<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 1, 1997.
REGISTRATION NO. 333-34825
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 2
TO
FORM SB-2/A
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
DELTAPOINT, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
CALIFORNIA 7372 77-0216760
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of Classification Code Number) Identification
incorporation or organization) Number)
</TABLE>
------------------------------
22 LOWER RAGSDALE DRIVE
MONTEREY, CALIFORNIA 93940
(408) 648-4000
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
------------------------------
JEFFREY F. AIT
CHIEF EXECUTIVE OFFICER
DELTAPOINT, INC.
22 LOWER RAGSDALE DRIVE
MONTEREY, CALIFORNIA 93940
(408) 648-4000
(Name, address, including zip code, and telephone number,
including area code, of agent for service of process)
------------------------------
COPIES TO:
<TABLE>
<S> <C>
JEFFREY D. SAPER, ESQ. THOMAS J. POLETTI, ESQ.
KURT J. BERNEY, ESQ. KATHERINE J. BLAIR, ESQ.
Wilson Sonsini Goodrich & Rosati Freshman, Marantz, Orlanski, Cooper &
650 Page Mill Road Klein
Palo Alto, California 94304-1050 9100 Wilshire Boulevard
(415) 493-9300 Beverly Hills, California 90212-3480
Facsimile: (415) 493-6811 (310) 273-1870
Facsimile: (310) 274-8293
</TABLE>
------------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
AS SOON AS PRACTICABLE AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box: /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE PER
SECURITIES TO BE REGISTERED REGISTERED SECURITY(1)
<S> <C> <C>
Common Stock, $0.001 par value(2)................................... 3,680,000 shares $2.625
Underwriter's Warrant(3)............................................ 1 warrant $5.00
Common Stock issuable upon exercise of Underwriter's Warrant(4)..... 320,000 shares $2.625
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
Totals.............................................................. -- --
<CAPTION>
PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED PRICE(2) REGISTRATION FEE
<S> <C> <C>
Common Stock, $0.001 par value(2)................................... $9,660,000 2,928.00
Underwriter's Warrant(3)............................................ $5.00 --
Common Stock issuable upon exercise of Underwriter's Warrant(4)..... $840,000 255.00
- --------------------------------------------------------------------
- --------------------------------------------------------------------
Totals.............................................................. $10,500,005 $3,183.00(5)
</TABLE>
(1) Based on an assumed offering price of $2.625 per share.
(2) Includes 480,000 shares which the Underwriter has the option to purchase to
cover over-allotments, if any.
(3) In connection with the Registrant's sale of Common Stock, the Registrant is
granting to the Underwriter a warrant to purchase 320,000 shares of Common
Stock (the "Underwriter's Warrant"). The price to be paid by the Underwriter
for the Underwriter's Warrant is $5.00.
(4) The exercise price of the Underwriter's Warrant is expected to be $3.675 per
share of Common Stock. Such shares are being registered for resale by the
Underwriter and its assigns and transferees on a delayed or continuous basis
pursuant to Rule 415 under the Securities Act of 1933.
(5) $872 is paid herewith. A fee of $2,311.00 has previously been paid.
------------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
SUBJECT TO COMPLETION, DATED SEPTEMBER 26, 1997
3,200,000 SHARES
DELTAPOINT, INC.
COMMON STOCK
All of the shares of Common Stock, par value $0.001 ("Common Stock") offered
hereby are being sold by DeltaPoint, Inc., a California corporation (the
"Company"). The Common Stock is traded on the OTC Bulletin Board under the
symbol "DTPT" and on the Pacific Exchange under the symbol "DTP.P." On September
22, 1997, the reported last sale price of the Common Stock on the OTC Bulletin
Board was $2.625 per share. See "Price Range of Common Stock."
------------------------
THE SHARES OF COMMON STOCK OFFERED HEREBY INVOLVE A HIGH DEGREE OF RISK AND
SHOULD BE CONSIDERED ONLY BY INVESTORS WHO CAN AFFORD THE LOSS OF THEIR ENTIRE
INVESTMENT. SEE "RISK FACTORS"
BEGINNING ON PAGE 10.
---------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
<TABLE>
<CAPTION>
PRICE UNDERWRITING
TO DISCOUNTS AND PROCEEDS
PUBLIC COMMISSIONS(1) TO COMPANY(2)
<S> <C> <C> <C>
Per Share................................................ $ $ $
Total (3)................................................ $ $ $
</TABLE>
(1) Does not include additional compensation to be received by the Underwriter
in the form of (i) a non-accountable expense allowance of $252,000, assuming
a public offering price of $2.625 per share (or $289,800 if the
Underwriter's over-allotment option described in footnote (3) is exercised
in full) and, (ii) a warrant to purchase up to 320,000 shares of Common
Stock at $3.675 per share, assuming a public offering price of $2.625 per
share, exercisable over a period of four years, commencing one year from the
date of this Prospectus (the "Underwriter's Warrant"). The Company has
agreed to indemnify the Underwriter against certain civil liabilities under
the Securities Act of 1933. See "Underwriting."
(2) Before deducting expenses of the offering payable by the Company, estimated
at $685,000.
(3) The Company has granted the Underwriter an option, exercisable within 30
business days of the date of this Prospectus, to purchase up to 480,000
additional shares of Common Stock on the same terms and conditions as set
forth above to cover over-allotments, if any. If all such additional shares
of Common Stock are purchased, the total Price to Public, Underwriting
Discounts and Commissions and Proceeds to Company will be increased to
$ , $ and $ , respectively. See "Underwriting."
------------------------
The shares of Common Stock offered hereby will be offered on a "firm
commitment" basis by the Underwriter when, as and if delivered to and accepted
by the Underwriter, and subject to prior sale, withdrawal or cancellation of the
offer without notice. It is expected that delivery of the certificates
representing the shares of Common Stock will be made at the offices of H.J.
Meyers & Co., Inc., 1895 Mt. Hope Avenue, Rochester, New York 15620 on or about
, 1997.
H.J. MEYERS & CO., INC.
THE DATE OF THIS PROSPECTUS IS , 1997
<PAGE>
Inside Front Cover Artwork
[Graphic chart inserted here reciting DeltaPoint's mission statement to be a
leading provider of scalable web site development and management solutions for
Web based business environments and describing how DeltaPoint sells and markets
its products. There is also a depiction of the name and logo of Site
Technologies.]
- --------------------------------------------------------------------------------
Inside Back Cover Artwork
[Picture inserted here highlights the name and logo of two DeltaPoint products,
QuickSite ("The Fastest Way to Create, Manage, & Sell on the Web") and
SiteSweeper ("Quality Control for the Web Professional"), through the respective
depictions of a web page with the title "Make Money on the Web" and a brochure
with the title "Quality Summary." There is also a depiction of the name and logo
of Site Technologies.]
CERTAIN PERSONS PARTICIPATING IN THIS OFFERING MAY ENGAGE IN TRANSACTIONS THAT
STABILIZE, MAINTAIN OR OTHERWISE AFFECT THE PRICE OF THE COMMON STOCK, INCLUDING
STABILIZING BIDS OR COVERING TRANSACTIONS. FOR A DISCUSSION OF THESE ACTIVITIES,
SEE "UNDERWRITING."
The Company furnishes to its shareholders annual reports containing financial
statements audited by an independent accounting firm and quarterly reports for
the first three quarters of each fiscal year containing unaudited financial
information.
<PAGE>
SUMMARY
THE FOLLOWING SUMMARY IS QUALIFIED IN ITS ENTIRETY BY THE MORE DETAILED
INFORMATION, INCLUDING "RISK FACTORS" AND FINANCIAL STATEMENTS AND NOTES
THERETO, APPEARING ELSEWHERE IN THIS PROSPECTUS. EACH PROSPECTIVE INVESTOR IS
URGED TO READ THIS PROSPECTUS IN ITS ENTIRETY. THIS PROSPECTUS CONTAINS
FORWARD-LOOKING STATEMENTS THAT INVOLVE RISKS AND UNCERTAINTIES. THE COMPANY'S
ACTUAL RESULTS COULD DIFFER MATERIALLY FROM THOSE ANTICIPATED IN THESE
FORWARD-LOOKING STATEMENTS AS A RESULT OF CERTAIN FACTORS IN "RISK FACTORS" AND
ELSEWHERE IN THIS PROSPECTUS.
THE COMPANY
DeltaPoint, Inc. ("DeltaPoint" or the "Company") currently develops and
markets Internet software products designed to enable individuals and Small
Office/Home Office ("SOHO") professionals to effectively and easily create,
manage and enhance Web sites on the Internet's World Wide Web (the "Web" or
"WWW"). The use of Web sites by small to medium businesses ("SMBs") and
enterprise departments has recently emerged into a critical business application
that provides greater sales and marketing reach and allows these businesses to
grow faster and more cost effectively. To capitalize on the emerging
opportunities in the SMB and enterprise department user markets for scalable Web
site development and management software solutions, the Company intends to
broaden its product offerings to include a family of products designed to enable
these users, in addition to individuals and SOHO professionals, to develop,
manage, integrate, deploy and maintain next-generation Web sites. The Company's
objective is to become a leading provider of scalable Web site development and
management software solutions for Web based business environments.
The Company introduced QuickSite 1.0 in February 1996 to enable individuals
and SOHO professionals to rapidly create, manage and enhance robust Internet Web
sites. Since its introduction, the Company has received a number of industry
analyst awards for QuickSite 1.0's management capabilities and database
architecture (including the PC Week Analyst's Choice Award, PC Week Labs IT
Excellence Award and PC Computing 5 Star Rating) and has successfully sold this
product through its distribution channels (including certain original equipment
manufacturers ("OEMs") with whom the Company has a strategic relationship, such
as Sony and Compaq Computer). In September 1996, the Company introduced
QuickSite 2.0 targeted at Web site developers. QuickSite 2.0 received the PC
Computing 5 Star Rating.
In February 1997, the Company introduced QuickSite 2.5, its second
generation Web site development and management solution targeted at individuals,
SOHO professionals and SMBs seeking to conduct electronic commerce over the
Internet. In addition to the features incorporated in QuickSite 1.0, QuickSite
2.5, which began shipping in May 1997, includes advanced features such as a
WYSIWYG++ (What You See Is What You Get) layout editor, an electronic commerce
enabled catalogue builder and an enhanced HTML (hypertext markup language)
editor. The Company has distributed QuickSite 2.5 through its distribution
channels (including OEMs such as MacMillan Press and Anawave, Inc.). QuickSite
2.5 has received numerous industry awards including the ZD Online Internet
Editor's Choice Award, InfoWorld High-Point Award, and Entrepreneur Magazine 4
out of 4 rating.
In April 1997, the Company announced its intent to acquire certain
proprietary core technology from Inlet, Inc. ("Inlet," with such transaction
being referred to herein as the "Inlet Technology Acquisition"). This technology
is intended to serve as the basis for the Company's planned client/server,
multi-authoring, dynamic site development and management products, the first of
which is planned for release in the fourth quarter of 1997, at the earliest. In
July 1997, the Company acquired Site/technologies/inc. ("Site", with such
transaction being referred to herein as the "Site Tech Acquisition") pursuant to
which the Company acquired, among other things, SiteSweeper 1.0, a Web site
quality control and maintenance product. The Company is currently developing
SiteSweeper 2.0, which is being designed to enable Web development and
management professionals to maintain the quality and integrity of mission
critical Web based business environments. The Company is planning to introduce
SiteSweeper 2.0 in the third quarter of 1997, at the
3
<PAGE>
earliest. The Company intends to enhance and incorporate the core technologies
acquired in the above acquisitions into its planned family of scalable Web site
development and management software solutions.
As part of the Company's continuing strategy to focus its development, sales
and marketing efforts on Internet software products, on June 27, 1997, the
Company consummated the sale of its DeltaGraph charting and graphics product
line (the "DeltaGraph Disposition") to SPSS, Inc. ("SPSS"). Additionally, the
Company intends to change the name under which the company does business to
SiteTechnologies Inc. or a similar name to more accurately represent the
Company's business focus.
DeltaPoint and Site/technologies are registered trademarks of the Company
and QuickSite, SiteTechnologies, WebAnimator and Web Tools are or may be
trademarks of the Company. All other product, brand or trade names are
trademarks or registered trademarks of their respective owners.
The Company was incorporated in California in 1989, its headquarters are
currently located at 22 Lower Ragsdale Drive, Monterey, California, and its
telephone number is (408) 648-4000. The Company currently plans to move its
headquarters to 380 El Pueblo, Scotts Valley, California on or about October 15,
1997.
------------------------
RISK FACTORS
The shares of Common Stock offered hereby involve a high degree of risk and
should be considered only by persons who can afford the loss of their entire
investment. See "Risk Factors" beginning on page 10.
------------------------
NOTICE TO CALIFORNIA AND OREGON INVESTORS
EACH PURCHASER OF SHARES OF COMMON STOCK IN CALIFORNIA AND OREGON MUST MEET
ONE OF THE FOLLOWING SUITABILITY STANDARDS: (i) A LIQUID NET WORTH (EXCLUDING
HOME, FURNISHINGS AND AUTOMOBILES) OF $250,000 OR MORE AND GROSS ANNUAL INCOME
DURING 1996 AND ESTIMATED DURING 1997 OF $65,000 OR MORE FROM ALL SOURCES; OR
(ii) A LIQUID NET WORTH (EXCLUDING HOME, FURNISHINGS AND AUTOMOBILES) OF
$500,000 OR MORE. EACH CALIFORNIA AND OREGON RESIDENT PURCHASING SHARES OF
COMMON STOCK OFFERED HEREBY WILL BE REQUIRED TO EXECUTE A REPRESENTATION THAT IT
COMES WITHIN ONE OF THE AFOREMENTIONED CATEGORIES.
4
<PAGE>
SUMMARY FINANCIAL DATA
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31, SIX MONTHS ENDED JUNE 30,
-------------------------- --------------------------
1995 1996 1996 1996 1997 1997
------- ------- -------- ------- ------- --------
PRO PRO
ACTUAL FORMA(2) ACTUAL FORMA(2)
---------------- -------- ---------------- --------
(UNAUDITED)
<S> <C> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA(3):
Net revenues.............................................. $ 4,043 $ 4,950 $ 1,911 $ 1,893 $ 1,495 $ 865
Gross profit.............................................. 2,706 3,769 1,385 1,272 1,025 582
Loss from operations...................................... (2,486) (4,922) (7,647) (2,828) (3,042) (3,494)
Net loss.................................................. $(2,632) $(4,848) $(7,531) $(2,789) $(3,088) $(4,348)
Net loss per share(1)..................................... $ (2.42) $ (2.17) $ (2.71) $ (1.27) $ (1.20) $ (1.39)
Shares used to compute net loss per share(1).............. 1,086 2,231 2,781 2,193 2,571 3,121
</TABLE>
<TABLE>
<CAPTION>
JUNE 30, 1997
DECEMBER 31, --------------------------
1996 ACTUAL AS ADJUSTED(3)
------------ ---------- --------------
<S> <C> <C> <C>
BALANCE SHEET DATA:
Cash and cash equivalents............................................. $ 3,142 $ 1,211 7,775
Working capital....................................................... 431 134 6,548
Total assets.......................................................... 6,346 3,114 9,655
Long Term Debt........................................................ -- -- 350
Accumulated deficit................................................... (13,666) (16,754) (19,024)
Total shareholders' equity............................................ $ 1,041 $ 623 6,779
</TABLE>
- ------------------------
(1) For an explanation of the number of shares used to compute net loss per
share, see Note 1 of Notes to Financial Statements.
(2) On June 27, 1997, the Company consummated the DeltaGraph Disposition with an
effective date of May 1, 1997. On July 11, 1997, the Company consummated the
Site Tech Acquisition. The Pro Forma Condensed Statement of Operations Data
for the year ended December 31, 1996 and the six months ended June 30, 1997
give effect to the DeltaGraph Disposition and the Site Tech Acquisition as
if such transaction had occurred on January 1, 1996. See "Corporate
Developments" and "Unaudited Pro Forma Financial Information".
(3) The "As Adjusted" Balance Sheet Data gives effect to (i) the consummation of
the Offering at an assumed offering price of $2.625 per share (providing
approximately $8,400,000 million in cash) less applicable underwriting
discounts and commissions and net of other offering expenses and the
application of proceeds therefrom; (ii) the consummated Site Tech
Acquisition as if the transaction occured on June 30, 1997; (iii) the
proposed Inlet Technology Acquisition which provides for the issuance of
360,000 shares of Common Stock with an aggregate fair value of $945,000 (at
an assumed price per share of $2.625), the payment of $475,000 at the
closing ($350,000 payable in cash and prepayments of $125,000 included in
working capital) and the payment of an additional $350,000 payable with
interest, at the Company's option, on the first anniversary of the closing
of the acquisition or in four quarterly payments commencing on the first
anniversary of the closing of the acquisition and a resulting aggregate
maximum in-process research and development charge to operations of
$1,770,000; and (iv) the issuance of 1,259,479 shares of Common Stock issued
in the conversion of the Company's Series A Preferred Stock ("Series A
Preferred Stock") and 6% Convertible Subordinated Debentures ("Convertible
Notes") outstanding at June 30, 1997 at an average conversion price of $1.24
per share of Common Stock. See "Corporate Developments," "Description of
Capital Stock--Preferred Stock and Convertible Notes," "Unaudited Pro Forma
Financial Information," "Unaudited Pro Forma Financial Information" and "Use
of Proceeds."
5
<PAGE>
THE OFFERING
<TABLE>
<S> <C>
Common Stock Offered by the Company....................... 3,200,000
Common Stock to be outstanding upon completion of the
Offering(1)............................................. 8,241,381 shares
OTC Bulletin Board........................................ DTPT
</TABLE>
- ------------------------
(1) Includes (i) the issuance of 550,029 shares of Common Stock issued in
conjunction with the Site Tech Acquisition; (ii) the proposed issuance of
360,000 shares of Common Stock in the Inlet Technology Acquisition; and
(iii) the issuance of 1,259,479 shares of Common Stock issued in the
conversion of the Series A Preferred Stock and Convertible Notes outstanding
at June 30, 1997 at an average conversion price of $1.24 per share of Common
Stock. Excludes (i) 198,413 shares of Common Stock issuable pursuant to
warrants outstanding as of June 30, 1997; (ii) 911,837 shares of Common
Stock issuable pursuant to options outstanding at June 30, 1997; (iii)
320,000 shares of Common Stock issuable pursuant to the Underwriter's
Warrant; and 480,000 shares of Common Stock issuable upon the exercise of
the Underwriter's over-allotment option. See "Corporate Developments,"
"Description of Capital Stock--Warrants and--Preferred Stock and Convertible
Notes," "Management-- Company Stock Option Plans," "Underwriting," and Notes
5, 8, 9 and 12 of Notes to Financial Statements.
6
<PAGE>
CORPORATE DEVELOPMENTS
DELTAGRAPH DISPOSITION
On June 27, 1997, DeltaPoint consummated the DeltaGraph Disposition pursuant
to which the Company sold those assets related to its DeltaGraph software
product line to SPSS for $910,000 in cash. The DeltaGraph product line consisted
of an advanced multi-platform charting and graphics software product for desktop
applications. The effective date for the disposition was May 1, 1997 and as part
of the DeltaGraph Disposition, DeltaPoint also agreed to assist in the
transition of DeltaGraph to SPSS through July 31, 1997. In return, SPSS made an
additional $400,000 cash payment to DeltaPoint on August 11, 1997.
The DeltaGraph Disposition was part of the Company's continuing strategy to
realize a significant and growing percentage of its revenues from the sale of
Internet software products. This strategy commenced with the Company's
acquisition of the technology required to develop WebAnimator in November 1995.
Prior to 1996, the Company derived substantially all of its product revenues
from licenses of DeltaGraph. For the period from January 1, 1996 to June 30,
1997, DeltaGraph products accounted for approximately 58% of the Company's net
revenues. Without the related contribution of the DeltaGraph business, the
Company's operating losses for these periods would have been significantly
greater. The DeltaGraph Disposition also provided the Company with much needed
liquidity. See "Unaudited Pro Forma Financial Information," "Management's
Discussion and Analysis of Financial Position and Results of Operations" and
"Notes to Financial Statements."
As a result of its cash constraints, and in connection with its reduced
level of operations and its focus on Internet software products, the Company has
over time significantly rationalized its workforce, including administrative and
engineering resources. This rationalization could have a material adverse effect
on, among other things, the Company's ability to identify and develop, license
or acquire technologies or products to extend product functionality and market
position in the areas of Web site development and management. See "Risk
Factors--Dependence on Limited Number of Key Personnel; Key Management Openings;
Personnel Limitations; Ability to Manage Growth."
CERTAIN ACQUISITIONS
INLET TECHNOLOGY ACQUISITION. On April 16, 1997, DeltaPoint entered into
the Letter of Intent for the "Inlet Technology Acquisition" with, among others,
Inlet pursuant to which the Company agreed to acquire from Inlet certain
Internet technologies. As consideration for the Inlet Technology Acquisition,
the Company has agreed to pay to Inlet an aggregate of $825,000 in cash payable
as provided below and 360,000 shares of the Company's Common Stock payable at
closing. The aggregate cash consideration of $825,000 is payable as follows:
$350,000 is payable at the closing of the acquisition; $350,000 is payable with
interest, at the Company's option, on the first anniversary of the closing of
the acquisition or in four quarterly installments commencing on the first
anniversary of the closing of the acquisition and the aggregate payments of
$125,000 made pursuant to the Letter of Intent and OEM Agreement (described
below) will be credited against the cash consideration payable by the Company.
The Letter of Intent also provides for future royalty payments by the Company to
Inlet in an amount equal to 5% of the net revenues from all sales of the
products developed from these technologies, subject to certain limitations. The
Company intends to use a portion of the net proceeds of this Offering to fund
the cash portion of the purchase price. See "Use of Proceeds." With respect to
the stock portion of the purchase price, the Company intends to grant certain
registration rights with respect thereto. See "Description of Capital
Stock--Registration Rights."
In connection with the Inlet Technology Acquisition, on June 13, 1997, the
Company and Inlet Divestiture Corp. ("IDC"), a wholly-owned subsidiary of Inlet,
entered into a software license agreement (the "OEM Agreement") pursuant to
which IDC granted to the Company the exclusive right to market, demonstrate and
distribute products based on the Inlet technologies in exchange for specified
royalty
7
<PAGE>
amounts. See "Proprietary Rights and Licenses." The Company has made three equal
cash payments to Inlet totaling $75,000 for non-recurring engineering expenses
incurred in connection with the OEM Agreement. In addition, upon the signing of
the OEM Agreement, the Company made a $50,000 payment to Inlet as a prepayment
on the royalty amounts due Inlet under the OEM Agreement. The parties have
agreed to credit these payments, totaling $125,000, against the aggregate cash
consideration payable to Inlet pursuant to the Inlet Technology Acquisition,
subject to the consummation thereof. The OEM Agreement also provides that if the
Inlet Technology Acquisition is not consummated the two parties will use their
best efforts to enter into an additional agreement by December 31, 1997 for the
continued exclusive rights to market, demonstrate and distribute the Inlet
technologies. Although the license will remain in full force and effect in any
event, the license will become non-exclusive if the additional agreement is not
entered into by December 31, 1997. On June 13, 1997, the Company and Inlet also
entered into a consulting agreement (the "Consulting Agreement") pursuant to
which Inlet granted to the Company the right to begin customizing the source
code for development use only in exchange for monthly cash payments of $20,000
to Inlet, payable in $10,000 installments on the first and fifteenth of each
month, which shall be treated as non-recurring engineering expense by the
Company. The OEM Agreement and Consulting Agreement will terminate upon the
consummation of the Inlet Technology Acquisition. See "Business--Proprietary
Rights and Licenses."
The parties to the Letter of Intent are currently negotiating definitive
documentation relating to the Inlet Technology Acquisition. The Company expects
that the definitive documentation will contain standard conditions to closing
and, in any event, the obligations of Inlet will be subject to the consummation
of the Offering. Although there can be no assurance that the Inlet Technology
Acquisition will be consummated, the Company expects that such acquisition will
be consummated shortly after the closing of the Offering.
SITE TECH ACQUISITION. On July 11, 1997, the Company consummated the Site
Tech Acquisition pursuant to which the Company acquired, among other things,
SiteSweeper 1.0, a Web site quality control and maintenance product. The Company
is currently developing SiteSweeper 2.0, which is being designed to enable Web
development and management professionals to maintain the quality and integrity
of mission critical Web based business environments. The Company is planning to
introduce SiteSweeper 2.0 in the third quarter of 1997, at the earliest. The
Company does not intend to actively market or distribute SiteSweeper 1.0. See
"Business--Products Under Development." In connection with the Site Tech
Acquisition, the Company issued a total of 550,029 shares of Common Stock with
an aggregate fair value of $638,000 on the acquisition date to the former
stockholders of Site in exchange for all outstanding shares of Site. In
addition, the Company also agreed to pay the specified royalties on sales of
certain products developed from the technologies acquired from Site. See
"Business--Proprietary Rights and Licenses."
As part of the Site Tech Acquisition, Stephen Mendel, a member of the board
of directors of Site, was appointed as a member of the Company's Board of
Directors. In addition, the Company has granted certain registration rights with
respect to the 550,029 shares of Common Stock paid to the former Site
stockholders. See "Description of Capital Stock--Registration Rights."
The Company expects to record a charge to operations in connection with the
consummation of the Site Tech Acquisition and the Inlet Technology Acquisition
to the extent that a portion of each respective purchase price is determined to
be in-process research and development. See "Management's Discussion and
Analysis of Financial Condition and Results of Operations." In addition, failure
to successfully consummate the Inlet Technology Acquisition, to successfully
develop and integrate the acquired Inlet and Site technologies into the
Company's Web site development and management technology or to successfully
market products based upon the acquired technologies would adversely impact the
Company's strategy of marketing to the SMB and enterprise department user
markets (in addition to individuals and SOHO professionals) and would have a
material adverse effect on the Company's business, operating results and
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financial condition. See "Risk Factors--Risks Associated with Inlet Technology
Acquisition and Site Tech Acquisition; General Acquisition Risks."
POTENTIAL COMPANY NAME CHANGE TO SITETECHNOLOGIES INC.
In connection with the Site Tech Acquisition, the Company obtained the
rights to the name Site/ technologies/inc. The Company is currently
contemplating changing its legal name to SiteTechnologies Inc. or a similar
name. Any such name change would require an amendment to the Company's Articles
of Incorporation and, as a result, would require shareholder approval. In
anticipation of any such name change, the Company may commence branding and
marketing its products using the name SiteTechnologies Inc. or a similar name.
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RISK FACTORS
IN ADDITION TO THE OTHER INFORMATION IN THIS PROSPECTUS, EACH PROSPECTIVE
INVESTOR SHOULD CAREFULLY CONSIDER THE FOLLOWING FACTORS IN EVALUATING THE
COMPANY AND ITS BUSINESS BEFORE PURCHASING THE SHARES OF COMMON STOCK OFFERED
HEREBY. NO INVESTOR SHOULD PARTICIPATE IN THE OFFERING UNLESS SUCH INVESTOR CAN
AFFORD A COMPLETE LOSS OF HIS OR HER INVESTMENT. THE DISCUSSION IN THIS
PROSPECTUS CONTAINS FORWARD-LOOKING STATEMENTS THAT INVOLVE RISKS AND
UNCERTAINTIES. THE COMPANY'S ACTUAL RESULTS MAY DIFFER SIGNIFICANTLY FROM THE
RESULTS DISCUSSED IN THE FORWARD-LOOKING STATEMENTS. FACTORS THAT COULD CAUSE OR
CONTRIBUTE TO SUCH DIFFERENCES INCLUDE, BUT ARE NOT LIMITED TO, THOSE DISCUSSED
BELOW AND IN "MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS" AND "BUSINESS."
RECENT AND EXPECTED LOSSES; ACCUMULATED DEFICIT; GOING CONCERN ASSUMPTIONS;
FUTURE CAPITAL NEEDS; NO ASSURANCE OF FUTURE FINANCING
The Company incurred net losses of $4,848,000 for the year ended December
31, 1996 and $3,088,000 for the six months ended June 30, 1997, and had an
accumulated deficit of $16,754,000 as of June 30, 1997. The Company expects to
incur losses for at least the next 12 months, and possibly longer. There can be
no assurance that the Company will not incur significant additional losses, will
generate positive cash flow from its operations, or that the Company will attain
or thereafter sustain profitability in any future period. See "Management's
Discussion and Analysis of Financial Condition and Results of Operations."
The Company's independent accountants' report on its financial statements as
of and for the years ended December 31, 1995 and 1996 contains an explanatory
paragraph indicating that the Company's accumulated deficit and historical
operating losses raise substantial doubts about its ability to continue as a
going concern. The Company may require substantial additional funds in the
future, and there can be no assurance that any independent accountants' report
on the Company's future financial statements will not include a similar
explanatory paragraph if the Company is unable to raise sufficient funds or
generate sufficient cash from operations to cover the cost of its operations.
The existence of the explanatory paragraph may have a material adverse effect
on, among other things, the Company's relationships with prospective customers
and suppliers, and therefore could have a material adverse effect on the
Company's business, financial condition and results of operations. See Note 1 of
Notes to Financial Statements.
The net proceeds from this Offering are estimated to be $6,938,000, assuming
no exercise of the Underwriter's over-allotment option. As of September 22,
1997, the Company's cash and cash equivalents totaled approximately $200,000. In
the absence of receiving the proceeds of this Offering, the Company anticipates
that its existing capital resources and cash generated from operations, if any,
will be sufficient to meet the Company's cash requirements at its anticipated
level of operations only through October 1997. The Company's future capital
requirements will depend upon numerous factors, including the amount of revenues
generated from operations and the progress of the Company's software
acquisition, development and introduction efforts, none of which can be
predicted with certainty. The Company anticipates that the proceeds of this
Offering, together with existing capital resources and cash generated from
operations, if any, will be sufficient to meet the Company's cash requirements
for the next 12 months. However, the Company may seek additional funding during
the next 12 months and will likely be required to seek additional funding after
such time. There can be no assurance that any additional financing will be
available on acceptable terms, or at all, when required by the Company.
Moreover, if additional financing is not available, the Company could be
required to reduce or suspend its operations, seek an acquisition partner or
sell securities on terms that may be highly dilutive or otherwise
disadvantageous to investors purchasing the shares of Common Stock offered
hereby. The Company has experienced in the past, and may continue to experience,
operational difficulties and delays in its product development and marketing
activities due to working capital constraints. Any such difficulties or delays
could have a materially adverse effect on the Company's business, financial
condition and results of operations. See "Management's Discussion and Analysis
of Financial Condition and Results of Operations" and Note 1 of Notes to
Financial Statements.
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QUARTERLY FLUCTUATIONS IN PERFORMANCE
The Company's results of operations have historically varied substantially
from quarter to quarter and the Company expects they will continue to do so. In
the past, the Company's operating results have varied significantly as a result
of a number of factors, including the size and timing of customer orders or
license agreements, product mix, the revenues derived from product sales and
license fees, the existence and terms of royalty and packaging arrangements,
seasonality, the timing of the introduction and customer acceptance of new
products or product enhancements by the Company's competitors, new product or
version releases by the Company, changes in pricing policies by the Company or
its competitors, marketing and promotional expenditures, research and
development expenditures and changes in general economic conditions.
Furthermore, the Company has often recognized a substantial portion of its
revenues in the last month of the quarter, with these revenues frequently
concentrated in the last week or weeks of the quarter.
The Company's operating and other expenses are relatively fixed in the short
term. As a result, variations in timing of revenues can cause significant
variations in quarterly results of operations. For example, if the Company
obtains additional financing, the Company intends to continue to make
significant expenditures to enhance its sales and marketing activities and to
continue to make significant expenditures for research and development
activities. As such expenditures occur, the Company may be unable to reduce such
expenditures quickly if revenue is less than expected. The Company generally
does not operate with a significant order backlog and a substantial portion of
its revenue in any quarter is derived from orders booked in that quarter, which
are difficult to forecast and which are typically concentrated at the end of the
quarter. Accordingly, the Company's sales expectations are based almost entirely
on its internal estimates of future demand and not on firm customer orders. Due
to the foregoing factors, the Company believes that quarter to quarter
comparisons of its results of operations are not necessarily meaningful and
should not be relied upon as indications of future performance. In addition, to
the extent that the Company succeeds in its strategy to target the SMB and
corporate department user markets, among other things, the Company's results of
operations and financial condition may be subject to greater or different
fluctuations as a result of potentially larger individual product sales,
seasonality, a longer sales cycle and longer payment terms. There can be no
assurance the Company will be profitable on a quarter to quarter or any other
basis in the future. See "Management's Discussion and Analysis of Financial
Condition and Results of Operations" and Financial Statements.
DEPENDENCE ON INTERNET SOFTWARE PRODUCTS AND RELATED STRATEGY; DEPENDENCE ON
CONTINUED EMERGENCE OF INTERNET SOFTWARE MARKET
Prior to 1996, the Company derived substantially all of its product revenues
from licenses of its DeltaGraph charting and graphics software products. With
the DeltaGraph Disposition, the Company's future operating results will depend
on the successful development, introduction and commercial acceptance of the
Company's Internet software products. The Company's current Internet software
products consist of: QuickSite 1.0, its Web page creation and site management
product introduced in February 1996; WebTools, its Web publishing capability
tool introduced in March 1996; WebAnimator, its multimedia authoring tool for
the Web introduced in July 1996; QuickSite Developer's Edition, its enhanced
version of QuickSite for Web site developers and corporate Intranet developers
introduced in September 1996; and QuickSite 2.5, its updated version of
QuickSite 1.0, introduced in May 1997. In addition, the Company currently plans
to develop and market a family of products targeted at the SMB and enterprise
department user markets for scalable Web site development and management
software solutions, including SiteSweeper 2.0 an updated version of SiteSweeper
1.0 acquired in the Site Tech Acquisition (planned for release in the third
quarter of 1997, at earliest), and a client/server, multi-authoring, dynamic
site development and management product based on the technology to be acquired
in the Inlet Technology Acquisition (planned for release in the fourth quarter
of 1997, at the earliest). The Company's future operating results are dependent
on the commercial acceptance of the products targeted at the SMB and enterprise
department user markets and the size of these targeted markets. There can be no
assurance that
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the Company's strategy of targeting the SMB and enterprise department user
markets will be successful, that the Inlet Technology Acquisition will be
consummated, that the Company can successfully manage the introduction and
distribution of new versions of its existing Internet software products or any
other potential Internet software products, or that any of its existing or
potential products will achieve significant market acceptance. Failure of any of
the Company's existing or potential products (particularly those targeted at the
SMB and enterprise department user markets) to achieve significant market
acceptance would have a material adverse effect on the Company's business,
financial condition and results of operation. See "--Risks Associated with Inlet
Technology Acquisition and Site Tech Acquisition; General Acquisition Risks,"
"--Distribution Risks; Substantial Reseller Customer Concentration," and
"Business--Strategy, --Products and --Sales and Marketing."
The Company's future operating results will also depend on the continued
emergence of the Internet software product market, which continues to evolve.
There can be no assurance that the Internet software market will continue to
develop at historic growth rates or that further market development will be
rapid enough or in areas that will benefit the Company. In addition, there are a
number of potential approaches to Internet software products, including Internet
software products incorporated into network operating systems or other software.
Therefore, even if Internet software products gain broader market acceptance,
there can be no assurance that the Company's products will be chosen by
organizations which acquire Internet software products. See "Risk Factors--Risk
of Inclusion of Internet Software Tool Functionality in Other Software."
RISKS ASSOCIATED WITH INLET TECHNOLOGY ACQUISITION AND SITE TECH ACQUISITION;
GENERAL ACQUISITION RISKS
In an effort to capitalize on the emerging opportunities in the SMB and
enterprise department user markets for scalable Web site development and
management software solutions, the Company consummated the Site Tech Acquisition
in July 1997 and has entered into the pending Inlet Technology Acquisition. The
Company currently plans to introduce SiteSweeper 2.0, an updated version of the
SiteSweeper 1.0 product acquired in the Site Tech Acquisition (planned for
release in the third quarter of 1997, at the earliest), and a client/server,
multi-authoring site, dynamic development and management product based on the
technology to be acquired in the Inlet Technology Acquisition planned for
release in the fourth quarter of 1997, at the earliest). There can be no
assurance that the Inlet Technology Acquisition, which is contingent on certain
closing conditions, including the closing of this Offering and the negotiation
of a definitive purchase agreement and other agreements, will be consummated.
Although the Company will continue to have a license to the technology to be
acquired in the Inlet Technology Acquisition if the transaction is not
consummated, the Company may be required to pay greater royalties and the
license may be non-exclusive. Furthermore, there can be no assurance that any
technology acquired in the Site Tech Acquisition or the Inlet Technology
Acquisition can be successfully developed or integrated into the Company's
current technology on a timely basis or at all, or that any products based on
this technology will receive market acceptance. In order to market products to
the SMB and enterprise department user markets, the Company must significantly
increase its non-retail distribution channels. See "--Distribution Risks;
Substantial Reseller Customer Concentration" and "Business--Strategy and--Sales
and Marketing." The failure to successfully develop and integrate the acquired
technology into the Company's Web site development and management technology or
to successfully market products based upon the acquired technology would
adversely impact the Company's strategy of marketing to the SMB and enterprise
department user markets (in addition to individuals and SOHO professionals) and
would have a material adverse effect on the Company's business, operating
results and financial condition.
The Company frequently evaluates potential acquisitions of complementary
businesses, products and technologies. As part of the Company's expansion plans,
the Company may acquire companies that have an installed base of products not
yet offered by the Company, have strategic distribution channels or customer
relationships, or otherwise present opportunities which management believes may
enhance the
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Company's competitive position. The success of any acquisition could depend not
only upon the ability of the Company to acquire such businesses, products and
technologies on a cost-effective basis, but also upon the ability of the Company
to integrate the acquired operations or technologies effectively into its
organization, to retain and motivate key personnel of the acquired businesses,
and to retain the significant customers of the acquired businesses. Any
acquisition, depending upon its size, could result in the use of a significant
portion of the Company's cash, or if such acquisition is made utilizing the
Company's securities, could result in significant dilution to the Company's
shareholders. Moreover, such transactions involve the diversion of substantial
management resources and evaluation of such opportunities requires substantial
diversion of administrative, sales and marketing and engineering and
technological resources. In addition, such transactions could result in large
one-time write-offs or the creation of goodwill or other intangible assets that
would result in amortization expense. For example, in the quarter ended
September 30, 1997, a significant portion of the Site Tech purchase price will
be expensed as in-process technology. A similar charge is expected in connection
with the pending Inlet Technology Acquisition. The failure to successfully
evaluate, negotiate, effect and integrate acquisition transactions could have a
material adverse effect on the Company's business, operating results and
financial condition.
DEPENDENCE ON LIMITED NUMBER OF KEY PERSONNEL; KEY MANAGEMENT OPENINGS;
PERSONNEL LIMITATIONS; ABILITY TO MANAGE GROWTH
The Company's success depends substantially upon the contributions of
several key personnel, some of whom, such as the Company's Chief Executive
Officer, Jeffrey Ait, were only recently hired by the Company. The Company is
currently seeking to hire a Chief Financial Officer and a Vice President of
Sales. The failure to attract and retain key personnel could have a material
adverse effect on the Company's business, financial condition and results of
operations. See "Management--Executive Officers and Directors and--Employment
Contracts."
As a result of its cash constraints, and in connection with its reduced
level of operations and its focus on Internet software products, the Company has
significantly rationalized it workforce, including administrative and
engineering resources. While the Company endeavors to identify and develop,
license or acquire technologies or products to extend product functionality and
market position in the areas of Web site development and management, its ability
to successfully undertake these activities could be limited by, among other
things, existing administrative, engineering and other resource limitations. The
failure to attract and retain adequate levels of engineering, sales and
marketing and other resources needed to timely respond to customer needs or
market conditions or to develop products to address targeted markets would have
a material adverse effect on the Company's business, financial condition and
results of operations. See "--Distribution Risks; Substantial Reseller Customer
Concentration" and "--Rapid Technological Change; Risk of Product Delays; Risk
of Product Defects."
The Company's rationalization of its workforce has challenged, and is
expected to continue to challenge, the Company's management and operations,
including its sales and marketing, customer support, research and development
and finance and administrative operations. The Company's future performance will
depend in part on its ability to manage growth, should it occur, both in its
domestic and international operations and to adapt its operational and financial
control systems, if necessary, to respond to changes resulting from such growth.
The Company intends to continue to invest in improving its financial systems and
controls in connection with anticipated increases in the level of its
operations. The Company anticipates that it will need to add additional
personnel beyond its present needs and expand and upgrade its financial systems
to manage any future growth. The failure of the Company's management to respond
to and manage growth effectively could have a material adverse effect on the
Company's business, financial condition and results of operations. See
"Management's Discussion and Analysis of Financial Condition and Results of
Operations."
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DISTRIBUTION RISKS; SUBSTANTIAL RESELLER CUSTOMER CONCENTRATION
The Company currently sells its software products targeted at the individual
and SOHO professional market to distributors for resale to certain retailers,
including computer superstores and mass merchandisers. The Company plans to
expand distribution of its Internet software products in this retail
distribution channel by increasing distribution relationships both domestically
and internationally. The Company also intends to increase the number of products
available for sale through the retail channel, which the Company believes is
essential in securing adequate retail shelf space and retailer promotional
support. The retail distribution channel is highly competitive and there can be
no assurance as to the Company's ability to expand its distribution in this
channel. In addition, there can be no assurance that the Company will be able to
successfully develop additional products for distribution through this channel.
See "--Competition," "Business--Sales and Marketing."
The Company intends to introduce products targeted at the SMB and enterprise
department user markets. See "Business--Strategy." Successful development of
products targeted at the SMB and enterprise department user markets will depend
in part on the Company's ability to successfully integrate the technology
acquired in the Site Tech Acquisition and the Inlet Technology Acquisition. See
"--Risks Associated with Inlet Technology Acquisition and Site Tech Acquisition;
General Acquisition Risks." In addition, the Company has not historically sold
products targeted at these markets and, in order to do so, must develop a sales
and marketing department with specialized expertise in the development of value
added reseller ("VARs"), original equipment manufacturer ("OEM") and Internet
Service Provider ("ISP") relationships to provide SMB and enterprise department
users Internet software solutions. There can be no assurance that the Company
will be able to develop such a sales and marketing team on a timely basis or at
all. In addition, this market is competitive and there can be no assurance that
the Company will be successful in establishing significant relationships with
VARs, OEMs or ISPs or, if developed, there can be no assurance as to amount of
support that the Company's products will receive from these VARs, OEMs or ISPs
who may offer products that compete with the Company's products. See
"--Competition" and "Business--Sales and Marketing." To the extent that the
Company succeeds in its strategy to target the SMB and enterprise department
user markets, among other things, the Company's results of operations may be
subject to greater or different fluctuations as a result of potentially larger
individual product sales, a longer sales cycle and longer payment terms. See
"--Quarterly Fluctuations in Performance.
Sales to a limited number of distributors and retailers in the retail
distribution channel have constituted, and are anticipated to continue to
constitute in the near term, a significant portion of the Company's retail
software sales. In particular, revenues from licenses sold to Nippon Polaroid
Kabushiki Kaisha, the Company's Japanese distributor, constituted approximately
11% of the Company's revenues from the sale of Internet products for the year
ended December 31, 1996 and for the six months ended June 30, 1997. See "--Risks
Associated with International Operations." Sales to Ingram Micro Inc.
constituted approximately 45% and 30% of the Company's revenues from the sale of
Internet products for the year ended December 31, 1996 and for the six months
ended June 30, 1997, respectively. Any termination or significant disruption of
the Company's relationship with any major distributor or retailer, or any
significant reduction in sales volume attributable to any of such entities,
would, unless or until replaced, materially adversely affect the Company's
business, financial condition and results of operations. A deterioration in
financial condition or other business difficulties of a distributor or retailer
could render the Company's accounts receivable from such entity uncollectible,
which could have a material adverse effect on the Company's business, financial
condition and results of operations. There can be no assurance that the
Company's existing distributors and retailers will continue to provide the
Company's products with adequate levels of shelf space or promotional support.
See "Business--Sales and Marketing."
RISK OF INCLUSION OF INTERNET SOFTWARE TOOLS FUNCTIONALITY IN OTHER SOFTWARE
In the future, vendors of operating system software or other software (such
as office or back office software suites) may continue to enhance their products
(including separate products that are bundled
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together) to include functionality that is currently provided most often by
Internet software tools such as the Company's current and planned products. This
enhancement could be achieved through the addition of functionality to operating
system software or other software or the bundling of Internet software tools
with operating system software or other products. For example, Microsoft
incorporates into its BackOffice product its Web page creation software,
FrontPage. The widespread inclusion of the functionality of the Company's
products, and of the functionality of the Internet software products, as
standard features of operating system software or other software could render
the Company's products obsolete and unmarketable, particularly if the quality of
such functionality were comparable, or perceived to be comparable, to that of
the Company's products. Furthermore, even if the Internet software tool
functionality provided as standard features by operating systems or other
software is more limited than that of the Company's products, there can be no
assurance that a significant number of customers would not elect to accept such
functionality in lieu of purchasing additional software. If the Company was
unable to develop new Internet software products to further enhance operating
systems or other software and to replace successfully any obsolete products, the
Company's business, financial condition and results of operations would be
materially adversely affected.
RISKS ASSOCIATED WITH INTERNATIONAL OPERATIONS
The Company's revenues from international operations accounted for
approximately 11% of the Company's revenues from the sale of Internet products
in 1996 and the six months ended June 30, 1997, all of which were derived from
sales in Japan to Nippon Polaroid Kabushiki Kaisha, the Company's Japanese
distributor. In light of the recent DeltaGraph Disposition, the Company expects
that international Internet revenues may decline until the relationship with its
Japanese distributor (principally sold DeltaGraph products) is clarified or
other international distribution channels can be established. In the longer
term, the Company intends to take measures, including the hiring of additional
sales and marketing persons, to increase its level of international sales. In
light of, among other things, the Company's current cash constraints and need to
develop additional international sales capabilities and to timely introduce and
gain broader market acceptance for its existing and planned Internet software
products, there can be no assurance that the Company will be successful in such
efforts. International revenues are subject to a number of risks, including
greater difficulties in accounts receivable collection, longer payment cycles,
exposure to currency fluctuations, political and economic instability and the
burden of complying with a wide variety of foreign laws and regulatory
requirements. The Company also believes that it is exposed to greater levels of
software piracy in international markets because of the weaker protection
afforded to intellectual property in some foreign jurisdictions. See
"Management's Discussion and Analysis of Financial Condition and Results of
Operations," "Business--Strategy and --Sales and Marketing."
RAPID TECHNOLOGICAL CHANGE; RISK OF PRODUCT DELAYS; RISK OF PRODUCT DEFECTS
The markets in which the Company competes are characterized by ongoing
technological developments, frequent new product announcements and
introductions, evolving industry standards and changing customer requirements.
The introduction of products embodying new technologies and the emergence of new
industry standards and practices can render existing products obsolete and
unmarketable. The Company's future success depends upon its ability on a timely
basis to enhance its existing products, introduce new products that address the
changing requirements of its customers and anticipate or respond to
technological advances, emerging industry standards and practices in a timely,
cost-effective manner. There can be no assurance that the Company will be
successful in developing, introducing and marketing new products or enhancements
to existing products or will not experience difficulties that could delay or
prevent the successful development, introduction or marketing of these products,
or that its new products and product enhancements will adequately meet the
requirements of the marketplace and achieve any significant degree of commercial
acceptance. Software products such as those offered by the Company often contain
errors or "bugs" that can adversely affect the performance of the product or
damage a user's data. The Company has in the past discovered software defects in
its products that have adversely affected
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its business and operating results. If the Company is unable, for technological
or other reasons, to develop and introduce new products or enhancements of
existing products in a timely manner or if new versions of existing products
contain unacceptable levels of product defects or do not achieve a significant
degree of market acceptance, or any of the above situations occur there could be
a material adverse effect on the Company's business, financial condition and
results of operations. See "Risk Factors--Risks Associated with Inlet
Technologies Acquisition and Site Tech Acquisition; General Acquisition Risks,"
"Business-- Sales and Marketing and --Research and Development."
COMPETITION
The Company competes on the basis of certain factors, including product
quality, first-to-market capabilities, product performance, ease of use,
customer support and price. The Company believes it currently competes favorably
overall with respect to these factors.
The markets in which the Company competes or plans to compete are highly
competitive and characterized by rapid technological change, frequent new
product introductions, short product lives, evolving industry standards and
significant price erosion over the life of a product. The Company anticipates
increased competition in these markets from both existing vendors and new market
entrants.
In the market for Internet software tools targeted at individual and SOHO
professional users, the Company has encountered competition primarily from
Microsoft, Adobe Systems Incorporated, Soft Quad, Inc. and NetObjects,
Incorporated (majority owned by IBM). In the market for Internet software
solutions targeted at the SMB and corporate department user markets, in addition
to these competitors, the Company expects competition from HAHT Software
Incorporated, Wallop Software Incorporated, Aziza, a division of Objectivity
Incorporated, Eventus Software Incorporated, Interwoven Corporation and Vignette
Corporation. In addition, some existing vendors in the enterprise wide Internet
software solution market (such as IBM/Lotus, Oracle Corporation, Informix
Software Inc. and Sybase Incorporated, Inc.) may enter into the Company's
existing and planned markets. The Company expects that existing vendors and new
market entrants will develop products that will compete directly with the
Company's products and that competition will increase significantly to the
extent that markets for the Company's products grow. Increased competition is
likely to result in price reductions, reduced gross margins and loss of market
share, any of which could have a material adverse effect on the Company's
business, financial condition and results of operations. Most of the Company's
current and potential competitors have substantially greater financial,
technical, marketing, sales and customer support resources, greater name
recognition and larger installed customer bases than the Company. Because there
are minimal barriers to entry into the software market, the Company believes
sources of competition will continue to proliferate. The market for the
Company's products is characterized by significant price competition, and the
Company expects that it will face increasing pricing pressures. There can be no
assurance the Company will be able to maintain its historic pricing structure
for its existing products or will be able to obtain its desired pricing
structure for planned products. If the Company is unable to do so or if the
Company is unable to compete effectively against current and future competitors,
the Company's business, financial condition and results of operations will be
materially adversely affected.
RISKS ASSOCIATED WITH PRODUCT RETURNS; PRICE PROTECTION
Consistent with industry practice, the Company allows distributors,
retailers and end users to return products for credits towards the purchase of
additional products. In addition, the Company's promotional activities,
including free trial and satisfaction guaranteed offers, and competitors'
promotional or other activities could cause returns to increase sharply at any
time. Further, the Company expects that the rate of product returns could
increase to the extent that the Company introduces new versions of its existing
products in the retail distribution channel. For example, product returns may
increase above historical levels as a result of new product introductions. In
addition, if the Company reduces its prices, the Company credits its
distributors for the difference between the purchase price of products remaining
in their
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inventory and the Company's reduced price for such products. Although the
Company provides allowances for anticipated returns and price protection
obligations, and believes its existing policies have resulted in the
establishment of allowances that are adequate and have been adequate in the
past, there can be no assurance that such product returns and price protection
obligations will not exceed such allowances in the future and as a result will
not have a material adverse effect on future operating results, particularly
since the Company seeks to continually introduce new and enhanced products and
is likely to face increasing price competition. See "Management's Discussion and
Analysis of Financial Condition and Results of Operations."
LIMITED INTELLECTUAL PROPERTY PROTECTION
The Company's ability to compete effectively depends in large part on its
ability to develop and maintain proprietary aspects of its technology. Despite
precautions taken by the Company, it may be possible for unauthorized third
parties to copy aspects of the Company's products or to obtain and use
information that the Company regards as proprietary. Moreover, the laws of some
foreign countries do not protect the Company's proprietary rights in its
products to the same extent as do the laws of the United States. The Company
licenses some of its products under "shrink wrap" license agreements that are
included in products shipped by the Company and are not signed by licensees,
therefore they may be unenforceable under the laws of certain jurisdictions. In
addition, some aspects of the Company's products are not subject to intellectual
property protection.
The Company cannot be certain that others will not independently develop
substantially equivalent or superseding proprietary technology, or that an
equivalent product will not be marketed in competition with the Company's
products, thereby substantially reducing the value of the Company's proprietary
rights. There can be no assurance that any confidentiality agreements between
the Company and its employees will provide adequate protection for the Company's
proprietary information in the event of any unauthorized use or disclosure of
such proprietary information. See "Business--Proprietary Rights and Licenses."
Although the Company is not currently engaged in any intellectual property
litigation or proceedings, there can be no assurance that the Company will not
become involved in such proceedings. An adverse outcome in litigation or similar
adversarial proceedings could subject the Company to significant liabilities to
third parties, require disputed rights to be licensed from others or require the
Company to cease the marketing or use of certain products, any of which could
have a material adverse effect on the Company's business, financial condition
and results of operations. The Company may be required to obtain licenses to
patents or proprietary rights of others, and there can be no assurance that any
licenses required under any patents or proprietary rights would be made
available on terms acceptable to the Company, if at all. See "Business--Property
Rights and Licenses."
VOLATILITY OF STOCK PRICE
The Company's stock price has exhibited substantial volatility since
December 1995 in response to variations in quarterly operating results, failure
by the Company to meet its internal projected operating results, changes in
analysts' estimates, announcements by the Company or its competitors, general
conditions in the Internet software industry and other factors. In addition, the
stock market is subject to price and volume fluctuations that affect the market
prices for companies in general, and small capitalization, high technology
companies in particular, and are often unrelated to their operating performance.
RECENT DE-LISTING FROM NASDAQ SMALLCAP MARKET; POTENTIAL DELISTING FROM PACIFIC
EXCHANGE; POSSIBLE INABILITY OF UNDERWRITER TO MAKE A MARKET IN THE COMPANY'S
COMMON STOCK
The Company's Common Stock was quoted on the Nasdaq SmallCap Market from
December 1995 until March 18, 1997 and is traded on the Pacific Exchange
(formerly the Pacific Stock Exchange) and
17
<PAGE>
quoted on the OTC Bulletin Board and the "pink sheets." The Common Stock was
delisted from the Nasdaq SmallCap Market effective March 19, 1997 because of
Nasdaq's determination that the Company failed to maintain certain requirements
for continued listing. The shares of Common Stock are currently quoted on the
Pacific Exchange. The Company has been notified by the Pacific Exchange that it
may take action to delist the shares of Common Stock as a result of, among other
things, the Company's failure to maintain certain requirements for continued
listing. As a result of the foregoing, it is more difficult to dispose of, or to
obtain accurate quotations as to the price of, the Company's Common Stock. In
addition, because the Company's Common Stock was removed from the Nasdaq
SmallCap Market and its market price is less than $5.00 per share, it is subject
to so-called "penny stock" rules that impose additional sales practice and
market making requirements on broker-dealers who sell and/or make a market in
such securities. Consequently, removal from the Nasdaq SmallCap Market and the
applicability of such "penny stock" rules could adversely affect the ability or
willingness of broker-dealers to sell and/or make a market in the Company's
Common Stock and the ability of purchasers of the Company's Common Stock to sell
their securities in the secondary market. While the Company intends to apply for
relisting on the Nasdaq SmallCap Market should it ever satisfy the conditions of
listing and intends to take actions to prevent delisting from the Pacific
Exchange, there can be no assurance that relisting will occur or that delisting
will not occur in the future. Even if the Company achieves relisting for the
Common Stock on the Nasdaq SmallCap Market, the liquidity of the Common Stock
will remain limited as the Nasdaq SmallCap Market and the Pacific Exchange are a
significantly less liquid markets then the Nasdaq National Market. If the
Company should continue to experience losses from operations, it may be unable
to maintain the standards for continued quotation on the Nasdaq SmallCap Market
(if relisted) and the Pacific Exchange, and the shares of Common Stock could be
subject to removal from the Nasdaq SmallCap Market and the Pacific Exchange.
Any limitation on the ability of the Underwriter to make a market in the
Company's Common Stock could adversely impact the liquidity or trading price of
the Company's Common Stock, which could have a material adverse impact on the
market price of the Company's Common Stock. The Chicago office of the Securities
and Exchange Commission is conducting a private, nonpublic investigation of H.J.
Meyers & Co., Inc., the Underwriter and the principal market maker in the
Company's Common Stock, pursuant to a Formal Order of Investigation issued by
the Commission. The investigation is focused on whether the Underwriter may have
violated applicable securities laws and the rules and regulations thereunder,
with respect to sales of certain securities. The Company is currently unable to
assess the potential impact of the outcome of the Staff's investigation on the
Underwriter's ability to make a market in the Company's Common Stock (including
Common Stock in this Offering) or trading in the Company's securities.
SHARES ELIGIBLE FOR FUTURE SALE
Sales in the public market of substantial amounts of Common Stock (including
sales in connection with the exercise of certain registration rights relating to
shares of Common Stock) or the perception that such sales could occur could
depress prevailing market prices for the Common Stock from time to time.
Following the expiration of or earlier release from the 13-month lockup
agreements with the Underwriter, 6,473,405 shares will be freely tradeable
without restriction under the Securities Act and 1,407,976 will be freely
tradeable, subject to Rule 144 volume limitations. The shares offered hereby are
freely tradeable without restrictions under the Securities Act. In addition, the
Company intends to file a registration statement on Form S-8 under the
Securities Act to cover 400,000 (for an aggregate of 1,220,000) shares of Common
Stock reserved for issuance under its 1995 Option Plan. Accordingly, shares
registered under such registration statement will, subject to vesting
restrictions and Rule 144 volume limitations applicable to affiliates, be
available for sale in the open market. Holders of warrants to purchase a total
of 198,413 shares of Common Stock, the former stockholders of Site (who hold a
total of 550,029 shares of Common Stock), Inlet (who are expected to receive
360,000 shares of Common Stock pursuant to the Inlet Technology Acquisition) and
the holders of the Underwriter's Warrant are each entitled to or are expected to
become entitled to certain rights with respect to registration of such shares of
Common Stock for offer
18
<PAGE>
or sale to the public. If such holders, by exercising their rights, cause a
large number of shares to be registered and sold in the public market, such
sales could have a material adverse effect on the market price for the Company's
Common Stock. See "Certain Transactions," "Description of Capital Stock--
Registration Rights," "Shares Eligible for Future Sale" and "Underwriting."
SUBSTANTIAL SHARES OF COMMON STOCK RESERVED
As of September 22, 1997, the Company has reserved 318,413 shares of Common
Stock for issuance upon exercise of outstanding warrants and options and 939,519
shares of Common Stock for issuance to employees, officers, directors and
consultants pursuant to option exercises or sales of Common Stock under the
Stock Plans. The existence of the aforementioned warrants, options and any other
options or warrants may hinder the Company's ability to obtain future equity
financing. See "Description of Capital Stock."
IMMEDIATE AND SUBSTANTIAL DILUTION
Purchasers of the shares of Common Stock offered hereby will incur an
immediate and substantial dilution of $1.835 per share (at assumed offering
price of $2.625 per share) or approximately 70% of their investment in the
shares of Common Stock in that the pro forma net tangible book value of the
Company's Common Stock after this Offering will be approximately $0.79 per
share. See "Dilution."
ANTI-TAKEOVER PROVISIONS
The Company's Board of Directors has the authority to issue up to 4,000,000
shares of Preferred Stock and to determine the price, rights, preferences and
privileges of those shares without any further vote or action by the Company's
shareholders. The rights of the holders of Common Stock will be subject to, and
may be adversely affected by, the rights of the holders of any Preferred Stock
that may be issued in the future. While the Company has no present intention to
issue shares of Preferred Stock, such issuance, while providing desirable
flexibility in connection with possible acquisitions and other corporate
purposes, could have the effect of making it more difficult for a third party to
acquire a majority of the outstanding voting stock of the Company. See
"Description of Capital Stock--Preferred Stock and Convertible Notes."
NO ANTICIPATED DIVIDENDS
The Company has not previously paid any dividends on its Common Stock and
for the foreseeable future intends to continue its policy of retaining any
earnings to finance the development of its business and therefore does not
anticipate paying any cash dividends on its Common Stock in the foreseeable
future.
LIMITATIONS ON LIABILITY AND INDEMNIFICATION MATTERS
As permitted by California General Corporation Law, the Company has included
in its Restated Articles of Incorporation a provision to eliminate the personal
liability of its directors for monetary damages for breach or alleged breach of
their fiduciary duties as directors, subject to certain exceptions. In addition,
the Bylaws of the Company provide that the Company is required to indemnify its
officers and directors under certain circumstances, including those
circumstances in which indemnification would otherwise be discretionary, and the
Company is required to advance expenses to its officers and directors as
incurred in connection with proceeding against them for which they may be
indemnified. The Company has entered into indemnification agreements with its
officers and directors containing provisions that are in some respects broader
than the specific indemnification provisions contained in the California General
Corporation Law. See "Management--Limitations on Liability and Indemnification
Matters."
19
<PAGE>
PRICE RANGE OF COMMON STOCK
The Company's Common Stock was quoted on the Nasdaq SmallCap Market under
the symbol "DTPT" from December 20, 1995 through March 18, 1997, when it was
delisted, and has been traded on the Pacific Exchange (formerly the Pacific
Stock Exchange) since December 1995 through the present, under the symbol
"DTP.P." Since March 18, 1997 the Common Stock has traded over-the-counter and
has been quoted on the OTC Bulletin Board under the symbol "DTPT" and on the
"pink sheets."
The table below sets forth the high and low closing sale price of the Common
Stock for the periods indicated, as reported by the Nasdaq SmallCap Market
through March 18, 1997 and the OTC Bulletin Board thereafter. Prior to the
offering in December 1995, no established public trading market for the
Company's Common Stock existed.
<TABLE>
<CAPTION>
HIGH LOW
--------- ---------
<S> <C> <C>
YEAR ENDED DECEMBER 31, 1995
Fourth quarter (from December 20, 1995)................................... $ 8.75 $ 8.00
YEAR ENDED DECEMBER 31, 1996
First quarter............................................................. $ 9.75 $ 6.50
Second quarter............................................................ $ 17.25 $ 9.50
Third quarter............................................................. $ 13.75 $ 5.88
Fourth quarter............................................................ $ 11.75 $ 6.00
YEAR ENDING DECEMBER 31, 1997
First quarter............................................................. $ 8.25 $ 2.25
Second quarter............................................................ $ 3.00 $ 1.38
Third quarter (through September 22, 1997)................................ $ 3.06 $ 1.13
</TABLE>
On September 22, 1997, the closing sale price for a share of the Company's
Common Stock, as reported on the OTC Bulletin Board, was $2.625.
20
<PAGE>
USE OF PROCEEDS
The net proceeds to the Company from the sale of the 3,200,000 shares of
Common Stock being offered hereby (at an assumed public offering price of $2.625
per share), after deducting underwriting discounts and commissions and offering
expenses, are estimated to be approximately $6,938,000. The Company expects to
use the net proceeds from this Offering approximately as follows:
<TABLE>
<CAPTION>
AMOUNT PERCENT
------------ -----------
<S> <C> <C>
Inlet Technology Acquisition (See "Corporate Developments")............ $ 700,000 10%
Sales and marketing (See "Business--Sales and Marketing").............. $ 2,775,000 40%
Research and development (See "Business--Research and Development").... $ 2,080,000 30%
General corporate purposes............................................. $ 1,383,000 20%
------------ -----
TOTAL.................................................................. $ 6,938,000 100%
------------ -----
------------ -----
</TABLE>
The projected expenditures described above are estimates and approximations
only and do not represent firm commitments by the Company. Proceeds allocated to
general corporate purposes may be utilized for acquisitions of or investments in
complementary technologies or businesses. Except for the pending Inlet
Technology Acquisition, the Company has no agreements or understandings with
respect to any such transaction. Pending such uses, the net proceeds will be
invested in short-term, interest-bearing, investment-grade securities. The
Company anticipates that the proceeds of this Offering, together with existing
capital resources and cash generated from operations, if any, will be sufficient
to meet the Company's cash requirements for the next 12 months.
DIVIDEND POLICY
The Company has never declared or paid any cash dividends on its Common
Stock, and the Company currently intends to retain any future earnings to fund
the development of its business and therefore does not anticipate paying any
cash dividends on its Common Stock in the foreseeable future. The Company's
Series A Preferred Stock entitles holders to cumulative dividends at an annual
rate of $90.00 per share, payable quarterly. Dividends are payable in cash, or
at the Company's election, in shares of Common Stock, valued at 80% of the
average fair market value thereof for the five business days prior to the days
on which dividends are payable. At September 22, 1997, there were no shares of
Series A Preferred Stock issued and outstanding.
21
<PAGE>
CAPITALIZATION
The following table sets forth the actual and as adjusted capitalization of
the Company as of June 30, 1997. As adjusted capitalization gives effect to (i)
the consummation of the Offering at an assumed offering price of $2.625 per
share (providing approximately $8,400,000 in cash) less applicable underwriting
discounts and commissions and net of other offering expenses; (ii) the issuance
of 550,029 shares of Common Stock issued in conjunction with the Site Tech
Acquisition with an aggregate value of $638,000 and a resulting estimated
in-process research and development charge to operations of $500,000; (iii) the
proposed Inlet Technology Acquisition which provides for the issuance of 360,000
shares of Common Stock with an aggregate fair value of $945,000 (at an assumed
price per share of $2.625), the payment of $350,000 ($475,000 less prepayments
of $125,000) at the closing and the payment of an additional $350,000 to be paid
with interest, at the Company's option, on the first anniversary of the closing
of the acquisition or in four quarterly payments commencing on the first
anniversary of the closing of the acquisition and a resulting aggregate maximum
in-process research and development charge to operations of $1,770,000; and (iv)
the issuance of 1,259,479 shares of Common Stock issued in the conversion of the
Series A Preferred Stock and Convertible Notes outstanding at June 30, 1997 at
an average conversion price of $1.24 per share of Common Stock. See "Corporate
Developments," "Description of Capital Stock-- Preferred Stock and Convertible
Notes," and "Use of Proceeds."
<TABLE>
<CAPTION>
JUNE 30, 1997
------------------------
AS
ACTUAL ADJUSTED(1)
----------- -----------
(IN THOUSANDS, EXCEPT
SHARE AND PER SHARE
DATA)
<S> <C> <C>
Long-term debt...................................................... $ -- $ 350
----------- -----------
Shareholders' equity:
Preferred Stock, no par value, 4,000,000 shares authorized, 1,530
shares issued and outstanding actual, no shares issued and
outstanding as adjusted........................................... 1,530 --
Common stock, no par value, 25,000,000 shares authorized, 2,871,873
shares issued and outstanding actual, 8,241,381 shares issued and
outstanding as adjusted; (2)...................................... 15,847 25,803
Accumulated deficit................................................. (16,754) (19,024)
----------- -----------
Total shareholders' equity.......................................... 623 6,779
----------- -----------
Total capitalization................................................ $ 623 $ 7,129
----------- -----------
----------- -----------
</TABLE>
- ------------------------
(1) Assumes no exercise of the Underwriter's over-allotment option or exercise
of outstanding stock options or warrants.
(2) Excludes (i) 911,837 shares of Common Stock issuable pursuant to options
outstanding at June 30, 1997, (ii) 320,000 shares of Common Stock issuable
pursuant to the Underwriter's Warrant, and (iii) 480,000 shares of Common
Stock issuable upon the exercise of the Underwriter's over-allotment option.
See "Description of Capital Stock--Warrants," "Management--Company Stock
Option Plans," "Underwriting," and Notes 8 and 9 of Notes to Financial
Statements.
22
<PAGE>
DILUTION
The net tangible book value (deficit) of the Company's Common Stock as of
June 30, 1997 was $(1,131,000) or approximately ($0.39) per share. Net tangible
book value per share represents the amount of the Company's total tangible
assets less total liabilities and Series A Preferred Stock, divided by 2,871,873
shares of Common Stock outstanding as of June 30, 1997.
Net tangible book value dilution per share represents the difference between
the amount per share paid by new investors who purchase shares of Common Stock
in this Offering and the pro forma net tangible book value per share of Common
Stock immediately after the closing of this Offering. The pro forma net tangible
book value of the Company as of June 30, 1997 would have been $6,530,000 or
$0.79 per share after: (i) giving effect to the sale by the Company of 3,200,000
shares of Common Stock in this Offering at an assumed public offering price of
$2.625 per share, after deduction of underwriting discounts and commissions and
estimated offering expenses aggregating $1,462,000; (ii) the issuance of 550,029
shares of Common Stock issued in conjunction with the Site Tech Acquisition that
had an aggregate value of $638,000 and a resulting estimated in-process research
and development charge to operations of $500,000; (iii) the proposed Inlet
Technology Acquisition which provides for the issuance of 360,000 shares of
Common Stock with an aggregate fair value of $945,000 (at an assumed price per
share of $2.625), the payment of $350,000 ($475,000 less prepayments of
$125,000) at the closing and the payment of an additional $350,000 to be paid
with interest, at the Company's option, on the first anniversary of the closing
of the acquisition or in four quarterly payments commencing on the first
anniversary of the closing of the acquisition and a resulting aggregate maximum
in-process research and development charge to operations of $1,770,000; and (iv)
the issuance of 1,259,479 shares of Common Stock issued in the conversion of the
Series A Preferred Stock and Convertible Notes outstanding at June 30, 1997 at
an average conversion price of $1.24 per share of Common Stock. These effects
result in an immediate net increase in net tangible book value of $1.18 per
share to existing stockholders, and an immediate dilution of $1.835 per share to
new investors. See "Corporate Developments" and "Description of Capital
Stock--Preferred Stock and Convertible Notes." The following table illustrates
this per share dilution:
<TABLE>
<CAPTION>
<S> <C> <C>
Assumed public offering price per share(l)..................................................... $ 2.625
Net tangible book value (deficit) per share at June 30, 1997................................. $ (0.39)
Increase per share attributable to new investors............................................. 1.34
Decrease per share attributable to the Site Tech Acquisition................................. (0.07)
Decrease per share attributable to the proposed Inlet Technology Acquisition................. (0.14)
Increase per share attributable to conversion of Convertible Notes and Series A Preferred
Stock...................................................................................... 0.05
---------
Pro forma net tangible book value per share after the Offering(2).............................. 0.79
---------
Pro forma net tangible book value dilution per share to new investors(3)....................... $ 1.835
---------
---------
</TABLE>
- ------------------------
(1) Before deduction of underwriting discounts and commissions and estimated
expenses of the Offering to be paid by the Company and amounts to be paid in
conjunction with the Inlet Technology Acquisition.
(2) Does not give effect to an aggregate of up to 320,000 shares of Common Stock
issuable upon exercise of the Underwriter's Warrant, the Underwriter's
over-allotment option or warrants or options outstanding as of June 30,
1997. See "Description of Capital Stock--Warrants" and "Underwriting."
(3) Represents dilution of approximately 70% to purchasers of the shares of
Common Stock.
23
<PAGE>
UNAUDITED PRO FORMA FINANCIAL INFORMATION
On June 27, 1997, the Company consummated the DeltaGraph Disposition with an
effective date of May 1, 1997. On July 11, 1997 the Company consummated the Site
Tech Acquisition. The accompanying Unaudited Pro Forma Statement of Operations
for the year ended December 31, 1996 and the six months ended June 30, 1997 give
effect to the DeltaGraph Disposition and the Site Tech Acquisition as if such
transactions had occurred on January 1, 1996. The Unaudited Pro Forma Condensed
Balance Sheet for the six months ended June 30, 1997 reflects the effects of the
Site Tech Acquisition based on the fair market value of the acquired assets and
liabilities on July 11, 1997 as if such acquisition had been consummated on June
30, 1997. Such information is provided to give the reader an understanding of
the historical significance of the DeltaGraph product line and the historical
Site financial information. The unaudited pro forma financial information give
effect to the adjustments described in the accompanying "Notes to Unaudited
Financial Information."
The unaudited pro forma financial information does not purport to represent
what the Company's financial position or results of operations would have been
had the DeltaGraph Disposition or the Site Tech Acquisition occurred on the date
indicated or for any prior period or date. The pro forma adjustments give effect
to available information and assumptions that the Company believes are
reasonable. The unaudited pro forma financial information should be read in
conjunction with the Company's historical financial statements and the notes
thereto included elsewhere herein.
24
<PAGE>
UNAUDITED PRO FORMA CONDENSED
BALANCE SHEET
AS OF JUNE 30, 1997
(IN THOUSANDS, EXCEPT NUMBER OF SHARES, UNAUDITED)
<TABLE>
<CAPTION>
AS PRO FORMA PRO FORMA
REPORTED ADJUSTMENTS AMOUNTS
---------- ------------- -----------
<S> <C> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents (Note 2a)....................................... $ 1,211 $ (24) $ 1,187
Accounts receivable, net of allowance for doubtful accounts of $111 and
$113 (Note 2b).......................................................... 812 8 820
Inventories............................................................... 117 -- 117
Prepaid expenses and other current assets................................. 485 2 487
---------- ----- -----------
Total current assets.................................................... 2,625 (14) 2,611
Property and equipment, net (Note 2c)..................................... 235 67 302
Purchased software........................................................ 224 -- 224
Deposits and other assets (Note 2d)....................................... 30 25 55
---------- ----- -----------
$ 3,114 $ 78 $ 3,192
---------- ----- -----------
---------- ----- -----------
LIABILITIES AND SHAREHOLDERS' DEFICIT
Current liabilities
Accounts payable (Note 2e)................................................ 1,305 38 1,343
Accrued liabilities (Note 2e)............................................. 923 35 958
Reserve for returns....................................................... 225 -- 225
Notes payable............................................................. 38 -- 38
---------- ----- -----------
Total current liabilities............................................... 2,491 73 2,564
---------- ----- -----------
Shareholders deficit:
Preferred Stock, no par value, 4,000,000 authorized, 2,500 shares
designated as Series A, 1,530 shares issued and outstanding............. 1,530 -- 1,530
Common Stock, no par value, 25,000,000 shares authorized, 2,871,873 and
3,421,902 shares issued and outstanding
(Note 2f)............................................................... 15,847 505 16,352
Accumulated deficit (Note 2g)............................................. (16,754) (500) (17,254)
---------- ----- -----------
Total shareholders' deficit............................................. (623) 5 (628)
---------- ----- -----------
$ 3,114 $ 78 $ 3,192
---------- ----- -----------
---------- ----- -----------
</TABLE>
See accompanying notes to Unaudited Pro Forma financial statements.
25
<PAGE>
UNAUDITED PRO FORMA STATEMENT OF OPERATIONS
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
FOR THE YEAR ENDED FOR THE SIX MONTHS ENDED
DECEMBER 31, 1996 JUNE 30, 1997
-------------------------------------------------- -----------------------------------------
DELTAGRAPH SITE DELTAGRAPH SITE
PRO FORMA PRO FORMA PRO FORMA PRO FORMA PRO FORMA
AS REPORTED ADJUSTMENTS ADJUSTMENTS AMOUNTS AS REPORTED ADJUSTMENTS ADJUSTMENTS
----------- ----------- ----------- ----------- ----------- ------------- -------------
<S> <C> <C> <C> <C> <C> <C> <C>
Net Revenues (Note 3)...... $ 4,950 $ (3,067) $ 28 $ 1,911 $ 1,495 $ (659) $ 29
Cost of Revenues
(Note 3)................. 1,181 (660) 5 526 470 (190) 3
----------- ----------- ----------- ----------- ----------- ----- -----
Gross Profit............... 3,769 (2,407) 23 1,385 1,025 (469) 26
----------- ----------- ----------- ----------- ----------- ----- -----
Operating Expenses: Sales
and marketing (Note 3)... 4,685 (612) 233 4,306 2,241 (232) 26
Research and development
(Note 3)................. 2,618 (502) 924 3,040 1,347 (93) 187
General and administrative
(Note 3)................. 1,388 (26) 324 1,686 479 (15) 136
----------- ----------- ----------- ----------- ----------- ----- -----
8,691 (1,140) 1,481 9,032 4,067 (340) 349
----------- ----------- ----------- ----------- ----------- ----- -----
Loss from operations....... (4,922) (1,267) (1,458) (7,647) (3,042) (129) (323)
Interest income (expense),
net...................... 74 -- 42 116 (817) -- 1
Other income (Note 5)...... -- -- -- -- 771 (771) (38)
----------- ----------- ----------- ----------- ----------- ----- -----
Net loss................... $ (4,848) $ (1,267) $ (1,416) $ (7,531) $ (3,088) $ (900) $ (360)
----------- ----------- ----------- ----------- ----------- ----- -----
----------- ----------- ----------- ----------- ----------- ----- -----
Net loss per share......... $ (2.17) $ (2.71) $ (1.20)
----------- ----------- -----------
----------- ----------- -----------
Share and share equivalents
used in per share
calculations............. 2,231 2,781 2,571
----------- ----------- -----------
----------- ----------- -----------
<CAPTION>
PRO FORMA
AMOUNTS
-----------
<S> <C>
Net Revenues (Note 3)...... $ 865
Cost of Revenues
(Note 3)................. 283
-----------
Gross Profit............... 582
-----------
Operating Expenses: Sales
and marketing (Note 3)... 2,035
Research and development
(Note 3)................. 1,441
General and administrative
(Note 3)................. 600
-----------
4,076
-----------
Loss from operations....... (3,494)
Interest income (expense),
net...................... (816)
Other income (Note 5)...... (38)
-----------
Net loss................... $ (4,348)
-----------
-----------
Net loss per share......... $ (1.39)
-----------
-----------
Share and share equivalents
used in per share
calculations............. 3,121
-----------
-----------
</TABLE>
See accompanying notes to Unaudited Pro Forma financial statements.
26
<PAGE>
NOTES TO UNAUDITED PRO FORMA FINANCIAL INFORMATION
(1) On June 27, 1997, the Company consummated the sale of its DeltaGraph product
line to SPSS, Inc. ("SPSS") with an effective date of May 1, 1997 for
aggregate proceeds of $1,310,000 in cash, of which $910,000 is attributable
to the sale of the DeltaGraph product line and $400,000 is attributable to
services to be rendered by the Company pursuant to an interim management
agreement (the "Management Agreement") between the Company and SPSS. The
Company received $910,000 on June 30, 1997 pursuant to the sale. The Company
has deferred recognition of the $400,000 until completion of all obligations
to SPSS.
On July 11, 1997, the Company acquired the shares of Site/technologies/inc.
("Site") for an aggregate purchase price of $638,000. The purchase price was
comprised of a cash payment of $60,000, issuance of 550,029 shares of the
Company's Common Stock valued at $721,913 less 30% applicable to the shares
to account for the fact that they will be restricted for a period of time
and assumed debt/ liabilities of $73,000. In exchange the Company acquired
all the outstanding shares and assets of Site. The Company will record the
expense related to purchased in-process technology of approximately $500,000
during the third quarter of 1997. This amount has been excluded from the pro
forma statements of operations due to its non-recurring nature.
(2) The sale of DeltaGraph was consummated on June 27, 1997. Accordingly, the
balance sheet at June 30, 1997 (included elsewhere herein) includes the
effect of the DeltaGraph Disposition.
The pro forma condensed balance sheet reflects the effects of the
acquisition of Site based upon the fair market value of the acquired assets
and liabilities on July 11, 1997, as if such acquisition had been
consummated on June 30, 1997:
a. Decrease in cash:
<TABLE>
<S> <C>
Cash acquired from Site........................... $ 36,000
Acquisition costs................................. (60,000)
---------
Net decrease in cash.............................. $ (24,000)
---------
---------
</TABLE>
b. Increase in accounts receivable is equal to Site's accounts
receivable of $8,000 at July 11, 1997 which the Company acquired.
c. Increase in property and equipment is equal to Site's property and
equipment of $67,000 at July 11, 1997 which the Company acquired.
d. Increase in deposits and other assets:
<TABLE>
<S> <C>
Developed technology............................... $ 14,000
Goodwill........................................... 5,000
Assembled workforce................................ 6,000
---------
$ 25,000
---------
---------
</TABLE>
e. Increase in accounts payable and accrued liabilities is equal to
Site's liabilities which the Company acquired at July 11, 1997.
f. Increase in Common Stock is equal to the 550,029 shares of Common
Stock issued at a fair market value of $1.31 per share less a
restricted stock discount of 30%.
g. The increase in accumulated deficit reflects a $500,000 write-off for
the portion of the purchase price considered to be in-process
technology costs.
27
<PAGE>
(3) After the May 1, 1997 effective date of the sale of DeltaGraph, the Company
will no longer have revenues relating to DeltaGraph. The unaudited pro forma
statement of operations has been adjusted to eliminate the net revenues,
cost of revenues and operating expenses which the Company believes (i) are
directly attributable to DeltaGraph and (ii) will not continue after the
completion of the sale of DeltaGraph.
(4) Since the pro forma adjustments described above increase the Company's
pre-tax loss, there is no effect on U.S. income tax expense.
(5) The unaudited pro forma statement of operations has been prepared for
continuing operations and, therefore, does not give effect to the one time
gain of $771,000 from the sale of DeltaGraph included in the as reported
results for the six months ended June 30, 1997, the deferred fees related to
the Management Agreement, or the expense related to purchased in-process
technology of approximately $500,000 relating to the Site Tech Acquisition.
28
<PAGE>
SELECTED FINANCIAL DATA
The following selected financial data should be read in conjunction with the
Financial Statements and related Notes thereto appearing elsewhere in this
Prospectus and "Management's Discussion and Analysis of Financial Condition and
Results of Operations." The statement of operations data for the years ended
December 31, 1995 and 1996 and the balance sheet data at December 31, 1995 and
1996 have been derived from the audited financial statements of the Company
included elsewhere in this Prospectus. The statement of operations data for the
six months ended June 30, 1996 and 1997 and the balance sheet data at June 30,
1997 are derived from unaudited financial statements of the Company. The
unaudited financial statements, in the opinion of management, include all
adjustments, consisting of only normal recurring adjustments, necessary for a
fair presentation of the results of operations for the periods. The results of
operations for the six months ended June 30, 1997 are not necessarily indicative
of results that may be expected for the full year or in any future period. The
following data has been derived from financial statements audited by Price
Waterhouse LLP, independent accountants: the balance sheets at December 31, 1995
and 1996 and the related statements of income and of cash flows for the years
then ended December 31, 1996 and notes thereto appear elsewhere herein. The
report of Price Waterhouse LLP which also appears herein contains an explanatory
paragraph relating to the Company's ability to continue as a going concern as
described in Note 1 to such financial statements.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER SIX MONTHS ENDED
31, JUNE 30,
-------------------- --------------------
1995 1996 1996 1997
--------- --------- --------- ---------
(IN THOUSANDS, EXCEPT FOR PER SHARE DATA)
<S> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA(1):
Net revenues........................................................... $ 4,043 $ 4,950 $ 1,893 $ 1,495
Cost of revenues....................................................... 1,337 1,181 621 470
--------- --------- --------- ---------
Gross profit......................................................... 2,706 3,769 1,272 1,025
--------- --------- --------- ---------
Operating expenses:
Sales and marketing.................................................. 1,922 4,685 2,051 2,241
Research and development............................................. 2,036 2,618 1,088 1,347
General and administrative........................................... 1,234 1,388 961 479
--------- --------- --------- ---------
5,192 8,691 4,100 4,067
--------- --------- --------- ---------
Loss from operations................................................... (2,486) (4,922) (2,828) (3,042)
Interest (expense) income, net......................................... (146) 74 39 (817)
Other income........................................................... -- -- -- 771
--------- --------- --------- ---------
Net loss............................................................... $ (2,632) $ (4,848) $ (2,789) $ (3,088)
--------- --------- --------- ---------
--------- --------- --------- ---------
Net loss per share (2)................................................. $ (2.42) $ (2.17) $ (1.27) $ (1.20)
--------- --------- --------- ---------
--------- --------- --------- ---------
Shares used in per share calculation (2)............................... 1,086 2,231 2,193 2,571
--------- --------- --------- ---------
--------- --------- --------- ---------
</TABLE>
<TABLE>
<CAPTION>
DECEMBER 31,
--------------------
1995 1996 JUNE 30, 1997
--------- --------- -------------
(IN THOUSANDS)
<S> <C> <C> <C>
BALANCE SHEET DATA:
Working capital................................................................. $ 2,915 $ 431 $ 134
Total assets.................................................................... $ 6,764 $ 6,346 $ 3,114
Current liabilities............................................................. $ 3,315 $ 5,305 $ 2,491
Total shareholders' equity...................................................... $ 3,449 $ 1,041 $ 623
</TABLE>
- --------------------------
(1) On June 27, 1997, the Company consummated the DeltaGraph Disposition with an
effective date of May 1, 1997. As a result, the effect of DeltaGraph
Disposition is reflected in Balance Sheet Data at June 30, 1997. On July 11,
1997, the Company consummated the Site Tech Acquisition. The Unaudited Pro
Forma Statement of Operations Data for the year ended December 31, 1996 and
the six months ended June 30, 1997 give effect to the DeltaGraph Disposition
and the Site Tech Acquisition as if such transactions had occurred on
January 1, 1996. See "Unaudited Pro Forma Information."
(2) For an explanation of the number of shares used to compute net loss per
share. See Note 1 of Notes to Financial Statements.
29
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
THIS PROSPECTUS CONTAINS "FORWARD-LOOKING STATEMENTS" WITHIN THE MEANING OF
SECTION 27A OF THE SECURITIES ACT AND SECTION 21E OF THE EXCHANGE ACT, WHICH CAN
BE IDENTIFIED BY THE USE OF FORWARD-LOOKING TERMINOLOGY, SUCH AS "MAY," "WILL,"
"EXPECT," "ANTICIPATE," "ESTIMATE" OR "CONTINUE" OR THE NEGATIVE THEREOF OR
OTHER VARIATIONS THEREON OR COMPARABLE TERMINOLOGY. THE MATTERS SET FORTH UNDER
THE CAPTION "RISK FACTORS" IN THIS PROSPECTUS CONSTITUTE CAUTIONARY STATEMENTS
IDENTIFYING IMPORTANT FACTORS WITH RESPECT TO SUCH FORWARD-LOOKING STATEMENTS,
INCLUDING CERTAIN RISKS AND UNCERTAINTIES, THAT COULD CAUSE ACTUAL RESULTS TO
DIFFER MATERIALLY FROM THOSE IN SUCH FORWARD-LOOKING STATEMENTS.
OVERVIEW
CORPORATE EVENTS. The Company was incorporated on February 1, 1989 to
design, develop and market visualization software products for personal
computers. The Company commenced shipments of its initial product, DeltaGraph,
at the end of 1989. The Company conducted its initial public offering in
December 1995. Commencing with its acquisition of the technology required to
develop WebAnimator (a multimedia authoring tool for the Web) in November 1995,
the Company's strategy has been to realize a significant and growing percentage
of its revenues from the sale of Internet software products. Towards that end,
the Company acquired technology to develop QuickSite (a Web site creation and
management tool) in December 1995 (released version 1.0 in February 1996) and
introduced WebTools in March 1996, WebAnimator in July 1996, QuickSite
Developer's Edition in September 1996 and QuickSite 2.5 in May 1997.
As part of its continued focus on Internet software products, DeltaPoint
consummated the DeltaGraph Disposition in June 1997 and the Site Tech
Acquisition in July 1997, and has entered into a letter of intent with respect
to the Inlet Technology Acquisition. The Inlet Technology Acquisition is
expected to close shortly after the consummation of the Offering. Moreover, the
Company plans to incur additional expenditures to develop or acquire Internet
software products or develop new versions of existing products over the next
several quarters. See "Corporate Developments," "Use of Proceeds" and
"Business--Products Currently Under Development and --Research and Development."
In addition to further focusing the Company on Internet products, the DeltaGraph
Disposition provided the Company with much needed liquidity.
REVENUES. The Company's revenues consist of license revenues from sales of
software products to distributors, resellers and end users. In addition, the
Company derives license revenues from royalty agreements with certain customers.
Under these agreements, the Company typically receives a large percentage of the
aggregate revenues in the form of a nonrefundable royalty paid upon shipping of
the master copy of software, which allows the customer to license a specified
number of copies of the Company's software. In addition, the Company currently
plans to introduce products targeted at the SMB and corporate department user
markets for scalable Web site development and management software solutions. In
connection with the planned introduction of these products, the Company plans to
significantly increase its use of non-retail distribution channels including
VARs, OEMs and Internet Service Providers ("ISPs"). See "Business--Strategy and
- --Sales and Marketing."
Software product sales are recognized upon shipment of the product, net of
appropriate allowances for estimated returns. Revenues from software royalty
agreements are recognized upon shipment of a master copy of the software product
if no significant vendor obligations remain under the term of the license
agreements and any amounts to be paid are nonrefundable. Payments received in
advance of revenue recognition are recorded as deferred revenue. The Company
grants distributors and resellers certain rights of return, price protection and
stock rotation rights on unsold merchandise. Accordingly, reserves for estimated
future returns and credits for price protection and stock rotation rights are
accrued at the time of shipment.
30
<PAGE>
IMPACT OF DELTAGRAPH DISPOSITION. As a result of the DeltaGraph
Disposition, the Company's future operating results will not be comparable to
its historical operating results and should not be relied upon as an indication
of future operating results. Moreover, the Company's future profitability will
be entirely dependent on the success of its Internet software products. Set
forth below on an actual and pro forma basis giving effect to the DeltaGraph
Disposition are the Company's net revenues, operating losses and gross profit
for the year ended December 31, 1996 and the six months ended June 30, 1997. For
the year ended December 31, 1995, substantially all the Company's revenues were
attributable to the Company's DeltaGraph visualization software products. The
sale of DeltaGraph is not expected to result in a significant reduction in
operating expenses as the Company plans to continue its investment in developing
new and updated versions of its Internet software products. See "Unaudited Pro
Forma Financial Information."
<TABLE>
<CAPTION>
FOR THE YEAR ENDED FOR THE SIX MONTHS ENDED
DECEMBER 31, 1996 JUNE 30, 1997
-------------------------- --------------------------
ACTUAL PRO FORMA ACTUAL PRO FORMA
------------ ------------ ------------ ------------
<S> <C> <C> <C> <C>
Net Revenues.......................... $ 4,950 $ 1,883 $ 1,495 $ 836
Loss from operations.................. $ (4,922) $ (6,189) $ (3,042) $ (3,171)
Gross Profit Percentage............... 76.1 % 72.3 % 68.6 % 66.5 %
</TABLE>
HISTORIC AND ANTICIPATED LOSSES. The Company incurred net losses of
$4,848,000 for the year ended December 31, 1996 and $3,088,000 for the six
months ended June 30, 1997, and had an accumulated deficit of $16,754,000 as of
June 30, 1997. The Company expects to incur losses for at least the next 12
months, and possibly longer. The Company's future operating results will depend
on many factors, including the successful development, introduction and
commercial acceptance of the Company's Internet software products (including
Internet software products targeted by the Company at the SMB and corporate
department user markets); continued emergence of the evolving Internet software
product market; the Company's success in expanding its use of non-retail
distribution channels for SMB and corporate department user Internet software
solutions including VARs, OEMs and ISPs; the mix of revenues derived from
product sales and royalty fees and the level of product and price competition.
In particular, there can be no assurance that the Company will be successful in
its efforts to introduce additional products targeted at the SMB or the
corporate department user market or to expand its distribution channels. See
"Risk Factors "--Dependence on Internet Software Products and Related Strategy;
Dependence on Continued Emergence of Internet Software Market" and
"--Distribution Risks; Substantial Reseller Customer Concentration."
FLUCTUATIONS. The Company's results of operations have historically varied
substantially from quarter to quarter and the Company expects they will continue
to do so. In the past, the Company's operating results have varied significantly
as a result of a number of factors, including the size and timing of customer
orders or license agreements, product mix, the revenues derived from product
sales and license fees, the existence and terms of royalty and packaging
arrangements, seasonality, the timing of the introduction and customer
acceptance of new products or product enhancements by the Company's competitors,
new product or version releases by the Company, changes in pricing policies by
the Company or its competitors, marketing and promotional expenditures, research
and development expenditures and changes in general economic conditions.
Furthermore, the Company has often recognized a substantial portion of its
revenues in the last month of the quarter, with such revenues frequently
concentrated in the last week or weeks of the quarter.
The Company's operating and other expenses are relatively fixed in the short
term. As a result, variations in timing of revenues can cause significant
variations in quarterly results of operations. The Company generally does not
operate with a significant order backlog and a substantial portion of its
revenue in any quarter is derived from orders booked in that quarter, which are
difficult to forecast and are typically concentrated at the end of the quarter.
Accordingly, the Company's sales expectations are based almost entirely on its
internal estimates of future demand and not on firm customer orders. Due to the
31
<PAGE>
foregoing factors, the Company believes that quarter to quarter comparisons of
its results of operations are not necessarily meaningful and should not be
relied upon as indications of future performance. In addition, to the extent
that the Company succeeds in its strategy to target the SMB and corporate
department user markets, among other things, the Company's results of operations
and financial condition may be subject to greater or different fluctuations as a
result of potentially larger individual product sales, seasonality, a longer
sales cycle and longer payment terms. There can be no assurance the Company will
be profitable on a quarter to quarter or any other basis in the future.
SERIES A PREFERRED STOCK; CONVERTIBLE NOTES. In December 1996, the Company
issued $2,150,000 in principal amount of Convertible Notes. In April through
June 1997, $582,000 in principal amount of Convertible Notes was converted into
shares of Common Stock, and on June 30, 1997 all but $37,500 of the remaining
principal value of the Convertible Notes was converted into Series A Preferred
Stock. The Series A Preferred Stock and Convertible Notes were convertible into
shares of Common Stock generally at a price equal to 80% of the five day average
closing price on the OTC Bulletin Board for the five business days prior to
conversion. During July and August, 1997 all of the outstanding balance of the
Convertible Notes and Series A Preferred Stock were converted to Common Stock.
During the quarter ended March 31, 1997, the Company recognized the value of the
discounted conversion feature and deferred debt issuance costs of aggregating
$799,000 as additional interest expense. The Company does not expect to record
any similar charges related to these securities in future quarters. See
"Description of Capital Stock--Preferred Stock and Convertible Notes."
GOING CONCERN ASSUMPTION. Due to the Company's accumulated losses, the
report of the Company's independent accountants with respect to the Company's
financial statements for 1995 and 1996 contains an explanatory paragraph
concerning the Company's ability to continue as a going concern. If the Offering
is not consummated, additional equity or debt financing or the sale of
additional assets will be required to enable the Company to continue its
operations.
RESULTS OF OPERATIONS
The following table sets forth for the periods indicated, certain historical
and pro forma for the DeltaGraph Disposition statement of operations data as a
percentage of net revenues. As a result of the DeltaGraph Disposition, the
Company's historical operating results should not be relied upon as an
indication of future operating results.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31, SIX MONTHS ENDED JUNE 30,
---------------------------------------- ----------------------------------------
1995 1996 1996 1996 1997 1997
ACTUAL ACTUAL PRO FORMA(1) ACTUAL ACTUAL PRO FORMA(1)
------------ ------------ ------------ ------------ ------------ ------------
(UNAUDITED)
<S> <C> <C> <C> <C> <C> <C>
Net revenues........................ 100.0 % 100.0 % 100.0 % 100.0 % 100.0 % 100.0 %
Cost of revenues.................... 33.1 23.9 27.7 32.8 31.4 33.5
------ ------ ------ ------ ------ ------------
Gross profit...................... 66.9 76.1 72.3 67.2 68.6 66.5
Operating expenses:
Sales and marketing............... 47.5 94.6 216.3 108.3 149.9 240.3
Research and development.......... 50.4 52.9 112.4 57.5 90.1 150.0
General and administrative........ 30.5 28.0 72.3 50.8 32.0 55.5
------ ------ ------ ------ ------ ------------
Total operating expenses........ 128.4 175.5 401.0 216.6 272.0 445.8
------ ------ ------ ------ ------ ------------
Loss from operations................ (61.5) (99.4) (328.7) (149.4) (203.4) (379.3)
Interest (expense) income, net...... (3.6) 1.5 3.9 2.1 (54.6) (97.7)
Other income........................ -- -- -- -- 51.6 --
------ ------ ------ ------ ------ ------------
Net loss (65.1)% (97.9)% (324.8)% (147.3)% (206.4)% (477.0)%
------ ------ ------ ------ ------ ------------
------ ------ ------ ------ ------ ------------
</TABLE>
- ------------------------
(1) Pro forma to give effect to the DeltaGraph Disposition as if it had occurred
at January 1, 1996. See "Unaudited Pro Forma Financial Information."
32
<PAGE>
SIX MONTHS ENDED JUNE 30, 1996 AND 1997
NET REVENUES. Net revenues for the six month period ended June 30, 1997
decreased by 21.0% to $1,495,000 from $1,893,000 for the corresponding period in
the prior year. The decrease in revenue was primarily attributable to the sale
of the DeltaGraph product line which accounted for $1,140,000 of net revenue in
the six month period ended June 30, 1996 as compared to $659,000 in the six
month period ended June 30,1997. Net revenues attributable to Internet products
for the six month period ended June 30, 1996 and 1997 were $637,000 and
$760,000, respectively. Included in the increase of Internet revenues is a
one-time license fee of $150,000 received from an OEM.
For the six month period ended June 30, 1997, international revenue
increased to 26.8% of net revenues from 18.8% of net revenue in the
corresponding period in the prior year. The Company's international sales are
principally denominated in U.S. dollars. Movements in currency exchange rates
did not have a material impact on net revenues in the periods presented.
However, there can be no assurance that future movements in currency exchange
rates will not have a material adverse effect on the Company's future revenues
and results of operations. The increase in international revenues was primarily
due to the introduction of Internet products in the Japanese market. In light of
the DeltaGraph Disposition, the Company expects that in the near-term
international revenues attributable to Internet products may decline until the
relationship with its Japanese distributor (who principally sold DeltaGraph
products) is clarified or other international distribution channels can be
established.
GROSS PROFIT. Cost of revenues consists of direct materials, labor,
overhead, post customer support, royalties and contract manufacturing costs
associated with the manufacturing of the Company's products. Gross profit for
the six month period ended June 30, 1997 increased as a percentage of net
revenues to 68.6% from 67.2% for the corresponding period in the prior year. The
Company's gross profit on an actual basis and as a percentage of net revenue has
varied quarter to quarter as a result of a number of factors including changes
in customer and product mix, inventory write-offs due to new product releases
and third party royalty obligations for the Company's Internet products.
Historically, the Company's gross profit on the sale of DeltaGraph products was
consistent with the Company's overall gross profit. However, the Company
anticipates gross profit as a percentage of revenue will decline in future
periods as Internet product sales increase due to the third-party royalty
obligations associated with such sales.
SALES AND MARKETING. Sales and marketing expenses include sales
commissions, compensation of sales and marketing personnel and cost of
promotional activities. Sales and marketing expenses for the six month period
ended June 30, 1997 increased to $2,241,000 (or 149.9% of net revenues) from
$2,051,000 (or 108.3% of net revenues) for the corresponding period in the prior
year. The increase in sales and marketing expenses was primarily due to an
increase in the use of direct mail, telemarketing, consultants, and channel
promotions used in the continued promotion of the Company's Internet software
products and the activities associated with the launch of the Company's
QuickSite 2.5 web authoring tool which was released in May 1997. The Company
expects that sales and marketing costs will continue to increase in future
periods as the Company expands its use of non-retail distribution channels
including VARs, OEMs and ISPs and adds sales and marketing personnel to support
such expansion and the anticipated introduction of new products. See
"Business--Sales and Marketing."
RESEARCH AND DEVELOPMENT. Research and development expenses include
personnel, consultants and amortization of purchased software. Research and
development expenses for the six month period ended June 30, 1997 increased to
$1,347,000 (or 90.1% of net revenues) compared to $1,088,000 (or 57.5% of net
revenues) for the corresponding period in the prior year. The increase in
research and development expenses was primarily due to a staffing increase
(including the retention of several consultants) for the development of
QuickSite. The Company expects that research and development costs will increase
in future periods due to continued development of the Company's new Internet
products and updated versions of the Company's existing products. In the third
quarter of 1997, the Company expects to incur a
33
<PAGE>
charge to operations in connection with the consummation of the Site Tech
Acquisition and, if consummated, the Inlet Technology Acquisition to the extent
that a portion of the applicable purchase price is determined to be in-process
research and development. See "Corporate Developments."
GENERAL AND ADMINISTRATIVE. General and administrative expenses for the six
month period ended June 30, 1997 decreased to $479,000 (or 32.0% of net
revenues) compared to $961,000 (or 50.8% of net revenues) for the corresponding
period in the prior year. The decrease in general and administrative expenses
was primarily attributable to a severance charge in the first quarter of 1996 of
$505,000 relating to the departure of the Company's Chief Executive Officer.
INTEREST (EXPENSE) INCOME, NET. Interest (expense) income, net includes
interest payable on the Company's Convertible Notes during the six months ended
June 30, 1997, the recognition of the discounted conversion feature on the
Convertible Notes and amortization of the related deferred debt issuance costs,
offset by interest income earned on cash and cash equivalents. Interest expense
during the first six months of 1997 increased to $852,000 from $26,000 during
the first six months of 1996. This increase was primarily attributable to the
recognition of the discounted conversion feature of the Convertible Notes and
the related deferred debt issuance costs which totaled $799,000.
OTHER INCOME. Other income for the six months ended June 30, 1997, consists
entirely of the one-time gain resulting from the DeltaGraph Disposition.
PROVISION FOR INCOME TAXES. There was no provision for taxes during the six
month periods ended June 30, 1996 and 1997 due to the Company's net operating
losses. At December 31, 1996, the Company had approximately $7,000,000 of
federal net operating loss carryforwards which expire in varying amounts through
2011. Due to certain changes in the ownership of the Company, approximately
$1,700,000 and $1,200,000 of these losses are subject to annual limitations of
approximately $142,000 and $301,000, respectively. If certain additional changes
in the Company's ownership occur, the Company's use of net operating loss
carryforwards may be subject to a lower annual limitation.
YEARS ENDED DECEMBER 31, 1995 AND 1996
NET REVENUES. Net revenues increased by 22.4% to $4,950,000 in 1996 from
$4,043,000 in 1995. The increase in revenue was primarily attributable to the
introduction of Internet products, especially QuickSite, DeltaPoint's Web site
creation and management tool. International sales accounted for 39.8% of net
revenues during 1995 and 26.3% for 1996. The decrease in international revenues
was due to fewer Japanese license agreements offset partially by the release of
QuickSite for the Japanese market.
Net revenues attributable to DeltaGraph products for 1995 and 1996 were
$3,570,000 and $3,067,000, respectively.
Net revenues attributable to Internet products for 1995 and 1996 were $0 and
$1,729,000 respectively.
GROSS PROFIT. Gross profit increased to 76.1% of net revenues in 1996 from
66.9% of net revenues in 1995, primarily as a result of lower inventory
write-offs and an absence of packaging fees in 1996.
SALES AND MARKETING. Sales and marketing expenses increased to $4,685,000
(or 94.6% of net revenues) for 1996 from $1,922,000 (or 47.5% of net revenues)
in 1995. The increase in sales and marketing expenses was primarily due to an
increase in headcount and an increase in the use of direct mail, telemarketing,
consultants, print advertising, tradeshows and channel promotions used to
promote the Company's Internet software product expenses which were released in
1996.
RESEARCH AND DEVELOPMENT. Research and development expenses increased to
$2,618,000 (or 52.9% of net revenues) for 1996 compared to $2,036,000 (or 50.4%
of net revenues) in 1995. The increase in research and development expenses was
primarily due to a staffing increase for the development of the Company's
Internet software products. In addition, the Company retained several
consultants to aid in the development process. In 1995, research and development
expenses included a charge for in-process research and development of $1,240,000
resulting from the acquisition of certain Internet technologies.
34
<PAGE>
GENERAL AND ADMINISTRATIVE. General and administrative expenses increased
to $1,388,000 (or 28.0% of net revenues) for 1996 compared to $1,234,000 (or
30.5% of net revenues) in 1995. The increase in general and administrative
expenses was primarily attributable to above mentioned severance charge of
$505,000 offset by a decrease in bad debt expenses of $176,000.
PROVISION FOR INCOME TAXES. There was no provision for taxes in 1995 or
1996 due to net operating losses.
LIQUIDITY AND CAPITAL RESOURCES
As of June 30, 1997, the Company had a working capital balance of $134,000
and shareholders' equity of $623,000. As of September 22, 1997, the Company had
cash balances of approximately $200,000.
The Company has financed its operations primarily through private and public
sales of equity securities, borrowings under a term loan (no longer in place),
the private sale of debt securities and, recently, the sale of the DeltaGraph
product line. Since inception, the Company has received approximately $15
million in proceeds from private sales of preferred stock, convertible debt and
from the Company's initial public offering of Common Stock.
The Company used net cash in operations of $2,699,000 in the six month
period ended June 30, 1997 and $2,300,000 for the corresponding period of the
prior year. Net cash used in the first six months of 1997 consisted primarily of
a net loss of $3,088,000 offset by other working capital changes. Net cash used
in operations during the six months ended June 30, 1996 consisted primarily of a
net loss of $2,789,000.
The Company used net cash in operations of $4,618,000 in 1996 and $1,646,000
in 1995. Net cash used in 1996 consisted primarily of a net loss of $4,848,000.
Net cash used in 1995 consisted primarily of a net loss, excluding non-cash
items, of $1,189,000 and certain working capital requirements.
Net cash provided by financing activities totaled $21,000 in the six month
period ended June 30, 1997 and $745,000 for the corresponding period of the
prior year. Net cash from financing activities in the first six months of 1997
consisted of the exercise of stock options. Net cash from financing activities
in 1996 consisted primarily of $831,000 in net proceeds from the exercise of the
overallotment option from the Company's initial public offering offset by
approximately $77,000 for related registration expenses. The Company also repaid
capital lease obligations of $45,000.
The Company obtained net cash from financing activities of $3,474,000 in
1996 and $6,499,000 in 1995. Net cash from financing activities in 1996
consisted primarily of $831,000 in net proceeds from the exercise of the
overallotment option from the Company's initial public offering, proceeds
resulting from the exercise of stock options and warrants of $1,609,000 and
proceeds from the issuance of Convertible Notes of $1,949,000 offset by the
repayment of $865,000 of outstanding notes payable. Net cash from financing
transactions in 1995 consisted primarily of $5,143,000 in net proceeds from the
Company's initial public offering of Common Stock and other equity financing.
Net cash provided by investing activities during the six months ended June
30, 1997 totaled $747,000 and primarily resulted from the DeltaGraph
Disposition. For the six month period ended June 30, 1997 and the year ended
December 31, 1996, the Company's capital expenditures totaled approximately
$24,000 and $343,000, respectively, and were attributable to acquisitions of
personal computer and computer workstation equipment used to support the
Company's development efforts.
The Company anticipates that the proceeds of this Offering, together with
existing capital resources and cash generated from operations, if any, will be
sufficient to meet the Company's cash requirements for the next 12 months.
However, the Company may seek additional funding during the next 12 months and
will likely be required to seek additional funding after such time. There can be
no assurance that any additional financing will be available on acceptable
terms, or at all, when required by the Company.
35
<PAGE>
BUSINESS
INTRODUCTION
The Company currently develops and markets Internet software products
designed to enable individuals and SOHO professionals to effectively and easily
create, manage and enhance Web sites on the Web. The use of Web sites by SMB and
enterprise departments has recently emerged into a critical business application
that provides greater sales and marketing reach and allows these businesses to
grow faster and more cost effectively. To capitalize on the emerging
opportunities in the SMB and enterprise department user markets for scalable Web
site development and management software solutions, the Company intends to
broaden its product offerings to include a family of products designed to enable
these users, in addition to individuals and SOHO professionals, to develop,
manage, integrate, deploy and maintain next-generation Web sites. The Company's
objective is to become a leading provider of scalable Web site development and
management software solutions for Web based business environments.
INDUSTRY BACKGROUND
The worldwide, cost-effective communication benefits of the Web are leading
many individuals and business organizations to actively "publish" information on
the Web by creating a Web "site," a collection of individual Web pages, each
handcrafted using a relatively new and quickly evolving tagging language called
hypertext markup language ("HTML").
For many individuals and small business organizations, establishing a robust
Web site remains a time-consuming and expensive proposition. The free-form
nature of HTML has inhibited the emergence to date of a standard for HTML page
creation. Further, an increasing number of competing extensions and
modifications to the HTML language continue to be proposed, making it difficult
for Web site publishers to support the latest technical advances. A generational
evolution in Web sites, based on additional functions and benefits, is also
underway.
First generation Web sites are generally characterized by small volumes of
information or "content," static pages that are infrequently updated with
limited links to other Web pages. Generally, these sites are created and managed
by a single author (the Webmaster) and published to a single Web server. To
assist in the creation of first generation Web sites, a large number of first
generation Web authoring or "page creation" tools have emerged. These
limited-function tools focus on the creation of a single page at a time and
require that content within pages and between pages be manually linked and
manually maintained. Further, the content of such sites has no inherent
structural intelligence, making global changes, consistency of design,
reorganization of sections and managing the integrity of the Web site difficult
and time-consuming.
Next generation Web sites are richer in multi-media content, consist of both
static and dynamically created pages, are continuously updated and must
integrate with existing business data. The use of these Web sites is emerging as
businesses of all sizes adopt the use of Intranets for internal communications
and begin conducting business over the Internet. Within these sites multiple
authors of varying skill levels create a variety of Web pages that are combined
into sophisticated Web based applications, which are published to multiple Web
servers and managed by multiple Webmasters. Although some second generation Web
page creation tools have been introduced, the Company believes that these
products are based on architectures that primarily emphasize the layout and
design aspects of individual pages and, as a result, are not suited to handle
these dynamic Web site environments.
The evolving market for Web site development and management software
products is segmented as follows:
INDIVIDUALS AND SOHO PROFESSIONALS (1 TO 20 EMPLOYEES). According to IDC
Link, a leading market research firm, in 1996 there were approximately 11
million individual and SOHO business users in the United States. The Internet
provides these business users with a cost-effective way of increasing their
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exposure and market reach by creating and publishing a Web site. Increasingly,
Internet shopping malls are attracting these small businesses to build catalogs
and publish product and service offerings on the Internet.
The Web site has recently evolved into a critical business application
environment that provides greater sales and marketing reach and is allowing
these businesses to grow faster and more cost effectively than ever before. The
need for easy to use robust Web site development and management software
solutions that support a wide range of Web application environments is expanding
rapidly.
SMALL TO MEDIUM BUSINESS (SMB) (1 TO 499 EMPLOYEES). Small to medium
businesses (SMBs), primarily through value added resellers ("VARs"), are
developing robust Web sites to reach broader target audiences in a more
cost-effective manner. These Web sites are extending both internally to
Intranets that enable internal company communications, and externally to
Extranets that enable business-to-business and business-to-consumer transactions
such as "electronic commerce."
Today, the SMBs and the Web professionals that support them have very few
tools to support the multi-authoring environment that is required to easily
develop an interdepartment Web site. The wide variety of content (including
text, graphics, multi-media, video and audio) and applications (including Java
and ActiveX) that can be incorporated into a robust Web site requires varying
levels of users or "content creators" (including content contributors, graphic
artist, developers, web administrators, application managers and Webmasters).
As SMBs leverage Web technology to implement Intranet applications and
Internet Web sites, they are facing a new set of management challenges such as
integrating the efforts of many diverse contributors, managing a large number of
varied application components and keeping applications up to date with ever-
changing content. These markets need an integrated Web site development and
management solution that supports a broad set of Web based business
requirements.
WEB PROFESSIONALS. In response to customer demands, many value-added
resellers ("VARs") who have historically serviced the SMB market are moving
their business focus to Web consulting and Web application development. In
addition, Internet Service Providers ("ISPs") are offering Web site hosting and
consulting services to help small and medium businesses quickly gain a presence
on the Web and reduce the up front cost of setting up a Web server. These Web
professionals require powerful software tools and solutions to aid them in their
Web site development and management businesses.
ENTERPRISE DEPARTMENT USERS. Many large corporations or enterprises, having
already established sophisticated Web sites for external communications, are now
encouraging smaller internal groups and departments to build private "Intranet"
Web sites. These departmental environments in many respects operate as small
businesses and face many of same problems identified above (including the need
for multi-authoring capabilities and managing a large number of varied
application components). There is considerable demand for Web site development
and management software solutions that support the existing enterprise
standards, as well as the interoperability with legacy data environments.
COMPANY APPROACH
The Company believes that effective Web site development and management
software solutions must not only simplify initial content creation, but enable
content contributors, developers and Webmasters to easily update diverse
content, maintain site integrity, deploy pages in a controlled methodology and
manage the variety of Web site components on an ongoing basis. Further, the
Company believes that an open architecture that supports existing components is
important to maintaining maximum flexibility as Internet standards emerge and
evolve rapidly and as Web based applications become more tightly integrated into
legacy business environments.
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The Company is developing a family of products designed to enable Web site
developers to easily and cost-effectively develop, manage, integrate, deploy and
maintain robust Web-based applications using a structured approach. The
Company's scalable Web site development and management products are being
designed to utilize an advanced product design featuring a database architecture
and incorporate a series of "wizards" that guide the site developer through a
"point and click" process that results in a completed, fully linked Web site
structure in minutes.
The Company's database design is intended to enable the automatic generation
and maintenance of links between Web pages, eliminating or reducing the need for
programmer or technical intervention. Additionally, this approach is intended to
enable all components of an entire Web site to be captured, collected and easily
managed as fully indexed data objects within the database engine. The Company
believes that its database approach to Web site development and management
provides fundamental advantages over existing page creation methodologies as the
volume and complexity of content contained in the Web sites increases and the
propagation of pages are expanded through multiple tiers of servers in larger
organizations.
The Company's scalable Web site development and management tools are
designed to work either with full client-side functionality, to free the site
designer from costly server connection time during the site creation and testing
process, or as a client/server environment supporting multi-authoring
capabilities in a group development environment. Further, these products are
designed to utilize an open architecture that provides Web browser and Web
server independence.
STRATEGY
The Company's objective is to be a leading provider of scalable Web site
development and management software solutions for Web based business
environments. The Company's strategy for achieving this objective includes the
following elements:
BROADEN PRODUCT OFFERINGS. The Company intends to identify and develop,
license or acquire technologies or products to extend product functionality and
market position in two areas: Web site creation and deployment and Web site
management and interoperability. In the area of Web site creation and
deployment, the Company intends to continue expanding the range of the
pre-designed templates, graphics, forms, WYSIWYG (What You See Is What You Get)
layout editor, HTML editor and wizards contained within the QuickSite product.
In the area of Web site management and interoperability, the Company expects
to continue to update and enhance the development, interoperability and
management features of its products to support a broader level of functionality.
Towards that end, and to capitalize on the emerging opportunities in the SMB and
enterprise department user markets for scalable Web site development and
management software solutions, the Company has agreed to acquire from Inlet
certain proprietary core technology which is intended to serve as the basis for
the Company's planned client/server, multi-authoring site, dynamic development
and management products, the first of which is planned for shipment in the
fourth quarter of 1997, at the earliest. In July 1997, pursuant to the Site Tech
Acquisition, the Company acquired, among other things, SiteSweeper 1.0, a Web
site quality control and maintenance product. The Company is currently
developing SiteSweeper 2.0, which is being designed to enable Web development
and management professionals to maintain the quality and integrity of mission
critical Web based business environments. The Company is planning to introduce
SiteSweeper 2.0 in the third quarter of 1997, at the earliest. See "Corporate
Developments" and "--Products Under Development."
EXPAND TARGET MARKETS. To date, the Company's Internet software products
have been targeted at individuals and SOHO professionals. However, the scalable
design of the Company's planned family of Web site development and management
products should enable such products to be used by the individual or SOHO
professional in a desktop environment that publishes the finished Web site on a
remote Web
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server or outside hosting site, and by the SMB or enterprise department user
that develops Intranet applications in a client/server, multi-authoring
environment.
EXPAND CHANNELS OF DISTRIBUTION. The Company has historically marketed its
Internet software products primarily through the retail distribution channel.
The Company plans to expand distribution of its Web site software products by
increasing its retail distribution relationships both domestically and
internationally. The Company also intends to increase the number of products
available for sale through this distribution channel, which the Company believes
is essential to secure adequate retail shelf space and retailer promotional
support. To effectively market its planned family of scalable Web site
development and management products to the SMB and enterprise department users,
the Company intends to implement a sales and marketing program focused on the
development of VARs, Web professionals, OEMs (such as key PC manufacturers) and
ISPs.
DEVELOP PRODUCTS THAT SUPPORT OPEN ARCHITECTURE. The Company plans to
introduce Web site development and management software products based on an open
architecture. This open architecture is designed to support industry standard
architectures, which support widely used Web browsers (including Netscape
Navigator and Microsoft Internet Explorer), major Web server software
environments (including Windows NT, Netscape and Unix) and industry standard
database environments (including Oracle, Informix and Microsoft SQL).
Additionally, the Company plans to design additional products that will
incorporate evolving technologies such as: Java, ActiveX and OLE components that
will support a wide variety of Web based client/server environments.
INCREASE DEMAND AND AWARENESS. The Company intends to increase its brand
and product awareness by emphasizing the product's ability to develop, manage,
integrate, deploy and maintain next-generation Web sites and database
architecture, and by demonstrating its broad acceptance through strategic
relationships with industry leaders. Since March 1996, the Company has entered
into agreements with companies such as Sony, Earthlink, Anawave, Inc., Compaq,
MacMillian Press, McAfee Mall and Internet Mall. To build brand identity, the
Company may also increase and expand its print and online advertising efforts
and increase its participation in major industry conferences and trade shows.
CURRENT COMPANY PRODUCTS
The Company currently offers the following Internet site creation and
management products targeted at the individual and SOHO professional market and
distributed primarily through the retail distribution channel:
QUICKSITE. QuickSite, the Company's first Web site creation and management
software tool, which began shipping to retail distributors in March 1996, is
designed to enable non-technical individuals and organizational users to rapidly
create and efficiently manage a Web site. QuickSite incorporates the following
key attributes, most of which are also incorporated into the Company's other
current products as part of the Company's design approach:
EASE OF SITE CREATION. The Company has designed a collection of site
creation wizards aimed at eliminating the initial stumbling blocks encountered
by novice and other Web site authors. These wizards guide the user through a
point-and-click process that designs and builds an entire Web site, complete
with page links, table of contents, and other important site creation elements
such as e-mail return addresses, copyright notices, consistent menu designs and
flags for pages containing special content. In the QuickSite 2.5 version, the
Company has designed a module to speed the process of establishing an electric
commerce presence on the Web and also added a WYSIWYG (What You See Is What You
Get) Layout Editor. Wizards also enable users to select and modify the stylistic
elements of a site such as the colors and textures of backgrounds, graphics,
headers and footers. By masking the complexities of HTML, Java and other site
creation conventions, these wizards eliminate the requirement for Web site
authors to develop specialized technical expertise before they can become
productive.
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EASILY UPDATABLE CONTENT. The Company's product architecture passively
enforces a Web structure so that as the author populates the site, content
components are captured as data objects that are automatically indexed and
stored within the products database engine. As a result, content can be quickly
updated and global changes can be reflected through an entire Web site with a
few simple keystrokes. Further, any content element, including text, graphics,
data files, and images, can be stored and re-used, savings users time as they
build additional sites or add to existing sites.
EXTENSIBLE ARCHITECTURE. By employing a componentized architecture, the
Company provides an extensible platform that can adapt as new technical
innovations evolve. Tables, forms, and other new extensions to HTML, as well as
user-definable functions, are supported through a point-and-click, component
library management system.
BROWSER AND SERVER INDEPENDENCE. QuickSite supports most Web browsers,
including Netscape Navigator and Microsoft Internet Explorer, which together
account for a substantial majority of the current marketplace. Additionally,
QuickSite is architected to enable all the entire Web site creation process to
occur on a client-side desktop personal computer. The Company believes that this
approach provides several key advantages including: (i) elimination of
dependencies on any single third party Internet or network-server technology;
(ii) lower overall cost by eliminating the need to connect to a server for
interim testing of an in-progress site; and (iii) reduced risk of investing in
the "wrong" server environment.
QUICKSITE 2.0 DEVELOPER'S EDITION. QuickSite 2.0 Developer's Edition is
designed for Internet Web site developers and corporate Intranet developers. The
QuickSite Developer's Edition gives professional Web site developers
significantly enhanced control over the Web site creation and management
process. Among the additional features included in QuickSite 2.0 Developer's
Edition are: (i) support for the emerging Web Style Sheet standard, sponsored by
the WWW Consortium; (ii) 3D Web Site Builder, a visual VRML (virtual reality
mark-up language) creation tool from Virtus Corporation included with the
product; (iii) advanced Web site automation, including a proprietary scripting
language and powerful page macros that automate repetitive tasks that
complicates large-scale projects; (iv) embedded "graphics factory" technology,
based on a variety of DigitalStyle Corporation templates, that allows developers
to create dynamic custom graphics and style elements, and also helps to enforce
stylistic consistency throughout a site; and (v) sophisticated project reporting
capabilities that help the developer track and document the status of their
work.
WEBTOOLS. WebTools allows database developers to add Web-enabling features
to existing database applications. The Company licenses WebTools to software
development companies, including Borland International, in return for a license
fee or royalty arrangement. Currently WebTools is available for Visual dBASE for
Windows and for CA Clipper.
WEBANIMATOR. WebAnimator is a multi-media authoring tool that enables a
broad range of Web users to easily add multi-media and interactive animation to
a Web site. WebAnimator offers the following key attributes: (i) extensive use
of predefined templates that enable users to combine text, graphics and sound to
produce multi-media rich content components; (ii) content components created in
WebAnimator's native format are vector based and can be compressed to small
files that can be quickly downloaded and played from within a Web browser; (iii)
graphic objects in WebAnimator act as interactive buttons that enable users to
branch to different Web site locations; and (iv) advanced digital sound and
motion synchronization tools enable users to easily and accurately add sound and
motion to an animated content component. The market for Web-enabled multi-media
authoring tools has emerged more slowly than originally expected and, as a
result, until such market more meaningfully develops the Company does not expect
to expend significant resources on this market.
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PRODUCTS UNDER DEVELOPMENT
The Company's two principal products currently under development are based
on the technologies acquired in connection with the Site Tech Acquisition and
the pending Inlet Technology Acquisition. These products initially will be
targeted at the SMB and enterprise department user markets.
SITESWEEPER. In July 1997, the Company acquired SiteSweeper 1.0, its
underlying technologies and additional Internet-related technologies through the
Site Tech Acquisition. See "Corporate Developments." SiteSweeper 1.0, originally
released in October 1996, is a quality control tool. The Company does not intend
to actively market or distribute SiteSweeper 1.0. The Company is developing and
plans to introduce SiteSweeper 2.0, an updated version of SiteSweeper 1.0, in
the third quarter of 1997, at the earliest. SiteSweeper 2.0 will be a quality
control tool available for Web professionals (including those who support the
SMB and enterprise department user markets) that automates time-consuming
quality assurance tasks, allowing the Webmaster to identify potential problems
quickly and easily. SiteSweeper 2.0 is being designed to (i) "sweep" Web sites
using standard Internet protocols, allowing a sweep of both static and dynamic
pages; (ii) secure Web pages that require a user name and password; and (iii)
permit the Webmaster to include or exclude specific pages, or entire folders, on
any number of Web servers.
SiteSweeper 2.0 is being designed to incorporate the following functions:
QUALITY REQUIREMENT EXAMINATION. SiteSweeper 2.0 is being designed to
examine a Web site searching for problems that impact the quality and integrity
of the Site. SiteSweeper 2.0 is designed to check for broken links, slow pages,
missing "Alt" attributes, missing "Width" or "Height" attributes, distorted
images, missing or duplicate titles, and missing meta-tags. These functions are
being designed to allow the Webmaster to identify specific quality requirements
for each problem area. For example, it is expected that the Webmaster may
designate the desired connection speed of typical users (for example, 28.8K bps
or ISDN) and the longest acceptable page download time at that speed, with
SiteSweeper 2.0 then reporting to the Webmaster how well that site meets the
specified quality requirements.
COMPREHENSIVE REPORTS. SiteSweeper 2.0 is being designed to generate
reports that identify potential quality problems. Additionally, it is expected
that a summary showing how well the site meets each quality requirement, will be
displayed graphically, using a series of easy to understand charts. A detailed
listing of specific problems will also be provided for every page in the site.
In addition, SiteSweeper 2.0 is expected to provide the Webmaster with
information necessary for site management and maintenance. This is expected to
include a detailed listing of all of the components that make up a given page,
as well as a complete list of links to and from each page, usage of various
resource types, link status codes, external links, and images. SiteSweeper's
reports are designed to be HTML-based and compatible with widely used Web
browsers. The reports are designed to use Java-based charting and visual
navigation technology, based on Javascript.
EXTENSIBLE ARCHITECTURE. SiteSweeper 2.0 is being developed upon a robust
modular software architecture, using components that are both re-usable and
extensible. SiteSweeper 2.0 is being designed to use a true multi threaded web
crawler capable of visiting many pages simultaneously. Swept data will be stored
in an industry-standard database format, and will be manipulated using the Open
Database Connectivity ("ODBC") programming interfaces. This architecture will
facilitate expansion of the SiteSweeper feature set, and is expected to result
in the development of new products based on the same underlying core
technologies.
INLET TECHNOLOGY. In April 1997, the Company announced its intent to
acquire from Inlet certain proprietary core technology (referred to herein
generally as "Inlet technology or "CI" technology). See "Corporate
Developments." The CI technology is intended to serve as the basis for the
Company's planned client/server, multi-authoring, dynamic site development and
management products. The Company intends to extend the capabilities already
present in the CI technology.
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Products under development using the CI technology are being designed to
include, design client tools and server side/backend processing, along with
powerful site management and business applications. The product is being
designed to allow non-programmers as well as developers to rapidly create
dynamic Web sites. The development environment is being designed to include many
pre-built components, which are designed to extend traditional client/server
systems to the Web site.
The CI technology is being designed to incorporate a powerful document
management system that stores the definition of a page in a database and
generates the actual HTML pages from that definition. Through this powerful
feature, users of the CI technology will be able to track every link between
pages on the site. If the user changes the location of a page, the CI technology
is expected to identify which pages need to be updated and regenerate them at
the touch of a button. Instead of creating a link by inserting an HTML link to
the other page's filename, a CI link command to the other page's definition is
inserted. When the page is generated, the CI link is expected to be converted
into the proper HTML command.
In addition, products based on the CI technology are expected to provide or
incorporate the following functions:
USE OF MACROS FOR DYNAMIC CREATION. A macro is a portion or fragment of a
page that needs to be used in multiple places. The CI technology is being
designed to track which pages use a particular macro so that it knows the pages
that need to be regenerated when that macro is changed. Additionally, Web site
developers or Webmasters may pass parameters to macros, allowing a header or
footer to be tailored for each page. Using macros within the CI technology is
expected to assure the developer of consistency throughout the site while
allowing changes to a single page, or across the entire site, to be completed
quickly.
SEPARATION OF DATA FROM THE DESIGN. Products based on the CI technology are
being designed to have the ability to query any ODBC database and insert
information from the database into a page. This feature is expected to allow Web
site developers and Webmasters to create, maintain and modify the data
associated with a Web site without additional revision of the Web pages. This
separation of the site's content (which is stored in the database) from the
site's design (which is stored in scripts and macros) is expected to enable
individuals of different skill levels to work on common projects. This
separation is also expected to permit the Web designer to focus more closely on
the layout and organization of the site and allow individuals skilled in the
creation of content to better manage such content by putting content portions
into a database and using macros to pull content into an HTML page. By combining
the macro feature with database content extraction, a designer is expected to be
able to create a standard macro for retrieving and laying out a page. When the
page layout needs to be changed, the macro is being designed to be modified and
each page regenerated with the new page format.
DYNAMIC CUSTOM PAGES AND ACTIONS. Products based on the CI technology are
being designed to create Web pages and e-mail responses based upon user input.
Instead of requiring programmers to develop proprietary Web applications in C or
Perl, the CI technology is being designed to include a powerful set of standard
actions that may be automatically performed when a Web based form is processed
by the server. In the case of a feedback form, this set of standard actions
could enable data to be saved to a database, a formatted e-mail messages with
the data sent to the customer service representative, and a "Thank You" page
displayed to the visitor.
CUSTOM COMPONENTS. Products based on the CI technology are being designed
to include a library of custom components. These pre-built interactive
components are being designed to quickly integrate into a Web site. The library
is expected to include components for:
- Threaded Discussion: This component is designed to allow site developers
to input ideas and questions and receive feedback from other users.
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- Feedback Form: This component is designed to help site developers to
immediately receive, catalog, and reply to feedback from site visitors.
- Press Releases: This component is designed to assist the Web site
developer in establishing and managing a library of press releases on a
Web site. The integrated search mechanism allows a site visitor to search
for releases by date. The online management feature is designed to allow
for posting, editing and publishing of press releases at the editor's
discretion.
- Company Directory: This component is designed to allow a site developer to
organize and display a company's personnel information. The data can be
organized and searched by department, division or location.
- Site Traffic Analyzer: This component is being designed to include a log
processor to analyze traffic on the site, a system for tracking advertiser
impressions and "click-through" links and a system for tracking
subscribers and their profiles. Such tools are designed to be scalable
from single to multi-sites. Instead of reporting hits, CI tracks pages
viewed so management and sponsors get accurate reports about the number of
people who visit the site.
REMOTE FUNCTIONS: The CI technology is being designed to provide remote
publishing functions for both dynamic and static pages. Developers are expected
to be able to maintain local control of the dynamic and interactive functions of
a site, while maintaining the content database at a remote location. This
feature is expected to provide remotely hosted Web sites with the same dynamic
and interactive functionality as locally hosted Web sites.
ADDITIONAL FEATURES: The CI technology is being designed to include the
following additional features: (i) Site creation wizards to guide users through
Web site creation and other difficult tasks; (ii) the ability to import existing
Web sites or pages into CI technology; (iii) custom E-mail list processing
(based on user profiles); (iv) set and get "cookies" for maintaining information
Management of ActiveX and Java applets; and (v) remote, publishing via local
area networking or File Transfer Protocol ("FTP") Interfaces to Netscape,
Microsoft and other popular Web servers.
The Company's success is dependent on its strategy of marketing products
targeted at the SMB and enterprise department user markets. Failure to
successfully consummate the Inlet Technology Acquisition, develop the technology
proposed to be acquired in the Inlet Technology Acquisition and Site Tech
Acquisition, integrate the acquired technologies, or market products based upon
the acquired technologies, would each have a material adverse effect on the
Company's business, operating results and financial condition. Although the
Company will continue to have a license to the technology to be acquired in the
Inlet Technology Acquisition if the transaction is not consummated, the Company
may be required to pay substantially higher royalties and the license may be
non-exclusive. See "Corporate Developments" and "Risk Factors--Dependence on
Internet Software Products and Related Strategy; Dependence on Continued
Emergence of Internet Software Market" and "--Risks Associated with Inlet
Technology and Site Tech Acquisitions; General Acquisition Risks."
COMPETITION
The Company competes on the basis of certain factors, including product
quality, first-to-market capabilities, product performance, ease of use,
customer support and price. The Company believes it currently competes favorably
overall with respect to these factors.
The markets in which the Company competes or plans to compete are highly
competitive and characterized by rapid technological change, frequent new
product introductions, short product lives, evolving industry standards and
significant price erosion over the life of a product. The Company anticipates
increased competition in these markets from both existing vendors and new market
entrants.
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In the market for Internet software tools targeted at individual and SOHO
professional users, the Company has encountered competition primarily from
Microsoft, Adobe Systems Incorporated, SoftQuad, Inc. and NetObjects,
Incorporated (majority owned by IBM). In the market for Internet software
solutions targeted at the SMB and enterprise department user markets, in
addition to these competitors, the Company expects competition from HAHT
Software Incorporated, Wallop Software Incorporated, Aziza, a division of
Objectivity Incorporated, Eventus Software Incorporated, Interwoven Corporation
and Vignette Corporation. In addition, some existing vendors in the enterprise
wide Internet software solution market (such as IBM/Lotus, Oracle Corporation,
Informix Software, Inc. and Sybase Incorporated, Inc.) may enter into the
Company's existing and planned markets. The Company expects that existing
vendors and new market entrants will develop products that will compete directly
with the Company's products and that competition will increase significantly to
the extent that markets for the Company's products grow. Increased competition
is likely to result in price reductions, reduced gross margins and loss of
market share, any of which could have a material adverse effect on the Company's
business, financial condition and results of operations. Most of the Company's
current and potential competitors have substantially greater financial,
technical, marketing, sales and customer support resources, greater name
recognition and larger installed customer bases than the Company. Because there
are minimal barriers to entry into the software market, the Company believes
sources of competition will continue to proliferate. The market for the
Company's products is characterized by significant price competition, and the
Company expects it will face increasing pricing pressures. There can be no
assurance the Company will be able to maintain its historic pricing structure
for its existing products or will be able to obtain its desired pricing
structure for planned products. Any inability to do so or if the Company is
unable to compete effectively against current and future competitors, the
Company's business, financial condition and results of operations will be
materially adversely affected.
In the future, vendors of operating system software or other software (such
as office or back office software suites) may continue to enhance their products
(including separate products that are bundled together) to include functionality
that is provided by the Company's current and planned products. This enhancement
could be achieved through the addition of functionality to operating system
software or other software or the bundling of Internet software tools with
operating system software or other products. For example, Microsoft incorporates
into its BackOffice product its Web page creation software product, FrontPage.
The inclusion of the functionality of Internet software tool products, as
standard features of operating system software or other software could render
the Company's products obsolete and unmarketable, particularly if the quality of
such functionality were comparable, or perceived to be comparable, to that of
the Company's products. Furthermore, even if the Internet software tool
functionality provided as standard features by operating systems or other
software is more limited than that of the Company's products, there can be no
assurance that a significant number of customers would not elect to accept such
functionality in lieu of purchasing additional software. If the Company were
unable to develop new Internet software tool products to further enhance
operating systems or other software and to replace successfully any obsolete
products, the Company's business, financial condition and results of operations
would be materially adversely affected. See "Risk Factors--Competition and
- --Risk of Inclusion of Internet Software Tools Functionality in Other Software."
SALES AND MARKETING
The Company's current sales and marketing activities are primarily targeted
at the individual and SOHO professional users through the Company's direct sales
and marketing efforts and its retail distribution channels. Additionally, the
Company is actively engaged in developing new channels to sell its planned
family of scalable Web site development and management products to the SMB and
enterprise department user markets. The Company believes that a highly leveraged
sales and marketing model is the most effective way to get its product to market
in a timely manner. In order to reduce the upfront costs and to leverage its
sales and marketing expenditures, the Company has entered into several outsource
sales and leveraged marketing relationships.
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PRODUCTS TARGETED AT THE INDIVIDUAL AND SOHO PROFESSIONAL USER. The Company
markets and sells its products targeted at the individual and SOHO professional
user through the coordinated efforts of its corporate marketing department and
its direct sales organization. For retail, the Company uses a two-tier
distribution model with product sold through Ingram, TechData and other
distributors to retail chains such as Best Buy, Computer City, Comp USA, Egghead
and Fry's. To support the retail channel, the Company has engaged MindShare,
Inc. to train the in-store sales representatives and perform store by store
product positioning and merchandising. The Company intends to expand the number
of U.S. retail locations in 1997 and will seek to selectively add major new
distributors. To augment the distribution and retail sales effort, the Company
has engaged MicroTech, Inc. to represent the Company directly to the
headquarters of the distributors and retail chains. The Company also intends to
increase the number of products available for sale through this distribution
channel, which the Company believes is essential in securing adequate retail
shelf space and retailer promotional support. See "--Products Under
Development," "--Research and Development," and "Risk Factors--Distribution
Risks; Substantial Reseller Customer Concentration."
The Company's direct sales efforts are accomplished through a variety of
telesales, telemarketing, catalog sales and Internet activities. In July 1997,
the Company engaged Sunset Direct, Incorporated ("Sunset Direct") to perform a
dedicated, direct telemarketing effort to its extensive corporate account and
VAR database. The Company promotes catalog sales through Programmer's Paradise
Incorporated, TigerDirect Incorporated, Programmer's Super Shop and Dartek
Computer Supply Corp. The Company also allows fully functional versions of many
of its products to be downloaded from its secure Web site server
(Deltapoint.com). The downloadable versions enable worldwide access to the
products 24-hours a day and allow people to become productive with and reliant
on the product functionality. Users are prompted to purchase a license to the
product with a 30-day grace period after which encrypted technology within the
downloadable versions automatically disables the product. The Company plans to
expand the availability of its downloadable products. To that end, in June 1997,
the Company entered into an agreement with C/Net to electronically promote and
distribute the Company's products to the general public via C/Net's secure
credit card ordering system. Additionally, the Company has entered into an
agreement with Unidirect to perform a similar function targeted at the VAR
community, which the Company believes will expand its product and market
presence.
Internationally, the Company's strategy is to work with established
distributors who can invest in an array of local services including marketing
and localization support as well as provide access to distribution. The Company
will continue to localize its products for the Japanese market and intends to
pursue the expansion of its international presence by establishing new
partnerships in key European markets such as the U.K. and Germany. In addition,
in the long term the Company intends to take measures, including the hiring of
additional sales and marketing persons, to increase its level of international
sales. However, in light of the recent DeltaGraph Disposition, in the near-term
the Company expects that international Internet revenues may decline until the
relationship with its Japanese distributor (who principally sold DeltaGraph
products) is clarified or other international distribution channels can be
established. See "Risk Factors--Risks Associated with International Operations."
The Company pursues relationships and alliances with a broad spectrum of
industry leaders. Distribution alliances in the PC manufacturing area have been
announced with Compaq and Sony and in the ISP marketplace with Earthlink,
Anawave, Inc., Internet Mall, McAfee Mall and more than half a dozen regional
ISPs. In addition, the Company announced relationships with McGraw Hill, which
will offer site licenses for QuickSite to school districts and State Boards of
Education and MacMillian Press, which has included a QuickSite 2.5 express
version into a Web publishing bundle which will be sold through book stores. The
Company also has announced relationships with technology partners such as
DigitalStyle Corporation, a leading publisher of graphics generation tools, and
Virtus Corporation, a leading developer of VRML technology for creating 3D Web
sites. Many of these relationships are in the early stages of development and
have not yet resulted in material revenues to the Company. See "Strategic
Alliances."
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<PAGE>
PRODUCTS TARGETED AT SMB AND CORPORATE DEPARTMENT USERS. To effectively
market its planned family of scalable Web site development and management
products to the SMB and enterprise department users, the Company intends to
implement a sales and marketing program focused at the development of VARs, Web
professionals, OEMs (such as PC manufacturers) and ISPs.
The Company believes that many of its current relationships can be expanded
to incorporate this new market focus. Both Ingram Micro Incorporated and Tech
Data Corporation have extensive VAR programs and excel in the marketing of
software products to the VAR community. Sunset Direct, with its extensive VAR
database, provides a cost-effective means to distribute targeted product
information and VAR program sales materials. Additionally, Sunset Direct's
extensive corporate account database provides the Company access to a
significant lead generation source, which the Company may use as a basis for
engaging VARs quickly.
The Company also intends to seek strategic partnerships with Web
professionals and OEMs that focus on enterprise department users through
complete sales, support and service offerings.
In support of its sales organization, the Company conducts a number of
marketing campaigns, programs, and activities. The Company has three objectives:
(i) increase demand for its current products through its current channels; (ii)
recruit new channel members (such as distributors, VARs, Web Professionals, OEMs
and ISPs) to carry its new products into new markets; and (iii) expand awareness
and positioning of the corporate and product brand to support the first two
objectives. These efforts include product advertising, public relations and
press tours, trade show participation, direct mail and telemarketing campaigns,
product launches, preparation of marketing collateral and participation in
industry programs, special product promotions and involvement in user groups and
forums. Many of these activities are conducted jointly with distribution and
other strategic partners. This allows the Company to leverage larger firms and
extend the reach and frequency of its messages to its target customers. The
Company also maintains an extensive Web Site that provide users and channel
members with complete information on the Company, its products, distribution
channels, awards, personnel and other information.
There can be no assurance that the Company will be able to develop the sales
and marketing team needed to develop satisfactory VAR, OEM and ISP relationships
on a timely basis or at all. This market is competitive and there can be no
assurance that the Company will be successful in establishing significant
relationships with VARs, OEMs or ISPs. Furthermore, if developed, there can be
no assurance as to amount of support that the Company's products will receive
from these VARs, OEMs or ISPs, who may offer products that compete with the
Company's products. See "Risk Factors--Distribution Risks; Substantial Reseller
Customer Concentration."
As of June 30, 1997, the Company had 10 employees in sales and marketing.
For the six month period ended June 30, 1997, the Company spent $2.2 million or
149.9% of revenue for sales and marketing expenses compared to $2.1 million and
108.3% of revenue in the six month period ended June 30, 1996.
STRATEGIC ALLIANCES
A key element of the Company's strategy is the continued creation and
development of strategic alliances with key participants. The Company's goals in
establishing these relationships are to create leveraged marketing alliances
that will endorse and promote the Company's products to a larger potential
customer base than can be reached through the Company's direct marketing
efforts. To date, the Company has entered into strategic alliances with the
following companies:
MCGRAW-HILL. In June 1996, the Company entered into an agreement under
which the School Systems division of McGraw-Hill will market and distribute
QuickSite 1.0 products and site licenses to the education sector, including
school districts and state boards of education.
EARTHLINK. The Company entered into an agreement in June 1996 with
Earthlink, a leading Internet Service Provider, under which the companies will
perform mutually beneficial cross bundling and cross
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<PAGE>
merchandising. Earthlink has agreed to purchase a minimum number of QuickSite
licenses. The Company receives a referral fee for customers that sign up with
Earthlink's service. The companies intend to co-market each others products and
services.
COMPAQ. In July 1996, the Company entered into an agreement with Compaq
under which Compaq will offer QuickSite 1.0, as part of an optional software
bundle on one of its Pressario personal computer systems and has rights to
bundle on other platforms for a per unit license fee. The Company is currently
working with Compaq to upgrade the offer to QuickSite 2.5.
SONY. In December 1996, an addendum to a previous agreement was completed
that allows Sony to pre-install and ship an unencrypted version of QuickSite 1.0
on the Sony, Vaio personal computers. The Company receives a royalty for each
unit sold. The companies are currently working together to upgrade the contract
to include QuickSite 2.5.
MACMILLAN PRESS, INC. In May 1997, the Company entered into an agreement
with the Sam's Publishing division of MacMillan Press, Inc, to create a limited
function version of QuickSite 2.5 for inclusion in a Web developers bundled
product. MacMillan Press will distribute this bundle under its own brand and
packaging to its targeted book stores. The Company receives a royalty for each
distributed license and is working together with MacMillan Press to promote an
upgrade offer to a full function version of the product.
ANAWAVE, INC. The Company entered into an agreement with Anawave, Inc. in
June 1997 under which Anawave will offer an encrypted, 30 day, trial version of
QuickSite 2.5 to its customers. The Company will receive a royalty for each
license distributed and an additional royalty for upgrades to fully functional
versions of QuickSite 2.0. The Company in turn includes promotional literature
inside the QuickSite 2.5 retail packaging offering its retail customers a
discounted rate on Anawave's Web site hosting service. The Company receives a
referral fee for each customer who takes advantage of this special offer. The
companies intend to develop additional future co-marketing programs.
INTERNET MALL, INC. In July 1997, the Company entered into an agreement
with Internet Mall, Inc., a leading electronic shopping mall service provider.
Under the agreement, the Company added a direct link to Internet Mall's "Order
Easy", secure electronic credit card shopping mall service, through the addition
of a "Buy Now" button in the QuickSite 2.5 distributed by Internet Mall service.
The companies are jointly marketing the program, including marketing material in
the QuickSite 2.5 retail packaging.
Many of these relationships are in the early stages of development and have
not yet resulted in material revenue for the Company. Generally, existing
agreements outlining the Company's alliances do not impose significant financial
obligations or liabilities on either party and have terms no longer than one
year. There can be no assurance these relationships will successfully develop to
the extent that they will contribute materially to the Company's financial
results in the future.
RESEARCH AND DEVELOPMENT
The Company's research and development efforts are focused on the
development of a family of site development and management software solutions
for Web based business environments. To date, the Company has made substantial
investments in research and development through both internal development and
technology acquisitions. The Company believes its future performance will depend
substantially on its ability to maintain and enhance its current product line
(including through technology acquisitions and licenses), to develop new
products, maintain technological competitiveness and to meet an expanding range
of customer requirements. There can be no assurance that the Company will be
successful in these efforts, and there are a significant number of other related
risks, any of which could have a material adverse effect on the Company's
business, financial condition and results of operations. See "Risk
Factors--Rapid Technological Change; Risk of Product Delays; Risk of Product
Defects."
47
<PAGE>
As part of the Site Tech Acquisition and the Inlet Technology Acquisition,
the Company is acquiring certain core Internet technologies. The failure to
successfully develop and integrate the acquired technologies into the Company's
Web site development and management technology or to successfully market
products based upon the acquired technologies would adversely impact the
Company's strategy of marketing to the SMB and enterprise department user
markets (in addition to individuals and SOHO professionals) and would have a
material adverse effect on the Company's business, operating results and
financial condition. In addition, these technology acquisitions and any other
similar acquisitions are subject to a number of other risks. See "Corporate
Developments," and "Risk Factors--Risks Associated with Inlet Technology
Acquisition and Site Tech Acquisition; General Acquisition Risks."
As a result of its cash constraints, and in connection with its reduced
level of operations and its focus on Internet software products, the Company has
significantly rationalized it workforce, including engineering resources. The
Company's research and development capabilities could be limited by, among other
things, existing engineering resource limitations. The failure to attract and
retain adequate levels of engineering resources needed to timely respond to
customer needs or market conditions or to develop products to address targeted
markets would have a material adverse effect on the Company's business,
financial condition and results of operations. See "Risk Factors--Dependence on
Limited Number of Key Personnel; Key Management Openings; Personnel Limitations;
Ability to Manage Growth."
As of June 30, 1997 the Company had 19 employees in its research and
development organization. The Company's research and development expenses for
the six-month periods ended June 30, 1997 and 1996 were $1.3 million and $1.1
million, respectively. The Company plans to continue to make significant
investments in research and development. See "Management's Discussion and
Analysis of Financial Condition and Results of Operations."
PROPRIETARY RIGHTS AND LICENSES
The Company relies on a combination of copyright, trademark, trade secret
laws, confidentiality procedures and other intellectual property protection
methods to protect its proprietary rights. The Company owns certain registered
trademarks in the United States and abroad. Although the Company relies to a
great extent on trade secret protection for much of its technology, and
generally obtains written confidentiality agreements from its employees, there
can be no assurance that third parties will not independently develop the same
or similar technology, obtain unauthorized access to the Company's proprietary
technology or misuse the technology to which the Company has granted access. The
Company believes that, due to the rapid proliferation of new technology in the
industry, legal protection through means such as the patent and copyright laws
will be less influential on the Company's ability to compete than such factors
as the creativity of its development staff and its ability to develop new
markets and to service its customers. The Company licenses its products to
individual end users primarily under "shrink wrap" license agreements that are
included in products shipped by the Company and that are not signed by the
licensees and therefore may be unenforceable under the laws of certain
jurisdictions. These agreements provide that by breaking the "shrink wrap" a
software purchaser agrees to be bound by the terms and conditions of the license
agreement.
There has been substantial industry litigation regarding patent, trademark
and other intellectual property rights involving technology companies. In the
future, litigation may be necessary to enforce any patents issued to the
Company, to protect trade secrets, trademarks and other intellectual property
rights owned by the Company, to defend the Company against claimed infringement
of the rights of others and to determine the scope and validity of the
proprietary rights of others. Any such litigation could be costly and result in
a diversion of management's attention, which could have material adverse effects
on the Company's business, financial condition and results of operations.
Adverse determinations in such litigation could result in the loss of the
Company's proprietary rights, subject the Company to significant liabilities,
require the Company to seek licenses from third parties or
48
<PAGE>
prevent the Company from manufacturing or selling its products, any of which
could have material adverse effect on the Company's business, financial
condition and results of operations. See "Risk Factors-- Limited Intellectual
Property Protection."
The laws of certain foreign countries treat the protection of proprietary
rights of the Company in its products differently from those in the United
States, and in many cases the protection afforded by such foreign laws is weaker
than in the United States. The Company believes that its products and their use
do not infringe the proprietary rights of third parties. There can be no
assurance, however, that infringement claims will not successfully be made.
The Company has received and will continue to receive from time to time
communications from third parties asserting infringement upon intellectual
property rights of such parties as a result of either features or content of its
software products. Although the Company is not currently engaged in any
intellectual property litigation or proceedings, there can be no assurance that
the Company will not become involved in such proceedings for which the ultimate
resolution could have a material adverse effect on the Company's business
financial condition and results of operations.
In June 1997, the Company consummated the Site Tech Acquisition. As part of
that acquisition, the Company agreed to pay royalties of approximately 5% on
sales of certain products developed from the technologies acquired from Site for
a 12 month period commencing on the date of the first commercial shipment of
such products. See "Corporate Developments."
In connection with the pending Inlet Technology Acquisition, the Company has
agreed that if the acquisition is consummated it will pay to Inlet royalties in
an amount equal to 5% of the Company's net revenues from all sales of the
products developed from these technologies, subject to certain limitations. See
"Corporate Developments" and "Use of Proceeds." If the pending Inlet Technology
Acquisition is not consummated, pursuant the OEM Agreement under which Inlet
granted to the Company the exclusive right to market, demonstrate and distribute
products based on the Inlet Technology software DeltaPoint has agreed to pay
Inlet royalties in an amount equal to 18% of the Company's net revenues from all
sales of the products developed from the Inlet Technology software.
In March 1997, the Company entered into an agreement with Unisys Corporation
("Unisys") pursuant to which the Company has licensed a patent which would
require the Company to pay Unisys a license fee of 0.45% of the Company's
revenues from the sale of each product covered by such license agreement,
subject to a minimum license fee of ten cents ($0.10) for each such product. The
products subject to this agreement are QuickSite version 2.5, WebAnimator and
Graphics Tools.
In December 1995, the Company acquired core technology, including source
code and related documentation, required to develop QuickSite, from Global
Technologies Corporation, and an individual. The purchase price for the
technology was (i) $800,000 in cash, payable in installments, and (ii) the
issuance of 100,000 shares of the Company's Common Stock. The Company has
royalty obligations during the first two years of commercial shipments of
QuickSite.
In November 1995, the Company acquired core technology, including source
code and related documentation, required to develop WebAnimator from Knowledge
Vision. The purchase price for the technology was $250,000, payable in
installments. The Company also pays a royalty based on net revenues from sales
of WebAnimator.
FACILITIES
The Company currently leases an approximately 12,000 square foot office
suite located at 22 Lower Ragsdale Drive, Monterey, California under a lease
that expires in September 1998 with a monthly rental of approximately $16,200.
The Company holds an option to renew such lease at the end of the initial term
for an additional three year term. On or about October 1, 1997, the Company
intends to move its offices to a new office suite of approximately 18,000 square
feet located at 380 El Pueblo, Scotts Valley, California
49
<PAGE>
under a lease that expires in March 2001 with a monthly rental of approximately
$12,000 during the first six months and increasing to $18,000 thereafter. The
Company has retained a broker to search for another tenant to assume the lease
on its current offices. The Company believes that its new facilities will be
adequate to meet its requirements for the near term and that additional space
will be available on commercially reasonable terms if needed.
EMPLOYEES
As of June 30, 1997, the Company had 36 full-time employees located
throughout the United States. This number includes 19 persons in Research and
Development and Technical Support, 10 persons in Marketing, Sales and Sales
Support and 7 persons in Operations and Finance. None of the Company's employees
is represented by a labor union or is subject to a collective bargaining
agreement. DeltaPoint believes that its relations with its employees are good.
LEGAL PROCEEDINGS
There are no material pending legal proceedings against the Company.
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MANAGEMENT
EXECUTIVE OFFICERS, DIRECTORS AND KEY PERSONNEL
The current executive officers, directors and other key personnel of the
Company, and their ages as of September 22, 1997, are as follows:
<TABLE>
<CAPTION>
NAME AGE POSITION
- ----------------------------- --- ---------------------------------------------------------
<S> <C> <C>
Jeffrey Ait.................. 41 Chief Executive Officer, Chief Financial Officer and
Director
John Hummer (1)(2)........... 49 Director
Patrick Grady (1)(2)......... 29 Director
Joseph Marengi (1)(2)........ 44 Director
Stephen Mendel (1)(2)........ 49 Director
Scott Allen (3).............. 37 Vice President of Channel Marketing
Song Huang (3)............... 34 Vice President of Product Management
Charles Batterman (3)........ 44 Vice President of Development
</TABLE>
- ------------------------
(1) Member of the Compensation Committee.
(2) Member of the Audit Committee.
(3) Not an executive officer.
MR. AIT joined the Company in March 1997 as Chief Executive Officer. From
January 1996 to March 1997 he served as Vice President of Internet at the Santa
Cruz Operation, Inc. ("SCO"), a software developer and publisher. From October
1995 to January 1996 he served as Vice President of Acquisitions at SCO. From
October 1993 to October 1995 he served as Vice President of Channel Sales and
Marketing at SCO. From August 1990 to October 1993 he served as Vice President
Government Systems Group at SCO.
MR. HUMMER has served as a director of the Company since October 1990. Mr.
Hummer has served as a partner at, Hummer Winblad Venture Partners, a venture
capital firm, since its foundation in 1989. Mr. Hummer serves as a director of
several privately held companies, including Netgravity, an Internet and online
marketing communications company, and IMX, a provider of electronic commerce for
the mortgage industry. From June 1992 to May 1997, Mr. Hummer was a director of
Books That Work, a consumer software company, until its acquisition by CUC
International. From May 1995 to February 1997, he was a director of Centerview
Software, an enterprise software company, until its acquisition by Informix.
From April 1991 to February 1995, he was a director of Powersoft Corporation, an
application development software provider, until its acquisition by Sybase
Incorporated. From August 1990 to April 1995, Mr. Hummer was a director of Wind
River Systems, Inc., a software provider for embedded real-time applications.
MR. GRADY has served as a director of the Company since August 1996. Mr.
Grady currently serves as Managing Director, Venture Capital of H.J. Meyers &
Co., Inc., an investment banking firm. From June 1993 to March 1996, Mr. Grady
served as Senior Vice President of Corporate Finance at H.J. Meyers & Co., Inc.
From March 1991 to May 1993, he served as Vice President of Corporate Finance at
Josephthal, Lyon & Ross, an investment banking firm. Mr. Grady serves as a
director of Borealis Technology Corp., an enterprise wide sales force automation
software Company, and SoloPoint, Inc., a provider of small office/home office
communication management products.
MR. MARENGI has served as a director of the Company since July 1997. Mr.
Marengi currently serves as Senior Vice President of Dell Computer Corporation,
a computer systems manufacturer. From August
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1996 to July 1997, Mr. Marengi served as President of Novell, Inc., a network
software provider. Prior to August 1996, he served as Executive Vice President,
Worldwide Sales and as Vice President of Channel Sales at Novell. Mr. Marengi
serves as a director of Corel Corporation, an applications, graphics and
Internet software developer, Network Peripherals, Inc., an ethernet switching
solutions provider, and Borealis, Inc., an automation software company.
MR. MENDEL has served as a director of the Company since July 1997. From
January 1994 to July 1997, he served as a director of Site/technologies/inc.
From March 1993 to March 1994, Mr. Mendel served as Chief Executive Officer,
President and Director of AXS, an image database software provider. From January
1990 to March 1993, he served as Chief Executive Officer, President and Director
of Ithaca Software, a 3-D interactive portable graphics software developer. Mr.
Mendel serves as a director of Direct Language Communications, Inc., a
multilingual communication services provider, and Knowledge Revolution, Inc., a
motion simulation software provider.
MR. ALLEN has served as Vice President of Channel Marketing of the Company
since July 1997. From February 1995 to July 1997, he served as Director of
Marketing at the Santa Cruz Operation, Inc. ("SCO"), a software developer and
publisher. From January 1994 to February 1995, Mr. Allen served as Manager,
Government, Latin American, OEM and Communications Marketing at SCO. From June
1992 to January 1994, he served as Manager, North American Government Marketing.
Prior to June 1992, Mr. Allen served in a variety of additional managerial
capacities for SCO dating back to January 1986.
MR. HUANG joined the Company in January 1996 as Vice President of Internet
Products and has served as Vice President of Product Management of the Company
since July 1997. From September 1995 to December 1996, he served as Director of
Marketing at Frame Technology, an application development software provider.
From November 1990 to September 1990, Mr. Huang served as Senior Product Manager
at Borland International, Inc., an application development software provider.
MR. BATTERMAN joined the Company in August 1996 as Director of Engineering
and has served as Vice President of Development since December 1996. From
January 1994 to August 1996, he was President of Media Computer Systems, an
Internet-based marketing software provider. From 1986 to January 1994, he was
Manager of Graphics Research and Development at Borland International, Inc. an
application development software provider.
FAMILY RELATIONSHIPS
There are no family relationships among any of the directors or executive
officers.
BOARD COMMITTEES
The Board of Directors has had a Compensation and an Audit Committee since
December 1, 1995. The Compensation Committee makes recommendations to the Board
concerning salaries and incentive compensation for the Company's officers and
employees and administers the Company's Executive Bonus Plan, 1990 Key Employee
Incentive Stock Option Plan, 1992 Non-Statutory Stock Option Plan, 1995 Stock
Option Plan and 401(k) Plan. The Audit Committee aids management in the
establishment and supervision of the Company's financial controls, evaluates the
scope of the annual audit, reviews audit responses, consults with management and
the Company's independent auditors prior to the presentation of financial
statements to shareholders and, as appropriate, initiates inquiries into aspects
of the Company's financial affairs.
DIRECTOR COMPENSATION
Directors receive reimbursement of expenses incurred in attending Board
meetings. Except as otherwise described in this Prospectus, the Company has not
paid cash or other compensation to its directors. See "--1995 Stock Option Plan"
and "Principal Shareholders."
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COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
The Compensation Committee of the Board of Directors currently consists of
Messrs. Hummer, Grady, Marengi and Mendel. None of these individuals were at any
time since the formation of the Company, an officer or employee of the Company.
No executive officer of the Company serves as a member of the board of directors
or compensation committee of any entity that has one or more executive officers
serving as a member of the Company's Board of Directors or Compensation
Committee.
EMPLOYMENT CONTRACTS
On March 24, 1997, Jeffrey F. Ait executed an offer letter with the Company
pursuant to which Mr. Ait became Chief Executive Officer of the Company. The
offer letter provides for an annual salary of $165,000 and for the grant of
options to purchase an aggregate of 225,000 shares of Common Stock at an
exercise price equal to the fair market value per share on the date the options
are granted. The options are immediately exercisable but subject to a right of
repurchase by the Company at the original exercise price paid per share upon the
optionee's cessation of service prior to vesting in such shares. The repurchase
right lapses and the optionee vests in a series of equal monthly installments
over 36 months, beginning on the one-month anniversary of the grant date. If Mr.
Ait's employment with the Company is terminated for reasons other than cause
within six months following a specified change in control of the Company, the
letter provides that Mr. Ait's base salary shall continue to be paid for one
year following his last day of employment. All of Mr. Ait's stock options vest
in full and become exercisable as to all of the shares immediately prior to the
acquisition by any person of at least 50% of the total outstanding voting
securities of the Company, a merger or consolidation of the Company (other than
a merger which would result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent at least 50% of the total
outstanding voting securities of the Company or the surviving entity), a
liquidation of the Company or the sale of all of the Company's assets.
See "Certain Transactions--Employment Contracts" for a description of
additional employment and termination agreements entered into between the
Company and certain Named Executive Officers.
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EXECUTIVE COMPENSATION
The following table sets forth the compensation earned by the Company's two
former Chief Executive Officers and two other executive officers who earned
salary and bonus for the 1996 fiscal year in excess of $100,000 (collectively,
the "Named Executive Officers") for services rendered in all capacities to the
Company and its subsidiaries for that fiscal year:
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
LONG-TERM
COMPENSATION
------------
AWARDS
ANNUAL COMPENSATION NUMBER OF
------------------------------------------ SECURITIES
OTHER ANNUAL UNDERLYING ALL OTHER
NAME AND PRINCIPAL POSITION YEAR SALARY($) BONUS($) COMPENSATION($) OPTIONS(#) COMPENSATION($)
- ---------------------------------------- ---- --------- -------- --------------- ------------ ---------------
<S> <C> <C> <C> <C> <C> <C>
John J. Ambrose (1) .................... 1996 78,461 25,000(2) 4,500(3) 145,000 26(4)
Chief Executive Officer and Director 1995 -- -- -- -- --
Raymond R. Kingman, Jr. (5) ............
Chairman of the Board, President and 1996 32,000 -- 900(6) -- 141,253(7)
Chief Executive Officer 1995 108,000 -- 4,708(6) 100,000 66(4)
Donald B. Witmer (8) ...................
Chief Operating Officer, Chief 1996 120,000 -- 30,000(9) 50,000 251(4)
Financial Officer and Director 1995 19,845 -- 5,000(9) 135,000 --
William G. Pryor (10) ..................
Vice President of Development and 1996 104,950 -- -- -- 87(4)
Director 1995 92,500 -- -- 100,000 87(4)
</TABLE>
- ------------------------
(1) Mr. Ambrose served as the Company's Chief Executive Officer from April 22,
1996 to March 27, 1997.
(2) Represents a signing bonus of $25,000.
(3) Represents a $500 per month car allowance.
(4) Represents life insurance premiums made by the Company with respect to
insurance policies on the lives of Messrs. Ambrose, Kingman, Witmer and
Pryor.
(5) Mr. Kingman resigned as Chief Executive Officer and a director of the
Company, effective April 5, 1996.
(6) Represents a $300 per month car allowance.
(7) Represents a $22 life insurance premium and a severance payment of
$141,231.
(8) Mr. Witmer served as the Company's Chief Financial Officer and Chief
Operating Officer from November 1, 1995 to June 20, 1997.
(9) Represents a $2,000 per month housing allowance and a $500 per month car
allowance.
(10) Mr. Pryor has entered into a Separation Agreement and Release pursuant to
which he has resigned from the Company effective October 9, 1997. See
"Certain Transactions--Employment Contracts."
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STOCK OPTION INFORMATION
The following table contains information concerning stock option grants made
to the Named Executive Officers during the year ended December 31, 1996. No
stock appreciation rights were granted to these individuals during such year.
OPTION GRANTS IN LAST FISCAL YEAR
<TABLE>
<CAPTION>
INDIVIDUAL GRANTS(1)
-----------------------------------------------------------
NUMBER OF % OF TOTAL
UNDERLYING OPTIONS GRANTED EXERCISE
OPTIONS TO EMPLOYEES IN PRICE EXPIRATION
NAME GRANTED FISCAL YEAR ($/SH)(2) DATE
- ----------------------------------------- ----------- --------------------- ----------- ----------
<S> <C> <C> <C> <C>
John J. Ambrose.......................... 145,000 33% 9.50 04/21/06
Raymond R. Kingman, Jr................... -- -- -- --
Donald B. Witmer......................... 10,000 2 9.50 04/21/06
Donald B. Witmer......................... 40,000 9 7.50 11/03/06
William G. Pryor......................... -- -- -- --
</TABLE>
- ------------------------
(1) Each of the options listed in the table is immediately exercisable. The
shares purchasable thereunder are subject to repurchase by the Company at
the original exercise price paid per share upon the optionee's cessation of
service prior to vesting in such shares. The repurchase right lapses and the
optionee vests in a series of equal monthly installments over thirty-six
months of service commencing on the date of grant of the option. These
options were granted at an exercise price equal to the fair market value of
the Company's Common Stock as determined by the Board of Directors of the
Company on the date of grant. Each option has a maximum term of ten (10)
years, subject to earlier termination in the event of the optionee's
cessation of employment with the Company.
(2) In March 1997, the Board of Directors approved a repricing of all options
granted under the Company's stock option plans that were outstanding on such
date and had an exercise price in excess of the fair market value of the
Company's Common Stock on such date of $2.25 per share. This option
repricing resulted in the cancellation of all the options granted in the
last fiscal year to the Named Executive Officers and a regrant of options
for the same number of shares at an exercise price of $2.25 per share.
(3) The exercise price may be paid in cash, in shares of the Company's Common
Stock valued at fair market value on the exercise date or through a cashless
exercise procedure involving a same-day sale of the purchased shares. The
Company may also finance the option exercise by loaning the optionee
sufficient funds to pay the exercise price for the purchased shares,
together with any federal and state income tax liability incurred by the
optionee in connection with such exercise.
55
<PAGE>
The following table sets forth information concerning option holdings for
the year ended December 31, 1996 with respect to each of the Named Executive
Officers. No stock appreciation rights were exercised during such year or were
outstanding at the end of that year.
AGGREGATED OPTION EXERCISES IN LAST FISCAL YEAR AND FY-END OPTION VALUES
<TABLE>
<CAPTION>
VALUE OF UNEXERCISED
NUMBER OF UNEXERCISED OPTIONS IN-THE-MONEY OPTIONS AT
AT FISCAL YEAR END FISCAL YEAR END(1)
SHARES ACQUIRED VALUE ------------------------------ --------------------------
NAME ON EXERCISE(#) REALIZED($) EXERCISABLE UNEXERCISABLE EXERCISABLE UNEXERCISABLE
- ------------------------------- --------------- ----------- ----------- ----------------- ----------- -------------
<S> <C> <C> <C> <C> <C> <C>
John J. Ambrose................ -- -- 145,000 -- $ -- $ --
Raymond R. Kingman, Jr......... 72,000 379,517 5,894 -- 4,028 --
Donald B. Witmer............... -- -- 185,000 -- 337,500 --
William G. Pryor............... -- -- 101,894 -- 250,000 --
</TABLE>
- ------------------------
(1) Based on the closing price per share of the Company's Common Stock as listed
on the Nasdaq Small Cap Market as of December 31, 1996 of $6.00, less the
per share exercise price.
COMPANY STOCK OPTION PLANS
1990 KEY EMPLOYEE INCENTIVE STOCK OPTION PLAN. The Company's 1990 Key
Employee Incentive Stock Option Plan (the "1990 Plan") was originally adopted by
the Board of Directors and approved by the Company's shareholders effective July
1, 1990 and was restated by the Board on June 17, 1992, which restatement was
approved by the shareholders on August 27, 1992. The 1990 Plan authorizes for
issuance 38,922 shares of Common Stock. As of June 30, 1997, 2,143 shares had
been issued under the 1990 Plan, options to purchase an aggregate of 33,720
shares were outstanding and options to purchase 3,059 shares remained available
for future grant. Shares of Common Stock subject to outstanding options which
expire or terminate prior to exercise will be available for future issuance
under the 1990 Plan.
Under the 1990 Plan, key employees (including officers) may, at the
discretion of the plan administrator, be granted options to purchase shares of
Common Stock at an exercise price not less than the fair market value of such
shares on the grant date. Options granted under the 1990 Plan become exercisable
for 25% of the option shares on the first anniversary of the grant date and for
the balance of the shares in 36 equal monthly installments thereafter, unless
otherwise provided by the plan administrator. In the event the Company or its
shareholders enter into an agreement to dispose of all or substantially all of
the assets or stock of the Company by means of a sale, a reorganization, a
liquidation or otherwise, each outstanding option shall become immediately
exercisable in full for all of the option shares. Each such option shall
thereupon terminate. Each option shall have a maximum term of ten (10) years.
The 1990 Plan may be administered by the Board or the Compensation Committee
of the Board. The plan administrator has complete discretion to determine which
eligible individuals are to receive option grants, the number of shares subject
to each such grant, the status of any granted option as either an incentive
option or a non-statutory option under the Federal tax laws, the vesting
schedule to be in effect for each option grant and the maximum term for which
each granted option is to remain outstanding.
The exercise price for options granted under the 1990 Plan may be paid in
cash or in outstanding shares of Common Stock.
The Board may amend or modify the 1990 Plan at any time. Certain amendments
require shareholder approval. The 1990 Plan will terminate on June 30, 2000,
unless sooner terminated by the Board.
56
<PAGE>
1992 NON-STATUTORY STOCK OPTION PLAN. The Company's 1992 Non-Statutory
Stock Option Plan (the "1992 Plan") was originally adopted by the Board of
Directors and approved by the Company's shareholders effective July 1, 1992 and
was restated by the Board on June 17, 1992, which restatement was approved by
the shareholders on August 27, 1992. The 1992 Plan authorizes for issuance
28,301 shares of Common Stock. As of June 30, 1997, no shares had been issued
under the 1992 Plan, options to purchase an aggregate of 13,780 shares were
outstanding and options to purchase 14,521 shares remained available for future
grant. Shares of Common Stock subject to outstanding options which expire or
terminate prior to exercise will be available for future issuance under the 1992
Plan.
Under the 1992 Plan, key employees (including officers) and consultants of
the Company or of any subsidiary and certain entities may, at the discretion of
the plan administrator, be granted non-statutory options to purchase shares of
Common Stock at an exercise price not less than the fair market value of such
shares on the grant date. Options granted under the 1992 Plan are fully vested
and immediately exercisable on the grant date. In the event the Company or its
shareholders enter into an agreement to dispose of all or substantially all of
the assets or stock of the Company by means of a sale, a reorganization, a
liquidation or otherwise, each outstanding option shall thereupon terminate. In
no event, may an option have a term of more than five (5) years.
The 1992 Plan may be administered by the Board or the Compensation Committee
of the Board. The plan administrator has complete discretion to determine which
eligible individuals are to receive option grants, the number of shares subject
to each such grant and the terms and conditions of exercise with respect to each
option grant.
The exercise price for options granted under the 1992 Plan may be paid in
cash, in outstanding shares of Common Stock, or through the net exercise of the
option. Shares may be deducted from the shares to be issued upon exercise of an
option granted under the 1992 Plan to satisfy the optionee's income tax
withholding obligations. Options may also be exercised on a cashless basis
through the same-day sale of the purchased shares.
The plan administrator has the authority to effect, from time to time, the
cancellation of outstanding options under the 1992 Plan, in exchange for the
grant of new options for the same or different number of option shares with an
exercise price per share based upon the fair market value of the Common Stock on
the new grant date.
The Board may amend or modify the 1992 Plan at any time. Certain amendments
require shareholder approval. The 1992 Plan will terminate on June 30, 2002,
unless sooner terminated by the Board.
1995 STOCK OPTION PLAN. The Company's 1995 Stock Option Plan (the "1995
Plan") was adopted by the Board of Directors on November 8, 1995, and approved
by the shareholders of the Company in December, 1995. The Company initially
reserved 620,000 shares of Common Stock for issuance under the 1995 Plan. On
February 15, 1996 and April 22, 1996, the Board of Directors approved a share
increase of 200,000 shares to be reserved for issuance under the 1995 Plan to a
total of 820,000 shares, which share increase was subsequently approved by the
Company's shareholders at the 1996 annual meeting. On March 21, 1997, the Board
of Directors approved a share increase of 400,000 shares to be reserved for
issuance under the 1995 Plan to a total of 1,220,000 shares, which share
increase was subsequently approved by the Company's shareholders at the 1997
annual meeting. As of June 30, 1997, 85,333 shares had been issued under the
1995 Plan, options for 744,337 shares were outstanding and 390,225 shares
remained available for future grant under the 1995 Plan. Shares of Common Stock
subject to outstanding options which expire or terminate prior to exercise will
be available for future issuance under the 1995 Plan.
Under the 1995 Plan, employees (including officers) and independent
consultants may, at the discretion of the plan administrator, be granted options
to purchase shares of Common Stock at an
57
<PAGE>
exercise price not less than 85% of the fair market value of such shares on the
grant date. Non-employee members of the Board of Directors will be eligible
solely for automatic option grants under the 1995 Plan.
The 1995 Plan may be administered by the Compensation Committee of the
Board. The Compensation Committee has complete discretion to determine which
eligible individuals are to receive option grants, the number of shares subject
to each such grant, the status of any granted option as either an incentive
option or a non-statutory option under the Federal tax laws, the vesting
schedule to be in effect for each option grant and the maximum term for which
each granted option is to remain outstanding. In no event, however, may any one
participant in the 1995 Plan acquire in excess of 360,000 shares of Common Stock
under the 1995 Plan.
The exercise price for options granted under the 1995 Plan may be paid in
cash or in outstanding shares of Common Stock. Options may also be exercised on
a cashless basis through the same-day sale of the purchased shares. The
Compensation Committee may also permit the optionee to pay the exercise price
through a promissory note payable in installments over a period of years. The
amount financed may include any Federal or state income and employment taxes
incurred by reason of the option exercise.
Each option granted to an officer of the Company subject to the short-swing
profit restrictions of the Federal securities laws includes a special stock
appreciation right that provides that, upon the acquisition of more than 50% of
the Company's outstanding voting stock pursuant to a hostile tender offer, such
option, if outstanding for at least six months, may be surrendered to the
Company in exchange for a cash distribution to the officer based upon the tender
offer price per share of Common Stock at the time subject to the surrendered
option.
The Compensation Committee has the authority to effect, from time to time,
the cancellation of outstanding options under the 1995 Plan in return for the
grant of new options for the same or different number of option shares with an
exercise price per share based upon the fair market value of the Common Stock on
the new grant date.
In the event the Company is acquired by merger, consolidation or asset sale,
except as provided otherwise in specific option grants, the shares of Common
Stock subject to each option outstanding at the time under the 1995 Plan will
immediately vest in full, except to the extent the Company's repurchase rights
with respect to those shares are to be assigned to the acquiring entity, and
options will accelerate to the extent not assumed by the acquiring entity. The
Compensation Committee also has discretion to provide for the acceleration of
one or more outstanding options under the 1995 Plan and the vesting of shares
subject to outstanding options upon the occurrence of certain hostile tender
offers. Such accelerated vesting may be conditioned upon the subsequent
termination of the affected optionee's service.
Under the automatic grant program, each individual who first joins the Board
as a non-employee director on or after the effective date of the 1995 Plan will
receive at that time, an automatic option grant for 20,000 shares of Common
Stock. In addition, at each annual shareholders meeting, beginning in 1997, each
non-employee director will automatically be granted at that meeting, whether or
not he or she is standing for re-election at that particular meeting, a stock
option to purchase 1,000 shares of Common Stock, provided such individual has
served on the Board for at least six months prior to such meeting. Each option
will have an exercise price equal to the fair market value of the Common Stock
on the automatic grant date and a maximum term of ten years, subject to earlier
termination following the optionee's cessation of Board service. Each option
will be immediately exercisable for all of the shares but the shares will be
subject to repurchase at original cost. The repurchase right shall lapse and the
optionee vest in a series of three equal annual installments over the optionee's
period of Board service, beginning one year from the grant date. However,
vesting of the shares will automatically accelerate upon (i) an acquisition of
the Company by merger, consolidation or asset sale, (ii) a hostile take-over of
the Company effected by tender offer for more than 50% of the outstanding voting
stock or proxy contest for Board membership or (iii) the death or disability of
the optionee while serving as a Board member.
58
<PAGE>
In the event that more than 50% of the Company's outstanding voting stock
were to be acquired pursuant to a hostile tender offer, each automatic option
grant that has been outstanding for at least six months may be surrendered by
the optionee in return for a cash distribution from the Company based upon the
tender offer price per share of Common Stock at the time subject to the canceled
option.
The Board may amend or modify the 1995 Plan at any time. The 1995 Plan will
terminate on November 7, 2005, unless sooner terminated by the Board.
401(k) PLAN. During 1992, the Company established a deferred compensation
plan (the "401(k) Plan") pursuant to Section 401(k) of the Internal Revenue Code
(the "Code"), whereby substantially all employees are eligible to contribute up
to 20% of their pre-tax earnings, not to exceed amounts allowed under the Code.
The Company may make contributions to the 401(k) Plan at the discretion of the
Board of Directors. No Company contributions have been made to the 401(k) Plan
by the Company.
LIMITATIONS ON LIABILITY AND INDEMNIFICATION MATTERS
The Company has adopted provisions in its Restated Articles of Incorporation
that eliminate to the fullest extent permissible under California law the
liability of its directors to the Company for monetary damages. Such limitation
of liability does not affect the availability of equitable remedies such as
injunctive relief or rescission. The Company's Bylaws provide that the Company
shall indemnify its directors and officers to the fullest extent permitted by
California law, including in circumstances in which indemnification is otherwise
discretionary under California law. The Company has entered into indemnification
agreements with its officers and directors containing provisions which may
require the Company, among other things, to indemnify the officers and directors
against certain liabilities that may arise by reason of their status or service
as directors or officers (other than liabilities arising from willful misconduct
of a culpable nature), and to advance their expenses incurred as a result of any
proceeding against them as to which they could be indemnified.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the small
business issuer pursuant to the foregoing provisions, or otherwise, the small
business issuer has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities
(other than the payment by the small business issuer of expenses incurred or
paid by a director, officer or controlling person of the small business issuer
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the small business issuer will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
At the present time, there is no pending litigation or proceeding involving
a director, officer, employee or other agent of the Company in which
indemnification would be required or permitted. The Company is not aware of any
threatened litigation or proceeding which may result in a claim for such
indemnification.
59
<PAGE>
CERTAIN TRANSACTIONS
PRIVATE PLACEMENT TRANSACTIONS
The Company has issued and sold the following securities to persons who are
principal shareholders or directors of the Company. Each share of Series A,
Series B, Series C and Series D Preferred Stock was affected by a one-for-5.3
reverse stock split before giving effect to the conversion of such outstanding
Preferred Stock upon the closing of the Company's initial public offering in
December 1995 (the "IPO"):
<TABLE>
<CAPTION>
SHARES OF
SHARES OF SHARES OF SHARES OF SHARES OF WARRANTS TO COMMON STOCK
SERIES A SERIES B SERIES C SERIES D PURCHASE ISSUED UPON
PREFERRED PREFERRED PREFERRED PREFERRED COMMON PROMISSORY NOTE
INVESTOR(1) STOCK(2) STOCK(3) STOCK(4) STOCK(5) STOCK(6) CONVERSION(7)
- ------------------------------------------- ----------- ----------- ----------- ----------- ----------- ---------------
<S> <C> <C> <C> <C> <C> <C>
Entities Affiliated with Hummer Winblad
Venture Partners(8)...................... 55,341 22,641 43,620 26,801 27,629 31,667
Entities Affiliated with Oak Investment
Partners V, L.P.......................... -- 60,377 34,269 48,242 45,209 31,667
</TABLE>
- ------------------------
(1) Shares held by all affiliated persons and entities have been aggregated. See
"Principal and Selling Shareholders."
(2) The shares were issued in October 1990. The per share purchase for the
Series A Preferred Stock was $18.10.
(3) The shares were issued in June 1992. The per share purchase price for the
Series B Preferred Stock was $33.13.
(4) The shares were issued in April 1994. The per share purchase price for the
Series C Preferred Stock was $5.78.
(5) The shares were issued in May 1995. The per share purchase price for the
Series D Preferred Stock was $9.33. The consideration paid for such stock
was a combination of cash and cancellation of indebtedness.
(6) The warrants were issued in March 1992, March 1993 and May 1995.
(7) Represents shares of Common Stock issued upon the conversion of the notes at
a conversion price of $3.25 per share. Of the $300,000 principal amount of
the notes, $150,000 was issued to Hummer Winblad Venture Partners ("Hummer
Winblad Ventures") and an affiliate and $150,000 was issued to Oak
Investment Partners V, L.P. ("Oak Investment") and an affiliate. In November
1995, Hummer Winblad Ventures and Oak Investment and their respective
affiliates agreed to convert the principal amount of such notes, plus
accrued interest, into an aggregate of 63,334 shares of Common Stock. In
consideration for such agreement, in November 1995 the Company issued each
of Hummer Winblad Ventures and Oak Investment warrants to purchase 31,667
shares of Common Stock exercisable at a price of $7.20 per share for a
period of 30 months following December 26, 1995 and at a price of $8.40 per
share thereafter through November 6, 2000. See "Description of Capital
Stock--Warrants."
(8) Mr. Hummer, an affiliate of Hummer Winblad Venture Partners and Hummer
Winblad Technology Fund ("Hummer Winblad Technology"), is a director of the
Company.
In November 1995, the Company issued 125,000 units (the "Unit Offering"),
each unit consisting of two shares of Series E Preferred Stock and a warrant to
purchase one share of Common Stock, for $8.00 per unit. Each share of Series E
Preferred Stock converted into one share of Common Stock upon the closing of the
Company's initial public offering in December 1995. Hummer Winblad Ventures
purchased 3,125 units, Oak Investment purchased 6,113 units and its affiliate,
Oak V Affiliates Fund, L.P. ("Oak
60
<PAGE>
Affiliates") purchased 137 units. American High Growth Equities Retirement Fund
Trust purchased 50,000 units. See "Description of Capital Stock--Warrants."
In November 1996, the Company issued 30,970 shares of Common Stock to Oak
Investment, 697 shares of Common Stock to Oak Affiliates, 30,084 shares of
Common Stock to Hummer Winblad Ventures and 1,583 shares of Common Stock to
Hummer Winblad Technology, all pursuant to the conversion of the notes described
in the chart and footnote 7 above.
In December 1996, the Company issued an aggregate of 145,547 shares of
Common Stock to Oak Investment and Oak Affiliates at a price of $5.00 per share
pursuant to the exercise of warrants, including the warrants described in the
chart and footnote 7 above, of which warrants to purchase 62,421 shares were
acquired from Hummer Winblad Ventures and Hummer Winblad Technology.
In December 1996, the Company issued $2,000,000 in principal amount of
Convertible Notes to HRO pursuant to the Debt Financing (as defined below). In
April through June, 1997, HRO converted $457,120 in principal amount of
Convertible Notes into an aggregate of 307,000 shares of Common Stock, at an
average conversion price of $1.53 per share. At June 30, 1997 the remaining
$1,530,000 principal balance of the Convertible Notes held by HRO were converted
into Series A Preferred Stock. In July and August, 1997, HRO converted all
holdings of Series A Preferred Stock into 1,214,836 shares of Common Stock, at
an average conversion price of $1.26 per share. See "Description of Capital
Stock--Preferred Stock and Convertible Notes and --Warrants."
EMPLOYMENT CONTRACTS
In November 1995, the Company entered into employment agreements with
Raymond R. Kingman, Jr., who served as President and Chief Executive Officer of
the Company until his resignation as an officer and director on April 5, 1996,
and William G. Pryor, Vice President of Development. The agreements provide for
a grant to each individual of an option to purchase 100,000 shares of Common
Stock at an exercise price of $3.50 per share. The option is immediately
exercisable but subject to a right of repurchase by the Company at the original
exercise price paid per share upon the optionee's cessation of service prior to
vesting in such shares. The repurchase right lapses and the optionee vests in a
series of equal monthly installments over 36 months, beginning on the one-month
anniversary of the grant date, and lapses in full upon a specified Change in
Control of the Company (as defined). The agreement also provides that each of
Messrs. Kingman and Pryor will receive a severance payment in the amount of six
to twelve months of his base salary and other benefits if his employment is
terminated in certain circumstances, such as an involuntary termination other
than for cause (six months base salary) or an involuntary termination within
twenty-four months of a Change in Control (twelve months base salary).
In connection with his resignation on April 5, 1996, the Company entered
into a Separation Agreement and Release with Mr. Kingman which, among other
things, provided for certain payments and other financial compensation. Pursuant
to such agreement, the Company agreed to pay Mr. Kingman a severance payment of
$108,000 and to accelerate vesting of 62,500 of his 100,000-share option grant.
The Company also agreed to provide continued health care for a period of up to
12 months.
In connection with his resignation to be effective October 9, 1997, the
Company entered into a Separation Agreement and Release with Mr. Pryor on August
5, 1997 which, among other things, provided for certain payments and other
financial compensation. Pursuant to such agreement, the Company agreed to pay
Mr. Pryor a 6 month severance payment payable bi-weekly over a 6 month period,
to accelerate vesting of his remaining unvested options totaling 33,113 and to
grant Mr. Pryor 25,000 shares of Common stock.
In November 1995, the Company also entered into an employment agreement with
Donald B. Witmer, pursuant to which Mr. Witmer became Vice President of Finance
and Administration and Chief Financial Officer of the Company. The agreement
provides for an annual salary of $120,000, a $2,000 per month housing allowance
and a $500 per month car allowance. The agreement also provides for a grant of
61
<PAGE>
an option to purchase 135,000 shares of Common Stock at an exercise price of
$3.50 per share. The option is immediately exercisable but subject to a right of
repurchase by the Company at the original exercise price paid per share upon the
optionee's cessation of service prior to vesting in such shares. The repurchase
right lapses and the optionee vests in a series of equal monthly installments
over 36 months, beginning on the date Mr. Witmer commences employment, and
lapses in full upon a specified Change in Control of the Company (as defined).
The option has a maximum term of ten (10) years, subject to earlier termination
in the event of the optionee's cessation of service with the Company. The
agreement also provides that Mr. Witmer will receive a severance payment in the
amount of six to twelve months of his base salary and other benefits if his
employment is terminated in certain circumstances, such as an involuntary
termination other than for cause (six months base salary plus bonus and other
benefits) or an involuntary termination within twenty-four months of a Change in
Control (twelve months base salary plus bonus and other benefits). In May 1997,
the Company fully vested Mr. Witmer's option in lieu of payments owed to Mr.
Witmer as part of his annual salary in order to alleviate operating cash
constraints. On June 20, 1997, Mr. Witmer voluntarily terminated his employment
with the Company.
In March 1996, John J. Ambrose executed an offer letter with the Company,
pursuant to which Mr. Ambrose became Chief Executive Officer in April 1996. The
offer letter provides for an annual salary of $120,000, a signing bonus of
$25,000 and a grant of an option to purchase 145,000 shares of Common Stock.
John Ambrose's service as Chief Executive Officer and a director of the Company
ceased on March 27, 1997. On July 3, 1997, the Company and Mr. Ambrose entered
into a Separation Agreement and Release in connection with his resignation,
which provided for a severance payment of $95,000.
TRANSACTIONS WITH H.J. MEYERS & CO., INC.
Patrick W. Grady, a director of the Company, is a Managing Director Venture
Capital of H.J. Meyers & Co., Inc. ("H.J. Meyers"). The Company retained H.J.
Meyers to act as placement agent in connection with the Unit Offering. For
acting as placement agent, H.J. Meyers received a fee of 10.00% of the aggregate
proceeds from the Unit Offering and a non-accountable expense allowance of 3% of
such aggregate proceeds. The Company also agreed to indemnity H.J. Meyers for
certain liabilities, including those arising under the Securities Act, for
serving as placement agent.
The Company retained H.J. Meyers to act as placement agent in connection
with the Debt Financing. Under the terms of the placement agent agreement, H.J.
Meyers received a placement fee of 7% of the gross proceeds from the Debt
Financing, reimbursement of accountable expenses of 1% of such gross proceeds
and a warrant to purchase 16,538 shares of Common Stock at an exercise price of
$6.50 per share. The Company granted the holder of the warrant certain
registration rights with respect thereto and the shares of Common Stock issuable
upon its exercise. See "Description of Capital Stock--Registration Rights." The
Company also agreed to indemnify H.J. Meyers for certain liabilities, including
those arising under the Securities Act, for serving as placement agent in
connection with the Debt Financing.
The Company's initial public offering was underwritten and this Offering is
being underwritten by H.J. Meyers. In addition to an underwriting discount of
$660,000, in connection with the Company's initial public offering, the Company
paid H.J. Meyers a non-accountable expense allowance equal to 2.5% of the gross
proceeds from the initial public offering. In connection with its initial public
offering, the Company also issued to H.J. Meyers a warrant to purchase up to
110,000 shares of Common Stock at a price of $7.20 per share at any time during
the four-year period commencing December 20, 1996. The Company has granted the
holder of such warrant certain registration rights with respect thereto and the
shares of Common Stock issuable upon its exercise.
At the closing of this Offering, the Company will pay to H.J. Meyers an
underwriting discount in addition to a non-accountable expense allowance equal
to 3% of the gross proceeds from the Offering. The Company also will issue to
H.J. Meyers the Underwriter's Warrant to purchase up to 320,000 shares of Common
Stock at a price of $ per share, which will be exercisable at any time during
the four-year period commencing one year from the date of this Prospectus. The
Company will grant certain registration
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<PAGE>
rights with respect to the Underwriter's Warrant and the shares of Common Stock
issuable upon its exercise.
The Company has also agreed to enter into a consulting agreement with H.J.
Meyers pursuant to which the Company will pay to H.J. Meyers a non-refundable
fee of $6,000 per month for 12 months in exchange for H.J. Meyer's performance
of certain consulting services related to corporate finance. The Company has
agreed to pay to H.J. Meyers the entire one year fee upon the closing of this
Offering. See "Underwriting."
The Company believes that all of the foregoing transactions were in its best
interests. All future transactions by the Company with officers, directors, 5%
shareholders and their affiliates will be entered into only if the Company
believes that such transactions are reasonably expected to benefit the Company
and the terms of such transactions are no less favorable to the Company than
could be obtained from unaffiliated parties.
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<PAGE>
PRINCIPAL SHAREHOLDERS
The following table sets forth certain information regarding beneficial
ownership of the Company's Common Stock as of September 22, 1997, and as
adjusted to reflect the sale of shares offered hereby, by (i) each person who is
known by the Company to own beneficially more than 5% of the Company's Common
Stock, (ii) each director of the Company, (iii) each Named Executive Officer and
(iv) all directors and executive officers as a group. Except as otherwise
indicated, the Company believes that the beneficial owners of the Common Stock
listed below, based on information furnished by such owners, have investment and
voting power with respect to such shares, subject to community property laws
where applicable.
<TABLE>
<CAPTION>
PERCENTAGE OF SHARES BENEFICIALLY
NUMBER OF SHARES OWNED(2)
BENEFICIALLY ----------------------------------
NAME AND ADDRESS OF BENEFICIAL OWNER(1) OWNED BEFORE OFFERING AFTER OFFERING
- --------------------------------------------------------------- ----------------- ----------------- ---------------
<S> <C> <C> <C>
Entities affiliated with Hummer Winblad Venture Partners(3) ... 186,321 4.0% 2.3%
Two South Park
Second Floor
San Francisco, CA 94107
Entities affiliated with Oak Investment Partners V, L.P.(4) ... 332,601 7.1% 4.0%
One Gorham Island
Westport, CT 06880
Jeffrey F. Ait(5) ............................................. 244,000 5.0% 2.9%
c/o DeltaPoint, Inc.
22 Lower Ragsdale Drive
Monterey, CA 93940
William G. Pryor(6) ........................................... 141,535 3.0% 1.7%
c/o DeltaPoint, Inc.
22 Lower Ragsdale Drive
Monterey, CA 93940
Donald B. Witmer(7) ........................................... 203,750 4.2% 2.4%
c/o Delta Point, Inc.
22 Lower Ragsdale Drive
Monterey, CA 93940
John Hummer(3) ................................................ 186,321 4.0% 2.3%
c/o Hummer Winblad Venture Partners
Two South Park
Second Floor
San Francisco, CA 94107
Patrick W. Grady(8) ........................................... 147,538 7.3% 1.8%
c/o Delta Point, Inc.
22 Lower Ragsdale Drive
Monterey, CA 93940
Joseph Marengi(9) ............................................. 52,000 1.1% *
c/o Delta Point, Inc.
22 Lower Ragsdale Drive
Monterey, CA 93940
Stephen Mendel(10) ............................................ 143,713 3.1% 1.7%
c/o Delta Point, Inc.
22 Lower Ragsdale Drive
Monterey, CA 93940
All directors and executive officers as a group (5
persons)(11)................................................. 773,572 15.1% 8.9%
</TABLE>
- ------------------------
* Less than one percent (1%).
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<PAGE>
(1) To the Company's knowledge, the persons named in the table have sole voting
and investment power with respect to all shares of Common Stock shown
beneficially owned by them, subject to community property laws where
applicable and the information contained in the footnotes to this table.
(2) Percentage ownership is based on: (i) before the Offering, 4,681,381 shares
of Common Stock outstanding as of September 22, 1997 and any shares issuable
pursuant to securities convertible into or exercisable for shares of Common
Stock by the person or group in question on September 22, 1997 or within 60
days thereafter; and (ii) after the Offering, the additional 3,200,000
shares to be issued by the Company in the Offering and the 360,000 shares to
be issued in the Inlet Technology Acquisition.
(3) Consists of 181,877 shares of Common Stock held by Hummer Winblad Venture
Partners and 4,444 shares of Common Stock held by Hummer Winblad Technology
Fund ("Hummer Winblad Technology"). Mr. Hummer, a director of the Company,
is a General Partner of Hummer Winblad Equity Partners, which is the General
Partner of Hummer Winblad Venture Partners and Hummer Winblad Technology.
Mr. Hummer disclaims beneficial ownership of the securities held by these
entities except to the extent of his pecuniary interest therein arising from
his general partnership interest in Hummer Winblad Equity Partners.
(4) Consists of 325,289 shares of Common Stock held by Oak Investment Partners
V, L.P. ("Oak Investment") and 7,312 shares of Common Stock held by Oak V
Affiliates Fund, L.P. ("Oak Affiliates"). Edward F. Glassmeyer is a general
partner of Oak Investment and Oak Affiliates. Mr. Glassmeyer disclaims
beneficial ownership of the securities held by these entities, except to the
extent of his pecuniary interest therein arising from his general
partnership in Oak Investment. See "Description of Capital Stock--Warrants."
Oak Affiliates is an affiliate of Oak Investment.
(5) Includes 225,000 shares of Common Stock subject to a stock option granted
in March 1997 which is currently exercisable or exercisable within sixty
(60) days after September 22, 1997.
(6) Includes 101,894 shares of Common Stock subject to stock options currently
exercisable or exercisable within sixty (60) days after September 22, 1997,
including an option to purchase 100,000 shares of Common Stock granted on
November 10, 1995 that is immediately exercisable but subject to a right of
repurchase upon termination of employment that lapses in equal monthly
installments over 36 months and lapses in full upon a specified change in
control. See "Management--Stock Option Information" and "Certain
Transactions--Employment Contracts."
(7) Consists of 12,500 shares of Common Stock, an immediately exercisable
Warrant to purchase 6,250 shares of Common Stock and an option to purchase
135,000, 10,000 and 40,000 shares of Common Stock, respectively granted on
November 10, 1995, April 22, 1996 and November 4, 1996, respectively that is
immediately exercisable but subject to a right of repurchase upon
termination of employment that lapses in equal monthly installments over 36
months and lapses in full upon a specified change in control. See "Certain
Transactions--Employment Contracts."
(8) Includes an option to purchase 20,000 shares of Common Stock granted on
August 13, 1996 and 1,000 shares of Common Stock granted on June 20, 1997
that is immediately exercisable but subject to a right of repurchase upon
termination of service as a director that lapses in equal annual
installments over three years and lapses in full on a specified change in
control. See "Management--1995 Stock Option Plan." Also includes 110,000
shares of Common Stock that may be acquired by H.J. Meyers upon exercise of
the warrant issued to H.J. Meyers in connection with the Company's initial
public offering and 16,538 shares of Common Stock that may be acquired upon
exercise of the warrant issued to H.J. Meyers in connection with the Debt
Financing. Mr. Grady, a director of the Company, is a Managing Director,
Venture Capital of H.J. Meyers. Mr. Grady disclaims beneficial ownership of
the securities that may be acquired by H.J. Meyers except to the extent of
his pecuniary interest therein.
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(9) Consists of 50,000 shares of Common Stock subject to a stock option granted
in July 1997 which is currently exercisable or exercisable within sixty (60)
days after September 22, 1997 but subject to a right of repurchase upon
termination of service as a director that lapses in equal annual
installments over three years and lapses in full on a specified change in
control.
(10) Includes an option to purchase 20,000 shares of Common Stock granted in
July 1997 that is immediately exercisable but subject to a right of
repurchase upon termination of service as a director that lapses in equal
annual installments over three years and lapses in full on a specified
change in control. Also includes 123,713 shares of Common Stock held by SLF
Partners II, L.P. and SLF Partners III, L.P. Mr. Mendel, a director of the
Company, is a special limited partner in each of SLF Partners II, L.P. and
SLF Partners III, L.P. Mr. Mendel disclaims beneficial ownership of the
securities held by these entities except to the extent of his pecuniary
interest therein arising from his limited partnership interest in SLF
Partners II, L.P. and SLF Partners III, L.P.
(11) Consists of 331,034 shares of Common Stock, immediately exercisable
warrants to purchase 126,538 shares of Common Stock and 316,000 shares of
Common Stock subject to stock options currently exercisable or exercisable
within sixty (60) days of September 22, 1997.
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DESCRIPTION OF CAPITAL STOCK
As of September 22, 1997 the Company is authorized to issue 25,000,000
shares of Common Stock, no par value, and 4,000,000 shares of Preferred Stock,
no par value.
COMMON STOCK
As of September 22, 1997, there were 4,681,381 shares of Common Stock
outstanding held of record by approximately 60 shareholders. The holders of
Common Stock are entitled to one vote per share on all matters to be voted on by
shareholders. In the election of directors, however, cumulative voting is
authorized for all shareholders if any shareholder gives notice at a meeting,
prior to voting for the election of directors, of his or her intention to
cumulate votes. Subject to the prior rights of holders of Preferred Stock, if
any, the holders of Common Stock are entitled to receive such dividends, if any,
as may be declared from time to time by the Board of Directors in its discretion
from funds legally available therefor. The Common Stock has no preemptive or
other subscription rights and there are no conversion rights or redemption or
sinking fund provisions with respect to such shares. All of the outstanding
shares of Common Stock are fully paid and non-assessable.
PREFERRED STOCK AND CONVERTIBLE NOTES
At the closing of the Company's initial public offering in December 1995,
all previously outstanding shares of Preferred Stock were converted into Common
Stock. As of September 22, 1997, the Company is authorized to issue up to
4,000,000 shares of undesignated Preferred Stock. The Board of Directors has the
authority to issue the undesignated Preferred Stock in one or more series and to
fix the rights, preferences, privileges and restrictions granted to or imposed
upon any wholly unissued shares of undesignated Preferred Stock, as well as to
fix the number of shares constituting any series and the designations of such
series, without any further vote or action by the shareholders. The Board of
Directors, without shareholder approval, may issue Preferred Stock with voting
and conversion rights which could materially adversely affect the voting power
of the holders of Common Stock. The issuance of Preferred Stock could also
decrease the amount of earnings and assets available for distribution to holders
of Common Stock. In addition, the issuance of Preferred Stock may have the
effect of delaying, deferring or preventing a change in control of the Company.
In December 1996, the Company raised approximately $1,949,000 in net
proceeds from the sale and issuance of 6% Convertible Subordinated Debentures
("Convertible Notes") to HRO and an additional investor (the "Debt Financing").
The Company issued $2,150,000 principal amount of Convertible Notes that were
convertible at the option of the holders thereof, in whole or in part, into
shares of Common Stock, at a conversion price (the "Conversion Price") equal to
the lower of (i) 80% of the average closing bid price of the Common Stock, as
publicly reported, for the five business days prior to the business day on which
notice of conversion is transmitted by the note holder (or, in the event of
automatic conversion, as described below, five business days prior to the
business day on which the conversion is deemed to take place) or (ii) $6.70. All
unconverted Convertible Notes would convert automatically into Common Stock at
the Conversion Price on the second anniversary of the Debt Financing closing, or
earlier in the event of a merger of the Company into another entity, a change in
control of the Company or a sale of all or substantially all the Company's
assets. The Conversion Price was subject to adjustment in certain circumstances.
The Convertible Notes may have been redeemed by the Company at 120% of the
principal amount being redeemed, plus accrued interest, at the Company's sole
election if the average closing offer price for the Common Stock for any
five-day period was below $4.00. As of September 22, 1997 and after giving
effect to the Series A Transaction (as described below), all Convertible Notes
had been exchanged for Common Stock or Series A Preferred Stock.
In May 1997, the Company entered into a Series A Preferred Stock Purchase
Agreement (the "Series A Purchase Agreement") with HRO, pursuant to which HRO
agreed to exchange the entire then-
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outstanding principal amount of Convertible Notes held by it for shares of the
Company's Series A Preferred Stock ("Series A Preferred Stock") at a purchase
price of $1,000 principal amount of Convertible Notes per share of Series A
Preferred Stock (such transaction being referred to herein as the "Series A
Transaction").
In connection with the Series A Transaction, each share of Series A
Preferred Stock is convertible, at any time, at the option of the holder, into
the number of shares of the Company's Common Stock determined by dividing $1,000
by the lower of (i) 80% of the average of the fair market value of the Common
Stock for the five business days prior to the conversion date, or (ii) $3.50 per
share. The conversion price is subject to adjustment in certain circumstances.
The shares of Series A Preferred Stock are also automatically convertible into
Common Stock on the second anniversary of their issue date or, if earlier, upon
the occurrence of certain other events. The holders of Series A Preferred Stock
are entitled to cumulative dividends at an annual rate of $90.00 per share,
payable quarterly. Dividends are payable in cash or, at the Company's election,
in shares of Common Stock valued at 80% of the average fair market value thereof
for the five business days prior to the day on which dividends are payable. Upon
liquidation of the Company or a merger of the Company that results in the
transfer of 50% or more of the voting power of the Company or the sale of all or
substantially all of the Company's assets, holders of Series A Preferred Stock
are entitled to receive $1,000 per share plus any accrued but unpaid dividends.
The conversion of HRO's Convertible Notes into the Series A Preferred Stock
took place on June 30, 1997. As of September 22, 1997, all Series A Preferred
Stock had been exchanged for Common Stock.
WARRANTS
The Company issued warrants to purchase an aggregate of 125,000 shares of
Common Stock on November 6, 1995. The warrants are exercisable for a five-year
period commencing on November 6, 1995. The exercise price of the warrants is
$7.20 per share of Common Stock through June 26, 1998 and $8.40 per share of
Common Stock thereafter through November 6, 2000. The warrants contain
anti-dilution provisions providing adjustment in the event of certain dilutive
issuances and any recapitalization, stock dividend, stock split or similar
transaction. The warrants do not entitle the holder thereof to any rights as a
shareholder of the Company until the warrants are exercised and shares are
purchased thereunder. The warrants and the shares of Common Stock issuable upon
exercise thereof may not be offered for sale except in compliance with the
applicable provisions of the Securities Act. Of such warrants, warrants to
purchase an aggregate of 53,125 shares were exercised during November 1996 and
warrants to purchase an aggregate of 71,875 shares were outstanding at September
22, 1997. The Company has filed a registration statement in respect of such
warrants and the shares of Common Stock issuable upon the conversion thereof.
The Company has issued or will issue warrants to H.J. Meyers to purchase
shares of Common Stock in connection with the Company's initial public offering,
the Debt Financing and this Offering. With respect to (i) the warrant for
110,000 shares of Common Stock with an exercise price per share of $7.20 issued
in connection with the Company's initial public offering and exercisable for a
four-year period commencing December 20, 1996; (ii) the warrant for 16,538
shares of Common Stock with an exercise price per share of $6.50 issued in
connection with the Debt Financing and exercisable for a five-year period
commencing on December 31, 1996 and (iii) the Underwriter's Warrant to be
granted in connection with this Offering, the parties have agreed that such
warrants, subject to certain exceptions, are not transferable prior to their
exercise dates. Each of the warrants contains anti-dilution provisions providing
for adjustment in the event of any recapitalization, stock dividend, stock split
or similar transaction. The warrants do not entitle any holder thereof to any
rights as a shareholder of the Company until such warrants are exercised and
shares are purchased thereunder. The warrants and the shares of Common Stock
thereunder may not be offered for sale except in compliance with the applicable
provisions of the Securities Act. The Company has agreed that, if it shall cause
to be filed with the Securities and Exchange Commission a registration
statement, the holder(s) of the warrants have the right during certain specified
periods to include in such amendment or
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registration statement the warrant and the shares of Common Stock issuable upon
its exercise at no expense to the holder(s) thereof. H.J. Meyers has waived such
registration rights with respect to its existing warrants in connection with
this Offering. Additionally, the Company has agreed in each of the three
warrants that, upon written request by a holder or holders of 50% or more of the
warrant which is made during the exercise period of the warrant, the Company
will, on two separate occasions, register the warrant and the shares of Common
Stock issuable upon exercise thereof. The initial such registration will be at
the Company's expense and the second such registration will be at the expense of
the holder(s) of the warrant. The Company will use its best efforts to keep such
registration statement(s) for a period of at least 180 days (and up to an
additional 90 days if requested by the holder(s)) from the effective date
thereof. See "--Registration Rights" and "Underwriting."
REGISTRATION RIGHTS
On April 9, 1997, the Company has filed a post-effective amendment to a
registration statement on Form SB-2 (No. 333-17733) covering the resale of
298,396 shares of outstanding Common Stock issued upon conversion of Series D
Preferred Stock, conversion of certain promissory notes and issued in the Global
Technologies transaction. The Company also filed a post-effective amendment to a
registration statement on Form SB-2 on June 12, 1997 covering the resale of
262,922 outstanding shares of Common Stock, 71,875 shares of Common Stock
issuable upon exercise of outstanding warrants, and 71,875 outstanding warrants.
These registration statements were filed pursuant to the terms of the agreements
governing the issuance of the Common Stock issued or issuable pursuant thereto.
Such agreements require the Company to use its best efforts to maintain the
effectiveness of these registration statements for varying periods of time or
until the Company is satisfied that all of the Common Stock covered by such
registration statements could be resold pursuant to Rule 144.
The Company has granted or will grant registration rights to H.J. Meyers in
connection with the Company's grant of warrants to acquire shares of Common
Stock in connection with the Company's initial public offering, the Debt
Financing and this Offering. The Company has agreed that if it files a
registration statement covering its equity securities, H.J. Meyers shall have
the right to include in such registration statement the Common Stock shares
issuable upon exercise of the respective warrants; provided, however, that such
right shall expire (i) on December 20, 2000 with respect to the 110,000 shares
of Common Stock issuable upon conversion of the warrant granted in connection
with the Company's initial public offering; (ii) on January 1, 2002 with respect
to the 16,538 shares of Common Stock issuable upon conversion of the warrant
granted in connection with the Debt Financing; and (iii) on the day after the
fourth anniversary of the date of this Prospectus with respect to the shares
issuable upon conversion of the Underwriter's Warrant to be granted in
connection with this Offering. The Company has agreed to maintain the
effectiveness of such registration statement(s) for so long as such shares
remain outstanding. Additionally, the Company has agreed in each of the three
warrants that, upon written request by a holder or holders of 50% or more of the
warrant which is made during the exercise period of the warrant, the Company
will, on two separate occasions, register the warrant and the shares of Common
Stock issuable upon exercise thereof. The initial such registration will be at
the Company's expense and the second such registration will be at the expense of
the holder(s) of the warrant. See "Description of Capital Stock--Warrants."
In connection with the Site Tech Acquisition, the Company also granted
registration rights with respect to the 550,029 shares of Common Stock paid to
the former Site stockholders. Pursuant to such registration rights, the Company
agreed to use its best efforts within 9 months and 12 months, respectively,
following the closing of the Site Tech Acquisition to effect a registration
statement covering the sale and distribution of the 550,029 shares, subject to
certain conditions. The Company further agreed to keep each such registration
statement effective for a period of 180 days or until the holder(s) have
completed the distribution pursuant to such registration statement.
The Letter of Intent with respect to the Inlet Technology Acquisition
contemplates that Inlet will receive registration rights with respect to the
360,000 shares of Common Stock issuable to Inlet pursuant to
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such transaction. The parties to the Letter of Intent are negotiating the
definitive documentation with respect to the Inlet Technology Acquisition,
including the documentation with respect to such registration rights. See
"Corporate Developments."
TRANSFER AGENT AND REGISTRAR
The Transfer Agent and Registrar for the Common Stock is U.S. Stock Transfer
Corporation.
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SHARES ELIGIBLE FOR FUTURE SALE
Upon completion of this Offering and the Inlet Technology Acquisition, the
Company will have outstanding approximately 8,241,381 shares of Common Stock,
assuming no exercise of the Underwriter's over-allotment option and no exercise
of outstanding options or warrants. Of these shares and following the expiration
or earlier release from the 13-month lockup agreements with the Underwriter,
6,473,405 will be freely tradeable without restrictions under the Securities Act
and 1,409,976 will be freely tradeable, subject to Rule 144 volume limitations.
The shares offered hereby are freely tradeable without restrictions under the
Securities Act. Sales of substantial amounts of the Company's Common Stock in
the public market or the prospect of such sales could materially adversely
affect the market price of the Common Stock.
The Company has agreed not to offer, issue, sell, contract to sell, grant
any option for the sale of, or otherwise dispose of, directly or indirectly, any
shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock or any rights to acquire Common Stock for a period
of one year from the date of this Prospectus without the prior written consent
of the Underwriter, subject to certain exceptions.
In addition, the holders of warrants to purchase a total of 198,413 shares
of Common Stock, the former stockholders of Site/technologies/inc., who hold a
total of 550,029 shares of Common Stock, Inlet, who is expected to receive
360,000 shares of Common Stock pursuant to the Inlet Technology Acquisition, and
the holders of the Underwriter's Warrant are each entitled to or are expected to
become entitled to certain rights with respect to registration of such shares of
Common Stock for offer or sale to the public. If such holders, by exercising
their rights, cause a large number of shares to be registered and sold in the
public market, such sales could have a material adverse effect on the market
price for the Company's Common Stock.
The Company intends to file an amendment to its registration statement on
Form S-8 under the Securities Act to cover an additional 400,000 (for an
aggregate of 1,220,000) shares of Common Stock reserved for issuance under its
1995 Option Plan. Accordingly, shares registered under such registration
statement will, subject to vesting restrictions and Rule 144 volume limitations
applicable to affiliates of the Company, be available for sale in the open
market. See "Risk Factors--Shares Eligible for Future Sale" and "Description of
Capital Stock--Registration Rights."
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UNDERWRITING
The Underwriter has agreed, subject to the terms and conditions of the
Underwriting Agreement between the Company and the Underwriter, to purchase from
the Company 3,200,000 shares of Common Stock. The underwriting discount set
forth on the cover page of this Prospectus will be allowed to the Underwriter at
the time of delivery to the Underwriter of the shares so purchased.
<TABLE>
<CAPTION>
NUMBER OF
SHARES TO
BE
NAME OF UNDERWRITER PURCHASED
- --------------------------------------------------------------------------------- -----------
<S> <C>
H. J. Meyers & Co., Inc.......................................................... 3,200,000
</TABLE>
The Underwriter has advised the Company that it proposes to offer the shares
to the public at an offering price of $per Share and that the Underwriter may
allow certain dealers who are members of the National Association of Securities
Dealers ("NASD") a concession of not in excess of $per Share. After commencement
of the Offering, the public offering price and concession may be changed.
The Company has granted to the Underwriter an option, exercisable during the
30 business-day period from the date of this Prospectus, to purchase up to a
maximum of 480,000 additional shares on the same terms set forth above. The
Underwriter may exercise such rights only to satisfy over-allotment in the sale
of the shares.
The Company has agreed to pay to Underwriter a non-accountable expense equal
to 3% of the total proceeds of the Offering ($ (or $ if the
Underwriter exercises the over-allotment option in full). In addition to the
Underwriter's commission and the Underwriter's non-accountable expense
allowance, the Company is required to pay the costs of qualifying the shares of
Common Stock, under federal and state securities laws, together with legal and
accounting fees, printing and other costs in connection with this Offering,
estimated to total approximately $433,000.
At the closing of this Offering, the Company will issue to the Underwriter
the Underwriter's Warrant to purchase for investment a maximum of 320,000 shares
of Common Stock. The Underwriter's Warrant and the underlying shares are being
registered by means of the Registration Statement of which this Prospectus forms
a part. The Underwriter's Warrant will be exercisable for a four year period
commencing one year from the date of this Prospectus. The exercise price of the
Underwriter's Warrant will be $ per share. The Underwriter's Warrant will be
restricted from sale, assignment, transfer or hypothecation prior to its
exercise date except to officers of the Underwriter and members of the selling
group and officers and partners thereof. The Underwriter's Warrant will contain
anti-dilution provisions. The Underwriter's Warrant does not entitle the
Underwriter to any rights as a shareholder of the Company until such Warrant is
exercised and the shares of Common Stock are purchased thereunder. The
Underwriter's Warrant and the shares of Common Stock thereunder may not be
offered for sale except in compliance with the applicable provisions of the
Securities Act. The Company has agreed that, if it shall cause to be filed with
the Commission either an amendment to the Registration Statement of which this
Prospectus is a part or a separate registration statement, the Underwriter shall
have the right during the five-year period commencing on the date of this
Prospectus to include in such amendment or Registration Statement the
Underwriter's Warrant and the Company has agreed that, upon written request by a
holder or holders of 50% or more of the Underwriter's Warrant which is made
during the exercise period of the Underwriter's Warrant, the Company will on two
separate occasions, register the Underwriter's Warrant and the shares of Common
Stock issuable upon exercise thereof. The initial such registration will be at
the Company's expense and the second such registration will be at the expense of
the holder(s) of the Underwriter's Warrant.
For the period during which the Underwriter's Warrant is exercisable, the
holder or holders will have the opportunity to profit from a rise in the market
value of the Company's Common Stock, with a resulting dilution in the interests
of the other shareholders of the Company. The holder or holders of the
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Underwriter's Warrant can be expected to exercise it at a time when the Company
would, in all likelihood, be able to obtain any needed capital from an offering
of its unissued Common Stock on terms more favorable to the Company than those
provided for in the Underwriter's Warrant. Such facts may materially adversely
affect the terms on which the Company can obtain additional financing. To the
extent that the Underwriter realizes any gain from the resale of the
Underwriter's Warrant or the securities issuable thereunder, such gain may be
deemed additional underwriting compensation under the Securities Act.
The Company has agreed to enter into a consulting agreement with the
Underwriter under the terms of which the Underwriter has agreed to perform
consulting services related to corporate finance and will be paid a
non-refundable fee of $6,000 per month for 12 months. The Company has agreed to
pay the Underwriter the entire one year fee upon the closing of this Offering.
The Company has agreed that for a period of six (6) months from the date of
this Prospectus, it will not sell any securities, with the exception of (i) the
shares of Common Stock issued upon exercise of options granted under the
Company's Stock Plans, warrants or other convertible securities outstanding
prior to the date of this Prospectus and (ii) the shares of Common Stock issued
or issuable in connection with the Inlet Technology Acquisition, without the
Underwriter's prior written consent, which consent shall not be unreasonably
withheld. In addition, for a period of twenty-four (24) months from the date of
this Prospectus, the Company will not issue any shares of Preferred Stock or
sell or issue any securities pursuant to Regulation S under the Securities Act
without the Underwriter's prior written consent.
Directors and officers of the Company are expected to be subject to lock-up
agreements under which they will agree not to sell or dispose of any shares of
Common Stock issued to them directly by the Company, for a period of 13 months
after the date of this Prospectus, without prior written consent of the
Underwriter.
The Underwriting Agreement provides for reciprocal indemnification between
the Company and the Underwriters against certain liabilities in connection with
the Registration Statement, including liabilities under the Securities Act.
The Company retained H.J. Meyers to act as placement agent in connection
with the Debt Financing. Under the terms of the placement agent agreement, H.J.
Meyers received a placement fee of 7% of the gross proceeds from the Debt
Financing, reimbursement of accountable expenses of 1% of such gross proceeds
and a warrant to purchase 16,538 shares of Common Stock at an exercise price of
$6.50 per share. The Company granted the holder of the warrant certain
registration rights with respect thereto and the shares of Common Stock issuable
upon its exercise. See "Description of Capital Stock--Registration Rights." The
Company also agreed to indemnify H.J. Meyers for certain liabilities, including
those arising under the Securities Act, for serving as placement agent in
connection with the Debt Financing.
The Company's initial public offering was underwritten by the Underwriter,
and the Underwriter also serves as a market maker with regard to the Company's
Common Stock. Patrick Grady, a director of the Company, serves as the Managing
Director, Venture Capital of the Underwriter. In addition to an underwriting
discount of $414,000, in connection with the Company's initial public offering,
the Company paid the Underwriter a non-accountable expense allowance of
$189,750. In addition, in connection with the Company's initial public offering,
the Company issued to the Underwriter a warrant to purchase up to 110,000 shares
of the Company's Common Stock at a price of $7.20 per share at any time during
the four-year period commencing on December 20, 1996.
In connection with this Offering, the Company has agreed that for a period
of 36 months from the Closing of this Offering, the Underwriter shall have the
right to designate two members to the Company's Board of Directors, provided
that the designees are acceptable to the Company and, provided further, that not
more than one of the designees will be an affiliate of H.J. Meyers.
Any limitation on the ability of the Underwriter to make a market in the
Company's Common Stock could adversely impact the liquidity or trading price of
the Company's Common Stock, which could have a
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material adverse impact on the market price of the Company's Common Stock. The
Chicago office of the Securities and Exchange Commission is conducting a
private, nonpublic investigation of H.J. Meyers & Co., Inc., the Underwriter and
the principal market maker in the Company's Common Stock, pursuant to a Formal
Order of Investigation issued by the Commission. The investigation is focused on
whether the Underwriter may have violated applicable securities laws and the
rules and regulations thereunder, with respect to sales of certain securities.
The Company is currently unable to assess the potential impact of the outcome of
the Staff's investigation on the Underwriter's ability to make a market in the
Company's Common Stock (including Common Stock in this Offering) or trading in
the Company's securities.
In connection with the Offering, the Underwriter may engage in transactions
that stabilize, maintain or otherwise affect the price of the Common Stock.
Specifically, the Underwriter may overallot the Offering, creating a syndicate
short position. In addition, the Underwriter may bid for and purchase shares of
Common Stock in the open market to cover syndicate short positions or to
stabilize the price of the Common Stock. Finally, the underwriting syndicate may
reclaim selling concessions from syndicate members in the Offering, if the
syndicate repurchases previously distributed Common Stock in syndicate covering
transactions, in stabilizing transactions or otherwise. Any of these activities
may stabilize or maintain the market price of the Common Stock above independent
market levels. The Underwriter is not required to engage in these activities,
and may end any of the activities at any time.
The Underwriter has advised the Company that the Underwriter does not intend
to confirm sales to any account over which it exercises discretionary authority.
LEGAL MATTERS
The validity of the shares offered hereby will be passed upon for the
Company by Wilson Sonsini Goodrich & Rosati, Professional Corporation, Palo
Alto, California.
Certain legal matters in connection with the Offering will be passed upon
for the Underwriter by Freshman, Marantz, Orlanski, Cooper & Klein, a law
corporation, Beverly Hills, California.
EXPERTS
The financial statements as of December 31, 1995 and 1996 and for each of
the two years in the period ended December 31, 1996 included in this Prospectus
have been so included in reliance on the report (which contains an explanatory
paragraph relating to the Company's ability to continue as a going concern, as
described in Note 1 to the financial statements) of Price Waterhouse LLP,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files periodic reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information may be inspected and copied at the public
reference facilities maintained by the Commission at Room 1024, Judiciary Plaza,
450 Fifth Street, N.W., Washington, D.C. 20549 and at the regional offices of
the Commission located at Seven World Trade Center, 13th Floor, New York, New
York 10048 and Northwestern Atrium Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661. In addition, registration statements and certain other
documents filed with the Commission through its Electronic Data Gathering,
Analysis and Retrieval ("EDGAR") system are publicly available through the
Commission's site on the Internet's World Wide Web, located at
http://www.sec.gov. The Registration Statement, including all exhibits thereto
and amendments thereof, has been filed with the Commission through EDGAR. Copies
of such material may also be obtained from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed
rates. The Company's Common Stock is quoted on the OTC Bulletin Board under the
symbol "DTPT."
74
<PAGE>
ADDITIONAL INFORMATION
The Company has filed with the Commission a Registration Statement on Form
SB-2 under the Securities Act of 1933, as amended (the "Securities Act"), with
respect to the shares of Common Stock offered hereby. This Prospectus does not
contain all of the information set forth in the Registration Statement and the
exhibits and schedules thereto. For further information with respect to the
Company and the Common Stock offered hereby, reference is made to the
Registration Statement and the exhibits and schedules filed therewith.
Statements contained in this Prospectus regarding the contents of any contract
or any other document referred to are not necessarily complete, and in each
instance reference is made to the copy of such contract or other document filed
as an exhibit to the Registration Statement or otherwise filed with the
Commission, each statement being qualified in all respects by such reference.
The Registration Statement may be inspected without charge at the offices of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, and copies of all
or any part thereof may be obtained from such office upon the payment of the
fees prescribed by the Commission.
75
<PAGE>
DELTAPOINT, INC.
INDEX TO FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
PAGE
-----
<S> <C>
Report of Independent Accountants.......................................................................... F-2
Balance Sheet as of December 31, 1995 and 1996 and June 30, 1997 (unaudited)............................... F-3
Statement of Operations for the Years Ended December 31, 1995 and 1996 and for the six months ended June
30, 1996 and 1997 (unaudited)............................................................................ F-4
Statement of Shareholders' Equity for the Years Ended December 31, 1995 and 1996 and for the six months
ended June 30, 1997 (unaudited).......................................................................... F-5
Statement of Cash Flows for the Years Ended December 31, 1995 and 1996 and for the six months ended June
30, 1996 and 1997 (unaudited)............................................................................ F-6
Notes to Financial Statements.............................................................................. F-7
</TABLE>
F-1
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and
Shareholders of DeltaPoint, Inc.
In our opinion, the accompanying balance sheet and the related statements of
operations, of shareholders' equity and of cash flows present fairly, in all
material respects, the financial position of DeltaPoint, Inc. at December 31,
1995 and 1996, and the results of its operations and its cash flows for the
years then ended, in conformity with generally accepted accounting principles.
These financial statements are the responsibility of the Company's management;
our responsibility is to express an opinion on these financial statements based
on our audits. We conducted our audits of these statements in accordance with
generally accepted auditing standards which require that we plan and perform the
audit to obtain reasonable assurance about whether the financial statements are
free of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial statements,
assessing the accounting principles used and significant estimates made by
management, and evaluating the overall financial statement presentation. We
believe that our audits provide a reasonable basis for the opinion expressed
above.
The accompanying financial statements have been prepared assuming that the
Company will continue as a going concern. As discussed in Note 1 to the
financial statements, the Company has an accumulated deficit of $13,666,000 and
has incurred recent significant losses that raise substantial doubt about its
ability to continue as a going concern. Management's plans in regard to these
matters are also described in Note 1. The financial statements do not include
any adjustments that might result from the outcome of this uncertainty.
PRICE WATERHOUSE LLP
San Jose, California
March 25, 1997
F-2
<PAGE>
DELTAPOINT, INC.
BALANCE SHEET
(IN THOUSANDS, EXCEPT SHARE DATA)
<TABLE>
<CAPTION>
DECEMBER 31,
-------------------- JUNE 30,
1995 1996 1997
--------- --------- -----------
(UNAUDITED)
<S> <C> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents................................... $ 4,629 $ 3,142 $ 1,211
Accounts receivable, net of allowance for doubtful accounts
of $259, $118 and $111.................................... 1,225 1,904 812
Inventories................................................. 182 133 117
Prepaid expenses and other current assets................... 194 557 485
--------- --------- -----------
Total current assets...................................... 6,230 5,736 2,625
Property and equipment, net................................... 49 277 235
Purchased software, net....................................... 438 299 224
Deposits and other assets..................................... 47 34 30
--------- --------- -----------
$ 6,764 $ 6,346 $ 3,114
--------- --------- -----------
--------- --------- -----------
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Accounts payable............................................ $ 665 $ 1,238 $ 1,305
Accrued liabilities......................................... 1,337 1,146 923
Reserve for returns......................................... 398 771 225
Notes payable............................................... 865 2,150 38
Current portion of capital lease obligations................ 50 -- --
--------- --------- -----------
Total current liabilities................................. 3,315 5,305 2,491
--------- --------- -----------
Commitments and contingencies (Note 6)
Shareholders' equity:
Preferred Stock, no par value, 4,000,000 shares authorized,
2,500 shares designated as Series A, 1,530 shares issued
and outstanding........................................... -- -- 1,530
Common Stock, no par value, 25,000,000 shares authorized,
2,025,243, 2,485,540 and 2,871,873 shares issued and
outstanding............................................... 12,267 14,707 15,847
Accumulated deficit......................................... (8,818) (13,666) (16,754)
--------- --------- -----------
Total shareholders' equity................................ 3,449 1,041 623
--------- --------- -----------
$ 6,764 $ 6,346 $ 3,114
--------- --------- -----------
--------- --------- -----------
</TABLE>
The accompanying notes are an integral part of these financial statements.
F-3
<PAGE>
DELTAPOINT, INC.
STATEMENT OF OPERATIONS
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER SIX MONTHS ENDED
31, JUNE 30,
-------------------- --------------------
1995 1996 1996 1997
--------- --------- --------- ---------
(UNAUDITED)
<S> <C> <C> <C> <C>
Net revenues........................................................... $ 4,043 $ 4,950 $ 1,893 $ 1,495
Cost of revenues....................................................... 1,337 1,181 621 470
--------- --------- --------- ---------
Gross profit....................................................... 2,706 3,769 1.272 1,025
--------- --------- --------- ---------
Operating expenses:
Sales and marketing.................................................. 1,922 4,685 2,051 2,241
Research and development............................................. 2,036 2,618 1,088 1,347
General and administrative........................................... 1,234 1,388 961 479
--------- --------- --------- ---------
Total operating expenses............................................. 5,192 8,691 4,100 4,067
--------- --------- --------- ---------
Loss from operations................................................... (2,486) (4,922) (2,828) (3,042)
Interest (expense) income, net......................................... (146) 74 39 (817)
Other income........................................................... -- -- -- 771
--------- --------- --------- ---------
Net loss............................................................... $ (2,632) $ (4,848) $ (2,789) $ (3,088)
--------- --------- --------- ---------
--------- --------- --------- ---------
Net loss per share..................................................... $ (2.42) $ (2.17) $ (1.27) $ (1.20)
--------- --------- --------- ---------
--------- --------- --------- ---------
Shares and share equivalents used in per share calculations............ 1,086 2,231 2,193 2,571
--------- --------- --------- ---------
--------- --------- --------- ---------
</TABLE>
The accompanying notes are an integral part of these financial statements.
F-4
<PAGE>
DELTAPOINT, INC.
STATEMENT OF SHAREHOLDERS' EQUITY
(IN THOUSANDS, EXCEPT SHARE DATA)
<TABLE>
<CAPTION>
PREFERRED STOCK COMMON STOCK ACCUMULATED
---------------------- --------------------- ---------------------
SHARES AMOUNT SHARES AMOUNT DEFICIT TOTAL
----------- --------- ---------- --------- ---------- ---------
<S> <C> <C> <C> <C> <C> <C>
Balance at December 31, 1994..................... -- -- 182,717 $ 145 $ (6,186) $ (6,041)
Exercise of stock options...................... -- -- 382 1 -- 1
Issuance of warrants........................... -- -- -- 6 -- 6
Sale of Common Stock........................... -- -- 1,100,000 5,143 -- 5,143
Issuance of Common Stock for acquisition of
purchased technology......................... -- -- 100,000 600 -- 600
Conversion of mandatorily redeemable
convertible preferred stock.................. -- -- 578,810 5,992 -- 5,992
Conversion of notes payable and accrued
interest..................................... -- -- 63,334 380 -- 380
Net loss....................................... -- -- -- -- (2,632) (2,632)
----- --------- ---------- --------- ---------- ---------
Balance at December 31, 1995..................... -- -- 2,025,243 12,267 (8,818) 3,449
Issuance of Common Stock....................... -- -- 379,297 1,797 -- 1,797
Exercise of stock options...................... 81,000 643 -- 643
Net loss....................................... -- -- -- -- (4,848) (4,848)
----- --------- ---------- --------- ---------- ---------
Balance at December 31, 1996..................... -- -- 2,485,540 14,707 (13,666) 1,041
Exercise of stock options (unaudited).......... 4,333 21 -- 21
Discounted conversion feature of notes payable
(unaudited).................................. -- -- -- 537 -- 537
Conversion of notes payable to Preferred Stock
(unaudited).................................. 1,530 $ 1,530 -- -- -- 1,530
Conversion of notes payable to Common Stock
(unaudited).................................. -- -- 382,000 582 -- 582
Net loss (unaudited)........................... -- -- -- -- (3,088) (3,088)
----- --------- ---------- --------- ---------- ---------
Balance at June 30, 1997 (unaudited)............. 1,530 $ 1,530 2,871,873 $ 15,847 $ (16,754) $ 623
----- --------- ---------- --------- ---------- ---------
----- --------- ---------- --------- ---------- ---------
</TABLE>
The accompanying notes are an integral part of these financial statements.
F-5
<PAGE>
DELTAPOINT, INC.
STATEMENT OF CASH FLOWS
(IN THOUSANDS)
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER SIX MONTHS ENDED
31, JUNE 30,
-------------------- --------------------
1995 1996 1996 1997
--------- --------- --------- ---------
(UNAUDITED)
<S> <C> <C> <C> <C>
Cash flows from operating activities:
Net loss............................................................. $ (2,632) $ (4,848) $ (2,789) $ (3,088)
Adjustments to reconcile net loss to net cash used in operating
activities:
Depreciation and amortization...................................... 163 254 102 342
In process research and development................................ 1,240 -- -- --
Discounted conversion feature of notes payable..................... -- -- -- 537
Gain on DeltaGraph disposition..................................... -- -- -- (771)
Other.............................................................. 40 -- -- --
Change in assets and liabilities:
Accounts receivable.............................................. (642) (679) 336 1,092
Inventories...................................................... 44 49 65 16
Prepaid expenses and other current assets........................ (113) (162) (1) (129)
Accounts payable................................................. (751) 573 410 67
Accrued liabilities.............................................. 670 (191) (283) (223)
Reserve for returns.............................................. 326 373 (158) (546)
Deposits and other assets........................................ 9 13 18 4
--------- --------- --------- ---------
Net cash used in operating activities.......................... (1,646) (4,618) (2,300) (2,699)
--------- --------- --------- ---------
Cash flows from investing activities:
Acquisition of property and equipment................................ (29) (340) (272) (24)
Acquisition of purchased software.................................... (225) (3) -- --
DeltaGraph disposition............................................... -- -- -- 771
--------- --------- --------- ---------
Net cash (used in) provided by investing activities............ (254) (343) (272) 747
--------- --------- --------- ---------
Cash flows from financing activities:
Proceeds from issuance of preferred stock, net....................... 1,815 -- -- --
Proceeds from issuance of Common Stock and warrants, net............. 5,150 2,440 790 21
Proceeds from issuance of notes payable, net......................... -- 1,949 -- --
Repayment of notes payable........................................... (289) (865) -- --
Repayment of capitalized lease obligations........................... (177) (50) (45) --
--------- --------- --------- ---------
Net cash provided by financing activities...................... 6,499 3,474 745 21
--------- --------- --------- ---------
Increase (decrease) in cash and cash equivalents....................... 4,599 (1,487) (1,827) (1,931)
Cash and cash equivalents at beginning of period....................... 30 4,629 4,629 3,142
--------- --------- --------- ---------
Cash and cash equivalents at end of period............................. $ 4,629 $ 3,142 $ 2,802 $ 1,211
--------- --------- --------- ---------
--------- --------- --------- ---------
</TABLE>
The accompanying notes are an integral part of these financial statements.
F-6
<PAGE>
DELTAPOINT, INC.
NOTES TO FINANCIAL STATEMENTS
NOTE 1--THE COMPANY AND ITS SIGNIFICANT ACCOUNTING POLICIES:
Founded in 1989, DeltaPoint, Inc. (the Company), has headquarters in
Monterey, California, and distribution partners in the United States, Europe,
Japan, and Asia-Pacific. DeltaPoint, Inc. provides developers of individual,
corporate and commercial Web sites with advanced Web site creation and
management tools based on database component technology. In addition, the
Company provides visualization software products that are designed to facilitate
the collection, interpretation and management of business and technical
information across multiple computing environments.
At December 31, 1996, the Company has an accumulated deficit of $13,666,000
and has incurred significant recent losses from operations. The Company plans to
continue to develop and introduce updated versions of its existing products and
to continue to promote its Web tools software products. There can be no
assurance that the Company will not incur additional losses until its planned
and existing products generate significant revenues. The accompanying financial
statements have been prepared assuming the Company will continue as a going
concern. Additional equity or debt financing will be required to enable the
Company to continue its operations and achieve its plans for 1997 and beyond.
Management is currently pursuing additional capital financing although recent
attempts to secure financing on acceptable terms have been unsuccessful. If the
Company is unable to obtain such financing, it will be required to reduce
discretionary spending in order to maintain operations at a reduced level.
Management believes that it will be able to reduce discretionary spending if
required. The accompanying financial statements do not include any adjustments
that might result from the outcome of these uncertainties.
In June 1997, the Company completed the sale of its DeltaGraph product line
for aggregate proceeds of $1,310,000 in cash, of which $910,000 was attributable
to the sale of the DeltaGraph product line and $400,000 was attributable to
services to be rendered by the Company pursuant to a management agreement (See
Note 11).
The following is a summary of the Company's significant accounting policies:
INTERIM RESULTS (UNAUDITED)
The accompanying balance sheet as of June 30, 1997, the statements of
operations and of cash flows for the six months ended June 30, 1996 and 1997,
and the statement of shareholders' equity for the six months ended June 30, 1997
are unaudited. In the opinion of management, these statements have been prepared
on the same basis as the audited financial statements and include all
adjustments, consisting only of normal recurring adjustments, necessary for the
fair statement of the results of interim periods. The data disclosed in these
notes to financial statements for these periods are also unaudited.
USE OF ESTIMATES
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from these estimates.
REVENUE RECOGNITION
Software product sales are recognized upon shipment of the product, net of
appropriate allowances for estimated returns. Revenues from software royalty and
packaging agreements are recognized upon
F-7
<PAGE>
DELTAPOINT, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
NOTE 1--THE COMPANY AND ITS SIGNIFICANT ACCOUNTING POLICIES: (CONTINUED)
shipment of a master copy of the software product and packaging if no
significant vendor obligations remain under the terms of the agreements, any
amounts paid are nonrefundable and collection is probable. Payments received in
advance of revenue recognition are recorded as deferred revenue. The Company
grants distributors and resellers certain rights of return, price protection and
stock rotation rights on unsold merchandise. Accordingly, reserves for estimated
future returns, credits for price protection and stock rotation rights are
accrued upon shipment based upon historical experience.
The Company provides a limited amount of free telephone technical support to
customers. These activities are generally considered insignificant post contract
customer support obligations. Estimated costs of these activities are accrued at
the time of product shipment.
Revenue from international customers, primarily in Japan accounted for 40%,
26%, 19% and 27% of net revenues in 1995 and 1996 and the six months ended June
30, 1996 and 1997, respectively. Sales to customers in excess of 10% of net
revenues is presented below:
<TABLE>
<CAPTION>
SIX MONTHS
YEAR ENDED
DECEMBER 31, ENDED JUNE 30,
--------------- ---------------
1995 1996 1996 1997
---- ---- ---- ----
<S> <C> <C> <C> <C>
Customer A........................................ 35% 21% -- 23%
Customer B........................................ 13% 30% 18% 23%
Customer C........................................ -- -- -- 10%
</TABLE>
CASH AND CASH EQUIVALENTS
The Company considers all highly liquid investments with an original
maturity of three months or less to be cash equivalents. Included in the cash
equivalent balance at December 31, 1996, were $1,000,000 in certificates of
deposit. The Company did not have any short-term investments outstanding at
December 31, 1995 and 1996 and June 30, 1997.
STOCK BASED COMPENSATION
The Company applies Accounting Principles Board Opinion No. 25 "Accounting
for Stock Issued to Employees" and related interpretations in accounting for its
stock-based compensation plans, as permitted by the Financial Accounting
Standards Board's Statement No. 123 ("FAS 123"), "Accounting for Stock-Based
Compensation." FAS 123 defines a "fair value" based method of accounting for an
employee stock option or similar equity instrument and encourages, but does not
require, entities to adopt that method of accounting for their employee stock
compensation plans. The pro forma disclosures of the difference between
compensation cost included in net loss and the related cost measured by the fair
value method are presented in Note 9.
INVENTORIES
Inventories are stated at the lower of cost or market. Cost is determined on
the first-in, first-out method.
F-8
<PAGE>
DELTAPOINT, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
NOTE 1--THE COMPANY AND ITS SIGNIFICANT ACCOUNTING POLICIES: (CONTINUED)
PROPERTY AND EQUIPMENT
Property and equipment are stated at cost. Depreciation is provided using
the straight-line method based upon the estimated useful life of the assets
ranging from three to five years. Leasehold improvements are amortized over the
shorter of the remaining term of the lease or the estimated useful life of the
asset.
PURCHASED SOFTWARE
Purchased software is recorded at cost and amortized using the straight line
method over the three-year estimated life of the asset.
SOFTWARE DEVELOPMENT COSTS
Research and development costs are expensed as incurred. Statement of
Financial Accounting Standards No. 86 requires the capitalization of certain
software development costs once technological feasibility is established. The
capitalized costs are then amortized on a straight-line basis over the estimated
product life, or on the ratio of current revenues to total projected product
revenues, whichever is greater. Based upon the Company's product development
process, technological feasibility is established upon completion of a working
model. Costs incurred by the Company between completion of the working model and
the point at which the product is ready for general release have been
insignificant and accordingly have not been capitalized.
CONCENTRATION OF CREDIT RISKS
Financial instruments that potentially subject the Company to significant
concentrations of credit risks consist principally of cash and accounts
receivable. The Company places its cash in interest bearing accounts and
certificates of deposit in high quality financial institutions. The Company
sells its products primarily to end-users, distributors and resellers in a
variety of industries located primarily in the United States and Japan. The
Company performs ongoing credit evaluations of its customers' financial
condition and generally requires no collateral from its customers. The Company
maintains an allowance for uncollectible accounts receivable based upon the
expected collectibility of all accounts receivable. To date, the Company has not
experienced any material credit losses.
At December 31, 1995, five customers accounted for 86% of accounts
receivable. At December 31, 1996, three customers accounted for 83% of accounts
receivable. At June 30, 1997 three customers accounted for 83% of accounts
receivable.
NET LOSS PER SHARE
Net loss per share is based upon the weighted average number of common
shares outstanding during the period. Common equivalent shares (consisting of
warrants and stock options) are excluded from the computation if their effect is
anti-dilutive except that, pursuant to the Securities and Exchange Commission
Staff Accounting Bulletins, common and common equivalent shares issued during
the period from November 1994 to November 1995 have been included in the
calculation as if they were outstanding for all periods through November 1995
(using the treasury stock method for the options and warrants at the initial
public offering price).
F-9
<PAGE>
DELTAPOINT, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
NOTE 1--THE COMPANY AND ITS SIGNIFICANT ACCOUNTING POLICIES: (CONTINUED)
FAIR VALUE OF FINANCIAL INSTRUMENTS
The carrying amount of the Company's financial instruments, including
accounts receivable and notes payable, approximates fair values.
INCOME TAXES
The Company utilizes the liability method of accounting for income taxes and
accordingly, deferred tax liabilities and assets are recognized for the expected
future tax consequences of temporary differences between the carrying amounts
and the tax bases of the Company's assets and liabilities.
RECLASSIFICATIONS
Certain reclassifications have been made to the financial statements in
order to conform to the 1996 presentation.
RECENT ACCOUNTING PRONOUNCEMENTS
In February 1997, the Financial Accounting Standards Board issued Statement
of Financial Accounting Standards No. 128 ("FAS 128"), "Earnings per Share."
This statement is effective for the Company's year ending December 31, 1997. The
Statement redefines earnings per share under generally accepted accounting
principles. Under the new standard, primary earnings per share is replaced by
basic earnings per share and fully diluted earnings per share. FAS 128 will
require the retroactive restatement of all previously reported amounts upon
adoption. Due to the Company's net loss, the adoption of FAS 128 will not have a
material affect on the reported loss per share.
F-10
<PAGE>
DELTAPOINT, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
NOTE 2--BALANCE SHEET DETAILS (IN THOUSANDS):
<TABLE>
<CAPTION>
DECEMBER 31
-------------------- JUNE 30,
1995 1996 1997
--------- --------- -----------
(UNAUDITED)
<S> <C> <C> <C>
Inventories:
Raw materials................................. $ 119 $ 84 $ 97
Finished goods................................ 63 49 20
--------- --------- -----------
$ 182 $ 133 $ 117
--------- --------- -----------
--------- --------- -----------
Purchased software:
Purchased software............................ $ 450 $ 453 $ 453
Less: accumulated amortization................ (12) (154) (229)
--------- --------- -----------
$ 438 $ 299 $ 224
--------- --------- -----------
--------- --------- -----------
Property and equipment:
Computer equipment and software............... $ 936 $ 1,160 $ 1,184
Furniture and fixtures........................ 139 139 139
Leasehold improvements........................ -- 31 31
--------- --------- -----------
1,075 1,330 1,354
Less: accumulated depreciation................ (1,026) (1,053) (1,119)
--------- --------- -----------
$ 49 $ 277 $ 235
--------- --------- -----------
--------- --------- -----------
Accrued liabilities:
Accrued royalties............................. $ 351 $ 315 $ 236
Accrued compensation.......................... 303 369 338
Other......................................... 683 462 349
--------- --------- -----------
$ 1,337 $ 1,146 $ 923
--------- --------- -----------
--------- --------- -----------
</TABLE>
Included in the December 31, 1995 and 1996 and June 30, 1997 balances of
computer equipment and software are $531,000 of assets acquired under capital
leases. Accumulated depreciation associated with these leases approximates
$481,000, $531,000 and $531,000 at December 31, 1995, December 31, 1996 and June
30, 1997, respectively.
In 1995, the Company acquired certain Internet technologies, including the
source code and related documentation. The aggregate purchase price of these
technologies was $1,690,000, which was comprised of (i) $1,090,000 in cash,
payable in installments through August 1996 and (ii) the issuance of 100,000
shares of the Company's common stock. The Company is also required to pay
royalties on sales of the products developed from these technologies. The
Company made installment payments for the technology of $225,000 and $865,000
for the years ended December 31, 1995 and 1996, respectively. Cash paid for
royalties on sales of the product totaled $0 in 1995 and $33,000 in 1996.
Amounts due to these suppliers for royalties are included in accrued liabilities
at December 31, 1996 and June 30, 1997 and totaled $205,000 and $124,000,
respectively. In connection with these acquisitions, the Company determined that
$1,240,000 of the aggregate purchase price represented in-process technology,
and because such technology had not reached the stage of technological
feasibility and had no alternative future use, this amount was immediately
charged to operations.
F-11
<PAGE>
DELTAPOINT, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
NOTE 3--SUPPLEMENTAL STATEMENT OF CASH FLOW INFORMATION
In December 1995, upon the closing of the Company's initial public offering,
all outstanding shares of Mandatorily Redeemable Convertible Preferred Stock
were converted into common stock. In addition, the Company converted notes
payable to preferred shareholders totaling $300,000 and accrued interest on the
notes totaling $80,000 into 63,334 shares of common stock.
In November and December 1995, the Company acquired certain Internet
technologies for a total purchase price of $1,690,000 which was comprised of the
(i) issuance of 100,000 shares of common stock at $6.00 per share, (ii) a cash
payment of $225,000 and (iii) $865,000 which was paid in installments through
August 1996.
During the six months ended June 30, 1997, holders of notes payable
converted $2,112,000 in principal value into $1,530,000 of Series A Preferred
Stock and 382,000 shares of Common Stock. In addition, during the six months
ended June 30, 1997, the recognition of the discounted conversion feature
associated with the notes payable resulted in an increase to Common Stock of
$537,000.
Cash paid for interest totaled $146,000, $28,000, $26,000 and $0 for the
years ended December 31, 1995 and 1996 and the six months ended June 30, 1996
and 1997, respectively.
NOTE 4--RELATED PARTY TRANSACTIONS:
The Company purchases goods and services from a supplier who is a
shareholder of the Company. Purchases from this supplier totaled $354,000,
$271,000, $101,000 and $103,000 for the years ended December 31, 1995 and 1996
and the six months ended June 30, 1996 and 1997, respectively. Amounts due to
this supplier are included in accounts payable at December 31, 1995 and 1996 and
June 30, 1997 and totaled $55,000, $72,000 and $58,000, respectively.
NOTE 5--NOTES PAYABLE:
On December 31, 1996, the Company issued $2,150,000 of convertible
promissory notes payable. The notes bear interest at 6% payable semi-annually
over their two year term. The notes convert into Common Stock automatically at
the end of the two year term and are convertible at the option of the holder
with a total of 33%, 67%, and 100% of the principal value of the notes
convertible on March 1, March 31, and April 30, 1997, respectively. The
conversion price of the notes is calculated as the lower of (a) 80% of the
average closing bid price of the Company's common stock for the five days prior
to notice of conversion or (b) the average offer price of the Company's Common
Stock for the five business days prior to the notes' issuance which is $6.70 per
share. The Company recognized the value of the discounted conversion feature, or
$537,000, and the deferred debt issuance costs, or $262,000, as additional
interest expense during the six months ended June 30, 1997. The amortization of
the discounted conversion feature resulted in an increase to Common Stock of
$537,000 during six months ended June 30, 1997. During the six months ended June
30, 1997, holders of notes payable converted $2,112,000 in principal value into
$1,530,000 of Series A Preferred Stock and 382,000 shares of Common Stock.
F-12
<PAGE>
DELTAPOINT, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
NOTE 6--COMMITMENTS AND CONTINGENCIES:
COMMITMENTS
The Company leases its facilities under noncancellable operating leases.
Rent expense was $262,000 and $194,000 for the years ended December 31, 1995 and
1996, respectively. Rent expense for the six months ended June 30, 1996 and 1997
was $95,000 and $100,000, respectively.
At December 31, 1996, future minimum lease payments are as follows (in
thousands):
<TABLE>
<CAPTION>
OPERATING
YEAR ENDING DECEMBER 31, LEASES
- ----------------------------------------------------------------------------------- -----------
<S> <C>
1997............................................................................... $ 206
1998............................................................................... 155
-----
Total minimum lease payments....................................................... $ 361
-----
-----
</TABLE>
CONTINGENCIES
In the normal course of business, the Company from time to time receives
inquiries with regards to possible patent infringement. Management believes that
it is unlikely that the outcome of these inquiries will have a material adverse
effect on the Company's financial position or results of operations or
liquidity.
NOTE 7--INCOME TAXES:
No provision for income taxes has been recorded for any periods presented
due to net operating losses. At December 31, 1996, the Company had approximately
$7,000,000 of federal net operating loss carryforwards which expire in varying
amounts through 2011. Due to certain changes in the ownership of the Company,
approximately $1,700,000 and $1,200,000 of these losses are subject to annual
limitations of approximately $142,000 and $301,000, respectively.
A reconciliation of the Company's effective tax rate to the U.S. federal
statutory rate follows:
<TABLE>
<CAPTION>
YEAR ENDED
DECEMBER 31,
---------------------
1995 1996
--------- ---------
<S> <C> <C>
U.S. federal statutory rate....................... (34.0)% (34.0)%
State and local taxes, net of U.S. federal
benefit......................................... (9.1) (8.8)
Reserved net deferred tax assets and others....... 43.1 42.8
--------- ---------
-- % -- %
--------- ---------
--------- ---------
</TABLE>
F-13
<PAGE>
DELTAPOINT, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
NOTE 7--INCOME TAXES: (CONTINUED)
The components of the net deferred tax assets consist of the following (in
thousands):
<TABLE>
<CAPTION>
DECEMBER 31,
--------------------
1995 1996
--------- ---------
<S> <C> <C>
Deferred tax assets:
Net operating losses................................................... $ 940 $ 2,788
Reserves, accruals and depreciation.................................... 885 767
Tax credit carryforwards............................................... 10 --
--------- ---------
1,835 3,555
Deferred tax valuation allowance..................................... (1,835) (3,555)
--------- ---------
Net deferred tax asset................................................... $ -- $ --
--------- ---------
--------- ---------
</TABLE>
The Company has determined that it is more likely than not that the deferred
tax assets at December 31, 1995 and 1996 will not be realized and, accordingly,
a full valuation reserve has been established. Management's assessment is based
on the Company's history of net operating losses.
NOTE 8--PREFERRED STOCK, COMMON STOCK AND WARRANTS:
PREFERRED STOCK:
The Company has authorized up to 4,000,000 shares of Preferred Stock
available for issuance upon approval of the Board of Directors. On June 30,
1997, the Company issued 1,530 shares of Series A Preferred Stock at a price of
$1,000 per share in exchange for $1,530,000 in principal value of convertible
notes outstanding. Each share of Series A Preferred Stock is convertible, at any
time, at the option of the holders into the number of shares of the Company's
Common Stock determined by dividing $1,000 by the lower of (i) 80% of the
average of the fair market value of the Common Stock for the five business days
prior to the conversion date, or (ii) $3.50 per share. The conversion price is
subject to adjustment in certain circumstances. The shares of Series A Preferred
Stock are also automatically convertible into Common Stock on the second
anniversary of their issue date or, if earlier, upon the occurrence of certain
other events. The holders of Series A Preferred Stock are entitled to cumulative
dividends at an annual rate of $90.00 per share, payable quarterly. Dividends
are payable in cash or, at the Company's election, in shares of Common Stock
valued at 80% of the average fair market value thereof for the five business
days prior to the day on which dividends are payable. Upon liquidation of the
Company or a merger of the Company that results in the transfer of 50% or more
of the voting power of the Company or the sale of all or substantially all of
the Company's assets, holders of Series A Preferred Stock are entitled to
receive $1,000 per share plus any accrued but unpaid dividends.
COMMON STOCK:
In December 1995, the Company completed its initial public offering of
1,100,000 shares of its Common Stock at a per share price of $6.00 and realized
net proceeds of $5,143,000. In addition, Common Stock as of December 31, 1996
reflects the January 1996 sale of 165,000 shares of Common Stock issued in the
overallotment of the Company's initial public offering. Net proceeds to the
Company resulting from the overallotment were $831,000. Common Stock also
reflects net proceeds resulting from the exercise of warrants totaling $966,000
and the exercise of stock options from the 1995 Stock Option Plan of $643,000.
F-14
<PAGE>
DELTAPOINT, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
NOTE 8--PREFERRED STOCK, COMMON STOCK AND WARRANTS: (CONTINUED)
WARRANTS:
The following warrants were outstanding and exercisable at December 31,
1996:
<TABLE>
<CAPTION>
WARRANTS ISSUED IN WARRANT
OUTSTANDING CONNECTION WITH ISSUANCE DATE EXPIRATION DATE EXERCISE PRICE
- ----------- -------------------- ------------- --------------- ---------------
<S> <C> <C> <C> <C>
71,875 Equity Nov. 1995 Nov. 2000 $ 7.20
110,000 Equity Dec. 1995 Dec. 2000 $ 7.20
16,538 Convertible Notes Dec. 1996 Dec. 2002 $ 6.50
- -----------
198,413
- -----------
- -----------
</TABLE>
The warrants issued in November 1995 have an exercise price, subject to
adjustment, of $7.20 and $8.40 per share for the first thirty (30) month term
and the remaining warrant term, respectively. The Company has reserved 198,413
shares of common stock for issuance upon the exercise of the outstanding
warrants.
NOTE 9--STOCK OPTION PLANS:
The Company has three Stock Option Plans (the Plans) which provide for the
issuance of stock options to employees of the Company. The Company has reserved
an aggregate of 1,285,462 shares of Common Stock for issuance upon the exercise
of options granted under these plans, including 200,000 shares approved by the
Company's shareholders at the annual meeting in June 1996 and 400,000 shares
approved by the Company's shareholders at the annual meeting in June 1997.
Options to purchase 41,588 and 171,804 shares were vested and exercisable at
December 31, 1995 and 1996 respectively. Options granted under the Plans are for
periods not to exceed 10 years. Non-employee members of the Board of Directors
are eligible for automatic option grants under the 1995 Stock Option Plan (the
1995 Plan). All options granted under the Plans must be at prices not less than
fair market value at the date of grant, except for the 1995 Plan for which
options can be granted at prices not less than 85% of the fair market value at
the date of grant. The Board of Directors may amend, modify or terminate the
Plans at their discretion.
In recognition of the decline in the fair market value of the Company's
Common Stock in 1996 and 1997, the Company repriced options to purchase
approximately 699,696 shares of Common Stock in March 1997 to an exercise price
of $2.25 per share, which was the fair market value of the Company's Common
Stock on that date.
F-15
<PAGE>
DELTAPOINT, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
NOTE 9--STOCK OPTION PLANS: (CONTINUED)
The following table summarizes activity under the Company's Stock Option
Plans:
<TABLE>
<CAPTION>
OPTIONS OUTSTANDING
SHARES -------------------------------
AVAILABLE FOR WEIGHTED AVERAGE
GRANT SHARES EXERCISE PRICE
--------------- ---------- -------------------
<S> <C> <C> <C>
Balance at December 31, 1994....................................... 27,230 38,127 6.63
Additional shares reserved......................................... 620,000 -- --
Options granted.................................................... (525,000) 525,000 4.08
Options exercised.................................................. -- (382) 6.63
Options canceled................................................... 3,321 (3,321) 6.63
--------------- ----------
Balance at December 31, 1995....................................... 125,551 559,424 3.89
Additional shares reserved......................................... 200,000 -- --
Options granted.................................................... (433,677) 433,677 8.54
Options exercised.................................................. -- (81,000) 3.64
Options canceled................................................... 171,593 (171,593) 4.85
--------------- ----------
Balance at December 31, 1996....................................... 63,467 740,508 6.68
Additional shares reserved......................................... 400,000 -- --
Options granted (unaudited)........................................ (866,146) 866,146 2.25
Options exercised (unaudited)...................................... -- (4,333) 4.80
Options canceled (unaudited)....................................... 810,484 (810,484) 6.11
--------------- ----------
Balance at June 30, 1997 (unaudited)............................... 407,805 791,837 2.46
--------------- ----------
--------------- ----------
</TABLE>
The following table summarizes information about employee stock options
outstanding at December 31, 1996:
<TABLE>
<CAPTION>
OPTIONS OUTSTANDING OPTIONS EXERCISABLE
----------------------------------------------------------- ----------------------------------------
NUMBER OUTSTANDING WEIGHTED AVERAGE WEIGHTED NUMBER WEIGHTED AVERAGE
AT DECEMBER 31, REMAINING CONTRACTUAL AVERAGE EXERCISABLE AT EXERCISE PRICE AT
RANGE OF EXERCISE PRICES 1996 LIFE EXERCISE PRICE DECEMBER 31, 1996 DECEMBER 31, 1996
- -------------------------- ------------------- --------------------- --------------- ----------------- ---------------------
<S> <C> <C> <C> <C> <C>
$3.50..................... 236,611 8.9 3.50 92,998 3.50
$4.80-6.63................ 75,759 9.0 5.95 37,834 5.89
$7.50..................... 140,000 9.9 7.50 2,222 7.50
$7.75-7.83................ 99,788 9.3 7.82 -- --
$9.50-11.50............... 188,350 9.4 9.78 38,750 9.50
------- -------
Total................. 740,508 9.3 6.68 171,804 5.43
------- -------
------- -------
</TABLE>
F-16
<PAGE>
DELTAPOINT, INC.
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
NOTE 9--STOCK OPTION PLANS: (CONTINUED)
The following table summarizes information about employee stock options
outstanding at June 30, 1997:
<TABLE>
<CAPTION>
OPTIONS OUTSTANDING OPTIONS EXERCISABLE
--------------------------------------------------------- ----------------------------------------
WEIGHTED AVERAGE WEIGHTED NUMBER WEIGHTED AVERAGE
NUMBER OUTSTANDING REMAINING AVERAGE EXERCISABLE AT EXERCISE PRICE AT
RANGE OF EXERCISE PRICES AT JUNE 30, 1997 CONTRACTUAL LIFE EXERCISE PRICE JUNE 30, 1997 JUNE 30, 1997
- -------------------------- ------------------- ------------------- --------------- ----------------- ---------------------
<S> <C> <C> <C> <C> <C>
$1.44..................... 10,500 10.0 1.44 -- --
$2.25..................... 703,720 8.9 2.25 345,344 2.25
$2.50..................... 40,950 9.7 2.50 -- --
$4.80-7.50................ 36,667 9.2 6.46 6,667 4.80
------- -------
Total................. 791,837 8.9 2.46 352,011 2.30
------- -------
------- -------
</TABLE>
In addition to the above stock options outstanding, in March 1997 the
Company granted a stock option to a certain executive for 120,000 shares of
Common Stock with an exercise price of $2.25 per share outside of the Plans.
FAIR VALUE DISCLOSURES
Had compensation cost for the Plans been determined based on the fair value
of each stock option grant on its grant date, as prescribed by FAS 123, the
Company's net loss and net loss per share would have been as follows:
<TABLE>
<CAPTION>
YEAR ENDED SIX MONTHS ENDED
DECEMBER 31, JUNE 30,
-------------------- --------------------
1995 1996 1996 1997
--------- --------- --------- ---------
(UNAUDITED)
<S> <C> <C> <C> <C>
Net loss:
As reported.......................................................... $ (2,632) $ (4,848) $ (2,789) $ (3,088)
Pro forma............................................................ $ (2,704) $ (5,450) $ (3,024) $ (3,810)
Net loss per share:
As reported.......................................................... $ (2.42) $ (2.17) $ (1.27) $ (1.20)
Pro forma............................................................ $ (2.49) $ (2.44) $ (1.38) $ (1.48)
</TABLE>
The weighted average estimated grant date fair value, as defined by FAS123,
granted under the Plans was $2.72 and $5.46 per share for 1995 and 1996,
respectively.
The fair value of each option is estimated on the date of grant using the
Black-Scholes option pricing model with the following weighted average
assumptions used for grants during the applicable period: dividend yields of 0%
for all periods reported; expected volatility of 80.6%; risk-free interest rate
of 5.57% for 1995 and 6.07% for 1996 and the six months ended June 30, 1996 and
6.58% for the six months ended June 30, 1997 for options granted; and a weighted
average expected option term of 4.3 years for 1995 and 3.9 years for 1996 and
six months ended June 30, 1996 and 3.8 years for the six months ended June 30,
1997.
F-17
<PAGE>
DELTAPOINT, INC.
NOTES TO FINANCIAL STATEMENT (CONTINUED)
NOTE 9--STOCK OPTION PLANS: (CONTINUED)
The above pro forma amounts include compensation expense based on the fair
value of options granted and vesting during the years ended December 31, 1995
and 1996 and the six months ended June 30, 1996 and 1997 and exclude the effects
of options granted prior to January 1, 1995. Accordingly, the above pro forma
net loss and net loss per share are not representative of the effects of
computing stock option compensation expense using the fair value method for
future periods.
NOTE 10--401(k) PLAN:
During 1992, the Company established a deferred compensation plan (the
401(k) Plan) pursuant to Section 401(k) of the Internal Revenue Code (the
"Code"), whereby substantially all employees are eligible to contribute up to
20% of their pre-tax earnings, not to exceed amounts allowed under the Code. The
Company may make contributions to the 401(k) Plan at the discretion of the Board
of Directors. No employer contributions have been made to the 401(k) Plan by the
Company.
NOTE 11--SALE OF DELTAGRAPH PRODUCT LINE (UNAUDITED):
On June 27, 1997, the Company completed the sale of its DeltaGraph product
line to SPSS, Inc. ("SPSS") with an effective date of May 1, 1997 for aggregate
proceeds of $1,300,000 in cash of which $910,000 was attributable to the sale of
the Delta Graph product line and $400,000 was attributable to services to be
rendered by the Company pursuant to a management agreement (the "Management
Agreement"). The Company received $910,000 on June 30, 1997. The Company will
recognize amounts due under the Management Agreement upon completion of all
obligations required under the Agreement.
In the quarter ended June 30, 1997, the Company recorded a non-operating
gain related to the sale of the DeltaGraph product line in other income as
follows:
<TABLE>
<S> <C>
Total sales price................................................ $ 910,000
Less:
Expenses related to the sale................................... (105,000)
Net book value of assets transferred........................... (34,000)
---------
Gain on sale of DeltaGraph product line.......................... $ 771,000
---------
---------
</TABLE>
As a result of the Company's significant tax loss carry-forwards and other
tax benefits, the Company did not incur a tax expense related to this gain.
Following the effective date of this transaction, the Company no longer has
revenues related to the sales of the DeltaGraph product line. DeltaGraph
revenues were $3,067,000 and $659,000 for the year ended December 31, 1996 and
the six months ended June 30, 1997, respectively. Such revenues were 62.0% and
44.0% of total revenues for 1996 and the six months ended June 30, 1997,
respectively. During 1996 and the six months ended June 30, 1997, cost of
revenues and operating expenses directly attributable to DeltaGraph totaled
$1,800,000 and $530,000, respectively. Such revenues and expenses have not
continued subsequent to the disposition of the product.
F-18
<PAGE>
DELTAPOINT, INC.
NOTES TO FINANCIAL STATEMENT (CONTINUED)
NOTE 11--SALE OF DELTAGRAPH PRODUCT LINE (UNAUDITED): (CONTINUED)
The proforma net revenues, related net loss and net loss per share of the
Company for the year ended December 31, 1996 and six months ended June 30, 1997
after giving effect to the DeltaGraph transaction as if it had been consummated
at January 1, 1996, are as follows:
<TABLE>
<CAPTION>
YEAR ENDED SIX MONTH ENDED
DECEMBER 31, 1996 JUNE 30, 1997
(PRO FORMA) (PRO FORMA)
----------------- ----------------
<S> <C> <C>
Net Revenues............................................. $ 1,883,000 $ 836,000
Net Loss................................................. $ (6,115,000) $ (3,988,000)
Net Loss per Share....................................... $ (2.74) $ (1.55)
</TABLE>
NOTE 12--PENDING AND RECENT ACQUISITIONS (UNAUDITED):
On April 16, 1997, the Company entered into a Letter of Intent with Inlet
Divestiture Corp. ("IDC"), Inlet, Inc. ("Inlet") and certain individuals
pursuant to which the Company would purchase certain Internet technologies
(including source code and related documentation). The purchase price would be
(i) $825,000 in cash, payable in installments, and (ii) the issuance of 360,000
shares of the Company's Common Stock. The Company would also pay royalties on
sales, licenses, sublicenses or other transactions pursuant to which units of
the software product are distributed. Pending the closing of the purchase, the
Company and IDC entered into an OEM agreement which grants the Company the
exclusive right to distribute the software product. The Letter of Intent
contemplates that if the closing of the purchase does not occur, the OEM
agreement would continue in effect. In addition, the Company entered into a
consulting agreement in which the Company is paying $20,000 a month in
consulting fees starting July 1, 1997. Both parties' obligations to consummate
the purchase are contingent upon the closing of an equity financing by the
Company within 165 days of the date of the Letter of Intent. Consummation of the
transactions contemplated in the Letter of Intent is subject to certain
additional conditions, including negotiation of a definitive purchase agreement
and other agreements. There can be no assurance that the transactions
contemplated in the Letter of Intent will be consummated.
On July 11, 1997 the Company completed the acquisition of
Site/technologies/inc. ("Site"), a privately held company. In connection with
this acquisition, the Company issued a total of 550,029 shares of its Common
Stock, made a cash payment of $60,000 and assumed liabilities of $73,000 for a
total purchase price of $638,000 on the date of acquisition to the former
stockholders of Site, in exchange for all outstanding shares of Site. In
addition, the Company agreed to pay royalties on sales of certain products Upon
consummation of the acquisition, Stephen Mendel, a member of the Board of
Directors of Site, was appointed as a member of the Board of Directors of the
Company.
NOTE 13--SUBSEQUENT EVENTS (UNAUDITED):
Subsequent to June 30, 1997 and through September 22, 1997, the holders of
the convertible promissory notes payable and the Series A Preferred Stock
converted all outstanding balances into an aggregate of 1,259,479 shares of
Common Stock.
F-19
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
NO DEALER, SALESPERSON OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS NOT CONTAINED IN THIS PROSPECTUS AND,
IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS
HAVING BEEN AUTHORIZED BY THE COMPANY, THE UNDERWRITER OR BY ANY OTHER PERSON.
THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN
OFFER TO BUY, ANY SECURITY OTHER THAN THE SHARES OF COMMON STOCK OFFERED HEREBY
NOR DOES IT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY
OF THE SECURITIES OFFERED HEREBY TO ANY PERSON IN ANY JURISDICTION TO WHICH IT
IS UNLAWFUL TO MAKE SUCH AN OFFER OR SOLICITATION TO SUCH PERSON. NEITHER THE
DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL UNDER ANY
CIRCUMSTANCES CREATE ANY IMPLICATION THAT THE INFORMATION CONTAINED HEREIN IS
CORRECT AS OF ANY DATE SUBSEQUENT TO THE DATE HEREOF.
----------------------
TABLE OF CONTENTS
----------------------
<TABLE>
<CAPTION>
PAGE
-------
<S> <C>
Prospectus Summary................................ 3
Corporate Developments............................ 7
Risk Factors...................................... 10
Price Range of Common Stock....................... 20
Use of Proceeds................................... 21
Dividend Policy................................... 21
Capitalization.................................... 22
Dilution.......................................... 23
Unaudited Pro Forma Financial Information......... 24
Selected Financial Data........................... 29
Management's Discussion and Analysis of Financial
Condition and Results of Operations.............. 30
Business.......................................... 36
Management........................................ 51
Certain Transactions.............................. 60
Principal Shareholders............................ 64
Description of Capital Stock...................... 67
Shares Eligible for Future Sale................... 71
Underwriting...................................... 72
Legal Matters..................................... 74
Experts........................................... 74
Available Information............................. 74
Additional Information............................ 75
Index to Financial Statements..................... F-1
</TABLE>
3,200,000 SHARES
DELTAPOINT, INC.
COMMON STOCK
, 1997
----------------
PROSPECTUS
----------------
H.J. MEYERS & CO., INC.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 24. INDEMNIFICATION OF DIRECTORS AND OFFICERS
As permitted by Section 204(a) of the California General Corporation Law,
the Registrant's Articles of Incorporation eliminate a director's personal
liability for monetary damages to the Registrants and its shareholders arising
from a breach or alleged breach of the director's fiduciary duty, except for
liability arising under Sections 310 and 316 of the California General
Corporation Law or liability for (i) acts or omissions that involve intentional
misconduct or knowing and culpable violation of law, (ii) acts or omissions that
a director believes to be contrary to the best interests of the Registrant or
its shareholders or that involve the absence of good faith on the part of the
director, (iii) any transaction from which a director derived an improper
personal benefit, (iv) acts or omissions that show a reckless disregard for the
director's duty to the Registrant or its shareholders in circumstances in which
the director was aware, or should have been aware, in the ordinary course of
performing a director's duties, of a risk of serious injury to the Registrant or
its shareholders and (v) acts or omissions that constitute an unexcused pattern
of inattention that amounts to an abdication of the director's duty to the
Registrants or its shareholders. This provision does not eliminate the
directors' duty of care, and in appropriate circumstances equitable remedies
such as an injunction or other forms of non-monetary relief would remain
available under California law.
Sections 204(a) and 317 of the California General Corporation Law authorize
a corporation to indemnify its directors, officers, employees and other agents
in terms sufficiently broad to permit indemnification (including reimbursement
for expense) under certain circumstances for liabilities arising under the
Securities Act of 1933, as amended (the "Securities Act"). The Registrant's
Articles of Incorporation and Bylaws contain provisions covering indemnification
of corporate directors, officers and other agents against certain liabilities
and expenses incurred as a result of proceedings involving such persons in their
capacities as directors, officers, employees or agents, including proceedings
under the Securities Act or the Securities Exchange Act of 1934, as amended. The
Company has entered into Indemnification Agreements with its directors and
executive officers.
At present, there is no pending litigation or proceeding involving a
director, officer, employee or other agent of the Registrant in which
indemnification is being sought, nor is the Registrant aware of any threatened
litigation that may result in a claim for indemnification by any director,
officer, employee or other agent of the Registrant.
II-1
<PAGE>
ITEM 25. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses, other than
underwriting discounts and commissions, payable by the Company in connection
with the sale of Common Stock being registered. All amounts are estimates except
the SEC and NASD registration fees.
<TABLE>
<S> <C>
SEC Registration fee.............................................. $ 3,183
Printing and engraving expenses................................... 100,000
Legal fees and expenses........................................... 175,000
Underwriter's Non-Accountable expense allowance (1)............... 252,000
Consulting agreement.............................................. 72,000
Accounting fees and expenses...................................... 50,000
Blue sky fees and expenses........................................ 18,000
Transfer agent fees............................................... 1,500
Miscellaneous fees and expenses................................... 13,317
---------
Total......................................................... $ 685,000
---------
---------
</TABLE>
- ------------------------
(1) Based upon an assumed public offering price of $2.625 per share (or $289,800
if the Underwriter's over-allotment option is exercised in full).
ITEM 26. RECENT SALES OF UNREGISTERED SECURITIES
Since January 1, 1994, the Registrant has issued and sold the following
securities (after giving effect to the one-for-5.3 reverse split of the Common
Stock effected on the closing of the Company's Initial Public Offering in
December 1995):
1. The Registrant has granted options to purchase 7,165 shares of
Common Stock and issued and sold 2,143 shares of its Common Stock upon
exercise of such options to a number of employees pursuant to direct
issuances and to exercises of options under its 1990 Stock Option Plan.
2. The Registrant has granted options to purchase 8,063 shares of
Common Stock and issued and sold no shares of its Common Stock upon exercise
of such options to employees and a third party pursuant to direct issuances
and to exercises of options under its 1992 Stock Option Plan, including
options granted to Raymond R. Kingman, Jr., William G. Pryor to purchase
4,283 and 1,894 shares of Common Stock, respectively.
3. The Registrant has granted options to purchase 499,844 shares of
Common Stock and issued and sold no shares of its Common Stock upon exercise
of such options to a number of employees and directors pursuant to direct
issuances and to exercises of options under its 1995 Stock Option Plan.
4. On April 6, 1994, Registrant sold and issued an aggregate of 77,894
shares of its Series C Preferred Stock for cash in the aggregate amount of
$450,000 to entities affiliated with Hummer Winblad Venture Partners and
entities affiliated with Oak V Affiliates Fund, L.P. pursuant to a Series C
Preferred Stock Purchase Agreement. See "Certain Transactions."
5. On May 24, 1995 Registrant sold and issued an aggregate of 112,564
shares of its Series D Preferred Stock for cash in the aggregate amount of
$1,050,000 to entities affiliated with Hummer Winblad Venture Partners,
entities affiliated with Oak V Affiliates Fund, L.P. and Pinnacle
Manufacturing Professionals pursuant to a Series D Preferred Stock Purchase
Agreement. See "Certain Transactions" and "Capital Stock--Convertible Notes
and Warrants."
6. On May 24, 1995, Registrant issued to Hummer Winblad Venture
Partners and entities affiliated with Oak V Affiliates Fund, L.P., Warrants
to purchase 69,272 shares of Common Stock at an exercise price of $9.33 per
share, or in the event Registrant consummates the sale of its Common
II-2
<PAGE>
Stock pursuant to a registration statement filed on Form S-1 filed under the
Securities Act for an aggregate offering price of $5 million. See "Certain
Transactions."
7. On November 6, 1995, Registrant sold and issued 125,000 units, each
unit consisting of two shares of Series E Preferred Stock, and one Warrant
at a purchase price of $8.00 per unit, for cash of $765,000, net of issuance
costs, to the following investors in the following amount of units: Hummer
Winblad Ventures (3,125 units), Oak V Affiliates Fund, L.P. (6,250 units),
American High Growth Equities Retirement Trust (50,000 units), Jack Balter
(3,125 units), Dr. Mannie Magid (3,125 units), George L. Black Trust (6,250
units), Leon Feldan (3,125 units), Ronald Mickwee (3,125 units), Joan
Plastiras Myers (3,125 units), Nicholas W. and Geraldine Perilli (3,125
units), James R. Ratliff (6,250 units), David Rosenberg (3,125 units), Alan
J. Rubin (6,250 units), The Salzman Group, Ltd. (6,250 units), Donald L. &
Lucy A. Stoner Trust (6,250 units), Lawrence S. Weisman (6,250 units),
Donald B. Witmer (6,250 units). See "Certain Transactions."
8. On November 10, 1995, Registrant granted options to purchase an
aggregate of 335,000 shares of Common Stock under its 1995 Stock Option
Plan, at an exercise price of $3.50 per share to Raymond R. Kingman, Jr.,
William G. Pryor and Donald B. Witmer to purchase 100,000, 100,000 and
135,000 shares of Common Stock, respectively.
9. On November 8, 1995 issued to each of Hummer Winblad Ventures and
Oak Affiliates a warrant to purchase 31,667 of Common Stock exercisable at a
price of $7.20 per share for a period of 30 months following December 26,
1995 and a price of $8.40 per share from such time until November 6, 2000.
10. On April 22, 1996, Registrant granted options to purchase an
aggregate of 155,000 shares of Common Stock under its 1995 Stock Option
Plan, at an exercise price of $9.50 per share to John J. Ambrose and Donald
B. Witmer to purchase 145,000 and 10,000 shares of Common Stock,
respectively.
11. On August 13, 1996, Registrant granted options to purchase 20,000
shares of Common Stock under its 1995 Stock Option Plan, at an exercise
price of $7.50 per share to Patrick Grady.
12. On November 4, 1996, Registrant granted options to purchase 40,000
shares of Common Stock under its 1995 Stock Option Plan, at an exercise
price of $7.50 per share to Donald Witmer.
13. In December 1996, holders of warrants exercised warrants to purchase
an aggregate of 189,297 shares of Common Stock at a purchase price of $5.00
per share, including warrants to purchase an aggregate of 145,547 shares of
Common Stock exercised by Oak Investment Partners V, L.P. and Oak V
Affiliates Fund, L.P. The shares issued are covered by Post-Effective
Amendment No. 2 to Registration Statement on Form SB-2 (Registration No.
333-3784).
14. On December 31, 1996, Registrant issued $2,000,000 principal amount
of 6% Convertible Subordinated Debentures to High Risk Opportunities Hub
Fund Ltd. and $150,000 principal amount thereof to American High Growth
Equities Retirement Trust.
15. In November 1996, Registrant issued 30,970 shares of Common Stock to
Oak Investment Partners V, L.P., 697 shares of Common Stock to Oak V
Affiliates Fund, L.P., 30,084 shares of Common Stock to Hummer Winblad
Venture Partners and 1,583 shares of Common Stock to Hummer Winblad
Technology Fund, all pursuant to the conversion of the notes described in
the chart and footnote 7 in "Certain Transactions." Such shares are covered
by this Registration Statement.
16. On December 31, 1996, Registrant issued the Placement Agent's
Warrant to purchase 16,538 shares of Common Stock at an exercise price of
$6.50 per share to H.J. Meyers & Co., Inc.
17. On March 27, 1997, Registrant granted options to purchase 120,000
shares of Common Stock at an exercise price of $2.25 per share to Jeffrey
Ait.
II-3
<PAGE>
18. On July 11, 1997, Registrant issued 550,029 shares of Common Stock
to the former stockholders of Site/technologies/inc.
The issuance described in Items 1 through 16 were deemed to be exempt from
registration under the Securities Act in reliance on Section 4(2) under the
Securities Act as transactions by an issuer not involving a public offering or
on Rule 701 promulgated under the Securities Act. In addition, the recipients of
securities in each such transaction represented their intentions to acquire the
securities for investment only and not with a view to or for sale in connection
with any distribution thereof and appropriate legends were affixed to the share
certificates issued in such transactions. All recipients had adequate access,
through their relationships with the Registrant, to information about the
Registrant.
ITEM 27. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ------------------- ---------------------------------------------------------------------------------------------------
<C> <S>
1.1* Form Underwriting Agreement
3.1(1) Registrant's Amended and Restated Articles of Incorporation
3.2(2) Registrant's Bylaws
3.3(3) Amended and Restated Certificate of Determination of Series A Preferred Stock
4.1(2) Specimen Certificate of Registrant's Common Stock
4.2(2) Form of Warrant
4.3(2) Form of H.J. Meyers & Co.'s Warrant
4.4(2) Loan and Warrant Agreement between Registrant and certain investors dated as of March 29, 1993
4.5(2) Amended and Restated Investor Rights Agreement between Registrant and the investors specified
therein dated as of November 6, 1995
4.6* Form of H.J. Meyers & Co.'s Warrant
5.1* Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation
10.1(2) Real Property Lease between Registrant and Owens Mortgage Investment Fund dated as of August 18,
1995
10.2(2) 1990 Stock Option Plan
10.3(2) 1992 Stock Option Plan
10.4(2)(5) 1995 Stock Option Plan
10.5(2) Form of Indemnification Agreement
10.6.1(2)(4) Distribution Agreement between Registrant and Nippon Polaroid Kabushiki Kaisha dated as of November
12, 1991
10.6.2(2)(4) Distributor Software License Agreement between Registrant and Nippon Polaroid K.K. Supplements
dated as of December 24, 1993, June 6, 1994 and two supplements dated as of June 28, 1995
10.7(2) Series E Preferred Stock and Warrant Purchase Agreement dated November 6, 1995 among Registrant and
the investors named therein
10.8(2) Employment Agreement dated as of November 1, 1995 between Registrant and Donald B. Witmer
10.9(2) Employment Agreement dated November 8, 1995 between Registrant and Raymond R. Kingman, Jr.
10.10(2) Employment Agreement dated November 8, 1995 between Registrant and William G. Pryor
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ------------------- ---------------------------------------------------------------------------------------------------
<C> <S>
10.11(2)(4) Agreement dated December 15, 1995 among Registrant, Global Technologies Corporation and William
French
10.12(2) Termination Agreement dated as of November 8, 1995 among the Registrant and certain shareholders of
the Company named therein
10.13(2) Amendment Agreement dated as of December , 1995 among the Registrant and certain shareholders of
the Company named therein
10.14(5) Employment Agreement dated December 26, 1995 between Registrant and William A. French
10.15(3) Separation Agreement and Release between Registrant and Raymond R. Kingman, Jr. dated April 5, 1996
10.16(3) Offer letter dated March 29, 1996 between Registrant and John J. Ambrose
10.17(6) Form of 6% Convertible Subordinated Debentures issued by Registrant on December 31, 1996 to High
Risk Opportunities Hub Fund Ltd. and American High Growth Equities Retirement Trust
10.18(7) Offer letter dated as of March 24, 1997 between the Registrant and Jeffrey F. Ait
10.19(3) Series A Preferred Stock Purchase Agreement dated as of May 6, 1997 between Registrant and High
Risk Opportunities Hub Fund, Ltd.
10.20(3) Letter of Intent dated April 16, 1997 among Registrant, Inlet Divestiture Corp., Inlet, Inc., Terry
Millard and Todd Millard
10.21.1(8) Asset Purchase Agreement dated June 27, 1997 between Registrant and SPSS, Inc.
10.21.2(8) Interim Management Agreement dated June 27, 1997 between Registrant and SPSS, Inc.
10.22.1(9) Stock Exchange Agreement dated July 11, 1997 among Registrant, Site/technologies/inc. and the
persons and entities party thereto
10.22.2(9) Registration Rights Agreement dated as of July 11, 1997 by and among Registrant and the persons and
entities party thereto
10.23 Lease dated July 9, 1997, by and between Carbonero Creek Associates and DeltaPoint, Inc.
21.1 Subsidiaries of the Registrant
23.1 Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation (included in Exhibit 5.1)
23.2 Consent of Price Waterhouse LLP
24.1 Power of Attorney (included on Page II-7)
</TABLE>
- ------------------------
(1) Incorporated by reference to Registrant's Annual Report on Form 10-KSB filed
March 26, 1997.
(2) Incorporated by reference to Registrant's Registration Statement on Form
SB-2, filed December 19, 1995 (File No. 33-99300).
(3) Incorporated by reference to Registrant's Post-Effective Amendment No. 5 to
Registration Statement on Form SB-2 (File No. 333-3784).
(4) Confidential treatment requested as to certain portions of this exhibit.
(5) Incorporated by reference to Registrant's Registration Statement on Form S-8
filed March 6, 1996 (File No. 333-2192).
(6) Incorporated by reference to Registrant's Post-Effective Amendment No. 1 to
Registration Statement on Form SB-2, filed February 28, 1997 (File No.
333-17733).
(7) Incorporated by reference to Registrant's Amendment No. 1 to Registration
Statement on Form SB-2 filed April 9, 1997 (File No. 333-22565).
II-5
<PAGE>
(8) Incorporated by reference to Registrant's filing on Form 8-K filed on July
11, 1997.
(9) Incorporated by reference to Registrant's filing on Form 8-K filed on July
31, 1997.
* Previously filed.
** Filed herewith.
ITEM 28. UNDERTAKINGS
Insofar as indemnification by the Registrant for liabilities arising under
the Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions referenced in Item 14 of
this Registration Statement or otherwise, the Registrant has been advised that
in the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act, and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer, or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered hereunder, the Registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
The undersigned Registrant hereby undertakes:
That for purposes of determining any liability under the Securities Act, the
information omitted from the form of Prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement.
For the purpose of determining any liability under the Securities Act, each
post-effective amendment that contains a form of Prospectus shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
The Registrant further undertakes to remove from registration by means of a
post-effective amendment any of the securities being registered which remain
unsold at the termination of the Offering.
II-6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Monterey, State of
California, on September 30, 1997.
DELTAPOINT, INC.
By: /s/ JEFFREY F. AIT
------------------------------------------
Jeffrey F. Ait
CHIEF EXECUTIVE OFFICER
Pursuant to the requirements of the Securities Act of 1933, this Amendment
to the Registration Statement has been signed on September 30, 1997 by the
following persons in the capacities indicated:
SIGNATURE TITLE
------------------------- --------------------------
Chief Executive Officer
/s/ JEFFREY F. AIT and Director (Principal
------------------------- Executive Officer and
Jeffrey F. Ait Acting Principal
(ATTORNEY-IN-FACT) Financial and Accounting
Officer)
* /s/ JOHN HUMMER
------------------------- Director
John Hummer
* /s/ PATRICK GRADY
------------------------- Director
Patrick Grady
* /s/ STEPHEN F. MENDEL
------------------------- Director
Stephen F. Mendel
* /s/ JOSEPH MARENGI
------------------------- Director
Joseph Marengi
* /s/ JEFFREY F. AIT
-------------------------
Jeffrey F. Ait
(ATTORNEY-IN-FACT)
II-7
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT SEQUENTIALLY
NUMBER EXHIBITS NUMBERED PAGE
- ----------- ---------------------------------------------------------------------------------------- -------------------
<C> <S> <C>
10.23 Lease dated July 9, 1997, by and between Carbonero Creek Associates and DeltaPoint, Inc.
21.1 Subsidiaries of the Registrant
23.1 Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation (included in
Exhibit 5.1)
23.2 Consent of Price Waterhouse LLP
24.1 Power of Attorney (included on Page II-7)
</TABLE>
<PAGE>
STANDARD INDUSTRIAL/COMMERCIAL MULTI-TENANT LEASE--MODIFIED NET
AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION
[LOGO]
1. BASIC PROVISIONS ("BASIC PROVISIONS").
1.1 PARTIES: THIS LEASE ("LEASE"), dated for reference purposes
only, July 9, 1997, is made by and between Carbonero Creek Associates
("LESSOR") and Delta Point, Inc. A California Corporation ("LESSEE"),
(collectively the "PARTIES," or individually a "PARTY").
1.2(e) PREMISES: That certain portion of the Building, including all
improvements therein or to be provided by Lessor under the terms of this
Lease, commonly known by the street address of 380 El Pueblo Road, located in
the City of Scotts Valley, County of Santa Cruz, State of California, with
zip code 95066, as outlined on Exhibit A attached hereto ("PREMISES"). The
"BUILDING" is that certain building containing the Premises and generally
described as (describe briefly the nature of the Building): Approximately
18,383 square feet of office and manufacturing space. In addition to Lessee's
rights to use and occupy the Premises as hereinafter specified, Lessee shall
have non-exclusive rights to the Common Areas (as defined in Paragraph 2.7
below) as hereinafter specified, but shall not have any rights to the roof,
exterior walls or utility raceways of the Building or to any other buildings
in the Industrial Center. The Premises, the Building, the Common Areas, the
land upon which they are located, along with all other buildings and
improvements thereon, are herein collectively referred to as the "INDUSTRIAL
CENTER." (Also see Paragraph 2.)
1.2(b) PARKING: Common and unreserved vehicle parking spaces per
building standard ("UNRESERVED PARKING SPACES"); and reserved vehicle parking
spaces ("RESERVED PARKING SPACES"). (Also see Paragraph 2.6.)
1.3 TERM: 3 years and 6 months ("Original Term") commencing October
1, 1997 ("Commencement Date") and ending March 31, 2001 ("EXPIRATION DATE").
(Also see Paragraph 3.)
1.4 EARLY POSSESSION: __________("EARLY POSSESSION DATE"). (Also
see Paragraphs 3.2 and 3.3.)
1.5 BASE RENT: $ See Addendum per month ("BASE RENT"), payable on
the 1st day of each month commencing ______________________. (Also see
Paragraph 4.)
[ ] If this box is checked, this Lease provides for the Base Rent to be
adjusted per Addendum ______, attached hereto.
1.6(a) BASE RENT PAID UPON EXECUTION: $18,383 as Base Rent for the
period April, 1998.
1.6(b) LESSEE'S SHARE OF COMMON AREA OPERATING EXPENSES: 39.26 percent
( %) ("LESSEE'S SHARE") as determined by [x] prorate square footage of the
Premises as compared to the total square footage of the Building or [ ]
other criteria as described in Addendum ____.
1.7 SECURITY DEPOSIT: $18,383.00 ("SECURITY DEPOSIT"). (Also see
Paragraph 5.)
1.8 PERMITTED USE* Office, Warehouse *See Addendum #2 ("PERMITTED
USE") (Also see Paragraph 6.)
1.9 INSURING PARTY. Lessor is the "INSURING PARTY." (Also see
Paragraph 8.)
1.10(a) REAL ESTATE BROKERS. The following real estate broker(s)
collectively, the "BROKERS") and brokerage relationships exist in this
transaction and are consented to by the Parties (check applicable boxes):
[ ] Colliers Parrish represents Lessor exclusively ("LESSOR'S BROKER");
[ ] E&Y Kenneth Leventhal represents Lessee exclusively ("LESSEE'S BROKER");or
[ ] ________________ represents both Lessor and Lessee ("DUAL AGENCY"). (Also
see Paragraph 15.)
1.10(b) PAYMENT TO BROKERS. Upon the execution of this Lease by both
Parties, Lessor shall pay to said Broker(s) jointly, or in such separate
shares as they may mutually designate in writing, a fee as set forth in a
separate written agreement between Lessor and said Broker(s) (or in the event
there is no separate written agreement between Lessor and said Broker(s), the
sum of $_____ per separate agreement) for brokerage services rendered by said
Broker(s) in connection with this transaction.
("GUARANTOR"). (Also see Paragraph 37.)
1.12 ADDENDA AND EXHIBITS. Attached hereto is an Addendum or Addenda
consisting of Paragraphs 1 through 10, and Exhibits A through B, all of which
constitute a part of this Lease.
2. PREMISES, PARKING AND COMMON AREAS.
2.1 LETTING. Lessor hereby Leases to Lessee, and Lessee hereby
leases from Lessor, the Premises, for the term, at the rental, and upon all
of the terms, covenants and conditions set forth in this Lease. Unless
otherwise provided herein, any statement of square footage set forth in this
Lease, or that may have been used in calculating rental and/or Common Area
Operating Expenses, is an approximation which Lessor and Lessee agree is
reasonable and the rental and Lessee's Share (as defined in Paragraph 1.6(b))
based thereon is not subject to revision whether or not the actual square
footage is more or less.
2.2 CONDITION. Lessor shall deliver the Premises to Lessee clean
and free of debris on the Commencement Date and warrants to Lessee that the
existing plumbing, electrical systems, fire sprinkler system, lighting, air
conditioning and heating systems and loading doors, if any, in the Premises,
other than those constructed by Lessee, shall be in good operating condition
on the Commencement Date. If a non-compliance with said warranty exists as of
the Commencement Date, Lessor shall, except as otherwise provided in this
Lease, promptly after receipt of written notice from Lessee setting forth
with* specificity the nature and extent of such non-compliance, rectify same
at Lessor's expense. If Lessee does not give Lessor written notice of a
non-compliance with this warranty within thirty (30) days after the
Commencement Date, correction of that non-compliance shall be the obligation
of Lessee at Lessee's sole cost and expense. *See Addendum #2.
2.3 COMPLIANCE WITH COVENANTS, RESTRICTIONS AND BUILDING CODE.
Lessor warrants that any improvements (other than those constructed by Lessee
or at Lessee's direction) on or in the Premises which have been constructed
or installed by Lessor or with Lessor's consent or at Lessor's direction
shall comply with all applicable covenants or restrictions of record and
applicable building codes, regulations and ordinances in effect on the
Commencement Date. Lessor further warrants to Lessee that Lessor has no
knowledge of any claim having been made by any governmental agency that a
violation or violations of applicable building codes, regulations, or
ordinances exist with regard to the Premises as of the Commencement Date.
Said warranties shall not apply to any Alterations or Utility Installations
(defined in Paragraph 7.3(a)) made or to be made by Lessee. If the Premises
do not comply with said warranties, Lessor shall, except as otherwise
provided in this Lease, promptly after receipt of written notice from Lessee
given within six (6) months following the Commencement Date and setting forth
with specificity the nature and extent of such non-compliance, take such
action, at Lessor's expense, as may be reasonable or appropriate to rectify
the non-compliance. Lessor makes no warranty that the Permitted Use in
Paragraph 1.8 is permitted for the Premises under Applicable Laws (as defined
in Paragraph 2.4).
2.4 ACCEPTANCE OF PREMISES. Lessee hereby acknowledges: (a) that
it has been advised by the Broker(s) to satisfy itself with respect to the
condition of the Premises (including but not limited to the electrical and
fire sprinkler systems, security, environmental aspects, seismic and
earthquake requirements and compliance with the Americans with Disabilities
Act and applicable zoning, municipal, county, state and federal laws,
ordinances and regulations and any covenants or restrictions of record
(collectively, "APPLICABLE LAWS") and the present and future suitability of
the Premises for Lessee's intended use; (b) that Lessee has made such
investigation as it deems necessary with reference to such matters, is
satisfied with reference thereto, and assumes all responsibility therefore as
the same relate to Lessee's occupancy of the Premises and/or the terms of
this Lease; and (c) that neither Lessor, nor any of Lessor's agents, has made
any oral or written representations or warranties with respect to said
matters other than as set forth in this Lease.
2.5 LESSEE AS PRIOR OWNER/OCCUPANT. The warranties made by
Lessor in this Paragraph 2 shall be of no force or effect if immediately
prior to the date set forth in Paragraph 1.1 Lessee was the owner or occupant
of the Premises. In such event, Lessee shall, at Lessee's sole cost and
expense, correct any non-compliance of the Premises with said warranties.
<PAGE>
2.6 VEHICLE PARKING. Lessee shall be entitled to use the number
of Unreserved Parking Spaces and Reserved Parking Spaces specified in
Paragraph 1.2(b) on those portions of the Common Areas designated from time
to time by Lessor for parking. Lessee shall not use more parking spaces than
said number. Said parking spaces shall be used for parking by vehicles no
larger than full-size passenger automobiles or pick-up trucks, herein called
"PERMITTED SIZE VEHICLES." Vehicles other than Permitted Size Vehicles shall
be parked and loaded or unloaded as directed by Lessor in the
Rules and Regulations (as defined in Paragraph 40) issued by Lessor. (Also
see Paragraph 2.9.)
(a) Lessee shall not permit or allow any vehicles that belong
to or are controlled by Lessee or Lessee's employees, suppliers, shippers,
customers, contractors or invitees to be loaded, unloaded, or parked in areas
other than those designated by Lessor for such activities.
(b) If Lessee permits or allows any of the prohibited
activities described in this Paragraph 2.6, then Lessor shall have the right,
without notice, in addition to such other rights and remedies that it may
have, to remove or tow away the vehicle involved and charge the cost* to
Lessee, which cost shall be immediately payable upon demand by Lessor.
*See Addendum #2
(c) Lessor shall of the Commencement Date of this Lease,
provide the parking facilities required by Applicable Law.
2.7 COMMON AREAS - DEFINITION. The term "COMMON AREAS" is defined
as all areas and facilities outside the Premises and within the exterior
boundary line of the Industrial Center and interior utility
raceways within the Premises that are provided and designated by the Lessor
from time to time for the general non-exclusive use of Lessor, Lessee and
other lessees of the Industrial Center and their respective employees,
suppliers, shippers, customers, contractors and invitees, including parking
areas, loading and unloading areas, trash areas, roadways, sidewalks,
walkways, parkways, driveways and landscaped areas. *See Addendum #2
2.8 COMMON AREAS - LESSEE'S RIGHTS. Lessor hereby grants to Lessee,
for the benefit of Lessee and its employees, suppliers, shippers,
contractors, customers and invitees, during the term of this Lease, the
non-exclusive right to use, in common with others entitled to such use, the
Common Areas as they exist from time to time, subject to any rights, powers,
and privileges reserved by Lessor under the terms hereof or under the terms
of any rules and regulations or restrictions governing the use of the
Industrial Center. Under no circumstances shall the right herein granted to
use the Common Areas be deemed to include the right to store any property,
temporarily or permanently, in the Common Areas. Any such storage shall be
permitted only by the prior written consent of Lessor or Lessor's designated
agent, which consent may be revoked at any time. In the event that any
unauthorized storage shall occur then Lessor shall have the right, without
notice, in addition to such other rights and remedies that it may have, to
remove the property and charge the cost to Lessee, which cost shall be
immediately payable upon demand by Lessor.
2.9 COMMON AREAS - RULES AND REGULATIONS. Lessor or such other
person(s) as Lessor may appoint shall have the exclusive control and
management of the Common Areas and shall have the right, from time to time,
to establish, modify, amend and enforce reasonable Rules and Regulations with
respect thereto in accordance with Paragraph 40. Lessee agrees to abide by
and conform to all such Rules and Regulations* and to cause its employees,
suppliers, shippers, customers, contractors and invitees to so abide and
conform. Lessor shall not be responsible to Lessee for the non-compliance
with said rules and regulations by other lessees of the Industrial Center.
*See Addendum #2
2.10 COMMON AREAS - CHANGES. Lessor shall have the right, in
Lessor's sole discretion, from time to time:
(a) To make changes to the Common Areas, including, without
limitation, changes in the location, size, shape and number of driveways,
entrances, parking spaces, parking areas, loading and unloading areas,
ingress, egress, direction of traffic, landscaped areas, walkways and utility
raceways;
(b) To close temporarily any of the Common Areas for
maintenance purposes so long as reasonable access to the Premises remains
available;
(c) To designate other land outside the boundaries of the
Industrial Center to be a part of the Common Areas;
(d) To add additional buildings and improvements to the
Common Areas;
(e) To use the Common Areas while engaged in making
additional improvements, repairs or alterations to the Industrial Center, or
any portion thereof; and
(f) To do and perform such other acts and make such other
changes in, to or with respect to the Common Areas and Industrial Center as
Lessor may, in the exercise of sound business judgment, deem to be
appropriate.
3. TERM.
3.1 TERM. The Commencement Date, Expiration Date and Original
Term of this Lease are as specified in Paragraph 1.3.
3.2 EARLY POSSESSION. If an Early Possession Date is specified in
Paragraph 1.4 and if Lessee totally or partially occupies the Premises after
the Early Possession Date but prior to the Commencement Date, the obligation
to pay Base Rent shall be abated for the period of such early occupancy. All
other terms of this Lease, however, (including but not limited to the
obligations to pay Lessee's Share of Common Area Operating Expenses and to
carry the insurance required by Paragraph 8) shall be in effect during such
period. Any such early possession shall not affect nor advance the Expiration
Date of the Original Term.
3.3 DELAY IN POSSESSION. If for any reason Lessor cannot deliver
possession of the Premises to Lessee by the Early Possession Date, if one is
specified in Paragraph 1.4, or if no Early Possession Date is specified, by
the Commencement Date, Lessor shall not be subject to any liability
therefor, nor shall such failure affect the validity of this Lease, or the
obligations of Lessee hereunder, or extend the term hereof, but in such case,
Lessee shall not, except as otherwise provided herein, be obligated to pay
rent or perform any other obligation of Lessee under the terms of this Lease
until Lessor delivers possession of the Premises to Lessee. If possession of
the Premises is not delivered to Lessee within sixty (60) days after the
Commencement Date, *Lessee may, at its option, by notice in *See Addendum #2
writing to Lessor within ten (10) days after the end of said sixty (60) day
period, cancel this Lease, in which event the parties shall be discharged
from all obligations hereunder; provided further, however, that if such
written notice of Lessee is not received by Lessor within said ten (10) day
period, Lessee's right to cancel this Lease hereunder shall terminate and be
of no further force or effect. Except as may be otherwise provided, and
regardless of when the Original Term actually commences, if possession is not
tendered to Lessee when required by this Lease and Lessee does not terminate
this Lease, as aforesaid, the period free of the obligation to pay Base Rent,
if any, that Lessee would otherwise have enjoyed shall run from the date of
delivery of possession and continue for a period equal to the period during
which the Lessee would have otherwise enjoyed under the terms hereof, but
minus any days of delay caused by the acts, changes or omissions of Lessee.
4. RENT.
4.1 BASE RENT. Lessee shall pay Base Rent and other rent or
charges, as the same may be adjusted from time to time, to Lessor in lawful
money of the United States, without offset or deduction, on or before the day
on which it is due under the terms of this Lease. Base Rent and all other
rent and charges for any period during the term hereof which is for less than
one full month shall be prorated based upon the actual number of days of the
month involved. Payment of Base Rent and other charges shall be made to
Lessor at its address stated herein or to such other persons or at such
other addresses as Lessor may from time to time designate in writing to
Lessee.
4.2 COMMON AREA OPERATING EXPENSES. Lessee shall pay to Lessor
during the term hereof, in addition to the Base Rent, Lessee's Share (as
specified in Paragraph 1.6(b)) of all Common Area Operating Expenses, as
hereinafter defined, during each calendar year of the term of this Lease, in
accordance with the following provisions:
(a) "COMMON AREA OPERATING EXPENSES" are defined, for
purposes of this Lease, as all costs incurred by Lessor* relating to the
ownership and operation of the Industrial Center, including, but not limited
to, the following:
*See Addendum #2
(i) The operation, repair and maintenance, in neat,
clean, good order and condition, of the following:
(aa) The Common Areas, including parking areas,
loading and unloading areas, trash areas, roadways, sidewalks, walkways,
parkways, driveways, landscaped areas, striping, bumpers, irrigation systems,
Common Area lighting facilities, fences and gates, elevators and roof.
(bb) Exterior signs and any tenant directories.
(cc) Fire detection and sprinkler systems.
(ii) The cost of water, gas, electricity and
telephone to service the Common Areas.
(iii) Trash disposal,* property management and
security services and the costs of any environmental inspections. *See
Addendum #2
(iv) Reserves set aside for maintenance and repair of
Common Areas.
(v) Real Property Taxes (as defined in Paragraph
10.2) to be paid by Lessor for the Building and the Common Areas under
Paragraph 10 hereof.
(vi) The cost of the premiums for the insurance
policies maintained by Lessor under Paragraph 8 hereof.
(vii) Any deductible portion of an insured loss
concerning the Building or the Common Areas. *See Addendum #2
(viii) Any other services to be provided by Lessor that
are stated elsewhere in this Lease to be a Common Area Operating Expense.
(b) Any Common Area Operating Expenses and Real Property
Taxes that are specifically attributable to the Building or to any other
building in the Industrial Center or to the operation, repair and maintenance
thereof, shall be allocated entirely to the Building or to such other
building. However, any Common Area Operating Expenses and Real Property Taxes
that are not specifically attributable to the Building or to any other
building or to the operation, repair and maintenance thereof, shall be
equitably allocated by Lessor to all buildings in the Industrial Center.
(c) The inclusion of the improvements, facilities and
services set forth in Subparagraph 4.2(a) shall not be deemed to impose an
obligation upon Lessor to either have said improvements or facilities or to
provide those services unless the Industrial Center already has the same,
Lessor already provides the services, or Lessor has agreed elsewhere in this
Lease to provide the same or some of them.
(d) Lessee's Share of Common Area Operating Expenses shall be
payable by Lessee within ten (10) days after a reasonably detailed statement
of actual expenses is presented to Lessee by Lessor. At Lessor's option,
however, an amount may be estimated by Lessor from time to time of Lessee's
Share of annual Common Area Operating Expenses and the same shall be payable
monthly or quarterly, as Lessor shall designate, during each 12-month period
of the Lease term, on the same day as the Base Rent is due hereunder. Lessor
shall deliver to Lessee within sixty (60) days after the expiration of each
calendar year a reasonably detailed statement showing Lessee's Share of the
actual Common Area Operating Expenses incurred during the preceding year. If
Lessee's payments under this Paragraph 4.2(d) during said preceding year
exceed Lessee's Share as indicated on said statement, Lessor shall be
credited the amount of such over-
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payment against Lessee's Share of Common Area Operating Expenses next
becoming due. If Lessee's payments under this Paragraph 4.2(d) during said
preceding year were less than Lessee's Share as indicated on said statement,
Lessee shall pay to Lessor the amount of the deficiency within ten (10) days
after delivery by Lessor to Lessee of said statement. *See Addendum #2
5. SECURITY DEPOSIT. Lessee shall deposit with Lessor upon Lessee's
execution hereof the Security Deposit set forth in Paragraph 1.7 as security
for Lessee's faithful performance of Lessee's obligations under this Lease.
If Lessee fails to pay Base Rent or other rent or charges due hereunder, or
otherwise Defaults under this Lease (as defined in Paragraph 13.1), Lessor
may use, apply or retain all or any portion of said Security Deposit for the
payment of any amount due Lessor or to reimburse or compensate Lessor for any
liability, cost, expense, loss or damage (including attorneys' fees) which
Lessor may suffer or incur by reason thereof. If Lessor uses or applies all
or any portion of said Security Deposit, Lessee shall within ten (10) days
after written request therefore deposit monies with Lessor sufficient to
restore said Security Deposit to the full amount required by this Lease. Any
time the Base Rent increases during the term of this Lease, Lessee shall,
upon written request from Lessor, deposit additional monies with Lessor as an
addition to the Security Deposit so that the total amount of the Security
Deposit shall at all times bear the same proportion to the then current Base
Rate as the Initial Security Deposit bears to the initial Base Rent set forth
in Paragraph 1.5. Lessor shall not be required to keep all or any part of the
Security Deposit separate from its general accounts. Lessor shall, at the
expiration or earlier termination of the term hereof and after Lessee has
vacated the Premises, return to Lessee (or, at Lessor's option, to the last
assignee, if any, of Lessee's interest herein),* that portion of the Security
Deposit not used or applied by Lessor. Unless otherwise expressly agreed in
writing by Lessor, no part of the Security Deposit shall be considered to be
held in trust, to bear interest or other increment for its use, or to be
prepayment for any monies to be paid by Lessee under this Lease. *See
Addendum #2
6. USE.
6.1 PERMITTED USE.
(a) Lessee shall use and occupy the Premises only for the
Permitted Use set forth in Paragraph 1.8, or any other legal use which is
reasonably comparable thereto, and for no other purpose. Lessee shall not use
or permit the use of the Premises in a manner that is unlawful, creates waste
or a nuisance, or that disturbs owners and/or occupants of, or causes damage
to the premises or neighboring premises or properties.
(b) Lessor hereby agrees to not unreasonably withhold or delay
its consent to any written request by Lessee, Lessee's assignees or
subtenants, and by prospective assignees and subtenants of Lessee, its
assignees and subtenants, for a modification of said Permitted Use, so long
as the same will not impair the structural integrity of the Improvements on
the Premises or in the Building or the mechanical or electrical systems
therein, does not* conflict with uses by other lessees, is not significantly
more burdensome to the Premises or the Building and the Improvements thereon,
and is otherwise permissible pursuant to this Paragraph 6. If Lessor elects
to withhold such consent, Lessor shall within five (5) business days after
such request give a written notification of same, which notice shall include
an explanation of Lessor's reasonable objections to the change in use. *See
Addendum #2
6.2 HAZARDOUS SUBSTANCES
(a) REPORTABLE USES REQUIRE CONSENT. The term "HAZARDOUS
SUBSTANCE" as used in this Lease shall mean any product, substance, chemical,
material or waste whose presence, nature, quantity and/or intensity of
existence, use, manufacture, disposal, transportation, spill, release or
effect, either by itself or in combination with other materials expected to
be on the Premises, is either: (i) potentially injurious to the public
health, safety or welfare, the environment, or the Premises; (ii) regulated
or monitored by any governmental authority; or (iii) a basis for potential
liability of Lessor to any governmental agency or third party under any
applicable statute or common law theory. Hazardous Substance shall include,
but not be limited to, hydrocarbons, petroleum, gasoline, crude oil or any
any products or by-products thereof. Lessee shall not engage in any activity
in or about the Premises which constitutes a Reportable Use (as hereinafter
defined) Hazardous Substances without the substances without the express
prior written consent of Lessor and compliance in a timely manner (at
Lessee's sole cost and expense) with all Application Requirements (as
defined in Paragraph 6.3). "REPORTABLE USE" shall mean (i) the installation
or use of any above or below ground storage tank, (ii) the generation,
possession, storage, use, transportation, or disposal of a Hazardous
Substance that requires a permit from, or with respect to which a report,
notice, registration or business plan is required to be filed with, any
governmental authority, and (iii) the presence in, on or about the Premises
of a Hazardous Substance with respect to which any Applicable Laws
require that a notice be given to persons entering or occupying the Premises
or neighboring properties. Notwithstanding the foregoing, Lessee may, without
Lessor's prior consent, but upon notice to Lessor and in compliance with all
Applicable Requirements, use any ordinary and customary materials reasonably
required to be used by Lessee in the normal course of the Permitted Use, so
long as such use is not a Reportable Use and does not expose the Premises or
neighboring properties to any meaningful risk of contamination or damage or
expose Lessor to any liability therefor. In addition, Lessor may (but without
any obligation to do so) condition its consent to any Reportable Use of any
Hazardous Substance by Lessee upon Lessee's giving Lessor such additional
assurances as Lessor, in its reasonable discretion, deems necessary to
protect itself, the public, the Premises and the environment against damage,
contamination or injury and/or liability therefor, including but not limited
to the installation (and, at Lessor's option, removal on or before Lease
expiration or earlier termination) of reasonably necessary protective
modifications to the Premises (such as concrete encasements) and/or the
deposit of an additional Security Deposit under Paragraph 5 hereof. *See
Addendum #2
(b) DUTY TO INFORM LESSOR. If Lessee knows, or has reasonable
cause to believe, that a Hazardous Substance has come to be located in, on,
under or about the Premises or the Building, other than as previously
consented to by Lessor, Lessee shall immediately give Lessor written notice
thereof, together with a copy of any statement, report, notice, registration,
application, permit, business plan, license, claim, action, or proceeding
given to, or received from, any governmental authority or private party
concerning the presence, spill, release, discharge of, or exposure to, such
Hazardous Substance including but not limited to all such documents as may be
involved in any Reportable Use involving the Premises. Lessee shall not cause
or permit any Hazardous Substance to be spilled or released in, on, under or
about the Premises (including, without limitation, through the plumbing or
sanitary sewer system).
(c) INDEMNIFICATION. Lessee shall indemnify, protect, defend
and hold Lessor, his agents, employees, lenders and ground lessor, if any,
and the Premises, harmless from and against any and all damages,
liabilities, judgments, costs, claims, liens, expenses, penalties, loss of
permits and attorneys' and consultants' fees arising out of or involving any
Hazardous Substance brought onto the Premises by or for Lessee or by anyone
under Lessee's control. Lessee's obligations under this Paragraph 6.2(c)
shall include, but not be limited to, the effects of any contamination or
injury to person, property or the environment created or suffered by Lessee,
and the cost of investigation (including consultants' and attorneys' fees and
testing), removal, remediation, restoration and/or abatement thereof, or of
any contamination therein involved,* and shall survive the expiration or
earlier termination of this Lease. No termination, cancellation or release
agreement entered into by Lessor and Lessee shall release Lessee from its
obligations under this Lease with respect to Hazardous Substances, unless
specifically so agreed by Lessor in writing at the time of such agreement.
*See Addendum #2
6.3 LESSEE'S COMPLIANCE WITH REQUIREMENTS. Lessee shall, at Lessee's
sole cost and expense, fully, diligently and in a timely manner, comply with
all "APPLICABLE REQUIREMENTS", which term is used in this Lease to mean all
laws, rules, regulations, ordinances, directives, covenants, easements and
restrictions of record, permits, the requirements of any applicable fire
insurance underwriter or rating bureau, and the recommendations of Lessor's
engineers and/or consultants, relating in any manner to the Premises
(including but not limited to matters pertaining to (i) industrial hygiene,
(ii) environmental conditions on, in, under or about the Premises, including
soil and groundwater conditions, and (iii) the use, generation, manufacture,
production, installation, maintenance, removal, transportation, storage,
spill, or release of any Hazardous Substance), now in effect or which may
hereafter come into effect. Lessee shall, within five (5) days after receipt
of Lessor's written request, provide Lessor with copies of all documents and
information, including but not limited to permits, registrations, manifests,
applications, reports and certificates, evidencing Lessee's compliance with
any Applicable Requirements specified by Lessor, and shall immediately upon
receipt, notify Lessor in writing (with copies of any documents involved) of
any threatened or actual claim, notice, citation, warning, complaint or
report pertaining to or involving failure by Lessee or the Premises to comply
with any Applicable Requirements.
6.4 INSPECTION; COMPLIANCE WITH LAW. Lessor, Lessor's agents,
employees, contractors and designated representatives, and the holders of any
mortgages, deeds of trust or ground leases on the Premises ("Lenders") shall
have the right to enter the Premises at any time in the case of an emergency,
and otherwise at reasonable times, for the purpose of inspecting the
condition of the Premises and for verifying compliance by Lessee with this
Lease and all Applicable Requirements (as defined in Paragraph 6.3), and
Lessor shall be entitled to employ experts and/or consultants* in connection
therewith to advise Lessor with respect to Lessee's activities, including but
not limited to Lessee's installation, operation, use, monitoring,
maintenance, or removal of any Hazardous Substance on or from the Premises.
The costs and expenses of any such inspections shall be paid by the party
requesting same, unless a Default or Breach of this Lease by Lessee or a
violation of Applicable Requirements or a contamination, caused or materially
contributed to by Lessee, is found to exist or to be imminent, or unless the
inspection is requested or ordered by a governmental authority as the result
of any such existing or imminent violation or contamination. In such case,
Lessee shall upon request reimburse Lessor or Lessor's Lender, as the case
may be, for the costs and expenses of such inspections. *See Addendum #2
7. MAINTENANCE, REPAIRS, UTILITY INSTALLATIONS, TRADE FIXTURES AND
ALTERATIONS.
7.1 LESSEE'S OBLIGATIONS.
(a) Subject to the provisions of Paragraphs 2.2 (Condition), 2.3
(Compliance with Covenants, Restrictions and Building Code), 7.2 (Lessor's
Obligations), 9 (Damage or Destruction), and 14 (Condemnation), Lessee
shall, at Lessee's sole cost and expense and at all times, keep the Premises
and every part thereof in good order, condition and repair (whether or not
such portion of the Premises requiring repair, or the means of repairing the
same, are reasonably or readily accessible to Lessee, and whether or not the
need for such repairs occurs as a result of Lessee's use, any prior use,
the elements or the age of such portion of the Premises), including, without
limiting the generality of the foregoing, all equipment or facilities
specifically serving the Premises, such as plumbing, heating, air
conditioning, ventilating, electrical, lighting facilities, boilers, fired or
unfired pressure vessels, fire hose connections if within the Premises,
fixtures, interior walls, interior surfaces of exterior walls, ceilings,
floors, windows, doors, plate glass, and skylights, but excluding any items
which are the responsibility of Lessor pursuant to Paragraph 7.2 below.
Lessee, in keeping the Premises in good order, condition and repair, shall
exercise and perform good maintenance practices. Lessee's obligations shall
include restorations, replacements or renewals when necessary to keep the
Premises and all improvements thereon or a part thereof in good order,
condition and state of repair.
(b) Lessee shall, at Lessee's sole cost and expense, procure
and maintain a contract, with copies to Lessor, in customary form and
substance for and with a contractor specializing and experienced in the
inspection, maintenance and service of the heating, air conditioning and
ventilation system for the Premises. However, Lessor reserves the right, upon
notice to Lessee, to procure and maintain the contract for the heating, air
conditioning and ventilating systems, and if Lessor so elects, Lessee shall
reimburse Lessor, upon demand, for the cost thereof.
(c) If Lessee fails to perform Lessee's obligations under this
Paragraph 7.1, Lessor may enter upon the Premises after ten (10) days' prior
written notice to Lessee (except in the case of an emergency, in which case
no notice shall be required), perform such obligations on Lessee's behalf,
and put the Premises in good order, condition and repair, in accordance with
Paragraph 13.2 below.
7.2 LESSOR'S OBLIGATIONS. Subject to the provisions of Paragraphs
2.2 (Condition), 2.3 (Compliance with Covenants, Restrictions and Building
Code), 4.2 (Common Area Operating Expenses), 6 (Use), 7.1 (Lessee's
Obligations), 9 (Damage or Destruction) and 14 (Condemnation), Lessor,
subject to reimbursement pursuant to Paragraph 4.2, shall keep in good order,
condition and repair the foundations, exterior walls, structural condition
of interior bearing walls, exterior roof, fire sprinkler and/or standpipe and
hose (if located in the Common Areas) or other automatic fire extinguishing
system including fire alarm and/or smoke
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detection systems and equipment, fire hydrants, parking lots, walkways,
parkways, driveways, landscaping, fences, signs and utility systems serving
the Common Areas and all parts thereof, as well as providing the services for
which there is a Common Area Operating Expense pursuant to Paragraph 4.2.
Lessor shall not be obligated to paint the exterior or interior surfaces of
exterior walls nor shall Lessor be obligated to maintain, repair or replace
windows, doors or plate glass of the Premises. Lessee expressly waives the
benefit of any statute now or hereafter in effect which would otherwise
afford Lessee the right to make repairs at Lessor's expense or to terminate
this Lease because of Lessor's failure to keep the Building, Industrial
Center or Common Areas in good order, condition and repair.
7.3 UTILITY INSTALLATIONS, TRADE FIXTURES, ALTERATIONS.
(a) DEFINITIONS; CONSENT REQUIRED. The term "UTILITY
INSTALLATIONS" is used in this Lease to refer to all air lines, power panels,
electrical distribution, security, fire protection systems, communications
systems, lighting fixtures, heating, ventilating and air conditioning
equipment, plumbing, and fencing in, on or about the Premises. The term
"TRADE FIXTURES" shall mean Lessee's machinery and equipment which can be
removed without doing material damage to the Premises. The term "ALTERATIONS"
shall mean any modification of the improvements on the Premises which are
provided by Lessor under the terms of this Lease, other than Utility
Installations or Trade Fixtures. "LESSEE-OWNED ALTERATIONS AND/OR UTILITY
INSTALLATIONS" are defined as Alterations and/or Utility Installations made
by Lessee that are not yet owned by Lessor pursuant to Paragraph 7.4(e).
Lessee shall not make nor cause to be made any Alterations or Utility
Installations in, on, under or about the Premises without Lessor's prior
written consent. Lessee may, however, make non-structural Utility
Installations to the interior of the Premises (excluding the roof) without
Lessor's consent but upon notice to Lessor, so long as they are not visible
from the outside of the Premises, do not involve puncturing, relocating or
removing the roof or any existing walls, or changing or interfering with the
fire sprinkler or fire detection systems and the cumulative cost thereof
during the term of this Lease as extended does not exceed $7,000.00. *See
Addendum #2
(b) CONSENT. Any Alterations or Utility Installations that
Lessee shall desire to make and which require the consent of the Lessor shall
be presented to Lessor in written form with *detailed plans. All consents
given by Lessor, whether by virtue of Paragraph 7.3(a) or by subsequent
specific consent, shall be deemed conditioned upon: (i) Lessee's acquiring
all applicable permits required by governmental authorities; (ii) the
furnishing of copies of such permits together with a copy of the plans and
specifications for the Alteration or Utility Installation to Lessor prior to
commencement of the work thereon; and (iii) the compliance by Lessee with all
conditions of said permits in a prompt and expeditious manner. Any
Alterations or Utility Installations by Lessee during the term of this Lease
shall be done in a good and workmanlike manner, with good and sufficient
materials, and be in compliance with all Applicable Requirements. Lessee
shall promptly upon completion thereof furnish Lessor with as-built plans and
specifications therefor. Lessor may, (but without obligation to do so)
condition its consent to any requested Alteration or Utility Installation
that costs *$2,500.00 or more upon Lessee's providing Lessor with a lien and
completion bond in an amount equal to one and one-half times the estimated
cost of such Alteration or Utility Installation. *See Addendum #2 *See
Addendum #2
(c) LIEN PROTECTION. Lessee shall pay when due all claims for
labor or materials furnished or alleged to have been furnished to or for
Lessee at or for use on the Premises, which claims are or may be secured by
any mechanic's or materialmen's lien against the Premises or any interest
therein. Lessee shall give Lessor not less than ten (10) days' notice prior
to the commencement of any work in, on, or about the Premises, and Lessor
shall have the right to post notices of non-responsibility in or on the
Premises as provided by law. If Lessee shall, in good faith, contest the
validity of any such lien, claim or demand, then Lessee shall, at its sole
expense, defend and protect itself, Lessor and the Premises against the same
and shall pay and satisfy any such adverse judgment that may be rendered
thereon before the enforcement thereof against the Lessor or the Premises. If
Lessor shall require, Lessee shall furnish to Lessor a surety bond
satisfactory to Lessor in an amount equal to one and one-half times the
amount of such contested lien claim or demand, indemnifying Lessor against
liability for the same, as required by law for the holding of the Premises
free from the effect of such lien or claim. In addition, Lessor may require
Lessee to pay Lessor's attorneys' fees and costs in participating in such
action if Lessor shall decide it is to its best interest to do so.
7.4 OWNERSHIP, REMOVAL, SURRENDER, AND RESTORATION.
(a) OWNERSHIP. Subject to Lessor's right to require their
removal and to cause Lessee to become the owner thereof as hereinafter
provided in this Paragraph 7.4, all Alterations and Utility Installations
made to the Premises by Lessee shall be the property of and owned by Lessee,
but considered a part of the Premises. Lessor may, at any time and at its
option, elect in writing to Lessee to be the owner of all or any specified
part of the Lessee-Owned Alterations and Utility Installations. Unless
otherwise instructed per Subparagraph 7.4(b) hereof, all Lessee-Owned
Alterations and Utility Installations shall, at the expiration or earlier
termination of this Lease, become the property of Lessor and remain upon the
Premises and be surrendered with the Premises by Lessee.
(b) REMOVAL. Unless otherwise agreed in writing, Lessor may
require that any or all Lessee-Owned Alterations or Utility Installations be
removed by the expiration or earlier termination of this Lease,
notwithstanding that their installation may have been consented to by Lessor.
Lessor may require the removal at any time of all or any part of any
Alterations or Utility Installations made without the required consent of
Lessor.
(c) SURRENDER/RESTORATION. Lessee shall surrender the Premises
by the end of the last day of the Lease term or any earlier termination date,
clean and free of debris and in good operating order, condition and state of
repair, ordinary wear and tear *excepted. Ordinary wear and tear shall not
include any damage or deterioration that would have been prevented by good
maintenance practice or by Lessee performing all of its obligations under
this Lease. Except as otherwise agreed or specified herein, the Premises, as
surrendered, shall include the Alterations and Utility Installations. The
obligation of Lessee shall include the repair for any damage occasioned by the
installation, maintenance or removal of Lessee's Trade Fixtures, furnishings,
equipment, and Lessee-Owned Alterations and Utility Installations, as well as
the removal of any storage tank installed by or for Lessee, and the removal
replacement, or remediation of any soil, material or ground water
contaminated by Lessee, all as may then be required by Applicable
Requirements and/or good practice. Lessee's Trade Fixtures shall remain the
property of Lessee and shall be removed by Lessee subject to its obligation
to repair and restore the Premises per this Lease. *See Addendum #2
8. INSURANCE; INDEMNITY.
8.1 PAYMENT OF PREMIUMS. The cost of the premiums for the insurance
policies maintained by Lessor under this Paragraph 8 shall be a Common Area
Operating Expense pursuant to Paragraph 4.2 hereof. Premiums for policy
periods commencing prior to, or extending beyond, the term of this Lease
shall prorated to coincide with the corresponding Commencement Date or
Expiration Date.
8.2 LIABILITY INSURANCE.
(a) CARRIED BY LESSEE. Lessee shall obtain and keep in force
during the term of this Lease a Commercial General Liability policy of
insurance protecting Lessee, Lessor and any Lender(s) whose names have been
provided to Lessee in writing (as additional insureds) against claims for
bodily injury, personal injury and property damage based upon, involving or
arising out of the ownership, use, occupancy or maintenance of the Premises
and all areas appurtenant thereto. Such insurance shall be on an occurrence
basis providing single limit coverage in an amount not less than $1,000,000
per occurrence with an "Additional Insured-Managers or Lessors of Premises"
endorsement and contain the "Amendment of the Pollution Exclusion"
endorsement for damage caused by heat, smoke or fumes from a hostile fire.
The policy shall not contain any intra-insured exclusions as between insured
persons or organizations, but shall include coverage for liability assumed
under this Lease as an "INSURED CONTRACT" for the performance of Lessee's
indemnity obligations under this Lease. The limits of said insurance required
by this Lease or as carried by Lessee shall not, however, limit the liability
of Lessee nor relieve Lessee of any obligation hereunder. All insurance to be
carried by Lessee shall be primary to and not contributory with any similar
insurance carried by Lessor, whose insurance shall be considered excess
insurance only.
(b) CARRIED BY LESSOR. Lessor shall also maintain liability
insurance described in Paragraph 8.2(a) above, in addition to and not in lieu
of, the insurance required to be maintained by Lessee. Lessee shall not be
named as an additional insured therein.
8.3 PROPERTY INSURANCE-BUILDING, IMPROVEMENTS AND RENTAL VALUE.
(a) BUILDING AND IMPROVEMENTS. Lessor shall obtain and keep
in force during the term of this Lease a policy or policies in the name of
Lessor, with loss payable to Lessor and to any Lender(s), insuring against
loss or damage to the Premises. Such insurance shall be for full replacement
cost, as the same shall exist from time to time, or the amount required by
any Lender(s), but in no event more than the commercially reasonable and
available insurable value thereof if, by reason of the unique nature or age
of the improvements involved, such latter amount is less than full replacement
cost. Lessee-Owned Alterations and Utility Installations, Trade Fixtures and
Lessee's personal property shall be insured by Lessee pursuant to Paragraph
8.4. If the coverage is available and commercially appropriate, Lessor's
policy or policies shall insure against all risks of direct physical loss or
damage (except the perils of flood and/or earthquake unless required by a
Lender), including coverage for any additional costs resulting from debris
removal and reasonable amounts of coverage for the enforcement of any
ordinance or law regulating the reconstruction or replacement of any
undamaged sections of the Building required to be demolished or removed by
reason of the enforcement of any building, zoning, safety or land use laws as
the result of a covered loss, but not including plate glass insurance. Said
policy or policies shall also contain an agreed valuation provision in lieu
of any co-insurance clause, waiver of subrogation, and inflation guard
protection causing an increase in the annual property insurance coverage
amount by a factor of not less than the adjusted U.S. Department of Labor
Consumer Price Index for All Urban Consumers for the city nearest to where
the Premises are located.
(b) RENTAL VALUE. Lessor shall also obtain and keep in force
during the term of this Lease a policy or policies in the name of Lessor,
with loss payable to Lessor and any Lender(s), insuring the loss of the full
rental and other charges payable by all lessees of the Building to Lessor for
one year (including all Real Property Taxes, Insurance costs, all Common Area
Operating Expenses and any scheduled rental increases). Said insurance may
provide that in the event the Lease is terminated by reason of an insured loss,
the period of indemnity for such coverage shall be extended beyond the date
of the completion of repairs or replacement of the Premises, to provide for
one full year's loss of rental revenues from the date of any such loss. Said
insurance shall contain an agreed valuation provision in lieu of any
co-insurance clause, and the amount of coverage shall be adjusted annually to
reflect the projected rental income, Real Property Taxes, Insurance premium
costs and other expenses, if any, otherwise payable, for the next 12-month
period. Common Area Operating Expenses shall include any deductible amount in
the event of such loss.
(c) ADJACENT PREMISES. Lessee shall pay for any increase in
the premiums for the property insurance of the Building and for the Common
Areas or other buildings in the Industrial Center if said increase is caused
by Lessee's acts, omissions, use or occupancy of the Premises.
(d) LESSEE'S IMPROVEMENTS. Since Lessor is the Insuring
Party, Lessor shall not be required to insure Lessee-Owned Alterations and
Utility Installations unless the item in question has become the property of
Lessor under the terms of this Lease.
8.4 LESSEE'S PROPERTY INSURANCE. Subject to the requirements of
Paragraph 8.5, Lessee at its cost shall either by separate policy or, at
Lessor's option, by endorsement to a policy already carried, maintain
insurance coverage on all of Lessee's personal property, Trade Fixtures and
Lessee-Owned Alterations and Utility Installations in, on, or about the
Premises similarly in coverage to that carried by Lessor as the Insuring
Party under Paragraph 8.3(a). Such insurance shall be full replacement cost
coverage with a deductible not to exceed $1,000 per occurrence. The proceeds
from any such insurance shall be used by Lessee for the replacement of
personal property and the restoration of Trade Fixtures and Lessee-Owned
Alterations and Utility Installations. Upon request from Lessor, Lessee shall
provide Lessor with written evidence that such insurance is in force.
8.5 INSURANCE POLICIES. Insurance required hereunder shall be in
companies duly licensed to transact business in the state where the Premises
are located, and maintaining during the policy term a "General Policyholders
Rating" of at least B+, V, or such other rating as may be required by a
Lender, as set forth in the most current issue of "Best's Insurance Guide."
Lessee shall not do or permit to be done anything which shall invalidate the
insurance policies referred to in
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this Paragraph 8. Lessee shall cause to be delivered to Lessor, within seven
(7) days after the earlier of the Early Possession Date or the Commencement
Date, certified copies of, or certificates evidencing the existence and
amounts of, the Insurance required under Paragraph 8.2(a) and 8.4. No such
policy shall be cancelable or subject to modification except after thirty
(30) days' prior written notice to Lessor. Lessee shall at least thirty (30)
days prior to the expiration of such policies, furnish Lessor with evidence
of renewals or "Insurance binders" evidencing renewal thereof, or Lessor may
order such Insurance and charge the cost thereof to Lessee, which amount
shall be payable by Lessee to Lessor upon demand.
8.6 WAIVER OF SUBROGATION. Without affecting any other rights or
remedies, Lessee and Lessor each hereby release and relieve the other, and
waive their entire right to recover damages (whether in contract or in tort)
against the other, for loss or damage to their property arising out of or
incident to the perils required to be insured against under Paragraph 8. The
effect of such releases and waivers of the right to recover damages shall not
be limited by the amount of insurance carried or required, or by any
deductibles applicable thereto. Lessor and Lessee agree to have their
respective insurance companies issuing property damage insurance waive any
right to subrogation that such companies may have against Lessor or Lessee, as
the case may be, so long as the insurance is not invalidated thereby.
8.7 INDEMNITY. Except for Lessor's negligence and/or breach of express
warranties, Lessee shall indemnify, protect, defend and hold harmless the
Premises, Lessor and its agents, Lessor's master or ground lessor, partners
and Lenders, from and against any and all claims, loss of rents and/or
damages, costs, liens, judgments, penalties, loss of permits, attorneys' and
consultants' fees, expenses and/or liabilities arising out of, involving, or
in connection with, the occupancy of the Premises by Lessee, the conduct of
Lessor's business, any act, omission or neglect of Lessee, its agents,
contractors, employees or invitees and out of any Default or Breach by Lessee
in the performance in the timely manner of any obligation on Lessee's part to
be performed under this Lease. The foregoing shall include, but not be
limited to, the defense or pursuit of any claim or any action or proceeding
involved therein, and whether or not (in the case of claims made against
Lessor) litigated and/or reduced to judgment. In case any action or
proceeding be brought against Lessor by reason of any of the foregoing
matters. Lessee upon notice from Lessor shall defend the same at Lessee's
expense by counsel reasonably satisfactory to Lessor and Lessor shall
cooperate with Lessee in such defense. Lessor need not have first paid any
such claim in order to be so indemnified.
8.8 EXEMPTION OF LESSOR FROM LIABILITY. Lessor shall not be liable for
injury or damage to the person or goods, wares, merchandise or other property
of Lessee, Lessee's employees, contractors, invitees, customers, or any other
person in or about the Premises, whether such damage or injury is caused by
or results from fire, steam, electricity, gas, water or rain, or from the
breakage, leakage, obstruction or other defects of pipes, fire sprinklers,
wires, appliances, plumbing, air conditioning or lighting fixtures, or from
any other cause, whether said injury or damage results from conditions
arising upon the Premises or upon other portions of the Building of which the
Premises are a part, from other sources or places, and regardless of whether
the cause of such damage or injury or the means of repairing the same is
accessible or not, Lessor shall not be liable for any damages arising from
any act or neglect of any other lessee of Lessor nor from the failure by
Lessor to enforce the provisions of any other lease in the Industrial Center.
Notwithstanding Lessor's negligence or breach of this Lease, Lessor shall
under no circumstances be liable for injury to Lessee's business or for any
loss of income or profit therefrom.
9. DAMAGE OR DESTRUCTION
9.1 DEFINITIONS.
(a) "PREMISES PARTIAL DAMAGE" shall mean damage or destruction
to the Premises, other than Lessee-Owned Alterations and Utility
Installations, the repair cost of which damage or destruction is less than
fifty percent (50%) of the then Replacement Cost (as defined in Paragraph
9.1(d)) of the Premises (excluding Lessee-Owned Alterations and Utility
Installations and Trade Fixtures) immediately prior to such damage or
destruction.
(b) "PREMISES TOTAL DESTRUCTION" shall mean damage or
destruction to the Premises, other than Lessee-Owned Alterations and Utility
Installations, the repair cost of which damage or destruction is fifty
percent (50%) or more of the then Replacement Costs of the Premises
(excluding Lessee-Owned Alterations and Utility Installations and Trade
Fixtures) immediately prior to such damage or destruction. In
addition, damage or destruction to the Building other than Lessee-Owned
Alterations and Utility Installations and Trade Fixtures of any lessees of
the Building, the cost at which damage or destruction is fifty percent (50%)
or more of the then Replacement Cost (excluding Lessee-Owned Alterations and
Utility Installations and Trade Fixtures of any lessees of the Building) or
the Building shall, at the option of Lessor, be deemed to be Premises Total
Destruction.
(c) "INSURED LOSS" shall mean damage or destruction to the
Premises, other than Lessee-Owned Alterations and Utility Installations and
Trade Fixtures, which was caused by an event required to be covered by the
insurance described in Paragraph 8.3(a) irrespective of any deductible
amounts or coverage limits involved.
(d) "REPLACEMENT COST" shall mean the cost to repair or rebuild
the improvements owned by Lessor at the time of the occurrence to their
condition existing immediately prior thereto, including demolition, debris
removal and upgrading required by the operation of applicable building codes,
ordinances or laws, and without deduction for depreciation.
(e) "HAZARDOUS SUBSTANCE CONDITION" shall mean the occurrence
or discovery of a condition involving the presence of, or a contamination by,
a Hazardous Substance as defined in Paragraph 6.2(a), in, on, or under the
Premises.
9.2 PREMISES PARTIAL DAMAGE - INSURED LOSS. If Premises Partial Damage
that is an Insured Loss occurs, then Lessor shall, at Lessor's expense,
repair such damage (but not Lessee's Trade Fixtures or Lessee-Owned
Alterations and Utility Installations) as soon as reasonably possible and
this Lease shall continue in full force and effect. In the event, however,
that there is a shortage of insurance proceeds and such shortage is due to
the fact that, by reason of the unique nature of the Improvements in the
Premises, full replacement cost insurance coverage was not commercially
reasonable and available, Lessor shall have no obligation to pay for the
shortage in insurance proceeds or to fully restore the unique aspects of the
Premises unless Lessee provides Lessor with the funds to cover same, or
adequate assurance thereof, within ten (10) days following receipt of written
notice of such shortage and request therefor. If Lessor receives said funds
or adequate assurance thereof within said ten (10) day period, Lessor shall
complete them as soon as reasonably possible and this Lease shall remain in
full force and effect. If Lessor does not receive such funds or assurance
within said period, Lessor may nevertheless elect by written notice to Lessee
within ten (10) days thereafter to make such restoration and repair as is
commercially reasonable with Lessor paying any shortage in proceeds in which
case this Lease shall remain in full force and effect. If Lessor does not
receive such funds or assurance within such ten (10) day period, and if
Lessor does not so elect to restore and repair, then this Lease shall
terminate sixty (60) days following the occurrence of the damage or
destruction. Unless otherwise agreed, Lessee shall in no event have any right
to reimbursement from Lessor for any funds contributed by Lessee to repair
any such damage or destruction. Premises Partial Damage due to flood or
earthquake shall be subject to Paragraph 9.3 rather than Paragraph 9.2,
notwithstanding that there may be some insurance coverage, but the net
proceeds of any such insurance shall be made available for the repairs if
made by either Party.
9.3 PARTIAL DAMAGE - UNINSURED LOSS. If Premises Partial Damage that
is not an Insured Loss occurs, unless caused by a negligent or willful act of
Lessee (in which event Lessee shall make the repairs at Lessee's expense and
this Lease shall continue in full force and effect), Lessor may at Lessor's
option, either (i) repair such damage as soon as reasonably possible at
Lessor's expense, in which event this Lease shall continue in full force and
effect, or (ii) give written notice to Lessee with thirty (30) days after
receipt by Lessor of knowledge of the occurrence of such damage of Lessor's
desire to terminate this Lease as of the date sixty (60) days following the
date of such notice. In the event Lessor elects to give such notice of
Lessor's intention to terminate this Lease, Lessee shall have the right
within ten (10) days after the receipt of such notice to give written notice
to Lessor of Lessee's commitment to pay for the repair of such damage totally
at Lessee's expense and without reimbursement from Lessor, Lessee shall
provide Lessor with the required funds or satisfactory assurance thereof
within thirty (30) days following such commitment from Lessee. In such event
this Lease shall continue in full force and effect, and Lessor shall proceed
to make such repairs as soon as reasonably possible after the required funds
are available. If Lessee does not give such notice and provide the funds or
assurance thereof within the times specified above, this Lease shall
terminate as of the date specified in Lessor's notice of termination.
9.4 TOTAL DESTRUCTION. Notwithstanding any other provision hereof, if
Premises Total Destruction occurs (including any destruction required by any
authorized public authority), this Lease shall terminate sixty (60) days
following the date of such Premises Total Destruction, whether or not the
damage or destruction was caused by Lessee, Lessor shall have the right to
recover Lessor's damages from Lessee except as released and waived in
Paragraph 9.7.
9.5 DAMAGE NEAR END OF TERM. If at any time during the last six (6)
months of the term of this Lease there is damage for which the cost to repair
exceeds one month's Base Rent, whether or not an Insured Loss, Lessor may at
Lessor's option, terminate this Lease effective sixty (60) days following the
date of occurrence of such damage by giving written notice to Lessee of
Lessor's election to do so within thirty (30) days after the date of
occurrence of such damage. Provided, however, if Lessee at that time has an
exercisable option to extend this Lease or to purchase the premises, then
Lessee may preserve this Lease by (a) exercising such option, and (b) providing
Lessor with any shortage in insurance proceeds (or adequate assurance
thereof) needed to make the repairs on or before the earlier of (i) the date
which is ten (10) days after Lessee's receipt of Lessor's written notice
purporting to terminate this lease, or (ii) the day prior to the date upon
which such option expires. If Lessee duly exercises such option during such
period and provides Lessor with funds (or adequate assurance thereof) to
cover any shortage in insurance proceeds, Lessor shall, at Lessor's expense
repair such damage as soon as reasonably possible and this Lease shall
continue in full force and effect. If Lessee fails to exercise such option
and provide such funds or assurance during such period, then this Lease shall
terminate as of the date set forth in the first sentence of this Paragraph
9.5.
9.6 ABATEMENT OF RENT; LESSEE'S REMEDIES
(a) In the event of (i) Premises Partial Damage of, (ii)
Hazardous Substance Condition for which Lessee is not legally responsible,
the Base Rent, Common Area Operating Expenses and other charges, if any,
payable by Lessee hereunder for the period during which such damage or
condition, its repair, termination or restoration continues, shall be abated
in proportion to the degree to which Lessee's use of the Premises is
impaired, but not in excess of proceeds from insurance required to be carried
under Paragraph 8.3(b). Except for abatement of Base Rent, Common Area
Operating Expenses and other charges, if any, as aforesaid, all other
obligations of Lessee hereunder shall be performed by Lessee, and Lessee
shall have no claim against Lessor for any damage suffered by reason of any
such damage, destruction, repair, remediation or restoration. *See Addendum
#2.
(b) If Lessor shall be obligated to repair or restore the
Premises under the provisions of this Paragraph 9 and shall not commence, in
a substantial and meaningful way, the repair or restoration of the Premises
within ninety (90) days after such obligation shall accrue. Lessee may, at
any time prior to the commencement of such repair or restoration, give
written notice to lessor and to any Lenders of which Lessee has actual notice
of Lessee's election to terminate this Lease on a date not less than sixty
(60) days following the giving of such notice. If Lessee gives such notice to
Lessor and such Lenders and such repair or restoration is not commenced
within thirty (30) days after receipt of such notice, this Lease shall
terminate as of the date specified in said notice. If Lessor or a Lender
commences the repair or restoration of the Premises within thirty (30) days
after the receipt of such notice, this Lease shall continue in full force and
effect. "Commence" as used in this Paragraph 9.6 shall mean either the
unconditional authorization of the preparation of the required plans, or the
beginning of the actual work on the Premises, whichever occurs first. *See
Addendum #2.
9.7 HAZARDOUS SUBSTANCE CONDITIONS. If a Hazardous Substance Condition
occurs, unless Lessee is legally responsible therefor (in which case Lessee
shall make the investigation and remediation thereof required by Applicable
Requirements and this Lease shall continue in full force and effect, but
subject
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to Lessor's rights under Paragraph 6.2(c) and Paragraph 13), Lessor may at
Lessor's option either (i) investigate and remediate such Hazardous Substance
Condition, if required, as soon as reasonably possible at Lessor's expense
in which event this Lease shall continue in full force and effect, or (ii) if
the estimated cost to investigate and remediate such condition exceeds twelve
(12) times the then monthly Base Rent or $100,000 whichever is greater, give
written notice to Lessee within (30) days after receipt by Lessor of
knowledge of the occurrence of such Hazardous Substance Condition of Lessor's
desire to terminate this Lease as of the date sixty (60) days following the
date of such notice. In the event Lessor elects to give such notice of
Lessor's intention to terminate this Lease, Lessee shall have the right
within ten (10) days after the receipt of such notice to give written notice
to Lessor of Lessee's commitment to pay for the excess costs of (a)
Investigation and remediation of such Hazardous Substance Condition to the
extent required by Applicable Requirements, over (b) an amount equal to
twelve (12) times the then monthly Base Rent or $100,000, whichever is
greater. Lessee shall provide Lessor with the funds required of Lessee or
satisfactory assurance thereof within thirty (30) days following said
commitment by Lessee. In such event this Lease shall continue in full force
and effect, and Lessor shall proceed to make such investigation and
remediation as soon as reasonably possible after the required funds are
available. If Lessee does not give such notice and provide the required funds
or assurance thereof within the time period specified above, this Lease shall
terminate as of the date specified in Lessor's notice of termination.
9.8 TERMINATION ADVANCE PAYMENTS. Upon termination of this Lease
pursuant to this Paragraph 9, Lessor shall return to Lessee any advance
payment made by Lessee to Lessor and so much of Lessee's Security Deposit as
has not been, or is not then required to be, used by Lessor under the terms
of this Lease.
9.9 WAIVER OF STATUTES. Lessor and Lessee agree that the terms of this
Lease shall govern the effect of any damage to or destruction of the
Premises and the Building with respect to the termination of this Lease and
hereby waive the provisions of any present or future statute to the extent it
is inconsistent herewith.
10. REAL PROPERTY TAXES.
10.1 PAYMENT IN TAXES. Lessor shall pay the Real Property Taxes, as
defined in Paragraph 10.2, applicable to the Industrial Center, and except as
otherwise provided in Paragraph 10.3, any such amounts shall be included in
the calculation of Common Area Operating Expenses in accordance with the
provisions of Paragraph 4.2.
10.2 REAL PROPERTY TAX DEFINITION. As used herein, the term "REAL
PROPERTY TAXES" shall include any form of real estate tax or assessment,
general, special, ordinary or extraordinary, and any license fee, commercial
rental tax, improvement bond or bonds, levy or tax (other than inheritance,
personal income or estate taxes) imposed upon the Industrial Center by any
authority having the direct or indirect power to tax, including any city,
state or federal government, or any school, agricultural, sanitary, fire,
street, drainage, or other improvement district thereof, levied against any
legal or equitable interest of Lessor in the Industrial Center or any portion
thereof, Lessor's right to rent or other Income therefrom, and/or Lessor's
business of leasing the Premises. The term "REAL PROPERTY TAXES" shall also
include any tax, fee, levy, assessment or charge, or any increase therein,
imposed by reason of events occurring or changes in Applicable Law taking
effect, during the term of this Lease, including but not limited to a change
in the ownership of the Industrial Center or in the Improvements thereon, the
execution of this Lease, or any modification, amendment or transfer limited
to a change in the ownership of the Industrial Center or in the Improvements
thereon, the execution of this Lease, or any modification, amendment or
transfer thereof, and whether or not contemplated by the Parties. In
calculating Real Property Taxes for any calendar year, the Real Property
Taxes for any real estate tax year shall be included in the calculation of
Real Property Taxes for such calendar year based upon the number of days
which such calendar year and tax year have in common.
10.3 ADDITIONAL IMPROVEMENTS. Common Area Operating Expenses shall not
include Real Property Taxes specified in the tax assessor's records and work
sheets as being caused by additional improvements placed upon the Industrial
Center by other lessees or by Lessor for the exclusive enjoyment of such
other lessees. Notwithstanding Paragraph 10.1 hereof, Lessee shall, however,
pay to Lessor at the time Common Area Operating Expenses are payable under
Paragraph 4.2, the entirety of any increase in Real Property Taxes if assessed
solely by reason of Alterations, Trade Fixtures or Utility Installation place
upon the Premises by Lessee or at Lessee's request.
10.4 JOINT ASSESSMENT. If the Building is not separately assessed,
Real Property Taxes allocated to the Building shall be an equitable
proportion of the Real Property Taxes for all of the land and improvements
included within the tax parcel assessed, such proportion to be determined by
Lessor from the respective valuations assigned in the assessor's work sheets
or such other information as may be reasonably available. Lessor's reasonable
determination thereof, in good faith, shall be conclusive.
10.5 LESSEE'S PROPERTY TAXES. Lessee shall pay prior to delinquency
all taxes assessed against and levied upon Lessee-Owned Alterations and
Utility Installations, Trade Fixtures, furnishings, equipment and all
personal property of Lessee contained in the Premises or stored within the
Industrial Center. When possible, Lessee shall cause its Lessee-Owned
Alterations and Utility Installations, Trade Fixtures, furnishings, equipment
and all other personal property to be assessed and billed separately from the
real property of Lessor. If any of Lessee's said property shall be assessed
with Lessor's real property, Lessee shall pay Lessor the taxes attributable
to Lessee's property within ten (10) days after receipt of a written
statement setting forth the taxes applicable to Lessee's property.
11. UTILITIES. Lessee shall pay directly for all utilities and services
supplied to the Premises, including but not limited to electricity,
telephone, security, gas and cleaning of the Premises, together with any
taxes thereon. If any such utilities or services are not separately metered
to the Premises or separately billed to the Premises, Lessee shall pay to
Lessor a reasonable proportion to be determined by Lessor of all such charges
jointly metered or billed with other premises in the Building, in the manner
and within the time periods set forth in Paragraph 4.2(d).
12. ASSIGNMENT AND SUBLETTING.
12.1 LESSOR'S CONSENT REQUIRED. *See Addendum #2
(a) Lessee shall not voluntarily or by operation of law assign,
transfer, mortgage or otherwise transfer or encumber (collectively "assign")
or sublet all or any part of Lessee's interest in this Lease or in the
Premises without Lessor's prior written consent given under and subject to
the terms of Paragraph 36.
(b) A change in the control of Lessee shall constitute an
assignment requiring Lessor's consent. The transfer, on a cumulative basis,
of twenty-five percent (25%) or more of the voting control of Lessee shall
constitute a change in control for this purpose. See Addendum #2
(c) The involvement of Lessee or its assets in any transaction,
or series of transactions (by way of merger, sale, acquisition, financing,
refinancing, transfer, leveraged buy-out or otherwise), whether or not a
format assignment or hypothecation of this Lease or Lessee's assets occurs,
which results or will result in a reduction of the Net Worth of Lessee, as
hereinafter defined, by an amount equal to or greater than twenty-five
percent (25%) of such Net Worth of Lessee as it was represented to Lessor at
the time of full execution and delivery of this Lease or at the time of the
most recent assignment to which Lessor has consented, or as it exists
immediately prior to said transaction or transactions constituting such
reduction, at whichever time said Net Worth of Lessee was or is greater,
shall be considered an assignment of this Lease by Lessee to which Lessor may
reasonably withhold its consent. "Net Worth of Lessee" for purposes of this
Lease shall be the net worth of Lessee (excluding any Guarantors) established
under generally accepted accounting principles consistently applied.
(d) An assignment or subletting of Lessee's interest in this
Lease without Lessor's specific prior written consent shall, at Lessor's
option, be a Default curable after notice per Paragraph 13.1, or a
non-curable Breach without the necessity of any notice and grace period. If
Lessor elects to teach such unconsented to assignment or subletting as a
non-curable Breach, Lessor shall have the right to either: (i) terminate this
Lease, or (*ii) upon thirty (30), days' written notice ("LESSOR'S NOTICE"),
increase the monthly Base Rent for the Premises to the greater of the then
fair market rental value of the Premises, as reasonably determined by Lessor,
or one hundred ten percent (110%) of the Base Rent then in effect. Pending
determination of the new fair market rental value, if disputed by Lessee,
Lessee shall pay the amount set forth in Lessor's Notice, with any
overpayment credited against the next installment(s) of Base Rent coming due,
and any underpayment for the period retroactively to the effective date of
the adjustment being due and payable immediately upon the determination
thereof. Further, in the event of such Breach and rental adjustment, (i) the
purchase price of any option to purchase the Premises held by Lessee shall be
subject to similar adjustment to the then fair market value as reasonably
determined by Lessor (without the Lease being considered an encumbrance or
any deduction for depreciation or obsolescence, and considering the Premises
at its highest and best use and in good condition) or one hundred ten percent
(110%) of the price previously in effect, (ii) any index oriented rental or
price adjustment formulas contained in this Lease shall be adjusted to
require that the base index be determined with reference to the
index-applicable to the time of such adjustment, and (iii) any fixed rental
adjustments scheduled during the remainder of the Lease term shall be
increased in the same ratio as the new rental bears to the Base Rent in
effect immediately prior to the adjustment specified in Lessor's Notice.
(e) Lessee's remedy for any breach of this Paragraph 12.1 by
Lessor shall be limited to compensatory damages and/or injunctive relief.
12.2 TERMS AND CONDITIONS APPLICABLE TO ASSIGNMENT AND SUBLETTING.
(a) Regardless of Lessor's consent, any assignment or subletting
shall not (i) be effective without the express written assumption by such
assignee or sublessee of the obligations of Lessee under this Lease, (ii)
release Lessee of any obligations hereunder, nor (iii) alter the primary
liability of Lessee for the payment of Base Rent and other sums due Lessor
hereunder or for the performance of any other obligations to be performed by
Lessee under this Lease.
(b) Lessor may accept any rent or performance of Lessee's
obligations from any person other than Lessee pending approval or disapproval
of an assignment. Neither a delay in the approval or disapproval of such
assignment nor the acceptance of any rent for performance shall constitute a
waiver or estoppel of Lessor's right to exercise its remedies for the Default
or Breach by Lessee of any of the terms, covenants or conditions of this
Lease.
(c) The consent of Lessor to any assignment or subletting shall
constitute a consent to any subsequent assignment or subletting by Lessee or
to any subsequent or successive assignment of subletting by the assignee or
sublessee. However, Lessor may consent to subsequent sublettings and
assignments of the sublease or any amendments or modifications thereto
without notifying Lessee or anyone else liable under this Lease or the
sublease and without obtaining their consent, and such action shall not
relieve such persons from liability under this Lease or the sublease.
(d) In the event of any Default or Breach of Lessee's obligation
under this Lease, Lessor may proceed directly against Lessee, any Guarantors
or anyone else responsible for the performance of the Lessee's obligations
under this Lease, including any subleasee, without first exhausting Lessor's
remedies against any other person or entity responsible therefor to Lessor,
or any security held by Lessor. *See Addendum #2
(e) Each request for consent to an assignment or subletting shall
be in writing, by information relevant to Lessor's determination as to the
financial and operational responsibility and appropriateness of the proposed
assignee or sublessee, including but not limited to the intended use and/or
required modification of the Premises, if any, together with a non-refundable
deposit of $1,000 or ten percent (10%) of the monthly Base Rent applicable to
the portion of the Premises which is the subject of the proposed assignment
or sublease, whichever is greater, as reasonable consideration for Lessor's
considering and processing the request for consent. Lessee agrees to provide
Lessor with such other or additional information and/or documentation as may
be reasonably requested by Lessor.
(f) Any assignee of, or sublessee under, this Lease shall, by
reason of accepting such assignment or entering into such sublease, be
deemed, for the benefit of Lessor, to have assumed and agreed to conform and
comply with each and every form, covenant, condition and obligation herein to
be observed or performed by Lessee during the form of said assignment or
sublease, other than such obligations as are contrary to or inconsistent with
provisions of an assignment or sublease to which Lessor has specifically
consented in writing.
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12.3 ADDITIONAL TERMS AND CONDITIONS APPLICABLE TO SUBLETTING. The
following terms and conditions shall apply to any subletting by Lessee of all
or any part of the Premises and shall be deemed included in all subleases
under this Lease whether or not expressly incorporated herein;
(a) Lessee hereby assigns and transfers to Lessor all of Lessee's
interest in all rentals and income arising from any sublease of all or a
portion of the Premises heretofore or hereafter made by Lessee, and Lessor
may collect such rent and Income and apply same toward Lessee's obligations
under this Lease; provided, however, that until a Breach (as defined in
Paragraph 13.1 shall occur in the performance of Lessee's obligations under
this Lease, Lessee may, except as otherwise provided in this Lease, receive,
collect and enjoy the rents accruing under such sublease. Lessor shall not,
by reason of the foregoing provision or any other assignment of such sublease
to Lessor, nor by reason of the collection of the rents from a sublessee, be
deemed liable to the sublessee for any failure of Lessee to perform and
comply with any of Lessee's obligations to such sublessee under such
Sublease. Lessee hereby irrevocably authorizes and directs any such
sublessee, upon receipt of a written notice from Lessor stating that a Breach
exists in the performance of Lessee's obligations under this Lease, to pay to
Lessor the rents and other charges due and to become due under the sublease.
Sublessees shall rely upon any such statement and request from Lessor and
shall pay such rents and other charges to Lessor without any obligation or
right to inquire as to whether such Breach exists and notwithstanding any
notice from or claim from Lessee to the contrary, Lessee shall have no right
or claim against such sublessee, or, until the Breach has been cured, against
Lessor, for any such rents and other charges so paid by said sublessee to
Lessor.
(b) In the event of a Breach by Lessee in the performance of its
obligations under this Lease, Lessor, at its option and without any
obligation to so, may require any sublessee to attorn to Lessor, in which
event Lessor shall undertake the obligations of the sublessor under such
sublease from the time of the exercise of said option to the expiration of
such sublease; provided, however, Lessor shall not be liable for any prepaid
rents or security deposit paid by such sublessee to such sublessor or for any
other prior defaults or breaches of such sublessor under such sublease.
(c) Any matter or thing requiring the consent of the sublessor
under a sublease shall also require the consent of Lessor herein.
(d) No sublessee under a sublease approved by Lessor shall
further assign or sublet all or any part of the Premises without Lessor's
prior written consent.
(e) Lessor shall deliver a copy of any notice of Default or
Breach by Lessee to the sublessee, who shall have the right to cure the
Default of Lessee within the grace period, if any, specified in such notice.
The sublessee shall have a right of reimbursement and offset from and against
Lessee for any such Defaults cured by the sublessee.
13. DEFAULT; BREACH; REMEDIES.
*See Addendum #2
13.1 DEFAULT; BREACH. Lessor and Lessee agree that if an attorney is
consulted by Lessor in connection with a Lessee Default or Breach (as
hereinafter defined), $350.00 is a reasonable minimum sum per such occurrence
for legal services and costs in the preparation and service of a notice of
Default, and that Lessor may include the* cost of such services and costs in
said notice as rent due and payable to cure said default. A "DEFAULT" by
Lessee is defined as a failure by Lessee to observe, comply with or perform
any of the terms, covenants, conditions or rules applicable to Lessee under
this Lease. A "BREACH" by Lessee is defined as the occurrence of any one or
more of the following Defaults, and, where a grace period for cure after
notice is specified herein, the failure by Lessee to cure such Default prior
to the expiration of the applicable grace period, and shall entitle Lessor to
pursue the remedies set forth in Paragraphs 13.2 and/or 13.3:
(a) The vacating of the Premises without the intention to
reoccupy same, or the abandonment of the Premises.
(b) Except as expressly otherwise provided in this Lease, the
failure by Lessee to make any payment of Base Rent, Lessee's Share of Common
Area Operating Expenses, or any other monetary payment required to be made by
Lessee hereunder as and when due, the failure by Lessee to provide Lessor
with reasonable evidence of insurance or surety bond required under this
Lease, or the failure of Lessee to fulfill any obligation under this Lease
which endangers or threatens life or property, where such failure continues
for a period of three* (3) days following written notice thereof by or on
behalf of Lessor to Lessee.
*See Addendum #2
(c) Except as expressly otherwise provided in this Lease, the
failure by Lessee to provide Lessor with reasonable written evidence (in duly
executed original form, if applicable) of (i) compliance with Applicable
Requirements per Paragraph 6.3, (ii) the inspection, maintenance and service
contracts required under Paragraph 7.1(b), (iii) the rescission of an
unauthorized assignment or subletting per Paragraph 12.1, (iv) a Tenancy
Statement per Paragraphs 16 or 37, (v) the subordination or non-subordination
of this Lease per Paragraph 30, (vi) the guaranty of the performance of
Lessee's obligations under this Lease if required under Paragraphs 1.11 and
37, (vii) the execution of any document requested under Paragraph 42
(easements), or (viii) any other documentation or information which Lessor
may reasonably require of Lessee under the terms of this lease, where any
such failure continues for a period of ten* (10) days following written
notice by or on behalf of Lessor to Lessee. *See Addendum #2
(d) A Default by Lessee as to the terms, covenants, conditions or
provisions of this Lease, or of the rules adopted under Paragraph 40 hereof
that are to be observed, complied with or performed by Lessee, other than
those described in Subparagraphs 13.1(a), (b) or (c), above, where such
Default continues for a period of thirty (30) days after written notice
thereof by or on behalf of Lessor to Lessee; provided, however, that if the
nature of Lessee's Default is such that more than thirty (30) days are
reasonably required for its cure, then it shall not be deemed to be a
Breach of this Lease by Lessee if Lessee commences such cure within said
thirty (30) day period and thereafter diligently prosecutes such cure to
completion.
(e) The occurrence of any of the following events: (i) the making
by Lessee of any general arrangement or assignment for the benefit of
creditors; (ii) Lessee's becoming a "debtor" as defined in 11 U.S. Code
Section 101 or any successor statute thereto (unless, in the case of a
petition filed against Lessee, the same is dismissed within sixty (60) days);
(iii) the appointment of a trustee or receiver to take possession of
substantially all of Lessee's assets located at the Premises or of Lessee's
interest in this Lease, where possession is not restored to Lessee within
thirty (30) days; or (iv) the attachment, execution or other judicial seizure
of substantially all of Lessee's assets located at the Premises or of Lessee's
interest in this Lease, where such seizure is not discharged within thirty (30)
days; provided, however, in the event that any provision of this
Subparagraph 13.1(e) is contrary to any applicable law, such provision shall
be of no force or effect, and shall not affect the validity of the remaining
provisions.
(f) The discovery by Lessor that any financial statement of
Lessee or of any Guarantor, given to Lessor by Lessee or any Guarantor, was
materially false.
(g) If the performance of Lessee's obligations under this Lease
is guaranteed: (i) the death of a Guarantor, (ii) the termination of a
Guarantor's liability with respect to this Lease other than in accordance
with the terms of such guaranty, (iii) a Guarantor's becoming insolvent or
the subject of a bankruptcy filing, (iv) a Guarantor's refusal to honor the
guaranty, or (v) a Guarantor's breach of its guaranty obligation on an
anticipatory breach basis, and Lessee's failure, within sixty (60) days
following written notice by or on behalf of Lessor to Lessee of any such
event, to provided Lessor with written alternative assurances of security,
which, when coupled with the then existing resources of Lessee, equals or
exceeds the combined financial resources of Lessee and the Guarantors that
existed at the time of execution of this Lease.
13.2 REMEDIES. If Lessee fails to perform any affirmative duty or
obligation of Lessee under this Lease, within ten (10) days after written
notice to Lessee (or in case of an emergency, without notice), Lessor may at
its option (but without obligation to do so), perform such duty or obligation
on Lessee's behalf, including but not limited to the obtaining of reasonably
required bonds, insurance policies, or governmental licenses, permits or
approvals. The costs and expenses of any such performance by Lessor shall be
due and payable by Lessee to Lessor upon invoice therefor. If any check given
to Lessor by Lessee shall not be honored by the bank upon which it is drawn,
Lessor, at its own option, may require all future payments to be made under
this Lease by Lessee to be made only by cashier's check. In the event of a
Breach of this Lease by Lessee (as defined in Paragraph 13.1), with or
without further notice or demand, and without limiting Lessor in the exercise
of any right or remedy which Lessor may have by reason of such Breach,
Lessor may:
(a) Terminate Lessee's right to possession of the Premises by any
lawful means, in which case this Lease and the term hereof shall terminate
and Lessee shall immediately surrender possession of the Premises to Lessor.
In such event Lessor shall be entitled to recover from Lessee: (i) the worth
at the time of the award of the unpaid rent which had been earned at the time
of termination; (ii) the worth at the time of award of the amount by which
the unpaid rent which would have been earned after termination until the time
of award exceeds the amount of such rental loss that the Lessee proves could
have been reasonably avoided; (iii) the worth at the time of award of the
amount by which the unpaid rent for the balance of the term after the time of
award exceeds the amount of such rental loss that the Lessee proves could be
reasonably avoided; and (iv) any other amount necessary to compensate Lessor
for all the detriment proximately caused by the Lessee's failure to perform
its obligations under this Lease or which in the ordinary course of things
would be likely to result therefrom, including but not limited to the cost of
recovering possession of the Premises, expenses of reletting, including
necessary renovation and alteration of the Premises, reasonable attorneys'
fees, and that portion of any leasing commission paid by Lessor in connection
with this Lease applicable to the unexpired term of this Lease. The worth at
the time of award of the amount referred to in provision (iii) of the
immediately preceding sentence shall be computed by discounting such amount
at the discount rate of the Federal Reserve Bank of San Francisco or the
Federal Reserve Bank District in which the Premises are located at the time
of award plus one percent (1%). Efforts by Lessor to mitigate damages caused
by Lessee's Default or Breach of this Lease shall not waive Lessor's right to
recover damages under this Paragraph 13.2. If termination of this Lease is
obtained through the provisional remedy of unlawful detainer, Lessor shall
have the right to recover in such proceeding the unpaid rent and damages as
are recoverable therein, or Lessor may reserve the right to recover all or
any part thereof in a separate suit for such rent and/or damages. If a notice
and grace period required under Subparagraph 13.1(b), (c) or (d) was not
previously given, a notice to pay rent or quit, or to perform or quit, as the
case may be, given to Lessee under any statute authorizing the forfeiture of
leases for unlawful detainer shall also constitute the applicable notice for
grace period purposes required by Subparagraph 13.1(b), (c) or (d). In such
case, the applicable grace period under the unlawful detainer statue shall
run concurrently after the one such statutory notice, and the failure of
Lessee to cure the Default within the greater of the two (2) such grace
periods shall constitute both an unlawful detainer and a Breach of this Lease
entitling Lessor to the remedies provided for in this Lease and/or by said
statute.
(b) Continue the Lease and Lessee's right to possession in effect
(in California under California Civil Code Section 1951.4) after Lessee's
Breach and recover the rent as it becomes due, provided Lessee has the right
to sublet or assign, subject only to reasonable limitations. Lessor and
Lessee agree that the limitations on assignment and subletting in this Lease
are reasonable. Acts of maintenance or preservation, efforts to relet the
Premises, or the appointment of a receiver to protect the Lessor's interest
under this Lease, shall not constitute a termination of the Lessee's right to
possession.
(c) Pursue any other remedy now or hereafter available to Lessor
under the laws or judicial decisions of the state wherein the Premises are
located.
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**RENT IS LATE IF NOT PAID WITHIN 5 DAYS. ALL OTHER CHARGES ARE NET 10 DAYS.
(d) The expiration or termination of this Lease and/or the
termination of Lessee's right to possession shall not relieve Lessee from
liability under any indemnity provisions of this Lease as to matters occurring
or accruing during the term hereof or by reason of Lessee's occupancy of the
Premises.
13.3 INDUCEMENT RECAPTURE IN EVENT OF BREACH. Any agreement by Lessor
for free or abated rent or other charges applicable to the Premises, or for
the giving or paying by Lessor to or for Lessee of any cash or other bonus,
inducement or consideration for Lessee's entering into this Lease, all of
which concessions are hereinafter referred to as "INDUCEMENT PROVISIONS"
shall be deemed conditioned upon Lessee's full and faithful performance of
all of the terms, covenants and conditions of this Lease to be performed or
observed by Lessee during the term hereof as the same may be extended. Upon
the occurrence of a Breach (as defined in Paragraph 13.1) of this Lease by
Lessee, any such Inducement Provision shall automatically be deemed deleted
from this Lease and of no further force or effect, and any rent, other
charge, bonus, inducement or consideration theretofore abated, given or paid
by Lessor under such an Inducement Provision shall be immediately due and
payable by Lessee to Lessor, and recoverable by Lessor, as additional rent due
under this Lease, notwithstanding any subsequent cure of said Breach by
Lessee. The acceptance by Lessor of rent or the cure of the Breach which
initiated the operation of this Paragraph 13.3 shall not be deemed a waiver
by Lessor of the provisions of this Paragraph 13.3 unless specifically so
stated in writing by Lessor at the time of such acceptance.
** 13.4 LATE CHARGES. Lessee hereby acknowledges that late payment by
Lessee to Lessor of rent and other sums due hereunder will cause Lessor to
incur costs not contemplated by this Lease, the exact amount of which will be
extremely difficult to ascertain. Such costs include, but are not limited to,
processing and accounting charges, and late charges which may be imposed upon
Lessor by the terms of any ground lease, mortgage or deed of trust covering
the Premises. Accordingly, if any installment of rent or other sum due from
Lessee shall not be received by Lessor or Lessor's designee within ten (10)
days after such amount shall be due, then, without any requirement for notice
to Lessee, Lessee shall pay to Lessor a late charge equal to six percent (6%)
of such overdue amount. The parties hereby agree* that such late charge
represents a fair and reasonable estimate of the costs Lessor will incur by
reason of late payment by Lessee. Acceptance of such late charge by Lessor
shall in no event constitute a waiver of Lessee's Default or Breach with
respect to such overdue amount, nor prevent Lessor from exercising any of the
other rights and remedies granted hereunder. In the event that a late charge
is payable hereunder, whether or not collected, for three (3) consecutive
installments of Base Rent, then notwithstanding Paragraph 4.1 or any other
provision of this Lease to the contrary, Base Rent shall, at Lessor's
option, become due and payable quarterly in advance. *See Addendum #2
13.5 BREACH BY LESSOR. Lessor shall not be deemed in breach of this
Lease unless Lessor fails within a reasonable time to perform an obligation
required to be performed by Lessor. For purposes of this Paragraph 13.5, a
reasonable time shall in no event be less than thirty (30) days after receipt
by Lessor, and by any Lender(s) whose name and address shall have been
furnished to Lessee in writing for such purpose, of written notice specifying
wherein such obligation of Lessor has not been performed; provided, however,
that if the nature of Lessor's obligation is such that more than thirty (30)
days after such notice are reasonably required for its performance, then
Lessor shall not be in breach of this Lease if performance is commenced
within such thirty (30) day period and thereafter diligently pursued to
completion.
14. CONDEMNATION. If the Premises or any portion thereof are taken under the
power of eminent domain or sold under the threat of the exercise of said
power (all of which are herein called "condemnation"), this Lease shall
terminate as to the part so taken as of the date the condemnating authority
takes title or possession, whichever first occurs. If more than ten percent
(10%) of the floor area of the Premises, or more than twenty-five percent
(25%) of the portion of the Common Areas designated for Lessee's parking, is
taken by condemnation, Lessee may, at Lessee's option, to be exercised in
writing within ten (10) days after Lessor shall have given Lessee written
notice of such taking (or in the absence of such notice, within ten (10) days
after the condemning authority shall have taken possession) terminate this
Lease as of the date the condemning authority takes such possession. If
Lessee does not terminate this Lease in accordance with the foregoing, this
Lease shall remain in full force and effect as to the portion of the Premises
remaining, except that the Base Rent shall be reduced in the same proportion
as the rentable floor area of the Premises taken bears to the total rentable
floor area of the Premises. No reduction of Base Rent shall occur if the
condemnation does not apply to any portion of the Premises. Any award for
the taking of all or any part of the Premises under the power of eminent
domain or any payment made under threat of the exercise of such power shall
be the property of Lessor, whether such award shall be made as compensation
for diminuation of value of the leasehold or for the taking of the fee, or as
severance damages; provided, however, that Lessee shall be entitled to any
compensation, separately awarded to Lessee for Lessee's relocation expenses
and/or loss of Lessee's Trade Fixtures. In the event that this Lease is not
terminated by reason of such condemnation, Lessor shall to the extent of its
net severance damages received, over and above Lessee's Share of the legal
and other expenses incurred by Lessor in the condemnation matter, repair any
damage to the Premises caused by such condemnation authority. Lessee shall be
responsible for the payment of any amount in excess of such net severance
damages required to complete such repair.
15. BROKERS' FEES.
15.1 PROCURING CAUSE. The Broker(s) named in Paragraph 1.10 is/are the
procuring cause of this Lease.
15.2 ADDITIONAL TERMS. Unless Lessor and Broker(s) have otherwise agreed
in writing, Lessee agrees that: (a) if Lessee exercises any Option (as
defined in Paragraph 39.1) granted under this Lease or any Option
subsequently granted, or (b) if Lessee acquires any rights to the Premises or
other premises in which Lessor has an interest, or (c) if Lessee remains in
possession of the Premises with the consent of Lessor after the expiration of
the term of this Lease after having failed to exercise an Option, or (d) if
said Brokers the are the procuring cause of any other lease or sale entered
into between the Parties pertaining to the Premises and/or any adjacent
property in which Lessor has an interest, or (e) if Base Rent is increased,
whether by agreement or operation of an escalation clause herein, then as to
any of said transactions, Lessor shall pay said Broker(s) a fee in accordance
with the schedule of said Broker(s) in effect at the time of the execution of
this Lease.
15.3 ASSUMPTION OF OBLIGATIONS. Any buyer or transferee of Lessor's
interest in this Lease, whether such transfer is by agreement or by operation
of law, shall be deemed to have assumed Lessor's obligation under this
Paragraph 15. Each Broker shall be an intended third party beneficiary of
the provisions of Paragraph 1.10 and of this Paragraph 15 to the extent of
its interest in any commission arising from this Lease and may enforce that
right directly against Lessor and its successors.
15.4 REPRESENTATIONS AND WARRANTIES. Lessee and Lessor each represent
and warrant to the other that it has had no dealings with any person, firm,
broker or finder other than as named in Paragraph 1.10(a) in connection with
the negotiation of this Lease and/or the consummation of the transaction
contemplated hereby, and that no broker or other person, firm or entity other
than said named Broker(s) is entitled to any commission or finder's fee in
connection with said transaction. Lessee and Lessor do each hereby agree to
indemnify, protect, defend and hold the other harmless from and against
liability for compensation or charges which maybe claimed by any such unnamed
broker, finder or other similar party by reason of any dealings or actions of
the Indemnifying Party, including any costs, expenses, and/or attorneys' fees
reasonably incurred with respect thereto.
16. TENANCY AND FINANCIAL STATEMENTS.
16.1 TENANCY STATEMENT. Each Party (as "RESPONDING PARTY") shall within
ten (10) days after written notice from the other Party (the "REQUESTING
PARTY") execute, acknowledge and deliver to the Requesting Party a statement
in writing in a form similar to the then most current "TENANCY STATEMENT"
form published by the American Industrial Real Estate Association, plus such
additional information, confirmation and/or statements as may be reasonably
requested by the Requesting Party.
16.2 FINANCIAL STATEMENT. If Lessor desires to finance, refinance, or
sell the Premises or the Building, or any part thereof, Lessee and all
Guarantors shall deliver to any potential lender or purchaser designated by
Lessor such financial statements of Lessee and such Guarantors as may be
reasonably required by such lender or purchaser, including but not limited to
Lessee's financial statements for the past three (3) years. All such
financial statements shall be received by Lessor and such lender or purchaser
in confidence and shall be used only for the purposes herein set forth.
17. LESSOR'S LIABILITY. The term "LESSOR" as used herein shall mean the
owner or owners at the time in question of the fee title to the Premises. In
the event of a transfer of Lessor's title or interest in the Premises or in
this Lease, Lessor shall deliver to the transferee or assignee (in cash or by
credit) any unused Security Deposit held by Lessor at the time of such
transfer or assignment. Except as provided in Paragraph 15.3, upon such
transfer or assignment and delivery of the Security Deposit, as aforesaid,
the prior Lessor shall be relieved of all liability with respect to the
obligations and/or covenants under this Lease thereafter to be performed by
the Lessor. Subject to the foregoing, the obligations and/or covenants in
this Lease to be performed by the Lessor shall be binding only upon the
Lessor as hereinabove defined.
18. SEVERABILITY. The invalidity of any provision of this Lease, as
determined by a court of competent jurisdiction, shall in no way affect the
validity of any other provision hereof.
19. INTEREST ON PAST-DUE OBLIGATIONS. Any monetary payment due Lessor
hereunder, other than late charges, not received by Lessor within ten (10)
days following the date on which it was due, shall bear interest from the
date due at the prime rate charged by the largest state chartered bank in the
state in which the Premises are located plus four* percent (4%) per annum,
but not exceeding the maximum rate allowed by law, in addition to the
potential late charge provided for in Paragraph 13.4. *See Addendum #2
20. TIME OF ESSENCE. Time is of the essence with respect to the performance
of all obligations to be performed or observed by the Parties under this
Lease.
21. RENT DEFINED. All monetary obligations of Lessee to Lessor under the
terms of this Lease are deemed to be rent.
22. NO PRIOR OR OTHER AGREEMENTS; BROKER DISCLAIMER. This Lease contains all
agreements between the Parties with respect to any matter mentioned herein,
and no other prior or contemporaneous agreement or understanding shall be
effective. Lessor and Lessee each represents and warrants to the Brokers that
it has made, and is relying solely upon, its own investigation as to the
nature, quality, character and financial responsibility of the other Party to
this Lease and as to the nature, quality and character of the Premises.
Brokers have no responsibility with respect thereto or with respect to any
default or breach hereof by either Party. Each Broker shall be an intended
third party beneficiary of the provisions of this Paragraph 22.
23. NOTICES.
23.1 NOTICE REQUIREMENTS. All notices required or permitted by this
Lease shall be in writing and may be delivered in person (by hand or by
messenger or courier service) or may be sent by regular, certified or
registered mail or U.S. Postal Service Express Mail, with postage prepaid, or
by facsimile transmission during normal business hours, and shall be deemed
sufficiently given if served in a manner specified in this Paragraph 23. The
addresses noted adjacent to a Party's signature on this Lease shall be that
Party's address for delivery or mailing of notice purposes. Either Party may
by written notice to the other specify a different address for notice
purposes, except that upon Lessee's taking possession of the Premises, the
Premises shall constitute Lessee's address for the purpose of mailing or
delivering notices to Lessee. A copy of all notices required or permitted to
be given to Lessor hereunder shall be concurrently transmitted to such party
or parties at such addresses as Lessor may from time to time hereafter
designate by written notice to Lessee.
23.2 DATE OF NOTICE. Any notice sent by registered or certified mail,
return receipt requested, shall be deemed given on the date of delivery shown
on the receipt card, or if no delivery date is shown, the postmark thereon.
If sent by regular mail, the notice shall be deemed given forty-eight* (48)
hours after the same is addressed as required herein and mailed with postage
prepaid. Notices delivered by United States Express Mail or overnight courier
that guarantees next day
*See Addendum #2
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delivery shall be deemed given twenty-four (24) hours after delivery of the
same to the United States Postal Service or courier. If any notice is
transmitted by facsimile transmission or similar means, the same shall be
deemed served or delivered upon telephone or facsimile confirmation of
receipt of the transmission thereof, provided a copy is also delivered via
delivery or mail. If notice is received on a Saturday or a Sunday or a legal
holiday, it shall be deemed received on the next business day.
24. WAIVERS. No waiver by Lessor of the Default or Breach of any form,
covenant or condition hereof by Lessee, shall be deemed a waiver of any other
term, covenant or condition hereof, or of any subsequent Default or Breach by
Lessee of the same or any other term, covenant or condition hereof. Lessor's
consent to, or approval of, any such act shall not be deemed to render
unnecessary the obtaining of Lessor's consent to, or approval of, any
subsequent or similar act by Lessee, or be construed as the basic of an
estoppel to enforce the provision or provisions of this Lease requiring such
consent. Regardless of Lessor's knowledge of a Default or Breach at the time
of accepting rent, the acceptance of rent by Lessor shall not be a waiver of
any Default or Breach by Lessee of any provision hereof. Any payment given
Lessor by Lessee may be accepted by Lessor on account of moneys or damages
due Lessor, notwithstanding any qualifying statements or conditions made by
Lessee in connection therewith, which such statements and/or conditions shall
be no force or effect whatsoever unless specifically agreed to in writing by
Lessor at or before the time of deposit of such payment.
25. RECORDING. Either Lessor or Lessee shall, upon request of the other,
execute, acknowledge and deliver to the other a short form memorandum of this
Lease for recording purposes. The Party requesting recordation shall be
responsible for payment of any fees or taxes applicable thereto.
26. NO RIGHT TO HOLDOVER. Lessee has no right to retain possession of the
Premises or any part thereof beyond the expiration or earlier termination of
this Lease. In the event that Lessee holds over in violation of this
Paragraph 26 then the Base Rent payable from and after the time of the
expiration or earlier termination of this Lease shall be increased to two
hundred percent* (200%) of the Base Rent applicable during the month
immediately preceding such expiration or earlier termination. Nothing
contained herein shall be construed as a consent by Lessor to any holding
over by Lessee. *See Addendum #2
27. CUMULATIVE REMEDIES. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies
at law or in equity.
28. COVENANTS AND CONDITIONS. All provisions of this Lease to be observed or
performed by Lessee are both covenants and conditions.
29. BINDING EFFECT; CHOICE OF LAW. This Lease shall be binding upon the
parties, their personal representatives, successors and assigns and be
governed by the laws of the State in which the Premises are located. Any
litigation between the Parties hereto concerning this Lease shall be
initiated in the county in which the Premises are located.
30. SUBORDINATION; ATTORNMENT; NON-DISTURBANCE.
30.1 SUBORDINATION. This Lease and any Option granted hereby shall be
subject and subordinate to any ground lease, mortgage, deed of trust, or
other hypothecation or security device (collectively, "SECURITY DEVICE"), now
or hereafter placed by Lessor upon the real property of which the Premises
are a part, to any and all advances made on the security thereof, and to all
renewals, modifications, consolidations, replacements and extensions thereof.
Lessee agrees that the Lenders holding any such Security Device shall have no
duty, liability or obligation to perform any of the obligations of Lessor
under this Lease,* but that in the event of Lessor's default, with respect to
any such obligation, Lessee will give any Lender whose name and address have
been furnished Lessee in writing for such purpose notice of Lessor's default
pursuant to Paragraph 13.5. If any Lender shall elect to have this Lease
and/or any Option granted hereby superior to the lien of its Security Device
and shall give written notice thereof to Lessee, this Lease and such Options
shall be deemed prior to such Security Device notwithstanding the relative
dates of the documentation or recordation thereof. *See Addendum #2
30.2 ATTORNMENT. Subject to the non-disturbance provisions of Paragraph
30.3, Lessee agrees to attorn to a Lender or any other party who acquires
ownership of the Premises by reason of a foreclosure of a Security Device,
and that in the event of such foreclosure, such new owner shall not: (1) be
liable for any act or omission of any prior lessor or with respect to events
occurring prior to acquisition of ownership, (ii) be subject to any offsets
or defenses which Lessee might have against any prior lessor, or (iii) be
bound by prepayment of more than one month's rent.
30.3 NON-DISTURBANCE. With respect to Security Devices entered into by
Lessor after the execution of this lease, Lessee's subordination of this
Lease shall be subject to receiving assurance (a "non-disturbance agreement")
from the Lender that Lessee's possession and this Lease, including any
options to extend the form hereof, will not be disturbed so long as Lessee is
not in Breach hereof and attorns to the record owner of the Premises.
30.4 SELF-EXECUTING. The agreements contained in this Paragraph 30 shall
be effective without the execution of any further documents; provided,
however, that upon written request from Lessor or a Lender in connection with
a sale, financing or refinancing of Premises, Lessee and Lessor shall execute
such further writings as may be reasonably required to separately document
any such subordination or non-subordination, attornment and/or
non-disturbance agreement as is provided herein.
31. ATTORNEYS' FEES. If any Party or Broker brings an action or proceeding
to enforce the terms hereof or declare rights hereunder, the Prevailing Party
(as hereafter defined) in any such proceeding, action, or appeal thereon,
shall be entitled to reasonable attorneys' fees. Such fees may be awarded in
the same suit or recovered in a separate suit, whether or not such action or
proceeding is pursued to decision or judgment. The term "Prevailing Party"
shall include, without limitation, a Party or Broker who substantially
obtains or defeats the relief sought, as the case may be, whether by
compromise, settlement, judgment, or the abandonment by the other Party or
Broker of its claim or defense. The attorneys' fee award shall not be
computed in accordance with any court fee schedule, but shall be such as to
fully reimburse all attorneys' fees reasonably incurred. Lessor shall be
entitled to attorneys' fees, costs and expenses incurred in preparation and
service of notices of Default and consultations in connection therewith,
whether or not a legal action is subsequently commenced in connection with
such Default or resulting Breach. Broker(s) shall be intended third party
beneficiaries of this Paragraph 31.
32. LESSOR'S ACCESS; SHOWING PREMISES; REPAIRS. Lessor and Lessor's agents
shall have the right to enter the Premises at any time. In the case of an
emergency, and otherwise at reasonable times for the purpose of showing the
same to prospective purchasers, lenders, or lessees, and making such
alterations, repairs, improvements or additions to the Premises or to the
Building, as Lessor may reasonably deem necessary. Lessor may at any time
place on or about the Premises or Building any ordinary "For Sale" signs and
Lessor may at any time during the last one hundred eight (180) days of the
term hereof place on or about the Premises any ordinary "For Lease" signs.
All such activities of Lessor shall be without abatement of rent or liability
to Lessee.
33. AUCTIONS. Lessee shall not conduct, nor permit to be conducted, either
voluntarily or involuntarily, any auction upon the Premises without first
having obtained Lessor's prior written consent. Notwithstanding anything to
the contrary in this Lease, Lessor shall not be obligated to exercise any
standard of reasonableness in determining whether to grant such consent.
34. SIGNS. Lessee shall not place any sign upon the exterior of the Premises
or the Building, except that Lessee may, with Lessor's prior written consent,
install (but not on the roof) such signs as are reasonably required to
advertise Lessee's own business so long as such signs are in a location
designated by Lessor and comply with Applicable Requirements and the signage
criteria established for the Industrial Center by Lessor. The installation of
any sign on the Premises by or for Lessee shall be subject to the provisions
of Paragraph 7 (Maintenance, Repairs, Utility Installations, Trade Fixtures
and Alterations). Unless otherwise expressly agreed herein, Lessor reserves
all rights to the use of the roof of the Building, and the right to install
advertising signs on the Building, including the roof, which do not
unreasonably interfere with the conduct of Lessee's business; Lessor shall be
entitled to all revenues from such advertising signs.
35. TERMINATION; MERGER. Unless specifically stated otherwise in writing by
Lessor, the voluntary or other surrender of this Lease by Lessee, the mutual
termination or cancellation hereof, or a termination hereof by Lessor for
Breach by Lessee, shall automatically terminate any sublease or lesser estate
in the Premises; provided, however, Lessor shall, in the event of any such
surrender, termination or cancellation, have the option to continue any one
or all of any existing subtenancies. Lessor's failure within ten (10) days
following any such event to make a written election to the contrary by
written notice to the holder of any such lesser interest, shall constitute
Lessor's election to have such event constitute the termination of such
interest.
36. CONSENTS.
(a) Except for Paragraph 33 hereof (Auctions) or as otherwise
provided herein, wherever in this Lease the consent of a Party is required to
an act by or for the other Party, such consent shall not be unreasonably
withheld or delayed. Lessor's actual reasonable costs and expenses (including
but not limited to architects', attorneys', engineers' and other consultants'
fees) incurred in the consideration of, or response to, a request by Lessee
for any Lessor consent pertaining to this Lease or the Premises, including
but not limited to consents to an assignment a subletting or the presence or
use of a Hazardous Substance, shall be paid by Lessee to Lessor upon receipt
of an invoice and supporting documentation therefor. In addition to the
deposit described in Paragraph 12.2(e), Lessor may, as a condition to
considering any such request by Lessee, require that Lessee deposit with
Lessor an amount of money (in addition to the Security Deposit held under
Paragraph 5) reasonably calculated by Lessor to represent the cost Lessor
will incur in considering and responding to Lessee's request. Any unused
portion of said deposit shall be refunded to Lessee without interest.
Lessor's consent to any act, assignment of this Lease or subletting of the
Premises by Lessee shall not constitute an acknowledgment that no Default or
Breach by Lessee of this Lease exists, nor shall such consent be deemed a
waiver of any then existing Default or Breach, except as may be otherwise
specifically stated in writing by Lessor at the time of such consent.
(b) All conditions to Lessor's consent authorized by this Lease
are acknowledged by Lessee as being reasonable. The failure to specify herein
any particular condition to Lessor's consent shall not preclude the
impositions by Lessor at the time of consent of such further or other
conditions as are then reasonable with reference to the particular matter for
which consent is being given.
37. GUARANTOR.
37.1 FORM OF GUARANTY. If there are to be any Guarantors of this Lease
per Paragraph 1.11, the form of the guaranty to be executed by each such
Guarantor shall be in the form most recently published by the American
Industrial Real Estate Association, and each such Guarantor shall have the
same obligations as Lessee under this lease, including but not limited to the
obligation to provide the Tenancy Statement and information required in
Paragraph 16.
37.2 ADDITIONAL OBLIGATIONS OF GUARANTOR. It shall constitute a Default
of the Lessee under this Lease if any such Guarantor fails or refuses, upon
reasonable request by Lessor to give; (a) evidence of the due execution of
the guaranty called for by this Lease, including the authority of the
Guarantor (and of the party signing on Guarantor's behalf) to obligate such
Guarantor on said guaranty, and resolution of its board of directors
authorizing the making of such guaranty, together with a certificate of
incumbency showing the signatures of the persons authorized to sign on its
behalf, (b) current financial statements of Guarantor as may from time to
time be requested by Lessor, (c) a Tenancy Statement, or (d) written
confirmation that the guaranty is still in effect.
38. QUIET POSSESSION. Upon payment by Lessee of the rent for the Premises
and the performance of all of the covenants, conditions and provisions on
Lessee's part to be observed and performed under this Lease, Lessee shall
have quiet possession of the Premises for the entire term hereof subject to
all of the provisions of this Lease.
-9-
<PAGE>
39. OPTIONS.
39.1 DEFINITION. As used in this Lease, the word "OPTION" has the
following meaning: (a) the right to extend the term of this Lease or to renew
this Lease or to extend or renew any lease that Lessee has on other property
of Lessor; (b) the right of first refusal to lease the Premises or the right
of first offer to lease the Premises or the right of first refusal to lease
other property of Lessor or the right of first offer to lease other property
of Lessor; (c) the right to purchase the Premises, or the right of first
refusal to purchase the Premises, or the right of first offer to purchase the
Premises, or the right to purchase other property of Lessor, or the right of
first refusal to purchase other property of Lessor, or the right of first
offer to purchase other property of Lessor.
39.2 OPTIONS PERSONAL TO ORIGINAL LESSEE. Each Option granted to Lessee
in this Lease is personal to the original Lessee named in Paragraph 1.1
hereof, and cannot be voluntarily or involuntarily assigned or exercised by
any person or entity other than said original Lessee while the original Lessee
is in full and actual possession of the Premises and without the intention of
thereafter assigning or subletting. The Options, if any, herein granted to
Lessee are not assignable, either as a part of an assignment of this Lease
or separately or apart therefrom, and no Option may be separated from this
Lease in any manner, by reservation or otherwise.
39.3 MULTIPLE OPTIONS. In the event that Lessee has any multiple Options
to extend or renew this Lease, a later option cannot be exercised unless the
prior Options to extend or renew this Lease have been validly exercised.
39.4 EFFECT OF DEFAULT ON OPTIONS.
(a) Lessee shall have no right to exercise an Option,
notwithstanding any provision in the grant of Option to the contrary; (i)
during the period commencing with the giving of any notice of Default under
Paragraph 13.1 and continuing until the noticed Default is cured, or (ii)
during the period of time any monetary obligation due Lessor from Lessee is
unpaid (without regard to whether notice thereof is given Lessee), or (iii)
during the time Lessee is in Breach of this Lease, or (iv) in the event that
Lessor has given to Lessee three (3) or more notices of separate Defaults
under Paragraph 13.1 during the twelve (12) month period immediately
preceding the exercise of the Option, whether or not the Defaults are cured.
(b) The period of time within which an Option may be exercised
shall not be extended or enlarged by reason of Lessee's inability to exercise
an Option because of the provisions of Paragraph 39.4(a).
(c) All rights of Lessee under the provisions of an Option shall
terminate and be of no further force or effect, notwithstanding Lessee's due
and timely exercise of the Option, if, after such exercise and during the
term of this Lease, (i) Lessee fails to pay to Lessor a monetary obligation
of Lessee for a period of thirty (30) days after such obligation becomes due
(without any necessity of Lessor to give notice thereto to Lessee), or (ii)
Lessor gives to Lessee three (3) or more notices of separate Defaults under
Paragraph 13.1 during any twelve (12) month period, whether or not the
Defaults are cured, or (iii) if Lessee commits a Breach of this Lease.
40. RULES AND REGULATIONS. Lessee agrees that it will abide by, and keep and
observe all reasonable rules and regulations ("Rules and Regulations") which
Lessor may make from time to time for the management, safety, care, and
cleanliness of the grounds, the parking and unloading of vehicles and the
preservation of good order, as well as for the convenience of other occupants
or tenants of the Building and the Industrial Center and their invitees.
41. SECURITY MEASURES. Lessee hereby acknowledges that the rental payable to
Lessor hereunder does not include the cost of guard service or other security
measures, and that Lessor shall have no obligation whatsoever to provide
same. Lessee assumes all responsibility for the protection of the Premises,
Lessee, its agents and invitees and their property from the acts of third
parties.
42. RESERVATIONS. Lessor reserves the right, from time to time, to grant,
without the consent or joinder of Lessee, such easements, rights of way,
utility raceways, and dedications that Lessor deems necessary, and to cause
the recordation of parcel maps and restrictions, so long as such easements,
rights of way, utility raceways, dedications, maps and restrictions do not
reasonably interfere with the use of the Premises by Lessee. Lessee agrees to
sign any documents reasonably requested by Lessor to effectuate any such
easement rights, dedication, map or restrictions.
43. PERFORMANCE UNDER PROTEST. If at any time a dispute shall arise as to
any amount or sum of money to be paid by one Party to the other under the
provisions hereof, the Party against whom the obligation to pay the money is
asserted shall have the right to make payment "under protest" and such
payment shall not be regarded as a voluntary payment and there shall survive
the right on the party of said Party to institute suit for recovery of such
sum. If it shall be adjudged that there was no legal obligation on the part
of said Party to pay such sum or any part thereof, said Party shall be
entitled to recover such sum or so much thereof as it was not legally
required to pay under the provisions of this Lease.
44. AUTHORITY. If either Party hereto is a corporation, trust, or general or
limited partnership, each individual executing this Lease on behalf of such
entity represents and warrants that he or she is duly authorized to execute
and deliver this Lease on its behalf. If Lessee is a corporation, trust or
partnership, Lessee shall, within thirty (30) days after request by Lessor,
deliver to Lessor evidence satisfactory to Lessor of such authority.
45. CONFLICT. Any conflict between the printed provisions of this Lease and
the typewritten or handwritten provisions shall be controlled by the
typewritten or handwritten provisions.
46. OFFER. Preparation of this Lease by either Lessor or Lessee or Lessor's
agent or Lessee's agent and submission of same to Lessee or Lessor shall not
be deemed an offer to lease. This Lease is not intended to be binding until
executed and delivered by all Parties hereto.
47. AMENDMENTS. This Lease may be modified only in writing, signed by the
parties in interest at the time of the modification. The Parties shall amend
this Lease from time to time to reflect any adjustments that are made to the
Base Rent or other rent payable under this Lease. As long as they do not
materially change Lessee's obligations hereunder, Lessee agrees to make such
reasonable non-monetary modifications to this Lease as may be reasonably
required by an institutional insurance company or pension plan Lender in
connection with the obtaining of normal financing or refinancing of the
property of which the Premises are a part.
48. MULTIPLE PARTIES. Except as otherwise expressly provided herein, if more
than one person or entity is named herein as either Lessor or Lessee, the
obligations of such multiple parties shall be the joint and several
responsibility of all persons or entities named herein as such Lessor or
Lessee.
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<PAGE>
LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM AND
PROVISION CONTAINED HEREIN, AND BY THE EXECUTION OF THIS LEASE SHOW THEIR
INFORMED AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY AGREE THAT, AT THE
TIME THIS LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE COMMERCIALLY REASONABLE
AND EFFECTUATE THE INTENT AND PURPOSE OF LESSOR AND LESSEE WITH RESPECT TO THE
PREMISES.
IF THIS LEASE HAS BEEN FILLED IN, IT HAS BEEN PREPARED FOR YOUR
ATTORNEY'S REVIEW AND APPROVAL. FURTHER, EXPERTS SHOULD BE
CONSULTED TO EVALUATE THE CONDITION OF THE PROPERTY FOR THE
POSSIBLE PRESENCE OF ASBESTOS, UNDERGROUND STORAGE TANKS OR
HAZARDOUS SUBSTANCES. NO REPRESENTATION OR RECOMMENDATION IS MADE
BY THE AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION OR BY THE REAL
ESTATE BROKERS OR THEIR CONTRACTORS, AGENTS OR EMPLOYEES AS TO THE
LEGAL SUFFICIENCY, LEGAL EFFECT, OR TAX CONSEQUENCES OF THIS LEASE
OR THE TRANSACTION TO WHICH IT RELATES; THE PARTIES SHALL RELY
SOLELY UPON THE ADVICE OF THEIR OWN COUNSEL AS TO THE LEGAL AND TAX
CONSEQUENCES OF THIS LEASE. IF THE SUBJECT PROPERTY IS IN A STATE
OTHER THAN CALIFORNIA, AN ATTORNEY FROM THE STATE WHERE THE
PROPERTY IS LOCATED SHOULD BE CONSULTED.
The parties hereto have executed this Lease at the place and on the dates
specified above their respective signatures.
Executed at: LOS GATOS, CA. Executed at: Monterey, Ca
------------------------ -----------------------------
on: 7-30-97 on: 7-29-97
--------------------------------- --------------------------------------
BY LESSOR: BY LESSEE:
CARBONERO CREEK ASSOCIATES DELTA POINT, INC.
- ------------------------------------ -----------------------------------------
- ------------------------------------ -----------------------------------------
By: Illegible By: /s/ Sharon L. Fugitt
--------------------------------- -----------------------------------------
Name Printed: Illegible Name Printed: Sharon L. Fugitt
----------------------- ----------------------------
Title: General Partner Title: Controller
------------------------------ -----------------------------------
By: /s/ Douglas S. Usher By:
--------------------------------- --------------------------------------
Name Printed: Douglas S. Usher Name Printed:
----------------------- ----------------------------
Title: General Partner Title:
------------------------------ -----------------------------------
Address: Address:
---------------------------- ---------------------------------
- ------------------------------------ -----------------------------------------
Telephone: ( ) Telephone: ( )
------------------ -----------------------
Facsimile: ( ) Facsimile: ( )
------------------ -----------------------
BROKER: BROKER:
Executed at: Executed at:
------------------------ -----------------------------
on: on:
--------------------------------- --------------------------------------
By: By:
--------------------------------- --------------------------------------
Name Printed: Name Printed:
----------------------- ----------------------------
Title: Title:
------------------------------ -----------------------------------
Address: Address:
---------------------------- ---------------------------------
- ------------------------------------ -----------------------------------------
Telephone: ( ) Telephone: ( )
------------------ -----------------------
Facsimile: ( ) Facsimile: ( )
------------------ -----------------------
NOTE: These forms are often modified to meet changing requirements of law and
needs of the industry. Always write or call to make sure you are utilizing the
most current form: AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION, 345 So. Figueran
St., M-1, Los Angeles, Ca. 90071. (213)687-8777.
Initials: Illegible
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Illegible
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<PAGE>
EXHIBIT A
[floor plan]
Illegible
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INITIALS
<PAGE>
EXHIBIT B
[floor plan]
Illegible
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INITIALS
<PAGE>
LEASE ADDENDUM #1 380 EL PUEBLO ROAD, SCOTTS VALLEY
1. PREMISES: Lessor shall reserve the ongoing right to adjust the
common area's of the building, including lobbies, corridors, and
restrooms, as required for other third party tenancies, so long as any
such changes or regulations shall not materially adversely affect Lessee
use, access, and enjoyment of the Premises.
2. BASE TERM EXTENSION OPTION: Lessee shall be granted one (1) three
(3) year option to extend the Lease for subject property with no more
than three hundred sixty (360) days and no less than one hundred eighty
(180) days prior written notice to Lessor of Lessee's intent to extend.
Option period rents and other terms and conditions shall be set at the
then existing fair market value (determined via a negotiated agreement
between Tenant and Owner, or pursuant to the Lease, the parties utilize
a three-appraisal method of rental valuation) for comparable facilities
in comparable locations within what is commonly referred to as "Scotts
Valley" in Santa Cruz County, California. In no event shall such net
rent established during such option period be less than the net rent
paid by Lessee during the final month of the initial term of the lease.
If the parties cannot agree on a fair market value for the purposes of
rent during an extension period, an independent third party shall decide
the fair market value of rent for such extension period.
3. RENT: The net monthly rental rate shall be as follows:
Net Rate
Months per Month.
------ ----------
01 - 06 $12,000.00
07 - 42 $18,363.00
4. LESSOR BUILDING IMPROVEMENTS: Lessor shall provide in the base net
rent typical generic improvements to the Premises, including the
refurbishment of the main lobby to Carbonero Creek Research Park
building standards, separation and demising where necessary, and the
painting of Lessee's interior. In addition, Lessor shall create a
conference room on the second floor of the premises of approximately
19 x 20 lineal feet in the northwest corner of the building, per Lessee's
request. Lessor shall complete the drawings and Lessor shall complete
the work as general contractor, at Lessor's expense.
5. CONDITION & CODE COMPLIANCE OF PREMISES:
All roof, HVAC or mechanical system repairs or replacements due to
failure (except normal maintenance), during the first three (3) months
of occupancy shall be the responsibility of the Lessor with no pass
through of such repair or replacement costs
<PAGE>
to the Lessee. Also, Lessor will, to the extent possible, transfer any
warranties or service contracts on systems in the premises that the
Lessee is responsible to maintain during the term of the lease to the
Lessee.
Where required by any applicable authority including, but not limited
to, the Americans with Disabilities Act of 1990 (ADA), state, local or
municipal ordinances, Lessor shall cause to be constructed, at Lessor's
sole cost, any necessary modifications to the existing premises required
by Law to secure a Business License for Tenant from the City of Scotts
Valley. However, if any such ADA or other accessibility modifications
are necessary due to Tenant's "specialized improvements", then Tenant
shall bear any additional cost of said modifications resulting from such
"specialized improvements".
6. PARKING: Approximately 3/1000 on-site parking. Street parking on El
Pueblo Road is also available at the present time, but not guaranteed by
Lessor.
7. NON-DISTURBANCE AGREEMENT: Lessor shall use its best efforts to
provide Tenant with a non-disturbance agreement acceptable to Tenant
excalpulating Tenant from any ground Landlords, mortgage holders or lien
holders of Lessor presently in existence.
8. RIGHT OF FIRST REFUSAL: Throughout the Lease term, Lessor shall (a)
provide Lessee with one week's advance written notification when the
adjoining 6,908 square feet becomes available for lease, and/or (b)
provide Lessee with forty-eight business (48) hours advance written
notification when another party executes a Letter of Intent to lease the
adjoining 6,908 square feet. Lessee may in such instance exercise its
Right of First Refusal and elect to lease the adjoining 6,908 square
feet under terms and conditions acceptable to the Lessor, but in no
event less favorable than the terms and conditions proposed within such
other parties Letter of Intent.
In the event Lessor enters into a lease for such adjoining 6,908 square
feet with another party, Lessor may be requested or required to split
the first floor bathrooms into four separate units. Lessor requires
Lessee to agree to allow Lessor access to accommodate and construct the
changes as necessary to serve two separate tenants in a secure manner.
In the event Lessee leases additional space within the premises, all
such space so leased (both the initial 18,363 square feet and the 6,908
square feet of additional space) shall be leased by Lessor to Lessee
with a co-terminus lease expiration date set thirty-six (36) months from
the lease commencement date of such 6,908 square feet of additional
space.
<PAGE>
9. SIGNAGE: As allowed by Lessor, and the City of Scotts Valley.
10. SUBLEASE PROVISION: Any assignment or sublease of the premises or
any portion thereof shall be subject to the terms of the Lease as well
as the review and reasonable approval of the proposed Assignee's or
Sublessee's current financial condition, intended use, and any other
reasonable concern by Lessor, save and except Lessee shall have the
absolute right for assignment or sublease of the premises or any
portion thereof to any wholly owned subsidiary or affiliate of Lessee,
without the requirement for Lessee's advance written approval.
LESSEE: DELTAPOINT CORPORATION
By: /s/ [ILLEGIBLE] Date: 7-29-97
------------------------------ ---------------------
Title: Controller
---------------------------
By:
------------------------------
Title:
---------------------------
LESSOR: CARBONERO CREEK ASSOCIATES
By: /s/ [ILLEGIBLE] Date: 7-30-97
------------------------------ ---------------------
Title: /s/ [ILLEGIBLE]
---------------------------
By: /s/ [ILLEGIBLE]
------------------------------
Title: General Partner
---------------------------
<PAGE>
LEASE ADDENDUM #2
THIS ADDENDUM TO LEASE AGREEMENT is made by and between Carbonero Creek
Associates ("Lessor"), and Delta Point, Inc., a California Corporation
("Lessee") dated July 9, 1997.
WHEREAS:
1. 1.8 General office, software research and development,
warehousing/distribution and all other legally related
uses.
2. 2.2 reasonable
2.6(b) actual
2.7 The Common Areas shall also include the hallways,
restrooms and lobby serving the Premises that are shared
by other tenants.
2.9 so long as any such changes or regulations shall no
materially adversely affect Lessee use, access and
enjoyment of the Premises.
3. 3.3 subject to minor punch list items which do not materially
interfere with Tenant's use of the Premises and diligently
pursued to completion at Landlord's sole cost and expense
within thirty (30) days following Commencement Date.
4. 4.2(a) directly
4.2(a)(iii) reasonable and competitive
4.2(a)(vii) to the extent such deductible is not recovered through
settlement and does not exceed Twenty-Five Thousand
Dollars ($25,000).
4.2(d) Tenant may also notify Landlord, within a thirty (30)
day period, of any dispute Tenant has as to the
inclusion of any item to Landlord's statement or to the
reasonableness of any amount included herein. If Tenant
does so dispute any portion of the Operating Expenses
statement, Tenant shall promptly pay the amount which
is not in dispute to Landlord and Landlord and Tenant
shall negotiate in good faith for thirty (30) days
following Tenant's delivery of its dispute notice.
5. within thirty (30) days
6. 6.1(b) reasonably
6.2(a) To the best of Landlord's knowledge there are no
hazardous materials or toxic substances on the
Premises, in the Building and/or Complex. Landlord
shall hold Tenant harmless against any pre-existing
hazardous environmental conditions and if such
conditions were to be identified shall be removed by
Landlord, as required by federal, state or local
governments.
6.2(c) that reveals a violation
6.4 at commercially reasonable rates
7. 7.3(a) per year
7.3(b) reasonably
$7,000
7.4(c) damage by casualty and Hazardous substances not caused
by Lessee
9. 9.6(a) destruction
as of the date of the casualty
9.6(b) however, in no event shall the entire process exceed
one hundred eighty (180) days.
<PAGE>
12. 12.1 Lessee shall have the right to assign the lease in its
entirety or to sublease all or any portion of the
Premises without the consent of Lessor to (a) any
entity resulting from a merger or consolidation or (b)
any subsidiary or affiliate of Lessee, as long as the
financial condition of said entity is not less than the
parent entity assigning the lease.
12.1(b) fifty percent (50%)
12.2(e) $500
13. 13.1 actual and reasonable
13.1(b) ten (10) days
13.1(c) thirty (30) days
13.4 notwithstanding the foregoing, Lessee shall not be
charged a late fee for the late payment of rent if its
the first and only time in a twelve (12) month period.
19. three percent (3%)
23. 23.2 three (3) business days
26. one hundred fifty percent (150%)
30. 30.1 except
AGREED & ACCEPTED:
LESSOR: CARBONERO CREEK ASSOCIATES LESSEE: DELTA POINT, INC.
a California Corporation
By: /s/ [illegible] By: /s/ [illegible]
--------------------------------- ------------------------------
Title: /s/ General Partner Title: Controller
------------------------------ ---------------------------
Date: 7-30-97 Date: 7-29-97
------------------------------ ----------------------------
/s/ [illegible]
------------------------------
<PAGE>
EXHIBIT 21.1
SUBSIDIARIES OF THE REGISTRANT
Site/technologies/inc., a Delaware corporation, doing business as
Site/technologies/inc.
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the use in the Prospectus constituting part of this
Registration Statement on Form SB-2 of our report dated March 25, 1997 relating
to the financial statements of DeltaPoint, Inc., which appears in such
Prospectus. We also consent to the references to us under the headings "Experts"
and "Selected Financial Data" in such Prospectus. However, it should be noted
that Price Waterhouse LLP has not prepared or certified such "Selected Financial
Data."
/s/ PRICE WATERHOUSE LLP
PRICE WATERHOUSE LLP
San Jose, California
September 24, 1997
