank to issue Letters of Credit
shall, unless earlier terminated in accordance with the terms of the Agreement,
automatically terminate on the Expiration Date and no Letter of Credit shall
expire on a date which is after the Expiration Date.
(c) Each Letter of Credit shall be in form and substance and
in favor of beneficiaries satisfactory to the Bank, provided that the Bank may
refuse to issue a Letter of Credit due to the nature of the transaction or its
terms or in connection with any transaction where the Bank, due to the
beneficiary or the nationality or residence of the beneficiary, would be
prohibited by any applicable law, regulation or order from issuing such Letter
of Credit.
(d) Prior to the issuance of each Letter of Credit but in no
event later than 9:00 a.m. (California time) on the day such Letter of Credit is
to be issued (which shall be a Business Day), the Borrower shall deliver to the
Bank International Department a duly executed form of the Bank's standard form
of application for issuance of letter of credit with proper insertions.
3.02 Increased Costs. The Borrower shall, upon the Bank's request,
promptly pay to and reimburse the Bank for all costs incurred and payments made
by the Bank by reason of any future assessment, reserve, deposit or similar
requirement or any surcharge, tax or fee imposed upon the Bank or as a result of
the Bank's compliance with any directive or requirement of any regulatory
authority pertaining or relating, to any Letter of Credit. Bank shall use its
best efforts to provide Borrower, in advance, with an estimate of any such costs
which may potentially be incurred hereunder.
3.03 Automatic Payment. In the event that Borrower fails to pay the any
drawing under any Letter of Credit on the same day as the relevant drawing, or
the balances in the depository
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account or accounts maintained by the Borrower with Bank are insufficient to pay
any draw when due, Bank shall, and Borrower hereby instructs Bank to, create an
Advance bearing interest at the Variable Rate provided herein to pay the
relevant drawing under any Letter of Credit.
3.04 Taxes:
(a) Any and all payments by the Borrower shall be made
hereunder free and clear of and without deduction for any and all present or
future taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, taxes imposed on the Bank's income,
and franchise taxes imposed on it, by the jurisdiction under the laws of which
Bank is organized or any political subdivision thereof (all such non-excluded
taxes, levies, imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes"). If Borrower shall be required by law to
deduct any Taxes from or in respect of any sum payable hereunder (i) the sum
payable shall be increased as may be necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 3.04) the Bank receives an amount equal to the sum it would have
received had no such deductions been made, (ii) Borrower shall make such
deductions and (iii) Borrower shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance with applicable law. Bank
shall use its best efforts to advise Borrower of any taxes or levies to the best
of Bank's knowledge thereof.
(b) In addition, Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any payment or registration of, or otherwise
with respect to, this Agreement (hereinafter referred to as "Other Taxes").
(c) Borrower will indemnify Bank for the full amount of Taxes
or Other Taxes (including, without limitation, any Taxes or Other Taxes imposed
by any jurisdiction on amounts payable under this Section 3.04) paid by Bank and
any liability (including penalties, interest and expenses) arising therefrom or
with respect thereto, other than liabilities arising from Bank's gross
negligence or willful misconduct, whether or not such Taxes or Other Taxes were
correctly or legally asserted. This indemnification shall be made within 30 days
from the date Bank makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the
Borrower will furnish to the Bank at its address referred to hereinbelow, the
original or a certified copy of a receipt evidencing payment thereof. If no
taxes are payable in respect of any payment hereunder, Borrower will furnish to
the Bank at such address, a certificate from each appropriate taxing authority,
or an opinion of counsel acceptable to the Bank, in either case stating that
such payment is exempt from or not subject to Taxes.
(c) To the extent that any Taxes were not lawfully payable,
any recovery ultimately received by the Bank in respect of any such Taxes shall
be refunded to the Borrower to the extent of the applicable indemnification
payment.
(f) Bank agrees that, upon receiving written notice from
Borrower, Bank shall take all such actions as are reasonably necessary to enable
the Borrower to pay all Taxes in a timely manner and to claim such exemptions as
the Bank may be entitled to claim in respect of all
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or any portion of any Taxes which are otherwise required to be paid or deducted
or withheld pursuant to this Section 3.04 in respect of any payments under this
Agreement.
(g) Without prejudice to the survival of any other agreement
of the Borrower hereunder, the agreements and obligations of the Borrower
contained in this Section 3.04 shall survive the payment in full of principal
and interest hereunder.
3.05 Foreign Exchange Sub-Facility. Borrower may from time to time
request Bank to purchase or sell foreign currency in a specified amount, at a
fixed price, and for delivery at a future date no greater than 365 days from the
date of purchase (each a "Foreign Exchange Contract"). At no time, however,
shall 15% of the aggregate settlement price of all Foreign Exchange Contracts
outstanding exceed $5,000,000 as determined by Bank at the time of entering into
each Foreign Exchange Contract ("Foreign Exchange Sub-Facility") and provided
further, at no time shall the total undrawn amount of all Letters of Credit
outstanding plus any partial draws paid by the Bank and not reimbursed by the
Borrower, together with 15% of the aggregate settlement price of all Foreign
Exchange Contracts outstanding and the total principal amount of all Advances
outstanding, exceed the Line of Credit.
A. Requests for Foreign Exchange Contracts. Each request for a
Foreign Exchange Contract shall be made by telephone or rapifax, confirmed in
writing (each a "Request"). Each Request shall be delivered or communicated to
the Bank no later than 3:00 p.m. (California time) on the day (which shall be a
Business Day) on which the Foreign Exchange Contract is requested. By making any
such Request, Borrower agrees that all matters relating to each such Foreign
Exchange Contract shall be governed by this Agreement and Borrower restates all
warranties and representations made by Borrower herein as if made on the date
the Foreign Exchange Contract is entered into.
B. Expiration Date. The commitment by the Bank to enter into
Foreign Exchange Contracts shall, unless earlier terminated in accordance with
this Agreement, automatically terminate on the Expiration Date and no Foreign
Exchange Contract shall expire on a date which is after the Expiration Date.
C. Availability. Bank may refuse to enter into a Foreign
Exchange Contract with the Borrower where the Bank, in its sole discretion,
determines that such foreign currency is unavailable, or where Bank would be
prohibited by any applicable law, regulation or order from purchasing such
foreign currency.
D. Purpose. The Foreign Exchange Contract shall be used to
hedge foreign exchange exposure and/or risk under purchase commitments with
overseas suppliers.
E. Payment. Payment is due on the settlement date of any
Foreign Exchange Contract (the "Payment Date"). Bank is hereby authorized by
Borrower to charge the full settlement price of any Foreign Exchange Contract
against the depository account or accounts maintained by the Borrower with Bank
on the Payment Date.
F. Assessments. Borrower shall, upon the Bank's request,
promptly pay to and reimburse the Bank for all costs incurred and payments made
by the Bank by reason of any assessment, reserve, deposit, capital maintenance
or similar requirement or any surcharge, tax or
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fee imposed upon the Bank or as a result of the Bank's compliance with any
directive or requirement of any regulatory authority pertaining or relating to
any Foreign Exchange Contract.
SECTION IV
CONDITIONS PRECEDENT
4.01 Conditions Precedent to First Advance. Prior to the first Advance
hereunder, the Borrower shall deliver or cause to be delivered to the Bank, in
form and substance satisfactory to the Bank:
a. Authority to Borrow. Evidence relating to the duly given
approval and authorization of the execution, delivery and performance of this
Agreement, all other documents, instruments and agreements required under this
Agreement and all other actions to be taken by the Borrower hereunder or
thereunder.
b. Loan Documents. The documents described herein, as
applicable, and all other documents, instruments and agreements required or
necessary to consummate the transactions contemplated under this Agreement
(collectively the "Loan Documents"), all fully executed.
c. Miscellaneous Documents. Such other documents and opinions
as the Bank may require with respect to the transactions described in this
Agreement.
4.02 Conditions Precedent to All Advances. The obligation of the Bank
to make each Advance (including the first Advance) is subject to the further
conditions precedent that, as of the date of each Advance and after the making
of such Advance:
a. Representations and Warranties. The representations and
warranties set forth in Section V hereof and in any other document, instrument,
agreement or certificate delivered to the Bank hereunder are true and correct.
b. Event of Default. No event has occurred and is continuing
which constitutes, or, with the lapse of time or giving of notice or both, would
constitute an Event of Default as defined in Section VII hereof.
For the purposes hereof, the Borrower's acceptance of the proceeds of
any Advance shall be deemed to constitute the Borrower's representation and
warranty that the statements set forth in sections 4.02(a) and 4.02(b) above are
true and correct.
SECTION V
REPRESENTATIONS AND WARRANTIES
The Borrower hereby makes the following representations and warranties
to the Bank, which representations and warranties are continuing:
5.01 Status. The Borrower is a corporation duly organized and validly
existing under the laws of the State of Delaware and is properly licensed,
qualified to do business and in good
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standing in, and, where necessary to maintain the Borrower's rights and
privileges, has complied with the fictitious name statute of every jurisdiction
in which the Borrower is doing business.
5.02 AUTHORITY. The execution, delivery and performance by the Borrower
of this Agreement and the Loan Documents have been duly authorized and do not
and will not: (i) violate any provision of any law, rule, regulation, writ,
judgment or injunction presently in effect affecting the Borrower; (ii) result
in a breach of or constitute a default under any material agreement to which the
Borrower is a party or by which it or its properties may be bound of affected;
(iii) require any consent or approval of its stockholders or violate any
provision of its articles of incorporation or by-laws.
5.03 LEGAL EFFECT. This Agreement constitutes, and any document,
instrument or agreement required hereunder when delivered will constitute,
legal, valid and binding obligations of the Borrower enforceable against the
Borrower in accordance with their respective terms.
5.04 FICTITIOUS TRADE STYLES. There are no fictitious trade styles used
by the Borrower in connection with its business operations. The Borrower shall
notify the Bank not less than 30 days prior to effecting any change in the
matters described herein or prior to using any other fictitious trade style at
any future date, indicating the trade style and state(s) of its use.
5.05 FINANCIAL STATEMENTS. All financial statements, information and
other data which may have been or which may hereafter be submitted by the
Borrower to the Bank are true, accurate and correct and have been or will be
prepared in accordance with generally accepted accounting principles
consistently applied and accurately represent the Borrower's financial condition
or, as applicable, the other information disclosed therein. Since the most
recent submission of any such financial statement, information or other data to
the Bank, the Borrower represents and warrants that no material adverse change
in the Borrower's financial condition or operations has occurred which has not
been fully disclosed to the Bank in writing.
5.06 LITIGATION. Except as have been disclosed to the Bank in writing,
there are no actions, suits or proceedings pending or, to the knowledge of the
Borrower, threatened against or affecting the Borrower or the Borrower's
properties before any court or administrative agency which, if determined
adversely to the Borrower, would have a material adverse effect on the
Borrower's financial condition or operations.
5.07 TITLE TO ASSETS; PERMITTED LIENS. The Borrower has good and
marketable title to all of its assets and the same are not subject to any
security interest, encumbrance, lien or claim of any third person other than:
(i) liens and security interests securing indebtedness owed by the Borrower to
the Bank; (ii) liens for taxes, assessments or similar charges either not yet
due or being duly contested in good faith; (iii) liens of mechanics,
materialmen, warehousemen or other like liens arising in the ordinary course of
business and securing obligations which are not yet delinquent; (iv) liens and
security interests which, as of the date of this Agreement, have been disclosed
to and approved by the Bank in writing; (v) purchase money liens or purchase
money security interests upon or in any property acquired or held by the
Borrower in the ordinary course of business to secure indebtedness outstanding
on the date hereof or permitted to be incurred hereunder; and (vi) those liens
and security interests which in the aggregate constitute an immaterial and
insignificant monetary amount with respect to the net value of the Borrower's
assets (collectively "Permitted Liens").
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<PAGE> 14
5.08 ERISA. If the Borrower has a pension, profit sharing or retirement
plan subject to the Employee Retirement Income Security Act of 1974, as amended
from time to time, including any rules and regulations promulgated thereunder
("ERISA"), such plan has been and will continue to be funded in accordance with
its terms and otherwise complies with and continues to comply with the
requirements of ERISA.
5.09 TAXES. The Borrower has filed all tax returns required to be filed
and paid all taxes shown thereon to be due, including interest and penalties,
other than taxes which are currently payable without penalty or interest or
those which are being duly contested in good faith.
5.10 ENVIRONMENTAL COMPLIANCE. The Borrower has implemented and
complied in all material respects with all applicable federal, state and local
laws, ordinances, statutes and regulations with respect to hazardous or toxic
wastes, substances or related materials, industrial hygiene or environmental
conditions. There are no suits, proceedings, claims or disputes pending or, to
the knowledge of the Borrower, threatened against or affecting the Borrower or
its property claiming violations of any federal, state or local law, ordinance,
statute or regulation relating to hazardous or toxic wastes, substances or
related materials.
SECTION VI
COVENANTS
The Borrower covenants and agrees that, during the term of this
Agreement, and so long thereafter as the Borrower is indebted to the Bank under
this Agreement, the Borrower shall, unless the Bank otherwise consents in
writing:
6.01 PRESERVATION OF EXISTENCE; COMPLIANCE WITH APPLICABLE LAWS.
Maintain and preserve its existence and all rights and privileges now enjoyed;
not liquidate or dissolve, merge or consolidate with or into, or acquire any
other business organization; and conduct its business in accordance with all
applicable laws, rules and regulations.
6.02 MAINTENANCE OF INSURANCE. Maintain insurance in such amounts and
covering such risks as is usually carried by companies engaged in similar
businesses and owning similar properties in the same general areas in which the
Borrower operates and maintain such other insurance and coverages as may be
required by the Bank. All such insurance shall be in form and amount and with
companies satisfactory to the Bank. Upon the Bank's request, the Borrower shall
furnish the Bank with the original policy or binder of all such insurance.
6.03 PAYMENT OF OBLIGATIONS AND TAXES. Make timely payment of all
assessments and taxes and all of its liabilities and obligations unless the same
are being contested in good faith.
6.04 INSPECTION RIGHTS. At any reasonable time and from time to time
permit the Bank or any representative thereof to examine and make copies of the
records and visit the properties of the Borrower and to discuss the business and
operations of the Borrower with any employee or representative thereof. If the
Borrower now or at any time hereafter maintains any records (including, but not
limited to, computer generated records and computer programs for the generation
of such records) in the possession of a third party, the Borrower hereby agrees
to notify such third party to permit the Bank free access to such records at all
reasonable times and to
PAGE 14
<PAGE> 15
provide the Bank with copies of any records it my request, all at the Borrower's
expense, the amount of which shall be payable immediately upon demand.
6.05 REPORTING REQUIREMENTS. Deliver or cause to be delivered to the
Bank in form and detail satisfactory to the Bank:
(a) ANNUAL STATEMENTS. Not later than 120 days after the end
of each of the Borrower's fiscal years, (i) a copy of the annual audited
financial report of the Borrower for such year, which report shall be prepared
by a firm of certified public accountants acceptable to Bank and (ii) the
Borrower's Securities Exchange Commission Form 10-K for such year and not later
than 60 days after the end of each of the Borrower's fiscal years, a copy of the
Borrower's financial projections for the succeeding year.
(b) INTERIM STATEMENTS. Not later than 45 days after the end
of each fiscal quarter, (i) the Borrower's consolidated and consolidating
financial statement as of the end of such quarter, and (ii) the Borrower's
Securities Exchange Commission Form 10-Q for such quarter, and (iii) a
certificate signed by the chief financial officer of the Borrower stating that
the representations and warranties contained herein and in any other document,
instrument or certificate delivered to the Bank hereunder are correct and that
no event has occurred and is continuing which constitutes, or, with the lapse of
time or giving of notice or both, would constitute an Event of Default
hereunder, substantially in the form attached hereto as Exhibit "A".
(c) OTHER INFORMATION. Promptly upon the Bank's request, such
other information pertaining to the Borrower or any Guarantor as the Bank nay
reasonably request.
6.06 PAYMENT OF DIVIDENDS. Not declare or pay any dividends on any
class of stock now or hereafter outstanding except dividends payable solely in
the Borrower's capital stock.
6.07 REDEMPTION OR REPURCHASE OF STOCK. Not redeem or repurchase any
class of the Borrower's stock now or hereafter outstanding except stock
repurchases of up to $600,000 in any one fiscal year.
6.08 ADDITIONAL INDEBTEDNESS. Not, after the date hereof, create, incur
or assume, directly or indirectly, any liability or indebtedness other than (i)
indebtedness owed or to be owed to the Bank or (ii) indebtedness to trade
creditors incurred in the ordinary course of the Borrower's business.
6.09 LOANS. Not make any loans or advances or extend credit to any
third person, including, but not limited to, directors, officers, shareholders,
partners, employees, affiliated entities or subsidiaries of the Borrower, except
for credit extended in the ordinary course of the Borrower's business as
presently conducted, except loans to affiliates of up to $10,000,000.
6.10 LIENS AND ENCUMBRANCES. Not create, assume or permit to exist any
security interest, encumbrance, mortgage, deed of trust or other lien including,
but not limited to, a lien of attachment, judgment or execution) affecting any
of the Borrower's properties, or execute or allow to be filed any financing
statement or continuation thereof affecting any such properties, except for
Permitted Liens and as otherwise provided in this Agreement.
PAGE 15
<PAGE> 16
6.11 TRANSFER ASSETS. Not sell, contract for sale, transfer, convey,
assign, lease or sublet any of its assets except in the ordinary course of
business as presently conducted by the Borrower, and then, only for full, fair
and reasonable consideration.
6.12 CHANGE IN THE NATURE OF BUSINESS. Not make any material change in
its financial structure or in the nature of its business as existing or
conducted as of the date of this Agreement.
6.13 FINANCIAL CONDITION. Maintain at all times:
(a) NET PROFIT. A minimum net profit of not less than $1.00 at
the end of each fiscal quarter.
(b) QUICK RATIO. A ratio of Liquid Assets to current
liabilities plus 120% of any outstanding Letters of Credit issued by Bank for
the account of Guarantor of not less than 1 to 1.
(c) EFFECTIVE TANGIBLE NET WORTH. A minimum Effective Tangible
Net Worth of at least $125,000,000 plus 75% of net profit after tax and 100% of
the proceeds of any public stock offerings at the end of each fiscal quarter.
(d) DEBT TO WORTH. A ratio of Debt to Effective Tangible Net
Worth of not more than 1.25 to 1.
6.14 CAPITAL EXPENSES. Not make any fixed capital expenditure or any
commitment therefor, including, but not limited to, incurring liability for uses
which would be, in accordance with generally accepted accounting principles,
reported as capital leases, or purchase any real or personal property in an
aggregate amount exceeding $15,000,000.00 in any one fiscal year.
6.15 NOTICES. Give prompt written notice to the Bank of any and all
Events of Default and litigation, arbitration or administrative proceedings to
which the Borrower is a party and in which the claim or liability exceeds
$250,000.00.
6.16 ENVIRONMENTAL COMPLIANCE. The Borrower shall:
(a) Implement and comply in all material respects with all
applicable federal, state and local laws, ordinances, statutes and regulations
with respect to hazardous or toxic wastes, substances or related materials,
industrial hygiene or to environmental conditions.
(b) Not own, use, generate, manufacture, store, handle, treat,
release or dispose of any hazardous or toxic wastes, substances or related
materials.
(c) Give prompt written notice of any discovery of or suit,
proceeding, claim, dispute, threat, inquiry or filing respecting hazardous or
toxic wastes, substances or related materials.
(d) At all times indemnify and hold harmless Bank from and
against any and all liability arising out of the use, generation, manufacture,
storage, handling, treatment, disposal or presence of hazardous or toxic wastes,
substances or related materials.
PAGE 16
<PAGE> 17
SECTION VII
EVENTS OF DEFAULT
Any one or more of the following described events shall constitute an
event of default (an "Event of Default") under this Agreement:
7.01 NON-PAYMENT. The Borrower shall fail to Pay any Payment Of
Principal or interest or any other sum referred to in this Agreement within 10
days of when due.
7.02 PERFORMANCE UNDER THIS AND OTHER AGREEMENTS. The Borrower shall
fail in any material respect to perform or observe any term, covenant or
agreement contained in this Agreement or in any document, instrument or
agreement evidencing or relating to any indebtedness of the Borrower (whether
owed to the Bank or third persons), and any such failure (exclusive of the
payment of money to the Bank under this Agreement or under any other document,
instrument or agreement, which failure shall constitute and be an immediate
Event of Default if not paid when due or when demanded to be due) shall continue
for more than 30 days after written notice from the Bank to the Borrower of the
existence and character of such Event of Default.
7.03 REPRESENTATIONS AND WARRANTIES; FINANCIAL STATEMENTS. Any
representation or warranty made by the Borrower under or in connection with this
Agreement or any financial statement given by the Borrower or any Guarantor
shall prove to have been incorrect in any material respect when made or given or
when deemed to have been made or given.
7.04 INSOLVENCY. The Borrower or any Guarantor shall: (i) become
insolvent or be unable to pay its debts as they mature; (ii) make an assignment
for the benefit of creditors or to an agent authorized to liquidate any
substantial amount of its properties or assets; (iii) file a voluntary petition
in bankruptcy or seeking reorganization or to effect a plan or other arrangement
with creditors; (iv) file an answer admitting the material allegations of an
involuntary petition relating to bankruptcy or reorganization or join in any
such petition; (v) become or be adjudicated a bankrupt; (vi) apply for or
consent to the appointment of, or consent that an order be made, appointing any
receiver, custodian or trustee for itself or any of its properties, assets or
businesses; or (vii) any receiver, custodian or trustee shall have been
appointed for all or a substantial part of its properties, assets or businesses
and shall not be discharged within 30 days after the date of such appointment.
7.05 EXECUTION. Any writ of execution or attachment or any judgment
lien shall be issued against any property of the Borrower and shall not be
discharged or bonded against or released within 30 days after the issuance or
attachment of such writ or lien.
7.06 REVOCATION OR LIMITATION OF GUARANTY. Any Guaranty shall be
revoked or limited or its enforceability or validity shall be contested by any
Guarantor, by operation of law, legal proceeding or otherwise or any Guarantor
who is a natural person shall die.
7.07 SUSPENSION. The Borrower shall voluntarily suspend the
transaction of business or allow to be suspended, terminated, revoked or expired
any permit, license or approval of any governmental body necessary to conduct
the Borrower's business as now conducted.
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<PAGE> 18
7.08 Change in Ownership. There shall occur a We or transfer to
(whether voluntary or involuntary), or an agreement shall be entered into to do
so with, any Person or group of Persons (as such terms are defined pursuant to
Federal securities laws) who would own more than 20% of the issued and
outstanding capital stock of the Borrower and, as a result thereof, such Person
or group of Persons has the ability to direct or cause the direction of the
management and policies of the Borrower.
SECTION VIII
REMEDIES ON DEFAULT
Upon the occurrence of any Event of Default, the Bank may, at its sole
election, without demand and upon only such notice as may be required by law:
8.01 ACCELERATION. Declare any or all of the Borrower's indebtedness
owing to the Bank, whether under this Agreement or under any other document,
instrument or agreement, immediately due and payable, whether or not otherwise
due and payable.
8.02 CEASE EXTENDING CREDIT. Cease making Advances or otherwise
extending credit to or for the account of the Borrower under this Agreement or
under any other agreement now existing or hereafter entered into between the
Borrower and the Bank.
8.03 TERMINATION. Terminate this Agreement as to any future obligation
of the Bank without affecting the Borrower's obligations to the Bank or the
Bank's rights and remedies under this Agreement or under any other document,
instrument or agreement.
8.04 LETTERS OF CREDIT: The Bank may, at its sole and absolute
discretion and in addition to any other remedies available to it hereunder,
require the Borrower to pay immediately to the Bank, for prompt application
against drawings under any outstanding Letters of Credit and the outstanding
principal amount of any such Letters of Credit which have not expired. Any
portion of the amount so paid to the Bank which is not promptly applied to
satisfy draws under any such Letters of Credit or any other obligations of the
Borrower to the Bank shall be repaid to the Borrower without interest.
8.05 NON-EXCLUSIVITY OF REMEDIES. Exercise one or more of the Bank's
rights set forth herein or seek such other Tights or pursue such other remedies
as may be provided by law, in equity or in any other agreement now existing or
hereafter entered into between the Borrower and the Bank, or otherwise.
SECTION IX
MISCELLANEOUS PROVISIONS
9.01 AMOUNTS PAYABLE ON DEMAND. If the Borrower fails to pay on demand
any amount so payable under this Agreement, the Bank may, at its option and
without any obligation to do so and without waiving any default occasioned by
the Borrower's failure to pay such amount, create an Advance in an amount equal
to the amount so payable, which Advance shall thereafter bear interest as
provided under the Line of Credit.
PAGE 18
<PAGE> 19
9.02 DEFAULT INTEREST RATE. if an Event of Default, or an event which,
with notice or passage of time could become an Event of Default has occurred or
is continuing, the Borrower shall pay to the Bank interest on any indebtedness
or amount payable under this Agreement at a rate which is 3% in excess of the
rate or rates then in effect under this Agreement.
9.03 ACCOUNTING AND OTHER TERMS. All references to financial
statements, assets, liabilities and similar accounting term not specifically
defined in this Agreement shall mean such financial statements prepared and such
terms determined in accordance with generally accepted accounting principles
consistently applied. Except where otherwise specified in this Agreement, all
financial data submitted or to be submitted to the Bank pursuant to this
Agreement shall be prepared in accordance with generally accepted accounting
principles consistently applied. Terms not otherwise defined in this Agreement
shall have the meanings attributed to such terms in the California Uniform
Commercial Code.
9.04 RELIANCE. Each warranty, representation, covenant and agreement
contained in this Agreement shall be conclusively presumed to have been relied
upon by the Bank regardless of any investigation made or information possessed
by the Bank and shall be cumulative and in addition to any other warranties,
representations, covenants or agreements which the Borrower shall now or
hereafter give, or cause to be given, to the Bank.
9.05 ATTORNEY'S FEES. Borrower shall pay to the Bank all costs and
expenses, including but not limited to reasonable attorneys fees, incurred by
Bank in connection with the administration, enforcement, or any refinancing or
restructuring in the nature of a "work-out", of this Agreement or any document,
instrument or agreement executed with respect to, evidencing or securing the
indebtedness hereunder.
9.06 NOTICES. All notices, payments, requests, information and demands
which either party hereto may desire, or may be required to give or make to the
other party shall be given or made to such party by hand delivery or through
deposit in the United States mail, postage prepaid, or by Western Union
telegram, addressed to the address set forth below such party's signature to
this Agreement or to such other address as may be specified from time to time in
writing by either party to the other.
9.07 WAIVER. Neither the failure nor delay by the Bank in exercising
any right hereunder or under any document, instrument or agreement mentioned
herein shall operate as a waiver thereof, nor shall any single or partial
exercise of any right hereunder or under any document, instrument or agreement
mentioned herein preclude other or further exercise thereof or the exercise of
any other Tight; nor shall any waiver of any right or default hereunder or under
any other document, instrument or agreement mentioned herein constitute a waiver
of any other right or default or constitute a waiver of any other default of the
same or any other term or provision.
9.08 CONFLICTING PROVISIONS. To the extent that any of the terms or
provisions contained in this Agreement am inconsistent with those contained in
any other document, instrument or agreement executed pursuant hereto, the terms
and provisions contained herein shall control. Otherwise, such provisions shall
be considered cumulative.
9.09 BINDING EFFECT; ASSIGNMENT. This Agreement shall be binding upon
and inure to the benefit of the Borrower and the Bank and their respective
successors and assigns, except that
PAGE 19
<PAGE> 20
the Borrower shall not have the right to assign its rights hereunder or any
interest herein without the Bank's prior written consent. The Bank may sell,
assign or grant participations in all or any portion of its rights and benefits
hereunder. The Borrower agrees that, in connection with any such sale, grant or
assignment, the Bank may deliver to the prospective buyer, participant or
assignee financial statements and other relevant information relating to the
Borrower.
9.10 JURISDICTION. This Agreement, any notes issued hereunder, and any
documents, instruments or agreements mentioned or referred to herein shall be
governed by and construed according to the laws of the State of California, to
the jurisdiction of whose courts the parties hereby submit.
9.11 DISPUTE RESOLUTION. It is understood and agreed that upon the
request of any party to this agreement any dispute, claim, or controversy of any
kind, whether in contract or in tort, statutory or common law, legal or
equitable now existing or hereinafter arising between the parties in any way
arising out of, pertaining to or in connection with: (1) this Agreement, or any
related agreements, documents, or instruments, (2) all past and present loans,
credits, accounts, deposit accounts (whether demand deposits or time deposits),
safe deposit boxes, safekeeping agreements, guarantees, letters of credit, goods
or services, or other transactions, contracts or agreements of any kind, (3) any
incidents, omissions, acts, practices, or occurrences causing injury to either
party whereby the other party or its agents, employees or representatives may be
liable, in whole or in part, or (4) any aspect of the past or present
relationships of the parties, shall be resolved through a two-step dispute
resolution process administered by Judicial Arbitration & Mediation Services,
Inc. ("J-A-M-S") as follows:
(a) Step I - MEDIATION: At the request of any party to the
dispute, claim or controversy of the matter shall be referred to the
nearest office of J-A-M-S for mediation, that is, an informal,
non-binding conference or conferences between the parties in which a
retired judge or justice for the J-A-M-S panel will seek to guide the
parties to a resolution of the case.
(b) Step II - UNSECURED CONTRACTS - ARBITRATION: Should any
dispute, claim or controversy remain unresolved at the conclusion of
the Step I Mediation Phase then all such remaining matters shall be
resolved by final and binding arbitration before a different judicial
panelist, unless the parties shall agree to have the mediator panelist
act as arbitrator. The hearing shall be conducted at a location
determined by the arbitrator in San Jose County and shall be
administered by and in accordance with the then existing Rules of
Practice and Procedure of Judicial Arbitration & Mediation Services,
Inc., and judgement upon any award rendered by the arbitrator may be
entered by any State or Federal Court having jurisdiction thereof. The
arbitrator shall determine which is the prevailing party and shall
include in the award that party's reasonable attorneys fees and costs.
This subparagraph (b) shall apply only if, at the time of the
submission of the matter to J-A-M-S, the dispute(s) or issue(s)
do(es) not arise out of a transaction(s) which is/are secured by real
property collateral or, if so secured, all parties consent to such
submission.
As soon as practicable after selection of the arbitrator, the
arbitrator or his/her designated representative shall determine a
reasonable estimate of anticipated fees and costs of the Arbitrator,
and render a statement to each party setting forth that party's
pro-rata share of said-fees and costs. Thereafter each party shall,
within 10 days of receipt of said
PAGE 20
<PAGE> 21
statement, deposit said sum with the Arbitrator. Failure of any Party
to make such a deposit shall result in a forfeiture by the
non-depositing party of the right to prosecute or defend the claim
which is the subject of the arbitration, but shall not otherwise serve
to abate, stay or suspend the arbitration proceedings.
(c) PROVISIONAL REMEDIES, SELF HELP AND FORECLOSURE: No
provision of, or the exercise of any right(s) under subparagraph (b),
nor any other provision of this Dispute Resolution Provision, shall
limit the right of any party to exercise self help remedies such as set
off, to foreclose against any real or personal property collateral, or
obtain provisional or ancillary remedies such as injunctive relief or
the appointment of a receiver from any court having jurisdiction
before, during or after the pendency of any arbitration. At Bank's
option, foreclosure under a deed of trust or mortgage may be
accomplished either by exercise of power of sale under the deed of
trust or mortgage, or by judicial foreclosure. The institution and
maintenance of an action for provisional remedies pursuit of
provisional or ancillary remedies or exercise of self help remedies
shall not constitute a waiver of the right of any party, including the
plaintiff, to submit the controversy or claim to arbitration.
9.12 Waiver of Jury Trial. THE BORROWER AND THE BANK EACH WAIVE THEIR
RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON
OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR OTHER
LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR
PARTIES, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. THE
BORROWER AND THE BANK EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE
TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE
PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED
BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING
WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF
THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF.
THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
9.13 JUDGMENT CURRENCY: If for the purposes of obtaining judgment in
an), court it is necessary to convert a sum due hereunder in any currency (the
"Original Currency") into another currency (the "Other Currency") the parties
hereto agree, to the fullest extent that they may effectively do so, that the
rate of exchange used shall be that at which in accordance with normal banking
procedures the Bank could purchase the Original Currency with the Other Currency
at Los Angeles on the second Business Day preceding that on which final judgment
is given.
The obligation of the Borrower in respect of any sum due in
the Original Currency from it to Bank shall, notwithstanding any judgment in any
Other Currency, be discharged only to the extent that on the Business Day
following receipt by Bank of any sum adjudged to be so due in such Other
Currency Bank may in accordance with normal banking procedures purchase Dollars
with such Other Currency; if the amount of the Original Currency so purchased is
less than the sum originally due to the Bank, the Borrower agrees, as a separate
obligation and notwithstanding
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<PAGE> 22
any such judgment, to indemnify Bank against such loss, and if the amount of the
Original Currency so purchased exceeds the sum originally due to Bank in the
Original Currency, Bank agrees to remit to Borrower such excess.
9.14 HEADINGS. The headings set forth herein art solely for the purpose
of identification and have no legal significance.
9.15 ENTIRE AGREEMENT. This Agreement and the Loan Documents shall
constitute the entire and complete understanding of the parties with respect to
the transactions contemplated hereunder. All previous conversations, memoranda
and writings between the parties or pertaining to the transactions contemplated
hereunder that are not incorporate, or referenced in this Agreement or the Loan
Documents are superseded hereby.
IN WITNESS WHEREOF, this Agreement has been executed by the parties
hereto as of the date first hereinabove written.
BANK: BORROWER:
SANWA BANK CALIFORNIA DIAMOND MULTIMEDIA SYSTEMS, INC.
By: /s/ CLIFFORD M. WALLACE By: /s/ JAMES M. WALKER
------------------------- ------------------------------
Name: CLIFFORD M. WALLACE Name: JAMES M. WALKER
Title: VICE PRESIDENT Title: SENIOR VICE PRESIDENT AND CFO
By: /s/ RONALD R. MATSUSHIMA
------------------------------
Name: RONALD R. MATSUSHIMA
Title: CORPORATE TREASURER
PAGE 22
<PAGE> 23
EXHIBIT "A"
TO: SANWA BANK CALIFORNIA (THE "BANK")
This Certificate is given as of the _____ day of ________, 199__,
pursuant to Section 6 of that certain Line of Credit Agreement between the
undersigned (the undersigned is herein referred to as "Borrower") and the Bank
dated as of March ________, 1997 (the "Agreement"). Capitalized terms used
herein shall have the same meanings attributed to such terms in the Agreement.
The Borrower hereby certifies that:
1. No Event of Default exists and no event has occurred and is
continuing which constitutes or, with the lapse of time or giving of
notice or both, would constitute an Event of Default.
2. The Borrower is in compliance with each of the covenants contained
in Section 6 of the Agreement.
3. Each of the representations and warranties contained in Section 5 of
the Agreement are true and correct as of the date of this certificate.
4. Set forth below are the calculations used to determine compliance
with certain covenants contained in the Agreement:
(a)
(b)
(c)
In the event that paragraph 2, 3, or 4 hereof is incorrect, specify the
default below, along with an explanation of the factors leading to the default
and the action taken by management to correct the default within the time
indicated:
(i)
(ii)
BORROWER:
DIAMOND MULTIMEDIA SYSTEMS, INC.
By:__________________________________
Name/Title:__________________________
PAGE 23
<PAGE> 1
EXHIBIT 11.1
DIAMOND MULTIMEDIA SYSTEMS, INC.
STATEMENT REGARDING COMPUTATION OF NET INCOME (LOSS) PER SHARE
(in thousands, except per share data)
<TABLE>
<CAPTION>
THREE MONTHS ENDED SIX MONTHS ENDED
JUNE 30, JUNE 30,
1997 1996 1997 1996
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Weighted average common shares outstanding for period 34,254 34,328 34,217 34,440
Dilutive employee stock options - - - 671
-------- -------- -------- --------
Shares used in per share calculations 34,254 34,328 34,217 35,111
======== ======== ======== ========
Net income (loss) ($44,109) ($ 4,790) ($50,060) $ 6,404
======== ======== ======== ========
Net income (loss) per share ($ 1.29) ($ 0.14) ($ 1.46) $ 0.18
======== ======== ======== ========
</TABLE>
The difference between the calculation of net income (loss) per share calculated
on the primary and fully diluted basis is not material.
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1000
<S> <C>
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0
0
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</TABLE>
