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U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 10-KSB
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<S> <C>
(Mark One)
[X] ANNUAL REPORT UNDER SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934.
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1999 OR
[ ] TRANSITION REPORT UNDER SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934.
FOR THE TRANSITION PERIOD FROM TO
COMMISSION FILE NUMBER: 000-23-661
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ROCKWELL MEDICAL TECHNOLOGIES, INC.
(Name of Small Business Issuer in Its Charter)
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<S> <C>
MICHIGAN 38-3317208
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
28025 OAKLAND OAKS DRIVE
WIXOM, MICHIGAN 48393
(Address of Principal (Zip Code)
Executive offices)
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(248) 449-3353
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(Issuer's Telephone Number,
including Area Code)
Securities registered pursuant to Section 12(b) of the Exchange Act: NONE
Securities registered pursuant to Section 12(g) of the Exchange Act:
COMMON SHARES, NO PAR VALUE
(TITLE OF CLASS)
COMMON SHARE PURCHASE WARRANTS
(TITLE OF CLASS)
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Check whether the issuer: (1) filed all reports required to be filed by
Section 13 or 15(d) of the Exchange Act during the past 12 months (or for such
shorter period that the registrant was required to file such reports), and (2)
has been subject to such filing requirements for the past 90 days. YES [X] NO [
]
Check if there is no disclosure of delinquent filers in response to Item
405 of Regulation S-K is not contained in this form, and no disclosure will be
contained, to the best of registrant's knowledge, in definitive proxy or
information statements incorporated by reference in Part III of this Form 10-KSB
or any amendment to this Form 10-KSB. [ ]
State issuer's revenues for its most recent fiscal year: $6,688,914
State the aggregate market value of the voting and non voting common equity
held by non-affiliates: $13,084,794 as of March 24, 2000.
Indicate the number of shares outstanding of each of the issuer's classes
of common equity as of the latest practicable date: 4,854,397 Common Shares
outstanding and 3,625,000 Common Share Purchase Warrants outstanding as of March
24, 2000.
Documents incorporated by reference: Portions of the Registrant's
definitive Proxy Statement pertaining to the 2000 Annual Meeting of Shareholders
(the "Proxy Statement") filed pursuant to Regulation 14A are herein incorporated
by reference.
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PART I
ITEM 1. DESCRIPTION OF BUSINESS.
GENERAL
Rockwell Medical Technologies, Inc. (the "Company") is a Michigan
corporation, incorporated on October 25, 1996. From October 25, 1996 through
February 18, 1997 the Company had no operations and incurred only legal and
consulting expenses. On February 19, 1997, the Company acquired substantially
all of the assets of Rockwell Medical Supplies, L.L.C. and of Rockwell
Transportation, L.L.C. (collectively, the "Predecessor Company") used in
connection with the business of manufacturing hemodialysis concentrates and
dialysis kits and distributing and delivering these and other products to
hemodialysis clinics. The Predecessor Company began operations in January 1996.
Rockwell Medical Technologies, Inc. manufactures hemodialysis concentrates
and dialysis kits, and sells, distributes and delivers such concentrates and
dialysis kits, as well as other ancillary hemodialysis products, to hemodialysis
providers in the United States. Hemodialysis is a process which is able to
duplicate kidney function in patients whose kidneys have failed to function
properly. Without properly functioning kidneys, the patient's body cannot rid
itself of excess water and waste nor regulate the amount of electrolytes in the
patient's blood. Long-term dialysis treatments are essential for these patients'
survival.
INDUSTRY BACKGROUND
The Company provides products used in the treatment of patients with
end-stage renal disease ("ESRD"). In 2000 there are an estimated 300,000 ESRD
patients in the United States, whose permanent kidney failure requires long-term
dialysis for survival. According to the United States Department of Health and
Human Services ("DHHS"), the ESRD patient population has increased, on average,
7.9% per year for the five years preceding 1998. Incidence of kidney failure is
increasing as a by-product of the aging population, an increasing occurrence of
diabetes and hypertension, and increased use of prescription drugs. ESRD
patients are essentially treated as chronic patients, with repeated dialysis
treatments replacing their nonfunctioning kidneys. Most patients undergoing
hemodialysis treatments generally receive three treatments per week or 156
treatments per year, although the amount of weekly treatments may vary.
Hemodialysis patients generally receive their treatments at hospitals or
independent hemodialysis clinics. A hemodialysis provider, such as a hospital or
a freestanding clinic, uses a dialysis station to treat patients. A dialysis
station contains a dialysis machine that takes a concentrate solution and
certain chemical powders, such as the Company's solutions and powders, and
accurately dilutes them with purified water. The resulting solution, known as
dialysate, is then pumped through a device known as a dialyzer (artificial
kidney), while at the same time the patient's blood is pumped through a membrane
within the dialyzer. Excess water and chemicals from the patient's blood pass
through the membrane and are carried away in the dialysate while certain
chemicals in the dialysate penetrate the membrane and enter the patient's blood
to maintain proper chemical levels in the body. Dialysate generally contains
dextrose, sodium, calcium, potassium, magnesium, chloride and acetic acid. The
patient's physician chooses the formula required for each patient based on each
particular patient's needs, although most patients receive one of eight common
formulations.
In addition to using concentrate solutions and chemical powders (which must
be replaced for each use for each patient) a dialysis station requires various
other ancillary products such as on-off kits, sterile subclavian dressing change
trays, arterial and venous blood tubing lines, fistula needles, intravenous
administration sets, transducer protectors, dialyzers and various other
ancillary products, many of which the Company sells.
INDUSTRY TRENDS
The dialysis industry has experienced steady patient population growth
based on statistics complied by the DHHS, with the patient population increasing
between 7-11% each year over the last ten years. ESRD is an irreversible
deterioration of kidney function. Population segments with the highest incidence
of ESRD are also the fastest growing within the U.S. population including the
elderly, Hispanic and African-American
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population segments. More than 60% of new ESRD cases are attributed to either
diabetes or hypertension, while glomerulonephritis is the primary factor behind
nearly 11% of treated cases.
Hemodialysis providers are generally either independent clinics or
hospitals. According to the DHHS, since 1973 the total number of hemodialysis
providers in the United States has more than quintupled from 606 in 1973 to over
3,586 in December 1998. Independent providers comprised 2,723 of such providers,
hospitals comprised 628 of such providers and kidney transplant centers
comprised 235 of such providers at the end of 1998 according to the DHHS. The
Company currently supplies over 300 hemodialysis providers in over 22 states
across the United States. The number of patients receiving hemodialysis has also
grown substantially in recent years. According to the last published statistics
by the DHHS, in 1997 more than 228,000 patients were treated in
Medicare-approved renal facilities as compared to 68,390 patients in 1985.
According to the DHHS, from 1985 to 1998, the number of hemodialysis stations,
which are areas equipped to provide adequate and safe dialysis therapy, grew
from 17,845 stations to 53,983 stations. The number of Medicare-approved
dialysis machines increased by 3,130 stations or 6.2% between 1997 and 1998
based on the latest published statistics by the DHHS.
STRATEGY
The Company's long term objectives are to increase its market share, expand
its product line offering, extend its geographical coverage and improve its
profitability by implementing the following strategies:
- Acting as a Single Source Supplier. The Company has positioned itself as
an independent "one-stop-shop" to its customers for the concentrates,
chemicals and supplies necessary to support a hemodialysis provider's
operation. Some of the Company's competitors for concentrates do not
offer a full line of hemodialysis products requiring customers to do
business with a number of suppliers in order to purchase necessary
supplies. Rockwell offers a full line of hemodialysis supplies.
- Increasing Revenue Through Sales of New Products. The Company introduced
two new product lines in 1999; Dri-Sate(TM) Dry Acid Concentrate and
SteriLyte(TM) Liquid Bicarbonate. The Company believes that these are
superior to competitors' product offerings. The Company successfully
introduced the Dri-Sate(TM) product line in 1999 and it has grown to
represent a significant share of the Company's acid concentrate sales in
its first year. The Company anticipates Dri-Sate(TM) will continue to
capture market share and will allow the Company to achieve its gross
margin objectives. The Company also anticipates that its SteriLyte(TM)
Liquid Bicarbonate product line will gain market share in the acute care
market segment due to its higher quality and longer shelf life.
- Increasing Revenue Through Ancillary Product Line Expansion. The Company
believes that the market potential for ancillary products and supplies
used by hemodialysis providers is equivalent to or greater than the
market for dialysis concentrates. The Company's strategy is to offer cost
effective ancillary products that include ancillary products such as
specialized kits, fistula needles, gloves, chemicals, sterile dressings
and blood tubing. Many of these ancillary items are purchased based on
price and are generally acquired from various suppliers. The Company
believes that as it continues to gain market share that it will
increasingly be able to procure these ancillary items on a cost effective
basis and will provide its customers with convenience from a single
supply source at a highly competitive price level.
- Offering a Higher Level of Delivery/Customer Service. By using its own
delivery vehicles and drivers, the Company believes that it can offer a
higher level of customer service to hemodialysis providers than if it
relied primarily on the use of common carriers to distribute its
products. The Company's drivers perform services for customers that are
generally not available from common carriers, such as stock rotation,
non-loading-dock delivery and drum pump-offs. A drum pump-off requires
the driver to pump hemodialysis concentrates from a 55 gallon drum into
larger holding tanks within the hemodialysis clinic. The Company believes
that its main competitors generally use common carriers for delivery of
their products. The Company believes it offers a higher level of
distribution service to its customers through the use of its own delivery
vehicles and drivers.
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- Expanding Market Share in Target Regions. Because of the costs associated
with transporting and delivering hemodialysis concentrates, the Company
believes that it has a competitive cost advantage with certain clinics
that are located within a reasonable proximity to the Company's
manufacturing facility over other manufacturers outside of such
proximity. The Company also believes that it can add additional
manufacturing sites in certain geographic regions that will provide it
with a competitive cost advantage and with superior customer service
levels due to their proximity to the customer. The Company intends to
leverage its existing customer relationships to expand into geographic
areas where it currently has a minor or negligible presence.
PRODUCTS
The Company manufactures hemodialysis concentrates and sells, distributes
and delivers such products, as well as a full line of ancillary hemodialysis
products to hemodialysis providers and distributors located in more than 22
states as well as several foreign countries. Hemodialysis concentrates are
comprised of two primary product types, which are generally described as acid
dialysate and bicarbonate.
"Acidified Dialysate Concentrate"
Acid dialysate generally contains sodium chloride, dextrose and electrolyte
additives such as magnesium, potassium, and calcium. Acid products are
manufactured in three basic series to reflect the dilution ratios used in
dialysis machines which are manufactured by various companies. The Company
supplies all three product series and currently manufactures approximately 60
different formulations. The Company supplies liquid acid concentrate in both 55
gallon drums and in cases with 4 - 1 gallon containers.
"Bicarbonate"
Bicarbonate is generally sold in powder form and each clinic generally
mixes bicarbonate on site as required. The company offers approximately 20
bicarbonate products covering all three series of manufacturers' bicarbonate
dilution ratios.
"Ancillary Products"
The Company offers a wide range of ancillary products including fistula
needles, gloves, kits, dressings, cleaning agents, filtration salts and other
supplies used by hemodialysis providers.
NEW PRODUCTS
In June of 1998 and June of 1997, the Company obtained 510(k) clearance
from the FDA to manufacture and market two new products, Dri-Sate(TM) Dry Acid
Concentrate and SteriLyte(TM) Liquid Bicarbonate. These products enhance the
Company's previous product offerings of acid concentrate in a liquid form and
bicarbonate in a powder form.
"Dri-Sate(TM) Dry Acid Concentrate"
The Company's Dri-Sate(TM) Dry Acid Concentrate allows a clinic to mix its
acid concentrate on-site. The clinical technician, using a specially designed
mixer, adds pre-measured packets of the necessary ingredients to 50 or 100
gallons of purified water (AMII standard). Once mixed, the product is similar to
the acid provided to the clinic in liquid form. By using Dri-Sate(TM) Dry Acid
Concentrate numerous advantages are realized by the clinics including lower cost
per treatment, increased storage space, reduced number of deliveries and more
flexibility in scheduling. The Company believes it will attain increased profit
margins due to the reduction in freight cost associated with shipping the dry
product as compared to the liquid form. The Company also believes it will
generate increased back-haul revenue due to the elimination of returning empty
drums to the Company's facility, thus allowing its trucks to obtain increased
back-haul revenue from third parties.
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"SteriLyte(TM) Liquid Bicarbonate"
The Company's SteriLyte(TM) Liquid Bicarbonate, which is used primarily in
acute care settings, is currently the only liquid bicarbonate on the market
manufactured utilizing a process called gamma irradiation. Historically, other
manufacturers have been required to recall product due to excess levels of molds
and bacteria in their product. Gamma irradiation is a process that minimizes the
presence of mold and bacteria in the product thereby providing a higher quality
product to the customer. The Company's SteriLyte(TM) Liquid Bicarbonate, by
utilizing gamma irradiation, offers the dialysis community a high-quality
product and provides the clinic a safe and uninterrupted supply source.
DISTRIBUTION AND DELIVERY OPERATIONS
The majority of the distribution of the Company's products is provided by
the Company's subsidiary, Rockwell Transportation, Inc. Rockwell Transportation,
Inc. leases and operates a fleet of twelve trucks which are used to deliver
products to the Company's customers. A minor portion of the Company's
deliveries, primarily to medical products distributors, is provided by common
carriers contracted by the Company on a competitive rate basis.
Rockwell Transportation, Inc. currently employs twelve drivers to operate
its truck fleet, one dispatcher, and an individual to manage its trucking
operations. The Company's liquid acid concentrates are generally packaged in
55-gallon re-usable drums weighing approximately 550 pounds each. The Company
performs services for customers that are generally not available from common
carriers, such as stock rotation, non-loading-dock delivery and drum pump-offs.
The Company's primary competitors generally use common carriers and/or do not
perform the same services for delivery of their products. The Company believes
it offers a higher level of service to its customers through the use of its own
delivery vehicles and drivers.
As the Company continues to grow and migrate its product mix to its
Dri-Sate(TM) Dry Acid Concentrate the Company anticipates that it will achieve
distribution efficiencies from its truck fleet as a result of reduced frequency
of deliveries, increased end user sales volume per truckload and increased
back-haul revenue.
The Company's trucking operations are and will continue to be subject to
various state and federal regulations, which if changed or modified, could
adversely affect the Company's business, financial condition and results of
operations.
SALES AND MARKETING
The Company primarily sells its products directly to domestic hemodialysis
providers through three independent sales representative companies and two
direct salespeople employed by the Company. In addition, the President and Chief
Executive Officer of the Company leads and directs the sales efforts to the
Company's major accounts. The Company also utilizes two independent distributors
in the United States. Certain international customers are sold through sales
agents.
The Company's sales and marketing initiatives are directed at purchasing
decision makers at both large for profit national and regional hemodialysis
chains and toward independent hemodialysis service providers. The Company's
marketing efforts include advertising in trade publications, distribution of
product literature and attendance at industry trade shows and conferences.
Targeted audiences of the Company's sales and marketing efforts include clinic
administrators, purchasing professionals, nurses, hospital administrators and
nephrologists.
COMPETITION
The Company competes against larger more established competitors with
substantially greater financial, technical, manufacturing, marketing, research
and development and management resources than those of the Company. The Company
competes against three major competitors, of which its two largest competitors
are primarily in the business of operating hemodialysis clinics. The two largest
providers of hemodialysis concentrates are Fresenius Medical Care, Inc.
("Fresenius") and Gambro Healthcare, Inc. ("Gambro") who
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the Company believes also have the first and third largest ESRD patient base in
the United States. These companies produce and sell a more comprehensive line of
dialysis equipment, supplies and services.
Fresenius treats an estimated 59,000 dialysis patients in the United States
and operates an estimated 800 clinics. It also has a renal products business
that manufactures a broad array of equipment including dialysis machines,
dialyzers (artificial kidneys), concentrates and other supplies used in
hemodialysis. In addition to its captive customer base in its own clinics,
Fresenius also serves other clinic chains and independent clinics with its broad
array of products. The Company believes that Fresenius sources its concentrate
manufacturing through two of its own manufacturing facilities (California and
New Jersey) and through a private label manufacturer in the eastern United
States. Fresenius operates an extensive warehouse network in the United States
serving its captive customer base and other independent clinics.
Gambro treats an estimated 35,000 dialysis patients in the United States
and operates approximately 475 clinics. Gambro manufactures and sells
hemodialysis machines and other ancillary supplies. Gambro sells its concentrate
solutions to both its own captive clinic base and to other clinic chains and
independent clinics. The Company believes that Gambro operates one manufacturing
facility in Central Florida and additionally sources concentrate through a
private label manufacturer in the eastern United States. The Company also
imports products from its European manufacturing facilities. The Company
believes that Gambro engages a third party trucking company to deliver its
products throughout the United States directly from the point of manufacture.
Gambro serves the independent clinic market with concentrate products used by
its brand of dialysis machines as well as those machines manufactured by its
competitors in that segment.
The Company also competes against the Renal Systems division of Minntech
Corporation ("Minntech"). In its Renal Systems division, Minntech primarily sell
concentrates and Renalin, a specialty reuse agent for dialyzers and does not
offer the full breadth of products offered by the Company. The Company believes
that Minntech has one domestic manufacturing facility located in Minnesota and a
distribution center in Camp Hill, Pennsylvania. The Company believes that
Minntech largely uses its own vehicles for delivery of product to customers.
QUALITY ASSURANCE AND CONTROL
The U.S. Food and Drug Administration ("FDA") has expanded the regulatory
requirements governing manufacturers of medical devices effective January 1,
2000. The Company has revised its operational manuals and quality system to
conform with the new regulations.
To assure quality and consistency of the Company's concentrates, the
Company conducts specific analytical tests during the manufacturing process for
each type of product that it manufactures. The Company's quality control
laboratory conducts analytical tests to verify that the chemical properties of
the mix comply with the specifications required by industry standards. Upon
verification that a batch meets those specifications, the Company then packages
those concentrates. The Company also tests packaged concentrates at the
beginning and end of each production run to assure product consistency during
the filling process. Each batch is assigned a lot number for tracking purposes
and becomes available for shipment subsequent to verification that all product
specifications have been met.
The Company utilizes automated testing equipment in order to assure quality
and consistency in the manufacture of its concentrates. The equipment allows the
Company to analyze the materials used in the hemodialysis concentrate
manufacturing process, to assay and adjust the in-process hemodialysis
concentrate, and to assay and certify that the finished products are within the
chemical and biological specifications required by industry regulations. The
Company's testing equipment provides it with high degree of accuracy and
efficiency in performing the necessary testing.
GOVERNMENT REGULATION
The testing, manufacture and sale of the Company's hemodialysis
concentrates and the ancillary products distributed by the Company are subject
to regulation by numerous governmental authorities, principally the United
States Food and Drug Administration ("FDA") and corresponding state and foreign
agencies.
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Pursuant to the Federal Food, Drug and Cosmetic Act (the "FDA Act"), and the
regulations promulgated thereunder, the FDA regulates the pre-clinical and
clinical testing, manufacture, labeling, distribution and promotion of medical
devices. Noncompliance with applicable requirements can result in, among other
things, fines, injunctions, civil penalties, recall or seizure of products,
total or partial suspension of production, failure of the government to grant
pre-market clearance or pre-market approval for devices, withdrawal of marketing
clearances or approvals and criminal prosecution.
A medical device may be marketed in the United States only with prior
authorization from the FDA unless it is subject to a specific exemption. Devices
classified by the FDA as posing less risk than class III devices are categorized
as class I (general controls) or class II (general and specific controls) and
are eligible to seek "510(k) clearance." Such clearance generally is granted
when submitted information establishes that a proposed device is "substantially
equivalent" in intended use to a class I or II device already legally on the
market or to a "pre-amendment" class III device (i.e., one that has been in
commercial distribution since before May 28, 1976) for which the FDA has not
called for pre-market approval ("PMA") applications. The FDA in recent years has
been requiring a more rigorous demonstration of substantial equivalence than in
the past, including requiring clinical trial data in some cases. For any devices
that are cleared through the 510(k) process, modifications or enhancements that
could significantly affect safety or effectiveness, or constitute a major change
in the intended use of the device, will require new 510(k) submissions. The
Company believes that it now usually takes from one to four months from the date
of submission to obtain 510(k) clearance, but it can take substantially longer.
The Company's hemodialysis concentrates, liquid bicarbonate and other ancillary
products are categorized as class II devices.
A device requiring prior marketing authorization that does not qualify for
510(k) clearance is categorized as class III, which is reserved for devices
classified by FDA as posing the greatest risk (e.g., life-sustaining,
life-supporting or implantable devices), or devices that are not substantially
equivalent to a legally marketed class I or class II device. A class III device
generally must receive approval of a PMA application, which requires proving the
safety and effectiveness of the device to the FDA. The process of obtaining PMA
approval is expensive and uncertain. The Company believes that is usually takes
from one to three years after filing, but it can take longer.
If human clinical trials of a device are required, whether for a 510(k)
submission or a PMA application, and the device presents a "significant risk,"
the sponsor of the trial (usually the manufacturer or the distributor of the
device) will have to file an investigational device exemption ("IDE")
application prior to commencing human clinical trials. The IDE application must
be supported by data, typically including the results of animal and laboratory
testing. If the IDE application is approved by the FDA and one or more
appropriate Institutional Review Boards ("IRBs"), human clinical trials may
begin at a specific number of investigational sites with a specific number of
patients, as approved by the FDA. If the device presents a "non-significant
risk" to the patient, a sponsor may begin the clinical trial after obtaining
approval for the study by one or more appropriate IRBs without the need for FDA
approval.
Any devices manufactured or distributed by the Company pursuant to FDA
clearances or approvals are subject to pervasive and continuing regulation by
the FDA and certain state agencies. Manufacturers of medical devices for
marketing in the United States are required to adhere to applicable regulations
setting forth detailed Good Manufacturing Practice ("GMP") requirements, which
include testing, control and documentation requirements. Manufacturers and
distributors must also comply with Medical Device Reporting ("MDR") requirements
that a firm report to the FDA any incident in which its product may have caused
or contributed to a death or serious injury, or in which its product
malfunctioned and, if the malfunction were to recur, it would be likely to cause
or contribute to a death or serious injury. Labeling and promotional activities
are subject to scrutiny by the FDA and, in certain circumstances, by the Federal
Trade Commission. Current FDA enforcement policy prohibits the marketing of
approved medical devices for unapproved uses.
The Company is subject to routine inspection by the FDA and certain state
agencies for compliance with GMP requirements and other applicable Quality
System regulations. The Company also is subject to numerous federal, state and
local laws relating to such matters as safe working conditions, manufacturing
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practices, environmental protection, fire hazard control, transportation and
disposal of hazardous or potentially hazardous substances.
The Company has 510(k) clearance from the FDA to market hemodialysis
concentrates in both liquid and powder form. In addition, the Company has
received 510(k) clearance for its Dri-Sate Dry Acid Concentrate Mixer. The
Company's retention of such 510(k) clearances is also dependent upon its
compliance with the FDA Act and related laws and regulations, including GMP
regulations. There can be no assurance that the Company will maintain its 510(k)
authority from the FDA to manufacture and distribute its products. Failure to do
so could result in the need to cease manufacturing and/or distributing the
Company's products, which would have a material adverse effect on the Company's
business, financial condition and results of operations. If any of the Company's
FDA clearances are denied or rescinded, sales of the Company's products in the
United States would be prohibited during the period the Company does not have
such clearances.
TRADEMARKS & PATENTS
The Company has several trademarks and or service marks used on its
products and in its advertising of such products, and has applied for U.S.
registration of such marks.
The Company has applied for U.S. and international patents on its
Dri-Sate(TM) Dry Acid Concentrate method and apparatus for preparing liquid
dialysate. The Company has no other patents.
SUPPLIERS
The Company believes that the raw materials for the Company's hemodialysis
concentrates, the components for the Company's hemodialysis kits and the
ancillary hemodialysis products distributed by the Company are generally
available from several potential suppliers. Principal suppliers include Morton
Salt Company, Church & Dwight Co. Inc., and Ashland, Inc.
CUSTOMERS
The Company operates in one market segment which involves the manufacture
and distribution of hemodialysis concentrates, dialysis kits and ancillary
products used in the dialysis process to hemodialysis clinics. For the year
ended December 31, 1999, the Company had sales in excess of 10% of revenue with
two customers representing approximately 25% of total sales. For the year ended
December 31, 1998, one customer in the United States accounted for approximately
15% of total revenue.
EMPLOYEES
As of March 23, 2000, the Company had approximately fifty five employees,
of which two were salespeople, four were laboratory technicians, twelve were
truck drivers and eight were engaged in corporate management and administration.
The remaining employees were hourly workers including clerical and plant
employees. The Company's arrangements with its employees are not governed by any
collective bargaining agreement. Employees are employed on an "at-will" basis
with the exception of Mr. Thomas E. Klema, the Company's Vice President, Chief
Financial Officer and Secretary. The employment agreement of Mr. Robert L.
Chioini, Chairman, President and Chief Executive Officer, expired February 19,
2000 and he is currently in negotiation with the Board of Directors with respect
to a new employment agreement. The Company intends to add personnel to staff a
second manufacturing facility. In addition, if the Company's sales volumes
increase, the Company expects to add additional production, distribution, and
administrative resources.
OTHER
The Company does not engage in any significant research and development
activity. The Company does not anticipate any significant cost or impact from
compliance with environmental laws.
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ITEM 2. DESCRIPTION OF PROPERTY.
The Company leases a 34,500 square foot facility located in Wixom,
Michigan, which is comprised of manufacturing, warehouse, office and laboratory
space. The Company is party to a lease (the "Lease") covering such facility that
expires on December 15, 2000 and provides for a monthly rental payment of
$19,771, plus a monthly escrow deposit of $ 3,323 to fund real estate taxes.
This facility was formerly leased by the Predecessor Company, and the Lease was
assigned to the Company in connection with the acquisition of the Predecessor
Company's business. In connection with such assignment of the Lease, the
landlord required the Company to deposit into escrow $178,000 which is to be
applied against future lease payments and as additional security deposit in
accordance with the assignment agreement. At December 31, 1999 $59,313 remained
in the escrow account to be used against future payments with the balance to be
held as a security deposit refundable at lease termination subject to certain
conditions.
On March 12, 2000 the Company entered into an agreement to lease a 51,000
square foot facility in Grapevine, Texas with occupancy anticipated in the
second quarter of 2000. The lease agreement commences upon completion of
modifications to the facility by the lessor. The principal provisions under the
five year lease term include base monthly rental payments of $17,521 and payment
of common area maintenance costs by the lessee.
The Company believes that these facilities are suitable and adequate to
meets its production and distribution requirements. However, should the
Company's business continue to expand, the Company may require additional
capacity to meet its requirements.
ITEM 3. LEGAL PROCEEDINGS.
The Company is not a party to any material pending legal proceedings.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.
Not Applicable.
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PART II
ITEM 5. MARKET FOR COMMON EQUITY AND RELATED SHAREHOLDER MATTERS.
The Company's Common Shares and Common Share Purchase Warrants are traded
on the Nasdaq SmallCap Market under the symbols RMTI and RMTIW, respectively.
The Common Shares and Common Share Purchase Warrants began trading on the Nasdaq
SmallCap Market on January 26, 1998 at an initial public offering price of $4.00
per Common Share and $0.10 per Common Share Purchase Warrant.
The prices below are the high and low bid prices as reported by Nasdaq in
each quarter since the Company's securities began trading on January 26, 1998.
The below prices reflect inter-dealer prices, without retail mark-up, mark down
or commission and may not represent actual transactions.
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BID PRICE
INFORMATION
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QUARTER ENDED HIGH LOW
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March 31, 1998.............................................. $5.375 $1.375
June 30, 1998............................................... 3.000 1.063
September 30, 1998.......................................... 3.875 2.188
December 31, 1998........................................... 2.750 1.375
March 31, 1999.............................................. 3.625 1.906
June 30, 1999............................................... 4.313 3.125
September 30, 1999.......................................... 4.750 2.625
December 31, 1999........................................... 4.063 1.938
</TABLE>
As of March 10, 2000 there were 37 record holders of the Common Shares and
35 record holders of the Common Share Purchase Warrants.
DIVIDENDS
The payment of dividends by the Company is within the discretion of its
Board of Directors and depends in part upon the Company's earnings, capital
requirements, financial condition and requirements, future prospects,
restrictions in future financing agreements, business conditions and other
factors deemed relevant by the Board. Since its inception, the Company has not
paid any cash dividends on its Common Shares and does not anticipate paying such
dividends in the foreseeable future. The Company intends to retain earnings, if
any, to finance the development and expansion of its operations.
ITEM 6. MANAGEMENT'S DISCUSSIONS AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS.
OVERVIEW
The Company was formed for the purpose of acquiring substantially all the
assets of Rockwell Medical Supplies, L.L.C., and a related entity, Rockwell
Transportation, L.L.C. (collectively the "Predecessor Company"). The Company
acquired the Predecessor Company on February 19, 1997 for an adjusted purchase
price of approximately $2.1 million. The Company funded the initial payment of
$525,000 related to the purchase from the proceeds of a private placement of
495,000 of the Company's Common Shares (the "First Prior Financing"). The
balance of the $1.2 million in net proceeds raised in the First Prior Financing
was used to fund the Company's net losses and capital equipment purchases. In
May through July, 1997, the Company sold 520,000 Common Shares and 520,000
Common Share Purchase Warrants (the "Second Prior Financing") for net proceeds
of approximately $1.3 million of which $500,000 was used to further reduce the
obligation related to the purchase of the Predecessor Company. The balance of
the funds raised in the Second Prior Financing was used to fund the Company's
continued net losses and for capital equipment expenditures. The remaining
purchase obligation related to the Predecessor Company was converted into
1,095,915 Series A Preferred Shares.
9
<PAGE> 11
On January 26, 1998 the Company sold 1,800,000 Common Shares and 3,105,000
Common Share Purchase Warrants pursuant to a registration statement filed with
the Securities and Exchange Commission (the "IPO") for net proceeds of $5.8
million. The proceeds were used to redeem all of the Series A Preferred Shares
and reduce other liabilities as stated in the prospectus. The remaining cash of
approximately $3.3 million was available to fund the future growth of the
Company including working capital and capital expansion.
RESULTS OF OPERATIONS
For the year ended December 31, 1999 compared to the year ended December 31,
1998
For the year ended December 31, 1999, sales were $6.7 million as compared
to sales of $5.3 million for 1998. Rockwell Medical Technologies, Inc. continued
to have success in 1999 at attracting new customers with revenue increasing by
27% over 1998. Sales increased in 1999 due to combination of factors including
new products, new business and improved pricing, which was partially offset by a
reduction in lower margin distributor sales volume. The Company increased the
sales revenue of its concentrate products by $1.4 million in 1999 compared to
1998. The Company's freight revenue which represented 4% of total revenue,
increased by 17% in 1999 compared to 1998 while ancillary product sales
decreased by 2%. New products sales represented a 20% increase over 1998.
The Company's concentrate sales, which represented 88% of the Company's
1999 revenue, increased by 31% in 1999 over 1998 due to new products, improved
customer mix and increased business volume. During 1999, Rockwell signed supply
agreements with several multi-unit chains of hemodialysis providers that
contributed to the Company's increased revenue. The Company believes that
customers are attracted to its product offering due to its high quality
products, its broad range of products and formulations and its high level of
delivery and customer service. The Company successfully introduced two new
product lines in 1999 which were its Dri-Sate(TM) Dry Acid Concentrate and its
SteriLyte(TM) Liquid Bicarbonate product lines. New product sales represented
24% of the total 31% increase in concentrate revenue in 1999 over 1998. As a
result of changes to customer mix, changes to product mix and improved pricing,
the Company's actual average selling prices on its concentrate products
increased by 8.6% in 1999 over 1998.
Dri-Sate(TM) Dry Acid Concentrate was the primary catalyst behind the
Company's increased sales in 1999. Dri-Sate is a concentrated powder form of the
Company's liquid acid concentrate products. Customers are attracted to
Dri-Sate(TM) due to its convenience of use compared to 55 gallon drums, its
reduced frequency of deliveries, reduced space requirements, the high level of
the product quality and ease of use of the Company's mixing system.
Dri-Sate(TM), which was rolled out to the market in early 1999, represented 25%
of total acid sales in 1999.
In addition to sales growth in its customer base, the Company also realized
increased sales revenue in the fourth quarter of 1999 from customers electing to
purchase and store product that was surplus to normal operating requirements as
a risk management measure in anticipation of the possibility of a Year 2000
related disruption to their product supply chain. Subsequently, no such problems
were experienced by the Company and the Company believes no such problems were
experienced by its suppliers or its customers. The Company estimates that
approximately 2-3% of its 1999 sales represented additional stocking by
customers in excess of normal supply requirements. These additional purchases in
1999 are expected to diminish purchase requirements in 2000.
The Company's freight revenue, derived primarily from increased back-haul
revenue on the Company's truck fleet, increased by $38,000 in 1999 over 1998.
Ancillary product revenue consisting of a wide range of ancillary supplies
decreased approximately 2%. Ancillary sales represented 8% of revenue in 1999
compared to approximately 11% in 1998.
Gross profit increased by $1.1 million on a sales increase of $1.4 million,
reaching $911,000 in 1999 from a deficit of ($171,000) in 1998. Contributing to
the Company's improved profitability has been an increase in higher margin
direct ship customers with a more favorable product mix. The Company has gained
distribution efficiencies through the sale of its Dri-Sate(TM) Dry Acid
Concentrate product line. Gross profit margins as a
10
<PAGE> 12
percentage of sales improved to 13.6% in 1999 from a deficit of 3.2% in 1998.
The Company's gross profit margins increased by 16.8% to sales in 1999 over 1998
due to increased sales volumes, improved customer mix and improved product mix.
Selling, General and Administrative Costs aggregated $2,043,000 in 1999
compared to $1,871,000 in 1998 or an increase of $172,000. Cost increases were
incurred primarily to support increased business activities and for the
marketing introduction and sales of new product lines. The Company rolled out
product launches in 1999 for its Dri-Sate(TM) Dry Acid Concentrate and
SteriLyte(TM) Liquid Bicarbonate product. Sales and marketing expenses increased
$80,000 over 1998. Personnel costs increased $100,000 compared to 1998. The
Company paid consulting fees to the firm of Wall Street Partners, Inc. in both
1999 and 1998 aggregating $240,000 and $290,000 respectively. As of January 1,
2000, the Company elected not to renew its consulting agreement with Wall Street
Partners, Inc.
Interest Income aggregated $61,000 in 1999 compared to $113,600 in 1998.
The decrease in interest income was due to reduced funds available for
investment.
The Company incurred a loss of ($1,071,000) for 1999 which represented a
reduction of $857,000 from its loss in 1998 which was ($1,928,000). The Company
has not recorded a federal income tax benefit from its current or prior losses
given a lack of assurance of realization of the carryforward benefit of those
losses.
Net Loss per share decreased to ($.22) in 1999 from ($.41) in 1998. Of the
$.19 improvement in the loss per share, nearly all of the improvement was from
improvement in operating results due to increased sales and improving gross
profit margins. An increase in average shares outstanding in 1999 contributed
$.005, or less than one half of one cent, of the improvement in loss per share.
For the year ended December 31, 1998 compared to the year ended December 31,
1997
Results of operations for the year ended December 31, 1997 include the
transactions of the business from the purchase date of February 19, 1997 through
December 31, 1997 or approximately a ten and one-half month period. Because of
this short period of operations in 1997 the period is not directly comparable to
the year ended December 31, 1998. The one and one-half months of operation of
the Predecessor Company from January 1, 1997 through February 19, 1997 must be
considered to make appropriate comparisons.
For the year ended December 31, 1998, sales were approximately $5.3 million
as compared to sales of $3.3 million for the short period of 1997 or $3.7
million after adjusting for the Predecessor Company. The 1998 sales represent an
increase of 44% over the pro forma 1997 sales levels. The net increase of $1.6
million on a pro forma basis is attributable to new business of $1.7 million,
price increases realized in 1998 of approximately $300,000, and was partially
offset by a decrease in export sales of $400,000.
For the year ended December 31, 1998, sales of acid concentrate accounted
for 54% of sales and bicarbonate accounted for 30% of sales as compared to 54%
and 23% of sales, respectively, in 1997. These two product lines, which are the
critical components of dialysate used by the Company's customers comprised the
majority of the Company's sales in both 1998 and 1997. Ancillary products
accounted for 11% of total sales in 1998 compared to 14% of sales in 1997.
Revenue generated from the Company's trucking subsidiary for trucking services
provided to non-affiliated third parties accounted for approximately 5% of total
sales in 1998 as compared to 9% of sales in 1997.
The Company incurred a gross margin deficit of ($171,000) for the period
ended December 31, 1998 as compared to a deficit of ($448,000) for the short
period of 1997 and ($613,000) for the year ended December 31, 1997 after
considering the results of the Predecessor Company. The improvement in the gross
deficit of $442,000 in 1998 as compared to the adjusted 1997 deficit is
partially attributable to the increased selling prices achieved in 1998 totaling
$300,000 for the period. In addition, reduced vendor prices on material, use of
less expensive alternative production materials, labor productivity
improvements, and more efficient routings of company trucks comprised total cost
reductions of $223,000 in 1998 as compared to the adjusted 1997 period. Lower
gross profit from reduced export sales partially offset these improvements by
$81,000. These factors occurred principally during the last six months of 1998
and the Company ended the year with a positive gross margin of 5% in the fourth
quarter of 1998.
11
<PAGE> 13
Selling, general and administrative expense was $1.9 million in the year
ended December 31, 1998 as compared to $1.4 million for the short period of 1997
or $1.6 million after adjusting to include the Predecessor Company's expenses to
reflect the full year of 1997. Approximately one half of this increase is due to
expenses associated with public company matters including investor relations
consulting, publications and communications. The balance of the increased
selling, general and administrative expense is due to higher administrative
salaries including the non-cash expense related to employee stock options.
Interest income in the year ended 1998 was $113,000 as compared to $66,000
of expense in the short period of 1997. The difference is directly attributable
to using the proceeds from the IPO to reduce interest bearing obligations and
the investment of the remaining cash on hand in short term securities.
The Company has reported losses for the period ended December 31, 1998 of
($1.9) million which was approximately the same as the short period in 1997 and
representing a $300,000 improvement over 1997 on a proforma basis after adding
the Predecessor Company's results to reflect a full year of operations. The
Company has not recorded a federal income tax benefit given the continued losses
and the lack of assurance of realization of the loss carried forward.
The loss per share was ($.41) in the year ended December 31, 1998 as
compared to ($.64) in the period since the purchase through December 31, 1997 or
a loss of ($.76) per share after adjustment for the full year. The improvement
of $.35 cents per share from the adjusted 1997 results to the actual 1998
results is primarily attributable to the increased shares outstanding from the
IPO. The additional shares accounted for $.29 cents per share of the
improvement. The lower net loss in 1998 as compared to the 1997 adjusted net
loss resulted in a $.06 per share improvement.
YEAR 2000 ISSUES AND CONSEQUENCES
The Company has experienced no adverse consequences from Year 2000 computer
problems internally or externally with its vendors or customers. No problems
have been experienced with the Company's other operating systems and equipment.
Prior to Year 2000, the Company completed its review of both its
information technology based systems and non-information technology based
systems. During 1999, the Company reviewed and tested its computer software for
Year 2000 compatibility. The Company satisfied itself that it would not
experience any Year 2000 information technology problems with its internal
computers and software. No Year 2000 problems were experienced by the Company as
of March 24, 2000.
The Company also reviewed its vendors and suppliers during 1999 to evaluate
their readiness for Year 2000. The Company was satisfied that its vendors and
suppliers were prepared for Year 2000 and that it was unlikely that there would
be any disruption to the Company's supply chain. The Company has not experienced
any Year 2000 problems or product supply interruptions from its vendors as of
March 24, 2000.
LIQUIDITY AND CAPITAL RESOURCES
The Company made significant progress in 1999 at improving its operations
and reducing its operating loss which thereby served to reduce its cash
requirements. The Company experienced declining cash requirements each quarter
during 1999. In the second half of 1999, the Company used $30,000 in cash as
compared to $810,000 in the first half of 1999. However, the Company continues
to have an ongoing requirement for cash to fund its operations and execute its
business strategy.
The Company attempts to prudently manage its cash resources to support its
growth strategy. As of December 31, 1999 the Company had $1.1 million dollars in
cash to fund its future operating cash flow requirements. Its net working
capital was $1,650,000 at December 31, 1999. As of December 31, 1999 the Company
had no long term debt other than operating lease obligations for its facility
and vehicles used in its distribution subsidiary. The Company had capital
expenditures of $27,000 in 1999.
In 1999, the Company utilized approximately $840,000 in cash. As of
December 31, 1999, the Company had cash on hand of approximately $1.1 million to
fund future operations and business development efforts.
12
<PAGE> 14
The Company anticipates that it will continue to improve its operating
performance in 2000. The Company also believes that on the basis of its business
performance in the second half of 1999 that it has sufficient liquidity and cash
resources to fund its current operations structure and cash requirements during
2000. However, in order to expand its operations and execute its growth strategy
the Company anticipates that it will require additional funds.
The Company's long term strategy is to expand its operations to serve its
customers throughout North America. The Company anticipates that as a result of
its existing supply agreements and customer relationships that it has the
capability to capture sufficient market share to support additional
manufacturing locations. The Company has plans to add a second manufacturing
facility during 2000. In order to fund the working capital and capital
expenditure requirements to add a second leased facility and to continue to
execute its growth strategy, the Company anticipates that it will require
additional financing. The Company believes that it will be able to raise the
capital required to expand its operations through either debt or equity
financing arrangements. However, there can be no assurance that the Company will
be successful in raising additional funds through either equity or debt
financing arrangements. If additional funds become required or if the Company is
not successful in raising additional funds, the Company may be required to alter
its growth strategy, curtail its expansion plans or take other measures to
conserve its cash resources.
ITEM 7. FINANCIAL STATEMENTS
The Consolidated Financial Statements of the Registrant and the Combined
Financial Statements of the Predecessor Company required by this item are set
forth on pages F-1 through F-14.
13
<PAGE> 15
PART III
ITEM 9. DIRECTORS, EXECUTIVE OFFICERS, PROMOTERS AND CONTROL PERSONS;
COMPLIANCE WITH SECTION 16(A) OF THE EXCHANGE ACT.
Incorporated herein by reference to Rockwell Medical Technologies, Inc.
definitive proxy statement to be filed with the Securities and Exchange
Commission within 120 days after the year covered by this Form 10-KSB with
respect to its Annual Meeting of Shareholders to be held on May 17, 2000.
ITEM 10. EXECUTIVE COMPENSATION.
Incorporated herein by reference to Rockwell Medical Technologies, Inc.
definitive proxy statement to be filed with the Securities and Exchange
Commission within 120 days after the year covered by this Form 10-KSB with
respect to its Annual Meeting of Shareholders to be held on May 17, 2000.
ITEM 11. SECURITIES OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT.
Incorporated herein by reference to Rockwell Medical Technologies, Inc.
definitive proxy statement to be filed with the Securities and Exchange
Commission within 120 days after the year covered by this Form 10-KSB with
respect to its Annual Meeting of Shareholders to be held on May 17, 2000.
ITEM 12. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.
Incorporated herein by reference to Rockwell Medical Technologies, Inc.
definitive proxy statement to be filed with the Securities and Exchange
Commission within 120 days after the year covered by this Form 10-KSB with
respect to its Annual Meeting of Shareholders to be held on May 17, 2000.
14
<PAGE> 16
ITEMS 13. EXHIBITS AND REPORTS ON FORM 8-K.
(a) Exhibits
<TABLE>
<S> <C>
3(i).1 Articles of Incorporation of the Company, incorporated by
reference to Exhibit 3(i).1 to the Company's Registration
Statement on Form SB-2, File No. 333-31991.
3(i).2 Certificate of Amendment to Articles of Incorporation of the
Company, incorporated by reference to Exhibit 3(i).2 to the
Company's Registration Statement on Form SB-2, File No.
333-31991.
3(i).3 Certificate of Correction to Articles of Incorporation of
the Company, incorporated by reference to Exhibit 3(i).3 to
the Company's Registration Statement on Form SB-2, File No.
333-31991.
3(i).4 Certificate of Amendment to Articles of Incorporation of the
Company, incorporated by reference to Exhibit 3(i).4 to the
Company's Registration Statement on Form SB-2, File No.
333-31991.
3(ii) Bylaws of the Company, incorporated by reference to Exhibit
3(ii) to the Company's Registration Statement on Form SB-2,
File No. 333-31991.
4.1 Form of Warrant Agreement, incorporated by reference to
Exhibit 4.1 to the Company's Registration Statement on Form
SB-2, File No. 333-31991.
4.2 Form of Underwriters Warrant Agreement, incorporated by
reference to Exhibit 4.2 to the Company's Registration
Statement on Form SB-2, File No. 333-31991.
4.3 Registration Rights Agreement among the Company and the
holders of certain of the Company's Common Share Purchase
Warrants, incorporated by reference to Exhibit 4.6 to the
Company's Registration Statement on Form SB-2, File No.
333-31991.
4.4 Form of Lock-up Agreement, incorporated by reference to
Exhibit 4.7 to the Company's Registration Statement on Form
SB-2, File No. 333-31991.
10.1 Rockwell Medical Technologies, Inc. 1997 Stock Option Plan,
incorporated by reference to Exhibit 10.1 to the Company's
Registration Statement on Form SB-2, File No. 333-31991.
10.2 Employment Agreement dated as of February 19, 1997 between
the Company and Robert L. Chioini, incorporated by reference
to Exhibit 10.2 to the Company's Registration Statement on
Form SB-2, File No. 333-31991.
10.3 Consulting and Financial Advisory Services Agreement dated
as of February 19, 1997 between the Company and Wall Street
Partners, Inc., incorporated by reference to Exhibit 10.3 to
the Company's Registration Statement on Form SB-2, File No.
333-31991.
10.4 Asset Purchase Agreement dated as of November 1, 1996 by and
among the Predecessor Company, the Family Partnerships (as
defined therein), the Members (as defined therein) and the
Company (formerly known as Acquisition Partners, Inc.),
incorporated by reference to Exhibit 10.4 to the Company's
Registration Statement on Form SB-2, File No. 333-31991.
10.5 First Amendment to Asset Purchase Agreement dated as of
January 31, 1997 by and among the Predecessor Company, the
Family Partnerships, the Members and the Company (formerly
known as Acquisition Partners, Inc.), incorporated by
reference to Exhibit 10.5 to the Company's Registration
Statement on Form SB-2, File No. 333-31991.
10.6 Second Amendment to Asset Purchase Agreement dated as of
February 19, 1997 by and among the Predecessor Company, the
Family Partnerships, the Members and the Company (formerly
known as Acquisition Partners, Inc.), incorporated by
reference to Exhibit 10.6 to the Company's Registration
Statement on Form SB-2, File No. 333-31991.
10.7 Letter Agreement dated April 4, 1997 among the parties to
the Asset Purchase Agreement concerning the conversion of
the promissory note payable to the Supply Company,
incorporated by reference to Exhibit 10.7 to the Company's
Registration Statement on Form SB-2, File No. 333-31991.
</TABLE>
15
<PAGE> 17
<TABLE>
<S> <C>
10.8 Lease Agreement dated as of September 5, 1995 between the Supply Company, as tenant, and Oakland Oaks,
L.L.C., as landlord, incorporated by reference to Exhibit 10.9 to the Company's Registration Statement
on Form SB-2, File No. 333-31991.
10.9 Assignment and First Amendment to Wixom Building Lease dated as of February 19, 1997 among the Supply
Company, as assignor, the Company, as assignee, and Oakland Oaks, L.L.C., as landlord, incorporated by
reference to Exhibit 10.10 to the Company's Registration Statement on Form SB-2, File No. 333-31991.
10.10 Letter Agreement dated November 21, 1997 among the parties to the Asset Purchase Agreement to confirm
the reduction of the purchase price of the Asset Purchase Agreement, incorporated by reference to
Exhibit 10.12 to the Company's Registration Statement on Form SB-2, File No. 333-31991.
10.11 Employment Agreement dated as of January 12, 1999 between the Company and Thomas E. Klema.
10.12 Lease Agreement dated March 12, 2000 between the Company and DFW Trade Center III Limited Partnership.
21.1 List of Subsidiaries.
27.1 Financial Data Schedule for the Company
</TABLE>
(b) Reports on Form 8-K
None
16
<PAGE> 18
SIGNATURES
In accordance with Section 13 or 15(d) of the Exchange Act, the registrant
caused this report to be signed on its behalf by the undersigned, thereto duly
authorized.
ROCKWELL MEDICAL TECHNOLOGIES, INC.
(Registrant)
By: /s/ ROBERT L. CHIOINI
------------------------------------
Robert L. Chioini
President and Chief Executive
Officer
In accordance with Section 13 or 15(d) of the Exchange Act, this report has
been signed by the following persons in the capacities and on the dates
indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ ROBERT L. CHIOINI President, Chief Executive Officer March 30, 2000
- --------------------------------------------- and Director (Principal Executive
Robert L. Chioini Officer)
/s/ THOMAS E. KLEMA Vice President of Finance, Chief March 30, 2000
- --------------------------------------------- Financial Officer, Treasurer and
Thomas E. Klema Secretary (Principal Financial
Officer and Principal Accounting
Officer)
</TABLE>
17
<PAGE> 19
INDEX TO FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
I. Consolidated Financial Statements for Rockwell Medical
Technologies, Inc. and Subsidiary
Report of Independent Accountants for the years ended
December 31, 1999 and 1998............................. F-1
Consolidated Balance Sheets at December 31, 1999 and
December 31, 1998...................................... F-2
Consolidated Income Statement for the years ended December
31, 1999 and 1998...................................... F-3
Consolidated Statement of Changes in Shareholders' Equity
for the years ended December 31, 1999 and 1998......... F-4
Consolidated Statements of Cash Flow for the years ended
December 31, 1999 and 1998............................. F-5
Notes to the Consolidated Financial Statements............ F-6 - F-14
</TABLE>
18
<PAGE> 20
[PLANTE & MORAN, LLP LETTERHEAD]
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and Shareholders
Rockwell Medical Technologies, Inc. and Subsidiary:
We have audited the consolidated balance sheet of Rockwell Medical
Technologies, Inc. and Subsidiary as of December 31, 1999 and 1998 and the
related consolidated statements of income, shareholders' equity, and cash flows
for the years then ended. These financial statements are the responsibility of
the Company's management. Our responsibility is to express an opinion on these
financial statements based on our audit.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audits to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the consolidated financial position of
Rockwell Medical Technologies, Inc. and Subsidiary as of December 31, 1999 and
1998, and the results of their operations and their cash flows for the years
then ended, in conformity with generally accepted accounting principles.
The accompanying consolidated financial statements have been prepared
assuming that the Company will continue as a going concern. As discussed in Note
3 to the consolidated financial statements, the Company has incurred substantial
losses from operations since inception that raise substantial doubt about its
ability to continue as a going concern. Management's plans in regard to these
matters are also described in Note 3. The consolidated financial statements do
not include any adjustments that might result from the outcome of this
uncertainty.
Plante & Moran, LLP
Southfield, Michigan
February 4, 2000, except for Notes 7 and 11
as to which the date is March 14, 2000
F-1
<PAGE> 21
ROCKWELL MEDICAL TECHNOLOGIES, INC. AND SUBSIDIARY
CONSOLIDATED BALANCE SHEETS
AS OF DECEMBER 31, 1999 AND 1998
(WHOLE DOLLARS)
<TABLE>
<CAPTION>
DECEMBER 31, DECEMBER 31,
1999 1998
------------ ------------
<S> <C> <C>
ASSETS
Cash and Cash Equivalents................................... $ 1,093,293 $ 1,933,197
Accounts Receivable, net of a reserve of $53,000 in 1999 and
$56,000 in 1998........................................... 980,689 708,688
Inventory................................................... 413,240 222,095
Other Current Assets........................................ 30,618 25,476
----------- -----------
TOTAL CURRENT ASSETS................................... 2,517,840 2,889,456
Property and Equipment, net................................. 699,233 925,614
Other Noncurrent Assets..................................... 138,396 177,937
Excess of Purchase Price over Fair Value of Net Assets
Acquired, net............................................. 1,118,437 1,275,147
----------- -----------
TOTAL ASSETS........................................... $ 4,473,906 $ 5,268,154
=========== ===========
LIABILITIES AND SHAREHOLDERS' EQUITY
Accounts Payable............................................ $ 527,290 $ 528,708
Accrued Liabilities......................................... 341,022 173,348
----------- -----------
TOTAL CURRENT LIABILITIES.............................. 868,312 702,056
SHAREHOLDERS' EQUITY:
Common Share, no par value, 4,854,397 and 4,830,450 shares
issued and outstanding.................................... 8,762,941 8,652,175
Common Share Purchase Warrants, 3,625,000 shares issued and
outstanding............................................... 251,150 251,150
Accumulated Deficit......................................... (5,408,497) (4,337,227)
----------- -----------
TOTAL SHAREHOLDER'S EQUITY............................. 3,605,594 4,566,098
----------- -----------
TOTAL LIABILITIES AND SHAREHOLDERS' EQUITY............. $ 4,473,906 $ 5,268,154
=========== ===========
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
F-2
<PAGE> 22
ROCKWELL MEDICAL TECHNOLOGIES, INC. AND SUBSIDIARY
CONSOLIDATED INCOME STATEMENTS
FOR THE YEARS ENDED DECEMBER 31, 1999 AND 1998
(WHOLE DOLLARS)
<TABLE>
<CAPTION>
1999 1998
---- ----
<S> <C> <C>
SALES....................................................... $ 6,688,914 $ 5,272,698
Cost of Sales............................................... 5,778,154 5,443,790
----------- -----------
GROSS PROFIT (DEFICIT)................................. 910,760 (171,092)
Selling, General and Administrative......................... 2,043,098 1,871,104
----------- -----------
OPERATING LOSS......................................... (1,132,338) (2,042,196)
Interest Income (Expense), net.............................. 61,068 113,613
----------- -----------
LOSS BEFORE INCOME TAXES............................... (1,071,270) (1,928,583)
Income Tax Expense..........................................
----------- -----------
NET LOSS............................................... $(1,071,270) $(1,928,583)
=========== ===========
Basic And Diluted Loss Per Share............................ $ (.22) $ (.41)
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
F-3
<PAGE> 23
ROCKWELL MEDICAL TECHNOLOGIES, INC. AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF CHANGES IN SHAREHOLDERS' EQUITY
FOR THE YEARS ENDED DECEMBER 31, 1999 AND 1998
(WHOLE DOLLARS)
<TABLE>
<CAPTION>
COMMON SHARES PURCHASE WARRANTS TOTAL
----------------------- ---------------------- ACCUMULATED SHAREHOLDERS'
SHARES AMOUNT WARRANTS AMOUNT DEFICIT EQUITY
------ ------ -------- ------ ----------- -------------
<S> <C> <C> <C> <C> <C> <C>
Balance as of December
31, 1997............... 3,015,000 $2,623,374 520,000 $(1,913,644) $ 709,730
Issuance of Common
Shares, no par value
and Warrants, Initial
Public Offering........ 1,800,000 5,543,764 3,105,000 251,150 5,794,914
Issuance of Additional
Common Shares, no par
value to Shareholders
in First Prior
Financing.............. 123,750 495,000 (495,000)
Repurchase of Common
Shares................. (108,300) (164,359) (164,359)
Compensation related to
Stock Options.......... 154,396 154,396
Net Loss................. (1,928,583) (1,928,583)
--------- ---------- ---------- -------- ----------- ----------
Balance as of December
31, 1998............... 4,830,450 $8,652,175 3,625,000 $251,150 $(4,337,227) $4,566,098
Issuance of Common
Shares................. 23,947 35,778 35,778
Compensation related to
Stock Options.......... 74,988 74,988
Net Loss................. (1,071,270) (1,071,270)
--------- ---------- ---------- -------- ----------- ----------
Balance as of December
31, 1999............... 4,854,397 $8,762,941 3,625,000 $251,150 $(5,408,497) $3,605,594
========= ========== ========== ======== =========== ==========
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
F-4
<PAGE> 24
ROCKWELL MEDICAL TECHNOLOGIES, INC. AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE YEARS ENDED DECEMBER 31, 1999 AND 1998
(WHOLE DOLLARS)
<TABLE>
<CAPTION>
1999 1998
---- ----
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net Loss.................................................. $(1,071,270) $(1,928,583)
Adjustments To Reconcile Net Loss To Net Cash Used For
Operating Activities:
Depreciation and Amortization.......................... 410,104 403,890
Compensation Recognized For Stock Options.............. 74,988 154,396
----------- -----------
Changes in Working Capital:
Increase in Accounts Receivable...................... (272,001) (321,424)
(Increase) Decrease in Inventory..................... (191,145) 71,624
Decrease in Other Assets............................. 34,399 30,958
(Decrease) in Accounts Payable....................... (1,418) (509,127)
Increase (Decrease) in Other Liabilities............. 167,674 (210,682)
----------- -----------
Net change in Working Capital..................... (262,491) (938,651)
----------- -----------
CASH USED IN OPERATING ACTIVITIES................. (848,669) (2,308,948)
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchase of Equipment..................................... (27,013) (467,566)
Redemption of Certificate of Deposit...................... 25,000
----------- -----------
CASH USED IN INVESTING ACTIVITIES................. (27,013) (442,566)
CASH FLOWS FROM FINANCING ACTIVITIES:
Issuance of Common Shares and Purchase Warrants........... 35,778 5,794,914
Repurchase of Common Shares............................... (164,359)
Redemption of Series A Preferred Shares................... (1,095,915)
Repayment Of Notes Payable................................ (200,000)
Costs Of Initial Public Offering.......................... 286,729
----------- -----------
CASH PROVIDED BY FINANCING ACTIVITIES............. 35,778 4,621,369
INCREASE (DECREASE) IN CASH................................. (839,904) 1,869,855
CASH AT BEGINNING OF PERIOD................................. 1,933,197 63,342
----------- -----------
CASH AT END OF PERIOD....................................... $ 1,093,293 $ 1,933,197
=========== ===========
</TABLE>
Supplemental Cash Flow disclosure:
<TABLE>
<CAPTION>
1999 1998
---- ----
<S> <C> <C>
Interest Paid............................................... None $82,225
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
F-5
<PAGE> 25
ROCKWELL MEDICAL TECHNOLOGIES, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. DESCRIPTION OF BUSINESS
Rockwell Medical Technologies, Inc.(the "Company") manufactures, sells and
distributes hemodialysis concentrates and other ancillary medical products and
supplies used in the treatment of patients with End Stage Renal Disease "ESRD".
The Company supplies medical service providers who treat patients with kidney
disease. The Company's products are used to cleanse patients blood and replace
nutrients lost during the kidney dialysis process. The Company primarily sells
its products in the United States.
The Company is regulated by the Federal Food and Drug Administration under
the Federal Drug and Cosmetics Act, as well as by other federal, state and local
agencies. Rockwell Medical Technologies, Inc. has received 510(k) approval from
the FDA to market hemodialysis solutions and powders. The Company also has
510(k) approval to sell its Dri-Sate(TM) Dry Acid Concentrate product line and
its Dri-Sate Mixer that were introduced during 1999.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
BASIS OF PRESENTATION
The consolidated financial statements of the Company include the accounts
of Rockwell Medical Technologies, Inc. and its wholly owned subsidiary, Rockwell
Transportation, Inc. All intercompany balances and transactions have been
eliminated.
REVENUE RECOGNITION
The Company recognizes revenue at the time of transfer of title to the
buyer of the Company's products consistent with generally accepted accounting
principles.
CASH AND CASH EQUIVALENTS
The Company considers cash on hand, certificates of deposit and short term
marketable securities as cash and cash equivalents. Such cash equivalents have
maturities of less than ninety days.
INVENTORY
Inventory is stated at the lower of cost or net realizable value. Cost is
determined on the first-in first-out (FIFO) method.
PROPERTY AND EQUIPMENT
Property and Equipment are recorded at cost. Expenditures for normal
maintenance and repairs are charged to expense as incurred. Property and
equipment are depreciated using the straight-line method over their useful
lives, which range from three to eight years.
EXCESS OF PURCHASE PRICE OVER FAIR VALUE OF ASSETS ACQUIRED
The excess of the price paid by the Company over the fair value of the net
assets acquired has been recorded as an intangible asset and is being amortized
on a straight line basis over an estimated useful life of 10 years. Accumulated
amortization of this asset was $448,662 and $291,952 at December 31, 1999 and
1998, respectively. The Company assesses the recoverability of the asset based
on estimated future discounted cash flows of the business. Based upon the
Company's analysis no impairment of the asset exists at December 31, 1999.
F-6
<PAGE> 26
ROCKWELL MEDICAL TECHNOLOGIES, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
INCOME TAXES
A current tax liability or asset is recognized for the estimated taxes
payable or refundable on tax returns for the year. Deferred tax liabilities or
assets are recognized for the estimated future tax effects of temporary
differences between book and tax accounting and operating loss and tax credit
carryforwards.
STOCK OPTIONS
Options granted to employees are accounted for using the intrinsic value
method, under which compensation expense is recorded at the amount by which the
market price of the underlying stock at the date of the grant exceeds the
exercise price of the option. Stock options granted to non-employees are
recorded at the fair value of the awards at the date of the grant.
ESTIMATES IN PREPARATION OF FINANCIAL STATEMENTS
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make certain 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 reported amounts of revenues and expenses during the period.
Actual results could differ from those estimates.
NET LOSS PER SHARE
Basic and Diluted net loss per share for the years ended December 31, 1999
and December 31, 1998 were calculated based on the weighted average shares
outstanding of 4,844,149 and 4,734,312, respectively
The dilutive effect of stock options have not been included in the average
shares outstanding for the calculation of diluted loss per share as the effect,
considering the Company's net loss, would be antidilutive. At December 31, 1999
potentially dilutive securities comprised 619,401 stock options exercisable at
prices from $1.44 to $3.00 per share, 3,625,000 Common Share Purchase Warrants
exercisable at $4.50 per Common Share; and Underwriter's Warrants which are
comprised of an option to purchase 95,000 Common Shares at a price of $6.60 per
share and 142,500 warrants to purchase shares at $7.43 per share.
At December 31, 1998 potentially dilutive securities comprised 407,450
stock options exercisable at prices from $1.44 to $3.00 per share; 3,625,000
Common Share Purchase Warrants exercisable at $4.50 per Common Share; and
Underwriter's Warrants which are comprised of an option to purchase 95,000
Common Shares at a price of $6.60 per share and 142,500 warrants to purchase
shares at $7.43 per share.
3. MANAGEMENT'S PLAN OF OPERATION
Rockwell Medical Technologies, Inc. is engaged in the manufacture, sale and
distribution of hemodialysis concentrates and kits to various clinics primarily
in the United States. The Company provides hemodialysis solutions and supplies
to leading national hemodialysis provider chains along with a number of
independently operated regional and local clinics. The Company has established
relationships with the a number of the leading hemodialysis treatment providers
to supply its hemodialysis solutions and other hemodialysis supplies. The
Company manufactures hemodialysis solutions and delivers those directly to its
customers through its distribution subsidiary, Rockwell Transportation, Inc.
The Company has followed a strategy of developing market share through a
differentiated value proposition to its customers including new products,
superior delivery and customer service, and tailoring product line offerings to
match customer requirements, including offering a full line of formulations and
supplies. In 1999, the Company successfully grew its revenue by $1.4 million or
27% over 1998. The Company anticipates that it will continue to increase its
revenue and to increase its market share. The Company successfully introduced
its dry acid concentrate product line in 1999. Dri-Sate(TM) revenue increased
rapidly
F-7
<PAGE> 27
ROCKWELL MEDICAL TECHNOLOGIES, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
after introduction and represented 14% of total company sales in 1999. The
Company expects continued growth in its business and the Company anticipates
that it will continue to require cash to fund the working capital requirements
associated with future sales increases.
STRATEGY
The Company's long term objectives are to increase its market share, expand
its product line offering, extend its geographical coverage and improve its
profitability by implementing the following strategies:
- Acting as a Single Source Supplier. The Company has positioned itself as
an independent "one-stop-shop" to its customers for the concentrates,
chemicals and supplies necessary to support a hemodialysis provider's
operation. Some of the Company's competitors for concentrates do not
offer a full line of hemodialysis products requiring customers to do
business with a number of suppliers in order to purchase necessary
supplies. Rockwell offers a full line of hemodialysis supplies.
- Increasing Revenue Through Sales of New Products. The Company introduced
two new product lines in 1999; Dri-Sate(TM) Dry Acid Concentrate and
SteriLyte(TM) Liquid Bicarbonate. The Company believes that these are
superior to competitors' product offerings. The Company successfully
introduced the Dri-Sate(TM) product line in 1999 and it has grown to
represent a significant share of the Company's acid concentrate sales in
its first year.
- Increasing Revenue Through Ancillary Product Line Expansion. The Company
believes that the market potential for ancillary products and supplies
used by hemodialysis providers is equivalent to or greater than the
market for dialysis concentrates. The Company's strategy is to offer cost
effective ancillary products that include ancillary products such as
specialized kits, fistula needles, gloves, chemicals, sterile dressings
and blood tubing.
- Offering a Higher Level of Delivery/Customer Service. By using its own
delivery vehicles and drivers, the Company believes that it can offer a
higher level of customer service to hemodialysis providers than if it
relied primarily on the use of common carriers to distribute its
products. The Company's drivers perform services for customers that are
generally not available from common carriers, such as stock rotation,
non-loading-dock delivery and drum pump-offs.
- Expanding Market Share in Target Regions. Because of the costs associated
with transporting and delivering hemodialysis concentrates, the Company
believes that it has a competitive cost advantage with certain clinics
that are located within a reasonable proximity to the Company's
manufacturing facility over other manufacturers outside of such
proximity. The Company also believes that it can add additional
manufacturing sites in certain geographic regions that will provide it
with a competitive cost advantage and with superior customer service
levels due to their proximity to the customer. The Company intends to
leverage its existing customer relationships to expand into geographic
areas where it currently has a minor or negligible presence.
CASH RESOURCES & LIQUIDITY
The Company has utilized cash since its inception and anticipates that it
will continue to utilize cash to fund its development and operating
requirements. On February 20, 1997 the Company acquired the operations of a
predecessor company for approximately $2.1 million. The Company has incurred
operating losses since inception. The initial purchase of the predecessor
company coupled with subsequent operating losses have been funded from the
proceeds generated through the issuance of common shares and common share
purchase warrants pursuant to two private equity financing arrangements and an
initial public offering in January of 1998.
F-8
<PAGE> 28
ROCKWELL MEDICAL TECHNOLOGIES, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
In 1999, the Company utilized approximately $840,000 in cash. As of
December 31, 1999, the Company had cash on hand of approximately $1.1 million to
fund future operations and business development efforts. The Company anticipates
that it will continue to improve its operating performance in 2000. The Company
also believes that on the basis of its business performance in the second half
of 1999 that it has sufficient liquidity and cash resources to fund its current
operations structure and cash requirements during 2000. However, in order to
expand its operations and execute its growth strategy the Company anticipates
that it will require additional funds.
The Company's long term strategy is to expand its operations to serve its
customers throughout North America. The Company anticipates that as a result of
its existing supply agreements and customer relationships that it has the
capability to capture sufficient market share to support additional
manufacturing locations. The Company has plans to add a second manufacturing
facility during 2000. In order to fund the working capital and capital
expenditure requirements to add a second leased facility and to continue to
execute its growth strategy, the Company anticipates that it will require
additional financing. The Company believes that it will be able to raise the
capital required to expand its operations through either debt or equity
financing arrangements. However, there can be no assurance that the Company will
be successful in raising additional funds through either equity or debt
financing arrangements. If additional funds become required or if the Company is
not successful in raising additional funds, the Company may be required to alter
its growth strategy, curtail its expansion plans or take other measures to
conserve its cash resources.
There can be no assurance that the Company will be able to achieve the
planned efficiencies and increase its sales levels and market share to sustain
its operations. There can be no assurance that the Company has sufficient funds
should the business plans not yield the expected results. These factors, among
others, raise substantial doubt about the Company's ability to continue as a
going concern. The consolidated financial statements do not include any
adjustments relating to the recoverability and classification of asset carrying
amounts or the amount or classification of liabilities that might be necessary
should the Company be unable to continue as a going concern.
4. SIGNIFICANT MARKET SEGMENTS
The Company operates in one market segment which involves the manufacture
and distribution of hemodialysis concentrates, dialysis kits and ancillary
products used in the dialysis process to hemodialysis clinics. For the year
ended December 31, 1999, the Company had sales in excess of 10% of revenue with
two customers representing approximately 25% of total sales. For the year ended
December 31, 1998, one customer in the United States accounted for approximately
15% of total sales.
5. INVENTORY
Components of inventory as of December 31, 1999 and 1998 are as follows:
<TABLE>
<CAPTION>
1999 1998
---- ----
<S> <C> <C>
Raw Materials............................................ $124,233 $142,598
Finished Goods........................................... 289,007 79,497
-------- --------
Total............................................... $413,240 $222,095
======== ========
</TABLE>
F-9
<PAGE> 29
ROCKWELL MEDICAL TECHNOLOGIES, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
6. PROPERTY AND EQUIPMENT
Major classes of Property and Equipment, stated at cost, as of December 31,
1999 and 1998 are as follows:
<TABLE>
<CAPTION>
1999 1998
---- ----
<S> <C> <C>
Leasehold Improvements................................ $ 36,232 $ 30,130
Machinery and Equipment............................... 908,715 898,623
Office Furniture and Equipment........................ 136,046 126,876
Laboratory Equipment.................................. 135,893 135,893
Vehicles, including trailers.......................... 104,784 103,136
---------- ----------
1,321,670 1,294,658
Accumulated Depreciation............................ (622,437) (369,044)
---------- ----------
Net Property and Equipment............................ $ 699,233 $ 925,614
========== ==========
</TABLE>
7. LEASES
The Company leases a facility for production and administrative offices as
well as transportation equipment used by the Company's subsidiary, Rockwell
Transportation, Inc. The lease terms are three to five years. These leases have
been accounted for as operating leases. Lease payments under all operating
leases were $515,513 and $552,147 for the years ended December 31, 1999 and
1998, respectively.
In accordance with the assignment of the facility lease from the
Predecessor Company, the landlord required a deposit in escrow. The escrow
deposit was applied against lease payments of $39,542 in the year ending
December 31, 1999. The escrow deposit is to be applied against future lease
payments of $59,313 in the year ending December 31, 2000 with the balance to be
held as a security deposit refundable at lease termination subject to certain
conditions.
In the instance of early termination, the transportation equipment leases
require the Company to pay the excess of the purchase price for such vehicles
(determined in accordance with the terms of the lease) over the equipment's fair
market value.
A five year lease arrangement for a second manufacturing facility was
entered into by the Company on March 12, 2000. The Company anticipates that the
lease will become effective in the second quarter of 2000 upon satisfactory
completion of occupancy requirements by the lessor.
Future minimum rental payments under these lease agreements are as follows:
<TABLE>
<S> <C>
Year ending December 31, 2000............................... 550,141
Year ending December 31, 2001............................... 362,100
Year ending December 31, 2002............................... 355,900
Year ending December 31, 2003............................... 326,827
Year ending December 31, 2004............................... 207,012
</TABLE>
8. INCOME TAXES
The Company recorded no income tax expense or benefit for the years ended
December 31, 1999 and 1998 due to the Company incurring net operating losses in
each of those years. As a result, the Company has recorded a valuation allowance
against its net deferred tax assets.
F-10
<PAGE> 30
ROCKWELL MEDICAL TECHNOLOGIES, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
A reconciliation of income tax expense at the statutory rate to income tax
expense at the Company's effective tax rate is as follows:
<TABLE>
<CAPTION>
1999 1998
---- ----
<S> <C> <C>
Tax Recovery Computed at 34% of Pretax Loss............... $ (364,000) $ (656,000)
Effect of Permanent Difference Principally Related to
Stock Compensation Expense............................. 8,000 54,000
Effect of Change in Valuation Allowance................... 356,000 602,000
----------- -----------
Total Income Tax Benefit.................................. $ -0- $ -0-
=========== ===========
</TABLE>
The details of the net deferred tax asset are as follows:
<TABLE>
<CAPTION>
1999 1998
---- ----
<S> <C> <C>
Total Deferred Tax Assets................................. $ 1,580,000 $ 1,217,000
Total Deferred Tax Liabilities............................ (25,000) (18,000)
Valuation Allowance Recognized for Deferred Tax Assets.... (1,555,000) (1,199,000)
----------- -----------
Net Deferred Tax Asset.................................... $ -0- $ -0-
=========== ===========
</TABLE>
Deferred income tax liabilities result primarily from the use of
accelerated depreciation for tax reporting purposes. Deferred income tax assets
result primarily from net operating loss carryforwards.
In assessing the realizability of deferred tax assets, management considers
whether it is more likely than not that some portion or all of the deferred tax
assets is dependent upon the generation of future taxable income during the
periods in which those temporary differences become deductible. Due to the
Company's history of operating losses, management has placed a full valuation
allowance against the net deferred tax asset at December 31, 1999.
For tax purposes, the Company has net operating loss carryforwards of
approximately $4,389,000 that expire between 2012 and 2019.
9. CAPITAL STOCK
The authorized capital stock of the Company consists of 20,000,000 Common
Shares, no par value per share, of which 4,854,397 shares were outstanding at
December 31, 1999; 2,000,000 Preferred Shares, none issued or outstanding, and
1,416,664 of 8.5% non-voting cumulative redeemable Series A Preferred Shares,
$1.00 par value (the "Series A Preferred Shares"), of which none were
outstanding as of December 31, 1999.
On January 26, 1998 the Company issued 1,800,000 Common Shares and
3,105,000 Common Share Purchase Warrants pursuant to a Registration Statement
filed with the Securities and Exchange Commission in an Initial Public Offering
(the "IPO"). Net proceeds from the IPO were $5.8 million of which approximately
$1.2 million was used to redeem $1.4 million of Series A Preferred Shares, $1.1
million was used to reduce Accounts Payable and Accrued Expenses, and $200,000
was used to pay other indebtedness. The balance of the proceeds was available
for capital equipment purchases and to fund working capital requirements.
Effective January 26, 1998 the Company issued 123,750 Common Shares to
shareholders pursuant to certain share price conditions in the First Prior
Financing. These incremental shares to participants of the First Prior Financing
have been accounted for as a stock dividend valued at the IPO offering price of
$4.00 per share.
F-11
<PAGE> 31
ROCKWELL MEDICAL TECHNOLOGIES, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
On March 19, 1998, the Company's Board of Directors approved the repurchase
of up to 250,000 Common Shares at prices deemed to represent a favorable return
on investment. During 1998 the Company repurchased 108,300 shares at a cost of
$164,359 including transaction fees.
COMMON SHARES
Holders of the Common Shares are entitled to one vote per share on all
matters submitted to a vote of shareholders of the Company and are to receive
dividends when and if declared by the Board of Directors. The Board is
authorized to issue additional Common Shares within the limits of the Company's
Articles of Incorporation without further shareholder action.
WARRANTS
Holders of the Common Share Purchase Warrants ("Warrants"), are entitled to
purchase one Common Share at the exercise price of $4.50 per share for a period
of three years commencing January 26, 1999 and expiring January 26, 2002. The
exercise price and the number of Common Shares to be issued upon the exercise of
each Warrant are subject to adjustment in the event of share split, share
dividend, recapitalization, merger, consolidation or certain other events. At
December 31, 1999 there were 3,625,000 Warrants issued and outstanding.
Under certain conditions, the Warrants may be redeemed by the Company at a
redemption price of $.10 per Warrant upon not less than 30 days prior written
notice to the holders of such Warrants, provided the closing bid price of the
Common Shares has been at least $7.00 for 20 consecutive trading days ending on
the third day prior to the date the notice of redemption is given.
UNDERWRITERS' WARRANTS
In conjunction with the IPO, the Underwriters' of the offering were
entitled to warrants ("the Underwriters' Warrants") which provided them the
option to purchase 180,000 Common Shares for a purchase price of $6.60 per share
and 270,000 warrants for a purchase price of $.165 per warrant. Each underlying
warrant entitled the Underwriter to purchase a Common share at a purchase price
of $7.43 per share, exercisable at any time from January 26, 1999 to January 26,
2003.
At December 31, 1999, 95,000 of the Underwriters' options to purchase
Common Shares and 142,500 underlying warrants remained outstanding of the
Underwriters' Warrants.
10. STOCK OPTIONS
The Board of Directors approved the Rockwell Medical Technologies, Inc.,
1997 Stock Option Plan on July 15, 1997 (the "Plan"). The Stock Option Committee
as appointed by the Board of Directors administers the Plan, which provides for
grants of nonqualified or incentive stock options to key employees, officers,
directors, consultants and advisors to the Company. As of May 10, 1999, the
Shareholders of the Company adopted an amendment to the stock option plan to
increase the number of options available to be granted to 900,000 from 450,000.
Under the amendment to the Plan, the Company may grant up to 900,000 options to
purchase Common Shares. Exercise prices, subject to certain plan limitations,
are at the discretion of the Committee. Options granted normally expire 10 years
from the date of grant or upon termination of employment. The Committee
determines vesting rights on the date of grant. Options awarded in 1999 and 1998
generally vest over a three year period from the date of grant.
Employee stock options awarded in July and November of 1997 had an exercise
price of $3.00, which is less than the deemed fair market value of the stock at
the date of grant as determined by the Company as $4.00. On April 13, 1998 these
option holders, excluding the President -- CEO and members of the Board of
Directors, were offered the alternative of receiving new stock options in the
same quantity as previously
F-12
<PAGE> 32
ROCKWELL MEDICAL TECHNOLOGIES, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
awarded but at an exercise price of $1.4375, the closing price on the Nasdaq
SmallCap Market on the date of the offer. Vesting rights on the new options
began to accrue on the date of the offer. Under the provisions of APB No. 25,
compensation expense on these employee stock options is recognized over the
vesting period and is determined as the difference between the IPO price of
$4.00 per share (the deemed fair value of the shares on the date of the award),
and the exercise price, as adjusted on April 13, 1998.
Compensation expense related to stock options for the years ended December
31, 1999 and 1998 was $74,988 and $154,396, respectively.
A summary of the status of the Company's Employee Stock Option Plan is as
follows:
<TABLE>
<CAPTION>
SHARES PRICE
------ -----
<S> <C> <C>
Outstanding at Beginning of Period.......................... -- --
Granted................................................... 311,650 $3.00
Exercised................................................. -- --
Cancelled................................................. 16,150 3.00
-------
Outstanding at December 31, 1997............................ 295,500 $3.00
Granted................................................... 136,000 $1.75
Exercised................................................. -- --
Cancelled................................................. 24,050 1.44
-------
Outstanding at December 31, 1998............................ 407,450 $2.14
Granted................................................... 336,250 2.16
Exercised................................................. 23,947 1.49
Cancelled................................................. 100,352 2.10
-------
Outstanding at December 31, 1999............................ 619,401 $2.18
=======
</TABLE>
<TABLE>
<CAPTION>
OPTIONS EXERCISABLE
OPTIONS OUTSTANDING --------------------
---------------------- WEIGHTED
NUMBER REMAINING WEIGHTED NUMBER AVERAGE
RANGE OF OF CONTRACTUAL EXERCISE OF EXERCISE
EXERCISE PRICES OPTIONS LIFE PRICE OPTIONS PRICE
- --------------- ------- ----------- -------- ------- --------
<S> <C> <C> <C> <C> <C>
$1.44 to $2.19 482,468 9.5 yrs $1.95 143,739 $1.83
$2.25 to $3.00 136,933 7.7 yrs $2.98 111,011 $2.99
-------- -------
Total 619,401 9.1 yrs $2.18 254,750 $2.34
</TABLE>
Had compensation expense for the employee stock options been determined
based on the fair value of the option at the grant dates of the awards,
consistent with the provisions of SFAS No. 123, the Company's net loss and loss
per share would have been increased to the pro forma amounts as follows:
<TABLE>
<CAPTION>
1999 1998
---- ----
<S> <C> <C>
Net loss
As reported....................................... $(1,071,270) $(1,928,583)
Pro forma......................................... $(1,315,833) $(2,106,015)
Basic and Diluted loss per share
As reported....................................... $ (.22) $ (.41)
Pro forma......................................... $ (.27) $ (.44)
</TABLE>
The per share weighted average fair values at the date of grant for the
options granted during the years ended December 31, 1999 and 1998 were $1.90 and
$1.51 respectively. For the period ending December 31, 1999 the fair value was
determined using the Black Scholes option pricing model using the following
assumptions: dividend yield of 0.0 percent, risk free interest rate of 6.25
percent, volatility of 133% and
F-13
<PAGE> 33
ROCKWELL MEDICAL TECHNOLOGIES, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
expected lives of 5.0 years. For the year ended December 31, 1998, the fair
value was estimated using the following assumptions: dividend yield of 0.0
percent, risk free interest rate of 5.50 percent, volatility of 120% and
expected lives of 6.0 years.
11. RELATED PARTY TRANSACTIONS
During the years ended December 31, 1999 and 1998, the Company paid or
accrued fees to the consulting firm of Wall Street Partners, Inc. for financial
and management services of $240,000 and $290,000 respectively. Effective January
1, 2000, the consulting agreement with Wall Street Partners, Inc. expired and
therefore, the Company has no obligation to make further payments to the
consulting firm. For the period January 1, 1998 through October 31, 1998 the two
principals of the consulting firm were shareholders of the Company and members
of the Board of Directors. As of October 31, 1998, Mr. Gary L. Lewis was the
sole remaining principal of the firm. Mr. Lewis is a shareholder and served as
Chairman of the Board of Directors of the Company until March 14, 2000.
F-14
<PAGE> 34
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
------- -----------
<S> <C>
3(i).1 Articles of Incorporation of the Company, incorporated by
reference to Exhibit 3(i).1 to the Company's Registration
Statement on Form SB-2, File No. 333-31991.
3(i).2 Certificate of Amendment to Articles of Incorporation of the
Company, incorporated by reference to Exhibit 3(i).2 to the
Company's Registration Statement on Form SB-2, File No.
333-31991.
3(i).3 Certificate of Correction to Articles of Incorporation of
the Company, incorporated by reference to Exhibit 3(i).3 to
the Company's Registration Statement on Form SB-2, File No.
333-31991.
3(i).4 Certificate of Amendment to Articles of Incorporation of the
Company, incorporated by reference to Exhibit 3(i).4 to the
Company's Registration Statement on Form SB-2, File No.
333-31991.
3(ii) Bylaws of the Company, incorporated by reference to Exhibit
3(ii) to the Company's Registration Statement on Form SB-2,
File No. 333-31991.
4.1 Form of Warrant Agreement, incorporated by reference to
Exhibit 4.1 to the Company's Registration Statement on Form
SB-2, File No. 333-31991.
4.2 Form of Underwriters Warrant Agreement, incorporated by
reference to Exhibit 4.2 to the Company's Registration
Statement on Form SB-2, File No. 333-31991.
4.3 Registration Rights Agreement among the Company and the
holders of certain of the Company's Common Share Purchase
Warrants, incorporated by reference to Exhibit 4.6 to the
Company's Registration Statement on Form SB-2, File No.
333-31991.
4.4 Form of Lock-up Agreement, incorporated by reference to
Exhibit 4.7 to the Company's Registration Statement on Form
SB-2, File No. 333-31991.
10.1 Rockwell Medical Technologies, Inc. 1997 Stock Option Plan,
incorporated by reference to Exhibit 10.1 to the Company's
Registration Statement on Form SB-2, File No. 333-31991.
10.2 Employment Agreement dated as of February 19, 1997 between
the Company and Robert L. Chioini, incorporated by reference
to Exhibit 10.2 to the Company's Registration Statement on
Form SB-2, File No. 333-31991.
10.3 Consulting and Financial Advisory Services Agreement dated
as of February 19, 1997 between the Company and Wall Street
Partners, Inc., incorporated by reference to Exhibit 10.3 to
the Company's Registration Statement on Form SB-2, File No.
333-31991.
10.4 Asset Purchase Agreement dated as of November 1, 1996 by and
among the Predecessor Company, the Family Partnerships (as
defined therein), the Members (as defined therein) and the
Company (formerly known as Acquisition Partners, Inc.),
incorporated by reference to Exhibit 10.4 to the Company's
Registration Statement on Form SB-2, File No. 333-31991.
10.5 First Amendment to Asset Purchase Agreement dated as of
January 31, 1997 by and among the Predecessor Company, the
Family Partnerships, the Members and the Company (formerly
known as Acquisition Partners, Inc.), incorporated by
reference to Exhibit 10.5 to the Company's Registration
Statement on Form SB-2, File No. 333-31991.
10.6 Second Amendment to Asset Purchase Agreement dated as of
February 19, 1997 by and among the Predecessor Company, the
Family Partnerships, the Members and the Company (formerly
known as Acquisition Partners, Inc.), incorporated by
reference to Exhibit 10.6 to the Company's Registration
Statement on Form SB-2, File No. 333-31991.
</TABLE>
<PAGE> 35
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
------- -----------
<S> <C>
10.7 Letter Agreement dated April 4, 1997 among the parties to
the Asset Purchase Agreement concerning the conversion of
the promissory note payable to the Supply Company,
incorporated by reference to Exhibit 10.7 to the Company's
Registration Statement on Form SB-2, File No. 333-31991.
10.8 Lease Agreement dated as of September 5, 1995 between the
Supply Company, as tenant, and Oakland Oaks, L.L.C., as
landlord, incorporated by reference to Exhibit 10.9 to the
Company's Registration Statement on Form SB-2, File No.
333-31991.
10.9 Assignment and First Amendment to Wixom Building Lease dated
as of February 19, 1997 among the Supply Company, as
assignor, the Company, as assignee, and Oakland Oaks,
L.L.C., as landlord, incorporated by reference to Exhibit
10.10 to the Company's Registration Statement on Form SB-2,
File No. 333-31991.
10.10 Letter Agreement dated November 21, 1997 among the parties
to the Asset Purchase Agreement to confirm the reduction of
the purchase price of the Asset Purchase Agreement,
incorporated by reference to Exhibit 10.12 to the Company's
Registration Statement on Form SB-2, File No. 333-31991.
10.11 Employment Agreement dated as of January 12, 1999 between
the Company and Thomas E. Klema.
10.12 Lease Agreement dated March 12, 2000 between the Company and
DFW Trade Center III Limited Partnership.
21.1 List of Subsidiaries.
27.1 Financial Data Schedule for the Company
</TABLE>
<PAGE> 1
EXHIBIT 10.12
INDUSTRIAL LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease") is made as of the "Lease Date" (as
defined in Section 37 herein) by and between DFW Trade Center III Limited
Partnership, a Texas limited partnership ("Landlord"), and Rockwell Medical
Technologies, Inc., a Michigan corporation ("Tenant") (the words "Landlord" and
"Tenant" to include their respective legal representatives, successors and
permitted assigns where the context requires or permits).
W I T N E S S E T H:
1. Basic Lease Provisions. The following constitute the basic
provisions of this Lease:
(a) Demised Premises Address: 4051 Freeport Parkway
Grapevine, Texas 76051
(b) Demised Premises Square Footage: approximately 51,113 sq. ft.
(c) Building Square Footage: approximately 252,776 sq. ft.
(d) Annual Base Rent:
Lease Years 1-5 $207,012.00
(e) Monthly Base Rent Installments:
Lease Years 1-5 $17,251.00
(f) Lease Commencement Date: The date that Landlord achieves
"Substantial Completion" (as hereinafter defined) with
respect to the Demised Premises and delivers the Demised
Premises to Tenant, which is estimated to be April 15, 2000.
(g) Base Rent Commencement Date: The Lease Commencement Date.
(h) Expiration Date: Sixty (60) months after the Lease
Commencement Date.
(i) Primary Term: Five (5) years.
(j) Tenant's Operating Expense Percentage: 20.22%
(k) Security Deposit: $150,000.00 Irrevocable Letter of Credit
(l) Permitted Use: Warehouse, distribution and administrative
uses, and such other uses as are customary in connection with
the operation of a dialystate manufacturing business in the
Demised Premises.
(m) Address for notice:
Landlord: DFW Trade Center III Limited Partnership
c/o Industrial Developments
International, Inc.
3424 Peachtree Road, N.E., Suite 1500
Atlanta, Georgia 30326
Attn: Manager - Lease Administration
Tenant: Rockwell Medical Technologies, Inc.
28025 Oakland Oaks Court, Wixom, Michigan
48393
Attn: Rob Chioini
(n) Address for rental payments:
DFW Trade Center III Limited Partnership
c/o IDI Services Group, Inc.
3424 Peachtree Road, N.E., Suite 1500
Atlanta, Georgia 30326
(o) Broker(s): CB Richard Ellis
5400 LBJ Freeway, Suite 1100
Dallas, Texas 75240
Attn: Chuck Finney
<PAGE> 2
2. Demised Premises. For and in consideration of the rent hereinafter
reserved and the mutual covenants hereinafter contained, Landlord does hereby
lease and demise unto Tenant, and Tenant does hereby hire, lease and accept,
from Landlord all upon the terms and conditions hereinafter set forth the
following premises, referred to as the "Demised Premises", as outlined on
Exhibit A attached hereto and incorporated herein: approximately 51,113 square
feet of space, approximately 4,000 square feet of which is office space, having
an address as set forth in Section 1(a), located within Building H (the
"Building"), which contains a total of approximately 127,620 square feet and is
located within DFW Trade Center (the "Project"), located in Grapevine, Texas.
3. Term. To have and to hold the Demised Premises for a preliminary
term (the "Preliminary Term") commencing on the Lease Date and ending on the
Lease Commencement Date as set forth in Section 1(f), and a primary term (the
"Primary Term") commencing on the Lease Commencement Date and terminating on the
Expiration Date as set forth in Section 1(h), as the Lease Commencement Date and
the Expiration Date may be revised pursuant to Section 17 (the Preliminary Term,
the Primary Term, and any and all extensions thereof, herein referred to as the
"Term"). The term "Lease Year", as used in this Lease, shall mean the 12-month
period commencing on the Base Rent Commencement Date, and each 12-month period
thereafter during the Term; provided, however, that (i) the first Lease Year
will include the period between the Lease Commencement Date and the Base Rent
Commencement Date and (ii) if the first Lease Year begins on a day other than
the first day of a calendar month, the first Lease Year shall include the period
between the Base Rent Commencement Date and the end of the calendar month in
which the Base Rent Commencement Date occurs and shall extend through the end of
the twelfth (12th) full calendar month following the Base Rent Commencement
Date.
4. Base Rent. Tenant shall pay to Landlord at the address set forth
in Section 1(n), as base rent for the Demised Premises, commencing on the Base
Rent Commencement Date and continuing throughout the Term in lawful money of the
United States, the annual amount set forth in Section 1(d) payable in equal
monthly installments as set forth in Section 1(e) (the "Base Rent"), payable in
advance, without demand and without abatement, reduction, set-off or deduction,
on the first day of each calendar month during the Term. If the Base Rent
Commencement Date shall fall on a day other than the first day of a calendar
month, the Base Rent shall be apportioned pro rata on a per diem basis (i) for
the period between the Base Rent Commencement Date and the first day of the
following calendar month (which pro rata payment shall be due and payable on the
Base Rent Commencement Date), and (ii) for the last partial month of the Term,
if applicable. No payment by Tenant or receipt by Landlord of rent hereunder
shall be deemed to be other than on account of the amount due, and no
endorsement or statement on any check or any letter accompanying any check or
payment of rent shall be deemed an accord and satisfaction, and Landlord may
accept such check as payment without prejudice to Landlord's right to recover
the balance of such installment or payment of rent or pursue any other remedies
available to Landlord.
5. Security Deposit. Upon Tenant's execution of this Lease, Tenant
will deliver to Landlord an Irrevocable Letter of Credit in the amount set forth
in Section 1(k)(the "Security Deposit"), in the form attached hereto as Exhibit
"F" and from a financial institution acceptable to Landlord, and shall cause the
same to be maintained in full force and effect throughout the Term, as may be
extended, and during the thirty (30) day period after the later of (a) the
Expiration Date or (b) the date that Tenant delivers possession of the Demised
Premises to Landlord, as security for the full and faithful performance by
Tenant of each and every term, covenant and condition of this Lease. The
acceptance by Landlord of the Security Deposit paid by Tenant shall not render
this Lease effective unless and until Landlord shall have executed and delivered
to Tenant a fully executed copy of this Lease. The Security Deposit may be
commingled with Landlord's other funds or held by Landlord in a separate
interest bearing account, with interest paid to Landlord, as Landlord may elect.
In the event that Tenant is in default under this Lease, Landlord may retain the
security Deposit for the payment of any sum due Landlord or which Landlord may
expend or be required to expend by reason of Tenant's default or failure to
perform; provided, however, that any such retention by Landlord shall not be or
be deemed to be an election of remedies by Landlord or viewed as liquidated
damages, it being expressly understood and agreed that Landlord shall have the
right to pursue any and all other remedies available to it under the terms of
this Lease or otherwise. In the event all or any portion of the Security Deposit
is so retained by Landlord, Tenant shall, within five (5) days of demand
therefor from Landlord, replenish the Security Deposit to the full amount set
forth in Section 1(k). In the event that Tenant shall comply with all of the
terms, covenants and conditions of this Lease, the security deposit shall be
returned to Tenant within thirty (30) days after the later of (a) the Expiration
Date or (b) the date that Tenant delivers possession of the Demised Premises to
Landlord. In the event of a sale of the Building, Landlord shall have the right
to transfer the security deposit to the purchaser, and upon acceptance by such
purchaser, Landlord shall be released from all liability for the return of the
security deposit. Tenant shall not assign or encumber the money deposited as
security, and neither Landlord nor its successors or assigns shall be bound by
any such assignment or encumbrance. Notwithstanding anything to the contrary
contained herein, if, at the beginning of the second (2nd) Lease Year, no Event
of Default has occurred and is then continuing, the Letter of Credit will
automatically reduce by $30,000.00, to $120,000.00. Landlord will accept an
amendment of the Letter of Credit which reflects the reduction in the amount of
the Letter of Credit. The amount of the Letter of Credit will likewise reduce by
the sum of $30,000.00 on the first day of each of the third (3rd), fourth (4th)
and fifth (5th) Lease Years, subject to the condition that no Event of Default
has occurred and is continuing on the date a reduction is scheduled to occur.
The Letter of Credit may never reduce pursuant to this
-2-
<PAGE> 3
Section 5 so long as an Event of Default has occurred and is continuing. The
Letter of Credit will never reduce below $30,000.00, unless Tenant provides
Landlord with evidence satisfactory to Landlord that Tenant's Tangible Net Worth
exceeds $10,000,000.00, in which case Tenant shall have the right to terminate
the Letter of Credit.
6. Operating Expenses and Additional Rent.
(a) Tenant agrees to pay as Additional Rent (as defined in
Section 6(b) below) its proportionate share of Operating Expenses (as
hereinafter defined). "Operating Expenses" shall be defined as all reasonable
expenses for operation, repair, replacement and maintenance as necessary to keep
the Building and the common areas, driveways, and parking areas associated
therewith (collectively, the "Building Common Area") in good order, condition
and repair, including but not limited to, utilities for the Building Common
Area, expenses associated with the driveways and parking areas (including
sealing and restriping, and snow, trash and ice removal), security systems, fire
detection and prevention systems, lighting facilities, landscaped areas,
walkways, painting and caulking, directional signage, curbs, drainage strips,
sewer lines, all charges assessed against or attributed to the Building pursuant
to any applicable easements, covenants, restrictions, agreements, declaration of
protective covenants or development standards, property management fees, all
real property taxes and special assessments imposed upon the Building, the
Building Common Area and the land on which the Building and the Building Common
Area are constructed, all costs of insurance paid by Landlord with respect to
the Building and the Building Common Area, and costs of improvements to the
Building and the Building Common Area required by any law, ordinance or
regulation applicable to the Building and the Building Common Area generally
(and not because of the particular use of the Building or the Building Common
Area by a particular tenant), which cost shall be amortized on a straight line
basis over the useful life of such improvement, as reasonably determined by
Landlord. Operating Expenses shall not include expenses for the costs of any
maintenance and repair required to be performed by Landlord at its own expense
under Section (10)(b). Further, Operating Expenses shall not include the costs
for capital improvements unless such costs are incurred for the purpose of
causing a material decrease in the Operating Expenses of the Building or the
Building Common Area or are incurred with respect to improvements made to comply
with laws, ordinances or regulations as described above. The proportionate share
of Operating Expenses to be paid by Tenant shall be a percentage of the
Operating Expenses based upon the proportion that the square footage of the
Demised Premises bears to the total square footage of the Building (such figure
referred to as "Tenant's Operating Expense Percentage" and set forth in Section
1(j)). Prior to or promptly after the beginning of each calendar year during the
Term, Landlord shall estimate the total amount of Operating Expenses to be paid
by Tenant during each such calendar year and Tenant shall pay to Landlord
one-twelfth (1/12) of such sum on the first day of each calendar month during
each such calendar year, or part thereof, during the Term. Within a reasonable
time after the end of each calendar year, Landlord shall submit to Tenant a
statement of the actual amount of Operating Expenses for such calendar year, and
the actual amount owed by Tenant, and within thirty (30) days after receipt of
such statement, Tenant shall pay any deficiency between the actual amount owed
and the estimates paid during such calendar year, or in the event of
overpayment, Landlord shall credit the amount of such overpayment toward the
next installment of Operating Expenses owed by Tenant or remit such overpayment
to Tenant if the Term has expired or has been terminated and no Event of Default
exists hereunder. The obligations in the immediately preceding sentence shall
survive the expiration or any earlier termination of this Lease. If the Lease
Commencement Date shall fall on other than the first day of the calendar year,
and/or if the Expiration Date shall fall on other than the last day of the
calendar year, Tenant's proportionate share of the Operating Expenses for such
calendar year shall be apportioned prorata.
(b) Any amounts required to be paid by Tenant hereunder (in
addition to Base Rent) and any charges or expenses incurred by Landlord on
behalf of Tenant under the terms of this Lease shall be considered "Additional
Rent" payable in the same manner and upon the same terms and conditions as the
Base Rent reserved hereunder except as set forth herein to the contrary. Any
failure on the part of Tenant to pay such Additional Rent when and as the same
shall become due shall entitle Landlord to the remedies available to it for
non-payment of Base Rent. Tenant's obligations for payment of Additional Rent
shall begin to accrue on the Lease Commencement Date regardless of the Base Rent
Commencement Date.
(c) If applicable in the jurisdiction where the Demised Premises
are located, Tenant shall pay and be liable for all rental, sales, use and
inventory taxes or other similar taxes, if any, on the amounts payable by Tenant
hereunder levied or imposed by any city, state, county or other governmental
body having authority, such payments to be in addition to all other payments
required to be paid Landlord by Tenant under the terms of this Lease. Such
payment shall be made by Tenant directly to such governmental body if billed to
Tenant, or if billed to Landlord, such payment shall be paid concurrently with
the payment of the Base Rent, Additional Rent, or such other charge upon which
the tax is based, all as set forth herein.
7. Use of Demised Premises.
(a) The Demised Premises shall be used for the Permitted Use set
forth in Section 1(l) and for no other purpose.
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<PAGE> 4
(b) Tenant will permit no liens to attach or exist against the
Demised Premises, and shall not commit any waste.
(c) The Demised Premises shall not be used for any illegal
purposes, and Tenant shall not allow, suffer, or permit any vibration, noise,
odor, light or other effect to occur within or around the Demised Premises that
could constitute a nuisance or trespass for Landlord or any occupant of the
Building or an adjoining building, its customers, agents, or invitees. Upon
notice by Landlord to Tenant that any of the aforesaid prohibited uses are
occurring, Tenant agrees to promptly remove or control the same.
(d) Tenant shall not in any way violate any law, ordinance or
restrictive covenant affecting the Demised Premises, and shall not in any manner
use the Demised Premises so as to cause cancellation of, prevent the use of, or
increase the rate of, the fire and extended coverage insurance policy required
hereunder. Landlord makes no (and does hereby expressly disclaim any) covenant,
representation or warranty as to the Permitted Use being allowed by or being in
compliance with any applicable laws, rules, ordinances or restrictive covenants
now or hereafter affecting the Demised Premises, and any zoning letters, copies
of zoning ordinances or other information from any governmental agency or other
third party provided to Tenant by Landlord or any of Landlord's agents or
employees shall be for informational purposes only, Tenant hereby expressly
acknowledging and agreeing that Tenant shall conduct and rely solely on its own
due diligence and investigation with respect to the compliance of the Permitted
Use with all such applicable laws, rules, ordinances and restrictive covenants
and not on any such information provided by Landlord or any of its agents or
employees.
(e) In the event insurance premiums pertaining to the Demised
Premises, the Building, or the Building Common Area, whether paid by Landlord or
Tenant, are increased over the least hazardous rate available due to the nature
of the use of the Demised Premises by Tenant, Tenant shall pay such additional
amount as Additional Rent.
8. Insurance.
(a) Tenant covenants and agrees that from and after the Lease
Commencement Date or any earlier date upon which Tenant enters or occupies the
Demised Premises or any portion thereof, Tenant will carry and maintain, at its
sole cost and expense, the following types of insurance, in the amounts
specified and in the form hereinafter provided for:
(i) Liability insurance in the Commercial General Liability
form (including Broad Form Property Damage and Contractual Liabilities or
reasonable equivalent thereto) covering the Demised Premises and Tenant's use
thereof against claims for bodily injury or death, property damage and product
liability occurring upon, in or about the Demised Premises, such insurance to be
written on an occurrence basis (not a claims made basis), to be in combined
single limits amounts not less than $2,000,000.00 and to have general aggregate
limits of not less than $5,000,000.00 for each policy year. The insurance
coverage required under this Section 8(a)(i) shall, in addition, extend to any
liability of Tenant arising out of the indemnities provided for in Section 11
and, if necessary, the policy shall contain a contractual endorsement to that
effect.
(ii) Insurance covering (A) all of the items included in the
leasehold improvements constructed in the Demised Premises by or at the expense
of Landlord (collectively, the "Improvements"), including but not limited to
demising walls and the heating, ventilating and air conditioning system and (B)
Tenant's trade fixtures, merchandise and personal property from time to time in,
on or upon the Demised Premises, in an amount not less than one hundred percent
(100%) of their full replacement value from time to time during the Term,
providing protection against perils included within the standard form of
"all-risks" fire and casualty insurance policy, together with insurance against
sprinkler damage, vandalism and malicious mischief. Any policy proceeds from
such insurance relating to the Improvements shall be used solely for the repair,
construction and restoration or replacement of the Improvements damaged or
destroyed unless this Lease shall cease and terminate under the provisions of
Section 20.
(b) All policies of the insurance provided for in Section 8(a)
shall be issued in form reasonably acceptable to Landlord by insurance companies
with a rating of not less than "A," and financial size of not less than
Class XII, in the most current available "Best's Insurance Reports", and
licensed to do business in the state in which the Building is located. Each and
every such policy:
(i) shall name Landlord, Lender (as defined in Section 24),
and any other party reasonably designated by Landlord, as an additional insured.
In addition, the coverage described in Section 8(a)(ii)(A) relating to the
Improvements shall also name Landlord as "loss payee";
(ii) shall be delivered to Landlord, in the form of an
insurance certificate acceptable to Landlord as evidence of such policy, prior
to the Lease Commencement Date and thereafter within thirty (30) days prior to
the expiration of each such policy, and, as often as any such policy shall
expire or terminate. Renewal or additional policies shall be procured and
maintained by Tenant in like manner and to like extent;
-4-
<PAGE> 5
(iii) shall contain a provision that the insurer will give to
Landlord and such other parties in interest at least thirty (30) days notice in
writing in advance of any material change, cancellation, termination or lapse,
or the effective date of any reduction in the amounts of insurance; and
(iv) shall be written as a primary policy which does not
contribute to and is not in excess of coverage which Landlord may carry.
(c) In the event that Tenant shall fail to carry and maintain the
insurance coverages set forth in this Section 8, Landlord may upon thirty (30)
days notice to Tenant (unless such coverages will lapse in which event no such
notice shall be necessary) procure such policies of insurance and Tenant shall
promptly reimburse Landlord therefor.
(d) Landlord and Tenant hereby waive any rights each may have
against the other on account of any loss or damage occasioned to Landlord or
Tenant, as the case may be, their respective property, the Demised Premises, its
contents or to the other portions of the Building, arising from any risk covered
by all risks fire and extended coverage insurance of the type and amount
required to be carried hereunder, provided that such waiver does not invalidate
such policies or prohibit recovery thereunder. The parties hereto shall cause
their respective insurance companies insuring the property of either Landlord or
Tenant against any such loss, to waive any right of subrogation that such
insurers may have against Landlord or Tenant, as the case may be.
9. Utilities. During the Term, Tenant shall promptly pay as billed to
Tenant all rents and charges for water and sewer services and all costs and
charges for gas, steam, electricity, fuel, light, power, telephone, heat and any
other utility or service used or consumed in or servicing the Demised Premises
and all other costs and expenses involved in the care, management and use
thereof. To the extent reasonably possible, such utilities shall be separately
metered and billed to Tenant. Any utilities which are not separately metered
shall be billed to Tenant by Landlord at Landlord's actual cost. In the event
Tenant's use of any utility not metered is in excess of the average use by other
tenants, Landlord shall have the right to install a meter for such utility, at
Tenant's expense, and bill Tenant for Tenant's actual use. If Tenant fails to
pay any utility bills or charges, Landlord may, at its option and upon
reasonable notice to Tenant, pay the same and in such event, the amount of such
payment, together with interest thereon at the Interest Rate as defined in
Section 32 from the date of such payment by Landlord, will be added to Tenant's
next due payment as Additional Rent.
10. Maintenance and Repairs.
(a) Tenant shall, at its own cost and expense, maintain in good
condition and repair the interior of the Demised Premises, including but not
limited to the heating, air conditioning and ventilation systems, glass, windows
and doors, sprinkler, all plumbing and sewage systems, fixtures, interior walls,
floors (including floor slabs), ceilings, storefronts, plate glass, skylights,
all electrical facilities and equipment including, without limitation, lighting
fixtures, lamps, fans and any exhaust equipment and systems, electrical motors,
and all other appliances and equipment (including, without limitation, dock
levelers, dock shelters, dock seals and dock lighting) of every kind and nature
located in, upon or about the Demised Premises, except as to such maintenance
and repair as is the obligation of Landlord pursuant to Section 10(b). During
the Term, Tenant shall maintain in full force and effect a service contract for
the maintenance of the heating, ventilation and air conditioning systems with an
entity reasonably acceptable to Landlord. Tenant shall deliver to Landlord (i) a
copy of said service contract prior to the Lease Commencement Date, and (ii)
thereafter, a copy of a renewal or substitute service contract within thirty
(30) days prior to the expiration of the existing service contract. Tenant's
obligation shall exclude any maintenance and repair required because of the act
or negligence of Landlord, its employees, contractors or agents, which shall be
the responsibility of Landlord.
(b) Landlord shall, at its own cost and expense, maintain in good
condition and repair the roof, foundation (beneath the floor slab) and
structural frame of the Building. Landlord's obligation shall exclude the cost
of any maintenance or repair required because of the act or negligence of Tenant
or Tenant's agents, contractors, employees and invitees (collectively, "Tenant's
Affiliates"), the cost of which shall be the responsibility of Tenant.
(c) Unless the same is caused solely by the negligent action or
inaction of Landlord, its employees or agents, and is not covered by the
insurance required to be carried by Tenant pursuant to the terms of this Lease,
Landlord shall not be liable to Tenant or to any other person for any damage
occasioned by failure in any utility system or by the bursting or leaking of any
vessel or pipe in or about the Demised Premises, or for any damage occasioned by
water coming into the Demised Premises or arising from the acts or neglects of
occupants of adjacent property or the public.
11. Tenant's Personal Property; Indemnity. All of Tenant's personal
property in the Demised Premises shall be and remain at Tenant's sole risk.
Landlord, its agents, employees and contractors, shall not be liable for, and
Tenant hereby releases Landlord from, any and all liability for theft thereof or
any damage thereto occasioned by any act of God or by any acts, omissions or
negligence of any persons, other than Landlord. Landlord, its agents, employees
and contractors, shall not be liable for any injury to the person or property of
Tenant or other persons in or about the Demised Premises, Tenant expressly
agreeing to indemnify and save Landlord, its agents, employees and contractors,
harmless, in all such cases, except
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<PAGE> 6
to the extent caused by the negligence of Landlord, its agents, employees and
contractors. Tenant further agrees to indemnify and reimburse Landlord for any
costs or expenses, including, without limitation, attorneys' fees, that Landlord
reasonably may incur in investigating, handling or litigating any such claim
against Landlord by a third person, unless such claim arose from the negligence
of Landlord, its agents, employees or contractors. The provisions of this
Section 11 shall survive the expiration or earlier termination of this Lease
with respect to any damage, injury or death occurring before such expiration or
termination.
12. Tenant's Fixtures. Tenant shall have the right to install in the
Demised Premises trade fixtures required by Tenant or used by it in its
business, and if installed by Tenant, to remove any or all such trade fixtures
from time to time during and upon termination or expiration of this Lease,
provided no Event of Default, as defined Section 22, then exists; provided,
however, that Tenant shall repair and restore any damage or injury to the
Demised Premises (to the condition in which the Demised Premises existed prior
to such installation) caused by the installation and/or removal of any such
trade fixtures.
13. Signs. No sign, advertisement or notice shall be inscribed,
painted, affixed, or displayed on the windows or exterior walls of the Demised
Premises or on any public area of the Building, except in such places, numbers,
sizes, colors and styles as are approved in advance in writing by Landlord, and
which conform to all applicable laws, ordinances, or covenants affecting the
Demised Premises. Any and all signs installed or constructed by or on behalf of
Tenant pursuant hereto shall be installed, maintained and removed by Tenant at
Tenant's sole cost and expense.
14. Landlord's Lien. Notwithstanding any other provision hereof to the
contrary, Tenant does hereby grant to Landlord, and Landlord shall have at all
times, a security interest in and a valid first lien upon all of the personal
property and trade fixtures of Tenant situated in and upon the Demised Premises
to secure the obligations of Tenant for all Base Rent, Additional Rent and other
sums to become due hereunder and the performance by Tenant of each and all of
Tenant's other covenants and obligations hereunder. The security interest and
lien granted herein may be foreclosed in the manner and form provided by law for
the foreclosure of chattel mortgages or in any other manner provided or
permitted by law.
15. Governmental Regulations. Tenant shall promptly comply throughout
the Term, at Tenant's sole cost and expense, with all present and future laws,
ordinances, orders, rules, regulations or requirements of all federal, state and
municipal governments and appropriate departments, commissions, boards and
officers thereof (collectively, "Governmental Requirements") relating to (a) all
or any part of the Demised Premises, and (b) to the use or manner of use of the
Demised Premises and the Building Common Area. Tenant shall also observe and
comply with the requirements of all policies of public liability, fire and other
policies of insurance at any time in force with respect to the Demised Premises.
Without limiting the foregoing, if as a result of one or more Governmental
Requirements it is necessary, from time to time during the Term, to perform an
alteration or modification of the Demised Premises (a "Code Modification") which
is made necessary as a result of the specific use being made by Tenant of the
Demised Premises, then such Code Modification shall be the sole and exclusive
responsibility of Tenant in all respects; any such Code Modification shall be
promptly performed by Tenant at its expense in accordance with the applicable
Governmental Requirement and with Section 18 hereof. If as a result of one or
more Governmental Requirements it is necessary from time to time during the Term
to perform a Code Modification which (i) would be characterized as a capital
expenditure under generally accepted accounting principles and (ii) is not made
necessary as a result of the specific use being made by Tenant of the Demised
Premises (as distinguished from an alteration or modification which would be
required to be made by the owner of any warehouse-office building comparable to
the Building irrespective of the use thereof by any particular occupant), then
(a) Landlord shall have the obligation to perform the Code Modification at its
expense, (b) the cost of such Code Modification shall be amortized on a
straight-line basis over the useful life of the item in question, as reasonably
determined by Landlord, and (c) Tenant shall be obligated to pay (as Additional
Rent, payable in the same manner and upon the same terms and conditions as the
Base Rent reserved hereunder) for the portion of such amortized costs
attributable to the remainder of the Term, including any extensions thereof.
Tenant shall promptly send to Landlord a copy of any written notice received by
Tenant requiring a Code Modification.
16. Environmental Matters.
(a) For purposes of this Lease:
(i) "Contamination" as used herein means the presence of or
release of Hazardous Substances (as hereinafter defined) into any environmental
media from, upon, within, below, into or on any portion of the Demised Premises,
the Building, the Building Common Area or the Project so as to require
remediation, cleanup or investigation under any applicable Environmental Law (as
hereinafter defined).
(ii) "Environmental Laws" as used herein means all federal,
state, and local laws, regulations, orders, permits, ordinances or other
requirements, which exist now or as may exist hereafter, concerning protection
of human health, safety and the environment, all as may be amended from time to
time.
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(iii)"Hazardous Substances" as used herein means any
hazardous or toxic substance, material, chemical, pollutant, contaminant or
waste as those terms are defined by any applicable Environmental Laws
(including, without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. 9601 et seq. ("CERCLA") and the
Resource Conservation and Recovery Act, 42 U.S.C. 6901 et seq. ["RCRA"]) and any
solid wastes, polychlorinated biphenyls, urea formaldehyde, asbestos,
radioactive materials, radon, explosives, petroleum products and oil.
(b) Landlord represents that, except as revealed to Tenant in
writing by Landlord, to Landlord's actual knowledge, Landlord has not treated,
stored or disposed of any Hazardous Substances upon or within the Demised
Premises, nor, to Landlord's actual knowledge, has any predecessor owner of the
Demised Premises.
(c) Tenant covenants that all its activities, and the activities
of Tenant's Affiliates (as defined in Section 10(b)), on the Demised Premises,
the Building, or the Project during the Term will be conducted in compliance
with Environmental Laws. Tenant warrants that it is currently in compliance with
all applicable Environmental Laws and that there are no pending or threatened
notices of deficiency, notices of violation, orders, or judicial or
administrative actions involving alleged violations by Tenant of any
Environmental Laws. Tenant, at Tenant's sole cost and expense, shall be
responsible for obtaining all permits or licenses or approvals under
Environmental Laws necessary for Tenant's operation of its business on the
Demised Premises and shall make all notifications and registrations required by
any applicable Environmental Laws. Tenant, at Tenant's sole cost and expense,
shall at all times comply with the terms and conditions of all such permits,
licenses, approvals, notifications and registrations and with any other
applicable Environmental Laws. Tenant warrants that it has obtained all such
permits, licenses or approvals and made all such notifications and registrations
required by any applicable Environmental Laws necessary for Tenant's operation
of its business on the Demised Premises.
(d) Tenant shall not cause or permit any Hazardous Substances to
be brought upon, kept or used in or about the Demised Premises, the Building, or
the Project without the prior written consent of Landlord, which consent shall
not be unreasonably withheld; provided, however, that the consent of Landlord
shall not be required for the use at the Demised Premises of cleaning supplies,
toner for photocopying machines and other similar materials, in containers and
quantities reasonably necessary for and consistent with normal and ordinary use
by Tenant in the routine operation or maintenance of Tenant's office equipment
or in the routine janitorial service, cleaning and maintenance for the Demised
Premises. For purposes of this Section 16, Landlord shall be deemed to have
reasonably withheld consent if Landlord determines that the presence of such
Hazardous Substance within the Demised Premises could result in a risk of harm
to person or property or otherwise negatively affect the value or marketability
of the Building or the Project.
(e) Tenant shall not cause or permit the release of any Hazardous
Substances by Tenant or Tenant's Affiliates into any environmental media such as
air, water or land, or into or on the Demised Premises, the Building or the
Project in any manner that violates any Environmental Laws. If such release
shall occur, Tenant shall (i) take all steps reasonably necessary to contain and
control such release and any associated Contamination, (ii) clean up or
otherwise remedy such release and any associated Contamination to the extent
required by, and take any and all other actions required under, applicable
Environmental Laws and (iii) notify and keep Landlord reasonably informed of
such release and response.
(f) Regardless of any consents granted by Landlord pursuant to
Section 16(d) allowing Hazardous Substances upon the Demised Premises, Tenant
shall under no circumstances whatsoever cause or permit (i) any activity on the
Demised Premises which would cause the Demised Premises to become subject to
regulation as a hazardous waste treatment, storage or disposal facility under
RCRA or the regulations promulgated thereunder, (ii) the discharge of Hazardous
Substances into the storm sewer system serving the Project or (iii) the
installation of any underground storage tank or underground piping on or under
the Demised Premises.
(g) Tenant shall and hereby does indemnify Landlord and hold
Landlord harmless from and against any and all expense, loss, and liability
suffered by Landlord (except to the extent that such expenses, losses, and
liabilities arise out of Landlord's own negligence or willful act), by reason of
the storage, generation, release, handling, treatment, transportation, disposal,
or arrangement for transportation or disposal, of any Hazardous Substances
(whether accidental, intentional, or negligent) by Tenant or Tenant's Affiliates
or by reason of Tenant's breach of any of the provisions of this Section 16.
Such expenses, losses and liabilities shall include, without limitation, (i) any
and all expenses that Landlord may incur to comply with any Environmental Laws;
(ii) any and all costs that Landlord may incur in studying or remedying any
Contamination at or arising from the Demised Premises, the Building, or the
Project; (iii) any and all costs that Landlord may incur in studying, removing,
disposing or otherwise addressing any Hazardous Substances; (iv) any and all
fines, penalties or other sanctions assessed upon Landlord; and (v) any and all
legal and professional fees and costs incurred by Landlord in connection with
the foregoing. The indemnity contained herein shall survive the expiration or
earlier termination of this Lease.
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<PAGE> 8
17. Construction of Demised Premises.
(a) Within thirty (30) days after the Lease Date, Landlord shall
prepare, at Landlord's sole cost and expense, and submit to Tenant a set of
plans and specifications and/or construction drawings (collectively, the "Plans
and Specifications") based on the preliminary plans and specifications and/or
preliminary floor plans set forth on Exhibit B attached hereto and incorporated
herein, covering all work to be performed by Landlord in constructing the
Improvements (as defined in Section 8(a)(ii)). Tenant shall have five (5) days
after receipt of the plans and specifications in which to review and to give to
Landlord written notice of its approval of the plans and specifications or its
requested changes to the Plans and Specifications. Tenant shall have no right to
request any changes to the plans and specifications which would materially alter
either the Demised Premises or the exterior appearance or basic nature of the
Building, as the same are contemplated by the preliminary Plans. If Tenant fails
to approve or request changes to the Plans and Specifications by five (5) days
after its receipt thereof, then Tenant shall be deemed to have approved the
Plans and Specifications and the same shall thereupon be final. If Tenant
requests any changes to the Plans and Specifications, Landlord shall make those
changes which are reasonably requested by Tenant and shall within ten (10) days
of its receipt of such request submit the revised portion of the Plans and
specifications to Tenant. Tenant may not thereafter disapprove the revised
portions of the Plans and specifications unless Landlord has unreasonably failed
to incorporate reasonable comments of Tenant and, subject to the foregoing, the
Plans and specifications, as modified by said revisions, shall be deemed to be
final upon the submission of said revisions to Tenant. Tenant shall at all times
in its review of the plans and specifications, and of any revisions thereto, act
reasonably and in good faith. After Tenant has approved the Plans and
Specifications or the Plans and Specifications have otherwise been finalized
pursuant to the procedures set forth hereinabove, any subsequent changes to the
Plans and Specifications requested by Tenant shall be at Tenant's sole cost and
expense and subject to Landlord's written approval, which approval shall not be
unreasonably withheld, conditioned or delayed. If after the Plans and
specifications have been finalized pursuant to the procedures set forth
hereinabove Tenant requests any further changes to the Plans and specifications
and, as a result thereof, Substantial Completion (as hereinafter defined) of the
Improvements is delayed, then for purposes of establishing the Lease
Commencement Date, Substantial Completion shall, be deemed to mean the date when
Substantial Completion would have been achieved but for such Tenant delay.
(b) Within thirty (30) days after the Plans and Specifications
have been finalized pursuant to the procedures set forth above, Landlord shall
solicit bids from no less than three (3) reputable general contractors, which
bids shall set forth the price, terms, conditions and time schedule that such
general contractor would require if chosen to construct the Demised Premises.
Such bids must be received within fourteen (14) days after the date hereof to be
considered. Landlord shall, within seven (7) days after the receipt of such bids
and after consulting with Tenant, select a general contractor to construct the
improvements to the Demised Premises. All other factors being equal, Landlord
will choose the general contractor that submits the lowest bid unless Tenant
selects a general contractor other than the low bidder. Landlord shall use
reasonable speed and diligence to Substantially Complete the Improvements, at
Landlord's sole cost and expense, and have the Demised Premises ready for
occupancy on or before the Lease Commencement Date set forth in Section 1(f). If
the Demised Premises are not Substantially Complete on that date, such failure
to complete shall not in any way affect the obligations of Tenant hereunder
except that the Lease Commencement Date, the Base Rent Commencement Date, and
the Expiration Date shall be postponed one day for each day Substantial
Completion is delayed until the Demised Premises are Substantially Complete,
unless the delay is caused by Tenant's failure to approve the Plans and
Specifications as set forth in Section 17(a) or by change orders requested by
Tenant after approval of the Plans and Specifications. No liability whatsoever
shall arise or accrue against Landlord by reason of its failure to deliver or
afford possession of the Demised Premises, and Tenant hereby releases and
discharges Landlord from and of any claims for damage, loss, or injury of every
kind whatsoever as if this Lease were never executed.
(c) Upon Substantial Completion of the Demised Premises, a
representative of Landlord and a representative of Tenant together shall inspect
the Demised Premises and generate a punchlist of defective or uncompleted items
relating to the completion of construction of the Improvements (the
"Punchlist"). Landlord shall, within a reasonable time after the Punchlist is
prepared and agreed upon by Landlord and Tenant, complete such incomplete work
and remedy such defective work as is set forth on the Punchlist. All
construction work performed by Landlord shall be deemed approved by Tenant in
all respects except for items of said work which are not completed or do not
conform to the Plans and Specifications and which are included on the Punchlist.
(d) Upon Substantial Completion of the Demised Premises and the
creation of the Punchlist, Tenant shall execute and deliver to Landlord a letter
of acceptance in which Tenant (i) accepts the Demised Premises subject only to
Landlord's completion of the items listed on the Punchlist and (ii) confirms
that the Lease Commencement Date, the Base Rent Commencement Date and the
Expiration Date remain as set forth in Section 1, or if revised pursuant to the
terms hereof, setting forth such dates as so revised.
(e) Landlord hereby warrants to Tenant, which warranty shall
survive for the one (1) year period following the Lease Commencement Date, that
(i) the materials and equipment furnished by Landlord's contractors in the
completion of the Improvements will be of good quality and new, and (ii) such
materials and equipment and the work of such contractors shall be free from
defects not inherent in
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<PAGE> 9
the quality required or permitted hereunder. This warranty shall exclude damages
or defects caused by Tenant or Tenant's Affiliates, improper or insufficient
maintenance, improper operation, or normal wear and tear under normal usage.
(f) For purposes of this Lease, the term "Substantial Completion"
(or any variation thereof) shall mean completion of construction of the
Improvements in accordance with the Plans and Specifications, subject only to
Punchlist items established pursuant to Section 17(c), so that Tenant can
lawfully occupy and conduct its business at the Demised Premises, as established
by the delivery by Landlord to Tenant of a certificate of occupancy (or
temporary certificate of occupancy or its equivalent) for the Demised Premises
issued by the appropriate governmental authority, if a certificate is so
required by a governmental authority. In the event Substantial Completion is
delayed because of a delay caused by Tenant, then Substantial Completion shall,
for the purpose of establishing the Lease Commencement Date, be deemed to mean
the date when Substantial Completion would have been achieved but for such
delay.
18. Tenant Alterations and Additions.
(a) Tenant shall not make or permit to be made any alterations,
improvements, or additions to the Demised Premises (a "Tenant's Change"),
without first obtaining on each occasion Landlord's prior written consent (which
consent Landlord agrees not to unreasonably withhold) and Lender's prior written
consent (if such consent is required). As part of its approval process, Landlord
may require that Tenant submit plans and specifications to Landlord, for
Landlord's approval or disapproval, which approval shall not be unreasonably
withheld. All Tenant's Changes shall be performed in accordance with all legal
requirements applicable thereto and in a good and workmanlike manner with
first-class materials. Tenant shall maintain insurance reasonably satisfactory
to Landlord during the construction of all Tenant's Changes. If Landlord at the
time of giving its approval to any Tenant's Change notifies Tenant in writing
that approval is conditioned upon restoration, then Tenant shall, at its sole
cost and expense and at Landlord's option upon the termination or expiration of
this Lease, remove the same and restore the Demised Premises to its condition
prior to such Tenant's Change. No Tenant's Change shall be structural in nature
or impair the structural strength of the Building or reduce its value. Tenant
shall pay the full cost of any Tenant's Change and shall give Landlord such
reasonable security as may be requested by Landlord to insure payment of such
cost. Except as otherwise provided herein and in Section 12, all Tenant's
Changes and all repairs and all other property attached to or installed on the
Demised Premises by or on behalf of Tenant shall immediately upon completion or
installation thereof be and become part of the Demised Premises and the property
of Landlord without payment therefor by Landlord and shall be surrendered to
Landlord upon the expiration or earlier termination of this Lease.
(b) To the extent permitted by law, all of Tenant's contracts and
subcontracts for such Tenant's Changes shall provide that no lien shall attach
to or be claimed against the Demised Premises or any interest therein other than
Tenant's leasehold interest in the Demised Premises, and that all subcontracts
let thereunder shall contain the same provision. Whether or not Tenant furnishes
the foregoing, Tenant agrees to hold Landlord harmless against all liens, claims
and liabilities of every kind, nature and description which may arise out of or
in any way be connected with such work. Tenant shall not permit the Demised
Premises to become subject to any mechanics', laborers' or materialmen's lien on
account of labor, material or services furnished to Tenant or claimed to have
been furnished to Tenant in connection with work of any character performed or
claimed to have been performed for the Demised Premises by, or at the direction
or sufferance of Tenant and if any such liens are filed against the Demised
Premises, Tenant shall promptly discharge the same; provided, however, that
Tenant shall have the right to contest, in good faith and with reasonable
diligence, the validity of any such lien or claimed lien if Tenant shall give to
Landlord, within fifteen days after demand, such security as may be reasonably
satisfactory to Landlord to assure payment thereof and to prevent any sale,
foreclosure, or forfeiture of Landlord's interest in the Demised Premises by
reason of non-payment thereof; provided further that on final determination of
the lien or claim for lien, Tenant shall immediately pay any judgment rendered,
with all proper costs and charges, and shall have the lien released and any
judgment satisfied. If Tenant fails to post such security or does not diligently
contest such lien, Landlord may, without investigation of the validity of the
lien claim, discharge such lien and Tenant shall reimburse Landlord upon demand
for all costs and expenses incurred in connection therewith, which expenses
shall include any attorneys' fees, paralegals' fees and any and all costs
associated therewith, including litigation through all trial and appellate
levels and any costs in posting bond to effect a discharge or release of the
lien. Nothing contained in this Lease shall be construed as a consent on the
part of Landlord to subject the Demised Premises to liability under any lien law
now or hereafter existing of the state in which the Demised Premises are
located.
19. Services by Landlord. Landlord shall be responsible for providing
for maintenance of the Building Common Area, and, except as required by Section
10(b) hereof, Landlord shall be responsible for no other services whatsoever.
Tenant, by payment of Tenant's share of the Operating Expenses, shall pay
Tenant's pro rata share of the expenses incurred by Landlord hereunder.
20. Fire and Other Casualty. In the event the Demised Premises are
damaged by fire or other casualty insured by Landlord, Landlord agrees to
promptly restore and repair the Demised Premises at Landlord's expense,
including the Improvements to be insured by Tenant but only to the extent
Landlord receives insurance proceeds therefor, including the proceeds from the
insurance required to be carried by Tenant on the Improvements. Notwithstanding
the foregoing, in the event that the Demised Premises are (i) in the reasonable
opinion of Landlord, so destroyed that they cannot be repaired or rebuilt within
two
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<PAGE> 10
hundred seventy (270) days after the date of such damage; or (ii) destroyed by a
casualty which is not covered by Landlord's insurance, or if such casualty is
covered by Landlord's insurance but Lender or other party entitled to insurance
proceeds fails to make such proceeds available to Landlord in an amount
sufficient for restoration of the Demised Premises, then Landlord shall give
written notice to Tenant of such determination (the "Determination Notice")
within sixty (60) days of such casualty. Either Landlord or Tenant may terminate
and cancel this Lease effective as of the date of such casualty by giving
written notice to the other party within thirty (30) days after Tenant's receipt
of the Determination Notice. Upon the giving of such termination notice, all
obligations hereunder with respect to periods from and after the effective date
of termination shall thereupon cease and terminate. If no such termination
notice is given, Landlord shall, to the extent of the available insurance
proceeds, make such repair or restoration of the Demised Premises to the
approximate condition existing prior to such casualty, promptly and in such
manner as not to unreasonably interfere with Tenant's use and occupancy of the
Demised Premises (if Tenant is still occupying the Demised Premises). Base Rent
and Additional Rent shall proportionately abate during the time that the Demised
Premises or any part thereof are unusable by reason of any such damage thereto.
21. Condemnation.
(a) If all of the Demised Premises is taken or condemned for a
public or quasi-public use, or if a material portion of the Demised Premises is
taken or condemned for a public or quasi-public use and the remaining portion
thereof is not usable by Tenant in the reasonable opinion of Landlord, this
Lease shall terminate as of the earlier of the date title to the condemned real
estate vests in the condemnor or the date on which Tenant is deprived of
possession of the Demised Premises. In such event, the Base Rent herein reserved
and all Additional Rent and other sums payable hereunder shall be apportioned
and paid in full by Tenant to Landlord to that date, all Base Rent, Additional
Rent and other sums payable hereunder prepaid for periods beyond that date shall
forthwith be repaid by Landlord to Tenant, and neither party shall thereafter
have any liability hereunder, except that any obligation or liability of either
party, actual or contingent, under this Lease which has accrued on or prior to
such termination date shall survive.
(b) If only part of the Demised Premises is taken or condemned
for a public or quasi-public use and this Lease does not terminate pursuant to
Section 21(a), Landlord shall, to the extent of the award it receives, restore
the Demised Premises to a condition and to a size as nearly comparable as
reasonably possible to the condition and size thereof immediately prior to the
taking, and there shall be an equitable adjustment to the Base Rent and
Additional Rent based on the actual loss of use of the Demised Premises suffered
by Tenant from the taking.
(c) Landlord shall be entitled to receive the entire award in any
proceeding with respect to any taking provided for in this Section 21, without
deduction therefrom for any estate vested in Tenant by this Lease, and Tenant
shall receive no part of such award. Nothing herein contained shall be deemed to
prohibit Tenant from making a separate claim, against the condemnor, to the
extent permitted by law, for the value of Tenant's moveable trade fixtures,
machinery and moving expenses, provided that the making of such claim shall not
and does not adversely affect or diminish Landlord's award.
22. Tenant's Default.
(a) The occurrence of any one or more of the following events
shall constitute an "Event of Default" of Tenant under this Lease:
(i) if Tenant fails to pay Base Rent or any Additional Rent
hereunder within five (5) days after such rent becomes due and such failure
shall continue for more than five (5) days after Landlord gives written notice
to Tenant of such failure;
(ii) if Tenant fails to pay Base Rent or any Additional Rent
on time more than three (3) times in any period of twelve (12) months,
notwithstanding that such payments have been made within the applicable cure
period;
(iii)if the Demised Premises become vacant, deserted, or
abandoned for more than ten (10) consecutive days or if Tenant fails to take
possession of the Demised Premises on the Lease Commencement Date or promptly
thereafter;
(iv) if Tenant permits to be done anything which creates a
lien upon the Demised Premises and fails to discharge or bond such lien, or post
security with Landlord acceptable to Landlord within thirty (30) days after
receipt by Tenant of written notice thereof;
(v) if Tenant fails to maintain in force all policies of
insurance required by this Lease and such failure shall continue for more than
ten (10) days after Landlord gives Tenant written notice of such failure;
(vi) if any petition is filed by or against Tenant or any
guarantor of this Lease under any present or future section or chapter of the
Bankruptcy Code, or under any similar law or statute of the United States or any
state thereof (which, in the case of an involuntary proceeding, is not
permanently discharged, dismissed, stayed, or vacated, as the case may be,
within sixty (60) days of
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<PAGE> 11
commencement), or if any order for relief shall be entered against Tenant or any
guarantor of this Lease in any such proceedings;
(vii) if Tenant or any guarantor of this Lease becomes
insolvent or makes a transfer in fraud of creditors or makes an assignment for
the benefit of creditors;
(viii) if a receiver, custodian, or trustee is appointed for
the Demised Premises or for all or substantially all of the assets of Tenant or
of any guarantor of this Lease, which appointment is not vacated within sixty
(60) days following the date of such appointment; or
(ix) if Tenant fails to perform or observe any other term of
this Lease and such failure shall continue for more than thirty (30) days after
Landlord gives Tenant written notice of such failure, or, if such failure cannot
be corrected within such thirty (30) day period, if Tenant does not commence to
correct such default within said thirty (30) day period and thereafter
diligently prosecute the correction of same to completion within a reasonable
time.
(b) Upon the occurrence of any one or more Events of Default,
Landlord may, at Landlord's option, without any demand or notice whatsoever
(except as expressly required in this Section 22):
(i) Terminate this Lease by giving Tenant notice of
termination, in which event this Lease shall expire and terminate on the date
specified in such notice of termination and all rights of Tenant under this
Lease and in and to the Demised Premises shall terminate. Tenant shall remain
liable for all obligations under this Lease arising up to the date of such
termination, and Tenant shall surrender the Demised Premises to Landlord on the
date specified in such notice; or
(ii) Terminate this Lease as provided in Section 22(b)(i)
hereof and recover from Tenant all damages Landlord may incur by reason of
Tenant's default, including, without limitation, an amount which, at the date of
such termination, is calculated as follows: (1) the value of the excess, if any,
of (A) the Base Rent, Additional Rent and all other sums which would have been
payable hereunder by Tenant for the period commencing with the day following the
date of such termination and ending with the Expiration Date had this Lease not
been terminated (the "Remaining Term"), over (B) the aggregate reasonable rental
value of the Demised Premises for the Remaining Term (which excess, if any shall
be discounted to present value at the "Treasury Yield" as defined below for the
Remaining Term); plus (2) the costs of recovering possession of the Demised
Premises and all other expenses incurred by Landlord due to Tenant's default,
including, without limitation, reasonable attorney's fees; plus (3) the unpaid
Base Rent and Additional Rent earned as of the date of termination plus any
interest and late fees due hereunder, plus other sums of money and damages owing
on the date of termination by Tenant to Landlord under this Lease or in
connection with the Demised Premises. The amount as calculated above shall be
deemed immediately due and payable. The payment of the amount calculated in
subparagraph (ii)(1) shall not be deemed a penalty but shall merely constitute
payment of liquidated damages, it being understood and acknowledged by Landlord
and Tenant that actual damages to Landlord are extremely difficult, if not
impossible, to ascertain. "Treasury Yield" shall mean the rate of return in
percent per annum of Treasury Constant Maturities for the length of time
specified as published in document H.15(519) (presently published by the Board
of Governors of the U.S. Federal Reserve System titled "Federal Reserve
Statistical Release") for the calendar week immediately preceding the calendar
week in which the termination occurs. If the rate of return of Treasury Constant
Maturities for the calendar week in question is not published on or before the
business day preceding the date of the Treasury Yield in question is to become
effective, then the Treasury Yield shall be based upon the rate of return of
Treasury Constant Maturities for the length of time specified for the most
recent calendar week for which such publication has occurred. If no rate of
return for Treasury Constant Maturities is published for the specific length of
time specified, the Treasury Yield for such length of time shall be the weighted
average of the rates of return of Treasury Constant Maturities most nearly
corresponding to the length of the applicable period specified. If the
publishing of the rate of return of Treasury Constant Maturities is ever
discontinued, then the Treasury Yield shall be based upon the index which is
published by the Board of Governors of the U.S. Federal Reserve System in
replacement thereof or, if no such replacement index is published, the index
which, in Landlord's reasonable determination, most nearly corresponds to the
rate of return of Treasury Constant Maturities. In determining the aggregate
reasonable rental value pursuant to subparagraph (ii)(1)(B) above, the parties
hereby agree that, at the time Landlord seeks to enforce this remedy, all
relevant factors should be considered, including, but not limited to, (a) the
length of time remaining in the Term, (b) the then current market conditions in
the general area in which the Building is located, (c) the likelihood of
reletting the Demised Premises for a period of time equal to the remainder of
the Term, (d) the net effective rental rates then being obtained by landlords
for similar type space of similar size in similar type buildings in the general
area in which the Building is located, (e) the vacancy levels in the general
area in which the Building is located, (f) current levels of new construction
that will be completed during the remainder of the Term and how this
construction will likely affect vacancy rates and rental rates and (g)
inflation; or
(iii) without terminating this Lease, declare immediately due
and payable the sum of the following: (1) the present value (calculated using
the "Treasury Yield") of all Base Rent and Additional Rent due and coming due
under this Lease for the entire remaining Term (as if by the terms of this Lease
they were payable in advance), plus (2) the cost of recovering and reletting the
Demised Premises and all other expenses incurred by Landlord in connection with
Tenant's default, plus (3) any
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<PAGE> 12
unpaid Base Rent, Additional Rent and other rentals, charges, assessments and
other sums owing by Tenant to Landlord under this Lease or in connection with
the Demised Premises as of the date this provision is invoked by Landlord, plus
(4) interest on all such amounts from the date due at the Interest Rate, and
Landlord may immediately proceed to distrain, collect, or bring action for such
sum, or may file a proof of claim in any bankruptcy or insolvency proceedings to
enforce payment thereof; provided, however, that such payment shall not be
deemed a penalty or liquidated damages, but shall merely constitute payment in
advance of all Base Rent and Additional Rent payable hereunder throughout the
Term, and provided further, however, that upon Landlord receiving such payment,
Tenant shall be entitled to receive from Landlord all rents received by Landlord
from other assignees, tenants and subtenants on account of said Demised Premises
during the remainder of the Term (provided that the monies to which Tenant shall
so become entitled shall in no event exceed the entire amount actually paid by
Tenant to Landlord pursuant to this subparagraph (iii)), less all costs,
expenses and attorneys' fees of Landlord incurred but not yet reimbursed by
Tenant in connection with recovering and reletting the Demised Premises; or
(iv) Without terminating this Lease, in its own name but as
agent for Tenant, enter into and upon and take possession of the Demised
Premises or any part thereof. Any property remaining in the Demised Premises may
be removed and stored in a warehouse or elsewhere at the cost of, and for the
account of, Tenant without Landlord being deemed guilty of trespass or becoming
liable for any loss or damage which may be occasioned thereby unless caused by
Landlord's negligence. Thereafter, Landlord may, but shall not be obligated to,
lease to a third party the Demised Premises or any portion thereof as the agent
of Tenant upon such terms and conditions as Landlord may deem necessary or
desirable in order to relet the Demised Premises. The remainder of any rentals
received by Landlord from such reletting, after the payment of any indebtedness
due hereunder from Tenant to Landlord, and the payment of any costs and expenses
of such reletting, shall be held by Landlord to the extent of and for
application in payment of future rent owed by Tenant, if any, as the same may
become due and payable hereunder. If such rentals received from such reletting
shall at any time or from time to time be less than sufficient to pay to
Landlord the entire sums then due from Tenant hereunder, Tenant shall pay any
such deficiency to Landlord. Notwithstanding any such reletting without
termination, Landlord may at any time thereafter elect to terminate this Lease
for any such previous default provided same has not been cured; or
(v) Without terminating this Lease, and with or without
notice to Tenant, enter into and upon the Demised Premises and, without being
liable for prosecution or any claim for damages therefor, maintain the Demised
Premises and repair or replace any damage thereto or do anything or make any
payment for which Tenant is responsible hereunder. Tenant shall reimburse
Landlord immediately upon demand for any expenses which Landlord incurs in thus
effecting Tenant's compliance under this Lease and Landlord shall not be liable
to Tenant for any damages with respect thereto; or
(vi) Without liability to Tenant or any other party and
without constituting a constructive or actual eviction, suspend or discontinue
furnishing or rendering to Tenant any property, material, labor, utilities or
other service, wherever Landlord is obligated to furnish or render the same so
long as an Event of Default exists under this Lease; or
(vii) With or without terminating this Lease, allow the
Demised Premises to remain unoccupied and collect rent from Tenant as it comes
due; or
(viii) Pursue such other remedies as are available at law or
equity.
(c) If this Lease shall terminate as a result of or while there
exists an Event of Default hereunder, any funds of Tenant held by Landlord may
be applied by Landlord to any damages payable by Tenant (whether provided for
herein or by law) as a result of such termination or default.
(d) Neither the commencement of any action or proceeding, nor the
settlement thereof, nor entry of judgment thereon shall bar Landlord from
bringing subsequent actions or proceedings from time to time, nor shall the
failure to include in any action or proceeding any sum or sums then due be a bar
to the maintenance of any subsequent actions or proceedings for the recovery of
such sum or sums so omitted.
(e) No agreement to accept a surrender of the Demised Premises
and no act or omission by Landlord or Landlord's agents during the Term shall
constitute an acceptance or surrender of the Demised Premises unless made in
writing and signed by Landlord. No re-entry or taking possession of the Demised
Premises by Landlord shall constitute an election by Landlord to terminate this
Lease unless a written notice of such intention is given to Tenant. No provision
of this Lease shall be deemed to have been waived by either party unless such
waiver is in writing and signed by the party making such waiver. Landlord's
acceptance of Base Rent or Additional Rent in full or in part following an Event
of Default hereunder shall not be construed as a waiver of such Event of
Default. No custom or practice which may grow up between the parties in
connection with the terms of this Lease shall be construed to waive or lessen
either party's right to insist upon strict performance of the terms of this
Lease, without a written notice thereof to the other party.
(f) If an Event of Default shall occur, Tenant shall pay to
Landlord, on demand, all expenses incurred by Landlord as a result thereof,
including reasonable attorneys' fees, court costs and expenses actually
incurred.
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<PAGE> 13
23. Landlord's Right of Entry. Tenant agrees to permit Landlord and
the authorized representatives of Landlord and of Lender to enter upon the
Demised Premises at all reasonable times for the purposes of inspecting the
Demised Premises and Tenant's compliance with this Lease, and making any
necessary repairs thereto; provided that, except in the case of an emergency,
Landlord shall give Tenant reasonable prior notice of Landlord's intended entry
upon the Demised Premises. Nothing herein shall imply any duty upon the part of
Landlord to do any work required of Tenant hereunder, and the performance
thereof by Landlord shall not constitute a waiver of Tenant's default in failing
to perform it. Landlord shall not be liable for inconvenience, annoyance,
disturbance or other damage to Tenant by reason of making such repairs or the
performance of such work in the Demised Premises or on account of bringing
materials, supplies and equipment into or through the Demised Premises during
the course thereof, and the obligations of Tenant under this Lease shall not
thereby be affected; provided, however, that Landlord shall use reasonable
efforts not to disturb or otherwise interfere with Tenant's operations in the
Demised Premises in making such repairs or performing such work. Landlord also
shall have the right to enter the Demised Premises at all reasonable times to
exhibit the Demised Premises to any prospective purchaser, mortgagee or tenant
thereof.
24. Lender's Rights.
(a) For purposes of this Lease:
(i) "Lender" as used herein means the holder of a Mortgage;
(ii) "Mortgage" as used herein means any or all mortgages,
deeds to secure debt, deeds of trust or other instruments in the nature thereof
which may now or hereafter affect or encumber Landlord's title to the Demised
Premises, and any amendments, modifications, extensions or renewals thereof.
(b) This Lease and all rights of Tenant hereunder are and shall
be subject and subordinate to the lien and security title of any Mortgage.
Tenant recognizes and acknowledges the right of Lender to foreclose or exercise
the power of sale against the Demised Premises under any Mortgage.
(c) Tenant shall, in confirmation of the subordination set forth
in Section 24(b) and notwithstanding the fact that such subordination is
self-operative, and no further instrument or subordination shall be necessary,
upon demand, at any time or times, execute, acknowledge, and deliver to Landlord
or to Lender any and all instruments requested by either of them to evidence
such subordination.
(d) At any time during the Term, Lender may, by written notice to
Tenant, make this Lease superior to the lien of its Mortgage. If requested by
Lender, Tenant shall, upon demand, at any time or times, execute, acknowledge,
and deliver to Lender, any and all instruments that may be necessary to make
this Lease superior to the lien of any Mortgage.
(e) If Lender (or Lender's nominee, or other purchaser at
foreclosure) shall hereafter succeed to the rights of Landlord under this Lease,
whether through possession or foreclosure action or delivery of a new lease,
Tenant shall, if requested by such successor, attorn to and recognize such
successor as Tenant's landlord under this Lease without change in the terms and
provisions of this Lease and shall promptly execute and deliver any instrument
that may be necessary to evidence such attornment, provided that such successor
shall not be bound by (i) any payment of Base Rent or Additional Rent for more
than one month in advance, except prepayments in the nature of security for the
performance by Tenant of its obligations under this Lease, and then only if such
prepayments have been deposited with and are under the control of such
successor, (ii) any provision of any amendment to the Lease to which Lender has
not consented, (iii) the defaults of any prior landlord under this Lease, or
(iv) any offset rights arising out of the defaults of any prior landlord under
this Lease. Upon such attornment, this Lease shall continue in full force and
effect as a direct lease between each successor landlord and Tenant, subject to
all of the terms, covenants and conditions of this Lease.
(f) In the event there is a Mortgage at any time during the Term,
Landlord shall use reasonable efforts to cause the Lender to enter into a
subordination, nondisturbance and attornment agreement with Tenant reasonably
satisfactory to Tenant and consistent with this Section 24.
25. Estoppel Certificate. Landlord and Tenant agree, at any time, and
from time to time, within fifteen (15) days after written request of the other,
to execute, acknowledge and deliver a statement in writing in recordable form to
the requesting party and/or its designee certifying that: (i) this Lease is
unmodified and in full force and effect (or, if there have been modifications,
that the same is in full force and effect, as modified), (ii) the dates to which
Base Rent, Additional Rent and other charges have been paid, (iii) whether or
not, to the best of its knowledge, there exists any failure by the requesting
party to perform any term, covenant or condition contained in this Lease, and,
if so, specifying each such failure, (iv) (if such be the case) Tenant has
unconditionally accepted the Demised Premises and is conducting its business
therein, and (v) and as to such additional matters as may be requested, it being
intended that any such statement delivered pursuant hereto may be relied upon by
the requesting party and by any purchaser of title to the Demised Premises or by
any mortgagee or any assignee thereof or any party to any sale-leaseback of the
Demised Premises, or the landlord under a ground lease affecting the Demised
Premises.
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<PAGE> 14
26. Landlord Liability. No owner of the Demised Premises,
whether or not named herein, shall have liability hereunder after it ceases to
hold title to the Demised Premises. Neither Landlord nor any officer, director,
shareholder, partner or principal of Landlord, whether disclosed or undisclosed,
shall be under any personal liability with respect to any of the provisions of
this Lease. In the event Landlord is in breach or default with respect to
Landlord's obligations or otherwise under this Lease, Tenant shall look solely
to the equity of Landlord in the Building for the satisfaction of Tenant's
remedies. It is expressly understood and agreed that Landlord's liability under
the terms, covenants, conditions, warranties and obligations of this Lease shall
in no event exceed the loss of Landlord's equity interest in the Building.
27. Notices. Any notice required or permitted to be given or served
by either party to this Lease shall be deemed given when made in writing, and
either (i) personally delivered, (ii) deposited with the United States Postal
Service, postage prepaid, by registered or certified mail, return receipt
requested, or (iii) delivered by licensed overnight delivery service providing
proof of delivery, properly addressed to the address set forth in Section 1(m)
(as the same may be changed by giving written notice of the aforesaid in
accordance with this Section 27). If any notice mailed is properly addressed
with appropriate postage but returned for any reason, such notice shall be
deemed to be effective notice and to be given on the date of mailing.
28. Brokers. Tenant represents and warrants to Landlord that, except
for those parties set forth in Section 1(o) (the "Brokers"), Tenant has not
engaged or had any conversations or negotiations with any broker, finder or
other third party concerning the leasing of the Demised Premises to Tenant who
would be entitled to any commission or fee based on the execution of this Lease.
Tenant hereby further represents and warrants to Landlord that Tenant is not
receiving and is not entitled to receive any rebate, payment or other
remuneration, either directly or indirectly, from the Brokers, and that it is
not otherwise sharing in or entitled to share in any commission or fee paid to
the Brokers by Landlord or any other party in connection with the execution of
this Lease, either directly or indirectly. Tenant hereby indemnifies Landlord
against and from any claims for any brokerage commissions (except those payable
to the Brokers, all of which are payable by Landlord pursuant to a separate
agreement) and all costs, expenses and liabilities in connection therewith,
including, without limitation, reasonable attorneys' fees and expenses, for any
breach of the foregoing. The foregoing indemnification shall survive the
termination of this Lease for any reason.
29. Assignment and Subleasing.
(a) Tenant may not assign, mortgage, pledge, encumber or
otherwise transfer this Lease, or any interest hereunder, or sublet the Demised
Premises, in whole or in part, without on each occasion first obtaining the
prior express written consent of Landlord, which consent Landlord shall not
unreasonably withhold. Any change in control of Tenant resulting from a merger,
consolidation, stock transfer or asset sale shall be considered an assignment or
transfer which requires Landlord's prior written consent. For purposes of this
Section 29, by way of example and not limitation, Landlord shall be deemed to
have reasonably withheld consent if Landlord determines (i) that the prospective
assignee or subtenant is not of a financial strength similar to Tenant as of the
Lease Date, (ii) that the prospective assignee or subtenant has a poor business
reputation, (iii) that the proposed use of the Demised Premises by such
prospective assignee or subtenant (including, without limitation, a use
involving the use or handling of Hazardous Substances) will negatively affect
the value or marketability of the Building or the Project or (iv) that the
prospective assignee or subtenant is a current tenant in the Project or is a
bona-fide third-party prospective tenant.
(b) If Tenant desires to assign this Lease or sublet the Demised
Premises or any part thereof, Tenant shall give Landlord written notice no later
than forty-five (45) days in advance of the proposed effective date of any
proposed assignment or sublease, specifying (i) the name and business of the
proposed assignee or sublessee, (ii) the amount and location of the space within
the Demised Premises proposed to be subleased, (iii) the proposed effective date
and duration of the assignment or subletting and (iv) the proposed rent or
consideration to be paid to Tenant by such assignee or sublessee. Tenant shall
promptly supply Landlord with financial statements and other information as
Landlord may reasonably request to evaluate the proposed assignment or sublease.
Landlord shall have a period of thirty (30) days following receipt of such
notice and other information requested by Landlord within which to notify Tenant
in writing that Landlord elects: (i) to terminate this Lease as to the space so
affected as of the proposed effective date set forth in Tenant's notice, in
which event Tenant shall be relieved of all further obligations hereunder as to
such space, except for obligations under Sections 11 and 28 and all other
provisions of this Lease which expressly survive the termination hereof; or (ii)
to permit Tenant to assign or sublet such space; provided, however, that, if the
rent rate agreed upon between Tenant and its proposed subtenant is greater than
the rent rate that Tenant must pay Landlord hereunder for that portion of the
Demised Premises, or if any consideration shall be promised to or received by
Tenant in connection with such proposed assignment or sublease (in addition to
rent), then one half (1/2) of such excess rent and other consideration (after
payment of brokerage commissions, attorneys' fees and other disbursements
reasonably incurred by Tenant for such assignment and subletting if acceptable
evidence of such disbursements is delivered to Landlord) shall be considered
Additional Rent owed by Tenant to Landlord, and shall be paid by Tenant to
Landlord, in the case of excess rent, in the same manner that Tenant pays Base
Rent and, in the case of any other consideration, within ten (10) business days
after receipt thereof by Tenant; or (iii) to refuse, in Landlord's reasonable
discretion (taking into account all relevant factors including, without
limitation, the factors set forth in the Section 29(a) above), to consent to
Tenant's assignment or subleasing
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<PAGE> 15
of such space and to continue this Lease in full force and effect as to the
entire Demised Premises. If Landlord should fail to notify Tenant in writing of
such election within the aforesaid thirty (30) day period, Landlord shall be
deemed to have elected option (iii) above. Tenant agrees to reimburse Landlord
for reasonable legal fees and any other reasonable costs incurred by Landlord in
connection with any requested assignment or subletting, and such payments shall
not be deducted from the Additional Rent owed to Landlord pursuant to subsection
(ii) above. Tenant shall deliver to Landlord copies of all documents executed in
connection with any permitted assignment or subletting, which documents shall be
in form and substance reasonably satisfactory to Landlord and which shall
require such assignee to assume performance of all terms of this Lease on
Tenant's part to be performed.
(c) No acceptance by Landlord of any rent or any other sum of
money from any assignee, sublessee or other category of transferee shall be
deemed to constitute Landlord's consent to any assignment, sublease, or
transfer. Permitted subtenants or assignees shall become liable directly to
Landlord for all obligations of Tenant hereunder, without, however, relieving
Tenant of any of its liability hereunder. No such assignment, subletting,
occupancy or collection shall be deemed the acceptance of the assignee, tenant
or occupant, as Tenant, or a release of Tenant from the further performance by
Tenant of Tenant's obligations under this Lease. Any assignment or sublease
consented to by Landlord shall not relieve Tenant (or its assignee) from
obtaining Landlord's consent to any subsequent assignment or sublease.
30. Termination or Expiration.
(a) No termination of this Lease prior to the normal ending
thereof, by lapse of time or otherwise, shall affect Landlord's right to collect
rent for the period prior to termination thereof.
(b) At the expiration or earlier termination of the Term of this
Lease, Tenant shall surrender the Demised Premises and all improvements,
alterations and additions thereto, and keys therefor to Landlord, clean and
neat, and in the same condition as at the Lease Commencement Date, excepting
normal wear and tear, condemnation and casualty other than that required to be
insured against by Tenant hereunder.
(c) If Tenant remains in possession of the Demised Premises after
expiration of the Term, with or without Landlord's acquiescence and without any
express agreement of the parties, Tenant shall be a tenant-at-sufferance at the
greater of (i) one hundred fifty percent (150%) of the then current fair market
base rental value of the Demised Premises or (ii) one hundred fifty percent
(150%) of the Base Rent in effect at the end of the Term. Tenant shall also
continue to pay all other Additional Rent due hereunder, and there shall be no
renewal of this Lease by operation of law. In addition to the foregoing, Tenant
shall be liable for all damages, direct and consequential, incurred by Landlord
as a result of such holdover. No receipt of money by Landlord from Tenant after
the termination of this Lease or Tenant's right of possession of the Demised
Premises shall reinstate, continue or extend the Term or Tenant's right of
possession.
31. Relocation. Upon sixty (60) days advance written notice from
Landlord to Tenant and with Tenant's consent, which shall not be unreasonably
withheld or delayed, Tenant agrees to relocate to other space in the Building or
Project designated by Landlord (the "New Space"), provided: (i) the New Space is
of similar size and similar configuration to the Demised Premises; (ii) Landlord
shall pay all reasonable out-of-pocket expenses in moving Tenant, its property
and equipment into the New Space, and Landlord shall pay for all actual and
reasonable loss of business income associated with such relocation, provided
Tenant delivers evidence of such loss to Landlord; and (iii) Landlord shall, at
its sole cost, renovate or alter the New Space to conform substantially with the
Demised Premises. If Landlord moves Tenant to the New Space, every term and
condition of this Lease shall remain in full force and effect, except the Base
Rent and Additional Rent shall be adjusted pro rata to reflect any decrease or
increase in the square footage of the Demised Premises, and the New Space shall
thereafter be deemed to be the Demised Premises as though Tenant had entered
into an express written amendment of this Lease with respect thereto.
32. Late Payments. In the event any installment of rent, inclusive of
Base Rent, or Additional Rent or other sums due hereunder, if any, is not paid
(i) within five (5) days after Tenant's receipt of written notice of such
failure to pay on the first occasion during any twelve (12) month period, or
(ii) as and when due with respect to any subsequent late payments in any twelve
(12) month period, Tenant shall pay an administrative fee (the "Administrative
Fee") equal to five percent (5%) of such past due amount, plus interest on the
amount past due at the lesser of (i) the maximum interest rate allowed by law or
(ii) a rate of fifteen percent (15%) per annum (the "Interest Rate") to defray
the additional expenses incurred by Landlord in processing such payment. The
Administrative Fee is in addition to, and not in lieu of, any of the Landlord's
remedies hereunder.
33. Rules and Regulations. Tenant agrees to abide by the rules and
regulations set forth on Exhibit D attached hereto, as well as other rules and
regulations reasonably promulgated by Landlord from time to time, so long as
such rules and regulations are uniformly enforced against all tenants of
Landlord in the Building.
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<PAGE> 16
34. Quiet Enjoyment. So long as Tenant has not committed an Event of
Default hereunder, Landlord agrees that Tenant shall have the right to quietly
use and enjoy the Demised Premises for the Term.
35. Miscellaneous.
(a) The parties hereto hereby covenant and agree that Landlord
shall receive the Base Rent, Additional Rent and all other sums payable by
Tenant hereinabove provided as net income from the Demised Premises, without any
abatement (except as set forth in Section 20 and Section 21), reduction,
set-off, counterclaim, defense or deduction whatsoever.
(b) If any clause or provision of this Lease is determined to be
illegal, invalid or unenforceable under present or future laws effective during
the Term, then and in that event, it is the intention of the parties hereto that
the remainder of this Lease shall not be affected thereby, and that in lieu of
such illegal, invalid or unenforceable clause or provision there shall be
substituted a clause or provision as similar in terms to such illegal, invalid
or unenforceable clause or provision as may be possible and be legal, valid and
enforceable.
(c) All rights, powers, and privileges conferred hereunder upon
the parties hereto shall be cumulative, but not restrictive to those given by
law.
(d) TIME IS OF THE ESSENCE OF THIS LEASE.
(e) No failure of Landlord or Tenant to exercise any power given
Landlord or Tenant hereunder or to insist upon strict compliance by Landlord or
Tenant with its obligations hereunder, and no custom or practice of the parties
at variance with the terms hereof shall constitute a waiver of Landlord's or
Tenant's rights to demand exact compliance with the terms hereof.
(f) This Lease contains the entire agreement of the parties
hereto as to the subject matter of this Lease and no representations,
inducements, promises or agreements, oral or otherwise, between the parties not
embodied herein shall be of any force and effect. The masculine (or neuter)
pronoun, singular number shall include the masculine, feminine and neuter gender
and the singular and plural number.
(g) This contract shall create the relationship of landlord and
tenant between Landlord and Tenant; no estate shall pass out of Landlord; Tenant
has a usufruct, not subject to levy and sale, and not assignable by Tenant
except as expressly set forth herein.
(h) Under no circumstances shall Tenant have the right to record
this Lease or a memorandum thereof.
(i) The captions of this Lease are for convenience only and are
not a part of this Lease, and do not in any way define, limit, describe or
amplify the terms or provisions of this Lease or the scope or intent thereof.
(j) This Lease may be executed in multiple counterparts, each of
which shall constitute an original, but all of which taken together shall
constitute one and the same agreement.
(k) This Lease shall be interpreted under the laws of the State
where the Demised Premises are located.
(l) The parties acknowledge that this Lease is the result of
negotiations between the parties, and in construing any ambiguity hereunder no
presumption shall be made in favor of either party. No inference shall be made
from any item which has been stricken from this Lease other than the deletion of
such item.
36. Special Stipulations. The Special Stipulations, if any, attached
hereto as Exhibit C, are incorporated herein and made a part hereof, and to the
extent of any conflict between the foregoing provisions and the Special
Stipulations, the Special Stipulations shall govern and control.
37. Lease Date. For purposes of this Lease, the term "Lease Date"
shall mean the later date upon which this Lease is signed by Landlord and
Tenant.
38. Authority. If Tenant is not a natural person, Tenant shall cause
its corporate secretary or general partner, as applicable, to execute the
certificate attached hereto as Exhibit E. Tenant is authorized by all required
corporate or partnership action to enter into this Lease and the individual(s)
signing this Lease on behalf of Tenant are each authorized to bind Tenant to its
terms.
39. No Offer Until Executed. The submission of this Lease to Tenant
for examination or consideration does not constitute an offer to lease the
Demised Premises and this Lease shall become effective, if at all, only upon the
execution and delivery thereof by Landlord and Tenant.
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<PAGE> 17
[Remainder of Page Intentionally Left Blank]
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<PAGE> 18
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
under seals, the day and year first above written.
LANDLORD:
Date: March 12, 2000
DFW TRADE CENTER III LIMITED PARTNERSHIP,
a Texas limited partnership
By: DFW GP III, LLC, a Texas limited
liability company, its sole general
partner
By: DFW Trade Center I Limited
Partnership, a Texas limited
partnership, its sole member
By: ID International (Texas),
Inc., a Georgia corporation,
its Managing General Partner
By: /s/ Timothy Gunter
--------------------------
Name: Timothy Gunter
------------------------
Title: Chief Financial Officer
-----------------------
Attest:
----------------------
Name:
-----------------------
Title:
----------------------
[CORPORATE SEAL]
TENANT:
Date: March 12, 2000 ROCKWELL MEDICAL TECHNOLOGIES, INC., a
Michigan corporation
By: /s/ Robert L. Chioini
-------------------------------------
Name: Robert L. Chioini
--------------------------------
Title: Chief Executive Officer and
President
-------------------------------
Attest: /s/ Thomas E. Klema
---------------------------------
Name: Thomas E. Klema
----------------------------
Title: Vice President and Chief
Financial Officer
--------------------------
[CORPORATE SEAL]
-18-
<PAGE> 19
ATTESTATION
Landlord - Partnership:
STATE OF
---------------------
COUNTY OF
--------------------
BEFORE ME, a Notary Public in and for said County, personally appeared
and , known to me to be the person(s)
who, as and , respectively, of ID
International (Texas), Inc., a Georgia corporation, the managing general partner
of DFW Trade Center I Limited Partnership, a Texas limited partnership, the sole
member of DFW GP III, LLC, a Texas limited liability company, the sole general
partner of Landlord, signed the same, and acknowledged to me that they did so
sign said instrument in the name and upon behalf of said corporation, in its
capacity as general partner of Landlord, that the same is their free act and
deed and they were duly authorized thereunto by the corporation and the
partnership.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name, and affixed my
official seal, this day of , 2000.
-----------------------------------------
Notary Public
My Commission Expires:
Tenant - Corporation:
STATE OF
--------------------
COUNTY OF
-------------------
BEFORE ME, a Notary Public in and for said County, personally appeared
and , known to me to be the person(s)
who, as and ,
respectively, of Rockwell Medical Technologies, Inc., the corporation which
executed the foregoing instrument in its capacity as Tenant, signed the same,
and acknowledged to me that they did so sign said instrument in the name and
upon behalf of said corporation as officers of said corporation, that the same
is their free act and deed as such officers, respectively, and they were duly
authorized thereunto by its board of directors; and that the seal affixed to
said instrument is the corporate seal of said corporation.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name, and affixed my
official seal, this day of , 2000.
-----------------------------------
Notary Public
My Commission Expires:
-19-
<PAGE> 20
LEASE INDEX
-----------
Section Subject
------- -------
1 Basic Lease Provisions
2 Demised Premises
3 Term
4 Base Rent
5 Security Deposit
6 Operating Expenses and Additional Rent
7 Use of Demised Premises
8 Insurance
9 Utilities
10 Maintenance and Repairs
11 Tenant's Personal Property; Indemnity
12 Tenant's Fixtures
13 Signs
14 Landlord's Lien
15 Governmental Regulations
16 Environmental Matters
17 Construction of Demised Premises
18 Tenant Alterations and Additions
19 Services by Landlord
20 Fire and Other Casualty
21 Condemnation
22 Tenant's Default
23 Landlord's Right of Entry
24 Lender's Rights
25 Estoppel Certificate
26 Landlord's Liability
27 Notices
28 Brokers
29 Assignment and Subleasing
30 Termination or Expiration
31 Relocation
32 Late Payments
33 Rules and Regulations
34 Quiet Enjoyment
35 Miscellaneous
36 Special Stipulations
37 Lease Date
38 Authority
39 No Offer Until Executed
40 Radon Disclosure Exhibit "A"
Demised Premises
Exhibit "B" Preliminary Plans and Specifications/Work
Exhibit "C" Special Stipulations
Exhibit "D" Rules and Regulations
Exhibit "E" Certificate of Authority
Exhibit "F" Form of Irrevocable Letter of Credit
Exhibit "G" Form of Subordination, Non-Disturbance and Attornment
Agreement
<PAGE> 21
VERSION 4/98
INDUSTRIAL LEASE AGREEMENT
BETWEEN
DFW TRADE CENTER III LIMITED PARTNERSHIP
AS LANDLORD
AND
ROCKWELL MEDICAL TECHNOLOGIES, INC.
AS TENANT
<PAGE> 22
EXHIBIT A
DEMISED PREMISES
a-1
<PAGE> 23
EXHIBIT B
PRELIMINARY PLANS AND SPECIFICATIONS/WORK
b-1
<PAGE> 24
EXHIBIT C
SPECIAL STIPULATIONS
The Special Stipulations set forth herein are hereby incorporated into
the body of the lease to which these Special Stipulations are attached (the
"Lease"), and to the extent of any conflict between these Special Stipulations
and the preceding language, these Special Stipulations shall govern and control.
1. Construction of Demised Premises.
(a) Notwithstanding the provisions of Section 17 of this Lease,
Landlord shall be responsible for the cost of the construction of the
Improvements (as defined in Section 8(a)(ii) of the Lease) only up to an amount
equal to $200,000.00 (the "Tenant Allowance"). Upon substantial completion of
the Improvements, Landlord shall deliver to Tenant a bill for all amounts in
excess of the Tenant Allowance. Tenant agrees to pay such bill in full to
Landlord within ten (10) calendar days following receipt of such bill.
(b) For purposes of this Special Stipulation, the cost of the
construction of the Improvements shall be deemed to include, but not be limited
to, the cost of the Plans and Specifications, permits and all tenant buildout,
including, without limitation, demising walls, utilities, the heating,
ventilating and air conditioning system.
(c) Notwithstanding the provisions of Special Stipulation 1(a) of this
Lease, Landlord shall be responsible for the cost of installing air-conditioning
in the warehouse portion of the Demised Premises in such capacity as to provide
a twenty (20) degree differential from the outside temperature. The cost of such
installation shall not be credited against the Tenant Allowance.
2. Option to Extend Term.
(a) Landlord hereby grants to Tenant one (1) option to extend the Term
for a period of five (5) years, such option to be exercised by Tenant giving
written notice of its exercise to Landlord in the manner provided in this Lease
at least one hundred eighty (180) days prior to (but not more than two hundred
ten (210) days prior to) the expiration of the Term, as it may have been
previously extended. No extension option may be exercised by Tenant if an Event
of Default has occurred and is then continuing or any facts or circumstances
then exist which, with the giving of notice or the passage of time, or both,
would constitute an Event of Default either at the time of exercise of the
option or at the time the applicable Term would otherwise have expired if the
applicable option had not been exercised.
(b) If Tenant exercises its option to extend the Term, Landlord shall,
within thirty (30) days after the receipt of Tenant's notice of exercise, notify
Tenant in writing of Landlord's reasonable determination of the prevailing
market rent for the Demised Premises for the extended Term taking into account
all relevant factors for space of this type in the Grapevine, Texas area. Tenant
shall have thirty (30) days from its receipt of Landlord's notice to notify
Landlord in writing that Tenant does not agree with Landlord's determination of
the Base Rent and therefore that Tenant elects to retract its option to extend
the Term, in which case the Term, as it may have been previously extended, shall
expire on its scheduled expiration date and Tenant's option to extend the Term
shall be void and of no further force and effect. If Tenant does not notify
Landlord of such retraction within thirty (30) days of its receipt of Landlord's
notice, Base Rent for the Demised Premises for the applicable extended term
shall be the Base Rent set forth in Landlord's notice to Tenant.
(c) Except for the Base Rent, which shall be determined as set forth
in subparagraph (b) above, leasing of the Demised Premises by Tenant for the
applicable extended term shall be subject to all of the same terms and
conditions set forth in this Lease, including Tenant's obligation to pay
Tenant's share of Operating Expenses as provided in this Lease; provided,
however, that any improvement allowances, termination rights, rent abatements or
other concessions applicable to the Demised Premises during the initial Term
shall not be applicable during any such extended term, nor shall Tenant have any
additional extension options unless expressly provided for in this Lease.
Landlord and Tenant shall enter into an amendment to this Lease to evidence
Tenant's exercise of its renewal option. If this Lease is guaranteed, it shall
be a condition of Landlord's granting the renewal that Tenant deliver to
Landlord a reaffirmation of the guaranty in which the guarantor acknowledges
Tenant's exercise of its renewal option and reaffirms that the guaranty is in
full force and effect and applies to said renewal.
3. SNDA. Simultaneously with the execution of this Lease, Landlord
and Tenant shall execute a Subordination, Non-Disturbance and Attornment
Agreement in the form attached hereto as Exhibit "G".
c-1
<PAGE> 25
EXHIBIT D
RULES AND REGULATIONS
These Rules and Regulations have been adopted by Landlord for the mutual benefit
and protection of all the tenants of the Building in order to insure the safety,
care and cleanliness of the Building and the preservation of order therein.
1. The sidewalks shall not be obstructed or used for any purpose
other than ingress and egress. No tenant and no employees of any tenant shall go
upon the roof of the Building without the consent of Landlord.
2. No awnings or other projections shall be attached to the outside
walls of the Building.
3. The plumbing fixtures shall not be used for any purpose other than
those for which they were constructed, and no sweepings, rubbish, rags or other
substances, including Hazardous Substances, shall be thrown therein.
4. No tenant shall cause or permit any objectionable or offensive
odors to be emitted from the Demised Premises.
5. The Demised Premises shall not be used for lodging or sleeping or
for any immoral or illegal purposes.
6. No tenant shall make, or permit to be made any unseemly or
disturbing noises, sounds or vibrations or disturb or interfere with tenants of
this or neighboring buildings or premises or those having business with them.
7. Each tenant must, upon the termination of this tenancy, return to
the Landlord all keys of stores, offices, and rooms, either furnished to, or
otherwise procured by, such tenant, and in the event of the loss of any keys so
furnished, such tenant shall pay to the Landlord the cost of replacing the same
or of changing the lock or locks opened by such lost key if Landlord shall deem
it necessary to make such change.
8. Canvassing, soliciting and peddling in the Building and the
Project are prohibited and each tenant shall cooperate to prevent such activity.
9. Landlord will direct electricians as to where and how telephone or
telegraph wires are to be introduced. No boring or cutting for wires or
stringing of wires will be allowed without written consent of Landlord. The
location of telephones, call boxes and other office equipment affixed to the
Demised Premises shall be subject to the approval of Landlord.
10. Parking spaces associated with the Building are intended for the
exclusive use of passenger automobiles. Except for intermittent deliveries, no
vehicles other than passenger automobiles may be parked in a parking space
without the express written permission of Landlord. Trucks and tractor trailers
may only be parked at designated areas of the Building. Trucks and tractor
trailers shall not block access to the Building.
11. No tenant shall use any area within the Project for storage
purposes other than the interior of the Demised Premises.
d-1
<PAGE> 26
EXHIBIT E
CERTIFICATE OF AUTHORITY
CORPORATION
The undersigned, Secretary of Rockwell Medical Technologies, Inc., a
Michigan corporation ("Tenant"), hereby certifies as follows to DFW Trade Center
III Limited Partnership, a Texas limited partnership ("Landlord"), in connection
with Tenant's proposed lease of premises in Building H, at DFW Trade Center,
Grapevine, Texas (the "Premises"):
1. Tenant is duly organized, validly existing and in good standing
under the laws of the State of Michigan, and duly qualified to do business in
the State of Texas.
2. That the following named persons, acting individually, are each
authorized and empowered to negotiate and execute, on behalf of Tenant, a lease
of the Premises and that the signature opposite the name of each individual is
an authentic signature:
<TABLE>
<CAPTION>
<S> <C> <C>
- ------------------------ ------------------------- ------------------------------
(name) (title) (signature)
- ------------------------ ------------------------- ------------------------------
(name) (title) (signature)
- ------------------------ ------------------------- ------------------------------
(name) (title) (signature)
</TABLE>
3. That the foregoing authority was conferred upon the person(s)
named above by the Board of Directors of Tenant, at a duly convened meeting held
, 2000.
-------------------------------
Secretary
[CORPORATE SEAL]
d-3
<PAGE> 27
EXHIBIT F
IRREVOCABLE LETTER OF CREDIT
DFW Trade Center III Limited Partnership
c/o Industrial Developments International, Inc.
3424 Peachtree Road N.E.
Suite 1500
Atlanta, Georgia 30326
Attention:
----------------
Ladies and Gentlemen:
At the request and on the instructions of our customer, Rockwell
Medical Technologies, Inc. (the "Applicant"), we hereby establish this
Irrevocable Letter of Credit No. (the "Letter of Credit") in the
amount of $ in your favor. This Letter of Credit is effective
immediately and expires on , 2000.
Funds under this Letter of Credit will be made available to you against
receipt by us of (1) a sight draft in the form of Annex A attached hereto and
(2) your drawing certificate in the form of Annex B attached hereto, in each
case appropriately completed and purportedly signed by one of your authorized
officers.
Presentation of any such sight draft and drawing certificate shall be
made at our office located at [PRESENTATION OFFICE ADDRESS], Attention:
, telecopy number ( ) , during our banking hours of
a.m., Eastern Standard Time to p.m., Eastern Standard Time.
Presentation hereunder may also be made in the form of facsimile transmission of
the appropriate sight draft and drawing certificate to the preceding address and
telecopy number.
If a sight draft and drawing certificate are presented hereunder by
sight or by facsimile transmission as permitted hereunder, by 11:00 a.m.,
Eastern Standard Time, and provided that such sight draft and drawing
certificate conform to the terms and conditions of this Letter of Credit,
payment shall be made to you, or to your designee, of the amount specified, in
immediately available funds, not later than 2:00 p.m., Eastern Standard Time, on
the same day. If a sight draft and a drawing certificate are presented by you
hereunder after the time specified above, and provided that such sight draft and
drawing certificate conform to the terms and conditions of this Letter of
Credit, payment shall be made to you, or to your designee, of the amount
specified, in immediately available funds, not later than 2:00 p.m., Eastern
Standard Time, on the next business day. If a demand for payment made by you
hereunder does not, in any instance, conform to the terms and conditions of this
Letter of Credit, we shall give you notice within one business day that the
demand for payment was not effected in accordance with the terms and conditions
of this Letter of Credit, stating the reasons therefor and that we will upon
your instructions hold any documents at your disposal or return the same to you.
Upon being notified that the demand for payment was not effected in conformity
with this Letter of Credit, you may attempt to correct any such non-conforming
demand for payment to the extent that you are entitled to do so and within the
validity of this Letter of Credit.
Partial drawings are allowed under this Letter of Credit. Any drawing
under this Letter of Credit will be paid from our general funds and not directly
or indirectly from funds or collateral deposited with or for our account by the
Applicant, or pledged with or for our account by the Applicant.
This Letter of Credit is transferable and notwithstanding Article 48 of
the Uniform Customs (as defined below), this Letter of Credit may be
successively transferred. Transfer of this Letter of Credit to a transferee
shall be effected only upon the presentation to us of the original of this
Letter of Credit accompanied by a certificate in the form of Annex C. Upon such
presentation we shall transfer the same to your transferee or, if so requested
by your transferee, issue a letter of credit to your transferee with provisions
consistent with, and substantially the same as, this Letter of Credit.
This Letter of Credit shall be subject to the Uniform Customs and
Practice for Documentary Credits (1993 Revision), International Chamber of
Commerce Publication No. 500 (the "Uniform Customs"), which is incorporated into
the text of this Letter of Credit by this reference. This Letter of Credit shall
be deemed to be issued under the laws of the State of Georgia and shall be
governed by and construed in accordance with the law of the State of Georgia
with respect to matters not governed by the Uniform Customs and matters on which
the Uniform Customs and the laws of the State of Georgia are inconsistent.
Very truly yours,
[ISSUING BANK]
By:
--------------------------------
Name:
----------------------------
Title:
---------------------------
F-1
<PAGE> 28
ANNEX A
SIGHT DRAFT
[Date]
At Sight
Pay to the order of DFW Trade Center III Limited Partnership the sum of
and /100 Dollars ($ ) drawn on
[ISSUING BANK], as issuer of its Irrevocable Letter of Credit No. dated
, 2000.
DFW TRADE CENTER III LIMITED PARTNERSHIP, a Texas
limited partnership
By: DFW GP III, LLC, a Texas limited liability
company, its sole general partner
By: DFW Trade Center I Limited Partnership, a
Texas limited partnership, its sole
member
By: ID International (Texas), Inc., a
Georgia corporation, its Managing
General Partner
By:
-------------------------------
Name:
--------------------------
Title:
-------------------------
Attest:
----------------------------
Name:
-----------------------
Title:
----------------------
[Corporate Seal]
d-5
<PAGE> 29
ANNEX B
DRAWING CERTIFICATE
[Date]
[ISSUING BANK]
[ADDRESS]
Attention:
Re: Irrevocable Letter of Credit No. (the "Letter of Credit")
For the Account of Rockwell Medical Technologies,
Inc. (the "Applicant")
Ladies and Gentlemen:
The undersigned, DFW Trade Center III Limited Partnership (the
"Beneficiary") hereby certifies that:
1) The Beneficiary is the lessor under that certain Industrial Lease
Agreement] dated , 2000, as amended, between the Beneficiary, as
lessor, and the Applicant, as lessee (the "Lease").
2) The Beneficiary is entitled to payment under the Letter of Credit
in the amount of $ by reason of the following condition (mark only one):
--- The Applicant has defaulted under the Lease.
--- The expiration date of the Letter of Credit is less than [30] days
from the date of this Certificate.
3) Please direct payment under the Letter of Credit by wire transfer
to:
[Depository Bank]
[Depository Bank Address]
ABA No.
----------------------
Acct. No.
---------------------
IN WITNESS WHEREOF, the undersigned has duly executed and delivered
this Certificate.
DFW TRADE CENTER III LIMITED PARTNERSHIP,
a Texas limited partnership
By: DFW GP III, LLC, a Texas limited
liability company, its sole general
partner
By: DFW Trade Center I Limited
Partnership, a Texas limited
partnership, its sole member
By: ID International (Texas),
Inc., a Georgia
corporation, its
Managing General Partner
By:
----------------------
Name:
-----------------
Title:
----------------
Attest:
------------------
Name:
-----------------
Title:
----------------
[Corporate Seal]
d-6
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<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> DEC-31-1999
<CASH> 1,093,293
<SECURITIES> 0
<RECEIVABLES> 1,033,689
<ALLOWANCES> 53,000
<INVENTORY> 413,240
<CURRENT-ASSETS> 2,517,841
<PP&E> 1,321,670
<DEPRECIATION> 622,437
<TOTAL-ASSETS> 4,473,906
<CURRENT-LIABILITIES> 868,312
<BONDS> 0
0
0
<COMMON> 8,762,941
<OTHER-SE> 251,150
<TOTAL-LIABILITY-AND-EQUITY> 4,473,906
<SALES> 6,688,914
<TOTAL-REVENUES> 6,688,914
<CGS> 5,778,154
<TOTAL-COSTS> 5,778,154
<OTHER-EXPENSES> 2,043,098
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> (1,071,270)
<INCOME-TAX> 0
<INCOME-CONTINUING> (1,071,270)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (1,071,270)
<EPS-BASIC> (.22)
<EPS-DILUTED> (.22)
</TABLE>
