<PAGE> 1
U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(MARK ONE)
[X] QUARTERLY REPORT UNDER SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarter ended MARCH 31, 2000
[ ] TRANSITION REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 (no fee required)
Commission file number 000-27969
IMMERSION CORPORATION
--------------------------------------
(Name of small business issuer in its charter)
DELAWARE 94-3180138
-------------------------------------------- ---------------------
(State or other jurisdiction of incorporation (I.R.S. employer
or organization) Identification No.)
2158 PARAGON DRIVE, SAN JOSE, CALIFORNIA 95131
-------------------------------------------- ---------------------
(Address of principal executive offices) (Zip code)
Issuer's telephone number: (408) 467-1900
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 [ ]
Number of shares of Common Stock outstanding at May 5, 2000: 16,066,788
<PAGE> 2
IMMERSION CORPORATION
QUARTERLY REPORT ON FORM 10-Q
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
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PART I
FINANCIAL INFORMATION
<S> <C>
Item 1. Financial Statements
Condensed Consolidated Balance Sheets (Unaudited) as of March 31, 2000
and December 31, 1999........................................................3
Condensed Consolidated Statements of Operations (Unaudited) for the Three
Months Ended March 31, 2000 and 1999.........................................4
Condensed Consolidated Statements of Cash Flows (Unaudited) for the Three
Months Ended March 31, 2000 and 1999.........................................5
Notes to Condensed Consolidated Financial Statements (Unaudited).............6
Item 2. Management's Discussion and Analysis
Management's Discussion and Analysis of Financial Condition and
Results of Operations.......................................................11
Item 3. Quantitative and Qualitative Disclosures About Market
Risks.......................................................................22
PART II
OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K............................................22
SIGNATURES..................................................................................23
</TABLE>
<PAGE> 3
PART I
FINANCIAL INFORMATION
ITEM 1. CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
IMMERSION CORPORATION
CONDENSED CONSOLIDATED BALANCE SHEETS
(In thousands, except share and per share amounts)
(Unaudited)
<TABLE>
<CAPTION>
ASSETS
MARCH 31 DECEMBER 31
2000 1999
--------- ------------
<S> <C> <C>
Current assets:
Cash and cash equivalents ............................................. $ 28,714 $ 46,527
Short-term investments ................................................ 20,212 4,781
Accounts receivable, net of allowances of $188 and $134 respectively .. 1,271 1,064
Inventories ........................................................... 683 660
Prepaid expenses and other assets ..................................... 1,447 1,057
-------- --------
Total current assets ......................................... 52,327 54,089
Property - net .......................................................... 899 591
Purchased intangibles and other assets .................................. 9,950 4,758
-------- --------
Total assets ............................................................ $ 63,176 $ 59,438
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable ...................................................... $ 960 $ 750
Accrued compensation .................................................. 503 180
Other accrued liabilities and income taxes payable .................... 1,091 505
Deferred revenue and customer advances ................................ 768 1,355
-------- --------
Total current liabilities .................................... 3,322 2,790
-------- --------
Stockholders' equity:
Common stock - $0.001 par value; 100,000,000 shares authorized; shares
issued and outstanding: 16,008,241 and 15,765,211 respectively ...... 76,702 65,554
Warrants .............................................................. 831 831
Deferred compensation ................................................. (6,494) (1,167)
Accumulated other comprehensive loss .................................. (32) 19
Note receivable from stockholder ...................................... (17) (17)
Accumulated deficit ................................................... (11,136) (8,572)
-------- --------
Total stockholders' equity ................................... 59,854 56,648
-------- --------
Total liabilities and stockholders' equity .............................. $ 63,176 $ 59,438
======== ========
</TABLE>
See accompanying Notes to Condensed Consolidated Financial Statements.
<PAGE> 4
IMMERSION CORPORATION
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(In thousands, except per share amounts)
(Unaudited)
<TABLE>
<CAPTION>
QUARTER ENDED
MARCH 31
----------------------------
2000 1999
---------- ----------
<S> <C> <C>
Revenues:
Royalty revenue ............................................. $ 884 $ 481
Product sales ............................................... 1,220 1,085
Development contracts and other ............................. 358 310
-------- --------
Total revenues ..................................... 2,462 1,876
Costs and expenses:
Cost of product sales ....................................... 623 494
Sales and marketing ......................................... 1,528 187
Research and development .................................... 676 458
General and administrative .................................. 1,400 752
Amortization of intangibles and deferred stock compensation * 672 118
In-process research and development ......................... 887 1,190
-------- --------
Total costs and expenses ............................ 5,786 3,199
Operating loss ................................................ (3,324) (1,323)
Interest and other income...................................... 760 40
-------- --------
Net loss ...................................................... (2,564) (1,283)
Redeemable convertible preferred stock accretion .............. - 2
-------- --------
Net loss applicable to common stockholders .................... $ (2,564) $ (1,285)
======== ========
Basic and diluted net loss per share .......................... $ (0.16) $ (0.29)
======== ========
Shares used in calculating basic and diluted net loss per share 15,766 4,459
======== ========
* Amortization of intangibles and deferred stock compensation
Amortization of intangibles .............................. $ 408 $ 116
Deferred stock compensation - sales and marketing ........ 15 -
Deferred stock compensation - research and development ... 168 -
Deferred stock compensation - general and administrative . 81 2
-------- --------
Total ............................................... $ 672 $ 118
======== ========
</TABLE>
See accompanying Notes to Condensed Consolidated Financial Statements.
<PAGE> 5
IMMERSION CORPORATION
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(In thousands)
(Unaudited)
<TABLE>
<CAPTION>
QUARTER ENDED
MARCH 31
------------------------
2000 1999
-------- --------
<S> <C> <C>
Cash flows from operating activities:
Net loss ......................................................................... $ (2,564) $ (1,283)
Adjustments to reconcile net loss to net cash used in
operating activities:
Depreciation and amortization .................................................. 74 40
Amortization of intangibles .................................................... 408 116
Amortization of deferred stock compensation .................................... 264 2
In-process research and development ............................................ 887 1,190
Stock and options issued for consulting services and other ..................... 10 40
Changes in assets and liabilities:
Accounts receivable .......................................................... (140) 24
Inventories................................................................ (6) (200)
Prepaid expenses and other assets ............................................ (300) 62
Accounts payable ............................................................. (144) (162)
Accrued liabilities and income taxes payable ................................. 606 126
Deferred revenue and customer advances ....................................... (587) 7
-------- --------
Net cash used in operating activities ................................... (1,492) (38)
-------- --------
Cash flows from investing activities:
Purchases of short-term investments .............................................. (15,481) -
Sales and maturities of short-term investments ................................... - 398
Purchase of property ............................................................. (292) (90)
Purchases of patents and technology .............................................. - (370)
Acquisitions, net of cash acquired ............................................... (581) -
Other assets ..................................................................... - (23)
-------- --------
Net cash used in investing activities ................................... (16,354) (85)
-------- --------
Cash flows from financing activities:
Exercise of stock options ........................................................ 33 -
-------- --------
Net cash provided by financing activities ............................... 33 -
-------- --------
Net decrease in cash and cash equivalents .......................................... (17,813) (123)
Cash and cash equivalents:
Beginning of the period .......................................................... 46,527 2,592
-------- --------
End of the period.................................................................. $ 28,714 $ 2,469
======== ========
Supplemental disclosure of cash flow information :
Cash paid for taxes ............................................................... $ 1 $ -
======== ========
Noncash activities:
Change in net unrealized gains (losses) from short-term investments ............... $ (51) $ (1)
======== ========
Issuance of equity instruments for patents, technology and licenses ............... $ - $ 5,092
======== ========
Issuance of equity instruments for acquisition .................................... $ 5,513 $ -
======== ========
Issuance of warrants .............................................................. $ - $ 808
======== ========
Accretion of redeemable preferred stock ........................................... $ - $ 2
======== ========
</TABLE>
See accompanying Notes to Condensed Consolidated Financial Statements.
<PAGE> 6
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
1. SIGNIFICANT ACCOUNTING POLICIES
Basis of Presentation - The accompanying unaudited condensed consolidated
financial statements reflect all the normal recurring adjustments which are, in
the opinion of management, necessary to present fairly the condensed
consolidated financial position at March 31, 2000 and the condensed consolidated
statements of operations and cash flows for the three-month periods ended March
31, 2000 and March 31, 1999.
The accompanying unaudited condensed consolidated financial statements
have been prepared in accordance with the instructions for Form 10-Q and,
therefore, do not include all information and footnotes necessary for a complete
presentation of the financial position, results of operations, and cash flows,
in conformity with generally accepted accounting principles. Immersion
Corporation ("Immersion" or the "Company") filed audited consolidated financial
statements which included all information and footnotes necessary for such
presentation of the financial position, results of operations, and cash flows
for the years ended December 31, 1999, 1998, and 1997 in the Company's 1999
Annual Report on Form 10-K.
The results of operations for the interim period ended March 31, 2000, are
not necessarily indicative of the results to be expected for the full year.
Reclassifications - Certain prior year amounts have been reclassified to
conform to the current year presentation. These reclassifications had no effect
on net loss or stockholders' equity.
2. PURCHASED INTANGIBLES AND OTHER ASSETS
In March 2000, the Company acquired all outstanding shares of
Montreal-based Haptic Technologies Inc. ("Haptic") for approximately $6.8
million, consisting of 141,538 shares of the Company's common stock and $338,000
paid in cash. Haptic develops and markets hardware and software that brings the
sense of touch to computing environments. As a result of the acquisition, Haptic
became a wholly-owned subsidiary of Immersion and will continue operations in
Montreal, Canada. The acquisition was accounted for using the purchase method
and accordingly the acquired assets and liabilities were recorded at their fair
market values at the date of acquisition. Pro forma results of the combined
operations have not been presented as they are not materially different from the
Company's reported results of operations. Haptic operates on a fiscal year
ending on August 31. Accordingly, the Company will consolidate the results of
Haptic based on Haptic's fiscal quarters ended February 28, May 31, August 31,
and November 30 combined with the Company's calendar quarters ended March 31,
June 30, September 30, and December 31, respectively.
In connection with the transaction, the Company assumed unvested options of
Haptic resulting in deferred stock compensation of $5.5 million, which will be
amortized over the remaining vesting period of approximately four years. The
Haptic option plan was established in February, 2000 and under the plan the
Company may grant options to purchase up to 391,238 shares of common stock to
employees, directors, and consultants. The options generally expire ten years
from the date of grant. As of March 31, 2000 there were 366,352 option grants
outstanding.
The aggregate purchase price of $6.8 million (including acquisition costs)
has been allocated to the assets and in-process research and development
acquired. The total purchase price was allocated among the assets acquired
(including acquired in-process research and development) as follows (in
thousands):
Purchase price allocation:
Tangible assets........................................................ $ 416
In-process research and development.................................... 887
Intangible assets:
Goodwill.......................................................... 3,979
Core technology................................................... 871
Developed technology.............................................. 396
Workforce......................................................... 139
Pending patents................................................... 65
-------
Total.................................................................. $ 6,753
=======
<PAGE> 7
The goodwill, core technology and pending patents are being amortized over
their estimated useful lives of four years. The developed technology and
workforce are being amortized over their estimated useful lives of three and two
years, respectively. The allocation of the purchase price to the respective
intangibles was based on management's estimates of the after-tax cash flows and
gave explicit consideration to the Securities and Exchange Commission's views on
purchased in-process research and development as set forth in its September 9,
1998 letter to the American Institute of Certified Public Accountants.
Specifically, the valuation gave consideration to the following: (i) the
employment of a fair market value premise excluding any Company-specific
considerations that could result in estimates of investment value for the
subject assets; (ii) comprehensive due diligence concerning all potential
intangible assets; (iii) the value of existing technology was specifically
addressed, with a view toward ensuring the relative allocations to existing
technology and in-process research and development were consistent with the
relative contributions of each to the final product; and (iv) the allocation to
in-process research and development was based on a calculation that considered
only the efforts completed as of the transaction date, and only the cash flow
associated with these completed efforts for one generation of the products
currently in process.
As indicated above, the Company recorded a one-time charge of $887,000 upon
the acquisition in March 2000 for purchased in-process research and development
related to three development projects. The charge related to the portion of
these products that had not reached technological feasibility, had no
alternative future use and for which successful development was uncertain.
Management's conclusion that the in-process development effort had no
alternative future use was reached in consultation with the engineering
personnel from both the Company and the seller.
The first of these projects focuses on providing products for moving
vehicles that use computers in their instrumentation and control panels and
targets both end-user in-vehicle systems and design phase solutions. The product
being developed is a software product to be bundled with a haptic peripheral
device. The software product is designed to provide a touch feedback module for
the peripheral device, which will introduce the sense of touch into the
interface allowing designers to feel the buttons on the screen as they design
the control panel. This product is expected to be released in late FY 2000 and
at the time of the acquisition was approximately 50% complete with estimated
costs to complete the development of $60,000. The second of these projects is
the MilleniumCat technologies, aimed at the multimedia market that will offer a
full high fidelity affordable haptic device. Haptic currently sells the
PenCat/Pro, a stylus based touch-enabled computer interface device. The
MilleniumCat product will be the next generation PenCat/Pro offering both the
hardware device utilizing a mouse and the next generation multimedia feedback
technology associated with Haptic's developed suite of products that combine
audio, graphics, speech, video and other media into one package solution for
customers. This product is expected to be released mid FY 2000 and at the time
of the acquisition was estimated to be 67% complete with estimated costs to
complete the development at $50,000. The third of these projects is aimed at the
engineering and artistic creation market. Haptic's current product PenCat/Pro
targets 3D designers that have a need for advanced input technologies. The
PenCat/Pro product used by 3D designers will be replaced by the MilleniumCat
product in FY 2001. While this product incorporates much of the MilleniumCat
product, it will require some additional software and a different user interface
and thus at the time of the acquisition was estimated at 40% complete with
estimated costs to complete development of $20,000.
The Company will begin to benefit from the acquired research and
development of these products once they begin shipping. Failure to reach
successful completion of these projects could result in impairment of the
associated capitalized intangible assets and could require the Company to
accelerate the time period over which the intangibles are being amortized, which
could have a material adverse effect on the Company's business, financial
condition and results of operation. Significant assumptions used to determine
the value of in-process research and development, include the
<PAGE> 8
following: (i) forecast of net cash flows that were expected to result from the
development effort using projections prepared by Haptic's management; (ii) the
completed portion of the projects estimated by considering a number of factors,
including the costs invested to date relative to total cost of the development
effort and the amount of progress completed as of the acquisition date, on a
technological basis, relative to the overall technological achievements required
to achieve the functionality of the eventual product. The technological issues
were addressed by engineering representatives from both the Company and Haptic,
and when estimating the value of the technology, the projected financial results
of the acquired assets were estimated on a stand-alone basis without any
consideration to potential synergistic benefits or "investment value" related to
the acquisition. Accordingly, separate projected cash flows were prepared for
both the existing as well as the in-process projects. These projected results
were based on the projected number of units sold times the expected average
selling price less the expected associated costs. After preparing the estimated
cash flows from the products being developed, a portion of these cash flows were
attributed to the developed and core technology, which was embodied in the
in-process product lines and enabled a quicker and more cost-effective
development of these products. When estimating the value of the developed, core
and in-process technologies, discount rates of 15%, 20%, and 25% were used
respectively. The discount rates considered both the status and risks associated
with the cash flows at the acquisition date. Projected revenues from the
developed technologies are expected to continue through the beginning of FY
2002, while revenue from in-process technologies are expected to commence late
FY 2000 and continue through a portion of FY 2004.
3. INVENTORIES
<TABLE>
<CAPTION>
MARCH 31 DECEMBER 31
2000 1999
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(In thousands)
<S> <C> <C>
Raw materials and subassemblies .............................................. .$503 $504
Work in process .............................................................. 31 23
Finished goods ............................................................... 149 133
---- ----
Total ........................................................................ $683 $660
==== ====
</TABLE>
4. PREPAID EXPENSES AND OTHER ASSETS
<TABLE>
<CAPTION>
MARCH 31 DECEMBER 31
2000 1999
---- ----
(In thousands)
<S> <C> <C>
Cybernet Consulting ........................................................... $ 505 $ 578
Prepaid insurance ............................................................. 306 346
Prepaid rent .................................................................. 110 43
Research and development tax credit due from Canadian government .............. 237 -
Other prepaids and other assets ............................................... 289 90
------ ------
Total................................................................... $1,447 $1,057
====== ======
</TABLE>
5. PROPERTY
<TABLE>
<CAPTION>
MARCH 31 DECEMBER 31
2000 1999
------ ------
(In thousands)
<S> <C> <C>
Computer equipment and purchased software ................ $ 829 $ 573
Machinery and equipment .................................. 309 292
Furniture and fixtures ................................... 354 180
Leasehold improvements ................................... 42 42
------ ------
Total .................................................. 1,534 1,087
Less accumulated depreciation ............................ 635 496
------ ------
Property, net ............................................ $ 899 $ 591
====== ======
</TABLE>
<PAGE> 9
6. NET LOSS PER SHARE
The following is a reconciliation of the numerators and denominators used
in computing basic and diluted net loss per share (in thousands):
<TABLE>
<CAPTION>
QUARTER ENDED
March 31
--------------------------
2000 1999
-------- --------
<S> <C> <C>
Numerator:
Net loss .................................................................. $ (2,564) $ (1,283)
Redeemable preferred stock accretion ...................................... - 2
-------- --------
Net loss applicable to common stockholders $ (2,564) $ (1,285)
======== ========
Denominator:
Weighted average common shares outstanding ................................. 15,855 4,495
Weighted average common shares held in escrow .............................. (89) (36)
-------- --------
Shares used in computation, basic and diluted .............................. 15,766 4,459
======== ========
Net loss per share, basic and diluted ........................................ $ (0.16) $ (0.29)
======== ========
</TABLE>
In November 1999, the Company's Board of Directors approved a 0.807-for-one
reverse common and Series C and D preferred stock split and a 4.035-for-one
Series A and B preferred stock split. All references to share and per-share data
for all periods presented have been retroactively adjusted to give effect to the
split.
The Company's computation of net loss per share excludes 88,770 shares held
in escrow. Conditions required to release these shares from escrow had not been
satisfied as of March 31, 2000.
For the above-mentioned periods, the Company had securities outstanding
that could potentially dilute basic earnings per share in the future, but were
excluded from the computation of diluted net loss per share in the periods
presented since their effect would have been antidilutive. These outstanding
securities consisted of the following:
<TABLE>
<CAPTION>
QUARTER ENDED
MARCH 31
----------------------------
2000 1999
---------- ----------
<S> <C> <C>
Redeemable convertible preferred stock ............ - 863,771
Convertible preferred stock ....................... - 4,267,329
Outstanding options ............................... 6,110,400 3,246,628
Warrants .......................................... 425,963 505,655
Weighted average exercise price
of options ..................................... $ 10.52 $ 0.70
========== ==========
Weighted average exercise price
of warrants .................................... $ 2.93 $ 2.68
========== ==========
</TABLE>
<PAGE> 10
7. COMPREHENSIVE LOSS
The following table sets forth the components of comprehensive loss:
<TABLE>
<CAPTION>
QUARTER ENDED
MARCH 31
--------------------
2000 1999
-------- --------
(In thousands)
<S> <C> <C>
Net loss: ........................................................... $(2,564) $(1,283)
Redeemable preferred stock accretion ................................ - (2)
Change in unrealized gains (losses) on short-term investments ....... (51) (1)
------- -------
Total comprehensive loss .............................................. $(2,615) $(1,286)
======= =======
</TABLE>
8. SEGMENT INFORMATION, OPERATIONS BY GEOGRAPHIC AREA AND SIGNIFICANT
CUSTOMERS
The Company operates in one business segment, which is the design,
development, production, marketing and licensing of products based on
touch-enabling technology. These devices are used in computer entertainment,
personal computing, medical and other professional computing applications. The
Company operates entirely in North America and does not maintain operations in
other countries. The following is a summary of revenues by geographic areas.
Revenues are broken out geographically by the ship-to location of the customer.
<TABLE>
<CAPTION>
QUARTER ENDED
MARCH 31
--------------------
2000 1999
------ ------
REVENUES
(In thousands)
<S> <C> <C>
North America ......................................... $1,803 $1,244
Europe ................................................ 439 268
Far East .............................................. 203 353
Rest of the world ..................................... 17 11
------ ------
Total............................................. $2,462 $1,876
====== ======
</TABLE>
Significant Customers
In first quarter of fiscal 2000, 36% of our total revenues came from two
unrelated customers, these customers accounted for 24% and 12% of our total
revenue. In the first quarter of fiscal 1999, 33% of our total revenue came from
two unrelated customers, representing 22% and 11% of our total revenue.
<PAGE> 11
9. CONTINGENCIES
The Company has received claims from third parties asserting that the
Company's technologies, or those of its licensees, infringe on the other
parties' intellectual property rights. Management believes that these claims are
without merit and, with respect to each, has obtained or is in the process of
obtaining written non-infringement and/or patent invalidity opinions from
outside patent counsel. Accordingly, in the opinion of management, the outcome
of such claims will not have a material effect on the financial statements of
the Company.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS
This Quarterly Report on Form 10-Q contains forward-looking statements
within the meaning of Section 27A of the Securities Act of 1933, as amended, and
Section 21E of the Securities Exchange Act of 1934, as amended. Except for the
historical information contained in this discussion and analysis of financial
condition and results of operations, the matters discussed herein are forward
looking statements. These forward looking statements include but are not limited
to the Company's plans regarding royalty revenue, royalty-bearing touch-enabled
cursor control products, stimulating demand for touch-enabled products,
expectations of gross margin, expenses, new product introduction, and the
Company's liquidity and capital needs. These matters involve risks and
uncertainties that could cause actual results to differ materially from the
statements made. In addition to the risks and uncertainties described in
"Factors that May Affect Future Results", below, these risks and uncertainties
may include consumer trends, business cycles, scientific developments, changes
in governmental policy and regulation, currency fluctuations, economic trends in
the United States and inflation. These and other factors may cause actual
results to differ materially from those anticipated in forward-looking
statements. Readers are cautioned not to place undue reliance on these
forward-looking statements, which speak only as of the date hereof.
OVERVIEW
Immersion Corporation was incorporated in California in 1993 and
reincorporated in Delaware in 1999. The Company's principal executive offices
are located 2158 Paragon Drive, San Jose, California 95131. The Company's
telephone number is (408) 467-1900. The Company's website is www.immersion.com.
We develop hardware and software technologies that enable users to interact
with computers using their sense of touch. Our patented technologies, which we
call TouchSenseTM, enable computer peripheral devices, such as joysticks, mice
and steering wheels, to deliver tactile sensations that correspond to on-screen
events. We currently focus on licensing our intellectual property for these
touch-enabling technologies to manufacturers of computer peripherals in the
computer entertainment and general purpose personal computing markets. Our
objective is to proliferate our TouchSense technologies across markets,
platforms and applications so that touch and feel become as common as graphics
and sound in the modern computer user interface.
<PAGE> 12
We hold 43 U.S. patents covering various aspects of our hardware and
software technologies and have over 125 patent applications pending in the U.S.
and abroad. To date, we have licensed our intellectual property to more than 16
companies, including Microsoft and Logitech, which incorporate our patented
touch-enabling technologies, together with other technologies necessary for
computer gaming peripherals, into joysticks, gamepads and steering wheels that
they manufacture. To target the computer mouse market, we have licensed our
intellectual property to Logitech to manufacture the first touch-enabled
computer mouse incorporating our hardware and software technologies. Logitech
began marketing and selling the first version of its touch-enabled mouse during
the fourth quarter of 1999.
RESULTS OF OPERATIONS
<TABLE>
<CAPTION>
QUARTER ENDED
MARCH 31 CHANGE
----------------------------------
REVENUE 2000 1999
------ ------
($ In thousands)
<S> <C> <C> <C>
Royalty revenue ........................................... $ 884 $ 481 84%
Product sales ............................................. 1,220 1,085 12%
Development contracts and other ........................... 358 310 15%
------ ------ --
Total Revenue ............................................. $2,462 $1,876 31%
====== ====== ==
</TABLE>
Total Revenue. Our total revenue for the first quarter of fiscal 2000
increased by $586,000 or 31% from the first quarter of fiscal 1999. All revenue
categories experienced growth during the current quarter with the largest
increase in royalty revenue of $403,000 or 84%. Royalty revenue is comprised of
royalties earned on sales by our TouchSense licensees including $587,000 of
revenues recognized under the Microsoft agreement. Revenue recognized under the
current Microsoft agreement will end mid-July 2000. The increase in product
sales of $135,000 for the three months ended March 31, 2000 as compared to the
same three-month period last year is due to increased sales of our
MicroScribe-3D, SoftMouse, and professional medical products during the quarter
offset by a decrease in our microprocessor sales. Development contract and other
revenue category is comprised of revenue on commercial and government contracts
efforts, which increased during the first quarter of fiscal 2000 as compared to
the first quarter of fiscal 1999 due to an increase in related development
activity.
We categorize our geographic information into four major regions: North
America, Europe, Far East, Rest of the world. In the first quarter of fiscal
2000, revenue generated in North America, Europe, and Far East represented 73%,
18%, and 8% respectively compared to 66%, 14%, and 19% respectively, for the
first quarter of fiscal 1999. The shift in revenues among regions is mainly due
to the timing of microprocessor shipments sold to our customers in the Far East,
which were lower in the first quarter of 2000 versus the first quarter of 1999.
<TABLE>
<CAPTION>
QUARTER ENDED
MARCH 31 CHANGE
----------------------------------
COST OF PRODUCT SALES 2000 1999
------ ------
($ In thousands)
<S> <C> <C> <C>
Cost of product sales...................................... $623 $ 494 26%
% of total product revenue........................... 51% 46%
</TABLE>
Cost of Product Sales. Cost of product sales increased by $129,000 or
26% for the three months ended March 31, 2000 as compared to the three months
ended March 31, 1999. The increase is due to a combination of
<PAGE> 13
higher product sales volume, increased overhead costs and the mix of product
sold. The increase in product sales volume contributed $67,000 to the overall
increase while overhead costs and product mix accounted for the remainder of the
increase in cost of products sold for the three months ended March 31, 2000
versus the three months ended March 31, 1999.
<TABLE>
<CAPTION>
QUARTER ENDED
MARCH 31 CHANGE
-----------------------------------
OPERATING EXPENSES AND OTHER 2000 1999
------ ------
($ In thousands)
<S> <C> <C> <C>
Sales and marketing .......................................... $1,528 $ 187 717%
% of total revenue ..................................... 62% 10%
Research and development ..................................... $ 676 $ 458 48%
% of total revenue ..................................... 27% 24%
General and administrative ................................... $1,400 $ 752 86%
% of total revenue ..................................... 57% 40%
Amortization of intangibles and deferred stock compensation .. $ 672 $ 118 469%
% of total revenue ..................................... 27% 6%
In-process research and development .......................... $ 887 $1,190 (25)%
% of total revenue ..................................... 36% 63%
</TABLE>
Sales and Marketing. Sales and marketing expenses increased by $1.3 million
or 717% in the first quarter of fiscal 2000 compared to the same period last
year. The significant increase was mainly due to increased headcount and related
compensation, benefits, and overhead costs of $736,000. Expenses related to
corporate identity, market research, web development, expenses incurred under
our co-marketing agreement, and developer programs contributed to $456,000 of
the increase. The remainder of the increase is attributed to increased tradeshow
expenses of $96,000. We anticipate sales and marketing expenses to continue to
increase in absolute dollars due to the planned growth of our sales and
marketing organizations and our co-marketing agreement with Logitech. Under the
terms of the agreement, for a period of five calendar quarters, beginning in the
first calendar quarter of 2000, we will reimburse Logitech for certain marketing
related expenses not to exceed $200,000 per quarter. Only third-party marketing
services that are targeted at promoting Logitech's touch-enabled mice are
eligible for reimbursement. In addition, all promotional activities will have to
be approved by us in advance. In order to remain eligible for reimbursement,
Logitech will have to include our brand and slogan on all its marketing
materials that reference touch-enabled functionality or products, and commit to
other conditions regarding its touch-enabled mice.
Research and Development. Research and development expenses increased by
$218,000 or 48% in the first quarter of fiscal 2000 compared to the same period
last year. The increase is mainly due to increased headcount and related
compensation, benefits, and overhead costs of $87,000 and subcontracted
non-recurring engineering expenses of $84,000. Expenses related to research and
development activities at our wholly-owned subsidiary, Haptic, will contribute
to future increases in this expense category beginning in the second quarter of
fiscal 2000. We believe that continued investment in our research and
development is critical to our future success, and we expect these expenses to
increase in absolute dollars in future periods.
General and Administrative. General and administrative expenses increased
by $648,000 or 86% in the first quarter of fiscal 2000 compared to the same
period last year. The increase is attributed to $308,000 for recruiting
employees and board of director members as well as increased headcount and
related compensation, benefits, and overhead costs of $119,000. The remainder of
the increase is due to increased legal expenses and costs related to being a
public company. We expect that the dollar amount of general and administrative
expenses will increase in the future as we incur the significant additional
costs of being a public company.
<PAGE> 14
Amortization of Intangibles and Stock Compensation. Amortization of
intangibles and deferred stock compensation grew by $554,000 or 469% in the
first quarter of fiscal 2000 compared to the same period last year. Amortization
of intangibles increased by $292,000 and is comprised of $119,000 of
amortization of goodwill and other purchased intangibles related to the
acquisition of Haptic, and $173,000 of amortization related to purchased patents
and technology. Deferred stock compensation amortization increased by $261,000.
Of the $261,000 increase, $144,000 is the result of amortization related to the
$5.5 million of deferred stock compensation recorded in conjunction with the
assumption of Haptic's unvested options at the time of acquisition.
In-Process Research and Development. During the three months ended March
31, 2000 we incurred a charge of $887,000 for in-process research and
development resulting from the March 2000 acquisition of all the outstanding
shares of Haptic. The in-process research and development relates to three
development projects: a haptic software package which will assist designers of
moving vehicles; a high fidelity affordable haptic device for the multimedia
market; and a haptic device aimed at the engineering and artistic creation
market.
Interest and Other Income. Interest and other income consists primarily of
interest income from cash, cash equivalents and short-term investments. Interest
and other income grew by $720,000 in the first quarter of fiscal 2000 compared
to the same period last year. The increase during the three months ended March
31, 2000 is due to the increase in cash and cash equivalents and short-term
investments chiefly from the $48.3 million net proceeds of our public offering
in November 1999.
LIQUIDITY AND CAPITAL RESOURCES
Our cash, cash equivalents, and short-term investments consist primarily of
money market funds and highly liquid debt instruments. All of our cash
equivalents and short-term investments are classified as available-for-sale
under the provisions of SFAS 115, "Accounting for Certain Investments in Debt
and Equity Securities." The securities are stated at market value with
unrealized gains and losses reported as a component of accumulated other
comprehensive loss within stockholders' equity.
At March 31, 2000 our cash, cash equivalents and short-term investments
totaled $48.9 million, down $2.4 million from $51.3 million at December 31,
1999. Excluding short-term investments our cash and cash equivalents totaled
$28.7 million, down $17.8 million from $46.5 million at December 31, 1999
Net cash used in operating activities during the first fiscal quarter of
2000 was $1.5 million, a significant increase from the $38,000 used during the
same period last year. Cash used in operations during the period was comprised
of our $2.6 million net loss, a decrease due to a change in deferred revenue of
$587,000 attributable to revenue recognized under the Microsoft agreement, and a
decrease due to a $300,000 change in prepaid expenses and other assets primarily
the result of insurance premiums paid. Cash used in operations was offset by
noncash activities of $1.6 million, including the $887,000 one-time charge for
in-process research and development relating to the Haptic acquisition and a
$606,000 increase in accrued liabilities.
Net cash used in investing activities during the first fiscal quarter of
2000 was $16.4 million, a considerable increase from the $85,000 used during the
same period last year. Cash used in investing during the period was made up of
$15.5 million purchases of short-term investments, $292,000 to purchase capital
equipment, and $581,000 related to the Haptic acquisition. In order to improve
our rate of return on cash and still provide short-term liquidity, we
periodically purchase or sell short-term investments, which typically are
interest-bearing, investment-grade securities with a maturity of greater than 90
days and less than one year.
The Company leases its manufacturing and office facilities under a
noncancelable operating lease that expires in October 2002. During January 2000
the Company signed a noncancelable operating lease for expanded facilities,
which will expire in 2005, five years from the lease commencement date, which is
anticipated to be June 2000. The Company intends to sublease its current
facilities but had not executed a sublease with any party as of March 31, 2000.
The operating lease payments in fiscal year 2000 on the new lease are expected
to be approximately $.5 million assuming a June, 2000 commencement date. The
aggregate of the lease payments after fiscal year 2000 on the new lease are
expected to be approximately $3.8 million.
<PAGE> 15
We believe that our cash, cash equivalents and short-term investments will
be sufficient to meet our working capital needs and capital expenditure
requirements for at least the next 12 months. We anticipate that capital
expenditures for the full year ended December 31, 2000 will total approximately
$3.0 million in connection with anticipated growth in operations, infrastructure
and personnel. If the Company acquires one or more businesses or products, the
Company's capital requirements could increase substantially. In the event of
such an acquisition or should any unanticipated circumstances arise which
significantly increase the Company's capital requirements, we may elect to raise
additional capital through debt or equity financing. Although we may intend to
raise additional capital there can be no assurance that necessary additional
capital will be available on terms acceptable to the Company, if at all.
FACTORS THAT MAY AFFECT FUTURE RESULTS
THE MARKET FOR OUR TOUCH-ENABLING TECHNOLOGIES IS AT AN EARLY STAGE AND, IF
MARKET DEMAND DOES NOT DEVELOP, WE MAY NOT ACHIEVE OR SUSTAIN REVENUE GROWTH.
The consumer market for touch-enabling technology is at an early stage, and
if we and our licensees are unable to develop consumer demand for our licensees'
products we may not achieve or sustain revenue growth. To date, consumer demand
for our technologies has been limited to the computer gaming peripherals market,
and sales of joysticks and steering wheels incorporating our touch-enabling
technologies in that market began only in late 1996 and 1998, respectively.
Logitech, a licensee of our technology, launched a computer mouse incorporating
our touch-enabling technologies during the fourth quarter of 1999. This
touch-enabled mouse is the first entrant in a new category of touch-enabled
computer cursor control devices. Touch-enabled mice may not achieve commercial
acceptance or generate significant royalty revenue for us. In addition, software
developers may elect not to create additional games or other applications that
support our touch-enabling technology.
Even if our technologies are ultimately widely adopted by consumers,
widespread adoption may take a long time to occur. The timing and amount of
royalties that we receive will depend on whether the products marketed by those
licensees that pay us per-unit royalties achieve widespread adoption and, if so,
how rapidly that adoption occurs. We expect that we will need to pursue
extensive and expensive marketing and sales efforts to educate prospective
licensees and consumers about the uses and benefits of our technologies and to
persuade software developers to create software that utilizes our technologies.
WE HAD AN ACCUMULATED DEFICIT OF $11.1 MILLION AS OF MARCH 31, 2000, WILL
EXPERIENCE LOSSES IN THE FUTURE AND MAY NOT ACHIEVE OR MAINTAIN PROFITABILITY.
Since 1997, we have incurred losses in every fiscal quarter, and we expect
losses through at least 2000. We will need to generate significant revenue to
achieve and maintain profitability. We may not achieve, sustain or increase
profitability in the future. We anticipate that our expenses will increase
substantially in the foreseeable future as we:
- attempt to expand the market for touch-enabled products;
- increase our sales efforts;
- continue to develop our technologies;
- pursue strategic relationships; and
- protect and enforce our intellectual property.
If our revenues grow more slowly than we anticipate or if our operating
expenses exceed our expectations, we may not achieve or maintain profitability.
OUR HISTORICAL FINANCIAL INFORMATION DOES NOT REFLECT OUR PRIMARY BUSINESS
STRATEGY FOR ACHIEVING REVENUE GROWTH THROUGH ROYALTY PAYMENTS FROM SALES BY OUR
LICENSEES OF COMPUTER PERIPHERAL PRODUCTS INCORPORATING OUR TOUCH-ENABLING
TECHNOLOGIES, A STRATEGY FROM WHICH HISTORICALLY WE HAVE DERIVED LESS THAN
ONE-THIRD OF OUR REVENUES.
We cannot predict our future revenues based on our historical financial
information. Historically, we derived the majority of our revenues from product
sales, including sales of devices used to create three dimensional computer
images of small objects, medical simulation products and a specialized non-touch
enabled computer mouse used for map making. Historically, we have also derived
revenues from contracts with our licensees to assist in the development of our
licensees' touch-enabled products and from development contracts with government
agencies for touch-enabling technology. The majority of our historical product
sales resulted from sales of products that did not
<PAGE> 16
utilize our touch-enabling technology but utilized related advanced computer
peripheral technologies. Accordingly, our historical results should not be
relied upon as an indicator of our future performance.
We currently concentrate our marketing, research and development activities
on licensing our touch-enabling technology in the computer entertainment and
general purpose personal computer markets. For 1998, we derived only 6% of our
total revenues from royalty revenue, for 1999, we derived 28% of our total
revenues from royalty revenue, and for the three months ended March 31, 2000 we
derived 36% of our total revenues from royalty revenue. We anticipate that
royalty revenue from licensing our technologies will constitute an increasing
portion of our revenues; however on a period-to-period basis royalty revenue as
a percentage of total revenue may vary significantly due to factors such as the
timing of new product introductions and the seasonality of royalty revenue.
OUR BUSINESS STRATEGY FOR ACHIEVING REVENUE GROWTH RELIES SIGNIFICANTLY ON
ROYALTY PAYMENTS FROM SALES BY LOGITECH OF ITS TOUCH-ENABLED MICE PRODUCTS, THE
FIRST VERSION OF WHICH LOGITECH BEGAN SELLING IN THE FOURTH QUARTER OF 1999.
If Logitech's touch-enabled mice products do not achieve commercial
acceptance or if production or other difficulties that sometimes occur when a
new product is introduced interfere with sales of the Logitech mice products,
our ability to achieve revenue growth could be significantly impaired. In the
technology product development agreement that we entered into with Logitech in
1998, Logitech estimated that, based upon an assumed production of 100,000 units
per year, its target price for its first touch-enabled mouse would be $99.
Logitech, however, has made no commitments to us regarding the production volume
or pricing of its touch-enabled mice. The fact that the actual initial suggested
retail price of Logitech's mouse is $99.95 does not reflect any volume or
pricing commitments made to us by Logitech. To date, sales of the current
touch-enabled mouse product, the Wingman Force Feedback Mouse, has not reached
volume levels. We believe that the facts that the current product is being
marketed, in part, as a gaming product, and that it was introduced late in the
1999 Christmas buying season contributed to a slow ramp-up of initial sales.
Desired sales volumes of touch-enabled mice may not be achieved until the first
general purpose productivity version of the mouse has been introduced. We also
expect that sales volume of touch-enabled mice will be affected by the quantity
and quality of touch-enabled software titles available to consumers. Although we
promote the incorporation of our touch-enabling technologies into software
applications and Web sites, we have limited control over when and if third party
software and Web developers adopt touch-enabling technologies. In addition,
retailers may not recognize touch-enabled mouse products as a separate product
category until there are additional manufacturers of touch-enabled mouse
products and this may be a barrier to sales volume.
In March 2000, we and Logitech amended our existing license agreement and
technology product development agreement, each relating to Immersion's
touch-enabled cursor control technology, to cover a new technology developed by
us for a lower-cost, touch-enabled mouse to be targeted for use with
productivity and web applications. Under the amendment, we and Logitech have
agreed to promote the existing mouse technology together with the new lower-cost
mouse technology as a product family. The amendment also requires Logitech to
pay us a royalty of 5% of the revenue it receives from products based upon this
new tactile mouse technology.
WE DO NOT CONTROL OR INFLUENCE OUR LICENSEES' MANUFACTURING, PROMOTION,
DISTRIBUTION OR PRICING OF THEIR PRODUCTS INCORPORATING OUR TOUCH-ENABLING
TECHNOLOGIES, UPON WHICH WE ARE DEPENDENT TO GENERATE ROYALTY REVENUE.
Our primary business strategy is to license our intellectual property to
companies that manufacture and sell products incorporating our touch-enabling
technologies. The sale of those products generates royalty revenue for us. For
the year ended December 31, 1999, 28% of our total revenues was royalty revenue,
and for the three-month period ended March 31, 2000, 36% of our total revenues
was royalty revenue. However, we do not control or influence the manufacture,
promotion, distribution or pricing of products that are manufactured and sold by
our licensees and that incorporate our touch-enabling technologies. As a result,
products incorporating our technologies may not be brought to market, achieve
commercial acceptance or generate meaningful royalty revenue for us. For us to
generate royalty revenue, those licensees that pay us per-unit royalties must
manufacture and distribute products incorporating our touch-enabling
technologies in a timely fashion and generate consumer demand through marketing
and other promotional activities. Products incorporating our touch-enabling
technologies are generally more difficult to design and manufacture than
products that do not incorporate our touch-enabling technologies, and these
difficulties may cause product introduction delays. If our licensees fail to
stimulate and capitalize upon market demand for products that generate royalties
for us, our revenues will not grow. Peak demand for products that incorporate
our technologies, especially in the computer gaming peripherals market,
typically occurs in the third and fourth calendar quarters as a result of
increased demand during the year-end holiday season. If our licensees do not
ship licensed products in a timely fashion or fail to achieve strong sales in
the second half of the calendar year, we would not receive related royalty
revenue.
<PAGE> 17
BECAUSE LOGITECH IS OUR ONLY LICENSEE CURRENTLY MANUFACTURING TOUCH-ENABLED
MICE, OUR ROYALTY REVENUE FROM TOUCH-ENABLED MICE WILL BE SIGNIFICANTLY REDUCED
IF LOGITECH DOES NOT EFFECTIVELY MANUFACTURE AND MARKET TOUCH-ENABLED MICE
PRODUCTS.
Logitech is currently the only licensee manufacturing touch-enabled mice.
If Logitech does not effectively manufacture, market and distribute its
touch-enabled mouse product, our royalty revenue from touch-enabled mice would
be significantly reduced. In addition, a lack of market acceptance of the
Logitech touch-enabled mouse might dissuade other potential licensees from
licensing our technologies for touch-enabled mice and other products.
IF WE FAIL TO PROTECT AND ENFORCE OUR INTELLECTUAL PROPERTY RIGHTS, OUR ABILITY
TO LICENSE OUR TECHNOLOGIES AND TO GENERATE REVENUES WOULD BE IMPAIRED.
Our business depends on generating revenues by licensing our intellectual
property rights and by selling products that incorporate our technologies. If we
are not able to protect and enforce those rights, our ability to obtain future
licenses and royalty revenue could be impaired. In addition, if a court were to
limit the scope of, declare unenforceable or invalidate any of our patents,
current licensees may refuse to make royalty payments or may themselves choose
to challenge one or more of our patents. Also it is possible that:
- our pending patent applications may not result in the issuance of
patents;
- our patents may not be broad enough to protect our proprietary rights;
- effective patent protection may not be available in every country in
which our licensees do business.
We also rely on licenses, confidentiality agreements and copyright,
trademark and trade secret laws to establish and protect our proprietary rights.
It is possible that:
- laws and contractual restrictions may not be sufficient to prevent
misappropriation of our technologies or deter others from developing
similar technologies; and
- policing unauthorized use of our products and trademarks would be
difficult, expensive and time-consuming, particularly overseas.
IF WE ARE UNABLE TO ENTER INTO NEW LICENSING ARRANGEMENTS WITH OUR EXISTING
LICENSEES AND WITH ADDITIONAL THIRD-PARTY MANUFACTURERS FOR OUR TOUCH-ENABLING
TECHNOLOGY, OUR ROYALTY REVENUE MAY NOT GROW.
Our revenue growth depends on our ability to enter into new licensing
arrangements. Our failure to enter into new licensing arrangements will cause
our operating results to suffer. We face numerous risks in obtaining new
licenses on terms consistent with our business objectives and in maintaining,
expanding and supporting our relationships with our current licensees. These
risks include:
- the lengthy and expensive process of building a relationship with
potential licensees;
- the fact that we may compete with the internal design teams of existing
and potential licensees;
- difficulties in persuading consumer product manufacturers to work with
us, to rely on us for critical technology and to disclose to us
proprietary product development and other strategies; and
- difficulties in persuading existing and potential licensees to bear the
development costs necessary to incorporate our technologies into their
products.
OUR QUARTERLY REVENUES AND OPERATING RESULTS ARE VOLATILE, AND IF OUR FUTURE
RESULTS ARE BELOW THE EXPECTATIONS OF PUBLIC MARKET ANALYSTS OR INVESTORS, THE
PRICE OF OUR COMMON STOCK IS LIKELY TO DECLINE.
Our revenues and operating results are likely to vary significantly from
quarter to quarter due to a number of factors, many of which are outside of our
control and any of which could cause the price of our common stock to decline.
These factors include:
- the establishment or loss of licensing relationships;
- the timing of payments under fixed and/or up-front license agreements;
- the timing of our expenses, including costs related to acquisitions of
technologies or businesses;
<PAGE> 18
- the timing of introductions of new products and product enhancements by
our licensees and their competitors;
- our ability to develop and improve our technologies;
- our ability to attract, integrate and retain qualified personnel; and
- seasonality in the demand for our licensees' products.
Accordingly, we believe that period-to-period comparisons of our operating
results should not be relied upon as an indicator of our future performance. In
addition, because a high percentage of our operating expenses is fixed, a
shortfall of revenues can cause significant variations in operating results from
period to period.
THE HIGHER COST OF GAMING AND CURSOR CONTROL PERIPHERAL PRODUCTS INCORPORATING
OUR TOUCH-ENABLING TECHNOLOGIES AS COMPARED TO NON TOUCH-ENABLED GAMING AND
CURSOR CONTROL PERIPHERALS MAY INHIBIT OR PREVENT THE WIDESPREAD ADOPTION AND
SALE OF PRODUCTS INCORPORATING OUR TECHNOLOGIES.
Joysticks, steering wheels, gamepads and computer mice incorporating our
touch-enabling technologies are more expensive than similar competitive products
that are not touch-enabled. Although major providers of computer peripheral
devices, such as Logitech and Microsoft, have licensed our technology, the
greater expense of products containing our touch-enabling technologies as
compared to non touch-enabled products may be a significant barrier to the
widespread adoption and sale of their touch-enabled products in consumer
markets.
IF OUR TECHNOLOGIES ARE UNABLE TO GAIN MARKET ACCEPTANCE OTHER THAN IN
TOUCH-ENABLED JOYSTICKS AND STEERING WHEELS, OUR REVENUE GROWTH WILL BE LIMITED.
Substantially all of our royalty revenue is derived from the licensing of
our portfolio of touch-enabling technology for personal computer gaming
peripherals such as joysticks and steering wheels. The market for joysticks and
steering wheels for use with personal computers is a substantially smaller
market than either the mouse market or the dedicated gaming console market and
is characterized by declining average selling prices. If we are unable to gain
market acceptance beyond the personal computer gaming peripherals market, we may
not achieve revenue growth.
COMPETITION IN COMPUTER PERIPHERAL PRODUCTS IN BOTH THE GENERAL PURPOSE
COMPUTING AND COMPUTER GAMING MARKETS COULD LEAD TO REDUCTIONS IN THE SELLING
PRICE OF PERIPHERAL PRODUCTS OF OUR LICENSEES, WHICH WOULD REDUCE OUR ROYALTY
REVENUE.
The general purpose computing and computer gaming markets in which our
licensees sell peripheral products are highly competitive and are characterized
by rapid technological change, short product life cycles, cyclical market
patterns, a trend of declining average selling prices and increasing foreign and
domestic competition. We believe that competition among computer peripheral
manufacturers will continue to be intense, and that competitive pressures will
drive the price of our licensees' products downward. Any reduction in our
royalties per unit that is not offset by corresponding increases in unit sales
will cause our revenues to decline.
BECAUSE WE HAVE A FIXED PAYMENT LICENSE WITH MICROSOFT, OUR ROYALTY REVENUE FROM
LICENSING JOYSTICKS AND STEERING WHEELS IN THE GAMING MARKET MIGHT DECLINE IF
MICROSOFT INCREASES ITS VOLUME OF SALES OF TOUCH-ENABLED JOYSTICKS AND STEERING
WHEELS AT THE EXPENSE OF OUR OTHER LICENSEES.
Under the terms of our present agreement with Microsoft, Microsoft receives
a perpetual, worldwide, irrevocable, non-exclusive license under our patents for
its SideWinder Force Feedback Pro Joystick and its SideWinder Force Feedback
Wheel, and for a future replacement version of these specific SideWinder
products having essentially similar functional features. Instead of an ongoing
royalty on Microsoft's sales of licensed products, the agreement provides for a
payment of $2.35 million, which we recognize in equal monthly increments over a
one-year period ending mid-July 2000. The payment of $2.35 million is fixed
regardless of Microsoft's sales volume of these two licensed products. We
derived 13% of our total revenues and 48% of our royalty revenue for the twelve
months ended December 31, 1999 from Microsoft. In addition, we derived 24% of
our total revenues and 66% of our royalty revenues for the three months ended
March 31, 2000 from Microsoft. At the present time, we do not have a license
agreement with Microsoft for products other than the SideWinder joystick and
steering wheel. Microsoft has a significant share of the market for
touch-enabled joysticks and steering wheels for personal computers. Microsoft
has significantly greater financial, sales and marketing resources, as well as
greater name recognition and a larger customer base, than our other licensees.
In the event that Microsoft increases its share of this market, our royalty
revenue from other licensees in this market segment might decline.
LOGITECH ACCOUNTS FOR A LARGE PORTION OF OUR ROYALTY REVENUE AND THE FAILURE OF
LOGITECH TO ACHIEVE SALES VOLUMES FOR ITS GAMING AND CURSOR CONTROL PERIPHERAL
PRODUCTS THAT INCORPORATE OUR TOUCH-ENABLING TECHNOLOGIES MAY REDUCE OUR ROYALTY
REVENUE.
<PAGE> 19
We derived 13% of our total revenues and 32% of our royalty revenue for the
twelve months ended December 31, 1999 from Logitech. For the three-month period
ended March 31, 2000 we derived 12% of our total revenues and 30% of our royalty
revenue from Logitech. We expect that a significant portion of our total
revenues will continue to be derived from Logitech. If Logitech fails to achieve
anticipated sales volumes for its computer peripheral products that incorporate
our technologies, our royalty revenue would be reduced.
BECAUSE PERSONAL COMPUTER PERIPHERAL PRODUCTS THAT INCORPORATE OUR
TOUCH-ENABLING TECHNOLOGIES CURRENTLY MUST WORK WITH MICROSOFT'S OPERATING
SYSTEM SOFTWARE, OUR COSTS COULD INCREASE AND OUR REVENUES COULD DECLINE IF
MICROSOFT MODIFIES ITS OPERATING SYSTEM SOFTWARE.
Our hardware and software technology for personal computer peripheral
products that incorporate our touch-enabling technologies is currently
compatible with Microsoft's Windows 98 operating system software, including
DirectX, Microsoft's entertainment applications programming interface. If
Microsoft modifies its operating system, including DirectX, we may need to
modify our technologies and this could cause delays in the release of products
by our licensees. If Microsoft modifies its software products in ways that limit
the use of our other licensees' products, our costs could be increased and our
revenues could decline.
LITIGATION REGARDING INTELLECTUAL PROPERTY RIGHTS COULD BE EXPENSIVE,
DISRUPTIVE, AND TIME CONSUMING, AND COULD ADVERSELY AFFECT OUR BUSINESS.
Any intellectual property litigation, whether brought by us or by others,
could result in the expenditure of significant financial resources and the
diversion of management's time and efforts. From time to time, we initiate
claims against third parties that we believe infringe our intellectual property
rights. To date, these claims have not led to any litigation. However, any
litigation to protect and enforce our intellectual property rights could be
costly, time-consuming and distracting to management and could result in the
impairment or loss of portions of our intellectual property. In addition,
litigation in which we are accused of infringement may cause product shipment
delays, require us to develop non-infringing technology or require us to enter
into royalty or license agreements even before the issue of infringement has
been decided on the merits.
If any litigation were not resolved in our favor, we could become subject
to substantial damage claims from third parties and indemnification claims from
our licensees. We and our licensees could be enjoined from the continued use of
the technology at issue without a royalty or license agreement. Royalty or
license agreements, if required, might not be available on acceptable terms, or
at all. If a third party claiming infringement against us prevailed and we could
not develop non-infringing technology or license the infringed or similar
technology on a timely and cost-effective basis, our expenses would increase and
our revenues could decrease.
We attempt to avoid infringing known proprietary rights of third parties.
We have not, however, conducted and do not conduct comprehensive patent searches
to determine whether aspects of our technology infringe patents held by third
parties. Third parties may hold, or may in the future be issued, patents that
could be infringed by our products or technologies. Any of these third parties
might make a claim of infringement against us with respect to the products that
we manufacture and the technologies that we license. From time to time, we have
received letters from companies, several of which have significantly greater
financial resources than we do, asserting that some of our technologies, or
those of our licensees, infringe their intellectual property rights. Certain of
our licenses have received similar letters from the same four companies. Such
letters may influence our licensees' decisions whether to ship products
incorporating our technologies. Although none of these matters has resulted in
litigation to date, any of these notices, or additional notices that we could
receive in the future from these or other companies, could lead to litigation
WE DEPEND ON KAWASAKI LSI TO PRODUCE OUR IMMERSION PROCESSORS AND MAY LOSE
CUSTOMERS IF KAWASAKI LSI DOES NOT MEET OUR REQUIREMENTS.
Kawasaki LSI is the sole supplier of our custom Immersion Processors, which
we develop, license and sell to improve the performance and to help reduce the
cost of computer peripheral products, such as joysticks and mice, incorporating
our touch-enabling technology. Because Kawasaki LSI manufactures and tests our
processors, we have limited control over delivery schedules, quality assurance,
manufacturing capacity, yields, costs and misappropriation of our intellectual
property. Although Kawasaki LSI warrants that microprocessors it supplies to us
or to our customers will conform to our specifications and be free from defects
in materials and workmanship for a period of one year from delivery, any delays
in delivery of the processor, quality problems or cost increases could cause us
to lose customers and could damage our relationships with our licensees.
IF WE ARE UNABLE TO CONTINUALLY IMPROVE, AND REDUCE THE COST OF, OUR
TECHNOLOGIES, COMPANIES MAY NOT INCORPORATE OUR TECHNOLOGIES INTO THEIR
PRODUCTS, WHICH COULD IMPAIR OUR REVENUE GROWTH.
Our ability to achieve revenue growth depends on our continuing ability to
improve, and reduce the cost of, our technologies and to introduce these
technologies to the marketplace in a timely manner. If our development
<PAGE> 20
efforts are not successful or are significantly delayed, companies may not
incorporate our technologies into their products and our revenue growth may be
impaired.
THREE KEY MEMBERS OF OUR MANAGEMENT TEAM HAVE RECENTLY JOINED US AND THEY MAY
NOT BE EFFECTIVELY INTEGRATED INTO OUR COMPANY, WHICH COULD IMPEDE THE EXECUTION
OF OUR BUSINESS STRATEGY.
Our Vice President of Finance, Vice President of Marketing and Vice
President of Business Development each joined us in July or August 1999.
Accordingly, each of these individuals has limited experience with our business.
Our success will depend to a significant extent on the ability of our new
officers to integrate themselves into our daily operations, to gain the trust
and confidence of other employees and to work effectively as a team. If any of
them fails to do so, our ability to execute our business strategy would be
impeded.
COMPETITION FROM UNLICENSED PRODUCTS COULD LEAD TO REDUCED PRICES AND SALES
VOLUMES OF OUR LICENSEES' PRODUCTS, WHICH COULD LIMIT OUR REVENUES OR CAUSE OUR
REVENUES TO DECLINE.
Our licensees or other third parties may seek to develop products which
they believe do not require a license under our intellectual property. These
potential competitors may have significantly greater financial, technical and
marketing resources than we do, and the costs associated with asserting our
intellectual property against such products and such potential competitors could
be significant. Moreover, if such alternative designs were determined by a court
not to require a license under our intellectual property, competition from such
unlicensed products could limit or reduce our revenues.
COMPETITION TO OUR IMMERSION PROCESSORS MAY LEAD TO REDUCED PRICES AND SALES
VOLUMES OF OUR MICROPROCESSORS.
To date, the market for our Immersion Processors has been small. If the
market grows, we expect more companies to compete in this market. Increased
competition could result in significant price erosion, reduced revenues or loss
of market share, any of which would have an adverse effect on our business and
operating results. Currently, semiconductor companies, including Mitsubishi and
STMicroelectronics, manufacture products that compete with our microprocessors.
Although the products of these semiconductor companies have not been optimized
for the specific requirements of touch-enabling technology, in the future,
Mitsubishi, STMicroelectronics or other companies may elect to enter the market
for optimized touch-enabling microprocessors. These companies may have greater
financial, technical, manufacturing, distribution and other resources, greater
name recognition and market presence, longer operating histories, lower cost
structures and larger customer bases than we do. Accordingly, we may not be able
to compete successfully against either current or future competitors.
WE MIGHT BE UNABLE TO RECRUIT OR RETAIN NECESSARY PERSONNEL, WHICH COULD SLOW
THE DEVELOPMENT AND DEPLOYMENT OF OUR TECHNOLOGIES.
Our ability to develop and deploy our technologies and to sustain our
revenue growth depends upon the continued service of our executive officers and
other key personnel and upon hiring additional key personnel. We intend to hire
additional sales, support, marketing and research and development personnel in
2000. Competition for these individuals is intense, and we may not be able to
attract, assimilate or retain additional highly qualified personnel in the
future. In addition, our technologies are complex and we rely upon the continued
service of our existing engineering personnel to support licensees, enhance
existing technology and develop new technologies.
WE HAVE EXPERIENCED RAPID GROWTH AND CHANGE IN OUR BUSINESS, AND OUR FAILURE TO
MANAGE THIS AND ANY FUTURE GROWTH COULD HARM OUR BUSINESS.
We are increasing the number of our employees rapidly. Our business may be
harmed if we do not integrate and train our new employees quickly and
effectively. We also cannot be sure that our revenues will continue to grow at a
rate sufficient to support the costs associated with an increasing number of
employees.
Any future periods of rapid growth may place significant strains on our
managerial, financial, engineering and other resources. The rate of any future
expansion, in combination with our complex technologies, may demand an unusually
high level of managerial effectiveness in anticipating, planning, coordinating
and meeting our operational needs as well as the needs of our licensees.
PRODUCT LIABILITY CLAIMS, INCLUDING CLAIMS RELATING TO ALLEGED REPETITIVE STRESS
INJURIES, COULD BE TIME-CONSUMING AND COSTLY TO DEFEND, AND COULD EXPOSE US TO
LOSS.
Claims that consumer products have flaws or other defects that lead to
personal or other injury are common in the computer peripherals industry. If
products that we or our licensees sell cause personal injury, financial loss or
other injury to our or our licensees' customers, the customers or our licensees
may seek damages or other recovery from us. Any claims against us would be
time-consuming, expensive to defend and distracting to management and could
result in damages and injure our reputation or the reputation of our licensees
or their products. This damage could limit the market for our licensees'
touch-enabled products and harm our results of operations.
<PAGE> 21
In the past, manufacturers of peripheral products, such as computer mice,
have been subject to claims alleging that use of their products has caused or
contributed to various types of repetitive stress injuries, including carpal
tunnel syndrome. We have not experienced any product liability claims to date.
Although our license agreements typically contain provisions designed to
limit our exposure to product liability claims, existing or future laws or
unfavorable judicial decisions could limit or invalidate the provisions.
IF WE FAIL TO DEVELOP NEW OR ENHANCED TECHNOLOGIES FOR NEW COMPUTER APPLICATIONS
AND PLATFORMS, WE MAY NOT BE ABLE TO CREATE A MARKET FOR OUR TECHNOLOGIES AND
OUR ABILITY TO GROW AND OUR RESULTS OF OPERATIONS MIGHT BE HARMED.
Our initiatives to develop new and enhanced technologies and to license
technologies for new applications and new platforms may not be successful. Any
new or enhanced technologies may not be favorably received by consumers and
could damage our reputation or our brand. Expanding our technology could also
require significant additional expenses and strain our management, financial and
operational resources. The lack of market acceptance of these efforts or our
inability to generate additional revenues sufficient to offset the associated
costs could harm our results of operations.
WE HAVE IN THE PAST, AND MAY IN THE FUTURE, ENGAGE IN ACQUISITIONS THAT DILUTE
STOCKHOLDER VALUE, DIVERT MANAGEMENT ATTENTION OR CAUSE INTEGRATION PROBLEMS.
As part of our business strategy, we have in the past acquired, and may
in the future, acquire businesses or intellectual property that we feel could
complement our business, enhance our technical capabilities or increase our
intellectual property portfolio. If we consummate acquisitions through an
exchange of our securities, our stockholders could suffer significant dilution.
Acquisitions could create risks for us, including:
- unanticipated costs associated with the acquisitions;
- use of substantial portions of our available cash to consummate the
acquisitions;
- diversion of management's attention from other business concerns;
- difficulties in assimilation of acquired personnel or operations; and
- intellectual property infringement claims and claims related to the
ownership of acquired intellectual property.
Any acquisitions, even if successfully completed, might not generate any
additional revenue or provide any benefit to our business.
YEAR 2000 COMPLIANCE COSTS AND RISKS ARE DIFFICULT TO ASSESS AND COULD RESULT IN
DELAY OR LOSS OF REVENUES, DAMAGE TO OUR REPUTATION AND DIVERSION OF DEVELOPMENT
RESOURCES.
Many computer programs and embedded date-reliant systems use two digits
rather than four to define the applicable year. Programs and systems that record
only the last two digits of the calendar year may not be able to distinguish
whether "00" means 1900 or 2000. If not corrected, date-related information and
data could cause these programs or systems to fail or to generate erroneous
information.
To the extent that any third-party product with which our technology is
associated is not Year 2000 compliant, our reputation may be harmed. Our revenue
and operating results could become subject to unexpected fluctuations if our
licensees encounter Year 2000 compliance problems that affect their ability to
distribute licensed products. In addition, a delay or failure by our critical
suppliers to be Year 2000 compliant could interrupt our business. To date, our
business has not been affected by Year 2000 compliance problems.
OUR STOCK MAY BE VOLATILE.
The stock market has experienced extreme volatility that often has been
unrelated or disproportionate to the performance of particular companies. These
market fluctuations may cause our stock price to decline regardless of our
performance.
OUR EXECUTIVE OFFICERS, DIRECTORS AND MAJOR STOCKHOLDERS RETAIN SIGNIFICANT
CONTROL OVER US, WHICH MAY LEAD TO CONFLICTS WITH OTHER STOCKHOLDERS OVER
CORPORATE GOVERNANCE MATTERS.
Our current directors, officers and more than 5% stockholders, as a group,
beneficially own more than 40% of our outstanding common stock. Acting together,
these stockholders would be able to exercise significant control on matters that
our stockholders vote upon, including the election of directors and mergers or
other business
<PAGE> 22
combinations, which could have the effect of delaying or preventing a third
party from acquiring control over or merging with us.
PROVISIONS IN OUR CHARTER DOCUMENTS AND DELAWARE LAW COULD PREVENT OR DELAY A
CHANGE IN CONTROL, WHICH COULD REDUCE THE MARKET PRICE OF OUR COMMON STOCK.
Provisions in our certificate of incorporation and bylaws may have the
effect of delaying or preventing a change of control or changes in our
management. In addition, certain provisions of Delaware law may discourage,
delay or prevent someone from acquiring or merging with us. These provisions
could limit the price that investors might be willing to pay in the future for
shares of our common stock.
A LARGE NUMBER OF SHARES RECENTLY BECAME AVAILABLE IN THE MARKET, WHICH MAY
DEPRESS THE MARKET PRICE OF OUR COMMON STOCK.
As of May 10, 2000, upon the expiration of lock-up agreements entered into
in connection with our initial public offering, approximately 11 million shares
of our common stock became available for sale in the public market, in addition
to the approximately 5 million shares registered in our initial public offering.
Sales of substantial numbers of shares of our common stock in the public market,
or the perception that sales may be made, could cause the market price of our
common stock to decline. In addition, the sale of these shares could impair our
ability to raise capital through the sale of additional equity securities.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISKS
The Company has limited exposure to financial market risks, including
changes in interest rates. The fair value of the Company's portfolio or related
income would not be significantly impacted by a 100 basis point increase or
decrease in interest rates due mainly to the short-term nature of the major
portion of our investment portfolio. An increase or decrease in interest rates
would not significantly increase or decrease interest expense on debt
obligations due to the fixed nature of the Company's debt obligations. The
Company's foreign operations are limited in scope and thus the Company is not
materially exposed to foreign currency fluctuations.
PART II
OTHER INFORMATION
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits.
The following exhibits are filed herewith:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<S> <C>
10.1 Industrial Lease between WW&LJ Gateways, Ltd. and Immersion Corporation
dated January 11, 2000.
10.2 Amendment #1 to the April 13, 1998 Intellectual Property License
Agreement and Technology Product Development Agreement with Logitech,
Inc. dated March 21, 2000.
21.1 Subsidiaries of Immersion.
27.1 Financial Data Schedule for the period ended March 31, 2000.
</TABLE>
(b) Reports on Form 8-K
The Company filed a Current Report on Form 8-K on March 24, 2000 reporting
the completion of the Company's acquisition of Haptic Technologies Inc. on March
9, 2000.
<PAGE> 23
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant had duly caused this Report to be signed on behalf by the undersigned
thereunto duly authorized.
IMMERSION CORPORATION
Registrant
Date: May 12, 2000 /s/ LOUIS ROSENBERG
--------------------------------------------------
Louis Rosenberg
Chairman, President and Chief Executive Officer
Date: May 12, 2000 /s/ VICTOR VIEGAS
---------------------------------------------------
Victor Viegas
Vice President, Finance and Chief Financial Officer
<PAGE> 24
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- -------- -----------
<S> <C>
10.1 Industrial Lease between WW&LJ Gateways, Ltd. and Immersion Corporation
dated January 11, 2000.
10.2 Amendment #1 to the April 13, 1998 Intellectual Property License
Agreement and Technology Product Development Agreement with Logitech,
Inc. dated March 21, 2000.
21.1 Subsidiaries of Immersion.
27.1 Financial Data Schedule for the period ended March 31, 2000.
</TABLE>
<PAGE> 1
Exhibit 10.1
INDUSTRIAL LEASE
(MULTI-TENANT; NET)
BETWEEN
WW&LJ GATEWAYS, LTD.
AND
IMMERSION CORPORATION
<PAGE> 2
INDEX TO LEASE
ARTICLE I. BASIC LEASE PROVISIONS
ARTICLE II. PREMISES
Section 2.1 Leased Premises
Section 2.2 Acceptance of Premises
Section 2.3 Building Name and Address
ARTICLE III. TERM
Section 3.1 General
Section 3.2 Delay in Possession
Section 3.3 Right to Extend this Lease
ARTICLE IV RENT AND OPERATING EXPENSES
Section 4.1 Basic Rent
Section 4.2 Operating Expenses
Section 4.3 Security Deposit
ARTICLE V. USES
Section 5.1 Use
Section 5.2 Signs
Section 5.3 Hazardous Materials
ARTICLE VI. COMMON AREAS; SERVICES
Section 6.1 Utilities and Services
Section 6.2 Operation and Maintenance of Common Areas
Section 6.3 Use of Common Areas
Section 6.4 Parking
Section 6.5 Changes and Additions by Landlord
ARTICLE VII. MAINTAINING THE PREMISES
Section 7.1 Tenant's Maintenance and Repair
Section 7.2 Landlord's Maintenance and Repair
Section 7.3 Alterations
Section 7.4 Mechanic's Liens
Section 7.5 Entry and Inspection
Section 7.6 [Intentionally deleted]
ARTICLE VIII. TAXES AND ASSESSMENTS ON TENANT'S PROPERTY
ARTICLE IX. ASSIGNMENT AND SUBLETTING
Section 9.1 Rights of Parties
Section 9.2 Effect of Transfer
Section 9.3 Sublease Requirements
Section 9.4 Certain Transfers
ARTICLE X. INSURANCE AND INDEMNITY
Section 10.1 Tenant's Insurance
Section 10.2 Landlord's Insurance
Section 10.3 Tenant's Indemnity
Section 10.4 Landlord's Nonliability
Section 10.5 Waiver of Subrogation
ARTICLE XI. DAMAGE OR DESTRUCTION
Section 11.1 Restoration
Section 11.2 Lease Governs
ARTICLE XII. EMINENT DOMAIN
Section 12.1 Total or Partial Taking
Section 12.2 Temporary Taking
Section 12.3 Taking of Parking Area
ARTICLE XIII. SUBORDINATION; ESTOPPEL CERTIFICATE; FINANCIALS
Section 13.1 Subordination
Section 13.2 Estoppel Certificate
Section 13.3 Financials
(i)
<PAGE> 3
ARTICLE XIV. DEFAULTS AND REMEDIES
Section 14.1 Tenant's Defaults
Section 14.2 Landlord's Remedies
Section 14.3 Late Payments
Section 14.4 Right of Landlord to Perform
Section 14.5 Default by Landlord
Section 14.6 Expenses and Legal Fees
Section 14.7 Waiver of Jury Trial
Section 14.8 Satisfaction of Judgment
Section 14.9 Limitation of Actions Against Landlord
ARTICLE XV. END OF TERM
Section 15.1 Holding Over
Section 15.2 Merger on Termination
Section 15.3 Surrender of Premises; Removal of Property
ARTICLE XVI. PAYMENTS AND NOTICES
ARTICLE XVII. RULES AND REGULATIONS
ARTICLE XVIII. BROKER'S COMMISSION
ARTICLE XIX. TRANSFER OF LANDLORD'S INTEREST
ARTICLE XX. INTERPRETATION
Section 20.1 Gender and Number
Section 20.2 Headings
Section 20.3 Joint and Several Liability
Section 20.4 Successors
Section 20.5 Time of Essence
Section 20.6 Controlling Law
Section 20.7 Severability
Section 20.8 Waiver and Cumulative Remedies
Section 20.9 Inability to Perform
Section 20.10 Entire Agreement
Section 20.11 Quiet Enjoyment
Section 20.12 Survival
ARTICLE XXI. EXECUTION AND RECORDING
Section 21.1 Counterparts
Section 21.2 Corporate and Partnership Authority
Section 21.3 Execution of Lease; No Option or Offer
Section 21.4 Recording
Section 21.5 Amendments
Section 21.6 Executed Copy
Section 21.7 Attachments
ARTICLE XXII MISCELLANEOUS
Section 22.1 Nondisclosure of Lease Terms
Section 22.2 Guaranty
Section 22.3 Changes Requested by Lender
Section 22.4 Mortgagee Protection
Section 22.5 Covenants and Conditions
Section 22.6 Security Measures
EXHIBITS
Exhibit A Description of Premises
Exhibit B Environmental Questionnaire
Exhibit C Landlord's Disclosures
Exhibit D Insurance Requirements
Exhibit E Rules and Regulations
Exhibit X Work Letter
Exhibit Y Project Site Plan
(ii)
<PAGE> 4
INDUSTRIAL LEASE
(MULTI-TENANT; NET)
THIS LEASE is made as of the 11th day of January, 2000, by and between
WW&LJ GATEWAYS, LTD., a California limited partnership, hereafter called
"Landlord," and IMMERSION CORPORATION, a Delaware corporation, hereinafter
called "Tenant."
ARTICLE I. BASIC LEASE PROVISIONS
Each reference in this Lease to the "Basic Lease Provisions" shall mean
and refer to the following collective terms, the application of which shall be
governed by the provisions in the remaining Articles of this Lease.
1. Premises: 801 Fox Lane, San Jose, CA 95131 (the Premises are more
particularly described in Section 2.1).
Address of Building: 801 - 821 Fox Lane, San Jose, CA 95131
2. Project Description (if applicable): 801 Fox Lane/821 Fox Lane
3. Use of Premises: Office, Research & Development, Manufacturing,
Distribution, Assembly, Storage and Other Legal Related Uses.
4. Estimated Commencement Date: February 1, 2000
5. Lease Term: Sixty (60) months, plus such additional days as may be
required to cause this Lease to terminate on the final day of the
calendar month.
6. Basic Rent: Sixty Six Thousand Seven Hundred Thirty-Five Dollars
($66,735.00) per month, based on $1.40 per rentable square foot.
Basic Rent is subject to adjustment as follows:
Commencing twelve (12) months following the Commencement Date, the Basic
Rent shall be Sixty Eight Thousand Six Hundred Forty-Two Dollars
($68,642.00) per month, based on $1.44 per rentable square foot.
Commencing twenty-four (24) months following the Commencement Date, the
Basic Rent shall be Seventy One Thousand Twenty-Five Dollars
($71,025.00) per month, based on $1.49 per rentable square foot.
Commencing thirty-six (36) months following the Commencement Date, the
Basic Rent shall be Seventy Two Thousand Nine Hundred Thirty-Two Dollars
($72,932.00) per month, based on $1.53 per rentable square foot.
Commencing forty-eight (48) months following the Commencement Date, the
Basic Rent shall be Seventy Five Thousand Three Hundred Fifteen Dollars
($75,315.00) per month, based on $1.58 per rentable square foot.
7. Guarantor(s): None
8. Floor Area of Premises: Approximately 47,668 rentable square feet
9. Security Deposit: $82,847.00
10. Broker(s): Cornish & Carey
11. Additional Insureds: Insignia/ESG of California, Inc.
12. Address for Payments and Notices:
LANDLORD TENANT
INSIGNIA/ESG OF CALIFORNIA, INC. IMMERSION CORPORATION
160 West Santa Clara Street, Suite 1350 801 Fox Lane
San Jose, CA 95113 San Jose, CA 95131
1
<PAGE> 5
with a copy of notices to:
IRVINE INDUSTRIAL COMPANY
P.O. Box 6370
Newport Beach, CA 92658-6370
Attn: Vice President, Industrial Operations
13. Tenant's Liability Insurance Requirement: $2,000,000.00
14. Vehicle Parking Spaces: 180 unreserved parking spaces
15. Plan Approval Date: January 31, 2000
2
<PAGE> 6
ARTICLE II. PREMISES
SECTION 2.1. LEASED PREMISES. Landlord leases to Tenant and Tenant leases
from Landlord the premises shown in Exhibit A (the "Premises"), containing
approximately the floor area set forth in Item 8 of the Basic Lease Provisions
and known by the suite number identified in Item 1 of the Basic Lease
Provisions. The Premises are located in the building identified in Item 1 of the
Basic Lease Provisions (which together with the underlying real property, is
called the "Building"), and is a portion of the project shown in Exhibit Y (the
"Project"). Tenant understands that the floor area set forth in Item 8 of the
Basic Lease Provisions may include, at Landlord's option, a factor approximating
the total square footage of any common lobby or internal common features of the
Building times the ratio of the actual square footage of the Premises to the
total square footage of the Building. If, upon completion of the space plans for
the Premises, Landlord's architect or space planner determines that the rentable
square footage of the Premises differs from that set forth in the Basic Lease
Provisions, then Landlord shall so notify Tenant and the Basic Rent (as shown in
Item 6 of the Basic Lease Provisions) shall be promptly adjusted in proportion
to the change in square footage. Within five (5) days following Landlord's
request, the parties shall memorialize the adjustments by executing an amendment
to this Lease prepared by Landlord, provided that the failure or refusal by
either party to execute the amendment shall not affect its validity.
SECTION 2.2. ACCEPTANCE OF PREMISES. Tenant acknowledges that neither
Landlord nor any representative of Landlord has made any representation or
warranty with respect to the Premises or the Building or the suitability or
fitness of either for any purpose, including without limitation any
representations or warranties regarding zoning or other land use matters, and
that neither Landlord nor any representative of Landlord has made any
representations or warranties regarding (i) what other tenants or uses may be
permitted or intended in the Building and the Project, or (ii) any exclusivity
of use by Tenant with respect to its permitted use of the Premises as set forth
in Item 3 of the Basic Lease Provisions. Tenant further acknowledges that
neither Landlord nor any representative of Landlord has agreed to undertake any
alterations or additions or construct any improvements to the Premises except as
expressly provided in this Lease. The taking of possession or use of the
Premises by Tenant for any purpose other than construction shall conclusively
establish that the Premises and the Building were in satisfactory condition and
in conformity with the provisions of this Lease in all respects, except for
those matters which Tenant shall have brought to Landlord's attention on a
written punch list. The list shall be limited to any items required to be
accomplished by Landlord under the Work Letter attached as Exhibit X, and shall
be delivered to Landlord within thirty (30) days after the term ("Term") of this
Lease commences as provided in Article III below. If no items are required of
Landlord under the Work Letter, by taking possession of the Premises Tenant
accepts the improvements in their existing condition, and waives any right or
claim against Landlord arising out of the condition of the Premises. Nothing
contained in this Section shall affect the commencement of the Term or the
obligation of Tenant to pay rent. Landlord shall diligently complete all punch
list items of which it is notified as provided above.
SECTION 2.3. BUILDING NAME AND ADDRESS. Tenant shall not utilize any name
selected by Landlord from time to time for the Building and/or the Project as
any part of Tenant's corporate or trade name. Landlord shall have the right to
change the name, address, number or designation of the Building or Project
without liability to Tenant.
ARTICLE III. TERM
SECTION 3.1. GENERAL. The Term shall be for the period shown in Item 5 of
the Basic Lease Provisions. Subject to the provisions of Section 3.2 below, the
Term shall commence ("Commencement Date") on the earlier of (a) the date upon
which all relevant governmental authorities have approved the Tenant
Improvements in accordance with applicable building codes, as evidenced by
written approval thereof in accordance with the building permits issued for the
Tenant Improvements or issuance of a temporary or final certificate of occupancy
for the Premises, or (b) the date Tenant acquires possession or commences use of
the Premises for any purpose other than construction of Tenant Improvements by
Tenant under the Work Letter. Within ten (10) days after possession of the
Premises is tendered to Tenant, the parties shall memorialize on a form provided
by Landlord the actual Commencement Date and the expiration date ("Expiration
Date") of this Lease. Tenant's failure to execute that form shall not affect the
validity of Landlord's determination of those dates.
SECTION 3.2. DELAY IN POSSESSION. If Landlord, for any reason whatsoever,
cannot deliver possession of the Premises to Tenant on or before the Estimated
Commencement Date, this Lease shall not be void or voidable nor shall Landlord
be liable to Tenant for any resulting loss or damage. However, Tenant shall not
be liable for any rent and the Commencement Date shall not occur until Landlord
delivers possession of the Premises and the Premises are in fact available for
Tenant's occupancy with any Tenant Improvements that have been approved as per
Section 3.1(a) above, except that if Landlord's failure to so deliver possession
on the Estimated Commencement Date is attributable to any action or inaction by
Tenant (including without limitation any Tenant Delay described in the Work
Letter attached to this Lease), then the Commencement Date shall not be advanced
to the date on which possession of the Premises is tendered to Tenant, and
Landlord shall be entitled to full performance by Tenant (including the payment
of rent) from the date Landlord would have been able to deliver the Premises to
3
<PAGE> 7
Tenant but for Tenant's delay(s).
SECTION 3.3 RIGHT TO EXTEND THIS LEASE. Provided that Tenant is not in
default under any provision of this Lease, either at the time of exercise of the
extension right granted herein or at the time of the commencement of such
extension, and provided further that Tenant is occupying the entire Premises and
has not assigned or sublet any of its interest in this Lease, Tenant may extend
the Term of this Lease for one (1) period of sixty (60) months. Tenant shall
exercise its right to extend the Term by and only by delivering to Landlord, not
less than six (6) months or more than nine (9) months prior to the expiration
date of the Term, Tenant's irrevocable written notice of its commitment to
extend (the "Commitment Notice"). The Basic Rent payable under the Lease during
any extension of the Term shall be determined as provided in the following
provisions.
If Landlord and Tenant have not by then been able to agree upon the Basic
Rent for the extension of the Term, then within one hundred twenty (120) and
ninety (90) days prior to the expiration date of the Term, Landlord shall notify
Tenant in writing of the Basic Rent that would reflect the prevailing market
rental rate for a 60-month renewal of comparable space in the Project (together
with any increases thereof during the extension period) as of the commencement
of the extension period ("Landlord's Determination"). Should Tenant disagree
with the Landlord's Determination, then Tenant shall, not later than twenty (20)
days thereafter, notify Landlord in writing of Tenant's determination of those
rental terms ("Tenant's Determination"). In no event, however, shall Landlord's
Determination or Tenant's Determination be less than the Basic Rent payable by
Tenant during the final month of the initial Term. Within ten (10) days
following delivery of the Tenant's Determination, the parties shall attempt to
agree on an appraiser to determine the fair market rental. If the parties are
unable to agree in that time, then each party shall designate an appraiser
within ten (10) days thereafter. Should either party fail to so designate an
appraiser within that time, then the appraiser designated by the other party
shall determine the fair market rental. Should each of the parties timely
designate an appraiser, then the two appraisers so designated shall appoint a
third appraiser who shall, acting alone, determine the fair market rental for
the Premises. Any appraiser designated hereunder shall have an MAI certification
with not less than five (5) years experience in the valuation of commercial
industrial buildings in the vicinity of the Project.
Within thirty (30) days following the selection of the appraiser and such
appraiser's receipt of the Landlord's Determination and the Tenant's
Determination, the appraiser shall determine whether the rental rate determined
by Landlord or by Tenant more accurately reflects the fair market rental rate
for the 60-month renewal of the Lease for the Premises, as reasonably
extrapolated to the commencement of the extension period. Accordingly, either
the Landlord's Determination or the Tenant's Determination shall be selected by
the appraiser as the fair market rental rate for the extension period. In making
such determination, the appraiser shall consider rental comparables for the
Project (provided that if there are an insufficient number of comparables within
the project, the appraiser shall consider rental comparables for similarly
improved space within the vicinity of the Project with appropriate adjustment
for location and quality of project), but the appraiser shall not attribute any
factor for market tenant improvement allowances or brokerage commissions in
making its determination of the fair market rental rate. At any time before the
decision of the appraiser is rendered, either party may, by written notice to
the other party, accept the rental terms submitted by the other party, in which
event such terms shall be deemed adopted as the agreed fair market rental. The
fees of the appraiser(s) shall be borne entirely by the party whose
determination of the fair market rental rate was not accepted by the appraiser.
Within twenty (20) days after the determination of the fair market rental,
Landlord shall prepare an appropriate amendment to this Lease for the extension
period, and Tenant shall execute and return same to Landlord within twenty (20)
days. Should the fair market rental not be established by the commencement of
the extension period, then Tenant shall continue paying rent at the rate in
effect during the last month of the initial Term, and a lump sum adjustment
shall be made promptly upon the determination of such new rental.
If Tenant fails to timely comply with any of the provisions of this
paragraph, Tenant's right to extend the Term shall be extinguished and the Lease
shall automatically terminate as of the expiration date of the Term, without any
extension and without any liability to Landlord. Any attempt to assign or
transfer any right or interest created by this paragraph shall be void from its
inception. Tenant shall have no other right to extend the Term beyond the single
sixty (60) month extension period created by this paragraph. Unless agreed to in
a writing signed by Landlord and Tenant, any extension of the Term, whether
created by an amendment to this Lease or by a holdover of the Premises by
Tenant, or otherwise, shall be deemed a part of, and not in addition to, any
duly exercised extension period permitted by this paragraph.
ARTICLE IV. RENT AND OPERATING EXPENSES
SECTION 4.1. BASIC RENT. From and after the Commencement Date, Tenant shall
pay to Landlord without deduction or offset, Basic Rent for the Premises in the
total amount shown (including subsequent adjustments, if any) in Item 6 of the
Basic Lease Provisions. Any rental adjustment shown in Item 6 shall be deemed to
occur on the specified monthly anniversary of the Commencement Date, whether or
not that date occurs at the end of a calendar month. The rent shall be due and
payable in advance commencing on the Commencement Date (as prorated for any
partial month) and continuing thereafter on the first day of each successive
calendar month of the Term. No demand, notice or invoice shall be required for
the payment of Basic Rent. An installment of rent in the
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amount of one (1) full month's Basic Rent at the initial rate specified in Item
6 of the Basic Lease Provisions shall be delivered to Landlord concurrently with
Tenant's execution of this Lease and shall be applied against the Basic Rent
first due hereunder.
SECTION 4.2. OPERATING EXPENSES.
(a) Tenant shall pay to Landlord, as additional rent, Tenant's Share of
"Operating Expenses", as defined below, incurred by Landlord in the operation of
the Building and Project. The term "Tenant's Share" means that portion of an
Operating Expense determined by multiplying the cost of such item by a fraction,
the numerator of which is the floor area of the Premises and the denominator of
which is the total square footage of the floor area, as of the date on which the
computation is made, to be charged with such Operating Expense.
(b) Commencing prior to the start of the first full "Expense Recovery
Period" (as defined below) of the Lease, and prior to the start of each full or
partial Expense Recovery Period thereafter, Landlord shall give Tenant a written
estimate of the amount of Tenant's Share of Operating Expenses for the Expense
Recovery Period. Tenant shall pay the estimated amounts to Landlord in equal
monthly installments, in advance, with Basic Rent. If Landlord has not furnished
its written estimate for any Expense Recovery Period by the time set forth
above, Tenant shall continue to pay cost reimbursements at the rates established
for the prior Expense Recovery Period, if any; provided that when the new
estimate is delivered to Tenant, Tenant shall, at the next monthly payment date,
pay any accrued cost reimbursements based upon the new estimate. For purposes
hereof, "Expense Recovery Period" shall mean every twelve month period during
the Term (or portion thereof for the first and last lease years) commencing July
1 and ending June 30.
(c) Within one hundred twenty (120) days after the end of each Expense
Recovery Period, Landlord shall furnish to Tenant a statement showing in
reasonable detail the actual or prorated Operating Expenses incurred by Landlord
during the period, and the parties shall within thirty (30) days thereafter make
any payment or allowance necessary to adjust Tenant's estimated payments, if
any, to the actual Tenant's Share as shown by the annual statement. Any delay or
failure by Landlord in delivering any statement hereunder shall not constitute a
waiver of Landlord's right to require Tenant to pay Tenant's Share of Operating
Expenses pursuant hereto. Any amount due Tenant shall be credited against
installments next coming due under this Section 4.2, and any deficiency shall be
paid by Tenant together with the next installment. If Tenant has not made
estimated payments during the Expense Recovery Period, any amount owing by
Tenant pursuant to subsection (a) above shall be paid to Landlord in accordance
with Article XVI. Should Tenant fail to object in writing to Landlord's
determination of actual Operating Expenses within sixty (60) days following
delivery of Landlord's expense statement, Landlord's determination of actual
Operating Expenses for the applicable Expense Recovery Period shall be
conclusive and binding on the parties and any future claims to the contrary
shall be barred.
Provided Tenant is not then in default under this Lease beyond any
applicable notice and cure periods, Tenant shall have the right to have an
independent certified public accountant audit Landlord's Operating Expenses,
subject to the terms and conditions hereof. The cost of the audit shall be borne
by Tenant; provided, however, in no event shall such auditor be compensated by
Tenant on a "contingency" basis, or on any other basis tied to the results of
said audit. Tenant shall give written notice to Landlord of Tenant's intent to
audit Operating Expenses, if at all, within sixty (60) days following delivery
of Landlord's expense statement for the Expense Recovery Period in question.
Following at least ten (10) business days notice to Landlord, such audit shall
be conducted at a mutually agreeable time during normal business hours at the
office of Landlord or its management agent where records are maintained in Santa
Clara County, California. Landlord shall in good faith cooperate with Tenant
during any such audit. All information obtained by Tenant and/or its auditor in
connection with any audit, as well as any compromise, settlement or adjustment
reached between Landlord and Tenant as a result thereof, shall be held in strict
confidence by Tenant and its auditor and, except as may be required pursuant to
any litigation or as may otherwise be required by law, shall not be disclosed to
any third party, directly or indirectly, by Tenant or its auditor or any of
their respective officers, agents or employees. Landlord may require Tenant's
auditor to execute a separate confidentiality agreement affirming the foregoing
as a condition precedent to any audit. If, following Landlord's review of
Tenant's audit, Landlord disputes the same, Landlord shall have the right, upon
written notice to Tenant within a reasonable time following its receipt of the
audit, to contest such audit by demanding binding arbitration with JAMS
Endispute in Santa Clara County, California ("JAMS"). Tenant agrees to submit to
such arbitration upon such written notice from Landlord. Within ten (10)
business days following submission of the dispute by Landlord to JAMS, JAMS
shall designate three (3) arbitrators and each party may, within five (5)
business days thereafter, veto one (1) of the three (3) persons so designated.
If two (2) different designated arbitrators have been vetoed, the third
arbitrator shall hear and decide the matter. Any arbitration pursuant to this
paragraph shall be decided within thirty (30) days of submission to JAMS. The
decision of the arbitrator shall be final and binding on the parties. The award
rendered by the arbitrator shall be final, and judgment may be entered upon it
in accordance with applicable law in any court having jurisdiction thereof.
Except by written consent of the person or entity sought to be joined, no
arbitration under this paragraph shall include, by consolidation, joinder or in
any other manner, any person or entity not a party to this Lease unless (i) such
person or entity is substantially involved in a common question of fact or law,
(ii) the presence of such person or entity is required if complete relief is to
be accorded in the arbitration, or (iii) the interest or responsibility of such
person or entity in the matter in not insubstantial. All costs associated with
the arbitration (excluding the cost of the audit) shall be awarded to the
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prevailing party as determined by the arbitrator. The foregoing agreement to
arbitrate shall be specifically enforceable under prevailing law.
(d) Even though the Lease has terminated and the Tenant has vacated the
Premises, when the final determination is made of Tenant's Share of Operating
Expenses for the Expense Recovery Period in which the Lease terminates, Tenant
shall upon notice pay the entire increase due over the estimated expenses paid.
Conversely, any overpayment made in the event expenses decrease shall be rebated
by Landlord to Tenant.
(e) If, at any time during any Expense Recovery Period, any one or more
of the Operating Expenses are increased to a rate(s) or amount(s) in excess of
the rate(s) or amount(s) used in calculating the estimated expenses for the
year, then the estimate of Tenant's Share of Operating Expenses shall be
increased for the month in which such rate(s) or amount(s) becomes effective and
for all succeeding months by an amount equal to Tenant's Share of the increase.
Landlord shall give Tenant written notice of the amount or estimated amount of
the increase, the month in which the increase will become effective, Tenant's
Share thereof and the month for which the payments are due. Tenant shall pay the
increase to Landlord as a part of Tenant's monthly payments of estimated
expenses as provided in paragraph (b) above, commencing with the month in which
effective.
(f) The term "Operating Expenses" shall mean and include all "Project
Costs" (as hereafter defined) and "Property Taxes" (as hereafter defined).
(g) The term "Project Costs" shall include all expenses of operation and
maintenance of the Building and the Project, together with all appurtenant
Common Areas (as defined in Section 6.2), and shall include the following
charges by way of illustration but not limitation: water and sewer charges;
insurance premiums or reasonable premium equivalents should Landlord elect to
self-insure any risk that Landlord is authorized to insure hereunder; license,
permit, and inspection fees; heat; light; power; janitorial services to any
interior Common Areas; air conditioning; supplies; materials; equipment; tools;
the cost of any environmental, insurance, tax or other consultant utilized by
Landlord in connection with the Building and/or Project; establishment of
reasonable reserves for replacements and/or repair of the Building and/or Common
Area improvements, equipment and supplies; costs incurred in connection with
compliance of any laws or changes in laws applicable to the Building or the
Project; the cost of any capital investments (other than tenant improvements for
specific tenants) to the extent of the amortized amount thereof over the useful
life of such capital investments calculated at a market cost of funds, all as
determined by Landlord, for each such year of useful life during the Term; costs
associated with the procurement and maintenance of an air conditioning, heating
and ventilation service agreement, and procurement and maintenance of an
intrabuilding network cable service agreement for any intrabuilding network
cable telecommunications lines within the Project, and any other installation,
maintenance, repair and replacement costs associated with such lines; labor;
reasonably allocated wages and salaries, fringe benefits, and payroll taxes for
administrative and other personnel directly applicable to the Building and/or
Project, including both Landlord's personnel and outside personnel; any expense
incurred pursuant to Sections 6.1, 6.2, 6.4, 7.2, and 10.2; and a reasonable
overhead/management fee for the professional operation of the Project.
Notwithstanding anything to the contrary herein, Tenant's Share of any such
property management fees shall be determined by multiplying the actual property
management fee charged (which from time to time may be with respect to the
Building only, a portion of the Project only, the entire Project, or the Project
together with other properties owned by Landlord and/or its affiliates) by a
fraction, the numerator of which is the floor area of the Premises (as set forth
in Item 8 of the Basic Lease Provisions contained in the Lease), and the
denominator of which is the total square footage of space charged with such
management fee actually leased to tenants (including Tenant). It is understood
that Project Costs shall include competitive charges for direct services
provided by any subsidiary or division of Landlord.
(h) The term "Property Taxes" as used herein shall include the
following: (i) all real estate taxes or personal property taxes, as such
property taxes may be reassessed from time to time; and (ii) other taxes,
charges and assessments which are levied with respect to this Lease or to the
Building and/or the Project, and any improvements, fixtures and equipment and
other property of Landlord located in the Building and/or the Project, except
that general net income and franchise taxes imposed against Landlord shall be
excluded; and (iii) all assessments and fees for public improvements, services,
and facilities and impacts thereon, including without limitation arising out of
any Community Facilities Districts, "Mello Roos" districts, similar assessment
districts, and any traffic impact mitigation assessments or fees; (iv) any tax,
surcharge or assessment which shall be levied in addition to or in lieu of real
estate or personal property taxes, other than taxes covered by Article VIII; and
(v) costs and expenses incurred in contesting the amount or validity of any
Property Tax by appropriate proceedings.
SECTION 4.3. SECURITY DEPOSIT. Concurrently with Tenant's delivery of this
Lease, Tenant shall deposit with Landlord the sum, if any, stated in Item 9 of
the Basic Lease Provisions, to be held by Landlord as security for the full and
faithful performance of Tenant's obligations under this Lease (the "Security
Deposit"). Subject to the last sentence of this Section, the Security Deposit
shall be understood and agreed to be the property of Landlord upon Landlord's
receipt thereof, and may be utilized by Landlord in its discretion towards the
payment of all prepaid expenses by Landlord for which Tenant would be required
to reimburse Landlord under this Lease, including without limitation brokerage
commissions and Tenant Improvement costs. Upon any default by Tenant, including
specifically Tenant's failure to pay rent or to abide by its obligations under
Sections 7.1 and 15.3 below, whether or not Landlord is informed of or has
knowledge of the default, the Security Deposit shall be deemed to be
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automatically and immediately applied, without waiver of any rights Landlord may
have under this Lease or at law or in equity as a result of the default, as a
setoff for full or partial compensation for that default. If any portion of the
Security Deposit is applied after a default by Tenant, Tenant shall within five
(5) days after written demand by Landlord deposit cash with Landlord in an
amount sufficient to restore the Security Deposit to its original amount.
Landlord shall not be required to keep this Security Deposit separate from its
general funds, and Tenant shall not be entitled to interest on the Security
Deposit. If Tenant fully performs its obligations under this Lease, the Security
Deposit shall be returned to Tenant (or, at Landlord's option, to the last
assignee of Tenant's interest in this Lease) after the expiration of the Term,
provided that Landlord may retain the Security Deposit to the extent and until
such time as all amounts due from Tenant in accordance with this Lease have been
determined and paid in full.
ARTICLE V. USES
SECTION 5.1. USE. Tenant shall use the Premises only for the purposes stated
in Item 3 of the Basic Lease Provisions, all in accordance with applicable laws
and restrictions and pursuant to approvals to be obtained by Tenant from all
relevant and required governmental agencies and authorities. The parties agree
that any contrary use shall be deemed to cause material and irreparable harm to
Landlord and shall entitle Landlord to injunctive relief in addition to any
other available remedy. Tenant, at its expense, shall procure, maintain and make
available for Landlord's inspection throughout the Term, all governmental
approvals, licenses and permits required for the proper and lawful conduct of
Tenant's permitted use of the Premises. Tenant shall not do or permit anything
to be done in or about the Premises which will in any way interfere with the
rights of other occupants of the Building or the Project, or use or allow the
Premises to be used for any unlawful purpose, nor shall Tenant permit any
nuisance or commit any waste in the Premises or the Project. Tenant shall not
perform any work or conduct any business whatsoever in the Project other than
inside the Premises. Tenant shall not do or permit to be done anything which
will invalidate or increase the cost of any insurance policy(ies) covering the
Building, the Project and/or their contents, and shall comply with all
applicable insurance underwriters rules and the requirements of the Pacific Fire
Rating Bureau or any other organization performing a similar function. Tenant
shall comply at its expense with all present and future laws, ordinances,
restrictions, regulations, orders, rules and requirements of all governmental
authorities that pertain to Tenant or its use of the Premises, including without
limitation all federal and state occupational health and safety requirements,
whether or not Tenant's compliance will necessitate expenditures or interfere
with its use and enjoyment of the Premises. Tenant shall comply at its expense
with all present and future covenants, conditions, easements or restrictions now
or hereafter affecting or encumbering the Building and/or Project, and any
amendments or modifications thereto, including without limitation the payment by
Tenant of any periodic or special dues or assessments charged against the
Premises or Tenant which may be allocated to the Premises or Tenant in
accordance with the provisions thereof. Tenant shall promptly upon demand
reimburse Landlord for any additional insurance premium charged by reason of
Tenant's failure to comply with the provisions of this Section, and shall
indemnify Landlord from any liability and/or expense resulting from Tenant's
noncompliance.
SECTION 5.2 SIGNS. Except as approved in writing by Landlord, in its sole
discretion, Tenant shall have no right to maintain identification signs in any
location in, on or about the Premises, the Building or the Project and shall not
place or erect any signs, displays or other advertising materials that are
visible from the exterior of the Building. The size, design, graphics, material,
style, color and other physical aspects of any permitted sign shall be subject
to Landlord's written approval prior to installation (which approval may be
withheld in Landlord's discretion), any covenants, conditions or restrictions
encumbering the Premises, Landlord's signage program for the Project, as in
effect from time to time and approved by the City in which the Premises are
located ("Signage Criteria"), and any applicable municipal or other governmental
permits and approvals. Tenant acknowledges having received and reviewed a copy
of the current Signage Criteria for the Project. Tenant shall be responsible for
the cost of any permitted sign, including the fabrication, installation,
maintenance and removal thereof. If Tenant fails to maintain its sign, or if
Tenant fails to remove same upon termination of this Lease and repair any damage
caused by such removal, Landlord may do so at Tenant's expense.
SECTION 5.3 HAZARDOUS MATERIALS.
(a) For purposes of this Lease, the term "Hazardous Materials" includes
(i) any "hazardous materials" as defined in Section 25501(n) of the California
Health and Safety Code, (ii) any other substance or matter which results in
liability to any person or entity from exposure to such substance or matter
under any statutory or common law theory, and (iii) any substance or matter
which is in excess of permitted levels set forth in any federal, California or
local law or regulation pertaining to any hazardous or toxic substance, material
or waste.
(b) Tenant shall not cause or permit any Hazardous Materials to be
brought upon, stored, used, generated, released or disposed of on, under, from
or about the Premises (including without limitation the soil and groundwater
thereunder) without the prior written consent of Landlord. Notwithstanding the
foregoing, Tenant shall have the right, without obtaining prior written consent
of Landlord, to utilize within the Premises standard office products that may
contain Hazardous Materials (such as photocopy toner, "White Out", and the
like), provided however, that (i) Tenant shall maintain such products in their
original retail packaging, shall follow all instructions on such
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packaging with respect to the storage, use and disposal of such products, and
shall otherwise comply with all applicable laws with respect to such products,
and (ii) all of the other terms and provisions of this Section 5.3 shall apply
with respect to Tenant's storage, use and disposal of all such products.
Landlord may, in its sole discretion, place such conditions as Landlord deems
appropriate with respect to any such Hazardous Materials, and may further
require that Tenant demonstrate that any such Hazardous Materials are necessary
or useful to Tenant's business and will be generated, stored, used and disposed
of in a manner that complies with all applicable laws and regulations pertaining
thereto and with good business practices. Tenant understands that Landlord may
utilize an environmental consultant to assist in determining conditions of
approval in connection with the storage, generation, release, disposal or use of
Hazardous Materials by Tenant on or about the Premises, and/or to conduct
periodic inspections of the storage, generation, use, release and/or disposal of
such Hazardous Materials by Tenant on and from the Premises, and Tenant agrees
that any costs incurred by Landlord in connection therewith shall be reimbursed
by Tenant to Landlord as additional rent hereunder upon demand.
(c) Prior to the execution of this Lease, Tenant shall complete, execute
and deliver to Landlord an Environmental Questionnaire and Disclosure Statement
(the "Environmental Questionnaire") in the form of Exhibit B attached hereto.
The completed Environmental Questionnaire shall be deemed incorporated into this
Lease for all purposes, and Landlord shall be entitled to rely fully on the
information contained therein. On each anniversary of the Commencement Date
until the expiration or sooner termination of this Lease, Tenant shall disclose
to Landlord in writing the names and amounts of all Hazardous Materials which
were stored, generated, used, released and/or disposed of on, under or about the
Premises for the twelve-month period prior thereto, and which Tenant desires to
store, generate, use, release and/or dispose of on, under or about the Premises
for the succeeding twelve-month period. In addition, to the extent Tenant is
permitted to utilize Hazardous Materials upon the Premises, Tenant shall
promptly provide Landlord with complete and legible copies of all the following
environmental documents relating thereto: reports filed pursuant to any
self-reporting requirements; permit applications, permits, monitoring reports,
workplace exposure and community exposure warnings or notices and all other
reports, disclosures, plans or documents (even those which may be characterized
as confidential) relating to water discharges, air pollution, waste generation
or disposal, and underground storage tanks for Hazardous Materials; orders,
reports, notices, listings and correspondence (even those which may be
considered confidential) of or concerning the release, investigation of,
compliance, cleanup, remedial and corrective actions, and abatement of Hazardous
Materials; and all complaints, pleadings and other legal documents filed by or
against Tenant related to Tenant's use, handling, storage, release and/or
disposal of Hazardous Materials.
(d) Landlord and its agents shall have the right, but not the
obligation, to inspect, sample and/or monitor the Premises and/or the soil or
groundwater thereunder at any time to determine whether Tenant is complying with
the terms of this Section 5.3, and in connection therewith Tenant shall provide
Landlord with full access to all relevant facilities, records and personnel. If
Tenant is not in compliance with any of the provisions of this Section 5.3, or
in the event of a release of any Hazardous Material on, under or about the
Premises caused or permitted by Tenant, its agents, employees, contractors,
licensees or invitees, Landlord and its agents shall have the right, but not the
obligation, without limitation upon any of Landlord's other rights and remedies
under this Lease, to immediately enter upon the Premises without notice and to
discharge Tenant's obligations under this Section 5.3 at Tenant's expense,
including without limitation the taking of emergency or long-term remedial
action. Landlord and its agents shall endeavor to minimize interference with
Tenant's business in connection therewith, but shall not be liable for any such
interference. In addition, Landlord, at Tenant's expense, shall have the right,
but not the obligation, to join and participate in any legal proceedings or
actions initiated in connection with any claims arising out of the storage,
generation, use, release and/or disposal by Tenant or its agents, employees,
contractors, licensees or invitees of Hazardous Materials on, under, from or
about the Premises.
(e) If the presence of any Hazardous Materials on, under, from or about
the Premises or the Project caused or permitted by Tenant or its agents,
employees, contractors, licensees or invitees results in (i) injury to any
person, (ii) injury to or any contamination of the Premises or the Project, or
(iii) injury to or contamination of any real or personal property wherever
situated, Tenant, at its expense, shall promptly take all actions necessary to
return the Premises and the Project and any other affected real or personal
property owned by Landlord to the condition existing prior to the introduction
of such Hazardous Materials and to remedy or repair any such injury or
contamination, including without limitation, any cleanup, remediation, removal,
disposal, neutralization or other treatment of any such Hazardous Materials.
Notwithstanding the foregoing, Tenant shall not, without Landlord's prior
written consent, take any remedial action in response to the presence of any
Hazardous Materials on, under or about the Premises or the Project or any other
affected real or personal property owned by Landlord or enter into any similar
agreement, consent, decree or other compromise with any governmental agency with
respect to any Hazardous Materials claims; provided however, Landlord's prior
written consent shall not be necessary in the event that the presence of
Hazardous Materials on, under or about the Premises or the Project or any other
affected real or personal property owned by Landlord (i) imposes an immediate
threat to the health, safety or welfare of any individual or (ii) is of such a
nature that an immediate remedial response is necessary and it is not possible
to obtain Landlord's consent before taking such action. To the fullest extent
permitted by law, Tenant shall indemnify, hold harmless, protect and defend
(with attorneys acceptable to Landlord) Landlord and any successors to all or
any portion of Landlord's interest in the Premises and the Project and any other
real or personal property owned by Landlord from and against any and all
liabilities, losses, damages, diminution in value, judgments, fines, demands,
claims, recoveries, deficiencies, costs and expenses (including without
limitation attorneys' fees, court costs and other
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professional expenses), whether foreseeable or unforeseeable, arising directly
or indirectly out of the use, generation, storage, treatment, release, on- or
off-site disposal or transportation of Hazardous Materials on, into, from, under
or about the Premises, the Building and the Project and any other real or
personal property owned by Landlord caused or permitted by Tenant, its agents,
employees, contractors, licensees or invitees, specifically including without
limitation the cost of any required or necessary repair, restoration, cleanup or
detoxification of the Premises, the Building and the Project and any other real
or personal property owned by Landlord, and the preparation of any closure or
other required plans, whether or not such action is required or necessary during
the Term or after the expiration of this Lease. If Landlord at any time
discovers that Tenant or its agents, employees, contractors, licensees or
invitees may have caused or permitted the release of a Hazardous Material on,
under, from or about the Premises or the Project or any other real or personal
property owned by Landlord, Tenant shall, at Landlord's request, immediately
prepare and submit to Landlord a comprehensive plan, subject to Landlord's
approval, specifying the actions to be taken by Tenant to return the Premises or
the Project or any other real or personal property owned by Landlord to the
condition existing prior to the introduction of such Hazardous Materials. Upon
Landlord's approval of such cleanup plan, Tenant shall, at its expense, and
without limitation of any rights and remedies of Landlord under this Lease or at
law or in equity, immediately implement such plan and proceed to cleanup such
Hazardous Materials in accordance with all applicable laws and as required by
such plan and this Lease. The provisions of this subsection (e) shall expressly
survive the expiration or sooner termination of this Lease.
(f) Landlord hereby discloses to Tenant, and Tenant hereby acknowledges,
certain facts relating to Hazardous Materials at the Project known by Landlord
to exist as of the date of this Lease, as more particularly described in Exhibit
C attached hereto. Tenant shall have no liability or responsibility with respect
to the Hazardous Materials facts described in Exhibit C, nor with respect to any
Hazardous Materials which Tenant proves were not caused or permitted by Tenant,
its agents, employees, contractors, licensees or invitees. Notwithstanding the
preceding two sentences, Tenant agrees to notify its agents, employees,
contractors, licensees, and invitees of any exposure or potential exposure to
Hazardous Materials at the Premises that Landlord brings to Tenant's attention.
ARTICLE VI. COMMON AREAS; SERVICES
SECTION 6.1. UTILITIES AND SERVICES. Tenant shall be responsible for and
shall pay promptly, directly to the appropriate supplier, all charges for water,
gas, electricity, sewer, heat, light, power, telephone, refuse pickup,
janitorial service, interior landscape maintenance and all other utilities,
materials and services furnished directly to Tenant or the Premises or used by
Tenant in, on or about the Premises during the Term, together with any taxes
thereon. If any utilities or services are not separately metered or assessed to
Tenant, Landlord shall make a reasonable determination of Tenant's proportionate
share of the cost of such utilities and services and Tenant shall pay such
amount to Landlord, as an item of additional rent, within ten (10) days after
receipt of Landlord's statement or invoice therefor. Alternatively, Landlord may
elect to include such cost in the definition of Building Costs in which event
Tenant shall pay Tenant's proportionate share of such costs in the manner set
forth in Section 4.2. Landlord shall not be liable for damages or otherwise for
any failure or interruption of any utility or other service furnished to the
Premises, and no such failure or interruption shall be deemed an eviction or
entitle Tenant to terminate this Lease or withhold or abate any rent due
hereunder; provided, however, if any such failure or interruption is due to the
sole active negligence or willful misconduct of Landlord, its employees or
authorized agents (a "Landlord-Caused Service Interruption") and is not restored
by Landlord within five (5) business days following written notice by Tenant of
the Landlord-Caused Service Interruption in question, then Tenant shall be
entitled to an abatement of Basic Rent reasonably allocable to that portion of
the Premises that Tenant is prevented from using by reason of such
Landlord-Caused Service Interruption, which abatement shall commence on the
sixth (6th) business day following Tenant's notice of the Landlord-Caused
Service Interruption in question and shall continue for the balance of the
period during which Tenant is so prevented from using the affected portion of
the Premises. The foregoing abatement provisions shall be the sole and exclusive
remedy of Tenant with respect to any Landlord-Caused Service Interruption.
Landlord shall at all reasonable times have free access to all electrical and
mechanical installations of Landlord.
SECTION 6.2. OPERATION AND MAINTENANCE OF COMMON AREAS. During the Term,
Landlord shall operate all Common Areas within the Building and the Project. The
term "Common Areas" shall mean all areas within the exterior boundaries of the
Building and other buildings in the Project which are not held for exclusive use
by persons entitled to occupy space, and all other appurtenant areas and
improvements provided by Landlord for the common use of Landlord and tenants and
their respective employees and invitees, including without limitation parking
areas and structures, driveways, sidewalks, landscaped and planted areas,
hallways and interior stairwells not located within the premises of any tenant,
common electrical rooms and roof access entries, common entrances and lobbies,
elevators, and restrooms not located within the premises of any tenant.
SECTION 6.3. USE OF COMMON AREAS. The occupancy by Tenant of the Premises
shall include the use of the Common Areas in common with Landlord and with all
others for whose convenience and use the Common Areas may be provided by
Landlord, subject, however, to compliance with all rules and regulations as are
prescribed from time to time by Landlord. Landlord shall operate and maintain
the Common Areas in the manner Landlord may determine to be appropriate. All
costs incurred by Landlord for the maintenance and operation of the
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Common Areas shall be included in Project Costs unless any particular cost
incurred can be charged to a specific tenant of the Project. Landlord shall at
all times during the Term have exclusive control of the Common Areas, and may
restrain any use or occupancy, except as authorized by Landlord's rules and
regulations. Tenant shall keep the Common Areas clear of any obstruction or
unauthorized use related to Tenant's operations. Nothing in this Lease shall be
deemed to impose liability upon Landlord for any damage to or loss of the
property of, or for any injury to, Tenant, its invitees or employees. Landlord
may temporarily close any portion of the Common Areas for repairs, remodeling
and/or alterations, to prevent a public dedication or the accrual of
prescriptive rights, or for any other reason deemed sufficient by Landlord,
without liability to Landlord.
SECTION 6.4. PARKING. Tenant shall be entitled to the number of vehicle
parking spaces set forth in Item 14 of the Basic Lease Provisions, on those
portions of the Common Areas designated by Landlord for parking, on an
unreserved and unassigned basis. Tenant shall not use more parking spaces than
such number. All parking spaces shall be used only for parking by vehicles no
larger than full size passenger automobiles or pickup trucks. Tenant shall not
permit or allow any vehicles that belong to or are controlled by Tenant or
Tenant's employees, suppliers, shippers, customers or invitees to be loaded,
unloaded or parked in areas other than those designated by Landlord for such
activities. If Tenant permits or allows any of the prohibited activities
described above, then Landlord shall have the right, without notice, in addition
to such other rights and remedies that Landlord may have, to remove or tow away
the vehicle involved and charge the costs to Tenant. Parking within the Common
Areas shall be limited to striped parking stalls, and no parking shall be
permitted in any driveways, access ways or in any area which would prohibit or
impede the free flow of traffic within the Common Areas. There shall be no
overnight parking of any vehicles of any kind unless otherwise authorized by
Landlord, and vehicles which have been abandoned or parked in violation of the
terms hereof may be towed away at the owner's expense. Nothing contained in this
Lease shall be deemed to create liability upon Landlord for any damage to motor
vehicles of visitors or employees, for any loss of property from within those
motor vehicles, or for any injury to Tenant, its visitors or employees, unless
ultimately determined to be caused by the sole active negligence or willful
misconduct of Landlord. Landlord shall have the right to establish, and from
time to time amend, and to enforce against all users all reasonable rules and
regulations (including the designation of areas for employee parking) that
Landlord may deem necessary and advisable for the proper and efficient operation
and maintenance of parking within the Common Areas. Landlord shall have the
right to construct, maintain and operate lighting facilities within the parking
areas; to change the area, level, location and arrangement of the parking areas
and improvements therein; to restrict parking by tenants, their officers, agents
and employees to employee parking areas; to enforce parking charges (by
operation of meters or otherwise); and to do and perform such other acts in and
to the parking areas and improvements therein as, in the use of good business
judgment, Landlord shall determine to be advisable. Any person using the parking
area shall observe all directional signs and arrows and any posted speed limits.
In no event shall Tenant interfere with the use and enjoyment of the parking
area by other tenants of the Building or their employees or invitees. Parking
areas shall be used only for parking vehicles. Washing, waxing, cleaning or
servicing of vehicles, or the storage of vehicles for 24-hour periods, is
prohibited unless otherwise authorized by Landlord. Tenant shall be liable for
any damage to the parking areas caused by Tenant or Tenant's employees,
suppliers, shippers, customers or invitees, including without limitation damage
from excess oil leakage. Tenant shall have no right to install any fixtures,
equipment or personal property in the parking areas.
SECTION 6.5. CHANGES AND ADDITIONS BY LANDLORD. Landlord reserves the right
to make alterations or additions to the Building or the Project, or to the
attendant fixtures, equipment and Common Areas. Landlord may at any time
relocate or remove any of the various buildings, parking areas, and other Common
Areas, and may add buildings and areas to the Project from time to time. No
change shall entitle Tenant to any abatement of rent or other claim against
Landlord, provided that the change does not deprive Tenant of reasonable access
to or use of the Premises.
ARTICLE VII. MAINTAINING THE PREMISES
SECTION 7.1. TENANT'S MAINTENANCE AND REPAIR. Tenant at its sole expense
shall comply with all applicable laws and governmental regulations governing the
Premises and make all repairs necessary to keep the Premises in the condition as
existed on the Commencement Date (or on any later date that the improvements may
have been installed), excepting ordinary wear and tear, including without
limitation the electrical and mechanical systems, all glass, windows, doors,
door closures, hardware, fixtures, electrical, plumbing, fire extinguisher
equipment and other equipment. Any damage or deterioration of the Premises shall
not be deemed ordinary wear and tear if the same could have been prevented by
good maintenance practices by Tenant. As part of its maintenance obligations
hereunder, Tenant shall, at Landlord's request, provide Landlord with copies of
all maintenance schedules, reports and notices prepared by, for or on behalf of
Tenant. All repairs shall be at least equal in quality to the original work,
shall be made only by a licensed contractor approved in writing in advance by
Landlord (which approval shall not be unreasonably withheld) and shall be made
only at the time or times approved by Landlord. Any contractor utilized by
Tenant shall be subject to Landlord's standard requirements for contractors, as
modified from time to time. Landlord may impose reasonable restrictions and
requirements with respect to repairs, as provided in Section 7.3, and the
provisions of Section 7.4 shall apply to all repairs. Alternatively, Landlord
may elect to make any such repair on behalf of Tenant and at Tenant's expense,
and Tenant shall promptly
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reimburse Landlord for all costs incurred upon submission of an invoice, except
for those costs incurred by Landlord in connection with the performance of its
obligations under Section 7.2 below.
SECTION 7.2. LANDLORD'S MAINTENANCE AND REPAIR. Subject to Section 7.1 and
Article XI, Landlord shall provide service, maintenance and repair with respect
to the roof, foundations, and footings of the Building, all landscaping,
walkways, parking areas, Common Areas, exterior lighting, the air conditioning,
ventilating or heating equipment servicing the Premises, and the exterior
surfaces of the exterior walls of the Building, except that Tenant at its
expense shall make all repairs which Landlord deems reasonably necessary as a
result of the act or negligence of Tenant, its agents, employees, invitees,
subtenants or contractors. Landlord shall have the right to employ or designate
any reputable person or firm, including any employee or agent of Landlord or any
of Landlord's affiliates or divisions, to perform any service, repair or
maintenance function. Landlord need not make any other improvements or repairs
except as specifically required under this Lease, and nothing contained in this
Section shall limit Landlord's right to reimbursement from Tenant for
maintenance, repair costs and replacement costs as provided elsewhere in this
Lease. Tenant understands that it shall not make repairs at Landlord's expense
or by rental offset. Tenant further understands that Landlord shall not be
required to make any repairs to the roof, foundations, footings, structural,
electrical or mechanical systems unless and until Tenant has notified Landlord
in writing of the need for such repair and Landlord shall have a reasonable
period of time thereafter to commence and complete said repair, if warranted.
All costs of any maintenance and repairs on the part of Landlord provided
hereunder shall be considered part of Project Costs.
SECTION 7.3. ALTERATIONS. Tenant shall make no alterations, additions or
improvements to the Premises without the prior written consent of Landlord,
which consent may be given or withheld in Landlord's sole discretion.
Notwithstanding the foregoing, Landlord shall not unreasonably withhold its
consent to any alterations, additions or improvements to the Premises which cost
less than One Dollar ($1.00) per square foot of the improved portions of the
Premises (excluding warehouse square footage) and do not (i) affect the exterior
of the Building or outside areas (or be visible from adjoining sites), or (ii)
affect or penetrate any of the structural portions of the Building, including
but not limited to the roof, or (iii) require any change to the basic floor plan
of the Premises, any change to any structural or mechanical systems of the
Premises, or any governmental permit as a prerequisite to the construction
thereof, or (iv) interfere in any manner with the proper functioning of or
Landlord's access to any mechanical, electrical, plumbing or HVAC systems,
facilities or equipment located in or serving the Building, or (v) diminish the
value of the Premises. Landlord may impose, as a condition to its consent, any
requirements that Landlord in its discretion may deem reasonable or desirable,
including but not limited to a requirement that all work be covered by a lien
and completion bond satisfactory to Landlord and requirements as to the manner,
time, and contractor for performance of the work. Tenant shall obtain all
required permits for the work and shall perform the work in compliance with all
applicable laws, regulations and ordinances, all covenants, conditions and
restrictions affecting the Project, and the Rules and Regulations (hereafter
defined). Tenant understands and agrees that Landlord shall be entitled to a
supervision fee in the amount of five percent (5%) of the cost of the work. If
any governmental entity requires, as a condition to any proposed alterations,
additions or improvements to the Premises by Tenant, that improvements be made
to the Common Areas, and if Landlord consents to such improvements to the Common
Areas, then Tenant shall, at Tenant's sole expense, make such required
improvements to the Common Areas in such manner, utilizing such materials, and
with such contractors (including, if required by Landlord, Landlord's
contractors) as Landlord may require in its sole discretion. Under no
circumstances shall Tenant make any improvement which incorporates any Hazardous
Materials, including without limitation asbestos-containing construction
materials into the Premises. Any request for Landlord's consent shall be made in
writing and shall contain architectural plans describing the work in detail
reasonably satisfactory to Landlord. Unless Landlord otherwise agrees in
writing, all alterations, additions or improvements affixed to the Premises
(excluding moveable trade fixtures and furniture) shall become the property of
Landlord and shall be surrendered with the Premises at the end of the Term,
except that Landlord may, by notice to Tenant, require Tenant to remove by the
Expiration Date, or sooner termination date of this Lease, all or any
alterations, decorations, fixtures, additions, improvements and the like
installed either by Tenant or by Landlord at Tenant's request and to repair any
damage to the Premises arising from that removal. Except as otherwise provided
in this Lease or in any Exhibit to this Lease, should Landlord make any
alteration or improvement to the Premises for Tenant, Landlord shall be entitled
to prompt reimbursement from Tenant for all costs incurred.
SECTION 7.4. MECHANIC'S LIENS. Tenant shall keep the Premises free from any
liens arising out of any work performed, materials furnished, or obligations
incurred by or for Tenant. Upon request by Landlord, Tenant shall promptly cause
any such lien to be released by posting a bond in accordance with California
Civil Code Section 3143 or any successor statute. In the event that Tenant shall
not, within thirty (30) days following the imposition of any lien, cause the
lien to be released of record by payment or posting of a proper bond, Landlord
shall have, in addition to all other available remedies, the right to cause the
lien to be released by any means it deems proper, including payment of or
defense against the claim giving rise to the lien. All expenses so incurred by
Landlord, including Landlord's attorneys' fees, and any consequential or other
damages incurred by Landlord arising out of such lien, shall be reimbursed by
Tenant promptly following Landlord's demand, together with interest from the
date of payment by Landlord at the maximum rate permitted by law until paid.
Tenant shall give Landlord no less than twenty (20) days' prior notice in
writing before commencing construction of any kind on the Premises so that
Landlord may post and maintain notices of nonresponsibility on the Premises.
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SECTION 7.5. ENTRY AND INSPECTION. Landlord shall at all reasonable times,
upon written or oral notice (except in emergencies, when no notice shall be
required) have the right to enter the Premises to inspect them, to supply
services in accordance with this Lease, to protect the interests of Landlord in
the Premises, and to submit the Premises to prospective or actual purchasers or
encumbrance holders (or, during the last one hundred and eighty (180) days of
the Term or when an uncured Tenant default exists, to prospective tenants), all
without being deemed to have caused an eviction of Tenant and without abatement
of rent except as provided elsewhere in this Lease. Landlord shall have the
right, if desired, to retain a key which unlocks all of the doors in the
Premises, excluding Tenant's vaults and safes, and Landlord shall have the right
to use any and all means which Landlord may deem proper to open the doors in an
emergency in order to obtain entry to the Premises, and any entry to the
Premises obtained by Landlord shall not under any circumstances be deemed to be
a forcible or unlawful entry into, or a detainer of, the Premises, or any
eviction of Tenant from the Premises.
SECTION 7.6. [INTENTIONALLY DELETED].
ARTICLE VIII. TAXES AND ASSESSMENTS ON TENANT'S PROPERTY
Tenant shall be liable for and shall pay, at least ten (10) days before
delinquency, all taxes and assessments levied against all personal property of
Tenant located in the Premises, against all improvements to the Premises made by
Landlord or Tenant which are above Landlord's Project standard in quality and/or
quantity for comparable space within the Project ("Above Standard
Improvements"), and against any alterations, additions or like improvements made
to the Premises by or on behalf of Tenant. When possible Tenant shall cause its
personal property, Above Standard Improvements and alterations to be assessed
and billed separately from the real property of which the Premises form a part.
If any taxes on Tenant's personal property, Above Standard Improvements and/or
alterations are levied against Landlord or Landlord's property and if Landlord
pays the same, or if the assessed value of Landlord's property is increased by
the inclusion of a value placed upon the personal property, Above Standard
Improvements and/or alterations of Tenant and if Landlord pays the taxes based
upon the increased assessment, Tenant shall pay to Landlord the taxes so levied
against Landlord or the proportion of the taxes resulting from the increase in
the assessment. In calculating what portion of any tax bill which is assessed
against Landlord separately, or Landlord and Tenant jointly, is attributable to
Tenant's Above Standard Improvements, alterations and personal property,
Landlord's reasonable determination shall be conclusive.
ARTICLE IX. ASSIGNMENT AND SUBLETTING
SECTION 9.1. RIGHTS OF PARTIES.
(a) Notwithstanding any provision of this Lease to the contrary, Tenant
will not, either voluntarily or by operation of law, assign, sublet, encumber,
or otherwise transfer all or any part of Tenant's interest in this lease, or
permit the Premises to be occupied by anyone other than Tenant, without
Landlord's prior written consent, which consent shall not unreasonably be
withheld in accordance with the provisions of Section 9.1(b). No assignment
(whether voluntary, involuntary or by operation of law) and no subletting shall
be valid or effective without Landlord's prior written consent and, at
Landlord's election, any such assignment or subletting or attempted assignment
or subletting shall constitute a material default of this Lease. Landlord shall
not be deemed to have given its consent to any assignment or subletting by any
other course of action, including its acceptance of any name for listing in the
Building directory. To the extent not prohibited by provisions of the Bankruptcy
Code, 11 U.S.C. Section 101 et seq. (the "Bankruptcy Code"), including Section
365(f)(1), Tenant on behalf of itself and its creditors, administrators and
assigns waives the applicability of Section 365(e) of the Bankruptcy Code unless
the proposed assignee of the Trustee for the estate of the bankrupt meets
Landlord's standard for consent as set forth in Section 9.1(b) of this Lease. If
this Lease is assigned to any person or entity pursuant to the provisions of the
Bankruptcy Code, any and all monies or other considerations to be delivered in
connection with the assignment shall be delivered to Landlord, shall be and
remain the exclusive property of Landlord and shall not constitute property of
Tenant or of the estate of Tenant within the meaning of the Bankruptcy Code. Any
person or entity to which this Lease is assigned pursuant to the provisions of
the Bankruptcy Code shall be deemed to have assumed all of the obligations
arising under this Lease on and after the date of the assignment, and shall upon
demand execute and deliver to Landlord an instrument confirming that assumption.
(b If Tenant desires to transfer an interest in this Lease, it shall
first notify Landlord of its desire and shall submit in writing to Landlord: (i)
the name and address of the proposed transferee; (ii) the nature of any proposed
subtenant's or assignee's business to be carried on in the Premises; (iii) the
terms and provisions of any proposed sublease or assignment, including a copy of
the proposed assignment or sublease form; (iv) evidence of insurance of the
proposed assignee or subtenant complying with the requirements of Exhibit D
hereto; (v) a completed Environmental Questionnaire from the proposed assignee
or subtenant; and (vi) any other information requested by Landlord and
reasonably related to the transfer. Except as provided in Subsection (c) of this
Section,
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Landlord shall not unreasonably withhold its consent, provided: (1) the use of
the Premises will be consistent with the provisions of this Lease and with
Landlord's commitment to other tenants of the Building and Project; (2) the
proposed assignee or subtenant has not been required by any prior landlord,
lender or governmental authority to take remedial action in connection with
Hazardous Materials contaminating a property arising out of the proposed
assignee's or subtenant's actions or use of the property in question and is not
subject to any enforcement order issued by any governmental authority in
connection with the use, disposal or storage of a Hazardous Material; (3) at
Landlord's election, insurance requirements shall be brought into conformity
with Landlord's then current leasing practice; (4) any proposed subtenant or
assignee demonstrates that it is financially responsible by submission to
Landlord of all reasonable information as Landlord may request concerning the
proposed subtenant or assignee, including, but not limited to, a balance sheet
of the proposed subtenant or assignee as of a date within ninety (90) days of
the request for Landlord's consent, statements of income or profit and loss of
the proposed subtenant or assignee for the two-year period preceding the request
for Landlord's consent, and/or a certification signed by the proposed subtenant
or assignee that it has not been evicted or been in arrears in rent at any other
leased premises for the 3-year period preceding the request for Landlord's
consent; (5) any proposed subtenant or assignee demonstrates to Landlord's
reasonable satisfaction a record of successful experience in business; (6) the
proposed assignee or subtenant is not an existing tenant of the Building or
Project or a prospect with whom Landlord is negotiating to become a tenant at
the Building or Project; and (7) the proposed transfer will not impose
additional burdens or adverse tax effects on Landlord. If Tenant has any
exterior sign rights under this Lease, such rights are personal to Tenant and
may not be assigned or transferred to any assignee of this Lease or subtenant of
the Premises without Landlord's prior written consent, which may be withheld in
Landlord's sole and absolute discretion.
If Landlord consents to the proposed transfer, Tenant may within ninety
(90) days after the date of the consent effect the transfer upon the terms
described in the information furnished to Landlord; provided that any material
change in the terms shall be subject to Landlord's consent as set forth in this
Section. Landlord shall approve or disapprove any requested transfer within ten
(10) days following receipt of Tenant's written request, the information set
forth above, and the fee set forth below.
(c) Notwithstanding the provisions of Subsection (b) above, in lieu of
consenting to a proposed assignment or subletting, Landlord may elect to (i)
sublease the Premises (or the portion proposed to be subleased), or take an
assignment of Tenant's interest in this Lease, upon the same terms as offered to
the proposed subtenant or assignee (excluding terms relating to the purchase of
personal property, the use of Tenant's name or the continuation of Tenant's
business), or (ii) terminate this Lease as to the portion of the Premises
proposed to be subleased or assigned with a proportionate abatement in the rent
payable under this Lease, effective on the date that the proposed sublease or
assignment would have become effective. Landlord may thereafter, at its option,
assign or re-let any space so recaptured to any third party, including without
limitation the proposed transferee of Tenant.
(d) Tenant agrees that fifty percent (50%) of any amounts paid by the
assignee or subtenant, however described, in excess of (i) the Basic Rent
payable by Tenant hereunder, or in the case of a sublease of a portion of the
Premises, in excess of the Basic Rent reasonably allocable to such portion, plus
(ii) Tenant's direct out-of-pocket costs which Tenant certifies to Landlord have
been paid to provide occupancy related services to such assignee or subtenant of
a nature commonly provided by landlords of similar space, shall be the property
of Landlord and such amounts shall be payable directly to Landlord by the
assignee or subtenant or, at Landlord's option, by Tenant. At Landlord's
request, a written agreement shall be entered into by and among Tenant, Landlord
and the proposed assignee or subtenant confirming the requirements of this
subsection.
(e) Tenant shall pay to Landlord a fee of Five Hundred Dollars ($500.00)
if and when any transfer hereunder is requested by Tenant. Such fee is hereby
acknowledged as a reasonable amount to reimburse Landlord for its costs of
review and evaluation of a proposed assignee/sublessee, and Landlord shall not
be obligated to commence such review and evaluation unless and until such fee is
paid.
SECTION 9.2. EFFECT OF TRANSFER. No subletting or assignment, even with the
consent of Landlord, shall relieve Tenant of its obligation to pay rent and to
perform all its other obligations under this Lease. Moreover, Tenant shall
indemnify and hold Landlord harmless, as provided in Section 10.3, for any act
or omission by an assignee or subtenant. Each assignee, other than Landlord,
shall be deemed to assume all obligations of Tenant under this Lease and shall
be liable jointly and severally with Tenant for the payment of all rent, and for
the due performance of all of Tenant's obligations, under this Lease. No
transfer shall be binding on Landlord unless any document memorializing the
transfer is delivered to Landlord and both the assignee/subtenant and Tenant
deliver to Landlord an executed consent to transfer instrument prepared by
Landlord and consistent with the requirements of this Article. The acceptance by
Landlord of any payment due under this Lease from any other person shall not be
deemed to be a waiver by Landlord of any provision of this Lease or to be a
consent to any transfer. Consent by Landlord to one or more transfers shall not
operate as a waiver or estoppel to the future enforcement by Landlord of its
rights under this Lease.
SECTION 9.3. SUBLEASE REQUIREMENTS. The following terms and conditions shall
apply to any subletting by Tenant of all or any part of the Premises and shall
be deemed included in each sublease:
(a) Each and every provision contained in this Lease (other than with
respect to the payment of rent
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hereunder) is incorporated by reference into and made a part of such sublease,
with "Landlord" hereunder meaning the sublandlord therein and "Tenant" hereunder
meaning the subtenant therein.
(b) Tenant hereby irrevocably assigns to Landlord all of Tenant's
interest in all rentals and income arising from any sublease of the Premises,
and Landlord may collect such rent and income and apply same toward Tenant's
obligations under this Lease; provided, however, that until a default occurs in
the performance of Tenant's obligations under this Lease, Tenant shall have the
right to receive and collect the sublease rentals. Landlord shall not, by reason
of this assignment or the collection of sublease rentals, be deemed liable to
the subtenant for the performance of any of Tenant's obligations under the
sublease. Tenant hereby irrevocably authorizes and directs any subtenant, upon
receipt of a written notice from Landlord stating that an uncured default exists
in the performance of Tenant's obligations under this Lease, to pay to Landlord
all sums then and thereafter due under the sublease. Tenant agrees that the
subtenant may rely on that notice without any duty of further inquiry and
notwithstanding any notice or claim by Tenant to the contrary. Tenant shall have
no right or claim against the subtenant or Landlord for any rentals so paid to
Landlord.
(c) In the event of the termination of this Lease, Landlord may, at its
sole option, take over Tenant's entire interest in any sublease and, upon notice
from Landlord, the subtenant shall attorn to Landlord. In no event, however,
shall Landlord be liable for any previous act or omission by Tenant under the
sublease or for the return of any advance rental payments or deposits under the
sublease that have not been actually delivered to Landlord, nor shall Landlord
be bound by any sublease modification executed without Landlord's consent or for
any advance rental payment by the subtenant in excess of one month's rent. The
general provisions of this Lease, including without limitation those pertaining
to insurance and indemnification, shall be deemed incorporated by reference into
the sublease despite the termination of this Lease.
SECTION 9.4. CERTAIN TRANSFERS. The sale of all or substantially all of
Tenant's assets (other than bulk sales in the ordinary course of business) or,
if Tenant is a corporation, an unincorporated association, or a partnership, the
transfer, assignment or hypothecation of any stock or interest in such
corporation, association, or partnership in the aggregate of twenty-five percent
(25%) (except for publicly traded shares of stock constituting a transfer of
twenty-five percent (25%) or more in the aggregate, so long as no change in the
controlling interest of Tenant occurs as a result thereof) shall be deemed an
assignment within the meaning and provisions of this Article. Notwithstanding
the foregoing, Landlord's consent shall not be required for the assignment of
this Lease as a result of a merger by Tenant with or into another entity, so
long as (i) the net worth of the successor entity after such merger is at least
equal to the greater of the net worth of Tenant as of the execution of this
Lease by Landlord or the net worth of Tenant immediately prior to the date of
such merger, evidence of which, satisfactory to Landlord, shall be presented to
Landlord prior to such merger, (ii) Tenant shall provide to Landlord, prior to
such merger, written notice of such merger and such assignment documentation and
other information as Landlord may request in connection therewith, and (iii) all
of the other terms and requirements of this Article shall apply with respect to
such assignment.
ARTICLE X. INSURANCE AND INDEMNITY
SECTION 10.1. TENANT'S INSURANCE. Tenant, at its sole cost and expense,
shall provide and maintain in effect the insurance described in Exhibit D.
Evidence of that insurance must be delivered to Landlord prior to the
Commencement Date.
SECTION 10.2. LANDLORD'S INSURANCE. Landlord may, at its election, provide
any or all of the following types of insurance, with or without deductible and
in amounts and coverages as may be determined by Landlord in its discretion:
"all risk" property insurance, subject to standard exclusions, covering the
Building or Project, and such other risks as Landlord or its mortgagees may from
time to time deem appropriate, including leasehold improvements made by
Landlord, and commercial general liability coverage. Landlord shall not be
required to carry insurance of any kind on Tenant's property, including
leasehold improvements, trade fixtures, furnishings, equipment, plate glass,
signs and all other items of personal property, and shall not be obligated to
repair or replace that property should damage occur. All proceeds of insurance
maintained by Landlord upon the Building and Project shall be the property of
Landlord, whether or not Landlord is obligated to or elects to make any repairs.
At Landlord's option, Landlord may self-insure all or any portion of the risks
for which Landlord elects to provide insurance hereunder.
SECTION 10.3. TENANT'S INDEMNITY. To the fullest extent permitted by law,
Tenant shall defend, indemnify, protect, save and hold harmless Landlord, its
agents, and any and all affiliates of Landlord, including, without limitation,
any corporations or other entities controlling, controlled by or under common
control with Landlord, from and against any and all claims, liabilities, costs
or expenses arising either before or after the Commencement Date from Tenant's
use or occupancy of the Premises, the Building or the Common Areas, or from the
conduct of its business, or from any activity, work, or thing done, permitted or
suffered by Tenant or its agents, employees, invitees or licensees in or about
the Premises, the Building or the Common Areas, or from any default in the
performance of any obligation on Tenant's part to be performed under this Lease,
or from any act or negligence
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of Tenant or its agents, employees, visitors, patrons, guests, invitees or
licensees. Landlord may, at its option, require Tenant to assume Landlord's
defense in any action covered by this Section through counsel satisfactory to
Landlord. The provisions of this Section shall expressly survive the expiration
or sooner termination of this Lease.
SECTION 10.4. LANDLORD'S NONLIABILITY. Landlord shall not be liable to
Tenant, its employees, agents and invitees, and Tenant hereby waives all claims
against Landlord for loss of or damage to any property, or loss or interruption
of business or income, or any other loss, cost, damage, injury or liability
whatsoever (including without limitation any consequential damages and lost
profit or opportunity costs) resulting from, but not limited to, Acts of God,
acts of civil disobedience or insurrection, acts or omissions of other tenants
within the Project or their agents, employees, contractors, guests or invitees,
fire, explosion, falling plaster, steam, gas, electricity, water or rain which
may leak or flow from or into any part of the Premises or from the breakage,
leakage, obstruction or other defects of the pipes, sprinklers, wires,
appliances, plumbing, air conditioning, electrical works or other fixtures in
the Building, whether the damage or injury results from conditions arising in
the Premises or in other portions of the Building unless caused by the sole
active negligence or willful misconduct of Landlord, its employees or authorized
agents (provided, however, Landlord shall in no event be liable to Tenant, its
employees, agents, or invitees, and Tenant hereby waives all claims against
Landlord, for (i) loss or interruption of Tenant's business or income
(including, without limitation, any consequential damages and lost profit or
opportunity costs), and/or (ii) any other loss, cost, damage, injury or
liability whatsoever resulting from the acts or omissions (criminal or
otherwise) of any third parties (other than the sole active negligence or
willful misconduct of Landlord's employees or authorized agents), including,
without limitation, any other tenants of the Project or their agents, employees,
contractors, guests or invitees. It is understood that any such condition may
require the temporary evacuation or closure of all or a portion of the Building.
Except as provided in Sections 11.1 and 12.1 below, there shall be no abatement
of rent and no liability of Landlord by reason of any injury to or interference
with Tenant's business (including without limitation consequential damages and
lost profit or opportunity costs) arising from the making of any repairs,
alterations or improvements to any portion of the Building, including repairs to
the Premises, nor shall any related activity by Landlord constitute an actual or
constructive eviction; provided, however, that in making repairs, alterations or
improvements, Landlord shall interfere as little as reasonably practicable with
the conduct of Tenant's business in the Premises. Neither Landlord nor its
agents shall be liable for interference with light or other similar intangible
interests. Tenant shall immediately notify Landlord in case of fire or accident
in the Premises, the Building or the Project and of defects in any improvements
or equipment.
SECTION 10.5. WAIVER OF SUBROGATION. Landlord and Tenant each hereby waives
all rights of recovery against the other and the other's agents on account of
loss and damage occasioned to the property of such waiving party to the extent
only that such loss or damage is required to be insured against under any "all
risk" property insurance policies required by this Article X; provided however,
that (i) the foregoing waiver shall not apply to the extent of Tenant's
obligations to pay deductibles under any such policies and this Lease, and (ii)
if any loss is due to the act, omission or negligence or willful misconduct of
Tenant or its agents, employees, contractors, guests or invitees, Tenant's
liability insurance shall be primary and shall cover all losses and damages
prior to any other insurance hereunder. By this waiver it is the intent of the
parties that neither Landlord nor Tenant shall be liable to any insurance
company (by way of subrogation or otherwise) insuring the other party for any
loss or damage insured against under any "all-risk" property insurance policies
required by this Article, even though such loss or damage might be occasioned by
the negligence of such party, its agents, employees, contractors, guests or
invitees. The provisions of this Section shall not limit the indemnification
provisions elsewhere contained in this Lease.
ARTICLE XI. DAMAGE OR DESTRUCTION
SECTION 11.1. RESTORATION.
(a) If the Building of which the Premises are a part is damaged,
Landlord shall repair that damage as soon as reasonably possible, at its
expense, unless: (i) Landlord reasonably determines that the cost of repair is
not covered by Landlord's fire and extended coverage insurance plus such
additional amounts Tenant elects, at its option, to contribute, excluding
however the deductible (for which Tenant shall be responsible for Tenant's
Share); (ii) Landlord reasonably determines that the Premises cannot, with
reasonable diligence, be fully repaired by Landlord (or cannot be safely
repaired because of the presence of hazardous factors, including without
limitation Hazardous Materials, earthquake faults, and other similar dangers)
within two hundred seventy (270) days after the date of the damage; (iii) an
event of default by Tenant has occurred and is continuing at the time of such
damage; or (iv) the damage occurs during the final twelve (12) months of the
Term. Should Landlord elect not to repair the damage for one of the preceding
reasons, Landlord shall so notify Tenant in writing within sixty (60) days after
the damage occurs and this Lease shall terminate as of the date of that notice.
(b) Unless Landlord elects to terminate this Lease in accordance with
subsection (a) above, this Lease shall continue in effect for the remainder of
the Term; provided that so long as Tenant is not in default under this Lease, if
the damage is so extensive that Landlord reasonably determines that the Premises
cannot, with reasonable diligence, be repaired by Landlord (or cannot be safely
repaired because of the presence of hazardous factors, earthquake faults, and
other similar dangers) so as to allow Tenant's substantial use and enjoyment of
the Premises
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within two hundred seventy (270) days after the date of damage, then Tenant may
elect to terminate this Lease by written notice to Landlord within the sixty
(60) day period stated in subsection (a).
(c) Commencing on the date of any damage to the Building, and ending on
the sooner of the date the damage is repaired or the date this Lease is
terminated, the rental to be paid under this Lease shall be abated in the same
proportion that the floor area of the Premises that is rendered unusable by the
damage from time to time bears to the total floor area of the Premises, but only
to the extent that any business interruption insurance proceeds are received by
Landlord therefor from Tenant's insurance described in Exhibit D.
(d) Notwithstanding the provisions of subsections (a), (b) and (c) of
this Section, and subject to the provisions of Section 10.5 above, the cost of
any repairs shall be borne by Tenant, and Tenant shall not be entitled to rental
abatement or termination rights, if the damage is due to the fault or neglect of
Tenant or its employees, subtenants, invitees or representatives. In addition,
the provisions of this Section shall not be deemed to require Landlord to repair
any improvements or fixtures that Tenant is obligated to repair or insure
pursuant to any other provision of this Lease.
(e) Tenant shall fully cooperate with Landlord in removing Tenant's
personal property and any debris from the Premises to facilitate all inspections
of the Premises and the making of any repairs. Notwithstanding anything to the
contrary contained in this Lease, if Landlord in good faith believes there is a
risk of injury to persons or damage to property from entry into the Building or
Premises following any damage or destruction thereto, Landlord may restrict
entry into the Building or the Premises by Tenant, its employees, agents and
contractors in a non-discriminatory manner, without being deemed to have
violated Tenant's rights of quiet enjoyment to, or made an unlawful detainer of,
or evicted Tenant from, the Premises. Upon request, Landlord shall consult with
Tenant to determine if there are safe methods of entry into the Building or the
Premises solely in order to allow Tenant to retrieve files, data in computers,
and necessary inventory, subject however to all indemnities and waivers of
liability from Tenant to Landlord contained in this Lease and any additional
indemnities and waivers of liability which Landlord may require.
SECTION 11.2. LEASE GOVERNS. Tenant agrees that the provisions of this
Lease, including without limitation Section 11.1, shall govern any damage or
destruction and shall accordingly supersede any contrary statute or rule of law.
ARTICLE XII. EMINENT DOMAIN
SECTION 12.1. TOTAL OR PARTIAL TAKING. If all or a material portion of the
Premises is taken by any lawful authority by exercise of the right of eminent
domain, or sold to prevent a taking, either Tenant or Landlord may terminate
this Lease effective as of the date possession is required to be surrendered to
the authority. In the event title to a portion of the Building or Project, other
than the Premises, is taken or sold in lieu of taking, and if Landlord elects to
restore the Building in such a way as to alter the Premises materially, either
party may terminate this Lease, by written notice to the other party, effective
on the date of vesting of title. In the event neither party has elected to
terminate this Lease as provided above, then Landlord shall promptly, after
receipt of a sufficient condemnation award, proceed to restore the Premises to
substantially their condition prior to the taking, and a proportionate allowance
shall be made to Tenant for the rent corresponding to the time during which, and
to the part of the Premises of which, Tenant is deprived on account of the
taking and restoration. In the event of a taking, Landlord shall be entitled to
the entire amount of the condemnation award without deduction for any estate or
interest of Tenant; provided that nothing in this Section shall be deemed to
give Landlord any interest in, or prevent Tenant from seeking any award against
the taking authority for, the taking of personal property and fixtures belonging
to Tenant or for relocation or business interruption expenses recoverable from
the taking authority.
SECTION 12.2. TEMPORARY TAKING. No temporary taking of the Premises shall
terminate this Lease or give Tenant any right to abatement of rent, and any
award specifically attributable to a temporary taking of the Premises shall
belong entirely to Tenant. A temporary taking shall be deemed to be a taking of
the use or occupancy of the Premises for a period of not to exceed one hundred
eighty (180) days.
SECTION 12.3. TAKING OF PARKING AREA. In the event there shall be a taking
of the parking area such that Landlord can no longer provide sufficient parking
to comply with this Lease, Landlord may substitute reasonably equivalent parking
in a location reasonably close to the Building; provided that if Landlord fails
to make that substitution within sixty (60) days following the taking and if the
taking materially impairs Tenant's use and enjoyment of the Premises, Tenant
may, at its option, terminate this Lease by written notice to Landlord. If this
Lease is not so terminated by Tenant, there shall be no abatement of rent and
this Lease shall continue in effect.
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ARTICLE XIII. SUBORDINATION; ESTOPPEL CERTIFICATE; FINANCIALS
SECTION 13.1. SUBORDINATION. At the option of Landlord, this Lease shall be
either superior or subordinate to all ground or underlying leases, mortgages and
deeds of trust, if any, which may hereafter affect the Building, and to all
renewals, modifications, consolidations, replacements and extensions thereof;
provided, that so long as Tenant is not in default under this Lease, this Lease
shall not be terminated or Tenant's quiet enjoyment of the Premises disturbed in
the event of termination of any such ground or underlying lease, or the
foreclosure of any such mortgage or deed of trust, to which Tenant has
subordinated this Lease pursuant to this Section. In the event of a termination
or foreclosure, Tenant shall become a tenant of and attorn to the
successor-in-interest to Landlord upon the same terms and conditions as are
contained in this Lease, and shall execute any instrument reasonably required by
Landlord's successor for that purpose. Tenant shall also, upon written request
of Landlord, execute and deliver all instruments as may be required from time to
time to subordinate the rights of Tenant under this Lease to any ground or
underlying lease or to the lien of any mortgage or deed of trust (provided that
such instruments include the nondisturbance and attornment provisions set forth
above), or, if requested by Landlord, to subordinate, in whole or in part, any
ground or underlying lease or the lien of any mortgage or deed of trust to this
Lease.
SECTION 13.2. ESTOPPEL CERTIFICATE.
(a) Tenant shall, at any time upon not less than ten (10) days prior
written notice from Landlord, execute, acknowledge and deliver to Landlord, in
any form that Landlord may reasonably require, a statement in writing (i)
certifying that this Lease is unmodified and in full force and effect (or, if
modified, stating the nature of the modification and certifying that this Lease,
as modified, is in full force and effect) and the dates to which the rental,
additional rent and other charges have been paid in advance, if any, and (ii)
acknowledging that, to Tenant's knowledge, there are no uncured defaults on the
part of Landlord, or specifying each default if any are claimed, and (iii)
setting forth all further information that Landlord may reasonably require.
Tenant's statement may be relied upon by any prospective purchaser or
encumbrancer of all or any portion of the Building or Project.
(b) Notwithstanding any other rights and remedies of Landlord, Tenant's
failure to deliver any estoppel statement within the provided time shall be
conclusive upon Tenant that (i) this Lease is in full force and effect, without
modification except as may be represented by Landlord, (ii) there are no uncured
defaults in Landlord's performance, and (iii) not more than one month's rental
has been paid in advance.
SECTION 13.3 FINANCIALS.
(a) Tenant shall deliver to Landlord, prior to the execution of this
Lease and thereafter at any time upon Landlord's request, Tenant's financial
statements, certified true, accurate and complete by the chief financial officer
of Tenant, including a balance sheet and profit and loss statement for the most
recent prior year (collectively, the "Statements"), which Statements shall
accurately and completely reflect the financial condition of Tenant. Landlord
agrees that it will keep the Statements confidential, except that Landlord shall
have the right to deliver the same to any proposed purchaser of the Building or
Project, and to any encumbrancer of all or any portion of the Building or
Project.
(b) Tenant acknowledges that Landlord is relying on the Statements in
its determination to enter into this Lease, and Tenant represents to Landlord,
which representation shall be deemed made on the date of this Lease and again on
the Commencement Date, that no material change in the financial condition of
Tenant, as reflected in the Statements, has occurred since the date Tenant
delivered the Statements to Landlord. The Statements are represented and
warranted by Tenant to be correct and to accurately and fully reflect Tenant's
true financial condition as of the date of submission by any Statements to
Landlord.
ARTICLE XIV. DEFAULTS AND REMEDIES
SECTION 14.1. TENANT'S DEFAULTS. In addition to any other event of default
set forth in this Lease, the occurrence of any one or more of the following
events shall constitute a default by Tenant:
(a) The failure by Tenant to make any payment of rent or additional rent
required to be made by Tenant, as and when due, where the failure continues for
a period of three (3) days after written notice from Landlord to Tenant;
provided, however, that any such notice shall be in lieu of, and not in addition
to, any notice required under California Code of Civil Procedure Section 1161
and 1161(a) as amended. For purposes of these default and remedies provisions,
the term "additional rent" shall be deemed to include all amounts of any type
whatsoever other than Basic Rent to be paid by Tenant pursuant to the terms of
this Lease.
(b) Assignment, sublease, encumbrance or other transfer of the Lease by
Tenant, either voluntarily or by operation of law, whether by judgment,
execution, transfer by intestacy or testacy, or other means, without the prior
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written consent of Landlord.
(c) The discovery by Landlord that any financial statement provided by
Tenant, or by any affiliate, successor or guarantor of Tenant, was materially
false.
(d) The failure of Tenant to timely and fully provide any subordination
agreement, estoppel certificate or financial statements in accordance with the
requirements of Article XIII.
(e) The failure or inability by Tenant to observe or perform any of the
express or implied covenants or provisions of this Lease to be observed or
performed by Tenant, other than as specified in any other subsection of this
Section, where the failure continues for a period of thirty (30) days after
written notice from Landlord to Tenant or such shorter period as is specified in
any other provision of this Lease; provided, however, that any such notice shall
be in lieu of, and not in addition to, any notice required under California Code
of Civil Procedure Section 1161 and 1161(a) as amended. However, if the nature
of the failure is such that more than thirty (30) days are reasonably required
for its cure, then Tenant shall not be deemed to be in default if Tenant
commences the cure within thirty (30) days, and thereafter diligently pursues
the cure to completion.
(f) (i) The making by Tenant of any general assignment for the benefit
of creditors; (ii) the filing by or against Tenant of a petition to have Tenant
adjudged a Chapter 7 debtor under the Bankruptcy Code or to have debts
discharged or a petition for reorganization or arrangement under any law
relating to bankruptcy (unless, in the case of a petition filed against Tenant,
the same is dismissed within thirty (30) days); (iii) the appointment of a
trustee or receiver to take possession of substantially all of Tenant's assets
located at the Premises or of Tenant's interest in this Lease, if possession is
not restored to Tenant within thirty (30) days; (iv) the attachment, execution
or other judicial seizure of substantially all of Tenant's assets located at the
Premises or of Tenant's interest in this Lease, where the seizure is not
discharged within thirty (30) days; or (v) Tenant's convening of a meeting of
its creditors for the purpose of effecting a moratorium upon or composition of
its debts. Landlord shall not be deemed to have knowledge of any event described
in this subsection unless notification in writing is received by Landlord, nor
shall there be any presumption attributable to Landlord of Tenant's insolvency.
In the event that any provision of this subsection is contrary to applicable
law, the provision shall be of no force or effect.
SECTION 14.2. LANDLORD'S REMEDIES.
(a) In the event of any default by Tenant, or in the event of the
abandonment of the Premises by Tenant, then in addition to any other remedies
available to Landlord, Landlord may exercise the following remedies:
(i) Landlord may terminate Tenant's right to possession of the
Premises by any lawful means, in which case this Lease shall terminate and
Tenant shall immediately surrender possession of the Premises to Landlord. Such
termination shall not affect any accrued obligations of Tenant under this Lease.
Upon termination, Landlord shall have the right to reenter the Premises and
remove all persons and property. Landlord shall also be entitled to recover from
Tenant:
(1) The worth at the time of award of the unpaid rent and
additional rent which had been earned at the time of termination;
(2) The worth at the time of award of the amount by which the
unpaid rent and additional rent which would have been earned after termination
until the time of award exceeds the amount of such loss that Tenant proves could
have been reasonably avoided;
(3) The worth at the time of award of the amount by which the
unpaid rent and additional rent for the balance of the Term after the time of
award exceeds the amount of such loss that Tenant proves could be reasonably
avoided;
(4) Any other amount necessary to compensate Landlord for all the
detriment proximately caused by Tenant's failure to perform its obligations
under this Lease or which in the ordinary course of things would be likely to
result from Tenant's default, including, but not limited to, the cost of
recovering possession of the Premises, refurbishment of the Premises, marketing
costs, commissions and other expenses of reletting, including necessary repair,
the unamortized portion of any tenant improvements and brokerage commissions
funded by Landlord in connection with this Lease, reasonable attorneys' fees,
and any other reasonable costs; and
(5) At Landlord's election, all other amounts in addition to or
in lieu of the foregoing as may be permitted by law. The term "rent" as used in
this Lease shall be deemed to mean the Basic Rent and all other sums required to
be paid by Tenant to Landlord pursuant to the terms of this Lease. Any sum,
other than Basic Rent, shall be computed on the basis of the average monthly
amount accruing during the twenty-four (24) month period immediately prior to
default, except that if it becomes necessary to compute such rental before the
twenty-four (24) month period has occurred, then the computation shall be on the
basis of the average monthly amount during the shorter period. As used in
subparagraphs (1) and (2) above, the "worth at the time of award" shall be
computed by allowing interest at the rate of ten percent (10%) per annum. As
used in subparagraph (3) above, the "worth at
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the time of award" shall be computed by discounting the amount at the discount
rate of the Federal Reserve Bank of San Francisco at the time of award plus one
percent (1%).
(ii) Landlord may elect not to terminate Tenant's right to
possession of the Premises, in which event Landlord may continue to enforce all
of its rights and remedies under this Lease, including the right to collect all
rent as it becomes due. Efforts by the Landlord to maintain, preserve or relet
the Premises, or the appointment of a receiver to protect the Landlord's
interests under this Lease, shall not constitute a termination of the Tenant's
right to possession of the Premises. In the event that Landlord elects to avail
itself of the remedy provided by this subsection (ii), Landlord shall not
unreasonably withhold its consent to an assignment or subletting of the Premises
subject to the reasonable standards for Landlord's consent as are contained in
this Lease.
(b) Landlord shall be under no obligation to observe or perform any
covenant of this Lease on its part to be observed or performed which accrues
after the date of any default by Tenant unless and until the default is cured by
Tenant, it being understood and agreed that the performance by Landlord of its
obligations under this Lease are expressly conditioned upon Tenant's full and
timely performance of its obligations under this Lease. The various rights and
remedies reserved to Landlord in this Lease or otherwise shall be cumulative
and, except as otherwise provided by California law, Landlord may pursue any or
all of its rights and remedies at the same time.
(c) No delay or omission of Landlord to exercise any right or remedy
shall be construed as a waiver of the right or remedy or of any default by
Tenant. The acceptance by Landlord of rent shall not be a (i) waiver of any
preceding breach or default by Tenant of any provision of this Lease, other than
the failure of Tenant to pay the particular rent accepted, regardless of
Landlord's knowledge of the preceding breach or default at the time of
acceptance of rent, or (ii) a waiver of Landlord's right to exercise any remedy
available to Landlord by virtue of the breach or default. The acceptance of any
payment from a debtor in possession, a trustee, a receiver or any other person
acting on behalf of Tenant or Tenant's estate shall not waive or cure a default
under Section 14.1. No payment by Tenant or receipt by Landlord of a lesser
amount than the rent required by this Lease shall be deemed to be other than a
partial payment on account of the earliest due stipulated rent, nor shall any
endorsement or statement on any check or letter be deemed an accord and
satisfaction and Landlord shall accept the check or payment without prejudice to
Landlord's right to recover the balance of the rent or pursue any other remedy
available to it. No act or thing done by Landlord or Landlord's agents during
the Term shall be deemed an acceptance of a surrender of the Premises, and no
agreement to accept a surrender shall be valid unless in writing and signed by
Landlord. No employee of Landlord or of Landlord's agents shall have any power
to accept the keys to the Premises prior to the termination of this Lease, and
the delivery of the keys to any employee shall not operate as a termination of
the Lease or a surrender of the Premises.
SECTION 14.3. LATE PAYMENTS.
(a) Any rent due under this Lease that is not received by Landlord
within five (5) days of the date when due shall bear interest at the maximum
rate permitted by law from the date due until fully paid. The payment of
interest shall not cure any default by Tenant under this Lease. In addition,
Tenant acknowledges that the late payment by Tenant to Landlord of rent will
cause Landlord to incur costs not contemplated by this Lease, the exact amount
of which will be extremely difficult and impracticable to ascertain. Those costs
may include, but are not limited to, administrative, processing and accounting
charges, and late charges which may be imposed on Landlord by the terms of any
ground lease, mortgage or trust deed covering the Premises. Accordingly, if any
rent due from Tenant shall not be received by Landlord or Landlord's designee
within five (5) days after the date due, then Tenant shall pay to Landlord, in
addition to the interest provided above, a late charge in a sum equal to the
greater of five percent (5%) of the amount overdue or Two Hundred Fifty Dollars
($250.00) for each delinquent payment. Acceptance of a late charge by Landlord
shall not constitute a waiver of Tenant's default with respect to the overdue
amount, nor shall it prevent Landlord from exercising any of its other rights
and remedies.
(b) Following each second consecutive installment of rent that is not
paid within five (5) days following notice of nonpayment from Landlord, Landlord
shall have the option (i) to require that beginning with the first payment of
rent next due, rent shall no longer be paid in monthly installments but shall be
payable quarterly three (3) months in advance and/or (ii) to require that Tenant
increase the amount, if any, of the Security Deposit by one hundred percent
(100%). Should Tenant deliver to Landlord, at any time during the Term, two (2)
or more insufficient checks, the Landlord may require that all monies then and
thereafter due from Tenant be paid to Landlord by cashier's check.
SECTION 14.4. RIGHT OF LANDLORD TO PERFORM. All covenants and agreements to
be performed by Tenant under this Lease shall be performed at Tenant's sole cost
and expense and without any abatement of rent or right of set-off. If Tenant
fails to pay any sum of money, other than rent, or fails to perform any other
act on its part to be performed under this Lease, and the failure continues
beyond any applicable grace period set forth in Section 14.1, then in addition
to any other available remedies, Landlord may, at its election make the payment
or perform the other act on Tenant's part. Landlord's election to make the
payment or perform the act on Tenant's part shall not give rise to any
responsibility of Landlord to continue making the same or similar payments or
performing the same or similar acts. Tenant shall, promptly upon demand by
Landlord, reimburse Landlord for all sums paid by Landlord and all necessary
incidental costs, together with interest at the maximum rate
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permitted by law from the date of the payment by Landlord. Landlord shall have
the same rights and remedies if Tenant fails to pay those amounts as Landlord
would have in the event of a default by Tenant in the payment of rent.
SECTION 14.5. DEFAULT BY LANDLORD. Landlord shall not be deemed to be in
default in the performance of any obligation under this Lease unless and until
it has failed to perform the obligation within thirty (30) days after written
notice by Tenant to Landlord specifying in reasonable detail the nature and
extent of the failure; provided, however, that if the nature of Landlord's
obligation is such that more than thirty (30) days are required for its
performance, then Landlord shall not be deemed to be in default if it commences
performance within the thirty (30) day period and thereafter diligently pursues
the cure to completion.
SECTION 14.6. EXPENSES AND LEGAL FEES. All sums reasonably incurred by
Landlord in connection with any event of default by Tenant under this Lease or
holding over of possession by Tenant after the expiration or earlier termination
of this Lease, including without limitation all costs, expenses and actual
accountants, appraisers, attorneys and other professional fees, and any
collection agency or other collection charges, shall be due and payable by
Tenant to Landlord on demand, and shall bear interest at the rate of ten percent
(10%) per annum. Should either Landlord or Tenant bring any action in connection
with this Lease, the prevailing party shall be entitled to recover as a part of
the action its reasonable attorneys' fees, and all other costs. The prevailing
party for the purpose of this paragraph shall be determined by the trier of the
facts.
SECTION 14.7. WAIVER OF JURY TRIAL. LANDLORD AND TENANT EACH ACKNOWLEDGES
THAT IT IS AWARE OF AND HAS HAD THE ADVICE OF COUNSEL OF ITS CHOICE WITH RESPECT
TO ITS RIGHTS TO TRIAL BY JURY, AND EACH PARTY DOES HEREBY EXPRESSLY AND
KNOWINGLY WAIVE AND RELEASE ALL SUCH RIGHTS TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER PARTY HERETO AGAINST THE OTHER
(AND/OR AGAINST ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR SUBSIDIARY OR
AFFILIATED ENTITIES) ON ANY MATTERS WHATSOEVER ARISING OUT OF OR IN ANY WAY
CONNECTED WITH THIS LEASE, TENANT'S USE OR OCCUPANCY OF THE PREMISES, AND/OR ANY
CLAIM OF INJURY OR DAMAGE.
SECTION 14.8. SATISFACTION OF JUDGMENT. The obligations of Landlord do not
constitute the personal obligations of the individual partners, trustees,
directors, officers or shareholders of Landlord or its constituent partners.
Should Tenant recover a money judgment against Landlord, such judgment shall be
satisfied only out of the proceeds of sale received upon execution of such
judgment and levied thereon against the right, title and interest of Landlord in
the Project and out of the rent or other income from such property receivable by
Landlord or out of consideration received by Landlord from the sale or other
disposition of all or any part of Landlord's right, title or interest in the
Project and no action for any deficiency may be sought or obtained by Tenant.
SECTION 14.9. LIMITATION OF ACTIONS AGAINST LANDLORD. Any claim, demand or
right of any kind by Tenant which is based upon or arises in connection with
this Lease shall be barred unless Tenant commences an action thereon within
twelve (12) months after the date that the act, omission, event or default upon
which the claim, demand or right arises, has occurred.
ARTICLE XV. END OF TERM
SECTION 15.1. HOLDING OVER. This Lease shall terminate without further
notice upon the expiration of the Term, and any holding over by Tenant after the
expiration shall not constitute a renewal or extension of this Lease, or give
Tenant any rights under this Lease, except when in writing signed by both
parties. If Tenant holds over for any period after the expiration (or earlier
termination) of the Term without the prior written consent of Landlord, such
possession shall constitute a tenancy at sufferance only; such holding over with
the prior written consent of Landlord shall constitute a month-to-month tenancy
commencing on the first (1st) day following the termination of this Lease. In
either of such events, possession shall be subject to all of the terms of this
Lease, except that the monthly Basic Rent shall be the greater of (a) one
hundred fifty percent (150%) of the Basic Rent for the month immediately
preceding the date of termination or (b) the then currently scheduled Basic Rent
for comparable space in the Building. If Tenant fails to surrender the Premises
upon the expiration of this Lease despite demand to do so by Landlord, Tenant
shall indemnify and hold Landlord harmless from all loss or liability, including
without limitation, any claims made by any succeeding tenant relating to such
failure to surrender. Acceptance by Landlord of rent after the termination shall
not constitute a consent to a holdover or result in a renewal of this Lease. The
foregoing provisions of this Section are in addition to and do not affect
Landlord's right of re-entry or any other rights of Landlord under this Lease or
at law.
SECTION 15.2. MERGER ON TERMINATION. The voluntary or other surrender of
this Lease by Tenant, or a mutual termination of this Lease, shall terminate any
or all existing subleases unless Landlord, at its option, elects in writing to
treat the surrender or termination as an assignment to it of any or all
subleases affecting the Premises.
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SECTION 15.3. SURRENDER OF PREMISES; REMOVAL OF PROPERTY. Upon the
Expiration Date or upon any earlier termination of this Lease, Tenant shall quit
and surrender possession of the Premises to Landlord in as good order, condition
and repair as when received or as hereafter may be improved by Landlord or
Tenant, reasonable wear and tear and repairs which are Landlord's obligation
excepted, and shall, without expense to Landlord, remove or cause to be removed
from the Premises all personal property and debris, except for any items that
Landlord may by written authorization allow to remain. Tenant shall repair all
damage to the Premises resulting from the removal, which repair shall include
the patching and filling of holes and repair of structural damage, provided that
Landlord may instead elect to repair any structural damage at Tenant's expense.
If Tenant shall fail to comply with the provisions of this Section, Landlord may
effect the removal and/or make any repairs, and the cost to Landlord shall be
additional rent payable by Tenant upon demand. If Tenant fails to remove
Tenant's personal property from the Premises upon the expiration of the Term,
Landlord may remove, store, dispose of and/or retain such personal property, at
Landlord's option, in accordance with then applicable laws, all at the expense
of Tenant. If requested by Landlord, Tenant shall execute, acknowledge and
deliver to Landlord an instrument in writing releasing and quitclaiming to
Landlord all right, title and interest of Tenant in the Premises.
ARTICLE XVI. PAYMENTS AND NOTICES
All sums payable by Tenant to Landlord shall be paid, without deduction or
offset, in lawful money of the United States to Landlord at its address set
forth in Item 12 of the Basic Lease Provisions, or at any other place as
Landlord may designate in writing. Unless this Lease expressly provides
otherwise, as for example in the payment of rent pursuant to Section 4.1, all
payments shall be due and payable within five (5) days after demand. All
payments requiring proration shall be prorated on the basis of a thirty (30) day
month and a three hundred sixty (360) day year. Any notice, election, demand,
consent, approval or other communication to be given or other document to be
delivered by either party to the other may be delivered in person or by courier
or overnight delivery service to the other party, or may be deposited in the
United States mail, duly registered or certified, postage prepaid, return
receipt requested, and addressed to the other party at the address set forth in
Item 12 of the Basic Lease Provisions, or if to Tenant, at that address or, from
and after the Commencement Date, at the Premises (or such other address as
Tenant may designate provided Tenant gives Landlord at least sixty (60) days
prior written notice of such other address), or may be delivered by telegram,
telex or telecopy, provided that receipt thereof is telephonically confirmed.
Either party may, by written notice to the other, served in the manner provided
in this Article, designate a different address. If any notice or other document
is sent by mail, it shall be deemed served or delivered twenty-four (24) hours
after mailing. If more than one person or entity is named as Tenant under this
Lease, service of any notice upon any one of them shall be deemed as service
upon all of them.
ARTICLE XVII. RULES AND REGULATIONS
Tenant agrees to observe faithfully and comply strictly with the Rules and
Regulations, attached as Exhibit E, and any reasonable and nondiscriminatory
amendments, modifications and/or additions as may be adopted and published by
written notice to tenants by Landlord for the safety, care, security, good
order, or cleanliness of the Premises, Building, Project and Common Areas.
Landlord shall not be liable to Tenant for any violation of the Rules and
Regulations or the breach of any covenant or condition in any lease by any other
tenant or such tenant's agents, employees, contractors, guests or invitees. One
or more waivers by Landlord of any breach of the Rules and Regulations by Tenant
or by any other tenant(s) shall not be a waiver of any subsequent breach of that
rule or any other. Tenant's failure to keep and observe the Rules and
Regulations shall constitute a default under this Lease. In the case of any
conflict between the Rules and Regulations and this Lease, this Lease shall be
controlling.
ARTICLE XVIII. BROKER'S COMMISSION
The parties recognize as the broker(s) who negotiated this Lease the
firm(s), if any, whose name(s) is (are) stated in Item 10 of the Basic Lease
Provisions, and agree that Landlord shall be responsible for the payment of
brokerage commissions to those broker(s) unless otherwise provided in this
Lease. Tenant warrants that it has had no dealings with any other real estate
broker or agent in connection with the negotiation of this Lease, and Tenant
agrees to indemnify and hold Landlord harmless from any cost, expense or
liability (including reasonable attorneys' fees) for any compensation,
commissions or charges claimed by any other real estate broker or agent employed
or claiming to represent or to have been employed by Tenant in connection with
the negotiation of this Lease. The foregoing agreement shall survive the
termination of this Lease. If Tenant fails to take possession of the Premises or
if this Lease otherwise terminates prior to the Expiration Date as the result of
failure of performance by Tenant, Landlord shall be entitled to recover from
Tenant the unamortized portion of any brokerage commission funded by Landlord in
addition to any other damages to which Landlord may be entitled.
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ARTICLE XIX. TRANSFER OF LANDLORD'S INTEREST
In the event of any transfer of Landlord's interest in the Premises, the
transferor shall be automatically relieved of all obligations on the part of
Landlord accruing under this Lease from and after the date of the transfer,
provided that any funds held by the transferor in which Tenant has an interest
shall be turned over, subject to that interest, to the transferee and Tenant is
notified of the transfer as required by law. No holder of a mortgage and/or deed
of trust to which this Lease is or may be subordinate, and no landlord under a
so-called sale-leaseback, shall be responsible in connection with the Security
Deposit, unless the mortgagee or holder of the deed of trust or the landlord
actually receives the Security Deposit. It is intended that the covenants and
obligations contained in this Lease on the part of Landlord shall, subject to
the foregoing, be binding on Landlord, its successors and assigns, only during
and in respect to their respective successive periods of ownership.
ARTICLE XX. INTERPRETATION
SECTION 20.1. GENDER AND NUMBER. Whenever the context of this Lease
requires, the words "Landlord" and "Tenant" shall include the plural as well as
the singular, and words used in neuter, masculine or feminine genders shall
include the others.
SECTION 20.2. HEADINGS. The captions and headings of the articles and
sections of this Lease are for convenience only, are not a part of this Lease
and shall have no effect upon its construction or interpretation.
SECTION 20.3. JOINT AND SEVERAL LIABILITY. If more than one person or entity
is named as Tenant, the obligations imposed upon each shall be joint and several
and the act of or notice from, or notice or refund to, or the signature of, any
one or more of them shall be binding on all of them with respect to the tenancy
of this Lease, including, but not limited to, any renewal, extension,
termination or modification of this Lease.
SECTION 20.4. SUCCESSORS. Subject to Articles IX and XIX, all rights and
liabilities given to or imposed upon Landlord and Tenant shall extend to and
bind their respective heirs, executors, administrators, successors and assigns.
Nothing contained in this Section is intended, or shall be construed, to grant
to any person other than Landlord and Tenant and their successors and assigns
any rights or remedies under this Lease.
SECTION 20.5. TIME OF ESSENCE. Time is of the essence with respect to the
performance of every provision of this Lease.
SECTION 20.6. CONTROLLING LAW. This Lease shall be governed by and
interpreted in accordance with the laws of the State of California.
SECTION 20.7. SEVERABILITY. If any term or provision of this Lease, the
deletion of which would not adversely affect the receipt of any material benefit
by either party or the deletion of which is consented to by the party adversely
affected, shall be held invalid or unenforceable to any extent, the remainder of
this Lease shall not be affected and each term and provision of this Lease shall
be valid and enforceable to the fullest extent permitted by law.
SECTION 20.8. WAIVER AND CUMULATIVE REMEDIES. One or more waivers by
Landlord or Tenant of any breach of any term, covenant or condition contained in
this Lease shall not be a waiver of any subsequent breach of the same or any
other term, covenant or condition. Consent to any act by one of the parties
shall not be deemed to render unnecessary the obtaining of that party's consent
to any subsequent act. No breach by Tenant of this Lease shall be deemed to have
been waived by Landlord unless the waiver is in a writing signed by Landlord.
The rights and remedies of Landlord under this Lease shall be cumulative and in
addition to any and all other rights and remedies which Landlord may have.
SECTION 20.9. INABILITY TO PERFORM. In the event that either party shall be
delayed or hindered in or prevented from the performance of any work or in
performing any act required under this Lease by reason of any cause beyond the
reasonable control of that party, then the performance of the work or the doing
of the act shall be excused for the period of the delay and the time for
performance shall be extended for a period equivalent to the period of the
delay. The provisions of this Section shall not operate to excuse Tenant from
the prompt payment of rent or from the timely performance of any other
obligation under this Lease within Tenant's reasonable control.
SECTION 20.10. ENTIRE AGREEMENT. This Lease and its exhibits and other
attachments cover in full each and every agreement of every kind between the
parties concerning the Premises, the Building, and the Project, and all
preliminary negotiations, oral agreements, understandings and/or practices,
except those contained in this Lease, are superseded and of no further effect.
Tenant waives its rights to rely on any representations or
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promises made by Landlord or others which are not contained in this Lease. No
verbal agreement or implied covenant shall be held to modify the provisions of
this Lease, any statute, law, or custom to the contrary notwithstanding.
SECTION 20.11. QUIET ENJOYMENT. Upon the observance and performance of all
the covenants, terms and conditions on Tenant's part to be observed and
performed, and subject to the other provisions of this Lease, Tenant shall
peaceably and quietly hold and enjoy the Premises for the Term without hindrance
or interruption by Landlord or any other person claiming by or through Landlord.
SECTION 20.12. SURVIVAL. All covenants of Landlord or Tenant which
reasonably would be intended to survive the expiration or sooner termination of
this Lease, including without limitation any warranty or indemnity hereunder,
shall so survive and continue to be binding upon and inure to the benefit of the
respective parties and their successors and assigns.
ARTICLE XXI. EXECUTION AND RECORDING
SECTION 21.1. COUNTERPARTS. This Lease may be executed in one or more
counterparts, each of which shall constitute an original and all of which shall
be one and the same agreement.
SECTION 21.2. CORPORATE AND PARTNERSHIP AUTHORITY. If Tenant is a
corporation or partnership, each individual executing this Lease on behalf of
the corporation or partnership represents and warrants that he is duly
authorized to execute and deliver this Lease on behalf of the corporation or
partnership, and that this Lease is binding upon the corporation or partnership
in accordance with its terms. Tenant shall, at Landlord's request, deliver a
certified copy of its board of directors' resolution or partnership agreement or
certificate authorizing or evidencing the execution of this Lease.
SECTION 21.3. EXECUTION OF LEASE; NO OPTION OR OFFER. The submission of this
Lease to Tenant shall be for examination purposes only, and shall not constitute
an offer to or option for Tenant to lease the Premises. Execution of this Lease
by Tenant and its return to Landlord shall not be binding upon Landlord,
notwithstanding any time interval, until Landlord has in fact executed and
delivered this Lease to Tenant, it being intended that this Lease shall only
become effective upon execution by Landlord and delivery of a fully executed
counterpart to Tenant.
SECTION 21.4. RECORDING. Tenant shall not record this Lease without the
prior written consent of Landlord. Tenant, upon the request of Landlord, shall
execute and acknowledge a "short form" memorandum of this Lease for recording
purposes.
SECTION 21.5. AMENDMENTS. No amendment or termination of this Lease shall be
effective unless in writing signed by authorized signatories of Tenant and
Landlord, or by their respective successors in interest. No actions, policies,
oral or informal arrangements, business dealings or other course of conduct by
or between the parties shall be deemed to modify this Lease in any respect.
SECTION 21.6. EXECUTED COPY. Any fully executed photocopy or similar
reproduction of this Lease shall be deemed an original for all purposes.
SECTION 21.7. ATTACHMENTS. All exhibits, amendments, riders and addenda
attached to this Lease are hereby incorporated into and made a part of this
Lease.
ARTICLE XXII. MISCELLANEOUS
SECTION 22.1. NONDISCLOSURE OF LEASE TERMS. Tenant acknowledges and agrees
that the terms of this Lease are confidential and constitute proprietary
information of Landlord. Disclosure of the terms could adversely affect the
ability of Landlord to negotiate other leases and impair Landlord's relationship
with other tenants. Accordingly, Tenant agrees that it, and its partners,
officers, directors, employees and attorneys, shall not intentionally and
voluntarily disclose the terms and conditions of this Lease to any other tenant
or apparent prospective tenant of the Building or Project, either directly or
indirectly, without the prior written consent of Landlord, provided, however,
that Tenant may disclose the terms to prospective subtenants or assignees under
this Lease and as may be otherwise required by law.
SECTION 22.2. GUARANTY. As a condition to the execution of this Lease by
Landlord, the obligations, covenants and performance of the Tenant as herein
provided shall be guaranteed in writing by the Guarantor(s) listed in Item 7 of
the Basic Lease Provisions, if any, on a form of guaranty provided by Landlord.
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SECTION 22.3. CHANGES REQUESTED BY LENDER. If, in connection with obtaining
financing for the Project, the lender shall request reasonable modifications in
this Lease as a condition to the financing, Tenant will not unreasonably
withhold or delay its consent, provided that the modifications do not materially
increase the obligations of Tenant or materially and adversely affect the
leasehold interest created by this Lease.
SECTION 22.4. MORTGAGEE PROTECTION. No act or failure to act on the part of
Landlord which would otherwise entitle Tenant to be relieved of its obligations
hereunder or to terminate this Lease shall result in such a release or
termination unless (a) Tenant has given notice by registered or certified mail
to any beneficiary of a deed of trust or mortgage covering the Building whose
address has been furnished to Tenant and (b) such beneficiary is afforded a
reasonable opportunity to cure the default by Landlord (which in no event shall
be less than sixty (60) days), including, if necessary to effect the cure, time
to obtain possession of the Building by power of sale or judicial foreclosure
provided that such foreclosure remedy is diligently pursued. Tenant agrees that
each beneficiary of a deed of trust or mortgage covering the Building is an
express third party beneficiary hereof, Tenant shall have no right or claim for
the collection of any deposit from such beneficiary or from any purchaser at a
foreclosure sale unless such beneficiary or purchaser shall have actually
received and not refunded the deposit, and Tenant shall comply with any written
directions by any beneficiary to pay rent due hereunder directly to such
beneficiary without determining whether an event of default exists under such
beneficiary's deed of trust.
SECTION 22.5. COVENANTS AND CONDITIONS. All of the provisions of this Lease
shall be construed to be conditions as well as covenants as though the words
specifically expressing or imparting covenants and conditions were used in each
separate provision.
SECTION 22.6. SECURITY MEASURES. Tenant hereby acknowledges that Landlord
shall have no obligation whatsoever to provide guard service or other security
measures for the benefit of the Premises or the Project. Tenant assumes all
responsibility for the protection of Tenant, its agents, invitees and property
from acts of third parties. Nothing herein contained shall prevent Landlord, at
its sole option, from providing security protection for the Project or any part
thereof, in which event the cost thereof shall be included within the definition
of Project Costs.
LANDLORD: TENANT:
WW&LJ GATEWAYS, LTD., IMMERSION CORPORATION,
A CALIFORNIA LIMITED PARTNERSHIP A DELAWARE CORPORATION
BY: THE IRVINE COMPANY,
AS ATTORNEY-IN-FACT FOR
WW&LJ GATEWAYS, LTD.
AND NOT ON ITS OWN BEHALF
By /s/ RICHARD G. SIM By /s/ VICTOR VIEGAS
-------------------------------- ------------------------------
Richard G. Sim, Executive Vice Name Victor Viegas
President of The Irvine Company ----------------------------
Title Chief Financial Officer
---------------------------
By /s/ ROBERT E. WILLIAMS, JR. By /s/ LOUIS B. ROSENBERG
-------------------------------- ------------------------------
Robert E. Williams, Jr., President Name Louis B. Rosenberg
Irvine Industrial Company, ----------------------------
a division of The Irvine Company Title Chief Executive Officer
---------------------------
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<PAGE> 1
EXHIBIT 10.2
AMENDMENT #1 TO THE APRIL 13, 1998
INTELLECTUAL PROPERTY LICENSE AGREEMENT
AND TECHNOLOGY PRODUCT DEVELOPMENT AGREEMENT
WHEREAS Immersion Corporation, a Delaware Corporation with principal
offices in San Jose, California (hereinafter "Immersion") and Logitech, Inc., a
California corporation with principal offices in Fremont, California
(hereinafter "Logitech"), entered into an Intellectual Property License
Agreement dated April 13, 1998 (hereinafter the "IP License Agreement") and a
Technology Product Development Agreement also dated April 13, 1998 ("Development
Agreement"); and
WHEREAS Immersion and Logitech (collectively, the "Parties") now wish to
amend the IP License Agreement and the Development Agreement to encompass
certain additional products to be manufactured and sold by Logitech under
license from Immersion;
NOW, THEREFORE, the Parties hereby agree to amend the IP License Agreement
and the Development Agreement as follows:
1. LICENSE GRANT. Pursuant toss.7.4 of the IP License Agreement, and
subject to the terms and conditions of the IP License Agreement and
this Amendment # 1 thereto, Immersion hereby grants to Logitech a
worldwide, non-exclusive (except as provided in Section 2 below),
non-transferable, non-assignable license under the Licensed Patents to
develop, make, have made, use, sell, lease, demonstrate, market and
distribute "[****] Products." As used herein, "[****] Products" means
a computer mouse in which tactile forces are applied [****], where
tactile forces are applied along the plane of the desktop). Except as
provided in Section 2.3 of the IP License Agreement ("Right to
Sublicense"), no right to sublicense the Licensed Patents is granted
by Immersion to Logitech.
2. [****] PREEMPT PROTECTION. Provided that, on or before [****],
Logitech meets its United States Product Availability Date ("U.S.
PAD") for a product meeting the functional requirements set forth in
Exhibit A, Immersion agrees not to supply technology to, or sign a
contract with, any third party which would enable such third party to
sell a similar product as an after market mouse peripheral in the
retail channel on or before [****] (the "[****] Exclusivity Period").
For purposes of this Agreement, U.S. PAD shall mean the date on which
at least 50% of Logitech's first full month's forecast in finished
[****] Product is in Logitech's U.S. distribution center. Further,
Immersion will not grant contractual rights to any third party
peripheral manufacturer that will allow them to publicly announce a
similar product, as a retail after market mouse peripheral, on or
before [****] ("the "[****] Quiet Period").
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
<PAGE> 2
3. WINGMAN PREEMPT PROTECTION: Provided that Logitech continues to use
reasonable business efforts to support and promote the Wingman Force
Feedback Mouse, Immersion agrees not to supply technology to, or sign
a contract with, any third party which would enable such third party
to sell a similar product as an after market mouse peripheral in the
retail channel on or before [****] (the "Wingman Force Feedback Mouse
Exclusivity Period".)
4. PRODUCT COMMITMENTS. Logitech agrees to use its best efforts to launch
its [****] Product with a U.S. PAD on or before [****]. Such product
shall meet the functional requirements attached to this amendment as
Exhibit A. As part of this commitment, Logitech agrees that, in the
event technical difficulties arise that threaten to prevent it from
meeting the [****] PAD, it will, in collaboration with Immersion's
engineering staff, utilize aspects of Immersion's then-current [****]
technical solution as necessary to do so. Immersion will provide to
Logitech as soon as possible within ten (10) days after execution of
this Amendment, header files, any basic documentation that is
currently available, and in-person technical support on the
ITouchSenseEffectDriver interface for Immersion's TouchSense(tm) API.
Immersion agrees to make best efforts to ensure a minimum of [****]
shipping non-trivial gaming titles, and [****] web pages and/or
non-gaming software titles, by [****], that are specifically designed
for use with the force feedback mouse family of products. If Immersion
fails to meet the objectives identified in the preceding sentence,
Logitech may, if it chooses to do so, extend its U.S. PAD beyond
[****] without losing the preemption protection provided for in
Paragraph 2, except that under no circumstances shall Logitech's
Exclusivity Period extend beyond [****].
5. NEW TECHNOLOGY ROYALTIES. The [****] Product to be manufactured and
sold by Logitech hereunder shall be deemed a Royalty Bearing Product
in accordance with the terms of the IP License Agreement, and the
royalty thereon shall be 5% pursuant to Section 3.2 thereof.
6. EXCLUSIVITY FEE. In consideration of the preemption protection
provided for in Section 2, Logitech agrees to pay Immersion a minimum
royalty of no less than [****] for [****] Products sold up to and
including [****]. This requirement is waived if Immersion does not
meet its efforts mentioned in the last two sentences of Section 4
above.
7. ENGINEERING SUPPORT BY IMMERSION. Immersion agrees to use its best
efforts to provide engineering support to Logitech in connection with
Logitech's development and testing of Logitech's [****] Product
implementation as reasonably requested by Logitech. As presently
contemplated, Immersion's efforts will be focused on ensuring software
compatibility of the [****] Product with TouchSense(TM)-enabled
software applications and web pages, but Immersion will, if Logitech
requests, use its best efforts to assist Logitech with any hardware
and/or firmware issues
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
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identified by Logitech. Within two weeks of signing this agreement,
the parties agree to formulate a breakdown of efforts and Immersion
will quote, using its standard billing practices, an NRE fee for these
efforts. Work requested by Logitech and agreed on by Immersion, as
well as the payments to be made by Logitech for such work, will be set
forth in an amendment or amendments to the Development Agreement.
8. ANNOUNCEMENT. Logitech agrees publicly to announce its [****] Product,
including the fact that such product will be manufactured and sold
under license from Immersion, on or before the [****] in [****] of
this calendar year. Logitech further agrees to substitute references
to Immersion's TouchSense(TM) mark and associated logo in place of
Immersion's former "FEELit" mark and logo in connection with
Logitech's labeling obligations under the IP License and Development
agreements.
9. FORCE FEEDBACK MOUSE FAMILY COMMITMENT: Immersion and Logitech agree
to continue their joint efforts to develop the force feedback mouse
market space. To this end, they will support the [****] Product and
the current Wingman Force Feedback Mouse ("WFFM") as a product family,
and will market such product family to software developers and
consumers. Logitech and Immersion remain committed to making the WFFM
product as successful as possible through sales, marketing, and
evangelical programs. Immersion will continue to focus its marketing
and software support efforts on this family of mouse products, and
will continue to drive the gaming, web, productivity, accessibility,
education, and CAD/graphics markets for software support and demand
creation.
10. WINGMAN FORCE FEEDBACK MOUSE COMMITMENT: Logitech will use its best
efforts to ensure that it can meet, in a timely manner, the product
volume opportunities that emerge for the Wingman Force Feedback Mouse
as a result of the efforts in Section 9 above. This includes making
sure that a manufacturing facility is capable of ramping up production
in a timely manner as product volumes begin to move. Immersion and
Logitech agree to communicate regularly about the evolving product
volume opportunities.
11. DEVELOPER UNITS: Logitech will use its best efforts to provide
Immersion with a minimum of 250 free developer units for distribution
to software developers by July 31, 2000. Immersion will use its best
efforts to distribute said units to developers within 10 days of
receipt and to support said developers. Immersion may hold up to a
maximum of twenty units for internal testing if approved in advance by
Logitech.
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
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12. LABELING:
RETAIL LABELING: Logitech agrees to Immersion's standard marketing
terms for branding and logo usage for all [****] Products sold by
Logitech through the retail channel, except that the size of
Immersion's logo shall be 3/4" by 3/4", and except further that
Logitech shall not be required to place the Immersion name or logo on
the belly label for such products or to mark such belly label with
Immersion's Licensed Patents. Logitech further agrees to include in
the product manual for its [****] Products (a) a prominent statement,
to be displayed adjacent to the Immersion logo, that such product
contains "TouchSense(TM) technology licensed from Immersion
Corporation," and (b) a statement that "This product is covered by one
or more of the following Immersion Corporation patents," such
statement to be immediately followed by a list of the then-issued
Immersion patents (such list to be provided by Immersion to Logitech).
Immersion will provide all necessary artwork for use by Logitech in
connection with the foregoing labeling requirements as soon as
possible within thirty (30) days after execution of this Amendment.
OEM LABELING: Logitech shall not be obligated to comply with Immersion
standard marketing terms for branding and logo usage for [****]
Product sold by Logitech into OEM channels, except that Logitech
shall, if it succeeds in obtaining branding and/or labeling rights for
itself from an OEM customer to include Logitech branding or labeling
in an OEM customer's manual, include the same information in such
manual with respect to Immersion as set forth above in connection with
retail labeling.
13. AMADEUS 2 CANCELLATION: Logitech and Immersion agree to discontinue
the Amadeus 2 program as currently specified. The parties further
agree to execute an amendment to their Marketing Development Fund
Letter Agreement dated October 21, 1999 ("MDF Agreement") transferring
to the [****] Product those MDF payments that were to be allotted to
the Amadeus 2 product, and renewing Immersion's commitment to purchase
[****] WFFM units (none of which shall now be Amadeus 2 units) for
evangelical purposes.
14. FUTURE NEGOTIATIONS: Immersion and Logitech agree within the next
twenty-eight (28) days to engage in discussions:
a. to negotiate in good faith the terms and conditions of a possible
contract under which Logitech would purchase chips, which it
currently purchases from KLSI, directly from Immersion. The
terms of the chip purchase agreement would be substantially
similar to the terms and conditions currently provided by KLSI,
and nothing herein or therein would in any way obligate Logitech
to use the Immersion chip in its products, but rather, would
merely shift such purchases as Logitech chooses to make from KLSI
to Immersion; and
b. (a) to negotiate in good faith [****] provisions governing [****]
Product sold by Logitech to OEM customers; and (b) to negotiate
in good
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
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<PAGE> 5
faith a modification of the parties' existing [****] provisions
designed to improve the workability, predictability and fairness
of such provisions. In this regard, and as a gesture of good
faith, Immersion hereby agrees that, with respect to future
[****] which do not clearly and without question fall outside the
scope of Immersion's present [****] obligations, Immersion will
assume the expense of obtaining any required [****]
15. ENTIRE AMENDMENT. This Amendment and its Exhibit, together with the
other written agreements previously entered into and executed by the
Parties, constitute the complete agreement of the Parties concerning
the subject matter hereof, and supersedes any other agreements,
promises, representations or discussions, written or oral, concerning
such subject matter.
IN WITNESS WHEREOF, the authorized representatives of the Parties hereto have
signed this Amendment # 1 as of the date and year set forth below.
<TABLE>
<S> <C>
LOGITECH, INC. IMMERSION CORPORATION
By: /s/ W.H. Hausen By: /s/ Victor Viegas
---------------------- -----------------------
Name: W.H. Hausen Name: Victor Viegas
Title: SVP/GM Title: CFO
Date: 3/21/00 Date: 3/21/00
</TABLE>
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
5
<PAGE> 6
EXHIBIT A
Functional Requirements
Hardware:
This product is a force feedback mouse interface that is [****] surface with a
form factor and functionality that is similar to [****] products. The mouse
product will provide a [****] force feedback, said force feedback being applied
in [****] both of which are parallel to the plane of the desktop).
To ensure that the hardware can adequately support the sensations required of
the desktop, web, productivity, and gaming software, it must meet the following
basic hardware functionality requirements:
Minimum Actuator Fidelity: The [****] forces to the user must be capable of
generating up to [****] vibrations with no less than [****] attenuation of
the [****] force magnitude.
USB Power: The [****] must be sized such that it can be driven, as
described above, within the power limitations of the USB specification.
Software:
In order to assure compatibility with the software titles and web pages that are
written with the Immersion TouchSense Developer Toolkit version 2.1 (including
the Immersion Foundation Classes(TM), Immersion Software Developer Kit(TM),
Immersion Studio(TM), Immersion Web Developer Kit(TM), Sample Code, and Demos),
the product produced under this agreement must meet the following technical
specifications:
TouchSense API: This product must support the Immersion TouchSense API,
enabled through the Immersion Foundation Classes (IFC) version 2.1. This is
the same API supported by the Wingman Force Feedback Mouse, enabling basic
compatibility between the products.
TouchSense Effects: The device must be capable of playing a minimum of the
following basic TouchSense effects, as fully defined by the TouchSense API
specification: [****] need not be supported.
Simultaneous Effects: The device must be capable of playing a minimum of
[****] different effects simultaneously ([****] background effects and
[****] foreground effects. For reference, the Wingman Force Feedback Mouse
can play [****] effects simultaneously ([****] background and [****]
foreground).
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
6
<PAGE> 7
Axis Mapping: Because [****] is a [****], it [****] associated with forces.
Any force effect, [****] will [****] be played on the [****].
DirectX: It is important to point out that [****] when it comes to desktop,
web, and productivity applications [****]. With respect to gaming, since
[****] the notion of "force feedback mice," all mouse games are supported
through the [****](as was true of the Wingman Force Feedback Mouse). Note -
to support force feedback [****], Logitech would need to provide [****] as
was done on Wingman Force Feedback Mouse.
[****] compatibility: This product must be a [****] mouse.
USB compatibility: This device must fully meet the v1.1 revision of the USB
specification. In addition, the device must be capable of passing all tests
at the periodic `Plug-Fest' events.
Boot Mode: This device must support `BOOT' mode functionality such that it
will be recognized and used by those computer BIOS that support USB boot
mouse functionality. This will allow this mouse to be used prior to the
Windows OS being loaded. It will allow the mouse to operate when Windows
has loaded a minimal driver set in a debugging environment (a.k.a. `Safe'
Mode).
Platform: [****].
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
7
<PAGE> 1
EXHIBIT 21.1
SUBSIDIARIES OF IMMERSION CORPORATION
Name Jurisdiction of Incorporation
- ------------------------------------ -----------------------------
Cybernet Haptic Systems Corporation Michigan
Haptic Technologies, Inc. Montreal, Canada
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-2000
<PERIOD-START> JAN-01-2000
<PERIOD-END> MAR-31-2000
<CASH> 28,714
<SECURITIES> 20,212
<RECEIVABLES> 1,459
<ALLOWANCES> (188)
<INVENTORY> 683
<CURRENT-ASSETS> 52,327
<PP&E> 1,534
<DEPRECIATION> (635)
<TOTAL-ASSETS> 63,176
<CURRENT-LIABILITIES> 3,322
<BONDS> 0
0
0
<COMMON> 76,702
<OTHER-SE> (16,848)
<TOTAL-LIABILITY-AND-EQUITY> 63,176
<SALES> 1,220
<TOTAL-REVENUES> 2,462
<CGS> 623
<TOTAL-COSTS> 5,786
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> (2,564)
<INCOME-TAX> 0
<INCOME-CONTINUING> (2,564)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (2,564)
<EPS-BASIC> (0.16)
<EPS-DILUTED> (0.16)
</TABLE>
