<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 19, 1999
REGISTRATION NUMBER 333-89323
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT 1 TO
FORM SB-2
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REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
TEAM COMMUNICATIONS GROUP, INC.
(NAME OF SMALL BUSINESS ISSUER AS SPECIFIED IN ITS CHARTER)
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<S> <C> <C>
CALIFORNIA 3652 95-5419215
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (IRS EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NO.)
</TABLE>
TEAM COMMUNICATIONS GROUP, INC.
12300 WILSHIRE BOULEVARD, SUITE 400
LOS ANGELES, CALIFORNIA 90025
(310) 442-3500
(ADDRESS, INCLUDING ZIP CODE AND TELEPHONE NUMBER, INCLUDING AREA CODE OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES.)
DREW S. LEVIN
12300 WILSHIRE BOULEVARD, SUITE 400
LOS ANGELES, CALIFORNIA 90025
(310) 442-3500
(NAMES, ADDRESS, INCLUDING ZIP CODE AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPIES TO:
BRUCE P. VANN, ESQ.
KELLY LYTTON MINTZ & VANN LLP
1900 AVENUE OF THE STARS, SUITE 1450
LOS ANGELES, CALIFORNIA 90067
TELEPHONE NO: (310) 277-5333
FACSIMILE NO: (310) 277-5953
APPROXIMATE DATE OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after the effective date of this Registration Statement.
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 this Form is filed to register additional securities for an offering
pursuant to Rule 462(d) 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 delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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<S> <C> <C> <C> <C>
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AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF TO BE OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED PER SHARE(1) OFFERING PRICE FEE
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Common Stock.................................... 6,000,000 8,340
Common stock being sold by selling
shareholder................................... 150,000
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TOTAL........................................... 6,150,000 $8,340(2)
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</TABLE>
(1) Estimated pursuant to Rule 457(a) solely for the purpose of calculating the
registration fee.
(2) Previously 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 COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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<PAGE> 2
THE INFORMATION IN THIS PRELIMINARY PROSPECTUS IS NOT COMPLETE AND MAY BE
CHANGED. WE MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS
PRELIMINARY PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES, AND WE ARE
NOT SOLICITING OFFERS TO BUY THESE SECURITIES, IN ANY STATE OR COUNTRY.
SUBJECT TO COMPLETION. DATED NOVEMBER 19, 1999.
6,000,000 SHARES
TEAM COMMUNICATIONS GROUP, INC.
-------------------------
TEAM Communications Group, Inc., is offering 6,000,000 shares of its common
stock and, the selling shareholder identified in this prospectus is offering an
additional 150,000 shares, such shares initially being offered to the general
public and institutional investors in the Federal Republic of Germany and to
individuals and institutional investors located in other jurisdictions. We will
not receive any of the proceeds for the sale of shares by the selling
shareholder. We have applied to list the entirety of our common stock on the
Neuer Markt of the Frankfurt Stock Exchange. Our common stock trades on The
NASDAQ SmallCap Market under the symbol "TMTV." The public offering price for
the common stock offered pursuant to this prospectus will be based on the
average closing share price of our shares of common stock on The NASDAQ SmallCap
Market as well as certain other exchanges, during the 10 trading days
immediately prior to the date the price is determined.
See "Risk Factors" beginning on page 10 to read about certain factors you
should consider before buying shares of the common stock.
-------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY OTHER REGULATORY BODY HAS
APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
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<CAPTION>
PER SHARE TOTAL
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<S> <C> <C>
Initial public offering price...............................
Underwriting discount.......................................
Proceeds, before expenses, to us............................
Proceeds, before expenses, to the selling shareholder.......
</TABLE>
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The underwriters expect to deliver the shares against payment in
, Germany on , 1999.
-------------------------
GONTARD & METALLBANK
AKTIENGESCELLSBHAFT
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<S> <C> <C>
DELBRUCK & CO. FURST FUGGER VEM VIRTUELLES
PRIVATBANKIERS PRIVATBANK KG EMISSIONSHAUS AG
</TABLE>
Prospectus dated November , 1999.
<PAGE> 3
NO DEALER, SALESPERSON OR OTHER PERSON IS AUTHORIZED TO GIVE ANY
INFORMATION OR TO REPRESENT ANYTHING NOT CONTAINED IN THIS PROSPECTUS. YOU MUST
NOT RELY ON ANY UNAUTHORIZED INFORMATION OR REPRESENTATIONS. THIS PROSPECTUS IS
AN OFFER TO SELL ONLY THE SHARES OFFERED HEREBY, BUT ONLY UNDER CIRCUMSTANCES
AND IN JURISDICTIONS WHERE IT IS LAWFUL TO DO SO. THE INFORMATION CONTAINED IN
THIS PROSPECTUS IS CURRENT ONLY AS OF ITS DATE.
------------------------
TABLE OF CONTENTS
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PAGE
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General Information......................................... 2
Presentation of Financial Information....................... 3
Prospectus Summary.......................................... 4
The Offering................................................ 6
Summary of Financial Information............................ 9
Risk Factors................................................ 10
Note Regarding Forward-Looking Statements................... 16
Use of Proceeds............................................. 16
Dividend Policy............................................. 17
Selected Consolidated Financial Data........................ 18
Unaudited Pro Forma Consolidated Financial Information for
Acquisition of
Dandelion Distribution Ltd................................ 19
Management's Discussion and Analysis of Financial Condition
and Results of Operations................................. 24
Business.................................................... 30
Management.................................................. 37
Certain Relationships and Related Transactions.............. 41
Stock Option Plans.......................................... 43
Principal and Selling Shareholders.......................... 45
Description of Capital Stock and Other Securities........... 46
Shares Eligible for Future Sale............................. 50
The German Equity Market.................................... 51
German Tax Matters.......................................... 52
Certain United States Federal Income Tax Consequences to
Non-United States Holders................................. 53
Statutory Information....................................... 56
Legal Matters............................................... 56
Experts..................................................... 56
Underwriting................................................ 57
Index to Consolidated Financial Statements of Team
Communications Group, Inc. ............................... F-1
Index to the Financial Statements of Dandelion Distribution
Ltd. ..................................................... F-21
</TABLE>
THROUGH AND INCLUDING , 1999 (THE 25TH DAY AFTER THE DATE OF
THIS PROSPECTUS), ALL DEALERS EFFECTING TRANSACTIONS IN THESE SECURITIES IN THE
UNITED STATES, WHETHER OR NOT PARTICIPATING IN THIS OFFERING, MAY BE REQUIRED TO
DELIVER A PROSPECTUS. THIS IS IN ADDITION TO A DEALER'S OBLIGATION TO DELIVER A
PROSPECTUS WHEN ACTING AS AN UNDERWRITER AND WITH RESPECT TO AN UNSOLD ALLOTMENT
OR SUBSCRIPTION.
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GENERAL INFORMATION
RESPONSIBILITY FOR THE CONTENTS OF THIS PROSPECTUS
We, together with the underwriters Gontard & MetallBank AG, Frankfurt am
Main, Delbruck & Co. Privatbankiers, Furst Fugger Privatbank KG and VEM
Virtuelles Emissionshaus AG, undertake, pursuant to sec. 13 of the German
Securities Trading Act (Verkaufsprospektgesetz), and in conjunction with
sec.sec. 45, 77 of the German Stock Exchange Act (Borsengesetz), responsibility
for the contents of this prospectus and hereby state that, to the best of our
knowledge, the information contained in this prospectus is correct and no
material information has been omitted. In making an investment decision, you
must rely on your own examination of our company and the terms of this offering,
including the merits and risks involved. See "Business" and "Risk Factors."
Pursuant to sec. 10 of the German Securities Prospectus Act, this
prospectus will be published on a preliminary basis and will be supplemented in
the future. The supplements and any terms of the offer that have been omitted in
this prospectus will be published in Germany in conformity with the provisions
of the German Securities Prospectus Act. The company report
(Unternehmensbericht), on the basis of which we seek admission of our shares of
common stock to the Frankfurt Stock Exchange's regulated market (Geregelter
Markt) with trading on the Neuer Markt, will also be published in supplemented
form after admission of the shares to exchange trading in the Federal Republic
of Germany.
AVAILABILITY OF DOCUMENTS FOR INSPECTION
Certain documents we refer to in this prospectus as well as future annual
and interim reports we prepare may be inspected during customary business hours
at our offices at 12300 Wilshire Boulevard, Suite 400, Los Angeles, California
90025, U.S.A., as well as at the offices of Gontard & MetallBank AG,
Flughafenstrasse 21, 63263 Neu Isenburg, Germany.
We filed with the Securities and Exchange Commission a registration
statement on Form SB-2 under the Securities Act of 1933 for the shares of common
stock in this offering. This prospectus does not contain all of the information
in the registration statement and the exhibits and schedule that were filed with
the registration statement. For further information with respect to our company
and our common stock, we refer you to the registration statement and the
exhibits and schedule that were filed with the registration statement.
Statements contained in this prospectus about the contents of any contract or
any other document that is filed as an exhibit to the registration statement are
not necessarily complete, and we refer you to the full text of the contract or
other document filed as an exhibit to the registration statement. A copy of the
registration statement and the exhibits and schedule that were filed with the
registration statement may be inspected without charge at the public reference
facilities maintained by the Securities and Exchange Commission in Room 1024,
450 Fifth Street, N.W., Washington, D.C. 20549, and copies of all or any part of
the registration statement may be obtained from the Securities and Exchange
Commission upon payment of the prescribed fee. The Securities and Exchange
Commission maintains a website that contains reports, proxy statements and other
information regarding registrants that filed electronically with the Securities
and Exchange Commission. The address of the site is http://www.sec.gov.
We are subject to the information and periodic reporting requirements of
the Securities Exchange Act of 1934, and, in accordance with the requirements of
the Securities Exchange Act of 1934, file periodic reports, proxy statements and
other information with the Securities and Exchange Commission. These periodic
reports, proxy statements and other information are available for inspection and
copying at the regional offices, public reference facilities and website of the
Securities and Exchange Commission referred to above.
SUBJECT OF THIS OFFERING CIRCULAR
This prospectus has been filed with the Securities and Exchange Commission.
In the Federal Republic of Germany, this prospectus has been filed with the
Frankfurt Stock Exchange (FSE) and will serve (i) as a preliminary sales
prospectus (unvollstandiger Verkaufsprospekt) in relation to the sale of the
6,000,000 shares being offered by us and the 150,000 shares being offered hereby
by the selling shareholder, and (ii) as a listing prospectus
(Unternehmensbericht) in relation to our entire issued and outstanding share
capital being 12,979,138 shares of common stock issued and outstanding after the
issuance of the 6,000,000 new shares offered hereunder and 3,042,384 shares of
common stock reserved for issuance upon the exercise of warrants, the conversion
of convertible debt instruments and the exercise of options granted to our
officers, directors, employees and consultants. The shares we are offering are
issued pursuant to a resolution of our board of directors, approved on October
8, 1999, as supplemented on November , 1999. Our current shareholders
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have no preemptive or other subscription rights to the newly issued shares. See
"Description of Capital Stock."
Neither we, the selling shareholder, nor the underwriters have taken, or
will take any action in any jurisdiction other than Germany and the United
States of America that would permit a public offering of the shares or
possession or distribution of a prospectus in any jurisdiction where action for
that purpose is required. We, the selling shareholder and the underwriters
request that if this prospectus comes into your possession, you will acknowledge
these restrictions, and inform yourself about and observe any and all such
restrictions as to the offering and the distribution of this prospectus.
PRESENTATION OF FINANCIAL INFORMATION
Unless otherwise indicated, any reference in this prospectus to the
"Consolidated Financial Statements" refers to our consolidated financial
statements, including the notes thereto, for the years ended December 31, 1998,
1997 and 1996, audited by Stonefield Josephson, Inc., 1620 26th Street, Suite
400 South, Santa Monica, California 90404-4041. The Consolidated Financial
Statements contained in this prospectus have been prepared in accordance with
United States generally accepted accounting principles ("U.S. GAAP") with the
United States dollar as the functional currency. Unless otherwise indicated
herein, all information included in this prospectus refers to TEAM
Communications Group, Inc., and its subsidiaries on a consolidated basis and has
been presented in accordance with U.S. GAAP. Our fiscal year ends on December
31, and references in this prospectus to any specific fiscal year are to the
twelve-month period ended December 31 of such year.
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<PAGE> 6
PROSPECTUS SUMMARY
This summary highlights selected information contained elsewhere in this
prospectus. This summary does not contain all the information that you should
consider before investing in the common stock. You should read the entire
prospectus carefully, including "Risk Factors" and the Consolidated Financial
Statements, before making an investment decision.
We develop, produce and distribute a variety of television programming,
including dramatic and reality-based series, specials and made-for-television
movies for exploitation in the domestic and international television markets. We
derive substantially all of our revenues from the exploitation of our originally
produced programs and product acquired from others.
Our production activities are focused on programming produced for United
States cable and network television channels such as The Discovery Channel, The
Family Channel, Showtime Networks and USA Network. We have received a firm
commitment, subject to certain financing considerations, from Discovery's Animal
Planet for the initial production of 13 one-hour drama episodes of "The Call of
the Wild," based on Jack London's classic novel. The series began pre-production
in July 1999 with our Canadian production partner. Delivery is expected to take
place from December 1999 through February 2000. We are also developing and
producing "Destination Style" for Discovery's Travel Channel, "Conversations
with Remarkable People" for the Wisdom Network (a new US basic cable network),
and "Robin Leach's Wildlife Styles." In March 1999, our co-production of 22
episodes of Total Recall 2070, a television series based on the hit movie "Total
Recall," began to air on Showtime Networks. We, along with Alliance Atlantis,
our co-financing partner, have extended the period of time pursuant to which
Showtime Networks must make a decision to order a second season. We are
currently negotiating with Alliance Atlantis to produce a second season either
for Showtime Networks, or directly for first run syndication.
We have also completed production of a series of 48 half-hour episodes
entitled "Amazing Tails," a reality based series focusing on extraordinary pets,
which has been financed in conjunction with Friskies Pet Foods, a division of
Nestles Food, and advertising leader The Interpublic Group of Companies. All
episodes of Amazing Tales have been produced and delivered, and the series is
currently airing on Discovery's Animal Planet. In addition, we co-developed and
co-produced a reality based five-day per week ("strip") syndicated series,
called "Strange Universe," with United/Chris-Craft television stations and
Rysher Entertainment. This series, which aired on United/Chris-Craft stations,
involved the production of 130 episodes over its two, thirteen week commitments.
We maintain a development and production department which develops and
produces movies-of-the-week, drama and reality-based series for exhibition on
network television, cable or ad hoc networks of independent stations which
sometimes form to air special programming. We also currently have distribution
rights to approximately 2,500 hours of family, dramatic and reality-based series
and specials, and films.
RECENT EVENTS AND OUTLOOK
We are currently in discussions with a number of distribution and
production companies regarding possible business combinations. As of October 1,
1999, we completed the purchase of Dandelion Distribution Ltd., a 20 year old
United Kingdom ("UK") based television production and distribution company, for
$5,000,000 in cash and common stock. Dandelion Distribution Ltd., has over 2,000
hours of television programming in its library.
To address our short term financing needs, we have raised approximately
$12,250,000 since July 1999. This amount includes:
- $350,000 pursuant to the sale to 3 investors of 12% debentures and
warrants to purchase up to 35,000 shares of our common stock;
- $1,200,000 pursuant to a secured loan from Value Management & Research
A.G. ("VMR");
- $4,000,000 pursuant to a loan from Hudson Investors, LLC, which matures
on November 30, 2002 and accrues interest at the rate of 12% per year.
Hudson Investors, LLC has the right to convert any outstanding balance on
its promissory note into equity after November 30, 1999. Hudson
Investors, LLC also received 340,000 warrants as part of the financing.
From the Hudson Investors, LLC loan, VMR was repaid $1,000,000 of its
loan;
- $6,000,000 from Gontard & MetallBank AG, $2,000,000 from the sale of
500,000 shares of our common stock and $4,000,000 pursuant to a loan that
matures on the earlier of completion of this
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offering or December 31, 1999 and accrues interest at 10% per year.
$2,500,000 of these proceeds was used to fund the cash portion of the
Dandelion acquisition and $200,000 was used to repay the remaining
balance of the VMR loan; and
- $700,000 from the sale of 175,000 shares of our common stock to Arbora
Vermogensverwaltungen AG, an existing shareholder.
We continue to fulfill the increased demand for programming by implementing
our growth strategies, including strategic acquisitions of production and
distribution companies in the U.S. and Europe, acquisition of programming
libraries and development and production of our original television programming
for the domestic and international markets.
Our address is 12300 Wilshire Boulevard, Suite 400, Los Angeles, California
90025, and our telephone number is (310) 442-3500.
5
<PAGE> 8
THE OFFERING
SHARES OFFERED
Shares offered pursuant to this prospectus include 6,150,000 shares of our
common stock, 6,000,000 shares of which to be newly issued by us for the
purposes of this offering and 150,000 shares of which are sold by the selling
shareholder. For further details see "Underwriting."
PREFERENTIAL ALLOTMENT
At our request, the underwriters have reserved up to 10 percent of the
shares of common stock offered (excluding the shares being sold by the selling
shareholder) for sale to directors, officers, employees, persons having business
relationships with us and related persons at the public offering price. The
number of shares available for sale to other investors will be reduced to the
extent these persons purchase such reserved shares. For further details see
"Underwriting."
UNDERWRITERS
The shares to be offered pursuant to this prospectus will initially be
purchased by Gontard & MetallBank AG for the account of the underwriters. See
"Underwriting."
PUBLIC OFFERING PRICE AND NUMBER OF SHARES ALLOTTED
It is currently expected that the period of time within which investors may
offer to purchase shares will be from November 23, 1999 to November 25, 1999,
subject to abbreviation in the discretion of the underwriters. The purchase
price per share payable by investors is currently expected to be fixed by the
underwriters together with us on November 25, 1999, and to be published in the
Borsen Zeitung on November 26, 1999. Such final purchase price will be
determined on the basis of the average closing share price of our shares of
common stock on The NASDAQ SmallCap Market and on the German over-the-counter
markets (Freiverkehr) in Frankfurt am Main, Berlin and Munich of the ten trading
days immediately prior to and including November 22, 1999. See "Underwriting"
for more details. It is currently expected that from November 29, 1999,
investors who placed orders with an underwriter may enquire from such
underwriter the number of shares allotted.
DELIVERY OF SHARES, PAYMENTS, CLEARING AND TRANSFERABILITY OF SHARES
It is currently expected that the purchase price for shares offered will be
payable by investors on November 30, 1999, against delivery of such allotted
shares in book entry form. The share certificates representing the offered
shares will be deposited by us and the selling shareholder, respectively, with
The Depository Trust Company of New York. The Depository Trust Company's
nominee, Cede & Co., will be the registered owner of such shares. At the closing
of the offering, The Depository Trust Company will electronically deposit the
offered shares in the account of Deutsche Borse Clearing AG with The Depository
Trust Company in book entry form for the benefit of Gontard & MetallBank AG
acting for the account of the underwriters, and Gontard & MetallBank AG will
thereby acquire beneficial ownership of the shares. Thereafter, Gontard &
MetallBank AG will electronically transfer, in book entry form, beneficial
ownership of the shares to the purchasers of the shares through their brokers
and other financial institutions that are Deutsche Borse Clearing AG
participants. Deutsche Borse Clearing AG will not hold any certificates for
common stock. Certificates representing shares of common stock held through
Deutsche Borse Clearing AG will not be issued unless such shares are withdrawn
from Deutsche Borse Clearing AG, in which case the shares will not be eligible
to trade on a German exchange unless such shares are re-deposited with The
Depository Trust Company for credit to Deutsche Borse Clearing AG's account with
The Depository Trust Company.
Shares transferred from The Depository Trust Company to Deutsche Borse
Clearing AG may be freely transferred among market participants through the
Deutsche Borse Clearing AG clearing system. The shares to be offered and listed
for trading on the Frankfurt Stock Exchange's Neuer Markt are registered shares
(Namensaktien). Accordingly, shareholders holding share certificates who desire
to transfer their shares outside The Depository Trust Company/Deutsche Borse
Clearing AG clearing system may effect the transfer by submitting such shares to
our transfer agent, and the transfer agent will issue a new certificate in the
name of the transferee. If shareholders holding share certificates wish to
transfer their shares to The Depository Trust Company/Deutsche Borse Clearing AG
clearing system, the shareholders must submit their share certificates to our
transfer agent, and the transfer agent will register the shares in the name of
Cede & Co.
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These shares will be credited to the account of Deutsche Borse Clearing AG at
The Depository Trust Company. Upon registration of the shares with The
Depository Trust Company for the benefit of Deutsche Borse Clearing AG and
fulfillment of any other requirements of The Depository Trust Company or
Deutsche Borse Clearing AG, beneficial ownership of the shares may be
transferred to participants of Deutsche Borse Clearing AG system.
TRANSFER AGENT, REGISTRAR AND PAYING AGENT
Our shares of common stock will be registered and transferred via a
transfer agent in the United States who will register the offered shares with
Cede & Co. The name of this U.S. transfer agent and registrar is U.S. Stock
Transfer Corporation. Gontard & MetallBank AG, Frankfurt am Main will act as the
paying agent in Germany.
NOTICES
We will publish notices to shareholders in Germany in the German Federal
Gazette (Bundesanzeiger) and in at least one supra-regional newspaper approved
by the Frankfurt Stock Exchange.
VOTING RIGHTS
Each share of common stock entitles its holder to one vote at all of our
shareholders' meetings.
Neither Cede & Co. as the registered owner of the shares of common stock
being offered hereunder, nor The Depositary Trust Company, will exercise any
voting rights connected to such shares. Pursuant to the procedures generally
applied by The Depositary Trust Company, The Depositary Trust Company will
provide an omnibus proxy to us after each date on which our shareholders are
identified for the purposes of assessing the shareholders eligible to vote at
our shareholders' meetings. Insofar as shares of common stock are held through
the clearing system of Deutsche Borse Clearing AG, such proxy will be for the
benefit of Deutsche Borse Clearing AG who will inform the beneficial owners of
shares held through Deutsche Borse Clearing AG via the respective Deutsche Borse
Clearing AG participants. Deutsche Borse Clearing AG will exercise voting rights
pursuant to the instructions of the beneficial owners of the shares and its
general business conditions. You should contact your securities account-carrying
bank or broker to inquire any fees that may be charged for the services rendered
to you by such account-carrier in connection with your voting rights.
DIVIDEND RIGHTS
Each of the holders of the shares offered hereby will be eligible to
receive dividends if and when declared by our Board of Directors. To date, we
have not paid cash dividends on our shares of common stock. We intend to retain
future earnings to fund growth of our business and do not anticipate paying any
cash dividends on shares of common stock in the foreseeable future. (See
"Dividend Policy")
Dividends, if any, or any other payments to shareholders who hold shares of
common stock through the clearing system of Deutsche Borse Clearing AG will
initially be paid by us to Cede & Co. as The Depositary Trust Company's nominee.
The Depositary Trust Company will credit such amounts to an account of Deutsche
Borse Clearing AG with The Depository Trust Company who will then distribute
such payments to the beneficial owners who hold shares of common stock with
participants of Deutsche Borse Clearing AG. Payments of The Depository Trust
Company and Deutsche Borse Clearing AG are subject to the decrees, procedures
and laws in effect at the time of the respective payment. Our dividends would be
paid in US dollars. Participants of Deutsche Borse Clearing AG may elect to
receive dividends and other payments on the shares either in US dollars or
Euros. You should contact your securities account-carrying bank or broker to
inquire any fees that may be charged by such account-carrier for the
distribution of our dividends or other payments to you.
FISCAL YEAR
Our fiscal year is the calendar year.
STOCK EXCHANGE LISTING
In connection with this offering, application has been made for the
admission of the entirety of our issued shares of common stock to the Regulated
Market with trading on the Neuer Markt of the Frankfurt Stock Exchange. It is
currently expected that the admission will take place on November 26, 1999. The
first day on which the offered shares will be quoted on the Neuer Markt is
currently expected to be November 29, 1999. In
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addition, our shares of common stock are currently traded on The Nasdaq SmallCap
Market under the symbol "TMTV."
SECURITIES IDENTIFICATION CODES
The German securities identification code (WKN) for our shares is 917002,
the international securities identification number (ISIN) for our shares is US
87815F 1084.
TRADING SYMBOL FOR THE NEUER MARKT
The expected trading symbol for the Neuer Markt is "TME."
DESIGNATED SPONSORS FOR THE NEUER MARKT
Gontard & MetallBank AG and Concord Effekten AG have been retained by us to
act as "designated sponsors" for the shares on the Neuer Markt. See "The German
Securities Market."
SHARE DATA
<TABLE>
<S> <C>
Number of shares outstanding as of November 10, 1999........ 6,979,138(1)(2)
Number of shares to be registered pursuant to this 6,000,000
offering....................................................
----------
Total number of shares outstanding.......................... 12,979,138
==========
</TABLE>
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(1) Does not include shares issuable upon exercise of warrants, options or
convertible debt.
(2) Does include up to 170,000 shares which may be issued in connection
with the acquisition of the Film Libraries, Inc.'s library. See
"Business -- Distributions."
USE OF PROCEEDS
We intend to use the proceeds from this offering for general corporate
purposes, principally working capital and capital expenditures, as well as for
the repayment of approximately $9,400,000 of outstanding loans, including
accrued interest, net of discounts. In addition, we may use a portion of the net
proceeds to acquire complementary products or businesses at some time in the
future. Pending use of the net proceeds of this offering, we intend to invest
the net proceeds in interest-bearing, investment-grade securities. We will not
receive any proceeds from the sale of the shares being sold by the selling
shareholder.
------------------------------------
Neither we, the selling shareholder, nor the underwriters have taken, or
will take any action in any jurisdiction other than the Federal Republic of
Germany and the United States of America that would permit a public offering of
the shares or possession or distribution of a prospectus in any jurisdiction
where action for that purpose is required. No person has been authorized to give
any information or to make any representation other than those contained in this
prospectus, and, if given or made, such information or representation must not
be relied upon as having been authorized.
This prospectus has not been approved as an investment advertisement
pursuant to Section 57 of the Financial Services Act 1986 and may not be issued
or passed on in the UK except to a person who is of the kind described in
Article 11(3) of the Financial Services Act (Investment Advertisements)
(Exemptions) Order 1996 (as amended), or is a person to whom the prospectus may
otherwise lawfully be issued or passed on.
8
<PAGE> 11
SUMMARY OF FINANCIAL INFORMATION
<TABLE>
<CAPTION>
FOR THE NINE MONTHS ENDED FOR THE FOR THE FOR THE
----------------------------- YEAR ENDED YEAR ENDED YEAR ENDED
SEPTEMBER 30, SEPTEMBER 30, DECEMBER 31, DECEMBER 31, DECEMBER 31,
1999 1998 1998 1997 1996
------------- ------------- ------------ ------------ ------------
(UNAUDITED) (UNAUDITED)
<S> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Revenues......................................... $13,273,300 $9,466,800 $13,581,900 $6,875,600 $5,749,800
Cost of revenues................................. 6,056,300 5,884,500 9,076,000 2,355,300 2,895,900
----------- ---------- ----------- ---------- ----------
Gross profit..................................... 7,217,000 3,582,300 4,505,900 4,520,300 2,853,900
General and administrative expenses.............. 3,771,700 2,234,100 3,274,000 3,244,900 2,323,800
----------- ---------- ----------- ---------- ----------
Net income from operations....................... 3,445,300 1,348,200 1,231,900 1,275,400 530,100
Interest expense................................. 477,900 768,400 902,600 1,040,100 677,700
Interest income.................................. 87,300 136,000 202,900 211,800 58,300
Other income..................................... -- -- -- -- 90,100
----------- ---------- ----------- ---------- ----------
Net income before income taxes................... 3,054,700 715,800 532,200 447,100 800
Provision for income taxes....................... 1,149,900 60,500 57,500 -- --
Extraordinary loss from early extinguishment of
debt........................................... 431,900 -- 69,500 -- --
----------- ---------- ----------- ---------- ----------
Net income....................................... $ 1,472,900 $ 655,300 $ 405,200 $ 447,100 $ 800
=========== ========== =========== ========== ==========
Net income per common share basic(1)............. $ .35 $ 0.43 $ 0.22 $ 0.40 $ --
=========== ========== =========== ========== ==========
Weighted average number of shares outstanding
basic(1)....................................... 4,198,176 1,506,672 1,833,340 1,131,344 1,131,344
=========== ========== =========== ========== ==========
Net income per common share diluted(1)........... $ .29 $ 0.30 $ 0.17 $ 0.25 $ --
=========== ========== =========== ========== ==========
Weighted average number of shares outstanding
diluted(1)..................................... 4,986,711 2,197,128 2,434,017 1,821,800 1,821,800
=========== ========== =========== ========== ==========
</TABLE>
<TABLE>
<CAPTION>
SEPTEMBER 30, 1999
-----------------------------------------------
AS FURTHER
ACTUAL AS ADJUSTED(2) ADJUSTED(3)
----------- -------------- --------------
<S> <C> <C> <C>
BALANCE SHEET DATA:
Liquidity capital (deficit)(4).............................. $(1,137,500) $(1,137,500) $ --
Total assets................................................ 35,117,700 38,220,700 --
Notes payable............................................... 4,387,200 8,187,200 --
Line of credit.............................................. 697,000 -- --
Accrued interest............................................ 324,200 324,200 --
Retained earnings........................................... 1,293,500 1,293,500 --
Shareholders' equity........................................ 17,441,300 17,441,300 --
</TABLE>
- ---------------
(1) See Note 2 of Notes to Consolidated Financial Statements for information
regarding the calculation of net income per share.
(2) The "As Adjusted" column reflects: (i) proceeds of $4,000,000 from the
bridge financing with Gontard & MetallBank AG; and (ii) the repayment of
$697,000 on the line of credit and $200,000 in notes payable.
(3) The "As Further Adjusted" column reflects the adjustments described in (2)
above and the use of the estimated net proceeds from the issuance of common
stock in this offering, see "Use of Proceeds."
(4) Represents (i) cash and cash equivalents plus accounts receivables (net),
and the amount due from officer, less (ii) accounts payable, accrued
expenses and other liabilities, deferred revenue, accrued participations,
notes payable (due within one year), line of credit, and accrued interest.
9
<PAGE> 12
RISK FACTORS
You should consider carefully the following risk factors and all other
information contained in this prospectus before purchasing our common stock.
Investing in our common stock involves a high degree of risk. Additional risks
and uncertainties that are not yet identified or that we currently think are
immaterial may also materially adversely affect our business and financial
condition in the future.
GOING CONCERN ASSUMPTION.
Contained in the independent accountants' report included in our financial
statements for each of the fiscal years since our formation, and included in the
footnotes to the unaudited financial statements for the nine months ended
September 30, 1999, is an explanatory paragraph indicating that our financial
condition raises substantial doubt as to our ability to continue as a going
concern. There can be no assurance that future financial statements will not
include a similar explanatory paragraph if we remain unable to raise enough
money or generate sufficient cash flow from operations to cover the cost of
running our business. The existence of such an explanatory paragraph may have a
material adverse effect on our relationship with third parties who are concerned
about our ability to complete projects that we are contractually required to
develop or produce, and could also negatively impact our ability to complete
future financings.
WE HAVE A LIMITED OPERATING HISTORY THAT MAKES AN EVALUATION OF OUR BUSINESS
DIFFICULT.
We were incorporated in February 1995, and have a limited operating
history. Although we have generated profitable operations during each of the
fiscal years ended December 31, 1998, 1997 and 1996, and for the nine months
ended September 30, 1999, we have experienced a negative cash flow from
operations during such periods. We can not assure you that we will continue to
be profitable in the foreseeable future or that we will be able to generate
positive cash flow from our operations. Our business plan is subject to all the
risks associated with starting a new business, including operating losses. In
addition, we will be subject to certain factors affecting the entertainment
industry generally, such as:
- sensitivity to general economic conditions;
- critical acceptance of our products; and
- intense competition.
The likelihood of our success must be considered in light of the problems,
expenses, difficulties, complications and delays frequently encountered in
connection with the formation of a new business.
LIQUIDITY DEFICIT.
As of September 30, 1999, we had retained earnings of $1,293,500 and a
liquidity deficit of ($1,137,500). Liquidity deficit is defined as:
- cash and cash equivalents plus accounts receivable (net), and the amount
due from officer, less
- accounts payable, accrued expenses and other liabilities, deferred
revenue, accrued participations, notes payable (due within one year),
line of credit, and accrued interest.
See "Risk Factors -- Need for additional capital, dilution and no assurance
of future financings," "Management's Discussion and Analysis of Financial
Condition and Results of Operations -- Liquidity and Capital Resources" and Note
12 of Notes to Consolidated Financial Statements.
OUR RELIANCE ON CERTAIN CUSTOMERS AND OUR ALLOWANCES FOR POSSIBLE UNCOLLECTIBLE
RECEIVABLES.
As of September 30, 1999, we had $10,936,700 in receivables. As of December
31, 1998, we had receivables of $4,736,700, of which $3,200,000 has been
collected as of September 30, 1999. Of our $10,936,700 in receivables,
approximately $9,100,000, or 83% is due within the next twelve months. To cover
the possibility that one or more of our customers could fail to pay monies due
to us, we currently maintain an allowance for doubtful accounts of approximately
$837,000. If we are required to make an additional allowance for these
receivables, our results of operations and financial condition in future periods
could be adversely affected.
As of September 30, 1999, receivables from three customers represented
approximately 88% of our trade receivable balance. These customers are Stellar
Group (13%), Renown Pictures Ltd (26%), and String of Pearls PLC (49%). All of
these customers are current with respect to their obligations to us. See
"Certain Relationships and Related Transactions." Although all of these entities
are privately held companies, we believe that each of the licensees are
reasonable credit risks. However, the failure to pay the amounts owed by any of
these entities could lead to the write-off of the applicable receivable. Such a
write-off would have a material adverse impact on our results.
10
<PAGE> 13
NEED FOR ADDITIONAL CAPITAL, DILUTION AND NO ASSURANCE OF FUTURE FINANCINGS.
The entertainment industry is highly capital intensive. Despite our initial
public offering, our operations have been hurt by ongoing capital shortages
caused by a slowness in collecting receivables and the inability to complete a
long term banking relationship. To address our short term financing needs, we
raised approximately $12,250,000 since July 1999. This amount includes:
- $350,000 pursuant to the sale to 3 investors of 12% debentures and
warrants to purchase up to 35,000 shares of our common stock;
- $1,200,000 pursuant to a secured loan from VMR;
- $4,000,000 pursuant to a loan from Hudson Investors, LLC, which matures
on November 30, 2002 and accrues interest at the rate of 12% per year.
Hudson Investors, LLC has the right to convert any outstanding balance on
its promissory note into equity after November 30, 1999. Hudson
Investors, LLC also received 340,000 warrants as part of the financing.
From the Hudson Investors, LLC loan, VMR was repaid $1,000,000 of its
loan;
- $6,000,000 from Gontard & MetallBank AG, $2,000,000 from the sale of
500,000 shares of our common stock and $4,000,000 pursuant to a loan that
matures on the earlier of the completion of this offering or December 31,
1999 and accrues interest at 10% per year. $2,500,000 of these proceeds
was used to fund the cash portion of the acquisition of Dandelion and
$200,000 was used to repay the remaining balance of the VMR loan; and
- $700,000 from the sale of 175,000 shares of our common stock to Arbora
Vermogensverwaltungen AG, an existing shareholder.
These financings in general, and the convertible debt financing in
particular, are dilutive to our shareholders.
Despite the dilutive nature of these financings, we believe that completing
these offerings was critical to our short term financial needs. As of November
15, 1999 we had indebtedness and related accrued interest of $9,361,000,
including notes in the principal amount of $4,929,000, which mature within one
year.
Based on our current resources of cash, accounts receivable, available
credit line, and our recent financings, we will be able to operate at current
expenditure levels through March 31, 2000.
If this offering is not completed and additional financing is not
available, we will be required to:
- reduce or suspend our operations;
- seek an acquisition partner; or
- try other ways to sell securities (on terms that may be highly dilutive
or otherwise disadvantageous to current shareholders).
In an effort to preserve cash resources, we have issued common stock and
warrants to financial consultants rather than hire internal staff. To the extent
option grants are below the current market price, we must record this as an
additional expense in our general and administrative expense, even though no
cost has been expended. These transactions are dilutive to existing
shareholders.
See "Management's Discussion and Analysis of Financial Condition and
Results of Operations -- Liquidity and Capital Resources" and Note 12 of Notes
to Consolidated Financial Statements.
WE MAY BE UNABLE TO MEET OUR FUTURE CAPITAL REQUIREMENTS.
We expect the net proceeds from this offering, cash on hand, cash
equivalents and commercial credit facilities to meet our working capital and
capital expenditure needs for the foreseeable future. To continue our expansion,
we may need to raise additional funds, and we cannot be certain that we would be
able to obtain additional financing on favorable terms, if at all. Further, if
we issue equity securities, shareholders will have no pre-emptive rights to such
newly issued equity securities and may experience additional dilution. The new
equity securities may have rights, preferences or privileges senior to those of
existing holders of common stock. If we cannot raise required funds on
acceptable terms, we may not be able to develop or enhance our products, take
advantage of future opportunities or respond to competitive pressures or
unanticipated requirements, which could harm our business, financial condition
and results of operations.
11
<PAGE> 14
OUR DEPENDENCE ON EMERGING MARKETS AND ON FOREIGN SALES; FOREIGN EXCHANGE RISKS.
A considerable portion of our revenues are, and for the foreseeable future
will most likely be, derived from the sale or license of our products to
recently established U.S. broadcasters, cable networks and syndicators such as:
- The Discovery Channel;
- Discovery's Animal Planet;
- The Learning Channel;
- The Travel Channel;
- The Fox Family Channel;
- the WB Network; and
- Showtime Network.
In addition to these, a portion of our revenues are dependent on sales to
licensees and distributors in foreign markets, including South and Latin America
and, to an increasing extent, Europe. Collecting receivables from these
customers is subject to the risks associated with doing business with foreign
companies including rapid changes in the political and economic climates of such
countries and limitations on the transferability of monies out of such
countries. If we become involved in a long term dispute over how our product is
being distributed in a foreign country, or are forced to initiate collection
activities to enforce the terms of a license or distribution agreement, the
profitability of any particular product may be adversely effected.
As of September 30, 1999, substantially all of our receivables are trade
receivables from entities domiciled outside the U.S. These receivables, totaling
$10,936,700, represent 100% of all trade receivables and 31% of our total
assets. Any difficulty or delay in the collection of these receivables or any
write-off of such receivables could have a material adverse effect on our
financial condition or results of operations. See "Risk Factors -- Our reliance
on certain customers and our allowances for possible uncollectible receivables."
Changes in international economic conditions may impact our future sales and
collections.
Our international operations expose us to risks associated with currency
fluctuations. Insofar as our international revenues are denominated in foreign
currencies, an appreciation of the U.S. dollar relative to these foreign
currencies could adversely affect our results of operations. To the extent that
our international revenues are denominated in U.S. dollars, an appreciation of
the U.S. dollar increases the price of our products in foreign countries and may
cause our customers and potential customers difficulties in paying U.S. dollar
amounts due to us or may keep them from licensing our products.
The operating expenses of our subsidiaries Team Entertainment Germany GmbH
and Team Dandelion Ltd., will be incurred in Deutsche Marks and British Pounds,
respectively. The value of the Deutsche Mark is tied to the value of the Euro.
Appreciation of the Euro or the British Pound relative to the U.S. dollar could
adversely affect our results of operations. Even when foreign currency expenses
substantially offset revenues in the same currency, profits may be diminished
when reported in U.S. dollars. Due to the constantly changing currency exposures
and the volatility of currency exchange rates, we could experience currency
losses in the future, and we cannot predict the effect of the exchange rate
fluctuations upon our future results of operations. To date, we have not engaged
in any foreign exchange hedging transactions to limit our exposure to the above-
described risks. If any of the risks associated with international operations
materialize, our business, financial condition and results of operations could
be materially adversely impacted.
LACK OF SALES ORGANIZATION
We currently rely on our own sales force for the distribution of our
products and are subject to the limitations inherent to a small organization
with limited personnel resources. We have undertaken and continue to undertake
efforts to increase our own sales force in the U.S. and in certain key markets
such as Germany and the United Kingdom. However, if we fail to further expand
our sales capabilities through organic growth or if we do not effectively
integrate sales organizations that we have acquired, we may not be able to
increase sales of our products and grow our revenues. These limitations could
have a material adverse effect on our business, financial condition and result
of operations.
12
<PAGE> 15
BUSINESS COMBINATIONS AND ACQUISITIONS.
We are currently in discussions with a number of distribution and
production companies regarding possible business combinations. No assurance can
be given that any such acquisitions will be consummated, even though we may
incur substantial costs related to such acquisitions. Even if such acquisitions
are consummated, there can be no assurance that we will manage to successfully
integrate and manage the acquired businesses.
As of October 1, 1999, we completed the purchase of Dandelion Distribution
Ltd., a UK based production and distribution company for $2,500,000 in cash and
386,847 shares of common stock. We may also be required to pay up to an
additional $250,000 if the shares of our common stock delivered as part of the
purchase price do not have a market value of at least $3,000,000 on October 1,
2001. See "Business -- Global Strategy." Even though the acquisition has been
completed, there can be no assurance that we will be successful in timely
integrating Dandelion into our operations or that they will remain profitable.
The failure to successfully integrate Dandelion or a lack of profitability of
Dandelion could have a material adverse impact on our financial condition and
results of operations.
COMPETITION.
The entertainment industry is highly competitive. We compete with many
entertainment organizations, who are all seeking, in varying degrees;
- the rights to literary properties;
- the services of creative and technical personnel;
- the financing for production of film and television projects; and
- favorable arrangements for the distribution of completed films and
television projects.
Virtually all of our competitors are substantially larger than we are, have
been in business longer than we have and have more resources at their disposal.
The entertainment industry is currently evolving into an industry in which
certain multi-national, multi-media entities, because of their control over key
film, magazine, and/or television content, as well as key network and cable
outlets, will be able to dominate certain communications industry activities in
the U.S. and abroad. These competitors have numerous competitive advantages,
including the ability to acquire financing for their projects and attract
superior properties, personnel, actors and/or celebrity hosts. Any further
concentration and consolidation of the entertainment industry may further weaken
our competitive position and may have a material adverse impact on our business,
financial condition and results of operations.
THE RISK THAT NOT ENOUGH EPISODES OF A SERIES WILL BE ORDERED TO ALLOW US TO
SYNDICATE THE SERIES.
There can be no assurance that once we commit to produce a series which has
been licensed to a network, that the network will order and broadcast enough
episodes so that we can syndicate the series in the U.S. Typically, there needs
to be at least 65 episodes of a series produced in order to "strip" or syndicate
the series in the daily re-run market. Networks can generally cancel a series at
stated intervals and, accordingly, do not commit in advance to exhibit a series
for more than a limited period. If a series is canceled before the minimum
number of shows necessary to syndicate or "strip" have been produced, there is
the risk that the production costs of the project will not be fully recovered.
Similar risks apply for a series produced for a non-network medium. See
"Business -- Operations" for a discussion of the financing of series.
We presently have a commitment of 13 episodes for Call of the Wild, and
have completed 22 episodes for Total Recall 2070, which is not enough episodes
to syndicate or "strip" these series in the U.S. on any kind of significant
basis. The syndication rights to Total Recall 2070, for which we are a profit
participant, are owned by Universal, by virtue of Universal's 1998 acquisition
of Polygram Filmed Entertainment. The show will be shown on a once a week
syndication basis in January 2000. If the show is not renewed, there may only be
one season in syndication, in which event we would not expect to receive
significant amounts relative to our profit interests.
FLUCTUATIONS IN OPERATING RESULTS.
Our revenues and results of operations are significantly dependent upon the
timing and success of the television programming we distribute, which cannot be
predicted with certainty. Revenues for any particular program may not be
recognized until the program is produced and available for delivery to the
licensee. Production delays may impact the timing of when revenues may be
recognized under generally accepted accounting principles. Significant sales of
our product take place at the industry's major selling markets, the most
important of which are MIP-TV and MIPCOM-TV (the International Film and Program
Market for TV, Video, Cable & Satellite) which take place in France in the
second and fourth quarters, respectively and
13
<PAGE> 16
NATPE, which takes place in the U.S. in January. Finally, production commitments
are typically obtained from networks in the spring (second quarter), although
production activity and delivery may not occur until later periods. We may
experience significant quarterly variations in our operations, and results in
any particular quarter may not be indicative of results in subsequent periods.
Such variations may lead to significant volatility of our share price.
Our results will also be affected by the allocation of revenue between
product we produce and own as compared to product which we distribute on behalf
of third party producers and for which we are paid a sales commission. In
addition, our margins are also affected by the age of the product which we
acquired from third parties or previously produced. Where we are paid a sales
commission, our expenses as a percentage of revenue will typically be higher,
and our margins lower, because we record as an expense the participations owing
to the copyright owners. Where we are exploiting product which we own outright
we do not record such expenses, and our margins will typically be higher. With
respect to sales of our own product, rather than recording a participation
expense, we record as an expense the amortization of our acquisition or
production costs, which amortization is typically recognized over several
financial reporting periods. Sales of older product owned by us, where
acquisition or production costs may be substantially or fully amortized, will
have significantly higher margins than initial sales on newer product where the
sales potential of the product has not been tested and we are incurring
significant production costs.
DEPENDENCE ON INTELLECTUAL PROPERTY RIGHTS AND RISK OF INFRINGEMENT OF THIRD
PARTY INTELLECTUAL PROPERTY RIGHTS.
Our business depends upon the protection of the intellectual property
rights that we have to our film properties. Despite our efforts to protect our
proprietary rights, unauthorized parties may attempt to copy or otherwise obtain
and exploit our products. Monitoring authorized use of our products is
difficult, and we cannot be certain that the steps we have taken will prevent
unauthorized use of our film properties, particularly in foreign countries where
the laws may not protect our proprietary rights as fully as in the U.S. and
Europe. If we cannot manage to obtain the copyrights of attractive film
properties, our business, financial condition and results of operations will be
adversely affected.
In recent years, there has been significant litigation in the U.S.
involving intellectual property rights. We may become party to litigation in the
future to protect our intellectual property rights or as a result of the alleged
infringement of other's intellectual property. These claims and any resulting
lawsuits could subject us to significant liability and invalidation of our
property rights. Such litigation could also force us to take measures harmful to
our operations, such as to stop selling certain products or to obtain a license
from the owner of infringed intellectual property. Any such infringement claims,
with or without merit, could be time-consuming to defend, result in costly
litigation, divert management's attention and materially adversely affect our
financial condition and results of operations.
THE SPECULATIVE NATURE OF THE ENTERTAINMENT BUSINESS.
Substantially all of our revenues are derived from the production and
distribution of television series and made-for-television movies. The
entertainment industry in general, and the development, production and
distribution of television programs, in particular, is highly speculative and
involves a substantial degree of risk. Since each project is an individual
artistic work and its commercial success is primarily determined by audience
reaction, which is volatile and unpredictable, there can be no assurance that
any entertainment property will make money. Even if a production is a critical
or artistic success, there is no assurance that it will be profitable. In
particular, to the extent that our product caters to the tastes of television
audiences in the U.S., our results may be affected by the inability to attract
audiences in our newly addressed markets, especially Europe. If we are unable to
attract productions which compete effectively in the global marketplace, our
financial condition and results of operations could be materially adversely
effected.
THE ABILITY TO MANAGE OUR GROWTH.
Subject to obtaining sufficient financing, we intend to pursue a strategy
which management believes may result in rapid growth. As our anticipated
development, production and distribution activities increase, it is essential
that we maintain effective controls and procedures regarding critical accounting
and budgeting areas. There can be no assurance that rapid growth will occur or
that, if such growth does occur, that we will be able to successfully manage
such expanded operations.
14
<PAGE> 17
WE DEPEND ON OUR KEY PERSONNEL TO MANAGE OUR BUSINESS EFFECTIVELY.
Our success depends largely upon the skills, experience and performance of
our executive officers and key employees. Our founder and Chief Executive
Officer, Mr. Drew S. Levin, is of particular importance to our U.S. operations.
In addition, we have recently managed to retain certain key personnel in Germany
and the United Kingdom to oversee our European operations. If we lose one or
more of our key employees without finding appropriate replacements or if we fail
to attract and retain highly skilled personnel, our financial condition and
results of operations could be materially adversely effected.
CAPITALIZATION OF DEVELOPMENT AND PRODUCTION COSTS.
Included in our assets as of September 30, 1999 and December 31, 1998 are
television program costs of approximately $2,242,000 and $1,017,400,
respectively, which represent aggregate costs of projects for which we are
actively pursuing production commitments, but which have not been set for
principal photography. We intend, as required by accounting standards, to write
off the costs of all development projects when they are abandoned or, even if
still being developed, if they have not been set for principal photography
within three years of their initial development activity. In this regard we
wrote down our development costs in the series LoCoMoTioN by approximately
$450,000 in the second quarter of 1999.
Under generally accepted accounting principals, we are required to
capitalize the costs of production. The costs of production are amortized over
the estimated revenue life of the product. Therefore, the success of our
programming, and the aggregate amount of sales with respect thereto, will affect
the amortization rate applicable to such productions. If our actual results are
less than projected, management will be required to revise sales estimates
downward, and accelerate the amortization of capitalized production costs.
PREFERRED STOCK; POSSIBLE ANTI-TAKEOVER EFFECTS OF CERTAIN CHARTER PROVISIONS.
Certain provisions of our Articles of Incorporation and Bylaws and certain
other contractual provisions could have the effect of making it more difficult
for a third party to acquire, or of discouraging a third party from attempting
to acquire control of us. Such provisions could limit the price that certain
investors might be willing to pay in the future for shares of our common stock.
Certain of these provisions allow us to issue preferred stock with rights senior
to those of the common stock without any further vote or action by the
shareholders, and impose various procedural and other requirements which could
make it more difficult for shareholders to affect certain corporate actions.
These provisions could also have the effect of delaying or preventing a change
in control. The issuance of preferred stock could decrease the amount of
earnings and assets available for distribution to the holders of our common
stock or could adversely affect the rights and powers, including voting rights,
of the holders of our common stock. Such issuance could have the effect of
decreasing the market price of our common stock.
VOLATILITY OF SHARE PRICE; LACK OF ACTIVE TRADING MARKET.
Our common stock has been listed on The NASDAQ SmallCap Market since July
29, 1998.
The market prices for securities of companies with limited operating
history, including us, have historically been highly volatile both on The NASDAQ
SmallCap Market and the Frankfurt Stock Exchange's Neuer Markt. Significant
volatility in the market price of our common stock may arise due to factors such
as:
- our developing business;
- a continued negative cash flow;
- relatively low price per share;
- relatively low public float;
- variations in quarterly operating results;
- general trends in the entertainment industry;
- the number of holders of our common stock; and
- the interest of securities dealers in maintaining a market for our common
stock.
As long as there is only a limited public market for our common stock, the
sale of a significant number of shares of our common stock at any particular
time could be difficult to achieve at the market prices prevailing immediately
before such shares are offered, and could cause a severe decline in the price of
our common stock.
15
<PAGE> 18
As long as there is only a limited public market for our common stock, the
sale of a significant number of shares of our common stock at any particular
time could be difficult to achieve at the market prices prevailing immediately
before such shares are offered, and could cause a severe decline in the price of
our common stock.
WE HAVE NEVER PAID A DIVIDEND AND DO NOT ANTICIPATE PAYING ONE IN THE
FORESEEABLE FUTURE.
We have not paid dividends since our formation and do not intend to pay any
dividends to our shareholders in the foreseeable future. No assurance can be
given that we will pay dividends at any time. We presently intend to retain
future earnings, if any, for the development and expansion of our business. See
"Dividend Policy."
SHARES ELIGIBLE FOR ADDITIONAL SALE AND EXERCISE OF REGISTRATION RIGHTS.
Sale of substantial amounts of our common stock, the issuance of
substantial amounts of warrants and options granting the right to receive shares
of our common stock or the prospect of such sales or issuances, respectively,
could materially adversely affect the market price of our common stock. Upon
completion of this offering, we will have outstanding approximately 12,979,138
shares of common stock and approximately 3,042,384 shares of common stock
underlying outstanding warrants and options. Of these shares, approximately
1,921,304 shares are restricted shares under the Securities Act of 1933. We
filed a registration statement on Form S-8 under the Securities Act of 1933 to
register the sale of approximately 1,100,000 shares of our common stock reserved
for issuance under our 1999 Stock Option, Deferred Stock and Restricted Stock
Plan. Shares of our common stock issued upon exercise of options are available
for sale in the public market, subject in some cases to volume and other
limitations.
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus contains forward-looking statements that involve risks and
uncertainties. These statements relate to future events or our future financial
performance. We use words such as "may," "will," "should," "estimates,"
"predicts," "anticipates," "believes," "plans," "expects," "future," "intends,"
"potential" and similar expressions to identify forward-looking statements.
These statements are only predictions. Actual events or results may differ
materially. In evaluating these statements, you should specifically consider
various factors, including the risks described above and in other parts of this
prospectus.
Although we believe that the expectations reflecting the forward-looking
statements are reasonable, we cannot guarantee future results, levels of
activity, performance or achievements. Moreover, neither we nor any other person
assumes responsibility for the accuracy and completeness of such statements. In
addition, these forward-looking statements apply only as of the date of this
prospectus. We are under no duty to update any of the forward-looking statements
after the date of this prospectus or to conform such statements to actual
results or to changes in our expectations.
USE OF PROCEEDS
The net proceeds from the sale of the 6,000,000 shares of common stock
offered by us are estimated to be $ -- , at an assumed initial public offering
price of $ -- per share, after deducting the estimated underwriting discounts
and commissions payable to the underwriters as well as estimated other offering
expenses payable by us (approximately $ -- ).
We expect to use the net proceeds from this offering for general corporate
purposes, principally working capital and capital expenditures, as well as for
the repayment of approximately $9,400,000 of outstanding loans, including
accrued interest, net of discount. In addition, we may use a portion of the net
proceeds to acquire complementary products or businesses at some time in the
future.
16
<PAGE> 19
Set forth below, in tabular form, is a breakdown of our anticipated use of
proceeds.
<TABLE>
<CAPTION>
APPROXIMATE PERCENTAGE
NET PROCEEDS OF NET PROCEEDS
------------- ----------------
<S> <C> <C>
Repayment of all outstanding loans, including
accrued interest.................................. $ 9,400,000 %
Development of our European operations, including
potential acquisitions of production and
distribution companies and programming.............. 40%
Corporate overhead and general working capital
(including the build out of the our new
headquarters)..................................... %
</TABLE>
Pending use of the net proceeds of this offering, we intend to invest the
net proceeds in interest-bearing, investment-grade securities. We will not
receive any proceeds from the sale of the shares being sold by the selling
shareholder. See "Principal and Selling Shareholders."
DIVIDEND POLICY
We have never declared or paid cash dividends. We intend to retain and use
any future earnings for the development and expansion of our business and do not
anticipate paying any cash dividends in the foreseeable future.
17
<PAGE> 20
SELECTED CONSOLIDATED FINANCIAL DATA
The selected consolidated statement of operations data for the years ended
December 31, 1998, December 31, 1997 and December 31, 1996 are derived from our
Consolidated Financial Statements included elsewhere in this prospectus that
have been audited by Stonefield Josephson, Inc., as indicated in their
respective reports which are also included elsewhere in this prospectus. The
selected consolidated financial data for the nine months ended September 30,
1999 and 1998 have been derived from the unaudited consolidated financial
statements of the Company, included elsewhere in this prospectus, which, in the
opinion of management, have been prepared on the same basis as the audited
financial statements and includes all normal and required adjustments necessary
for fair presentation. The results for the nine months ended September 30, 1999
are not necessarily indicative of future results. Such selected consolidated
financial data should be read in conjunction with those Consolidated Financial
Statements and the Notes thereto.
<TABLE>
<CAPTION>
FOR THE NINE MONTHS ENDED FOR THE FOR THE FOR THE
------------------------------ YEAR ENDED YEAR ENDED YEAR ENDED
SEPTEMBER 30, SEPTEMBER 30, DECEMBER 31, DECEMBER 31, DECEMBER 31,
1999 1998 1998 1997 1996
------------- -------------- ------------ ------------ ------------
(UNAUDITED) (UNAUDITED)
<S> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Revenues........................................ $13,273,300 $9,466,800 $13,581,900 $6,875,600 $5,749,800
Cost of revenues................................ 6,056,300 5,884,500 9,076,000 2,355,300 2,895,900
----------- ---------- ----------- ---------- ----------
Gross profit.................................... 7,217,000 3,582,300 4,505,900 4,520,300 2,853,900
General and administrative expenses............. 3,771,700 2,234,100 3,274,000 3,244,900 2,323,800
----------- ---------- ----------- ---------- ----------
Net income from operations...................... 3,445,300 1,348,200 1,231,900 1,275,400 530,100
Interest expense................................ 477,900 768,400 902,600 1,040,100 677,700
Interest income................................. 87,300 136,000 202,900 211,800 58,300
Other income.................................... -- -- -- -- 90,100
----------- ---------- ----------- ---------- ----------
Net income before income taxes.................. 3,054,700 715,800 532,200 447,100 800
Provision for income taxes...................... 1,149,900 60,500 57,500 -- --
Extraordinary loss from early extinguishment of
debt.......................................... 431,900 -- 69,500 -- --
----------- ---------- ----------- ---------- ----------
Net income...................................... $ 1,472,900 $ 655,300 $ 405,200 $ 447,100 $ 800
=========== ========== =========== ========== ==========
Net income per common share basic(1)............ $ .35 $ 0.43 $ 0.22 $ 0.40 $ --
=========== ========== =========== ========== ==========
Weighted average number of shares outstanding
basic(1)...................................... 4,198,176 1,506,672 1,833,340 1,131,344 1,131,344
=========== ========== =========== ========== ==========
Net income per common share diluted(1).......... $ .29 $ 0.30 $ 0.17 $ 0.25 $ --
=========== ========== =========== ========== ==========
Weighted average number of shares outstanding
diluted(1).................................... 4,986,711 2,197,128 2,434,017 1,821,800 1,821,800
=========== ========== =========== ========== ==========
</TABLE>
<TABLE>
<CAPTION>
SEPTEMBER 30, 1999
-----------------------------------------------
AS FURTHER
ACTUAL AS ADJUSTED(2) ADJUSTED(3)
----------- -------------- --------------
<S> <C> <C> <C>
BALANCE SHEET DATA:
Liquidity capital (deficit)(4).............................. $(1,137,500) $(1,137,500) $ --
Total assets................................................ 35,117,700 38,220,700 --
Notes payable............................................... 4,387,200 8,187,200 --
Line of credit.............................................. 697,000 -- --
Accrued interest............................................ 324,200 324,200 --
Retained earnings........................................... 1,293,500 1,293,500 --
Shareholders' equity........................................ 17,441,300 17,441,300 --
</TABLE>
- ---------------
(1) See Note 2 of Notes to Consolidated Financial Statements for information
regarding the calculation of net income per share.
(2) The "As Adjusted" column reflects: (i) proceeds of $4,000,000 from the
bridge financing with Gontard & MetallBank AG; and (ii) the repayment of
$697,000 on the line of credit and $200,000 in notes payable.
(3) The "As Further Adjusted" column reflects the adjustments described in (2)
above and the use of the estimated net proceeds from the issuance of common
stock in this offering, see "Use of Proceeds."
(4) Represents (i) cash and cash equivalents plus accounts receivables (net),
and the amount due from officer, less (ii) accounts payable, accrued
expenses and other liabilities, deferred revenue, accrued participations,
notes payable (due within one year), line of credit, and accrued interest.
18
<PAGE> 21
UNAUDITED PRO FORMA CONSOLIDATED FINANCIAL INFORMATION
FOR ACQUISITION OF DANDELION DISTRIBUTION LTD.
The unaudited pro forma consolidated financial information reflects
financial information with respect to the Company's acquisition of Dandelion
Distribution Ltd. ("Dandelion"). The acquisition of Dandelion was completed as
of October 1, 1999, and has been accounted for under the purchase method of
accounting.
The financial statements of Dandelion included in the unaudited pro forma
consolidated financial information were translated from British Pounds to U.S.
dollars at the rate of 1.64, 1.63 and 1.65 for the September 30, 1999 unaudited
consolidated balance sheet, the September 30, 1999 unaudited consolidated
statement of operations and the December 31, 1998 unaudited consolidated
statement of operations, respectively.
The unaudited pro forma consolidated statements of operations were prepared
as if the acquisition occurred as of January 1, 1998. The unaudited pro forma
consolidated balance sheet was prepared as if the acquisition occurred on
September 30, 1999. The unaudited pro forma consolidated financial information
should be read in conjunction with the Company's historical financial statements
and notes thereto included elsewhere in this prospectus.
The unaudited pro forma consolidated financial information does not purport
to represent what the financial position or results of operations of the Company
would have been if the acquisition had in fact been consummated on such date or
at the beginning of the period indicated or to project the financial position or
results of operations for any future date or period. The pro forma adjustments
are based upon available information and upon certain assumptions that the
Company's management believe are reasonable. In the opinion of management, all
adjustments necessary to present fairly the unaudited pro forma consolidated
financial information have been made. The allocation of the purchase price to
the assets and liabilities acquired reflected in this proforma financial data is
preliminary. Accordingly, the actual financial position and results of
operations may differ from these pro forma amounts.
19
<PAGE> 22
UNAUDITED PRO FORMA CONSOLIDATED BALANCE SHEET
SEPTEMBER 30, 1999
FOR ACQUISITION OF DANDELION DISTRIBUTION LTD.
<TABLE>
<CAPTION>
PRO FORMA
TEAM DANDELION(1) ADJUSTMENTS COMBINED
----------- ------------ ----------- -----------
<S> <C> <C> <C> <C>
ASSETS
Cash and cash equivalents................ $ 2,173,200 $ 639,000 $ -- $ 2,812,200
Trade receivables, net................... 10,936,700 696,200 1,250,000(2) 12,882,900
Television programming costs, net........ 20,697,100 1,579,300 3,700,000(3) 25,976,400
Due from officer......................... 170,400 -- -- 170,400
Fixed assets, net........................ 55,200 723,700 (175,000)(4) 603,900
Goodwill................................. -- -- 978,200(5) 978,200
Prepaid and other assets................. 1,085,100 69,500 -- 1,154,600
----------- ---------- ---------- -----------
Total assets................... $35,117,700 $3,707,700 $5,753,200 $44,578,600
=========== ========== ========== ===========
LIABILITIES AND SHAREHOLDERS' EQUITY
Accounts payable, accrued expenses and
other liabilities...................... $ 8,410,900 $2,200,900 $2,260,000(6) $12,871,800
Deferred revenue......................... 85,600 -- -- 85,600
Accrued participations................... 3,771,500 -- -- 3,771,500
Bank line of credit...................... 697,000 -- -- 697,000
Notes payable............................ 4,387,200 -- 2,500,000(7) 6,887,200
Accrued interest......................... 324,200 -- -- 324,200
Shareholder loan and note payable........ -- -- -- --
----------- ---------- ---------- -----------
Total liabilities.............. 17,676,400 2,200,900 4,760,000 24,637,300
----------- ---------- ---------- -----------
Commitments and contingencies
Shareholders' equity..................... 17,441,300 1,506,800 993,200(8) 19,941,300
----------- ---------- ---------- -----------
Total liabilities and
shareholders' equity......... $35,117,700 $3,707,700 $5,753,200 $44,578,600
=========== ========== ========== ===========
</TABLE>
20
<PAGE> 23
UNAUDITED PRO FORMA CONSOLIDATED STATEMENT OF OPERATIONS
FOR ACQUISITION OF DANDELION DISTRIBUTION LTD.
FOR THE NINE MONTHS ENDED SEPTEMBER 30, 1999
<TABLE>
<CAPTION>
PRO FORMA
TEAM DANDELION(1) ADJUSTMENTS COMBINED
----------- ------------ ----------- -----------
<S> <C> <C> <C> <C>
Revenues.......................... $13,273,300 $2,207,900 $ -- $15,481,200
Cost of revenues.................. 6,056,300 1,277,900 157,200(9) 7,491,400
----------- ---------- --------- -----------
Gross profit...................... 7,217,000 930,000 (157,200) 7,989,800
General and administrative
expenses........................ 3,771,700 905,300 36,700(10) 4,713,700
----------- ---------- --------- -----------
Income from operations............ 3,445,300 24,700 (193,900) 3,276,100
Interest expense.................. 477,900 60,000 187,500(11) 725,400
Interest income................... 87,300 21,100 -- 108,400
Other income...................... -- 19,400 -- 19,400
----------- ---------- --------- -----------
Income before income taxes........ 3,054,700 5,200 (381,400) 2,678,500
Provision for income taxes........ 1,149,900 20,900 (137,900)(12) 1,032,900
----------- ---------- --------- -----------
Income from continuing
operations...................... $ 1,904,800 $ (15,700) $(243,500) $ 1,645,600
=========== ========== ========= ===========
Income from continuing operations
per common share basic.......... $ 0.45 $ 0.36
=========== ===========
Weighted average number of shares
basic........................... 4,198,176 386,847 4,585,023
=========== ========= ===========
Income from continuing operations
per common share diluted........ $ 0.38 $ 0.31
=========== ===========
Weighted average number of shares
diluted......................... 4,986,711 386,847 5,373,558
=========== ========= ===========
</TABLE>
21
<PAGE> 24
UNAUDITED PRO FORMA CONSOLIDATED STATEMENT OF OPERATIONS
FOR ACQUISITION OF DANDELION DISTRIBUTION LTD.
FOR THE YEAR ENDED DECEMBER 31, 1998
<TABLE>
<CAPTION>
PRO FORMA
TEAM DANDELION(1) ADJUSTMENTS COMBINED
----------- ------------ ----------- -----------
<S> <C> <C> <C> <C>
Revenues.............................. $13,581,900 $3,290,500 $ -- $16,872,400
Cost of revenues...................... 9,076,000 1,988,000 150,800(9) 11,214,800
----------- ---------- --------- -----------
Gross profit.......................... 4,505,900 1,302,500 (150,800) 5,657,600
General and administrative expenses... 3,274,000 1,090,400 48,900(10) 4,413,300
----------- ---------- --------- -----------
Income from operations................ 1,231,900 212,100 (199,700) 1,244,300
Interest expense...................... 902,600 86,300 250,000(11) 1,238,900
Interest income....................... 202,900 37,000 -- 239,900
Other income.......................... -- 38,200 -- 38,200
----------- ---------- --------- -----------
Income before income taxes............ 532,200 201,000 (449,700) 283,500
Provision for income taxes............ 57,500 51,900 (60,100)(12) 49,300
----------- ---------- --------- -----------
Income from continuing operations..... $ 474,700 $ 149,100 $(389,600) $ 234,200
=========== ========== ========= ===========
Income from continuing operations per
common share basic.................. $ 0.26 $ 0.11
=========== ===========
Weighted average number of shares
basic............................... 1,833,340 386,847 2,220,187
=========== ========= ===========
Income from continuing operations per
common share diluted................ $ 0.20 $ 0.08
=========== ===========
Weighted average number of shares
diluted............................. 2,434,017 386,847 2,820,864
=========== ========= ===========
</TABLE>
22
<PAGE> 25
NOTES TO UNAUDITED PRO FORMA CONSOLIDATED FINANCIAL INFORMATION
FOR ACQUISITION OF DANDELION DISTRIBUTION LTD.
The following table sets forth the determination and allocation of the
purchase price of Dandelion. Per the terms of the agreement the Company will pay
$5 million, $2.5 million in cash and $2.5 million in the Company's common stock
by issuing 386,847 shares. In addition, if the 386,847 shares of common stock do
not have a market value of at least $3,000,000 on October 1, 2001, the Company
will be required to make a cash payment of up to $250,000.
<TABLE>
<S> <C>
Cash payment................................................ $ 2,500,000
Equity payment.............................................. 2,500,000
Contingent payment.......................................... 250,000
Transaction costs........................................... 100,000
-----------
Total purchase price........................................ 5,350,000
</TABLE>
The preliminary allocation of the pro forma purchase price is as follows:
<TABLE>
<S> <C>
Net assets.................................................. (1,506,800)
Increase in trade receivables............................... (1,250,000)
Increase in television programming costs.................... (3,700,000)
Decrease in fixed assets.................................... 175,000
Increase in deferred income taxes........................... 1,910,000
-----------
Cost in excess of fair market value of net assets
acquired.................................................. $ 978,200
===========
</TABLE>
(1) The financial statements of Dandelion included in the unaudited pro forma
consolidated financial information were translated from British Pounds to
U.S. dollars at the rate of 1.64, 1.63 and 1.65 for the September 30, 1999
unaudited consolidated balance sheet, the September 30, 1999 unaudited
consolidated statement of operations and the December 31, 1998 unaudited
consolidated statement of operations, respectively.
(2) Reflects an adjustment to record accounts receivable at fair market value.
(3) Reflects an adjustment to the Dandelion film and television program library
to record it on the books at fair market value.
(4) Reflects an adjustment to a building owned by Dandelion to record it on the
books at fair market value.
(5) Reflects the excess purchase price over the fair value of the assets
acquired and liabilities assumed.
(6) Reflects an adjustment to record the deferred tax effect of the pro forma
balance sheet adjustments and certain costs of the acquisition.
(7) Reflects an adjustment to record a bridge loan covering the cash portion of
the acquisition.
(8) The net increase to stockholder's equity results from the issuance of $2.5
million in equity and the elimination of Dandelion's historical net assets.
(9) Reflects an adjustment to cost of revenues resulting from the write-up of
the library and the amortization of those costs over the revenue life of
the programming.
(10) To reflect the amortization of goodwill over 20 years.
(11) Reflects an adjustment to record the increase to interest expense resulting
from the bridge loan used to cover the cash portion of the acquisition. The
borrowing rate used is 10% per year based on the Company's most recent debt
financing.
(12) To record the tax effect of the pro forma adjustments to amortization of
television programming costs and interest expense. The amortization of
goodwill is not deductible for tax purposes.
23
<PAGE> 26
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
The following discussion should be read in conjunction with our financial
statements and the notes thereto and the other financial information appearing
elsewhere in this prospectus. In addition to historical information, the
following discussion and other parts of this prospectus contain forward-looking
information that involves risks and uncertainties. Our actual results could
differ materially from those anticipated by such forward-looking information due
to factors discussed under "Risk Factors," "Business" and elsewhere in this
prospectus.
OVERVIEW
We derive substantially all of our revenues from production fees earned in
connection with our original programming, distribution fees from the licensing
of programming acquired from others, and the licensing of our original
programming. We were incorporated in February 1995 and began operations in March
1995.
We are engaged in developing concepts and acquiring literary and other
story properties, the most promising of which serve as the basis for our series,
pilot films, or made-for-television features. If a script is accepted for
production as a television feature or pilot, or if a pilot is accepted for
production as a series, we and the network or distributor negotiate a license
fee or distribution advance. This fee is a flat sum payment through which we
generally attempt to cover a significant portion of our production costs and
overhead. If programming is produced for an entity like PBS, which does not pay
significant license fees or distribution advances (and in fact, may not pay any
fee), we attempt to provide corporate sponsors or agreements for the license of
ancillary rights such as foreign or home video distribution.
With respect to series for the networks or pay cable channels, we generally
attempt to negotiate significant license fees for both series and
movies-of-the-week. In many cases, we may invest additional sums in excess of
network license fees to produce the best possible pilot, as such pilots are an
essential sales tool in gaining network acceptance of a proposed series, if
applicable. In these cases, we will attempt to cover the excess production costs
from working capital, third-party financing, sales of the episodes in the
foreign marketplace, or a combination of these financing techniques. Where
necessary or desirable, we may seek to obtain funding in excess of network
license fees from a studio or a third party who will provide such financing in
return for a share of the profits from the syndication of such programming.
Similarly, for television series, we may invest amounts in excess of network
license fees in order to gain audience acceptance for the series and to enhance
the potential value of future syndication rights.
We recognize revenues from licensing agreements covering entertainment
product when the product is available to the licensee for telecast, exhibition
or distribution, and other conditions of the licensing agreements have been met
in accordance with Statement of Financial Accounting Standards ("SFAS") No. 53
"Financial Reporting by Producers and Distributors of Motion Picture Films."
As required by SFAS No. 53, we value our film cost at the lower of
unamortized cost or net realizable value on an individual title basis. Film
costs represent those costs incurred in the development, production and
distribution of television projects. These costs have been capitalized in
accordance with SFAS No. 53. Amortization of film cost is charged to expense and
third party participations are accrued using the individual film forecast method
whereby expense is recognized in the proportion that current year revenues bear
to an estimate of ultimate revenue. We anticipate that a majority of our
production or acquisition costs for our projects will be amortized within three
years from the completion or acquisition of such project, with the balance
amortized over an additional two years.
Our trade receivables historically increase as revenue increases. We, in
accordance with SFAS No. 5, record an allowance for doubtful accounts based, in
part, on historical bad debt experience. In 1999, we have recorded $500,000 as a
provision for an allowance for doubtful accounts. In 1998, the Company recorded
$664,000 as a provision for an allowance for doubtful accounts. In 1997, the
Company recorded $1,115,600 as a provision for an allowance for doubtful
accounts. Typically, when we make a sale of a product, the purchaser of such
product agrees to a payment schedule, usually based upon a time table which is
either tied to milestones in the development of the product or the time period
of the contract. If customers fail to make scheduled payments, our license
agreements provide that we can repossess and resell such product. Because these
payments often are spread out over a period of time, up to two years, the
payments to be made in the future are recorded as discounted trade receivables.
As sales increase, our trade receivables balance will increase accordingly. We
believe we have adequate resources to collect our trade receivables.
24
<PAGE> 27
RESULTS OF OPERATIONS
The nine months ended September 30, 1999 versus the nine months ended
September 30, 1998.
For the nine months ended September 30, 1999, the Company reported net
income of approximately $1,472,900 on total revenues of approximately
$13,273,300 compared to net income of approximately $655,300 on total revenues
of approximately $9,466,800 for the same period ended September 30, 1998.
Revenue increased by 40 percent or $3,806,500 for the nine months ended
September 30, 1999 compared to 1998, primarily due to the sales of certain
broadcast rights of a library of twenty movie-of-the-week titles which the
Company acquired in June 1999.
Cost relating to revenues was $6,056,300 for the nine months ended
September 30, 1999 as compared to $5,884,500 for the nine months ended September
30, 1998. The costs relate to amortization of production or acquisition costs of
television programming for which revenue was recognized during the period. Gross
profit margin on sales of television programming for the nine months ended
September 30, 1999 was 54 percent compared to 38 percent for the same period in
1998. Included in cost of sales for 1999 is a charge of approximately $450,000
as the Company wrote off development costs incurred on a project which has been
in development since 1995. The higher gross profit margin for the nine months
ended September 30, 1999 was due to the Company selling television programming
acquired by the Company at attractive rates as opposed to selling programming
owned and produced by the Company in the nine months ended September 30, 1998.
General and administrative expenses were $3,771,700 for the nine months
ended September 30, 1999, as compared to $2,234,100 for the nine months ended
September 30, 1998. The $3,771,700 excludes $1,740,700 in general and
administrative expense that was capitalized to television programming costs, as
an allocation of costs related to production, in accordance with SFAS No. 53.
The increase in general and administrative expenses, prior to capitalizing
certain expenses, are a result of an increase in expenses for staff, primarily
for the Company's increased activities in production and development, an
increase in the accounts receivable allowance for doubtful accounts and certain
litigation costs. Also included in such costs are expenses associated with the
issuance of securities to financial consultants for services. The Company
believes that payments with these securities issuances are justifiable even
though dilutive to current shareholders as opposed to cash outlays.
Interest expense was $477,900 for the nine months ended September 30, 1999
as compared to $768,400 for the nine months ended September 30, 1998. The
decrease is due to the retirement of debt.
Receivables at September 30, 1999 were $10,936,700, all of which are from
entities domiciled outside the U.S. These receivables represent approximately 31
percent of the total assets of the Company. At September 30, 1999, 3 receivables
represented approximately 88 percent of our accounts receivable balance. As a
consequence of the Company's October 1999 acquisition of Dandelion Distribution
Ltd. (Dandelion), certain receivables resulting from sales made prior to the
acquisition are now considered due from related parties for financial reporting
purposes. In June 1999 the Company entered into a five year license agreement
for certain territories including the UK of 20 made-for-television movies with
Renown Pictures, Ltd., a UK company owned by Noel Cronin, formerly the owner of
Dandelion. At September 30, 1999 the receivable due from Renown was $2,900,000.
Subsequent to such date the Company received a payment of $725,000 per the terms
of the agreement. Noel Cronin is also a director of String of Pearls Plc. In
September 1999, the Company entered into a 10 year license agreement for certain
European territories including Germany, France and Italy, of 20
made-for-television movies with String of Pearls Plc. At September 30, 1999, the
receivable due from String of Pearls Plc was $5,375,000. Subsequent to such date
the Company received a payment of $290,000 per the terms of agreement. Mr.
Cronin has personally guaranteed the obligation of String of Pearls. See "Risk
Factors" and "Certain Relationships and Related Transactions." We have
established $837,000 as an allowance for doubtful accounts as of September 30,
1999. We believe the allowance for doubtful accounts is adequate and we have
adequate resources to collect our trade receivables.
Year ended December 31, 1998 versus year ended December 31, 1997.
Revenues for the year ended December 31, 1998 of $13,581,900 were comprised
of approximately $6,672,700 on sales and availability for Total Recall 2070
produced by us and Alliance Atlantis, approximately $2,755,300 for the sale of a
movie-of-the-week developed by us, "Earthquake in New York" to Fox Family
Channel, approximately $1,527,900 on sales for our reality based series "Amazing
Tails," approximately $882,000 on sales of satellite rights of the Australian
television series "Water Rats," and approximately $1,744,000 on sales of other
library product acquired by us. For the year ended December 31, 1998,
approximately 26 percent of revenues were attributable to sales to customers
outside North America, i.e. United States and Canada. Revenues of $6,875,600 for
the year ended December 31, 1997, were comprised of
25
<PAGE> 28
approximately $1,975,500 on sales of our reality based series "Amazing Tails,"
approximately $1,250,000 on sales of "Water Rats," approximately $2,460,000 on
sales of movies acquired by us and approximately $1,190,100 on sales of other
reality based programming acquired by us. For the year ended December 31, 1997,
approximately 80 percent of revenues were attributable to sales to customers
outside North America. Within the foreign market, allocations among the four
principal geographic regions in which we do business, Europe, Asia and
Australia, South America and Africa, vary from period to period. The variations
in revenues relate to the type of product being offered, as well as local
economic trends and conditions, and the emergence of multiple broadcasting
channels in the applicable territory. See Note 9 to the Consolidated Financial
Statements for a breakdown of the geographic distribution of sales of our
product.
Cost of revenues was $9,076,000 for the year ended December 31, 1998 as
compared to $2,355,300 for the year ended December 31, 1997. The costs primarily
relate to amortization of production costs of television programming for which
revenue was recognized during the respective period. Cost of revenues increased
due to the increase in revenues.
Gross profit margin on sales of television programming for the year ended
December 31, 1998 was 33 percent compared to 66 percent for the period ended
December 31, 1997. The lower gross profit margin for the year ended December 31,
1998 was due to our producing and selling original programming as opposed to
primarily selling previously produced programming. We co-produced our first
drama series Total Recall 2070 with Alliance Atlantis. Production of drama
series such as Total Recall 2070 are more expensive than the reality based
programming we had produced and acquired in 1997. Original programming generally
has higher amortization rates in its initial cycle until it demonstrates
audience acceptance. However, a successful drama series will be worth
substantially more than reality based programming in ancillary markets.
General and administrative expenses were approximately $3,274,000 for the
year ended December 31, 1998 as compared to $3,244,900 for the year ended
December 31, 1997. Included in general and administrative expenses was $664,000
as an allowance for doubtful accounts for the year ended December 31, 1998
compared to $1,115,600 for the year ended December 31, 1997. Subtracting the
effect from the allowance of doubtful, general and administrative expenses was
$2,610,000 for the year ended December 31, 1998 compared to $2,129,300 for the
year ended December 31,1997. The increase is primarily due to additional staff
hired in 1998 to focus on development of new television programming.
Interest expense was $902,600 for the year ended December 31, 1998, as
compared to $1,040,100 for the year ended December 31, 1997. The decrease is due
to the retirement of debt from the proceeds of our initial public offering.
Interest income was $202,900 for the year ended December 31, 1998 as
compared to $211,800 for the year ended December 31, 1997.
All $4,736,700 included in receivables as of December 31, 1998, are due
from entities domiciled outside the United States. These receivables represent
approximately 28 percent of our total assets. We have established $337,000 as an
allowance for doubtful accounts as of December 31, 1998. We believe the
allowance for doubtful accounts is adequate and we have adequate resources to
collect our trade receivables.
Year ended December 31, 1997 versus year ended December 31, 1996.
Revenues for the twelve months ended December 31, 1997 were $6,875,600
compared with $5,749,800 for the twelve months ended December 31, 1996. Revenues
for the year ended December 31, 1996 included: (i) $1,441,700 from the
recognition of revenues from Interpublic for the completion of the series
"Amazing Tails," which accounted for 25 percent of revenues during such period;
(ii) a revenue guarantee received from the sale of certain library rights; and
(iii) revenue from the sales generated by the existing library. Included in this
amount are revenues of approximately $680,000 arising from the license of a
certain portion of our film library to the Giniger Entities, with respect to the
sale of a certain portion of our library in certain Latin America countries and
Europe. These revenues were 12 percent of all revenues in such period. Finally,
revenues in the period included $618,000 from Eurolink representing additional
sales of "Amazing Tails," which was approximately 11 percent of our revenue
during such period. For the twelve month period ended December 31, 1997,
approximately 80 percent of our revenues were attributed to the exploitation of
product outside North America. The concentration relative to the foreign market
is attributable to less programming being produced by us directly for the North
American market in such period. In prior periods, revenues were generated
approximately 40 percent from the North American market and 60 percent from the
foreign market.
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Cost of revenues was $2,355,300 for the twelve months ended December 31,
1997, as compared to $2,895,900 for the twelve months ended December 31, 1996.
As a percentage of revenue, however, cost of revenue was 34 percent of revenue
for the twelve months ended December 31, 1997 compared to 50 percent of revenue
to the comparable period in 1996. This decrease is attributable to our deriving
more of our revenue from distribution activity relating to our own product
rather than product acquired from third parties under license agreements. Third
party distribution activity has a lower gross margin because distribution fees
of up to 70 percent are paid to the producers of the product. However,
amortization expense, as calculated under FASB 53, has comparatively lower
rates. For the period ended December 31, 1996, our revenue attributable to
product produced by others, for which producers are allocated a higher
percentage of revenue as a participation expense, was less than similar product
in the comparable period in 1997, when we distributed more product which we
either owned outright or which was produced by us. For this product, our margins
are typically higher as no participation expenses need be paid to the product's
copyright owners. For a discussion in how the product mix may affect quarterly
results, see "Risk Factors -- Fluctuations in Operating Results."
Gross profit margin improved from 50 percent for the twelve months ended
December 31, 1996 to 66 percent for the twelve months ended December 31, 1997,
primarily because of higher profit margins on produced and acquired product.
General and administrative expenses were $3,244,900 for the twelve months
ended December 31, 1997, as compared to $2,323,800 for the twelve months ended
December 31, 1996. The increase was principally attributable to a $1,115,600
provision for an allowance for doubtful accounts recorded in 1997.
The provision for allowance for doubtful accounts was $1,115,600 for the
twelve months ended December 31, 1997, as compared to a $71,300 provision for
the twelve months ended December 31, 1996. The 1997 provision consists of the
following: (i) $660,000 for the write off of the Eurolink receivable; (ii)
$170,600 for the write off of the Giniger Guaranty; and (iii) $285,000 for the
write off of the Alliance receivable. Regarding the Eurolink receivable, the
Company had sold the rights to "Amazing Tails" for a majority of the Western
European territories to Eurolink, a London based company. Eurolink subsequently
experienced financial difficulties and was unable to pay amounts due to us under
the contract for "Amazing Tails." We therefore reasserted our rights to "Amazing
Tails" and wrote off the entire receivable under the Eurolink contract. Eurolink
and us are unrelated entities and had an arms length relationship. The write
down of the Alliance Atlantis receivable occurred as a result of a restructuring
of our obligations to Alliance Atlantis. Pursuant to such agreements, Alliance
Atlantis and us agreed to: (i) extend the "Total Recall" promissory note; and
convert the minimum guarantee to a profit sharing arrangement, which allows
Alliance Atlantis to recoups its advance of $225,000, plus entitles Alliance
Atlantis to receive a 30 percent distribution fee and actual distribution
materials costs prior to our splitting the remaining receipts with Alliance
Atlantis. Although we believe that we will receive more than the $225,000 that
we have already received from licensing such programing, because of this new
structure, we will be unable to recognize any more revenue with respect to our
license agreements with Alliance Atlantis until Alliance Atlantis recoups its
advance and costs. The write down of the Giniger Guaranty was due to our selling
the rights to Water Rats I, prior to the Giniger Entities doing so.
Interest expense was $1,040,100 for the twelve months ended December 31,
1997, as compared to $677,700 for the twelve months ended December 31, 1996. The
increase was principally attributable to an increase in debt and the related
interest expense.
Interest income was $211,800 for the twelve months ended December 31, 1997,
as compared to $58,300 for the twelve months ended December 31, 1996. The
increase in interest income was due to the amortization of the discount taken
under the guidelines of APB 21.
Trade receivables increased to $6,740,800 for the twelve months ended
December 31, 1997, as compared to $3,342,100 for the twelve months ended
December 31, 1996, which increase was due to increased revenues. For a
description of our treatment of our trade receivables, see "Management's
Discussion and Analysis of Financial Conditions and Results of
Operations -- Overview."
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LIQUIDITY AND CAPITAL RESOURCES
The entertainment industry is highly capital intensive. As of September 30,
1999, we had retained earnings of $1,293,500 and a liquidity deficit of
$(1,137,500). Liquidity deficit is defined as:
- cash and cash equivalents plus accounts receivable (net), and the amount
due from officer, less
- accounts payable, accrued expenses and other liabilities, deferred
revenue, accrued participations, notes payable (due within one year),
line of credit, and accrued interest.
We continue to finance our operations from our own sales and production
activities, notes payables, lines of credit and loans from our shareholders.
Despite our public offering on July 29, 1998, our operations have been hurt by
ongoing capital shortages caused by a slowness in collecting receivables and the
inability to complete a long term banking relationship. To address our short
term financing needs, we raised approximately $12,250,000 since July 1999. This
amount includes:
- $350,000 pursuant to the sale to 3 investors of 12% debentures and
warrants to purchase up to 35,000 shares of our common stock;
- $1,200,000 pursuant to a secured loan from VMR;
- $4,000,000 pursuant to a loan from Hudson Investors, LLC, which loan
matures on November 30, 2002 and accrues interest at the rate of 12% per
year. Hudson Investors, LLC has the right to convert any outstanding
balance on its promissory note into equity after November 30, 1999.
Hudson Investors, LLC also received 340,000 warrants as part of the
financing. From the Hudson Investors, LLC loan, VMR was repaid $1,000,000
of its loan;
- $6,000,000 from Gontard & MetallBank AG, $2,000,000 from the sale of
500,000 shares of our common stock and $4,000,000 pursuant to a loan that
matures on the earlier of this offering or December 31, 1999 and accrues
interest at 10% per year, $2,500,000 of these proceeds was used to fund
the cash portion of the acquisition of Dandelion; and
- $700,000 from the sale of 175,000 shares of our common stock to Arbora
Vermogensverwaltungen AG, an existing shareholder.
As of November 15, 1999, the Company had cash and accounts receivable due
to be collected within one year of approximately $12,243,000. See "Risk
Factors -- Our reliance on certain customers and our allowances for possible
uncollectible receivables." Also as of November 15, 1999, the Company had
indebtedness and related accrued interest of $9,361,000, including notes payable
of $8,191,000, net of discount of $740,000, of which $4,929,000 matures within
one year, accrued interest of $330,000, and $840,000 outstanding on a revolving
line of credit.
As we continue to pursue and work toward financing alternatives and search
for additional capital as described above, we also continue to explore a variety
of other financial alternatives to increase our working capital, including
increasing our line of credit with a commercial bank, or pursuing other types of
debt or equity financing. No assurance can be given that such financing can
ultimately be obtained or that it will be on reasonably attractive terms.
We believe that without this offering but solely with our current resources
of cash, accounts receivable, available credit line, and our recent financings,
we will be able to operate at current expenditure levels through March 31, 2000.
Our belief is based upon certain assumptions regarding the anticipated level of
operations and overhead, anticipated sales of programming, and anticipated
expenditures required for development and production of programming. If sales do
not materialize and this offering or alternative financings are not completed by
these dates, we will have to limit our development and production activities,
reduce our overhead spending, restructure debt pay outs and take other cost
reduction measures. Further, even with if we successfully raise additional
financing, there is no assurance that we will continue to be profitable or
maintain positive cash flow.
RECENT ACCOUNTING PRONOUNCEMENTS
In April 1998, Statement of Position 98-5 "Reporting on the Costs of
Start-Up Activities" ("SOP 98-5") was issued. SOP 98-5 provides guidance on the
financial reporting of start-up costs and organization costs. We have adopted
SOP 98-5 which did not materially effect our financial statements.
In June 1998, the FASB issued SFAS No. 133, "Accounting for Derivative
Instruments and Hedging Activities," effective for fiscal year beginning after
June 15, 2000. We anticipate that due to our limited use of
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derivative instruments, the adoption of SFAS No. 133 will not have a material
effect on our financial statements.
In October 1998, the FASB released an exposure draft of the proposed
statement on "Rescission of FASB Statement No. 53, Financial Reporting by
Producers and Distributors of Motion Picture Films." An entity that previously
was subject to the requirements of SFAS No. 53 would follow the guidance in a
proposed Statement of Position, "Accounting by Producers and Distributors of
Films." This proposed Statement of Position effects financial statements for
fiscal years beginning after December 15, 1999 and could have a significant
impact on our results of operations and financial position depending on its
final outcome. We have not concluded on its impact given the preliminary stages
of the proposed Statement of Position.
YEAR 2000 COMPLIANCE
As has been widely reported, many computer systems process dates based on
two digits for the year of a transaction and are unable to process dates in the
year 2000 and beyond. Since our formation in 1995, we have installed new
information systems which are year 2000 compliant. Although we do not expect
year 2000 to have a material adverse effect on our internal operations, it is
possible that year 2000 problems could have a significant adverse effect on our
suppliers and their ability to service us and to accurately process payments
received.
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BUSINESS
OVERVIEW
OUR HISTORY
We were formed in February 1995. We have focused our efforts on the
development, production and distribution of a variety of television programming,
including dramatic and reality-based series, specials and made-for-television
movies for exploitation in the domestic and international television markets. We
derive substantially all of our revenues from production fees earned from our
original productions, distribution fees from the exploitation of product
acquired from others, and the exploitation of our owned programming.
Our production activities have focused on (i) programming produced for U.S.
cable and network television channels such as The Discovery Channel, The Family
Channel, Showtime Networks and USA Network, and (ii) "how-to" instructional
series, such as "Simply Style," a 60-episode series which debuted during the
third quarter of 1995 on The Learning Channel. We have received a firm
commitment from Discovery's Animal Planet for the initial production of 13
one-hour drama episodes of "The Call of the Wild," based on Jack London's
classic novel. The series began pre-production in July 1999 with our Canadian
production partner. Delivery is expected to take place from December 1999
through February 2000. We are also developing and producing "Destination Style"
for Discovery's Travel Channel, "Conversations With Remarkable People" for the
Wisdom Network (a new U.S. basic cable network), and "Robin Leach's Wildlife
Styles," which has been sold to Canada's Microtainment Productions.
In March 1999 our co-production of 22 episodes of a television series based
on the hit movie "Total Recall" (Total Recall 2070) began to air on Showtime
Networks. We, along with Alliance Atlantis, our co-financing partner, have
extended the period of time pursuant to which Showtime must make a decision to
order a second season. The Company is currently negotiating with Alliance
Atlantis to produce a second season for Showtime or first run syndication.
In addition, we co-developed and co-produced a reality-based five-day per
week ("strip") syndicated series, called "Strange Universe," with
United/Chris-Craft television stations and Rysher Entertainment. This series,
which aired on United/Chris-Craft stations, involved the production of 130
episodes over its two, thirteen week commitments. We have also completed
production of a series of 48 half-hour episodes entitled "Amazing Tails," a
reality-based series focusing on extraordinary pets, which has been financed in
conjunction with Friskies Pet Foods, a division of Nestles Food, and advertising
leader The Interpublic Group of Companies. All episodes of Amazing Tales have
been produced and delivered, and the series is currently airing on Discovery's
Animal Planet.
We maintain a development and production department which produces
movies-of-the-week, drama and reality-based series for exhibition on network
television, cable or ad hoc networks of independent stations in the U.S. market
which sometimes form to air series and special programming. This latter process
is known as "syndication." We also maintain an international sales force and
currently have distribution rights to approximately 2,500 hours of family,
dramatic and reality-based series and specials, and films. We are also
developing a wide variety of original family, dramatic, reality-based and
children's programming.
GLOBAL STRATEGY
The global television market has experienced substantial growth since 1985
and we believe this market will continue to experience substantial growth during
the foreseeable future as foreign state television monopolies end and commercial
broadcast outlets expand to provide increasingly varied and specialized content
to consumers throughout the world. In the U.S. alone, there have been numerous
new television channels which have commenced operation since 1985. Such growth
has led to the development and commercialization of specialized cable and
satellite channels and distribution outlets, which, in turn, has led to
increased demand for top quality and cost efficient programming in many
categories and subjects. Europe, Latin America and the Pacific Rim are all
experiencing similar growth with respect to satellite and cable channels.
Although we have been significantly impacted by recurring cash flow
problems, our operating strategy is to fulfill the demand for programming by:
(i) expanding the activities of our three operating departments, development and
production, distribution, and licensing and merchandising; (ii) implementing
strategic acquisitions of film, television and video libraries and production
companies; and (iii) entering into joint ventures with, or acquisitions of,
unaffiliated third parties, with the intention that such acquisitions or joint
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ventures would lower our financial risk should we expand, as anticipated, into
related activities, such as direct marketing and interactive programming. We
intend, subject to financing, to acquire, co-produce and co-finance other
series, movies and specials from third party producers in order to increase our
programming library and self distribute such product on a worldwide basis.
The European marketplace currently represents a substantial portion of our
total revenue. In the next 5 years, we anticipate this percentage to increase.
To fully capitalize on this rapidly expanding market, we have plans to grow
through internally generated development and production, international
co-productions, acquisitions and strategic investments and the establishment of
fully staffed European operations. We have agreed with the underwriters of this
offering that we will use a minimum of 40 percent of the total net proceeds of
this offering to expand our European operations.
We have started a new company in Germany, Team Entertainment Germany GmbH,
based in Munich, and have already funded it with $230,000. We anticipate another
$800,000 will be spent in the next 12 months for start-up expenses and the
securing of the personnel to manage it. Team Entertainment Germany GmbH, will
develop formats, as well as produce programming for both German speaking
territories and the rest of the world.
We also have plans to use Team Entertainment Germany GmbH, to acquire other
German production and distribution companies, and to partner with established
companies for original German language co-productions.
In furtherance of our European strategy, on October 1, 1999 we completed
the acquisition of Dandelion Distribution Ltd., for the sum of $2,500,000 in
cash and 386,847 shares of our common stock. We may also be required to pay up
to an additional $250,000 if the shares of our common stock delivered as part of
the purchase price do not have a market value of at least $3,000,000 on October
1, 2001. This London based production and distribution company, formed over 20
years ago, has a library in excess of 2,000 hours of programming. Noel Cronin,
the founder and Managing Director of Dandelion, will remain as Managing Director
of the newly renamed entity, Team Dandelion, Ltd.
Team Dandelion Ltd., will further strengthen our presence in the
international media arena, and provide us with a solid foundation to create
European community content programming and co-production opportunities. In
addition, Team Dandelion, Ltd. will serve as the base for all European sales
except those in German speaking territories.
We believe that there are unique business opportunities to acquire other
emerging companies, as well as more established production and distribution
entities, which are engaged in programming development, production, distribution
(including the dissemination of product on and through the Internet) and other
related media investments. While the number of distribution channels has been
increasing, we believe there are economic incentives, including economies of
scale and depth of financial and programming capability, for programmers and
distribution entities to consolidate. No assurance can be given that we will be
successful in obtaining the financing necessary for these acquisitions or that,
if consummated, such acquisitions would prove financially successful. In
addition, a significant acquisition of product or another company could require
us to obtain financing for such acquisition. No assurance can be given that such
financing will be available at all, or that if available it will be on terms
that are favorable to us.
OPERATIONS
We currently have three principal operating groups: (i) development and
production; (ii) distribution; and (iii) licensing and merchandising.
PRODUCTION
The production of television programming involves:
- the development of a creative concept into a television script or
teleplay;
- the selection of talent (including actors, directors, and other creative
personnel); and
- the filming, technical, and post-production work necessary to create a
finished product ready for exhibition.
Such programming, when initiated in the US, is generally produced for
prime-time exhibition on one of the major U.S. networks, which include CBS, NBC,
ABC and Fox. Such programming may also be produced for new networks such as the
United Paramount Network ("UPN") and the Warner Bros.'s "WB" Network,
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first-run pay television exhibition or directly for syndication (i.e.,
independent or non-network) television, including PBS, as well as numerous basic
and pay cable channels or services, including HBO, Showtime, The Disney Channel,
The Learning Channel, The Discovery Channel, Arts and Entertainment Network and
The History Channel.
We are engaged in developing concepts and acquiring literary and other
story properties, the most promising of which serve as the basis for the
production of series, pilot films, or made-for-television features. Once an idea
has been commissioned by us, it is presented to a network or other distributor
for acceptance. If a script is accepted for production as a television feature
or pilot, or if a pilot is accepted for production as a series, we negotiate a
license fee or distribution advance with the network or distributor. This fee is
a flat sum payment through which we generally attempt to cover a significant
portion of our production costs and overhead.
Entertainment companies in general attempt to finance the development costs
for television programming from their working capital and seek to cover a
substantial portion of their production costs, including overhead, through
license fees. If programming is produced for an entity like PBS, which does not
pay significant license fees or distribution advances (and in many instances,
may not pay any fee), we attempt to provide corporate sponsors or agreements for
the license of ancillary rights such as foreign or home video distribution. Even
without a fee or advance, we believe that we can defray a significant portion of
the production costs of PBS programming using these alternative financing
methods, thus availing ourselves of the key demographics of PBS viewership,
particularly in children's programming. For other specialty programming produced
for initial exhibition on cable networks like the Discovery Channel, or for
first run syndication, we do attempt to obtain license fees to partially offset
the production costs.
With respect to series for the networks or pay cable channels, we generally
attempt to negotiate significant license fees for both series and
movies-of-the-week. In many cases, we may invest additional sums in excess of
network license fees to produce the best possible pilot, as such pilots are an
essential sales tool in gaining network acceptance of a projected series, if
applicable. In these cases, we attempt to cover the excess of production costs
from working capital, third-party financing, sales of the episodes in the
foreign marketplace, or a combination of these financing techniques. Where
necessary or desirable, we may seek to obtain funding in excess of license fees
from a distributor or a third party who will provide such financing in return
for a share of the profits from the distribution of such programming. Similarly,
for television series, we may invest amounts in excess of U.S. license fees in
order to gain a global audience acceptance for the series and to enhance the
potential value of future syndication rights.
There can be no assurance, however, that once we commit to fund production
of a series licensed to a network, the network will order and exhibit sufficient
episodes to enable us to syndicate the series. Typically, at least 65 episodes
of a series must be produced for it to be "stripped" or syndicated in the daily
re-run market. Generally, networks can cancel a series at stated intervals and,
accordingly, do not commit in advance to exhibit a series for more than a
limited period. If a series is canceled (or not carried for the period necessary
to create enough episodes for syndication purposes), there is a significant
chance that the production costs of the project will not be fully recovered.
Similar risks apply even if the series is produced for a non-network medium. We
believe, however, that foreign pre-sales and international co-production
opportunities will provide sufficient options to obtain production financing and
additional revenue potential. Moreover, basic cable channels continue to provide
outlets for series of between 13 to 26 episodes per season. We intend to focus
our production activity in the following areas or genres: drama series,
reality-based series, game shows, comedy series, movies-of-the-week, and
mini-series. It is our intention to expand the production of our dramatic and
reality-based programming, over the next 24 months. Such programming, if any,
will be licensed in foreign markets through our sales personnel where we do not
have foreign partners.
We acquired the rights to produce a weekly dramatic television series based
on the motion picture "Total Recall," which generated over $320 million in
world-wide box office receipts in 1990. We entered into an agreement with
Alliance Atlantis, a leading Canadian production company, pursuant to which
Alliance Atlantis co-produced and co-financed the initial 22 episodes of the
series with us. The German rights have been licensed by Pro-Sieben, who is
acting as a co-producer of the series. We also entered into an agreement with
PolyGram Television (which was subsequently sold to Universal Pictures),
pursuant to which PolyGram co-financed and acquired U.S. television distribution
rights to the series. The agreement with PolyGram includes a 22 episode
commitment in exchange for a license fee and a percentage of the net profits of
the series. PolyGram sold the series, entitled Total Recall 2070, to the U.S.
pay television network, Showtime Network, where it debuted in March 1999. "First
run" domestic syndication is being handled by PolyGram for
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airing to begin in January 2000. Miramax, which acquired the theatrical sequel
rights to "Total Recall," has also acquired worldwide (other than Canada, Japan
and Spain) home video rights to the series from us.
We, together with Alliance Atlantis, have agreed to extend the date
pursuant to which Showtime must elect to proceed with a second season, and are
currently providing interim financing so as to reserve production facilities and
retain the services of the appropriate actors. A second season is desirable as
Universal has sold 44 episodes (which would include a second season) in over 80%
of the U.S. television markets. No assurance can be given, however, that we will
be able to obtain financing for the second season, or if the decision is made to
proceed, that we will be able to hold the creative elements in place to
effectuate a second season. Moreover, if a second season is commenced, it will
not likely have a material impact on the Company's financial results for fiscal
1999. By co-producing the series with Alliance Atlantis, the series qualifies
for certain Canadian co-production and tax benefits. The proceeds from all
distribution of the series, after recoupment of production costs, will be
allocated 40% to us and 60% to Alliance. As part of the co-production agreement,
we are to assign our license agreements to the co-production and pay over to the
production account all deposits we have received to date.
We have also entered into agreements with the Fox Family Channel in the
U.S. for the production of two movies-of-the-week. The first, Earthquake in New
York is a story about an earthquake in New York City. The production was
financed by the Fox Family Channel. We have received our executive producing
fee. Earthquake in New York aired on the Fox Family Channel in October 1998, and
on ARD in Germany after that date. The second movie-of-the-week, Down Fall, is
about an avalanche at an exclusive ski resort. The script for Down Fall which
has already been written, was paid for by the Fox Family Channel. No additional
funds have been advanced by the Fox Family Channel for the Down Fall production
as of this date, although we expect this to occur by the end of 1999 so that
production can be completed for an early 2000 U.S. air date.
We have received a firm commitment, subject to satisfaction of the
condition that financing for the series be in place by December 1, 1999, from
Discovery's Animal Planet for the initial production of 13 one-hour episodes of
The Call of the Wild, based on Jack London's classic novel. The series began
pre-production in July 1999 with our Canadian production partner. We have agreed
to guaranty $1,000,000 of interim financing from a third party investor relative
to this financing, and the Company has received a commitment from Imperial Bank
for the permanent financing. Delivery of the series is expected to take place
from December 1999 through February 2000. The Company has entered into a letter
of intent with Scanbox Asia Pacific Limited ("Scanbox") pursuant to which
Scanbox has agreed to a distribution guarantee of $310,000 per episode in
exchange for distribution rights outside the U.S. The agreement is subject to
numerous conditions, and no assurance can be given that the Scanbox transaction
will be effected.
LIVE ACTION AND ANIMATED CHILDREN'S PROGRAMMING. To take advantage of what
we believe is a significant television market for children's programming, we
intend to develop and produce inventive and original shows, including both
animated series and live-action series.
NON-FICTION/LIGHT ENTERTAINMENT PROGRAMMING. With the rapid expansion of
national cable and network programming outlets, consumer demand for non-fiction,
reality based "docudrama" programming has increased. Channels such as The Fox
Network, UPN, The WB Network, TBS, The Discovery Channel, The Learning Channel,
Animal Planet, The Travel Channel and Lifetime have found quality non-fiction
programming to be a mainstay of their programming portfolio. We intend to
capitalize upon the programming expertise developed by management prior to our
formation.
We have an extensive slate of reality-based series which are currently
being sold in the international marketplace. Such programs include Strange
Universe, a 130 half-hour five day per week ("strip") syndicated series which
was produced in association with United/Chris-Craft television stations and
Rysher Entertainment. Amazing Tails, a weekly series of 48 half hours featuring
people and their pets, was initially financed by a presale for approximately
$1,441,700 to Interpublic for domestic distribution and broadcast.
We have sold, and are currently in production on, 26 half-hours of
Destination: Style, to Discovery's Travel Channel. Destination: Style offers a
cinema verite look at today's most exotic faces in the world's most exotic
places. From the runway show to the seductive magazine spread, each episode
takes a behind-the-scenes peek at some of today's most recognizable and
desirable international models, including a personal look at their emotions, how
they cope with the locales, the elements, the time clock, how they rest and how
they play. The series is scheduled to debut in mid-October. Destination: Style
is being produced in association with Big Daddy Productions.
Additionally, we have sold Conversations with Remarkable People, which is
hosted by Chantal Westerman, to the Wisdom Network. Two one-hour primetime
specials, one featuring Father Thomas
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Keeting and the other Quincy Jones, have been completed. A third primetime
special with former Texas Governor Anne Richards is in pre-production and will
be completed by year-end.
We have an agreement in principle with Canada's Microtainment Productions,
to act as a co-producer with us, of 26 episodes of a series entitled Robin
Leach's Wildlife Styles. The primetime magazine focuses on the drama, mystery
and majesty of the animal kingdom. Robin Leach's Wildlife Styles travels the
world with well known celebrities bringing animal-loving viewers the most
dramatic, amazing and hilarious wildlife styles ever seen on television. The
series begins production shortly and is scheduled to broadcast worldwide by
spring of 2000.
Other co-productions include America's Scenic Railway Journeys, a six hour
documentary mini-series devoted to famous railway journeys. We have co-produced
this series with Oregon Public Television for the PBS Network and have paid
Oregon Public Television an advance for the international distribution rights to
the mini-series.
ACQUISITIONS AND SIGNIFICANT LICENSES
An active part of our business is the presentation of our own product as
well as product acquired from third-party producers to the international
marketplace. Our current library includes approximately 3,000 hours of family,
dramatic, reality-based series and specials and films. With the rapid increase
of networks and channels, there is an expanding demand for top-quality
programming. To access these markets, our distribution personnel attend such
major international trade shows as MIPCOM-TV, MIP-TV and NATPE.
On June 25, 1999, we purchased from Film Libraries, Inc., a library of 28
made-for-television movies for a total purchase price of $2,200,000, $1,200,000
payable in cash and $1,000,000 payable in our common stock. Of the purchase
price, $200,000 in cash and $100,000 in our common stock are payable to 2
individuals as commissions.
As of the date hereof, the Company has accepted 20 of the 28 titles. Eight
of the titles have delivery deficiencies which have not yet been cured. The
Company is negotiating with the seller regarding a reduction of the purchase
price if these rights are ultimately undeliverable. If the price is reduced,
either the cash or common stock purchase, or both, may be adjusted. As of the
date hereof, the Company has paid approximately $1,100,000 in respect of the
purchase, and has not yet issued any common stock, but reserved 170,000 shares
for such issuance.
On August 2, 1999, we purchased from DD Video, the worldwide rights outside
the UK of a library of approximately 11 television series (from 2 to 38 episodes
each) and 20 one hour documentary specials. The purchase price was $3,400,000;
$1,187,500 of which has been paid; $737,500 which is due by December 15, 1999;
$737,500 which is due by March 15, 2000 and $737,500 which is due by June 15,
2000.
We have acquired the rights for distribution in all Latin American
countries, including Mexico and Puerto Rico, of the one hour dramatic series
Water Rats, a high suspense police action drama set in Sydney, Australia (116
episodes delivered for the first four seasons), and the one hour dramatic series
Cover Story,which takes place on the set of a television entertainment magazine
program (26 episodes delivered). These shows were acquired from the Australian
production company Southern Star. To date, we have cumulative sales of
approximately $700,000 for Mexican broadcast television and pan-Latin American
satellite broadcast television with the majority of terrestrial broadcast rights
remaining available for sale.
We have also acquired Latin American home video and television distribution
rights to 78 hours of dramatic films from Beyond Distribution PTY Ltd., a
leading Australian production company. See "Business -- Legal Proceeding" for a
discussion regarding a lawsuit which has been filed by Beyond.
In addition, we have an active "format" business overseas, where we
represent and "reformat" successful foreign shows for the domestic marketplace
and vice versa. We also currently represent several other custom formats which
are under consideration in numerous territories.
The acquisition of Dandelion Distribution Ltd., will enhance our
distribution capacity in England and Europe and bring us close to offering
approximately 2,500 hours of programming.
On June 28, 1999, we entered into a five year license for 20 of the
made-for-television-movies with Renown Pictures, Ltd., a UK based company. For
the license, we will receive $3,300,000, $400,000 of which was received in
August 1999 and $725,000 of which was received in October 1999, with the balance
due in three equal payments of $725,000 each on December 30, 1999, March 30,
2000 and June 30, 2000. See
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<PAGE> 37
"Certain Relationships and Related Transactions" for a discussion of the impact
of the acquisition of Dandelion Distribution Ltd., on the receivable from Renown
Pictures, Ltd.
In September 1999, the Company entered into a 10 year license agreement for
certain European territories including Germany, France and Italy, of 20
made-for-television movies with String of Pearls Plc. At September 30, 1999, the
receivable due from String of Pearls Plc was $5,375,000. Subsequent to such date
the Company received a payment of $290,000 per the terms of agreement. Further,
one of our shareholders has personally guaranteed the obligation of String of
Pearls to pay the entire license fee.
As of November 15, 1999, we also agreed to purchase worldwide distribution
rights (exclusive of the United Kingdom, France, Scandinavia, South Africa,
Spain and Benelux) from String of Pearls PLC, to six feature films for a
purchase price of $3,360,000. We will pay $336,000 on or about November 20, 1999
with 10 consecutive monthly payments of $280,000 commencing December 20, 1999
and a final payment of $229,000 by October 20, 2000. The term for the
acquisition is through October 31, 2009. To the extent that String of Pearls Plc
fails to pay any amounts owed to us, we have the right to offset against amounts
owed to String of Pearls Plc.
LICENSING AND MERCHANDISING
Our strategic objectives encompass the exploitation of additional revenue
streams through licensing and merchandising efforts. We hope to generate new
profit centers from toy, publishing, CD-ROM, housewares, stationary, video,
apparel, and other product category licenses. Although no assurance can be given
that this strategy can be successfully implemented, we and Alliance Atlantis,
the co-producer of Total Recall 2070, have begun to focus on the marketing and
merchandising rights that are available with respect to the Total Recall 2070
series. The financial importance of these rights will likely be impacted by the
decision to renew for a second season.
COMPETITION
The entertainment industry is highly competitive. We compete with, and will
compete with, many organizations, including major film studios, independent
production companies, individual producers and others, including networks, who
are seeking the rights to attractive literary properties, the services of
creative and technical personnel, the financing for production of film and
television projects and favorable arrangements for the distribution of completed
films. Many of our competitors are organizations of substantially larger size
and capacity, with far greater financial and personnel resources and longer
operating histories. Moreover, the entertainment industry is currently evolving
into an industry in which certain multinational, multi-media entities, including
Viacom/Paramount Pictures, The News Corporation/Twentieth Century Fox, The Walt
Disney Company/Cap Cities-ABC, Time Warner/Turner Broadcasting and CBS are
anticipated to be in a position, by virtue of their control over key film,
magazine, and/or television content and their control of key network and cable
outlets, to dominate certain communications industry activity. These competitors
have numerous competitive advantages, including the ability to acquire financing
for their projects and attract superior properties, personnel, actors and/or
celebrity hosts.
As compared to the major production and distribution entities referred to
above, our market capitalization and revenue is de minimis.
EMPLOYEES
We currently employ, including our newly acquired and formed European
operations, 19 full-time employees, eight of whom are members of senior
management. From time to time, as projects go into production, temporary
employees are also employed by us. During the periods ended December 31, 1998,
December 31, 1997 and December 31, 1996 we had an average of 13, 11, and 8
employees, respectively.
INVESTMENTS
During 1998, 1997, 1996 and the nine months ended September 30, 1999 we
made no material investments in the acquisition of fixed assets and the
acquisition of financial assets, such as equity holdings or other investments. A
substantial portion of our assets is in intangible assets, largely film rights
which are intellectual property. We do not have significant investments in fixed
assets such as plant and equipment, real property or inventory. We consider
financial assets to be equity or debt securities which are tradeable and have a
readily available market value. As of the date hereof we do not consider our
investments in or acquisitions of wholly-owned subsidiaries as financial assets.
For 1999, we currently expect to make aggregate investments in fixed assets
in the amount of approximately $500,000, which will be financed largely through
working capital. Approximately 60% of these
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<PAGE> 38
investments will be made in the U.S. and 40% in Europe. We currently have no
definite plans for the acquisition of financial assets.
DIVIDENDS
We currently intend to retain all earnings and thus will not be issuing
dividends. Moreover, certain of our notes restrict our ability to pay dividends,
and we anticipate similar prohibitions if we obtain a regular commercial line of
credit.
LICENSES AND MATERIAL CONTRACTS
The exploitation of products produced by and acquired from third-party
producers forms an important part of our business operations. See
"Business -- Distribution". As part of the ordinary course of our business, we
carefully assess the title of our licensing partners to such properties. We also
seek to obtain contractual representations and warranties from our licensing
partners to the effect that such licensing partners have sufficient title to and
may license the properties licensed by us.
The exploitation of film properties forms a particularly significant part
of our business. The validity and enforceability of the licensing agreements to
which we are a party is important to our financial position and results of
operations. As of September 30, 1999, three license agreements comprised 88% of
our accounts receivable. See "Risk Factors -- Our reliance on certain customer
and our allowances for possible uncollectible receivables."
DESCRIPTION OF PROPERTY
We currently lease office space at 12300 Wilshire Boulevard, Los Angeles,
California from an unaffiliated third party, pursuant to a 36 month lease that
began on May 15, 1995 and was extended for an additional 12 months. The lease
terminated on May 14, 1999; however, we continue to rent the space, which is
approximately 4,700 square feet, on a month to month basis, at a monthly rate of
$2.35 per square foot.
As of November 3, 1999, we have entered into a lease for 11,000 square feet
of office space at 11818 Wilshire Blvd., Los Angeles, California from an
unaffiliated third party. The lease is for a period of five years which will
commence upon the earlier of our occupancy of the premises or February 15, 2000.
The rent is initially $2.85 per square foot; gradually increasing to $3.21 per
square foot in the fifth lease year. It is estimated that the cost of the build
out for the new space will be approximately $800,000, of which approximately 40
percent will be paid by the landlord. We believe that this new office space will
be adequate for our requirements over the term of the lease. Additional space if
necessary for growth or short term productions is available throughout the Los
Angeles area at commercially reasonable rates.
LEGAL PROCEEDINGS
In January 1999, we were served with a complaint in a matter styled Mel
Giniger & Associates vs. Team Communications Group, Inc. et al filed in the
Superior Court of the County of Los Angeles. In the complaint, the Plaintiff, an
individual who served as a sales agent for us, alleges that he is owed
commissions for sales of certain of our programming and that we have failed to
pay in full the amounts Plaintiff alleges are owed to him. The complaint seeks
damages for breach of contract, services rendered, account stated and for
payment of value for services rendered. We have filed an answer in this action,
and intend to vigorously defend ourselves. The Plaintiff recently obtained a
writ of attachment in the amount of $100,000 and we have posted a bond with the
Superior Court of the County of Los Angeles with respect to this obligation.
On October 24, 1999, the Company was served with a complaint from Beyond
Entertainment, the licensee of Water Rats Seasons I & II. The complaint, which
seeks an accounting and termination of the license agreement, seeks $3,000,000
in contractual damages and $6,000,000 for negligence and fraud. The Company
believes the complaint to be totally without merit and intends to vigorously
contest the matter.
At this time, the outcome of any of the above matters cannot be determined
with any certainty.
Other than as indicated above, within the past 2 years, we have not been
involved in any other legal dispute or arbitration proceeding the outcome of
which could materially impact our business, financial condition and results of
operations, nor are we aware that any such additional legal proceedings are
threatened.
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MANAGEMENT
DIRECTORS AND EXECUTIVE OFFICERS
The following table sets forth certain information with respect to the
directors and executive officers of the Company.
<TABLE>
<CAPTION>
NAME AGE POSITION
---- --- --------
<S> <C> <C>
Chairman of the Board of Directors and Chief Executive
Drew S. Levin.............. 46 Officer
Jonathan D. Shapiro........ 44 President, Chief Operating Officer and Director
Larry Friedricks........... 62 Co-President of Team International
Paula Fierman.............. 51 Co-President of Team International
Timothy A. Hill............ 33 Senior Vice President, Chief Financial Officer, Secretary
Eric Elias................. 44 Senior Vice President, Business and Legal Affairs
Declan O'Brien............. 34 Senior Vice President, Development
Jane Sparango.............. 37 Senior Vice President, Development and Production
W. Russell Barry(1)(2)..... 63 Director
Michael Jay
Solomon(1)(2)............ 61 Director
</TABLE>
- ---------------
(1) Member of the Compensation Committee
(2) Member of the Audit Committee
Drew S. Levin has been our President, Chief Executive Officer and Chairman
of the Board of since we were formed in 1995. With the hiring of Mr. Shapiro in
January 1999, Mr. Levin relinquished the title of President. From 1987 through
1994, Mr. Levin was President of DSL Productions, Inc. ("DSP"), a privately held
company that was sold to The Producer's Entertainment Group, Inc. ("TPEG") in
1994. Through February 1995, he continued to act as president of DSP, which
operated as a subsidiary of TPEG. Mr. Levin has produced and co-produced
hundreds of hours of programming, including "Future Quest," for which Mr. Levin
received an Emmy Award, "Hollywood Stuntmakers," "FX Masters" and "Forces
Beyond" for the Discovery Network. Mr. Levin has extensive experience in
international co-productions, including co-producing a domestic and
international version of "Top of the Pops" with the British Broadcasting Company
for the CBS television network and the Montreux Rock Festival for the Showtime
Network.
Jonathan D. (Jody) Shapiro has been President, Chief Operating Officer and
a Director since January 1, 1999. Before joining the Company, Mr. Shapiro was
employed at Harmony Holdings Inc., where he was Executive Vice President, as
well as President of Harmony Entertainment, Inc., from 1998 to 1999. During
1997, Mr. Shapiro was an independent consultant. From 1993 to December 1996, he
was President and Chief Executive Officer of CST Entertainment, Inc., where he
executive produced the award winning made for television movie "Wyatt Earp:
Return to Tombstone", as well as other series. From 1990 to 1993, Mr. Shapiro
was President of RHI Television Sales (formerly New Line Television
Distribution). From 1986 to 1990, he was at Qintex Entertainment, Inc., where he
served as both Executive Vice President of Qintex Telecommunications Group and
President of Hal Roach Studios Syndication, Inc. Mr. Shapiro began his career at
Telepictures Corporation, attaining the position of Senior Vice President of
Domestic Television.
Michael Jay Solomon has been a member of the Board of Directors since
August 1998. Mr. Solomon has over 41 years experience in the entertainment
business. In 1978, Mr. Solomon founded Telepictures Corp., serving as its
Chairman of the Board and Chief Executive Officer. In 1985, Telepictures Corp.
merged with Lorimar Inc., with Mr. Solomon being appointed as the combined
companies' President. From 1989 to April 1994, Mr. Solomon was President of
Warner Bros. International Television, heading up that company's sales and
marketing to television, cable and satellite companies outside of the United
States. For the past four years, Mr. Solomon has been Chairman and Chief
Executive Officer of Solomon Broadcasting International, a television
communications company which he formed in April 1994. In 1997, Mr. Solomon
became the U.S. representative of Telefonica, Spain, in its new digital Pay TV,
Pay-Per-View and Basic Cable Television System -- Via Digital. Mr. Solomon
serves on the Boards of Directors of the International Council of the National
Academy of Television Arts and Sciences and the New York University Stern School
of Business.
W. Russell Barry has been a member of the Board of Directors since March
16, 1999. Mr. Barry has more than thirty years experience as a senior management
executive in broadcasting, television production, and worldwide distribution.
From 1961 to 1976, Mr. Barry worked for CBS and held various sales and
management positions including Vice President and General Manager of KNXT (CBS
owned station in Los Angeles). In 1976, he joined 20th Century Fox as Vice
President Network Sales and subsequently became
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<PAGE> 40
President of 20th Century Fox Television. Recruited in 1981 by Playboy
Enterprises as President of their production company, he negotiated a joint
venture with Cablevision and launched the Playboy Channel. From 1983 to 1986, he
was President of Taft Entertainment Television. In 1986, he was named President,
and then in June of 1995, Chairman of Turner Program Services, the television
distribution company for Turner Broadcasting. During those twelve years, his
responsibilities included the worldwide marketing and sales of CNN, the MGM
library, Hanna Barbera and other Turner programing. Currently, he is a partner
in Bandit Films and consults for several companies.
Larry Friedricks has recently been hired to be a Co-President of a to be
formed subsidiary of the Company, Team International. Before that, he has been a
consultant to the Company since March 1998. Mr. Friedricks co-founded PAULAR
Entertainment L.L.C. in July 1996, where he has served as consultant since such
date. PAULAR specializes in sales and marketing, both domestically and
internationally, to all forms of media. Before forming PAULAR Entertainment, Mr.
Friedricks served as Executive Vice President with Jones Entertainment Group
("JEG"), a division of Jones Intercable, where he was responsible for overseeing
world-wide marketing and distribution of their television product as well as
locating outside investment opportunities. He also supervised co-productions
with European partners. Mr. Friedricks was with the NASDAQ-traded Kushner-Locke
Company from 1991 to 1995 as President of the newly formed sales division.
Between 1982 and 1991, Mr. Friedricks was Executive Vice President of
AMEX-traded Fries Entertainment. Mr. Friedricks is married to Ms. Fierman.
Paula Fierman has also recently been hired to be the other Co-President of
Team International. Before that, she has been a consultant to the Company since
March 1998. From 1996 to November 1999, Ms. Fierman worked as a consultant with
PAULAR Entertainment, specialized in sales and marketing, both domestically and
internationally, to all forms of media. Before forming PAULAR Entertainment with
Larry Friedricks, Ms. Fierman served as Senior Vice President International with
Jones Entertainment Group ("JEG"), a division of Jones Intercable, where she was
responsible for marketing campaigns, public relations and promotion, as well as
direct sales of JEG television, home video and feature films worldwide. Prior to
JEG, Ms. Fierman served as Senior Vice President International at Kushner-Locke.
Between 1987 and 1991, Ms. Fierman was Senior Vice President International at
Fries Entertainment. Ms. Fierman is married to Mr. Friedricks.
Timothy A. Hill has been Senior Vice President, Chief Financial Officer and
Secretary since August 18, 1998. Prior to joining the Company, Mr. Hill served
as Controller for Spelling Films, Inc. From 1994 to 1996, Mr. Hill was a Manager
for Price Waterhouse LLP, where he worked with entertainment, media and
communications clients. From 1989 to 1994, he was Manager with Arthur Andersen
LLP. Mr. Hill is a certified public accountant. He received a Bachelor's of
Science Degree in Accounting from Pepperdine University. Mr. Hill is a member of
the American Film Market Association, where he serves as Chairman of the Finance
Committee.
Eric Elias has served in the capacity as Senior Vice President, Business
and Legal Affairs since our formation in 1995. Mr. Elias has previously served
as corporate counsel and general manager for a retail and wholesale leisure
electronics firm and, for the past twelve years, has been in general private
practice of law, providing business and legal affairs services for television
production entities similar to the Company.
Declan O'Brien has been Senior Vice President, Development since April 13,
1998. For the past 5 years, Mr. O'Brien has worked for several television and
motion picture companies located at The Walt Disney Company Studios. From 1996
to 1998, Mr. O'Brien served as Director of Development at Goldenring
Productions. Prior to 1996, he was involved in production at Touchstone
Pictures. Mr. O'Brien holds a Bachelor of Arts degree from California State
University, Pomona, where he was graduated with honors.
Jane Sparango is Senior Vice President of Development and Production. Ms.
Sparango, who joined the Company in December 1998, manages the acquisition,
development and production of our reality-based and light entertainment
television series. In her seventeen-year career in broadcasting, Ms. Sparango
has produced over 550 hours of television. Before joining the Company, Ms.
Sparango was a producer on "Unsolved Mysteries" for CBS Television and
Cosgrove/Muerer Productions. Prior to that, Ms. Sparango produced "Zooventure",
a children's game show for the Discovery Network and Pearson/All American
Television. In 1988 she was appointed coordinating producer on the news magazine
program "Inside Edition" for King World Productions. Ms. Sparango worked on the
hit series "Lifestyles of the Rich and Famous" for over ten years at Television
Program Enterprises (TPE) in New York and was named producer in February
1990 -- a position she also held on another spin-off show -- "Runaway with the
Rich and Famous".
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Our executive officer and directors can be reached at our principal
executive offices at 12300 Wilshire Boulevard, Suite 400, Los Angeles, CA 90025,
U.S.A.
INVOLVEMENT IN CERTAIN LEGAL PROCEEDINGS
In January 1997, CST Entertainment, Inc., a publicly held company primarily
involved in the colorization of old "black and white" film material, filed for
federal bankruptcy protection in the Southern District of California. From 1993
to December 1996, Mr. Shapiro, our current President, Chief Operating Officer
and a director, was president, chief executive officer and a director of CST
Entertainment, Inc.
AGGREGATE COMPENSATION OF ALL EXECUTIVE OFFICERS
The aggregate compensation paid to the Company's executive officers in
1998, including individuals who are no longer with the Company, was $1,169,115.
COMPENSATION OF DIRECTORS
Under the 1996 Directors Plan, which plan has been incorporated into the
1999 Stock Option, Deferred Stock and Restricted Stock Plan, Mr. Solomon and Mr.
Barry, who are non-employee directors, each received an option to purchase
30,000 shares of our common stock at the then effective exercise price of $2.50
per share and $2.00 per share, respectively. Non-employee directors received no
other compensation from the Company in fiscal year 1998.
EMPLOYMENT CONTRACTS AND TERMINATION OF EMPLOYMENT, AND CHANGE IN CONTROL
AGREEMENTS
Drew Levin. The Board of Directors approved, as of October 8, 1999, which
was subsequently amended as of October 29, 1999, a new 5 year employment
agreement with Mr. Levin (the "Levin Agreement") providing for his services as
Chairman of the Board of Directors and Chief Executive Officer. The Levin
Agreement, which is effective as of August 1, 1999, provides for the payment to
Mr. Levin of a base salary of $550,000 per year, with annual increases of 4% on
each anniversary date of the Levin Agreement (the "Annual Salary"). Mr. Levin is
to receive a one time bonus of $250,000, $100,000 of which was paid to him on
October 29, 1999, the remaining $150,000 to be paid on January 2, 2000. Mr.
Levin has also agreed to repay any outstanding loans he has from the Company
with the first to occur of his proceeds as a selling shareholder in this
offering or the remainder of his January 2, 2000 bonus. Mr. Levin will also
receive an annual bonus calculated for each fiscal year as follows: if we have
net pre-tax earnings of up to $2,000,000, Mr. Levin will receive 5% of such net
pre-tax earnings and if we have net pre-tax earnings of greater than $2,000,000,
Mr. Levin will receive 7.5% of such net pre-tax earnings. Mr. Levin will also
receive options to purchase an aggregate of 1,115,000 shares of our common stock
pursuant to the 1999 Stock Option, Deferred Stock and Restricted Stock Plan.
250,000 of such options were granted as of the date of the Levin Agreement,
vesting as of that date and are exercisable at $6.063 per share (the closing bid
price of our common stock on September 24, 1999, the last business date
preceding the date the Board of Directors initially considered Mr. Levin's
employment agreement). 865,000 of such options are to be granted on the date
this offering closes, vesting at the time of grant and are exercisable at the
market price of our common stock on the date the offering closes. All options
being granted to Mr. Levin have a 5 year term. Mr. Levin shall also receive a
monthly car allowance of $1,500.
The Levin Agreement also provides that if Mr. Levin dies or becomes unable
to perform his duties, functions and responsibilities for a period of 3
consecutive months or shorter periods aggregating 4 months within any 12 month
period, the Company may terminate Mr. Levin, in which case Mr. Levin or his
beneficiary shall be entitled to receive all of Mr. Levin's base salary, accrued
share of bonus for that fiscal year and thereafter for an additional one year
period. If the Company were to terminate Mr. Levin without cause, Mr. Levin
would be entitled to receive (i) a lump sum payment equal to the Annual Salary,
as well as unpaid vacation pay, unreimbursed business expenses and any other
monies payable to Mr. Levin under any employee benefit plan; (ii) the right to
obtain a transfer of any life insurance policy existing for the benefit of Mr.
Levin; and (iii) 120% of the balance of the Annual Salary payable through the
end of term of the Levin Agreement, as due and scheduled under the Levin
Agreement as if Mr. Levin had not been terminated. If Mr. Levin is terminated
for cause, as defined in the Levin Agreement, Mr. Levin shall be entitled to
receive the amount of his Annual Salary accrued up to the date of termination,
his accrued bonus for that fiscal year, if any, and all fringe benefits which
have accrued up till that date.
Jonathan D. (Jody) Shapiro. We have entered into a new employment agreement
with Mr. Shapiro (the "Shapiro Agreement") providing for his services as
President and Chief Operating Officer, effective as of
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October 29, 1999. The term of the Shapiro Agreement continues until December 31,
2000. Pursuant to the terms of the Shapiro Agreement, Mr. Shapiro will be paid
an annual salary of $220,000 through December 31, 1999. Additionally, Mr.
Shapiro has received a bonus of $80,000 which was paid on October 29, 1999. Mr.
Shapiro will also receive an additional bonus of $170,000 upon completion of
this offering. Mr. Shapiro shall be paid a base salary of $350,000 for the
calendar year 2000. At any time after January 1, 2000, either we or Mr. Shapiro
has the option of converting the Shapiro Agreement into a non-exclusive
consulting agreement. If either party exercises such option, Mr. Shapiro shall
be paid a lump sum of $250,000, less any compensation received by Mr. Shapiro
for such calendar year. Mr. Shapiro has been granted 90,000 stock options at an
exercise price of $1.65 per share, such options are fully vested.
Larry Friedricks. We have entered into an employment agreement with Larry
Friedricks (the "Friedricks Agreement") to serve as Co-President of Team
International, a to be formed wholly owned subsidiary of the Company dated as of
November 1, 1999. The term of the Friedricks Agreement is for 3 years,
commencing on November 15, 1999 and ending on December 31, 2002, subject to Mr.
Friedricks' right to terminate his employment upon 60 days prior written notice
should Mr. Drew Levin no longer be the Company's Chairman of the Board and Chief
Executive Officer. Mr. Friedricks is to be paid an annual salary of $220,000,
with 4 percent increases on each anniversary date of the Friedricks Agreement.
Mr. Friedricks shall be eligible to participate in all bonus and profit sharing
plans adopted by the Company. Mr. Friedricks is to be granted 60,000 stock
options at an exercise price equal to the average of the bid and asking price of
the Company's common stock on the date immediately preceding the date of the
Friedricks Agreement. The options vest as follows: 20,000 after the end of the
first year of employment; 20,000 after the end of the second year of employment;
and 20,000 after the end of the third year of employment. All options expire 90
days after the termination of Mr. Friedricks' employment with the Company.
Paula Fierman. We have entered into an employment agreement with Paula
Fierman (the "Fierman Agreement") to serve as Co-President of Team
International, a to be formed wholly owned subsidiary of the Company dated as of
November 15, 1999. The term of the Fierman Agreement is for 3 years, commencing
on November 15, 1999 and ending on December 31, 2002, subject to Ms. Fierman's
right to terminate her employment upon 60 days prior written notice should Mr.
Drew Levin no longer be the Company's Chairman of the Board and Chief Executive
Officer. Ms. Fierman is to be paid an annual salary of $180,000, with 4 percent
increases on each anniversary date of the Fierman Agreement. Ms. Fierman shall
be eligible to participate in all bonus and profit sharing plans adopted by the
Company. Ms. Fierman is to be granted 30,000 stock options at an exercise price
equal to the average of the bid and asking price of the Company's common stock
on the date immediately preceding the date of the Fierman Agreement. The options
vest as follows: 10,000 after the end of the first year of employment; 10,000
after the end of the second year of employment; and 10,000 after the end of the
third year of employment. All options expire 90 days after the termination of
Ms. Fierman's employment with the Company.
Timothy A. Hill. We have entered into an employment agreement with Timothy
A. Hill (the "Hill Agreement") providing for his services as Senior Vice
President/Chief Financial Officer effective August 17, 1999. The term of the
Hill Agreement is for 2 years. Mr. Hill is to be paid a salary of $150,000 for
the first year and $175,000 for the second year. Mr. Hill shall be entitled to a
minimum annual bonus of $15,000. Mr. Hill is to be granted 40,000 stock options
at the exercise price equal to the price of our common stock on the grant date,
to vest equally on a monthly basis over the term of the Hill Agreement.
EXECUTIVE COMPENSATION
The following table provides certain summary information concerning the
compensation earned for services rendered in all capacities to us for the fiscal
years ended December 31, 1998, 1997 and 1996 by our Chief Executive Officer (the
"Named Executive Officer"):
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
STOCK ALL OTHER
NAME AND PRINCIPAL POSITION(1) YEAR SALARY BONUS OPTIONS COMPENSATION
------------------------------ ---- -------- -------- ------- ------------
<S> <C> <C> <C> <C> <C>
Drew S. Levin(5)........................ 1998 $220,000 $145,000 $13,400(4)
Chairman of the Board 1997 $220,000 $145,000
and Chief Executive Officer 1996 $350,000 $ 45,000(2) (3)
</TABLE>
- ---------------
(1) Other than salary described herein, the Company did not pay the Named
Executive Officer any compensation, including incidental personal benefits
in excess of 10% of the Named Executive Officer's salary.
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<PAGE> 43
(2) For the fiscal year ended December 31, 1996, Mr. Levin was entitled,
pursuant to the terms of his prior agreement, to a bonus equal to certain
producer's fees relating to the series Amazing Tails. During such period Mr.
Levin received $45,000 and, pursuant to the terms of his new employment
agreement (which became effective upon the closing of the public offering in
August 1998), has agreed to apply the balance of such accrued but unpaid
bonus ($175,000) to repay certain loans made to him by the Company. This
amount ($175,000) was reflected in Mr. Levin's compensation for fiscal 1998.
Mr. Levin will no longer receive production bonuses. The loan balance is
$179,400 as of the date hereof. Such amount is net of amounts owed to Mr.
Levin for accrued producer fees and the bonus effective April 1, 1998. See
"Certain Relationships and Related Transactions."
(3) Pursuant to the terms of Mr. Levin's prior employment agreement, Mr. Levin
was granted options to acquire 85,000 shares of our common stock at $5.50
per share, exercisable upon our initial public offering. These options are
fully vested.
(4) Mr. Levin was entitled to receive a car allowance of $1,250 per month for 8
months and $850 per month for 4 months.
(5) For the fiscal year ending December 31, 1998, the Company has granted Mr.
Levin a bonus, effective as of April 1, 1998, of $70,000 in respect of his
services for 1997. This amount is in addition to his agreed upon contractual
compensation. In addition, Mr. Levin received a bonus of $30,000 pursuant to
the terms of his prior employment agreement for the fiscal year ended
December 31, 1998.
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Short Term Borrowings by Mr. Levin. The Company has currently due from
officer a balance of $170,400. The Company had due from officer balances of
$145,400, $195,500 and $11,300 at December 31, 1998, December 31, 1997 and
December 31, 1996, respectively, representing short-term interest free loans
made by the Company to Mr. Levin, less producer's fees earned for services on a
Company production. At December 31, 1998, December 31, 1997 and December 31,
1996, the amount of such loans owed by Mr. Levin to the Company (which also
represents the highest amount borrowed during such periods) was $145,400,
$195,500 and $11,300, respectively. As of September 30, 1999, the amount of such
loans is $170,400, with a majority of the disinterested members of the Board of
Directors having approved the additional $25,000 loan. Such amount is net of
amounts owed to Mr. Levin for accrued producer fees and bonus effective April 1,
1998. Borrowings by any officer of the Company require the approval of a
majority of the disinterested members of the Board. There is no interest being
charged on the amount Mr. Levin owes the Company and there is no interest
accruing on the producer fees previously owed by the Company to Mr. Levin. Mr.
Levin has agreed to repay the outstanding balance with the first to occur of his
receipt of the proceeds of the sale of his common stock offered hereunder, or
the remainder of his January 2, 2000 bonus.
Transactions With Eric Elias. Mr. Elias, who serves as Senior Vice
President, Business and Legal Affairs, is paid through his private law firm. In
1997 Mr. Elias received approximately $125,000, including expense
reimbursements, for such legal services. In 1998, Mr. Elias received
approximately $170,000, including expense reimbursements, for such legal
services. On June 30, 1997, Mr. Elias was granted an option to purchase 12,500
shares of common stock at the Company's initial public offering price of $5.50
per share. On October 8, 1999, Mr. Elias was granted an option to purchase an
additional 50,000 shares of our common stock, exercisable at $6.25 per share.
Mr. Elias' option has a 5 year term and vests ratably on a monthly basis over a
2 year period.
Transactions With Renown Pictures, Ltd.; Transactions with Noel Cronin. As
of November 15, 1999, the Company was owed $2,220,000 in respect of a receivable
from Renown Pictures, Ltd., a United Kingdom corporation ("Renown"), pursuant to
the acquisition of a five year license for 20 movies-of-the-week. Prior to such
date, $1,125,000 had been paid by Renown. Renown is owned by Noel Cronin,
formerly the owner of 100% of the stock of Dandelion Distribution Ltd, which was
acquired by us in October 1999. Mr. Cronin currently owns 386,847 shares of the
Company's common stock (approximately 5%). So as to avoid any conflicts, Mr.
Cronin has assigned the rights to the programming and the obligation to pay the
balance of the receivable to Doljac Television Limited. Mr. Cronin, on behalf of
the Company, has retained the right to act as a subdistributor of the product
acquired by Renown.
In effectuating the acquisition of the 20 movies-of-the-week, Renown acted
on behalf of a group of investors (the "Investors") who treated the transaction
as a sale-leaseback through Renown, thus entitling them to certain tax
deductions under UK law. The Investors have confirmed that they will complete
all additional funding with Doljac so as to complete the acquisition.
Noel Cronin is also a director of String of Pearls Plc. In September 1999,
the Company entered into a 10 year license agreement for certain European
territories including Germany, France and Italy, of 20 made-for-television
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<PAGE> 44
movies with String of Pearls Plc. At September 30, 1999, the receivable due from
String of Pearls Plc was $5,375,000. Mr. Cronin has personally guaranteed the
obligation to pay the license fee from String of Pearls to us. Subsequent to
such date the Company received a payment of $290,000 per the terms of agreement.
In August 1999, the Company acquired the "Victory 1" library from DD Video
for $3,400,000. Mr. Cronin sold DD Video to its current owners in April 1998.
Mr. Cronin is a director of DD Video, although he received no compensation,
either directly or indirectly, in respect of this action.
Transactions with Underwriter. Gontard & MetallBank, the underwriter of
this offering, owns 500,000 shares of our outstanding common stock. This
represents 7.2% of our outstanding stock. These shares were purchased at a price
of $4.00, a discount of approximately $2.00 per share from the then current
market price. In connection with this offering, Gontard & MetallBank will
receive commissions and fees, including the reallowance for members of the
underwriting syndicate, of 10%.
Transactions with Joseph Cayre. The Company was indebted to Joseph Cayre,
one of its original shareholders, in respect of loans made in April and August
1995 in the amount of $500,000 and $240,000, respectively. Interest on these
loans accrued at the prime rate established by Republic National Bank, New York,
New York, plus 2% per year and 14% per year, respectively. Mr. Cayre has waived
the interest that accrued on these loans prior to December 31, 1996. This
interest expense, at fair value, was recorded as either a corresponding credit
to paid in capital (in fiscal 1996), or accrued liabilities (in fiscal 1997 and
in fiscal 1995), which will be offset against paid in capital upon settlement of
the obligations. Mr. Cayre's loans were secured by Mr. Levin's shares and all of
the assets of the Company. In February 1996, in connection with a prior
restructuring of this indebtedness, Mr. Cayre received options to purchase
48,743 shares of Common Stock at a price of $.43 per share, which options are
exercisable at the time of the Company's initial public offering.
Mr. Cayre and Mr. Levin agreed that as of the closing of the Company's
initial public offering, Mr. Cayre would receive payment of $250,000 in respect
of the amounts owed to him, and the remaining debt, if the Company's initial
public offering was consummated on or before July 30, 1998, would be extended
until thirteen months from the closing date of the Company's initial public
offering. Subject to the foregoing, Mr. Levin and Mr. Cayre also agreed to
restructure Mr. Cayre's investment in the Company. Mr. Cayre agreed that upon
the closing of the Company's initial public offering, Mr. Cayre's interest in
the Company would be reduced to 214,874 shares of the Company's Common Stock by
transferring to Mr. Levin 195,774 shares of the Company's common stock held by
Mr. Cayre. Mr. Cayre also entered into a consulting agreement with the Company
pursuant to which he was paid $260,000 for his consulting services to the
Company through September 30, 1998.
As of the date hereof, all indebtedness to Mr. Cayre has been repaid, and
the transfer of stock from Mr. Cayre to Mr. Levin was effectuated.
Transactions with Morris Wolfson and Others. In January 1996, the Company
entered into a transaction with AMAE Ventures, an affiliate of Mr. Morris
Wolfson, formerly a 5% shareholder of the Company, pursuant to which AMAE
Ventures acquired 4% of the Company's outstanding Common Stock and lent to the
Company the sum of $322,000, which amount was used by the Company for general
overhead purposes and bears interest at 12% per year. This note was due on the
earlier to occur of July 15, 1998 or the closing of the Company's initial public
offering, and was subject to certain anti-dilutive provisions. Interest on this
line accrued at 10% per year. The holder of such note had the right to convert
the principal amount into 3% of the Company's Common Stock on a fully diluted
basis through the completion of the Company's initial public offering, and has
in fact converted such note. An April 1996 loan by South Ferry #2 L.P., a
Delaware limited partnership (which may be deemed an affiliate of Mr. Wolfson),
in the principal amount of $500,000 was used for the pre-production of
"LoCoMoTioN." This loan bore interest at 10% per year and was due on the earlier
to occur of July 15, 1998 or upon the closing of the Company's initial public
offering. In connection with such loan, South Ferry #2 L.P. received 29,905
warrants exercisable at $.43 per share upon the closing of the Company's initial
public offering and a 5% net profit participation from the series. South Ferry
#2, L.P. is an entity controlled by Mr. Wolfson's brother and has an arms length
relationship with the Company. Finally, the Chana Sasha Foundation, an entity
controlled by Mr. Wolfson, extended the Company a $400,000 line of credit on a
secured basis in November 1996, which credit line has been used and subsequently
repaid by funds from the Company's operations. In addition, the Company issued
to Chana Sasha Foundation and others 6,408 shares of the Company's Common Stock
in consideration for such extension of credit.
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<PAGE> 45
The terms of AMAE Ventures' original agreement with the Company, as
indicated above, enabled such entity (or its investors) to receive up to an
additional 199,748 shares of Common Stock upon the completion of the Company's
initial public offering.
The July 1996 proceeds from the sale of the notes in the Total Recall
Financing were used to acquire the rights to produce a television series based
on "Total Recall." These notes, which were secured by the Company's underlying
rights to the "Total Recall" series, bore interest at 10% per year. In addition,
the holders of these notes received an aggregate of 53,403 shares of common
stock, warrants to acquire 21,361 shares of Common Stock at an exercise price of
$.43 upon the closing of the Company's initial public offering and a 15% net
profit participation in the Company's interest in the series. This loan was
repaid through an advance from Alliance Atlantis.
As of the date hereof, all of the indebtedness to Morris Wolfson and
related parties has been repaid.
We believe that the foregoing transactions were on terms no less favorable
to us than those available from unaffiliated parties. It is our current policy
that all transactions with officers, directors, 5% shareholders and their
affiliates will be entered into only if such transactions are approved by a
majority of the disinterested independent directors, and on terms no less
favorable to us than could be obtained from unaffiliated parties and are
reasonably expected to benefit us.
STOCK OPTION PLANS
As of May 26, 1999, our Board of Directors approved, and recommended for
adoption by the shareholders, who adopted such plan on June 11, 1999, the 1999
Stock Option, Deferred Stock and Restricted Stock Plan (the "1999 Stock Plan").
As part of the 1999 Stock Plan, we incorporated into it our 1996 Stock Awards
Plan and our 1996 Directors' Stock Option Plan. All outstanding awards under
those plans have been converted into equivalent awards under the 1999 Stock
Plan. Such awards will continue to have the same terms, conditions and exercise
prices as they had under the prior plans.
The 1999 Stock Plan increases the aggregate number of shares available for
the grant of options to an amount equal to 20% of then current outstanding
shares of our common stock, such figure to be adjusted as and when we increase
our outstanding shares of common stock. The initial number of shares shall be
approximately 1,100,000. The 1999 Stock Plan provides for the grant of qualified
incentive stock options ("ISOs") that meet the requirements of Section 422 of
the Internal Revenue Code of 1986, as amended, stock options not so qualified
("NQSOs"), deferred stock and restricted stock awards ("Grants"). The 1999 Stock
Plan is administered by a committee of directors appointed by the Board of
Directors (the "Committee"). ISOs may be granted to our officers and key
employees or any of our subsidiaries. The exercise price for any ISO granted
under the 1999 Stock Plan may not be less than 100% (or 110% in the case of ISOs
granted to an employee who is deemed to own in excess of 10.0% of the
outstanding common stock) of the fair market value of the shares of common stock
at the time the option is granted. The exercise price for any NQSO granted under
the 1999 Stock Plan may not be less than 85.0% of the fair market value of the
shares of common stock at the time the option is granted. The purpose of the
1999 Stock Plan is to provide a means of performance-based compensation in order
to attract and retain qualified personnel and to provide an incentive to those
whose job performance affects us.
The number of shares reserved for issuance under the 1999 Stock Plan is
subject to anti-dilution provisions for stock splits, stock dividends and
similar events. If an option granted under the 1999 Stock Plan expires or
terminates, or a Grant is forfeited, the shares subject to any unexercised
portion of such option or Grant will again become available for the issuance of
further options or Grants under the 1999 Stock Plan.
Under the 1999 Stock Plan, we may make loans available to stock option
holders, subject to the Committee's approval, in connection with the exercise of
stock options granted under the 1999 Stock Plan. If shares of common stock are
pledged as collateral for such indebtedness, such shares may be returned to us
in satisfaction of such indebtedness. If so returned, such shares shall again be
available for issuance in connection with future stock options and Grants under
the 1999 Stock Plan.
Unless previously terminated by the Board of Directors, no options or
grants may be granted under the 1999 Stock Plan after May 25, 2009.
Options granted under the 1999 Stock Plan will become exercisable according
to the terms of the grant made by the Committee. Grants will be subject to the
terms and restrictions of the award made by the Committee. The Committee has
discretionary authority to select participants from among eligible persons and
to determine at the time an option or Grant is granted and in the case of
options, whether it is intended to be an ISO or a NQSO, and when and in what
increments shares covered by the option may be purchased. Under
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<PAGE> 46
current law, ISOs may not be granted to any individual who is not also an
officer or employee of ours or any of our subsidiaries.
The exercise price of any option granted under the 1999 Stock Plan is
payable in full:
- in cash;
- by surrender of shares of our common stock already owned by the option
holder having a market value equal to the aggregate exercise price of all
shares to be purchased including, in the case of the exercise of NQSOs,
restricted stock subject to a Grant under the 1999 Stock Plan;
- by cancellation of indebtedness owed by us to the option holder;
- by a full recourse promissory note executed by the option holder; or
- by any combination of the foregoing.
The terms of any promissory note may be changed from time to time by the Board
of Directors to comply with applicable Internal Revenue Service or Securities
and Exchange Commission regulations or other relevant pronouncements.
The Board of Directors may from time to time revise or amend the 1999 Stock
Plan and may suspend or discontinue it at any time. However, no such revision or
amendment may impair the rights of any participant under any outstanding option
or Grant without such participant's consent or may, without shareholder
approval, increase the number of shares subject to the 1999 Stock Plan or
decrease the exercise price of a stock option to less than 100% of fair market
value on the date of grant (with the exception of adjustments resulting from
changes in capitalization), materially modify the class of participants eligible
to receive options or Grants under the 1999 Stock Plan, materially increase the
benefits accruing to participants under the 1999 Stock Plan or extend the
maximum option term under the 1999 Stock Plan.
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<PAGE> 47
PRINCIPAL AND SELLING SHAREHOLDERS
The following table sets forth information known to us with respect to the
beneficial ownership of our shares of common stock as of November 10, 1999, and
as adjusted to reflect the sale of shares of common stock offered hereby by (1)
each shareholder known by us to own beneficially more than 5% of our shares of
common stock, (2) each of the Named Executive Officers, (3) each director, (4)
all our directors and executive officers as a group, and (5) the selling
shareholder.
<TABLE>
<CAPTION>
SHARES OF COMMON SHARES OF COMMON
STOCK BENEFICIALLY STOCK BENEFICIALLY
OWNED BEFORE SALE OWNED AFTER SALE
UNDER THIS UNDER THIS
PROSPECTUS(2) PROSPECTUS(2)
NAME AND ADDRESSES OF ---------------------- SHARES TO ----------------------
BENEFICIAL OWNERS(1) NUMBER PERCENTAGE BE SOLD(3) NUMBER PERCENTAGE
--------------------- --------- ---------- ---------- --------- ----------
<S> <C> <C> <C> <C> <C>
OFFICERS AND DIRECTORS:
Drew S. Levin(2)(3)......................... 860,123 11.8% 150,000 710,123 5.3%
Noel D. Cronin(4)........................... 386,847 5.5% -- 386,847 3.0%
Michael J. Solomon(5)....................... 50,000 * -- 50,000 *
W. Russell Barry(6)......................... 30,000 * -- 30,000 *
Jonathan D. Shapiro(7)...................... 90,000 1.3% -- 90,000 *
All Officers and Directors as a group(8).... 1,416,970 18.8% 150,000 1,266,970 9.3%
5% SHAREHOLDERS:
Gontard & MetallBank AG..................... 500,000 7.2% -- 500,000 3.9%
</TABLE>
- ---------------
* Less than 1% of the outstanding shares of Common Stock.
(1) Unless otherwise indicated, the address of each listed stockholder is c/o
TEAM Communications, Inc., 12300 Wilshire Boulevard, Suite 400, Los Angeles,
California 90025.
(2) Beneficial ownership is determined in accordance with the rules of the
Securities and Exchange Commission. In computing the number of shares
beneficially owned by a person and the percentage ownership of that person,
shares of common stock subject to options or warrants held by that person
that are currently exercisable or will become exercisable within 60 days
after November 10, 1999, are deemed outstanding, while such shares are not
deemed outstanding for purposes of computing percentage ownership of any
other person. Unless otherwise indicated in the footnotes below, the persons
and entities named in the table have sole voting and investment power with
respect to all shares beneficially owned, subject to community property laws
where applicable.
The number and percentage of shares beneficially owned are based on the
aggregate of (i) 6,979,138 shares of Common Stock outstanding as of
November 10, 1999, and (ii) 12,979,138 shares of Common Stock outstanding
after the completion of this offering.
(3) Includes options to acquire 85,000 shares of common stock at an exercise
price of $5.50 per share which the Company granted to Mr. Levin concurrently
with the execution of his prior employment agreement. Also includes options
to purchase 250,000 shares of common stock issued pursuant to Mr. Levin's
new employment agreement, which are exercisable at $6.063 per share. Does
not include options to purchase 865,000 shares which are issuable contingent
on the closing of this offering.
(4) Does not include an option to purchase 75,000 shares of common stock at an
exercise price of $6.063 per share, none of which have yet vested.
(5) Includes an option to purchase 30,000 shares of common stock at an exercise
price $2.50 per share.
(6) Includes an option to purchase 30,000 shares of common stock at an exercise
price $2.00 per share.
(7) Includes an option to purchase 90,000 shares of common stock at an exercise
price of $1.65 per share.
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<PAGE> 48
DESCRIPTION OF CAPITAL STOCK AND OTHER SECURITIES
COMMON STOCK
We are authorized to issue up to 40,000,000 shares of common stock, no par
value. As of November 10, 1999, there were 6,979,138 shares of common stock
outstanding which were held of record by 87 shareholders. Holders of common
stock are entitled to one vote for each share held of record on each matter
submitted to a vote of shareholders. There is cumulative voting for election of
directors. Under cumulative voting, a shareholder is entitled, in electing
directors, to cumulate his votes and give one candidate a number of votes equal
to the number of directors to be elected, multiplied by the number of votes to
which the shareholder's shares are normally entitled, or to distribute his votes
on the same principle among other candidates. In other words, if there are 5
directors to be elected, and the shareholder has 10 voting shares, he has 10
votes for each director or a total of 50 votes, and he may cast them all for one
director. The purpose of cumulative voting is to permit minority shareholders to
combine and secure some representation on the board. For this reason, it is
necessary that the directors be elected as a board, i.e., all at the same time;
and in the removal of directors, the right to cumulate votes is likewise
protected. Cumulative voting is not permitted (1) for any candidate whose name
has not been placed in nomination or (2) without prior notice of intention to
cumulate. If one shareholder gives such notice, all shareholders may cumulate
their votes for candidates in nomination.
Subject to the prior rights of any series of preferred stock which may from
time to time be outstanding, if any, holders of common stock are entitled to
receive ratably, dividends when, as and if declared by the Board of Directors
out of funds legally available therefor and, upon the liquidation, dissolution,
or winding up of the Company, are entitled to share ratably in all assets
remaining after payment of liabilities and payment of accrued dividends and
liquidation preferences on the preferred stock, if any.
Holders of common stock have no preemptive rights and have no rights to
convert their common stock into any other securities. Accordingly, if we decide
to issue new shares from our authorized capital, existing shareholders may be
severely diluted. See "Risk Factors -- Need for additional capital, dilution and
need of future financings."
The outstanding shares of common stock are validly authorized and issued,
fully paid, and nonassessable.
PREFERRED STOCK
We are authorized to issue up to 10,000,000 shares of preferred stock. As
of November 10, 1999, there were no shares of preferred stock outstanding. The
preferred stock may be issued in one or more series, the terms of which may be
determined at the time of issuance by the Board of Directors, without further
action by shareholders and may include voting rights (including the right to
vote as a series on particular matters), preferences as to dividends and
liquidation, conversion rights, redemption rights and sinking fund provisions.
Holders of shares of common stock will have no pre-emptive rights to purchase
newly issued shares of preferred stock. We have no present plans for the
issuance of shares of preferred stock. The issuance of any preferred stock could
adversely affect the rights of the holders of common stock and therefore, reduce
the value of the common stock. The ability of the Board of Directors to issue
preferred stock could also discourage, delay or prevent a takeover. See "Risk
Factors -- Preferred Stock; Possible Anti-Takeover Effects of Certain Charter
Provisions."
WARRANTS
At November 10, 1999, there were warrants outstanding to purchase a total
of 1,307,384 shares of common stock. These warrants will remain outstanding
after the completion of this offering.
PRE-IPO WARRANTS
In connection with the issuance of prior secured notes, we have issued an
aggregate of 427,354 warrants, each warrant entitling the holder thereof to
acquire one share of common stock; 224,293 warrants are exercisable at an
exercise price equal to $0.43 per share, 29,191 warrants are exercisable at an
exercise price equal to $0.97 per share, 193,870 warrants are exercisable at
$0.97 per share, 20,000 warrants are exercisable at $2.45 and 10,000 warrants
are exercisable at $2.00, subject to adjustment as hereinafter provided. The
warrants may be exercised, at the option of the holder at any time. To date,
288,113 of such warrants have been exercised. Unless exercised during their
term, the right to exercise the warrants terminates on their expiration date.
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<PAGE> 49
CONSULTANT'S WARRANTS
Prior to 1998, we issued 147,924 warrants to other consultants and
investors in connection with prior financings. Of these warrants, 21,362 are
exercisable at $1.07 per share and 126,562 are exercisable at $0.43 per share,
all of which are currently exercisable. During 1998 and 1999, we granted
warrants to purchase our common stock to the following individuals and entities
for services provided to us: (i) 22,000 and 10,000 warrants, respectively, to
Mansion House International and Danny Chan, respectively, exercisable at $2.75
per share, (ii) 5,000 warrants to Hedblom Partners, exercisable at $3.50 per
share, (iii) 200,000 warrants to Glen Michael Financial; 100,000 exercisable at
$1.62 per share, 75,000 exercisable at $3.00 per share and 25,000 exercisable at
$3.25 per share, and (iv) 10,000 warrants to Ralph Olsen, exercisable at $2.00
per share. In addition, we granted (x) 121,000 and 10,000 warrants,
respectively, to Chase Financing Ltd., and Robert Herskowitz, respectively,
exercisable at $1.62 per share and (y) an aggregate of 20,000 warrants, 5,000
each to Investor Relations Services, Aurora Holdings, Amber Capital and
Affiliated Services, respectively, exercisable at $2.45 per share, in connection
with debt that was raised. Century City Securities, Inc., was issued 100,000
warrants exercisable at $2.20 per share, for consulting services.
NATIONAL SECURITIES CORPORATION'S WARRANT
As part of our initial public offering, we issued to National Securities
Corporation a warrant to purchase for investment a maximum of 150,000 shares of
common stock. This warrant is exercisable for a four-year period commencing one
year from July 29, 1999. The exercise price is $7.425 per share (that being 135%
of the initial public offering price per share). The warrant is not saleable,
transferable, assignable or hypothecatable prior to its exercise date except to
officers of National Securities Corporation and members of their selling group
and officers and partners thereof. The warrant contains anti-dilution
provisions. The warrant does not entitle National Securities Corporation to any
rights as a shareholder until it is exercised and shares are purchased
thereunder. The 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. We have agreed that, if we shall cause to be filed with the
Securities and Exchange Commission either an amendment to the Registration
Statement from our initial public offering or a separate registration statement,
National Securities Corporation shall have the right during the seven-year
period commencing on July 29, 1999 to include in such amendment or Registration
Statement the shares of common stock issuable upon exercise of the warrant at no
expense to National Securities Corporation. Additionally, we have agreed that
for a period of 5 years from the closing of the initial public offering, upon
written demand by a holder or holders of a majority of the warrant, we will, on
one occasion, register the shares of common stock issuable upon exercise of the
warrant at our expense. In addition, we have agreed, that during the same 5 year
period, upon the written demand of any holder of the warrant, to promptly
register the shares of common stock underlying such holder's warrant at the
expense of such holder.
POST-IPO BRIDGE WARRANTS
In connection with the sale of debentures made between January and March
1999, we also issued warrants to purchase 185,000 shares of common stock. The
warrants are exercisable at a price equal to 110% of the per share market value
as of the last trading day prior to the date of the issuance of the warrants.
The price is $2.16 per share for 85,000 of the warrants and $2.20 per share for
100,000 of the warrants.
In connection with the $350,000 bridge financing, we issued 35,000 warrants
which are exercisable at $7.61 per share. Finally, in connection with the
$4,000,000 bridge financing, we issued 340,000 warrants which are exercisable at
$7.00 per share which was subsequently reduced to $6.50 per share.
WARRANT TERMS
The warrant holders have the opportunity to profit from a rise in the
market price of the common stock without assuming the risk of ownership of the
shares of common stock issuable upon the exercise of the warrants, with a
resulting dilution in the interests of the Company's shareholders by reason of
exercise of warrants at a time when the exercise price is less than the market
price for the common stock. Further, the terms on which we could obtain
additional capital during the life of the warrants may be adversely affected.
The warrant holders may be expected to exercise their warrants at a time when we
would, in all likelihood, be able to obtain any needed capital by an offering of
common stock on terms more favorable than those provided for by the warrants.
The holders of the warrants will not have any of the rights or privileges
of shareholders, including voting rights and rights to receive dividends, prior
to exercise of the warrants. We reserve out of its authorized but
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<PAGE> 50
unissued shares a sufficient number of shares of common stock for issuance on
exercise of the warrants. The common stock issuable on exercise of the warrants
will be, when issued, duly authorized and validly issued, fully paid, and
nonassessable.
For a holder to exercise the warrants, there must be a current registration
statement in effect with the Securities and Exchange Commission and registration
or qualification with, or approval from, various state securities agencies with
respect to the shares or other securities underlying the warrants, or an opinion
of our counsel that there is an exemption from registration or qualification.
ANTIDILUTION. In the event that we shall at any time:
- declare a dividend, or make a distribution, on the outstanding common
stock payable in shares of our capital stock;
- subdivide the outstanding common stock into a greater number of shares of
common stock;
- combine the outstanding common stock into a smaller number of shares; or
- issue any shares of its capital stock by reclassification of the common
stock (including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing
corporation),
then, in each case, the exercise price per warrant share in effect at the time
of the record date for the determination of shareholders entitled to receive
such dividend or distribution or of the effective date of such subdivision,
combination or reclassification shall be adjusted so that it shall equal the
price determined by multiplying such exercise price by a fraction, the numerator
of which shall be the number of shares of common stock outstanding immediately
prior to such action, and the denominator of which shall be the number of shares
of common stock outstanding after giving effect to such action. Upon such
adjustments to the exercise price, the number of warrant shares issuable upon
exercise of each warrant shall simultaneously be adjusted by multiplying the
number of warrant shares theretofore issuable upon exercise of such warrant by
the exercise price theretofore in effect and dividing the product so obtained by
the exercise price, as adjusted.
REORGANIZATIONS. In the event of any reclassification, capital
reorganization or other similar change of outstanding common stock, any
consolidation or merger involving the Company (other than a consolidation or
merger which does not result in any reclassification, capital reorganization, or
other similar change in the outstanding common stock), or a sale or conveyance
to another corporation of the property of the Company as, or substantially as,
an entirety, each warrant will thereupon become exercisable only for the kind
and number of shares of stock or other securities, assets or cash to which a
holder of the number of shares of common stock issuable (at the time of such
reclassification, reorganization, consolidation, merger or sale) upon exercise
of such warrant would have been entitled upon such reclassification,
reorganization, consolidation, merger or sale. In the case above, the effect of
these provisions would be that the holder of a warrant would thereafter be
limited to exercising such warrant at the exercise price in effect at such time
for the amount of cash per share that a warrant holder would have received had
such holder exercised such warrant and received common stock immediately prior
to the effective date of such cash merger or transaction. Depending upon the
terms of such cash merger or transaction, the aggregate amount of cash so
received could be more or less than the exercise price of the warrant.
EXERCISE PROCEDURE. Each holder of a warrant may exercise such warrant by
surrendering the certificate evidencing such warrant, with the subscription form
on the reverse side of such certificate properly completed and executed,
together with payment of the exercise price, to us at our executive offices. The
exercise price will be payable by cash or by certified or official bank check
payable in U.S. Dollars to the order of the Company. If fewer than all of the
warrants evidenced by a warrant certificate are exercised, a new certificate
will be issued for the remaining number of warrants. Certificates evidencing the
warrants may be exchanged for new certificates of different denominations by
presenting the warrant certificates at the office of the Company.
BRIDGE NOTES
At November 10, 1999, there was a $4,000,000 convertible note outstanding
with conversion rights into shares of common stock. The unpaid balance on this
note as of November 30, 1999 may be converted into common shares at the holders'
option. The conversion price is the lesser of 120% of the average per share
market price for five consecutive trading days prior to August 5, 1999 or 88% of
the per share market price for the three days with the lowest per share market
price during the twenty-five days prior to conversion. We anticipate paying off
these instruments after the completion of this offering.
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PRE-IPO BRIDGE NOTES
To finance our working capital needs, we have issued a series of bridge
notes. In February 1997, we commenced the placement of units consisting off
$50,000 principal amount of 10% Convertible Notes (the "February 1997 Notes")
and 10,000 common stock purchase warrants. We sold an aggregate of $969,350
principal amount of the February 1997 Notes. The principal amount of, and
interest on, the February 1997 Notes were due and payable on our initial public
offering. The February 1997 Notes were convertible into shares of common stock
during the period commencing 60 days after the closing date and continuing
through the effective date of the initial public offering. Substantially all of
the notes holders have waived their right to convert.
In June 1996 we commenced the placement of units consisting of $50,000
principal amount of 10% Secured Convertible Notes (the "June 1996 Notes") and
10,000 common stock purchase warrants. We sold an aggregate of $975,000
principal amount of the June 1996 Notes. The principal amount of, and interest
on, the June 1996 Notes were due and payable, if the holders thereof do not
otherwise notify us that they were converting their notes, on the completion of
our initial public offering. The June 1996 Notes are secured by substantially
all of our assets. To the extent not otherwise repaid, the June 1996 Notes
became convertible into shares of common stock, beginning 12 months after the
completion of our initial public offering, at a conversion price of $2.50 per
share, subject to an adjustment in certain events. Substantially all the holders
of these notes have waived their right to so convert.
In February 1996, we commenced the placement of units consisting of $50,000
principal amount of 12% Secured Notes (the "February 1996 Notes") and 10,000
common stock purchase warrants. We sold an aggregate of $900,000 principal
amount of the February 1996 Notes. The principal amount of, and interest on, the
February 1996 Notes were due and payable on the second anniversary of the
initial closing date thereof, and were secured by substantially all of our
assets. These notes were not convertible.
All but $588,750 of the February 1997 Notes, the June 1996 Notes and the
February 1996 Notes were repaid from the proceeds of our initial public
offering, other working capital, or subsequent conversions into our common
stock.
In December 1997, we obtained a loan in the amount of $315,000 from Venture
Management Consultants, LLC ("VMC"), affiliates of shareholders of the Company,
which accrues interest at 12% per year, and matured upon the earlier of the
closing of the initial public offering or July 15, 1998. As the loan was not
repaid by February 15, 1998, we were required to pay VMC an additional fee of
$15,000. Included in the principal to be repaid is a $15,000 loan origination
fee. This note has been repaid in full.
Between March 1998 and May 1998, we arranged for short term loans (the
"Interim Financing") of an aggregate of $1,642,000. A majority of such loans
were made by present shareholders and their affiliates. These loans matured as
follows: (i) $642,000 on July 15, 1998; (ii) $235,000 on June 15, 1998; (iii)
$115,000 on November 15, 1998; (iv) $150,000 on March 16, 1999; (v) $250,000 on
April 1, 1999; and (vi) $250,000 on April 18, 1999. These loans, other than the
$642,000, $115,000 and $235,000 loans accrue interest at 12% per year. The
$235,000 loan includes a $35,000 origination fee, and a $10,000 late fee as the
note was not paid at June 15, 1998. The note did not accrue interest. The
$642,000 loan has a fixed interest amount of $78,000 (which has not been paid
and is due upon the maturity of the loan) and includes a $42,000 loan
origination fee. The $115,000 loan includes a $15,000 loan origination fee.
In May, June and July 1998, we arranged for loans from 10 parties of an
aggregate of $715,000 for specific production financing. These loans mature as
follows: (i) $375,000 on January 10, 2000; and (ii) $340,000 on August 1, 1999.
The $375,000 loans accrue interest as 12% per year and the $340,000 loan accrues
interest at 16% per year. Of the $375,000, there are two loan origination fees,
one for $8,000 and one for $8,500. If any payments under the $340,000 loan are
not paid within three days of being due, a late fee of 8% of the delinquent
amount will be assessed for each month the payment is delinquent. In addition,
if the loan is in default, at the lender's option, the unpaid principal and
accrued interest shall thereafter bear interest at the lesser of 25% per year or
the maximum legal rate. The loan may be prepaid, however, in order to prepay the
loan, we will have to pay the lender the lesser of all of the interest which
would have accrued through the maturity of the loan or $42,000. As of November
10, 1999, $75,000 remains outstanding and matures on January 10, 2000.
POST IPO SECURITIES PLACEMENTS
Between January and March 1999, the Company sold to 5 investors an
aggregate principal amount of $1,850,000 of 8% convertible debentures and
warrants to purchase up to 185,000 shares of common stock. The
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holders of these debentures have converted their debentures into common stock.
In June 1999, four of the debenture holders purchased an additional 175,000
shares of common stock for an aggregate of $700,000.
In July 1999, we arranged for a short term loan of $1,200,000 for
production and distribution activities. The loan matures on November 30, 1999
and accrues interest at 12% per year. If the loan is not repaid by November 30,
1999, the principal and all accrued and unpaid interest convert into shares of
our common stock at the lesser of 85% of the market price on the date of
issuance or 110% of the current market price when converted. As of this date we
have repaid $1,000,000 of this note.
On July 29, 1999, the Company sold 64,800 shares of common stock to Arab
Commerce Bank for $162,000.
On August 5, 1995 we completed a $4,000,000 bridge financing with Hudson
Investors, LLC. The note matures on November 30, 2002 and accrues interest at
12% per year. All or part of the unpaid principal amount may be converted into
shares of common stock at the holder's option any time after November 30, 1999.
The conversion price is the lesser of 120% of the average per share market price
for five consecutive trading days prior to August 5, 1999 or 88% of the per
share market price for the three days with the lowest per share market price
during the twenty-five days prior to conversion. Connected with this financing,
we issued 340,000 warrants to purchase our common stock at 105% of the five-day
average closing price prior to the closing of the financing, which equals $7.00.
On August 5, 1999, we sold 500,000 shares of common stock for $2,000,000 to
Gontard & MetallBank AG. On October 5, 1999 we completed a $4,000,000 bridge
financing with Gontard & MetallBank AG. Their note bears interest at 10% per
year and matures on the earlier of the completion of this offering or December
31, 1999.
On September 27, 1999, the Company, pursuant to court order, issued 30,000
shares of common stock to Venture Management Consultants, LLC.
On October 20, 1999, the Company sold 10,000 shares of common stock to
Ivonne Altagracia Medrano Gongalez for $30,000 and 20,000 shares of common stock
to Cantor GbR for $60,000.
On October 29, 1999, the Board of Directors approved the issuance to Ocean
Management of warrants to purchase 100,000 of common stock; 50,000 at an
exercise price of $3.50 per share and 50,000 at an exercise price of $4.00 per
share, for consulting services.
On November 12, 1999, we sold to Arbora Vermogensverwaltungen AG, 175,000
shares of common stock for $700,000.
TRANSFER AGENT
The transfer agent for our common stock is U.S. Stock Transfer Corporation,
1745 Gardena Avenue, Glendale, California 91204, telephone number (818)
502-1404, which also is responsible for record keeping functions in connection
with the same.
SHARES ELIGIBLE FOR FUTURE SALE
Our common stock trades on the NASDAQ SmallCap Market under the symbol
"TMTV." Sales of substantial amounts of our common stock in the public market or
the perception that such sales could occur could materially adversely affect the
prevailing market price and our ability to raise equity capital in the future.
On November 10, 1999, we had 6,979,138 shares outstanding and have applied
to have such shares listed on The NASDAQ SmallCap Market. This amount does not
include shares which, in the future, may be issued under options or warrants.
Upon completion of the offering, we will have issued and outstanding 12,979,138
shares of common stock. The shares that have been registered are freely
tradeable without restriction under the Securities Act of 1933, unless purchased
by "affiliates" as that term is defined in Rule 144 under the Securities Act of
1933.
The remaining shares of unregistered common stock outstanding upon
completion of this offering, determined as if all outstanding warrants have been
exercised, will be held by approximately holders and will be "restricted
securities" as that term is defined in Rule 144 as promulgated under the
Securities Act ("Restricted Stock"). Restricted Stock may be sold in the public
market only if registered or if qualified for an exemption from registration
under Rule 144 or Rule 701 as promulgated under the Securities Act, which
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rules are summarized below, or pursuant to another exemption from registration.
Sales of the Restricted Stock in the public market, or the availability of such
shares for sale, could materially adversely affect the market price of the
common stock. In general, under Rule 144, beginning 90 days after the date of
the final prospectus from our initial public offering, a person (or persons
whose shares are aggregated) who has beneficially owned Restricted Stock for at
least one year (including the holding period of any prior owner other than an
affiliate of the Company) would be entitled to sell within any three month
period a number of shares that does not exceed the greater of (i) one percent of
the number of shares of common stock then outstanding or (ii) the average weekly
trading volume of the common stock during the four calendar weeks preceding the
filing of notice of such sale. Sales under Rule 144 are also subject to certain
manner of sale provisions and notice requirements and to the availability of
current public information about us. Under Rule 144(k), a person who is not
deemed to have been an affiliate of ours at any time during the three months
preceding a sale, and who has beneficially owned the shares proposed to be sold
for at least two years (including the holding period of any prior owner except
an affiliate of ours) is entitled to sell such shares without complying with the
manner of sale, public information, volume limitation or notice provisions of
Rule 144.
Any employee, officer or director of or consultant to us who purchased his
or her shares of common stock pursuant to a written compensatory plan or
contract may be entitled to rely on the resale provisions of Rule 701. Rule 701
permits affiliates of ours to sell their Rule 701 shares under Rule 144 without
complying with the holding period requirements of Rule 144, as described above.
Rule 701 further provides that nonaffiliated shareholders may sell such shares
in reliance on Rule 144 without having to comply with the public information,
volume limitation or notice provisions of Rule 144. In both cases, a holder of
Rule 701 shares was required to wait until 90 days after the date of the final
prospectus from our initial public offering before selling his shares.
We have filed a registration statement on Form S-8 under the Securities Act
of 1933 covering shares of common stock reserved for issuance under the 1999
Stock Plan. Based on the number of shares reserved for issuance under the 1999
Stock Plan, such registration statement covers approximately 1,100,000 shares.
Such registration statement automatically became effective upon filing.
Accordingly, shares registered under such registration statement are, subject to
Rule 144 volume limitations applicable to our affiliates, available for sale in
the open market, subject to vesting restrictions.
We, our officers, our directors and the selling shareholder and certain
significant shareholders have warranted to the Deutsche Borse AG and have agreed
with the Underwriters not to dispose of or hedge any of their common stock or
securities convertible into or exchangeable for shares of common stock during
the six months after the date of admission of the shares of common stock to the
Regulated Market (Geregelter Markt) with trading on the Neuer Markt of the
Frankfurt Stock Exchange, except with the prior written consent of the Deutsche
Borse AG and Gontard & MetallBank AG acting on behalf of the Underwriters.
In addition, the selling shareholder has agreed not to sell or otherwise
transfer any of his shares remaining after the offer for an additional seven
months directly following the preceding six months period.
In connection with the lock-up agreements, with the consent of the
officers, directors and stockholders subject to such lock-up agreements, we have
instructed the Registrar and Transfer Agent not to effect any share transfers
without our consent. As a consequence thereof, shares that are subject to the
lock-up agreements may not be recorded in the name of Cede & Co., and may
therefore not be introduced to clearing through The Depository Trust Company for
the time the Registrar and Transfer Agent remain so instructed.
THE GERMAN EQUITY MARKET
GERMAN SECURITIES LAWS
As a United States company offering securities on a German stock exchange,
we are subject to various laws and regulations in both jurisdictions. Some of
these laws and regulations, in turn, can affect the ability of holders of our
securities to transfer or sell such securities.
At present, Germany does not restrict the export or import of capital,
except for investments in Iraq and Libya in accordance with applicable
resolutions adopted by the United Nations and the European Union. However, for
statistical purposes only, every individual or corporation residing in Germany
(hereinafter, a "Resident") must report to the German Central Bank (Deutsche
Bundesbank), subject only to certain immaterial exceptions, any payment received
from or made to an individual or a corporation resident outside Germany
(hereinafter, a "Non-resident") if such payment exceeds DM 5,000 (2,550 Euros,
or the equivalent in a foreign currency). In addition, Residents must report any
claims against or any liabilities payable to Non-
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residents if such claims or liabilities, in the aggregate, exceed DM 3 million
(1.53 million Euros, or the equivalent in a foreign currency) during any one
month. Residents must also report any direct investment outside Germany if such
investment exceeds DM 100,000 (51,000 Euros, or the equivalent in a foreign
currency).
There are no limitations on the right of Non-resident owners to hold or
vote the shares imposed by German law or the Amended and Restated Articles of
Incorporation or the Amended and Restated Bylaws.
THE FRANKFURT STOCK EXCHANGE AND THE NEUER MARKT
The Frankfurt Stock Exchange is the most significant of the eight German
stock exchanges and accounted for approximately 78% of the turnover in traded
shares in Germany in 1998. The aggregate annual turnover of the Frankfurt Stock
Exchange in 1998 of approximately DM 8,338 billion, based on the Frankfurt Stock
Exchange's practice of separately recording the sale and purchase components
involved in any trade, for both equity and debt instruments, made it the fourth
largest stock exchange in the world behind the New York Stock Exchange, London
and Tokyo in terms of turnover.
The Neuer Markt segment of the Frankfurt Stock Exchange is a trading
segment that was launched in March 1997. It is designed for innovative, small to
mid-size companies in high growth industries or in traditional industries that
have an international orientation and that are willing to provide active
investor relations. Issuers are requested to provide investors on an ongoing
basis with information such as annual and quarterly reports, including cash flow
statements, and a corporate action timetable. This information is required to be
submitted in English and German as well as in electronic form, thus enabling the
stock exchange to disseminate corporate information via the Internet.
GERMAN TAX MATTERS
The following is a summary of certain tax matters arising under German tax
law in force at the date of this prospectus. The summary does not purport to be
a comprehensive description of all of the tax considerations which may be
relevant as to the decision to acquire shares of common stock. The summary is
based on the tax laws of Germany in effect on the date of this prospectus, which
may be subject to changes, possibly with retroactive effect. The summary does
not address aspects of German taxation other than taxation of dividends, capital
gains taxation and gift and inheritance taxation, and does not address all
aspects of such German taxation. The summary does not consider any specific
facts or circumstances that may apply to a particular purchaser. The summary
assumes that the shareholder is subject to unlimited German income taxation and
is referred to as a "German Holder." Prospective investors should consult their
professional advisors as to the tax consequences of the acquisition, holding and
disposal of the shares of common stock, including in particular, the effect of
tax laws of any other jurisdiction.
INCOME TAXATION OF DIVIDENDS
Any dividends distributed to German Holders are, in principle, fully
subject to German income tax (Einkommensteuer) including a solidarity surcharge
(Solidaritatszuschlag) and possibly church tax (Kirchensteuer). An individual
German Holder will be entitled to a deduction of income-related expenses
(Werbungskosten) to be proved to the tax authorities or alternatively to a fixed
allowance of DM 100 per calendar year, and a tax exemption known as a savers
exemption of DM 6,000 per calendar year in relation to his or her total income
from capital investments including dividends. This savers exemption is reduced
to DM 3,000 per calendar year effective January 1, 2000.
Dividend withholding tax levied in the United States in accordance with the
U.S./German Double Taxation Treaty of August 29, 1989 can be credited against
the German income tax liability of the German Holder. Alternatively, a German
Holder may deduct the total amount of U.S. withholding tax from his or her
German taxable income. This tax credit or deduction is not available if the
savers exemption mentioned above is available to the German Holder.
A German corporation that has beneficial title to at least 10% of the
shares in a U.S. corporation, is entitled to a reduction or refund of U.S. tax
in excess of 5%, and all other German Holders are entitled to a refund or
reduction of U.S. tax in excess of 15% if the Treaty applies. If the shares are
held by German Holders through a partnership, the dividends, including the
withholding tax credit are allocated to the partners according to their interest
in the partnership.
German Holders that are corporate investors, or a German Corporate Holder,
holding at least 10% of the outstanding shares of common stock, and to whom the
Treaty applies, are exempt from German corporation
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tax in relation to dividends received, and cannot claim any credit for, or
deduction of, foreign withholding taxes in Germany. Such dividends will be
placed in the so-called "EKO1" equity basket of the corporate investor. Upon
distribution of dividends out of the EKO1 equity basket to its stockholders, the
German Corporate Holder does not need to establish the corporation tax
distribution burden (which presently is 30% plus the solidarity surcharge at a
rate of 5.5% of the corporation tax distribution burden).
In addition, distributions to a German Holder are subject to German
withholding tax at a rate of 25%, plus solidarity surcharge at a rate of 5.5%
thereon (resulting in an effective tax rate of 26.37%).
German Holders that are corporate investors holding less than 10% of the
shares in the Company will be entitled to a tax credit for U.S. withholding
taxes.
CAPITAL GAINS TAX
Capital gains on the disposal of shares held as a private asset of a German
Holder are only taxable if the disposal is (i) effected within a twelve-month
period after their acquisition or (ii) upon expiration of this speculation
period, if the shareholder at any time during the five years preceding the
disposal, directly or indirectly, held an interest of 10% or above in a company.
Capital gains resulting from the disposal of shares of common stock by a
stockholder who is not a tax resident in Germany are not subject to German
capital gains tax unless the shares of common stock are part of the business
property of a permanent establishment or a fixed place of business of the
stockholder located in Germany.
GIFT AND INHERITANCE TAXES
Shares held by a person resident in Germany are subject to German
inheritance and gift tax upon transfer by reason of death or as a gift, based on
the market value at the time of the death or donation, respectively. Transfers
of shares of common stock held by a person who is not a tax resident in Germany
are not subject to German inheritance and gift tax, unless:
(i) the shares of common stock are part of the business property of a
permanent establishment or a fixed place of business of the
stockholder located in Germany; or
(ii) the heir, donee or beneficiary is tax resident in Germany or, if of
German nationality, has been resident in Germany within the five-year
period prior to the death or the gift (certain public officials
resident abroad are also covered).
TRADE TAX
A holder who is not a tax resident in Germany will not be subject to German
trade tax with respect to the shares of common stock, unless the shares of
common stock are part of the business property of a permanent establishment or a
fixed place of business of the stockholder located in Germany. If a German
resident taxpayer elects to deduct the foreign withholding taxes from his
taxable income in Germany such deduction would not be accepted for computing his
taxable income for trade tax purposes.
The trade tax on income is levied at rates varying from 13-20%. Trade tax
qualifies for a deductible business expense for income tax purposes in Germany.
OTHER GERMAN TAXES
There are no German transfer, stamp or other similar taxes which would
apply to the sale or transfer of the shares of common stock.
CERTAIN UNITED STATES FEDERAL INCOME TAX CONSEQUENCES
TO NON-UNITED STATES HOLDERS
The following is a general discussion of the principal U.S. federal income
and estate tax considerations of the acquisition, ownership and disposition of
common stock by a non-U.S. holder. As used herein, the term "non-U.S. holder" is
defined as any person or entity that is, for U.S. federal income tax purposes, a
foreign corporation, a non-resident alien individual, a foreign partnership, or
other entities created or organized in or under the laws other than the U.S. or
of any political subdivision of the U.S. or a non-resident fiduciary of a
foreign estate or trust. This discussion is based on currently existing
provisions of the Internal Revenue Code of 1986, as amended (the "Code"),
existing, final, temporary, and proposed treasury regulations promulgated
thereunder, and administrative and judicial interpretations thereof, all as in
effect or proposed on the date hereof and all of which are subject to change,
possibly with retroactive effect, or different interpretations. This
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discussion is limited to non-U.S. holders who hold shares of common stock as
capital assets within the meaning of Section 1221 of the Code. Moreover, this
discussion is for general information only and does not address all of the tax
consequences that may be relevant to particular non-U.S. holders in light of
their personal circumstances, nor does it discuss certain tax provisions which
may apply to individuals who relinquish their U.S. citizenship or residence.
Furthermore, this summary does not address all of the U.S. federal income and
estate tax considerations that may be relevant to you in light of your
particular circumstances or if you are a holder subject to special treatment
under U.S. income tax laws (such as insurance companies, tax-exempt
organizations, financial institutions, brokers, dealers in securities, and
certain U.S. expatriates). This summary does not discuss any aspects of state,
local or non-U.S. taxation.
An individual may, subject to certain exemptions, be deemed to be a
resident alien (as opposed to a non-resident alien) by virtue of being present
in the U.S. for at least 31 days in the calendar year and for an aggregate of at
least 183 days during a three-year period ending in the current calendar year
(counting for such purposes, all of the days present in the current year,
one-third of the days present in the immediately preceding year, and one-sixth
of the days present in the second preceding year). Resident aliens are subject
to U.S. federal income taxes as if they were U.S. citizens.
Each prospective purchaser of common stock should consult with a tax
advisor with respect to current and possible future tax consequences of
acquiring, holding, and disposing of common stock, as well as any tax
consequences that may arise under the laws of any U.S. state, municipality, or
other taxing jurisdiction. We urge prospective non-U.S. investors to consult
their tax advisors regarding the U.S. federal, state, local, and non-U.S. income
and other tax considerations of acquiring, holding and disposing of shares of
common stock.
Dividends. If dividends are paid on shares of common stock to a non-U.S.
holder, they will be subject to withholding of U.S. federal income taxes at a
30% rate of the gross amount or such lower rate as may be specified by an
applicable income tax treaty. However, if (a) dividends are effectively
connected with the conduct of a trade or business by the non-U.S. holder within
the U.S. and, where a tax treaty applies, are attributable to a U.S. permanent
establishment of the non-U.S. holder, and (b) an Internal Revenue Service
("IRS") Form 4224 or successor form is filed with the payor, then the dividends
are not subject to withholding tax, but instead are subject to U.S. federal
income taxes on a net basis at the applicable graduated individual or corporate
rate. Any such effectively connected dividends received by a foreign corporation
may, under certain circumstances, be subject to an additional "branch profits
tax" at a rate of 30% or such lower rate as may be specified by an applicable
income tax treaty.
You should consult any applicable income tax treaties that may provide for
a lower rate of tax or other rules different from those described above. You may
be required to satisfy certification requirements in order to claim treaty
benefits or otherwise claim a reduction of, or exemption from, withholding under
these rules.
Dividends paid to an address outside the U.S. are presumed to be paid to a
resident of such country (unless the payor has knowledge to the contrary) for
purposes of the withholding discussed above and for purposes of determining the
applicability of the tax treaty rate. However, recently finalized treasury
regulations pertaining to U.S. federal withholding tax, scheduled to take effect
for payments made after December 31, 2000 (the "Final Withholding Tax
Regulations"), provide that a non-U.S. holder must comply with certain
certification procedures (or, in the case of payments made outside the U.S. with
respect to an offshore account, certain documentary evidence procedures),
directly or through an intermediary to obtain the benefits of a reduced rate
under an income tax treaty. In addition, the Final Withholding Tax Regulations
will require a non-U.S. holder who provides an IRS form 4224 or successor form
(as discussed above) also to provide its U.S. taxpayer identification number.
A non-U.S. holder of common stock eligible for a reduced rate of U.S.
withholding taxes pursuant to an income tax treaty may obtain a refund of any
excess amount withheld by filing an appropriate claim for refund with the IRS.
Gain on Disposition of Common Stock. A non-U.S. holder generally will not
be subject to U.S. federal income taxes with respect to any gain recognized on
the sale or other disposition of common stock unless (a) the gain is effectively
connected with the conduct of a trade or business of the non-U.S. holder in the
U.S. and, where a tax treaty applies, is attributable to a U.S. permanent
establishment of the non-U.S. holder, (b) in the case of a non-U.S. holder who
is an individual and holds common stock as a capital asset, such holder is
present in U.S. for 183 or more days in the taxable year of the sale or other
disposition and certain other conditions are met, (c) you are subject to tax
pursuant to the provisions of the Code regarding the taxation of expatriates, or
(d) the Company is or has been a U.S. Real Property Holding Corporation" (a
"USRPHC") for U.S. federal income tax purposes, as discussed below.
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An individual non-U.S. holder who falls within clause (a) above will,
unless an applicable treaty provides otherwise, be taxed on his or her net gain
derived from the sale under regular graduated U.S. federal income tax rates. An
individual non-U.S. holder who falls under clause (b) above will be subject to a
flat 30% tax on the gain derived from the sale which may be offset by certain
U.S. capital losses.
A non-U.S. holder that is a foreign corporation falling under clause (a)
above will be taxed on its gain under regular graduated U.S. federal income tax
rates and may be subject to an additional branch profits tax equal to 30% of its
effectively connected earnings and profits within the meaning of the Code for
the taxable year, as adjusted for certain items, unless it qualifies for a lower
rate under an applicable income tax treaty.
A corporation is a USRPHC if the fair market value of the U.S. real
property interests held by the corporation is 50% or more of the aggregate fair
market value of its U.S. and foreign real property interests and any other
assets used or held for use by the corporation in a trade or business. Based on
its current and anticipated assets, the Company believes that it currently is
not and is not likely to become a USRPHC. However, since the determination of
USRPHC status is based upon the composition of the assets of the Company from
time to time, and because there are uncertainties in the application of certain
relevant rules, there can be no assurance that the Company will not become a
USRPHC. If the Company were to become a USRPHC, then gains on the sale or other
disposition of common stock by a non-U.S. holder generally would be subject to
U.S. federal income taxes unless both (a) the common stock was "regularly
traded" on an established securities market within the meaning of the applicable
treasury regulations, and (b) the non-U.S. holder actually or constructively
owned 5% or less of the common stock. Non-U.S. holders should consult their tax
advisors concerning any U.S. tax consequences that may arise if the Company were
to become a USRPHC.
Federal Estate Tax. Common stock held by an individual non-U.S. holder at
the time of death will be included in such holder's gross estate for U.S.
federal estate tax purposes, unless an applicable estate tax treaty provides
otherwise and therefore, may be subject to U.S. federal laws.
Information Reporting and Back Up Withholding Tax. Under treasury
regulations, the Company must report annually to the IRS and to each non-U.S.
holder the amount of dividends paid to such holder and the amount of any tax
withheld with respect to such dividends, regardless of whether withholding was
required. Copies of the information returns reporting such dividends and
withholding also may be made available to the tax authorities in the country in
which the non-U.S. holder resides under the provisions of an applicable income
tax treaty.
A back-up withholding tax is imposed at the rate of 31% on certain payments
to persons that fail to furnish certain identifying information to the payor.
Back-up withholding generally will not apply to dividends paid to a non-U.S.
holder at an address outside the U.S. (unless the payor has knowledge that the
payee is a U.S. person). However, in the case of dividends paid after December
31, 2000, the Final Withholding Tax Regulations provide that a non-U.S. holder
generally will be subject to withholding tax at a 31% rate unless certain
certification procedures (or, in the case of payments made outside the U.S. with
respect to an offshore account, certain documentary evidence procedures) are
complied with, directly or through an intermediary. Back-up withholding and
information reporting generally will also apply to dividends paid on common
stock at addresses inside the U.S. to non-U.S. holders that fail to provide
certain identifying information in the manner required. The Final Withholding
Tax Regulations provide certain presumptions under which a non-U.S. holder would
be subject to back-up withholding and information reporting unless the Company
receives certification from the holder of its non-U.S. status. You should
consult your tax advisor concerning the effect of this regulation on an
investment in the common stock.
Payment of the proceeds of the sale of common stock by or through a U.S.
office of a broker is subject to both back-up withholding and information
reporting unless the beneficial owner provides the payor with its name and
address and certifies under penalties of perjury that it is a non-U.S. holder,
or otherwise establishes an exemption. In general, back-up withholding and
information reporting will not apply to a payment of the proceeds of a sale of
common stock by or through a foreign office of a broker. If, however, such
broker is, for U.S. federal income tax purposes, a U.S. person, a controlled
foreign corporation, or a foreign person that derives 50% or more of its gross
income for certain periods from the conduct of a trade or business in the U.S.
(or, for periods after December 31, 2000, a foreign partnership that at any time
during its fiscal year either (a) is engaged in the conduct of a trade or
business in the U.S., or (b) has as partners one or more U.S. persons that, in
the aggregate, hold more than 50% of the income or capital interest in the
partnership), such payments will be subject to information reporting, but no
back-up withholding, unless (aa) such broker has documentary evidence in its
records that the beneficial owner is a non-U.S. holder and certain other
conditions are met, or (bb) the beneficial owner otherwise establishes an
exemption.
55
<PAGE> 58
A holder generally will be allowed a refund or a credit against such
holder's U.S. federal income tax liability for any amounts withheld under the
back-up withholding rules, provided the required information is furnished in a
timely manner to the IRS.
STATUTORY INFORMATION
We were incorporated as a corporation under the laws of the State of
California on February 1995 as DSL Entertainment Group, Inc. Our incorporator
was Anita Sobol. Our formation became effective on February 27, 1995, the date
our Articles of Incorporation were filed with the Secretary of State of the
State of California. We changed our corporate name to TEAM Communications Group,
Inc., effective January 22, 1997. Our statutory corporate purpose is to engage
in any lawful act or activity for which a corporation may be organized under the
General Corporation Law of the State of California, other than the banking
business, the trust company business or the practice of a profession permitted
to be incorporated by the California Corporation Code.
We own all of the capital stock of the following companies: Long Form
Entertainment, Inc., Simply Style Productions, Inc., Amazing Tails, Inc. Mary
Lou's Flip Flop Shop, Inc., Team Dandelion, and Team Germany GmbH. None of our
subsidiaries represent 10% of our revenue or 10% of our share capital in 1999.
There are no other entities which we have a stock ownership interest in.
Other than Team Dandelion and Team Entertainment Germany GmbH, our 4 other
subsidiaries are sole purpose corporations formed for the production of a
specific project. Sole purpose corporations are used for individual projects to
insulate the parent company from any liability associated with the project. As
all six of these entities are wholly owned subsidiaries, their financial
information is consolidated in our financial statements.
Team Dandelion Ltd. is headquartered at 5 Churchill Court, Station Road,
North Harrow, Middlesex HA275A, United Kingdom.
Team Entertainment Germany GmbH is headquartered at Munchner Strasse 12-16,
85774 Munchen-Unterhohring, Germany.
LEGAL MATTERS
Certain legal matters in connection with the validity of the shares of
common stock being offered hereby will be passed upon for us by Kelly Lytton
Mintz & Vann LLP, 1900 Avenue of the Stars, Suite 1450, Los Angeles, California
90067. Bruce P. Vann, a member of Kelly Lytton Mintz & Vann LLP, is the
beneficial owner of 4,273 shares of common stock and options to acquire an
additional 10,000 shares of common stock.
EXPERTS
The consolidated financial statements as of December 31, 1998, 1997 and
1996 included in this prospectus have been so included in reliance on the report
of Stonefield Josephson, Inc., independent accountants, and are so included in
reliance upon their reports given on their authority as experts in auditing and
accounting. Stonefield Josephson, Inc. is located at 1620 26th Street, Suite
400, Santa Monica, California 90404-4041.
The financial statements of Dandelion Distribution Ltd., as of July 31,
1999 and 1998 included in this prospectus have been so included in reliance on
the report of Barnes Roffe, independent accountants, and are so included in
reliance upon their reports given on their authority as experts in auditing and
accounting.
56
<PAGE> 59
UNDERWRITING
We, the selling shareholder, as well as Gontard & MetallBank AG, Delbruck &
Co. Privatbankiers, Furst Fugger Privatbank KG and VEM Virtuelles Emissionshaus
AG (the "Underwriters") have entered into an underwriting agreement with respect
to the shares being offered. Subject to certain conditions, each Underwriter has
severally agreed to purchase the number of shares indicated in the following
table.
<TABLE>
<CAPTION>
NUMBER OF
UNDERWRITERS SHARES
------------ ---------
<S> <C>
Gontard & MetallBank AG..................................... 5,350,500
Delbruck & Co. Privatbankiers............................... 307,500
Furst Fugger Privatbank KG.................................. 307,500
VEM Virtuelles Emissionshaus AG............................. 184,500
---------
Total............................................. 6,150,000
=========
</TABLE>
The purchase price per share payable by the Underwriters to us will be
equal to the public offering price less underwriting discounts and fees payable
to our financial advisors of 10% in the aggregate.
The following table shows the per share and total underwriting discounts
and commissions to be paid to the Underwriters and financial advisors by us and
the selling shareholder.
<TABLE>
<CAPTION>
PAID BY THE COMPANY
------------------------------
<S> <C> <C>
Per Share................................................. $
Total..................................................... $
</TABLE>
<TABLE>
<CAPTION>
PAID BY THE SELLING SHAREHOLDER
--------------------------------
<S> <C> <C>
Per Share................................................. $
Total..................................................... $
</TABLE>
We estimate that the total expenses of the offering to the Company,
excluding underwriting discounts and commissions, will be approximately
$1,115,840.
Shares sold by the Underwriters to the public will initially be offered at
the public offering price. See "Prospectus Summary -- The Offering -- Public
Offering Price and Number of Shares Allotted." If all the shares are not sold at
the offering price, the Underwriters may change the offering price and the other
selling terms. The public offering price will be based on the average closing
share price of our shares of common stock on The NASDAQ SmallCap Market and on
the over-the-counter markets Freiverkehr in Frankfurt am Main, Berlin and Munich
of the ten trading days immediately prior to and including November 22, 1999.
However, among the factors to be considered in determining the public offering
price of the shares, in addition to the common stock's market price prevailing
at the time of the pricing and prevailing market conditions, will be our
historical performance, estimates of our business potential and earnings
prospectus, an assessment of our management and the consideration of the above
factors in relation to market valuation of companies in related businesses.
We, our officers, our directors, and the selling shareholder and certain
significant shareholders have warranted to the Deutsche Borse AG and have agreed
with the Underwriters not to dispose of or hedge any of their common stock or
securities convertible into or exchangeable for shares of common stock during
the six months from the date of this prospectus continuing through the first six
months after the date of admission of the shares of common stock to the
Regulated Market (Geregelter Markt) with trading on the Neuer Markt of the
Frankfurt Stock Exchange, except with the prior written consent of the Deutsche
Borse AG and Gontard & MetallBank AG acting on behalf of the Underwriters. In
addition, the selling shareholder has agreed with the Underwriters not to
dispose of or hedge any common stock or securities convertible into or
exchangeable for shares of common stock during the seven-month period from the
end of the first six-month lock-up period, except with the prior written consent
of Gontard & MetallBank AG acting on behalf of the underwriters. See "Shares
Available for Future Sale" for a discussion of certain transfer restrictions.
At our request, the Underwriters have reserved at the initial public
offering price up to 10 percent of the shares of common stock for sale to
directors, officers, employees, business associates and related persons. The
number of shares of common stock available for sale to other investors will be
reduced to the extent these individuals purchase such reserved shares. Any
reserved shares which are not so purchased will be offered by the Underwriters
to other investors on the same basis as the other shares offered by this
prospectus.
57
<PAGE> 60
In connection with the offering, the Underwriters may purchase and sell
shares of common stock in the open market. These transactions may include short
sales, stabilizing transactions and purchases to cover positions created by
short sales. Short sales involve the sale by the Underwriters of a greater
number of shares than they are required to purchase in the offering. Stabilizing
transactions consist of certain bids or purchases made for the purpose of
preventing or retarding a decline in the market price of the common stock after
the offering.
These activities by the Underwriters may stabilize, maintain or otherwise
affect the market price of the common stock. As a result, the price of the
common stock may be higher than the price that otherwise might exist in the open
market. If these activities are commenced, they may be discontinued by the
Underwriters at any time. These transactions may be effected on the Neuer Markt,
in the over-the-counter market or otherwise.
We have applied for the listing of all of our outstanding shares of common
stock after the issuance of the shares offered by us hereunder as well as for
3,042,384 shares of common stock reserved for issuance upon the exercise of
options and the conversion of debt instruments to the Regulated Market
(Geregelter Markt) with trading on the Neuer Markt of the Frankfurt Stock
Exchange.
We, and the selling shareholder, have agreed to indemnify the several
Underwriters against certain liabilities.
58
<PAGE> 61
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
OF TEAM COMMUNICATIONS GROUP, INC.
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Report of Independent Auditors.............................. F-2
Consolidated Balance Sheets at September 30, 1999
(unaudited), December 31, 1998 and December 31, 1997........ F-3
Consolidated Statements of Income for the nine months ended
September 30, 1999 (unaudited) and for the nine months
ended September 30, 1998 (unaudited) and for the years
ended December 31, 1998, December 31, 1997 and December
31, 1996.................................................. F-4
Consolidated Statements of Cash Flows for the nine months
ended September 30, 1999 (unaudited) and for the nine
months ended September 30, 1998 (unaudited) and for the
years ended December 31, 1998, December 31, 1997 and
December 31, 1996......................................... F-5
Consolidated Statements of Cash Flows and Supplemental
Schedule of Non Cash Activities for the nine months ended
September 30, 1999 (unaudited) and for the nine months
ended September 30, 1998 (unaudited) and for the years
ended December 31, 1998, December 31, 1997 and December
31, 1996.................................................. F-6
Consolidated Statements of Shareholders' Equity (Deficit)
for the nine months ended September 30, 1999 (unaudited)
and for the years ended December 31, 1998, December 31,
1997 and December 31, 1996................................ F-7
Notes to Consolidated Financial Statements.................. F-8
</TABLE>
F-1
<PAGE> 62
REPORT OF INDEPENDENT AUDITORS
Board of Directors and Shareholders
Team Communications Group, Inc.
We have audited the consolidated balance sheets of Team Communications
Group, Inc. and subsidiaries as of December 31, 1998, 1997 and 1996 and the
related consolidated statements of income, shareholders' equity and cash flows
for the three years then ended. These financial statements are the
responsibility of the Company's management. Our responsibility is to express an
opinion on these consolidated financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards required that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statements presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects financial position of Team
Communications Group, Inc. and subsidiaries at December 31, 1998, 1997 and 1996
and the consolidated results of its operations and its cash flows for the years
ended December 31, 1998, 1997, and 1996, in conformity with generally accepted
accounting principles.
The accompanying financial statements have been prepared assuming that the
company will continue as a going concern. As discussed in Note 12, the Company
has had significant cash used by its operating activities, and has been
dependent on outside equity investors and lenders to finance those operations,
and certain notes payable are past due. Continuation as a going concern will be
dependent upon continued outside financing. These factors raise substantial
doubt about the Company's ability to continue as a going concern. Management's
plans with respect to these matters are described in Note 12 to the financial
statements. The financial statements do not include any adjustments that might
result from the outcome of these uncertainties.
/s/ STONEFIELD JOSEPHSON, INC.
STONEFIELD JOSEPHSON, INC.
CERTIFIED PUBLIC ACCOUNTANTS
Santa Monica, California
April 15, 1999
F-2
<PAGE> 63
TEAM COMMUNICATIONS GROUP, INC.
CONSOLIDATED BALANCE SHEETS
ASSETS
<TABLE>
<CAPTION>
SEPTEMBER 30, DECEMBER 31, DECEMBER 31, DECEMBER 31,
1999 1998 1997 1996
------------- ------------- ------------ ------------
(UNAUDITED)
<S> <C> <C> <C> <C>
Cash and cash equivalents................... $ 2,173,200 $ 1,027,700 $ 174,400 214,300
Trade receivables, including $8,275,000 due
from related parties at September 30, 1999
less allowance for doubtful accounts of
$837,000, $337,000, $63,800 and $63,800,
respectively................................ 10,936,700 4,736,700 6,740,800 3,342,100
Television programming costs, less
accumulated amortization of $14,043,500,
$6,952,100, $2,846,600 and $1,599,700,
respectively.............................. 20,697,100 11,018,800 4,287,000 3,555,900
Due from officer............................ 170,400 145,400 195,500 11,300
Fixed assets, net........................... 55,200 16,400 29,000 42,100
Organizational costs and other assets....... 1,085,100 82,700 578,000 144,900
----------- ----------- ----------- ----------
Total Assets...................... $35,117,700 $17,027,700 $12,004,700 $7,310,600
=========== =========== =========== ==========
LIABILITIES AND SHAREHOLDERS' EQUITY
Accounts payable, accrued expenses and other
liabilities............................... $ 8,410,900 $ 1,679,400 $ 3,270,500 $1,220,200
Deferred revenue............................ 85,600 472,900 575,000 4,500
Accrued participations...................... 3,771,500 3,025,800 984,800 1,428,400
Line of credit -- Bank...................... 697,000 1,114,000 -- --
Notes payable............................... 4,387,200 2,305,000 4,889,600 3,762,900
Accrued interest............................ 324,200 530,900 898,300 242,000
Shareholder note payable.................... -- 500,000 740,000 740,000
----------- ----------- ----------- ----------
Total Liabilities................. 17,676,400 9,628,000 11,358,200 7,398,000
----------- ----------- ----------- ----------
Commitments and contingencies
Shareholders' equity:
Preferred stock, no par value; 10,000,000
shares authorized; no shares issued and
outstanding............................ -- -- -- --
Common stock, no par value; 40,000,000
shares authorized; 5,983,757,
2,816,135, 1,131,344 and 1,131,344,
respectively, issued and outstanding... 1,000 1,000 1,000 1,000
Paid in capital........................... 16,146,800 7,612,700 1,230,100 943,300
Treasury Stock............................ -- (34,600) -- --
Retained Earnings (Accumulated Deficit)... 1,293,500 (179,400) (584,600) (1,031,700)
----------- ----------- ----------- ----------
Total shareholders' equity........ 17,441,300 7,399,700 646,500 (87,400)
----------- ----------- ----------- ----------
Total liabilities and
shareholders' equity............ $35,117,700 $17,027,700 $12,004,700 $7,310,600
=========== =========== =========== ==========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
F-3
<PAGE> 64
TEAM COMMUNICATIONS GROUP, INC.
CONSOLIDATED STATEMENTS OF INCOME
<TABLE>
<CAPTION>
FOR THE FOR THE
NINE MONTHS NINE MONTHS FOR THE YEAR FOR THE YEAR FOR THE YEAR
ENDED ENDED ENDED ENDED ENDED
SEPTEMBER 30, SEPTEMBER 30, DECEMBER 31, DECEMBER 31, DECEMBER 31,
1999 1998 1998 1997 1996
------------- ------------- ------------ ------------ ------------
(UNAUDITED) (UNAUDITED)
<S> <C> <C> <C> <C> <C>
Revenues, including $8,675,000
for the nine months ended
September 30, 1999, from, as a
result of the Dandelion
acquisition, related parties,
see Note 5..................... $13,273,300 $9,466,800 $13,581,900 $6,875,600 $5,749,800
Cost of Revenues, including
$2,170,000 for the nine months
ended September 30, 1999
attributable to sales to related
parties, see Note 5.............. 6,056,300 5,884,500 9,076,000 2,355,300 2,895,900
General and administrative
expense........................ 3,771,700 2,234,100 3,274,000 3,244,900 2,323,800
----------- ---------- ----------- ---------- ----------
Earnings from operations......... 3,445,300 1,348,200 1,231,900 1,275,400 530,100
Interest expense................. 477,900 768,400 902,600 1,040,100 677,700
Interest income.................. 87,300 136,000 202,900 211,800 58,300
Other income -- -- 90,100
----------- ---------- ----------- ---------- ----------
Earnings before income taxes..... 3,054,700 715,800 532,200 447,100 800
Provision for income taxes, all
current........................ 1,149,900 60,500 57,500 -- --
----------- ---------- ----------- ---------- ----------
Earnings before extraordinary
item........................... $ 1,904,800 $ 655,300 $ 474,700 $ 447,100 $ 800
Extraordinary loss from early
extinguishment of debt......... 431,900 -- 69,500 -- --
----------- ---------- ----------- ---------- ----------
Net Earnings..................... $ 1,472,900 $ 655,300 $ 405,200 $ 447,100 $ 800
=========== ========== =========== ========== ==========
Basic earnings per common
share..........................
Earnings before extraordinary
item........................... $ 0.45 $ 0.43 $ 0.26 $ 0.40 $ --
Extraordinary (loss)............. (0.10) -- (0.04) -- --
----------- ---------- ----------- ---------- ----------
Net Earnings -- Basic............ $ 0.35 $ 0.43 $ 0.22 $ 0.40 $ --
=========== ========== =========== ========== ==========
Weighted average number of shares
outstanding basic.............. 4,198,176 1,506,672 1,833,340 1,131,344 1,131,344
=========== ========== =========== ========== ==========
Diluted earnings per share
Earnings before extraordinary
item........................... $ 0.38 $ 0.30 $ 0.20 $ 0.25 --
Extraordinary (loss)............. (0.09) -- (0.03) -- --
----------- ---------- ----------- ---------- ----------
Net Earnings -- Diluted.......... $ 0.29 $ 0.30 $ 0.17 $ 0.25 --
=========== ========== =========== ========== ==========
Weighted average number of shares
outstanding diluted............ 4,986,711 2,197,128 2,434,017 1,821,800 1,821,800
=========== ========== =========== ========== ==========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
F-4
<PAGE> 65
TEAM COMMUNICATIONS GROUP, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
FOR THE NINE FOR THE NINE FOR THE YEAR FOR THE YEAR FOR THE YEAR
MONTHS ENDED MONTHS ENDED ENDED ENDED ENDED
SEPTEMBER 30, SEPTEMBER 30, DECEMBER 31, DECEMBER 31, DECEMBER 31,
1999 1998 1998 1997 1996
------------- ------------- ------------ ------------ ------------
(UNAUDITED) (UNAUDITED)
<S> <C> <C> <C> <C> <C>
OPERATING ACTIVITIES:
Net income........................................... $ 1,472,900 $ 655,300 $ 405,200 $ 447,100 $ 800
Adjustments to reconcile net income to cash used
for operating activities:
Depreciation and amortization.................. 10,200 10,200 12,600 13,100 15,600
Amortization of television programming costs... 6,056,300 1,205,600 8,980,300 1,455,000 1,100,800
Allowance for doubtful accounts................ 500,000 -- 664,000 1,115,600 63,800
Amortization of notes payable discount......... 30,800 131,000 -- 372,000 353,300
Changes in assets and liabilities:
Decrease (increase) in trade receivables....... (6,700,000) 393,000 1,340,100 (4,514,300) (3,352,900)
Additions to television programming costs...... (15,734,600) (6,515,400) (15,712,000) (2,186,200) (4,060,600)
Decrease (increase) in other assets............ (1,002,400) (1,131,400) 495,300 (433,100) (123,000)
Increase (decrease) in accounts payable,
accrued expenses and other liabilities....... 6,731,500 (474,100) (1,553,700) 2,050,300 939,500
Increase (decrease) in deferred revenue........ (387,300) 197,900 (102,100) 570,500 (343,500)
Increase (decrease) in accrued
participations............................... 745,700 825,600 2,041,000 (443,600) 1,302,300
Increase (decrease) in accrued interest........ (206,700) (449,400) (367,400) 284,300 201,800
------------ ----------- ------------ ----------- ------------
Net cash used for operating activities....... (8,483,600) (5,151,700) (3,796,700) (1,269,300) (3,902,100)
------------ ----------- ------------ ----------- ------------
INVESTING ACTIVITIES:
Purchase of fixed assets........................... (49,000) -- -- -- (36,900)
Decrease (increase) in due from officer............ (25,000) 50,100 50,100 (184,100) 30,900
------------ ----------- ------------ ----------- ------------
Net cash provided (used) for investing
activities................................. (74,000) 50,100 50,100 (184,100) (6,000)
------------ ----------- ------------ ----------- ------------
FINANCING ACTIVITIES:
Proceeds from shareholder loan and notes payable... -- -- -- 1,423,500 --
Proceeds from issuance of note payable and
warrants......................................... 7,120,100 2,359,500 2,681,000 -- 4,747,00
Payments on bank line of credit.................... (417,000) -- -- -- --
Proceeds from bank line of credit.................. 1,114,000 -- --
Principal payment on loan due to shareholder....... (500,000) (240,000) (240,000) -- (10,000)
Purchase treasury stocks........................... -- -- (34,600) -- --
Sale treasury stocks............................... 34,600 -- -- -- --
Extraordinary charge for early retirement
of debt.......................................... 431,900 -- 69,500 -- --
Principal payment of notes payable................. (5,500,600) (4,065,300) (5,372,600) (10,000) (748,600)
Waiver of interest on loan due to shareholder...... -- -- -- -- 95,000
Issuance of common stock........................... 8,534,100 7,713,500 6,382,600 -- --
------------ ----------- ------------ ----------- ------------
Net cash provided by financing
activities................................. 9,703,100 5,767,700 4,599,900 1,413,500 4,083,400
------------ ----------- ------------ ----------- ------------
Net change in cash................................. 1,145,500 666,100 853,300 (39,900) 175,300
Cash at beginning of period........................ 1,027,700 174,400 174,400 214,300 39,000
------------ ----------- ------------ ----------- ------------
Cash at end of period.............................. $ 2,173,200 $ 840,500 $ 1,027,700 $ 174,400 $ 214,300
============ =========== ============ =========== ============
Supplemental disclosure of cash flow information:
Interest paid...................................... $ 175,200 $ 86,000 $ 1,270,000 $ -- $ 15,100
============ =========== ============ =========== ============
Income taxes paid.................................. $ 17,400 $ 19,000 $ 93,200 $ 26,300 $ 4,000
============ =========== ============ =========== ============
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
F-5
<PAGE> 66
TEAM COMMUNICATIONS GROUP, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
SUPPLEMENTAL SCHEDULE OF NON CASH ACTIVITIES
<TABLE>
<CAPTION>
FOR THE FOR THE
NINE MONTHS NINE MONTHS FOR THE FOR THE FOR THE
ENDED ENDED YEAR ENDED YEAR ENDED YEAR ENDED
SEPTEMBER 30, SEPTEMBER 30, DECEMBER 31, DECEMBER 31, DECEMBER 31,
1999 1998 1998 1997 1996
------------- ------------- ------------ ------------ ------------
(UNAUDITED) (UNAUDITED)
<S> <C> <C> <C> <C> <C>
Extinguishment of TPEG settlement
payable by assignment of the
treasury stock receivable....... -- -- -- 178,000 178,000
Issuance of warrants in
conjunction with notes payable.... -- -- 62,500 286,600 602,700
Issuance of shares in connection
with conversion of notes
payable......................... -- -- 53,600 -- --
Issuance of shares and warrants in
connection with services
provided to the Company......... 1,435,900 -- 58,000 -- 24,700
Issuance of shares in connection
with extinguishment of debt..... 2,299,600 -- 458,000 -- --
Transfer of shares by principal
shareholder to notes payable
holder.......................... -- -- -- -- 45,700
Issuance of shares in connection
with notes payable.............. -- -- -- -- 84,200
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
F-6
<PAGE> 67
TEAM COMMUNICATIONS GROUP, INC.
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY
<TABLE>
<CAPTION>
COMMON STOCK RETAINED
---------------------- EARNINGS
NUMBER PAID IN TREASURY ACCUMULATED/
OF SHARES PAR VALUE CAPITAL STOCK (DEFICIT)
---------- --------- ----------- -------- ------------
<S> <C> <C> <C> <C> <C>
Balance at December 31, 1995........... $1,024,059 $1,000 $ -- $(87,000) $(1,032,500)
Transfer of shares by principal
shareholder to notes payable
holder............................... -- -- 45,700 -- --
Exchange of treasury stock receivable
with related party for extinguishment
of TPEG settlement payable........... -- -- 91,000 87,000 --
Issuance of shares in connection with
notes payable........................ 79,708 -- 84,200 -- --
Issuance of warrants in connection with
private placements................... -- -- 602,700 -- --
Issuance of shares in connection with
anti-dilution provisions of
convertible promissory note.......... 4,292 -- -- -- --
Issuance of shares in connection with
services provided to the Company..... 23,285 -- 24,700 -- --
Waiver of interest on loan due to
shareholder.......................... -- -- 95,000 -- --
Net income for year ended December 31,
1996................................. -- -- -- -- 800
---------- ------ ----------- -------- -----------
Balance at December 31, 1996........... 1,131,344 $1,000 $ 943,300 $ -- $(1,031,700)
Net Income for the Year
ended December 31, 1997.............. -- -- -- -- 447,100
Issuance of warrants in connection with
private placement.................... -- -- 286,800 -- --
---------- ------ ----------- -------- -----------
Balance at December 31, 1997........... 1,131,344 $1,000 $ 1,230,100 $ -- $ (584,600)
Net Income for the Year
ended December 31, 1998.............. -- -- -- -- 405,200
Issuance of shares in connection with
the initial public offering.......... 1,500,000 -- 5,744,700 -- --
Issuance of shares in connection with
the extinguishment of debt........... 188,974 -- 458,000 -- --
Purchase of Treasury Stock............. (17,000) -- -- (34,600) --
Issuance of debt with beneficial
conversion feature................... -- -- 66,100 -- --
Conversion of debt to equity........... -- -- 50,000 -- --
Issuance of warrants for services...... -- -- 58,000 -- --
Exercise of warrants................... 12,817 -- 5,800 -- --
---------- ------ ----------- -------- -----------
Balance at December 31, 1998........... 2,816,135 $1,000 $ 7,612,700 $(34,600) $ (179,400)
Net income for the nine months ended
September 30, 1999................... -- -- -- -- 1,472,900
Sale of Treasury Stock................. 17,000 -- -- 34,600 --
Issuance of shares in connection with
conversion of debt................... 1,219,974 -- 2,299,600
Issuance of stock for services......... 464,000 -- 1,032,400 -- --
Issuance of warrants -- services....... -- -- 403,500 -- --
Issuance of warrants -- debt........... -- -- 240,000 -- --
Issuance of debt with beneficial
conversion feature................... -- -- 730,000 -- --
Private placement of common stock...... 1,013,334 -- 3,465,300 -- --
Exercise of warrants................... 453,314 -- 363,300 -- --
---------- ------ ----------- -------- -----------
Balance at September 30, 1999.......... 5,983,757 $1,000 $16,146,800 $ -- $ 1,293,500
========== ====== =========== ======== ===========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements
F-7
<PAGE> 68
TEAM COMMUNICATIONS GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1 -- DESCRIPTION OF THE COMPANY:
Team Communications Group, Inc. (formerly known as DSL Entertainment Group,
Inc.) and its wholly owned subsidiaries (collectively, the "Company") are
primarily engaged in developing, producing, and distributing dramatic and
reality-based television series, mini-series, animated series, programs,
specials, and made-for-television movies for telecast, exhibition or
distribution in the domestic and foreign television and home video markets. The
Company's primary focus is on developing and producing family drama and children
programming and reality based programming for both domestic and international
broadcast networks and cable channels such as Discovery's Animal Planet, The
Learning Channel, The Showtime Networks, Fox Family Channel and The Discovery
Channel.
NOTE 2 -- SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES:
Principles of Consolidation
The accompanying consolidated statements include the accounts of Team
Communications Group, Inc. and subsidiaries. All significant intercompany
transactions and accounts have been eliminated.
Revenue Recognition
Revenue from licensing agreements covering entertainment product owned by
the Company is recognized when the entertainment product is available to the
licensee for telecast, exhibition or distribution, and other conditions of the
licensing agreements have been met in accordance with Statement of Financial
Accounting Standard ("SFAS") No. 53, "Financial Reporting by Producers and
Distributors of Motion Picture Films." The portion of recognized revenue which
is to be shared with the producers and owners of the license program material
(participations payable and due to producers) is accrued as the revenue is
recognized. Deferred revenues consist principally of advance payments received
on television contracts for which program materials are not yet available for
broadcast or exploitation. Such amounts are normally repayable by the Company
only if it fails to deliver the related product to the licensee.
Sales to four major customers accounted for approximately 82% of the
Company's total operating revenue for the nine months ended September 30, 1999.
Sales to four major customers accounted for approximately 69% of the Company's
total operating revenue for the year ended December 31, 1998. Sales to four
major customers accounted for approximately 88% of the Company's total operating
revenue for the year ended December 31, 1997. Sales to six major customers
accounted for approximately 81% of the Company's total operating revenue for the
year ended December 31, 1996.
Cash
The Company maintains its cash in bank deposit accounts which, at times,
may exceed federally insured limits. The Company has not experienced any losses
in such accounts. Cash equivalents consist of interest-bearing securities with
original maturities of less than 90 days.
Included in cash and cash equivalents as of September 30, 1999 and December
31, 1998, is an $860,000 certificate of deposit. This certificate of deposit is
restricted as it secures the Company's revolving line of credit of $850,000 with
Mercantile National Bank.
Television Program Costs
Television program costs are valued at the lower of unamortized cost or net
realizable value on an individual title basis. Television program costs
represent those costs incurred in the development, production and distribution
of television projects. These costs have been capitalized in accordance with
SFAS No. 53. Amortization of television program costs is charged to expense and
third-party participations are accrued using the individual film forecast method
whereby expense is recognized in the proportion that current year revenues bear
to an estimate of ultimate revenue. Such estimates of ultimate revenue are
prepared and reviewed by management, and estimated losses, if any, are provided
for in full. Development costs are reviewed by management and charged to expense
when abandoned or, even if still being actively developed, if not set for
principal photography within three years of initial development activity.
F-8
<PAGE> 69
TEAM COMMUNICATIONS GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
During the nine months ended September 30, 1999, as the Company increased
its activities related to film cost production, overhead was capitalized in
accordance with SFAS No. 53 based upon estimates of production related
activities as a percentage of anticipated film cost expenditures during 1999.
Management reviews the overhead rate throughout the year and will adjust the
overhead rate on a quarterly basis, if necessary. During the nine months ended
September 30, 1999, overhead in the amount of approximately $1,740,700 was
capitalized to film production costs.
Fixed Assets
Fixed assets include office furnishings, fixtures and equipment. Office
furnishings, fixtures and equipment are depreciated over a useful life of five
years. All depreciation expense is calculated using Modified Accelerated Cost
Recovery System. Fixed assets are net of $55,500, $41,800, $30,000 and $16,700
in accumulated depreciation at September 30, 1999, December 31, 1998, December
31, 1997 and December 31, 1996, respectively.
Organizational Costs and Other Assets
The balance represents security deposits, prepaid expenses and the
unamortized portion of the original costs relating to the incorporation of the
Company.
Debt with Stock Purchase Warrants and Beneficial Conversion Features
The proceeds received from debt issued with stock purchase warrants is
allocated between the debt and the warrants, based upon the relative fair values
of the two securities and/or beneficial conversion features. Fair value of the
debt element of the financial instrument is determined by discounting the future
payments of principal and interest, based upon management's estimate of its
borrowing rate for similar financial instruments of this risk (generally 25%),
and the balance of the proceeds is accounted for as additional paid in capital.
The resulting debt discount is amortized to expense over the term of the debt
instrument, using the effective interest method. In the event of settlement of
such debt in advance of the maturity date, a loss is recognized based upon the
difference between the then carrying amount (i.e., face amount less unamortized
discount) and amount of payment.
Unclassified Balance Sheet
In accordance with the provisions of SFAS No. 53, the Company has elected
to present an unclassified balance sheet.
Financial Instruments
The carrying amounts of financial instruments including cash and cash
equivalents, short term accounts receivable, accounts payable, loans payable,
and deferred revenue approximated fair value as of September 30, 1999, December
31, 1998, December 31, 1997 and December 31, 1996, because of the relatively
short maturity of these instruments. The carrying value of long term accounts
receivable and notes payable approximated fair value as of September 30, 1999,
December 31, 1998, December 31, 1997 and December 31, 1996, because the
instruments are valued at the Company's effective borrowing rate.
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 those estimates.
Common Stock
In January and April of 1997, the Company effected a 2.2776 and 1.0277 for
one share reverse stock splits, respectively. All share and per share data in
the financial statements reflect the reverse stock split for all periods
presented.
F-9
<PAGE> 70
TEAM COMMUNICATIONS GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
Concentration of Credit Risk
Three customers represented approximately 88% of the trade receivable
balance at September 30, 1999.
Three customers represented approximately 83% of the trade receivable
balance at December 31, 1998.
Five customers represented approximately 95% of the trade receivable
balance at December 31, 1997.
Included in Accounts Receivable as of September 30, 1999, is $900,000 which
is held as security by a third-party for certain programming rights acquired by
the Company. Upon collection of this receivable the amounts will be placed in
escrow and recorded as cash, although the cash will be restricted as to
withdrawal.
Net Earnings Per Common Share
For the nine months ended September 30, 1999 and the years ended December
31, 1998, December 31, 1997 and December 31, 1996, the per share data is based
on the weighted average number of common and common equivalent shares
outstanding. For 1997, per share data is calculated in accordance with Staff
Accounting Bulletin of the Securities and Exchange Commission (SAB) No. 98
whereby common stock, options or warrants to purchase common stock or other
potentially dilutive instruments issued for nominal consideration must be
reflected in basic and diluted per share calculations for all periods in a
manner similar to a stock split, even if anti-dilutive. Accordingly, in
computing basic earnings per share, nominal issuances of common stock are
reflected in a manner similar to a stock split or dividend. In computing diluted
earnings per share, nominal issuances of common stock and potential common stock
are reflected in a manner similar to a stock split or dividend.
A portion of convertible debt was not included in the calculation of
weighted average shares for the years ended December 31, 1997 and December 31,
1996, because the Chairman and CEO had personally guaranteed to the Company
that, on certain debt, he will assume any convertible debt where the debt holder
wishes to convert in exchange for his own personal shares. The total number of
shares that this convertible debt may convert into is approximately 199,748.
Impairment of Long-Lived Assets and Long-Lived Assets to be Disposed of:
On April 1, 1997, the Company adopted the provision of SFAS No. 121,
Accounting for the Impairment of Long-Lived Assets and for Long-Lived Assets to
be Disposed Of. This statement requires that long-lived assets and certain
identifiable intangibles be reviewed for impairment whenever events or changes
in circumstances indicate that the carrying amount of an asset may not be
recoverable. Recoverability of assets to be held and used is measured by a
comparison of the carrying amount of an asset to future net cash flows expected
to be generated by the asset. If such assets are considered to be impaired, the
impairment to be recognized is measured by the amount by which the carrying
amounts of the assets exceed the fair values of the assets. Assets to be
disposed of are reported at the lower of the carrying amount or fair value less
costs to sell. Adoption of this statement did not have a material impact on the
Company's financial position, results of operations, or liquidity.
Year 2000 Compliance
As has been widely reported, many computer systems process dates based on
two digits for the year of a transaction and are unable to process dates in the
year 2000 and beyond. Since the Company's formation in 1995, the Company has
installed new information systems which are year 2000 compliant. Although the
Company does not expect Year 2000 to have a material adverse effect on its
internal operations, it is possible that Year 2000 problems could have a
significant adverse effect on the Company's suppliers and their ability to
service the Company and to accurately process payments received.
New Accounting Pronouncements
The Company has adopted SFAS No. 130 "Reporting Comprehensive Income" and
SFAS No. 131 "Disclosures About Segments of an Enterprise and Related
Information". Adoption of these pronouncements did not materially affect the
financial statements.
Recent Pronouncements Effective Subsequent to 1998
In April 1998, Statement of Position 98-5 "Reporting on the Costs of
Start-Up Activities" ("SOP 98-5") was issued. SOP 98-5 provides guidance on the
financial reporting of start-up costs and organization costs. The SOP is
effective for financial statements for fiscal years beginning after December 15,
1998. The Company does not anticipate that the adoption of this statement will
have a material effect on its financial statements.
F-10
<PAGE> 71
TEAM COMMUNICATIONS GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
In June 1998, the FASB issued SFAS No. 133, "Accounting for Derivative
Instruments and Hedging Activities", effective for fiscal years beginning after
June 15, 1999. The Company anticipates that due to its limited use of derivative
instruments, the adoption of SFAS No. 133 will not have a material effect on its
financial statements.
In October 1998, the FASB released an exposure draft of the proposed
statement on "Rescission of FASB Statement No. 53, Financial Reporting by
Producers and Distributors of Motion Picture Films". An entity that previously
was subject to the requirements of SFAS No. 53 would follow the guidance in a
proposed Statement of Position, "Accounting by Producers and Distributors of
Films." This proposed Statement of Position would be effective for financial
statements for fiscal years beginning after December 15, 1999 and could have a
significant impact on the Company's results of operations and financial position
depending on its final outcome. The Company has not concluded on its impact
given the preliminary stages of the proposed Statement of Position.
Unaudited Interim Consolidated Financial Statement
In the opinion of the Company's management, all adjustments (consisting of
normal recurring accruals) necessary to present fairly the Company's financial
position as of September 30, 1999, and the results of operations and cash flows
for the nine month period ended September 30, 1999 have been included. The
results of operations for the nine month period ended September 30, 1999, are
not necessarily indicative of the results to be expected for the full fiscal
year. For further information, refer to the financial statements and footnotes
thereto included in the Company's 10-KSB filed for the year ended December 31,
1998.
NOTE 3 -- TELEVISION PROGRAM COSTS:
Television program costs consist of the following:
<TABLE>
<CAPTION>
SEPTEMBER 30, DECEMBER 31, DECEMBER 31, DECEMBER 31,
1999 1998 1997 1996
------------- ------------ ------------ ------------
(UNAUDITED)
<S> <C> <C> <C> <C>
In process and development............ $ 2,242,000 $ 1,017,400 $1,502,000 $1,977,000
Released, less accumulated
amortization.......................... 18,455,100 10,001,400 2,785,000 1,578,900
----------- ----------- ---------- ----------
Total television program
costs..................... $20,697,100 $11,018,800 $4,287,000 $3,555,900
=========== =========== ========== ==========
</TABLE>
Based on management's estimates of future gross revenue as of September 30,
1999, approximately 60% of the $20,697,100 in unamortized released television
program costs will be amortized during the three years ending September 30, 2002
and 80% will be amortized during the five years ending September 30, 2004.
NOTE 4 -- INCOME TAXES:
Deferred taxes result from temporary differences in the recognition of
expense for tax and financial statement reporting purposes.
A reconciliation of the difference between the statutory federal income tax
rate and the Company's effective income tax rate applied to income (loss) before
income taxes are as follows for the periods ending:
<TABLE>
<CAPTION>
DECEMBER 31, DECEMBER 31, DECEMBER 31,
1998 1997 1996
------------ ------------ ------------
<S> <C> <C> <C>
Statutory federal tax rate........................ 34% 34% 34%
State income tax provision........................ 3% 0% 0%
Benefits of operating loss carryforward........... (26)% (34)% (34)%
--- --- ---
Effective tax rate................................ 11% 0% 0%
=== === ===
</TABLE>
The Company accounts for taxes under SFAS No. 109, which requires
recognition of deferred tax liabilities and assets for the expected future tax
consequences of events that have been included in financial statements or tax
returns. Under this method, deferred tax liabilities and assets are determined
based on the difference between the financial statement and tax basis of assets
and liabilities using enacted tax rates in effect for the year in which the
differences are expected to reverse.
F-11
<PAGE> 72
TEAM COMMUNICATIONS GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
The components of the net deferred tax asset are as follows:
<TABLE>
<CAPTION>
DECEMBER 31, DECEMBER 31, DECEMBER 31,
1998 1997 1996
------------ ------------ ------------
<S> <C> <C> <C>
Net operating loss (carryforward)................. $ 61,156 $ 184,605 $ 336,620
Valuation allowance............................... $(61,156) $(184,605) (336,620)
-------- --------- ---------
Net deferred tax asset.......................... $ -- $ -- $ --
-------- --------- ---------
Total current and deferred taxes payable.......... $ -- $ -- $ --
======== ========= =========
</TABLE>
At December 31, 1998 and December 31, 1997, the Company has a federal net
operating loss carryforward of $180,000 and $542,958, respectively.
NOTE 5 -- RELATED PARTY TRANSACTIONS:
As a consequence of the Company's October 1999 acquisition of Dandelion
Distribution Ltd. (Dandelion), certain receivables resulting from sales made
prior to the acquisition are now considered due from related parties for
financial reporting purposes. In June 1999 the Company entered into a five year
license agreement for certain territories including the UK of 20
made-for-television movies with Renown Pictures, Ltd., a UK company owned by
Noel Cronin, formerly the owner of Dandelion. At September 30, 1999 the
receivable due from Renown was $2,900,000. Subsequent to such date the Company
received a payment of $725,000 per the terms of the agreement.
Noel Cronin is also a director of String of Pearls Plc. In September 1999,
the Company entered into a 10 year license agreement for certain European
territories including Germany, France and Italy, of 20 made-for-television
movies with String of Pearls Plc. At September 30, 1999, the receivable due from
String of Pearls Plc was $5,375,000. Mr. Cronin has personally guaranteed the
obligation of String of Pearls. Subsequent to such date the Company received a
payment of $290,000 per the terms of agreement.
The due from officer balance of $170,400, $145,400 and $195,500 at
September 30, 1999, December 31, 1998 and December 31, 1997, represents payments
made by the Company on behalf of and short-term interest free loans made to the
Chairman and CEO, less producer's fees earned by the Chairman and CEO for
services on a company production.
The shareholder loan and note payable balance are comprised of the
following:
<TABLE>
<CAPTION>
SEPTEMBER 30, DECEMBER 31, DECEMBER 31, DECEMBER 31,
1999 1998 1997 1996
------------- ------------ ------------ ------------
(UNAUDITED)
<S> <C> <C> <C> <C>
Promissory note:
14% secured promissory note due July
15, 1998(i)............................ $-- $ -- $240,000 $240,000
12% secured promissory note due
August 31, 1999(ii)............... -- 500,000 500,000 500,000
--- -------- -------- --------
$-- $500,000 $740,000 $740,000
=== ======== ======== ========
</TABLE>
(i) In August 1995, the Company entered into a $250,000 promissory
note with a shareholder. The note accrues interest at 12% through November
1, 1995 and at 14% thereafter. The note and all unpaid interest are due
July 15, 1998, as amended. The note is secured by all of the President and
principal shareholder's shares and the assets of the Company. The
shareholder has waived all accrued interest relating to this note totaling
$79,000 through March 31, 1998. This interest expense, at fair value, was
recorded as either a corresponding credit to paid-in capital (1996) or
accrued liabilities (1997) which will be offset against paid-in capital
upon settlement of the obligations. The Company issued 48,743 warrants
exercisable at $0.43 in connection with the extension of the maturity date
of the loan to July 1, 1996. This promissory note was paid in full in
August 1998.
(ii) In April 1995, the Company entered into a $500,000 promissory
note with a shareholder. The note accrues interest at 10% through December
31, 1995 and at 12% thereafter. The note and all unpaid interest is due
August 31, 1999, as amended. The note is secured by all of the Chairman and
CEO's shares and the assets of the Company. The shareholder has waived all
accrued interest relating to this
F-12
<PAGE> 73
TEAM COMMUNICATIONS GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
note totaling $165,000 through March 31, 1998. Interest subsequent to March
31, 1998 is accruing at prime plus two percent, currently 9.5%. The
promissory note was paid in full in August 1999 (unaudited).
NOTE 6 -- COMMITMENTS AND CONTINGENCIES:
In January 1999, the Company was served with a complaint in a matter styled
Mel Giniger & Associates vs. Team Communications Group, Inc. et al. filed in the
Superior Court of the County of Los Angeles. In the complaint, the Plaintiff, an
individual who served as a sales agent for the Company, alleges that he is owed
commissions for sales of certain of the Company's programming and that the
Company has failed to pay in full the amounts Plaintiff alleges are owed to him.
The complaint seeks damages for breach of contract, services rendered, account
stated and for payment of value for services rendered. The Company has filed an
answer in this action and intends to vigorously defend itself. The Plaintiff
recently obtained a writ of attachment in the amount of $100,000 and we have
posted a bond with the Superior Court of the County of Los Angeles with respect
to this obligation.
On October 24, 1999, the Company was served with a complaint from Beyond
Entertainment, the licensee of Water Rats Seasons I & II. The complaint, which
seeks an accounting and termination of the license agreement, seeks $3,000,000
in contractual damages and $6,000,000 for negligence and fraud. The Company
believes the complaint to be totally without merit and intends to vigorously
contest the matter.
At this time, the outcome of any of the above matters cannot be determined
by the Company with any certainty. The Company is subject to the above mentioned
litigation and other various claims and lawsuits in the ordinary course of
business. In the opinion of management, the ultimate resolution of these matters
will not have a material adverse effect on the Company's financial condition,
results of operations or cash flows.
The Company leases office space and certain office equipment. The total
lease expense was $93,450, $78,000, $118,400, 96,300 and $113,700, respectively,
for the periods ended September 30, 1999, September 30, 1998, December 31, 1998,
December 31, 1997 and December 31, 1996, respectively. The various operating
leases to which the Company is presently subject require minimum lease payments
for the years ending December 31, as follows:
<TABLE>
<S> <C>
1999....................................................... 54,700
2000....................................................... 6,400
2001....................................................... 6,400
2002....................................................... 6,400
2003....................................................... 5,800
-------
$79,700
=======
</TABLE>
NOTE 7 -- LINE OF CREDIT -- BANK
The Company currently has a $850,000 line of credit with its bank, secured
by a certificate of deposit and certain receivables, which accrues interest on
the outstanding balance at 1.75% over Mercantile Bank's certificate of deposit
rate. The agreement expires June 15, 2000.
As of September 30, 1999, December 31, 1998, December 31, 1997 and December
31, 1996, the outstanding balance of the line credit was $697,000, $1,114,000,
$0 and $0, respectively.
F-13
<PAGE> 74
TEAM COMMUNICATIONS GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
NOTE 8 -- NOTE PAYABLE:
Notes payable consists of the following:
<TABLE>
<CAPTION>
SEPTEMBER 30, DECEMBER 31, DECEMBER 31, DECEMBER 31,
1999 1998 1997 1996
------------- ------------ ------------ ------------
(UNAUDITED)
<S> <C> <C> <C> <C>
Private placements:
12% secured notes due
August 1999(i)......... $ -- $ 225,000 $ 900,000 $ 900,000
10% secured convertible
notes due August
1999(ii)............... -- 296,000 839,000 657,000
10% secured notes due
August 1999(iii)....... 75,000 80,000 788,700 --
Promissory notes:
10% secured promissory
note due August
1999(iv)............... 125,000 250,000 500,000 500,000
11% unsecured promissory
note past due(v)....... 124,900 124,900 124,900 134,900
12% secured note due April
1999, past due(vi)..... -- 150,000 -- --
12% secured note due March
1999, past due(vii).... 150,000 150,000 -- --
12% secured note due April
1999(viii)............. -- 350,000 -- --
18% secured note past
due(ix)................ -- 115,000 -- --
12% secured note due
January 2000(x)........ 100,000 284,100 -- --
16% secured note due
August 1999(xi)........ -- 30,000 -- --
10% secured note due March
1999, past due(xii).... -- 250,000 -- --
12% secured notes due
November 1999(xiii).... 350,000 -- -- --
12% convertible secured
promissory note due
July 1998(xiv)......... -- -- 322,000 322,000
8% secured note due July
1998(xv)............... -- -- 300,000 239,900
10% secured note due July
1998(xvi).............. -- -- 150,000 124,100
10% secured note due July
1998(xvii)............. -- -- 650,000 --
12% secured note due July
1998(xviii)............ -- -- 315,000 --
10% secured promissory
note due June
1997(xix).............. -- -- -- 885,000
12% secured convertible
note due November
1999(xx)............... 200,000 -- -- --
12% secured convertible
note due November
2002(xxi).............. 3,262,300 -- -- --
---------- ---------- ---------- ----------
$4,387,200 $2,305,000 $4,889,600 $3,762,900
========== ========== ========== ==========
</TABLE>
On January 30, 1999, the Company sold $850,000 principal amount of 8%
convertible debentures and 85,000 warrants. On March 16, 1999, the Company sold
$500,000 principal amount of 8% convertible debentures and 50,000 warrants.
These convertible debentures have the same terms for conversion. The conversion
price for each debenture will be the lesser of a) 90% of the average per share
market value for five consecutive days prior to the Initial Closing date or b)
85% of the per share market value for the trading day
F-14
<PAGE> 75
TEAM COMMUNICATIONS GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
having the lowest per share market value during the five trading days prior to
the conversion date. If not otherwise converted, the debentures mature on
January 27, 2002, and March 15, 2002, respectively. These beneficial conversion
features are included in additional paid in capital. The related discount is
amortized over the life of the note using the effective interest method.
Debentures representing $850,000 principal amount were converted to equity in
May 1999. The Company recognized a $248,200 extraordinary loss as a result of
the conversion of these notes. The extraordinary loss consisted of the write-off
of the associated debt discount.
On April 7, 1999, the Company sold an additional $500,000 principal amount
of 8% convertible debentures and 50,000 warrants. These debentures have the same
terms as described above and mature, unless converted prior, on March 30, 2002.
In 1998, the Company recognized a $69,500 extraordinary loss as a result of
the early redemption of certain notes. The extraordinary loss consisted of the
write-off of the associated debt discount, net of income tax benefits of
$37,500. These beneficial conversion features are included in additional paid in
capital. The related discount is amortized over the life of the note using the
effective interest method.
(i) During February - June 1996, the Company participated in a private
placement offering. The Company sold 18 placement units to the following
investors: Matthew and Barbara Geisser, Central Scale Co., Vijaya Kani
Rehala, Vijay-Kumar Rekhala, M.D., United Congregation Mesorah, Samuel
Marinelli, Mildred Geiss, Jon Kastendieck, Bank Leumi-Affida Bank,
Cooperative Holding Corporation, Aaron Wolfson, Abraham Wolfson, Arielle
Wolfson, and LEVPOL. Each unit consisted of a $50,000 note payable with
interest of 12% per annum, compounded quarterly, and 6,408 Common Stock
Purchase warrants. The accrued interest balance was $122,900 at December
31, 1998. Each warrant entitles the holder to buy one share of common stock
at an exercise price of $0.43. The warrants are exercisable commencing two
business days following the effective date of the registration statement
relating to an initial public offering, July 29, 1998, and terminating on
the July 29, 2001. Through this private placement, the Company raised
$900,000 and issued 115,351 warrants. Principal and interest were due no
later than July 15, 1998, $675,000 was redeemed at the initial public
offering. The remainder of the noteholders extended the maturity date to
August 1999. The notes are secured by substantially all of the assets of
the Company. The fair value of the notes and the carrying amount and fair
value of the associated warrants were determined by the market rate,
approximately 25%, based upon management's estimate of its borrowing rate
in an arm's length transaction for a financial instrument of this risk. The
notes were discounted at this market rate. The value of the warrants
amounted to $162,000 and is included in paid in capital. In August 1999,
the Company repaid the principal and interest (unaudited).
(ii) During June - October 1996, the Company participated in a second
private placement offering. The Company sold 19.5 placement units to the
following investors: Wellington Corporation, Crescent Capital Company, LLC,
Arthur Steinberg IRA Rollover, Robert Steinberg IRA Rollover, Robert Ram
Steinberg, A Partnership, Von Graffenried AG, Alpha Ventures, Tuch Family
Trust, Third World Trust Company LTD., Alfred Ross, Fred Chanowski, Allen
Goodman, Felix Paige, Rogal America, Mark Levine, Joseph Sullivan, Robert
Gopen, Colony Financial Services, John Carberry, Daniel and Thalia
Federbush, and Michael Berlin. Each unit consisted of a $50,000 senior
convertible note payable with interest of 10% per annum, compounded
quarterly, and 4,272 Common Stock Purchase warrants.
The notes are convertible at their principal amount into common stock
of the Company at any time one year after the initial public offering, July
29, 1998, through maturity at the conversion price of $5.00 per share
subject to adjustment in certain circumstances. Each warrant entitles the
holder to buy one share of common stock at an exercise price of $0.43. The
warrants are exercisable commencing two business days following the
effective date of the registration statement relating to an initial public
offering, July 29, 1998, and terminating on July 29, 2001. As of December
31, 1996, the Company raised $975,000 and issued 83,308 warrants. Principal
and interest were due no later than July 15, 1998 and $679,000 was redeemed
at the initial public offering. The remainder of the noteholders extended
the maturity date to August 1999. The accrued interest balance was $108,500
at December 31, 1998. The notes are secured by substantially all of the
assets of the Company. The carrying amount and fair value of the notes and
associated warrants were determined by the market rate, approximately 25%,
for a financial instrument of this risk. The notes were discounted at this
market rate. The value of the warrants amounted to $381,928 and is included
in paid in capital. These notes were repaid in August 1999 (unaudited).
F-15
<PAGE> 76
TEAM COMMUNICATIONS GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(iii) During January 1997, the Company participated in a third private
placement offering. The Company sold 19.4 units to the following investors:
Alan Parness, Arab International Trust Co., Duck Partners, LP, Gary and
Paula Wayton, Michael Rosenbaum, RMK Financial LLC, Robert Bain, Robert
Frankel, Roger Triemstra, Roland McAbee, Swan Alley Limited, and Van Moer
Santerr & Cie. Each unit consisted of a $50,000 senior note payable with
interest of 10% per annum, payable at six month intervals, and 10,000
Common Stock Purchase warrants. In 1998 $889,000 was repaid. The maturity
date of the notes is August 1999. Each warrant entitles the holder to buy
one share of common stock at an exercise price of $0.97. The warrants are
exercisable commencing two business days following the effective date of
the registration statement relating to an initial public offering and
terminating on the third anniversary of that date. As of September 30,
1997, the Company raised $969,000 and issued 193,870 warrants. The accrued
interest balance was $41,100 at December 31, 1998. The notes are secured by
substantially all of the assets of the Company. The carrying amount and
fair value of the notes and associated warrants were determined by the
market rate, approximately 25%, for a financial instrument of this risk.
The notes were discounted at this market rate. The value of the warrants
amounted to $286,797 and is included in paid-in capital.
(iv) In April 1996, the Company entered into a $500,000 promissory
note with South Ferry #2, L.P., an outside investor, to finance a
television program. The note accrues interest at 10% per annum and is due
on August 20, 1999, as amended. At the initial public offering, $250,000
was repaid. The accrued interest balance was $124,200 at December 31, 1998.
The note is secured by certain assets and rights associated with the
television program. There were 29,906 warrants (exercisable at $0.43 per
warrant) issued in connection with this note. The fair value of the note
was estimated using discounted cash flow methods based on the Company's
borrowing rates, approximately 25%, for similar types of borrowing
arrangements with comparable terms and maturities. In August 1999, the
Company repaid $125,000 of the principal and extended the remaining
$125,000 to November 23, 1999 (unaudited).
(v) In September 1996, the Company entered into a $150,000 unsecured
promissory note with Time Life to repay an advance provided to the Company
in October 1995. The note bears interest at 11% per annum from October 1995
and required payments such that the note would be repaid by March 31, 1997.
As of December 31, 1998, there was $29,700 of accrued interest. During
1997, the Company made a $10,000 principal payment. During 1996, the
Company made a $30,250 payment, of which $15,125 was applied to the
principal balance, and $15,125 was applied to accrued interest. The holder
of the note has not filed a notice of default and the Company is
negotiating an extension of the payment terms.
(vi) In March 1998, the Company obtained a loan in the amount of
$150,000 from Arab Commerce Bank, which carries interest at 12% per annum
and matured on April 1, 1999. As of December 31, 1998 there was accrued
interest of $13,800. The note is secured by substantially all the assets of
the Company. This note was paid in full in June 1999 (unaudited).
(vii) In March 1998, the Company obtained a loan in the amount of
$150,000 from Nick Kahla, which carries interest at 12% per annum and
matures on March 16, 1999. As of December 31, 1998, there was accrued
interest of $14,100. The note is secured by substantially all the assets of
the Company. The Company is currently negotiating with Nick Kahala to pay
off this note.
(viii) Between March 1998 and May 1998, the Company arranged $650,000
in short-term loans. $300,000 was repaid at the initial public offering.
These loans bear an interest rate of 12%, and $100,000 matured in March
1999 and $250,000 matured in April 1999. At December 31, 1998, the accrued
interest was $29,400. These notes have been paid in full in June 1999
(unaudited).
(ix) In May 1998, the Company obtained a loan in the amount of
$115,000 from the High Bridge Fund. The loan includes a $15,000 loan
origination fee and begins to accrue interest at 18% per year if the loan
goes into default. At December 31, 1998, the accrued interest was $2,000.
The loan was repaid in August 1999 (unaudited).
(x) In May and June 1998, the Company arranged with nine parties for
$375,000 of long term loans. The loans mature January 2000. Of the
$375,000, there are two loan origination fees, one for $8,000 and one for
$8,500. Two notes are convertible at their principal and interest amount
into common stock of the Company at any time through maturity at the
conversion price of 50% of the current per share market value. One note is
convertible at its principal and interest amount into common stock of the
F-16
<PAGE> 77
TEAM COMMUNICATIONS GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
Company at the conversion price of 75% of the current per share market
value. These conversion features were valued at $62,500 and included in
paid in capital. The resulting discount on the notes payable is amortized
over the life of the note using the effective interest method. At December
31, 1998, $284,100 principal amount remained outstanding. The loans accrue
interest at 12% per annum. As of December 31, 1998, there was accrued
interest of $22,700. This loan was repaid in full in July 1999 (unaudited).
(xi) In July 1998, the Company arranged a loan for $340,000. The loan
matures August 1999. The loan bears an interest rate of 16% per annum. At
December 31, 1998, $30,000 principal amount remained outstanding. As of
December 31, 1998, there was accrued interest of $11,100. The loan was
repaid in August 1999 (unaudited).
(xii) On December 29, 1998, the Company arranged a loan for $250,000.
The loan accrues interest at 10% per annum. The loan matured on March 31,
1999. This note has been paid in full in August 1999 (unaudited).
(xiii) In May, June and July 1999, the Company sold notes for
$350,000. These notes mature in November 1999 and bear an interest rate of
12% (unaudited).
(xiv) In January 1996, the Company entered into an agreement with AMAE
Ventures, an outside investor. The Company received $322,000 in exchange
for (i) a convertible secured promissory note, convertible into 3% of the
Company's outstanding stock on a fully diluted basis through an initial
public offering, and (ii) the transfer from the principal shareholder of 4%
of the Company's issued and outstanding stock on a fully diluted basis
through an initial public offering. The note accrues interest at 12% per
annum and is due July 15, 1998. The accrued interest balance was $121,000,
$93,000 and $36,200 at March 31, 1998, December 31, 1997 and December 31,
1996, respectively. The fair value of the note and carrying value and fair
value of the associated shares were determined by the market rate for a
financial instrument of this risk. This note was converted to equity in
August 1998.
(xv) In November 1996, the Company entered into a $300,000 promissory
note with Affida Bank. The note bears interest at 8% per annum, compounding
quarterly, and is due the sooner of an initial public Offering or July 15,
1998. The accrued interest balance was $34,200, $8,500, $27,700, and $2,800
at March 31, 1998, December 31, 1997 and December 31, 1996, respectively.
The note is secured by substantially all of the assets of the Company.
There were 25,634 Common Stock Purchase warrants issued in connection with
this note. Each warrant entitles the note holder to buy one share of common
stock at an exercise price of $.43. The warrants are currently exercisable
and terminate on the earlier to occur of the third anniversary of the
effective date of an initial public offering or June 30, 2000. The note is
secured by substantially all of the assets of the Company. The carrying
amount and fair value of the notes and associated warrants were determined
by the market rate, approximately 25%, for a financial instrument of this
risk. The notes were discounted at this market rate. The value of the
warrants amounted to $66,000 and is included in paid in capital. This note
was paid in full in August 1998.
(xvi) In December 1996, the Company entered into a $150,000 promissory
note with Phillip Tewel. The note bears interest at 10% per annum,
compounding quarterly, and was due the sooner of an initial public offering
or July 15, 1998. The accrued interest balance was $20,100, $16,050, and
$400 at March 31, 1998, December 31, 1997 and December 31, 1996,
respectively. The note is secured by substantially all of the assets of the
Company. There were 29,191 Common Stock Purchase warrants issued in
connection with this note. Each warrant entitles the note holder to buy one
share of common stock at an exercise price of $.43. The warrants are
currently exercisable and terminate on the earlier to occur of the third
anniversary of the effective date of an initial public offering or June 30,
2000. The note is secured by substantially all of the assets of the
Company. The carrying value of the warrants amounted to $26,500 and is
included in paid-in capital. This note was paid in full in August 1998.
(xvii) In June 1997, the Company entered into a $650,000 secured
promissory note with Alliance. The note bears interest at the prime rate
plus one per cent per annum from June 1996 and required payments such that
the note, as amended, would be repaid by July 15, 1998. As of March 31,
1998 and December 31, 1997 there was $50,800 and $34,500, respectively of
accrued interest. The note is secured by all the television rights and
interest owned with regards to the "Total Recall" project. This note was
paid in full in August 1998.
(xviii) In December 1997, the Company obtained a loan in the amount of
$315,000 from Venture Management Consultants LLC ("VMC"), which carries
interest at 12% per annum, and matures at the
F-17
<PAGE> 78
TEAM COMMUNICATIONS GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
earlier of the closing of the offering or July 15, 1998. As the loan was
not repaid in full by February 15, 1998, the Company is required to pay VMC
an additional $15,000. Included in the principal balance is a $15,000 loan
origination fee. As of December 31, 1997 there was accrued interest of
$2,000. As of March 31, 1998, $50,000 of the principal under this note has
been repaid. The note is secured substantially by all the assets of the
Company. This note was paid in full in August 1998.
(xix) In July 1996, the Company entered into a $1,200,000 promissory
note with 3 outside investors, ACA Equities, D&M Investments and Gilbert
Karsenty, to acquire the television rights to "Total Recall." The note
accrued interest at 10% per annum. As of March 31, 1998 and December 31,
1997, there had been $1,200,000 repaid in respect to this debt. As of
December 31, 1996 there had been $315,000 repaid in respect to this debt.
The accrued interest balance was $83,100 at March 31, 1998 and December 31,
1997 and $47,800 at December 31, 1996. There were 53,403 shares of common
stock issued in connection with the origination of this debt and 21,362
warrants (exercisable at $0.43 per warrant) were issued to extend the loan.
The outside investors are also entitled to 15% of any net profits earned
from the exploitation of these rights. The fair value of the notes was
estimated using discounted cash flow methods based on the Company's
borrowing rates, approximately 25%, for similar types of borrowing
arrangements with comparable terms and maturities. These notes were paid
off in 1997.
(xx) In July 1999, we arranged for a short term loan of $1,200,000 for
production and distribution activities. The loan matures on November 30,
1999 and accrues interest at 12% per year. If the loan is not repaid by
November 30, 1999, the principal and all accrued and unpaid interest
convert into shares of our common stock at the lesser of 85% of the market
price on the date of issuance or 110% of the current market price when
converted. As of November 10, 1999 we have repaid the full $1,200,000 of
this note (unaudited).
(xxi) On August 5, 1999, the Company completed a $4,000,000 financing
in anticipation of the Company's public offering in Germany this fall. The
Note bears interest at 12% per annum and matures November 30, 2002. The
Note is subordinate to any of the Company's bank financing or senior debt.
All or part of the unpaid principal amount may be converted into shares of
Common Stock at the holder's option any time after November 30, 1999. The
conversion price is the lesser of 120% of the average per share market
price for five consecutive trading days prior to August 5, 1999 or 88% of
the per share market price for the three days with the lowest per share
market price during the twenty-five days prior to conversion. Connected
with this financing, the Company sold 340,000 warrants to purchase Team
common stock at $6.50, which is 105% of the five-day average closing price
prior to the closing of the financing (unaudited).
NOTE 9 -- GEOGRAPHIC INFORMATION:
The Company operates in a single industry segment, the development,
production and distribution of television programming. All of the Company's
operations are conducted in the United States.
A summary of the Company's revenues by geographic area is presented below:
<TABLE>
<CAPTION>
SEPTEMBER 30, SEPTEMBER 30, DECEMBER 31, DECEMBER 31, DECEMBER 31,
1999 1998 1998 1997 1996
------------- ------------- ------------ ------------ ------------
(UNAUDITED) (UNAUDITED)
<S> <C> <C> <C> <C> <C>
North America............. $ 3,504,400 $6,336,900 $ 9,844,500 $1,483,600 $2,221,900
Europe.................... 8,675,000 -- -- 307,100 1,332,900
South America............. 645,900 1,705,000 1,351,800 3,798,900 732,400
Asia...................... 448,000 1,424,900 1,412,900 136,000 1,306,500
Australia and Africa...... -- -- 972,700 1,250,000 156,100
----------- ---------- ----------- ---------- ----------
Total..................... $13,273,300 $9,466,800 $13,581,900 $6,975,600 $5,749,800
=========== ========== =========== ========== ==========
</TABLE>
NOTE 10 -- STOCK OPTION PLANS:
The Company has established stock option plans for its employees and
consultants (the "1995 Stock Option Plan") and for its non-employee directors
(the "1995 Stock Option Plan for Non-Employee Directors").
F-18
<PAGE> 79
TEAM COMMUNICATIONS GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
The 1995 Stock Option Plan allows for options (including Incentive Stock
Options) to be granted to employees and consultants at less than fair market
value at date of grant. These options may be immediately exercisable and expire
over a period determined by the Stock Option Committee of the Board of Directors
(the "Committee"). The Committee is comprised of two members of the Board of
Directors. The total number of options available to grant under this plan is
270,000.
The 1995 Stock Option Plan for Non-Employee Directors allows for a set
number of immediately exercisable options to be granted at fair market value to
non-employee members of the Board of Directors. The total number of options
available to grant under this plan is 67,500. There were no options granted
exercised, forfeited, expired or outstanding pursuant to the Director Plan for
the year ended December 31, 1998.
A summary of the Key Employee Plan as of and for the periods December 31,
1998, December 31, 1997 and December 31, 1996, is presented below:
<TABLE>
<CAPTION>
WEIGHTED AVERAGE
KEY EMPLOYEE PLAN SHARES EXERCISED PRICE
----------------- ------- ----------------
<S> <C> <C>
Outstanding as of January 1, 1996.................... -- $ --
Granted.............................................. 35,000 1.14
Exercised.......................................... -- --
Forfeited/Expired.................................. -- --
-------
Outstanding as of December 31, 1998, December 31,
1997 and December 31, 1996......................... 35,000
=======
Weighted-average fair value of options outstanding... $ 1.14
=======
</TABLE>
The following table summarizes information about options outstanding at
December 31, 1998, 1997 and 1996:
<TABLE>
<CAPTION>
SHARES EXERCISABLE AT
DECEMBER 31, 1998,
DECEMBER 31, 1997, DATE
TOTAL SHARES EXERCISE PRICE AND DECEMBER 31, 1996 OPTIONS EXPIRE
------------ -------------- --------------------- --------------
<S> <C> <C> <C> <C>
30,000 $1.00 10,000 July 1, 2006
5,000 $2.00 5,000 June 6, 2006
------ ------
35,000 15,000
====== ======
</TABLE>
The Company has elected, as permitted by SFAS No. 123, "Accounting for
Stock Based Compensation", to account for its stock compensation arrangements
under the provisions of APB No. 25, "Accounting for Stock Issued to Employees".
Accordingly, because the exercise price of the Company's employee stock options
equals or exceeds the market price of the underlying stock on the date of grant,
no compensation expense is recognized.
Pro forma information regarding net income and earnings per share is
required by SFAS 123 and has been determined as if the Company had accounted for
its employee stock options under the fair value method of such pronouncement.
The fair value for these options was estimated at the date of grant using the
binomial option pricing model with the following weighted average assumptions:
risk-free interest rate of 6.33%, no dividend yield, expected lives of two and a
half years, and volatility of 0%.
For purposes of pro forma disclosure, the estimated fair value of the
options is zero, hence neither pro forma net income nor earnings per share are
presented.
In January 1997, the Company's shareholders voted to freeze the 1995 Stock
Option Plans and adopt two new plans, the Team Communications Group, Inc. Stock
Awards plan (the "1996 Employee Plan") and the Team Communications Group, Inc.
Directors' Stock Option Plan (the "1996 Director's Plan").
The 1996 Directors Plan allows Directors who are not employees of the
Company, on the effective date of an initial public offering and each annual
anniversary thereof, to receive options to purchase 2,500 shares. The option
price per share of Common Stock purchasable upon exercise of such stock options
shall be 100% of the fair market value on the date of grant. Such options shall
be exercisable immediately on the date of grant by
F-19
<PAGE> 80
TEAM COMMUNICATIONS GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
payment in full of the purchase price in cash. The aggregate number of shares of
Common Stock that may be granted pursuant to the 1996 Directors Plan is 20,000.
The aggregate number of shares of Common Stock that may be granted under
the 1996 Employee Plan is 180,000. The Employee Plan provides for the authority
by the Employee Plan Committee to grant ISO's to any key employee of the Company
or any affiliate of the Company and to determine the terms and conditions of
each grant, including without limitation, the number of shares subject to each
ISO. The ISO exercise price will also be determined by the Committee and will
not be less than the fair market value of the Common Stock on the date of grant.
The exercise price will not be less than 110% of such fair market value and the
exercise period will not exceed five years if the participant was the holder of
more than 10% of the Company's outstanding voting securities.
NOTE 11 -- SUBSEQUENT EVENTS (UNAUDITED):
On October 1, 1999, the Company completed the purchase of Dandelion
Distribution Ltd., a 20 year old United Kingdom based television production and
distribution company, for $2,500,000 in cash and 386,847 shares of the Company's
common stock for an aggregate value of $5,000,000. The Company may also be
required to pay an additional $250,000 if the shares of common stock delivered
as part of the purchase price do not have a market value of at least $3,000,000
on October 1, 2001.
On October 5, 1999, the Company completed a $4,000,000 financing with
Gontard & MetallBank AG. The Note bears interest at 10% per annum and matures on
the earlier of the completion of this offering or December 31, 1999.
NOTE 12 -- GOING CONCERN:
The Company's financial statements for the nine months ended September 30,
1999 and 1998 and the years ended December 31, 1998, December 31, 1997 and
December 31, 1996, have been prepared on a going concern basis which
contemplates the realization of assets and the settlement of liabilities and
commitments in the normal course of business. The Company expects to incur
substantial expenditures to produce television programs and/or acquire
distribution rights to television programs produced by third parties. The
Company's working capital plus limited revenue from the licensing of its current
inventory of television programs will not be sufficient to fund the Company's
ongoing operations, including completing projects that the Company is
contractually required to develop or produce.
Management recognizes that the Company must generate additional resources
to enable it to continue operations. Management's plans include the sale of
additional equity securities. However, no assurance can be given that the
Company will be successful in raising additional capital. Further, there can be
no assurance, assuming the Company successfully raises additional equity, that
the Company will achieve profitability or positive cash flow.
F-20
<PAGE> 81
INDEX TO FINANCIAL STATEMENTS
OF DANDELION DISTRIBUTION LIMITED
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Directors' Report for the year ended 31 July 1999........... F-22
Report of Independent Auditors.............................. F-23
Profit and Loss Account for the year ended 31 July 1999..... F-24
Balance sheet at 31 July 1999............................... F-25
Notes to the Financial Statements........................... F-26
Directors' Report for the year ended 31 July 1998........... F-32
Report of Independent Auditors.............................. F-33
Profit and Loss Account for the year ended 31 July 1998..... F-34
Balance sheet at 31 July 1998............................... F-35
Notes to the Financial Statements........................... F-36
</TABLE>
F-21
<PAGE> 82
DANDELION DISTRIBUTION LIMITED
DIRECTORS' REPORT FOR THE YEAR ENDED 31 JULY 1999
The directors present their report and the financial statements for the
year ended 31 July 1999.
STATEMENT OF DIRECTORS' RESPONSIBILITIES
Company law requires the directors to prepare financial statements for each
financial year which give a true and fair view of the state of affairs of the
company and of the profit or loss of the company for that period. In preparing
those financial statements, the directors are required to:
- select suitable accounting policies and then apply them consistently;
- make judgements and estimates that are reasonable and prudent;
- follow applicable accounting standards, subject to any material
departures disclosed and explained in the accounts;
- prepare the financial statements on the going concern basis unless it is
inappropriate to presume that the company will continue in business.
The directors are responsible for keeping proper accounting records which
disclose with reasonable accuracy at any time the financial position of the
company and to enable them to ensure that the financial statements comply with
the Companies Act 1985. They are also responsible for safeguarding the assets of
the company and hence for taking reasonable steps for the prevention and
detection of fraud and other irregularities.
DONATIONS
During the year the company made charitable donations of L1,170 (1998:
L1,523).
PRINCIPAL ACTIVITIES
The principal activities of the company are those of film distribution and
film production.
DIRECTORS
The directors who served during the year and their beneficial interests in
the company's issued share capital were:
<TABLE>
<CAPTION>
ORDINARY SHARES OF L1 EACH
--------------------------
1999 1998
------- -------
<S> <C> <C>
N D Cronin Esq........................................ 198 198
Mrs J M Cronin........................................ 2 2
</TABLE>
AUDITORS
The auditors, Messrs. Barnes Roffe, will be proposed for reappointment in
accordance with section 385 of the Companies Act 1985.
SMALL COMPANY EXEMPTIONS
The report of the directors has been prepared in accordance with the
special provisions of Part VII of the Companies Act 1985 relating to small
companies.
This report was approved by the Board and signed on its behalf:
N D Cronin Esq
Director
Date: 14 October 1999
F-22
<PAGE> 83
DANDELION DISTRIBUTION LIMITED
AUDITORS' REPORT TO THE SHAREHOLDERS OF DANDELION DISTRIBUTION LIMITED
We have audited the financial statements on pages F-26 to F-33 which have
been prepared in accordance with the Financial Reporting Standard for Smaller
Entities (effective March 1999) under the historical cost convention and the
accounting policies set out on pages F-28 and F-29.
RESPECTIVE RESPONSIBILITIES OF DIRECTORS AND AUDITORS
As described on page F-24 the company's directors are responsible for the
preparation of financial statements. It is our responsibility to form an
independent opinion, based on our audit, on those statements and to report our
opinion to you.
BASIS OF OPINION
We conducted our audit in accordance with Auditing Standards issued by the
Auditing Practices Board. An audit includes examination, on a test basis, of
evidence relevant to the amounts and disclosures in the financial statements. It
also includes an assessment of the significant estimates and judgements made by
the directors in the preparation of the financial statements, and of whether the
accounting policies are appropriate to the company's circumstances, consistently
applied and adequately disclosed.
We planned and performed our audit so as to obtain all the information and
explanations which we considered necessary in order to provide us with
sufficient evidence to give reasonable assurance that the financial statements
are free from material misstatement, whether caused by fraud or other
irregularity or error. In forming our opinion we also evaluated the overall
adequacy of the presentation of information in the financial statements.
OPINION
In our opinion, the financial statements give a true and fair view of the
state of the company's affairs as at 31 July 1999 and of its profit for the year
then ended and have been properly prepared in accordance with the Companies Act
1985.
BARNES ROFFE
Registered Auditors
16-19 Copperfields
Spital Street
Dartford
Kent DA1 2DE
Date: 15 October 1999
F-23
<PAGE> 84
DANDELION DISTRIBUTION LIMITED
PROFIT AND LOSS ACCOUNT
FOR THE YEAR ENDED 31 JULY 1999
<TABLE>
<CAPTION>
1999 1998
NOTE L L
---- ---------- ----------
<S> <C> <C> <C>
TURNOVER.................................................... 1, 2 1,904,997 2,115,128
Cost of sales............................................... (1,049,786) (1,346,783)
---------- ----------
GROSS PROFIT................................................ 855,211 768,345
Selling and distribution costs.............................. (122,589) (135,362)
Administrative expenses..................................... (658,360) (453,314)
Other operating income...................................... 21,105 19,600
---------- ----------
OPERATING PROFIT............................................ 3 95,367 199,269
Loss on disposal of tangible fixed assets................... -- (4,664)
---------- ----------
95,367 194,605
Interest receivable and similar income...................... 22,978 22,730
Interest payable and similar charges........................ (35,977) (51,050)
---------- ----------
PROFIT ON ORDINARY ACTIVITIES BEFORE TAXATION............... 82,368 166,285
TAXATION ON PROFIT ON ORDINARY ACTIVITIES................... 5 (25,907) (38,369)
---------- ----------
PROFIT ON ORDINARY ACTIVITIES AFTER TAXATION................ 56,461 127,916
DIVIDENDS................................................... 6 -- (50,000)
---------- ----------
RETAINED PROFIT FOR THE YEAR................................ 56,461 77,916
RETAINED PROFIT BROUGHT FORWARD............................. 890,312 812,396
---------- ----------
RETAINED PROFIT CARRIED FORWARD............................. 946,773 890,312
========== ==========
</TABLE>
The notes on pages F-28 to F-33 form part of these financial statements.
F-24
<PAGE> 85
DANDELION DISTRIBUTION LIMITED
BALANCE SHEET
AS AT 31 JULY 1999
<TABLE>
<CAPTION>
1999 1998
---------------------- ----------------------
NOTE L L L L
---- ---------- --------- ---------- ---------
<S> <C> <C> <C> <C> <C>
FIXED ASSETS
Intangible fixed assets..................... 7 -- --
Tangible fixed assets..................... 8 441,714 452,758
Investments............................... 9 100 256,562
--------- ---------
441,814 709,320
CURRENT ASSETS
Stocks.................................... 1,038,406 1,267,583
Debtors................................... 10 650,986 563,008
Investments............................... 11 42,105 --
Cash at bank and in hand.................. 253,204 137,415
---------- ----------
1,984,701 1,968,006
CREDITORS: amounts falling due within
one year.................................. 12 (1,322,142) (1,593,505)
---------- ----------
NET CURRENT ASSETS.......................... 662,559 374,501
--------- ---------
TOTAL ASSETS LESS CURRENT LIABILITIES....... 1,104,373 1,083,821
CREDITORS: amounts falling due after more
than one year............................. 13 (154,964) (190,873)
PROVISIONS FOR LIABILITIES AND CHARGES...... 14 (2,436) (2,436)
--------- ---------
NET ASSETS.................................. 946,973 890,512
========= =========
CAPITAL AND RESERVES
Called up share capital................... 15 200 200
Profit and loss account................... 946,773 890,312
--------- ---------
SHAREHOLDERS' FUNDS......................... 946,973 890,512
========= =========
</TABLE>
The financial statements have been prepared in accordance with the special
provisions of Part VII of the Companies Act 1985 relating to small companies and
in accordance with the Financial Reporting Standard for Smaller Entities
(effective March 1999).
The financial statements were approved by the Board and signed on its behalf:
N D Cronin Esq
Director
Date: 14 October 1999
The notes on pages F-28 to F-33 form part of these financial statements.
F-25
<PAGE> 86
DANDELION DISTRIBUTION LIMITED
NOTES TO THE FINANCIAL STATEMENTS
FOR THE YEAR ENDED 31 JULY 1999
1. ACCOUNTING POLICIES
1.1 BASIS OF PREPARATION OF FINANCIAL STATEMENTS
The financial statements have been prepared under the historical cost
convention.
The company is exempt from the requirements to prepare group accounts by
virtue of section 248 of the Companies Act 1985. These financial statements
therefore present information about the company as an individual undertaking and
not about its group.
1.2 TURNOVER
Turnover comprises the invoiced value of goods and services supplied by the
company, exclusive of Value Added Tax and trade discounts.
1.3 TANGIBLE FIXED ASSETS AND DEPRECIATION
Tangible fixed assets are stated at cost less depreciation. Depreciation is
provided at rates calculated to write off the cost of fixed assets, less their
estimated residual value, over their expected useful lives on the following
bases:
<TABLE>
<S> <C>
Freehold buildings............................. 2% p.a. straight line
Plant & machinery etc.......................... 15/25% p.a. reducing balance
</TABLE>
1.4 LEASING AND HIRE PURCHASE
Assets obtained under hire purchase contracts and finance leases are
capitalised as tangible fixed assets. Assets acquired by finance lease are
depreciated over the shorter of the lease term and their useful lives. Assets
acquired by hire purchase are depreciated over their useful lives. Finance
leases are those where substantially all of the benefits and risks of ownership
are assumed by the company. Obligations under such agreements are included in
creditors net of the finance charge allocated to future periods. The finance
element of rental payments is charged to the profit and loss account on a sum of
digits basis, so as to produce a constant periodic rate of charge on the net
obligation outstanding in each period.
1.5 OPERATING LEASES
Rentals applicable to operating leases where substantially all of the
benefits and risks of ownership remain with the lessor are charged to profit and
loss account on a straight line basis over the lease term.
1.6 STOCKS
Stocks of films rights are valued at the lower cost or net realisable
value. Costs are carried forward in proportion to the directors' estimate of
future revenue receivable. Where total costs exceed total estimated revenue, the
value carried forward is limited to the value of estimated future revenue.
The directors' projections for future revenues extend over the next three
years and revenue streams are based both on contracts secured and under
negotiation, anticipating that similar repeat business will be available. In
cases where contracts have yet to be secured the directors have used estimates
based on experience. In formulating projections, the directors consider that
they have taken in to account all information that could reasonably be expected
to be available, although there can be no certainty in respect of contracts
being negotiated in future of a similar value to those currently secured. The
financial statements do not include any adjustments that would result if future
revenues were not realised in line with directors' expectations.
1.7 FOREIGN CURRENCIES
Monetary assets and liabilities denominated in foreign currencies are
translated into sterling at the rates of exchange ruling at the balance sheet
date. Transactions denominated in foreign currencies are translated into
sterling at the rate ruling on the date of the transaction. Exchange differences
are taken into account in arriving at the operating profit.
F-26
<PAGE> 87
DANDELION DISTRIBUTION LIMITED
NOTES TO THE FINANCIAL STATEMENTS (CONTINUED)
FOR THE YEAR ENDED 31 JULY 1999
1.8 DEFERRED TAXATION
Provision is made for deferred taxation as a result of material timing
differences between the incidence of income and expenditure for taxation and
accounts purposes, using the liability method, only to the extent that, in the
opinion of the directors, there is a reasonable probability that a liability or
asset will crystallise in the near future.
1.9 PENSIONS
The company operates a defined contribution (money purchase) pension
scheme. The assets of the scheme are held separately from those of the company
in an independently administered fund. Contributions are charged to the profit
and loss account as they become payable in accordance with the rules of the
scheme.
2. TURNOVER
43% of the company's turnover (1998: 57%) is attributable to geographical
markets outside the United Kingdom.
3. OPERATING PROFIT
The operating profit is stated after charging:
<TABLE>
<CAPTION>
1999 1998
L L
------ ------
<S> <C> <C>
Depreciation of tangible fixed assets....................... 13,832 14,985
Auditors' remuneration...................................... 8,000 8,000
Pension costs............................................... 500 500
====== ======
</TABLE>
4. DIRECTORS' REMUNERATION
<TABLE>
<CAPTION>
1999 1998
L L
------- ------
<S> <C> <C>
Fees, salaries, benefits in kind and pension
contributions............................................. 393,542 125,538
------- ------
393,542 125,538
======= ======
</TABLE>
During the year, retirement benefits were accruing to two (1998: two)
directors in respect of money purchase pension schemes.
5. TAXATION
<TABLE>
<CAPTION>
1999 1998
L L
------ ------
<S> <C> <C>
CURRENT YEAR TAXATION
UK corporation tax.......................................... 23,464 38,619
Transfer from deferred taxation............................. -- (250)
------ ------
23,464 38,369
PRIOR YEARS
UK corporation tax.......................................... 2,443 --
------ ------
25,907 38,369
====== ======
</TABLE>
6. DIVIDENDS
<TABLE>
<CAPTION>
1999 1998
L L
------ ------
<S> <C> <C>
Interim ordinary dividends paid............................. -- 50,000
====== ======
</TABLE>
F-27
<PAGE> 88
DANDELION DISTRIBUTION LIMITED
NOTES TO THE FINANCIAL STATEMENTS (CONTINUED)
FOR THE YEAR ENDED 31 JULY 1999
7. INTANGIBLE FIXED ASSETS
<TABLE>
<CAPTION>
GOODWILL
L
--------
<S> <C>
COST:
At 1 August 1998............................................ 15,000
------
At 31 July 1999............................................. 15,000
------
AMORTIZATION
At 1 August 1998............................................ 15,000
======
At 31 July 1999............................................. 15,000
======
NET BOOK VALUE
At 31 July 1999 and 31 July 1998............................ --
======
</TABLE>
8. TANGIBLE FIXED ASSETS
<TABLE>
<CAPTION>
FREEHOLD LAND PLANT &
& BUILDINGS MACHINERY ETC TOTAL
L L L
------------- ------------- -------
<S> <C> <C> <C>
COST
At 1 August 1998................................... 452,682 95,429 548,111
Additions.......................................... -- 2,788 2,788
------- ------ -------
At 31 July 1999.................................... 452,682 98,217 550,899
------- ------ -------
DEPRECIATION
At 1 August 1998................................... 37,861 57,492 95,353
Charge for year.................................... 7,696 6,136 13,832
------- ------ -------
At 31 July 1999.................................... 45,557 63,628 109,185
------- ------ -------
NET BOOK VALUE
At 31 July 1999.................................... 407,125 34,589 441,714
======= ====== =======
At 31 July 1998.................................... 414,821 37,937 452,758
======= ====== =======
</TABLE>
Included in land and buildings is freehold land valued at L67,900 (1998:
L67,900) which is not depreciated.
During the year, the freehold property was independently valued for the
purpose of securing bank borrowings at a figure materially lower than the
carrying value in the financial statements. However, in the opinion of the
directors, the open market value of this property is not significantly lower
than its carrying value in the financial statements.
F-28
<PAGE> 89
DANDELION DISTRIBUTION LIMITED
NOTES TO THE FINANCIAL STATEMENTS (CONTINUED)
FOR THE YEAR ENDED 31 JULY 1999
9. FIXED ASSET INVESTMENTS
<TABLE>
<CAPTION>
SHARES
IN GROUP OTHER
UNDERTAKINGS INVESTMENTS TOTAL
L L L
------------ ----------- --------
<S> <C> <C> <C>
COST
At 1 August 1998.................................. 100 256,462 256,562
Additions......................................... -- 17,955 17,955
Disposals......................................... -- (232,312) (232,312)
Transfer to Current Asset Investments............. -- (42,105) (42,105)
--- -------- --------
At 31 July 1999................................... 100 -- 100
--- -------- --------
NET BOOK VALUE
At 31 July 1999................................... 100 -- 100
=== ======== ========
At 31 July 1998................................... 100 256,462 256,562
=== ======== ========
</TABLE>
The company owns 100% of the ordinary share capital of its dormant
subsidiary Baserem Limited, a company incorporated in England and Wales. The
aggregate capital and reserves as of 31st July 1999 is L100 (1998: L100).
10. DEBTORS
<TABLE>
<CAPTION>
1999 1998
L L
-------- --------
<S> <C> <C>
DUE WITHIN ONE YEAR
Trade debtors............................................... 579,110 463,977
Other debtors............................................... 71,876 99,031
-------- --------
650,986 563,008
======== ========
</TABLE>
Included in trade debtors is a balance of L83,335 (1998: L112,500) which is
due after more than one year.
11. CURRENT ASSET INVESTMENTS
<TABLE>
<CAPTION>
1999 1998
L L
------- -------
<S> <C> <C>
Other investments at cost................................... 42,105 --
======= =======
</TABLE>
12. CREDITORS
AMOUNTS FALLING DUE WITHIN ONE YEAR
<TABLE>
<CAPTION>
1999 1998
L L
--------- ---------
<S> <C> <C>
Bank loans and overdrafts (secured)......................... 208,460 534,604
Net obligations under finance lease and hire purchase
contracts................................................... -- 12,135
Trade creditors............................................. 869,597 839,700
Amounts owed to group undertakings.......................... 100 100
Corporation tax............................................. 23,464 52,497
Other taxation and social security.......................... 52,751 38,458
Directors' current accounts................................. 98,174 19,991
Other creditors and accruals................................ 69,596 96,020
--------- ---------
1,322,142 1,593,505
========= =========
</TABLE>
F-29
<PAGE> 90
DANDELION DISTRIBUTION LIMITED
NOTES TO THE FINANCIAL STATEMENTS (CONTINUED)
FOR THE YEAR ENDED 31 JULY 1999
13. CREDITORS
AMOUNTS FALLING DUE AFTER MORE THAN ONE YEAR
<TABLE>
<CAPTION>
1999 1998
L L
--------- ---------
<S> <C> <C>
Bank loans and overdrafts (secured)......................... 154,964 160,873
Other creditors and accruals................................ -- 30,000
--------- ---------
154,964 190,873
========= =========
</TABLE>
Included within the above are amounts falling due as follows:
<TABLE>
<S> <C> <C>
IN MORE THAN 5 YEARS:
Loan instalments............................................ 112,763 87,373
========= =========
</TABLE>
14. PROVISIONS FOR LIABILITIES AND CHARGES
<TABLE>
<CAPTION>
1999 1998
L L
--------- ---------
<S> <C> <C>
DEFERRED TAXATION
At 1 August 1998............................................ 2,436 2,686
Credit for the year....................................... -- (250)
--------- ---------
At 31 July 1999........................................... 2,436 2,436
========= =========
</TABLE>
The deferred tax balance above represents the maximum liability for
deferred tax in respect of accelerated capital allowances.
15. CALLED UP SHARE CAPITAL
<TABLE>
<CAPTION>
1999 1998
L L
----- -----
<S> <C> <C>
AUTHORISED
1,000 ordinary shares of L1 each............................ 1,000 1,000
===== =====
ALLOTTED, ISSUED AND FULLY PAID
200 ordinary shares of L1 each.............................. 200 200
===== =====
</TABLE>
16. RELATED PARTIES
The company trades with String Of Pearls plc and String Of Pearls II plc,
companies in which N D Cronin Esq is a director and shareholder. No reportable
related party transactions with these companies took place during the year and
the balances outstanding as at 31 July 1999 are L83,335 debit (1998: L131,523
debit) and L39,964 debit (1998: L40,186 debit) respectively.
The company trades with Dande Racing, a business in which N D Cronin Esq is
a proprietor. During the year the company received rent from the business of
L4,000 (1998: L4,000) and paid for goods and services to the value of L42,598
(1998: L28,000). The company also purchased from Dande Racing a current asset
investment of L17,955. The amount owed from Dande Racing as at 31 July 1999 is
L85 (1998: Lnil).
N D Cronin Esq is a director of Leisureview Limited. During the year,
Dandelion Distribution Limited made sales to Leisureview Limited of L62,401
(1998: L44,468) and purchased goods and services to the value of L59,667 (1998:
L14,374). The amount owed to Leisureview Limited as at 31 July 1999 is L68,698
(1998: L8,623). The amount owed by Leisureview Limited at 31 July 1999 was
L19,248 (1998: L6,883).
N D Cronin Esq and Mrs J M Cronin are trustees of the Dandelion
Distribution Executive Pension Scheme. Contributions to the scheme amounted to
L500 (1998: L500). At 31 July 1999 the company owed the scheme L50,000 (1998:
L50,000).
All transactions took place at arms length.
F-30
<PAGE> 91
DANDELION DISTRIBUTION LIMITED
NOTES TO THE FINANCIAL STATEMENTS (CONTINUED)
FOR THE YEAR ENDED 31 JULY 1999
17. TRANSACTIONS WITH DIRECTORS
The company transferred its ownership in its investment properties to
director N D Cronin in reward for his services to the company in the year.
18. ULTIMATE CONTROL
Ultimate control of the company lies with N D Cronin Esq.
F-31
<PAGE> 92
DANDELION DISTRIBUTION LIMITED
DIRECTORS' REPORT FOR THE YEAR ENDED 31 JULY 1998
The directors present their report and the financial statements for the
year ended 31 July 1998.
STATEMENT OF DIRECTORS' RESPONSIBILITIES
Company law requires the directors to prepare financial statements for each
financial year which give a true and fair view of the state of affairs of the
company and of the profit or loss of the company for that period. In preparing
those financial statements, the directors are required to:
- select suitable accounting policies and then apply them consistently;
- make judgements and estimates that are reasonable and prudent;
- prepare the financial statements on the going concern basis unless it is
inappropriate to presume that the company will continue in business.
The directors are responsible for keeping proper accounting records which
disclose with reasonable accuracy at any time the financial position of the
company and to enable them to ensure that the financial statements comply with
the Companies Act 1985. They are also responsible for safeguarding the assets of
the company and hence for taking reasonable steps for the prevention and
detection of fraud and other irregularities.
PRINCIPAL ACTIVITY
The principal activities of the company are those of film distribution and
film production.
CHARITABLE DONATIONS
During the year, the company made charitable donations of L1,523
(1997 - L2,000).
THE YEAR 2000 ISSUE
In preparing these financial statements, the directors have considered the
impact of the year 2000 issue. The directors have reviewed software packages and
certain items of plant and machinery for millennium compliance. The directors
have not quantified the costs of modifications to non millennium compliant
software and plant because they do not consider that material liabilities will
crystallise. Any costs that do crystallise will be charged to the profit and
loss account in the period in which they are incurred.
DIRECTORS
The directors who served during the year and their beneficial interests in
the company's issued share capital were:
<TABLE>
<CAPTION>
ORDINARY SHARES OF L1 EACH
--------------------------
1998 1997
------- -------
<S> <C> <C>
N D Cronin Esq........................................ 198 198
Mrs J M Cronin........................................ 2 2
</TABLE>
AUDITORS
In accordance with Section 385 of the Companies Act 1985, the auditors,
Messrs Barnes Roffe, will be proposed for re-appointment for the ensuing year at
the general meeting.
SMALL COMPANY EXEMPTIONS
Advantage has been taken in the preparation of this report of the
exemptions applicable to small companies conferred by Part VII of the Companies
Act 1985.
This report was approved by the Board and signed on its behalf:
Mrs J M Cronin
Secretary
Date: 30 November 1998
F-32
<PAGE> 93
DANDELION DISTRIBUTION LIMITED
AUDITORS' REPORT TO THE SHAREHOLDERS OF DANDELION DISTRIBUTION LIMITED
We have audited the financial statements on pages F-36 to F-43 which have
been prepared under the historical cost convention and the accounting policies
set out on pages F-38 and F-39.
RESPECTIVE RESPONSIBILITIES OF DIRECTORS AND AUDITORS
As described on page F-34 the company's directors are responsible for the
preparation of the financial statements. It is our responsibility to form an
independent opinion, based on our audit, on those statements and to report our
opinion to you.
BASIS OF OPINION
We conducted our audit in accordance with Auditing Standards issued by the
Auditing Practices Board. An audit includes examination, on a test basis, of
evidence relevant to the amounts and disclosures in the financial statements. It
also includes an assessment of the significant estimates and judgements made by
the directors in the preparation of the financial statements, and of whether the
accounting policies are appropriate to the company's circumstances, consistently
applied and adequately disclosed.
We planned and performed our audit so as to obtain all the information and
explanations which we considered necessary in order to provide us with
sufficient evidence to give reasonable assurance that the financial statements
are free from material misstatement, whether caused by fraud or other
irregularity or error. In forming our opinion we also evaluated the overall
adequacy of the presentation of information in the financial statements.
OPINION
In our opinion, the financial statements give a true and fair view of the
state of the company's affairs as at 31 July 1998 and of its profit for the year
then ended and have been properly prepared in accordance with the provisions of
the Companies Act 1985.
BARNES ROFFE
Registered Auditors
16/17 Copperfields
Spital Street
Dartford
Kent DA1 2DE
Date: 7 December 1998
F-33
<PAGE> 94
DANDELION DISTRIBUTION LIMITED
PROFIT AND LOSS ACCOUNT
FOR THE YEAR ENDED 31 JULY 1998
<TABLE>
<CAPTION>
1998 1997
NOTE L L
---- ---------- ----------
<S> <C> <C> <C>
TURNOVER.................................................... 1, 2 2,115,128 2,688,960
Cost of sales............................................... (1,346,784) (1,679,037)
---------- ----------
GROSS PROFIT................................................ 768,344 1,009,923
Distribution costs.......................................... (94,729) (180,182)
Administrative expenses..................................... (504,197) (494,846)
Other operating income...................................... 47,917 28,146
---------- ----------
OPERATING PROFIT............................................ 3 217,335 363,041
Interest payable and similar charges........................ 5 (51,050) (52,868)
---------- ----------
PROFIT ON ORDINARY ACTIVITIES BEFORE TAXATION............... 166,285 310,173
TAXATION.................................................... (38,369) (88,956)
---------- ----------
PROFIT ON ORDINARY ACTIVITIES AFTER TAXATION................ 127,916 221,217
DIVIDENDS................................................... 6 (50,000) (50,000)
---------- ----------
RETAINED PROFIT FOR THE YEAR................................ 77,916 171,217
RETAINED PROFIT BROUGHT FORWARD............................. 812,396 641,179
---------- ----------
RETAINED PROFIT CARRIED FORWARD............................. 890,312 812,396
========== ==========
</TABLE>
CONTINUING OPERATIONS
None of the company's activities was acquired or discontinued in the above
two financial years.
STATEMENT OF TOTAL RECOGNIZED GAINS AND LOSSES
There were no recognized gains and losses for the above two financial
periods other than those included in the profit and loss account.
The notes on pages F-38 to F-43 form part of these financial statements.
F-34
<PAGE> 95
DANDELION DISTRIBUTION LIMITED
BALANCE SHEET
AS AT 31 JULY 1998
<TABLE>
<CAPTION>
1998 1997
---------------------- ----------------------
NOTE L L L L
---- ---------- --------- ---------- ---------
<S> <C> <C> <C> <C> <C>
FIXED ASSETS
Intangible fixed assets..................... 7 -- --
Tangible fixed assets..................... 8 452,757 479,129
Investments............................... 9 256,562 232,412
--------- ---------
709,319 711,541
CURRENT ASSETS
Stocks.................................... 1,267,583 1,366,441
Debtors................................... 10 563,008 708,052
Cash at bank and in hand.................. 137,415 144,563
---------- ----------
1,968,006 2,219,056
CREDITORS: amounts falling due within
one year.................................. 11 (1,593,504) (1,890,815)
---------- ----------
NET CURRENT ASSETS.......................... 374,502 328,241
--------- ---------
TOTAL ASSETS LESS CURRENT LIABILITIES....... 1,083,821 1,039,782
CREDITORS: amounts falling due after more
than one year............................. 12 (190,873) (224,500)
PROVISIONS FOR LIABILITIES AND CHARGES...... 13 (2,436) (2,686)
--------- ---------
NET ASSETS.................................. 890,512 812,596
========= =========
CAPITAL AND RESERVES
Called up share capital................... 14 200 200
Profit and loss account................... 890,312 812,396
--------- ---------
SHAREHOLDERS' FUNDS......................... 15 890,512 812,596
========= =========
</TABLE>
The directors have taken advantage of special exemptions conferred by Part VII
of the Companies Act 1985 applicable to small companies.
The financial statements were approved by the Board and signed on its behalf:
N D Cronin Esq
Director
Date: 30 November 1998
The notes on pages F-38 to F-43 form part of these financial statements.
F-35
<PAGE> 96
DANDELION DISTRIBUTION LIMITED
NOTES TO THE FINANCIAL STATEMENTS
FOR THE YEAR ENDED 31 JULY 1998
1. ACCOUNTING POLICIES
1.1 BASIS OF PREPARATION OF FINANCIAL STATEMENTS
The financial statements have been prepared under the historical cost
convention and include the results of the company's operations which are
described in the Directors' Report and all of which are continuing.
The company is exempt from the requirement to prepare group accounts by
virtue of section 248 of the Companies Act 1985. These financial statements
therefore present information about the company as an individual undertaking and
not about its group.
The company has taken advantage of the exemption in Financial Reporting
Standard No. 1 from the requirement to produce a cash flow statement on the
grounds that it is a small company.
1.2 TURNOVER
Turnover comprises the invoiced value of goods and services supplied by the
company, net of Value Added Tax.
1.3 TANGIBLE FIXED ASSETS AND DEPRECIATION
Tangible fixed assets are stated at cost less depreciation. Depreciation is
provided at rates calculated to write off the cost of fixed assets, less their
estimated residual value, over their expected useful lives on the following
bases:
<TABLE>
<S> <C>
Land & buildings................................. 2% p.a. straight line
Plant & machinery etc............................ 15/25% p.a. reducing balance
</TABLE>
1.4 INVESTMENT PROPERTIES
In accordance with SSAP 19, investment properties are revalued annually and
no depreciation is provided in respect of freehold or leasehold investment
properties with over 20 years to run. This conflicts with the Companies Act 1985
which requires all properties to be depreciated. The directors consider that,
because these properties are not held for consumption, but for their investment
potential, to depreciate them would not give a true and fair view.
1.5 HIRE PURCHASE
Assets obtained under hire purchase contracts are capitalised as tangible
fixed assets, and are depreciated over their useful lives. Hire purchase
interest is charged to the profit and loss account on the basis of a sum of the
digits calculation.
1.6 STOCKS
Stock of film rights and production costs are valued on the basis of
estimated income profile from each particular title in order to match costs in
proportion to income over the expected revenue life of each title or library.
1.7 FOREIGN CURRENCIES
Assets and liabilities in foreign currencies are translated into sterling
at rates of exchange ruling at the balance sheet date. Transactions in foreign
currencies are translated into sterling at the rate ruling on the date of the
transaction. Exchange differences are taken into account in arriving at the
operating profit.
1.8 DEFERRED TAXATION
Provision is made for deferred taxation as a result of material timing
differences between the incidence of income and expenditure for taxation and
accounts purposes, using the full liability method, only to the extent that, in
the opinion of the directors, there is a reasonable probability that a liability
or asset will crystallise in the near future.
F-36
<PAGE> 97
DANDELION DISTRIBUTION LIMITED
NOTES TO THE FINANCIAL STATEMENTS (CONTINUED)
FOR THE YEAR ENDED 31 JULY 1998
1.9 PENSION SCHEME
The company operates a defined contribution pension scheme for the
directors. The accounting policy is to charge all contributions to the profit
and loss account in the year in which they are paid.
2. TURNOVER
57% of the company's turnover (1997 -- 29%) is attributable to geographical
markets outside the United Kingdom.
3. OPERATING PROFIT
The operating profit is stated after charging:
<TABLE>
<CAPTION>
1998 1997
L L
------ ------
<S> <C> <C>
Depreciation of tangible fixed assets
- -- Owned by the company..................................... 12,152 14,489
- -- Held under hire purchase contracts....................... 2,833 7,015
Auditors' remuneration...................................... 8,000 7,900
Pension costs............................................... 500 --
====== ======
</TABLE>
4. DIRECTORS' REMUNERATION
<TABLE>
<CAPTION>
1998 1997
L L
------- -------
<S> <C> <C>
Fees, salaries, benefits and pension contributions.......... 125,538 154,137
======= =======
</TABLE>
The number of directors to whom benefits accrue under money purchase
pension schemes is two (1997 -- two).
5. INTEREST PAYABLE
Included in interest payable is interest on hire purchase contracts
amounting to L2,353 (1997 -- L4,857).
6. DIVIDENDS
<TABLE>
<CAPTION>
1998 1997
L L
------ ------
<S> <C> <C>
Interim dividends paid...................................... 50,000 50,000
====== ======
</TABLE>
7. INTANGIBLE FIXED ASSETS
<TABLE>
<CAPTION>
GOODWILL TOTAL
L L
-------- ------
<S> <C> <C>
COST
At 1 August 1997 and 31 July 1998........................... 15,000 15,000
------ ------
AMORTISATION
At 1 August 1997 and 31 July 1998........................... 15,000 15,000
------ ------
NET BOOK VALUE
At 31 July 1997 and 31 July 1998............................ -- --
====== ======
</TABLE>
F-37
<PAGE> 98
DANDELION DISTRIBUTION LIMITED
NOTES TO THE FINANCIAL STATEMENTS (CONTINUED)
FOR THE YEAR ENDED 31 JULY 1998
8. TANGIBLE FIXED ASSETS
<TABLE>
<CAPTION>
LAND & PLANT &
BUILDINGS MACHINERY ETC TOTAL
L L L
--------- ------------- -------
<S> <C> <C> <C>
COST
At 1 August 1997....................................... 452,682 111,153 563,835
Additions.............................................. -- 927 927
Disposals.............................................. -- (16,650) (16,650)
------- ------- -------
At 31 July 1998........................................ 452,682 95,430 548,112
------- ------- -------
DEPRECIATION
At 1 August 1997....................................... 30,782 53,924 84,706
Charge for year........................................ 7,080 7,905 14,985
On disposals........................................... -- (4,336) (4,336)
------- ------- -------
At 31 July 1998........................................ 37,862 57,493 95,355
------- ------- -------
NET BOOK VALUE
At 31 July 1998........................................ 414,820 37,937 452,757
======= ======= =======
At 31 July 1997........................................ 421,900 57,229 479,129
======= ======= =======
</TABLE>
Included within land and buildings is land of L67,900 which has not been
depreciated.
The cost of assets held under hire purchase agreements at 31st July 1998 is
L12,950 (1997 -- L32,550) and accumulated depreciation is L11,101
(1997 -- L11,506). The total depreciation charged in the year is L2,833
(1997 -- L7,014).
9. FIXED ASSET INVESTMENTS
<TABLE>
<CAPTION>
LAND & SHARES IN
BUILDINGS OTHERS OTHERS TOTAL(1)
--------- --------- ------ --------
<S> <C> <C> <C> <C>
COST
At 1 August 1997............................. 232,312 100 -- 232,412
Additions.................................... -- -- 24,150 24,150
------- --- ------ -------
At 31 July 1998.............................. 232,312 100 24,150 256,562
------- --- ------ -------
NET BOOK VALUE
At 31 July 1998.............................. 232,312 100 24,150 256,562
======= === ====== =======
At 31 July 1998.............................. 232,312 100 -- 232,412
======= === ====== =======
</TABLE>
The company owns 100% of the ordinary share capital of its dormant
subsidiary Baserem Limited, a company incorporated in England and Wales. The
aggregate capital and reserves as at 31st July 1998 is L100 (1997 -- L100).
Investment properties were valued on 31 July 1998 by the directors on the
basis of open market value.
10. DEBTORS
<TABLE>
<CAPTION>
1998 1997
L L
------- -------
<S> <C> <C>
DUE WITHIN ONE YEAR
Trade debtors............................................... 463,977 622,955
Other debtors and prepayments............................... 99,031 85,097
------- -------
563,008 708,052
======= =======
</TABLE>
Included within trade debtors is a balance of L112,500 (1997 -- L112,500)
and included within other debtors is an amount of L30,000 (1997 -- L40,000)
which are due after more than one year.
F-38
<PAGE> 99
DANDELION DISTRIBUTION LIMITED
NOTES TO THE FINANCIAL STATEMENTS (CONTINUED)
FOR THE YEAR ENDED 31 JULY 1998
11. CREDITORS
AMOUNTS FALLING DUE WITHIN ONE YEAR
<TABLE>
<CAPTION>
1988 1997
L L
--------- ---------
<S> <C> <C>
Bank loans and overdrafts................................... 534,603 512,563
Net obligations under hire purchase contracts............... 12,135 6,674
Trade creditors............................................. 839,703 967,919
Amounts owed to group undertakings.......................... 100 100
Corporation tax............................................. 52,497 102,500
Other taxes and social security............................. 38,457 102,653
Directors' current accounts................................. 19,991 37,315
Other creditors and accruals................................ 96,018 161,091
--------- ---------
1,593,504 1,890,815
========= =========
</TABLE>
Bank borrowings of L695,476 (1997 -- L679,943) are secured.
12. CREDITORS
AMOUNTS FALLING DUE AFTER MORE THAN ONE YEAR
<TABLE>
<CAPTION>
1998 1997
L L
------- -------
<S> <C> <C>
Loans....................................................... 160,873 167,379
Net obligations under hire purchase contracts............... -- 17,121
Other creditors............................................. 30,000 40,000
------- -------
190,873 224,500
======= =======
</TABLE>
Included within the above are amounts falling due as follows:
<TABLE>
<S> <C> <C>
IN 1 - 2 YEARS:
Loan instalments............................................ 9,750 9,000
Hire purchase obligations................................... 7,458 17,121
======= =======
IN 2 - 5 YEARS:
Loan instalments............................................ 33,750 --
Other creditors............................................. 30,000 40,000
======= =======
IN MORE THAN 5 YEARS:
Loan instalments............................................ 117,373 123,879
======= =======
</TABLE>
13. PROVISIONS FOR LIABILITIES AND CHARGES
<TABLE>
<CAPTION>
1998 1997
L L
----- -----
<S> <C> <C>
DEFERRED TAX
At 1 August 1997............................................ 2,686 3,300
Credit for the year......................................... (250) (614)
----- -----
At 31 July 1998............................................. 2,436 2,686
===== =====
</TABLE>
The above represents the maximum potential liability to deferred tax in
respect of accelerated capital allowances.
F-39
<PAGE> 100
DANDELION DISTRIBUTION LIMITED
NOTES TO THE FINANCIAL STATEMENTS (CONTINUED)
FOR THE YEAR ENDED 31 JULY 1998
14. CALLED UP SHARE CAPITAL
<TABLE>
<CAPTION>
1998 1997
L L
----- -----
<S> <C> <C>
AUTHORISED
1,000 Ordinary shares of L1 each............................ 1,000 1,000
===== =====
ALLOTTED, ISSUED AND FULLY PAID
200 Ordinary shares of L1 each.............................. 200 200
===== =====
</TABLE>
15. SHAREHOLDERS' FUNDS
RECONCILIATION OF MOVEMENTS ON SHAREHOLDERS' FUNDS
<TABLE>
<CAPTION>
1998 1997
L L
------- -------
<S> <C> <C>
Profit for the year......................................... 127,916 221,217
Dividends................................................... (50,000) (50,000)
------- -------
77,916 171,217
Opening shareholders' funds................................. 812,596 641,379
------- -------
Closing shareholders' funds................................. 890,512 812,596
======= =======
</TABLE>
16. RELATED PARTY TRANSACTIONS
The company trades with Leisureview Limited, a company in which N D Cronin
Esq is a director and shareholder. During the year the company made net sales of
L44,468 (1997 -- L21,934) to Leisureview Limited and was recharged for goods and
services to the value of L14,374 (1997 -- L1,000). The amount owed to the
company as at 31 July 1998 was L8,623 (1997 -- L16,785).
N D Cronin Esq is also a director and shareholder of String Of Pearls I PLC
and String of Pearls II PLC. No transaction took place during the year and as at
31 July 1998 the net amount owed to the company by String Of Pearls I PLC was
L131,523 (1997 -- L131,523) and by String Of Pearls II PLC L40,186 (1997 --
L26,436).
N D Cronin Esq and Mrs. J M Cronin are trustees of the Dandelion
Distribution Limited Executive Pension Scheme.
The company trades with Dande Racing, a business in which N D Cronin Esq is
the proprietor. During the year the company received rent from the business of
L4,000 (1997 -- L4,000) and paid L28,000 (1999 -- L36,000) in respect of leasing
fees.
All the above transactions took place at arms length.
F-40
<PAGE> 101
Pursuant to the above Company Report (Unternchmensbericht), application has been
made to admit the
12,979,138 SHARES OF COMMON STOCK, NO PAR VALUE,
(ENTIRE SHARE CAPITAL CURRENTLY ISSUED)
and the
3,042,384 SHARES OF COMMON STOCK, NO PAR VALUE,
(SHARES RESERVED FOR ISSUANCE UPON THE EXERCISE OF OPTIONS AND CONVERSION OF
DEBT INSTRUMENTS INTO SHARES OF COMMON STOCK)
GERMAN SECURITIES IDENTIFICATION NO. (WKN): 917002
of
TEAM COMMUNICATIONS GROUP, INC.,
Los Angeles, California, USA
to the Regulated Market (Geregelter Markt) with trading on the Neuer Markt of
the Frankfurt Stock Exchange.
Los Angeles, Frankfurt am Main, November 1999
GONTARD & METALLBANK
<TABLE>
<S> <C> <C>
DELBRUCK & CO. FURST FUGGER VEM VIRTUELLES
PRIVATBANKIERS KG PRIVATBANKIERS KG EMISSIONSHAUS AG
</TABLE>
<PAGE> 102
PART II
EXHIBITS
ITEM 24. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Directors of the Company are presently entitled to indemnification as
expressly authorized under Section 317 of the California General Corporation Law
("Section 317") and the Bylaws of the Company (which generally authorize the
Company to indemnify its Agents where such indemnification is authorized by
Section 317). Section 317 provides a detailed statutory framework covering
indemnification of any agent of a corporation who is threatened to be made a
party to any legal proceeding by reason of his or her actions on behalf of the
corporation.
Article 5 of the Company's Articles of Incorporation (Exhibit 3.1) provides
that a director will not be liable for monetary damages arising out of the
director's breach of his or her fiduciary duties to the Company and the
shareholders to the fullest extent permissible under the California law.
Liability for breach of a director's fiduciary duty arises when the director has
failed to exercise sufficient care in reaching decisions or otherwise attending
to his responsibilities as a director and in other circumstances. Article V does
not eliminate these duties; it only eliminates monetary damage awards occasioned
by a breach of these duties. Accordingly, a breach of fiduciary duty is still a
valid basis for a suit seeking to stop a proposed transaction from occurring.
However, after a transaction has occurred, the shareholders do not have a claim
against directors for monetary damages based on a breach of fiduciary duty, even
if that breach involves negligence on the part of the directors. Additionally,
as a practical matter, equitable remedies such as rescission may not be
available after a transaction has already been consummated or in other
circumstances.
The Company intends to enter into indemnification agreements with the
Company that attempt to provide the maximum indemnification allowed under the
California law. The Indemnification Agreements will make mandatory
indemnification which is permitted by California law in situations in which the
Indemnitee would otherwise be entitled to indemnification only if the Board of
Directors, the Shareholders, independent legal counsel retained by the Company
or a court in which an action was or is pending made a discretionary
determination in a specific case to award such indemnification. However, in part
because the California law was only recently enacted, the extent to which the
indemnification permitted by the California law may be expanded by
indemnification agreements is unsettled and has yet to be the subject of any
judicial interpretation.
ITEM 25. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The expenses in connection with the issuance and distribution of the
securities being registered are as follows (estimated except as noted):
<TABLE>
<S> <C>
SEC registration fee........................................ $ 8,340
NASDAQ filing fee (estimate)................................ 7,500
Printing and engraving expenses (estimate).................. 250,000
Legal fees and expenses (estimate).......................... 200,000
Accounting fees and expenses (estimate)..................... 100,000
Miscellaneous............................................... 550,000
-----------
Total............................................. $ 1,115,840
===========
</TABLE>
ITEM 26. RECENT SALES OF UNREGISTERED SECURITIES
1. A loan in the principal amount of $322,000 was made in January 1996 from
AMAE Ventures, an affiliate of Mr. Wolfson, which was used by the Company for
general overhead purposes and bears interest at 12%. This note is due on the
earlier to occur of July 15, 1998 or the closing of the Offering. The holder of
such note has the right to convert the principal amount into 3% of the Company's
Common Stock on a fully diluted basis through the completion of the Offering,
and has indicated that it intends to convert such note.
2. Mr. Cayre and Mr. Levin have agreed, subject to documentation, that as
of the closing of the Offering, Mr. Cayre will receive payment of $250,000 in
respect of the amounts owed to him, and the remaining debt, subject to adequate
collateralization (which may include cash collateral) shall be extended until
July 15, 1998. Subject to the foregoing, Mr. Levin and Mr. Cayre have also
agreed to restructure Mr. Cayre's investment in the Company. Mr. Cayre agreed
that upon the closing of the Offering, Mr. Cayre's interest in the Company would
be reduced to 164,874 shares of the Company's Common Stock by transferring to
Mr. Levin 195,774 shares of the Company's Common Stock held by Mr. Cayre. In
February 1996, in
II-1
<PAGE> 103
connection with a prior restructuring of this indebtedness, Mr. Cayre received
options to purchase 48,743 shares of Common Stock of $.43 per share.
3. In June 1996, South Ferry #2, L.P., an entity controlled by Mr.
Wolfson's brother, advanced to the Company the sum of $500,000 in respect of
LoCoMoTioN in consideration of which such entity received options to acquire
29,906 shares of Common Stock at $.43 per share. This loan bears interest at 10%
and is due on the earlier to occur of July 15, 1998 or the closing of the
Offering.
4. The Chana Sasha Foundation, an entity controlled by Mr. Wolfson,
extended the Company a $400,000 line of credit on a secured basis in November
1996, which credit line has been used and subsequently repaid by funds from the
Company's operations In October 1996, Mr. Wolfson extended the Company
approximately $400,000 of credit on a secured basis, which credit line has been
used and subsequently repaid by funds from the Company's operations. Mr. Wolfson
received 6,408 shares of the Company's Common Stock with respect to such
extension of credit.
5. The July 1996 proceeds from the sale of the note in the Total Recall
Financing was used to acquire the rights to produce a television series based on
the motion picture "Total Recall." This note, which was sold to ACA Equities,
D&M Investments and Gilbert Karsentry, was secured by the Company's underlying
rights to the "Total Recall" series, bore interest at 10%. In addition, the
holders of this note received an aggregate of 53,403 shares of common stock,
warrants to acquire 14,954 shares of Common Stock at an exercise price of $.43
and a 13% net profit participation in the Company's interest in the series. As
of the date hereof, $1,200,000 has been repaid in respect to this obligation.
Mr. Wolfson received 8,544 shares of the Company's Common Stock and 2% of the
net profits of the series with respect to the Total Recall Financing.
6. The Company commenced two private placements under Rule 506 of
Regulation D of its Secured Notes in February and in May, 1996. In February
1996, the Company sold to 14 accredited investors $900,000 in principal amount
of secured promissory notes which bear interest at 12% and are due upon the
earlier to occur of the closing of the Offering or July 15, 1998. These notes
were sold to the following investors: Matthew and Barbara Geisser, Central Scale
Co., Vijaya Kani Rehala, Vijay-Kumar Rekhala, M.D., United Congregation Mesorah,
Samuel Marinelli, Mildred Geiss, Jon Kastendieck, Bank Leumi-Affida Bank,
Cooperative Holding Corporation, Aaron Wolfson, Abraham Wolfson, Arielle
Wolfson, and LEVPOL. Between June and November 1996, the Company sold to 22
accredited investors $975,000 in principal amount of secured notes which bear
interest at 10% and are due at the earlier of this Offering or July 15, 1998.
These notes were sold to the following investors: Wellington Corporation,
Crescent Capital Company, LLC, Arthur Steinberg IRA Rollover, Robert Steinberg
IRA Rollover, Robert Ram Steinberg, A Partnership, Von Graffenried AG, Alpha
Ventures, Tuch Family Trust, Third World Trust Company LTD, Alfred Ross, Fred
Chanowski, Allen Goodman, Felix Paige, Rogal America, Mark Levine, Joseph
Sullivan, Robert Gopen, Colony Financial Services, John Carberry, Daniel and
Thalia Federbush, and Michael Berlin. An aggregate of 198,659 warrants to
purchase a like number of shares of Common Stock at an exercise price of $.43
per share were issued in connection with such private placements. The holders of
these notes have waived all conversion rights with respect thereto.
7. During 1996, the Company issued 21,362 warrants (10,681 to William
Nesmith and 10,681 to Michael Sposato) exercisable at $1.07, 20,934 warrants
exercisable at $0.43 to Bristol Capital, 33,000 warrants, 13,000 of which were
issued at $1.00 and 20,000 of which were issued at $2.50, to Joseph Farber and
2,349 warrants exercisable at $0.43 to Robert Dorfman. The Company also issued
to Bristol Capital 2,777 shares of Common Stock. The warrants and shares were
issued in connection with consulting services provided to the Company, such
services relating primarily to advice regarding obtaining additional financing
and the structuring of securities issued by the Company, none of which were
directly or indirectly related to the Offering. The Company recognized $5,000 in
compensation related to these warrants during the year ended December 31, 1996.
In 1995, the Company issued 10,000 warrants exercisable at $1.00 to Bruce P.
Vann, Esq., for his services as legal counsel to the Company.
8. In October 1996, the Company obtained a loan from Affida Bank in the
amount of $300,000 and, in connection therewith, issued warrants to acquire
29,191 shares of Common Stock at an exercise price of $.97 per share.
9. In January, February and March 1997, the Company completed the sale of
$969,000 of convertible secured notes to 13 accredited investors (the "February
1997 Notes") pursuant to Rule 506 of Regulation D as promulgated under the
Securities Act. Each of the foregoing notes are secured, pro-rata and pari
passu, by liens on substantially all of the Company's assets, except that the
February 1997 Notes are junior to the prior notes. An aggregate of 193,970
warrants to purchase a like number of shares of Common Stock at an exercise
II-2
<PAGE> 104
price of $1.00 per share were issued in connection with such placements. The
February 1997 Notes were sold to the following investors: Alan Parness, Arab
International Trust Co., Duck Partners, LP, Gary and Paula Wayton, Michael
Rosenbaum, RMK Financial LLC, Robert Bain, Robert Frankel, Roger Triemstra,
Roland McAbee, Swan Alley Limited, and Van Moer Santerr & Cie.
10. In March, April and May, 1998 the Company arranged for short term loans
of $1,642,000 from eight accredited investors. The notes issued pursuant to such
loans were sold to the following investors: HighBridge Fund Ltd., Nick Kahla,
David Tresley, Arab Commerce Bank, Charles Santerre, Philippe de Cock de
Rameyen, Anders Ulegard and Kevodrew Realty Inc.
11. In May, June and July 1998, the Company arranged for loans from 10
parties of an aggregate of $715,000 for specific production financing. The notes
pursuant to such loans were sold to the following investors: Charles E. and Ada
M. Miller Trust, Donald E. Stuck and Phyllis T. Stuck, Ryo & Jean S. Komae
Marital Trust U/A dated 11/14/91, Claudio Nessi, Carter Family Trust, MacAlister
Credit Trust U/A/D 11/25/88, Miyamoto Investment, Dr. Richard Bardowell, Sandel
Products and Chase Financing, Ltd.
12. Between September 1998 and January 1999 we issued 483,000 shares of our
common stock to the following individuals and entities: (i) 59,000 shares to
Delbert Reedy pursuant to the conversion of a certain promissory note, dated May
29, 1998, in the amount of Fifty Thousand Dollars ($50,000); (ii) 59,000 shares
to the Carter Family Trust, pursuant to the conversion of a certain promissory
note, dated May 29, 1998, in the amount of Fifty Thousand Dollars ($50,000);
(iii) 31,000 shares to Claudio Nessi pursuant to a certain promissory note,
dated June 18, 1998, in the amount of Fifty Thousand Dollars ($50,000); (iv)
1,000 shares for Dr. Michael Berlin in connection with certain accommodations
made by Dr. Michael Berlin; and (v) 80,000 shares to Marathon Consulting, Inc.,
30,000 of which were issued in connection with a consulting agreement dated May
1, 1999, and 50,000 of which were assigned by an affiliate, Investor Relations
Services, Inc., who had the right to receive such shares pursuant to a
consulting agreement dated as of November 17, 1998 and (vi) 283,000 shares to
Infusion Capital Investment Corporation, in connection with a consulting
agreement, dated as of November 17, 1998.
13. During 1998, we granted warrants to purchase our common stock to the
following individuals and entities for services provided to us: (i) 22,000 and
10,000 warrants, respectively, to Mansion House International and Danny Chan,
respectively, exercisable at $2.75 per share, (ii) 5,000 warrants to Hedblom
Partners, exercisable at $3.50 per share, (iii) 200,000 warrants to Glen Michael
Financial; 100,000 exercisable at $1.62 per share, 75,000 exercisable at $3.00
per share and 25,000 exercisable at $3.25 per share, and (iv) 10,000 warrants to
Ralph Olsen, exercisable at $2.00 per share. In addition, we granted (x) 121,000
and 10,000 warrants, respectively, to Chase Financial Limited and Robert
Herskowitz, respectively, exercisable at $1.62 per share and (y) an aggregate of
20,000 warrants, 5,000 each to Investor Resource Services, Aurora Holdings,
Amber Capital and Affiliated Services, respectively, in connection with debt
that was raised.
14. In January and March 1999, the Company sold to the following 5
investors: Austinvest Anstalt Balzers, Esquire Trade & Finance Inc., Amro
International, S.A., Nesher Inc., and VMR Luxembourg, S.A., 1,850,000 of 8%
convertible debentures and warrants to purchase up to 185,000 shares of common
stock. The holders of $1,000,000 of the debentures have indicated they intend to
convert their debentures into common stock. All of the debentures are
convertible into shares of common stock at the option of the holder at any time
after their purchase. The conversion price for each debenture in effect on any
conversion date will be the lesser of (A) an amount equal to 90% of the average
per share market value for five consecutive trading days immediately prior to
the initial closing date or (B) an amount equal to 85% of the per share market
value for the trading day having the lowest per share market value during the
five trading days prior to the conversion date. Purchasers effect conversions by
surrendering the debentures to be converted to the Company, together with the
form of conversion notice attached thereto. If not otherwise converted, the
debentures mature three years from their original issue date. The warrants are
exercisable at an exercise price equal to 110% of the per share market value as
of the last trading day prior to the date of the issuance of the warrants. This
price, which is subject to adjustment in the event of certain dilutive events,
was $1.96 and $2.56, respectively, at the closing dates. The warrants expire
three years after their date of issuance. Pursuant to the terms of purchase
agreements and the related registration rights agreements, the Company is
obligated to file a registration statement with respect to the shares issuable
upon conversion of the debentures and the shares issuable upon exercise of the
warrants within 75 days of the initial closing date.
In June 1999, four of the debenture holders purchased an additional 175,000
shares of common stock for an aggregate of $700,000.
II-3
<PAGE> 105
15. In July 1999, the Company arranged for a short term loan from VMR
Luxembourg, S.A., of $1,200,000 for production and development.
16. In May and July 1999 we sold to three investors: Stellar Group Inc.,
Chun Sing Investment Limited and Dr. Michael Berlin, $350,000 of 12% debentures
and warrants to purchase up to 35,000 shares of common stock at $7.61 per share.
17. On June 30, 1999, we sold 57,000 shares of common stock to Anders
Ulegard for $114,000 and 112,534 shares of common stock to Van Moer Santerre &
Cie for $281,335.
18. On August 5, 1999, we sold to Hudson Investors, LLC, $4,000,000 of 12%
convertible debentures and warrants to purchase 340,000 shares of common stock
at $7.00 per share, which was subsequently reduced to $6.50 per share.
19. On August 9, 1999, we sold 500,000 shares of common stock to Gontard &
MetallBank AG for $2,000,000.
20. On August 18, 1999, we issued to Program Power Entertainment and Swan
Alley Limited, respectively, 1,000 and 20,000 shares of common stock,
respectively, pursuant to the settlement of their respective lawsuits. Also on
August 18, 1999, we issued to Premier Acquisition Corp., and DMT Technologies,
Inc., respectively, 97,000 and 3,000 shares of common stock, respectively,
pursuant to the settlement of certain disputes they had with us. We also sold to
Investor Resource Services, Inc., 104,000 of common stock for $208,000.
21. On July 29, 1999, the Company sold 64,800 shares of common stock to
Arab Commerce Bank for $162,000.
22. On September 27, 1999, the Company, pursuant to court order, issued
30,000 shares to Venture Management Consultants LLC.
23. On September 29, 1999 we arranged for a $4,000,000 bridge loan from
Gontard & MetallBank AG.
24. On October 20, 1999, the Company sold 10,000 shares of common stock to
Ivonne Altagracia Medrano Gongalez for $30,000 and 20,000 shares of common stock
to Cantor GbR for $60,000.
25. On November 12, 1999, the Company sold 175,000 shares of common stock
to Arbora Vermogensverwaltungen AG for $700,000.
26. On October 29, 1999, the Board of Directors approved the issuance of
warrants to Ocean Marketing to purchase 100,000 of common stock; 50,000 at an
exercise price of $3.50 per share and 50,000 at an exercise price of $4.00 per
share, for consulting services.
27. We have granted to Michael Jay Solomon and Seth Wellenson, 30,000
options to purchase common stock at an exercise price of $2.50 per share for
agreeing to serve as members of our Board of Directors. Mr. Wellenson's options
were cancelled when he resigned as a director. On March 9, 1999, W. Russell
Barry was granted 30,000 options to purchase common stock at an exercise price
of $2.00 per share for agreeing to serve as a member of the Board of Directors.
The above securities were offered by the Registrant in reliance upon an
exemption from registration under either (i) Section 4(2) of the Securities Act
as transactions not involving any public offering, or (ii) Rule 701 under the
Securities Act. No underwriters were involved in connection with the sales of
securities referred to in this Item 15.
ITEM 27. (A) EXHIBITS
<TABLE>
<C> <S>
3.1 Amended and Restated Articles of Incorporation, as
amended(9)
3.2 By-laws of the Company(1)
4.1 Form of Warrant Agreement March 1996(1)
4.2 Form of Warrant Agreement May 1996(1)
4.3 Form of Warrant Agreement February 1997(1)
4.4 Gontard & MetallBank AG Promissory Note, dated as of
September 29, 1999(9)
4.11 Agreements re LoCoMoTioN Financing with South Ferry #2,
L.P.(1)
4.14 Form of Financial Advisory Agreement between National
Securities Corporation and the Company(1)
</TABLE>
II-4
<PAGE> 106
<TABLE>
<S> <C>
4.15 Specimen Certificate(1)
4.16 Form of National Securities Corporation's Warrant(1)
4.18 Form of Promissory Notes(1)
4.19 Securities Purchase Agreement between the Company and Austinvest Anstalt Balzers; Esquire Trade &
Finance Inc.; Amro International, S.A. and Nesher Inc., dated as of March 19, 1999(3)
4.20 Form of Debenture re: Austinvest Anstalt Balzers, dated as of March 19, 1999(3)
4.21 Form of Warrant re: Austinvest Anstalt Balzers, dated as of March 19, 1999(3)
4.22 Form of Registration Rights Agreement between the Company and Austinvest Anstalt Balzers; Esquire
Trade & Finance Inc.; Amro International, S.A. and Nesher Inc., dated as of March 19, 1999(3)
4.23 Amendment to Securities Purchase Agreement with Austinvest Anstalt Balzers; Esquire Trade & Finance
Inc.; Amro International, S.A. and Nesher Inc., dated June 28, 1999 (amends 4.19)(6)
4.24 Securities Purchase Agreement between the Company and VMR Luxembourg, S.A., dated as of February 25,
1999(6)
4.25 VMR Debenture, dated as of February 25, 1999(6)
4.26 VMR Warrant, dated as of February 25, 1999(6)
4.27 VMR Registration Rights Agreement, dated as of February 25, 1999(6)
4.28 Securities Purchase Agreement between the Company and VMR Luxembourg S.A., dated July 26, 1999(6)
4.29 VMR Debenture, dated as of July 26, 1999(6)
4.30 VMR Security Agreement, dated as of July 26, 1999(6)
4.31 VMR Registration Rights Agreement, dated as of July 26, 1999(6)
4.32 Securities Purchase Agreement between the Company and Hudson Investors LLC, dated as of August 5,
1999(6)
4.33 Hudson Investors LLC Registration Rights Agreement, dated as of August 5, 1999(6)
4.34 Hudson Investors LLC Debenture, dated as of August 5, 1999(6)
4.35 Hudson Investors LLC Warrant, dated as of August 5, 1999(6)
4.36 1999 Stock Option, Deferred Stock and Restricted Stock Plan(7)
5.1 Opinion and Consent of Kelly Lytton Mintz & Vann LLP(10)
10.1 Agreement with Mel Giniger(1)
10.2 Agreement with Beyond Distribution PTY. Limited(1)
10.3 Interpublic Group of Companies Contract(1)
10.4 Employment Agreement, dated as of August 1, 1999, between the Company and Drew Levin, as amended as
of October 29, 1999(10)
10.5 Lease between the Company and TCW, amended as of March 20, 1998(1)
10.6 Agreement with Alliance Production Ltd. re Total Recall(1)
10.7 Interpublic -- Team Co-financing Agreement(1)
10.8 Miramax Term Sheet(1)
10.9 Agreement with Leucadia Film Corp.(1)
10.10 Agreement with DD Video, dated August 2, 1999(9)
10.11 Dandelion Distribution Ltd., Share Purchase Agreement dated as of October 1, 1999(9)
10.12 Dandelion Distribution Ltd., Escrow Agreements dated as of October 1, 1999(11)
10.13 Employment Agreement, dated as of October 1, 1999, between Dandelion Distribution Ltd., and Noel
Cronin(9)
10.14 Employment Agreement, dated as of October 11, 1999, between Dandelion Distribution Ltd., and John
Clutton(9)
10.16 Agreement between the Company and Gontard & MetallBank AG re: secondary listing and public offering
of the Company's common stock in Germany(9)
</TABLE>
II-5
<PAGE> 107
<TABLE>
<C> <S>
10.18 Employment Agreement, dated as of August 17, 1999 between
the Company and Timothy A. Hill(8)
10.19 Restated Employment Agreement dated as October 29, 1999,
between the Company and Jonathan D. Shapiro(10)
10.21 Investment Banking Agreement by and between the Company and
Glen Michael Financial(8)
10.22 Consulting Agreement, dated November 17, 1999 between the
Company, Investor Relations Services, Inc., and Infusion
Capital Investment Corporation(8)
10.23 Agreement with Film Libraries, Inc. dated June 25, 1999 and
Agreement with Film Brokers, Inc., dated June 25, 1999, re:
commission for purchase(6)
10.24 Agreement with Renown Pictures, Ltd., dated as of June 28,
1999(6)
10.25 Financial Consulting Agreement, dated March 15, 1999,
between the Company and Century City Securities, Inc., and
Letter from Company dated July 29, 1999 re: payment under
Financial Consulting Agreement(8)
10.26 Form of Consultants' Warrant for Ralph Olson, Investor
Resource Services, Inc., Aurora Holdings, Inc., Affiliated
Services, Inc., Amber Capital, Inc., and Hedblom Partners,
Ltd.(8)
10.27 Consulting Agreement, dated May 3, 1999 between the Company
and Marathon Consulting Corporation(8)
10.28 Employment Agreement dated as of November 15, 1999, between
the Company and Paula Fierman(10)
10.29 Employment Agreement dated as of November 1, 1999, between
the Company and Larry Friedricks(10)
10.30 Lease between the Company and The Marcel George Family Trust
of September 2, 1982, dated November 3, 1999(10)
10.31 License Agreement with String of Pearls Plc, dated as of
September 10, 1999(10)
21 Subsidiaries of the Registrant(10)
23.1 Consent of experts and named counsel(10) (consent of Kelly
Lytton Mintz & Vann LLP included in Exhibit 5.1)
23.2 Consent of Barnes Roffe(10)
27 Financial Data Schedule(10)
</TABLE>
- ---------------
(1) Incorporated by reference to the Registrant's Registration Statement on
Form SB-2, file No. 333-26307, effective July 29, 1998.
(2) Incorporated by reference to the Registrant's Current Report on Form 8-K
dated March 29, 1999.
(3) Incorporated by reference to the Registrant's Current Report on Form 8-K
dated February 5, 1999.
(4) Incorporated by reference to the Registrant's Annual Report on Form 10-KSB
dated April 15, 1999.
(5) Incorporated by reference to the Registrant's Current Report on Form 8-K
dated June 8, 1999.
(6) Incorporated by reference to the Registrant's Quarterly Report on Form
10-QSB dated August 19, 1999.
(7) Incorporated by reference to the Registrant's Definitive Proxy Statement on
Form 14A dated May 28, 1999.
(8) Incorporated by reference to the Registrant's Registration Statement on
Form SB-2, File No. 333-83217, effective August 27, 1999.
(9) Previously filed.
(10) Filed herewith.
(11) To be filed by amendment.
ITEM 28. UNDERTAKINGS
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers, and controlling persons of the
registrant pursuant to the California General Corporation Law, the Articles of
Incorporation of the registrant, 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 of or 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
II-6
<PAGE> 108
such director, officer or controlling person in connection with the securities
being registered hereunder, the registrant will, unless in the opinion of
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 Registrant hereby undertakes that:
(1) For the 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.
(2) 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 hereby undertakes:
(1) 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;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this 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. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change
in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective 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."
(2) That, for the purpose of determining any liability under the
Securities Act, each such posteffective amendment 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.
(3) 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-7
<PAGE> 109
SIGNATURES
In accordance with the requirement of the Securities Act of 1933, the
registrant certifies that it has reasonable ground to believe that it meets all
of the requirements for filing on Form SB-2 and authorized this First Amendment
to Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized in the City of Los Angeles, State of California, on
this 19th day of November, 1999.
TEAM COMMUNICATIONS GROUP, INC.
By: /s/ DREW S. LEVIN
------------------------------------
Drew S. Levin
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this First
Amendment to Registration Statement has been signed by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
--------- -------- ----
<C> <C> <S>
/s/ DREW S. LEVIN Chairman of the Board and Chief November 19, 1999
- ------------------------------------ Executive Officer
Drew S. Levin
/s/ JONATHAN D. SHAPIRO President, Chief Operating Officer November 19, 1999
- ------------------------------------ and Director
Jonathan D. Shapiro
/s/ TIMOTHY A. HILL Senior Vice President, Chief November 19, 1999
- ------------------------------------ Financial Officer and Secretary
Timothy A. Hill
/s/ MICHAEL JAY SOLOMON Director November 19, 1999
- ------------------------------------
Michael Jay Solomon
/s/ W. RUSSELL BARRY Director November 19, 1999
- ------------------------------------
W. Russell Barry
</TABLE>
II-8
<PAGE> 110
TEAM COMMUNICATIONS GROUP, INC.
SCHEDULE II -- VALUATION AND QUALIFYING ACCOUNTS
FOR THE YEARS ENDED DECEMBER 31, 1998, 1997 AND 1996
<TABLE>
<CAPTION>
1998
------------------------------------------------------------------
BALANCE ADDITIONS DEDUCTIONS BALANCE AT
AT BEGINNING CHARGED FROM OTHER END OF
DESCRIPTION OF YEAR TO INCOME RESERVE ADJUSTMENTS YEAR
----------- ------------ ---------- ----------- ----------- ----------
<S> <C> <C> <C> <C> <C>
Deducted from accounts receivable for
doubtful accounts and returns.......... $63,800 $ 664,000 $ (390,800) $-- $337,000
</TABLE>
<TABLE>
1997
------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Deducted from accounts receivable for
doubtful accounts and returns.......... $63,800 $1,115,600 $(1,115,600) $-- $ 63,800
</TABLE>
<TABLE>
1996
------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Deducted from accounts receivable for
doubtful accounts and returns.......... $ -- $ 71,300 $ (7,500) $-- $ 63,800
</TABLE>
S-1
<PAGE> 111
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGE
------- ----------- ------------
<C> <S> <C>
3.1 Amended and Restated Articles of Incorporation, as
amended(9)
3.2 By-laws of the Company(1)
4.1 Form of Warrant Agreement March 1996(1)
4.2 Form of Warrant Agreement May 1996(1)
4.3 Form of Warrant Agreement February 1997(1)
4.4 Gontard & MetallBank AG Promissory Note, dated as of
September 29, 1999(9)
4.11 Agreements re LoCoMoTioN Financing with South Ferry #2,
L.P.(1)
4.14 Form of Financial Advisory Agreement between National
Securities Corporation and the Company(1)
4.15 Specimen Certificate(1)
4.16 Form of National Securities Corporation's Warrant(1)
4.18 Form of Promissory Notes(1)
4.19 Securities Purchase Agreement between the Company and
Austinvest Anstalt Balzers; Esquire Trade & Finance Inc.;
Amro International, S.A. and Nesher Inc., dated as of March
19, 1999(3)
4.20 Form of Debenture re: Austinvest Anstalt Balzers, dated as
of March 19, 1999(3)
4.21 Form of Warrant re: Austinvest Anstalt Balzers, dated as of
March 19, 1999(3)
4.22 Form of Registration Rights Agreement between the Company
and Austinvest Anstalt Balzers; Esquire Trade & Finance
Inc.; Amro International, S.A. and Nesher Inc., dated as of
March 19, 1999(3)
4.23 Amendment to Securities Purchase Agreement with Austinvest
Anstalt Balzers; Esquire Trade & Finance Inc.; Amro
International, S.A. and Nesher Inc., dated June 28, 1999
(amends 4.19)(6)
4.24 Securities Purchase Agreement between the Company and VMR
Luxembourg, S.A., dated as of February 25, 1999(6)
4.25 VMR Debenture, dated as of February 25, 1999(6)
4.26 VMR Warrant, dated as of February 25, 1999(6)
4.27 VMR Registration Rights Agreement, dated as of February 25,
1999(6)
4.28 Securities Purchase Agreement between the Company and VMR
Luxembourg S.A., dated July 26, 1999(6)
4.29 VMR Debenture, dated as of July 26, 1999(6)
4.30 VMR Security Agreement, dated as of July 26, 1999(6)
4.31 VMR Registration Rights Agreement, dated as of July 26,
1999(6)
4.32 Securities Purchase Agreement between the Company and Hudson
Investors LLC, dated as of August 5, 1999(6)
4.33 Hudson Investors LLC Registration Rights Agreement, dated as
of August 5, 1999(6)
4.34 Hudson Investors LLC Debenture, dated as of August 5,
1999(6)
4.35 Hudson Investors LLC Warrant, dated as of August 5, 1999(6)
4.36 1999 Stock Option, Deferred Stock and Restricted Stock
Plan(7)
5.1 Opinion and Consent of Kelly Lytton Mintz & Vann LLP(10)
10.1 Agreement with Mel Giniger(1)
10.2 Agreement with Beyond Distribution PTY. Limited(1)
10.3 Interpublic Group of Companies Contract(1)
</TABLE>
<PAGE> 112
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGE
------- ----------- ------------
<C> <S> <C>
10.4 Employment Agreement, dated as of August 1, 1999, between
the Company and Drew Levin as amended as of October 29,
1999(10)
10.5 Lease between the Company and TCW, amended as of March 20,
1998(1)
10.6 Agreement with Alliance Production Ltd. re Total Recall(1)
10.7 Interpublic -- Team Co-financing Agreement(1)
10.8 Miramax Term Sheet(1)
10.9 Agreement with Leucadia Film Corp.(1)
10.10 Agreement with DD Video, dated August 2, 1999(9)
10.11 Dandelion Distribution Ltd., Share Purchase Agreement dated
as of October 1, 1999(9)
10.12 Dandelion Distribution Ltd., Escrow Agreements dated as of
October 1, 1999(11)
10.13 Employment Agreement, dated as of October 1, 1999, between
Dandelion Distribution Ltd., and Noel Cronin(9)
10.14 Employment Agreement, dated as of October 11, 1999, between
Dandelion Distribution Ltd., and John Clutton(9)
10.16 Agreement between the Company and Gontard & MetallBank AG
re: secondary listing and public offering of the Company's
common stock in Germany(9)
10.18 Employment Agreement, dated as of August 17, 1999 between
the Company and Timothy A. Hill(8)
10.19 Restated Employment Agreement dated as October 29, 1999,
between the Company and Jonathan D. Shapiro(10)
10.21 Investment Banking Agreement by and between the Company and
Glen Michael Financial(8)
10.22 Consulting Agreement, dated November 17, 1999 between the
Company, Investor Relations Services, Inc., and Infusion
Capital Investment Corporation(8)
10.23 Agreement with Film Libraries, Inc. dated June 25, 1999 and
Agreement with Film Brokers, Inc., dated June 25, 1999, re:
commission for purchase(6)
10.24 Agreement with Renown Pictures, Ltd., dated as of June 28,
1999(6)
10.25 Financial Consulting Agreement, dated March 15, 1999,
between the Company and Century City Securities, Inc., and
Letter from Company dated July 29, 1999 re: payment under
Financial Consulting Agreement(8)
10.26 Form of Consultants' Warrant for Ralph Olson, Investor
Resource Services, Inc., Aurora Holdings, Inc., Affiliated
Services, Inc., Amber Capital, Inc., and Hedblom Partners,
Ltd.(8)
10.27 Consulting Agreement, dated May 3, 1999 between the Company
and Marathon Consulting Corporation(8)
10.28 Employment Agreement dated as of November 15, 1999, between
the Company and Paula Fierman(10)
10.29 Employment Agreement dated as of November 1, 1999, between
the Company and Larry Friedricks(10)
10.30 Lease between the Company and The Marcel George Family Trust
of September 2, 1982, dated November 3, 1999(10)
10.31 License Agreement with String of Pearls Plc, dated as of
September 10, 1999(10)
21 Subsidiaries of the Registrant(10)
</TABLE>
<PAGE> 113
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGE
------- ----------- ------------
<C> <S> <C>
23.1 Consent of experts and named counsel(10) (consent of Kelly
Lytton Mintz & Vann LLP included in Exhibit 5.1)
23.2 Consent of Barnes Roffe(10)
27 Financial Data Schedule(10)
</TABLE>
- ---------------
(1) Incorporated by reference to the Registrant's Registration Statement on
Form SB-2, file No. 333-26307, effective July 29, 1998.
(2) Incorporated by reference to the Registrant's Current Report on Form 8-K
dated March 29, 1999.
(3) Incorporated by reference to the Registrant's Current Report on Form 8-K
dated February 5, 1999.
(4) Incorporated by reference to the Registrant's Annual Report on Form 10-KSB
dated April 15, 1999.
(5) Incorporated by reference to the Registrant's Current Report on Form 8-K
dated June 8, 1999.
(6) Incorporated by reference to the Registrant's Quarterly Report on Form
10-QB dated August 19, 1999.
(7) Incorporated by reference to the Registrant's Definitive Proxy Statement on
Form 14A dated May 28, 1999.
(8) Incorporated by reference to the Registrant's Registration Statement on
Form SB-2, File No. 333-83217, effective August 27, 1999.
(9) Previously filed.
(10) Filed herewith.
(11) To be filed by amendment.
<PAGE> 1
EXHIBIT 5.1
[KELLY LYTTON MINTZ & VANN LLP LETTERHEAD]
November 18, 1999
Team Communications Group, Inc.
12300 Wilshire Blvd.
Suite 400
Los Angeles, CA 90025
Ladies and Gentlemen:
We have acted as special counsel to Team Communications Group, Inc., a
California corporation (the "Company"), in connection with the Company's
Registration Statement on Form SB-2, as amended (the "Registration Statement"),
File No. 333-89323, covering an aggregate of 6,150,000 shares of the Company's
common stock, no par value, to be sold by the Company and the Selling
Shareholder identified therein (the "Shares").
We have examined the originals, or certified, conformed or reproduction
copies, of all such records, agreements, instruments and documents as we have
deemed necessary as the basis for the opinions hereinafter expressed. In all
such examinations, we have assumed the genuineness of all signatures on original
or certified copies of all copies submitted to us as conformed or reproduction
copies. As to various questions of fact relevant to our opinions, we have relied
upon certificates of public officials and certificates of officers or
representatives of the Company.
Based upon the foregoing, it is our opinion that, subject to
effectiveness of the Registration Statement with the Securities and Exchange
Commission ("SEC") and to registration or qualification of the Shares under the
laws of the jurisdiction where the Shares may be sold, upon the sale and
issuance of the Shares in the manner referred to in the Registration Statement,
and upon payment therefore, the Shares will be legally issued, fully paid and
nonassessable, and will be binding obligations of the Company.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to this firm under the caption
"Legal Matters" in the Prospectus forming a part of the Registration Statement.
By giving you this opinion and consent, we do not admit that we are experts with
respect to any part of the Registration Statement or Prospectus within the
meaning of the term "expert" as used in Section 11 of the Securities Act of
1933, as amended, or the rules and regulations promulgated thereunder by the
SEC, nor do we admit that we are in the category of persons whose consent is
required under Section 7 of the Securities Act of 1933, as amended.
<PAGE> 2
Team Communications Group, Inc.
November 18, 1999
Page 2
We are members of the Bar of the State of California and do not hold
ourselves out as being conversant with, and do not express an opinion on, the
laws of any jurisdiction other than those of the United States of America and
State of California. Further, the opinion contained in the third paragraph of
this letter is limited solely to the matters discussed therein, and is based
solely upon existing laws, rules and regulations. We undertake no obligation to
advise you of any changes that may be brought to our attention after the date
hereof.
Very truly yours,
<PAGE> 1
EXHIBIT 10.4
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is entered into as of the 1st
day of August, 1999 by and between TEAM COMMUNICATIONS GROUP, INC, a California
company ("Company") and DREW S. LEVIN ("Executive"), in connection with
Company's engagement of Executive's personal services as Chairman of the Board
of Directors and Chief Executive Officer of Company.
1. EMPLOYMENT; DUTIES AND ACCEPTANCE:
(a) Employment by Company.
Company hereby engages Executive, and Executive hereby agrees to
provide to Company, his full-time services as Chairman of the Board of Directors
and Chief Executive Officer on the terms and conditions of this Agreement. In
such capacity Executive will report to, and serve under the direction and
subject to the control of Company's Board of Directors. Throughout the Term (as
hereinafter defined) of this Agreement, Executive shall devote substantially all
of his work time to the employment described hereunder; and Executive shall not
engage in or participate in the operation or management of, or render any
services to, any other business, enterprise or individual, directly or
indirectly.
(b) Acceptance of Employment by the Executive.
The Executive accepts such employment and shall render the
services described in Section 1.(a).
(c) Location of Employment:
Executive shall render his services at Company's offices in Los
Angeles, California; provided, however, that Executive agrees to render his
services at such other locations from time-to-time as the proper performance of
Executive's duties may reasonably require. Notwithstanding the foregoing,
Company's principal offices shall remain in Southern California and Executive
need not relocate to render his duties hereunder.
2. TERM:
The term of Executive's employment hereunder shall be for a
period of five (5) years commencing as of August 1, 1999 and ending on July 31,
2004 (the "Term") unless sooner terminated pursuant to Section 7 hereof
("Termination Sections").
3. COMPENSATION AND BENEFITS:
(a) Salary.
1
<PAGE> 2
During the Term, Executive shall receive a salary (the "Annual
Salary") at the rate of five hundred fifty thousand Dollars ($550,000.00) per
annum. Executive's Annual Salary shall be payable in equal installments on the
Company's normally scheduled pay cycle. Such salary shall be less such
deductions as shall be required to be withheld by applicable law and regulations
and shall be pro-rated for any period that does not constitute a full twelve
(12) month period.
The Annual Salary will increase by four per cent (4%) annually,
on the anniversary date of this agreement.
(b) Bonus.
(i) Executive will receive a one time special bonus of
$250,000 payable on January 2, 2000.
(ii) Beginning with the fiscal year for the period
ending December 31, 1999 (the twelve month period commencing January 1 and
ending December 31 hereinafter referred to as "Fiscal Year"), and continuing
thereafter for each such full or partial Fiscal Year of the Term hereof,
Executive shall receive a bonus in the sum calculated below based upon the "Net
Pre-Tax Earnings" of the Company (the "Bonus"). For any Fiscal Year of the
Company in which Net Pre-Tax Earnings are from one dollar ($1.00) up to, but
not greater than, two million dollars ($2,000,000), Executive shall receive
an amount equal to five percent (5%) of such Net Pre-Tax Earnings of the
Company. For any Fiscal Year of the Company in which Net Pre-Tax Earnings of the
Company are greater than two million dollars ($2,000,000) , Executive shall
receive an amount equal to seven and one half percent (7.5%) of such Net Pre-Tax
Earnings of the Company. For purposes hereof, the term "Net Pre-Tax Earnings"
shall mean that amount as determined by the Company's outside accountant in
accordance with generally accepted accounting principles and such amount shall
specifically be determined after the calculation of the Annual Salary.
(iii) Executive's Bonus shall be paid to Executive on a
quarterly basis, within thirty (30) days following the preparation and filing of
the company's quarterly statements (10Q or equivalents) of Company's accounts
for such relevant period. If such above described accounts are not finalized
within 30 days following the end of any fiscal quarter, then Company shall
within 30 days following the expiration of such 30 day period pay to Executive
his Bonus for such fiscal quarter based upon the most complete information then
available to Company at such date and any adjustment to such amount so paid
shall be made as soon as practical after the accounts are completed and approved
by Company.
(iv) Notwithstanding anything to the contrary contained
above, the Bonus shall be calculated prior to, and without regard to, any other
profit shares or bonus payable to other employees of the Company employed by
Company for such same fiscal quarter.
(c) The Company shall be further obligated to cause to be
granted to Executive 250,000 options to purchase shares of the Companies common
stock under the companies employee stock option plan as in effect as of the date
of this agreement, such options to vest in full as of the date of this
agreement. The Company will also issue 865,000 options to purchase shares of the
2
<PAGE> 3
Companies common stock at the then current market price concurrently with the
closing of the offering in Germany of the Company's common stock that Gontard &
Metallbank is underwriting. Provided however that this grant is subject to
reduction in the event that it exceeds the maximum number of options available
under the plan. All such options will have a term of five (5) years.
(d) Executive will receive on screen credit as Executive
Producer in productions produced or co-produced by the Company, or its
affiliates on which Executive renders such or similar services.
4. PARTICIPATION IN EXECUTIVE BENEFIT PLANS;
(a) Fringe Benefits.
Executive shall be permitted during the Term to participate in
any group life, medical, hospitalization, dental, and disability plans, to the
extent that Executive is eligible under the provisions of such plans, and in any
other plans and benefits, if any, generally maintained by Company for executives
of the stature and rank of Executive during the Term hereof, each in accordance
with the terms and conditions of such plans (collectively referred to herein as
"Fringe Benefits"); provided, however, that Company shall not be required to
establish or maintain any such Fringe Benefits.
(b) Vacation.
Executive shall accrue, in addition to sick days and days in
which Company is closed, paid vacation days at the rate of one and two thirds
(12/3) days per month up to a maximum of twenty (20) work days (four [4] work
weeks). Under no circumstances can Executive accrue more vacation than twenty
(20) work days (the "Ceiling"). Thus, once the maximum amount of paid vacation
time is accrued or earned, no further vacation time is accrued or earned until
after vacation is taken and the amount of Executive's accrued vacation time goes
below the Ceiling as stated above. At that point, Executive will start to accrue
vacation time again until Executive reaches the Ceiling.
Subject to the requirements of Executive's office, Executive shall be entitled
to annual vacation in accordance with the vacation policy of Company.
(c) Expenses.
(i) Company will reimburse Executive for actual and
necessary travel and accommodation costs, entertainment and other business
expenses incurred as a necessary part of discharging the Executive's duties
hereunder, subject to receipt of reasonable and appropriate documentation by
Company. Guidelines for reasonable and normal expenses will be determined by the
compensation committee of the board of directors.
3
<PAGE> 4
(ii) Company shall pay all business related operating
expenses of Executive's automobile, pursuant to Company policy, and shall
further provide Executive with a monthly automobile allowance of $1500.00.
5. CERTAIN COVENANTS OF EXECUTIVE:
Without in any way limiting or waiving any right or remedy
accorded to Company or any limitation placed upon Executive by law, Executive
agrees as follows:
(a) Non-Compete.
Provided that Company is at all times relevant hereto, carrying
on the Business of the Company (as defined below), Executive agrees that during
the Term of this Agreement and for an additional period of one (1) year after
the Term hereof, Executive shall not within the United States directly or
indirectly, in any form, capacity or manner, participate in activities which are
competitive with the Business of the Company (as defined below), or of those
divisions, subsidiaries and affiliated companies of Company (each of which,
including Company, is referred to as a "Protected Company") or have a direct
monetary interest in or invest capital in any competitive company of Company,
whether such interest be by way of (i) ownership, (ii) stock interest, (iii)
financing, (iv) lending arrangements, or (v) in any other form or of any other
nature. Upon the execution of this Agreement and during the Term hereof,
Executive shall disclose to Company any stock owned by him and his family in any
company competitive with a Protected Company; provided, however, Executive shall
not be prohibited from investing in any competitive company, as aforesaid, the
stock of which is publicly traded so long as his and his family's ownership
collectively is nominal and for investment purposes only. For purposes hereof,
the term "Business of the Company" shall mean television production and
distribution. Notwithstanding the foregoing, in the event that a court of
competent jurisdiction determines that the foregoing restriction is invalid,
Executive hereby agrees to indemnify and hold Company harmless from any and all
damages, liabilities, costs, losses and expenses (including legal costs and
reasonable attorneys' fees) arising out of or connected with any claim, demand
or action which is based upon a breach by Executive of the foregoing
restriction. This section shall not be operative in the event that Executive is
terminated by the Company without cause.
(b) Confidential Information.
Executive agrees that, neither during the Term nor at any time
thereafter shall the Executive (i) disclose to any person, firm, or corporation
not employed by any Protected Company or not engaged to render services to any
Protected Company or (ii) use for the benefit of himself, or others, any
confidential information of any Protected Company obtained by the Executive
prior to the execution of this Agreement, during the Term or any time
thereafter, including, without limitation, "know-how" trade secrets, details of
supplier's, manufacturer's, distributor's contracts, pricing policies, financial
data, operational methods, marketing and sales information or strategies,
product development techniques or plans or any strategies relating thereto,
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technical processes, designs and design projects, and other proprietary
information of any Protected Company; provided, however, that this provision
shall not preclude the Executive from (x) upon advice of counsel, making any
disclosure required by any applicable law or (y) using or disclosing information
known generally to the public (other than information known generally to the
public as a result of any violation of this Section 5.(b) by or on behalf of the
Executive).
(c) Property of Company.
Any interest in trademarks, service marks, copyrights, copyright
applications, patents, patent applications, slogans, developments and processes
which the Executive, during the Term, may develop relating to the Business of
the Company in which the Company may then be engaged and any memoranda, notes,
lists, records and other documents (and all copies thereof) made or compiled by
the Executive or made available to the Executive concerning the business of any
Protected Company shall belong and remain in the possession of any Protected
Company, and shall be delivered to the Company promptly upon the termination of
the Executive's employment with Company or at any other time on request.
(d) Executive will not, for a period of one (1) year after the
Term hereof, induce any person who is an executive, officer or agent of the
Company, to terminate their relationship with the Company.
6. OTHER PROVISIONS;
(a) Rights and Remedies Upon Breach.
If the Executive breaches, or threatens to commit a breach of,
any of the provisions of Section 5. hereof (the "Restrictive Covenants"), the
Company shall have the following rights and remedies, each of which rights and
remedies shall be independent of the other and severally enforceable, and all of
which rights and remedies shall be in addition to, and not in lieu of, any other
rights and remedies available to the Company at law or in equity.
(b) Accounting.
The right and remedy to require the Executive to account for and
pay over to the Company all compensation, profits, monies, accruals, increments
or other benefits (collectively "Benefits") derived or received by the Executive
as a result of any transactions constituting a breach of any of the Restrictive
Covenants, and the Executive shall account for and pay over such Benefits to the
Company.
(c) Severability of Covenants.
If any court determines that any of the Restrictive Covenants,
or any part thereof, is invalid or unenforceable, the remainder of the
Restrictive Covenants shall not thereby be affected and shall be given full
effect, without regard to the invalid portions.
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(d) Blue-Pencilling.
If any court construes any of the Restrictive Covenants, or any
part thereof, to be unenforceable because of the duration or geographic scope of
such provision, such court shall have the power to reduce the duration or scope
of such provision and, in its reduced form, such provision shall then be
enforceable.
(e) Enforceability in Jurisdictions.
The parties intend to and hereby confer jurisdiction to enforce
the Restrictive Covenants upon the courts of any jurisdiction within the
geographical scope of such Restrictive Covenants. If the courts of any one or
more of such jurisdictions hold the Restrictive Covenants unenforceable by
reason of the breadth of such scope or otherwise, it is the intention of the
parties that such determination not bar or in any way affect Company's right to
the relief provided in this Section 6 in the courts of any other jurisdiction
within the geographical scope of such Restrictive Covenants, as to breaches of
such Restrictive Covenants in such other respective jurisdictions, such
Restrictive Covenants as they relate to each jurisdiction being, for this
purpose, severable into diverse and independent covenants.
(f) Executive agrees and understands that the remedy at law for
any breach by Executive of the provisions of Paragraph 5 hereof may be
inadequate and that damages resulting from such breach may not be susceptible to
being measured in monetary terms. Accordingly, it is acknowledged that upon
Executive's breach of any provision of Paragraph 5 hereof, the Company shall be
entitled to seek to obtain from any court of competent jurisdiction injunctive
relief to prevent the continuation of such breach. Nothing contained herein
shall be deemed to limit the Company's remedies at law or in equity for any
breach of the provisions of Paragraph 5 hereof which may be available to the
Company.
7. TERMINATION:
(a) Termination Upon Death or Disability.
If during the Term, Executive should (i) die or (ii) Executive
becomes so physically or mentally disabled whether totally or partially, that
Executive is unable to perform the duties, functions and responsibilities
required hereunder for (aa) a period of three (3) consecutive months or (bb)
shorter periods aggregating to four (4) months within any period of twelve (12)
months ("Disability"), then in such event, Company may, at any time thereafter,
by written notice to Executive, terminate Executive's employment hereunder.
Executive agrees to submit to reasonable medical examinations upon the request
of Company. The existence of Executive's disability for the purposes of this
Agreement shall be determined by a reputable physician selected by Company who
is experienced in the relevant field of medicine. If Executive's services are
terminated, as aforesaid, Executive or the designated beneficiary of Executive,
shall be entitled to receive Executive's base salary, accrued share of the Bonus
for that Fiscal Year and unused vacation (hereinafter collectively referred to
as "Fringe Benefits"), if any, earned through the date of Executive's
termination and continuing thereafter for an additional period of one year.
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(b) Termination for Cause.
Company may terminate this Agreement and Executive's employment
hereunder, without any further obligation to Executive after the date of
termination (except as expressly provided herein) for "cause" which includes,
and shall be limited to, any of the following; (i) a material breach of this
Agreement by Executive; (ii) the failure of Executive to perform services and
duties exclusively for Company (excluding any passive income or unrelated
activities); (iii) a material failure by Executive to comply with any material
rule or regulation of Company reasonably related to his employment (which rule
or regulation has been previously disclosed in writing to Employer); (iv)
Executive's willful insubordination; or (v) Executive's commission of a felony.
Any termination of Executive's services hereunder shall be effected by notice in
writing stating the reason therefor, which notice shall be given to Executive as
provided in Paragraph 11 hereof. To the extent practicable, Executive shall have
the opportunity to cure any breach within forty five (45) days after receiving
written notice thereof from Company. The foregoing cure provision will not be
applicable to conduct which had previously been the subject of such
notification. In the event Executive is terminated for "cause", Company's
obligations to Executive shall be limited to the payment to Executive of the
base salary through such effective date of termination, Executive's accrued
share of the Bonus for that Fiscal Year and all of Executive's Fringe Benefits.
(c) Termination Without Cause.
If the Company terminates this Agreement without cause by
written notice to the Executive:
(i) Executive shall be entitled to receive from the
Company within seven (7) days from the effective date specified in the Company's
notice of termination, a lump sum payment equal to the Annual Salary, unpaid
vacation pay, unreimbursed business expenses, and any other monies payable to
the Executive under any employee benefit plan, in each case earned through the
date of the Executive's termination, and;
(ii) Executive shall have the right to obtain a transfer
of any life insurance policy existing for the benefit of Executive from and
after the effective date specified in the Company's notice of termination
through the last day of the Term, and
(iii) Executive will be paid, as due and scheduled under
this Agreement, as if Executive had not been terminated, one hundred twenty per
cent (120%) of the balance of the Annual Salary payable through the end of the
then current term.
(d) No Duty to Mitigate.
In the event that Executive's services to Company are terminated
for any reason other than as provided in Paragraph 7(b) above prior to the
completion of the Term hereof, or in the event that Executive terminates this
Agreement based upon the Company's material failure to perform its obligations
hereunder, Executive shall have no duty, either express or implied, to mitigate
any damages hereunder and the Company shall remain liable for all compensation
(whether salary, bonus or other benefits) provided for under the terms of this
Agreement. Any compensation earned by Executive in any capacity after the date
of such termination shall not reduce or mitigate
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the amounts payable by the Company hereunder. Nothing herein shall be deemed to
imply that the Company has the right to terminate Executive's services without
cause.
(e) Designation of Beneficiary.
The parties hereto agree that the Executive shall designate, by
written notice to the Company, a beneficiary to receive the payments described
in Section 7. in the event of his death and the designation of any such
beneficiary may be changed by the Executive from time to time by written notice
to the Company. In the event the Executive fails to designate a beneficiary as
herein provided, any payments which are to be made to the Executive's designated
beneficiary under Section 7. shall be made to the Executive's widow, if any,
during her lifetime. If the Executive has no designees or widow, such payments
shall be paid to the Executive's estate.
8. EXECUTIVE'S REPRESENTATIONS AND WARRANTIES:
(a) Right to Enter Into Agreement.
Executive has the unfettered right to enter into this entire
Agreement on all of the terms, covenants and conditions hereof; and Executive
has not done or permitted to be done anything which may curtail or impair any of
the rights granted to Company herein.
(b) Breach Under Other Agreement or Arrangement.
Neither the execution and delivery of this Agreement nor the
performance by Executive of any of his obligations hereunder will constitute a
violation or breach of, or a default under, any agreement, arrangement or
understanding, or any other restriction of any kind, to which Executive is a
party or by which Executive is bound.
9. USE OF NAME:
Company shall have the right during the Term hereof to use
Executive's name, biography and approved likenesses in connection with Company's
business, including advertising their products and services; and Company may
grant such rights to others, but not for use as a direct endorsement.
10. ARBITRATION:
(a) Jurisdiction.
Any dispute whatsoever arising out of or referable to this
Agreement, including, without limitation, any dispute as to the rights and
entitlements and performance of the parties under this Agreement or concerning
the termination of Executive's employment or of this Agreement or its
construction or its validity or enforcement, or as to the arbitrator's
jurisdiction, or as to the arbitrability of any such dispute, shall be submitted
to final and binding arbitration in Los Angeles, California by and pursuant to
the Labor Arbitration Rules of the American Arbitration
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Association with discovery proceedings pursuant to Section 1283.05 of the
California Code of Civil Procedure. The arbitrator shall be entitled to award
any relief which might be available at law or in equity, including that of a
provisional, permanent or injunctive nature. The prevailing party in such
arbitration as determined by the arbitrator, or in any proceedings in respect
thereof as determined by the person presiding, shall be entitled to receive its
or his reasonable attorneys' fees incurred in connection therewith.
11. NOTICES:
(a) Delivery.
Any notice, consent or other communication under this Agreement
shall be in writing and shall be delivered personally, telexed, sent by
facsimile transmission or overnight courier (regularly providing proof of
delivery) or sent by registered, certified, or express mail and shall be deemed
given when so delivered personally, telexed, sent by facsimile transmission or
overnight courier, or if mailed, two (2) days after the date of deposit in the
United States mail as follows: to the parties at the following addresses (or at
such other address as a party may specify by notice in accordance with the
provisions hereof to the other):
(i) If to Executive, to his address at:
Drew S. Levin
16715 Monte Alto Place
Pacific Palisades CA 90272
(ii) If to Company, to its address at:
TEAM Communications Group, Inc.
12300 Wilshire Boulevard Suite 400
Los Angeles CA 90025
(b) Change of Address.
Either party may change its address for notice hereunder by
notice to the other party in accordance with this Section 11.
12. COMPLETE AGREEMENT; MODIFICATION AND TERMINATION:
This Agreement contains a complete statement of all the
arrangements between the parties with respect to Executive's employment by
Company and supersedes all existing agreements between them concerning
Executive's employment. This Agreement may be amended, modified, superseded or
canceled, and the terms and conditions hereof may be waived, only by a written
instrument signed by the parties or, in the case of a waiver, by the party
waiving compliance. No delay on the part of any party in exercising any right or
remedy hereunder shall operate as a waiver thereof, nor shall any waiver on the
part of any party of any such right or remedy, nor any single or
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partial exercise of any such right or remedy preclude any other or further
exercise thereof or the exercise of any other right or remedy.
13. GOVERNING LAW:
This Agreement shall be governed by and construed in accordance
with the law of the State of California applicable to agreements entered into
and performed entirely within such State.
14. HEADINGS:
The headings in this Agreement are solely for the convenience of
reference and shall not affect its interpretation.
WHEREFORE, the parties hereto have executed this Agreement as of the day
and year first above written.
TEAM COMMUNICATIONS GROUP, INC.
By: /s/ JONATHAN D. SHAPIRO
---------------------------------
Jonathan D. Shapiro
Agreed to and Accepted:
/s/ DREW S. LEVIN
- ------------------------
Drew S. Levin
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AMENDMENT TO EMPLOYMENT AGREEMENT
This Amendment (this "Amendment") is entered into as of October 29,1
999, by and between TEAM COMMUNICATIONS GROUP, INC, a California company
("Company") and DREW S.
LEVIN ("Executive").
R E C I T A L S
A. The Company and Executive entered into a five (5) year employment
agreement, dated as of August 1, 1999, for Executive's employment by the Company
as it's Chief Executive Officer and the Chairman of it's Board of Directors (the
"Employment Agreement").
B. The Company and Executive desire to amend the Employment Agreement
as set forth below.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Amendment of Section 3 (b) (i). Section 3 (b) (i) of the Employment
Agreement is hereby deleted in its entirety and replaced with the following:
"3. COMPENSATION AND BENEFITS:
(b) Bonus.
(i) Executive will receive a one time
special bonus of $250,000, $150,000 of which is
payable on January 2, 2000, and $100,000 of which
payable, at Executive's option, anytime after October
29, 1999.
2. Addition of Section 15. The following section is added to the
Employment Agreement as Section 15, entitled "Repayment of Loans from Company."
"15. Repayment of Loans from Company:
Executive agrees to repay the loans the Company has
made to him with the first to occur of the his receipt of the proceeds of the
German offering or the remainder of his January 2, 2000 bonus.
3. Full Force and Effect. Except as expressly amended hereby, all other
terms and conditions of the Employment Agreement shall remain unmodified and in
full force and effect.
4. Counterparts. This Amendment may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed to be
an original and that all of which taken together shall constitute one and the
same instrument, respectively.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their duly authorized officers, all as of the date first above
written.
TEAM COMMUNICATIONS GROUP, INC.
By: /s/ DREW S. LEVIN
--------------------------------
Agreed to and Accepted:
/s/ DREW S. LEVIN
- ------------------------
Drew S. Levin
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EXHIBIT 10.19
RESTATED EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is entered into as of this 29th
day of October, 1999 by and between Team Communications Group, Inc. ("Company")
and Jonathan D. Shapiro ("Executive"), in connection with Company's engagement
of Executive's personal services as President and Chief Operating Officer of the
Company.
1. EMPLOYMENT; DUTIES AND ACCEPTANCE:
(a) Employment by Company.
Company hereby engages Executive and Executive hereby agrees
to provide to Company services as the President and Chief Operating Office of
the Company on the terms and conditions of this Agreement. In such capacity
Executive will report to, and serve under the direct direction and subject to
express supervision of the Company's Chairman of the Board and Chief Executive
Officer. Throughout the Term of this Agreement Executive shall, subject to the
provisions contained herein, devote all of his work time to the employment
described hereunder, and Executive shall not engage in or participate in the
operation or management of, or render any services to, any other business,
enterprise or individual, directly or indirectly.
(b) Duties.
Executive shall be the primarily responsible for assisting the
Chief Executive Officer in implementing the Company's business plan, including
assisting the Chief Executive Officer in the acquisition and development of new
programming, supporting the Chief Executive Officer in domestic sales
activities, and providing assistance to the Chief Executive Officer as requested
in respect of overseeing strategic acquisitions. Executive shall attend meetings
of senior management of the Company, and shall assist the Company in formulating
the Company's long term strategy.
(c) Location of Employment.
Executive shall render his services at the Company's principal
offices is in Southern California. Executive need not render his duties away
from the Company's officer (in Southern California) other than for customary
trade shows and sales trips.
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2. TERM:
(a) Basic Term.
The term of Executive's employment hereunder shall commence as
of the date hereof and shall extend through December 31, 2000 unless sooner
terminated pursuant to Section 2(b) or 7 hereof ("Termination Sections").
(b) Consultancy Arrangement.
(i) On or after January 1, 2000, and upon
fifteen (15) days' prior written notice by either party, either party may elect,
with cause of any kind, to convert this Agreement into a non-exclusive
consulting arrangement (the "Consulting Relationship"). Pursuant to the
consultancy, the Company may call upon Executive to render up to forty (40)
hours per month of service.
(ii) Upon the occurrence (if at all) of the
conversion of the employment relationship to the Consulting Relationship, the
$350,000 annual base compensation amount set forth below shall no longer
pertain, and the Company shall immediately pay Executive, in one lump sum, the
difference between $250,000 and the aggregate amount of payments of base
compensation (pursuant to Section 3(a) below) already made to Executive during
the Term.
3. COMPENSATION AND BENEFITS:
(a) Base Compensation.
Notwithstanding anything expressly or impliedly to the
contrary herein, Executive will be paid at the annualized rate of $220,000 per
year through December 31, 1999 and, subject to Section 2(b) above, $350,000 from
January 1, 2000 through December 31,2000.
(b) Provisions For Payment.
Executive's compensation shall be payable, at the rate set
forth in Section 2(a) in weekly payments per year. Such salary shall be less
such deductions as shall be required to be withheld by applicable law and
regulations and shall be pro-rated for any period that does not constitute a
full twelve (12) month period.
(c) Non Guaranteed Bonus.
Employee shall be eligible to participate in all bonus and
profit sharing plans as may be adopted by the Company from time to time.
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(d) Guaranteed Bonus.
(i) Upon execution of this Restated Employment
Agreement, Executive shall receive a gross payment of $80,000, less applicable
taxes.
(ii) Upon the closing of the sale of the
Company's equity securities on the German Neuer Market (the "German Offering"),
Executive shall receive a bonus of $170,000.
(e) Legal Fees.
Concurrently with the execution of this Agreement, the Company will
reimburse Mr. Shapiro the sum of $5,000 to in respect of his legal fees in
negotiating this agreement.
(f) YPO Dues.
On or after January 1, 2000, but in any event no
later than January 10, 2000, the Company shall reimburse Executive $5,000 for
his dues for membership in the Young Presidents Organization (YPO).
4. PARTICIPATION IN EXECUTIVE BENEFIT PLANS:
(a) Fringe Benefits.
Executive shall be permitted during the Term to participate in
any group life, medical, hospitalization, dental, and disability plans, to the
extent that Executive is eligible under the provisions of such plans, and such
benefits are maintained by the Company for executives of the stature and rank of
Executive during the Term hereof, each in accordance with the terms and
conditions of such plans (collectively referred to herein as "Fringe Benefits").
(b) Vacation Policy.
Executive shall have the right during each year of the term to
take an aggregate of four (4) weeks of paid vacation time at such time as may be
mutually agreed by the Company and Executive. Notwithstanding anything in any
Company manual or policy to the contrary, any unused vacation shall accumulate
and Company shall be required to reimburse Executive for such time, at the
applicable rate, at the conclusion of the Term.
(c) Expenses.
On a monthly basis, Company will reimburse Executive for
actual and necessary travel and accommodation costs, entertainment and other
business expenses incurred as a necessary part of discharging the Executive's
duties hereunder, subject to
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receipt of reasonable and appropriate documentation by Company. If Executive
shall undertake any travel on behalf of the Company, Executive shall be
furnished first class airfare on international flights, and business class on
domestic or continental flights; provided however, in the event that the travel
is for less than two hours, Executive shall be furnished with coach air travel.
When traveling, Executive shall be furnished with commensurate living
accommodations and expenses.
(d) Car Expense.
The Company will reimburse Executive $750 per month during the
term of the agreement for a car allowance.
(e) Consulting Relationship Benefits.
Notwithstanding anything in this Section 4 or elsewhere to the
contrary, in the event that Executive elects to covert this arrangement to the
Consultancy Relationship, Executive shall no longer be afforded any fringe
benefits other than medical and dental benefits, which can continue during the
remainder of the term. For the avoidance of doubt, Executive will receive these
benefits if Company elects to convert this Agreement into a consulting
arrangement.
5. OPTIONS:
(a) Vesting.
The prior grant to Executive of options to acquire 90,000
shares of the Company's common stock, at an exercise price of $1.65, is hereby
ratified. All options shall be deemed vested as of the date of this Agreement.
Executive shall have 36 months after the termination of this Agreement to
exercise any unexercised options.
(b) Lock-Up.
In the event that Executive's relationship with the Company is
converted from employment to consulting, the Company shall forthwith use
reasonable efforts to cause Executive's shares to be released from such "lock
up" provisions.
6. CERTAIN COVENANTS OF EXECUTIVE:
Without in any way limiting or waiving any right or remedy
accorded to Company or any limitation placed upon Executive by law, Executive
agrees as follows:
(a) Confidential Information.
Executive agrees that, neither during the Term nor at any
time thereafter shall the Executive (i) disclose to any person, firm, or
corporation not employed by the Company or its affiliates or subsidiaries (a
"Protected Company") or not engaged to
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render services to any Protected Company or (ii) use for the benefit of
himself, or others, any confidential information of any Protected Company
obtained by the Executive prior to the execution of this Agreement, during the
Term or any time thereafter, including, without limitation, "know-how" trade
secrets, details of supplier's, manufacturer's, distributor's contracts, pricing
policies, financial data, operational methods, marketing and sales information
or strategies, product development techniques or plans or any strategies
relating thereto, technical processes, designs and design projects, and other
proprietary information of any Protected Company; provided, however, that this
provision shall not preclude the Executive from (x) upon advice of counsel,
making any disclosure required by any applicable law or (y) using or disclosing
information known generally to the public (other than information known
generally to the public as a result of any violation of this Section 6(a) by or
on behalf of the Executive).
(b) Property of Company.
Any interest in trademarks, servicemarks, copyrights,
copyright applications, patents, patent applications, slogans, developments and
processes which the Executive, during the Term, may develop relating to the
Business of the Company in which the Company may then be engaged and any
memoranda, notes, lists, records and other documents (and all copies thereof)
made or compiled by the Executive or made available to the Executive concerning
the business of any Protected Company shall belong and remain in the possession
of any Protected Company, and shall be delivered to the Company promptly upon
the termination of the Executive's employment with Company or at any other time
on request.
(c) Conduct after the Term.
For a period of two years after the expiration of this
Agreement, Executive shall not induce any Employee of the Company to leave or
terminate their employment relationship.
7. TERMINATION:
(a) Termination Upon Death or Disability.
If during the Term, Executive should (i) die or (ii) become so
physically or mentally disabled whether totally or partially, that Executive is
unable to perform the duties, functions and responsibilities required hereunder
for (aa) a period of three (3) consecutive months or (bb) shorter periods
aggregating to four (4) months within any period of twelve (12) months
("Disability"), then in such event, Company may, at any time thereafter, by 30
days written notice to Executive, terminate Executive's employment hereunder.
Executive agrees to submit to reasonable medical examinations upon the
reasonable request of Company. The existence of Executive's disability for the
purposes of this Agreement shall be determined by a reputable physician selected
by Company who is experienced in the relevant field of medicine. If Executive's
services are terminated, as aforesaid, Executive or the designated beneficiary
of Executive, shall
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be entitled to receive Executive's salary, accruing at the rate set forth in
Section 2(a), accrued share of any bonus for that Fiscal Year (if any such plan
shall have been adopted and earned through the date of Executive's termination)
and continuing thereafter for an additional period of two (2) months.
(b) By Resignation, or By Company for Cause.
If Executive=s employment with Company terminates due to his
voluntary resignation or if the Company terminates Executive's employment due to
Cause (as defined below), Company shall pay Executive all accrued Base
Compensation (with no Bonus for the year in which the termination of employment
took place), but no other compensation or reimbursement of any kind, including
without limitation, severance compensation, and thereafter Company's obligations
hereunder shall terminate. "Cause" means (i) willful failure by the Executive to
substantially perform his duties hereunder, other than a failure resulting from
the Executive's complete or partial incapacity due to physical or mental illness
or impairment; (ii) a willful act by the Executive which constitutes misconduct
and which is materially injurious to the Company; (iii) a willful breach by the
Executive of a material provision of this Agreement after written notice and
such breach has not been cured for 10 days; or (iv) a felony conviction or a
material and willful violation of a federal or state law or regulation
applicable to the business of the Company. As of and through the date hereof,
the Company acknowledges that no "cause" exists to terminate this Agreement.
(c) Termination Without Cause.
Subject to paragraph 7(d) below, If Executive's employment is
terminated without Cause, the Company shall continue to pay Executive the
remaining compensation owing to him, as well as the executive benefits set forth
in Section 3(b) and 3(d), all in accordance with the Company's normal payroll
policies.
(d) Effect of Mitigation.
In the event that Executive's services to Company are
terminated for any reason prior to the completion of the Term hereof, or in the
event that Executive terminates this Agreement based upon the Company's material
failure to perform its obligations hereunder, any compensation earned by
Executive in a salaried position after the date of such termination shall reduce
or mitigate the amounts payable by the Company hereunder; provided however, in
no event shall this provision be construed as establishing an affirmative duty
of Executive to mitigate such amounts.
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(e) Designation of Beneficiary.
The parties hereto agree that Executive shall designate, by
written notice to the Company, a beneficiary to receive the payments described
in Section 7(a) in the event of his death and the designation of any such
beneficiary may be changed by Executive from time to time by written notice to
the Company. In the event the Executive fails to designate a beneficiary as
herein provided, any payments which are to be made to Executive's designated
beneficiary under Section 7(a) shall be made to the Executive's widow, if any,
during his lifetime. If Executive has no designees or widow, such payments shall
be paid to the Executive's estate.
8. EXECUTIVE'S REPRESENTATIONS AND WARRANTIES:
(a) Right to Enter Into Agreement.
Executive has the unfettered right to enter into this entire
Agreement on all of the terms, covenants and conditions hereof; and Executive
has not done or permitted to be done anything which may curtail or impair any of
the rights granted to Company herein.
(b) Breach Under Other Agreement or Arrangement.
Neither the execution and delivery of this Agreement nor the
performance by Executive of any of his obligations hereunder will constitute a
violation or breach of, or a default under, any agreement, arrangement or
understanding, or any other restriction of any kind, to which Executive is a
party or by which Executive is bound.
(c) Services Rendered Deemed Special, Etc.
Executive acknowledges and agrees that the services to be
rendered by him hereunder are of a special, unique, extraordinary and
intellectual character which gives them peculiar value, the loss of which cannot
be adequately compensated for in an action at law and that a breach of any term,
condition or covenant hereof will cause irreparable harm and injury to Company
and in addition to any other available remedy Company will be entitled to seek
injunctive relief.
9. USE OF NAME:
Company shall have the right during the Term hereof to use
Executive's name, biography and approved likenesses in connection with Company's
business, including advertising their products and services; and Company may
grant such rights to others, but not for use as a direct endorsement.
7
<PAGE> 8
10. ARBITRATION:
Any dispute whatsoever arising out of or referable to this
Agreement, including, without limitation, any dispute as to the rights and
entitlements and performance of the parties under this Agreement or concerning
the termination of Executive's employment or of this Agreement or its
construction or its validity or enforcement, or as to the arbitrator's
jurisdiction, or as to the arbitrability of any such dispute, shall be submitted
to final and binding arbitration in Los Angeles, California by and pursuant to
the Labor Arbitration Rules of the American Arbitration Association with
discovery proceedings pursuant to Section 1283.05 of the California Code of
Civil Procedure. The arbitrator shall be entitled to award any relief which
might be available at law or in equity, including that of a provisional,
permanent or injunctive nature. The prevailing party in such arbitration as
determined by the arbitrator, or in any proceedings in respect thereof as
determined by the person presiding, shall be entitled to receive its or his
reasonable attorneys' fees incurred in connection therewith.
11. NOTICES:
Any notice, consent or other communication under this
Agreement shall be in writing and shall be delivered personally, telexed, sent
by facsimile transmission or overnight courier (regularly providing proof of
delivery) or sent by registered, certified, or express mail and shall be deemed
given when so delivered personally, telexed, sent by facsimile transmission or
overnight courier, or if mailed three (3) days after the date of deposit in the
United States or Canada mail as follows: to the parties at the following
addresses (or at such other address as a party may specify by notice in
accordance with the provisions hereof to the other):
To Company:
Team Communications Group, Inc.
12300 Wilshire Boulevard
Los Angeles, California 90025
Att. Chief Executive Officer
Tel: 310\ 442-3500
Fax: 310\ 442-3501
To Executive:
Jonathan D. (Jody) Shapiro
25439 Colette Way
Calabasas, California 91312
Tel: 818\ 880-9109
Fax: 818\ 880-9109
8
<PAGE> 9
With a copy to:
Joel Fishman, Esq.
Law Offices of Joel Fishman
12100 Wilshire Blvd., Suite 780
Los Angeles, California 90025
Tel: 310\ 979-9233
Fax: 310\ 979-9133
12. COMPLETE AGREEMENT; MODIFICATION AND TERMINATION:
This Agreement contains a complete statement of all the
arrangements between the parties with respect to Executive's employment by
Company, supersedes all existing agreement between them concerning Executive's
employment. This Agreement may be amended, modified, superseded or canceled, and
the terms and conditions hereof may be waived, only by a written instrument
signed by the parties or, in the case of a waiver, by the party waiving
compliance. No delay on the part of any party in exercising any right or remedy
hereunder shall operate as a waiver thereof, nor shall any waiver on the part of
any party of any such right or remedy, nor any single or partial exercise of any
such right or remedy preclude any other or further exercise thereof or the
exercise of any other right or remedy.
13. GOVERNING LAW:
This Agreement shall be governed by and construed in
accordance with the law of the State of California applicable to agreements
entered into and performed entirely within such State.
14. HEADINGS:
The headings in this Agreement are solely for the convenience
of reference and shall not affect its interpretation.
9
<PAGE> 10
WHEREFORE, the parties hereto have executed this Agreement as
of this 29th day of October, 1999.
Team Communications Group, Inc.
By: /s/ DREW S. LEVIN
------------------------------------------------
Drew Levin, Chairman and Chief Executive Officer
Agreed and Accepted:
/s/ JONATHAN D. SHAPIRO
- ----------------------------------
Jonathan D. Shapiro
10
<PAGE> 1
EXHIBIT 10.28
October 26, 1999
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is entered into as of this 15th
day of November, 1999 by and Team Communications Group, Inc. ("Company") and
Paula Fierman ("Executive"), in connection with Company's engagement of
Executive's personal services as Co-President of Team International, a to be
formed subsidiary of the Company.
1. EMPLOYMENT; DUTIES AND ACCEPTANCE:
(a) Employment by Company.
Company hereby engages Executive and Executive hereby agrees
to provide to Company services as Co-President of the Company on the terms and
conditions of this Agreement. In such capacity Executive will report to, and
serve under the direction and subject to the supervision of the Company's
Chairman on the Board and Chief Executive Officer. Throughout the Term of this
Agreement Executive shall, subject to the provisions contained herein, devote
all of her work time to the employment described hereunder, and Executive shall
not engage in or participate in the operation or management of, or render any
services to, any other business, enterprise or individual, directly or
indirectly.
(b) Duties.
Executive shall be the primarily responsible for the
exploitation of the Company's product in markets outside of the United States
and the supervision of all Company subsidiaries and affiliates engaged in the
exploitation of product in the international market.
(c) Location of Employment.
Executive shall render her services at the Company's principal
offices is in Southern California. Executive need not render her duties away
from the Company's officer (in Southern California) other than for customary
trade shows and sales trips.
- 1 -
<PAGE> 2
2. TERM:
The term of Executive's employment hereunder shall be for a
period of three (3) years commencing as of November 1, 1999 and ending on
December 31, 2002 (the "Term") unless sooner terminated pursuant to Section 7
hereof ("Termination Sections").
3. COMPENSATION AND BENEFITS:
(a) Basic Rate.
Executive shall be compensated at the annualized rate of
$180,000 per annum (the "Base Rate"). The Base Rate will be increased by 4% per
annum on the yearly anniversary of this agreement.
(b) Provisions For Payment.
Executive's compensation shall be payable in twenty-six (26)
bi-weekly payments per year. Such salary shall be less such deductions as shall
be required to be withheld by applicable law and regulations and shall be
pro-rated for any period that does not constitute a full twelve (12) month
period.
(c) Bonus.
Employee shall be eligible to participate in all
bonus and profit sharing plans as may be adopted by the Company from time to
time.
4. PARTICIPATION IN EXECUTIVE BENEFIT PLANS:
(a) Fringe Benefits.
Executive shall be permitted during the Term to participate
in any group life, medical, hospitalization, dental, and disability plans, to
the extent that Executive is eligible under the provisions of such plans, and
such benefits are maintained by the Company for executives of the stature and
rank of Executive during the Term hereof, each in accordance with the terms and
conditions of such plans (collectively referred to herein as "Fringe Benefits").
- 2 -
<PAGE> 3
(b) Vacation Policy.
Executive shall have the right during each year of the term to
take an aggregate of three weeks of paid vacation time at such time as may be
mutually agreed by the Company and Executive. Notwithstanding anything in any
Company manual or policy to the contrary, any unused vacation shall accumulate
and Company shall be required to reimburse Executive for such time, at the
applicable rate, at the conclusion of the Term.
(c) Expenses.
On a monthly basis, Company will reimburse Executive for
actual and necessary travel and accommodation costs, entertainment and other
business expenses incurred as a necessary part of discharging the Executive's
duties hereunder, subject to receipt of reasonable and appropriate documentation
by Company. If Executive shall undertake any travel on behalf of the Company,
Executive shall be furnished first class airfare on international flights, and
business class on transcontinental flights (whether domestic or overseas);
provided however, in the event that the travel is for less than two hours,
Executive shall be furnished with coach air travel. When traveling, Executive
shall be furnished with commensurate living accommodations and expenses.
(d) Car Expense.
The Company will reimburse Executive $600 per month
during the term of the agreement for a car allowance.
5. OPTIONS:
(a) Grant.
As soon as practicable, Employee will be granted options to
acquire 30,000 shares of the Company's Common Stock at an exercise price of
$ [Insert Current Market Price] per share (the "Options"). The options will be
issued pursuant to a standard employee stock option plan, and the options will
be subject to dilution upon the issuance of additional shares of common stock
pursuant to customary dilution provisions.
(b) Vesting.
The Options shall vest as follows: 10,000 after the end of
the first year of employment, 10,000 after the end of the second full year of
employment, and the final 10,000 options after the end of the third year of
employment. All options will expire 90 days after the termination of Executive's
employment with the Company.
- 3 -
<PAGE> 4
6. CERTAIN COVENANTS OF EXECUTIVE:
Without in any way limiting or waiving any right or remedy
accorded to Company or any limitation placed upon Executive by law, Executive
agrees as follows:
(a) Confidential Information.
Executive agrees that, neither during the Term nor at any time
thereafter shall the Executive (i) disclose to any person, firm, or corporation
not employed by the Company or its affiliates or subsidiaries (a "Protected
Company") or not engaged to render services to any Protected Company or (ii) use
for the benefit of himself, or others, any confidential information of any
Protected Company obtained by the Executive prior to the execution of this
Agreement, during the Term or any time thereafter, including, without
limitation, "know-how" trade secrets, details of supplier's, manufacturer's,
distributor's contracts, pricing policies, financial data, operational methods,
marketing and sales information or strategies, product development techniques or
plans or any strategies relating thereto, technical processes, designs and
design projects, and other proprietary information of any Protected Company;
provided, however, that this provision shall not preclude the Executive from (x)
upon advice of counsel, making any disclosure required by any applicable law or
(y) using or disclosing information known generally to the public (other than
information known generally to the public as a result of any violation of this
Section 5(a). by or on behalf of the Executive).
(b) Property of Company.
Any interest in trademarks, servicemarks, copyrights,
copyright applications, patents, patent applications, slogans, developments and
processes which the Executive, during the Term, may develop relating to the
Business of the Company in which the Company may then be engaged and any
memoranda, notes, lists, records and other documents (and all copies thereof)
made or compiled by the Executive or made available to the Executive concerning
the business of any Protected Company shall belong and remain in the possession
of any Protected Company, and shall be delivered to the Company promptly upon
the termination of the Executive's employment with Company or at any other time
on request.
(c) Conduct after the Term.
For a period of two years after the expiration of
this Agreement, Executive shall not induce any Employee of the Company to leave
or terminate their employment relationship.
- 4 -
<PAGE> 5
7. TERMINATION:
(a) Termination Upon Death or Disability.
If during the Term, Executive should (i) die or (ii) become so
physically or mentally disabled whether totally or partially, that Executive is
unable to perform the duties, functions and responsibilities required hereunder
for (aa) a period of three (3) consecutive months or (bb) shorter periods
aggregating to four (4) months within any period of twelve (12) months
("Disability"), then in such event, Company may, at any time thereafter, by 30
days written notice to Executive, terminate Executive's employment hereunder.
Executive agrees to submit to reasonable medical examinations upon the
reasonable request of Company. The existence of Executive's disability for the
purposes of this Agreement shall be determined by a reputable physician selected
by Company who is experienced in the relevant field of medicine. If Executive's
services are terminated, as aforesaid, Executive or the designated beneficiary
of Executive, shall be entitled to receive Executive's salary, accruing as
provided herein, accrued share of any bonus for that Fiscal Year (if any such
plan shall have been adopted and earned through the date of Executive's
termination) and continuing thereafter for an additional period of two (2)
months.
(b) By Resignation, or By Company for Cause.
If Executive's employment with Company terminates due to her
voluntary resignation or if the Company terminates Executive's employment due to
Cause (as defined below), Company shall pay Executive all accrued Base
Compensation (with no Bonus for the year in which the termination of employment
took place), but no other compensation or reimbursement of any kind, including
without limitation, severance compensation or the vesting of any unvested Stock
Options, and thereafter Company's obligations hereunder shall terminate. "Cause"
means (i) willful failure by the Executive to substantially perform her duties
hereunder, other than a failure resulting from the Executive's complete or
partial incapacity due to physical or mental illness or impairment; (ii) a
willful act by the Executive which constitutes misconduct and which is
materially injurious to the Company; (iii) a willful breach by the Executive of
a material provision of this Agreement after written notice and such breach has
not been cured for 10 days; or (iv) a felony conviction or a material and
willful violation of a federal or state law or regulation applicable to the
business of the Company.
- 5 -
<PAGE> 6
(c) Termination Without Cause.
If Executive's employment is terminated without Cause, subject
to Section 7(d) below, the Company shall continue to pay Executive her basic
compensation, as well as the executive benefits set forth in Section 3(b) and
3(d), all in accordance with the Company's normal payroll policies, but no other
compensation or reimbursement of any kind, including without limitation,
severance compensation or the vesting of any unvested stock options, shall be
deemed owing.
(d) Duty to Mitigate.
In the event that Executive's services to Company are
terminated for any reason prior to the completion of the Term hereof, or in the
event that Executive terminates this Agreement based upon the Company's material
failure to perform its obligations hereunder, Executive shall have a duty to
mitigate any damages hereunder and any compensation earned by Executive in any
capacity after the date of such termination shall reduce or mitigate the amounts
payable by the Company hereunder.
(e) Designation of Beneficiary.
The parties hereto agree that Executive shall designate, by
written notice to the Company, a beneficiary to receive the payments described
in Section 5(a) in the event of her death and the designation of any such
beneficiary may be changed by Executive from time to time by written notice to
the Company. In the event the Executive fails to designate a beneficiary as
herein provided, any payments which are to be made to Executive's designated
beneficiary under Section 7(a) shall be made to the Executive's widow, if any,
during her lifetime. If Executive has no designees or widow, such payments shall
be paid to the Executive's estate.
8. EXECUTIVE'S REPRESENTATIONS AND WARRANTIES:
(a) Right to Enter Into Agreement.
Executive has the unfettered right to enter into this entire
Agreement on all of the terms, covenants and conditions hereof; and Executive
has not done or permitted to be done anything which may curtail or impair any of
the rights granted to Company herein.
(b) Breach Under Other Agreement or Arrangement.
Neither the execution and delivery of this Agreement nor
the performance by Executive of any of her obligations hereunder will constitute
a
- 6 -
<PAGE> 7
violation or breach of, or a default under, any agreement, arrangement or
understanding, or any other restriction of any kind, to which Executive is a
party or by which Executive is bound.
(c) Services Rendered Deemed Special, Etc.
Executive acknowledges and agrees that the services to be
rendered by him hereunder are of a special, unique, extraordinary and
intellectual character which gives them peculiar value, the loss of which cannot
be adequately compensated for in an action at law and that a breach of any term,
condition or covenant hereof will cause irreparable harm and injury to Company
and in addition to any other available remedy Company will be entitled to seek
injunctive relief.
9. USE OF NAME:
Company shall have the right during the Term hereof to use
Executive's name, biography and approved likenesses in connection with Company's
business, including advertising their products and services; and Company may
grant such rights to others, but not for use as a direct endorsement.
10. ARBITRATION:
Any dispute whatsoever arising out of or referable to this
Agreement, including, without limitation, any dispute as to the rights and
entitlements and performance of the parties under this Agreement or concerning
the termination of Executive's employment or of this Agreement or its
construction or its validity or enforcement, or as to the arbitrator's
jurisdiction, or as to the arbitrability of any such dispute, shall be submitted
to final and binding arbitration in Los Angeles, California by and pursuant to
the Labor Arbitration Rules of the American Arbitration Association with
discovery proceedings pursuant to Section 1283.05 of the California Code of
Civil Procedure. The arbitrator shall be entitled to award any relief which
might be available at law or in equity, including that of a provisional,
permanent or injunctive nature. The prevailing party in such arbitration as
determined by the arbitrator, or in any proceedings in respect thereof as
determined by the person presiding, shall be entitled to receive its or her
reasonable attorneys' fees incurred in connection therewith.
11. NOTICES:
Any notice, consent or other communication under this
Agreement shall be in writing and shall be delivered personally, telexed, sent
by facsimile transmission or overnight courier (regularly providing proof of
delivery) or sent by registered, certified,
- 7 -
<PAGE> 8
or express mail and shall be deemed given when so delivered personally,
telexed, sent by facsimile transmission or overnight courier, or if mailed two
(2) days after the date of deposit in the United States or Canada mail as
follows: to the parties at the following addresses (or at such other address as
a party may specify by notice in accordance with the provisions hereof to the
other):
To Company:
Team Communications Group, Inc.
12300 Wilshire Boulevard
Los Angeles, California 90025
Att. Chief Executive Officer
Tel: 310-442-3500
Fax: 310-442-3501.
To Executive:
12. COMPLETE AGREEMENT; MODIFICATION AND TERMINATION:
This Agreement contains a complete statement of all the
arrangements between the parties with respect to Executive's employment by
Company, supersedes all existing agreement between them concerning Executive's
employment. This Agreement may be amended, modified, superseded or canceled, and
the terms and conditions hereof may be waived, only by a written instrument
signed by the parties or, in the case of a waiver, by the party waiving
compliance. No delay on the part of any party in exercising any right or remedy
hereunder shall operate as a waiver thereof, nor shall any waiver on the part of
any party of any such right or remedy, nor any single or partial exercise of any
such right or remedy preclude any other or further exercise thereof or the
exercise of any other right or remedy.
13. GOVERNING LAW:
This Agreement shall be governed by and construed in
accordance with the law of the State of California applicable to agreements
entered into and performed entirely within such State.
- 8 -
<PAGE> 9
14. HEADINGS:
The headings in this Agreement are solely for the convenience
of reference and shall not affect its interpretation.
WHEREFORE, the parties hereto have executed this Agreement as
of this 2nd day of November, 1999
TEAM COMMUNICATIONS GROUP, INC.
By: /s/ DREW S. LEVIN
-------------------------------------------------
Drew Levin, Chairman and Chief Executive Officer
Agreed to and Accepted:
/s/ PAULA FIERMAN
- ----------------------------------------------
Paula Fierman
- 9 -
<PAGE> 1
EXHIBIT 10.29
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is entered into as of this 1st
day of November, 1999 by and Team Communications Group, Inc. ("Company") and
Larry Friedricks ("Executive"), in connection with Company's engagement of
Executive's personal services as Co-President of Team International, a to be
formed subsidiary of the Company.
1. EMPLOYMENT; DUTIES AND ACCEPTANCE:
(a) Employment by Company.
Company hereby engages Executive and Executive hereby agrees
to provide to Company services as Co-President of the Company on the terms and
conditions of this Agreement. In such capacity Executive will report to, and
serve under the direction and subject to the supervision of the Company's
Chairman of the Board and Chief Executive Officer. Throughout the Term of this
Agreement Executive shall, subject to the provisions contained herein, devote
all of his work time to the employment described hereunder, and Executive shall
not engage in or participate in the operation or management of, or render any
services to, any other business, enterprise or individual, directly or
indirectly. Should Drew S. Levin cease to serve as the Company's Chairman of the
Board and Chief Executive Officer, Executive shall be entitled to terminate this
agreement upon 60 days written notice to the Company.
(b) Duties.
Executive shall be the primarily responsible for the
exploitation of the Company's product in markets outside of the United States
and the supervision of all Company subsidiaries and affiliates engaged in the
exploitation of product in the international market.
(c) Location of Employment:
Executive shall render his services at the Company's principal
offices is in Southern California. Executive need not render his duties away
from the Company's officer (in Southern California) other than for customary
trade shows and sales trips.
- 1 -
<PAGE> 2
2. TERM:
The term of Executive's employment hereunder shall be for a
period of three (3) years commencing as of November 15, 1999 and ending on
December 31, 2002 (the "Term") unless sooner terminated pursuant to Section 7
hereof ("Termination Sections").
3. COMPENSATION AND BENEFITS:
(a) Basic Rate.
Executive shall be compensated at the annualized rate of
$220,000 per annum (the "Base Rate"). The Base Rate will be increased by 4% per
annum on the yearly anniversary of this agreement.
(b) Provisions For Payment.
Executive's compensation shall be payable in equal
installments on the Company's normal payroll schedule. Such salary shall be less
such deductions as shall be required to be withheld by applicable law and
regulations and shall be pro-rated for any period that does not constitute a
full twelve (12) month period.
(c) Bonus.
Employee shall be eligible to participate in all bonus and
profit sharing plans as may be adopted by the Company from time to time.
4. PARTICIPATION IN EXECUTIVE BENEFIT PLANS:
(a) Fringe Benefits.
Executive shall be permitted during the Term to participate
in any group life, medical, hospitalization, dental, and disability plans, to
the extent that Executive is eligible under the provisions of such plans, and
such benefits are maintained by the Company for executives of the stature and
rank of Executive during the Term hereof, each in accordance with the terms and
conditions of such plans (collectively referred to herein as "Fringe Benefits").
- 2 -
<PAGE> 3
(b) Vacation Policy.
Executive shall have the right during each year of the term to
take an aggregate of three weeks of paid vacation time at such time as may be
mutually agreed by the Company and Executive. Notwithstanding anything in any
Company manual or policy to the contrary, any unused vacation shall accumulate
and Company shall be required to reimburse Executive for such time, at the
applicable rate, at the conclusion of the Term.
(c) Expenses.
On a monthly basis, Company will reimburse Executive for
actual and necessary travel and accommodation costs, entertainment and other
business expenses incurred as a necessary part of discharging the Executive's
duties hereunder, subject to receipt of reasonable and appropriate documentation
by Company. If Executive shall undertake any travel on behalf of the Company,
Executive shall be furnished first class airfare on international flights, and
business class on transcontinental flights (whether domestic or overseas);
provided however, in the event that the travel is for less than two hours,
Executive shall be furnished with coach air travel. When traveling, Executive
shall be furnished with commensurate living accommodations and expenses.
(d) Car Expense.
The Company will reimburse Executive $600 per month
during the term of the agreement for a car allowance.
5. OPTIONS:
(a) Grant.
As soon as practicable, Employee will be granted options to
acquire 60,000 shares of the Company's Common Stock at an exercise price equal
to the average of the bid and asking price for the Company's common stock on the
date immediately preceding the date hereof (the "Options"). The options will be
issued pursuant to a standard employee stock option plan, and the options will
be subject to dilution upon the issuance of additional shares of common stock
pursuant to customary dilution provisions.
- 3 -
<PAGE> 4
(b) Vesting.
The Options shall vest as follows: 20,000 after the end of the
first year of employment, 20,000 after the end of the second full year of
employment, and the final 20,000 options after the end of the third year of
employment. All options will expire 90 days after the termination of Executive's
employment with the Company.
6. CERTAIN COVENANTS OF EXECUTIVE:
Without in any way limiting or waiving any right or remedy
accorded to Company or any limitation placed upon Executive by law, Executive
agrees as follows:
(a) Confidential Information.
Executive agrees that, neither during the Term nor at any time
thereafter shall the Executive (i) disclose to any person, firm, or corporation
not employed by the Company or its affiliates or subsidiaries (a "Protected
Company") or not engaged to render services to any Protected Company or (ii) use
for the benefit of himself, or others, any confidential information of any
Protected Company obtained by the Executive prior to the execution of this
Agreement, during the Term or any time thereafter, including, without
limitation, "know-how" trade secrets, details of supplier's, manufacturer's,
distributor's contracts, pricing policies, financial data, operational methods,
marketing and sales information or strategies, product development techniques or
plans or any strategies relating thereto, technical processes, designs and
design projects, and other proprietary information of any Protected Company;
provided, however, that this provision shall not preclude the Executive from (x)
upon advice of counsel, making any disclosure required by any applicable law or
(y) using or disclosing information known generally to the public (other than
information known generally to the public as a result of any violation of this
Section 5(a). by or on behalf of the Executive).
(b) Property of Company.
Any interest in trademarks, servicemarks, copyrights,
copyright applications, patents, patent applications, slogans, developments and
processes which the Executive, during the Term, may develop relating to the
Business of the Company in which the Company may then be engaged and any
memoranda, notes, lists, records and other documents (and all copies thereof)
made or compiled by the Executive or made available to the Executive concerning
the business of any Protected Company shall belong and remain in the possession
of any Protected Company, and shall be delivered to
- 4 -
<PAGE> 5
the Company promptly upon the termination of the Executive's employment with
Company or at any other time on request.
(c) Conduct after the Term.
For a period of two years after the expiration of this
Agreement, Executive shall not induce any Employee of the Company to leave or
terminate their employment relationship.
7. TERMINATION:
(a) Termination Upon Death or Disability.
If during the Term, Executive should (i) die or (ii) become so
physically or mentally disabled whether totally or partially, that Executive is
unable to perform the duties, functions and responsibilities required hereunder
for (aa) a period of three (3) consecutive months or (bb) shorter periods
aggregating to four (4) months within any period of twelve (12) months
("Disability"), then in such event, Company may, at any time thereafter, by 30
days written notice to Executive, terminate Executive's employment hereunder.
Executive agrees to submit to reasonable medical examinations upon the
reasonable request of Company. The existence of Executive's disability for the
purposes of this Agreement shall be determined by a reputable physician selected
by Company who is experienced in the relevant field of medicine. If Executive's
services are terminated, as aforesaid, Executive or the designated beneficiary
of Executive, shall be entitled to receive Executive's salary, accruing as
provided herein, accrued share of any bonus for that Fiscal Year (if any such
plan shall have been adopted and earned through the date of Executive's
termination) and continuing thereafter for an additional period of two (2)
months.
(b) By Resignation, or By Company for Cause.
If Executive's employment with Company terminates due to his
voluntary resignation or if the Company terminates Executive's employment due to
Cause (as defined below), Company shall pay Executive all accrued base
compensation (with no Bonus for the year in which the termination of employment
took place), but no other compensation or reimbursement of any kind, including
without limitation, severance compensation or the vesting of any unvested Stock
Options, and thereafter Company's obligations hereunder shall terminate. "Cause"
means (i) willful failure by the Executive to substantially perform his duties
hereunder, other than a failure resulting from the Executive's complete or
partial incapacity due to physical or mental illness or impairment; (ii) a
willful act by the Executive which constitutes misconduct and which is
- 5 -
<PAGE> 6
materially injurious to the Company; (iii) a willful breach by the Executive of
a material provision of this Agreement after written notice and such breach has
not been cured for 10 days; or (iv) a felony conviction or a material and
willful violation of a federal or state law or regulation applicable to the
business of the Company.
(c) Termination Without Cause.
If Executive's employment is terminated without Cause, subject
to Section 7(d) below, the Company shall continue to pay Executive his basic
compensation, as well as the executive benefits set forth in Section 3(b) and
3(d), all in accordance with the Company's normal payroll policies, but no other
compensation or reimbursement of any kind, including without limitation,
severance compensation or the vesting of any unvested stock options, shall be
deemed owing.
(d) Duty to Mitigate.
In the event that Executive's services to Company are
terminated for any reason prior to the completion of the Term hereof, or in the
event that Executive terminates this Agreement based upon the Company's material
failure to perform its obligations hereunder, Executive shall have a duty to
mitigate any damages hereunder and any compensation earned by Executive in any
capacity after the date of such termination shall reduce or mitigate the amounts
payable by the Company hereunder.
(e) Designation of Beneficiary.
The parties hereto agree that Executive shall designate, by
written notice to the Company, a beneficiary to receive the payments described
in Section 5(a) in the event of his death and the designation of any such
beneficiary may be changed by Executive from time to time by written notice to
the Company. In the event the Executive fails to designate a beneficiary as
herein provided, any payments which are to be made to Executive's designated
beneficiary under Section 7(a) shall be made to the Executive's widow, if any,
during his lifetime. If Executive has no designees or widow, such payments shall
be paid to the Executive's estate.
8. EXECUTIVE'S REPRESENTATIONS AND WARRANTIES:
(a) Right to Enter Into Agreement.
Executive has the unfettered right to enter into this entire
Agreement on all of the terms, covenants and conditions hereof; and Executive
has not done or permitted to be done anything which may curtail or impair any of
the rights granted to Company herein.
- 6 -
<PAGE> 7
(b) Breach Under Other Agreement or Arrangement.
Neither the execution and delivery of this Agreement
nor the performance by Executive of any of his obligations hereunder will
constitute a violation or breach of, or a default under, any agreement,
arrangement or understanding, or any other restriction of any kind, to which
Executive is a party or by which Executive is bound.
(c) Services Rendered Deemed Special, Etc.
Executive acknowledges and agrees that the services
to be rendered by him hereunder are of a special, unique, extraordinary and
intellectual character which gives them peculiar value, the loss of which cannot
be adequately compensated for in an action at law and that a breach of any term,
condition or covenant hereof will cause irreparable harm and injury to Company
and in addition to any other available remedy Company will be entitled to seek
injunctive relief.
9. USE OF NAME:
Company shall have the right during the Term hereof to use
Executive's name, biography and approved likenesses in connection with Company's
business, including advertising their products and services; and Company may
grant such rights to others, but not for use as a direct endorsement.
10. ARBITRATION:
Any dispute whatsoever arising out of or referable to this
Agreement, including, without limitation, any dispute as to the rights and
entitlements and performance of the parties under this Agreement or concerning
the termination of Executive's employment or of this Agreement or its
construction or its validity or enforcement, or as to the arbitrator's
jurisdiction, or as to the arbitrability of any such dispute, shall be submitted
to final and binding arbitration in Los Angeles, California by and pursuant to
the Labor Arbitration Rules of the American Arbitration Association with
discovery proceedings pursuant to Section 1283.05 of the California Code of
Civil Procedure. The arbitrator shall be entitled to award any relief which
might be available at law or in equity, including that of a provisional,
permanent or injunctive nature. The prevailing party in such arbitration as
determined by the arbitrator, or in any proceedings in respect thereof as
determined by the person presiding, shall be entitled to receive its or his
reasonable attorneys' fees incurred in connection therewith.
- 7 -
<PAGE> 8
11. NOTICES:
Any notice, consent or other communication under this
Agreement shall be in writing and shall be delivered personally, telexed, sent
by facsimile transmission or overnight courier (regularly providing proof of
delivery) or sent by registered, certified, or express mail and shall be deemed
given when so delivered personally, telexed, sent by facsimile transmission or
overnight courier, or if mailed two (2) days after the date of deposit in the
United States or Canada mail as follows: to the parties at the following
addresses (or at such other address as a party may specify by notice in
accordance with the provisions hereof to the other):
To Company:
Team Communications Group, Inc.
12300 Wilshire Boulevard
Los Angeles, California 90025
Att. Chief Executive Officer
Tel: 310\442-3500
Fax: 310\442-3501
To Executive:
Larry Friedricks
10724 Wilshire Boulevard
Suite 904
Los Angeles, California 90024
12. COMPLETE AGREEMENT; MODIFICATION AND TERMINATION:
This Agreement contains a complete statement of all the
arrangements between the parties with respect to Executive's employment by
Company, supersedes all existing agreement between them concerning Executive's
employment. This Agreement may be amended, modified, superseded or canceled, and
the terms and conditions hereof may be waived, only by a written instrument
signed by the parties or, in the case of a waiver, by the party waiving
compliance. No delay on the part of any party in exercising any right or remedy
hereunder shall operate as a waiver thereof, nor shall any waiver on the part of
any party of any such right or remedy, nor any single or partial exercise of any
such right or remedy preclude any other or further exercise thereof or the
exercise of any other right or remedy.
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<PAGE> 9
13. GOVERNING LAW:
This Agreement shall be governed by and construed in
accordance with the law of the State of California applicable to agreements
entered into and performed entirely within such State.
14. HEADINGS:
The headings in this Agreement are solely for the convenience
of reference and shall not affect its interpretation.
WHEREFORE, the parties hereto have executed this Agreement as
of this 2nd day of November, 1999
TEAM COMMUNICATIONS GROUP, INC.
By: /s/ DREW S. LEVIN
---------------------------------
Drew Levin, Chairman and Chief Executive Officer
Agreed to and Accepted:
/s/ LARRY FRIEDRICKS
- ------------------------------------
Larry Friedricks
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<PAGE> 1
EXHIBIT 10.30
OFFICE LEASE
11818 WILSHIRE BOULEVARD
THE MARCEL GEORGE FAMILY TRUSTS OF SEPTEMBER 2, 1982,
as Landlord,
and
TEAM COMMUNICATIONS GROUP,
a California corporation,
as Tenant.
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE 1 PREMISES, BUILDING, PROJECT, AND COMMON AREAS.............................................3
ARTICLE 2 LEASE TERM; OPTION TERM...................................................................4
ARTICLE 3 BASE RENT.................................................................................5
ARTICLE 4 ADDITIONAL RENT...........................................................................5
ARTICLE 5 USE OF PREMISES..........................................................................11
ARTICLE 6 SERVICES AND UTILITIES...................................................................11
ARTICLE 7 REPAIRS..................................................................................12
ARTICLE 8 ADDITIONS AND ALTERATIONS................................................................13
ARTICLE 9 COVENANT AGAINST LIENS...................................................................14
ARTICLE 10 INSURANCE................................................................................15
ARTICLE 11 DAMAGE AND DESTRUCTION...................................................................16
ARTICLE 12 NONWAIVER................................................................................18
ARTICLE 13 CONDEMNATION.............................................................................18
ARTICLE 14 ASSIGNMENT AND SUBLETTING................................................................18
ARTICLE 15 SURRENDER OF PREMISES; OWNERSHIP AND REMOVAL OF TRADE FIXTURES...........................22
ARTICLE 16 HOLDING OVER.............................................................................22
ARTICLE 17 ESTOPPEL CERTIFICATES....................................................................22
ARTICLE 18 SUBORDINATION............................................................................23
ARTICLE 19 DEFAULTS; REMEDIES.......................................................................23
ARTICLE 20 COVENANT OF QUIET ENJOYMENT..............................................................26
ARTICLE 21 SECURITY DEPOSIT.........................................................................26
ARTICLE 22 SUBSTITUTION OF OTHER PREMISES...........................................................26
ARTICLE 23 SIGNS....................................................................................26
ARTICLE 24 COMPLIANCE WITH LAW......................................................................27
ARTICLE 25 LATE CHARGES.............................................................................28
ARTICLE 26 LANDLORD'S RIGHT TO CURE DEFAULT; PAYMENTS BY TENANT.....................................28
ARTICLE 27 ENTRY BY LANDLORD........................................................................28
ARTICLE 28 TENANT PARKING...........................................................................29
ARTICLE 29 MISCELLANEOUS PROVISIONS.................................................................29
EXHIBITS
A OUTLINE OF PREMISES
B TENANT WORK LETTER
C FORM OF NOTICE OF LEASE TERM DATES
D RULES AND REGULATIONS
E FORM OF TENANT'S ESTOPPEL CERTIFICATE
F APPROXIMATE LOCATION OF TENANT'S SIGN
</TABLE>
(ii)
<PAGE> 3
INDEX
<TABLE>
<CAPTION>
Page(s)
------
<S> <C>
11818 Wilshire Boulevard........................................................................................3
Abatement Event................................................................................................25
Accountant.....................................................................................................10
Adjacent Building...............................................................................................3
Alterations....................................................................................................13
Applicable Laws................................................................................................27
Bank Prime Loan................................................................................................28
Base Building..................................................................................................13
Brokers........................................................................................................32
Builder's All Risk.............................................................................................14
Building........................................................................................................3
Building Common Areas,..........................................................................................3
Building Hours.................................................................................................11
Common Areas....................................................................................................3
Eligibility Period.............................................................................................25
Estimate........................................................................................................9
Estimate Statement..............................................................................................9
Estimated Excess...............................................................................................10
Excess..........................................................................................................9
Force Majeure..................................................................................................31
Holidays.......................................................................................................11
HVAC...........................................................................................................11
Improvement Overhead Fee.......................................................................................14
Landlord........................................................................................................1
Landlord Parties...............................................................................................15
Landlord Repair Notice.........................................................................................17
Lease...........................................................................................................1
Lease Commencement Date.........................................................................................4
Lease Expiration Date...........................................................................................4
Lease Term......................................................................................................4
Lease Year......................................................................................................4
Lines..........................................................................................................34
Mail...........................................................................................................31
Notices........................................................................................................31
Option Rent.....................................................................................................4
Option Term.....................................................................................................4
Original Improvements..........................................................................................16
Original Tenant.................................................................................................4
Premises........................................................................................................3
Project Common Areas,...........................................................................................3
Project,........................................................................................................3
Renovations....................................................................................................33
Security Deposit...............................................................................................26
Statement.......................................................................................................9
Subject Space..................................................................................................19
Summary.........................................................................................................1
Tenant..........................................................................................................1
Tenant Work Letter..............................................................................................3
Tenant's Share..................................................................................................9
Transfer Notice................................................................................................19
Transfer Premium...............................................................................................20
Transferee.....................................................................................................19
Transfers......................................................................................................19
</TABLE>
(iii)
<PAGE> 4
11818 WILSHIRE BOULEVARD
OFFICE LEASE
This Office Lease (the "Lease"), dated as of the date set forth in Section
1 of the Summary of Basic Lease Information (the "Summary"), below, is made by
and between THE MARCEL GEORGE FAMILY TRUSTS OF SEPTEMBER 2, 1982 ("Landlord"),
and TEAM COMMUNICATIONS GROUP, a California corporation ("Tenant").
SUMMARY OF BASIC LEASE INFORMATION
<TABLE>
<CAPTION>
TERMS OF LEASE DESCRIPTION
- -------------- -----------
<S> <C> <C>
1. Date: November 3, 1999
2. Premises(Article 1).
2.1 Building: 11818 Wilshire Boulevard, Los Angeles, California
2.2 Premises: Approximately 10,965 rentable (9,338 usable) square
feet of space located on the second (2nd) floor of the
Building, as further set forth in Exhibit A to the
Office Lease.
3. Lease Term(Article 2).
3.1 Length of Term: Five (5) years.
3.2 Lease Commencement Date: The earlier to occur of (i) the date upon which Tenant
first commences to conduct business in the Premises,
and (ii) February 15, 2000.
3.3 Lease Expiration Date: The date immediately preceding the fifth (5th)
anniversary of the Lease Commencement Date.
4. Base Rent (Article 3):
</TABLE>
<TABLE>
<CAPTION>
Monthly
Installment Monthly Rental Rate per
Lease Year Annual Base Rent of Base Rent Rentable Square Foot
---------- ---------------- ------------ --------------------
<S> <C> <C> <C>
1 $375,003.00 $31,250.25 $2.85
2 $386,845.20 $32,237.10 $2.94
3 $398,687.40 $33,223.95 $3.03
4 $410,529.60 $34,210.80 $3.12
5 $422,371.80 $35,197.65 $3.21
</TABLE>
<TABLE>
<S> <C> <C>
5. Base Year (Article 4): Calendar year 2000.
6. Tenant's Share(Article 4): Approximately 52.36%.
7. Permitted Use(Article 5): General office use and post production video
tape editing and duplication, all consistent
with a first-class office building, provided
that in no event shall any post production
of pornographic materials be permitted.
</TABLE>
<PAGE> 5
<TABLE>
<S> <C> <C>
8. Security Deposit(Article 21): $35,197.65.
9. Parking Pass Ratio(Article 28): Three (3) unreserved parking passes for every 1,000
rentable square feet of the Premises.
10. Address of Tenant(Section 29.18): 12300 Wilshire Boulevard
Suite 400
Los Angeles, California 90025
Attention: Mr. Eric Elias
(Prior to Lease Commencement Date)
and
Team Communications Group
11818 Wilshire Boulevard
Second Floor
Los Angeles, California 90025
Attention: Mr. Eric Elias
(After Lease Commencement Date)
11. Address of Landlord(Section 29.18): See Section 29.18 of the Lease.
12. Broker(s)(Section 29.24): Tooley & Company
2040 Century Park East
Suite 2650
Los Angeles, California 90067
and
Equis Corporation
515 South Figueroa Street
Suite 1960
Los Angeles, California 90071
</TABLE>
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<PAGE> 6
ARTICLE 1
PREMISES, BUILDING, PROJECT, AND COMMON AREAS
1.1 PREMISES, BUILDING, PROJECT AND COMMON AREAS.
1.1.1 THE PREMISES. Landlord hereby leases to Tenant and Tenant hereby
leases from Landlord the premises set forth in Section 2.2 of the Summary (the
"Premises"). The outline of the Premises is set forth in Exhibit A attached
hereto and each floor or floors of the Premises has the number of rentable
square feet as set forth in Section 2.2 of the Summary. Landlord and Tenant
hereby acknowledge and agree that the rentable and usable square footage of the
Premises, as set forth in the Summary, shall be conclusive for all purposes
under this Lease and shall not be subject to remeasurement or modification. The
parties hereto agree that the lease of the Premises is upon and subject to the
terms, covenants and conditions herein set forth, and Tenant covenants as a
material part of the consideration for this Lease to keep and perform each and
all of such terms, covenants and conditions by it to be kept and performed and
that this Lease is made upon the condition of such performance. The parties
hereto hereby acknowledge that the purpose of Exhibit A is to show the
approximate location of the Premises in the "Building," as that term is defined
in Section 1.1.2, below, only, and such Exhibit is not meant to constitute an
agreement, representation or warranty as to the construction of the Premises,
the precise area thereof or the specific location of the "Common Areas," as that
term is defined in Section 1.1.3, below, or the elements thereof or of the
accessways to the Premises or the "Project," as that term is defined in Section
1.1.2, below. Except as specifically set forth in this Lease and in the Tenant
Work Letter attached hereto as Exhibit B (the "Tenant Work Letter"), Landlord
shall not be obligated to provide or pay for any improvement work or services
related to the improvement of the Premises. Tenant also acknowledges that
neither Landlord nor any agent of Landlord has made any representation or
warranty regarding the condition of the Premises, the Building or the Project or
with respect to the suitability of any of the foregoing for the conduct of
Tenant's business, except as specifically set forth in this Lease and the Tenant
Work Letter. The taking of possession of the Premises by Tenant shall
conclusively establish that the Premises and the Building were at such time in
good and sanitary order, condition and repair.
1.1.2 THE BUILDING AND THE PROJECT. The Premises are a part of the
building set forth in Section 2.1 of the Summary (the "Building"). The Building
is part of an office project known as "11818 Wilshire Boulevard." The term
"Project," as used in this Lease, shall mean (i) the Building and the Common
Areas, (ii) the land (which is improved with landscaping, subterranean parking
facilities and other improvements) upon which the Building and the Common Areas
are located, (iii) the office building located at 11800 Wilshire Boulevard which
is physically connected to the Building and the land upon which such office
building is located (the "Adjacent Building"), and (iv) at Landlord's
discretion, any additional real property, areas, land, buildings or other
improvements added thereto outside of the Project.
1.1.3 COMMON AREAS. Tenant shall have the non-exclusive right to use
in common with other tenants in the Project, and subject to the rules and
regulations referred to in Article 5 of this Lease, those portions of the
Project which are provided, from time to time, for use in common by Landlord,
Tenant and any other tenants of the Project (such areas, together with such
other portions of the Project designated by Landlord, in its discretion,
including certain areas designated for the exclusive use of certain tenants, or
to be shared by Landlord and certain tenants, are collectively referred to
herein as the "Common Areas"). The Common Areas shall consist of the "Project
Common Areas" and the "Building Common Areas." The term "Project Common Areas,"
as used in this Lease, shall mean the portion of the Project designated as such
by Landlord. The term "Building Common Areas," as used in this Lease, shall mean
the portions of the Common Areas located within the Building designated as such
by Landlord. The manner in which the Common Areas are maintained and operated
shall be at the sole discretion of Landlord and the use thereof shall be subject
to such rules, regulations and restrictions as Landlord may make from time to
time. Landlord reserves the right to close temporarily, make alterations or
additions to, or change the location of elements of the Project and the Common
Areas.
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<PAGE> 7
ARTICLE 2
LEASE TERM; OPTION TERM
2.1 IN GENERAL. The terms and provisions of this Lease shall be effective
as of the date of this Lease. The term of this Lease (the "Lease Term") shall be
as set forth in Section 3.1 of the Summary, shall commence on the date set forth
in Section 3.2 of the Summary (the "Lease Commencement Date"), and shall
terminate on the date set forth in Section 3.3 of the Summary (the "Lease
Expiration Date") unless this Lease is sooner terminated as hereinafter
provided. For purposes of this Lease, the term "Lease Year" shall mean each
consecutive twelve (12) month period during the Lease Term; provided, however,
that the first Lease Year shall commence on the Lease Commencement Date and end
on the last day of the eleventh month thereafter and the second and each
succeeding Lease Year shall commence on the first day of the next calendar
month; and further provided that the last Lease Year shall end on the Lease
Expiration Date. At any time during the Lease Term, Landlord may deliver to
Tenant a notice in the form as set forth in Exhibit C, attached hereto, as a
confirmation only of the information set forth therein, which Tenant shall
execute and return to Landlord within five (5) days of receipt thereof.
2.2 OPTION TERM.
2.2.1 OPTION RIGHT. Landlord hereby grants the Tenant named in this
Lease (the "Original Tenant"), one (1) option to extend the Lease Term for a
period of five (5) years (the "Option Term"), which option shall be exercisable
only by written notice delivered by Tenant to Landlord as provided below,
provided that, as of the date of delivery of such notice, Tenant is not in
default under this Lease and Tenant has not previously been in default under
this Lease more than once. Upon the proper exercise of such option to extend the
initial Lease Term, and provided that, at Landlord's option, as of the end of
the initial Lease Term, Tenant is not in default under this Lease and Tenant has
not previously been in default under this Lease more than once, the Lease Term,
as it applies to the Premises, shall be extended for a period of five (5) years.
The rights contained in this Section 2.2 shall be personal to the Original
Tenant and may only be exercised by the Original Tenant (and not any assignee,
sublessee or other transferee of Tenant's interest in this Lease) if the
Original Tenant occupies the entire Premises.
2.2.2 OPTION RENT. The "Rent," as that term is defined in Section 4.1
of this Lease, payable by Tenant during the Option Term (the "Option Rent")
shall be equal to the Market Rent," as that term is defined, below, provided
that the base rent component of the Option Rent, on an annual, per rentable
square foot basis, shall in no event be less than the sum of (i) Thirty-Eight
and 52/100 Dollars (38.52), and (ii) the amount of "Tenant's Share of Direct
Expenses," as that term is defined in Section 4.2, below, payable by Tenant on
an annual, per rentable square foot basis for the Premises immediately prior to
the commencement of the Option Term (the "Prior Base Rent"). In the event that
the base rent component for the Option Term is the Prior Base Rent, then (A) the
new Base Year for the Option Term shall be the calendar year 2005, and (B) the
concessions provided to Tenant shall be the "Concessions," as that term is
defined, below. For purposes of this Lease, the term "Market Rent" shall mean
the rent, including all escalations, at which tenants, as of the commencement of
the Option Term, are leasing non-sublease, non-encumbered, non-equity space
comparable in size, location and quality to the Premises for a term of five (5)
years, which comparable space is located in the Building and in the "Comparable
Buildings," as that term is defined in Section 2.2.4, below, in either event,
taking into consideration the following concessions: (the "Concessions") (a)
rental abatement concessions, if any, being granted such tenants in connection
with such comparable space, and (b) tenant improvements or allowances provided
or to be provided for such comparable space, taking into account, and deducting
the value of, the existing improvements in the Premises, such value to be based
upon the age, quality and layout of the improvements and the extent to which the
same could be utilized by Tenant based upon the fact that the precise tenant
improvements existing in the Premises are specifically suitable to Tenant.
2.2.3 EXERCISE OF OPTIONS. The option contained in this Section 2.2
shall be exercised by Tenant, if at all, and only in the following manner: (i)
Tenant shall deliver written notice to Landlord not more than fifteen (15)
months nor less than twelve (12) months prior to the expiration of the initial
Lease Term, stating that Tenant may be interested in exercising its option; (ii)
Landlord, after receipt of Tenant's notice, shall deliver notice (the "Option
Rent Notice") to Tenant not less than ten (10) months prior to the expiration of
the initial Lease Term, setting forth the Option Rent; and (iii) if Tenant
wishes to exercise such option, Tenant shall, on
-4-
<PAGE> 8
or before the earlier of (A) the date occurring nine (9) months prior to the
expiration of the initial Lease Term, and (B) the date occurring thirty (30)
days after Tenant's receipt of the Option Rent Notice, exercise the option by
delivering written notice thereof to Landlord.
2.2.4 COMPARABLE BUILDINGS. The term "COMPARABLE BUILDINGS," as used
in this Lease, shall mean the buildings located in the "West Los Angeles Area,"
as that term is defined below, which are comparable in terms of size, location,
quality of construction and service and amenities to the Building. The "WEST LOS
ANGELES AREA" shall be defined as the area of Los Angeles, California which has
as its Northern boundary the southernmost boundary of Sunset Boulevard, as its
Southern boundary the northernmost boundary of Olympic Boulevard, as its Western
boundary the easternmost boundary of Ocean Avenue, and as its Eastern boundary
the 405 Freeway.
ARTICLE 3
BASE RENT
Tenant shall pay, without prior notice or demand, to Landlord or Landlord's
agent at the management office of the Project, or, at Landlord's option, at such
other place as Landlord may from time to time designate in writing, by a check
for currency which, at the time of payment, is legal tender for private or
public debts in the United States of America, base rent ("Base Rent") as set
forth in Section 4 of the Summary, payable in equal monthly installments as set
forth in Section 4 of the Summary in advance on or before the first day of each
and every calendar month during the Lease Term, without any setoff or deduction
whatsoever. The Base Rent for the first full month of the Lease Term which
occurs after the expiration of any free rent period shall be paid at the time of
Tenant's execution of this Lease. If any Rent payment date (including the Lease
Commencement Date) falls on a day of the month other than the first day of such
month or if any payment of Rent is for a period which is shorter than one month,
the Rent for any fractional month shall accrue on a daily basis for the period
from the date such payment is due to the end of such calendar month or to the
end of the Lease Term at a rate per day which is equal to 1/365 of the
applicable annual Rent. All other payments or adjustments required to be made
under the terms of this Lease that require proration on a time basis shall be
prorated on the same basis.
ARTICLE 4
ADDITIONAL RENT
4.1 GENERAL TERMS. In addition to paying the Base Rent specified in Article
3 of this Lease, Tenant shall pay "Tenant's Share" of the annual "Direct
Expenses," as those terms are defined in Sections 4.2.6 and 4.2.2 of this Lease,
respectively, which are in excess of the amount of Direct Expenses applicable to
the "Base Year," as that term is defined in Section 4.2.1, below; provided,
however, that in no event shall any decrease in Direct Expenses for any Expense
Year below Direct Expenses for the Base Year entitle Tenant to any decrease in
Base Rent or any credit against sums due under this Lease. Such payments by
Tenant, together with any and all other amounts payable by Tenant to Landlord
pursuant to the terms of this Lease, are hereinafter collectively referred to as
the "ADDITIONAL RENT", and the Base Rent and the Additional Rent are herein
collectively referred to as "RENT." All amounts due under this Article 4 as
Additional Rent shall be payable for the same periods and in the same manner as
the Base Rent. Without limitation on other obligations of Tenant which survive
the expiration of the Lease Term, the obligations of Tenant to pay the
Additional Rent provided for in this Article 4 shall survive the expiration of
the Lease Term.
4.2 DEFINITIONS OF KEY TERMS RELATING TO ADDITIONAL RENT. As used in this
Article 4, the following terms shall have the meanings hereinafter set forth:
4.2.1 "BASE YEAR" shall mean the period set forth in Section 5 of the
Summary.
4.2.2 "DIRECT EXPENSES" shall mean "Operating Expenses" and "Tax
Expenses."
4.2.3 "EXPENSE YEAR" shall mean each calendar year in which any
portion of the Lease Term falls, through and including the calendar year in
which the Lease Term expires, provided that Landlord, upon notice to Tenant, may
change the Expense Year from time to time
-5-
<PAGE> 9
to any other twelve (12) consecutive month period, and, in the event of any such
change, Tenant's Share of Direct Expenses shall be equitably adjusted for any
Expense Year involved in any such change.
4.2.4 "OPERATING EXPENSES" shall mean all expenses, costs and amounts
of every kind and nature which Landlord pays or accrues during any Expense Year
because of or in connection with the ownership, management, maintenance,
security, repair, replacement, restoration or operation of the Project, or any
portion thereof. Without limiting the generality of the foregoing, Operating
Expenses shall specifically include any and all of the following: (i) the cost
of supplying all utilities, the cost of operating, repairing, maintaining, and
renovating the utility, telephone, mechanical, sanitary, storm drainage, and
elevator systems, and the cost of maintenance and service contracts in
connection therewith; (ii) the cost of licenses, certificates, permits and
inspections and the cost of contesting any governmental enactments which may
affect Operating Expenses, and the costs incurred in connection with a
transportation system management program or similar program; (iii) the cost of
all insurance carried by Landlord in connection with the Project; (iv) the cost
of landscaping, relamping, and all supplies, tools, equipment and materials used
in the operation, repair and maintenance of the Project, or any portion thereof;
(v) costs incurred in connection with the parking areas servicing the Project;
(vi) fees and other costs, including management fees, consulting fees, legal
fees and accounting fees, of all contractors and consultants in connection with
the management, operation, maintenance and repair of the Project; (vii) payments
under any equipment rental agreements and the fair rental value of any
management office space; (viii) wages, salaries and other compensation and
benefits, including taxes levied thereon, of all persons engaged in the
operation, maintenance and security of the Project; (ix) costs under any
instrument pertaining to the sharing of costs by the Project; (x) operation,
repair, maintenance and replacement of all systems and equipment and components
thereof of the Building; (xi) the cost of janitorial, alarm, security and other
services, replacement of wall and floor coverings, ceiling tiles and fixtures in
common areas, maintenance and replacement of curbs and walkways, repair to roofs
and re-roofing; (xii) amortization (including interest on the unamortized cost)
of the cost of acquiring or the rental expense of personal property used in the
maintenance, operation and repair of the Project, or any portion thereof; (xiii)
the cost of capital improvements or other costs incurred in connection with the
Project (A) which are intended to effect economies in the operation or
maintenance of the Project, or any portion thereof, or (B) that are required
under any governmental law or regulation; provided, however, that any capital
expenditure shall be amortized with interest over its useful life as Landlord
shall reasonably determine; (xiv) costs, fees, charges or assessments imposed
by, or resulting from any mandate imposed on Landlord by, any federal, state or
local government for fire and police protection, trash removal, community
services, or other services which do not constitute "Tax Expenses" as that term
is defined in Section 4.2.5, below; and (xv) payments under any easement,
license, operating agreement, declaration, restrictive covenant, or instrument
pertaining to the sharing of costs by the Building. Notwithstanding the
foregoing, for purposes of this Lease, Operating Expenses shall not, however,
include:
(a) costs, including marketing costs, legal fees, space planners'
fees, advertising and promotional expenses, and brokerage fees
incurred in connection with the original construction or development,
or original or future leasing of the Project, and costs, including
permit, license and inspection costs, incurred with respect to the
installation of tenant improvements made for new tenants in the
Project or incurred in renovating or otherwise improving, decorating,
painting or redecorating vacant space for tenants or other occupants
of the Project (excluding, however, such costs relating to any common
areas of the Project or parking facilities);
(b) except as set forth in items (xii) and (xiii) above,
depreciation, interest and principal payments on mortgages and other
debt costs, if any, penalties and interest, costs of capital repairs
and alterations, and costs of capital improvements and equipment;
(c) costs for which the Landlord is reimbursed by any tenant or
occupant of the Project or by insurance by its carrier or any tenant's
carrier or by anyone else, and electric power costs for which any
tenant directly contracts with the local public service company;
(d) any bad debt loss, rent loss, or reserves for bad debts or
rent loss;
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(e) costs associated with the operation of the business of the
partnership or entity which constitutes the Landlord, as the same are
distinguished from the costs of operation of the Project (which shall
specifically include, but not be limited to, accounting costs
associated with the operation of the Project). Costs associated with
the operation of the business of the partnership or entity which
constitutes the Landlord include costs of partnership accounting and
legal matters, costs of defending any lawsuits with any mortgagee
(except as the actions of the Tenant may be in issue), costs of
selling, syndicating, financing, mortgaging or hypothecating any of
the Landlord's interest in the Project, and costs incurred in
connection with any disputes between Landlord and its employees,
between Landlord and Project management, or between Landlord and other
tenants or occupants, and Landlord's general corporate overhead and
general and administrative expenses;
(f) the wages and benefits of any employee who does not devote
substantially all of his or her employed time to the Project unless
such wages and benefits are prorated to reflect time spent on
operating and managing the Project vis-a-vis time spent on matters
unrelated to operating and managing the Project; provided, that in no
event shall Operating Expenses for purposes of this Lease include
wages and/or benefits attributable to personnel above the level of
Project manager or Project engineer;
(g) amount paid as ground rental for the Project by the Landlord;
(h) except for a Project management fee, overhead and profit
increment paid to the Landlord or to subsidiaries or affiliates of the
Landlord for services in the Project to the extent the same exceeds
the costs of such services rendered by qualified, first-class
unaffiliated third parties on a competitive basis;
(i) any compensation paid to clerks, attendants or other persons
in commercial concessions operated by the Landlord;
(j) costs resulting from Landlord's failure to timely cause the
Building systems to account for the "year 2000 problem;"
(k) all items and services for which Tenant or any other tenant
in the Project reimburses Landlord or which Landlord provides
selectively to one or more tenants (other than Tenant) without
reimbursement;
(l) costs, other than those incurred in ordinary maintenance and
repair, for sculpture, paintings, fountains or other objects of art;
(m) any costs expressly excluded from Operating Expenses
elsewhere in this Lease;
(n) rent for any office space occupied by Project management
personnel to the extent the size or rental rate of such office space
exceeds the size or fair market rental value of office space occupied
by management personnel of the buildings comparable to and in the
vicinity of the Building, with adjustment where appropriate for the
size of the applicable project;
(o) costs incurred to comply with laws relating to the removal of
hazardous material (as defined under applicable law) which was in
existence in the Building or on the Project prior to the Lease
Commencement Date, and was of such a nature that a federal, State or
municipal governmental authority, if it had then had knowledge of the
presence of such hazardous material, in the state, and under the
conditions that it then existed in the Building or on the Project,
would have then required the removal of such hazardous material or
other remedial or containment action with respect thereto; and costs
incurred to remove, remedy, contain, or treat hazardous material,
which hazardous material is brought into the Building or onto the
Project after the date hereof by Landlord or any other tenant of the
Project and is of such a nature, at that time, that a federal, State
or municipal governmental authority, if it had then had knowledge of
the presence of such hazardous material, in the state, and under the
conditions, that it then exists in the Building or on the Project,
would have then required the removal of such hazardous material or
other remedial or containment action with respect thereto;
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(p) costs arising from Landlord's charitable or political
contributions; and
(q) tax penalties resulting from Landlord's negligence, inability
or unwillingness to make payments and/or to file returns when due.
If Landlord is not furnishing any particular work or service (the cost of
which, if performed by Landlord, would be included in Operating Expenses) to a
tenant who has undertaken to perform such work or service in lieu of the
performance thereof by Landlord, Operating Expenses shall be deemed to be
increased by an amount equal to the additional Operating Expenses which would
reasonably have been incurred during such period by Landlord if it had at its
own expense furnished such work or service to such tenant. If the Project is not
at least ninety-five percent (95%) occupied during all or a portion of the Base
Year or any Expense Year, Landlord may elect to make an appropriate adjustment
to the components of Operating Expenses for such year to determine the amount of
Operating Expenses that would have been incurred had the Project been
ninety-five percent (95%) occupied; and the amount so determined shall be deemed
to have been the amount of Operating Expenses for such year. Operating Expenses
for the Base Year shall not include market-wide labor-rate increases due to
extraordinary circumstances, including, but not limited to, boycotts and
strikes, and utility rate increases due to extraordinary circumstances
including, but not limited to, conservation surcharges, boycotts, embargoes or
other shortages, or amortized costs relating to capital improvements. In no
event shall the components of Direct Expenses for any Expense Year related to
electrical costs be less than the components of Direct Expenses related to
electrical costs in the Base Year.
4.2.5 TAXES.
4.2.5.1 "TAX EXPENSES" shall mean all federal, state, county, or
local governmental or municipal taxes, fees, charges or other impositions of
every kind and nature, whether general, special, ordinary or extraordinary,
(including, without limitation, real estate taxes, general and special
assessments, transit taxes, leasehold taxes or taxes based upon the receipt of
rent, including gross receipts or sales taxes applicable to the receipt of rent,
unless required to be paid by Tenant, personal property taxes imposed upon the
fixtures, machinery, equipment, apparatus, systems and equipment, appurtenances,
furniture and other personal property used in connection with the Project, or
any portion thereof), which shall be paid or accrued during any Expense Year
(without regard to any different fiscal year used by such governmental or
municipal authority) because of or in connection with the ownership, leasing and
operation of the Project, or any portion thereof.
4.2.5.2 Tax Expenses shall include, without limitation: (i) Any
tax on the rent, right to rent or other income from the Project, or any portion
thereof, or as against the business of leasing the Project, or any portion
thereof; (ii) Any assessment, tax, fee, levy or charge in addition to, or in
substitution, partially or totally, of any assessment, tax, fee, levy or charge
previously included within the definition of real property tax, it being
acknowledged by Tenant and Landlord that Proposition 13 was adopted by the
voters of the State of California in the June 1978 election ("PROPOSITION 13")
and that assessments, taxes, fees, levies and charges may be imposed by
governmental agencies for such services as fire protection, street, sidewalk and
road maintenance, refuse removal and for other governmental services formerly
provided without charge to property owners or occupants, and, in further
recognition of the decrease in the level and quality of governmental services
and amenities as a result of Proposition 13, Tax Expenses shall also include any
governmental or private assessments or the Project's contribution towards a
governmental or private cost-sharing agreement for the purpose of augmenting or
improving the quality of services and amenities normally provided by
governmental agencies; (iii) Any assessment, tax, fee, levy, or charge allocable
to or measured by the area of the Premises or the Rent payable hereunder,
including, without limitation, any business or gross income tax or excise tax
with respect to the receipt of such rent, or upon or with respect to the
possession, leasing, operating, management, maintenance, alteration, repair, use
or occupancy by Tenant of the Premises, or any portion thereof; and (iv) Any
assessment, tax, fee, levy or charge, upon this transaction or any document to
which Tenant is a party, creating or transferring an interest or an estate in
the Premises.
4.2.5.3 Any costs and expenses (including, without limitation,
reasonable attorneys' fees) incurred in attempting to protest, reduce or
minimize Tax Expenses shall be included in Tax Expenses in the Expense Year such
expenses are paid. Tax refunds shall be
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credited against Tax Expenses and refunded to Tenant regardless of when
received, based on the Expense Year to which the refund is applicable, provided
that in no event shall the amount to be refunded to Tenant for any such Expense
Year exceed the total amount paid by Tenant as Additional Rent under this
Article 4 for such Expense Year. If Tax Expenses for any period during the Lease
Term or any extension thereof are increased after payment thereof for any
reason, including, without limitation, error or reassessment by applicable
governmental or municipal authorities, Tenant shall pay Landlord upon demand
Tenant's Share of any such increased Tax Expenses included by Landlord as
Building Tax Expenses pursuant to the terms of this Lease. Notwithstanding
anything to the contrary contained in this Section 4.2.5 (except as set forth in
Section 4.2.5.1, above), there shall be excluded from Tax Expenses (i) all
excess profits taxes, franchise taxes, gift taxes, capital stock taxes,
inheritance and succession taxes, estate taxes, federal and state income taxes,
and other taxes to the extent applicable to Landlord's general or net income (as
opposed to rents, receipts or income attributable to operations at the Project),
(ii) any items included as Operating Expenses, and (iii) any items paid by
Tenant under Section 4.5 of this Lease.
4.2.5.4 The amount of Tax Expenses for the Base Year attributable
to the valuation of the Project, inclusive of tenant improvements, shall be
known as the "Base Taxes". If in any comparison year subsequent to the Base
Year, the amount of Tax Expenses decreases below the amount of Base Taxes, then
for purposes of all subsequent comparison years, including the comparison year
in which such decrease in Tax Expenses occurred, the Base Taxes, and therefore
the Base Year, shall be decreased by an amount equal to the decrease in Tax
Expenses.
4.2.6 "Tenant's Share" shall mean the percentage set forth in Section
6 of the Summary.
4.3 ALLOCATION OF DIRECT EXPENSES. The parties acknowledge that the
Building is a part of a multi-building project and that the costs and expenses
incurred in connection with the Project (i.e. the Direct Expenses) should be
shared between the tenants of the Building and the tenants of the other
buildings in the Project. Accordingly, as set forth in Section 4.2 above, Direct
Expenses (which consists of Operating Expenses and Tax Expenses) are determined
annually for the Project as a whole, and a portion of the Direct Expenses, which
portion shall be determined by Landlord on an equitable basis, shall be
allocated to the tenants of the Building (as opposed to the tenants of any other
buildings in the Project) and such portion shall be the Direct Expenses for
purposes of this Lease. Such portion of Direct Expenses allocated to the tenants
of the Building shall include all Direct Expenses attributable solely to the
Building and an equitable portion of the Direct Expenses attributable to the
Project as a whole.
4.4 CALCULATION AND PAYMENT OF ADDITIONAL RENT. If for any Expense Year
ending or commencing within the Lease Term, Tenant's Share of Direct Expenses
for such Expense Year exceeds Tenant's Share of Direct Expenses applicable to
the Base Year, then Tenant shall pay to Landlord, in the manner set forth in
Section 4.4.1, below, and as Additional Rent, an amount equal to the excess (the
"Excess").
4.4.1 STATEMENT OF ACTUAL DIRECT EXPENSES AND PAYMENT BY TENANT.
Landlord shall endeavor to give to Tenant following the end of each Expense
Year, a statement (the "Statement") which shall state the Direct Expenses
incurred or accrued for such preceding Expense Year, and which shall indicate
the amount of the Excess. Upon receipt of the Statement for each Expense Year
commencing or ending during the Lease Term, if an Excess is present, Tenant
shall pay, with its next installment of Base Rent due, the full amount of the
Excess for such Expense Year, less the amounts, if any, paid during such Expense
Year as "Estimated Excess," as that term is defined in Section 4.4.2, below. The
failure of Landlord to timely furnish the Statement for any Expense Year shall
not prejudice Landlord or Tenant from enforcing its rights under this Article 4.
Even though the Lease Term has expired and Tenant has vacated the Premises, when
the final determination is made of Tenant's Share of Direct Expenses for the
Expense Year in which this Lease terminates, if an Excess if present, Tenant
shall immediately pay to Landlord such amount. The provisions of this Section
4.4.1 shall survive the expiration or earlier termination of the Lease Term.
4.4.2 STATEMENT OF ESTIMATED DIRECT EXPENSES. In addition, Landlord
shall endeavor to give Tenant a yearly expense estimate statement (the "Estimate
Statement") which shall set forth Landlord's reasonable estimate (the
"Estimate") of what the total amount of Direct
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Expenses for the then-current Expense Year shall be and the estimated excess
(the "Estimated Excess") as calculated by comparing the Direct Expenses for such
Expense Year, which shall be based upon the Estimate, to the amount of Direct
Expenses for the Base Year. The failure of Landlord to timely furnish the
Estimate Statement for any Expense Year shall not preclude Landlord from
enforcing its rights to collect any Estimated Excess under this Article 4, nor
shall Landlord be prohibited from revising any Estimate Statement or Estimated
Excess theretofore delivered to the extent necessary. Thereafter, Tenant shall
pay, with its next installment of Base Rent due, a fraction of the Estimated
Excess for the then-current Expense Year (reduced by any amounts paid pursuant
to the next to last sentence of this Section 4.4.2). Such fraction shall have as
its numerator the number of months which have elapsed in such current Expense
Year, including the month of such payment, and twelve (12) as its denominator.
Until a new Estimate Statement is furnished (which Landlord shall have the right
to deliver to Tenant at any time), Tenant shall pay monthly, with the monthly
Base Rent installments, an amount equal to one-twelfth (1/12) of the total
Estimated Excess set forth in the previous Estimate Statement delivered by
Landlord to Tenant.
4.5 TAXES AND OTHER CHARGES FOR WHICH TENANT IS DIRECTLY RESPONSIBLE.
4.5.1 Tenant shall be liable for and shall pay ten (10) days before
delinquency, taxes levied against Tenant's equipment, furniture, fixtures and
any other personal property located in or about the Premises. If any such taxes
on Tenant's equipment, furniture, fixtures and any other personal property are
levied against Landlord or Landlord's property or if the assessed value of
Landlord's property is increased by the inclusion therein of a value placed upon
such equipment, furniture, fixtures or any other personal property and if
Landlord pays the taxes based upon such increased assessment, which Landlord
shall have the right to do regardless of the validity thereof but only under
proper protest if requested by Tenant, Tenant shall upon demand repay to
Landlord the taxes so levied against Landlord or the proportion of such taxes
resulting from such increase in the assessment, as the case may be.
4.5.2 If the tenant improvements in the Premises, whether installed
and/or paid for by Landlord or Tenant and whether or not affixed to the real
property so as to become a part thereof, are assessed for real property tax
purposes at a valuation higher than the valuation at which tenant improvements
conforming to Landlord's "building standard" in other space in the Building are
assessed, then the Tax Expenses levied against Landlord or the property by
reason of such excess assessed valuation shall be deemed to be taxes levied
against personal property of Tenant and shall be governed by the provisions of
Section 4.5.1, above.
4.5.3 Notwithstanding any contrary provision herein, Tenant shall pay
prior to delinquency any (i) rent tax or sales tax, service tax, transfer tax or
value added tax, or any other applicable tax on the rent or services herein or
otherwise respecting this Lease, (ii) taxes assessed upon or with respect to the
possession, leasing, operation, management, maintenance, alteration, repair, use
or occupancy by Tenant of the Premises or any portion of the Project, including
the Project parking facility; or (iii) taxes assessed upon this transaction or
any document to which Tenant is a party creating or transferring an interest or
an estate in the Premises.
4.6 LANDLORD'S BOOKS AND RECORDS. Within one ninety (90) days after receipt
of a Statement by Tenant, if Tenant disputes the amount of Additional Rent set
forth in the Statement, an independent certified public accountant (which
accountant is a member of a nationally recognized accounting firm and is not
working on a contingency fee basis), designated and paid for by Tenant, may,
after reasonable notice to Landlord and at reasonable times, inspect Landlord's
records with respect to the Statement at Landlord's offices, provided that
Tenant is not then in default under this Lease and Tenant has paid all amounts
required to be paid under the applicable Estimate Statement and Statement, as
the case may be. In connection with such inspection, Tenant and Tenant's agents
must agree in advance to follow Landlord's reasonable rules and procedures
regarding inspections of Landlord's records, and shall execute a commercially
reasonable confidentiality agreement regarding such inspection. Tenant's failure
to dispute the amount of Additional Rent set forth in any Statement within
ninety (90) days of Tenant's receipt of such Statement shall be deemed to be
Tenant's approval of such Statement and Tenant, thereafter, waives the right or
ability to dispute the amounts set forth in such Statement. If after such
inspection, Tenant still disputes such Additional Rent, a determination as to
the proper amount shall be made, at Tenant's expense, by an independent
certified public accountant (the "ACCOUNTANT") selected by Landlord and subject
to Tenant's reasonable approval; provided that if such determination by the
Accountant proves that Direct Expenses
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were overstated by more than five percent (5%), then the cost of the Accountant
and the cost of such determination shall be paid for by Landlord. Tenant hereby
acknowledges that Tenant's sole right to inspect Landlord's books and records
and to contest the amount of Direct Expenses payable by Tenant shall be as set
forth in this Section 4.6, and Tenant hereby waives any and all other rights
pursuant to applicable law to inspect such books and records and/or to contest
the amount of Direct Expenses payable by Tenant.
ARTICLE 5
USE OF PREMISES
5.1 PERMITTED USE. Tenant shall use the Premises solely for the Permitted
Use set forth in Section 7 of the Summary and Tenant shall not use or permit the
Premises or the Project to be used for any other purpose or purposes whatsoever
without the prior written consent of Landlord, which may be withheld in
Landlord's sole discretion.
5.2 PROHIBITED USES. The uses prohibited under this Lease shall include,
without limitation, use of the Premises or a portion thereof for (i) offices of
any agency or bureau of the United States or any state or political subdivision
thereof; (ii) offices or agencies of any foreign governmental or political
subdivision thereof; (iii) offices of any health care professionals or service
organization; (iv) schools or other training facilities which are not ancillary
to corporate, executive or professional office use; (v) retail or restaurant
uses; or (vi) communications firms such as radio and/or television stations.
Tenant further covenants and agrees that Tenant shall not use, or suffer or
permit any person or persons to use, the Premises or any part thereof for any
use or purpose contrary to the provisions of the Rules and Regulations set forth
in Exhibit D, attached hereto, or in violation of the laws of the United States
of America, the State of California, or the ordinances, regulations or
requirements of the local municipal or county governing body or other lawful
authorities having jurisdiction over the Project) including, without limitation,
any such laws, ordinances, regulations or requirements relating to hazardous
materials or substances, as those terms are defined by applicable laws now or
hereafter in effect. Notwithstanding anything in this Section 5.2 to the
contrary, Landlord hereby agrees that the Rules and Regulations shall not be
discriminatorily enforced against Tenant and Tenant shall be provided prior
notice of any changes thereto. Tenant shall not do or permit anything to be done
in or about the Premises which will in any way damage the reputation of the
Project or obstruct or interfere with the rights of other tenants or occupants
of the Building, or injure or annoy them or use or allow the Premises to be used
for any improper, unlawful or objectionable purpose, nor shall Tenant cause,
maintain or permit any nuisance in, on or about the Premises. Tenant shall
comply with all recorded covenants, conditions, and restrictions now or
hereafter affecting the Project.
ARTICLE 6
SERVICES AND UTILITIES
6.1 STANDARD TENANT SERVICES. Landlord shall provide the following services
on all days (unless otherwise stated below) during the Lease Term.
6.1.1 Subject to limitations imposed by all governmental rules,
regulations and guidelines applicable thereto, Landlord shall provide heating
and air conditioning ("HVAC") when necessary for normal comfort for normal
office use in the Premises from 8:00 A.M. to 6:00 P.M. Monday through Friday,
and on Saturdays from 9:00 A.M. to 1:00 P.M. (collectively, the "Building
Hours"), except for the date of observation of New Year's Day, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day, Christmas Day and, at Landlord's
discretion, other locally or nationally recognized holidays (collectively, the
"Holidays").
6.1.2 Landlord shall provide adequate electrical wiring, and
facilities and power for normal general office use as determined by Landlord.
Tenant shall bear the cost of replacement of lamps, starters and ballasts for
non-Building standard lighting fixtures within the Premises.
6.1.3 Landlord shall provide city water from the regular Building
outlets for drinking, lavatory and toilet purposes in the Building Common Areas.
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6.1.4 Landlord shall provide janitorial services to the Premises,
except the date of observation of the Holidays, in and about the Premises.
6.1.5 Landlord shall provide nonexclusive, non-attended automatic
passenger elevator service during the Building Hours, shall have one elevator
available at all other times.
6.2 OVERSTANDARD TENANT USE. Tenant shall not, without Landlord's prior
written consent, use heat-generating machines, machines other than normal
fractional horsepower office machines, or equipment or lighting other than
Building standard lights in the Premises, which may affect the temperature
otherwise maintained by the air conditioning system or increase the water
normally furnished for the Premises by Landlord pursuant to the terms of Section
6.1 of this Lease. If such consent is given, Landlord shall have the right to
install supplementary air conditioning units or other facilities in the
Premises, including supplementary or additional metering devices, and the cost
thereof, including the cost of installation, operation and maintenance,
increased wear and tear on existing equipment and other similar charges, shall
be paid by Tenant to Landlord upon billing by Landlord. If Tenant uses water,
electricity, heat or air conditioning in excess of that supplied by Landlord
pursuant to Section 6.1 of this Lease, Tenant shall pay to Landlord, upon
billing, the cost of such excess consumption, the cost of the installation,
operation, and maintenance of equipment which is installed in order to supply
such excess consumption, and the cost of the increased wear and tear on existing
equipment caused by such excess consumption; and Landlord may install devices to
separately meter any increased use and in such event Tenant shall pay the
increased cost directly to Landlord, on demand, at the rates charged by the
public utility company furnishing the same, including the cost of such
additional metering devices. Tenant's use of electricity shall never exceed the
capacity of the feeders to the Project or the risers or wiring installation. If
Tenant desires to use heat, ventilation or air conditioning during hours other
than those for which Landlord is obligated to supply such utilities pursuant to
the terms of Section 6.1 of this Lease, Tenant shall give Landlord such prior
notice, if any, as Landlord shall from time to time establish as appropriate, of
Tenant's desired use in order to supply such utilities, and Landlord shall
supply such utilities to Tenant at such hourly cost to Tenant (which shall be
treated as Additional Rent) as Landlord shall from time to time establish. As of
the date of this Lease, the charge for after-hours HVAC service is $22.00 per
hour per floor.
6.3 INTERRUPTION OF USE. Tenant agrees that Landlord shall not be liable
for damages, by abatement of Rent or otherwise, for failure to furnish or delay
in furnishing any service (including telephone and telecommunication services),
or for any diminution in the quality or quantity thereof, when such failure or
delay or diminution is occasioned, in whole or in part, by breakage, repairs,
replacements, or improvements, by any strike, lockout or other labor trouble, by
inability to secure electricity, gas, water, or other fuel at the Building or
Project after reasonable effort to do so, by any riot or other dangerous
condition, emergency, accident or casualty whatsoever, by act or default of
Tenant or other parties, or by any other cause; and such failures or delays or
diminution shall never be deemed to constitute an eviction or disturbance of
Tenant's use and possession of the Premises or relieve Tenant from paying Rent
or performing any of its obligations under this Lease. Furthermore, Landlord
shall not be liable under any circumstances for a loss of, or injury to,
property or for injury to, or interference with, Tenant's business, including,
without limitation, loss of profits, however occurring, through or in connection
with or incidental to a failure to furnish any of the services or utilities as
set forth in this Article 6.
ARTICLE 7
REPAIRS
Landlord shall be responsible for repairs to the exterior walls,
foundation and roof of the Building, the structural portions of the floors of
the Building, and the systems and equipment of the Building, except to the
extent that such repairs are required due to the negligence or willful
misconduct of Tenant; provided, however, that if such repairs are due to the
negligence or willful misconduct of Tenant, Landlord shall nevertheless make
such repairs at Tenant's expense, or, if covered by Landlord's insurance, Tenant
shall only be obligated to pay any deductible in connection therewith. Tenant
shall, at Tenant's own expense, pursuant to the terms of this Lease, including
without limitation Article 8 hereof, keep the Premises, including all
improvements, fixtures and furnishings therein, and the floor or floors of the
Building on which the Premises are located, in good order, repair and condition
at all times during the Lease Term. In addition,
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Tenant shall, at Tenant's own expense, but under the supervision and subject to
the prior approval of Landlord, and within any reasonable period of time
specified by Landlord, pursuant to the terms of this Lease, including without
limitation Article 8 hereof, promptly and adequately repair all damage to the
Premises and replace or repair all damaged, broken, or worn fixtures and
appurtenances, except for damage caused by ordinary wear and tear or beyond the
reasonable control of Tenant; provided however, that, at Landlord's option, or
if Tenant fails to make such repairs, Landlord may, but need not, make such
repairs and replacements, and Tenant shall pay Landlord the cost thereof,
including a percentage of the cost thereof (to be uniformly established for the
Building and/or the Project) sufficient to reimburse Landlord for all overhead,
general conditions, fees and other costs or expenses arising from Landlord's
involvement with such repairs and replacements forthwith upon being billed for
same. Landlord may, but shall not be required to, enter the Premises at all
reasonable times to make such repairs, alterations, improvements or additions to
the Premises or to the Project or to any equipment located in the Project as
Landlord shall desire or deem necessary or as Landlord may be required to do by
governmental or quasi-governmental authority or court order or decree. Tenant
hereby waives any and all rights under and benefits of subsection 1 of Section
1932 and Sections 1941 and 1942 of the California Civil Code or under any
similar law, statute, or ordinance now or hereafter in effect.
ARTICLE 8
ADDITIONS AND ALTERATIONS
8.1 LANDLORD'S CONSENT TO ALTERATIONS. Tenant may not make any
improvements, alterations, additions or changes to the Premises or any
mechanical, plumbing or HVAC facilities or systems pertaining to the Premises
(collectively, the "Alterations") without first procuring the prior written
consent of Landlord to such Alterations, which consent shall be requested by
Tenant not less than thirty (30) days prior to the commencement thereof, and
which consent shall not be unreasonably withheld by Landlord, provided it shall
be deemed reasonable for Landlord to withhold its consent to any Alteration
which adversely affects the structural portions or the systems or equipment of
the Building or is visible from the exterior of the Building. Notwithstanding
anything in this Article 8 to the contrary, Tenant shall have the right, without
Landlord's consent but upon five (5) business days prior notice to Landlord, to
make strictly cosmetic, non-structural additions and alterations to the Premises
that do not (i) involve the expenditure of more than $5,000.00 in each instance,
(ii) affect the exterior appearance of the Premises or Building, or (iii) affect
the Building's electrical, ventilation, plumbing, elevator, mechanical, air
conditioning or other similar systems. The construction of the initial
improvements to the Premises shall be governed by the terms of the Tenant Work
Letter and not the terms of this Article 8.
8.2 MANNER OF CONSTRUCTION. Landlord may impose, as a condition of its
consent to any and all Alterations or repairs of the Premises or about the
Premises, such requirements as Landlord in its sole discretion may deem
desirable, including, but not limited to, the requirement that Tenant utilize
for such purposes only contractors, subcontractors, materials, mechanics and
materialmen selected by Tenant from a list provided and approved by Landlord,
the requirement that upon Landlord's request, Tenant shall, at Tenant's expense,
remove such Alterations upon the expiration or any early termination of the
Lease Term. Tenant shall construct such Alterations and perform such repairs in
a good and workmanlike manner, in conformance with any and all applicable
federal, state, county or municipal laws, rules and regulations and pursuant to
a valid building permit, issued by the City of Los Angeles, all in conformance
with Landlord's construction rules and regulations. In the event Tenant performs
any Alterations in the Premises which require or give rise to governmentally
required changes to the "Base Building," as that term is defined below, then
Landlord shall, at Tenant's expense, make such changes to the Base Building. The
"Base Building" shall include the structural portions of the Building, and the
public restrooms and the systems and equipment located in the internal core of
the Building on the floor or floors on which the Premises are located. In
performing the work of any such Alterations, Tenant shall have the work
performed in such manner so as not to obstruct access to the Project or any
portion thereof, by any other tenant of the Project, and so as not to obstruct
the business of Landlord or other tenants in the Project. In addition to
Tenant's obligations under Article 9 of this Lease, upon completion of any
Alterations, Tenant agrees to cause a Notice of Completion to be recorded in the
office of the Recorder of the County of Los Angeles in accordance with Section
3093 of the Civil Code of the State of California or any successor statute, and
Tenant shall deliver to the Project management office a reproducible copy of the
"as
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built" drawings of the Alterations as well as all permits, approvals and other
documents issued by any governmental agency in connection with the Alterations.
8.3 PAYMENT FOR IMPROVEMENTS. If payment is made directly to contractors,
Tenant shall comply with Landlord's requirements for final lien releases and
waivers in connection with Tenant's payment for work to contractors. Whether or
not Tenant orders any work directly from Landlord, Tenant shall pay to Landlord
a percentage of the cost of such work sufficient to compensate Landlord for all
overhead, general conditions, fees and other costs and expenses arising from
Landlord's involvement with such work (the "Improvement Overhead Fee");
provided, however, in no event shall the Improvement Overhead Fee exceed three
percent (3%) of the total cost of such work.
8.4 CONSTRUCTION INSURANCE. In addition to the requirements of Article 10
of this Lease, in the event that Tenant makes any Alterations, prior to the
commencement of such Alterations, Tenant shall provide Landlord with evidence
that Tenant carries "Builder's All Risk" insurance in an amount approved by
Landlord covering the construction of such Alterations, and such other insurance
as Landlord may require, it being understood and agreed that all of such
Alterations shall be insured by Tenant pursuant to Article 10 of this Lease
immediately upon completion thereof. In addition, Landlord may, in its
discretion, require Tenant to obtain a lien and completion bond or some
alternate form of security satisfactory to Landlord in an amount sufficient to
ensure the lien-free completion of such Alterations and naming Landlord as a
co-obligee.
8.5 LANDLORD'S PROPERTY. All Alterations, improvements, fixtures, equipment
and/or appurtenances which may be installed or placed in or about the Premises,
from time to time, shall be at the sole cost of Tenant and shall be and become
the property of Landlord, except that Tenant may remove any Alterations,
improvements, fixtures and/or equipment which Tenant can substantiate to
Landlord have not been paid for with any Tenant improvement allowance funds
provided to Tenant by Landlord, provided Tenant repairs any damage to the
Premises and Building caused by such removal and returns the affected portion of
the Premises to a building standard tenant improved condition as determined by
Landlord. Furthermore, Landlord may, by written notice to Tenant prior to the
end of the Lease Term, or given following any earlier termination of this Lease,
require Tenant, at Tenant's expense, to remove any Alterations or improvements
in the Premises, and to repair any damage to the Premises and Building caused by
such removal and returns the affected portion of the Premises to a building
standard tenant improved condition as determined by Landlord. If Tenant fails to
complete such removal and/or to repair any damage caused by the removal of any
Alterations or improvements in the Premises, and returns the affected portion of
the Premises to a building standard tenant improved condition as determined by
Landlord, Landlord may do so and may charge the cost thereof to Tenant. Tenant
hereby protects, defends, indemnifies and holds Landlord harmless from any
liability, cost, obligation, expense or claim of lien in any manner relating to
the installation, placement, removal or financing of any such Alterations,
improvements, fixtures and/or equipment in, on or about the Premises, which
obligations of Tenant shall survive the expiration or earlier termination of
this Lease.
ARTICLE 9
COVENANT AGAINST LIENS
Tenant shall keep the Project and Premises free from any liens or
encumbrances arising out of the work performed, materials furnished or
obligations incurred by or on behalf of Tenant, and shall protect, defend,
indemnify and hold Landlord harmless from and against any claims, liabilities,
judgments or costs (including, without limitation, reasonable attorneys' fees
and costs) arising out of same or in connection therewith. Tenant shall give
Landlord notice at least twenty (20) days prior to the commencement of any such
work on the Premises (or such additional time as may be necessary under
applicable laws) to afford Landlord the opportunity of posting and recording
appropriate notices of non-responsibility. Tenant shall remove any such lien or
encumbrance by bond or otherwise within five (5) days after notice by Landlord,
and if Tenant shall fail to do so, Landlord may pay the amount necessary to
remove such lien or encumbrance, without being responsible for investigating the
validity thereof. The amount so paid shall be deemed Additional Rent under this
Lease payable upon demand, without limitation as to other remedies available to
Landlord under this Lease. Nothing contained in this Lease shall authorize
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Tenant to do any act which shall subject Landlord's title to the Building or
Premises to any liens or encumbrances whether claimed by operation of law or
express or implied contract.
ARTICLE 10
INSURANCE
10.1 INDEMNIFICATION AND WAIVER. Tenant hereby assumes all risk of damage
to property or injury to persons in, upon or about the Premises from any cause
whatsoever and agrees that Landlord, its partners, subpartners and their
respective officers, agents, servants, employees, and independent contractors
(collectively, "Landlord Parties") shall not be liable for, and are hereby
released from any responsibility for, any damage either to person or property or
resulting from the loss of use thereof, which damage is sustained by Tenant or
by other persons claiming through Tenant. Tenant shall indemnify, defend,
protect, and hold harmless the Landlord Parties from any and all loss, cost,
damage, expense and liability (including without limitation court costs and
reasonable attorneys' fees) incurred in connection with or arising from any
cause in, on or about the Premises, any acts, omissions or negligence of Tenant
or of any person claiming by, through or under Tenant, or of the contractors,
agents, servants, employees, invitees, guests or licensees of Tenant or any such
person, in, on or about the Project or any breach of the terms of this Lease,
either prior to, during, or after the expiration of the Lease Term, provided
that the terms of the foregoing indemnity shall not apply to the negligence or
willful misconduct of Landlord. Should Landlord be named as a defendant in any
suit brought against Tenant in connection with or arising out of Tenant's
occupancy of the Premises, Tenant shall pay to Landlord its costs and expenses
incurred in such suit, including without limitation, its actual professional
fees such as appraisers', accountants' and attorneys' fees. Further, Tenant's
agreement to indemnify Landlord pursuant to this Section 10.1 is not intended
and shall not relieve any insurance carrier of its obligations under policies
required to be carried by Tenant pursuant to the provisions of this Lease, to
the extent such policies cover the matters subject to Tenant's indemnification
obligations; nor shall they supersede any inconsistent agreement of the parties
set forth in any other provision of this Lease. The provisions of this Section
10.1 shall survive the expiration or sooner termination of this Lease with
respect to any claims or liability arising in connection with any event
occurring prior to such expiration or termination.
10.2 TENANT'S COMPLIANCE WITH LANDLORD'S FIRE AND CASUALTY INSURANCE.
Tenant shall, at Tenant's expense, comply with all insurance company
requirements pertaining to the use of the Premises. If Tenant's conduct or use
of the Premises causes any increase in the premium for such insurance policies
then Tenant shall reimburse Landlord for any such increase. Tenant, at Tenant's
expense, shall comply with all rules, orders, regulations or requirements of the
American Insurance Association (formerly the National Board of Fire
Underwriters) and with any similar body.
10.3 TENANT'S INSURANCE. Tenant shall maintain the following coverages in
the following amounts.
10.3.1 Commercial General Liability Insurance covering the insured
against claims of bodily injury, personal injury and property damage (including
loss of use thereof) arising out of Tenant's operations, and contractual
liabilities (covering the performance by Tenant of its indemnity agreements)
including a Broad Form endorsement covering the insuring provisions of this
Lease and the performance by Tenant of the indemnity agreements set forth in
Section 10.1 of this Lease, for limits of liability not less than:
Bodily Injury and $5,000,000 each occurrence
Property Damage Liability $5,000,000 annual aggregate
Personal Injury Liability $5,000,000 each occurrence
$5,000,000 annual aggregate
0% Insured's participation
10.3.2 Physical Damage Insurance covering (i) all office furniture,
business and trade fixtures, office equipment, free-standing cabinet work,
movable partitions, merchandise and all other items of Tenant's property on the
Premises installed by, for, or at the expense of Tenant, (ii) the "Tenant
Improvements," as that term is defined in Section 2.1 of the Tenant Work Letter,
and any other improvements which exist in the Premises as of the Lease
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Commencement Date (excluding the Base Building) (the "Original Improvements"),
and (iii) all other improvements, alterations and additions to the Premises.
Such insurance shall be written on an "all risks" of physical loss or damage
basis, for the full replacement cost value (subject to reasonable deductible
amounts) new without deduction for depreciation of the covered items and in
amounts that meet any co-insurance clauses of the policies of insurance and
shall include coverage for damage or other loss caused by fire or other peril
including, but not limited to, vandalism and malicious mischief, theft, water
damage of any type, including sprinkler leakage, bursting or stoppage of pipes,
and explosion, and providing business interruption coverage for a period of one
year.
10.3.3 Worker's Compensation and Employer's Liability or other similar
insurance pursuant to all applicable state and local statutes and regulations.
10.4 FORM OF POLICIES. The minimum limits of policies of insurance required
of Tenant under this Lease shall in no event limit the liability of Tenant under
this Lease. Such insurance shall (i) name Landlord, and any other party the
Landlord so specifies, as an additional insured, including Landlord's managing
agent, if any; (ii) specifically cover the liability assumed by Tenant under
this Lease, including, but not limited to, Tenant's obligations under Section
10.1 of this Lease; (iii) be issued by an insurance company having a rating of
not less than A-X in Best's Insurance Guide or which is otherwise acceptable to
Landlord and licensed to do business in the State of California; (iv) be primary
insurance as to all claims thereunder and provide that any insurance carried by
Landlord is excess and is non-contributing with any insurance requirement of
Tenant; (v) be in form and content reasonably acceptable to Landlord; and (vi)
provide that said insurance shall not be canceled or coverage changed unless
thirty (30) days' prior written notice shall have been given to Landlord and any
mortgagee of Landlord. Tenant shall deliver said policy or policies or
certificates thereof to Landlord on or before the Lease Commencement Date and at
least thirty (30) days before the expiration dates thereof. In the event Tenant
shall fail to procure such insurance, or to deliver such policies or
certificate, Landlord may, at its option, procure such policies for the account
of Tenant, and the cost thereof shall be paid to Landlord within five (5) days
after delivery to Tenant of bills therefor.
10.5 SUBROGATION. Landlord and Tenant intend that their respective property
loss risks shall be borne by reasonable insurance carriers to the extent above
provided, and Landlord and Tenant hereby agree to look solely to, and seek
recovery only from, their respective insurance carriers in the event of a
property loss to the extent that such coverage is agreed to be provided
hereunder. The parties each hereby waive all rights and claims against each
other for such losses, and waive all rights of subrogation of their respective
insurers, provided such waiver of subrogation shall not affect the right to the
insured to recover thereunder. The parties agree that their respective insurance
policies are now, or shall be, endorsed such that the waiver of subrogation
shall not affect the right of the insured to recover thereunder, so long as no
material additional premium is charged therefor.
10.6 ADDITIONAL INSURANCE OBLIGATIONS. Tenant shall carry and maintain
during the entire Lease Term, at Tenant's sole cost and expense, increased
amounts of the insurance required to be carried by Tenant pursuant to this
Article 10 and such other reasonable types of insurance coverage and in such
reasonable amounts covering the Premises and Tenant's operations therein, as may
be reasonably requested by Landlord.
ARTICLE 11
DAMAGE AND DESTRUCTION
11.1 REPAIR OF DAMAGE TO PREMISES BY LANDLORD. Tenant shall promptly notify
Landlord of any damage to the Premises resulting from fire or any other
casualty. If the Premises or any Common Areas serving or providing access to the
Premises shall be damaged by fire or other casualty, Landlord shall promptly and
diligently, subject to reasonable delays for insurance adjustment or other
matters beyond Landlord's reasonable control, and subject to all other terms of
this Article 11, restore the Base Building and such Common Areas. Such
restoration shall be to substantially the same condition of the Base Building
and the Common Areas prior to the casualty, except for modifications required by
zoning and building codes and other laws or by the holder of a mortgage on the
Building or Project or any other modifications to the Common Areas deemed
desirable by Landlord, provided that access to the Premises and any common
restrooms serving the Premises shall not be materially impaired. Upon the
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occurrence of any damage to the Premises, upon notice (the "Landlord Repair
Notice") to Tenant from Landlord, Tenant shall assign to Landlord (or to any
party designated by Landlord) all insurance proceeds payable to Tenant under
Tenant's insurance required under Section 10.3 of this Lease, and Landlord shall
repair any injury or damage to the Tenant Improvements and the Original
Improvements installed in the Premises and shall return such Tenant Improvements
and Original Improvements to their original condition; provided that if the cost
of such repair by Landlord exceeds the amount of insurance proceeds received by
Landlord from Tenant's insurance carrier, as assigned by Tenant, the cost of
such repairs shall be paid by Tenant to Landlord prior to Landlord's
commencement of repair of the damage. In the event that Landlord does not
deliver the Landlord Repair Notice within forty-five (45) days following the
date the casualty becomes known to Landlord, Tenant shall, at its sole cost and
expense, repair any injury or damage to the Tenant Improvements and the Original
Improvements installed in the Premises and shall return such Tenant Improvements
and Original Improvements to their original condition. Whether or not Landlord
delivers a Landlord Repair Notice, prior to the commencement of construction,
Tenant shall submit to Landlord, for Landlord's review and approval, all plans,
specifications and working drawings relating thereto, and Landlord shall select
the contractors to perform such improvement work. Landlord shall not be liable
for any inconvenience or annoyance to Tenant or its visitors, or injury to
Tenant's business resulting in any way from such damage or the repair thereof;
provided however, that if such fire or other casualty shall have damaged the
Premises or Common Areas necessary to Tenant's occupancy, Landlord shall allow
Tenant a proportionate abatement of Rent to the extent Landlord is reimbursed
from the proceeds of rental interruption insurance purchased by Landlord as part
of Operating Expenses, during the time and to the extent the Premises are unfit
for occupancy for the purposes permitted under this Lease, and not occupied by
Tenant as a result thereof; provided, further, however, that if the damage or
destruction is due to the negligence or wilful misconduct of Tenant or any of
its agents, employees, contractors, invitees or guests, Tenant shall be
responsible for any reasonable, applicable insurance deductible (which shall be
payable to Landlord upon demand) and there shall be no rent abatement. In the
event that Landlord shall not deliver the Landlord Repair Notice, Tenant's right
to rent abatement pursuant to the preceding sentence shall terminate as of the
date which is reasonably determined by Landlord to be the date Tenant should
have completed repairs to the Premises assuming Tenant used reasonable due
diligence in connection therewith.
11.2 LANDLORD'S OPTION TO REPAIR. Notwithstanding the terms of Section 11.1
of this Lease, Landlord may elect not to rebuild and/or restore the Premises,
Building and/or Project, and instead terminate this Lease, by notifying Tenant
in writing of such termination within forty-five (45) days after the date of
discovery of the damage, such notice to include a termination date giving Tenant
sixty (60) days to vacate the Premises, but Landlord may so elect only if the
Building or Project shall be damaged by fire or other casualty or cause, whether
or not the Premises are affected, and one or more of the following conditions is
present: (i) in Landlord's reasonable judgment, repairs cannot reasonably be
completed within ninety (90) days after the date of discovery of the damage
(when such repairs are made without the payment of overtime or other premiums);
(ii) the holder of any mortgage on the Building or Project or ground lessor with
respect to the Building or Project shall require that the insurance proceeds or
any portion thereof be used to retire the mortgage debt, or shall terminate the
ground lease, as the case may be; (iii) the damage is not fully covered by
Landlord's insurance policies; (iv) Landlord decides to rebuild the Building or
Common Areas so that they will be substantially different structurally or
architecturally; or (v) the damage occurs during the last twelve (12) months of
the Lease Term.
11.3 WAIVER OF STATUTORY PROVISIONS. The provisions of this Lease,
including this Article 11, constitute an express agreement between Landlord and
Tenant with respect to any and all damage to, or destruction of, all or any part
of the Premises, the Building or the Project, and any statute or regulation of
the State of California, including, without limitation, Sections 1932(2) and
1933(4) of the California Civil Code, with respect to any rights or obligations
concerning damage or destruction in the absence of an express agreement between
the parties, and any other statute or regulation, now or hereafter in effect,
shall have no application to this Lease or any damage or destruction to all or
any part of the Premises, the Building or the Project.
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ARTICLE 12
NONWAIVER
No provision of this Lease shall be deemed waived by either party hereto
unless expressly waived in a writing signed thereby. The waiver by either party
hereto of any breach of any term, covenant or condition herein contained shall
not be deemed to be a waiver of any subsequent breach of same or any other term,
covenant or condition herein contained. The subsequent acceptance of Rent
hereunder by Landlord shall not be deemed to be a waiver of any preceding breach
by Tenant of any term, covenant or condition of this Lease, other than the
failure of Tenant to pay the particular Rent so accepted, regardless of
Landlord's knowledge of such preceding breach at the time of acceptance of such
Rent. No acceptance of a lesser amount than the Rent herein stipulated shall be
deemed a waiver of Landlord's right to receive the full amount due, nor shall
any endorsement or statement on any check or payment or any letter accompanying
such check or payment be deemed an accord and satisfaction, and Landlord may
accept such check or payment without prejudice to Landlord's right to recover
the full amount due. No receipt of monies by Landlord from Tenant after the
termination of this Lease shall in any way alter the length of the Lease Term or
of Tenant's right of possession hereunder, or after the giving of any notice
shall reinstate, continue or extend the Lease Term or affect any notice given
Tenant prior to the receipt of such monies, it being agreed that after the
service of notice or the commencement of a suit, or after final judgment for
possession of the Premises, Landlord may receive and collect any Rent due, and
the payment of said Rent shall not waive or affect said notice, suit or
judgment.
ARTICLE 13
CONDEMNATION
If the whole or any part of the Premises, Building or Project shall be
taken by power of eminent domain or condemned by any competent authority for any
public or quasi-public use or purpose, or if any adjacent property or street
shall be so taken or condemned, or reconfigured or vacated by such authority in
such manner as to require the use, reconstruction or remodeling of any part of
the Premises, Building or Project, or if Landlord shall grant a deed or other
instrument in lieu of such taking by eminent domain or condemnation, Landlord
shall have the option to terminate this Lease effective as of the date
possession is required to be surrendered to the authority. If more than
twenty-five percent (25%) of the rentable square feet of the Premises is taken,
or if access to the Premises is substantially impaired, in each case for a
period in excess of one hundred eighty (180) days, Tenant shall have the option
to terminate this Lease effective as of the date possession is required to be
surrendered to the authority. Tenant shall not because of such taking assert any
claim against Landlord or the authority for any compensation because of such
taking and Landlord shall be entitled to the entire award or payment in
connection therewith, except that Tenant shall have the right to file any
separate claim available to Tenant for any taking of Tenant's personal property
and fixtures belonging to Tenant and removable by Tenant upon expiration of the
Lease Term pursuant to the terms of this Lease, and for moving expenses, so long
as such claims do not diminish the award available to Landlord, its ground
lessor with respect to the Building or Project or its mortgagee, and such claim
is payable separately to Tenant. All Rent shall be apportioned as of the date of
such termination. If any part of the Premises shall be taken, and this Lease
shall not be so terminated, the Rent shall be proportionately abated. Tenant
hereby waives any and all rights it might otherwise have pursuant to Section
1265.130 of The California Code of Civil Procedure. Notwithstanding anything to
the contrary contained in this Article 13, in the event of a temporary taking of
all or any portion of the Premises for a period of one hundred and eighty (180)
days or less, then this Lease shall not terminate but the Base Rent and the
Additional Rent shall be abated for the period of such taking in proportion to
the ratio that the amount of rentable square feet of the Premises taken bears to
the total rentable square feet of the Premises. Landlord shall be entitled to
receive the entire award made in connection with any such temporary taking.
ARTICLE 14
ASSIGNMENT AND SUBLETTING
14.1 TRANSFERS. Tenant shall not, without the prior written consent of
Landlord, assign, mortgage, pledge, hypothecate, encumber, or permit any lien to
attach to, or otherwise
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transfer, this Lease or any interest hereunder, permit any assignment, or other
transfer of this Lease or any interest hereunder by operation of law, sublet the
Premises or any part thereof, or enter into any license or concession agreements
or otherwise permit the occupancy or use of the Premises or any part thereof by
any persons other than Tenant and its employees and contractors (all of the
foregoing are hereinafter sometimes referred to collectively as "Transfers" and
any person to whom any Transfer is made or sought to be made is hereinafter
sometimes referred to as a "Transferee"). If Tenant desires Landlord's consent
to any Transfer, Tenant shall notify Landlord in writing, which notice (the
"Transfer Notice") shall include (i) the proposed effective date of the
Transfer, which shall not be less than thirty (30) days nor more than one
hundred eighty (180) days after the date of delivery of the Transfer Notice,
(ii) a description of the portion of the Premises to be transferred (the
"Subject Space"), (iii) all of the terms of the proposed Transfer and the
consideration therefor, including calculation of the "Transfer Premium", as that
term is defined in Section 14.3 below, in connection with such Transfer, the
name and address of the proposed Transferee, and a copy of all existing executed
and/or proposed documentation pertaining to the proposed Transfer, including all
existing operative documents to be executed to evidence such Transfer or the
agreements incidental or related to such Transfer, provided that Landlord shall
have the right to require Tenant to utilize Landlord's standard Transfer
documents in connection with the documentation of such Transfer, (iv) current
financial statements of the proposed Transferee certified by an officer, partner
or owner thereof, business credit and personal references and history of the
proposed Transferee and any other information required by Landlord which will
enable Landlord to determine the financial responsibility, character, and
reputation of the proposed Transferee, nature of such Transferee's business and
proposed use of the Subject Space and (v) an executed estoppel certificate from
Tenant in the form attached hereto as Exhibit E. Any Transfer made without
Landlord's prior written consent shall, at Landlord's option, be null, void and
of no effect, and shall, at Landlord's option, constitute a default by Tenant
under this Lease. Whether or not Landlord consents to any proposed Transfer,
Tenant shall pay Landlord's review and processing fees, as well as any
reasonable professional fees (including, without limitation, attorneys',
accountants', architects', engineers' and consultants' fees) incurred by
Landlord, within thirty (30) days after written request by Landlord.
14.2 LANDLORD'S CONSENT. Landlord shall not unreasonably withhold its
consent to any proposed Transfer of the Subject Space to the Transferee on the
terms specified in the Transfer Notice. Without limitation as to other
reasonable grounds for withholding consent, the parties hereby agree that it
shall be reasonable under this Lease and under any applicable law for Landlord
to withhold consent to any proposed Transfer where one or more of the following
apply:
14.2.1 The Transferee is of a character or reputation or engaged in a
business which is not consistent with the quality of the Building or the
Project, or would be a significantly less prestigious occupant of the Building
than Tenant;
14.2.2 The Transferee intends to use the Subject Space for purposes
which are not permitted under this Lease;
14.2.3 The Transferee is either a governmental agency or
instrumentality thereof;
14.2.4 Intentionally Omitted.
14.2.5 The Transferee is not a party of reasonable financial worth
and/or financial stability in light of the responsibilities to be undertaken in
connection with the Transfer on the date consent is requested;
14.2.6 The proposed Transfer would cause a violation of another lease
for space in the Project, or would give an occupant of the Project a right to
cancel its lease; or
14.2.7 Either the proposed Transferee, or any person or entity which
directly or indirectly, controls, is controlled by, or is under common control
with, the proposed Transferee, (i) occupies space in the Project at the time of
the request for consent, or (ii) is negotiating with Landlord to lease space in
the Project at such time, or (iii) has negotiated with Landlord during the
twelve (12)-month period immediately preceding the Transfer Notice.
If Landlord consents to any Transfer pursuant to the terms of this Section
14.2 (and does not exercise any recapture rights Landlord may have under Section
14.4 of this Lease), Tenant
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may within six (6) months after Landlord's consent, but not later than the
expiration of said six-month period, enter into such Transfer of the Premises or
portion thereof, upon substantially the same terms and conditions as are set
forth in the Transfer Notice furnished by Tenant to Landlord pursuant to Section
14.1 of this Lease, provided that if there are any changes in the terms and
conditions from those specified in the Transfer Notice (i) such that Landlord
would initially have been entitled to refuse its consent to such Transfer under
this Section 14.2, or (ii) which would cause the proposed Transfer to be more
favorable to the Transferee than the terms set forth in Tenant's original
Transfer Notice, Tenant shall again submit the Transfer to Landlord for its
approval and other action under this Article 14 (including Landlord's right of
recapture, if any, under Section 14.4 of this Lease). Notwithstanding anything
to the contrary in this Lease, if Tenant or any proposed Transferee claims that
Landlord has unreasonably withheld or delayed its consent under Section 14.2 or
otherwise has breached or acted unreasonably under this Article 14, their sole
remedies shall be a declaratory judgment and an injunction for the relief sought
without any monetary damages, and Tenant hereby waives all other remedies,
including, without limitation, any right at law or equity to terminate this
Lease, on its own behalf and, to the extent permitted under all applicable laws,
on behalf of the proposed Transferee. Tenant shall indemnify, defend and hold
harmless Landlord from any and all liability, losses, claims, damages, costs,
expenses, causes of action and proceedings involving any third party or parties
(including without limitation Tenant's proposed subtenant or assignee) who claim
they were damaged by Landlord's wrongful withholding or conditioning of
Landlord's consent.
14.3 TRANSFER PREMIUM. If Landlord consents to a Transfer, as a condition
thereto which the parties hereby agree is reasonable, Tenant shall pay to
Landlord fifty percent (50%) of any "Transfer Premium," as that term is defined
in this Section 14.3, received by Tenant from such Transferee. "Transfer
Premium" shall mean all rent, additional rent or other consideration payable by
such Transferee in connection with the Transfer in excess of the Rent and
Additional Rent payable by Tenant under this Lease during the term of the
Transfer on a per rentable square foot basis if less than all of the Premises is
transferred, after deducting the reasonable expenses incurred by Tenant for (i)
any changes, alterations and improvements to the Premises in connection with the
Transfer, (ii) any free base rent reasonably provided to the Transferee, and
(iii) any brokerage commissions in connection with the Transfer. "Transfer
Premium" shall also include, but not be limited to, key money, bonus money or
other cash consideration paid by Transferee to Tenant in connection with such
Transfer, and any payment in excess of fair market value for services rendered
by Tenant to Transferee or for assets, fixtures, inventory, equipment, or
furniture transferred by Tenant to Transferee in connection with such Transfer.
In the calculations of the Rent (as it relates to the Transfer Premium
calculated under this Section 14.3), the Rent paid during each annual period for
the Subject Space shall be computed after adjusting such rent to the actual
effective rent to be paid, taking into consideration any and all leasehold
concessions granted in connection therewith, including, but not limited to, any
rent credit and tenant improvement allowance. For purposes of calculating any
such effective rent all such concessions shall be amortized on a straight-line
basis over the relevant term.
14.4 LANDLORD'S OPTION AS TO SUBJECT SPACE. Notwithstanding anything to the
contrary contained in this Article 14, Landlord shall have the option, by giving
written notice to Tenant within thirty (30) days after receipt of any Transfer
Notice, to recapture the Subject Space. Such recapture notice shall cancel and
terminate this Lease with respect to the Subject Space as of the date stated in
the Transfer Notice as the effective date of the proposed Transfer until the
last day of the term of the Transfer as set forth in the Transfer Notice (or at
Landlord's option, shall cause the Transfer to be made to Landlord or its agent,
in which case the parties shall execute the Transfer documentation promptly
thereafter). In the event of a recapture by Landlord, if this Lease shall be
canceled with respect to less than the entire Premises, the Rent reserved herein
shall be prorated on the basis of the number of rentable square feet retained by
Tenant in proportion to the number of rentable square feet contained in the
Premises, and this Lease as so amended shall continue thereafter in full force
and effect, and upon request of either party, the parties shall execute written
confirmation of the same. If Landlord declines, or fails to elect in a timely
manner to recapture the Subject Space under this Section 14.4, then, provided
Landlord has consented to the proposed Transfer, Tenant shall be entitled to
proceed to transfer the Subject Space to the proposed Transferee, subject to
provisions of this Article 14.
14.5 EFFECT OF TRANSFER. If Landlord consents to a Transfer, (i) the terms
and conditions of this Lease shall in no way be deemed to have been waived or
modified, (ii) such consent shall not be deemed consent to any further Transfer
by either Tenant or a Transferee, (iii) Tenant shall deliver to Landlord,
promptly after execution, an original executed copy of all
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documentation pertaining to the Transfer in form reasonably acceptable to
Landlord, (iv) Tenant shall furnish upon Landlord's request a complete
statement, certified by an independent certified public accountant, or Tenant's
chief financial officer, setting forth in detail the computation of any Transfer
Premium Tenant has derived and shall derive from such Transfer, and (v) no
Transfer relating to this Lease or agreement entered into with respect thereto,
whether with or without Landlord's consent, shall relieve Tenant or any
guarantor of the Lease from any liability under this Lease, including, without
limitation, in connection with the Subject Space. Landlord or its authorized
representatives shall have the right at all reasonable times to audit the books,
records and papers of Tenant relating to any Transfer, and shall have the right
to make copies thereof. If the Transfer Premium respecting any Transfer shall be
found understated, Tenant shall, within thirty (30) days after demand, pay the
deficiency, and if understated by more than two percent (2%), Tenant shall pay
Landlord's costs of such audit.
14.6 ADDITIONAL TRANSFERS. For purposes of this Lease, the term "Transfer"
shall also include (i) if Tenant is a partnership, the withdrawal or change,
voluntary, involuntary or by operation of law, of fifty percent (50%) or more of
the partners, or transfer of fifty percent (50%) or more of partnership
interests, within a twelve (12)-month period, or the dissolution of the
partnership without immediate reconstitution thereof, and (ii) if Tenant is a
closely held corporation (i.e., whose stock is not publicly held and not traded
through an exchange or over the counter), (A) the dissolution, merger,
consolidation or other reorganization of Tenant or (B) the sale or other
transfer of an aggregate of fifty percent (50%) or more of the voting shares of
Tenant (other than to immediate family members by reason of gift or death),
within a twelve (12)-month period, or (C) the sale, mortgage, hypothecation or
pledge of an aggregate of fifty percent (50%) or more of the value of the
unencumbered assets of Tenant within a twelve (12)-month period.
14.7 OCCURRENCE OF DEFAULT. Any Transfer hereunder shall be subordinate and
subject to the provisions of this Lease, and if this Lease shall be terminated
during the term of any Transfer, Landlord shall have the right to: (i) treat
such Transfer as cancelled and repossess the Subject Space by any lawful means,
or (ii) require that such Transferee attorn to and recognize Landlord as its
landlord under any such Transfer. If Tenant shall be in default under this
Lease, Landlord is hereby irrevocably authorized, as Tenant's agent and
attorney-in-fact, to direct any Transferee to make all payments under or in
connection with the Transfer directly to Landlord (which Landlord shall apply
towards Tenant's obligations under this Lease) until such default is cured. Such
Transferee shall rely on any representation by Landlord that Tenant is in
default hereunder, without any need for confirmation thereof by Tenant. Upon any
assignment, the assignee shall assume in writing all obligations and covenants
of Tenant thereafter to be performed or observed under this Lease. No collection
or acceptance of rent by Landlord from any Transferee shall be deemed a waiver
of any provision of this Article 14 or the approval of any Transferee or a
release of Tenant from any obligation under this Lease, whether theretofore or
thereafter accruing. In no event shall Landlord's enforcement of any provision
of this Lease against any Transferee be deemed a waiver of Landlord's right to
enforce any term of this Lease against Tenant or any other person. If Tenant's
obligations hereunder have been guaranteed, Landlord's consent to any Transfer
shall not be effective unless the guarantor also consents to such Transfer.
14.8 NON-TRANSFERS. Notwithstanding anything to the contrary contained in
this Article 14, an assignment or subletting of all or a portion of the Premises
to an affiliate of Tenant (an entity which is controlled by, controls, or is
under common control with, Tenant), shall not be deemed a Transfer under this
Article 14, provided that Tenant notifies Landlord of any such assignment or
sublease and promptly supplies Landlord with any documents or information
requested by Landlord regarding such assignment or sublease or such affiliate,
and further provided that such assignment or sublease is not a subterfuge by
Tenant to avoid its obligations under this Lease. "CONTROL," as used in this
Section 14.8, shall mean the ownership, directly or indirectly, of at least
fifty-one percent (51%) of the voting securities of, or possession of the right
to vote, in the ordinary direction of its affairs, of at least fifty-one percent
(51%) of the voting interest in, any person or entity.
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ARTICLE 15
SURRENDER OF PREMISES; OWNERSHIP AND
REMOVAL OF TRADE FIXTURES
15.1 SURRENDER OF PREMISES. No act or thing done by Landlord or any agent
or employee of Landlord during the Lease Term shall be deemed to constitute an
acceptance by Landlord of a surrender of the Premises unless such intent is
specifically acknowledged in writing by Landlord. The delivery of keys to the
Premises to Landlord or any agent or employee of Landlord shall not constitute a
surrender of the Premises or effect a termination of this Lease, whether or not
the keys are thereafter retained by Landlord, and notwithstanding such delivery
Tenant shall be entitled to the return of such keys at any reasonable time upon
request until this Lease shall have been properly terminated. The voluntary or
other surrender of this Lease by Tenant, whether accepted by Landlord or not, or
a mutual termination hereof, shall not work a merger, and at the option of
Landlord shall operate as an assignment to Landlord of all subleases or
subtenancies affecting the Premises or terminate any or all such sublessees or
subtenancies.
15.2 REMOVAL OF TENANT PROPERTY BY TENANT. Upon the expiration of the Lease
Term, or upon any earlier termination of this Lease, Tenant shall, subject to
the provisions of this Article 15, quit and surrender possession of the Premises
to Landlord in as good order and condition as when Tenant took possession and as
thereafter improved by Landlord and/or Tenant, reasonable wear and tear and
repairs which are specifically made the responsibility of Landlord hereunder
excepted. Upon such expiration or termination, Tenant shall, without expense to
Landlord, remove or cause to be removed from the Premises all debris and
rubbish, and such items of furniture, equipment, business and trade fixtures,
free-standing cabinet work, movable partitions and other articles of personal
property owned by Tenant or installed or placed by Tenant at its expense in the
Premises, and such similar articles of any other persons claiming under Tenant,
as Landlord may, in its sole discretion, require to be removed, and Tenant shall
repair at its own expense all damage to the Premises and Building resulting from
such removal.
ARTICLE 16
HOLDING OVER
If Tenant holds over after the expiration of the Lease Term or earlier
termination thereof, with or without the express or implied consent of Landlord,
such tenancy shall be from month-to-month only, and shall not constitute a
renewal hereof or an extension for any further term, and in such case Rent shall
be payable at a monthly rate equal to one hundred fifty percent (150%) of the
Rent applicable during the last rental period of the Lease Term under this
Lease. Such month-to-month tenancy shall be subject to every other applicable
term, covenant and agreement contained herein. Nothing contained in this Article
16 shall be construed as consent by Landlord to any holding over by Tenant, and
Landlord expressly reserves the right to require Tenant to surrender possession
of the Premises to Landlord as provided in this Lease upon the expiration or
other termination of this Lease. The provisions of this Article 16 shall not be
deemed to limit or constitute a waiver of any other rights or remedies of
Landlord provided herein or at law. If Tenant fails to surrender the Premises
upon the termination or expiration of this Lease, in addition to any other
liabilities to Landlord accruing therefrom, Tenant shall protect, defend,
indemnify and hold Landlord harmless from all loss, costs (including reasonable
attorneys' fees) and liability resulting from such failure, including, without
limiting the generality of the foregoing, any claims made by any succeeding
tenant founded upon such failure to surrender and any lost profits to Landlord
resulting therefrom.
ARTICLE 17
ESTOPPEL CERTIFICATES
Within ten (10) days following a request in writing by Landlord, Tenant
shall execute, acknowledge and deliver to Landlord an estoppel certificate,
which, as submitted by Landlord, shall be substantially in the form of Exhibit
E, attached hereto (or such other form as may be required by any prospective
mortgagee or purchaser of the Project, or any portion thereof), indicating
therein any exceptions thereto that may exist at that time, and shall also
contain any other information reasonably requested by Landlord or Landlord's
mortgagee or prospective mortgagee. Any such certificate may be relied upon by
any prospective mortgagee or purchaser
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of all or any portion of the Project. Tenant shall execute and deliver whatever
other instruments may be reasonably required for such purposes. At any time
during the Lease Term, Landlord may require Tenant to provide Landlord with a
current financial statement and financial statements of the two (2) years prior
to the current financial statement year. Such statements shall be prepared in
accordance with generally accepted accounting principles and, if such is the
normal practice of Tenant, shall be audited by an independent certified public
accountant. Failure of Tenant to timely execute, acknowledge and deliver such
estoppel certificate or other instruments shall constitute an acceptance of the
Premises and an acknowledgment by Tenant that statements included in the
estoppel certificate are true and correct, without exception.
ARTICLE 18
SUBORDINATION
This Lease shall be subject and subordinate to all present and future
ground or underlying leases of the Building or Project and to the lien of any
mortgage, trust deed or other encumbrances now or hereafter in force against the
Building or Project or any part thereof, if any, and to all renewals,
extensions, modifications, consolidations and replacements thereof, and to all
advances made or hereafter to be made upon the security of such mortgages or
trust deeds, unless the holders of such mortgages, trust deeds or other
encumbrances, or the lessors under such ground lease or underlying leases,
require in writing that this Lease be superior thereto. Upon request from
Tenant, Landlord shall use commercially reasonable efforts to obtain a
commercially reasonable nondisturbance agreement executed by the landlord under
any future ground or underlying lease of the Building or the Project or by the
holder or any future mortgage or trust deed encumbering the Building or Project,
as applicable. Tenant covenants and agrees in the event any proceedings are
brought for the foreclosure of any such mortgage or deed in lieu thereof (or if
any ground lease is terminated), to attorn, without any deductions or set-offs
whatsoever, to the lienholder or purchaser or any successors thereto upon any
such foreclosure sale or deed in lieu thereof (or to the ground lessor), if so
requested to do so by such purchaser or lienholder or ground lessor, and to
recognize such purchaser or lienholder or ground lessor as the lessor under this
Lease, provided such lienholder or purchaser or ground lessor shall agree to
accept this Lease and not disturb Tenant's occupancy, so long as Tenant timely
pays the rent and observes and performs the terms, covenants and conditions of
this Lease to be observed and performed by Tenant. Landlord's interest herein
may be assigned as security at any time to any lienholder. Tenant shall, within
five (5) days of request by Landlord, execute such further instruments or
assurances as Landlord may reasonably deem necessary to evidence or confirm the
subordination or superiority of this Lease to any such mortgages, trust deeds,
ground leases or underlying leases. Tenant waives the provisions of any current
or future statute, rule or law which may give or purport to give Tenant any
right or election to terminate or otherwise adversely affect this Lease and the
obligations of the Tenant hereunder in the event of any foreclosure proceeding
or sale.
ARTICLE 19
DEFAULTS; REMEDIES
19.1 EVENTS OF DEFAULT. The occurrence of any of the following shall
constitute a default of this Lease by Tenant:
19.1.1 Any failure by Tenant to pay any Rent or any other charge
required to be paid under this Lease, or any part thereof, when due unless such
failure is cured within five (5) business days after notice; or
19.1.2 Except where a specific time period is otherwise set forth for
Tenant's performance in this Lease, in which event the failure to perform by
Tenant within such time period shall be a default by Tenant under this Section
19.1.2, any failure by Tenant to observe or perform any other provision,
covenant or condition of this Lease to be observed or performed by Tenant where
such failure continues for thirty (30) days after written notice thereof from
Landlord to Tenant; provided that if the nature of such default is such that the
same cannot reasonably be cured within a thirty (30) day period, Tenant shall
not be deemed to be in default if it diligently commences such cure within such
period and thereafter diligently proceeds to rectify and cure such default; or
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19.1.3 Abandonment or vacation of all or a substantial portion of the
Premises by Tenant; or
19.1.4 The failure by Tenant to observe or perform according to the
provisions of Articles 5, 14, 17 or 18 of this Lease where such failure
continues for more than two (2) business days after notice from Landlord; or
19.1.5 Tenant's failure to occupy the Premises within ten (10)
business days after the Lease Commencement Date.
The notice periods provided herein are in lieu of, and not in addition to,
any notice periods provided by law.
19.2 REMEDIES UPON DEFAULT. Upon the occurrence of any event of default by
Tenant, Landlord shall have, in addition to any other remedies available to
Landlord at law or in equity (all of which remedies shall be distinct, separate
and cumulative), the option to pursue any one or more of the following remedies,
each and all of which shall be cumulative and nonexclusive, without any notice
or demand whatsoever.
19.2.1 Terminate this Lease, in which event Tenant shall immediately
surrender the Premises to Landlord, and if Tenant fails to do so, Landlord may,
without prejudice to any other remedy which it may have for possession or
arrearages in rent, enter upon and take possession of the Premises and expel or
remove Tenant and any other person who may be occupying the Premises or any part
thereof, without being liable for prosecution or any claim or damages therefor;
and Landlord may recover from Tenant the following:
(i) The worth at the time of any unpaid rent which has been
earned at the time of such termination; plus
(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 Tenant
proves could have been reasonably avoided; plus
(iii) The worth at the time of award of the amount by which the
unpaid rent for the balance of the Lease Term after the time of award
exceeds the amount of such rental loss that Tenant proves could have
been reasonably avoided; plus
(iv) Any other amount necessary to compensate Landlord for all
the detriment proximately caused by Tenant's failure to perform its
obligations under this Lease or which in the ordinary course of things
would be likely to result therefrom, specifically including but not
limited to, brokerage commissions and advertising expenses incurred,
expenses of remodeling the Premises or any portion thereof for a new
tenant, whether for the same or a different use, and any special
concessions made to obtain a new tenant; and
(v) At Landlord's election, such other amounts in addition to or
in lieu of the foregoing as may be permitted from time to time by
applicable law.
The term "rent" as used in this Section 19.2 shall be deemed to be and to
mean all sums of every nature required to be paid by Tenant pursuant to the
terms of this Lease, whether to Landlord or to others. As used in Paragraphs
19.2.1(i) and (ii), above, the "worth at the time of award" shall be computed by
allowing interest at the rate set forth in Article 25 of this Lease, but in no
case greater than the maximum amount of such interest permitted by law. As used
in Paragraph 19.2.1(iii) above, the "worth at the time of award" shall be
computed by discounting such amount at the discount rate of the Federal Reserve
Bank of San Francisco at the time of award plus one percent (1%).
19.2.2 Landlord shall have the remedy described in California Civil
Code Section 1951.4 (lessor may continue lease in effect after lessee's breach
and abandonment and recover rent as it becomes due, if lessee has the right to
sublet or assign, subject only to reasonable limitations). Accordingly, if
Landlord does not elect to terminate this Lease on account of any default by
Tenant, Landlord may, from time to time, without terminating this Lease, enforce
all of its rights and remedies under this Lease, including the right to recover
all rent as it becomes due.
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19.2.3 Landlord shall at all times have the rights and remedies (which
shall be cumulative with each other and cumulative and in addition to those
rights and remedies available under Sections 19.2.1 and 19.2.2, above, or any
law or other provision of this Lease), without prior demand or notice except as
required by applicable law, to seek any declaratory, injunctive or other
equitable relief, and specifically enforce this Lease, or restrain or enjoin a
violation or breach of any provision hereof.
19.3 SUBLEASES OF TENANT. Whether or not Landlord elects to terminate this
Lease on account of any default by Tenant, as set forth in this Article 19,
Landlord shall have the right to terminate any and all subleases, licenses,
concessions or other consensual arrangements for possession entered into by
Tenant and affecting the Premises or may, in Landlord's sole discretion, succeed
to Tenant's interest in such subleases, licenses, concessions or arrangements.
In the event of Landlord's election to succeed to Tenant's interest in any such
subleases, licenses, concessions or arrangements, Tenant shall, as of the date
of notice by Landlord of such election, have no further right to or interest in
the rent or other consideration receivable thereunder.
19.4 EFFORTS TO RELET. No re-entry or repossession, repairs, maintenance,
changes, alterations and additions, reletting, appointment of a receiver to
protect Landlord's interests hereunder, or any other action or omission by
Landlord shall be construed as an election by Landlord to terminate this Lease
or Tenant's right to possession, or to accept a surrender of the Premises, nor
shall same operate to release Tenant in whole or in part from any of Tenant's
obligations hereunder, unless express written notice of such intention is sent
by Landlord to Tenant. Tenant hereby irrevocably waives any right otherwise
available under any law to redeem or reinstate this Lease.
19.5 LANDLORD DEFAULT.
19.5.1 GENERAL. Notwithstanding anything to the contrary set forth in
this Lease, Landlord shall not be in default in the performance of any
obligation required to be performed by Landlord pursuant to this Lease unless
Landlord fails to perform such obligation within thirty (30) days after the
receipt of notice from Tenant specifying in detail Landlord's failure to
perform; provided, however, if the nature of Landlord's obligation is such that
more than thirty (30) days are required for its performance, then Landlord shall
not be in default under this Lease if it shall commence such performance within
such thirty (30) day period and thereafter diligently pursue the same to
completion. Upon any such default by Landlord under this Lease, Tenant may,
except as otherwise specifically provided in this Lease to the contrary,
exercise any of its rights provided at law or in equity.
19.5.2 ABATEMENT OF RENT. In the event that Tenant is prevented from
using, and does not use, the Premises or any portion thereof, as a result of (i)
any repair, maintenance or alteration performed by Landlord, or which Landlord
failed to perform, after the Lease Commencement Date and required by the Lease,
which substantially interferes with Tenant's use of the Premises, or (ii) any
failure to provide services, utilities or access to the Premises as required by
this Lease (either such set of circumstances as set forth in items (i) or (ii),
above, to be known as an "Abatement Event"), then Tenant shall give Landlord
notice of such Abatement Event, and if such Abatement Event continues for five
(5) consecutive business days after Landlord's receipt of any such notice (the
"Eligibility Period"), then the Base Rent and Tenant's Share of Direct Expenses
shall be abated or reduced, as the case may be, after expiration of the
Eligibility Period for such time that Tenant continues to be so prevented from
using, and does not use, the Premises or a portion thereof, in the proportion
that the rentable area of the portion of the Premises that Tenant is prevented
from using, and does not use, bears to the total rentable area of the Premises;
provided, however, in the event that Tenant is prevented from using, and does
not use, a portion of the Premises for a period of time in excess of the
Eligibility Period and the remaining portion of the Premises is not sufficient
to allow Tenant to effectively conduct its business therein, and if Tenant does
not conduct its business from such remaining portion, then for such time after
expiration of the Eligibility Period during which Tenant is so prevented from
effectively conducting its business therein, the Base Rent and Tenant's Share of
Direct Expenses for the entire Premises shall be abated for such time as Tenant
continues to be so prevented from using, and does not use, the Premises. If,
however, Tenant reoccupies any portion of the Premises during such period, the
Rent allocable to such reoccupied portion, based on the proportion that the
rentable area of such reoccupied portion of the Premises bears to the total
rentable area of the Premises, shall be payable by Tenant from the date Tenant
reoccupies such portion of the Premises. Such right to abate Base Rent and
Tenant's Share of Direct Expenses
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shall be Tenant's sole and exclusive remedy at law or in equity for an Abatement
Event. Except as provided in this Section 19.5.2, nothing contained herein shall
be interpreted to mean that Tenant is excused from paying Rent due hereunder.
ARTICLE 20
COVENANT OF QUIET ENJOYMENT
Landlord covenants that Tenant, on paying the Rent, charges for services
and other payments herein reserved and on keeping, observing and performing all
the other terms, covenants, conditions, provisions and agreements herein
contained on the part of Tenant to be kept, observed and performed, shall,
during the Lease Term, peaceably and quietly have, hold and enjoy the Premises
subject to the terms, covenants, conditions, provisions and agreements hereof
without interference by any persons lawfully claiming by or through Landlord.
The foregoing covenant is in lieu of any other covenant express or implied.
ARTICLE 21
SECURITY DEPOSIT
Concurrent with Tenant's execution of this Lease, Tenant shall deposit with
Landlord a security deposit (the "Security Deposit") in the amount set forth in
Section 8 of the Summary, as security for the faithful performance by Tenant of
all of its obligations under this Lease. If Tenant defaults with respect to any
provisions of this Lease, including, but not limited to, the provisions relating
to the payment of Rent, the removal of property and the repair of resultant
damage, Landlord may, without notice to Tenant, but shall not be required to
apply all or any part of the Security Deposit for the payment of any Rent or any
other sum in default and Tenant shall, upon demand therefor, restore the
Security Deposit to its original amount. Any unapplied portion of the Security
Deposit shall be returned to Tenant, or, at Landlord's option, to the last
assignee of Tenant's interest hereunder, within sixty (60) days following the
expiration of the Lease Term. Tenant shall not be entitled to any interest on
the Security Deposit. Tenant hereby waives the provisions of Section 1950.7 of
the California Civil Code, or any successor statute.
ARTICLE 22
SUBSTITUTION OF OTHER PREMISES
Landlord shall have the right to move Tenant to other space in the Project
comparable to the Premises, and all terms hereof shall apply to the new space
with equal force. In such event, Landlord shall give Tenant prior notice, shall
provide Tenant, at Landlord's sole cost and expense, with tenant improvements at
least equal in quality to those in the Premises and shall move Tenant's effects
to the new space at Landlord's sole cost and expense at such time and in such
manner as to inconvenience Tenant as little as reasonably practicable.
Simultaneously with such relocation of the Premises, the parties shall
immediately execute an amendment to this Lease stating the relocation of the
Premises.
ARTICLE 23
SIGNS
23.1 FULL FLOORS. Subject to Landlord's prior written approval, in its sole
discretion, and provided all signs are in keeping with the quality, design and
style of the Building and Project, Tenant, if the Premises comprise an entire
floor of the Building, at its sole cost and expense, may install identification
signage anywhere in the Premises including in the elevator lobby of the
Premises, provided that such signs must not be visible from the exterior of the
Building.
23.2 MULTI-TENANT FLOORS. If other tenants occupy space on the floor on
which the Premises is located, Tenant's identifying signage shall be provided by
Landlord, at Tenant's cost, and such signage shall be comparable to that used by
Landlord for other similar floors in the Building and shall comply with
Landlord's Building standard signage program.
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23.3 PROHIBITED SIGNAGE AND OTHER ITEMS. Any signs, notices, logos,
pictures, names or advertisements which are installed and that have not been
separately approved by Landlord may be removed without notice by Landlord at the
sole expense of Tenant. Tenant may not install any signs on the exterior or roof
of the Project or the Common Areas. Any signs, window coverings, or blinds (even
if the same are located behind the Landlord-approved window coverings for the
Building), or other items visible from the exterior of the Premises or Building,
shall be subject to the prior approval of Landlord, in its sole discretion.
23.4 TENANT'S SIGNAGE. Notwithstanding any provisions to the contrary
contained in this Article 23, Landlord hereby grants to the Original Tenant the
right to install one (1) sign on the exterior of the Building in accordance with
the terms of this Section 23.4 ("Tenant's Sign"). Tenant's Sign shall be subject
to all applicable governmental laws, rules, regulations, codes and approvals.
Tenant's Sign shall be in the approximate location set forth on Exhibit F,
attached hereto. The exact location of Tenant's Sign shall be designated by
Landlord. The exact size, design, specifications, graphics, materials and colors
of Tenant's Sign shall be subject to Landlord's approval in its reasonable
discretion, provided that Tenant's Sign shall (i) be materially consistent with
the existing signage in favor of United Paramount Network which is located on
the Adjacent Building, and (ii) be consistent with the exterior design,
materials and appearance of the Building and the signage program of the Project.
Tenant shall be responsible for all costs and expenses incurred in connection
with the design, construction, installation, repair, operation, maintenance, and
compliance with laws of Tenant's Sign. Tenant's signage rights set forth in this
Section 23.4 shall be personal to the Original Tenant and may not be assigned to
any assignee or sublessee or any other person or entity. In addition, Tenant's
signage rights set forth in this Section 23.4 shall terminate at any time during
the Lease Term during which the Original Tenant fails to physically occupy the
entire Premises. Upon the expiration of the Lease Term or the earlier
termination of Tenant's signage rights under this Section 23.4, Tenant shall, at
its sole cost and expense, remove Tenant's Sign and repair any and all damage to
the Building caused by such removal. In the event Tenant fails to comply with
the terms of the proceeding sentence, Landlord shall have the right, at Tenant's
sole cost and expense, to remove Tenant's Sign and to repair any and all damage
to the Building caused by such removal.
ARTICLE 24
COMPLIANCE WITH LAW
Tenant shall not do anything or suffer anything to be done in or about the
Premises or the Project which will in any way conflict with any law, statute,
ordinance or other governmental rule, regulation or requirement now in force or
which may hereafter be enacted or promulgated ("Applicable Laws"). At its sole
cost and expense, Tenant shall promptly comply with all such governmental
measures. Should any standard or regulation now or hereafter be imposed on
Landlord or Tenant by a state, federal or local governmental body charged with
the establishment, regulation and enforcement of occupational, health or safety
standards for employers, employees, landlords or tenants, then Tenant agrees, at
its sole cost and expense, to comply promptly with such standards or
regulations. Tenant shall be responsible, at its sole cost and expense, to make
all alterations to the Premises as are required to comply with the governmental
rules, regulations, requirements or standards described in this Article 24. The
judgment of any court of competent jurisdiction or the admission of Tenant in
any judicial action, regardless of whether Landlord is a party thereto, that
Tenant has violated any of said governmental measures, shall be conclusive of
that fact as between Landlord and Tenant. Landlord shall comply with all
Applicable Laws relating to the Base Building, provided that compliance with
such Applicable Laws is not the responsibility of Tenant under this Lease, and
provided further that Landlord's failure to comply therewith would prohibit
Tenant from obtaining or maintaining a certificate of occupancy for the
Premises, or would unreasonably and materially affect the safety of Tenant's
employees or create a significant health hazard for Tenant's employees. Landlord
shall be permitted to include in Operating Expenses any costs or expenses
incurred by Landlord under this Article 24 to the extent consistent with the
terms of Section 4.2.4 above. For purposes of this Article 24, Landlord and
Tenant hereby acknowledge and agree that "Applicable Laws" shall include any and
all laws relating to handicapped access and/or hazardous materials or
substances.
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ARTICLE 25
LATE CHARGES
If any installment of Rent or any other sum due from Tenant shall not be
received by Landlord or Landlord's designee within five (5) days after said
amount is due, then Tenant shall pay to Landlord a late charge equal to five
percent (5%) of the overdue amount plus any attorneys' fees incurred by Landlord
by reason of Tenant's failure to pay Rent and/or other charges when due
hereunder. The late charge shall be deemed Additional Rent and the right to
require it shall be in addition to all of Landlord's other rights and remedies
hereunder or at law and shall not be construed as liquidated damages or as
limiting Landlord's remedies in any manner. In addition to the late charge
described above, any Rent or other amounts owing hereunder which are not paid
within ten (10) days after the date they are due shall bear interest from the
date when due until paid at a rate per annum equal to the lesser of (i) the
annual "Bank Prime Loan" rate cited in the Federal Reserve Statistical Release
Publication G.13(415), published on the first Tuesday of each calendar month (or
such other comparable index as Landlord and Tenant shall reasonably agree upon
if such rate ceases to be published) plus four (4) percentage points, and (ii)
the highest rate permitted by applicable law.
ARTICLE 26
LANDLORD'S RIGHT TO CURE DEFAULT; PAYMENTS BY TENANT
26.1 LANDLORD'S CURE. All covenants and agreements to be kept or performed
by Tenant under this Lease shall be performed by Tenant at Tenant's sole cost
and expense and without any reduction of Rent, except to the extent, if any,
otherwise expressly provided herein. If Tenant shall fail to perform any
obligation under this Lease, and such failure shall continue in excess of the
time allowed under Section 19.1.2, above, unless a specific time period is
otherwise stated in this Lease, Landlord may, but shall not be obligated to,
make any such payment or perform any such act on Tenant's part without waiving
its rights based upon any default of Tenant and without releasing Tenant from
any obligations hereunder.
26.2 TENANT'S REIMBURSEMENT. Except as may be specifically provided to the
contrary in this Lease, Tenant shall pay to Landlord, upon delivery by Landlord
to Tenant of statements therefor: (i) sums equal to expenditures reasonably made
and obligations incurred by Landlord in connection with the remedying by
Landlord of Tenant's defaults pursuant to the provisions of Section 26.1; (ii)
sums equal to all losses, costs, liabilities, damages and expenses referred to
in Article 10 of this Lease; and (iii) sums equal to all expenditures made and
obligations incurred by Landlord in collecting or attempting to collect the Rent
or in enforcing or attempting to enforce any rights of Landlord under this Lease
or pursuant to law, including, without limitation, all legal fees and other
amounts so expended. Tenant's obligations under this Section 26.2 shall survive
the expiration or sooner termination of the Lease Term.
ARTICLE 27
ENTRY BY LANDLORD
Landlord reserves the right at all reasonable times and upon reasonable
notice to Tenant (except in the case of an emergency) to enter the Premises to
(i) inspect them; (ii) show the Premises to prospective purchasers, mortgagees
or tenants, or to current or prospective mortgagees, ground or underlying
lessors or insurers; (iii) post notices of nonresponsibility; or (iv) alter,
improve or repair the Premises or the Building, or for structural alterations,
repairs or improvements to the Building or the Building's systems and equipment.
Notwithstanding anything to the contrary contained in this Article 27, Landlord
may enter the Premises at any time to (A) perform services required of Landlord,
including janitorial service; (B) take possession due to any breach of this
Lease in the manner provided herein; and (C) perform any covenants of Tenant
which Tenant fails to perform. Landlord may make any such entries without the
abatement of Rent and may take such reasonable steps as required to accomplish
the stated purposes. Tenant hereby waives any claims for damages or for any
injuries or inconvenience to or interference with Tenant's business, lost
profits, any loss of occupancy or quiet enjoyment of the Premises, and any other
loss occasioned thereby. Notwithstanding the foregoing, Landlord shall remain
liable (to the extent provided for by applicable law) for personal injury and
property damage resulting from Landlord's entry in the Premises pursuant to
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this Article 27 to the extent caused by Landlord's negligence or willful
misconduct. For each of the above purposes, Landlord shall at all times have a
key with which to unlock all the doors in the Premises, excluding Tenant's
vaults, safes and special security areas designated in advance by Tenant. In an
emergency, Landlord shall have the right to use any means that Landlord may deem
proper to open the doors in and to the Premises. Any entry into the Premises by
Landlord in the manner hereinbefore described shall not be deemed to be a
forcible or unlawful entry into, or a detainer of, the Premises, or an actual or
constructive eviction of Tenant from any portion of the Premises. No provision
of this Lease shall be construed as obligating Landlord to perform any repairs,
alterations or decorations except as otherwise expressly agreed to be performed
by Landlord herein.
ARTICLE 28
TENANT PARKING
Prior to the first day of the seventh (7th) month of the second (2nd)
Lease Year, Tenant shall have the right, but not obligation, to rent from
Landlord, commencing on the Lease Commencement Date, the amount of parking
passes set forth in Section 9 of the Summary, on a monthly basis, which parking
passes shall pertain to the Project parking facility. Commencing on the first
day of the seventh (7th) month of the second Lease Year, and continuing
throughout the remainder of the Lease Term, Tenant shall be required to rent
from Landlord the amount of parking passes set forth in Section 9 of the
Summary. Tenant shall pay to Landlord for automobile parking passes rented by
Tenant, on a monthly basis, the prevailing rate charged from time to time at the
location of such parking passes. In addition, Tenant shall be responsible for
the full amount of any taxes imposed by any governmental authority in connection
with the renting of such parking passes by Tenant or the use of the parking
facility by Tenant. Tenant's continued right to use the parking passes is
conditioned upon Tenant abiding by all rules and regulations which are
prescribed from time to time for the orderly operation and use of the parking
facility where the parking passes are located, including any sticker or other
identification system established by Landlord, Tenant's cooperation in seeing
that Tenant's employees and visitors also comply with such rules and regulations
and Tenant not being in default under this Lease. Landlord specifically reserves
the right to change the size, configuration, design, layout and all other
aspects of the Project parking facility at any time and Tenant acknowledges and
agrees that Landlord may, without incurring any liability to Tenant and without
any abatement of Rent under this Lease, from time to time, close-off or restrict
access to the Project parking facility for purposes of permitting or
facilitating any such construction, alteration or improvements. Landlord may
delegate its responsibilities hereunder to a parking operator in which case such
parking operator shall have all the rights of control attributed hereby to the
Landlord. The parking passes rented by Tenant pursuant to this Article 28 are
provided to Tenant solely for use by Tenant's own personnel and such passes may
not be transferred, assigned, subleased or otherwise alienated by Tenant without
Landlord's prior approval. Tenant may validate visitor parking by such method or
methods as the Landlord may establish, at the validation rate from time to time
generally applicable to visitor parking.
ARTICLE 29
MISCELLANEOUS PROVISIONS
29.1 TERMS; CAPTIONS. The words "Landlord" and "Tenant" as used herein
shall include the plural as well as the singular. The necessary grammatical
changes required to make the provisions hereof apply either to corporations or
partnerships or individuals, men or women, as the case may require, shall in all
cases be assumed as though in each case fully expressed. The captions of
Articles and Sections are for convenience only and shall not be deemed to limit,
construe, affect or alter the meaning of such Articles and Sections.
29.2 BINDING EFFECT. Subject to all other provisions of this Lease, each of
the covenants, conditions and provisions of this Lease shall extend to and
shall, as the case may require, bind or inure to the benefit not only of
Landlord and of Tenant, but also of their respective heirs, personal
representatives, successors or assigns, provided this clause shall not permit
any assignment by Tenant contrary to the provisions of Article 14 of this Lease.
29.3 NO AIR RIGHTS. No rights to any view or to light or air over any
property, whether belonging to Landlord or any other person, are granted to
Tenant by this Lease. If at
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any time any windows of the Premises are temporarily darkened or the light or
view therefrom is obstructed by reason of any repairs, improvements, maintenance
or cleaning in or about the Project, the same shall be without liability to
Landlord and without any reduction or diminution of Tenant's obligations under
this Lease.
29.4 MODIFICATION OF LEASE. Should any current or prospective mortgagee or
ground lessor for the Building or Project require a modification of this Lease,
which modification will not cause an increased cost or expense to Tenant or in
any other way materially and adversely change the rights and obligations of
Tenant hereunder, then and in such event, Tenant agrees that this Lease may be
so modified and agrees to execute whatever documents are reasonably required
therefor and to deliver the same to Landlord within ten (10) days following a
request therefor. At the request of Landlord or any mortgagee or ground lessor,
Tenant agrees to execute a short form of Lease and deliver the same to Landlord
within ten (10) days following the request therefor.
29.5 TRANSFER OF LANDLORD'S INTEREST. Tenant acknowledges that Landlord has
the right to transfer all or any portion of its interest in the Project or
Building and in this Lease, and Tenant agrees that in the event of any such
transfer, Landlord shall automatically be released from all liability under this
Lease and Tenant agrees to look solely to such transferee for the performance of
Landlord's obligations hereunder after the date of transfer and such transferee
shall be deemed to have fully assumed and be liable for all obligations of this
Lease to be performed by Landlord, including the return of any Security Deposit,
and Tenant shall attorn to such transferee. Tenant further acknowledges that
Landlord may assign its interest in this Lease to a mortgage lender as
additional security and agrees that such an assignment shall not release
Landlord from its obligations hereunder and that Tenant shall continue to look
to Landlord for the performance of its obligations hereunder.
29.6 PROHIBITION AGAINST RECORDING. Except as provided in Section 29.4 of
this Lease, neither this Lease, nor any memorandum, affidavit or other writing
with respect thereto, shall be recorded by Tenant or by anyone acting through,
under or on behalf of Tenant.
29.7 LANDLORD'S TITLE. Landlord's title is and always shall be paramount to
the title of Tenant. Nothing herein contained shall empower Tenant to do any act
which can, shall or may encumber the title of Landlord.
29.8 RELATIONSHIP OF PARTIES. Nothing contained in this Lease shall be
deemed or construed by the parties hereto or by any third party to create the
relationship of principal and agent, partnership, joint venturer or any
association between Landlord and Tenant.
29.9 APPLICATION OF PAYMENTS. Landlord shall have the right to apply
payments received from Tenant pursuant to this Lease, regardless of Tenant's
designation of such payments, to satisfy any obligations of Tenant hereunder, in
such order and amounts as Landlord, in its sole discretion, may elect.
29.10 TIME OF ESSENCE. Time is of the essence with respect to the
performance of every provision of this Lease in which time of performance is a
factor.
29.11 PARTIAL INVALIDITY. If any term, provision or condition contained in
this Lease shall, to any extent, be invalid or unenforceable, the remainder of
this Lease, or the application of such term, provision or condition to persons
or circumstances other than those with respect to which it is invalid or
unenforceable, shall not be affected thereby, and each and every other term,
provision and condition of this Lease shall be valid and enforceable to the
fullest extent possible permitted by law.
29.12 NO WARRANTY. In executing and delivering this Lease, Tenant has not
relied on any representations, including, but not limited to, any representation
as to the amount of any item comprising Additional Rent or the amount of the
Additional Rent in the aggregate or that Landlord is furnishing the same
services to other tenants, at all, on the same level or on the same basis, or
any warranty or any statement of Landlord which is not set forth herein or in
one or more of the exhibits attached hereto.
29.13 LANDLORD EXCULPATION. The liability of Landlord or the Landlord
Parties to Tenant for any default by Landlord under this Lease or arising in
connection herewith or with
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Landlord's operation, management, leasing, repair, renovation, alteration or any
other matter relating to the Project or the Premises shall be limited solely and
exclusively to an amount which is equal to the lesser of (a) the interest of
Landlord in the Building or (b) the equity interest Landlord would have in the
Building if the Building were encumbered by third-party debt in an amount equal
to eighty percent (80%) of the value of the Building (as such value is
determined by Landlord), provided that in no event shall such liability extend
to any sales or insurance proceeds received by Landlord or the Landlord Parties
in connection with the Project, Building or Premises. Neither Landlord, nor any
of the Landlord Parties shall have any personal liability therefor, and Tenant
hereby expressly waives and releases such personal liability on behalf of itself
and all persons claiming by, through or under Tenant. The limitations of
liability contained in this Section 29.13 shall inure to the benefit of
Landlord's and the Landlord Parties' present and future partners, beneficiaries,
officers, directors, trustees, shareholders, agents and employees, and their
respective partners, heirs, successors and assigns. Under no circumstances shall
any present or future partner of Landlord (if Landlord is a partnership), or
trustee or beneficiary (if Landlord or any partner of Landlord is a trust), have
any liability for the performance of Landlord's obligations under this Lease.
Notwithstanding any contrary provision herein, neither Landlord nor the Landlord
Parties shall be liable under any circumstances for injury or damage to, or
interference with, Tenant's business, including but not limited to, loss of
profits, loss of rents or other revenues, loss of business opportunity, loss of
goodwill or loss of use, in each case, however occurring.
29.14 ENTIRE AGREEMENT. It is understood and acknowledged that there are no
oral agreements between the parties hereto affecting this Lease and this Lease
constitutes the parties' entire agreement with respect to the leasing of the
Premises and supersedes and cancels any and all previous negotiations,
arrangements, brochures, agreements and understandings, if any, between the
parties hereto or displayed by Landlord to Tenant with respect to the subject
matter thereof, and none thereof shall be used to interpret or construe this
Lease. None of the terms, covenants, conditions or provisions of this Lease can
be modified, deleted or added to except in writing signed by the parties hereto.
29.15 RIGHT TO LEASE. Landlord reserves the absolute right to effect such
other tenancies in the Project as Landlord in the exercise of its sole business
judgment shall determine to best promote the interests of the Building or
Project. Tenant does not rely on the fact, nor does Landlord represent, that any
specific tenant or type or number of tenants shall, during the Lease Term,
occupy any space in the Building or Project. 29.16 FORCE MAJEURE. Any
prevention, delay or stoppage due to strikes, lockouts, labor disputes, acts of
God, inability to obtain services, labor, or materials or reasonable substitutes
therefor, governmental actions, civil commotions, fire or other casualty, and
other causes beyond the reasonable control of the party obligated to perform,
except with respect to the obligations imposed with regard to Rent and other
charges to be paid by Tenant pursuant to this Lease and except as to Tenant's
obligations under Articles 5 and 24 of this Lease (collectively, a "Force
Majeure"), notwithstanding anything to the contrary contained in this Lease,
shall excuse the performance of such party for a period equal to any such
prevention, delay or stoppage and, therefore, if this Lease specifies a time
period for performance of an obligation of either party, that time period shall
be extended by the period of any delay in such party's performance caused by a
Force Majeure.
29.17 INTENTIONALLY OMITTED.
29.18 NOTICES. All notices, demands, statements, designations, approvals or
other communications (collectively, "Notices") given or required to be given by
either party to the other hereunder or by law shall be in writing, shall be (A)
sent by United States certified or registered mail, postage prepaid, return
receipt requested ("Mail"), (B) transmitted by telecopy, if such telecopy is
promptly followed by a Notice sent by Mail, (C) delivered by a nationally
recognized overnight courier, or (D) delivered personally. Any Notice shall be
sent, transmitted, or delivered, as the case may be, to Tenant at the
appropriate address set forth in Section 10 of the Summary, or to such other
place as Tenant may from time to time designate in a Notice to Landlord, or to
Landlord at the addresses set forth below, or to such other places as Landlord
may from time to time designate in a Notice to Tenant. Any Notice will be deemed
given (i) three (3) days after the date it is posted if sent by Mail, (ii) the
date the telecopy is transmitted, (iii) the date the overnight courier delivery
is made, or (iv) the date personal delivery is made or attempted to be made. If
Tenant is notified of the identity and address of Landlord's mortgagee or ground
or underlying lessor, Tenant shall give to such mortgagee
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or ground or underlying lessor written notice of any default by Landlord under
the terms of this Lease by registered or certified mail, and such mortgagee or
ground or underlying lessor shall be given a reasonable opportunity to cure such
default prior to Tenant's exercising any remedy available to Tenant. As of the
date of this Lease, any Notices to Landlord must be sent, transmitted, or
delivered, as the case may be, to the following addresses:
The Marcel George Family Trusts of September 2, 1982
630 Tigertail Road
Los Angeles, California 90049
Attention: Mr. Marcel George
and
Allen, Matkins, Leck, Gamble & Mallory
1999 Avenue of the Stars, Suite 1800
Los Angeles, California 90067
Attention: Anton N. Natsis, Esq.
29.19 JOINT AND SEVERAL. If there is more than one Tenant, the obligations
imposed upon Tenant under this Lease shall be joint and several.
29.20 AUTHORITY. If Tenant is a corporation, trust or partnership, each
individual executing this Lease on behalf of Tenant hereby represents and
warrants that Tenant is a duly formed and existing entity qualified to do
business in California and that Tenant has full right and authority to execute
and deliver this Lease and that each person signing on behalf of Tenant is
authorized to do so. In such event, Tenant shall, within ten (10) days after
execution of this Lease, deliver to Landlord satisfactory evidence of such
authority and, if a corporation, upon demand by Landlord, also deliver to
Landlord satisfactory evidence of (i) good standing in Tenant's state of
incorporation and (ii) qualification to do business in California.
29.21 ATTORNEYS' FEES. In the event that either Landlord or Tenant should
bring suit for the possession of the Premises, for the recovery of any sum due
under this Lease, or because of the breach of any provision of this Lease or for
any other relief against the other, then all costs and expenses, including
reasonable attorneys' fees, incurred by the prevailing party therein shall be
paid by the other party, which obligation on the part of the other party shall
be deemed to have accrued on the date of the commencement of such action and
shall be enforceable whether or not the action is prosecuted to judgment.
29.22 GOVERNING LAW; WAIVER OF TRIAL BY JURY. This Lease shall be construed
and enforced in accordance with the laws of the State of California. IN ANY
ACTION OR PROCEEDING ARISING HEREFROM, LANDLORD AND TENANT HEREBY CONSENT TO (I)
THE JURISDICTION OF ANY COMPETENT COURT WITHIN THE STATE OF CALIFORNIA, (II)
SERVICE OF PROCESS BY ANY MEANS AUTHORIZED BY CALIFORNIA LAW, AND (III) IN THE
INTEREST OF SAVING TIME AND EXPENSE, TRIAL WITHOUT A JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE
OTHER OR THEIR SUCCESSORS IN RESPECT OF ANY MATTER ARISING OUT OF OR IN
CONNECTION WITH THIS LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT, TENANT'S
USE OR OCCUPANCY OF THE PREMISES, AND/OR ANY CLAIM FOR INJURY OR DAMAGE, OR ANY
EMERGENCY OR STATUTORY REMEDY.
29.23 SUBMISSION OF LEASE. Submission of this instrument for examination or
signature by Tenant does not constitute a reservation of, option for or option
to lease, and it is not effective as a lease or otherwise until execution and
delivery by both Landlord and Tenant.
29.24 BROKERS. Landlord and Tenant hereby warrant to each other that
they have had no dealings with any real estate broker or agent in connection
with the negotiation of this Lease, excepting only the real estate brokers or
agents specified in Section 12 of the Summary (the "Brokers"), and that they
know of no other real estate broker or agent who is entitled to a commission in
connection with this Lease. Each party agrees to indemnify and defend the other
party against and hold the other party harmless from any and all claims,
demands, losses, liabilities, lawsuits, judgments, costs and expenses (including
without limitation reasonable
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attorneys' fees) with respect to any leasing commission or equivalent
compensation alleged to be owing on account of any dealings with any real estate
broker or agent, other than the Brokers, occurring by, through, or under the
indemnifying party.
29.25 INDEPENDENT COVENANTS. This Lease shall be construed as though the
covenants herein between Landlord and Tenant are independent and not dependent
and Tenant hereby expressly waives the benefit of any statute to the contrary
and agrees that if Landlord fails to perform its obligations set forth herein,
Tenant shall not be entitled to make any repairs or perform any acts hereunder
at Landlord's expense or to any setoff of the Rent or other amounts owing
hereunder against Landlord.
29.26 PROJECT OR BUILDING NAME AND SIGNAGE. Landlord shall have the right
at any time to change the name of the Project or Building and to install, affix
and maintain any and all signs on the exterior and on the interior of the
Project or Building as Landlord may, in Landlord's sole discretion, desire.
Tenant shall not use the name of the Project or Building or use pictures or
illustrations of the Project or Building in advertising or other publicity or
for any purpose other than as the address of the business to be conducted by
Tenant in the Premises, without the prior written consent of Landlord.
29.27 COUNTERPARTS. This Lease may be executed in counterparts with the
same effect as if both parties hereto had executed the same document. Both
counterparts shall be construed together and shall constitute a single lease.
29.28 CONFIDENTIALITY. Tenant acknowledges that the content of this Lease
and any related documents are confidential information. Tenant shall keep such
confidential information strictly confidential and shall not disclose such
confidential information to any person or entity other than Tenant's financial,
legal, and space planning consultants and except as required by law.
29.29 TRANSPORTATION MANAGEMENT. Tenant shall fully comply with all present
or future programs intended to manage parking, transportation or traffic in and
around the Building, and in connection therewith, Tenant shall take responsible
action for the transportation planning and management of all employees located
at the Premises by working directly with Landlord, any governmental
transportation management organization or any other transportation-related
committees or entities.
29.30 BUILDING RENOVATIONS. It is specifically understood and agreed that
Landlord has made no representation or warranty to Tenant and has no obligation
and has made no promises to alter, remodel, improve, renovate, repair or
decorate the Premises, Building, or any part thereof and that no representations
respecting the condition of the Premises or the Building have been made by
Landlord to Tenant except as specifically set forth herein or in the Tenant Work
Letter. However, Tenant hereby acknowledges that Landlord is currently
renovating or may during the Lease Term renovate, improve, alter, or modify
(collectively, the "Renovations") the Project, the Building and/or the Premises
including without limitation the parking structure, common areas, systems and
equipment, roof, and structural portions of the same, which Renovations may
include, without limitation, (i) installing sprinklers in the Building common
areas and tenant spaces, (ii) modifying the common areas and tenant spaces to
comply with applicable laws and regulations, including regulations relating to
the physically disabled, seismic conditions, and building safety and security,
and (iii) installing new floor covering, lighting, and wall coverings in the
Building common areas, and in connection with any Renovations, Landlord may,
among other things, erect scaffolding or other necessary structures in the
Building, limit or eliminate access to portions of the Project, including
portions of the common areas, or perform work in the Building, which work may
create noise, dust or leave debris in the Building. Tenant hereby agrees that
such Renovations and Landlord's actions in connection with such Renovations
shall in no way constitute a constructive eviction of Tenant nor entitle Tenant
to any abatement of Rent. Landlord shall have no responsibility or for any
reason be liable to Tenant for any direct or indirect injury to or interference
with Tenant's business arising from the Renovations, nor shall Tenant be
entitled to any compensation or damages from Landlord for loss of the use of the
whole or any part of the Premises or of Tenant's personal property or
improvements resulting from the Renovations or Landlord's actions in connection
with such Renovations, or for any inconvenience or annoyance occasioned by such
Renovations or Landlord's actions.
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29.31 NO VIOLATION. Tenant hereby warrants and represents that neither its
execution of nor performance under this Lease shall cause Tenant to be in
violation of any agreement, instrument, contract, law, rule or regulation by
which Tenant is bound, and Tenant shall protect, defend, indemnify and hold
Landlord harmless against any claims, demands, losses, damages, liabilities,
costs and expenses, including, without limitation, reasonable attorneys' fees
and costs, arising from Tenant's breach of this warranty and representation.
29.32 COMMUNICATIONS AND COMPUTER LINES. Tenant may install, maintain,
replace, remove or use any communications or computer wires and cables
(collectively, the "Lines") at the Project in or serving the Premises, provided
that (i) Tenant shall obtain Landlord's prior written consent, use an
experienced and qualified contractor approved in writing by Landlord, and comply
with all of the other provisions of Articles 7 and 8 of this Lease, (ii) an
acceptable number of spare Lines and space for additional Lines shall be
maintained for existing and future occupants of the Project, as determined in
Landlord's reasonable opinion, (iii) the Lines therefor (including riser cables)
shall be appropriately insulated to prevent excessive electromagnetic fields or
radiation, and shall be surrounded by a protective conduit reasonably acceptable
to Landlord, (iv) any new or existing Lines servicing the Premises shall comply
with all applicable governmental laws and regulations, (v) as a condition to
permitting the installation of new Lines, Landlord may require that Tenant
remove existing Lines located in or serving the Premises and repair any damage
in connection with such removal, and (vi) Tenant shall pay all costs in
connection therewith. Landlord reserves the right to require that Tenant remove
any Lines located in or serving the Premises which are installed in violation of
these provisions, or which are at any time in violation of any laws or represent
a dangerous or potentially dangerous condition.
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be
executed the day and date first above written.
"Landlord"
THE MARCEL GEORGE FAMILY TRUSTS OF SEPTEMBER 2, 1982
By: /s/ MARCEL GEORGE
------------------------------------------------
Marcel George, Trustee
By: /s/ JOANNE MARIE GEORGE
------------------------------------------------
Joanne Marie George, Trustee
"Tenant"
TEAM COMMUNICATIONS,
a California corporation
By: /s/ JONATHAN D. SHAPIRO
------------------------------------------------
Its: President and COO
------------------------------------------
By: /s/ TIMOTHY A. HILL
------------------------------------------------
Its: Sr. VP & CFO
------------------------------------------
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EXHIBIT A
11818 WILSHIRE BOULEVARD
OUTLINE OF PREMISES
[TO BE PROVIDED]
EXHIBIT A
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<PAGE> 39
EXHIBIT B
11818 WILSHIRE BOULEVARD
TENANT WORK LETTER
This Tenant Work Letter shall set forth the terms and conditions relating
to the construction of the Premises. This Tenant Work Letter is essentially
organized chronologically and addresses the issues of the construction of the
Premises, in sequence, as such issues will arise during the actual construction
of the Premises. All references in this Tenant Work Letter to Articles or
Sections of "this Lease" shall mean the relevant portions of Articles 1 through
29 of the Office Lease to which this Tenant Work Letter is attached as Exhibit
B, and all references in this Tenant Work Letter to Sections of "this Tenant
Work Letter" shall mean the relevant portions of Sections 1 through 6 of this
Tenant Work Letter.
SECTION 1
DELIVERY OF THE PREMISES AND BASE, SHELL & CORE
1.1 Base Shell & Core as Constructed by Landlord. Following the full
execution and delivery of this Lease by Landlord and Tenant, Landlord shall
deliver the Premises and the base, shell and core of the Premises (the "Base,
Shell & Core") to Tenant, and Tenant shall accept the Premises and Base, Shell &
Core from Landlord in their presently existing, "as-is" condition.
SECTION 2
TENANT IMPROVEMENTS
2.1 Tenant Improvement Allowance. Tenant shall be entitled to a one-time
tenant improvement allowance (the "Tenant Improvement Allowance") in the amount
of $30.00 per usable square foot of the Premises for the costs relating to the
initial design and construction of Tenant's improvements, which are permanently
affixed to the Premises (the "Tenant Improvements"). In no event shall Landlord
be obligated to make disbursements pursuant to this Tenant Work Letter in a
total amount which exceeds the Tenant Improvement Allowance.
2.2 Disbursement of the Tenant Improvement Allowance.
2.2.1 Tenant Improvement Allowance Items. Except as otherwise set
forth in this Tenant Work Letter, the Tenant Improvement Allowance shall be
disbursed by Landlord only for the following items and costs (collectively the
"Tenant Improvement Allowance Items"):
2.2.1.1 Payment of the fees of the "Architect" and the
"Engineers," as those terms are defined in Section 3.1 of this Tenant Work
Letter, which fees shall, notwithstanding anything to the contrary contained in
this Tenant Work Letter, not exceed an aggregate amount equal to $4.50 per
usable square foot of the Premises, and payment of the fees incurred by, and the
cost of documents and materials supplied by, Landlord and Landlord's consultants
in connection with the preparation and review of the "Construction Drawings," as
that term is defined in Section 3.1 of this Tenant Work Letter;
2.2.1.2 The payment of plan check, permit and license fees
relating to construction of the Tenant Improvements;
2.2.1.3 The cost of construction of the Tenant Improvements,
including, without limitation, testing and inspection costs, hoisting and trash
removal costs, and contractors' fees and general conditions;
2.2.1.4 The cost of any changes in the Base, Shell & Core when
such changes are required by the Construction Drawings (including if such
changes are due to the fact that such work is prepared on an unoccupied basis),
such cost to include all direct architectural and/or engineering fees and
expenses incurred in connection therewith;
2.2.1.5 The cost of any changes to the Construction Drawings or
Tenant Improvements required by all applicable building codes (the "Code");
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2.2.1.6 The cost of the "Coordination Fee," as that term is
defined in Section 4.2.2 of this Tenant Work Letter;
2.2.1.7 Sales and use taxes and Title 24 fees; and
2.2.1.8 All other costs to be expended by Landlord in connection
with the construction of the Tenant Improvements.
2.2.2 Disbursement of Tenant Improvement Allowance. During the
construction of the Tenant Improvements, Landlord shall make monthly
disbursements of the Tenant Improvement Allowance for Tenant Improvement
Allowance Items for the benefit of Tenant and shall authorize the release of
monies for the benefit of Tenant as follows.
2.2.2.1 Monthly Disbursements. On or before the day of each
calendar month, as determined by Landlord, during the construction of the Tenant
Improvements (or such other date as Landlord may designate), Tenant shall
deliver to Landlord: (i) a request for payment of the "Contractor," as that term
is defined in Section 4.1 of this Tenant Work Letter, approved by Tenant, in a
form to be provided by Landlord, showing the schedule, by trade, of percentage
of completion of the Tenant Improvements in the Premises, detailing the portion
of the work completed and the portion not completed; (ii) invoices from all of
"Tenant's Agents," as that term is defined in Section 4.1.2 of this Tenant Work
Letter, for labor rendered and materials delivered to the Premises; (iii)
executed mechanic's lien releases from all of Tenant's Agents which shall comply
with the appropriate provisions, as reasonably determined by Landlord, of
California Civil Code Section 3262(d); and (iv) all other information reasonably
requested by Landlord. Tenant's request for payment shall be deemed Tenant's
acceptance and approval of the work furnished and/or the materials supplied as
set forth in Tenant's payment request. Thereafter, Landlord shall deliver a
check to Tenant made jointly payable to Contractor and Tenant in payment of the
lesser of: (A) the amounts so requested by Tenant, as set forth in this Section
2.2.2.1, above, less a ten percent (10%) retention (the aggregate amount of such
retentions to be known as the "Final Retention"), and (B) the balance of any
remaining available portion of the Tenant Improvement Allowance (not including
the Final Retention), provided that Landlord does not dispute any request for
payment based on non-compliance of any work with the "Approved Working
Drawings," as that term is defined in Section 3.4 below, or due to any
substandard work, or for any other reason. Landlord's payment of such amounts
shall not be deemed Landlord's approval or acceptance of the work furnished or
materials supplied as set forth in Tenant's payment request.
2.2.2.2 Final Retention. Subject to the provisions of this Tenant
Work Letter, a check for the Final Retention payable jointly to Tenant and
Contractor shall be delivered by Landlord to Tenant following the completion of
construction of the Premises, provided that (i) Tenant delivers to Landlord
properly executed mechanics lien releases in compliance with both California
Civil Code Section 3262(d)(2) and either Section 3262(d)(3) or Section
3262(d)(4), (ii) Landlord has determined that no substandard work exists which
adversely affects the mechanical, electrical, plumbing, heating, ventilating and
air conditioning, life-safety or other systems of the Building, the curtain wall
of the Building, the structure or exterior appearance of the Building, or any
other tenant's use of such other tenant's leased premises in the Building and
(iii) Architect delivers to Landlord a certificate, in a form reasonably
acceptable to Landlord, certifying that the construction of the Tenant
Improvements in the Premises has been substantially completed.
2.2.2.3 Other Terms. Landlord shall only be obligated to make
disbursements from the Tenant Improvement Allowance to the extent costs are
incurred by Tenant for Tenant Improvement Allowance Items. All Tenant
Improvement Allowance Items for which the Tenant Improvement Allowance has been
made available shall be deemed Landlord's property under the terms of this
Lease.
2.3 Standard Tenant Improvement Package. Landlord has established
specifications (the "Specifications") for the Building standard components to be
used in the construction of the Tenant Improvements in the Premises
(collectively, the "Standard Improvement Package"), which Specifications have
been supplied to Tenant by Landlord. The quality of Tenant Improvements shall at
a minimum comply with of the applicable Specifications, provided that the window
coverings utilized in the Premises shall be designated by Landlord and Tenant
shall
EXHIBIT B
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cause the Tenant Improvements to comply with such designation. Landlord may make
changes to the Specifications for the Standard Improvement Package from time to
time.
SECTION 3
CONSTRUCTION DRAWINGS
3.1 Selection of Architect/Construction Drawings. Tenant shall retain the
architect/space planner approved by Landlord (the "Architect") to prepare the
"Construction Drawings," as that term is defined in this Section 3.1. Landlord
hereby approves Ridgway & Associates as Architect. Tenant shall retain
engineering consultants approved by Landlord in Landlord's reasonable discretion
(the "Engineers") to prepare all plans and engineering working drawings relating
to the structural, mechanical, electrical, plumbing, HVAC, lifesafety, and
sprinkler work in the Premises, which work is not part of the Base, Shell &
Core. The plans and drawings to be prepared by Architect and the Engineers
hereunder shall be known collectively as the "Construction Drawings." All
Construction Drawings shall comply with the drawing format and specifications
determined by Landlord, and shall be subject to Landlord's approval. Tenant and
Architect shall verify, in the field, the dimensions and conditions as shown on
the relevant portions of the base building plans, and Tenant and Architect shall
be solely responsible for the same, and Landlord shall have no responsibility in
connection therewith. Landlord's review of the Construction Drawings as set
forth in this Section 3, shall be for its sole purpose and shall not imply
Landlord's review of the same, or obligate Landlord to review the same, for
quality, design, Code compliance or other like matters. Accordingly,
notwithstanding that any Construction Drawings are reviewed by Landlord or its
space planner, architect, engineers and consultants, and notwithstanding any
advice or assistance which may be rendered to Tenant by Landlord or Landlord's
space planner, architect, engineers, and consultants, Landlord shall have no
liability whatsoever in connection therewith and shall not be responsible for
any omissions or errors contained in the Construction Drawings, and Tenant's
waiver and indemnity set forth in this Lease shall specifically apply to the
Construction Drawings.
3.2 Final Space Plan. Tenant shall supply Landlord with one (1) copy signed
by Tenant of its final space plan for the Premises before any architectural
working drawings or engineering drawings have been commenced. The final space
plan (the "Final Space Plan") shall include a layout and designation of all
offices, rooms and other partitioning, their intended use, and equipment to be
contained therein. Landlord may request clarification or more specific drawings
for special use items not included in the Final Space Plan. Landlord shall
advise Tenant within five (5) business days after Landlord's receipt of the
Final Space Plan for the Premises if the same is unsatisfactory or incomplete in
any respect. If Tenant is so advised, Tenant shall promptly cause the Final
Space Plan to be revised to correct any deficiencies or other matters Landlord
may reasonably require.
3.3 Final Working Drawings. After the Final Space Plan has been approved by
Landlord, Tenant shall supply the Engineers with a complete listing of standard
and non-standard equipment and specifications, including, without limitation,
B.T.U. calculations, electrical requirements and special electrical receptacle
requirements for the Premises, to enable the Engineers and the Architect to
complete the "Final Working Drawings" (as that term is defined below) in the
manner as set forth below. Upon the approval of the Final Space Plan by Landlord
and Tenant, Tenant shall promptly cause the Architect and the Engineers to
complete the architectural and engineering drawings for the Premises, and
Architect shall compile a fully coordinated set of architectural, structural,
mechanical, electrical and plumbing working drawings in a form which is complete
to allow subcontractors to bid on the work and to obtain all applicable permits
(collectively, the "Final Working Drawings") and shall submit the same to
Landlord for Landlord's approval. Tenant shall supply Landlord with one (1) copy
signed by Tenant of such Final Working Drawings. Landlord shall advise Tenant
within five (5) business days after Landlord's receipt of the Final Working
Drawings for the Premises if the same is unsatisfactory or incomplete in any
respect. If Tenant is so advised, Tenant shall immediately revise the Final
Working Drawings in accordance with such review and any disapproval of Landlord
in connection therewith.
3.4 Approved Working Drawings. The Final Working
Drawings shall be approved by Landlord (the "Approved Working Drawings") prior
to the commencement of construction of the Premises by Tenant. After approval by
Landlord of the Final Working Drawings, Tenant may submit the same to the
appropriate municipal authorities for all applicable building permits. Tenant
hereby agrees that neither Landlord nor Landlord's consultants shall be
responsible for
EXHIBIT B
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obtaining any building permit or certificate of occupancy for the Premises and
that obtaining the same shall be Tenant's responsibility; provided, however,
that Landlord shall cooperate with Tenant in executing permit applications and
performing other ministerial acts reasonably necessary to enable Tenant to
obtain any such permit or certificate of occupancy. No changes, modifications or
alterations in the Approved Working Drawings may be made without the prior
written consent of Landlord, which consent may not be unreasonably withheld.
SECTION 4
CONSTRUCTION OF THE TENANT IMPROVEMENTS
4.1 Tenant's Selection of Contractors.
4.1.1 The Contractor. A general contractor shall be retained by Tenant
to construct the Tenant Improvements. Such general contractor ("Contractor")
shall be selected by Tenant and approved by Landlord in Landlord's reasonable
discretion, and Tenant shall deliver to Landlord notice of its selection of the
Contractor upon such selection.
4.1.2 Tenant's Agents. All subcontractors, laborers, materialmen, and
suppliers used by Tenant (such subcontractors, laborers, materialmen, and
suppliers, and the Contractor to be known collectively as "Tenant's Agents")
must be approved in writing by Landlord, which approval shall not be
unreasonably withheld or delayed. If Landlord does not approve any of Tenant's
proposed subcontractors, laborers, materialmen or suppliers, Tenant shall submit
other proposed subcontractors, laborers, materialmen or suppliers for Landlord's
written approval.
4.2 Construction of Tenant Improvements by Tenant's Agents.
4.2.1 Construction Contract; Cost Budget. Prior to Tenant's execution
of the construction contract and general conditions with Contractor (the
"Contract"), Tenant shall submit the Contract to Landlord for its approval,
which approval shall not be unreasonably withheld or delayed. Prior to the
commencement of the construction of the Tenant Improvements, and after Tenant
has accepted all bids for the Tenant Improvements, Tenant shall provide Landlord
with a detailed breakdown, by trade, of the final costs to be incurred or which
have been incurred, as set forth more particularly in Sections 2.2.1.1 through
2.2.1.8, above, in connection with the design and construction of the Tenant
Improvements to be performed by or at the direction of Tenant or the Contractor,
which costs form a basis for the amount of the Contract (the "Final Costs"). For
purposes of this Lease, the "Over-Allowance Amount" shall equal the difference
between the amount of the Final Costs and the amount of the Tenant Improvement
Allowance (less any portion thereof already disbursed by Landlord, or in the
process of being disbursed by Landlord, on or before the commencement of
construction of the Tenant Improvements). Tenant shall pay, immediately upon
written notice from Landlord, a percentage of each amount disbursed by Landlord
to the Contractor or otherwise disbursed under the Tenant Work Letter, which
percentage shall be equal to the amount of the Over-Allowance Amount divided by
the amount of the Final Costs, and such payment by Tenant shall be a condition
to Landlord's obligation to pay any amounts of the Tenant Improvement Allowance.
In the event that, after the Final Costs have been delivered by Tenant to
Landlord, the costs relating to the design and construction of the Tenant
Improvements shall change, any additional costs necessary to such design and
construction in excess of the Final Costs, shall be an addition to the
Over-Allowance Amount for purposes of this Section 4.2.1.
4.2.2 Tenant's Agents.
4.2.2.1 4Landlord's General Conditions for Tenant's Agents and
Tenant Improvement Work. Tenant's and Tenant's Agent's construction of the
Tenant Improvements shall comply with the following: (i) the Tenant Improvements
shall be constructed in strict accordance with the Approved Working Drawings;
(ii) Tenant's Agents shall submit schedules of all work relating to the Tenant's
Improvements to Contractor and Contractor shall, within five (5) business days
of receipt thereof, inform Tenant's Agents of any changes which are necessary
thereto, and Tenant's Agents shall adhere to such corrected schedule; and (iii)
Tenant shall abide by all rules made by Landlord's Building manager with respect
to the use of freight, loading dock and service elevators, storage of materials,
coordination of work with the contractors of other tenants, and any other matter
in connection with this Tenant Work Letter, including, without limitation, the
construction of the Tenant Improvements. Tenant shall pay a logistical
coordination fee (the "Coordination Fee") to Landlord in an amount equal to the
product of
EXHIBIT B
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(i) five percent (5%) and (ii) the "hard costs" of constructing the Tenant
Improvements which Coordination Fee shall be for services relating to the
coordination of the construction of the Tenant Improvements, provided that in no
event shall the Coordination Fee exceed Twenty Thousand and No/100 Dollars
($20,000.00).
4.2.2.2 Indemnity. Tenant's indemnity of Landlord as set forth in
this Lease shall also apply with respect to any and all costs, losses, damages,
injuries and liabilities related in any way to any act or omission of Tenant or
Tenant's Agents, or anyone directly or indirectly employed by any of them, or in
connection with Tenant's non-payment of any amount arising out of the Tenant
Improvements and/or Tenant's disapproval of all or any portion of any request
for payment.
4.2.2.3 Requirements of Tenant's Agents. Each of Tenant's Agents
shall guarantee to Tenant and for the benefit of Landlord that the portion of
the Tenant Improvements for which it is responsible shall be free from any
defects in workmanship and materials for a period of not less than one (1) year
from the date of completion thereof. Each of Tenant's Agents shall be
responsible for the replacement or repair, without additional charge, of all
work done or furnished in accordance with its contract that shall become
defective within one (1) year after the later to occur of (i) completion of the
work performed by such contractor or subcontractors and (ii) the Lease
Commencement Date. The correction of such work shall include, without additional
charge, all additional expenses and damages incurred in connection with such
removal or replacement of all or any part of the Tenant Improvements, and/or the
Building and/or common areas that may be damaged or disturbed thereby. All such
warranties or guarantees as to materials or workmanship of or with respect to
the Tenant Improvements shall be contained in the Contract or subcontract and
shall be written such that such guarantees or warranties shall inure to the
benefit of both Landlord and Tenant, as their respective interests may appear,
and can be directly enforced by either. Tenant covenants to give to Landlord any
assignment or other assurances which may be necessary to effect such right of
direct enforcement.
4.2.2.4 Insurance Requirements.
4.2.2.4.1 General Coverages. All of Tenant's Agents shall
carry worker's compensation insurance covering all of their respective
employees, and shall also carry public liability insurance, including property
damage, all with limits, in form and with companies as are required to be
carried by Tenant as set forth in this Lease.
4.2.2.4.2 Special Coverages. Tenant shall carry "Builder's
All Risk" insurance in an amount approved by Landlord covering the construction
of the Tenant Improvements, and such other insurance as Landlord may require, it
being understood and agreed that the Tenant Improvements shall be insured by
Tenant pursuant to this Lease immediately upon completion thereof. Such
insurance shall be in amounts and shall include such extended coverage
endorsements as may be reasonably required by Landlord including, but not
limited to, the requirement that all of Tenant's Agents shall carry excess
liability and Products and Completed Operation Coverage insurance, each in
amounts not less than $500,000 per incident, $1,000,000 in aggregate, and in
form and with companies as are required to be carried by Tenant as set forth in
this Lease.
4.2.2.4.3 General Terms. Certificates for all insurance
carried pursuant to this Section 4.2.2.4 shall be delivered to Landlord before
the commencement of construction of the Tenant Improvements and before the
Contractor's equipment is moved onto the site. All such policies of insurance
must contain a provision that the company writing said policy will give Landlord
thirty (30) days prior written notice of any cancellation or lapse of the
effective date or any reduction in the amounts of such insurance. In the event
that the Tenant Improvements are damaged by any cause during the course of the
construction thereof, Tenant shall immediately repair the same at Tenant's sole
cost and expense. Tenant's Agents shall maintain all of the foregoing insurance
coverage in force until the Tenant Improvements are fully completed and accepted
by Landlord, except for any Products and Completed Operation Coverage insurance
required by Landlord, which is to be maintained for ten (10) years following
completion of the work and acceptance by Landlord and Tenant. All policies
carried under this Section 4.2.2.4 shall insure Landlord and Tenant, as their
interests may appear, as well as Contractor and Tenant's Agents. All insurance,
except Workers' Compensation, maintained by Tenant's Agents shall preclude
subrogation claims by the insurer against anyone insured thereunder. Such
insurance shall provide that it is primary insurance as respects the owner and
EXHIBIT B
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that any other insurance maintained by owner is excess and noncontributing with
the insurance required hereunder. The requirements for the foregoing insurance
shall not derogate from the provisions for indemnification of Landlord by Tenant
under Section 4.2.2.2 of this Tenant Work Letter. Landlord may, in its
discretion, require Tenant to obtain a lien and completion bond or some
alternate form of security satisfactory to Landlord in an amount sufficient to
ensure the lien-free completion of the Tenant Improvements and naming Landlord
as a co-obligee.
4.2.3 Governmental Compliance. The Tenant Improvements shall comply in
all respects with the following: (i) the Code and other state, federal, city or
quasi-governmental laws, codes, ordinances and regulations, as each may apply
according to the rulings of the controlling public official, agent or other
person; (ii) applicable standards of the American Insurance Association
(formerly, the National Board of Fire Underwriters) and the National Electrical
Code; and (iii) building material manufacturer's specifications.
4.2.4 Inspection by Landlord. Landlord shall have the right to inspect
the Tenant Improvements at all times, provided however, that Landlord's failure
to inspect the Tenant Improvements shall in no event constitute a waiver of any
of Landlord's rights hereunder nor shall Landlord's inspection of the Tenant
Improvements constitute Landlord's approval of the same. Should Landlord
reasonably disapprove any portion of the Tenant Improvements, Landlord shall
notify Tenant in writing of such disapproval and shall specify the items
disapproved. Any defects or deviations in, and/or disapproval by Landlord of,
the Tenant Improvements shall be rectified by Tenant at no expense to Landlord,
provided however, that in the event that (i) Landlord determines that a defect
or deviation exists or disapproves of any matter in connection with any portion
of the Tenant Improvements and such defect, deviation or matter might adversely
affect the mechanical, electrical, plumbing, heating, ventilating and air
conditioning or life-safety systems of the Building, the structure or exterior
appearance of the Building or any other tenant's use of such other tenant's
leased premises, and (ii) Tenant shall fail to promptly (given the nature of the
matter at issue) cure such defect, deviation or matter, then Landlord may, take
such action as Landlord deems necessary, at Tenant's expense and without
incurring any liability on Landlord's part, to correct any such defect,
deviation and/or matter, including, without limitation, causing the cessation of
performance of the construction of the Tenant Improvements until such time as
the defect, deviation and/or matter is corrected to Landlord's satisfaction.
4.2.5 Meetings. Commencing upon the execution of this Lease, Tenant
shall hold regular meetings at a reasonable time, with the Architect and the
Contractor regarding the progress of the preparation of Construction Drawings
and the construction of the Tenant Improvements, which meetings shall be held at
the Project, and Landlord and/or its agents shall receive prior notice of, and
shall have the right to attend, all such meetings, and, upon Landlord's request,
certain of Tenant's Agents shall attend such meetings. In addition, minutes
shall be taken at all such meetings, a copy of which minutes shall be promptly
delivered to Landlord. One such meeting each month shall include the review of
Contractor's current request for payment.
4.3 Notice of Completion; Copy of Record Set of Plans. Within ten (10) days
after completion of construction of the Tenant Improvements, Tenant shall cause
a Notice of Completion to be recorded in the office of the Recorder of the
county in which the Building is located in accordance with Section 3093 of the
Civil Code of the State of California or any successor statute, and shall
furnish a copy thereof to Landlord upon such recordation. If Tenant fails to do
so, Landlord may execute and file the same on behalf of Tenant as Tenant's agent
for such purpose, at Tenant's sole cost and expense. At the conclusion of
construction, (i) Tenant shall cause the Architect and Contractor (A) to update
the Approved Working Drawings as necessary to reflect all changes made to the
Approved Working Drawings during the course of construction, (B) to certify to
the best of their knowledge that the "record-set" of as-built drawings are true
and correct, which certification shall survive the expiration or termination of
this Lease, and (C) to deliver to Landlord two (2) sets of copies of such record
set of drawings within ninety (90) days following issuance of a certificate of
occupancy for the Premises, and (ii) Tenant shall deliver to Landlord a copy of
all warranties, guaranties, and operating manuals and information relating to
the improvements, equipment, and systems in the Premises.
EXHIBIT B
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SECTION 5
DELAY OF LEASE COMMENCEMENT DATE
5.1 Lease Commencement Date Delays. The Lease Commencement
Date shall occur as provided in Article 2 of this Lease, provided that the Lease
Commencement Date shall be delayed by the number of days of delay of the
"substantial completion of the Tenant Improvements," as that term is defined
below in this Section 5, in the Premises which is caused solely by a "Lease
Commencement Date Delay," which shall mean only an actual delay resulting from
the acts or omissions of Landlord including, but not limited to (i) failure of
Landlord to timely approve or disapprove any Construction Drawings; (ii)
unreasonable and material interference by Landlord, its agents or contractors
with the completion of the Tenant Improvements and which objectively preclude
construction of tenant improvements in the Building by any person, which
interference relates to access by Tenant, its agents and contractors to the
Building or any Building facilities (including loading docks and freight
elevators) or service (including temporary power and parking areas as provided
herein) during normal construction hours, or the use thereof during normal
construction hours; and (iii) delays due to the acts or failures to act of
Landlord, its agents or contractors with respect to payment of the Tenant
Improvement Allowance and/or any cessation of work upon the Tenant Improvements
as a result thereof.
5.2 Determination of Lease Commencement Date Delay. If
Tenant contends that a Lease Commencement Date Delay has occurred, Tenant shall
notify Landlord in writing within two (2) business days of each of (i) the date
upon which such Lease Commencement Date Delay becomes known to Tenant,
Architect, or Contractor and (ii) the date upon which such Lease Commencement
Date Delay ends (the "Termination Date"). Tenant's failure to deliver either or
both of such notices to Landlord within the required time period shall be deemed
to be a waiver by Tenant of the contended Lease Commencement Date Delay to which
such notices would have related. If such actions, inaction or circumstances
described in the notice set forth in clause (i), above (the "Delay Notice") are
not cured by Landlord within two (2) business day of receipt of the Delay Notice
and if such actions, inaction or circumstances otherwise qualify as a Lease
Commencement Date Delay, then a Lease Commencement Date Delay shall be deemed to
have occurred commencing as of the date of Landlord's receipt of the Delay
Notice and ending as of the Termination Date.
5.3 Definition of Substantial
Completion of the Tenant Improvements. For purposes of this Section 5,
"substantial completion of the Tenant Improvements" shall mean completion of
construction of the Tenant Improvements in the Premises pursuant to the
"Approved Working Drawings," with the exception of any punch list items, any
furniture, fixtures, work-stations, built-in furniture or equipment (even if the
same requires installation or electrification by Tenant's Agents), and any
tenant improvement finish items and materials which are selected by Tenant but
which are not available within a reasonable time (given the date of the Lease
Commencement Date).
SECTION 6
MISCELLANEOUS
6.1 Tenant's Representative. Tenant has designated Ms. Patti Ridgway as its
sole representative with respect to the matters set forth in this Tenant Work
Letter, who shall have full authority and responsibility to act on behalf of the
Tenant as required in this Tenant Work Letter.
6.2 Landlord's Representative. Landlord has designated Mr. Marcel George as
its sole representatives with respect to the matters set forth in this Tenant
Work Letter, who, until further notice to Tenant, shall have full authority and
responsibility to act on behalf of the Landlord as required in this Tenant Work
Letter.
6.3 Time of the Essence in This Tenant Work Letter. Unless otherwise
indicated, all references herein to a "number of days" shall mean and refer to
calendar days. If any item requiring approval is timely disapproved by Landlord,
the procedure for preparation of the document and approval thereof shall be
repeated until the document is approved by Landlord.
6.4 Tenant's Lease Default. Notwithstanding any provision to the contrary
contained in this Lease, if an event of default as described in the Lease or
this Tenant Work Letter has
EXHIBIT B
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occurred at any time on or before the Substantial Completion of the Premises,
then (i) in addition to all other rights and remedies granted to Landlord
pursuant to this Lease, Landlord shall have the right to withhold payment of all
or any portion of the Tenant Improvement Allowance and/or Landlord may cause
Contractor to cease the construction of the Premises (in which case, Tenant
shall be responsible for any delay in the substantial completion of the Premises
caused by such work stoppage), and (ii) all other obligations of Landlord under
the terms of this Tenant Work Letter shall be forgiven until such time as such
default is cured pursuant to the terms of this Lease (in which case, Tenant
shall be responsible for any delay in the substantial completion of the Premises
caused by such inaction by Landlord).
6.5 No Miscellaneous Charges. During Tenant's construction of the Tenant
Improvements, Landlord shall provide, and neither Tenant nor Tenant's Agents
shall be charged for, HVAC during Building Hours or for parking, freight
elevators and/or to the extent utilized in connection with the construction of
the Tenant Improvements.
EXHIBIT B
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EXHIBIT C
11818 WILSHIRE BOULEVARD
NOTICE OF LEASE TERM DATES
To: __________________________________
__________________________________
__________________________________
__________________________________
Re: Office Lease dated __________, 19 between , a __________________
("Landlord"), and , a ("Tenant") concerning Suite ______ on floor(s)
______________ of the office building located at , Los Angeles,
California.
Gentlemen:
In accordance with the Office Lease (the "Lease"), we wish to advise you
and/or confirm as follows:
1._______The Lease Term shall commence on or has commenced on
______________ for a term of __________________ ending on ------------------.
2._______Rent commenced to accrue on __________________, in the amount of
________________.
3._______If the Lease Commencement Date is other than the first day of the
month, the first billing will contain a pro rata adjustment. Each billing
thereafter, with the exception of the final billing, shall be for the full
amount of the monthly installment as provided for in the Lease.
4._______Your rent checks should be made payable to __________________ at
___________________.
5._______The exact number of rentable/usable square feet within the
Premises is ____________ square feet.
6._______Tenant's Share as adjusted based upon the exact number of usable
square feet within the Premises is ________%.
"Landlord"
__________________________________________
a _____________________
By: _____________________________________
Its: _______________________________
EXIBIT C
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<PAGE> 48
Agreed to and Accepted
as of ____________, 19___.
"Tenant"
________________________________________
a ____________________
By: ___________________________________
Its: _______________________________
EXHIBIT C
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EXHIBIT D
11818 WILSHIRE BOULEVARD
RULES AND REGULATIONS
Tenant shall faithfully observe and comply with the following Rules and
Regulations. Landlord shall not be responsible to Tenant for the nonperformance
of any of said Rules and Regulations by or otherwise with respect to the acts or
omissions of any other tenants or occupants of the Project. In the event of any
conflict between the Rules and Regulations and the other provisions of this
Lease, the latter shall control.
1. Tenant shall not alter any lock or install any new or additional locks
or bolts on any doors or windows of the Premises without obtaining Landlord's
prior written consent. Tenant shall bear the cost of any lock changes or repairs
required by Tenant. Two keys will be furnished by Landlord for the Premises, and
any additional keys required by Tenant must be obtained from Landlord at a
reasonable cost to be established by Landlord. Upon the termination of this
Lease, Tenant shall restore to Landlord all keys of stores, offices, and toilet
rooms, either furnished to, or otherwise procured by, Tenant and in the event of
the loss of keys so furnished, Tenant shall pay to Landlord the cost of
replacing same or of changing the lock or locks opened by such lost key if
Landlord shall deem it necessary to make such changes.
2. All doors opening to public corridors shall be kept closed at all times
except for normal ingress and egress to the Premises.
3. Landlord reserves the right to close and keep locked all entrance and
exit doors of the Building during such hours as are customary for comparable
buildings in the Los Angeles, California area. Tenant, its employees and agents
must be sure that the doors to the Building are securely closed and locked when
leaving the Premises if it is after the normal hours of business for the
Building. Any tenant, its employees, agents or any other persons entering or
leaving the Building at any time when it is so locked, or any time when it is
considered to be after normal business hours for the Building, may be required
to sign the Building register. Access to the Building may be refused unless the
person seeking access has proper identification or has a previously arranged
pass for access to the Building. Landlord will furnish passes to persons for
whom Tenant requests same in writing. Tenant shall be responsible for all
persons for whom Tenant requests passes and shall be liable to Landlord for all
acts of such persons. The Landlord and his agents shall in no case be liable for
damages for any error with regard to the admission to or exclusion from the
Building of any person. In case of invasion, mob, riot, public excitement, or
other commotion, Landlord reserves the right to prevent access to the Building
or the Project during the continuance thereof by any means it deems appropriate
for the safety and protection of life and property.
4. No furniture, freight or equipment of any kind shall be brought into the
Building without prior notice to Landlord. All moving activity into or out of
the Building shall be scheduled with Landlord and done only at such time and in
such manner as Landlord designates. Landlord shall have the right to prescribe
the weight, size and position of all safes and other heavy property brought into
the Building and also the times and manner of moving the same in and out of the
Building. Safes and other heavy objects shall, if considered necessary by
Landlord, stand on supports of such thickness as is necessary to properly
distribute the weight. Landlord will not be responsible for loss of or damage to
any such safe or property in any case. Any damage to any part of the Building,
its contents, occupants or visitors by moving or maintaining any such safe or
other property shall be the sole responsibility and expense of Tenant.
5. No furniture, packages, supplies, equipment or merchandise will be
received in the Building or carried up or down in the elevators, except between
such hours, in such specific elevator and by such personnel as shall be
designated by Landlord.
6. The requirements of Tenant will be attended to only upon application at
the management office for the Project or at such office location designated by
Landlord. Employees of Landlord shall not perform any work or do anything
outside their regular duties unless under special instructions from Landlord.
EXHIBIT D
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<PAGE> 50
7. No sign, advertisement, notice or handbill shall be exhibited,
distributed, painted or affixed by Tenant on any part of the Premises or the
Building without the prior written consent of the Landlord. Tenant shall not
disturb, solicit, peddle, or canvass any occupant of the Project and shall
cooperate with Landlord and its agents of Landlord to prevent same.
8. The toilet rooms, urinals, wash bowls and other apparatus shall not be
used for any purpose other than that for which they were constructed, and no
foreign substance of any kind whatsoever shall be thrown therein. The expense of
any breakage, stoppage or damage resulting from the violation of this rule shall
be borne by the tenant who, or whose servants, employees, agents, visitors or
licensees shall have caused same.
9. Tenant shall not overload the floor of the Premises, nor mark, drive
nails or screws, or drill into the partitions, woodwork or drywall or in any way
deface the Premises or any part thereof without Landlord's prior written
consent. Tenant shall not purchase spring water, ice, towel, linen, maintenance
or other like services from any person or persons not approved by Landlord.
10. Except for vending machines intended for the sole use of Tenant's
employees and invitees, no vending machine or machines other than fractional
horsepower office machines shall be installed, maintained or operated upon the
Premises without the written consent of Landlord.
11. Tenant shall not use or keep in or on the Premises, the Building, or
the Project any kerosene, gasoline, explosive material, corrosive material,
material capable of emitting toxic fumes, or other inflammable or combustible
fluid chemical, substitute or material. Tenant shall provide material safety
data sheets for any Hazardous Material used or kept on the Premises.
12. Tenant shall not without the prior written consent of Landlord use any
method of heating or air conditioning other than that supplied by Landlord.
13. Tenant shall not use, keep or permit to be used or kept, any foul or
noxious gas or substance in or on the Premises, or permit or allow the Premises
to be occupied or used in a manner offensive or objectionable to Landlord or
other occupants of the Project by reason of noise, odors, or vibrations, or
interfere with other tenants or those having business therein, whether by the
use of any musical instrument, radio, phonograph, or in any other way. Tenant
shall not throw anything out of doors, windows or skylights or down passageways.
14. Tenant shall not bring into or keep within the Project, the Building or
the Premises any animals, birds, aquariums, or, except in areas designated by
Landlord, bicycles or other vehicles.
15. No cooking shall be done or permitted on the Premises, nor shall the
Premises be used for the storage of merchandise, for lodging or for any
improper, objectionable or immoral purposes. Notwithstanding the foregoing,
Underwriters' laboratory-approved equipment and microwave ovens may be used in
the Premises for heating food and brewing coffee, tea, hot chocolate and similar
beverages for employees and visitors, provided that such use is in accordance
with all applicable federal, state, county and city laws, codes, ordinances,
rules and regulations.
16. The Premises shall not be used for manufacturing or for the storage of
merchandise except as such storage may be incidental to the use of the Premises
provided for in the Summary. Tenant shall not occupy or permit any portion of
the Premises to be occupied as an office for a messenger-type operation or
dispatch office, public stenographer or typist, or for the manufacture or sale
of liquor, narcotics, or tobacco in any form, or as a medical office, or as a
barber or manicure shop, or as an employment bureau without the express prior
written consent of Landlord. Tenant shall not engage or pay any employees on the
Premises except those actually working for such tenant on the Premises nor
advertise for laborers giving an address at the Premises.
17. Landlord reserves the right to exclude or expel from the Project any
person who, in the judgment of Landlord, is intoxicated or under the influence
of liquor or drugs, or who shall in any manner do any act in violation of any of
these Rules and Regulations.
EXHIBIT D
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<PAGE> 51
18. Tenant, its employees and agents shall not loiter in or on the
entrances, corridors, sidewalks, lobbies, courts, halls, stairways, elevators,
vestibules or any Common Areas for the purpose of smoking tobacco products or
for any other purpose, nor in any way obstruct such areas, and shall use them
only as a means of ingress and egress for the Premises.
19. Tenant shall not waste electricity, water or air conditioning and
agrees to cooperate fully with Landlord to ensure the most effective operation
of the Building's heating and air conditioning system, and shall refrain from
attempting to adjust any controls. Tenant shall participate in recycling
programs undertaken by Landlord.
20. Tenant shall store all its trash and garbage within the interior of the
Premises. No material shall be placed in the trash boxes or receptacles if such
material is of such nature that it may not be disposed of in the ordinary and
customary manner of removing and disposing of trash and garbage in Los Angeles,
California without violation of any law or ordinance governing such disposal.
All trash, garbage and refuse disposal shall be made only through entry-ways and
elevators provided for such purposes at such times as Landlord shall designate.
If the Premises is or becomes infested with vermin as a result of the use or any
misuse or neglect of the Premises by Tenant, its agents, servants, employees,
contractors, visitors or licensees, Tenant shall forthwith, at Tenant's expense,
cause the Premises to be exterminated from time to time to the satisfaction of
Landlord and shall employ such licensed exterminators as shall be approved in
writing in advance by Landlord.
21. Tenant shall comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or any governmental agency.
22. Any persons employed by Tenant to do janitorial work shall be subject
to the prior written approval of Landlord, and while in the Building and outside
of the Premises, shall be subject to and under the control and direction of the
Building manager (but not as an agent or servant of such manager or of
Landlord), and Tenant shall be responsible for all acts of such persons.
23. No awnings or other projection shall be attached to the outside walls
of the Building without the prior written consent of Landlord, and no curtains,
blinds, shades or screens shall be attached to or hung in, or used in connection
with, any window or door of the Premises other than Landlord standard drapes.
All electrical ceiling fixtures hung in the Premises or spaces along the
perimeter of the Building must be fluorescent and/or of a quality, type, design
and a warm white bulb color approved in advance in writing by Landlord. Neither
the interior nor exterior of any windows shall be coated or otherwise
sunscreened without the prior written consent of Landlord. Tenant shall be
responsible for any damage to the window film on the exterior windows of the
Premises and shall promptly repair any such damage at Tenant's sole cost and
expense. Tenant shall keep its window coverings closed during any period of the
day when the sun is shining directly on the windows of the Premises. Prior to
leaving the Premises for the day, Tenant shall draw or lower window coverings
and extinguish all lights. Tenant shall abide by Landlord's regulations
concerning the opening and closing of window coverings which are attached to the
windows in the Premises, if any, which have a view of any interior portion of
the Building or Building Common Areas.
24. The sashes, sash doors, skylights, windows, and doors that reflect or
admit light and air into the halls, passageways or other public places in the
Building shall not be covered or obstructed by Tenant, nor shall any bottles,
parcels or other articles be placed on the windowsills.
25. Tenant must comply with requests by the Landlord concerning the
informing of their employees of items of importance to the Landlord.
26. Tenant must comply with all applicable "NO-SMOKING" or similar
ordinances, rules, laws and regulations.
27. Tenant hereby acknowledges that Landlord shall have no obligation to
provide guard service or other security measures for the benefit of the
Premises, the Building or the Project. Tenant hereby assumes all responsibility
for the protection of Tenant and its agents, employees, contractors, invitees
and guests, and the property thereof, from acts of third parties, including
keeping doors locked and other means of entry to the Premises closed, whether or
not Landlord, at its option, elects to provide security protection for the
Project or any portion thereof.
EXHIBIT D
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<PAGE> 52
Tenant further assumes the risk that any safety and security devices, services
and programs which Landlord elects, in its sole discretion, to provide may not
be effective, or may malfunction or be circumvented by an unauthorized third
party, and Tenant shall, in addition to its other insurance obligations under
this Lease, obtain its own insurance coverage to the extent Tenant desires
protection against losses related to such occurrences. Tenant shall cooperate in
any reasonable safety or security program developed by Landlord or required by
law.
28. All office equipment of any electrical or mechanical nature shall be
placed by Tenant in the Premises in settings approved by Landlord, to absorb or
prevent any vibration, noise and annoyance.
29. Tenant shall not use in any space or in the public halls of the
Building, any hand trucks except those equipped with rubber tires and rubber
side guards.
30. No auction, liquidation, fire sale, going-out-of-business or bankruptcy
sale shall be conducted in the Premises without the prior written consent of
Landlord.
31. No tenant shall use or permit the use of any portion of the Premises
for living quarters, sleeping apartments or lodging rooms.
32. Tenant shall not purchase spring water, towels, janitorial or
maintenance or other similar services from any company or persons not approved
by Landlord. Landlord shall approve a sufficient number of sources of such
services to provide Tenant with a reasonable selection, but only in such
instances and to such extent as Landlord in its judgment shall consider
consistent with the security and proper operation of the Building.
33. Tenant shall install and maintain, at Tenant's sole cost and expense,
an adequate, visibly marked and properly operational fire extinguisher next to
any duplicating or photocopying machines or similar heat producing equipment,
which may or may not contain combustible material, in the Premises.
Landlord reserves the right at any time to change or rescind any one or
more of these Rules and Regulations, or to make such other and further
reasonable Rules and Regulations as in Landlord's judgment may from time to time
be necessary for the management, safety, care and cleanliness of the Premises,
Building, the Common Areas and the Project, and for the preservation of good
order therein, as well as for the convenience of other occupants and tenants
therein. Landlord may waive any one or more of these Rules and Regulations for
the benefit of any particular tenants, but no such waiver by Landlord shall be
construed as a waiver of such Rules and Regulations in favor of any other
tenant, nor prevent Landlord from thereafter enforcing any such Rules or
Regulations against any or all tenants of the Project. Tenant shall be deemed to
have read these Rules and Regulations and to have agreed to abide by them as a
condition of its occupancy of the Premises.
EXHIBIT D
-4-
<PAGE> 53
EXHIBIT E
11818 WILSHIRE BOULEVARD
FORM OF TENANT'S ESTOPPEL CERTIFICATE
The undersigned as Tenant under that certain Office Lease (the "Lease")
made and entered into as of ___________, 199 by and between _______________ as
Landlord, and the undersigned as Tenant, for Premises on the ______________
floor(s) of the office building located at ______________, certifies as follows:
1. Attached hereto as Exhibit A is a true and correct copy of the Lease and
all amendments and modifications thereto. The documents contained in Exhibit A
represent the entire agreement between the parties as to the Premises.
2. The undersigned currently occupies the Premises described in the Lease,
the Lease Term commenced on __________, and the Lease Term expires on
___________, and the undersigned has no option to terminate or cancel the Lease
or to purchase all or any part of the Premises, the Building and/or the Project.
3. Base Rent became payable on ____________.
4. The Lease is in full force and effect and has not been modified,
supplemented or amended in any way except as provided in Exhibit A.
5. Tenant has not transferred, assigned, or sublet any portion of the
Premises nor entered into any license or concession agreements with respect
thereto except as follows:
6. Tenant shall not modify the documents contained in Exhibit A without the
prior written consent of Landlord's mortgagee.
7. All monthly installments of Base Rent, all Additional Rent and all
monthly installments of estimated Additional Rent have been paid when due
through ___________. The current monthly installment of Base Rent is
$_____________________.
8. All conditions of the Lease to be performed by Landlord necessary to the
enforceability of the Lease have been satisfied and Landlord is not in default
thereunder. In addition, the undersigned has not delivered any notice to
Landlord regarding a default by Landlord thereunder.
9. No rental has been paid more than thirty (30) days in advance and no
security has been deposited with Landlord except as provided in the Lease.
10. As of the date hereof, there are no existing defenses or offsets, or,
to the undersigned's knowledge, claims or any basis for a claim, that the
undersigned has against Landlord.
11. If Tenant is a corporation or partnership, each individual executing
this Estoppel Certificate on behalf of Tenant hereby represents and warrants
that Tenant is a duly formed and existing entity qualified to do business in
California and that Tenant has full right and authority to execute and deliver
this Estoppel Certificate and that each person signing on behalf of Tenant is
authorized to do so.
12. There are no actions pending against the undersigned under the
bankruptcy or similar laws of the United States or any state.
EXHIBIT E
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<PAGE> 54
13. Other than in compliance with all applicable laws and incidental to the
ordinary course of the use of the Premises, the undersigned has not used or
stored any hazardous substances in the Premises.
14. To the undersigned's knowledge, all tenant improvement work to be
performed by Landlord under the Lease has been completed in accordance with the
Lease and has been accepted by the undersigned and all reimbursements and
allowances due to the undersigned under the Lease in connection with any tenant
improvement work have been paid in full.
The undersigned acknowledges that this Estoppel Certificate may be
delivered to Landlord or to a prospective mortgagee or prospective purchaser,
and acknowledges that said prospective mortgagee or prospective purchaser will
be relying upon the statements contained herein in making the loan or acquiring
the property of which the Premises are a part and that receipt by it of this
certificate is a condition of making such loan or acquiring such property.
Executed at ______________ on the ____ day of ___________, 19 .
"Tenant"
_________________________________________________
a _____________________
By: ____________________________________________
Its: ______________________________________
By: _____________________________________________
Its: ______________________________________
EXHIBIT E
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<PAGE> 55
EXHIBIT F
APPROXIMATE LOCATION OF TENANT'S SIGN
[TO BE PROVIDED]
EXHIBIT F
-1-
<PAGE> 1
EXHIBIT 10.31
AFMA(R) INTERNATIONAL
FREE TV LICENSE AGREEMENT
This International Free TV License Agreement is made as of September 10,
1999 between TEAM Entertainment Group("Licensor") of 12300 Wilshire Boulevard,
Suite 400, Los Angeles CA 90025 [tel/fax:] (310) 442-3500/(310) 442-3501 and
String of Pearls PLC. - or order ("Licensee") of Bray Film Studios, Down Place,
Water Oakley, Windsor, Berks SL4 5UG [tel/fax]01628- 622111/01628-770381.
This Agreement is: [X] A new agreement;
[ ] A long form that replaces the deal memo regarding the
Programs;
[ ] An amendment to an existing agreement dated ________
Subject to timely payment of all monies due Licensor and Licensee's full
performance under this Agreement, Licensor licenses to Licensee, and Licensee
accepts from Licensor, the Licensed Rights in the Programs throughout the
Territory for the Term in the Authorized Languages subject to the Hold backs as
identified below on all the terms and conditions of this Agreement.
This Agreement consists of the following parts: this Cover Page; Table
of Contents; Deal Terms; Standard Terms; Schedule of Definitions; and the
following Attachment(s): [ ] Schedule of Programs;[ ] Access Letter;[ ]
Guaranty; and
-----------------------------------------------------
IN WITNESS WHEREOF, Licensor and Licensee have executed this Agreement
as of the date first written above to constitute a binding contract between
them.
LICENSOR LICENSEE
By: /s/ DREW S. LEVIN By: /s/ PETER GRAY
------------------- ----------------------------
Its: Its:
------------------ ---------------------------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C>
Section
Paragraph
DEAL TERMS
Program(s) A.
Territory B.
Authorized Language(s) C.
Term And License Period D.
Licensed Station E.
Free TV Rights F.
Exclusivity G.
Licensor's Hold backs H.
License Fee I.
Payment J.
Delivery Terms K.
Additional Terms L.
STANDARD TERMS AND CONDITIONS
Definitions And Usage 1.
Program And Versions 2.
Licensed Rights And Reserved Rights 3.
Allied Rights 4.
Territory, Holdback Region And Licensed Station 5.
Term And License Period 6.
Payment Requirements 7.
Delivery And Return 8.
Telecast Obligations 9.
Music 10.
Suspension And Withdrawal 11.
Default And Termination 12.
Anti-Piracy Provisions 13.
Licensor's Warranties 14.
Licensee's Warranties 15.
Indemnities 16.
Assignment And Sublicensing 17.
Miscellaneous Provisions 18.
SCHEDULE OF LICENSING DEFINITIONS
Free TV Rights Definitions A.
Additional Definitions B.
</TABLE>
<PAGE> 3
AFMA(R) INTERNATIONAL
FREE TV LICENSE AGREEMENT
DEAL TERMS
Mention in these Deal Terms of any right not specifically licensed to
Licensee in the Licensed Rights Deal Terms does not grant to Licensee
expressly or by implication any right not specifically licensed to
Licensee in the Licensed Rights Deal Terms.
A. PROGRAM(S): commercial (1/2) (hour) episodes, "_____________"
[X] As set forth on attached Schedule of Programs.
B. TERRITORY: Worldwide excluding U.S.; Canada; U.K.; Scandinavia; Benelux;
Spain; Middle East; Africa (including South Africa)
C. AUTHORIZED LANGUAGE(S): For each Program
[ ] Original Language; [X] Official Language(s) in Territory;
[ ]as needed to service territories [ ] Dubbed Only [ ] Subtitled Only
[ ] Dubbed and Subtitled
D. TERM AND LICENSE PERIOD:
Subject to Paragraph 6.1. of the Standard Terms:
1. Term: The Term starts on _September 10, 1999____and ends on:
a. The last Licensed Telecast of all Program(s), or
b. __September 9, 2004_____, or
c. [ ] years from
[ ] the date of this Agreement
[ ] the first Licensed Telecast of any Program.
[ ]
2. License Period: The period during which Licensee may exploit
the Licensed Right(s)
DT-1
<PAGE> 4
in each Program starts on the Availability Date for the Program and ends
on the earlier of the last Licensed Telecast for the Program or end of
the Term.
E. LICENSED STATION:
In accordance with Paragraph 5.4. of the Standard Terms:
[ ] All broadcasters for the licensed Free TV Rights in the Territory;
or [X] Licensee
F. PAY AND FREE TV RIGHTS: For each Program
<TABLE>
<CAPTION>
LICENSED RUNS PLAY DATES AVAILABILITY DATE
-------- ---- ---------- -----------------
<S> <C> <C> <C> <C>
Terrestrial [X] Yes [ ]No ____ [ ] To be advised (see Standard Terms Paragraph 6.3.);or
[ ] as set forth on attached Schedule of Programs
Cable [X] Yes [ ]No ____ [ ] To be advised (see Standard Terms Paragraph 6.3.); or
[ ] as set forth on attached Schedule of Programs
Satellite [X] Yes [ ]No ____ [ ] To be advised (see Standard Terms Paragraph 6.3.); or
[ ] as set forth on attached Schedule of Programs
Video [X] Yes [ ]No ____ [ ] To be advised (see Standard Terms Paragraph 6.3.); or
[ ] as set forth on attached Schedule of Programs
</TABLE>
The Availability Date for each Program is subject to Availability
Coordination within the Region in accordance with Paragraph 6.4. of the
Standard Terms.
G. EXCLUSIVITY:
The Licensed Rights, as defined in Paragraph 3.1. of the Standard Terms,
are:
[X] Exclusive except _______________________________________
[ ] Non-Exclusive except ___________________________________
H. LICENSOR'S HOLD BACKS:
In accordance with Paragraph 6.5. of the Standard Terms, the Hold backs
on Licensor's exploitation of any Reserved Rights in each Program will
be:
[X] None.
[ ] As set forth on the Schedule of Programs.
[ ] All Free TV in the Authorized Languages per Paragraph 6.5.1. of the
Standard Terms.
[ ] All Pay TV in the Authorized Languages per Paragraph 6.5.2. of the
Standard Terms.
[ ] __________________________________________________________________.
DT-2
<PAGE> 5
I. LICENSE FEE: US$5,375,000.00 (Total for all Programs)
The License Fee is a minimum net sum and no taxes or charges may be
deducted from it.
1. ALLOCATED:
[ ] As set forth on the attached Schedule of Programs, or
[ ] US$_______.00 [ ] per Run\Play date or [X ] per Program
2. PAYABLE:
The first payment will be made 60 days after execution of this
agreement for $289,000; thereafter we will send 17 monthly
payments at $283,000 starting on December 15, 1999 with one (1)
additional final payment of $275,000.
J. PAYMENT:
Licensee will pay the License Fee and any other payments due Licensor as
follows:
1. WT - WIRE TRANSFER [Check as appropriate]
[X] License Fee Installments: [X]I.2.a; [ ]I.2.b; [X]I.2.c;
[ ] Materials Charges (Section K.4)
Licensee will pay the indicated installments of the License Fee or other
payments by wire transfer of unencumbered funds, free of any transmission
charges, to the following account:
As indicated on invoices to follow
2. LC - LETTER OF CREDIT [Check as appropriate]
[ ] License Fee Installments: [ ]I.2.a; [ ]I.2.b; [ ]I.2.c; [ ]
Materials Charges (Section K.4)
Issued By: ______________ Open Until:______________
Renewable For: _____________________.
Licensee will pay the indicated installments of the License Fee or other
payments by an irrevocable Letter of Credit which meets the requirements
of Paragraph 7.2. of the Standard Terms. The Letter of Credit will be
issued by and remain open until the dates indicated above. The Letter of
Credit will be payable on presentation to Licensor's corresponding bank
of:
[Check all that apply]
[ ] SIGHT DRAFT in usual commercial form indicating payment due.
[ ] INVOICE for payments then due.
[ ] BILL OF LADING, such as an air waybill, evidencing shipment to
Licensee of the applicable Delivery Materials.
[ ] ACCESS LETTER substantially in the form attached for applicable
Delivery Materials.
3. OTHER:
[ ] License Fee Installments: [ ]I.2.a; [ ]I.2.b; [ ]I.2.c; [ ] Materials
Charges (Section K.4)
Licensee will pay the indicated installments of the License Fee or other
payments as follows:
DT-3
<PAGE> 6
K. DELIVERY TERMS:
1. PHYSICAL MATERIALS:
For each Program Licensor will make Delivery of the Physical Materials:
[ ] As specified in Licensor's Delivery Notice per Paragraph 8.1.; or
[X] By Delivering the following indicated items for the original
language version:
Item Delivery Method (Para. 8.1., Standard Terms)
FEATURE LOW CONTRAST PRINT [ ]Physical [ ]Access [ ]Loan [ ]Satellite
[ ]35mm [ ]16mm
TRAILER LOW CONTRAST PRINT [ ]Physical [ ]Access [ ]Loan [ ]Satellite
[ ]35mm [ ]16mm
PRINT MASTER (2 TRACK) [ ]Physical [ ]Access [ ]Loan [ ]Satellite
[ ]35mm [ ]Stereo [ ]Mono
[ ]16mm [ ]Stereo [ ]Mono
NTSC (525) [ ] Physical [ ]Access [ ]Loan [ ]Satellite
[X]1" [X]D1 [X]D2 [X]D3 [X]3/4" [X] Betacam SP
PAL(625) [ ] Physical [ ]Access [ ]Loan [ ]Satellite
[X]1" [X]D1 [X]D2 [X]D3 [X]3/4" [X] Betacam SP
2. SUPPORT MATERIALS:
Foreach Program Licensor will make Delivery of the Support
Materials:
[X] As available
[ ] As specified in Licensor's Delivery Notice per Paragraph 8.1.;
or
[ ] By Delivering the following items:
[ ] Feature Spotting List [ ] Press Book
[ ] Trailer Spotting List [ ] Electronic Press Kit
[ ] Feature Continuity [ ] Synopsis
[ ] Trailer Continuity [ ] Radio Spots (No.__)
[ ] Main & End Credits [ ] B&W Stills (No.__)
[ ] Paid Ad Credit [ ] Color Stills (No.__)
[ ] Dub/Sub Restrictions [ ] Color Slides (No.__)
[ ] Music Cue Sheets [ ] TV Spots (No.____)
[ ] As-Broadcast Scripts
3. DATE FOR DELIVERY NOTICE:
Licensor will give Licensee a Delivery Notice for each Program
no later than:
[X] Before its Availability Date; or
[ ] ____________________________________
4. MATERIALS PAYMENT INSTRUCTIONS: Licensee will pay for all Materials:
[ ] As specified in Licensor's Delivery Notice per Paragraph 8.1.;
[X] As follows: Licensee will pay US$100.00 per episode for masters
[ ] Materials on loan for fourteen (14) days, to be returned thereafter
DT-4
<PAGE> 7
5. MATERIALS SHIPPING INSTRUCTIONS:
Licensor will ship all Materials to Licensee:
[ ] As specified in Licensor's Delivery Notice per Paragraph 8.1.;
[X] As follows: Freight prepaid
L. ADDITIONAL TERMS:
1. GOVERNING LAW:
[X] California or [ ] _____________________________________
2. FORUM:
[X] Los Angeles County or [ ] _____________________________
3. ADDITIONAL DEAL TERMS:
None.
<PAGE> 8
"Schedule A"
Programs
<TABLE>
<S> <C>
1. Avenging
2. Billions for Boris
3. Confessions of a Married Man
4. Emergency Room
5. Getting It On
6. Goldrunner
7. Legs
8. New Girl
9. One Dark Night
10. Ordeal of Bill Carney
11. Private Sessions
12. Remembrance of Love
13. Sampson and Delila
14. Seduced
15. Snowballing
16. Sourdough
17. The Imposters
18. The Execution
19. This Wife for Hire
20. Valentine Magic On Love Island
</TABLE>
<PAGE> 1
EXHIBIT 21
TEAM COMMUNICATIONS GROUP, INC.
SUBSIDIARIES OF REGISTRANT
Longform Entertainment, Inc.
Simply Style Productions, Inc.
Amazing Tails, Inc.
Mary Lou's Flip Flop Shop, Inc.
Team Entertainment Germany GmbH
Team Dandelion Ltd.
<PAGE> 1
EXHIBIT 23.1
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 April 15, 1999,
relating to the financial statements of Team Communications Group, Inc., which
appears in such Prospectus. We also consent to the references to us under the
headings "Experts" and "Selected Consolidated Financial Data" in such
Prospectus.
/s/ STONEFIELD JOSEPHSON, INC.
STONEFIELD JOSEPHSON, INC.
Santa Monica, California
November 18, 1999
<PAGE> 1
EXHIBIT 23.2
[BARNES ROFFE LETTERHEAD]
STRICTLY PRIVATE AND CONFIDENTIAL
FOR ADDRESSEE ONLY:
The Directors Our Ref: MJM/SB/1211TEAM
TEAM Communications Group Inc
12300 Wilshire Boulevard
Suite 400
Los Angeles
California
90025
USA 12th November 1999
Dear Sirs,
DANDELION DISTRIBUTION LIMITED
We hereby consent to the use in the Prospectus constituting part of the
Registration Statement on Form SB-2 of our reports dated 15 October 1999 and
7 December 1998 relating to the financial statements of Dandelion Distribution
Limited which appear in such Prospectus, and state explicitly that the financial
statements and our reports thereon were prepared only for the purpose of
complying with UK statutory reporting requirements and they should not be relied
upon for any other purpose. We also consent to the reference to us under the
heading of "Experts" in such Prospectus.
Yours faithfully
/s/ BARNES ROFFE
- -------------------
BARNES ROFFE
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONDENSED CONSOLIDATED FINANCIAL STATEMENTS AS OF SEPTEMBER 30, 1999 AND FOR THE
NINE MONTHS THEN ENDED AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
FINANCIAL STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> SEP-30-1999
<CASH> 2,173,200
<SECURITIES> 0
<RECEIVABLES> 11,773,700
<ALLOWANCES> 837,000
<INVENTORY> 20,697,100
<CURRENT-ASSETS> 1,255,500
<PP&E> 110,700
<DEPRECIATION> 55,500
<TOTAL-ASSETS> 35,117,700
<CURRENT-LIABILITIES> 13,289,200
<BONDS> 4,387,200
0
0
<COMMON> 1,000
<OTHER-SE> 17,440,300
<TOTAL-LIABILITY-AND-EQUITY> 35,117,700
<SALES> 13,273,300
<TOTAL-REVENUES> 13,273,300
<CGS> 6,056,300
<TOTAL-COSTS> 9,328,000
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 500,000
<INTEREST-EXPENSE> 477,900
<INCOME-PRETAX> 3,054,700
<INCOME-TAX> 1,149,900
<INCOME-CONTINUING> 1,904,800
<DISCONTINUED> 0
<EXTRAORDINARY> 431,900
<CHANGES> 0
<NET-INCOME> 1,472,900
<EPS-BASIC> .35
<EPS-DILUTED> .29
</TABLE>
